(dissenting).
I am unable to agree with the majority that the record fails to establish that the imported twine in issue here is classifiable within the provision for “All binding twine and twine chiefly used for baling hay, straw, and other fodder and bedding materials” in paragraph 1622 of the Tariff Act of 1930, as modified.
Referring to the entry papers and testimony relative thereto, it is apparent that four of the eight entries involved in the present protests 1 included merchandise designated “binder twine” which was returned as duty-free under paragraph 1622, and was thus not subject to the present protests, in addition to the merchandise similarly designated which was held dutiable under paragraph 1005 (b) and which constitutes subject *928matter under protest. With the entry papers for each protest, there is a laboratory report by a chemist for the Customs Bureau, which report sets forth the weight of ball, oil content, and feet per pound of a sample ball from the lot or lots of “binder twine” included therein. For each ball tested, the report shows a ball weight of approximately either 5 or 8 pounds and an oil content of over 8 per cent. As to each of those lots in the aforementioned four entries which was ultimately classified in paragraph 1622, the report shows a length per pound (or where two balls were sampled, an average length per pound) of 475 feet or more. As to every lot that was ultimately charged with duty under paragraph 1005 (b), the report shows a length per pound, or average length per pound, of less than 475 feet.
The testimony of Peuler and Hodapp establishes that the line examiner “did always have to have” a chemical analysis of imported merchandise invoiced as “binder twine” in order to classify it, and that the items on which the chemist was instructed to report on each sample submitted to him were those actually set out in the reports: (1) weight, (2) percentage of oil, * and (3) feet per pound. Peuler, characterized by the trial judge as a “very reluctant witness,” conceded that “whether the footage came up to 500, give or take the 5 per cent” was a factor taken into account in determining whether a lot of twine was advisorily classified under paragraph 1622 or paragraph 1005 (b). Testifying with respect to a specific entry, Peuler stated that the balls always differ in weight, by an amount less than a pound, and agreed that the weight was not a decisive factor in the classification.2 3
In seven of the eight involved entries, the report of the examiner recommending classification in paragraph 1005 (b) includes as the explanation a statement that the laboratory test reported “less than” 475 or 500 feet per pound or a statement that the footage per pound was a specified amount which was less than 475 feet. Five of six reports signed by Peuler are in that category. Peuler’s other report merely states that the twine “does not conform to the requirements of Sec. 1622,” but other papers included with that report contain notations that the twine ran less than 475 feet per pound and that it averaged 455 feet per pound.
Hodapp testified that balls of twine constituting Illustrative Exhibits 1, 2, and 3 had characteristics the same as, or similar to, those balls of twine invoiced as binder twine that came to him for analysis and were found to come up to 500 feet per pound. He was unable to say whether the balls of the exhibits ran at 500 feet per pound since that could be determined only by unwinding the ball and thereby rendering it unusable in harvesting machinery. Witnesses for the importer further testified that those exhibits had the same characteristics as the goods they made or handled as “binder twine.”
It is of interest also that one of the laboratory reports, that in Protest 274662-K, signed by Hodapp, includes the statement:
TD’S 40805 and 45026 have been noted.
The significance of that statement is revealed by Geo. Wm. Rueff, Inc. v. United States, 72 Treas. Dec. 290, T.D. 49151. That case concerned T.D. 40805 in which the Treasury Department, through an order dated April 14, 1925, undertook to define “binding twine” as used in the Tariff Act of 1922 as containing approximately not less than 500 feet to the pound, from which the collector allowed a variation up to 5 per cent to make the minimum 475 feet to the pound. Considering the application of that requirement to paragraph 1622 of the 1930 Act, the Customs Court there held that, in *929the absence of it being established that twine of the kind and character in question of less than 475 feet to the pound was not chiefly used for the binding of grain, the additional requirement regarding length in the order was “an abridgement of the law” and “without legal authority.” The same Rueff decision also cites an earlier decision with the same title, reported at 65 Treas. Dec. 740, T.D. 47033, which held that T.D. 45026, a Treasury regulation requiring that binding twine have not less than 8 per cent of oil to fall within paragraph 1622, was invalid.
