OT:RR:CTF:FTM H306957 MJD
Ms. Mary Spizzirri
Emo Trans
840 Dillon Drive
Wood Dale, IL 60191
RE: Revocation of NY N307027; tariff classification of ice cream bars from Belgium
Dear Ms. Spizzirri:
This letter pertains to New York Ruling Letter (“NY”) N307027, dated November 13, 2019, which you requested on behalf of Lotus Bakeries North America (“Lotus Bakeries”) concerning the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of five flavors of ice cream bars to be imported by Lotus Bakeries. The five ice cream bars consisted of the following flavors: Biscoff Ice Chocolate Chip, Biscoff Ice Salted Caramel, Biscoff Ice Cheesecake Blueberry, Biscoff Ice, and Biscoff Ice Choco Brownie.
Since the issuance of NY N307027, Lotus Bakeries has informed U.S. Customs and Border Protection (“CBP”) that certain product information in this ruling was inaccurate. Further, Lotus Bakeries, at the present moment, will not be importing the five flavors of ice cream bars mentioned above. Instead, they will be importing another product, described as the milk chocolate flavored Biscoff Ice Cream Stick. The product information for the Biscoff Ice Cream Stick was submitted with the original request for a binding ruling on October 25, 2019, but not addressed in NY N307027. Accordingly, we address the tariff classification of the Biscoff Ice Cream Stick in this ruling and revoke NY N307027 with respect to the tariff classification of the five ice cream bars.
FACTS:
Lotus Bakeries describes the milk chocolate flavored Biscoff Ice Cream Stick as “[t]he original Cookie Butter ice cream with crunchy Lotus Biscoff Cookies, enrobed with Lotus Biscoff Cookie Butter and Belgian chocolate.” The total net weight of the milk chocolate flavored Biscoff Ice Cream Stick is 90 milliliters.
The list of ingredients for the milk chocolate Biscoff Ice Cream Stick are as follows:
Milk Chocolate Flavored Confectionery (Sugar, Cocoa Butter, Whey powder, Milkfat, Unsweetened Chocolate, Nonfat Dry Milk, Coconut Oil, Sunflower Lecithin, PGPR, Natural Vanilla Flavor), Skim Milk, Biscoff Cookies . . . (Wheat Flour, Sugar, Vegetable Oils [Contains one or more of Soybean Oil, Sunflower Oil, Canola Oil, Palm Oil], Brown Sugar Syrup, Sodium Bicarbonate [Leavening], Soy Flour, Salt, Cinnamon), Cream, Canola Oil, Sugar, Wheat Syrup, Whey Protein Concentrate, Cocoa Butter, Mono and Diglycerides, Soy Lecithin, Locust Bean Gum, Guar Gum, Citric Acid, Salt.
ISSUE:
What is the proper classification under the HTSUS for the subject merchandise?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
GRI 3 provides, in relevant part, as follows:
3. When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
. . . (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The 2019 HTSUS provision under consideration are as follows:
2105.00 Ice cream and other edible ice, whether or not containing cocoa: (con.)
Other:
Dairy products described in additional U.S. note 1 to
chapter 4:
* * *
2105.00.3000 Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions
2105.00.4000 Other
Additional U.S. Note 1 to Chapter 4, HTSUS, states as follows:
For the purposes of this schedule, the term “dairy products described in additional U.S. note 1 to chapter 4” means any of the following goods: malted milk, and articles of milk or cream (except (a) white chocolate and (b) inedible dried milk powders certified to be used for calibrating infrared milk analyzers); articles containing over 5.5 percent by weight of butterfat which are suitable for use as ingredients in the commercial production of edible articles (except articles within the scope of other import quotas provided for in additional U.S. notes 2 and 3 to chapter 18); or, dried milk, whey or buttermilk (of the type provided for in subheadings 0402.10, 0402.21, 0403.90 or 0404.10) which contains not over 5.5 percent by weight of butterfat and which is mixed with other ingredients, including but not limited to sugar, if such mixtures contain over 16 percent milk solids by weight, are capable of being further processed or mixed with similar or other ingredients and are not prepared for marketing to the ultimate consumer in the identical form and package in which imported.
Additional U.S. Note 10 to Chapter 4, HTSUS, provides as follows:
The aggregate quantity of dairy products described in additional U.S. note 1 to chapter 4, entered under subheadings 0402.29.10,0402.99.70, 0403.10.10, 0403.90.90, 0404.10.11, 0404.90.30, 0405.20.60, 1517.90.50, 1704.90.54, 1806.20.81, 1806.32.60,1806.90.05, 1901.10.21,1901.10.41,1901.10.54,1901.10.64, 1901.20.05, 1901.20.45, 1901.90.61, 1901.90.64, 2105.00.30,2106.90.06, 2106.90.64, 2106.90.85 and 2202.99.24 in any calendar year shall not exceed 4,105,000 kilograms (articles the product of Mexico shall not be permitted or included under the aforementioned quantitative limitation and no such articles shall be classifiable therein).
