CLA-2 RR:CR:GC 976084ptl
Stephen L. Gibson, Esq.
Sonnenschein Nath & Rosenthal, LLP
1301 K Street, N.W.
Suite 600, East Tower
Washington, D.C. 20005
RE: Classification of Pork Rind Pellets; Reconsideration of NY J82786.
Dear Mr. Gibson:
This is in response to your submission, dated February 26, 2004, on behalf of the Evans Food Products Company, to the Director, National Commodity Specialist Division, in New York, in which you requested the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a product you identified as pork rind pellets. As a significant part of your submission, you discuss the classification of a different pork rind product that is contained in New York Ruling (NY) J82786, dated April 20, 2003. You compare and contrast your client's product and that of NY J82786 as you argue for the classification of your client's product in subheading 2301.10.0000, HTSUS, as "flours, meals and pellets, of meat or meat offal, of fish or crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves (cracklings), flour, meals and pellets, of meat or meal offal; greaves (cracklings)." Customs and Border Protection (CBP) was in the process of reviewing the classification of the product by NY J82786 when your submission was received . Because of the similarity of your client's product and the product classified by NY J82786, and the fact that you were proposing classification in a different subheading, it was determined that a decision could not be issued on your request until the decision of NY J82786 had been settled to prevent the issuance of conflicting rulings. CBP has completed that reconsideration and issued HQ 966571 on July 20, 2004.
After that decision had been issued, you requested and received permission to make a supplemental submission containing additional details which you contend support your position regarding the classification of the imported product. You also submitted samples of the product in the condition it which it is imported. In preparing this decision, we have considered all materials you have submitted as well as points raised during a conference held on January 27, 2005.
FACTS:
According to information you supplied, the subject merchandise is produced in Denmark from the skin of various parts of a hog. The producer purchases the fresh skin from slaughterhouses and cuts it into 1" squares. The cut skin is then put into steam jacketed vessels (cookers) containing oil (rendered pork fat), a small amount of salt, and trace amounts of dextrose and liquid smoke. The oil is heated, reaching a maximum temperature of 240 degrees Fahrenheit, and the skins are cooked for approximately 90 – 120 minutes.
Prior to the cooking, the fresh skin is approximately 50 percent moisture, 20 percent fat, and 30 percent protein. The cooking melts away 70 percent of the fat from the skins, leaving a product which has 72 percent protein, 14 percent fat, 9 percent water, and 5 percent salt.
After cooking the skins, the oil is drained from the cooker and surface oil is drained from the skins. The skins are then removed from the cooker and the remaining surface oil is drained as they move on a conveyor to a packaging station where the skins are bulk packed in cardboard boxes with poly liners, each holding approximately 2,000 pounds. The skins are imported in this condition.
After importation, the skins are processed into finished snack foods referred to as pork rinds or chicharrones. The skins are placed into industrial deep fat fryers and heated to 400º Fahrenheit which heats the fat remaining in the skin and causes it to "pop" or "puff." The resulting product is then packed for retail sale with or without the addition of seasonings.
ISSUE:
What is the classification of a product referred to as "pork rind pellets"?
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.
In your submissions, you raise several points which we will summarize and discuss. Your argument for classification in chapter 23 begins by referring to EN (2) to subheading 2301 that 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 turn to the Merriam-Webster 0n-line Dictionary definition of "render" and a monograph description of the dry rendering process to support your position that the pork skins have undergone a rendering process by the time they are ready for shipment and exportation to the United States. You also argue that the term "greaves" have specific meaning in the EN, and that the term means the solid product that is the output or result of rendering by cooking. You state that although the reference book Bailey's Industrial Oil and Fat Products states that greaves result from the pressing of the residue from the cooking process (in order to remove residual fat), the term "greaves" covers the product even if it has not been pressed.
You further state that "[I]n the Spanish version of heading (sic) 2301.10, 'greaves(cracklings)' is translated as 'chicharrones.' A search of the Internet shows that there are many recipes for cooking chicharrones (as well as for cooking cracklings), which is consistent with the Explanatory Notes statement that greaves may be 'suitable for human consumption'. "
As an additional point, you state that although Chapter 23 is entitled "Residue and Waste from the Food Industries; Prepared Animal Food," there is no requirement in subheading 2301.10.00 that greaves constitute residue or waste. You continue that the use of products of this chapter as animal food, industrial goods, or human consumption cannot mean that the products have no value or usefulness.
Another argument you make is that "greaves" is an eo nomine classification, and thus, is more specific than "prepared offal." Therefore, you assert that, should the goods be described by both subheadings, classification in the one including greaves is required.
In your argument, you also distinguish your client's products from those of NY J82786 which "were produced in a two-step process." You note that the product classified in NY J82786 "as imported, was already put up in pre-measured amounts in specialized packaging and seasoned, ready to be cooked (microwaved), with minimal effort by the consumer. Thus, the operations in Columbia (sic) constituted substantial processing that converted the chips into a prepared foodstuff." You point out that your products have not been subjected to any processing after the cooking they have undergone and require further industrial processing and packaging in the United States before they are suitable to be sold for consumption. You state that, "[a]s imported, they [the pork pellets] are still greaves, provided for in HTS subheading 2301.10.0000, and should be so classified."
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 gives us more guidance with respect to the type of goods included within 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."
