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.


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.


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.


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.


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.


John Durant, Director
Commercial Rulings Division