NY 888067 - The tariff classification of TARTUFO, a frozen gelato dessert from Canada. - United States International Trade Commision Rulings

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NY 888067

July 30, 1993

CLA-2-21:S:N:N7:229-888067

CATEGORY: CLASSIFICATION

TARIFF NO.: 2105.00.0015 (9904.10.60)

Mr. Nick Lucchese, General Manager
DORGEL Ltd.
51 St. Regis Crescent
Downsview, Ontario M3J 1Y6
Canada

RE: The tariff classification of TARTUFO, a frozen gelato dessert from Canada.

Dear Mr. Lucchese:

In your letter dated June 28, 1993, you requested a tariff classification ruling.

The products in question are described as TARTUFO frozen gelato desserts. Gelato is described as "a low butter fat Italian ice cream," with a butterfat content within a range of from 0.5 percent to 5 to 8 percent, by weight. (Regular ice cream has a butterfat content ranging from 10 to 14 percent, by weight, and, in the premium/super premium deluxe ice creams, even up to 20 percent.) These TARTUFO frozen gelato desserts will be prepared in various flavors,--namely, Chocolate TARTUFO, Chocolate Raspberry TARTUFO, Vanilla TARTUFO, Chocolate Raspberry Ice TARTUFO and Amaretto TARTUFO. All these TARTUFO desserts appear to be coated with a thin layer of chopped almonds and biscuit crumbs or a cocoa flavored powder. The ingredients, by weight, for the Chocolate TARTUFO base are listed as 8.5 percent skim milk solids, 3 percent cacao, 5 percent butter, 7 percent (35 %) cream, 18 percent sugar, 0.5 percent Cremital and 58 percent water. The Neutro Base for Raspberry Ice, Vanilla and Amaretto TARTUFO are listed as 10 percent skim milk solids, 12 percent sugar, 7 percent (35 %) cream, 3.5 percent butter, 3 percent inverted sugar, 2 percent dextrose, 0.5 percent Cremital and 62 percent water.

The classification of merchandise under the Harmonized Tariff Schedule of the United States, (HTS), is governed by the General Rules of Interpretation. The first General Rule requires that the classification of goods be determined according to the terms of the headings and any relative section or chapter notes. The Explanatory Notes to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTS by offering guidance in understanding the scope of the headings and the General Rules.

The Explanatory Notes to heading 21.05 states that "[t]his
heading covers ice cream, which is usually prepared with a basis of milk or cream, and other edible ice (e.g., sherbet, iced lol-
lipops), 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 instant product is a dairy-based frozen dessert similar in character to ice cream and the other types of frozen dessert products, which constitute the goods covered by this heading. Although described as a low fat ice cream, the instant products would not be considered ice cream for tariff purposes, since they do not meet the standard of identity for ice cream, as described in the U.S. Code of Federal Regulations [21 CFR 135]. Accordingly, these Gelato desserts are properly classifiable as products of chapter 21, other than ice cream.

The applicable subheading for TARTUFO frozen gelato desserts will be 2105.00.0015, Harmonized Tariff Schedule of the United States, which provides for Ice cream and other edible ice, whether or not containing cocoa...Other:...Subject to quotas established pursuant to section 22 of the Agricultural Adjustment Act, as amended:...Articles of milk or cream. The rate of duty will be 20 percent ad valorem.

Articles classifiable in HTS subheading 2105.00.0015 are subject to quota quantity restrictions listed in subchapter IV of Chapter 99 in HTS subheading 9904.10.60, which limits the amount of such product which may enter the United States to an annual quota quantity of 2,721 kilograms. Additionally, an import license, issued to the importer by the United States Department of Agriculture, will be required at the time such merchandise is entered for consumption into the United States.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director

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