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HQ 967833




September 21, 2005

CLA-2: RR:CTF:TCM 967833 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3301.90.5000

Mr. Leo Jeffries
Total Transportation Concept
8728 Aviation Blvd.
Inglewood, CA 90301

RE: Classification of bottled Rose Water

Dear Mr. Jeffries:

This is in response to your request dated June 9, 2005, made on behalf of the importer, Zargarzadeh, Mohammed Mehdi, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of bottled rose water. A sample has been provided to Customs and Border Protection (CBP) with this request.

FACTS:

The subject product is distilled rose water that is contained in glass bottles, 14 fl. oz., net weight. According to your submission, you indicate that the subject product is manufactured as follows:

Rose petals or flowers are heated in a pot of water. Rose vapors and steam rise into a bamboo pipe. The pipe runs into another pot that is cooled by being set in cold running water. As the vapors cool, they flow into the cold or cooling pot. When the rose water has cooled, it is placed into bottles. The residuals from the process, petals, are used for animal feed, while the liquid at the bottom of the iron pot, also referred to as “Oil of Rose Water”, is poured into separate bottles and used as perfume or in the perfumery industry.

In your submission, it is further noted that the “Rose Water” is used in many recipes for meals, beverages, desserts, and can be consumed directly from the bottle. However, you also recognize that the product is quite strong and is usually added to water or other beverages before consumption.

On behalf of the importer, you assert that the subject product is classifiable in subheading 2202.10.0060, HTSUSA, which provides for “Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009: Waters including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, Other”.

ISSUE:

What is the proper classification of the merchandise under the HTSUSA?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System 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. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 2202, HTSUSA, provides for “Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009: ”. The ENs to heading 2202 state that this heading includes sweetened or flavored mineral waters (natural or artificial); beverages such as lemonade, orangeade, cola, consisting of ordinary drinking water, sweetened or not, flavored with fruit juices or essences, or compound extracts.

The product now in question, is not an ordinary natural water or mineral water product. Rather, this bottled rose water is the result of steam distillation of rose oil that produces fragrant rose water as its by-product. It is clear that the rose fragrance is in the distillate as a residue or by-product of the essential oil production. In fact, Chapter 22, Note 1(f), HTSUSA, excludes “Perfumery or toilet preparations (chapter 33)”.

With respect to the purported use of the product as a distilled water beverage, it is important to note that Chapter 22, Note 1(c), HTSUSA, specifically excludes “Distilled or conductivity water or water of similar purity (heading 2851)”. Furthermore, in order to be classified as a beverage under heading 2202, HTSUSA, the product must have a “principal use” as a beverage. Additional U.S. Rule of Interpretation 1(a), HTSUSA, governs tariff classification of imported goods under use provisions. This rule states that “ a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use; “. In the case of Lenox Collections v. United States, 20 CIT 194 (1996), the court defined “principal use” as “the use which exceeds any other single use”. Headquarters’ Ruling Letter (HQ) 960544, dated April 10, 1998, illustrates a “principal use” determination by noting that when there is no evidence that the product functions “primarily as a beverage” and the merchandise appears to be primarily intended to function as something other than a beverage, it cannot be classified as a “beverage” in heading 2202, HTSUSA. On this point, the information contained in your submission clearly indicates that the distilled rose water has a principal use as an ingredient, not as a beverage.

The distilled rose water cannot be classified in heading 2851, HTSUSA, because this heading provides for “Other inorganic compounds (including distilled or conductivity water and water of similar purity); ”. The Webster’s New Collegiate Dictionary (1979), defines “inorganic” as “ being or composed of matter other than plant or animal”. Inasmuch as the subject distilled water product is manufactured from organic plant matter, i.e., rose petals, it cannot be classified in heading 2851, HTSUSA, as an “inorganic compound”.

Heading 3301, HTSUSA, provides for “Essential oils (terpeneless or not), including concretes and absolutes; resinoids; extracted oleoresins; concentrates of essential oils in fats, in fixed oils, in waxes or the like, obtained by enfleurage or maceration; terpenic by-products of the deterpenation of essential oils; aqueous distillates and aqueous solutions of essential oils” (emphasis supplied). The ENs for heading 3301 specifically note that the heading provides for essential oils of vegetable origin that are obtained by “steam distillation” and used in the perfumery and food industries. EN 33.01(D) defines aqueous distillates and aqueous solutions of essential oils as the “ aqueous portions of the distillates resulting when essential oils are extracted from plants by steam distillation. After the essential oils have been decanted, the aqueous distillates still retain a fragrance due to the presence of small quantities of essential oils.” It is further noted in EN 33.01(D) that the heading also covers solutions of essential oils in water and that the more common aqueous distillates are those of “orange flowers, rose, etc.” (emphasis supplied).

The subject distilled rose water product meets the description provided in the ENs to heading 3301 in that the product is an aqueous distillate of essential oils extracted from rose petals by steam distillation. Furthermore, the subject rose water product is primarily used as an ingredient in cooking and baking. As such, we find that the distilled rose water is classifiable in subheading 3301.90.5000, HTSUSA, which provides for, among other things, aqueous distillates of essential oils.

HOLDING:

The subject merchandise is correctly classified in subheading 3301.90.5000, HTSUSA, which provides for “Essential oils (terpeneless or not), including concretes and absolutes; resinoids; extracted oleoresins; concentrates of essential oils in fats, in fixed oils, in waxes or the like, obtained by enfleurage or maceration; terpenic by-products of the deterpenation of essential oils; aqueous distillates and aqueous solutions of essential oils: Other: Other”. The general column one duty rate is “Free”.

Please note that the duty rate set forth in this ruling letter is merely provided for your convenience and is subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,


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