HQ 225232: Review of Denial of Protest/Application for Further Review 2704-93-103961; 19 U.S.C. 1515(c)

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 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