pertinent specifications of the foreign instrument. Two of such forms shall be executed in original by the aforementioned persons; five shall be conformed copies. The seven completed copies of the form, with the attachments required to complete the form fully should be filed with the Commissioner of Customs, Attention: Tariff Classification Rulings, Washington, D.C. 20226.

(b) BDSAF-768. The applicant should answer all applicable questions appearing on BDSAF-768. The instructions set forth below are to be followed in completing the form. Unless otherwise indicated from context, terms used in the form have the meanings defined in § 602.1(b).

(1) Question 5 (Description of article). A single application (in the required number of copies) 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 category of instrument, apparatus or accessory, a separate application shall be submitted for each type or model although all may be intended for the same purposes. The specifications of the foreign manufacturer or facsimile thereof shall be included in the response to Question 5. These specifications shall be in a form that permits comparison with customary 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 foreign manufacturer attesting to the degree of compliance with purchaser's specifications.

(2) Question 6 (Serial number(s)). If the serial numbers of the foreign instrument and accompanying accessories are not known when the application is submitted, they shall be supplied in writing to the Administrator promptly when they become known to the applicant.

(3) Question 7 (Intended purposes).

The response to this question 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.

(4) Question 8 (Justification for dutyfree entry)-(i) No instrument, apparatus, or accessory of the same general category is being manufactured in the United States. The term "same general category" shall mean the category in which an instrument, apparatus or accessory is customarily classified in trade directories and product-source lists (electron microscope, mass spectrometers, light microscopes, X-ray spectrometers, and the like). 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 in accordance with subdivision (ii) of this subparagraph.

(ii) No instrument, apparatus, or accessory being manufactured in the United States is of equivalent scientific value to the article for such purposes as described in respsone to Question 7. 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. The term "most closely comparable instrument" shall mean the domestic instrument(s) or apparatus and accessories that most closely fulfill the applicant's technical requirement described in response to Question 7, without regard to differences in cost, design or structural characteristics. 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.

(iii) Excessive delivery time. The applicant should set forth the shortest delivery times quoted respectively 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 the delivery times quoted respectively by the foreign manufacturer and domestic manufacturer(s) will seriously impair the purposes described in response to Question 7.

(5) Question 9 (Basis for response to Question 7). The response to this question 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 6b when more than one type or model of the same manufacturer was available. If domestic manufacturers were afforded an opportunity to bid, the response to Question 9 should indicate the manner in which such opportunity was offered, such as 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 appended to Form BDSAF-768.

(6) Question 10 (Information on entry of article). If the required information regarding the entry of the article is not available to the applicant at the time form BDSAF-768 is prepared, this information shall be transmitted promptly to the Administrator as soon as it becomes known to the applicant.

§ 602.3 Review of the application by the Commissioner of Customs.

Applications will be processed by the Commissioner of Customs as set forth in 19 CFR 10.116. Applicants shall inform the Administrator of entry number, date of entry, port of entry, and the customs district through which the foreign instrument has been entered and the ap

plication number to which such entry relates, as prescribed in 19 CFR 10.116 (c).

§ 602.4 Public notice of application 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 Administrator shall assign it a docket number, subject to § 602.5(e), 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. 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 REGISTER, the Administrator shall make a copy of the application available for public review during ordinary business hours.

(b) Additional requirements applicable to comments. Persons who are auhorized by Headnote 6(e) to appeal an adverse finding to the 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. Views and comments from other interested persons and Government agencies will be received in any written form complying with § 602.1(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 (3) 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 through the sets of copies per

taining to two or more applicatons may be identical. Comments should be addressed to the Administrator.

