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HQ 964059




February 8, 2001

CLA-2 RR:CR:GC 964059 nel

CATEGORY: CLASSIFICATION

TARIFF NO.: 0203.19.40, 0203.29.40

Port Director
U.S. Customs Service
6601 W. 25th Street
Miami, FL 33102

RE: Internal Advice No. 25/98; meat of swine, fresh, chilled, or frozen

Dear Port Director:

This is our decision regarding your memorandum of September 2, 1998 (AUD-4ST:RA:FO:MIA HJ), which forwarded a request for internal advice (IA), pursuant to 19 CFR 177.11(b), initiated by counsel on behalf of ESS-Food USA, Inc. (ESS). The issue concerns the classification of imported swine and bovine meats under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this ruling we considered a supplemental submission dated January 25, 2001, from counsel.

FACTS:

The merchandise in question consists of frozen pork ribs: riblets, loin/back ribs, and spareribs. Counsel for the importer provided both videotape and verbal descriptions of the removal of these ribs from the carcass of a swine. That process appears to be as follows. The halved carcass is cut into three sections: fore-end, middle, and ham/leg. The whole ribs are in the middle section, while riblets remain in the fore-end. The middle section is cut horizontally. The loin/back ribs are hand cut from the upper part, while the spareribs are hand cut from the lower part. Removal of the riblets is not shown or discussed. The ribs are not further separated or cut. The loin/back ribs and the spareribs are then individually wrapped and packaged for transport.

The weights of the individual cuts, provided by counsel, are as follows: riblets, 0.54 lbs.; narrow-cut loin ribs, 1.04 lbs.; wide-cut loin ribs, 1.43 lbs.; narrow-cut spareribs, 2.05 lbs.; and, wide-cut spareribs, 2.315 lbs. Counsel states that the loin/back ribs are packaged in 22, 30, and 44 pound cases, while the spareribs are packaged in 10 pound cases, ready for resale by distributors or retailers. The majority of the importer’s sales are to the foodservice industry, e.g., restaurants, hotels, schools, and hospitals, which may further cut, cook, or otherwise prepare the ribs for the ultimate consumer. A smaller percentage of their sales are to grocery stores, where the ribs may be repackaged or cooked before sale to retail consumers.

The importer is of the opinion that the merchandise is classifiable under subheading 0203.29.40, HTSUS, which provides for: Meat of swine, fresh, chilled, or frozen: Frozen: Other: Other. Representatives of your office believed the merchandise was classifiable as processed swine meat under subheading 0203.29.20, HTSUS, which provides for: Meat of swine, fresh, chilled, or frozen: Frozen: Other: Processed.

ISSUE:

Whether the subject pork riblets, loin/back ribs, and spareribs are “processed” meat within the definition of that term in Additional U.S. Note 1(a) in Chapter 2, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. The majority of imported 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, then the remaining GRIs may be applied.

Meat of swine, fresh, chilled, or frozen, is classifiable under Chapter 2, heading 203, HTSUS. Additional U.S. Note 1(a) to Chapter 2, HTSUS, provides the definition for the issue in question and reads as follows: “The term ‘processed’ covers meats which have been ground or comminuted, diced or cut into sizes for stew meat or similar uses, rolled and skewered, or specially processed into fancy cuts, special shapes, or otherwise made ready for particular uses by the retail consumer.” This definition was derived from the term “prepared or preserved” meat in Headnote 1(b), Subpart B, Schedule 1, Tariff Schedules of the United States (TSUS) the precursor to HTSUS, which read as follows:

(b) the term “prepared or preserved” covers meats even if in a fresh, chilled, or frozen state if such meats have been ground or comminuted, diced or cut into sizes for stew meats or similar uses, rolled and skewered, or specially processed into fancy cuts, special shapes, or otherwise made ready for particular uses by the retail consumer; and also covers meats which have been subjected to processes such as drying, curing, smoking, cooking, seasoning, flavoring, or to any combination of such processes.

