CLA-2 CO:R:C:F 955962 JGH
David I. Wilson, Esq.
Arter & Hadden
1801 K Street, N.W.
Washington, D.C. 20006-1301
Dear Mr. Wilson:
Your letter of February 17, 1994, concerns your memorandum
on the classification, under the Harmonized Tariff Schedule of
the United States (HTSUS), of dipentaerythritol (di-penta). It
is your opinion that the classification in New York Ruling Letter
861666, dated April 1, 1991, is in error.
In that decision the chemical was classified under the
provision for other ether-alcohols and their halogenated,
sulfonated, nitrated or nitrosated derivatives not elsewhere
specified, in subheading 2909.49.5000, HTSUS.
You note that under the Explanatory Notes (ENs) ethers are
defined as alcohols or phenols in which the hydrogen atom of the
hydroxyl group is replaced by a hydrocarbon radical (alkyl or
aryl); that they have the same general formula: (R-O-R), where R
and R' may be the same or different. You claim that since di-penta does not contain either an alkyl or an aryl group (although
it does have the R-O-R structure), di-penta does not satisfy the
ENs definition of ethers and should not, therefore, be classified
as such. You also point out that the ether content of di-penta
accounts for none of its chemical activity; that the chemical
activity displayed is entirely attributable to the hydroxyl
groups characteristic of penta and polypentaerythritols. As a
result you suggest that di-penta be classified as polyhydric
alcohol derived from sugars in subheading 2905.49.2000, HTSUS.
This would be appropriate you believe as polyhydric alcohols are
compounds containing multiple OH groups, and di-penta contains
six OH groups. You state that it is derived from formaldehyde,
acetaldehyde, and an alkaline condensing agent, which combine to
create pentaerythose, a sugar, with some formaldehyde left over;
the sugar and formaldehyde then react to give a combination of
di-penta and penta. You feel that classifying di-penta as a
polyhydric alcohol derived from sugar would place di-penta under
the same heading as penta, to which it is closely related in
composition, derivation, and use.
It is Customs position that di-penta is not an ether but an
ether-alcohol; this means that di-penta contains an ether
functional group (C-O-C) and an alcohol functional group (C-O-H).
The ENs define ether-alcohols as derived from polyhydric alcohols
or phenol-alcohols by replacing the hydrogen of the phenolic
hydroxyl group (in the case of phenol-alcohols), or one of the
alcoholic hydroxyl groups (in the case of polyhydric alcohols),
by an alkyl or aryl radical. An example in the HTSUS of an eo
nomine provision that supports this interpretation is 2,2'-oxydiethanol which is provided for in subheading 2909.41.000,
HTSUS. 2,2'- oxydiethanol is an ether-alcohol derived from two
polyhydric alcohols in the same manner as di-penta.
While we agree that the intent of Congress was to make the
HTSUS "duty neutral" in the conversion from the previous tariff,
the TSUS, there are instances in the HTSUS where this did not
take place; and this is one of them. The Heading for 2909
specifically includes ether-alcohols, while, as you point out,
2905 does not. Although as you state, other HTSUS provisions may
have lower duty rates, Customs, as you are aware, is required to
classify merchandise under the provision which most specifically
NYRL 861666 is affirmed.
John Durant, Director
Commercial Rulings Division