CLA-2 OT:RR:CTF:TCM H160297DSR
Lindsay B. Meyer, Esq.
Venable, LLP
575 F Street, NW
Washington, DC 20004
RE: Ruling request concerning tariff classification of non-aerated, natural artesian bottled water.
Dear Mrs. Meyer:
This is in response to your request on behalf of FIJI Water Company, LLC, (“FIJI”) dated February 7, 2011, for a binding ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of non-aerated, natural artesian bottled water. This request supplements FIJI’s original classification request dated January 6, 2011, and incorporates it by reference. We have examined the information submitted and our ruling follows.
FACTS:
The product is described as non-aerated, natural artesian water that is bottled at its source in Viti Levu in the Fiji Islands. The source is a natural artesian aquifer. The water is pumped through a sealed delivery system, free form human contact, and then filtered to remove any particulate matter. The water is then sub-micron filtered to remove microbiological particles, and ultraviolet light is applied to it to ensure disinfection. FIJI has submitted a laboratory testing report that shows the product as containing 230 parts per million (“ppm”) of total dissolved solids (“TDS”). Samples of the product, contained in plastic-wrapped packs of 6x100 mL plastic bottles, have been provided to U.S. Customs and Border Protection (“CBP”) and our laboratory testing reveals that the product contains 231 parts per million (“ppm”) of total dissolved solids (“TDS”).
ISSUE:
Whether the bottled water is classified under subheading 2201.10.00, HTSUS, as mineral water, or under subheading 2201.90.00, HTSUS, as other natural water.
LAW AND ANALYSIS:
The following HTSUS provisions are under consideration:
2201 Waters, including natural or artificial mineral waters and aerated
waters, not containing added sugar or other sweetening matter nor
flavored; ice and snow:
* * *
2201.10.00 Mineral waters and aerated waters.
2201.90.00 Other.
* * * *
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). 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 based on GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s 2 through 6 may then be applied in order. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
Heading 2201, HTSUS, distinguishes mineral water from “other” natural water by virtue of having different subheadings for each. It does not, however, provide a definition for “mineral water.” EN 22.01(A) states that heading 2201, HTSUS, covers “[o]rdinary natural waters of all kinds,” and that “[s]uch waters remain in the heading, whether or not clarified or purified, except that distilled or conductivity water and water of similar purity are classified in heading [2853].” EN 22.01(B) states that the heading also covers mineral waters, whether natural or artificial, and states that “natural mineral waters contain mineral salts or gases.” It goes on to explain that such waters “are generally classified according to the chemical characteristics of their salts.” It does not provide further guidance as to the content or quantity of those salts.
The meaning of a tariff term, a matter of statutory construction, presents a question of law. Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1366 (Fed. Cir. 1998). When, as in this case, a tariff term is not defined in either the HTSUS or its legislative history, "the term's correct meaning is its common meaning." Mita Copystar America v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod America Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult "dictionaries, scientific authorities, and other reliable information sources" and "lexicographic and other materials." C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271 (1982); Simod at 1576.
The Oxford English Dictionary defines “mineral water” as “[w]ater occurring in nature containing some dissolved mineral salts, often used therapeutically or as drinking water; a variety of such water, esp. as bottled commercially.” See www.oed.com. In addition, the International Bottled Water Association, which is a trade association of commercial companies in the bottled water industry, supports a definition of bottled water provided by the U.S. Food and Drug Administration (“FDA”), which regulates water as a food. See http://www.bottledwater.org. FDA regulations state that in order for a product to be labeled and marketed in the U.S. as a mineral water, the product must contain at least 250 ppm of TDS from a source tapped at one or more bore holes or springs that originate from a geologically and physically protected underground water source. It is distinguished from other types of water by its constant level and relative proportions of minerals and trace elements at the point of emergence from the source and no minerals may be added to it. See 21 CFR 165.110(a)(2)(iii).
Our administrative precedent is consistent with the FDA definition of mineral water. In New York Ruling (“NY”) N049884, dated January 28, 2009, CBP classified a product very similar to the instant product in subheading 2201.90.00, HTSUS, as other natural water. In that ruling, we noted that the product was known to contain 36 ppm of TDS. Also, in NY N128509, dated November 16, 2010, we considered another similar product known to contain 140 ppm of TDS, and likewise considered it to be classifiable as other natural water under subheading 2201.90.00, HTSUS.
While the definition of “mineral water” and the minimum TDS requirement provided by the FDA is not controlling, when read in conjunction with heading 2201, HTSUS, and its ENs, which distinguishes mineral water from ordinary natural water (“other”); the commercial meaning of mineral water; and CBP’s consideration of the amount of TDS in prior rulings, it is indeed persuasive.
Here, the subject product is water that is drawn from a natural artesian aquifer and does not contain added sugars or other sweetening matter, nor is it flavored. It contains naturally occurring mineral salts that constitute only 231 ppm of TDS of the product. Therefore, we find that it does not meet the commercial meaning of the term “mineral water” and is therefore classified under subheading 2201.90.00, HTSUS, as other natural water.
HOLDING:
By application of GRI 1, the subject water is classifiable under subheading 2201.90.00, which provides for “Waters, including natural or artificial mineral waters and aerated waters, not containing added sugar or other sweetening matter nor flavored; ice and snow: Mineral waters and aerated waters … Other.”
The column one, general rate of duty will be FREE.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division