CLA-2 RR:CR:GC 967568ptl
Susan L. Renton, Esq.
Greenberg Traurig LLP
800 Connecticut Avenue, NW
Suite 500
Washington, DC 20006
RE: Sara Lee/DE International Classification of Certain Coffee Products
Dear Ms. Renton:
This is in response to your request, dated March 4, 2005, to the Director, Commercial Rulings Division, U.S. Customs and Border Protection (CBP), on behalf of Sara Lee/DE International BV (SLDE), for a binding classification ruling on certain coffee products under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). In your request, you asked that certain information about the two products which your client considered confidential proprietary business information not be disclosed. CPB has reviewed the request and the information, and, after discussing the matter with you, has agreed that certain information need not be included in this ruling.
FACTS:
The two products under consideration are specially prepared articles designed for use with the importer's appliance. The first article, designated "Choice," consists of a circular packet of filter paper which contains a blend of ground-roasted coffee and natural and artificial flavorings. There are currently three varieties of flavors of "Choice" available. The coffee makes up approximately 95% of the weight of the product. The total weight of the article will be approximately 7 grams.
The second article, designated "Power," is also a circular packet of filter paper, but this packet contains two compartments. One side contains a blend of ground roasted coffee, similar to the "Choice" article. The other compartment contains a coffee creamer in a circular shaped grill. The coffee creamer is said to principally contain a mixture of skimmed milk powder, coconut fat, glucose syrup and stabilizers. The two compartments are separated by filter paper. The total weight of this product will be approximately 13 grams, with the coffee component comprising approximately 45%. The articles are designed so that, when placed in the importer's specially designed appliance, hot water will be forced through the articles producing, in the case of "Choice," a flavored coffee, and, in the case of "Power," a cappuccino beverage. The coffee is not decaffeinated in either article. Both articles will be packaged inside foil bags for importation and sale.
ISSUE:
Whether specialized packets containing coffee and flavoring substances and coffee and a "creamer," referred to as "Choice" and "Power" are considered coffee, whether or not roasted or decaffeinated, for tariff purposes.
LAW AND ANALYSIS:
Merchandise is classifiable under the 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 headings under consideration are as follows:
0901 Coffee, whether or not roasted or decaffeinated; coffee husks and skins; coffee substitutes containing coffee in any proportion:
* * *
Coffee, roasted:
0901.21.00 Not decaffeinated
0901.21.0030 In retail containers weighing 2 kg or less
2106 Food preparations not elsewhere specified or included:
Other:
Other:
Other:
Containing over 10 percent by weight of milk solids:
Other:
* * *
2106.90.8200 Other
4823 Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers:
* * *
4823.20 Filter paper and paperboard:
* * *
4823.20.9000 Other
The articles being classified are referred to as "Choice" and "Power". The "Choice" consists of filter paper and three varieties of flavored coffee. The "Power" consists of filter paper, roasted ground coffee and coffee creamer. Because these articles consist of different materials they are, for tariff purposes, composite goods which are classified by application of GRI 3(b).
GRI 3(b) reads as follows:
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
GRI 3(b), among other things, instructs that composite goods be classified as if they consisted of the component which gives them their essential character. When considering the article identified as "Choice" consisting of flavored ground coffee in a packet of filter paper, it is the coffee component which provides the article its essential character. This article is similar to goods which have been classified by CBP in rulings NY I88630, dated December 6, 2002, (classifying a Brew Coffee Mix Cup), NY D81245, dated August 31 1998, (classifying a flavored coffee), NY D81246, dated September 2, 1998, NY D81247, dated September 10, 1998, classifying flavored coffee), and
NY D81246, dated September 2, 1998, (classifying flavored coffees). In these rulings, CBP has consistently classified flavored ground coffee, including coffee in filter packages, as coffee in heading 0901, HTSUS. While the ENs to heading 0901 do not discuss flavored coffees, CBP believes that added flavorings should not remove coffee from classification therein. In support of this position, CBP notes that the ENs to heading 0902, specifically provide that tea to which flavoring has been added remains classified in that heading. Accordingly, the articles identified as "Choice" which consist of packets of ground, flavored coffee, which is not decaffeinated, are classified in subheading 0901.21.0030, HTSUS, which provides for coffee, roasted: not decaffeinated … in retail containers weighing 2 kg or less.
The article referred to as "Power" is also a composite good consisting of filter paper, roasted ground coffee and coffee creamer. Based upon information you provided regarding the anticipated marketing and distribution of the article as being intended for use solely to produce a coffee beverage, CBP can determine that the essential character of the article is imparted by the roasted coffee component. CBP has previously classified combination packets that contain coffee and a creamer and produce a cappuccino-type beverage in heading 0901, HTSUS, (see NY L80742, dated December 6, 2004, (classifying coffee and cream "T-Discs"). Accordingly, the article "Power" consisting of roasted coffee and a creamer is classified in heading 0901.21.0030, HTSUS, which provides for coffee, roasted: not decaffeinated … in retail containers weighing 2 kg or less.
HOLDING:
By application of GRI 3(b), the articles identified as "Choice" and "Power," being packets of flavored ground roasted coffee and ground roasted coffee and creamer, neither of which has been decaffeinated, are classified in heading 0901. They are specifically provided for in subheading 0901.21.0030, HTSUSA, as coffee, roasted: not decaffeinated … in retail containers weighing 2 kg or less. The 2005 column one, general duty rate is "Free." 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.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division