CLA-2 OT:RR:CTF:TCM H268556 PJG
Dina M. Amato
Assistant Port Director, Trade Operations
C/O Import Specialist Team 484
6601 N.W. 25th Street
Miami, FL 33122
ATTN: George W. Bush, Supervisory Import Specialist
RE: Request for Internal Advice; Tariff classification and country of origin marking of “Kimera Koffee”
Dear Assistant Port Director Amato:
This ruling is in response to a request for internal advice initiated by Customs & Trade Services, Inc., on behalf of its client Kraken Koffee, LLC. At issue is the tariff classification of a product called “Kimera Koffee”, also described as an “enhanced coffee”, under the Harmonized Tariff Schedule of the United States (“HTSUS”) and the country of origin marking of the product. Images of the product packaging were provided.
FACTS:
The merchandise at issue is identified as “Kimera Koffee.” The requester describes the “Kimera Koffee” as ground, roasted coffee that is “not decaffeinated, not certified organic, packaged in retail containers weighing 0.34 kilograms.” The packaging for the merchandise includes the following statements “coffee with cognitive enhancers”, “boosted energy levels”, “optimized focus and concentration” and “enhanced athletic performance.” The requester indicates that the merchandise consists of coffee (94.9%) and Taurine, Alpha GPC 50%, L-Theanine, and DMAE (Deanol). The coffee is grown, roasted, and packaged in the Dominican Republic.
ISSUES:
Whether the “Kimera Koffee” is classifiable in heading 0901, HTSUS, as coffee, or in heading 2101, HTSUS, as a preparation with a basis of coffee.
Whether the “Kimera Koffee” is required to be marked under 19 U.S.C.
§ 1304, as a product of the Dominican Republic.
LAW AND ANALYSIS:
Tariff classification
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) 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.
The 2015 HTSUS provisions under consideration are as follows:
0901 Coffee, whether or not roasted or decaffeinated; coffee husks and skins; coffee substitutes containing coffee in any proportion:
2101 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:
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).
The EN to 09.01 states, in pertinent part:
The heading includes:
…
(3) Roasted coffee (with or without caffeine content) whether or not ground.
…
This heading excludes:
…
(b) Extracts, essences and concentrates of coffee (sometimes known as instant coffee) and preparations with a basis of those extracts, essences or concentrates; roasted coffee substitutes not containing coffee (heading 21.01).
…
The EN to 21.01 states, in pertinent part:
The 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:
(a) “coffee pastes” consisting of mixtures of ground, roasted coffee with vegetable fats and sometimes other ingredients, and
(b) tea preparations consisting of a mixture of tea, milk powder and sugar.
…
Customs & Trade Services, Inc. believes that the merchandise is classified as coffee, in heading 0901, HTSUS. However, it questions whether the food additives/performance enhancers added to the coffee affect its classification in Chapter 9, HTSUS.
The EN 09.01 excludes, among other things, preparations of heading 2101, HTSUS, from that heading. In HQ 952589, dated June 10, 1993, CBP stated that “the term ‘preparation’ covers coffee or tea products which include sugar, milk, etc. regardless of changes in the finished products’ physical characteristics.” CBP has classified coffee flavoring mixes as “preparations” under heading 2101, HTSUS. See NY J89742, dated November 5, 2003, and HQ 952589, dated June 10, 1993. CBP has also classified instant coffee blended with sugar as “preparations” in heading 2101, HTSUS. See NY K87929, dated August 5, 2004. However, the subject merchandise is not a preparation of heading 2101, HTSUS, or otherwise described by that heading.
Roasted coffee is provided for in heading 0901, HTSUS. CBP has classified a blend of ground-roasted coffee and natural and/or artificial flavors in heading 0901, HTSUS. See HQ 967568, dated May 25, 2005. In HQ 967568, we stated that:
While the ENs to heading to 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.
See also NY I88630, dated December 6, 2002 (classifying a Brew Coffee Mix Cup); NY D81246, dated September 2, 1998 and NY D81247, dated September 10, 1998 (classifying flavored coffee); and NY D81245, dated August 31, 1998 (classifying a flavored coffee).
Although the added Taurine, Alpha GPC 50%, L-Theanine, and DMAE (Deanol) are not flavorings, in light of CBP’s consistent rulings on flavored coffee and the ENs, we believe that the additions of these substances to the coffee do not preclude the merchandise from classification in heading 0901, HTSUS. Accordingly, the merchandise is classified in heading 0901, HTSUS. It is specifically provided for in subheading 0901.21.0045, which provides for “Coffee, whether or not roasted or decaffeinated; coffee husks and skins; coffee substitutes containing coffee in any proportion: Coffee, roasted: Not decaffeinated: In retail containers weighing 2 kg or less: Other.”
Country of Origin Marking
The marking statute, Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. § 1304), provides that unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. § 1304 was “that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.” See United States v. Friedlander & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940). Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. Stipulated in 19 CFR 134.1 (b) the term “country of origin” is defined as: the country of manufacture, production, or growth of any article of foreign origin entering the United States.
Applying the marking statute, as implemented by Part 134, Customs Regulations, we find that the country of origin of the imported roasted coffee is the Dominican Republic.
Section 14 of the Miscellaneous Trade and Technical Corrections Act of 1996, Pub. L. 104-295, 110 Stat. 3514 (October 11, 1996) amended the country of origin marking statute (19 U.S.C. § 1304) to exempt imports of certain specified coffee, tea and spices from the marking requirements of 19 U.S.C. § 1304 subsections (a) Marking of articles and (b) Marking of containers. As such, 19 U.S.C. 1304(f) provides:
(f) Marking of certain coffee and tea products. The marking requirements of subsections (a) and (b) shall not apply to articles described in subheadings 0901.21, 0901.22, 0902.10, 0902.20, 0902.30, 0902.40, 2101.10, and 2101.20 of the Harmonized Tariff Schedule of the United States, as in effect on January 1, 1995.
The roasted coffee, which is classified in subheading 0901.21, HTSUS, is among the products included in this statutory marking exemption. Therefore, neither the roasted coffee nor its container is required to be marked with the foreign country of origin.
HOLDING:
Under the authority of GRIs 1 and 6, the “Kimera Koffee” is classified in heading 0901, HTSUS, specifically in subheading 0901.21.0045, HTSUS, which provides for “Coffee, whether or not roasted or decaffeinated; coffee husks and skins; coffee substitutes containing coffee in any proportion: Coffee, roasted: Not decaffeinated: In retail containers weighing 2 kg or less: Other.” The 2015 column one, general rate of duty is Free.
Pursuant to 19 U.S.C. § 1304(f), the “Kimera Koffee” is exempt from the marking requirements of 19 U.S.C. § 1304(a) and (b). Therefore, neither the roasted coffee nor its container is required to be marked with the foreign country of origin.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
You are to mail this decision to the internal advice requester no later than sixty days from the date of the decision. At that time, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
/S/
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch