CLA-2 RR:TC:FC 958785K

John R. Peterson, Esq.
Margaret R. Polito, Esq.
Neville, Peterson & Williams
80 Broad Street, 34th Floor
New York, New York 10004

RE: Tariff Classification of Lean On Me Activity Bolster; Revocation of New York Ruling Letter (NYRL) 811956

Dear Mr. Peterson and Ms. Polito:

In your letter of December 26, 1995, on behalf of Summer Infant Products, Inc., you requested that we reconsider NYRL 811956, dated July 18, 1995, that held that an article referred to as Lean On Me Activity Bolster was classified in subheading 9404.90.20, Harmonized Tariff Schedule of the United States (HTSUS) (1995) as other pillows, cushions and similar furnishings, not of cotton, with duty at the general rate of 6 percent ad valorem. This letter is to inform you that NYRL 811956 no longer reflects the views of the Customs Service and is revoked in accordance with section 177.9(d) of the Customs Regulations (19 CFR 177.9(d)). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), hereinafter, section 625), notice of the proposed revocation of NYRL 811956 was published on June 19, 1996, in the Customs Bulletin, in Volume 30, No. 25 . The following represents our position.


A commercial sample of a Lean On Me Activity Bolster, made in China, was submitted with the reconsideration request and will be returned under separate cover as requested. The merchandise is described in the reconsideration letter as follows:

The Lean On Me is designed to amuse a baby or young child under two years of age while, at the same time, providing the child with a supported area in which to play. The Lean On Me is constructed from a solid piece of "U"- shaped plastic foam that is covered with brightly printed fabric in a jungle motif (e.g., monkeys, parrots and giraffes). The fabric is woven from 65% polyester and 35% cotton fibers. A separate cushion encased in fabric is located in the middle of the "U" on the bottom side of the article.

Attached to the top of the Lean On Me are five separate toys designed to amuse a baby or young child. A mirror fish is tethered to its own pocket in order for a baby to play Peek-A-Boo. A flip - flop book that depicts a different jungle animal on each page is attached to the Lean On Me. When the pages of the book are pressed, the book makes a sound. A large, colorful butterfly is attached to the Lean On Me. When pressed, the butterfly makes a "crinkly" sound that babies and young children find amusing. Colorful flower teething rings, complete with their own petal pocket, are also attached to the Lean On Me. A rattle encased in a cloth pocket with a tiger printed on it is also attached to the Lean On Me. In addition to these five toys, the Lean On Me incorporates a cup/bottler holder so that a baby's bottle (or a child's drinking cup) can be held in place while the baby or child is playing with the Lean On Me. Mesh storage pockets are sewn to the sides of the Lean On Me for the storage of additional toys.

The Lean On Me is designed as an activity center for young children. A child who has not yet learned to walk can rest against the soft sides of the Lean On Me while playing with the various toys. In addition, a child can sit outside of the Lean On Me and play with the various toys. When used in this manner, the Lean On Me does not provide the child with support or cushioning. When a child sits inside the Lean On Me, many of the toys will be outside of the child's range of vision and reach, and thus incapable of use. Assuming that a child will be drawn to the brightly colored toys, it is reasonable to conclude that most children will play with these toys when they are either seated outside of the Lean On Me or when they crawl into the Lean On Me head first.

Your position is that the article is classified as other toys (except models), not having a spring mechanism, in subheading 9503.90.0030, HTSUS, with a 1995 general free rate of duty.


The issue is whether the article as described above is classified as a toy or as a pillow or cushion.


It appears that the imported articles may have a dual purpose, for use as a pillow or cushion, or as toys. Customs Headquarters Ruling Letter (HRL) dated April 26, 1993 (951309) concerned M & M novelty figures designed as lids for closures for containers containing candy, a utilitarian use, and as toys. In that case, Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977), was cited in which the court stated that "[W]hen amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement." We noted in HRL 951309, that the merchandise had the appearance and play value of any toy, that it could be used for amusement without being used as a closure or stopper, that the primary value of the item is its play value, and that the utilitarian aspect of the merchandise is temporary and incidental to the amusement factor. We concluded that the articles were classified as toys. (See also, NYRLs 883764, dated March 30, 1993, 851101, dated April 25, 1990, and 851936, dated May 4, 1990.

Upon a review of the commercial sample submitted with the literature, and the extensive description of the merchandise in the submission as quoted above, the Customs Service is now of the opinion, that the primary use of the Lean On Me Activity Bolster is as a toy and not the potential utilitarian use.


The merchandise described above, Lean On Me Activity Bolster, is classified in subheading 9503.90.0030, HTSUS, which provides for other toys (except models), not having a spring mechanism, with a general free rate of duty.

NYRL 811956 is revoked.

In accordance with 19 U.S.C. 1625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), of the Customs Regulations (19 CFR 177.10(c)(1)).


John Durant, Director
Tariff Classification
Appeals Division