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HQ 953849

October 5, 1993

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


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.


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."

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.


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.


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....

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.

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.


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.


John Durant, Director

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