CLA-2-CO:R:C:G 085364 JGH
Mr. John McNab
501 Pennsylvania Avenue N.W.
Washington D.C. 20001
RE: Classification of ice cream novelties
Dear Mr. McNab:
This is in reference to your communication of August 16,
1989, concerning the classification of ice cream novelties under
the Harmonized Tariff Schedules of the United States (HTSUS).
The products are described as frozen dairy confections.
Copies of wrappers of various retail-size products were
submitted, which list the name of the product and its contents.
The wrappers are illustrative of such products as ice cream
cones, sundaes, sandwiches, and bars. They were all said to
contain ice cream, and depending on the type of confection, added
ingredients might be chocolate flavor, chocolate coating,
peanuts, wafers, cones, and, cookies. No percentage breakdowns
were given for the various non-ice cream components. However, it
is understood that for the purposes of this decision that the ice
cream always exceeds 50 percent by weight of the total of the
non-ice cream components of the novelties.
Classification of ice cream novelties under the HTSUS,
where the ice cream constitutes 50 percent or more by weight.
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LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is governed by
the General Rules of Interpretation (GRI's). Under GRI 1
classification is determined according to the terms of the
headings and any relative section or chapter notes. GRI 2(b)
states that any 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;
that any reference to goods of a given material or substance
shall be taken to include a reference to goods consisting wholly
or partly of such material or substance; and that the
classification of goods consisting of more than one material or
substance shall be according to GRI 3. GRI 3(a) refers to
competing headings regarded as equally specific. GRI 3(b) states
that composite goods of different materials which can not be
classified by reference to GRI 3(a), shall be classified as if
they consisted of the material which gives them their essential
The Explanatory Notes to the HTSUS, which should be
consulted for guidance in interpretations of the provisions of
the HTSUS, state in regard to GRI 3(b) that the essential
character may be determined by the nature of the material of the
component, its bulk, quantity, weight or value, or by the role of
the constituent material in relation to the use of the goods.
As stated previously, all of these novelties contain ice
cream, and, for the purposes of this decision, it is assumed that
the ice cream portion of the particular novelty is over 50
percent by weight. Thus, in considering the classification of
products of this type, the essential character would be the ice
Ice cream novelties consisting of 50 percent or more ice
cream by weight are classifiable as ice cream in subheading
2105.00.0010, HTSUS. The rate of duty is 20 percent ad valorem.
In addition such products are subject to the quota allocations as
set out in subheading 9904.10.72, HTSUS. Canada has no
allocation under this quota.
John Durant, Director
Commercial Rulings Division
hurley library 085364
6 cc: A.D., N.Y. Seaport