I think it apparent from the foregoing that the record overwhelmingly demonstrates that, except for its testing less than 475 feet per pound,4 the twine in issue was in all substantial respects the same as twine similarly invoiced as “binder twine” and classified under paragraph 1622. It is also clear that it was only because the twine in issue measured less than 475 feet per pound that it was not admitted duty-free. Thus, the question is whether such a difference in length is, on the present record, controlling of classification.
On that point, United States v. Geo. Wm. Rueff, Inc., 41 CCPA 95, C.A.D. 535 (1953), held that the recitation of “All binding twine”5 as specified in paragraph 1622 did not preclude twine that ran about 200 feet per pound and was used in tying or baling of hay. As stated by the Customs Court in the present case, that decision indicated that paragraph 1622 “would encompass all twine made from the enumerated raw materials which did not exceed the statutory maximum of 750 feet to the pound and was chiefly used in the agricultural pursuits of tying grains or harvesting.” While the Customs Court here was apparently satisfied that “binder twine” which was imported in lengths running no more than 5 per cent short of 500 feet per pound, as did that returned by the collector as duty-free under paragraph 1622, was of a class having the stated chief use, it found that there was a failure of proof by appellants, which failure was “in respect to showing that the instant twine belonged to the class of acknowledged binder twine.” The reasoning that led the court to that conclusion was:
In this case, plaintiffs have marshaled an abundance of proof relating to binder twine in what can best be described as its commercially acceptable form. In this form, the twine is expected to possess certain physical qualities, among which is the requirement that it measure 500 feet per pound. The testimony reveals that this characteristic is expected by the importers, sellers, and ultimate users and is the standard aimed for by the manufacturer. Consequently, it appears that the requisite yield of twine per pound is a major characteristic of binder twine as a class, absent which such twine will not be acceptable for the uses testified to by plaintiffs’ witnesses. In short, the proper length per pound is an indispensable identifying characteristic of the class of twine known as binder twine. In light of *930this fact, the length of .the instant twine becomes of central importance, not arising from the necessity of demonstrating that these particular shipments were used on the farm, but rather from .the necessity of showing that the instant twine possesses those essential characteristics which the class possesses.
In my opinion, the court and the majority are clearly in error in holding that the imported twine must meet their strict definition of the term “binder twine,” requiring as a necessary characteristic a yield of at least 475 feet per pound, in order to be of a class of twine fitting within the provision for “All binding twine, and twine chiefly used for baling hay” [my emphasis] etc., set out in paragraph 1622. The court apparently considered the evidence that importers, sellers, and economy-minded users expect and desire twine running 500 feet per pound to require the conclusion that twine of less than that length “will not be acceptable” for the uses testified to by appellants’ witnesses. However, the evidence reveals that, as a practical matter, the imported twine was sold and used in the same manner even if it was found by Customs to run less than the minimum of 475 feet per pound and therefore held dutiable.
In an analysis of the evidence with which I am in full agreement, the Customs Court stated:
The witnesses testified that the instant twine was entered into the same commercial channels whether or not it was accorded duty-free status. The sales of this twine were made to twine wholesalers, large retailers, farm implement and feed dealers, and organizations of farmers.
Extensive testimony was offered regarding the ultimate use of twine entered in the above-mentioned channels. The nine witnesses connected with its importation and sale were in agreement that it was used on the farm for the binding and tying of grains. They based .their statements either on the fact that the channels in which they sold their twine were such as catered to the needs of farmers or on the actual observation of binding twine in use in roto baler machines in the course of their business travels. The area covered by such observations extended over the full length and breadth of the major farm areas of the United States.
