H308080

HQ H308080 June 4, 2020 OT:RR:CTF:FTM: H308080 PJG CATEGORY: Classification TARIFF NO.: 2101.12.5400, 2101.12.5800, 2101.12.9000 Ms. Hazel Ing Flegenheimer International Inc. 227 W. Grand Ave El Segundo, CA 90245 RE: Revocation of NY N303841 (classification of instant coffee mixes from Malaysia) Dear Ms. Ing: On May 2, 2019, U.S. Customs and Border Protection (“CBP”) issued New York Ruling Letter (“NY”) N303841 to you, filed on behalf of your client, Seasons Service Inc. DBA The Swallow. The ruling pertained to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of three instant coffee mixes: LUWAK “Coffee Global Original,” LUWAK “Coffee Global Non-Sweet,” and LUWAK “Coffee Global Mixed Nuts.” In NY N303841, CBP classified LUWAK “Coffee Global Original” and LUWAK “Coffee Global Non-Sweet” in subheading 2101.11.2126, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for “Extracts, essences and concentrates, of coffee, tea or maté and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof: Extracts, essences and concentrates of coffee, and preparations with a basis of these extracts, essences or concentrates or with a basis of coffee: Extracts, essences and concentrates: Instant Coffee, not flavored: Not decaffeinated: Packaged for retail sale.” CBP classified LUWAK “Coffee Global Mixed Nuts” in subheading 2101.11.2941, HTSUSA, which provides for “Extracts, essences and concentrates, of coffee, tea or maté and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof: Extracts, essences and concentrates of coffee, and preparations with a basis of these extracts, essences or concentrates or with a basis of coffee: Extracts, essences and concentrates: Other: Packaged for retail sale.” We have reviewed NY N303841 and found it to be in error with regard to the tariff classifications of the instant coffee mixes. For the reasons set forth below, we hereby revoke NY N303841. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on April 22, 2020, in Volume 54, Number 15, of the Customs Bulletin. No comments were received in response to this notice. FACTS: In NY N303841, there were three products at issue: LUWAK “Coffee Global Original,” LUWAK “Coffee Global Non-Sweet,” and LUWAK “Coffee Global Mixed Nuts.” The ingredient breakdown for LUWAK “Coffee Global Original” is described as: 47 percent Creamer, 25 percent Sugar, 11 percent Cane Sugar, 9 percent Instant Soluble Coffee Powder, 6 percent Maltodextrin, 1 percent Colostrum, 1 percent Luwak Coffee Powder The ingredient breakdown for LUWAK “Coffee Global Non-Sweet” is described as: 79 percent Creamer, 12 percent Instant Soluble Coffee Powder, 4 percent Maltodextrin, 3 percent Skimmed Milk Powder, 1 percent Colostrum, 1 percent Luwak Coffee Powder The ingredient breakdown for LUWAK “Coffee Global Mixed Nuts” is described as: 47 percent Creamer, 25 percent Sugar, 11 percent Cane Sugar, 7 percent Instant Soluble Coffee Powder, 3 percent Mixed Nuts Powder (Almond Powder, Walnut Powder and Hazelnut Powder), 5 percent Maltodextrin, 1 percent Colostrum, 1 percent Luwak Coffee Powder All these instant coffee mixes are packaged in 18 single serving sachets per box put up for retail sale. ISSUE: What is the proper classification of instant coffee mixes? LAW AND ANALYSIS: Classification under the 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 GRIs may then be applied. There is no issue that heading 2101, HTSUS, which covers “Extracts, essences and concentrates, of coffee, tea or mate and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof,” is the proper heading. The question lies at the HTSUS subheading levels. The HTSUS subheadings under consideration are as follows: 2101 Extracts, essences and concentrates, of coffee, tea or mate and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof: Extracts, essences and concentrates of coffee, and preparations with a basis of these extracts, essences or concentrates or with a basis of coffee: 2101.11 Extracts, essences and concentrates: 2101.11.21 Instant coffee, not flavored 2101.12 Preparations with a basis of extracts, essences or concentrates or with a basis of coffee: Other: Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17: 2101.12.44 Described in additional U.S. note 7 to chapter 17 and entered pursuant to its provisions 2101.12.48 Other (See 9904.17.17-9904.17.48) Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: 2101.12.54 Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions 2101.12.58 Other (See 9904.17.49-9904.17.65) Other 2101.12.90 Other The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System at the international level and are generally indicative of the proper interpretation of these headings. See Treas. Dec. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN for heading 2101, HTSUS, provides, in pertinent part: (1) Coffee extracts, essences and concentrates. These may be made from real coffee (whether or not caffeine has been removed) or from a mixture of real coffee and coffee substitutes in any proportion. They may be in liquid or powder form, usually highly concentrated. This group includes products known as instant coffee. This is coffee which has been brewed and dehydrated or brewed and then frozen and dried by vacuum. (2) Tea or maté extracts, essences and concentrates. These products correspond, mutatis mutandis, to those referred to in paragraph (1). * * * (4) Preparations with a basis of coffee, tea or maté. These preparations include, inter alia : (a) “coffee pastes” consisting of mixtures of ground, roasted coffee with vegetable fats and sometimes other ingredients, and tea preparations consisting of a mixture of tea, milk powder and sugar. First, we determine the proper six-digit classification, whether instant coffee mixes are properly classified as “instant coffee” under subheading 2101.11, HTSUS, or “preparations with a basis of coffee,” under subheading 2101.12, HTSUS. In Headquarters Ruling Letter (“HQ”) 952589, dated June 10, 1993, CBP found that “the term ‘preparation’ [of heading 2101, HTSUS] covers coffee or tea products which include sugar, milk, etc. regardless of changes in the finished products’ physical characteristics.” Thus, in HQ 952589, CBP has classified coffee flavoring mixes as “preparations” under heading 2101, HTSUS. This ruling is consistent with the EN for heading 2101, HTSUS, which describes preparations as coffee pastes as “ground, roasted coffee with vegetable fats and 

Classification under the 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 GRIs may then be applied. There is no issue that heading 2101, HTSUS, which covers “Extracts, essences and concentrates, of coffee, tea or mate and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof,” is the proper heading. The question lies at the HTSUS subheading levels.The HTSUS subheadings under consideration are as follows:2101 Extracts, essences and concentrates, of coffee, tea or mate and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof: Extracts, essences and concentrates of coffee, and preparations with a basis of these extracts, essences or concentrates or with a basis of coffee:2101.11 Extracts, essences and concentrates:2101.11.21 Instant coffee, not flavored 2101.12 Preparations with a basis of extracts, essences or concentrates or with a basis of coffee: Other: Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17:2101.12.44 Described in additional U.S. note 7 to chapter 17 and entered pursuant to its provisions2101.12.48 Other (See 9904.17.17-9904.17.48)Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17:2101.12.54 Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions2101.12.58 Other (See 9904.17.49-9904.17.65)Other2