John M. Peterson
Neville Peterson LLP
80 Broad Street – 34th Floor
New York, NY 10004
RE: The tariff classification of an Orange Sorbet/Ice Cream Confection from Canada.
Dear Mr. Peterson:
In your letter, received on May 30, 2002, you requested a tariff classification ruling on behalf of your client, Ice Cream Partners USA, LLC, of San Ramon, CA.
The product in question is described as an Orange Sorbet/Ice Cream Confection on a stick. The product consists of a core of ice cream within a shell of orange flavored ice. In the finished product, the orange sorbet component is said to conprise 36 g, the ice cream component 32 g, with a tolerance of ± 6 g.
In your letter, you note that the instant product, in its condition as imported, does not meet the standard of identity for “ice cream” Part 135.110, Title 21 Code of Federal Regulations (21 C.F.R. 135.110), since the product consists of ice cream and an orange ice component. We would agree. We consider this product to be an ice cream novelty. HQRL 962165, March 3, 1999, in classifying an ice cream cake, referenced an earlier ruling, HQRL 088914, May 9, 1991, which described “ice cream novelties” as “frozen food preparations consisting essentially of ice cream in combination with other food components to make a variety of specialty items, such as, chocolate covered ice cream bars, ice cream sandwich [sic], ice cream cake, coated ice cream cones, e.g. ‘Drumsticks,’ and similar frozen confections.” HQRL 962165 classified the ice cream considered therein, (i.e., cakes containing 1/3 ice cream and 2/3 cake), in Tariff Rate Quota subheadings 2105.00.30/2105.00.40, HTSUS, as dairy products described in additional U.S. note 1 to chapter 4. In fact, this has been the consistent practice of Customs in classifying ice cream novelties Thus, NYRLs G86670, February 2, 2001, C86835, May 1, 1998, and C87295, April 30, 1998, Customs classified in subheadings 2105.00.30/2105.0040, mini ice cream cones, ice cream cones and milk ice cones, coated or decorated with crushed macaroons, cocoa, or with a chocolate or white chocolate flavored coating. NYRL C87295, April 30, 1998, classified a product called “Sanciok,” described as a “milk ice sandwich,” which consisted of a vanilla-flavored milk ice, partially coated with a low fat cocoa coating and hazelnuts and two biscuits, in subheadings 2105.00.30/2105.00.40, HTSUS. HQRL 088914, May 9, 1991, classified a coconut ice cream bar, enrobed in chocolate, under the quota provision in subheading 2105.00.0015, HTSUS (a predecessor to the current subheadings 2105.00.30/ 2105.00.40). While not “ice cream” for tariff purposes, the essential character of these ice cream novelties was considered to be imparted by the ice cream component. In our opinion, this is true also for the instant orange sorbet/ice cream confection. Although slightly less by weight than the orange ice sorbet, the ice cream center, or core, imparts to the product the character of a frozen ice cream novelty, rather than that of a frozen sorbet ice.
Accordingly, the applicable subheading for this Orange Sorbet/Ice Cream Confection, if imported in quantities that fall within the limits described in additional U.S. note 5 to chapter 21, will be 2105.00.3000, Harmonized Tariff Schedule of the United States (HTS), which provides for Ice cream and other edible ice, whether or not containing cocoa:…Other:…Dairy products described in additional U.S. note 1 to chapter 4:…Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions. The rate of duty will be 20 percent ad valorem. If the quantitative limits of additional U.S. note 5 to chapter 21 have been reached, the product will be classified in subheading 2105.00.4000, HTSUS, and will be dutiable at the rate of 50.2¢/kg + 17 percent ad valorem.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Thomas P. Brady at 646-733-3030.
Robert B. Swierupski