H308893

HQ H308893 July 15, 2020 OT:RR:CTF:FTM H308893 PJG CATEGORY: Classification TARIFF NO.: 2101.12.54, 2101.12.58 Center Director Agriculture & Prepared Products Center Port of Los Angeles – Long Beach Seaport U.S. Customs and Border Protection 301 East Ocean Boulevard, Suite 1400 Long Beach, CA 90802 ATTN: Mr. David K. Shaw, Supervisory Import Specialist RE: Internal Advice; Tariff Classification of Instant Coffee Mixes with Sugar Dear Center Director: This is in response to the internal advice request, initiated by the law firm of Junker & Nakachi, on behalf of their client, LA Lucky Import & Export, Inc. (“LA Lucky”), dated March 12, 2019, and transmitted to our office on February 12, 2020, concerning the tariff classification of a 2-in-1 instant coffee mix with sugar, called “G7 2-in-1 Instant Coffee gu manh,” under the Harmonized Tariff Schedule of the United States (“HTSUS”). This decision also addresses the tariff classification of the “Nescafe: CAFÉ Viet,” for which the port provided us with two reports from the U.S. Customs and Border Protection Laboratories and Scientific Services Directorate (“CBP Laboratory”). Pursuant to the request indicated by the law firm of Junker & Nakachi, we extended two opportunities for a telephone conference, however, the requester failed to avail themselves of either opportunity. Our decision is set forth below. FACTS: The merchandise for which an internal advice was requested by LA Lucky is called “G7 2-in-1 Instant Coffee gu manh.” LA Lucky explains that the Vietnamese phrase “gu manh” means “extra strength” and is intended to describe the flavor of the coffee. LA Lucky listed the ingredient breakdown as the following (by dry weight): 9.5 percent sugar; 13 percent soluble coffee; and 77.5 percent maltodextrin. The subject merchandise is sold as a powder mix housed in a sachet, and there are numerous sachets in each retail box. The consumer adds water to the 2-in-1 instant coffee mix to produce a coffee beverage. In the course of a routine merchandise inspection at the warehouse, CBP obtained a sample of the 2-in-1 instant coffee mix and sent it to the CBP Laboratory in Long Beach, California. CBP also obtained two samples of a product named “Nescafe: CAFÉ Viet.” The “Nescafe: CAFÉ Viet” is unrelated to the internal advice request submitted by LA Lucky, however, we are addressing it in this decision for the port. The CBP Laboratory results of the three samples are as follows: Sample 1: five individually sealed, red and black colored packets printed with the words “Nescafe: CAFÉ Viet” Lab Report LA20171300, dated July 3, 2018 54.4% total sugar (sucrose) by dry weight 5.4% caffeine 3.1% moisture  Sample 2: five individually sealed packets with black flakes Lab Report LA20171301, dated September 27, 2018 43.8% total sugar (glucose, sucrose and maltose) by dry weight (37.3% sucrose) 9.3% caffeine 4.7% moisture  Sample 3: six individually sealed, brown and black colored packets printed with the words “Nescafe: CAFÉ Viet” Lab Report LA20171302, dated July 5, 2018 47.4% total sugar (glucose and sucrose) by dry weight (46.3 % of that is sucrose) 12.3% caffeine 1.2% moisture   ISSUE: What is the proper tariff classification of the two subject instant coffee mixes, specifically, the “G7 2-in-1 Instant Coffee gu manh” and the “Nescafe: CAFÉ Viet,” both of which contain sugar? LAW AND ANALYSIS: Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is determined 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. The 2017 HTSUS provisions 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 mate; 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: 2101.12.32 Described in general note 15 of the tariff schedule and entered pursuant to its provisions: Other: Blended syrups described in additional U.S. note 4 to chapter 17: 2101.12.34 Described in additional U.S. note 9 to chapter 17 and entered pursuant to its provisions 2101.12.38 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 * * * 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 The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 id. The EN to 21.01 states, in pertinent part: This heading covers: (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. * * * (3) Preparations with a basis of the coffee, tea or maté extracts, essences or concentrates of paragraphs (1) and (2) above. These are preparations based on extracts, essences or concentrates of coffee, tea or maté (and not on coffee, tea or maté themselves), and include extracts, etc., with added starches or other carbohydrates. (4) Preparations with a basis of coffee, tea or maté. These preparations include, inter alia: “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. * * * There is no dispute that the “G7 2-in-1 Instant Coffee gu manh” and “Nescafe: CAFÉ Viet” are classifiable under heading 2101, HTSUS, as preparations with a basis of extracts, essences and concentrates of coffee. The internal advice requester, however, incorrectly claims that “G7 2-in-1 Instant Coffee gu manh” is a preparation because it is a “ground coffee paste.” The “G7 2-in-1 Instant Coffee gu manh” is not a “coffee paste” because such products must contain vegetable fats, which the subject product does not contain. See New York Ruling Letter (“NY”) 807887 (March 22, 1995) and NY B89186 (Sept. 24, 1997); see also EN 21.01(4) (stating that ‘coffee pastes’ consist[] of mixtures of ground, roasted coffee with vegetable fats and sometimes other ingredients”). The “G7 2-in-1 Instant Coffee gu manh” and “Nescafe: CAFÉ Viet” are preparations because they are instant coffee that contains sugar. See Headquarters Ruling Letter (“HQ”) 952589 (June 10, 1993). In HQ 952589, 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

Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is determined 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. The 2017 HTSUS provisions 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 mate; 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: 2101.12.32 Described in general note 15 of the tariff schedule and entered pursuant to its provisions: Other: Blended syrups described in additional U.S. note 4 to chapter 17: 2101.12.34 Described in additional U.S. note 9 to chapter 17 and entered pursuant to its provisions2101.12.38 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 * * *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 The Harmonized Commodity Description and Coding System Explanatory Notes(“ENs”) con