Of the quantitative limitations provided for in this note, Australia shall have access to a quantity of not less than 1,016,046 kilograms, and Belgium and Denmark (aggregated) shall have access to a quantity of not less than 154,221 kilograms.
Additional U.S. Note 5 to Chapter 21, HTSUS, states as follows:
The aggregate quantity of ice cream entered under subheading 2105.00.10 in any calendar year shall not exceed 5,667,846 liters (articles the product of Mexico shall not be permitted or included in the aforementioned quantitative limitation and no such articles shall be classifiable therein).
Of the quantitative limitations provided for in this note, the countries listed below shall have access to not less than the quantities specified below:
Quantity (liters)
Belgium 922,315
Denmark 13,059
Jamaica 3,596
Netherlands 104,477
New Zealand 589,312
In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN to GRI 3(b) provides, in pertinent parts, the following:
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
EN 21.05 provides as follows:
This heading covers ice cream, which is usually prepared with a basis of milk or cream, and other edible ice (e.g., sherbet, iced lollipops), whether or not containing cocoa in any proportion. However, the heading excludes mixes and bases for ice cream which are classified according to their essential constituents (e.g., heading 18.06, 19.01 or 21.06).
The food product at issue is a composite good consisting of an ice cream core that is covered in a layer of cookie butter and chocolate. Frozen desserts of this type are referred to as “ice cream novelties.” In Headquarters Ruling Letter (“HQ”) 088914, dated May 9, 1991, CBP determined that both ice cream and “ice cream novelties” were goods of heading 2105, HTSUS. CBP 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[], ice cream cake[], coated ice cream cones, e.g. ‘Drumsticks,’ and similar frozen confections.” HQ 088914 also found that the essential character, for GRI 3(b) purposes, of ice cream novelties is the ice cream.
Moreover, CBP has consistently classified other frozen desserts that are similar to the subject ice cream stick in subheading 2105.00.3000, of the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). See, for example, NY 814630, dated October 12, 1996 (classifying in part, two flavors of ice cream bars, each consisting of a different flavor of ice cream, with chocolate crackle inside, and dipped in chocolate); NY C87295, dated April 30, 1998 (classifying, in part, the Sanciok, “a milk ice sandwich that provides vanilla taste with mint chocolate” that contained a coating of cocoa, two biscuits, and minced hazelnut); HQ 962165, dated March 3, 1999 (classifying frozen ice cream cakes made of two layers of cake and one layer of ice cream); NY I82670, dated June 28, 2002 (classifying an Orange Sorbet/Ice Cream Confection on a stick that consisted of an ice cream core covered in orange flavored ice); NY N009196, dated April 9, 2007 (classifying “ready-to-eat, frozen on-a-stick novelty bars consisting of an ice cream layer on one side and a fruit-flavored ice-confection layer on the other”); and, NY N074742, dated September 28, 2009 (classifying several different flavors of ice cream cakes that consisted of a layer or layers of ice cream and a layer or layers of other food products such as chocolate, ice glaze, fruit, and other similar food components).
Therefore, based on the foregoing, it is our opinion that the ice cream imparts the essential character of the milk chocolate flavored Biscoff Ice Cream Stick, which we consider an ice cream novelty. Accordingly, we conclude that the ice cream stick is classified, if entered during the tariff-rate-quota open period, in subheading 2105.00.3000, HTSUSA, 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.”
If entered after the tariff-rate quota period is closed, the applicable subheading for the milk chocolate flavored Biscoff Ice Cream Stick, is 2105.00.4000, HTSUSA, 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: Other.”
HOLDING:
The milk chocolate flavored Biscoff Ice Cream Stick is an ice cream novelty, classified in heading 2105, HTSUS. Specifically, it is classified, if entered during the tariff-rate quota open period, in subheading 2105.00.3000, HTSUSA, 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 column one, general rate of duty is 20% ad valorem.
If entered after the tariff-rate quota period is closed, the applicable subheading for the milk chocolate flavored Biscoff Ice Cream Stick will be 2105.00.4000, HTSUSA, 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: Other.” The column one, general rate of duty is 50.2 cents per kilogram plus 17% ad valorem.
Products classified in subheading 2105.00.4000, HTSUS, are also subject to additional safeguard duties based on their value, as described in subheadings 9904.04.50—9904.05.01.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N307027, dated November 13, 2019, is hereby REVOKED.
This revocation of treatment is not subject to the notice and comment provisions of 19 U.S.C. § 1625(c) because NY N307027 has been in effect for less than 60 days.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division