(c) Formats for comments. Comments favoring the granting of an application should be in the form of supplementary answers to pertinent questions in § 602.2, and should avoid duplication of 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 equivalent to the foreign instrument and its accompanying accessory(ies) and to be presently manufactured in the United States. 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 (accompanying accessories) listed as pertinent therein demonstrate—

be

(i) That the specification can equaled or exceeded with the instrument or apparatus (accompanying accessories) described in subparagraph (3) of this paragraph; or

(ii) That although the instrument or apparatus (accompanying accessory) differs in design, it is nonetheless functionally equivalent (superior) because it is as capable as or better than the article in fulfilling the purpose(s) relevant to the specification; or

(iii) The specification is not pertinent because it does not relate to one or more purposes described by the applicant in response to Question 7, being rather a convenience or representing personal preferences, cost factors and the like.

(5) Where the comments regarding subparagraph (4) (i) or (ii) of this paragraph, relate to a particular accessory or optional device offered by the domestic manufacturer, cite the type, model, or other catalog designation of the accessory or device and include the specifications therefor in the comments.

(6) Where the justification for dutyfree entry is based on excessive delivery time, show whether

(i) Such instruments or apparatus are as a general rule either manufac

tured for stock, produced on order, or are custom-made; and

(ii) An instrument or apparatus of equivalent scientific value to the article, for the purposes described in response to Question 7 could have been produced and delivered to the applicant within a reasonable time following the receipt of the order.

(7) Indicate whether the applicant afforded the domestic manufacturer an opportunity to furnish an instrument or apparatus (accessories) of equivalent scientific value to the article for the purposes described in response to Question 7 and, if such be the case, whether the applicant submitted a formal invitation to bid that included the technical requirements of the applicant.

§ 602.5

Review and findings of the Department of Commerce.

(a) Effect of expiration of the period for comment. The Administrator shall assemble the application, and those comments meeting the requirements of § 602.4(b), into a record. After the period, for comment, (§ 602.4(a)), has ended, he shall not place explanations, arguments, or recommendations, other than those obtained from any selected Federal agency (ies) pursuant to paragraph (b) of this section, in the record in any form. He shall treat written comments received after the period for comment has ended as offers to provide additional information (see paragraph (c) of this section) to the extent that they contain factual information, as contrasted with arguments, explanations or recommendations.

(b) Administrator's additions to the record. The Administrator may add to the record such additional written factual information available within the Executive Branch of the Government, and such printed information generally available to the public, as he deems appropriate and pertinent. He may also obtain for the record an opinion on any issue before him and reasons therefor from any agency of the Government which he regards as having particular competency in the field in question.

(c) Additional information from parties. If it appears to the Administrator that the information in the record is not sufficient to enable him to render a decision, if the action of denial without prejudice (paragraph (e) of this section) appears to be inappropriate, and if it further appears that certain additional

specific factual information will cure the insufficiency of the record, the Administrator in his discretion may request and place in the record such additional factual information as he feels will enable him to render a decision, from that party or those parties that appear best suited to provide the information. The Administrator may attach appropriate conditions and time limitations upon the provision of such information, and may draw appropriate inferences from the failure of a party to provide the information requested from him. The Administrator shall not, under this procedure, place arguments, explanations or recommendations upon the record. The Administrator may also, in his discretion, request from any party or parties to a proceeding hereunder, and place in the record, such additional affirmations as he deems necessary to enable him to render a decision.

(d) Decision on the application. The Administrator shall prepare a written decision granting or denying the application in whole or in part. The decision shall be in the form of one or more findings stating whether an instrument or apparatus of equivalent scientific value to the article for which duty-free entry is sought, for the purposes for which it is intended to be used, is or is not being manufactured in the United States, and it shall include a statement of his reasons for the finding(s). He shall transmit the decision 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. (Copies of materials received pursuant to paragraphs (a) and (c) of this section which were not entered in the record pursuant to this section shall also be made available for public review. The Administrator may dispose of such materials at any time after final disposition of the application.) Pursuant to 19 CFR 10.117, the Administrator shall notify the district director of customs for the district in which entry of the merchandise in question was made, or the Commissioner of Customs if the district of entry is not known to the Administrator, of the final disposition of each application. If the Administrator thereafter receives notice from the applicant in accordance with 19 CFR 10.116(c), he shall then notify said district director of the final disposition of the application. For purposes of this subsection, disposition of an

application shall be deemed final (1) when 20 days have elapsed after publication of the decision in the FEDERAL REGISTER and no appeal has been taken pursuant to § 602.1, or (2) if such appeal has been taken, when final judgment is made and entered by the U.S. Court of Customs and Patent Appeals.

