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(0) "Guaranteed specifications" means those pertinent specifications for the foreign article and comparable domestic instruments, whereby the respective manufacturers define as an explicit part of the contractual agreement with the purchaser, for each related capability, the minimum performance level that the user may routinely expect to achieve as well as the conditions under which the specified minimum level was established by the manufacturer. [37 F.R. 3892, Feb. 24, 1972; 37 F.R. 4325, Mar. 2, 1972) $ 701.3 Application for duty-free entry.

(a) Any public or private nonprofit institution established for educational or scientific purposes desiring to obtain duty-free entry of an instrument or apparatus under item 851.60 shall file an application in seven copies on Form OIPF-768, “Request for duty-free entry of scientific instrument or apparatus." Applications and attachments shall comply with the language requirement and other provisions of g 701.1(c). Application forms may be obtained from the Deputy Assistant Secretary, from field offices of the U.S. Department of Commerce, or from U.S. Customs ports. For a period of 60 days from date of publication of this revision in the FEDERAL REGISTER, Form BDSAF-768, “Request for duty-free entry of scientific instruments and apparatus,” may be used if Form OPF-768 is not yet available.

(b) The applicant should answer all applicable questions appearing on Form OIPF-768 in accordance with the instructions set forth on the form and in this part. Unless otherwise indicated from context, terms used in the form have the meanings defined in § 701.2. Questions 5, 7, 8, and 9, together with the certification on the reverse of the form, shall be completed by the person in the applicant institution under whose direction and control the foreign instrument will be used and who is thoroughly familiar with the specific program requiring an instrument, apparatus or accessory having the pertinent specifications of the foreign instrument. Two of such forms shall be executed in original by the aforementioned person, and five shall be true copies. The seven completed copies of the form, with the attachments required to complete the form fully, should be mailed or delivered to:

Bureau of Customs, Attention: Tariff Classification Rulings, Washington, D.C. 20226.

(c) Only one application shall be required for a foreign instrument and its accompanying accessories. A single application may be submitted for any quantity of the same type or model of the foreign instrument, apparatus or accessory, provided that all of that quantity are intended to be used for all of the purposes described in the response to question 7. If the purchase order includes different types or models of the same general category of the foreign instrument, and its accompanying accessories, a separate application shall be submitted for each type or model although all may be intended for the same purposes. 8 701.4 Description of article.

The specifications provided by the manufacturer of the foreign instrument or facsimile thereof shall be included in the response to question 5 of the application form. These specifications shall be in a form that permits comparison with the specifications for comparable domestic instruments, apparatus, or accessories. If the technical nature of the foreign instrument, apparatus, or accessory is such that the specifications for a performance capability may vary according to variations in test procedures, sample material, sample size, and other parameters, the specifications for the article shall identify the relevant parameters. In the case of produced on order or custom-made instruments, apparatus, or accessories, the response to question 5 shall include a statement from the manufacturer of the foreign instrument attesting to the degree of compliance with purchaser's specifications. & 701.5 Intended purposes.

The response to question 7 of the application form shall describe the intended purposes of the article in sufficient detail to permit identifying each specification of the article that is alleged to be pertinent with the particular purpose(s) and the related objective(s) for the accomplishment of which the specification is claimed to be necessary. If the article is intended to be used in both research and educational programs, the purposes and relevant objectives of each program shall be described separately. Programs that may be undertaken in some unspecified future period shall not be considered in the comparison,

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$ 701.6 Justification for duty-free entry.

In response to question 8 of the application form, the applicant shall justify the request for duty-free entry of the article and accompanying accessories on the basis of either scientific equivalency or excessive delivery time.

(a) Scientific equivalency. (1) The justification shall include a statement that an instrument, apparatus, or accessory of the same general category as the article is or is not being manufactured in the United States. If any instrument, apparatus, or accessory of the same general category is being manufactured in the United States, without regard to the degree of comparability with the article, the applicant shall justify the nonequivalency of such instrument, apparatus, or accessory.

(2) The applicant shall furthe: justify that an instrument, apparatus, or accessory being manufactured in the United States, whether or not of the same general category, is of equivalent scientific value to the article for such purposes as described in response to question 7.

