HQ 953849: Decision on application for further review of Protest No. 3801-93-100287, filed January 26, 1993; Classification of cheese sauce mix in heading 2103 as sauces and preparations therefor; Not heading 0406 as cheese and curd; Not heading 1901 as food preparation of goods of headings 0401 to 0404.

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.

                            HQ 953849

                         October 5, 1993

CLA-2 CO:R:C:F 953849 LPF

CATEGORY: Classification

TARIFF NO.: 2103.90.6090

District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266

RE: Decision on application for further review of Protest No.
    3801-93-100287, filed January 26, 1993; Classification of
    cheese sauce mix in heading 2103 as sauces and preparations
    therefor; Not heading 0406 as cheese and curd; Not heading   
    1901 as food preparation of goods of headings 0401 to 0404.

Dear Sir:

    This is a decision on a protest filed January 26, 1993 against
your decision in the classification of merchandise liquidated on
November 13, 1992 and November 17, 1992.

FACTS:

    The product at issue, described as "non-standardized cheese
sauce mix," is in powder form and imported in bulk-sized boxes.
The product is composed of whey protein concentrate powder, blended
condensed skim milk powder and condensed buttermilk powder, KRD
stirred curd cheese, cheddar cheese, concentrated sweet whey, salt
flakes, sodium tripolyphosphate, disodium phosphate, citric acid,
color mix A, and lactic acid.  Once imported the powder is packaged
with pasta as a macaroni and cheese dinner.  To prepare the dinner
the pasta is first cooked and drained and then mixed with the
powder sauce mix, margarine, and milk.  It is our understanding
that it is necessary to add milk but not margarine to the powder
in order to create the cheese sauce.  Although margarine may give
the end product a creamier taste and glossier appearance, the
product is palatable solely with the addition of milk.

    The protestant entered the product under subheading 2103.90.60,
Harmonized Tariff Schedule of the United States Annotated (HTSUSA),
as "Sauces and preparations therefor...: Other: Other," at a duty
rate of 7.5 percent ad valorem."





                               -2-

    You maintain that the product is classifiable in 0406.90.8015,
HTSUSA, as "Cheese and curd: Other cheese: Other cheeses...:
Other...: Other, Containing, or processed from, Cheddar cheese,"
at a duty rate of 10 percent ad valorem and subject to quota under
9904.10.30.  A Notice of Redelivery was issued December 10, 1992
because the importer did not obtain proper quota status prior to
the product's release.

ISSUE:

    Whether the cheese sauce mix is classified in heading 0406 as
cheese and curd, 1901 as food preparations of goods of headings
0401 to 0404, or 2103 as sauces and preparations therefor.

LAW AND ANALYSIS:

    The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA.  Most imported 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 (EN's) to the Harmonized Commodity Description
and Coding System, 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.

    Heading 0406 provides for cheese and curd.  The EN's to 0406
indicate that:

          This heading covers all kinds of cheese, viz.:

          (1) Fresh cheese (including cheese made from whey 
          or buttermilk) and curd.  Fresh cheese is an 
          unripened or uncured cheese which is ready for
          consumption shortly after manufacture (e.g. 
          Ricotta, Broccio, cottage cheese, cream cheese,
          Mozarella).

          (2) Grated or powdered cheese.

          (3) Processed cheese, also known as process cheese.  
          It is manufactured by comminuting, mixing, melting 
          and emulsifying, with the aid of heat and emulsifying
          or acidifying agents (including melting salts), one 
          or more varieties of cheese and one or more of the
          following: cream or other dairy products, salt, 
          spices, flavouring, colouring and water....

    
                               -3-

    The cheese components of the product constitute only a small
minority of all the ingredients comprising the entire "cheese
sauce."  Accordingly the product is not identifiable as cheese and
does not fit the description of cheese or curd as provided for in
the terms of the heading and applicable EN's.

    Alternatively heading 1901 provides for food preparations of
goods of headings 0401 to 0404 not elsewhere specified or included,
while heading 2103 provides for sauces and preparations therefor.

    The EN's to 2103 indicate that the heading includes:

          ...preparations, generally of a highly spiced          
          character, used to flavour certain dishes (meat, 
          fish, salads, etc.), and made from various 
          ingredients (eggs, vegetables, meat, fruit, 
          flours, starches, oil, vinegar, sugar, spices, 
          mustard, flavourings, etc.).  Sauces are generally 
          in liquid form and preparations for sauces are 
          usually in the form of powders to which only milk,     
          water, etc. need to be added to obtain a sauce....

          Examples of products covered by the heading are:
          mayonnaise, salad dressings, Bearnaise, bolognaise
          ..., soya sauces, mushroom sauce, Worcester sauce...,
          tomato ketchup...and other tomato sauces,....


    It is apparent the product will be used to flavor certain
dishes and will not be used in its own right.  In this case the
product will be used with pasta to create a macaroni and cheese
dinner.  

    In addition, the product qualifies as a "sauce preparation,"
as referred to in the EN's, because it is a product in powder form
to which only milk needs to be added to obtain the sauce.  Customs
draws a distinction between products which qualify as finished or
complete preparations for sauces and those which merely constitute
ingredients used in the manufacture or preparation of a sauce.  In
this case it is our understanding that while some type of liquid
must be added to the powder (e.g., milk) to form the sauce, it is
not necessary to mix the powder with margarine.  Although the
margarine may give the sauce a creamier taste and glossier
appearance, the macaroni and cheese dinner is still very palatable
without adding the margarine.  The product does not merely
constitute ingredients used in the manufacture or preparation of
a sauce.  Instead, it is our position that the product constitutes
a complete sauce preparation appropriately classified within
heading 2103.  The appropriate subheading is 2103.90.6090.


                               -4-

    Because the cheese sauce mix is included within 2103, it is
not classified within 1901 which only provides for food
preparations of goods of headings 0401 to 0404 not specified or
included elsewhere.

HOLDING:

    The cheese sauce mix is classified in subheading 2103.90.6090,
HTSUSA, as "Sauces and preparations therefor...: Other: Other,
Other: Other."  The general column one rate of duty is 7.5 percent
ad valorem.
    
    In accordance with the United States-Canada Free Trade
Agreement (CFTA), if the product is an "originating good" as
defined by General Note 3(c)(vii)(B), HTSUSA, it will be dutiable
at the special column one rate of duty of 3.7 percent ad valorem.

    Because reclassification of the merchandise as indicated above
will result in the lower rate of duty as claimed you are instructed
to allow the protest in full.  In addition, because the merchandise
is not subject to any quota limitations and should not have been
excluded from entry or delivery, the Notice of Redelivery should
be rescinded.

                                   Sincerely,




                                   John Durant, Director
                                   Commercial Rulings Division