AUTHORITY: Subsection 6(c), Pub. L. 89651, 80 Stat. 899 (19 U.S.C. 1202); Department of Commerce Organization Order 10-3, 39 FR 27484; Organization and Function Order 44-1 of the Domestic and International Business Administration, 38 FR 9324.

SOURCE: 37 FR 3892, Feb. 24, 1972, unless otherwise noted. Redesignated at 40 FR 12253, Mar. 18, 1975.

§ 301.1 General provisions.

(a) The purpose of this part is to set forth regulations relating to the responsibilities vested in the Secretary of Commerce under the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89-651; 80 Stat. 897; see particularly section 6(c) thereof and headnote 6(f) to part 4 of Schedule 8, Tariff Schedules of the United States, 19 U.S.C. 1202 as added by said section 6(c). The Act provides, inter alia, that any nonprofit institution (whether public or private) established for educational or scientific purposes may obtain duty-free treatment of certain instruments and apparatus entered for its use, if the Secretary of Commerce determines that no instrument or apparatus of equivalent scientific value to such article, for the purposes for which the instrument of apparatus is intended to be used, is being manufactured in the United States. The responsibilities of

the Secretary of Commerce under the Act have been delegated to the Assistant Secretary for Domestic and International Business of the Department of Commerce, with power or redelegation, by Department of Commerce Organization Order 10-3 of July 5, 1974, who has redelegated these responsibilities to the Deputy Assistant Secretary for Resources and Trade Assistance by Domestic and International Business Administration Organization and Function Order 44-1, effective November 17, 1972.

(b) All references in this part to items, headnotes, schedules or parts, unless otherwise indicated, are references to items, headnotes, schedules or parts of the Tariff Schedules of the United States (19 U.S.C. 1202).

(c) Applications for duty-free entry of foreign instruments, and comments submitted in accordance with § 701.9, shall be written, typed or printed, in the English language and shall be legible. Copies of relevant documents, such as manufacturers' specifications, advertisements for bids, correspondence relating to availability of instruments or apparatus or the like, should be made a part of an application or comments, and be fully identified. Each copy should be permanent and legible, and shall be attached as part of the response to the question to which it relates. A document in a foreign language shall be accompanied by an accurate translation.

(d) The Educational, Scientific, and Cultural Materials Importation Act of 1966 vests certain responsibilities in the Secretary of the Treasury in connection with the duty-free entry of scientific instruments and apparatus. Regulations of the Bureau of Customs pertaining to receipt and processing of applications, exclusion of certain articles from duty-free entry, procedures for entry and liquidation, disposition of articles entered dutyfree, and other relevant matters are set forth in 19 CFR 10.114-10.119.

[37 FR 3892, Feb. 24, 1972. Redesignated and amended at 40 FR 12254, Mar. 18, 1975]

Assistant

Secretary"

(a) "Deputy means the Deputy Assistant Secretary for Resources and Trade Assistance of the Department of Commerce, or such official as he may designate to act in his behalf.

(b) "Instruments and apparatus" embraces only instruments and apparatus classifiable under the tariff items specified in headnote 6(a) of part 4 of Schedule 8. A combination of a basic instrument or apparatus and additional components shall be treated as a single instrument or apparatus provided that, under normal commercial practice, such combination is considered to be a single instrument or apparatus and provided further that the applicant has ordered or, upon favorable action on its application, firmly intends to order the combination as a unit.

(c) "Accessory" has the meaning which it has under normal commercial usage. An accessory for which duty-free entry is sought under item 851.60 shall be the subject of a separate application when it is not an accompanying accessory.

(d) "Accompanying accessory" means an accessory for a foreign instrument that is listed as an item in the same purchase order and that is necessary for accomplishment of the purposes for which the foreign instrument is intended to be used.

(e) "Article" means a foreign instrument and its accompanying accessories, unless context indicates otherwise.

(f) "Foreign instrument" means an instrument, apparatus, or accessory for which duty-free entry is sought under item 851.60. However, "foreign instrument" does not include repair components, which enter under item 851.65.

(g) "Domestic instrument" means an instrument, apparatus, or accessory which is manufactured in the United States.

(h) "United States" includes only the several States, the District of Columbia, and the Commonwealth of Puerto Rico.

(1) "Produced for stock" means an instrument, apparatus, or accessory which is manufactured, on sale and available from a stock.

(j) "Produced on order” means an instrument, apparatus, or accessory which

a manufacturer lists in a current catalog and is able and willing to produce and have available without unreasonable delay to the applicant.

(k) "Custom-made" means an instrument, apparatus or accessory, which a manufacturer makes to purchaser's specifications.

(1) "Same general category" means the category in which an instrument, apparatus or accessory is customarily classified in trade directories and product-source lists, e.g., electron microscopes, mass spectrometers, light microscopes, X-ray spectrometers, and the like.

(m) "Most closely comparable instrument" means the domestic instrument that most closely fulfills the applicant's technical requirement described in response to question 7 of the application form, without regard to differences in cost, design or structural characteristics.

(n) "Pertinent specifications" of an instrument, apparatus, or accessory means those structural, operational, performance, and other characteristics specified for the instrument, apparatus, or accessory that are necessary for the accomplishment of the purposes described by the applicant in response to question 7 of the application form, excluding from consideration those purposes excluded by headnotes 1 or 6(a) to Part 4 of Schedule 8. The term does not extend to such characteristics as size, durability, complexity, ease of operation, ease of maintenance and versatility, unless the applicant can demonstrate that they are necessary for accomplishing the purposes for which the article is intended to be used. The term does not include cost differences between the domestic and foreign instrument, apparatus or accessory.

(o) "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. Redesignated and amended at 40 FR 12254, Mar. 18, 1975]

§ 301.3

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 DIB-338P, "Request for duty-free entry of scientific instruments or apparatus" (formerly OIPF-768). Applications and attachments shall comply with the language requirement and other provisions of § 301.1(c). Application forms may be obtained from the Deputy Assistant Secretary, from District Offices of the U.S. Department of Commerce, or from U.S. Customs ports. For a period of 60 days from the effective date of this revision, Form OIPF-768, "Request for duty-free entry of scientific instruments or apparatus," may be used if Form DIB-338P is not yet available.

(b) The applicant should answer all applicable questions appearing on Form DIB-338P 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 § 301.2. Questions 5, 7, 8, 9, and 12 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:

United States Customs Service
Attention: Classification and Value
Washington, D.C. 20229

(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.

[40 FR 12254, Mar. 18, 1975]

§ 301.4 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.

§ 301.5 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. § 301.6 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 further 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 FR. 8892, Feb. 24, 1972; 37 F.R. 4325, Mar. 2, 1972]

§ 301.7 Availability of domestic instru

ment.

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]

§ 301.8 Denial without prejudice to resubmission.

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. A 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 resubmit 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 specifled 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

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