CLA-2 OT:RR:CTF:TCM H256565 LWF
Port Director
Service Port of Philadelphia
2nd and Chestnut Streets
Room 102
Philadelphia, PA 19106
RE: Application for Further Review of Protest No. 1101-14-100135; Classification of frozen veal bones from New Zealand
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 1101-14-100135, timely filed on May 28, 2014, by Culinary Ingredient Group LLC, d/b/a More Than Gourmet (“MTG”) at Service Port of Philadelphia. The AFR concerns the U.S. Customs and Border Protection’s (CBP) classification under the Harmonized Tariff Schedule of the United States (HTSUS) of frozen veal bones from New Zealand.
FACTS:
The merchandise at issue is described as frozen veal bones, cut to length. The bones come from the neck vertebrae, aitch, blade, brisket, knuckle tip, and rib bones of “bobby” veal calves. The bones are cut length-wise or width-wise into maximum 15 centimeter lengths, but are otherwise unprocessed. In their condition as imported, the bones have extremely small pieces of residual meat attached to them. The residual meat makes up less than 1% of the weight of the bones.
The instant Protest/AFR was timely filed on May 28, 2014 and concerns seven entries of frozen veal bones that were entered between November 20, 2012 and December 26, 2012 at the Service Port of Philadelphia. At the time of entry, MTG originally classified the frozen veal bones under subheading 0202.20.30, HTSUS, which provides for “Meat of bovine animals, frozen: Other cuts with bone in: Described in additional U.S. note 3 to this chapter and entered pursuant to its provisions: Processed: Other.” On July 31, 2013, MTG filed post-entry amendments (PEAs) with the Port for all seven entries, seeking reclassification of the frozen veal bones under subheading 0206.29.00, HTSUS, which provides for “Edible offal of bovine animals, swine, sheep, goats, horses, asses, mules or hinnies, fresh, chilled, or frozen: Of bovine animals, frozen: Other.” On August 8, 2013, the Port issued a CBP Form 28, Request for Information (CF-28) to MTG seeking further information concerning the imported veal bones. Following MTG’s response to the Port’s CF-28, the Port issued Notices of Action (NOAs) with respect to all seven entries of frozen veal bones, in which it determined that the bones were properly classified under subheading 0202.20.50, HTSUS, which provides for “Meat of bovine animals, frozen: Other cuts with bone in: Described in additional U.S. note 3 to this chapter and entered pursuant to its provisions: Other.” Pursuant to the NOAs, six of the entries were liquidated under subheading 0202.20.50, HTSUS, on March 28, 2014; the seventh entry was liquidated on April 4, 2014 under the same provision.
In its AFR submission, MTG claims that the frozen veal bones are properly classified under subheading 0506.90.00, HTSUS, which provides for “Bones and horn-cores, unworked, defatted, simply prepared (but not cut to shape), treated with acid or degelatinized; powder and waste of these products: Other.” As basis for classification under subheading 0506.90.00, HTSUS, MTG asserts that in New York Ruling Letter (“NY”) 808024, dated April 27, 1995, CBP previously classified frozen veal bones under heading 0506, HTSUS. MTG argues that frozen veal bones classified under heading 0506, HTSUS, in NY 808024 are identical to the instant merchandise. Consequently, MTG asserts the Port’s decision to liquidate MTG’s frozen veal bones in heading 0202, HTSUS, is inconsistent with a ruling of the Commissioner of Customs or his designee, and the Protestant has requested AFR pursuant to 19 C.F.R. § 174.24.
ISSUE:
Whether the frozen veal bones are classified under heading 0202, HTSUS, as meat of bovine animals, frozen; heading 0206, HTSUS, as edible offal of bovine animals, swine, sheep, goats, horses, asses, mules or hinnies, fresh, chilled, or frozen; or under heading 0506, HTSUS, as bones and horn-cores, unworked, defatted, simply prepared (but not cut to shape), treated with acid or degelatinized; powder and waste of these products.
LAW AND ANALYSIS:
Initially, CBP notes that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The Protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 1101-14-100135 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a), because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise.
Merchandise imported into the United States is classified under the Harmonized Tariff Schedule of the United States. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied.
The 2012 HTSUS headings under consideration are the following:
0202 Meat of bovine animals, frozen
0206 Edible offal of bovine animals, swine, sheep, goats, horses, asses, mules or hinnies, fresh, chilled, or frozen
0506 Bones and horn-cores, unworked, defatted, simply prepared (but not cut to shape), treated with acid or degelatinized; powder and waste of these products
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The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to Chapter 2, HS, provides, in pertinent part, as follows:
This Chapter applies to meat in carcasses (i.e., the body of an animal with or without the head), half-carcasses (resulting from the lengthwise splitting of a carcass), quarters, pieces, etc., to meat offal, and to flours and meals of meat or meat offal, of all animals (except fish and crustaceans, molluscs and other aquatic invertebrates - Chapter 3), suitable for human consumption.
…
Subheading Explanatory Note.
With bone in
The expression “with bone in” means meat with all bones intact, as well as meat where some or part of the bones have been removed (e.g., shankless and semi-boneless hams). This expression does not cover products where the bones have been removed and thereafter reinserted so that they are no longer connected to the meat tissues.
