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HQ 968047




June 9, 2006

CLA–2 RR:CTF:TCM 968047 KSH

TARIFF NO.: 1602.50.0900

Mr. Charles Riley
John A. Steer Company
28 South 2nd Street
Philadelphia, PA 19106

RE: Revocation of New York Ruling Letter (NY) I84087, dated July 25, 2002; Classification of beef jerky from Brazil.

Dear Mr. Riley:

This letter is to inform you that the Bureau of Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) I84087, issued on July 25, 2002, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of beef jerky from Brazil. The beef jerky was classified in subheading 1602.50.2040, HTSUS, which provides for “Other prepared or preserved meat, meat offal or blood: Of bovine animals: Other: Not containing cereals or vegetables: Other: In airtight containers: Other, Other.” Since the issuance of NY I84087, CBP has reviewed the classification of this item and has determined that the cited ruling is in error.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY I84087 was published in the Customs Bulletin, Volume 40, Number 12, on March 15, 2006. CBP received nine comments opposing the revocation of NY I84087 during the notice and comment period that closed on April 14, 2006. Only eight of the nine commenters provided substantive comments. These comments will be addressed in the revised LAW AND ANALYSIS section, infra.

FACTS:

The beef jerky is described as:

“Teriyaki Beef Jerky,” item BRZTK100, is sliced, cooked, and seasoned beef that is packaged in bulk for further processing. The ingredients are sliced beef, water, brown sugar, sugar, soy sauce powder, salt, hydrolyzed corn protein, vinegar, monosodium glutamate, ginger, torula yeast, onion powder, spices (ground celery seed and ground ginger), garlic powder, citric acid, spice extractive (oleoresin ginger), and a curing agent (containing sodium nitrite). The meat contains, by weight, 30 percent protein, 24 percent moisture, 5 percent fat, and 2.5 percent salt.

“Teriyaki Beef Jerky,” item BRZTK101, is sliced, cooked, and seasoned beef that is packaged in bulk for further processing. The ingredients are sliced beef, water, brown sugar, sugar, salt, hydrolyzed soy protein, spice (powdered ginger), vinegar, monosodium glutamate, powdered onion, powdered garlic, citric acid, and a curing agent (containing sodium nitrite). The meat contains, by weight, 30 percent protein, 24 percent moisture, 5 percent fat, and 2.5 percent salt.

During the manufacturing process, fat is removed from fresh meat and the meat is sliced. After slicing, the meat is taken to a tumbling area where water and seasoning are added. The meat is tumbled for 20 minutes and placed in a cooler for a period of one day. Then meat is placed in an oven for cooking and smoking. The meat is atomized with natural wood smoke flavor for 15 minutes. The product is cooked for six hours until an internal temperature of 155o Fahrenheit is reached. It is then cooked at smokehouse temperature (180o Fahrenheit) until a moisture range of 22-24 percent is achieved. The meat is cooled at room temperature and packed in plastic totes. The totes are taken to the packaging room where the product is placed in plastic bags that are sealed and an oxygen scavenger is added. The products are imported in corrugated cartons (in bulk) for further processing.

ISSUE:

Whether the beef jerky is classified as other prepared or preserved meat of subheading 1602.50.2040, HTSUS or as cured or pickled beef of subheading 1602.50.0900, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Heading 0210, HTSUS, provides for “Meat and edible offal, salted, in brine, dried or smoked; edible flours and meals of meat or meat offal. The General ENs to Chapter 2, HTSUS, provide in pertinent part:

Meat and meat offal not falling in any heading of this Chapter are classified in Chapter 16, e.g.:

(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 pates. (heading 16.02).

In this instance, the merchandise at issue has been otherwise prepared or preserved by the addition of seasonings, thus the jerky cannot be classified in heading 0210, HTSUS as dried or smoked beef.

Heading 1602, HTSUS, provides for other prepared or preserved meat, meat offal or blood. The Explanatory Notes to heading 1602, HTSUS, provide, in part, the methods by which meat of this heading may be prepared or preserved. It reads in relevant part:

The heading covers :

(3) 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)).

The instant beef jerky is prepared or preserved by the addition of salt, sugar or other sweeteners, a mixture of additional preservative ingredients including sodium nitrite, seasonings and smoking. As such, the beef jerky is other prepared or preserved as provided for in heading 1602, HTSUS.

Heading 1602, HTSUS, is divided into six subheadings. Subheading 1602.50, HTSUS, provides for prepared or preserved beef of bovine animals. Subheading 1602.50,HTSUS, is further subdivided to provide for cured or pickled beef or other prepared beef.

When the issue is based on competing subheadings, for purposes of determining the subheading, GRI 6 is applied. GRI 6 provides that "for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and mutatis mutandis, to [rules 1 through 5], on the understanding that only subheadings at the same level are comparable."

Seven of the nine comments received argue that classification should be based on the dehydration process rather than whether the product has been cured or pickled as it is the dehydration process which is argued to be essential to the manufacture of beef jerky. The eighth commenter argues that the ingredients are more properly identified as a marinade rather than a cure. That commenter further argues that with respect to this product, placing the jerky in a cooler for one day is insufficient to cure, the amount of salt is insignificant and is only used to equalize the product and the sodium nitrite is only present to fix the color. Finally that commenter argues that the definition of curing was established in Mercantil Distributora, S.A. v. United States 33 Cust. Ct. 158 (1954), aff’d 43 C.C.P.A. 111 (1956) and must be considered herein.

