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HQ 088521

May 13, 1991

CLA-2 CO:R:C:M 088521 JMH


TARIFF NO.: 9609.90.80

Mr. John A Slagle
Director, Customs Laws & Regulations
Wolf D. Barth Co., Inc.
7575 Holstein Ave.
Philadelphis, PA 83243

RE: Reconsideration of Headquarters Ruling Letter 086812, dated May 16, 1990; crayon color stick set; compound rate of duty

Dear Madam or Sir:

We have been asked to reconsider Headquarters Ruling Letter 086812 ("HQ 086812"), dated May 16, 1990, which classified certain crayon color sticks imported with an eraser and a sharpener. The reconsideration focuses on the correct assessment of the rate of duty on goods put up in sets for retail sale.


The articles in question are ten erasable color stick crayons, a crayon eraser and a crayon sharpener imported together in one box. HQ 086812 determined that these items formed "goods put up in a set for retail sale" under General Rule of Interpretaton ("GRI") 3(b), Harmonized Tariff Schedule of the United States Annotated ("HTSUSA"). As a set within the meaning of GRI 3(b), the twelve items are classifiable according to the article which imparts the set's essential character. HQ 086812 concluded that the crayons provided the set's essential character. The set was classified under heading 9609, HTSUSA, the heading which provides for, inter alia, crayons. The proper classification for the set was found to be subheading 9609.90.80, HTSUSA, as "...crayons... Other...Other..." The rate of duty to be applied is 5.5 cents/gross + 3/4 percent ad valorem.

HQ 086812 stated that "the boxes containing the crayons, eraser, and sharpener should be treated as one unit." Thus, the "gross" amount would be determined by the number of sets. It is this point which we are asked to reconsider.


Whether "gross" within the rate of duty of subheading 9609.90.80 refers to the number of sets, the number of crayons within the set, or the number of total articles within each set.


The tariff rate for subheading 9609.90.80 requires a rate of 5.5 cents/gross to be applied to articles classified within that provision. The term "gross" when used to refer to a numerical quantity mean "[a] group of 144 articles or 12 dozen items." Webster's II New Riverside University Dictionary, p. 550 (1984). It is the opinion of this office that the 144 articles or 12 dozen items on which 5.5 cents is to be assessed is the number of articles in each set. We base this decision on the following reasons.

First, when an article is determined to be a set under the terms of the HTSUSA, all articles in the set are charged the same duty. The duty applied is the rate attached to the article within the set which imparts the set's essential character. In this instance, the crayon's impart the set's essential character. The set is classified under the provision for crayons. All the articles within the set are treated for classification purposes as if they are crayons. In a situation without a compound rate of duty, the ad valorem rate of duty is assessed on the total value of all the articles within the set. It follows that if all articles are classified as crayons and the ad valorem rate assessed is applied to the value of all the articles as if they were crayons, then all the articles within the set should also be assessed the cents/gross rate of duty as if they were crayons.

Additionally, the Customs Court previously addressed this issue. In Import Associates of America and Fraser's, Inc. v. United States, C.D. 3439 (May 1, 1968), the court addressed the classification of sets of stainless steel flatware which consisted of knives and forks, or knives, forks and spoons. This case, although decided under the prior Tariff Schedules of the United States ("TSUS"), is applicable in this instance because flatware articles were assessed compound rates of duty. the court held that a "specific duty is to be assessed on each article in the set." See also Swissedent International v. United States, D>D. 1965 ( February 5, 1958), Arnart Imports, Inc. v. Unitd States, 54 C.P.P.A. 34, C.D. 2550, (1967).

A compound rate of duty is to be applied to every article within a set. In the present instance there are twelve articles within each set. One dozen sets would equal one gross. Therefore, the 5.5 cents/gross is applicable to one dozen of the crayon color stick sets.


A "gross" equals 12 dozen items or 144 articles. A compound rate of duty is to be applied to every article within a set. Therefore, when the compound rate of duty assesses cents/gross, every article in a set is to be counted toward reaching one gross.

Headquarters Ruling Letter 086812, dated May 19, 1990, is hereby modified. The crayon color stick sets consist of twelve articles. Since 144 articles equals one gross, twelve sets of the crayon color sticks will form one gross. The 5.5 cents/gross assessed under subheading 9609.90.80 is to be applied to twelve of the crayon color sets.


John Durant, Director
Commercial Rulings Division

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