First the Basics
Here is the actual language of the heading and sub heading under discussion:
Heading 9505 – Festive, carnival or other entertainment articles, including magic tricks and practical joke articles: parts and accessories:
Subheading 9505.10- Articles for Christmas festivities and parts and accessories thereof:
Legal precedent sets forth a two part test as to whether a product can be a considered a festive article. First, the article must be closely associated with a festive occasion, and second, the article must be used or displayed principally during that festive occasion.
In this instance, the imported article under consideration is a polyester poinsettia wreath with plastic berries and a twig base. Based on the two part test, I’m questioning why there was any need for the importer to receive an unfavorable ruling in the first place. To me, it seems pretty clear cut. What is interesting is that the debate over the definition of what constitutes a festive article never comes up in the original ruling. Without pointing to a particular authority, the ruling simply states “Wreaths that have a base made of natural twigs are precluded from classification as festive foliage in Chapter 95”. That’s it.
The new ruling goes into exploring the elements of the two part test and, of course, the article is deemed to be festive enough to be placed in 9505. But here is the most puzzling part: the original ruling was issued on May 22, 2008. The importer (Jo-Ann Stores, a place my wife frequents and which she is unable to drag me into) wrote a letter and asked for reconsideration on May 18, 2009. Why on earth would it take until January 27, 2014 to get the thing reversed?
I have no idea as to the amount of import volumes or duties that had to be paid between the time of the first ruling until now. At a minimum, these types of delays create extra work for importers as they try to keep track of the outstanding entries with the incorrect tariff number, and deal with the significant burden and cost of filing protests. As an outside observer, none of this was necessary.