HQ 955771: Decision on Application for Further Review of ProtestNo. 5201-93-100664

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                         January 2, 1996


                            HQ  955771


CLA-2   R:C:F   955771   ASM

CATEGORY:  Classification

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. 

FACTS:

     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). 
                              - 2 -

     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).

ISSUE:

     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?

LAW AND ANALYSIS:

     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.

                              - 3 -

     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.

                          *     *     *
                              - 4 -     

     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.  

HOLDING:

     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.




                              - 5 -

     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.

                              Sincerely, 

                              John Durant, Director
                              Commercial Rulings Division