CLA-2 RR:CR:GC 966571ptl
Mr. Juan Carlos Rico
Milestone Pulses Corporation
Suite 509
1027 Davie Street
Vancouver, BC V6E 4L2
Canada
RE: Microwavable Pork Rinds; Reconsideration of NY J82786
Dear Mr. Rico:
This is in response to your request, dated May 6, 2003, that Customs and Border Protection (CBP) reconsider the classification under the Harmonized Tariff Schedule of the United States (HTSUS) provided to the Milestone Pulses Corporation for three microwavable pork crackling products by New York Ruling Letter (NY) J82786, dated April 10, 2003. In that ruling, the three varieties of Planet Pop® brand microwavable pork crackling products were classified in heading 1602.49.10, HTSUS, which provides for other prepared or preserved meat, meat offal or blood, of swine, other, including mixtures, offal. In your request for reconsideration, you contend that the products should be classified in subheading 2301.10.00, HTSUS, which provides for flours, meals and pellets, of meat or meat offal, … greaves.
We have reviewed the materials you provided with the initial submission for a ruling request, the additional information you supplied in response to requests from our New York office, as well as the materials provided when you sought reconsideration of the New York ruling, and have determined that the initial ruling correctly classified the merchandise. The discussion below explains this decision.
FACTS:
The three products under consideration are:
Planet Pop® brand "Cracklings – Traditional Flavor" containing 99.3 percent pork pellets (American origin) and 0.7 percent salt (Colombian origin).
Planet Pop® brand "Cracklings – Barbecue Flavor" containing 94.6 percent pork pellets (American origin), 5.0 percent barbecue flavoring (Switzerland origin), and 0.4 percent salt (Colombian origin).
Planet Pop® brand "Cracklings – Hot Chili Flavor" containing 94.0 percent pork pellets (American origin), 5.0 percent chili flavoring (American origin), 1.0 percent barbecue flavoring (Switzerland origin).
NOTE: The "American origin" pork pellets contain approximately 6.5 percent salt, net weight.
According to information you have provided, the products are manufactured in the following manner. The pork skins, which are the raw material for the product, are purchased from a USDA approved plant in the United States. In the U.S., the raw pork skins are processed by being cooked in pork fat for about 3 ½ hours at a temperature of at least 250 degrees until the product is dehydrated (partially) and smoked. Then, most of the oil left in the skin is rendered out and the skin is cut into pieces and mixed with salt, forming a hard cooked skin chip, or crackling. The product is then shipped to Columbia, along with specially designed microwave bags. In Columbia, the pork products are mixed with additional salt and/or flavorings in a paddle-type, stainless steel blender for 2 – 3 minutes, measured into 50 gram portions, packed and sealed into the microwave bags. The bags pass through a flow pack machine where they are organized into a 24-pack tray and wrapped. Four trays are then placed into a shipping carton. The salt and flavorings which are added to the products in Columbia are either products of the U.S., Columbia or Switzerland.
ISSUE:
Are microwavable pork cracklings classified under the subheading for other prepared or preserved meat, or under the subheading for greaves (crackings)?
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 HTSUS subheadings under consideration are as follows:
1602 Other prepared or preserved meat, meat offal or blood:
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Of swine:
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1602.49 Other, including mixtures:
1602.49.1000 Offal
2301 Flours, meals and pellets, of meat or meat offal, of fish or of crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves (cracklings):
2301.10.0000 Flours, meals and pellets, of meat or meat offal; greaves (cracklings).
Because you are contending that your product is classified in Chapter 23, we will begin by determining whether your product falls within the scope of that chapter.
As part of your request for reconsideration of NY J82786, you argue that the product is classified in Chapter 23, HTSUS, because of your reading of the ENs. Although the General Chapter Note states "[t]he main use of these products is as animal feeding stuffs," it also states "some of them are fit for human consumption." You say that "in this way, the chapter includes some products for human consumption." You also note that while many of the products of the chapter are identified as being unfit for human consumption, EN (2) to subheading 2301 defines greaves as being "the membraneous tissues remaining after pig or other animal fats have been rendered. They are used mainly in the preparation of animal foods (e.g., dog biscuits), but they remain in the heading even if suitable for human consumption." You then state that your product is a residue of the rendering of the meat and fat from the pork skin, which you term a "crackling." You further say that although the product is the result of rendering the pork skin, it is not a "cooked" product. You claim that "[c]racklings for microwave are not cooked; it's not a ready-to-eat product." You say that the product cannot be eaten without being cooked in the microwave.