A review of the other ENs to the chapter indicate that the goods covered in the chapter are essentially residues or wastes from the processing of animal or vegetable products. Because these wastes still retain some of the nutritive qualities of the original materials, the waste products generally have a use in animal foodstuffs, and. non-textured defatted vegetable flours of headings 2302 and 2303, may be used for human food as well . Other applications for wastes of this chapter also exist. Bagasse of heading 2303, a residue of sugar manufacturing has some use in the paper making industry. Maize steeping liquors, of the same heading, are used in the production of cultures for the manufacture of antibiotics. Certain oil-cake residues of heading 2306, e.g., bitter almond and mustard cakes, are used as starting materials for the extraction of essential oils. However, it can be said that the general characteristic of a product of chapter 23 is that it is a residue or waste. Products of this chapter have reached an end-stage. Their potential has been exhausted and they are not capable of being turned into something useful by themselves. It is our opinion that the subject pork skins, in the condition in which they are imported, have not been processed to the extent that they have become a residue or waste. Your client's pork skins have been cooked in a process similar to "dry rendering" in order to remove 70 percent of the fat. The resulting product is fully cooked and is ready for further processing by salting, flavoring and packaging for use as a snack food.
The commercial dry rendering process is covered in Bailey's Industrial Oil and Fat Products, "Industrial and Consumer Nonedible Products from Oils and Fats," Fifth Ed., John Wiley & Sons, Inc. (1996). That process is described in detail, 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."
As noted, in the rendering process, the fatty tissue which remains after cooking contains additional fat. Normally this material is processed, as described in Bailey's to remove as much fat as possible from the product.
"After the cooking process is completed, the cooked material is drained and pressed to remove the fat using either a hydraulic or screw press … . The solid protein (cracklings) is then normally ground with a hammer mill. After the hammer mill, the meal passes over a shaker screen to remove any coarse material and to produce a uniform protein meal by-product. The fat discharged from the press normally contains fine solid particles, which are removed by centrifugation or filtration."
In Bailey's Glossary of Terms, the term "crackling" is defined as that ground particulate matter that emerges from the press:
"Cracklings: Solid material discharged from screw press after removal of liquid fat; general term for dry rendered tankage."
We note that it is a long established principle of Customs practice that the characterization of imported merchandise by governmental agencies for other than tariff purposes does not determine tariff classification. See United States v. Mercantil Distribuidora et al., 45 C.C.P.A. (Customs) 20, C.A.D. 667 (1957); Marine Products Co. v. United States, 42 Cust. Ct. 154 (C.D. 2080) (1959). However, when an agency has particular expertise in a particular area, CBP will look to that agency for guidance in determining distinctions in commercial areas.
The agency that governs production standards and labeling of pork and pork rind products is the Food Safety and Inspection Service (FSIS) of the United Stated Department of Agriculture (USDA). The FSIS publishes the Food Standards and Labeling Policy Book, in which product characteristics and distinctions are set out.
The FSIS definition of "pork skins" includes a description of "detached skin" which is the raw material for the subject product. According to the FSIS,
"Pork Skins:"
"Not permitted in salami, bologna, frankfurters, Vienna sausage, and braunschweiger. When packed in vinegar pickle, they are not permitted to be artificially colored. When pork skin, either attached to fat and/or muscle tissue or detached from fat and/or muscle tissue, is used to manufacture meat or poultry products, it must be specifically listed in the formulation on the label approval application form and in the ingredient statement on the label, e.g., "Pork Skins," "Unskinned Pork Jowls," Unskinned Pork Shoulder Trimming," "Unskinned Pork Fat," and "Unskinned Pork Bellies."
"Detached skin" refers to the portion of skin from which most of the underlying fat is removed, e.g., skin from bacon intended for slicing, skin from closely skinned hams, shoulder cuts, fat backs, etc. If removal of skin portions is incidental to removal of a considerable proportion of underlying fat from ham, shoulder, back, etc., preparatory to rendering such fat, portions of skin so removed should not be regarded as detached skin and may be included with fats and rendered into lard. Ham facings are not regarded as detached skin."
In this definition, the FSIS is distinguishing between pork skin from which the fat has been removed and pork skins that have been removed along with the underlying fat preparatory to rendering.
The FSIS publication also contains the following definition:
"Pork Cracklings:"
"Product eligible to be labeled as "Pork Cracklings" must be prepared from the fatty tissues from which the skin has been detached. If the skin is not removed from the product before rendering, a descriptive name, e.g., "Pork Cracklings, Fried-Out Pork Fat with Attached Skin," must be used.
These FSIS definitions reflect the distinctions that exist between two different commercial products. Pork cracklings, which are the waste products resulting from the rendering of pork (or other animal) fatty tissues, which may have some adhering animal skin, and pork skins (or rinds) which are the cooked skins of a pig from which most of the underlying fat has been removed prior to cooking.
The pork skins we are classifying have been cooked but they are not "membranous tissues remaining after pig or other animal fats have been rendered." They are cooked pork skins. Additionally, they have been processed with added salt, dextrose and liquid smoke. In this condition, they do not have the character of a residue or waste of chapter 23.
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).
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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).
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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."
Your client's pork skins have been cooked and preserved by means of a 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 pork rind pellets 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. Even though they have not yet been salted and flavored as were the products classified in NY J82786, they are ready for human consumption. Accordingly, classification in subheading 1602.49.10, HTSUS, which provides for prepared meat offal, of swine, is correct.
HOLDING:
The subject pork rind pellets 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.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division