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HQ 085364

Sept 1,1989

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


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).


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.


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.


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

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