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HQ 223662


May 13, 1992

BON-1-04-CO:R:C:E 223662 SLR

CATEGORY: BONDS

TARIFF NO.: 9813.00.50

Mr. Emery W. Engalls
District Director of Customs
P.O. Box 4688
312 Fore St.
Portland, ME 04112

RE: TIB Extension; Untimely Request; 19 CFR 10.37; HRL 222949; HRL 222991

Dear Mr. Engalls:

This is in reference to your request of January 6, 1992, concerning an untimely request for a second extension of the bond period on TIB entry 551-1057570-5, made by A.N. Deringer on behalf of Mr. Jean Guy Allen. Our decision follows.

FACTS:

On December 6, 1989, a "clam bunk" was imported duty-free under a temporary importation under bond (TIB) as tools of the trade in subheading 9813.00.50, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A proper and timely CF 3173 Request for Extension was filed on December 5, 1990 via facsimile transmission and approved on December 6, 1990. A second CF 3173 request was received untimely in the mail by U.S. Customs on December 9, 1991. The broker for the importer insists, however, that the CF 3173 was sent by certified mail on December 4, 1991, and that inclement weather thwarted its timely delivery. The broker has forwarded a copy of the certified mail receipt. The file also contains a letter wherein the U.S. Postal Service profers an explanation for the untimely delivery. According to the Postmaster in Jackman, Maine, bad weather and poor road conditions kept the contract mail carrier from carrying the subject request back to the post office in time for it to go out with the regular mail (2:30 p.m.) on the 4th and the 5th of December.

ISSUE:

Whether a second extention of the TIB period is warranted in this case.

LAW AND ANALYSIS:

Under subheading 9813.00.50, HTSUSA, tools of the trade may be entered duty-free, temporarily under bond for their exportation within one year from the date of importation unless an extension for one or more additional periods is granted by the district director.

Untimely requests for an extension of a TIB are referred to Customs Headquarters under 19 CFR 10.37. Generally, extentions under 19 CFR 10.37 are rare and granted only under extraordinary circumstances. Such extensions have been granted only when: the merchandise covered by the TIB entry remains in the United States; there is no evidence indicating use of the merchandise contrary to the bond's terms; the applicant is not a chronic violator; there is no lack of due diligence in compliance with the law and regulations; and there is a reasonable explanation for the failure to file a timely application.

In most TIB extension cases, the issue is whether there has been a lack of due diligence by the importer, or whether there is a reasonable explanation for the failure to timely file. In this regard, Customs has advised that:

[I]f it could be established, to the satisfaction of the district director, that an application was mailed prior to the expiration of the TIB period, and that the postal service was responsible for the late delivery to Customs, this could be considered an unusual circumstance warranting approval of the application. For example, if an importer files an application by use of certified mail, a district director can accept proof of such mailing as proof of timeliness. Headquarters Ruling Letter (HRL) 222949, February 7, 1991.

Subsequently, Customs has insisted on a twofold determination: that the request was mailed in sufficient time to reach Customs before expiration of the period, and that, but for the delivery service's error, the request would have arrived at Customs timely. HRL 222991, February 21, 1991.

In this case, we find no lack of due diligence on the part of the importer and believe that there is a reasonable explanation for the delay in the timely filing of the second CF 3173. The subject certified mail receipt verifies the CF 3173 December 4, 1991 mailing date. Likewise, we know that due to inclement weather conditions, the U.S. Postal Service was unable to deliver the request on the 4th or 5th of December. Normal in-state mail delivery for Maine takes two days. It follows that but for the delay on the part of the Postal Service, the subject CF 3173 would have arrived at Customs timely on December 6, 1991.

HOLDING:

Based on the foregoing, you are instructed to grant the subject extension request.

Sincerely,

John Durant, Director

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