In classifying a product, we look to the type of good we are presented and determine which heading best describes characteristics of the good. Although Chapter titles are provided for ease of reference only, and not for legal purposes of classification (GRI 1), they do offer insight into the type of product classified in the chapter. The title of Chapter 23 is "Residues and Waste from the Food Industries; Prepared Animal Fodder." The full text of the General Explanatory Notes to Chapter 23 give us more guidance of the coverage of the chapter and reads as follows:
"This Chapter covers the various residues and wastes derived from vegetable materials used by food-preparing industries, and also certain products of animal origin. The main use of most of these products is as animal feeding stuffs, either alone or mixed with other materials, although some of them are fit for human consumption. Certain products (e.g., wine lees, argol, oil-cake) also have industrial uses." (Emphasis added)
We have already noted that EN (2) to subheading 2301 cited above, which addresses greaves, uses the words "even if suitable for human consumption" when describing the use to which greaves are mainly used. (Emphasis added)
The additional headings of Chapter 23 all cover either residues, waste or animal food preparations. None of the goods covered in these headings are of the type of goods which have been prepared for human consumption like the Planet Pop® Cracklings under consideration. While some of the articles mentioned in the EN language might be "fit" or "suitable" for human consumption, those articles have not been "prepared" for human consumption. There is a considerable difference between something "fit for" and something "prepared for."
Although you are claiming that your product is not "cooked," materials you have submitted indicate that it has been processed "in pork fat for about 3 ½ hours at [a] temperature of at least 250 degrees." This process is similar to the dry rendering process described in Bailey's Industrial Oil and Fat Products, Fifth Ed., John Wiley & Sons, Inc. (1966). That process is described in detail on page 11, as follows:
"The dry rendering process is the newer and more efficient method of cooking. All material is cooked in its own grease by dry heat in open steam-jacketed drums until the moisture has evaporated. Efficient cookers usually range in temperature from 115 to 120º C and take approximately 1.5 – 4 h. … After the cooking process is complete, the material goes across a screen that allows the free fat to run off. The tankage is then conveyed to a press where the residual fat is removed, resulting in a product that contains 6 – 10% fat."
In the normal rendering process, the resulting product is then ground into a meal by means of a hammer mill or some other grinding mechanism. However, the instant product is removed from the process at this point and salted before being shipped to Columbia for further processing and packaging.
The removal and salting of the pork skins before all fat has been removed and the subsequent addition of further flavorings and spices creates a product that is not a residue, but a processed or prepared food product for human consumption. As such, the subject pork rinds are not "tissues remaining after pig … fats have been rendered" and are not products of Chapter 23.
There is an additional inconsistency in your contention which we should address. You contend that your product should be classified as a "crackling." However, you also claim that it is not cooked. A "crackling" is, by definition, a product that is a residue of the rendering process. The rendering process is a cooking process. It is impossible to have an "uncooked" crackling. As stated above, the rinds have been cooked, but the rendering process has not been completed.
While the pork rinds are not articles of Chapter 23, they are described by the term "edible meat offal." The General ENs to Chapter 2 discuss such products at length and read, in relevant part, 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.
Meat and meat offal unsuitable or unfit for human consumption are excluded (heading 05.11). Flours, meals and pellets unfit for human consumption, obtained from meat or meat offal, are also excluded (heading 23.01).
Offal generally can be grouped in four categories :
(1) That which is mainly used for human consumption (e.g., heads and cuts thereof (including ears), feet, tails, hearts, tongues, thick skirts, thin skirts, cauls, throats, thymus glands).
(2) That which is used solely in the preparation of pharmaceutical products (e.g., gall bags, adrenal glands, placenta).
(3) That which can be used for human consumption or for the preparation of pharmaceutical products (e.g., livers, kidneys, lungs, brains, pancreas, spleens, spinal cords, ovaries, uteri, testes, udders, thyroid glands, pituitary glands).
(4) That, such as skins, which can be used for human consumption or for other purposes (e.g., manufacture of leather).
* * *
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).
* * *
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 Planet Pop® brand "Cracklings" have been cooked and preserved by means of a rendering process which is not provided for in Chapter 2. Accordingly, by direction of subparagraph (b) of the General Note to Chapter 2 EN, we look to heading 1602.
The General Note to the ENs for Chapter 16 provides, in relevant part, as follows:
"This Chapter covers prepared foodstuffs obtained by processing meat, meat offal (e.g., feet, skins, hearts, tongues, livers, guts, stomachs), blood, fish (including skins thereof), crustaceans, molluscs or other aquatic invertebrates. The Chapter covers such products which have been prepared or preserved by processes not provided for in Chapter 2 or 3 or heading 05.04, … ."
The EN to heading 1602 provides, in relevant part, as follows:
"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 Planet Pop® brand "Cracklings" are prepared foodstuffs falling within the scope of products described by the ENs to Chapter 16. They have been prepared by processes not provided for in Chapters 2 or 3 or heading 0504. Although they have been cooked extensively to render most of the fat from the skins, the rendering process has not been completed and the skins are not a residue of Chapter 23. They have been salted and flavored for human consumption. Accordingly, classification in subheading 1602.49.10, HTSUS, which provides for prepared meat offal, of swine, is correct.
HOLDING:
Planet Pop® brand "Cracklings -- Traditional Flavor", Planet Pop® brand "Cracklings – Barbecue Flavor", and Planet Pop® brand "Cracklings – Hot Chili Flavor" are classified on subheading 1602.49.1000, HTSUSA, which provides for: Other prepared or preserved meat, meat offal or blood: Of swine: Other, including mixtures: Offal. The 2004 duty rate is 3.2 percent 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 World Wide Web at www.usitc.gov.
NY J82786, dated April 10, 2003, is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division