August 29, 2011|
OT:RR:CTF:ER H121389 TT
Mr. Stephen Kremer, Port Director U.S. Customs and Border Protection Atlanta Hartsfield International Airport International Concourse E, 3rd Floor 12700 Spine Road Atlanta, GA 30320
Re: TIB Extension Request for Entry No. J50-01086667
Dear Mr. Kremer:
This is in reply to your letter dated, August 12, 2010, concerning a Temporary Importation Bond (“TIB”) Extension Request for TIB Entry Number J50-01086667 (Wamar Technologies, LLC). We received this application on August 25, 2010, and our response follows.
On December 30, 2008 Wamar Technologies, LLC (“Wamar”) imported two vehicles, 2009 Toyota Land Cruiser, VIN JTMHV09J49402357, and 2009 Toyota Hilux 4WD, VIN MR0FR22GX9-0658431, using TIB J5001086667. These vehicles were classified under the Harmonized Tariff Schedule of the United States (“HTSUS”) as 8703.33.00.45 and 8703.32.00.10 respectively. This TIB bond expired on December 12, 2009. Wamar filed an Application for Extension of Bond for Temporary Importation, CBP Form 3173, dated, July 7, 2010.
Accompanying its TIB extension request, Wamar, included a letter dated, July 8, 2010. In its letter, Wamar explained that it believes its request for an extension should be granted for the following reasons: 1) due to the economic downturn it released an
employee whose responsibilities included the oversight of imports and exports and this position remained vacant; 2) its staff has no recollection of being advised by the surety company of its bond’s expiration, options or regulatory obligations; 3) its facility’s lease terminated in August-September 2009, causing it to relocate to another city in September 2009; and 4) it received its first notice regarding this TIB expiring on June 28, 2010. Your office received this letter, along with CBP Form 3173, on July 13, 2010. This request was then forwarded to our office on August 12, 2010.
The TIB provisions are found in U.S. Note 1 of subchapter XIII, Chapter 98, HTSUS. This Note states, “[a]rticles 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 1 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 CBP regulations pertaining to TIB’s are found in 19 C.F.R. § 10.31-10.40. CBP regulation 19 C.F.R. § 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 CBP Form 3173. Section 10.37 provides that untimely requests for an extension of time for exportation are to be referred to CBP Headquarters. Generally, extensions based upon untimely requests are only granted when: (1) the articles covered by the entry remain in the country; (2) there is no evidence of use of the articles 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 222843 (December 10, 1990). CBP has sanctioned untimely requests for extension when the importer provided a reasonable explanation for the untimely request. For example, we have held that an extension was warranted when it was shown that the employee who was responsible for the TIB suffered the death of her husband. See HQ 219659 (July 8, 1987). We have not granted relief in situations where the TIB expired due to personnel change. See HQ 223699 (May 15, 1992). Similarly, we have not granted relief when the responsible employee was so busy with other tasks that he or she did not keep track of the TIB expiration. See HQ 222800 (February 4, 1991).
The situation in this case is not one in which circumstances are so extraordinary that relief can be granted. Rather, the circumstances exhibit a lack of due diligence. First, Wamar explained that a personnel change was the cause of its tardiness. However, we previously determined in HQ 223699 that personnel change is not enough to warrant granting an extension as it is not an extraordinary circumstance, but an occurrence that is to be expected in most businesses. Next, Wamar argued that that its staff has no recollection of being advised by the surety company of its bond’s expiration, options or regulatory obligations. Ensuring compliance with CBP regulations and requirements is the responsibility of Wamar. 19 U.S.C. § 1484(a). Reliance on a different entity to ensure compliance is a lack of due diligence. Third, Wamar stated that it relocated its facilities in August-September 2009. However, it does not explain how this event caused it to not file for an extension of its TIB. Additionally, this was months before its December 12, 2009, TIB expiration. Lastly, Wamar explains it first received notice of issues with its TIB on June 28th, 2010, through CBP’s facsimile of a Notice of Penalty or Liquidated Damages Incurred & Demand for Payment. As there is no requirement for CBP to give notice of a TIB’s expiration, this is not a reasonable ground upon which to grant an extension. In short, Wamar has provided no evidence demonstrating extraordinary circumstances.
Sufficient evidence has not been provided to support the granting of the untimely filed request to extend the TIB in this case. The request to grant an extension of the temporary importation period under 19 C.F.R. § 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 C.F.R. Part 172, concerning liquidated damages which should be handled by your office. Please inform the importer of our decision.
Carrie L. Owens Chief Entry Process & Duty Refunds Branch