(3) In justifying nonequivalency, the comparison of the alleged pertinent specifications of the article shall be made with similar specifications of the most closely comparable instrument being manufactured in the United States. In making the comparison only the article and accompanying accessories described in response to question 5 and the purposes described in response to question 7 shall be considered. The planned purchase of additional accessories or the planned conversion of the article at some unspecified future time, for programs that may be undertaken in some unspecified future period, shall not be considered in the comparison.

(b) Excessive delivery time, without regard to the scientific equivalency of an available domestic instrument. The applicant should set forth the shortest delivery times quoted by the manufacturer of the foreign article and the manufacturer(s) of the equivalent domestic instrument or apparatus from the place of shipment to the site where the instrument or apparatus is to be delivered. The applicant should also state how the difference in such delivery times will seriously impair the purposes described in response to question 7. [37 F.R. 3892, Feb. 24, 1972; 37 F.R. 4325, Mar. 2, 1972]

The response to question 9 of the application form should indicate the efforts made by the applicant to ascertain whether there was being manufactured in the United States an instrument, apparatus, or accessory of equivalent scientific value to the foreign article for the purposes described in response to question 7, as well as the reasons for the applicant's selection of the particular type or model for comparison with the article in response to question 8c when more than one type or model of the same manufacturer was available. If one or more manufacturers of domestic instruments were afforded an opportunity to bid, the response to question 9 should indicate the manner in which such opportunity was offered, such as a formal invitation to bid that included a description of applicant's technical requirements. Copies of any correspondence between the applicant and domestic manufacturers (including invitations to bid and replies thereto) should be attached to the application form. [37 F.R. 3892, Feb. 24, 1972; 37 F.R. 4325, Mar. 2, 1972] 8 701.8 Denial without prejudice to re

submission. The Deputy Assistant Secretary may, at any stage in the processing of an application, deny an application without prejudice to its resubmission, if the application contains a deficiency which, in his opinion, prevents its consideration on its merits. The Deputy Assistant Secretary shall state the deficiencies of the application in writing when making such a denial. copy of the notice of such denial shall be transmitted to the Secretary of Health, Education, and Welfare and the Commissioner of Customs. A copy shall also be transmitted to the district director of Customs for the port of entry concerned, if the information requested in question 10 of the application form has been furnished by the applicant by the time the notice of denial without prejudice to resubmission was being prepared. The applicant shall on or before the 20th day following the date of such notice, inform the Deputy Assistant Secretary whether it intends to resubmit another application for the same article for the same intended purposes to which the denied application relates. The applicant shall then resub

mit the new application on or before the 90th day following the date of the notice of denial without prejudice to resubmission, unless an extension of time is granted by the Deputy Assistant Secretary in writing prior to the expiration of the 90-day period. The resubmitted application shall indicate in the space provided the docket number of the original application. If the applicant fails, within the applicable time periods specified above, to either (a) inform the Deputy Assistant Secretary whether it intends to resubmit another application for the same article to which the denial without prejudice to resubmission relates, or (b) resubmit the new application, the prior denial without prejudice to resubmission shall have the effect of a final decision by the Deputy Assistant Secretary on the application within the context of $ 701.11. In such a case, the Deputy Assistant Secretary shall transmit a summary of the prior denial without prejudice to resubmission to the FEDERAL REGISTER for publication, to the Commissioner of Customs, and to the applicant. At the same time, he shall make a copy of the record available for public review. $ 701.9 Public notice and opportunity

to present views. (a) Publication of notice. Upon receipt from the Commissioner of Customs of an application that has been found by him to be in accordance with applicable regulations, the Deputy Assistant Secretary shall assign it a docket number and, unless application is denied without prejudice to resubmission under $ 701.8, cause an appropriate notice to be published in the FEDERAL REGISTER to afford reasonable opportunity for presentation of views with respect to the question “whether an instrument or apparatus of equivalent scientific value for the purposes for which the article is intended to be used is being manufactured in the United States.” (Headnote 6(c) to part 4 of schedule 8.) The complete notice shall include the date on which the Commissioner of Customs received the application, the docket number and applicant's answer to questions 1, 2, 5, and 7 of the application form. The date of the last day of the period for comment shall be 20 days after the date on which the notice of the application is published unless a later date for such last day is published in the notice. As soon as the notice of an application is filed with the FEDERAL REG

ISTER, the Deputy Assistant Secretary shall make a copy of the application available for public review during ordinary business hours.

