CLA-2 OT:RR:CTF:TCM H252123CkG
TARIFF NO: 1602.32.00
Margaret M. Gatti
Morgan, Lewis & Bockius, LLP
1111 Pennsylvania Ave, NW
Washington, DC 20004
Re: Request for binding ruling on the tariff classification of cooked chicken powders
Dear Ms. Gatti,
This is in response to your request of February 10, 2014, on behalf of your client concerning the classification of cooked chicken powder.
FACTS:
The articles in question are two chicken products, A and B, marketed as “cooked chicken powder”. Both are described as a powdered chicken product derived from mechanically deboned chicken, which is free of bone, internal organs and blood vessels. The chicken is steam-cooked at a minimum temperature of 165°F. Antioxidants are added prior to cooking. The cooked chicken is then homogenized, a process which involves reducing the chicken to a slurry by subjecting it to high pressure. The slurry is filtered and spray dried via atomization into a drying chamber, in which the slurry is passed through a hot air stream. The spray drying process removes any excess water from the chicken to make a homogenous fine powder. The spray dried chicken is powder sifted, subjected to a rare earth magnet and packed. Product A is a tan to brown powder, with a flavor and aroma of cooked chicken. Its ingredients are, by weight, 99.99% cooked chicken, .005% tert-Butylhydroquinone (TBHQ), and .005% citric acids. The ingredients of Product B are, by weight, 99.99% cooked chicken and 1% rosemary extract. Both versions contain a maximum 5% moisture, maximum of 55% fat, and a minimum of 40% protein. The chief application of the instant products in the U.S. is stated to be as a seasoning or ingredient in dry gravy mixes, bouillon, dry soup mixes, and savory flavor systems.
You argue that the instant powders cannot be classified as a flour or meal of meat in heading 0210, HTSUS, because they do not meet the common definitions of “meal”, and thus that they must be classified in heading 1602, HTSUS, as other prepared or preserved meat.
ISSUE:
Whether the instant “cooked chicken powder” products are classified as a flour or meal of meat in heading 0210, HTSUS, an “other” preserved meat of heading 1602, HTSUS, or a meat extract of heading 1603, HTSUS.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided
such headings or notes do not otherwise require, according to the remaining GRI's." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.
The HTSUS provisions at issue are as follows:
0210: Meat and edible meat offal, salted, in brine, dried or smoked; edible flours and meals of
meat or meat offal.
1602: Other prepared or preserved meat, meat offal or blood
.
16.03: Extracts and juices of meat, fish or crustaceans, molluscs or other aquatic invertebrates
* * * *
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General Explanatory Note to Chapter 2 reads 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.
The offal referred to in paragraph (3) is classified as follows :
In heading 05.10 when provisionally preserved for the preparation of
pharmaceutical products (e.g., in glycerol, acetone, alcohol, formaldehyde, sodium borate).
(b) In heading 30.01 when dried.
(c) In Chapter 2 when suitable for human consumption, but in heading 05.11 if unfit for
human consumption.
Meat and meat offal not falling in any heading of this Chapter are classified in Chapter 16, e.g. :
Sausages and similar products, whether or not cooked (heading 16.01).
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), as well as liver pastes and patés (heading 16.02).
This Chapter also includes meat and meat offal suitable for human consumption, whether or not cooked, in the form of flour or meal.
EN 0210 provides, in pertinent part, as follows::
Edible flours and meals of meat or meat offal also fall in this heading; flours and meals of meat or meat offal unfit for human consumption (e.g., for feeding animals) are excluded (heading 23.01).
The General EN to Chapter 16 provides, in pertinent part, as follows:
…
(4) Finely homogenised and based solely on products of this Chapter (i.e., prepared
or preserved meat, meat offal, blood, fish or crustaceans, molluscs or other aquatic invertebrates). These homogenised preparations may contain a small quantity of visible pieces of meat, fish, etc., as well as a small quantity of ingredients added for seasoning, preservation or other purposes. However, homogenisation, by itself, does not qualify a product for classification as a preparation in Chapter 16.
The EN to heading 1602 provides:
This heading covers all prepared or preserved meat, meat offal or blood of the kind falling in this Chapter, except sausages and similar products (heading 16.01), meat extracts and meat juices (heading 16.03).
The heading covers :
Meat or meat offal which has been boiled (other than by scalding or similar treatment see the General Explanatory Note to Chapter 2), steamed, grilled, fried, roasted or otherwise cooked.
Pâtés, meat pastes, galantines and rillettes (potted mince), provided that they do not meet the requirements for classification in heading 16.01 as sausages or similar products.
Meat and meat offal prepared or preserved by other processes not provided for in
Chapter 2 or heading 05.04, including those merely covered with batter or bread crumbs, truffled, seasoned (e.g., with both pepper and salt) or finely homogenised (see the General Explanatory Note to this Chapter, Item (4)).
Food preparations (including so called “prepared meals”) containing more than 20 % by weight of meat, meat offal or blood (see the General Explanatory Note to this Chapter).
