(concurring).
I agree that we should affirm the decision below. My reasons for doing so, however, are somewhat different from those which I seem to find in the majority opinion, at least in emphasis.
This is an unusual case not given to absolutes in reaching a conclusion. One of its most unusual features is that appellant, as the majority says, claims classification under the Tariff Act of 1930, as amended, which act had been wholly repealed at the time of the importations. In effect, appellant asks us to revive it as to only one provision, paragraph 907. This would indeed create an anomalous situation, reviving by judicial fiat one provision of a law repealed by Congress. Reason and common sense argue against doing such a thing if it can be avoided.
The majority opinion repeats the four points which the government brief says are involved on this appeal: 1. whether section 101(b) (4) (A) was mandatory on the Tariff Commission or gave it discretion ; 2. whether Public Law 86-795 was a “change”; 3. whether Congress adopted (i.e., ratified) the changes made *574by the Tariff Commission with respect to “waterproof cloth”; and 4. whether appellant is entitled to the relief it claims. The majority rests its decision altogether on the holding that the Tariff Commission acted entirely within the discretion conferred upon it in determining that Public Law 86-795 was not a change in tariff treatment, or at least not such a change as required a change in tariff schedules. I feel this is an oversimplification and somewhat misleading for the reason that the Tariff Commission actually did make a change in the tariff schedules with respect to waterproof cloth of cotton or other vegetable fiber. That is what appellant’s complaint is based on; under paragraph 907 of the 1930 Act it paid 11% duty and now it has to pay 22.5% because of that change.
The pivotal point of the situation on which appellant relies, moreover, is the decision of this court in United States v. D. H. Grant & Co., 47 CCPA 20, C.A.D. 723 (1959), not mentioned in the majority opinion. The only reason it can be argued that Public Law 86-795 was a “change” in “tariff treatment” which the Tariff Commission was obliged to include in the TSUS is that (a) the Grant case, interpreting paragraph 907, gave it a construction that neither the Customs Bureau nor Congress liked, holding to be of no effect a Customs Bureau Letter (T.D. 53630, Oct. 11, 1954) which attempted to plug a loophole, and (b) that Public Law 86-795, enacted by Congress, did what the Customs Bureau Letter was not permitted by this court to do — that is to plug the loophole which Congress said had never been intended, thus effectively overruling the Grant case. All the while Congress was making it clear that, so far as it was concerned, the statutory law had always been the same, the trouble being with the construction that this court had put on paragraph 907. This construction had made possible avoidance of the intended duty on certain cotton cloth by temporarily waterproofing it merely for the purposes of duty assessment, the waterproofing being removed after the cloth was inside the country. But for the Grant case there would have been no need for Public Law 86-795, nor any ground for appellant’s argument that a change in tariff treatment took place which had to be included in the new schedules (the odd effect of which would have been to include in TSUS the preGrant statutory law, as supplemented by the Customs Bureau Letter, wiping out Grant and Public Law 86-795 because the latter overruled the former). So the situation is not a simple one.
My view on the government’s first issue — whether section 101(b) (4) (A) is mandatory or gives discretion — is that it is both. It cannot be gainsaid that the language gives some discretion, otherwise the Commission is not in a position to “decide” anything. At the same time it tells the Commission certain things it is to do. With respect to “waterproof cloth” the Commission, knowing it had a problem, devised a solution, not adverted to by the majority, which it carefully explained to Congress. This explanation, set forth in the Tariff Classification Study, 1960, Vol. 5, p. 134, was as follows:
The existing tariff provisions with respect to coated or filled fabrics are fragmentary and poorly arranged. Included among them but not specifically designated as a coated or filled fabric, is “waterproof cloth, wholly or in chief value of cotton or other vegetable fiber, whether or not in part of India rubber” in paragraph 907. The provision for waterproof cloth has been controversial over the years. It has been interpreted as including certain fabrics which are not coated or filled within the meaning ascribed to that term in this subpart (CAD 723 [the Grant case, supra]). The effect of that court ruling holding so-called water-repellant fabrics to be within this provision in paragraph 907 has been carefully studied, and it does not seem desirable or feasible to establish a classification for fabrics on the basis of water repellency unassociated with a *575coating or filling concept. The provisions for waterproof cloth, therefore, have been assimilated with the coated or filled fabrics in item 355.65.
