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NY L87471




September 16, 2005

CLA-2-61:RR:NC:3:353 L87471

CATEGORY: CLASSIFICATION

TARIFF NO.: 4901.99.0070, 6104.53.2020, 6217.10.8500, 4202.92.4500

Ms. Lisa Pascarello
Penguin Group (USA) Inc.
405 Murray Hill Parkway
East Rutherford, NJ 07073-2136

RE: The tariff classification of a child’s storybook, tutu, hair band and tote bag from China.

Dear Ms. Pascarello:

In your letter dated August 26, 2005 you advised this office that you had made changes to an “Angelina Ballerina: The Rose Fairy Princess Book and Tutu Set” that was the subject of ruling NY L85621, dated July 7, 2005.

In that ruling, Customs stated that the item, consisting of a PVC tote bag, hardcover book, knit polyester tutu and woven fabric hair band, was not considered “goods put up in sets for retail sale” for tariff purposes because the components served more than one activity. The tote bag was classified in subheading 4202.92.4500; the book in subheading 4901.99.0070; the tutu in subheading 6104.53.2020; and the hair band in subheading 6217.10.8500.

You have modified the item by adding the phrase “Tutu Costume & Headband Included” in the upper right-hand corner of the book and by cutting a slit down the back of the tutu. You believe these actions have created a set, and rendered the dress as not being able to be worn as actual apparel, creating a costume. You state that you believe the costume is properly classified under heading 9505 as a “festive article.”

Costumes are considered “fancy dress.” The Court of Appeals ruled on the classification of costumes in its decision in Rubie’s Costume Co. v. United States, slip op 02-1373 (Fed. Cir. Aug. 1, 2003). The decision stated that all flimsy, non-durable textile costumes that are not ordinary articles of apparel are classified under 9505.90.6000 (flimsy); all textile costumes that do not meet flimsy, non-durable standards (well made), or are ordinary articles of apparel are classified in chapters 61 or 62. Although the tutu is not an ordinary article of apparel, it is well made with an elasticized tunnel waist and a finished bottom and is not classified in subheading 9505.90.6000.

In addition, the mere addition of printing on the book does nothing to eliminate the dual activity taking place, reading/storytelling and dress-up/dancing. We also note that the tote bag is reusable and not ordinary packing. Both the dual activity nature of the item and the reusable tote bag, which is not connected to either activity, preclude classification for tariff purposes as “goods put up in sets for retail sale.”

Despite the changes to the item, the classifications in ruling NY L85621 are still valid.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Kenneth Reidlinger at 646-733-3053.

Sincerely,

Robert B. Swierupski
Director,

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