As stated above, the instant beef jerky cannot be classified as smoked or dried beef in heading 0210 as it has been otherwise prepared or preserved by the addition of seasoning. Thus, the question becomes whether the beef jerky is classified in subheading 1602.50.0900 as cured or pickled beef or in subheading 1602.50.2040 as other prepared or preserved meat in airtight containers.

We note that the term “cured or pickled” is not defined in the HTSUS nor is it described in the ENs. Where not defined in a legal note under the HTSUS or clearly described in the ENs, tariff terms are construed in accordance with their common and commercial meanings which are presumed to be the same. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

In Mercantil Distributora, S.A. v. United States 33 Cust. Ct. 158 (1954), aff’d 43 C.C.P.A. 111 (1956), the U.S. Customs Court, examined several definitions of curing as meaning to preserve for purposes of the TSUS provision for “Meats, prepared or preserved, not specially provided for (except beef packed in air-tight containers and pickled or cured beef or veal), 3¢ per lb., but not less than 10% ad val.”

Although Mercantil is a TSUS case, it has HTSUS implications. The Omnibus Trade Act of 1988 provides that earlier tariff decisions must not be disregarded in applying the HTSUS. Rather, on a “case by case basis, prior decisions should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS.“ H. Rep. No. 100-576, 100th Cong., 2d Sess. 548,550 (1988).

The Mercantil court determined that the common meaning of the word "cured" as used in referring to meat was "preserved," and concluded that since the involved meat would not keep for more than a few days without refrigeration, it was not "preserved" and therefore not "cured."

In support of that conclusion the Mercantil court made reference to many dictionary definitions and judicial interpretations. Some of the dictionary definitions are as follows:

Cure * * * To prepare for keeping, by salting, drying, etc.; to preserve (meat, fish, fruit, tobacco, etc.). A New English Dictionary on Historical Principles, 1893.

Cure * * * To salt and dry (meat) for the purpose of saving or preserving it. A Dictionary of American English on Historical Principles, 1940.

Cure * * * To put through a preserving process, as by salting, smoking, etc., or by drying; as, to cure hams; the grass must be thoroughly cured. * * *

To be preserved, as by drying. Funk & Wagnalls New Standard Dictionary of the English Language, 1942.

Cure * * * preserve (meat) by drying and salting. Thorndike-Barnhart Comprehensive Desk Dictionary, 1951

Cure * * * to prepare (meat, fish, etc.) for preservation by salting, drying, etc. New Century Dictionary of the English Language, 1952

Cure * * * to prepare for keeping; to preserve, as by drying, salting, etc.: as, to cure beef or fish; to cure hay. Webster's New International Dictionary, 1932

Cure* * * To prepare for keeping or use; to preserve, as by drying, salting, etc.; * * * Webster's New International Dictionary 2nd Ed. 1934.

The Mercantil court also took note of the Encyclopedia of Chemical Technology (1952), which stated the following under the heading "Meat and Meat Products" [Volume 8, page 829]:

CURING OF MEATS

The original purpose of curing meat was to preserve the meat without refrigeration. The primary factor in preservation was the addition of salt. Throughout the succeeding centuries, various modifications and additions were made in the curing ingredients. Today the curing agents, in addition to salt, may include sodium nitrate and/or sodium nitrite (to render the color heat-stable), sugar, and spices. The products may be smoked and/or partially dried. With modern refrigeration there is no longer a need for salt in high concentration as a preserving agent; today salt is used in smaller amounts and chiefly for its flavor effects. The modern milder- cured products are made possible by rigid sanitation and thorough refrigeration during processing. They require refrigeration for preservation.

Curing is generally confined to pork and beef. Cured meats may consist of such cuts as hams, picnics, bellies (bacon), thigh muscles (dried beef), brisket (beef), or ground and comminuted meat. Many cured meats, like ham, bacon, and sausages, are smoked following curing. Cured comminuted meats may be processed into sausage or canned.

The above definitions clearly evidence that curing encompasses smoking, drying, salting and/or the addition of sodium nitrate and/or sodium nitrite (to render the color heat-stable), sugar, and spices. Furthermore, unlike the salted beef at issue in Mercantil Distributora, S.A. v. United States, supra, the beef jerky at issue will keep for a long time without refrigeration. We have not been provided with any evidence that the addition of sodium nitrite, salt and sugar is purely for taste and aesthetic appeal. The instant beef jerky has been cured through the addition of salt, sugar, sodium nitrite, refrigeration, smoking and drying. The aforementioned processes cumulatively reduce the moisture content of the beef jerky to a point at which it becomes shelf-stable. Accordingly, the beef jerky at issue is classified in subheading 1602.50.0900, HTSUS, as cured or pickled meat.

HOLDING:

The beef jerky is classified in heading 1602, HTSUS. It is specifically provided for in subheading 1602.50.0900, HTSUS, which provides for ‘‘Other prepared or preserved meat, meat offal or blood: Of bovine animals: Other: Not containing cereals or vegetables: Cured or pickled.’’ The general column one rate of duty is 4.5% 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 the internet at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY I84087, dated July 25, 2002, is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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