The opinion
DISSENTING OPINION
Fokd, Judge: Agricultural implements, while designated eo nomine in paragraph 1604, Tariff Act of 1930, have been held to embrace only such articles designed for use in agriculture. Accordingly, it is a use provision. In the field of customs jurisprudence, a use provision requires evidence of chief use of the class or kind of article and not the use to which the imported articles were put. United States v. Colibri Lighters (U.S.A.) Inc., 47 CCPA 106, C.A.D. 739.
*420 Chief use is a question of fact which must be established on the basis of positive testimony representative of an adequate geographical cross section of the nation. L. Tobert Co., Inc., American Shipping Co. v. United States, 41 CCPA 161, C.A.D. 544.
In the case at bar, the evidence of use is fragmentary and does not, in my opinion, establish, by positive testimony, actual use by the farmer throughout an adequate geographical area of the nation. The evidence adduced as to actual use by the farmer is limited to the East St. Louis area, and one farm in Pennsylvania, and one in Maryland. This is by far an inadequate showing of chief use throughout the United States. The evidence of use elsewhere represents demonstrations by sales personnel of the Palston Purina Company and not actual use by the farmer. In order to cover areas of the United States where actual use of the imported article was not observed, which in this case amounts to the balance of the United States, the importer introduced the testimony of sales personnel who instructed in the use of the imported articles. Notwithstanding that executives and sales personnel are, because of their positions, deemed to be aware of the ultimate use of the articles they sell, their testimony is not, in and of itself, sufficient to establish chief use in a case such as this. This is particularly so where plaintiff’s own witness “assumed,” on cross-examination, that the imported dusters may be used on dogs. If the imported articles may be used on dogs, it is fair to assume that the dusters may be utilized on other nonfarm animals whose habitat is generally regarded as urban. Neither does the instruction by such personnel, as to the operation of the imported articles, constitute sufficient probative value to establish chief use by the ultimate consumer. Nor does the information contained in plaintiff’s exhibits 2 through I have sufficient probative value to establish chief use. To utilize the latter information to establish chief use would create the illogical situation whereby a dealer of a given kind of merchandise would be in a position to control tariff classification by the selection of language he utilizes in a pamphlet or instruction booklet. United States v. Sheep Shearers Mdse. & Comm. Co., 23 CCPA 146, T.D. 48009 (wherein a question of commercial designation was involved but the foregoing is deemed applicable to the principle of chief use).
The court, although it may be tempted to consider its own judicial knowledge of the chief use of the merchandise under consideration, may not do so. L. Tobert Co., Inc., American Shipping Co. v. United States, supra.
I am of the opinion that the record as made is insufficient to establish chief use. The utilization of information contained on the exhibits which was prepared by the ultimate consignee plus the testimony of salesmen who instructed in the operation but did not observe actual *421 use, if held sufficient to establish chief use, would, in my opinion, eliminate the necessity of proof within the previously declared standards.
I would, therefore, overrule the protest.