BON-1-04 CO:R:C:E 224563 DH
District Director of Customs
300 Second Avenue S.
P.O. Box 789
Great Falls, Montana 59405
RE: Untimely Request for Extension of Temporary Importation Bond
(T.I.B.); 19 CFR 10.37; Subheading 9813.00.0520, HTSUSA
Dear Sir:
This is in reference to the request by Schenkers
International Forwarders, Inc., on behalf of Ball Aerospace
Systems Division (BASD), for the extension of the time to export
nickel-cadmium storage batteries which were temporarily imported
under the temporary importation under bond (T.I.B.) procedures
and subheading 9813.00.0520 of the Harmonized Tariff Schedules of
the United States Annotated (HTSUSA). We have reviewed your
request and our decision follows.
FACTS:
BASD entered the sealed nickel-cadmium storage batteries, on
February 4, 1992, under subheading 9813.00.0520, for the purpose
of installation into a spacecraft which will be exported to
Canada. The bond expired on February 4, 1993, prior to the
receipt of a Application for Extension of Bond for Temporary
Importation (Customs Form (CF) 3173). On March 4, 1993, a Notice
of Penalty or Liquidated Damages and Demand For Payment (CF
5955A) was issued to the importer. On March 5, 1993, the broker
filed the CF 3173, requesting an extension of the temporary
importation period.
From the information on the CF 3173, the batteries, subject
to the T.I.B., continue to be tested prior to their exportation
in the spacecraft. The broker states that the extension was not
timely filed because the importer failed to notify them that the
T.I.B. period had lapsed.
ISSUE:
Has the petitioner provided sufficient evidence to support
the granting of the untimely filed request to extend the T.I.B.'s
in this case?
LAW AND ANALYSIS:
The T.I.B. provisions are found in U.S. Note 1 of subchapter
XIII, Chapter 98, HTSUSA. Articles described in these
provisions, 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 one 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 year, do not exceed a total of 3
years. The Customs Regulations pertaining to T.I.B.'s are found
in 19 CFR 10.31-10.40.
Section 10.37 of the Customs Regulations provides that
extensions of the time for exportation of merchandise imported
under a T.I.B. may be granted by the appropriate district
director upon written application on CF 3173. Section 10.37
provides that 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 when: (1) the articles covered by the entry remain
in this country; (2) there is no evidence indicating the use of
the articles for purposes 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. See HRL 218315, 218756 and
217734.
We have reviewed the rulings on this subject. As indicated,
approvals of untimely requests are granted only sparingly for
extraordinary reasons, such as the death or serious illness of
the employee responsible for making the request for extension
(See, HRL 219659, dated July 8, 1987). We have not granted
relief in situations such as the loss of a file due to personnel
changes (See, HRL 223699, dated May 15, 1992) or the fact that
the responsible employee was so busy with other tasks that he or
she did not keep track of the time (See HRL 222800, February 4,
1991).
The situation in this case is not one in which circumstances
were so extraordinary that relief could be granted. Rather, the
circumstances are more in the nature of a lack of due diligence.
The broker stated that the importer failed to notify them, in
time, that an extension was required. As in HRL 222800, the
failure to monitor the lapse of the year is insufficient
justification to extend a T.I.B. which is untimely filed. As a
result, we find that the granting of an extension of the T.I.B.
in this case is unwarranted.
HOLDING:
Sufficient evidence has not been provided to support the
granting of the untimely filed request to extend the T.I.B. in
this case. The request to grant an extension of the temporary
importation period under 19 CFR 10.37 is denied.
Please note that this ruling addresses only the issue of the
untimely request for extension and not the applicability of
liquidated damages or any petition for relief from those damages,
or compliance with procedures in 19 CFR Part 172, concerning
liquidated damages which should be handled by your office.
Please inform the importer of our decision.
Sincerely,
William G. Rosoff, Chief