EN 16.03 provides:
The heading includes :
Meat extracts. These are concentrates generally obtained by boiling or steaming meat under pressure and concentrating the resultant liquid after removal of the fat by filtration or centrifuging. These extracts may be solid or liquid according to the degree of concentration.
* * * *
The term “meal” is not defined in the text or ENs of heading 0210, HTSUS. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). A meal in general is defined variously as "an ingredient which has been ground or otherwise reduced in particle size,” or “any ground or powdery substance, as of nuts or seeds, resembling this [a coarse unsifted powder ground from the edible seeds of any grain], or “a product resembling seed meal especially in particle size or texture.” See http://www.merriam-webster.com/dictionary/meal.
Furthermore, heading 2301, HTSUS, provides for flours or meals of meat, unfit for human consumption. EN 23.01 describes these products as follows:
Flours and meals, unfit for human consumption, obtained by processing either the whole animal (including poultry, marine mammals, fish or crustaceans, molluscs or other aquatic invertebrates) or animal products (such as meat or meat offal) other than bones, horns, shells, etc. These products (obtained mainly from slaughter houses, floating factories which process fishery products, canning or packing industries, etc.) are usually steam heated and pressed or treated with a solvent to remove oil and fat. The resultant product is then dried and sterilised by prolonged heating, and finally ground…The flours, meals and pellets of this heading are used mainly in animal feeding, but may also be used for other purposes (e.g., as fertilisers).
Similarly, according to the Association of American Feed Control Officials (AAFCO), poultry meal is “the dry rendered product from a combination of clean flesh and skin with or without accompanying bone, derived from the parts or whole carcasses of poultry or a combination thereof, exclusive of feathers, heads, feet and entrails… Basically the same as ‘poultry’, but in rendered form, so most of the water and fat has been removed to make a concentrated protein/mineral ingredient”. See http://www.aafco.org/Consumers/What-is-in-Pet-Food.
You argue that the instant product cannot be considered chicken meal because the chicken has been reduced in particle size by subjecting it to high pressure, drying and atomizing, as opposed to grinding. We note that a substance does not have to be physically ground into a powder in order to create a meal; pursuant to the above definitions, a substance can be reduced to a powder or powder-like substance via other means and still be considered a meal.
You also contend that the addition of antioxidants or preservatives such as rosemary extract, citric acid and TBHQ to the chicken powders preclude classification in heading 0210, HTSUS. We disagree. While prepared or preserved products of Chapter 16 are excluded from Chapter 2, the antioxidants in the instant preparations are present in an amount we deem de minimis—only 1% rosemary extract for preparation 3106, and only .01% total of TBHQ and citric acid in the 3103 preparation. 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). CBP has concluded in prior rulings that trace amounts of additives up to 2-3% are de minimis and do not affect the classification of a product where such additives are not explicitly prohibited for products of that heading. See 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 classification in heading 0207, HTSUS); HQ 966219, dated July, 22, 2003 (concluding that a seasoning mixture comprising 2.6% by weight of ground beef patties did not preclude classification in heading 0202, HTSUS).
However, we agree that the instant powder is not a meal of heading 0210, HTSUS, because it contains a high proportion of fat, and consequently less protein and other nutrients, than is typical for a meat or poultry meal. Chicken and other meat or poultry meals, as noted above, typically consist of a rendered animal carcass with or without bone, but free of exclusive of feathers, heads, feet and entrails, and with most of the water and fat removed to make a concentrated protein/mineral ingredient. The fat is removed after the rendering process by pressing or treating with a solvent, leaving the meal with a concentration of about 15% fat. In the instant case, although the chicken slurry is filtered after rendering, the chicken powders retain a much higher proportion of fat—up to 55%. Thus, it does not appear that either the filtering or any other steps in the processing are aimed at reducing the fat content. Our research further indicates that products described as “chicken meal” or “poultry meal” or “meat meal” are marketed for use in animal feed, whereas the instant chicken powders are marketed for human consumption, as a seasoning or ingredient in dry gravy mixes, bouillon, or dry soup mixes.
Heading 1602, HTSUS, provides for other prepared or preserved meat or meat
offal, except for sausages of heading 1601 and meat extracts of heading 1603. EN 16.03 describes meat extracts of that heading as “concentrates generally obtained by boiling or steaming meat under pressure and concentrating the resultant liquid after removal of the fat by filtration or centrifuging. These extracts may be solid or liquid according to the degree of concentration.” As the fat in the instant chicken powders is not removed, the instant powders do not meet the description of meat extracts of heading 1603, HTSUS. Therefore they are classified in heading 1602, HTSUS, as other prepared or preserved meat.
HOLDING:
The instant cooked chicken powders, products A and B, are classified in heading 1602, HTSUS, specifically subheading 1602.32.00, HTSUS, which provides for “Other prepared or preserved meat, meat offal or blood: Of poultry of heading 0105: Of chickens.” The 2016 column one, general rate of duty is 6.4% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed
at the time the goods are entered. If the documents have been filed without a copy, this
ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division