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HQ 965444




August 8, 2002

CLA-2 RR:CR:GC 965444 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.4700

Port Director
U.S. Customs Service, Attn.: Team 137
198 West Service Road
Champlain, NY 12919

RE: Protest 0712-01-100320; "Dry Roux"

Dear Port Director:

This is our decision on Protest 0712-01-100320, filed by counsel for Nestle USA, Inc., against your classification of "Dry Roux" under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 2000 and 2001, were liquidated June 15, 2001, and the protest timely filed on September 13, 2001.

FACTS:

The product consists of a dry food product put up for institutional food service use as a "sauce/soup thickener." The product consists, by dry weight, of mostly wheat flour, and lesser amounts of modified food starch, butter, nonfat dry milk and less than one percent each of yeast extract and maltodextrin. Customs laboratory report CH 200110583 dated April 23, 2001, has shown that the product contains over 5.5% by weight of butterfat. The product is packed for institutional and food service use in 40 pounds and 2.5 pound containers, respectively.

The product was entered in subheading 2106.90.9998, HTSUS, as an other food preparation not elsewhere specified or included. You reclassified the product in subheading 1901.90.4700, the over-quota provision for other food preparations of flour, meal, starch or malt extract, dairy products described in additional U.S. note 1 to chapter 4, HTSUS.

The protestant claims classification in subheading 2103.90.90, HTSUS, as a preparation for a sauce, or, in the first alternative, in subheading 2104.10.0000, HTSUS, as dried soups or broths and preparations therefor, or, in the second alternative, in subheading 1901.90.90, HTSUS, as an other food preparation of flour, meal, starch or malt extract.

ISSUE:

Whether the dry roux is classified in heading 1901.90.4700, HTSUS, in the over-quota provision for other food preparations of flour, meal, starch or malt extract, dairy products described in additional U.S. note 1 to chapter 4, HTSUS, or as dried soups or broths or preparations therefor, or as an other food preparation of flour, meal, starch or malt extract, not subject to additional U.S. note 1 to chapter 4.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

The protestant argues that the product is classified as a preparation for a sauce in subheading 2103.90.90, HTSUS; or classified as dried soups or broths and preparations therefor; or classified in subheading 1901.90.90, HTSUS, as other food preparations of flour, meal, starch or malt extract.

With respect to the first claim that the product is a preparation for a sauce, the protestant cites the decision in Orlando Food Corp. v. United States, 140 F. 3d 1437 (Fed. Cir. 1998). The protestant claims that the dry roux bears some similarities to the whole tomatoes, the tomato puree, the salt, citric acid and the basil leaf of the Orlando product that was found to be a preparation for a sauce. The instant product is similar in that its components are edible and produced in part from a plant. However, the product's dissimilarities are great. In Orlando, at 1441, the appeals court was convinced that the Orlando tomato product was imported for the purpose of direct sale to a sauce manufacturer and that the product formed a base or preparation for a tomato sauce. With respect to the dry roux, the product is not necessarily destined for use in a sauce because it consists of generic contents, flour, butter, and non-fat dry milk. These are correctly identified by the label and the product is described as a "sauce/soup thickener." The product may be useful in a commercial kitchen or as an ingredient in the manufacturing process of various edible products, but it does not have any character that would identify it as a preparation of any particular kind of sauce. If one were to accede to the identity of the instant product as a preparation for a sauce, one could just as likely identify butter or flour or emulsified oil as being a preparation for a sauce. It is true that they might form some part of a finished sauce, but they would not provide any identity or uniqueness to the sauce.

The protestant's claim that Orlando is relevant is further discounted by the fact that the package clearly indicates that the product may be used as a thickener for a soup or a sauce. These are commercially quite different products, although they may share some of the same ingredients. That fact reinforces the elementary nature of a roux. It is merely the assembly of the earliest precursors to a food product and because of its neutral characteristics does not provide any substantial identity to the finished product. The Orlando product was determined to be solely used as a preparation for a sauce. The court further noted that the government had "pointed to no other possible use" and that in the court's opinion no other uses spring to mind. Orlando, Id. Therefore, there is nothing in the opinion of the Orlando court that would support classification of a generic product with multiple uses as a preparation for a sauce.

The protestant's next claim is that the product is classifiable in subheading 2104.10.0000, as dried soups or broths and preparations therefor. As with the earlier claim, the product is so neutral that it cannot be identified as a preparation for a soup, because, as the protestant readily admits in its memorandum, the product works equally well in sauces. The facts presented indicate a variety of uses, not one of them fugitive, and such an array of uses makes clear that the dry roux is not so far advanced as to be a preparation for any particular thing.

The protestant's last claim is that Customs chose the wrong subheading within heading 1901, HTSUS, because subheading 1901.90.4700 and associated subheadings 9904.04.50-9904.05.01, identifies the roux as within the scope of additional U.S. note 1 to chapter 4, including "articles containing over 5.5 percent by weight of butterfat which are suitable for use as ingredients in the commercial production of edible articles." Emphasis supplied. Protestant disputes that its roux is used in the commercial production of edible articles and claims to the contrary that the product is merely used in the commercial preparation of edible articles. Therefore, protestant asks for alternative classification in subheading 1901.90.90, HTSUS, which would be outside of the scope of additional U.S. note 1 to chapter 4. We can find no meaningful distinction between production and preparation with respect to the products under consideration. Neither the 2.5 pound container nor the 40 pound container is packaged for retail sale and both are used by chefs and in large volume commercial food preparation or production. While the U.S. note in question serves to exempt from the reach of the restriction the small retail package, any non-retail use, such as the chef and commercial kitchens using the roux, are squarely within the scope of the quota. Therefore, subheading 1901.90.47, HTSUS, remains appropriate for this product.

HOLDING:

The "Dry Roux" is classified in subheading 1901.90.4700, HTSUS, the over-quota provision for other food preparations of flour, meal, starch or malt extract, dairy products described in additional U.S. note 1 to chapter 4, HTSUS.

The protest should be denied.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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