CLA-2-CO:R:C:F 954846 K
TARIFF No.: 0202.30.6000
Michael A. Hertzberg, Esq.
Maria Tan Pedersen, Esq.
Howrey & Simon, Attorneys at Law
1299 Pennsylvania Ave. N.W.
Washington, D.C. 20004-2402
RE: Classification of Beef Logs From Australia
Dear Mr. Hertzberg and Ms. Pedersen:
The office of the Area Director, New York Seaport referred
to Customs Headquarters for a direct response the request dated
July 27, 1993, from John A. Steer Co., a customhouse broker, on
behalf of Quality Foods, for a classification ruling for certain
beef logs from Australia. Your office submitted additional
information in correspondence dated October 4 and November 5,
1993. Our response follows.
FACTS:
Lean pieces of beef weighing approximately 3 oz. to 2 lbs
are tenderized and placed in a vacuum tumbler with a marinade
mixture and tumbled until the marinade is fully absorbed. During
the tumbling process a natural beef protein (myacin) surfaces and
acts as a natural binder and the pieces are hand-molded into
rectangular log forms approximately 4" x 7" x 28" and weighing an
average of 31 pounds. The beef logs consist of 90.91 percent by
weight of beef and 9.09 percent by weight of marinade. The
marinade consists of 7.79 percent water, 0.41 percent dextrose,
0.4 percent sodium phosphate, 0.32 percent hydrolyzed vegetable
protein and 0.17 percent autolyzed yeast. After importation, the
frozen beef logs are sliced into thin wafers and repackage in
smaller containers. The meet is used to make steak sandwiches.
ISSUE:
The issue is whether the marinading process described above
results in prepared or preserved beef so that classification in
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Chapter 2, Harmonized Tariff Schedule of the United States
(HTSUS) is precluded.
LAW AND ANALYSIS:
Subheading 0201.30.60, HTSUS, provides for other meat of
bovine animals, fresh or chilled, boneless, and subheading
0202.30.60, provides for the same merchandise that is frozen.
Both subheadings provide for a rate of duty at 4.4 cents per
kilogram. Beef without bone (except offal), provided for in
these subheadings, is subject under heading 9903.23.00 to a
temporary rate of duty of 100 percent ad valorem, if the beef is
a product of a European Community country. Also, beef classified
in these subheadings is also subject to quota if the beef is from
Australia or New Zealand. (See Department of Agriculture quota
ruling concerning restriction on importation of meat from
Australia and New Zealand, 58 Federal Register 18143, published
on April 8, 1993.) The beef in question is from Australia.
The competing classification provision in the tariff for the
beef is subheading 1602.50.60, HTSUS, which provides for other
prepared or preserved meat of bovine animals, with duty at the
rate of 4 percent ad valorem. Beef classified under this
subheading is not subject to the quota ruling of the Department
of Agriculture and not subject to the temporary rate of duty
under heading 9903.23.00.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN), a guideline for use in
determining classification under HTSUS, states in the notes for
Chapter 2, that "meat and meat offal cooked in any way (boiled,
steamed, grilled, fried or roasted), or otherwise prepared or
preserved by any process not provided for in this Chapter,
including those merely covered with batter or bread crumbs,
truffled or seasoned (e.g., with pepper and salt)..." are
classified in Heading 1602. The General notes to Chapter 16, EN,
also set forth examples of beef that is not cooked in any way
that is classified in Chapter 16 as beef that has been "prepared
or preserved in the form of extracts, juices or marinades,
prepared from fish eggs as caviar or caviar substitutes, merely
covered with batter or bread crumbs, truffled, seasoned (e.g.,
with both pepper and salt), etc." It is the position of the
inquirer that the marinading and seasoning process precludes
classification in subheadings 0201.30.60 and 0202.30.60.
The tariff schedule and the EN do not define the term
"marinades". The term "marinade" is defined in the Glossary of
Cooking Terms, The Encyclopedia Americana International Edition
(1980), Volume 7, as "a flavorful, mildly acid mixture of lemon
juice, vinegar, wine, tomato or fruit juice, with savory herbs
and spices, and, often, with salad oil. A marinade has a
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tenderizing effect on collagen and meat fibers and adds flavor to
the food." Webster's Third New International Dictionary,
Unabridged (1968), also defines the term "marinade" as "a brine
or pickle usu. containing vinegar or wine, oil, spices and herbs
in which a food (as meat or fish) is soaked to enrich its
flavor." The composition of the marinade as described above does
not clearly fall within the dictionary definitions of the term
"marinade".
Nor are we satisfied that the marinading process as
described results in beef that has been "seasoned". The EN lists
as an example the use of salt and pepper to season beef.
Otherwise, the EN is not helpful in defining the term "seasoned".
Salt and pepper are not included in the composition of the
marinade.
Webster's Third New International Dictionary, Unabridged
(1968), defines the term "seasoning" as "something that serves to
season; as a: an ingredient (as a condiment, spice, or flavoring)
added to food primarily for the savor that it imparts". The
Random House Dictionary of the English Language, Unabridged
Edition (1973), defines seasoning as a "salt or herb, spice, or
the like for the heightening or improving the flavor of food".
We note that Additional Note 6, Chapter 2, of the Annex to
Official Journal of the European Communities, published May 25,
1993 (for the European Community tariff), states that
(a) Uncooked seasoned meats fall within Chapter 16.
"Seasoned meat" shall be uncooked meat that has been
seasoned either in depth or over the whole surface of
the product with seasoning either visible to the naked
eye or clearly distinguishable by taste.
(b) Products falling within heading 0210 to which
seasoning has been added during the process of
preparation remain classified therein provided that the
addition of seasoning has not changed their Character.
In our opinion, the tumbling of the beef pieces in the
aqueous solution as described does not result in a product "that
has been seasoned either in depth or over the whole surface of
the product with seasoning, either visible to the naked eye or
clearly distinguishable by taste."
The EN states that "meat and meat offal, slightly sprinkled
with sugar or with aqueous solution of sugar are also classified
in this Chapter", that is, Chapter 2. When we delete the
percentage of dextrose (sugar) used in the marinade, the total
percentage by weight of the sodium phosphate, hydrolyzed
vegetable protein, and the autolyzed yeast merely consists of
0.89 percent by weight of the entire product. The sodium
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phosphate renders the individual beef pieces cohesive by drawing
protein to the surface. The hydrolyzed vegetable protein and
autolyzed yeast may add to and enhanced the beef flavor of the
beef. However, in our opinion the marinade as described does not
change the beef flavor or the character of the meat and
classification is not precluded from Chapter 2.
HOLDING:
The beef logs from Australia as described above are
classified as meat of bovine animals, frozen, boneless, other,
subheading 0202.30.60, HTSUS, dutiable at 4.4 percent per
kilogram.
Sincerely,
John Durant, Director
Commercial Rulings Division