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