BON-1-04-CO:R:C:E 223662 SLR
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.
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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.
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HOLDING:
Based on the foregoing, you are instructed to grant the
subject extension request.
Sincerely,
John Durant, Director