HQ 085364: Classification of ice cream novelties

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 085364

                                     Sept 1,1989

          CLA-2-CO:R:C:G 085364 JGH

          CATEGORY: Classification

          TARIFF NO.: 2105.00.00

          Mr. John McNab
          First Secretary
          Canadian Embassy
          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).

          FACTS:

               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.

          ISSUE:

                 Classification of ice cream novelties under the HTSUS,
          where the ice cream constitutes 50 percent or more by weight.





















                                        - 2 -

          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
          character.

               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
          cream.

          HOLDING:

               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.

                                         Sincerely,




                                         John Durant, Director
                                         Commercial Rulings Division












          hurley library 085364
          6 cc: A.D., N.Y. Seaport
          JGHurley:jaj:8/30/89