(b) Additional requirements applicable to comments. Persons who are authorized by headnote 6(e) to part 4 of schedule 8 to appeal an adverse finding upon a question or questions of law to the U.S. Court of Customs and Patent Appeals (hereinafter called "parties”) and who wish to comment must submit their views and comments in one of the formats stated in paragraph (c) of this section. View's and comments from other interested persons and Government agencies will be received in any written form complying with $ 701.1(c); however, one of the formats of paragraph (c) of this section should be used if feasible. Any comment, to be placed upon the record, must be submitted in three copies and must state the name and address of the person submitting the comment and the docket number of the application to which the comment applies. Since each application file must be complete in itself, a separate set of copies of a comment must be furnished for each application to which the comment pertains, even though the sets of copies pertaining to two or more applications may be identical. Comments should be addressed to the Deputy Assistant Secretary.

(c) Format for comments. Comments favoring the granting of an application should be in the form of supplementary answers to the applicable questions on the application form, and should avoid duplication on the content of the application insofar as is practicable. Comments opposing the granting of an application should be in the following form:

(1) State name and address of the party commenting.

(2) State the docket number of the application to which the comment applies.

(3) List instruments or apparatus considered by the party to be scientifically equilavent to the foreign instrument and its accompanying accessory(ies). Provide pertinent specifications for instruments or apparatus manufactured by the party.

(4) Direct the comments to the applicant's response to question 8 and, with respect to each specification of the article listed as pertinent therein, demonstrate

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(i) That the specification can

be

ended as offers to provide additional inequaled or exceeded with the instru formation (see paragraph (c) of this ment or apparatus described in subpara section) to the extent that they contain graph (3) of this paragraph; or

factual information, as contrasted with (ii) That although the instrument or arguments, explanations or recommenapparatus differs in design from the ar dations. ticle, it is nonetheless scientifically equiv (b) The Deputy Assistant Secretary alent because it is as capable as or better may add to the record such additional than the article in fulfilling the pur

written factual information available pose(s) relevant to the specification; or within the executive branch of the Gov

(iii) The specification is not pertinent ernment, and such printed information because it does not relate to one or more generally available to the public, as he purposes described by the applicant in deems appropriate and pertinent. He: response to question 7, being rather a may also obtain for the record an opinconvenience or representing personal ion on any issue before him and reasons: preferences, cost factors and the like. therefor from any agency of the Govern

(5) Where the comments regarding ment which he regards as having par-subparagraph (4) (i) or (ii) of this para ticular competency in the field in graph relate to a particular accessory or question. optional device offered by the domestic (c) If it appears to the Deputy Assistmanufacturer, cite the type, model, or ant Secretary that the information in other catalog designation of the acces the record is not sufficient to enable him sory or device and include the specifica to render a decision, if the action of de-. tions therefor in the comments.

nial without prejudice to resubmission: (6) Where the justification for duty appears to be inappropriate, and if it furfree entry is based on excessive delivery ther appears that certain additional time, show-whether

factual information will cure the insuf(i) Such instrument or apparatus are

ficiency of the record, the Deputy Assistas a general rule either produced for

ant Secretary, in his discretion, may stock, produced on order, or are cus

request and place in the record such adtom-made; and

ditional factual information as he feels (ii) An instrument or apparatus of

will enable him to render a decision from equivalent scientific value to the article,

the party or those parties that appear for the purposes described in response

best suited to provided the information.. to question 7 could have been produced

The Deputy Assistant Secretary may atand delivered to the applicant within

tach appropriate conditions and time a reasonable time following the receipt

limitations upon the provision of such of the order.

information, and may draw appropriate

inferences from the failure of a party to (7) Indicate whether the applicant afforded the domestic manufacturer an op

provide the information requested from portunity to furnish an instrument or

him. The Deputy Assistant Secretary

shall not, under this procedure, place apparatus of equivalent scientific value to the article for the purposes described

arguments, explanations or recommen

dations upon the record. The Deputy Asin response to question 7 and, if such

sistant Secretary may also, in his be the case, whether the applicant submitted a formal invitation to bid that in

discretion, request from any party or cluded the technical requirements of the

parties to a proceeding hereunder, and applicant.

place in the record, such additional af

firmations as he deems necessary to en-$ 701.10 Additions to the record.

