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HQ 955962

August 8, 1994

CLA-2 CO:R:C:F 955962 JGH


TARIFF NO.: 2909.49.50

David I. Wilson, Esq.
Arter & Hadden
1801 K Street, N.W.
Suite 400K
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 describes it.

NYRL 861666 is affirmed.


John Durant, Director
Commercial Rulings Division

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