BON-1-04-CO:R:C:E 222843 CB
Mr. Stephen J. McDermott
Customs Administrator
General Motors Corporation
3044 West Grand Boulevard
Detroit, Michigan 48202
RE: Temporary Importation Entry 813-0304489-5
District Case 90-3801-23491
Dear Mr. McDermott:
This responds to your letter of November 21, 1990,
concerning a request for extension of the above referenced
temporary importation bond.
The facts appear to be that on February 21, 1989, two
vehicles were imported by the Delco Moraine Division of General
Motors Corporation under Temporary Importation Bond (TIB) entry
no. 813-0304489-5. The merchandise was entered duty-free under
subheading 9813.00.05, of the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA). On July 17, 1990, the Customs
Service issued a Notice of Penalty or Liquidated Damages Incurred
and Demand for Payment (CF 5955A) for failure to export within
the bond period or obtain an extension thereof. You filed a
formal petition for extension of the TIB by letter dated August
10, 1990. In your letter you included a copy of a letter dated
May 16, 1990, to the District Director of Customs, explaining
that your Customshouse broker failed to notify you that the TIB
was due to expire and therefore you were unable to file a timely
application for extension of the TIB.
You also pointed out, in the August 10th letter, that the CF
5955A was addressed to the wrong Customshouse broker and
therefore you were not aware that proceedings for demand of
payment had begun. On September 18, 1990, you were notified by
the Customs Service, that your letter had been reviewed and that
your petitioning period had expired. On October 18, 1990, you
filed a supplemental petition in the form of a letter. In said
letter you informed the District Director that General Motors had
received a copy of a CF 5955A issued on July 17, 1990 to
the National Fire Insurance c/o A. Shea & Company, and at that
time you began to research the issuance of the liquidated damages
claim. On October 31, 1990 you were advised that your
supplemental petition for relief from liquidated damages had been
forwarded to the Regional Commissioner and that your untimely
request for extension of the TIB should be addressed to Customs
Headquarters.
Subheading 9813.00.05, HTSUSA, provides for the free
importation, under bond, of "articles to be repaired, altered, or
processed (including processes which result in articles
manufactured or produced in the United States)." Under U.S. Note
1 of Subchapter XIII, HTSUSA, articles described in this tariff
provision, when not imported for sale or sale on approval, may be
admitted into the United States without the payment of duty,
under bond for their exportation within 1 year from the date of
importation. The U.S. Note provides that the 1 year period for
exportation may be extended for one or more further periods
which, when added to the initial period, do not exceed a total of
3 years.
Section 10.37 of the Customs Regulations provides that
extensions of time for exportation of merchandise imported under
a TIB may be granted by the appropriate district director upon
written application on Customs Form 3173. Under section 10.37,
untimely requests for an extension of time for exportation are to
be referred to Customs Headquarters. Generally, extensions based
upon untimely requests are only granted under extraordinary
circumstances. Such extensions have been granted only when: (1)
the articles covered by the entry remain in the country; (2)
there is no evidence of use of the articles contrary to the terms
of the bond; (3) the applicant is not a chronic violator; (4)
there is no evidence of a lack of due diligence in complying with
the law and regulations; and (5) there is a reasonable
explanation of why the application was not timely filed.
In this case, according to the information you have
provided, the first attempt to have the TIB extended was made on
May 16, 1990, almost three months after expiration of the time
for exportation (i.e., February 21, 1990, one year after the date
of importation). This attempt did not comply with the Customs
Regulations, as it was not in writing on a CF 3173. Only after
receiving a notice of liquidated damages did you file the proper
request.
The explanation given for the untimely filing of the
application for extension of the TIB in this case is that your
broker, at the time F.X. Coughlin, did not notify you of the
expiration until May 8, 1990. You stated that the fact that F.X.
Coughlin had been released as GM's broker effective April 1,
1990, may have had some bearing on the "oversight". We do not
find this explanation to be a reasonable explanation of why the
application was not timely filed. The TIB expired on February
21, 1990, while F.X. Coughlin was still GM's broker.
"Oversight", without more explanation, leads us to conclude that
there was a lack of due diligence in complying with the law and
regulations and the request for extension of the bond period is
denied.
Additionally, you have questioned the validity of the
issuance of the CF 5955A because it was forwarded to a broker who
was not acting as your agent in this particular entry
transaction. Upon further investigation, we were advised by the
District Office that a CF 5106 (Notification of Importer's
Number, or Application for Importer's Number, or Notice of Change
of Name or Address) was never submitted to the Customs Service by
your company. Therefore, the computer generated CF 5955A was
sent to the broker who was still listed in the system as your
agent. In any event, it is our understanding that the petition
for relief from liquidated damages is pending before the Regional
Commissioner.
A copy of this letter is being sent to the District Director
of Customs in Detroit.
Sincerely,
William G. Rosoff, Chief
Entry Rulings Branch