HQ 225554: Untimely request for extension of TIB; Subheading 9813.00.30, HTSUS; 19 CFR 10.37

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 225554

                        December 23, 1994




BON-1-04-CO:R:C:E   225554 CC 

CATEGORY:  Entry

Diane Zwicker
District Director of Customs
4430 East Adamo Dr., Suite 301
Tampa, FL  33605

RE:  Untimely request for extension of TIB; Subheading      9813.00.30, HTSUS; 19 CFR 10.37  

Dear Ms. Zwicker:

     This is in reply to your letter of June 24, 1994, concerning
an untimely request for the extension of a Temporary Importation
under Bond (TIB) by Medicomp, Inc. (Medicomp).

FACTS:

     The subject merchandise, 2 cartons containing an EKG
monitor, were entered on February 23, 1991 under a TIB within
subheading 9813.00.30 of the Harmonized Tariff Schedule of the
United States (HTSUS).  The TIB period expired on February 22,
1992.  Since the merchandise had not been exported and no
extension had been requested, liquidated damages were assessed on
April 14, 1992.

     By a letter dated June 3, 1992, with a Customs Form (CF)
3173 attached, broker for the importer requested extension of the
TIB.  It was stated that the request for extension was untimely
due to maternity leave provided the Medicomp employee who
maintained the records for the TIB.  

ISSUE:

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

LAW AND ANALYSIS:

     Under subheading 9813.00.30, HTSUS, articles intended solely
for testing, experimental or review purposes 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. 

     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).

     In addition, relief was not granted in HQ 224509 of June 9,
1993, in which a TIB extension was untimely filed due to the
employee responsible for the TIB leaving his job and not being
replaced until after the expiration of the bond period.  We found
in that case that the TIB extension was overlooked essentially
due to a personnel change, and denied the request for the
extension based on the lack of due diligence.
     
     In this instance, the reason offered for untimely request
for extension of the TIB was "due to maternity leave provided the
employee of Medicomp who maintains the records on these
transactions."  This situation 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. 
Obviously, the importer had knowledge and forewarning that the
employee responsible for the TIB was going on maternity leave;
thus, the importer could have taken actions to ensure the TIB
extension was timely filed.  Consequently, the failure in this
case to timely file the TIB extension was due to a lack of due
diligence, and the TIB extension 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
                              Chief
                              Entry Rulings Branch