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HQ 224563

April 16, 1993

BON-1-04 CO:R:C:E 224563 DH

CATEGORY: BONDS

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

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