CLA-2 OT:RR:CTF:TCM H011945 ASM
Daoud Esmail
Cyan Foods International (Pty) Ltd.
P.O. Box 25661
Monument Park
Pretoria
South Africa 0105
RE: Request for Reconsideration of NY N004245; Classification of Frozen, Marinated Chicken Portions
Dear Mr. Esmail:
This is in response to an electronic filing dated May 7, 2007, requesting reconsideration of Customs and Border Protection (CBP) New York Ruling Letter (NY) N004245, dated December 27, 2007, on behalf of Cyan Foods International (Pty) Ltd. (Cyan Foods). Your request involves the classification of frozen, marinated chicken portions under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). No samples were submitted to this office for examination. However, we have received photographs, copies of packaging labels, and product information, which provides sufficient information upon which to issue a decision in this ruling.
FACTS:
The products in question are uncooked chicken parts, cut into portions, injected or tumbled with a marinade consisting of chicken broth, salt, phosphates and carrageenan, then individually frozen and subjected to an ice glaze (consisting of chicken broth, salt, phosphates, and coloring). It is our understanding that the “chicken broth” is composed of chicken-flavored powder that becomes diluted with the water. A product data sheet indicates that the marinade contains about 95 percent water, 0.4 percent carrageenan, 0.4 percent chicken-flavored powder, 2.5 percent salt and 1.9 percent phosphate. The composition of the ice glaze is nearly identical except that it contains coloring instead of carrageenan. These percentages represent only the composition of the marinade and glaze ingredients. However, based on product information submitted to this office, we note that 140 pounds of the processed chicken would contain a combined total of 1.172 pounds of salt and chicken powder, which is equivalent to only 0.837 percent by weight. It is further noted that the chicken portions are packed separately or in mixed portions into bags and the bags are then packed in master cartons.
In NY N004245, CBP noted that the marinade and glaze would have only a very minor effect on the product’s taste, merely enhancing somewhat the natural flavor of the chicken. Thus, it was held that the product had retained the character and use as uncooked frozen chicken and was classifiable in subheading 0207.14.0040, HTSUSA, which provides for “Meat and edible offal, of the poultry of heading 0105, fresh, chilled or frozen: Of chickens: Cuts and offal, frozen, Other”. You disagree with this classification and assert that the subject product has been processed beyond the scope of Chapter 2, HTSUSA, and that it is classifiable in subheading 1602.32.00, HTSUSA, which provides for “Other prepared or preserved meat, meat offal or blood: Of poultry of heading 0105: Of chickens.”
ISSUE:
What is the proper classification for the merchandise?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
There are two competing provisions at issue, subheading 1602.32.00, HTSUSA, and subheading 0207.14.0040, HTSUSA, which provide in relevant part as follows:
0207 Meat and edible offal, of the poultry of heading 0105, fresh, chilled
or frozen:
Of chickens:
0207.14.00 Cuts and offal, frozen
0207.14.0040 Other
* * *
Other prepared or preserved meat, meat offal or blood:
Of poultry of heading 0105:
1602.32.00 Of chickens
* * *
The EN to 1602 states, 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 heading covers:
* * *
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 homogenized (see the General Explanatory Note to this Chapter, Item (4)).
* * *
With respect to item (3), it is important to note that two of the ingredients of the marinade, carrageenan and phosphate, are not generally regarded as “seasonings” used to alter the flavor of food. Carageenan is a seaweed extract used as a thickener, texturizer, or stabilizer, while the phosphate is used as a decontaminant, to minimize cook loss and to help maintain natural flavor. This leaves the salt and chicken-flavored powder, which is de minimis in that it represents less than 1 percent by weight of the product. As such, we do not find that the chicken is “seasoned” for tariff purposes. Furthermore, it is important to also consider Note 1 to Chapter 16, which specifically excludes meats prepared by the processes specified in Chapter 2.
Since this meat product has been prepared by “freezing”, which is a process specified in Chapter 2, HTSUSA, we must now consider classification in heading 0207, HTSUSA. The General EN to Chapter 2 provides the scope of Heading 02.07, as follows:
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:
Fresh (including meat and meat offal, packed with salt as a temporary preservative during transport).
Chilled, that is, reduced in temperature generally to around 00 C, without being frozen.
Frozen, that is, cooled to below the products freezing point until it is frozen throughout.
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 tenderizing treatment with photolytic 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 or heading 02.09) remain classified in this Chapter.
Products classifiable in Chapter 2, HTSUSA, may undergo some processing, e.g., frozen, salted, brined, dried, smoked, sprinkled with sugar or with an aqueous solution of sugar, tenderized, cut, chopped or minced. Therefore, the application of a marinade/glaze would not preclude the subject product from classification in Chapter 2, HTSUSA.
In view of the foregoing, we find that the subject frozen marinated chicken is classifiable as poultry, fresh, chilled or frozen of heading 0207, HTSUSA, rather than as other prepared or preserved meat of heading 1602, HTSUSA. Thus, it is our determination that NY N004245, dated December 27, 2006, correctly classified the product in subheading 0207.14.0040, HTSUSA.
HOLDING:
The subject merchandise, identified as frozen, marinated chicken portions, is correctly classified in subheading 0207.14.0040, HTSUSA, which provides for, “Meat and edible offal, of the poultry of heading 0105, fresh, chilled or frozen: Of chickens: Cuts and offal, frozen, Other”. The general column one duty rate is 17.6 cents per kilogram.
Please note that the duty rates set forth in this ruling letter are merely provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division