Review of Denial of Protest/Application for Further Review 2704-93-103961; 19 U.S.C. 1515(c)

HQ 225232 April 21, 1994 PRO-2-05-CO:R:C:E 225232 CB CATEGORY: Entry Sandra Liss Friedman, Esq. Barnes, Richardson & Colburn 475 Park Avenue South New York, New York 10016 RE: Review of Denial of Protest/Application for Further Review 2704-93-103961; 19 U.S.C. 1515(c) Dear Ms. Friedman: This is in reference to your letter of February 18, 1994, on behalf of Wholesale Supply Company, Inc., requesting review of the denial of the application for further review (AFR) in the referenced protest. Your request for review is under the authority of the North American Free Trade Agreement Implementation Act, Title VI (Customs Modernization), Section 617, which amended 19 U.S.C. 1515 by the addition of a new subsection (c). As amended, 19 U.S.C. 1515(c) provides, in part, as follows: (c) If a protesting party believes that an [AFR] was erroneously or improperly denied or was denied without authority for such action, it may file with the Commissioner of Customs a written request that the denial of the [AFR] be set aside. Such request must be filed within 60 days after the date of the notice of the denial. The Commissioner of Customs may review such request and, based solely on the information before the Customs Service at the time of the [AFR] was denied, may set aside the denial of the [AFR] and void the denial of the protest, if appropriate.* * * According to the documents in the file, the protestant filed a timely protest of Customs refusal to reliquidate the subject entry under 19 U.S.C. 1520(c)(1). At the time of the protest, the protestant applied for further review on the basis that the protest "involves questions of law or fact which have not been ruled upon", but no such questions of law or fact were specified. The statutory authority for applications for further review is found in 19 U.S.C. 1515(a) which provides that upon application by the protestant a protest may be subject to further review "under the circumstances and in the form and manner that may be prescribed by the Secretary in regulations. . . ." The Customs Regulations issued under this provision are found in 19 CFR 174.23 - 174.27. Section 174.24 sets out the criteria for further review, i.e., allegation that the decision protested is inconsistent with a ruling of the Commissioner or his designee, or a decision made in any district with respect to the same or substantially similar merchandise; allegation that the decision protested involves questions of law or fact which have not been ruled upon by the Commissioner or his designee or by the Customs courts; and two other criteria which are not applicable in this matter. Section 174.25 provides for the contents required in an application for further review, including "[a] statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in [section] 174.24 which justifies further review." In this case, the application for further review was denied because it did not meet the criteria in 19 CFR 174.24, i.e. no decision with which the liquidation was alleged to be inconsistent was specified and no question of law or fact which had not been ruled upon by the Commissioner or his designee or by the Customs courts was specified. In view of the requirement in 19 CFR 174.13 for setting forth "distinctly and specifically" the nature of and justification for each category, payment, claim, decision, or refusal, we are not persuaded that the denial of the application for further review was erroneously or improperly denied or was denied without authority for such action. Therefore, relief under 19 U.S.C. 1515(c) is not available in this case. Sincerely, John Durant, Director Commercial Rulings Division