This definition for the term “prepared or preserved” as it applied in the classification of meats was an expression of prior classification practice, which evolved through administrative rulings and litigation.

The instant merchandise, which consists of pork riblets, loin/back ribs, and spareribs, have not been “processed,” as defined by Additional U.S. Note 1(a) in Chapter 2, by grinding or comminuted, diced or cut into sizes for stew meat or similar uses, nor have they been rolled and skewered. Therefore, for these cuts to be classified as “processed” meat, they must fall within the final phrase of that definition, that is, they must be “specially processed into fancy cuts, special shapes, or otherwise made ready for particular uses by the retail consumer.”

It is important to note that use of the terms “wholesale” or “retail” cuts does not distinguish between “processed” meat and meat that is not processed for tariff purposes. C.E.I. 398/50 dated November 9, 1950, acknowledges the fact that whether a particular cut may be offered at retail is not determinative as to whether it is “prepared” for tariff purposes:

It is understood that, at least in the case of fresh, chilled, or frozen pork, some of the wholesale cuts, such as the Boston butt and the picnics, may be, without further cutting or slicing, also considered to be retail cuts. In such a case, it is clear that the principle of the Bureau’s ruling would not apply since the raw material would have undergone no change in condition amounting to preparation.”

An administrative ruling, File 452.13, dated December 3, 1953, listed pork cuts such as hams, shoulders, picnics, butts, bellies, loins, and spareribs, imported in a fresh, chilled, or frozen condition, that “in a tariff sense, have not been subjected to processes amounting to a preparation or preservation.” It is not the fact that the pork spareribs were considered wholesale cuts, but the fact that the cutting operations required to produce the spareribs were not sufficient to render them “prepared” cuts for tariff purposes that is determinative of their classification as fresh, chilled, or frozen pork, rather than as prepared meats.

The interpretation of the phrase “specially processed into fancy cuts, special shapes, or otherwise made ready for particular uses by the retail consumer,” was established in administrative rulings under the TSUS and followed in rulings issued under the HTSUS. IA 00005 issued March 11, 1977, determined whether New York strip steaks and T-bone steaks were “prepared or preserved” meats, or “specially processed into fancy cuts, etc.” IA 00005 rationalized its classification determination, by stating “Customs has construed the phrase ‘fancy cuts, special shapes, or otherwise made ready for particular uses by the retail consumer,’ as conjunctive and therefore, that any fancy cut or special shape must be for use by the retail consumer.” Therefore, cuts within the meaning of this phrase must meet a twofold test, that is, they must be specially processed into fancy cuts, special shapes, or otherwise processed, and such cuts, as imported, must be ready for particular uses by the retail consumer.

IA 00005 notes that Customs issued a number of rulings under the TSUS on meat cuts that were classified based upon the interpretation of the phrase “fancy cuts, special shapes, or otherwise made ready for particular uses by the retail consumer.” From a review of those rulings in IA 00005, it is apparent that the types of cuts that fell into this category were relatively few, principally consisting of portion-controlled, individual serving size cuts such as steaks and chops.

IA 00005 cites a Headquarters ruling letter dated November 15, 1971, (MCS 452.1 – 010935) which classified boneless sirloin steaks, select T-bone steaks, regular beef tenderloin steaks weighing from 4 to 16 ounces each, and portion-controlled cuts, as prepared or preserved for tariff purposes. Similarly, that IA cites C.I.E. 918/67 dated October 20, 1976, (TC 452.11) which held that rib-eye steaks weighing 4 ounces each and sirloin and tenderloin beef steaks weighing 8 ounces each, dipped in a solution containing papain and individually wrapped, were retail size portions, classifiable as prepared or preserved beef.