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The EN to heading 02.06, HS, provides, in pertinent part, as follows:
The edible offal of this heading includes the following : heads and cuts thereof (including ears), feet, tails, hearts, udders, livers, kidneys, sweetbreads (thymus glands and pancreas), brains, lungs, throats, thick skirts, thin skirts, spleens, tongues, caul, spinal cords, edible skin, reproductive organs (e.g., uteri, ovaries and testes), thyroid glands, pituitary glands. For the principles to be applied for the classification of offal, see the General Explanatory Note to this Chapter.
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The EN to heading 05.06, HS, provides, in pertinent part, as follows:
(2) Bones, simply prepared (but not cut to shape), i.e., not having undergone processes extending beyond simple sawing for the removal of superfluous parts, cutting (crosswise or lengthwise), sometimes followed by rough planing or bleaching. The heading therefore excludes rectangular (including square) plates and sheets and other shapes, whether or not polished or otherwise worked, and products obtained by moulding powdered bone; all these goods fall in heading 96.01 or in other more specific headings.
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In support of its claim that the frozen veal bones are properly classified in heading 0506, HTSUS, MTG asserts that the presence of small amounts of residual meat on the bones is incidental to the classification of the bones pursuant to GRI 1. MTG states that the amount of residual meat on the frozen veal bones does not affect the physical character, economic value, or intended use of the bones. For these reasons, MTG claims that the residual meat is legally de minimis and should be disregarded by CBP for purposes of tariff classification.
The principle, de minimis non curat lex (“the law does not care for trifles”), may be applied to determinations under the customs laws of whether the presence of some ingredient affects the character of an imported article for purposes of tariff classification. Alcan Aluminum Corp. v. United States, 165 F.3d 898, 902 (Fed. Cir. 1999); see also Headquarter Ruling Letter (“HQ”) 967233, dated February 18, 2005 (evaluating whether a coating of an antimicrobial agent applied to plastic caps for stethoscopes should be treated as de minimis for purposes of tariff classification); HQ H011945, dated October 31, 2007 (concluding that certain ingredients representing less than 1 percent by weight of frozen, marinated chicken portions were de minimis for purposes of tariff classification). Where the customs laws do not set a de minimis threshold at which an absolute amount of material is considered legally insignificant, the intent of the material’s introduction to serve a definite and useful purpose determines the applicability of the de minimis rule. See Best Key Textiles Co. v. United States, 35 Int’l Trade Rep. (BNA) 2711 (Ct. Int’l Trade 2013), citing Canada Dry Ginger Ale, Inc. v. United States, 43 Cust. Ct. 1, 8-9 (1959). The applicability of the de minimis rule must therefore be determined on the basis of varying circumstances, including the intent of Congress and whether or not the amount of material has changed the nature of the article or its salability. Varsity Watch Co. v. United States, 34 C.C.P.A. 155 (1947); see also Ruth F. Sturm, Customs Law and Administration § 32.13 (3rd ed. 2008) (“Where the alcohol in the imported product is merely trace material left over from an extraction process and serves no useful purpose, it is not substantial enough to bring the merchandise within a tariff provision for flavoring extract containing alcohol.” (citing Canada Dry Ginger Ale, Inc., 43 Cust. Ct. 1)).
In this case, the presence of small amounts of residual meat on the frozen veal bones does not increase the economic value of the bones, and there is no evidence that the residual meat has been deliberately left on the bones to change the nature of the product. MTG demonstrates that the purchase price of the veal bones is substantially lower than the cost of veal meat. Moreover, when purchasing the veal bones from suppliers, MTG specifically requests that the vendor remove all excess meat and fat from the bones. The residual meat that remains attached to the veal bones accounts for a very small percentage of the total weight of the imported bones. Considered in total, CBP therefore finds that the residual meat on the frozen veal bones is de minimis for purposes of tariff classification.
Heading 0506, HTSUS, provides for, “Bones and horn-cores, unworked, defatted, simply prepared (but not cut to shape), treated with acid or degelatinized; powder and waste of these products.” The EN to heading 05.06, HS, states, in relevant part, that the heading includes bones “not having undergone processes extending beyond simple sawing for the removal of superfluous parts, cutting (crosswise or lengthwise), sometimes followed by rough planing or bleaching.”
The frozen veal bones consist of the neck vertebrae, aitch, blade, brisket, knuckle tip, and rib bones of “bobby” veal calves that are cut length-wise or width-wise into maximum 15 centimeter lengths. The veal bones are otherwise unprocessed. CBP finds that the cutting operations described by MTG are akin to “simple sawing” and “cutting (crosswise or lengthwise)” set forth in EN 05.06, HS, because they do not result in bones that have been cut to rectangular plates, sheets, or other shapes. Consequently, the veal bones are properly described as “simply prepared” for purposes of tariff classification, and CBP concludes that the merchandise is provided for, eo nomine, by the terms of heading 0506, HTSUS. In accordance with GRI 1, the frozen veal bones are classified in heading 0506, HTSUS, as bones and horn-cores, unworked, defatted, simply prepared (but not cut to shape), treated with acid or degelatinized.
HOLDING:
By application of GRI 1, MTG’s frozen veal bones are classified in heading 0506, HTSUS. Specifically, the frozen veal bones are classifiable in subheading 0506.90.00, HTSUS, which provides for, “Bones and horn-cores, unworked, defatted, simply prepared (but not cut to shape), treated with acid or degelatinized: Other.” The column one, general rate of duty is free. You are instructed to APPROVE the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any re-liquidation 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division