What's the HS Code for "Frozen Beef Patties"?

NY 897030 April 29, 1994 CLA-2-02:S:N:N7:231 897030 CATEGORY: Classification TARIFF NO.: 0202.30.4000 Mr. Harvey Dietrich Lucerne Foods Ltd. 56th Avenue S.E. Calgary, Alberta T2C 2C3 Canada RE: The tariff classification of beef patties from Canada. Dear Mr. Dietrich: In your letter dated April 12, 1994 you requested a tariff classification ruling. The product in question will be produced from beef cattle slaughtered in various countries,--namely, in Australia, New Zealand or Canada. From countries other than Canada, this meat would be imported in the form of frozen boneless beef. When processed in Canada, the beef would be coarse ground, mixed with the 5% water, 3.00% bread crumbs, 0.67% modified starch, flavoring: 0.4991% mustard powder, 0.0068% oleoresin pepper, 0.0009% oleoresin celery, 0.4991% salt, 0.1545% onion powder, 0.1497% hydrolyzed soy protein and 0.0159% oleoresin paprika, fine ground and formed into patties. After processing, the meat will be frozen. The applicable subheading for these frozen beef patties with 5% water, 3.00% bread crumbs, 0.67% modified starch, flavoring: 0.4991% mustard powder, 0.0068% oleoresin pepper, 0.0009% oleoresin celery, 0.4991% salt, 0.1545% onion powder, 0.1497% hydrolyzed soy protein and 0.0159% oleoresin paprika will be 0202.30.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for Meat of bovine animals, frozen:...Boneless:... Processed:...Other. The general rate of duty will be 10 percent ad valorem. Finally, meat which has been processed as described above remains a product of that country in which the animal was slaughtered. Accordingly, beef imported into Canada from other countries, and there processed as described above, may be subject to an absolute quota under the provisions of Public Law 88-482, as amended. Frozen beef from Australia and New Zealand, which is classified in heading 02.02, HTS, may only be entered into the United States--effective April 8, 1993 to the end of the calendar year--,if imported as a direct shipment destined to the United States on an original through bill of lading from Australia or New Zealand, pursuant to Section 204 of the Agriculture Act of 1956, as amended, (7 USC 1854) and Executive Order 11539, as amended. This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177). A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction. Sincerely, Jean F. Maguire Area Director New York Seaport 

HQ 966219 July, 22, 2003 CLA-2 RR:CR:GC 966219ptl CATEGORY: Classification TARIFF NO.: 0202.30.30, 0202.30.80 Ms. Pamela Knight Centennial Foods 4043 Brandon Street S.E. Calgary, Alberta T2G 4A7 Canada RE: Reconsideration of NY I 89109 and NY I 88990; Seasoned Beef Patties. Dear Ms. Knight: The Customs National Commodity Specialist Division issued New York Ruling Letters (NY) I89109 and NY I88990, both dated December 19, 2002, to Centennial Foods, in which several meat products were classified under the Harmonized Tariff Schedule of the United States (HTSUS). In these rulings, three products identified as frozen beef patties, product codes 53579, 53586 and 53584, were classified as meat of bovine animals, frozen, boneless in subheading 0202.30.30, HTSUS, if the beef component was entirely of Canadian origin, or subheading 0202.30.80, HTSUS, if the product contained a combination of Canadian and Australian beef. On December 30, 2002, you requested that Customs review the classification provided for these products in light of additional ingredients contained in the products. You assert that the addition of the seasonings and water "de-characterize the beef." You also state that US Department of Agriculture (USDA) policies "would not permit the products to be classified as hamburger based on the fact that the beef has been de-characterized by the added ingredients." We have reviewed the facts surrounding the classification provided the products in question by NY I89109 and NY I88990 and determined that the classifications are correct for the reasons set forth below. FACTS: You have provided the following ingredient information about the products under review: In NY I89109, the product "Gourmet Beef Patties", product code 53584, consists of frozen patties, each weighing 3 ounces. They are packed 14 pieces per retail box, 8 retail boxes per 21 pound master case. The "Gourmet Beef Patties" are said to contain, by weight, beef (83.64%), water (13.76%) and seasoning (2.60%). The seasoning is of Canadian origin. In NY I88990, the product "Gourmet Beef Patties", product code 53586, consists of frozen patties, each weighing 5.33 ounces. They are packed 8 pieces per retail box, 8 retail boxes per master case, 21.3 pounds per master case. Product code 53586 has the same composition as product code 53584. The beef component of both versions of the "Gourmet Beef Patties" will be either entirely Canadian origin (Formula #1) or a combination of Australian boneless beef and Canadian beef trim (Formula #2). The seasoning in both versions of "Gourmet Beef Patties" consists of AIM deheated mustard, fine salt, white pepper, and autolyzed yeast extract. Also