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HQ 962955




May 26, 2000

CLA-2 RR:CR:GC 962955 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 7612.90.10

Ms. Connie Hagarman
A.W. Fenton Company, Inc.
1157 Rarig Avenue
Columbus, OH 43219-2357

RE: Paper/foil ice cream sleeve, wrapper, container, headings 7612 and 8310, HTSUS.

Dear Ms. Hagarman:

This is in response to your letter of May 27, 1999, requesting reconsideration of New York Ruling Letter (NY) D87115, issued to you on March 5, 1999, by the Customs National Commodity Specialist Division, New York, concerning the classification of a foil coated paper ice cream cone sleeve/wrapper under the Harmonized Tariff Schedule of the United States (“HTSUS”). Your letter and samples were forwarded to this office for response. We regret the delay in responding.

FACTS:

You have submitted samples of the foil coated paper ice cream cone sleeves (“sleeves”). In your ruling request, these articles are not identified by any specific style or part numbers. You state that, “each shipment is based on an order with unique artwork for the basic cone sleeve.” The paper is “kraft 78 grams/QM that is laminated with aluminum film (7MY or seven thousand yards) and finished with the artwork designs for merchandising purposes.” The sleeves are entered, cut to shape for ice cream cones, formed and sealed. Ice cream cones are placed into the sleeves and come in different sizes.

In NY D87115, the subject foil ice cream cone sleeves were classified under subheading 7612.90.10, HTSUS, which provides for “[a]luminum casks, drums, cans, boxes and similar containers . . ., Other: Of a capacity not exceeding 20 liters.”

ISSUE:

Whether the ice cream cone sleeve is classifiable under heading 7612, HTSUS, as an aluminum cask, drum, can, box and similar containers, for any material; or under heading 8310, HTSUS, as a sign plate, name plate, . . . and similar plates of base metal.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). Under GRI 1, HTSUS, goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

In understanding the language of the HTSUS, the Harmonized Commodity Description And Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. Customs believes the notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS provisions under consideration are as follows:

7612 Aluminum casks, drums, cans, boxes and similar containers (including rigid or collapsible tubular containers), for any material . . . of a capacity not exceeding 300 liters, whether or not lined or heat insulated . . .

7612.90 Other:

7612.90.10 Of a capacity not exceeding 20 liters.

8310 Sign plates, name plates, address plates and similar plates...of base metal . . . [.]”

The sample sleeves are constructed with a foil outer layer and a paper inner layer. Although the sleeves are printed on the outside in bright colors, with printed words of instruction and ingredients, their principal use is as an ice cream cone holder or container, not as a label.

The rationale for classification of the merchandise at issue in heading 7612, HTSUS, as similar to aluminum casks, drums, cans, boxes and similar containers,” lies in the rule of statutory construction known as ejusdem generis. In Van Dale Industries v. United States, 18 CIT 247 (April 1, 1994), aff’d 50 F.3d 1012 (Fed Cir.) (1995), in discussing ejusdem generis, the court affirmed that:

[o]ne rule of statutory construction is ejusdem generis, which means "of the same kind, class, or nature." Black's Law Dictionary 464 (5th ed. 1979). This rule applies whenever a doubt arises as to whether a given article not specifically named in the statute is to be placed in a class of which some of the individual subjects are named." [United States v. Damrak Trading Co., Inc., 43 CCPA 77, 79, C.A.D. 611 (1956).] Under ejusdem generis, where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described. Id. In other words, ejusdem generis requires that merchandise possess the particular characteristics or purposes that unite the specified exemplars in order to be classified under the general terms. See, Nissho-Iwasi Am. Corp. v. United States, 10 CIT 154, 157, 641 F. Supp. 808, 810 (1986) (citations omitted).

In this case, we must apply the legal principle of “ejusdem generis” to the articles described in heading 7612, and compare the subject articles to their characteristics and purpose. The court in Sports Graphics, Inc. v. United States, 24 F. 3d 1390, 1392 (Fed. Cir. 1994)), affirmed this principle when it held that, “[a]s applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” The exemplars described in heading 7612, HTSUS, are all used to package goods, and characteristically protect, store and contain them in transport and in the stream of commerce. The listed exemplars package and hold varied merchandise, including beverages and foodstuffs, creams and even toothpaste.

The sleeves’ purpose is to contain and protect the ice cream cones while in transport, as well as to reduce spoilage or leakage should the ice cream melt. The sleeves are filled with cones after importation and then shipped to dairies for filling with ice cream and retail sale. The foil sleeves clearly serve to contain and protect the ice cream cones as exposure to rising temperatures, away from adequate refrigeration, causes the ice cream to melt in the consumer’s hands.

Prima facie, heading 8310, HTSUS, does not provide for aluminum foil ice cream cone containers. Heading 8310, HTSUS, does provide for “[s]ign plates, name plates, address plates and similar plates, numbers, letters and other symbols, and parts there of, of base metal, . . .[.]” Clarification of these terms is found at the relevant ENs at p. 1220. They state that heading 8310, HTSUS, covers base metal plates which, by a variety of processes, bear words, letters, numbers or designs giving all the essential information required for a sign-plate, name-plate, advertising plate, address-plate or other similar plate. Such plates are designed either to be permanent fixtures or they may be used many times.”

In our opinion, the foil ice cream sleeves are on their face, not sign-plates, name-plates, address-plates and similar plates, . . ..” Whereas the sleeves are principally used as containers or holders for ice cream cones, sign-plates and other plates of this type are designed for long-term and multiple usage. There is nothing permanent, or even reusable about the subject ice cream cone sleeves. Once the sleeve is opened and the ice cream cone eaten or melted, the sleeve is thrown away. There is no evidence that a sleeve is reused, or even intended for multiple usage.

Given that the subject ice cream cone sleeve is an aluminum container not more specifically described in any other heading, and it is ejusdem generis, similar in characteristics and purpose to those exemplars enumerated in heading 7612, HTSUS, we find that it is provided for at GRI 1, under this heading.

HOLDING:

The aluminum foil ice cream cone sleeves are not classifiable as “sign-plates, name-plates, address-plates and similar plates, numbers, letters and other symbols, of base metal, . . .,” as provided for under heading 8310, HTSUS. The sleeves are classifiable under subheading 7612.90.10, HTSUS, which provides for “Aluminum casks, drums, cans, boxes and similar containers . . .Other:. . .Of a capacity not exceeding 20 liters.”

NY D87115 is affirmed.

Sincerely,

John Durant, Director

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