appears as 19 U.S.C. § 1001, par. 907:
'Tracing cloth, cotton window hollands, and all oilcloths (except silk oilcloths and oilcloths for floors), 30 per centum ad valorem; filled or coated cotton cloths not specially provided for 35 per centum ad valorem; waterproof cloth, wholly or in chief value of cotton or other vegetable fiber, whether or not in part of India rubber, 40 per centum ad valorem.'
No such provision appears in the tariff schedules as they were reported to Congress on November 15, 1960, or as they were modified in any supplemental report. In fact, the new schedules have eliminated the category of 'waterproof cloth' completely, and have 'assimilated' provisions for such cloth with a new category called 'coated or filled fabrics.' Schedule 3, Part 4, Subpart C, Items 355.65-356.45, Tariff Classification Study, p. 123 (p. 223 of the one-volume edition of all schedules). The Explanatory Notes of the Commission state that 'it does not seem desirable or feasible to establish a classification for fabrics on the basis of water repellency unassociated with a coating or filling concept.' Study, Schedule 3, p. 134. The new category of 'coated or filled' is defined as meaning that the fabric
'has been coated or filled (whether or not impregnated) with gums, starches, pastes, clays, plastics materials, rubber, flock, or other substances, so as to visibly and significantly affect the surface or surfaces thereof otherwise than by change in color, whether or not the color has been changed thereby * * *.' Study, Schedules 3, p. 121 (p. 221 of the one-volume edition of all schedules).
It will be seen at once that in this definition there is no mention of water-repellency or water-proofness.
Before this new categorization was submitted to Congress, Congress passed the following statute:
'In order to insure a correct interpretation of the provision 'waterproof cloth' in paragraph 907, Tariff Act of 1930, it is hereby declared that it was and is the true intent and meaning of paragraph 907 to limit the term 'waterproof', when applied to cloth, 'wholly or in chief value of cotton or other vegetable fibre, whether or not in part of India rubber', to cloths of a kind generally used in the manufacture of articles which are designed to afford protection against water to the extent expected in raincoats, protective sheeting, dress shields, umbrellas, and similar articles. Even when cloth possesses water repelling characteristics, it is not classifiable as waterproof cloth within the meaning of paragraph 907, Tariff Act of 1930, unless it is of a kind generally used in the manufacture of articles of the class specified in the preceding sentence.' § 2, Public Law 86-795, 74 Stat. 1051, 1960 U.S.Code Cong. & Adm.News, pp. 1452-3 (September 15, 1960).
This statute was clearly not a 'change in tariff treatment' within the meaning of § 101(b)(4)(A) of the Tariff Classification Act of 1962, supra. Congress was specifically merely declaring what 'was and is the true intent and meaning of paragraph 907' in so far as such paragraph dealt with 'waterproof cloth.' Such declaration is not a change in tariff treatment; it is an authoritative declaration of the true meaning of the category 'waterproof cloth' from the time such category was first placed in the tariff schedules. The fact that the Tariff Commission decided to eliminate this category from the new tariff schedules altogether is no indication that the Commission acted contrary to what Congress intended, especially since the Congress, in the Tariff Classification Act of 1962, supra, specifically approved the new schedules as they were contained in the report of November 15, 1960, and specifically repealed 19 U.S.C. § 1001, of which paragraph 907, dealing with waterproof cloth, is a part. Plaintiff's argument would require the Tariff Commission to incorporate into the new schedules any Congressional interpretation of a category in the old schedules, even if such category has been eliminated completely. Such a result, however, is not supported by common sense, and is not required by § 101(b)(4)(A) of the Tariff Classification Act of 1962.
The defendants' motion for summary judgment will therefore be granted, and plaintiff's motion for summary judgment will be denied. This disposition makes moot the defendants' claims that this Court lacks jurisdiction.