able him to render a decision. (a) The Deputy Assistant Secretary § 701.11 Review and findings of the Deshall assemble the application, and those

partment of Commerce. comments meeting the requirements of $ 701.9 into a record. After the period

(a) Scientific equivalency. The deter-. for comment ($ 701.9(a)) has ended, he

mination of scientific equivalency shall shall not place explanations, arguments,

be based on a comparison of the pertior recommendations, other than those

nent specifications of the foreign instruobtained from any selected Federal

ment with similar pertinent specifica-. agency (ies) pursuant to paragraph (b)

tions of the most closely comparable of this section, in the record in any form.

domestic instrument. The guaranteed He shall treat written comments re specifications for the foreign article will ceived after the period for comment has be considered in the comparison, includ-

or

ason

ing any amendments to the guaranteed facturing experience, essential to bridgspecifications which have been inserted ing the gap and the time required by in the record. Similarly, the guaranteed the domestic manufacturer to produce specifications for the most closely com an instrument, apparatus, or accessory parable domestic instrument will be con to purchaser's specifications. sidered, including any amendments to (c) Excessive delivery time. Dutythe guaranteed specifications which have free entry of the article shall be conbeen inserted in the record. In the com sidered justified without regard to parison, the Deputy Assistant Secretary whether there is being manufactured in may consider any reasonable combina the United States an instrument, aption of domestic instruments and acces paratus, accessory of equivalent sories as being comparable to a foreign scientific value for the purposes described instrument that combines two or more in response to question 7 of the applifunctions in an integrated unit, if the cation form, if the delay in obtaining combination of domestic instruments and such domestic instrument, apparatus, or accessories is capable of accomplishing accessory (as indicated by the difference the purposes for which the foreign in between the delivery times quoted by strument is intended to be used. If the domestic manufacturer and foreign Deputy Assistant Secretary finds that at manufacturer) will seriously impair the east one domestic instrument

accomplishment of the purposes. In deable combination of domestic instru termining whether the difference in denents does possess all the pertinent spec livery times is excessive, the Deputy fications of the foreign article, he shall Assistant Secretary shall take into acind that there is being manufactured in count the relevancy of the applicant's he United States an instrument of program to other research programs equivalent scientific value to the foreign with respect to timing, the applicant's nstrument for such purposes as de need to have such instrument, apparatus, scribed in the response to question 7 of or accessory available at the scheduled jhe application form. Otherwise, he shall time for the course(s) in which the arind to the contrary.

ticle is intended to be used, and other (b) Manufactured in the United relevant circumstances. States. An instrument, apparatus, or (d) Decision on the application. The accessory shall be considered as being Deputy Assistant Secretary shall prenanufactured in the United States if it pare a written decision granting or s customarily produced for stock, pro denying the application in whole or in luced on order, or custom-made within part. The decision shall be in the form he United States. In determining of one or more findings stating whether whether a U.S. manufacturer is able an instrument or apparatus of equivalent and willing to produce a produced on scientific value to the article for which order, or custom-made instrument, ap duty-free entry is sought, for the purparatus, or accessory and have it avail poses for which it is intended to be used, able without unreasonable delay to the is or is not being manufactured in the applicant the Deputy Assistant Secre United States, and it shall include a cary shall take into account the normal statement of his reasons for the findcommercial practices, applicable to the ing(s). He shall transmit the decision to production and delivery of instruments, the FEDERAL REGISTER for publication, to apparatus, or accessories of the same the Commissioner of Customs, and to general category. For example, in de the applicant. At the same time, he shall termining whether a domestic manu make a copy of the record available for facturer is able

produce public review. (Copies of materials recustom-made instrument, apparatus, or ceived pursuant to paragraphs (a) and accessory the Deputy Assistant Secre (c) of $ 701.10 which were not entered cary may take into account the pro in the record pursuant to $ 701.10 shall duction experiences of the domestic also be made available for public review. manufacturer with respect to the types The Deputy Assistant Secretary may and complexity of products, the extent dispose of such materials at any time of the technological gap between the after final disposition of the applicanstrument, apparatus, or accessory to tion.) Pursuant to 19 CFR 10.117, the which the application relates and the Deputy Assistant Secretary shall notify manufacturer's customary products, the district director of customs lue the and the availability of the professional district in which entry of the merchanand technical skills, as well as manu dise in question was made, or the Com

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