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January 2, 1996

HQ 955771

CLA-2 R:C:F 955771 ASM


TARIFF NO: 1702.30.40

District Director of Customs
P.O. Box 025280
6601 N.W. 25th St.
Miami, Florida 33102-5280

RE: Decision on Application for Further Review of Protest No. 5201-93-100664

Dear Madam:

This is a decision on an application for further review of Protest No. 5201-93-100664, against your decision in the classification and liquidation of powdered cut flower food.


As identified in the Customs laboratory report, the powdered form of this product is a mixture which consists of approximately: 82 to 91.3 percent dextrose monohydrate, 4.7 to 13 percent water, 1.5 percent potassium, and 2.5 percent other inorganic materials. Dextrose is another name for glucose, which is defined as a sugar (C6 H12O6) known most commonly in the sweet colorless soluble dextrotatory form that occurs widely in nature.

You classified the subject merchandise, powdered cut flower food, under subheading 3823.90.5050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "...chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included..." which is dutiable at the column one general rate of duty of 5 percent ad valorem (this provision is currently identified as 3823.90.9050, HTSUSA, dutiable at 5 percent).

The Protestant claims that the powdered cut flower food should be classified as a "vegetable fertilizer," subheading 3101.00.0000, HTSUSA, which is eligible for duty free treatment. It is argued that the merchandise qualifies under this subheading because it is produced from vegetables (wheat, corn and potatoes) and it is a fertilizer (i.e., provides nutrients to fresh flowers and promotes the growth of fresh flowers. In the alternative, the Protestant requests classification of the products as a "mineral or chemical fertilizer" under subheading 3102.90.00, HTSUSA; or as a"glucose" product under subheading 1702.30.4000, HTSUSA (this provision is currently identified as 1702.30.40, HTSUSA, dutiable at 3.3 cents per kilogram).


What is the proper classification under the Harmonized Tariff Schedule of the United States Annotated of a powdered cut flower food product which consists of between 82 and 91.3 percent sugar?


Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN's), which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

The provision for animal or vegetable fertilizers is contained at subheading 3101.00.0000, HTSUSA, which provides for "Animal or vegetable fertilizers, whether or not mixed together or chemically treated; fertilizers produced by the mixing or chemical treatment of animal or vegetable products." According to Websters's New Collegiate Dictionary, a "fertilizer" is a substance, such as a manure or chemical mixture, used to make soil more fertile. Thus, it is clear that fertilizers are products used to enhance plant growth while in the soil and/or prior to cultivation. The product now in question is prepared, packaged, and marketed to enhance the longevity of cut fresh flowers which have already been cultivated and removed from the soil. It is clear that the product, by definition, is not a fertilizer within the meaning of heading 3101, HTSUSA, and cannot be classified under this provision.

With respect to classification of the product under subheading 3823.90.5050, HTSUSA, as a product of the chemical or allied industries, this powdered cut flower food contains from 82 to 91.3 percent dextrose which is a natural material. Although these products also contain up to 3.1 percent of other inorganic materials, it is our opinion that 3823.90.5050, HTSUSA, does not cover mixtures such as those where the percentage of the sugar component (minimum of 82 percent dextrose) is so disproportionate to the percentage of the chemical components.

In order to determine the correct classification for this merchandise, we must first apply GRI 1. Under GRI 1, the primary consideration in the classification of a good is the terms of the heading itself which must be read in conjunction with the relative notes. The subject product consists of a mixture of sugar, water, potassium, and inorganic salts. As such, there is no heading which specifically provides for this preparation. Thus, the merchandise does not present a prima facie GRI 1 classification issue; GRI 2(a) is inapplicable .

GRI 2(b) is applicable because it governs the classification of goods when there are mixtures and combinations of materials or substances, and when goods consist of two or more materials or substances. The rule extends all tariff headings relating to a material or substance to include goods that are not entirely of that material or substance, however, application of the rule cannot enlarge the scope of the heading.

The EN's to 1702, HTSUSA, state that this heading covers other sugars as follows:

(3) Glucose, which occurs naturally in fruits and honey. Together with an equal part of fructose it constitutes invert sugar.

The heading includes dextrose (chemically pure glucose) and commercial glucose.

Dextrose (C6H1206) is a white crystalline powder. It is used in food and pharmaceutical industries.

Commercial glucose is obtained by hydrolysing starch with acids and/or enzymes. It always contains, in addition to dextrose, a variable proportion of di-, tri- and other pollysaccharides (maltose, maltotriose, etc.). It has a reducing sugar content, expressed as dextrose on the dry substance, of not less than 20 %. It is usually in the form of a colourless, more or less viscous liquid (glucose syrup, see Part (B)) or of lumps or cakes (glucose aggregates) or of an amorphous powder. It is used mainly in the food industry, in brewing, in tobacco fermentation and in pharmacy.

The EN's to heading 1702 support the inclusion of products under this heading which contain a mixture of other elements along with the primary ingredients of glucose and/or dextrose. The EN's specifically state that commercial glucose always contains, "... in addition to dextrose, a variable proportion of di-,tri- and other polysaccharides ... (emphasis supplied)." The EN's further state: "Commercial glucose is obtained by hydrolyzing starch with acids and/or enzymes." This statement in the EN provides additional support that heading 1702, HTSUSA, is intended to cover glucose and/or dextrose products which have been mixed with some additional elements. Furthermore, according to the Protestant, this powdered cut flower food is obtained by hydrolyzing starch with acids and/or enzymes.

It is our determination that powdered cut flower food is not precluded from classification under heading 1702, HTSUSA, merely because it is not intended for human consumption. Although the EN's state that commercial glucose is used mainly in the food industry, they further mention its use in "tobacco fermentation" which would imply that the "other sugars" covered by this heading, need not be edible.

In view of the foregoing, it is our determination that classification of this product under heading 1702, HTSUSA, would not enlarge the scope of the heading. Classification of both products can be made in accordance with GRI 2(b), which by application, allows classification pursuant to the principles of GRI 1.

In the instant case, the powdered cut flower food products contains a minimum of approximately 82 percent dextrose, making it the principal ingredient in the product's composition. Dextrose is classifiable under subheading 1702.30, HTSUSA, if it is in a dry state, less than 20 percent by weight of fructose. It is our understanding that this product contains no fructose or added flavoring or coloring matter which may prohibit classification under this heading.


The product identified as powdered cut flower food is properly classifiable within subheading 1702.30.40, HTSUSA, which provides for "Glucose and glucose syrup, not containing fructose or containing in the dry state less than 20 percent by weight of fructose: Other." The rate of duty at the general column one rate is 3.3 cents per kilogram. Retail packaging - not subject to sugar quota.

You are instructed to allow the protest with respect to the dry product, in accordance with this decision. A copy of this decision should be attached to the Form 19 to be returned to the Protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division

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