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HQ 226123




May 5, 1995

BON-1-04-R:C:E 226123 CC

CATEGORY: ENTRY

D. Lynn Gordon
District Director of Customs
U.S. Customs Service
P.O. Box 025280
Miami, FL 33102-5280

RE: Untimely request for extension of TIB; Subheading 9813.00.05, HTSUS; Chapter 98, Subchapter XIII, U.S. Note 1; 19 CFR 10.37

Dear Ms. Gordon:

This is in reply to your letter of March 16, 1995, concerning an untimely request for the extension of a Temporary Importation under Bond (TIB) by Lancer Int'l. Corp.

FACTS:

The subject merchandise, an automobile, was imported on September 5, 1993 under a TIB within subheading 9813.00.05 of the Harmonized Tariff Schedule of the United States (HTSUS). The automobile was involved in an accident in Guatemala and was imported to the U.S. for testing in investigating a possible civil action.

The TIB period expired on September 4, 1994. An application by the broker for extension of the bond for temporary importation was dated September 16, 1994. The reason given for requesting an extension of the bond period was that "this vehicle is evidence in an ongoing civil action, and as such it is necessary that the vehicle remains in the U.S." A notice of liquidated damages incurred was sent to the bond holder on October 14, 1994.

ISSUE:

Whether the subject TIB may be extended by an untimely request?

LAW AND ANALYSIS:

The TIB provisions are found in U.S. Note 1 of subchapter XIII, Chapter 98, HTSUS. 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 TIB's are found in 19 CFR 10.31-10.40.

Section 10.37 of the Customs Regulations (19 CFR 10.37) provides that extensions of the time for exportation of merchandise imported under a TIB may be granted by the appropriate district director upon written application on CF 3173. Section 10.37 additionally 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. The granting of untimely requests for a TIB extension will be allowed only 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 for why the application was not timely filed. See, e.g., HQ 218135 and 218756.

A review of the existing rulings on this subject reveals that approval 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 HQ 219659 of July 8, 1987). Relief has not been granted in situations such as the loss of a file due to personnel changes (see HQ 223699 of May 15, 1992) or the fact that the responsible employee was so busy with other tasks that he did not keep track of the time (see HQ 222800 of February 4, 1991).

The broker offered explanations why the merchandise has not been exported, specifically, that the importer needed the automobile to remain in the U.S. for testing for a potential civil action. But the issue here is not whether there is good reason why the merchandise imported under bond should remain in the U.S. Instead, the issue is whether the broker filed a timely request for extension of the bond, and if not, whether the request for an extension may be granted, despite not being timely, due to extraordinary circumstances.

Here, the broker offered no explanation why the request for extension of the bond period was not timely filed. This lack of effort to comply with the law shows a lack of due diligence. Consequently, an extension of the TIB cannot be granted.

HOLDING:

The request for an extension of the TIB 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 under 19 CFR 172, concerning liquidated damages.

Sincerely,

William G. Rosoff

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