However, it is apparent that the court failed to appreciate the significance of that testimony in establishing .the imported twine to be of a class chiefly used in “the agricultural pursuits of tying grains or harvesting” and thus fall within the provision for “All binding twine, and twine chiefly used for baling hay,” etc. in paragraph 1622. The testimony constitutes convincing evidence that the twine invoiced as “binder twine” and denied duty-free entry in the present case is chiefly used in the same manner,6 and belongs to the same class, as similarly invoiced goods returned as duty-free under paragraph 1622. The other express requirements of paragraph 1622 also being satisfied, the presently involved twine cannot be excluded from the same class as the twine admitted duty-free simply because of its testing less than 475 feet per pound. The fact that twine of 500 feet per pound is considered by the industry to be the most economical and is therefore preferred loses all practical significance in view of the estab*931lished practice of actually marketing and using the twine in a manner independent of the possibility that the length may on some occasions be less than preferred.
As I view the present case, it is readily distinguished on the facts from Bob Stone Cordage Co. v. United States, 51 CCPA 60, C.A.D. 838, held by both the Customs Court and the majority to be controlling. There the court found an absence of satisfactory proof that the imported twine, yielding less than 500 feet per pound, “was a type of twine chiefly used in agricultural pursuits for binding purposes,” but the finding was based on a decidedly different record.7 Thus, the record led to the conclusion in that case that “[t]here was no proof that twine of the proven measurements of the imported merchandise had ever been used for binding purposes in farming operations.” Also it was found that, while the record showed ,the principal area for consumption of the twine was the entire Middle West, “the observations of the witnesses were limited to the states of Nebraska, Oklahoma, Kansas, Arkansas, Missouri and Iowa.” Whereas it was concluded on the Bob Stone record that twine, “whether it be manufactured and distributed as binding twine or baler twine,” is susceptible to use for varied purposes in “industry and commerce in general” as well as agriculture, the record here presents persuasive evidence that the twine in question was of a class used exclusively for agricultural purposes.8 The decision in Bob Stone did not rest merely on the feet-per-pound question, as Judge Almond’s opinion here seems to imply. As was stated in Bob Stone, “the measurements within the designated limit in no wise abridges the embrasure of the statute provided the criteria of use are established.” (My emphasis.)
I would reverse the judgment of the Customs Court.
. Those entries involved in Protests Nos. 63/8538, 63/8542, 63/15930, and 64/12413.
. Earlier reports specified the actual amount of oil, as 13.2 per cent, but later reports merely stated that the amount of oil exceeded 8 per cent.
. The record reveals that ’ the twine in question was imported in “bales” which were made up of either six “8 pound” balls or ten “5 pound” balls.
. The single ball or pair of balls taken as samples represented only a very small proportion of the total twine in the lots sampled. Thus one sample ball was tested from the 2000 bales of six 8 pound balls each making up the lot of twine under protest in 274662-K and found to measure 379 feet to the pound. In Protest 63/15930, where 2 sample balls were taken from the lot of bales made up of six 8 pound balls classified under paragraph 1005(b), one ball measured 487 feet per pound but the second measured 459, bringing the average to 473 feet per pound, under the standard of 475 used.
. At the time of the importations involved in Rueff, paragraph 1622 merely specified “All binding twine manufactured,” etc. and did not include “and twine chiefly used for baling hay, straw and other fodder and bedding materials,” which now appears between “twine” and “manufactured.” At the time of its decision, the court was aware that Congress had since so amended the paragraph and concluded that such amendment was intended only to clarify the original language, not to alter its scope.
. The sole uses described by the witnesses are in binding grain in grain binders and in the Allis Chalmers “Roto-Baler,” which uses twine running as great as 500 feet per pound or more, for taling harvest materials such as hay and straw. Although there is testimony that binders are still used in some parts of the country, the indication is that such binders have been largely supplanted by the combine. Thus the chief use of the class of goods involved here may be regarded as in the rotary baler, thus bringing the present imports in obvious compliance with the recitation in paragraph 1622 of “twine chiefly used for baling hay, straw, and other fodder and bedding materials” as well as the expression “All binding twine.”
. Counsel for the parties were aware of the Bob Stone decision at the trial in the present case and it is apparent that appellants were endeavoring to avoid the evidentiary deficiencies found to exist in that case.
. The evidence indicates that a significant reason for that circumstance is that the oiled condition of the twine renders it unsuitable for other uses.