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HQ 954846




December 23, 1993

CLA-2-CO:R:C:F 954846 K

CATEGORY: CLASSIFICATION

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

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
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
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

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