CLA-2 CO:R:C:G 086042 WAW
District Director of Customs
U.S. Customs Service
111 W. Huron Street
Buffalo, N.Y. 14202-2378
RE: Decision on Application for Further Review of Protest No.
0901-9-700680, Classification of Osmose K-33C Wood
Preservative
Dear Sir:
This is a decision on an application for further review of a
protest timely filed April 7, 1989, against your decision in the
classification of Osmose K-33C (50%) wood preservative under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) entered under entry number 112-1502236-6, made January
4, 1989, and liquidated January 27, 1989; entry number 112-
1502686-2, made January 6, 1989, and liquidated January 27, 1989;
and entry number 112-1515584-4, made January 13, 1989, and
liquidated February 3, 1989.
FACTS:
The subject merchandise, Osmose K-33C (50%) Wood
Preservative, is described as a water borne concentrate of
inorganic metal oxides of arsenic, copper and chromium. The
product is diluted by the customer to an appropriate
concentration in water, approximately 3 percent to 5 percent
oxides. The diluted solution is designed for the pressure
impregnation of wood to provide protection against decay,
termites, and marine borers.
It is the importer's position that the subject merchandise
was improperly liquidated under subheading 3808.20.3000, HTSUSA,
and that it is more specifically described under subheading
3823.90.3900, HTSUSA. The importer maintains that since the good
is a mixture of two or more inorganic compounds that are not
elsewhere described in the nomenclature, it clearly falls under
subheading 3823.90.3900, HTSUSA. Moreover, the importer states
that Heading 3808, HTSUSA, includes those goods "put up in forms
or packings for retail sale." Therefore, the importer argues
that since Osmose K-33C is never sold for retail sale, it is
precluded from classification under Heading 3808, HTSUSA.
ISSUE:
Whether the wood preservative is classifiable under the
provision for mixtures of two or more inorganic compounds under
subheading 3823.90.3900, HTSUSA, or under the provision for
insecticides, rodenticides, inter alia, and similar products
under subheading 3808.20.3000, HTSUSA.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the
HTSUSA. GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff and any
relative section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.
Heading 3808, HTSUSA, provides for insecticides,
rodenticides, fungicides, herbicides, antisprouting products and
plant-growth regulators, disinfectants and similar products, put
up in forms or packings for retail sale or as preparations or
articles (for example, sulfur-treated bands, wicks and candles,
and flypapers). The Explanatory Notes constitute the official
interpretation of the tariff at the international level. The
Explanatory Notes to Heading 3808, HTSUSA, state the following:
Intermediate preparations, requiring further
compounding to produce the ready-for-use insecticides,
fungicides, disinfectants, etc., are also classified
here, provided they already possess insecticidal,
fungicidal, etc. properties.
In the instant case, it is Customs position that Heading
3808, HTSUSA, is the most specific description of the sample
product. The wood preservative is designed to impregnate wood
products. The importer maintains that the product is not used or
stored in the home, and is only intended to be used in pressure
plants for industrial purposes. Moreover, the good acts as a
preventive treatment to repel insects and decay organisms
contained in wood. Although the product is not sold in
packaging normally associated for retail sale, it is
specifically provided for in Heading 3808, HTSUSA, since in its
condition as imported, the product is a mixture of two or more
inorganic compounds which together possess the essential
qualities of a fungicide.
HOLDING:
The merchandise is considered an intermediate preparation
possessing the essential properties of a fungicide for
classification purposes. Thus, the instant merchandise is
properly classifiable under subheading 3808.20.3000, HTSUSA.
This protest should be denied in full. A copy of this
decision should be attached to the Form 19 to be returned to the
protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division