The application for further review has been incorporated into the latest version of the protest form (CBP 19) Section V. The criteria for review is set forth under 19 CFR 174.24 / 174.25. Pursuant to §174.24 (and corresponding Block 16 of the protest form CBP 19) protesting party must provide justification.
Parties can make the claim pursuant to 19 CFR §174.24 (b); Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Commonly made mistake is to either fill out the form (i.e. simply mark the check boxes) without providing any justification narrative. Or providing a general narrative somewhere along this lines: “Application for further review is made because there are factual or legal issues that have not been ruled on by this port or the Commissioner of Customs.”
Most of the time it will work. However, knowledgeable CBP officials will deny such AFR (on the grounds of §174.25(b)(3)) citing that the justification does not provide specific information as to which question of law or fact has not been ruled on. They also may cite that it does not meet criteria of §174.24 and §174.25. Most importantly, CBP officials may cite relevant CBP rulings that they use as a guidance for their determination. One such ruling is HQ 966916.
In HQ 966916, the protestant made an application for further review merely alleging that the application “involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.” The AFR was denied on the grounds that protestant did not provide specific information. Moreover, CBP shifts the burden of production and persuasion on a protesting party (“protestant has not provided this office with information indicating which question of law or fact has not been ruled upon … protestant must provide specific information to meet its claim that AFR is warranted”).
To fulfill §174.24 (b) protest criteria protestant must simply be more specific in its justification. When composing justification narrative provide a specific statement along the following lines: Application for further review is made due to questions of law / fact that involve classification/valuation… etc. ____________ (provide specifics of what law or what fact) of product/merchandise _________ (provide specifics: SKU, part number, purchase order, product name … etc. Otherwise increase the risk of the "substantially similar" argument as in HQ 966810). These specific questions pertaining to the specific merchandise in question have not been ruled by this port; have not been ruled by the Commissioner of Customs or his designee; have not been ruled by the Customs courts (Court of International Trade; Court of Appeals for the Federal Circuit).
It is important not to merely cite the regulation and treat the justification as the pro-forma statement of the CFR.
For further information refer to HQ 966916, HQ 966550, HQ 966810.