On the other hand, IA 00005 cites a Headquarters ruling dated April 14, 1971, (MCS 452.11 – 011143) which states that a boneless beef roast “obviously capable of being used and probably [would] be used by the retail consumer, is not considered to be a special or particular use by the retail consumer.” Likewise that IA cites a letter dated March 15, 1971, (MCS 452.11 – 010789) stating “the fact that meat may be in what you consider to be ‘consumer cuts’ does not necessarily make it prepared or preserved for tariff purposes.”

Finally, IA 00005 cites a dictionary definition for the word “steak” as “a slice of meat, esp. beef, cut thick for broiling or frying,” and concludes that such products are “consumer cuts of meat which are considered to be for special or particular use by the retail consumer, within the meaning of the term “prepared or preserved” of Headnote 1(b), Subpart B, Part 2, Schedule 1, TSUS.”

ORR Ruling 895-70 (MCS 452.1) dated October 6, 1970, held that flank steaks weighing 1-3 pounds and certain beef roasts in retail sizes (from 1-4 pounds (tenderloin roast), 2-6 pounds (rib eye roast), and 8-10 pounds (bottom round roast)) sold in retail outlets were not “prepared or preserved” beef, based on United States v. J.H. Brown, Brown, Alcantar & Brown, Inc., C.A.D. 686, 46 C.C.P.A. 1 (1958), which stated that the U.S. Customs Court has held that various cuts of boneless beef including knuckles, rolls, strip loins, butts, chucks, clods, briskets, tenderloins, and beef flanks were not prepared or preserved.

Headquarters ruling letter dated November 15, 1971, (MCS 452.1 00 010935) classified as “prepared or preserved” certain meat cuts that follow: boneless sirloin steaks, T-bone steaks and tenderloin steaks, all portioned control cuts weighing from 4-16 ounces each, French-style rib lamb chops, and center cut pork chops, trimmed of excess bone and fat. The following were not considered to be “prepared or preserved:” oven-ready ribs averaging 12-22 pounds each, and boneless strip loins averaging 12-15 pounds each.

More recent rulings, which classified “processed” meat under the HTSUS, as per the definition of that term in Additional U.S. Note 1(a) in Chapter 2, are consistent with previous interpretations of the earlier tariffs. For example, New York Ruling Letter (NY) E89452 dated November 16, 1999, classified 8-ounce beef strip steaks as “processed,” while 5-6 pound beef tenderloins were classified as other than processed beef. NY A89887 dated December 4, 1998, classified beef knuckles as other than processed beef. Similarly, NY 866714 dated September 5, 1991, classified certain cuts of Wagyu beef, specifically 22-pound rib eyes, 15-pound strip loins, and 8-pound tenderloins, as other than processed beef.

The range of products that have been considered “processed” so that they are ready for particular uses by the retail consumer is very narrow. These are essentially, portioned-controlled products: principally beef steaks of various types, individually cut lamb chops, pork chops, and cutlets.

Our decision on the instant pork ribs is consistent with the court decisions and other Customs rulings cited herein and based on Headquarters ruling of December 3, 1953, (452.13), which classified pork spare ribs as pork, fresh, chilled, or frozen, and not as prepared meat. The riblets appear to be merely trimmings from the main rib rack and are not both “specially processed” and “made ready for particular uses by the retail consumer.” Based on the degree of processing required for the production of the ribs and the condition of the end product as whole rib racks, we conclude that the instant loin/back ribs and spare ribs are not, as imported, either “specially processed” or “ready for particular uses by the retail consumer,” as those terms have been described and interpreted by the courts and Customs under the TSUS definitions of “prepared or preserved meats” and under the HTSUS as “processed meat.”

HOLDING:

The imported pork ribs consisting of riblets, loin/back ribs, and spareribs are classifiable under heading 0203, HTSUS, as other meat of swine in subheading 0203.19.4090, HTSUS, if imported fresh or chilled, and in subheading 0203.29.4000, HTSUS, if imported frozen.

In accordance with Section 3(A)(11)(b) of Customs Directive 099-3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, Notice of Action, to the protestant no later than 60 days from the date of this letter. Any reliquidation 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 of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page of the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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