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HQ 952448

June 10, 1993

CLA-2 CO:R:C:F 952448 LPF


TARIFF NO.: 2101.10.4060; 9904.60.60

Mr. William J. Maloney
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE: Powdered coffee beverage mixes; Subheading 2101.10.4060, HTSUSA; Extracts, essences and concentrates, of coffee, and preparations with a basis of these products or of coffee; Import Restrictions under 9904.60.60; HRL 951238

Dear Mr. Maloney:

This is in response to your letter of August 20, 1992, on behalf of Kraft General Foods, Inc. and, its subsidiary, General Foods Corporation. Your inquiry requests the proper classification of powdered coffee beverage mixes under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).


The powdered coffee beverage mixes are available in three flavors and require only the addition of water to make a finished beverage. The coffee and cinnamon flavors contain instant (concentrated) coffee, sucrose, dried skim milk, lactose, vegetable oil, and trisodium citrate, along with other flavors and miscellaneous ingredients. In addition to the ingredients listed above, the mocha flavor also contains cocoa. The coffee mixes will be packaged in individual serving packets, eight ounce tins or in bulk form. On April 14, 1993, you met with Customs to discuss the matter.


Whether the powdered coffee beverage mixes are classifiable in subheading 2101.10.20 as extracts, essences and concentrates of coffee or in subheading 2101.10.40 as other (than extracts, essences and concentrates of coffee).


The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. Most imported 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 good cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. According to GRI 6, the GRI's, section notes and chapter notes pertain to subheadings in the same fashion. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

It is agreed that the coffee mixes are classifiable within heading 2101 and subheading 2101.10 as extracts, essences and concentrates, of coffee and preparations with a basis of these products or with a basis of coffee. However, at the eight digit subheading level, 2101.10.20 provides for extracts, essences and concentrates, while 2101.10.40 provides for other products. The language in heading 2101 indicates that the latter subheading includes preparations with a basis of coffee extracts, essences or concentrates or with a basis of coffee.

It is your position that the coffee mixes are classifiable as "extracts" rather than as "preparations." You cite the language within GRI 2(b) stating that, "[a]ny reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances," as evidence that the subject coffee, combined with sugars, dried skim milk and other additives, is classifiable as an "extract." However, the EN's to GRI 2(b) state that, "[m]ixtures being preparations described as such in...a heading text are to be classified under the provisions of Rule 1." Although GRI 2(b) indicates that a product combined with other substances remains classified in the heading providing for that product, it first must be determined whether the coffee, mixed or combined with these other substances, is actually a "preparation," provided for in another subheading. GRI 2(b) does not necessarily indicate that products, such as the coffee mixes, are classifiable as "extracts."

In Headquarters Ruling Letter (HRL) 951238, issued July 7, 1992, an instant coffee mix consisting of sugar (50%), milk powder (42%), coffee (7.5%), and cocoa powder (0.5%) was classified in 2101.10.40 as a coffee preparation. The decision reached in that ruling is indicative of the classification of the instant product.

As was the case in HRL 951238, we note that the EN's to 2101 indicate that these coffee mixes are classifiable as "preparations." The EN's describe "extracts, essences and concentrates" as products made from real coffee or from a mixture of real coffee and coffee substitutes, in liquid or powder form. However, the EN's indicate that "preparations" are based on extracts, essences or concentrates of coffee or tea and may be extracts with added starches or other carbohydrates. The EN's also provide for tea preparations consisting of tea, milk powder and sugar. The subject coffee mixes fit these descriptions and similarly are classified as preparations. It is our position that the EN's refer to the eight digit level subheadings and provide important guidance as to the interpretation of those provisions.

You draw a distinction between products in which the coffee component of the finished product retains its identity and physical characteristics and those products in which the preparation of the coffee component and other ingredients results in a combination of those ingredients at the molecular level yielding a finished product whose physical characteristics have been altered. Although the coffee and sugar components may have a separate and separable existence in these finished products, the fact that the ingredients have not combined at the molecular level does not preclude the products' classification as "preparations." We maintain that the term "preparation" covers coffee or tea products which include sugar, milk, etc. regardless of changes in the finished products' physical characteristics.

Contrary to your position, Customs does not maintain that the tariff's reference to "soluble or instant coffee (containing no admixture of sugar, cereal or other additive)" indicates that the coffee mixes, combined with sugar, milk and other additives are classifiable as "other extracts" in 2101.10.2040. Item 160.20, Tariff Schedules of the United States (TSUS) provided for "soluble or instant coffee (containing no admixture of sugar, cereal, or other additive)." The Summaries of Trade and Tariff Information (1969) stated that item 160.21, the TSUS provision providing for "other extracts," primarily included liquid concentrates used for flavoring and beverage purposes, while item 182.95, TSUS, providing for "edible preparations" included, inter alia, small amounts of soluble or instant coffee mixed with sweeteners and whitening agents.

The admixture exclusion at the ten digit subheading level is not part of the legal text of the HTSUSA and should not be interpreted as to restrict or broaden the scope of the legal text at the eight digit subheading level. At the ten digit level, a distinction appears to be made between soluble or instant coffee extracts and liquid extracts rather than between extracts without an admixture of sugar, milk, etc. and those containing such an admixture. The latter distinction appears to be made at the eight digit level (vis-a-vis subheadings 2101.10.20 and 2101.10.40). This interpretation does not "render the statistical language meaningless and superfluous," as averred by counsel. This evidence, indicating classification of coffee mixed with sweeteners and whitening agents as "preparations" under the TSUS, is instructive of the proper classification for the coffee mixes under the HTSUSA.


The powdered coffee beverage mixes are classifiable in subheading 2101.10.4060 as, "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;...Extracts, essences and concentrates, of coffee, and preparations with a basis of these extracts, essences or concentrates or with a basis of coffee: Other, Provided for in subheading 9904.60.60." The general column one rate of duty is 10 percent ad valorem. At present, subheading 9904.60.60 provides for a quota quantity limitation of 76,203 metric tons.


John Durant, Director
Commercial Rulings Division

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