classified in NY I88990 was "Sirloin Beef Patties", product code 53579, containing frozen beef patties, each weighing 5.33 ounces, packed 8 pieces per retail box, 8 retail boxes per master case, 21.3 pounds per master case. "Sirloin Beef Patties" are said to contain, by weight, beef (83.64%), water (13.76%), and seasoning (2.60%). The seasoning consists of AIM deheated mustard, fine salt, white pepper, autolyzed yeast extract, and skim milk powder. The beef cuts used to make these patties will be either entirely New Zealand origin (Formula #1) or a combination of New Zealand and Australian origin beef (Formula #2). ISSUE: Whether frozen beef patties containing seasoning and added water are classified in heading 0202, HTSUS, as meat of bovine animals, frozen, or in heading 1602, HTSUS, as other prepared or preserved meat. LAW AND ANALYSIS: Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most 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 GRIs may then be applied in order. 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 2003 HTSUS subheadings under consideration are as follows: 0202 Meat of bovine animals, frozen: 0202.30 Boneless: * * * Described in additional U.S. note 3 to this chapter and entered pursuant to its provisions: Processed: 0202.30.1000 High-quality beef cuts 0202.30.3000 Other 1/ 0202.30.5000 Other 1/ 0202.30.8000 Other 2/ 3/ 1/ See subheading 9903.04.05. 2/ See subheading 9903.04.05. 3/ See subheadings 9904.02.01-9904.02.37. 1602 Other prepared or preserved meat, meat offal or blood: * * * 1602.50 Of bovine animals: * * * Other: Not containing cereals or vegetables: Other: * * * 1602.50.6000 Other There is no disagreement that all the products under consideration are clearly described by the terms of subheading 0202.30, HTSUS. The products are frozen boneless beef patties. We must determine whether the ingredients which are added to the beef during processing are sufficient to satisfy the conditions listed in the ENs to Chapter 2 which provide guidance on the factors which result in products being excluded from Chapter 2 and classified in Chapter 16. The ENs to Chapter 2 provide, in relevant part, as follows: Distinction between meat and meat offal of this Chapter and those of Chapter 16. This Chapter covers meat and meat offal in the following states only, whether or not they have been previously scalded or similarly treated but not cooked: (1) Fresh (including meat and meat offal, packed with salt as a temporary preservative during transport). (2) Chilled, that is, reduced in temperature generally to around 0 °C, without being frozen. (3) Frozen, that is, cooled to below the product’s freezing point until it is frozen throughout. (4) Salted, in brine, dried or smoked. Meat and meat offal, slightly sprinkled with sugar or with an aqueous solution of sugar are also classified in this Chapter. Meat and meat offal in the states referred to in Items (1) to (4) above remain classified in this Chapter whether or not they have undergone tenderising treatment with proteolytic enzymes (e.g., papain) or have been cut, chopped or minced (ground). In addition, mixtures or combinations of products of different headings of the Chapter (e.g., poultry meat of heading 02.07 covered with pig fat of heading 02.09) remain classified in this Chapter. Meat and meat offal not falling in any heading of this Chapter are classified in Chapter 16, e.g. : (a) Sausages and similar products, whether or not cooked (heading 16.01). (b) 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. It should be noted that meat and meat offal of this Chapter remain classified here even if put up in airtight packings (e.g., dried meat in cans). In most cases, however, products put up in these packings have been prepared or preserved otherwise than as provided for in the headings of this Chapter and, accordingly, are classified in Chapter 16. The ENs to Chapter 16 provide, in relevant part, that "For the distinctions to be drawn between the products of Chapters 2 and 3 on the one hand and of Chapter 16 on the other, see the General Explanatory Notes to Chapters 2 and 3." While the ENs indicate that seasoned meat products are classified in chapter 16, as a prepared or preserved meat, they offer no guidelines of what quantities of seasoning must be added to a product for it to be considered "seasoned." Neither the HTSUS, nor the ENs define the term "seasoned". In the absence of a definition of a term in the tariff or the ENs, the term's correct meaning is its common and commercial meaning. The meaning of a term may be ascertained from lexicographic authorities. (See Carl Zeiss v. United States, 195 F3d 1375 (Fed. Cir. 1999)) The Random House Dictionary of the English Language, Unabridged (1973), page. 349, defines "seasoning" as "[n] salt or an herb, spice, or the like, for heightening or improving the flavor of food." Thus, a food which has been "seasoned" has been treated with a sufficient amount of a substance so that there has been a significant change in the flavor of the food. The "Sirloin Beef Patties" and "Gourmet Beef Patties" under consideration are said to contain 2.6% "seasoning." However, that "seasoning" is actually a seasoning mixture consisting of the following ingredients: For Sirloin Beef Patties: deheated mustard, fine salt, white pepper, autolyzed yeast extract and skim milk powder. For Gourmet Beef Patties: deheated mustard, fine salt, white pepper, and autolyzed yeast extract. The largest component of the seasoning mix is deheated mustard. This is a mustard product that has been subjected to a controlled process wherein the mycrosinase enzyme system (which imparts the traditional sharp flavor of mustard) is inactivated. The resulting product is a bland flavored product that retains the desirable functional characteristics of mustard without the tangy flavor. Among the sought for characteristics of deheated mustard is high protein, many tocopherals and antioxidants (which improve and retain product color), and the ability to increase water and fat binding capacity in meats. The deheated mustard component of the seasoning mix performs as a functional ingredient of the final product, rather than a seasoning spice. The yeast extracts and skim milk powder components of the seasoning mixtures are also included for their functional properties as flavor enhancers and not as seasonings. Indeed, as a part of your submission, in a fax to Mr. Thomas Brady, National Import Specialist, dated January 28, 2003, you stated that "the skim milk powder in the Seasoning Unit XXXX is used to impart a specific taste and mouth feel to the product." This leaves salt and white pepper, in an amount of less than 1% by weight, as the actual seasoning component of the products. While the criteria for identifying sufficient seasonings to remove a meat product from chapter 2 is not clearly defined, the ENs state that salt alone is not sufficient (the EN specifies "seasoned" as meaning "with pepper and salt"). It has been Customs practice to require the addition of a minimum of 2% salt and 1% pepper (or combinations of salt and other spices which impart a flavor to the meat in amounts of at least 3% by weight) to meat before it is considered seasoned (for tariff purposes). See, e.g. NY 890096, dated October 8, 1993 (2% salt; 1% pepper); NY 892065, dated November 5, 1993 (1% salt; 2% allspice). While, not dispositive for US classification purposes, it is sometimes instructive to inquire into classification criteria used by different Customs Administrations. The research we have conducted indicates that internationally there is not a clear, definite line between goods of chapter 2 and those or chapter 16. However, several of the administrations base classification distinctions between chapter 2 and chapter 16 on either visual observation of spices (salt and pepper) on the product, or the discernibly different taste the treated meat has from untreated meat. You have suggested that Customs should classify the products in chapter 16 because they have undergone intensive manufacturing processes and contain the added ingredients, water, salt and seasoning, which prevent the products from being classified as hamburger under USDA standards. However, we note that it is a long established principle of Customs practice that the characterization of imported merchandise by governmental agencies for other than tariff purposes does not determine tariff classification. See United States v. Mercantil Distribuidora et al., 45 C.C.P.A. (Customs) 20, C.A.D. 667 (1957); Marine Products Co. v. United States, 42 Cust. Ct. 154 (C.D. 2080) (1959). Accordingly, the fact that a product is not eligible for labeling as hamburger under USDA regulations, does not mean that it cannot be classified in chapter 2 for tariff purposes. Based on the above discussion, because neither the "Ground Beef Patty" nor the "Sirloin Beef Patty" contain sufficient seasoning to exclude them from classification in chapter 2, HTSUS, we have determined that the classifications provided by NY I88990 and NY I89109 are correct. HOLDING: "Sirloin Beef Patties," product code 53579, Formulas #1 and #2 and "Gourmet Beef Patties," product code 53586, Formula #2 are classified in subheading 0202.30.80, HTSUS. "Gourmet Beef Patties" Formula #1 are classified in subheading 2020.30.30, HTSUS. "Gourmet Beef Patties," product code 53584, Formula #1 are classified in subheading 0202.30.30, HTSUS "Gourmet Beef Patties," product code 53584, Formula #2 are classified in subheading 0202.30.80, HTSUS. Subheading 0202.30.30, HTSUS, provides for meat of bovine animals, frozen, boneless, described in additional U.S. note 3 to chapter 2 and entered pursuant to its provisions, processed, other. Subheading 0202.30.80, HTSUS, provides for meat of bovine animals, frozen, boneless, described in additional U.S. note 3 to chapter 2 and entered pursuant to its provisions, processed, other, other. In addition, products classified in subheading 0202.30.80, HTSUS, will be subject to additional duties based on their value, as described in subheadings 9904.02.01 – 9904.02.37, HTSUS. NY I88990, and NY I89109, dated December 19, 2002, are affirmed. Sincerely, Myles B. Harmon, Director Commercial Rulings Division