Appellant’s argument, in essence, is that the Commission could not do that, that it had to keep the old paragraph 907 provision as it was before Grant. I disagree. I think this was within thé intended grant of discretion, without meaning to indicate just what the limits of that discretion were.
Assuming, arguendo, that the particular solution to the “waterproof cloth” problem did go beyond the strict limits of the discretion given to the Commission, however determined, there is a further reason for affirming in this case. I agree with the government contention that Congress itself — the source of whatever discretionary powers were given to the Commission — approved or ratified the alteration or change in the tariff schedules with respect to waterproof cloth about which appellant complains. Appellant’s remedy, therefore, lies with Congress rather than with the courts. After the 1960 report, the legislative and schedule-adopting procedures continued until the final promulgation by Presidential Proclamation No. 3548, effective August 31, 1963. In the interval the House Ways and Means Committee provided an opportunity for interested parties to submit comments on the Tariff Commission proposals, there was the First Supplemental Report in January 1962 to committees of House and Senate, which even included a minor change in item 355.65, and Congress passed the Tariff Classification Act on May 24, 1962, after receiving the comments and suggestions which had been solicited. I have considered appellant’s arguments that the procedures were such that it was “reassured” that paragraph 907 and Public Law 86-795 would be in the new schedules because that is the way it read the requirements of 101(b) (4) (A) of the pending bills, but I do not find therein any comment on the clear statement quoted above from the first Tariff Commission Study in which the Commission said what it was doing about waterpi’oof cloth, followed by the First Supplemental Report which again dealt with item 355.65, the item in which the first report had said waterproof cloth would be “assimilated.” Appellant does not persuade me that there was no ratification by Congress of the Commission’s solution to the problem.
On the issue of whether Public Law 86-795 effected a “change in tariff treatment,” there is the possibility of answering that question both “yes” and “no,” depending on how it is viewed. If one looks to the statutes written by Congress, paragraph 907 provided for a certain duty on waterproof cloth. One then had to determine what “waterproof cloth” means. A physical test evolved which created a loophole in the statute, and the Customs Bureau tried to close it by ruling that the question should be decided by a use, rather than a physical, test. The problem came to this court in Grant wherein we held in favor of the physical test. Congress then enacted Public Law 86-795 which, in terms, declared what the statutory law “was and is.” Thus, there never was a change in the statutory law. As to tariff treatment, however, there was a change. The “law,” consisting of the statute as interpreted by Grant, was changed when Congress declared that the Grant interpretation of its statute was not in accord with its intent.
In this situation, I expect that the Tariff Commission would have as much trouble as I do in deciding whether Grant changed the “tariff treatment” and Public Law 86-795 changed it back or whether Grant merely declared what the law was all along and the Public Law changed it. After making a choice in that respect, there remain other problems: Did the Commission have the discretion to make that choice ? Assuming a change, was it a change “in tariff treatment made by statute,” or “under authority of law [Grant]”? If the answer is in the affirmative, what then is “necessary” by way of tariff provisions to “reflect” the change? All this is what *576section 101(b) (4) (A) involves and I see no clearcut answer. Hence this litigation.
My answer is that in a difficult situation the Tariff Commission worked out a practical solution, submitted it to Congress, Congress submitted it to the public, and Congress duly enacted a statute pursuant to which the new TSUS come into being as law. I can see no reasonable ground for holding that part of a repealed statute still exists because it was not “legally” superceded. For these reasons I vote to affirm.