(e) Denial without prejudice to resubmission. The Administrator may deny an application without prejudice to its resubmission but otherwise in accordance with paragraph (d) of this section, if the application contains a deficiency which, in his opinion, prevents its consideration on its merits. The Administrator 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 form BDSAF768 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 Administrator whether it intends to resubmit another application for the same article 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 Administrator in writing prior to the expiration of the 90-day period. The resubmitted application shall indicate in the space provided therefor in form BDSAF-768 the docket number of the original application. If the applicant fails, within the applicable time periods specified above, to either (1) inform the Administrator whether it intends to resubmit another application for the same article to which the denial without prejudice to resubmission relates, or (2) resubmit the new application, the prior denial without prejudice to resubmission shall have the effect of a final decision by the Administrator on the application within the context of paragraph (d) of this section. In such a case, the Administrator 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.

(f) Outstanding denials with prejudice to resubmission. An applicant whose application has been denied without prejudice to resubmission prior to the effective date of the regulations in this part, and who has not formally withdrawn the application shall on or before the twentieth day following the effective date of the regulations in this part inform the Administrator whether it intends to submit another application for the same article to which the denied application relates. The applicant shall then resubmit the new application on or before the ninetieth day following the effective date of the regulations in this part. The resubmitted application shall indicate in the space provided therefor in form BDSAF-768 the docket number of the the original application. If an applicant fails, within the applicable time periods specified above, to either (1) inform the Administrator whether it intends to resubmit another application for the same article to which the denial without prejudice to resubmission relates, or (2) resubmit the new application, the prior denial without prejudice to resubmission shall have the effect of a final decision by the Administrator on application within the context of paragraph (d) of this section.

the

In such cases, the Administrator 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.

APPENDIX A-SAMPLE FORM BDSAF-768 U.S. DEPARTMENT OF COMMERCE, BUSINESS AND DEFENSE SERVICES ADMINISTRATION, AND TREASURY DEPARTMENT BUREAU OF CUSTOMS

Request for Duty-Free Entry of Scientific Instruments or Apparatus

Mail application to: Bureau of Customs, Washington, D.C. 20226.

For use only by Bureau of Customs:
Date received by Customs
Customs' application number

For use only by Department of Commerce:
Docket number

TO BE COMPLETED BY APPLICANT

NOTE: To avoid delays in processing this application due to omission of essential information, study the section of the regula

A firm intention, in event of favorable action on this application to place a bona fide order for the article within the time specified by law:

5. Description of the article and accompanying accessories, for which duty-free entry is requested (section 602.2(b)(1)).

a. Commercially standard catalogued instrument or apparatus (accessories):

(1) Identify the article and each accompanying accessory, according to the foreign manufacturer's type or model number.

(2) Attach the foreign manufacturer's literature, or facsimiles thereof, which describe the article (accessories) and specifies the structural, operational, performance and other characteristics of the article (accessories).

b. Special-order variant of standard catalogued instrument or apparatus, which has been significantly modified according to applicant's specifications, with respect to structural, functional, and/or performance characteristics.

(1) Identify the article according to its standard nomenclature and foreign manufacturer's type or model number.

(2) Attach a copy of the applicant's specifications describing the required modifications.

(3) Attach a copy of the literature describing the foreign article when sold as a standard instrument or apparatus.

(4) Indicate the extent to which each of the performance specifications applicable to the standard instrument or apparatus have been increased or decreased, if the modifications resulted in a change in the original performance parameters.

c. Article custom-made entirely to applicant's specifications.

(1) Attach a copy of applicant's specifications.

(2) Attach a statement from foreign manufacturer indicating whether the article fulfills applicant's specifications described in