judgment are reasonable to take into account under the circumstances of a particular proceeding.

(g) Entry and liquidation. Entry and liquidation procedures are prescribed in 19 CFR 10.114(d).

§ 602.2 Application for duty free entry of foreign instruments.

(a) Additional requirements applicable to applications. Business and Defense Services Administration Form 768 (BDSAF 768), "Request for duty free entry of scientific instruments and apparatus", a sample of which is set forth as Appendix A hereto and is hereby made a part hereof, shall be used in the preparation of an application. Seven copies of the form shall be completed in accordance with paragraph (b) of this section. Two of such forms shall be executed by an officer of the applicant; 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. Except as provided in paragraph (c) of this section, applicant should answer all applicable questions appearing on BDSA Form 768. The following instructions 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 4 (Description of article). The response to Question 4 of the form may describe any quantity of a foreign instrument and its accompanying accessories if the intended uses are the same for all of the quantity included in the application. If differing uses are intended, then separate applications are required for each quantity of the foreign instrument having the same intended uses. In completing Question 4, clearly identify any articles which are accompanying accessories (as contrasted with additional components which, in combination with a basic instrument or apparatus, are considered under § 602.1(b) (1) to be a single instrument or apparatus).

(2) Question 5 (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 uses). The response to this question should state the purposes for which the foreign instrument and accompanying accessories are intended to be used, clearly identifying the scientific objectives intended to be accomplished.

(4) Questions 8 and 9 (Specifications of imports). Response to these questions should include:

(i) Pertinent manufacturer's specifications for the foreign instrument and accompanying accessories;

(ii) Additional pertinent specification information, if any is known to applicant, augmenting the manufacturer's specifications-state pertinent actual specifications if applicant believes actual specifications differ from manufacturer's specifications;

(iii) Information known to the applicant, if any, (a) which substantiates or tends to substantiate the accuracy of said manufacturer's specifications or, (b) if the applicant believes that the foreign instrument's actual specifications are other than as stated by its manufacturer, which substantiates or tends to substantiate the accuracy of the specifications believed by the applicant to be said instrument's actual specifications.

NOTE: The response to these Questions 8 and 9 should be in a form that permits comparison with customary specifications for comparable domestic instruments. Each quantitative specification must identify the unit(s) of measurement, the tolerances of measurement where appropriate, and the test procedure to be used to demonstrate conformance with the specification.

(5) Questions 10 and 11 (Domestic instruments considered; purchase specifications, etc. Response to these questions should indicate the efforts which the applicant has made to obtain an instrument or apparatus of equivalent scientific value, for the purposes for which the article is intended to be used, that is manufactured in the United States, and the results of those efforts (including a list of manufacturers contacted and copies of purchase specifications, advertisements for bids, pertinent correspondence with manufacturers, and the like).

NOTE: "Domestic instruments considered" should be limited to that group of instruments or apparatus generally comparable to one another that are most closely comparable to the foreign instrument and its accompanying accessories, and any additional in

struments or apparatus which the applicant believes may be cited during the period for comment on its application.

(6) Question 12 (Basis for requesting duty free entry). If applicant's response does not fall within categories a or b of Question 12—as, for example, if applicant has considered more than one domestic instrument and believes that some domestic instruments are not scientifically equivalent to the foreign instrument while excessive delivery times have been quoted by domestic manufacturers with respect to others-applicant should list in two separate categories:

(a) Those instruments or apparatus deemed not to be of scientific value equivalent to the foreign instrument and its accompanying accessories; and

(b) Those instruments or apparatus deemed to be of equivalent scientific value, but considered as not being manufactured in the United States according to the criteria of § 602.1(f).

NOTE: See Note following subparagraph (5) of this paragraph for meaning of instruments "considered".

(7) Question 13 (Comparison of instruments). Response to this question should include:

(i) Statement of those pertinent characteristics and specifications of the foreign instrument and accompanying accessories which are considered to be of superior scientific value to those of domestic instruments considered by applicant but deemed not to be scientifically equivalent;

(ii) Explanation of why presence of such characteristics and specifications are important in the accomplishment of the purposes or objectives stated in response to Question 7; and

(iii) Any additional information or explanation which the applicant believes to be pertinent to the question of scientific equivalency.

NOTE: See Note, subparagraph (5) of this paragraph, for meaning of instruments "considered".

(8) Question 14 (Domestic manufacture). (i) Question 14 should be completed if applicant claims that each instrument considered, although scientifically equivalent, is "not being manufactured within the United States" according to the criteria of § 602.1(f). If applicant claims that any such instruments are items which, under customary domestic practices, are usually delivered

from a stock but are presently unavailable from a stock, applicant should so state and indicate the basis for such claim.

(ii) If such instruments are generally custom made by the domestic manufacturers of such instruments or instruments of the same general type, and applicant claims that domestic manufacturers are unable or unwilling to produce and have such an instrument available promptly and without unreasonable delay, applicant should answer Questions 14 a through d of BDSA Form 768.

(iii) In answering questions 14 a and b, if the particular domestic or foreign manufacturer in question quoted a delivery time other than on the basis of delivery to applicant's site, indicate time and basis of quote (e.g., F.O.B., F.A.S.), estimate additional time required for delivery to site and indicate basis for such estimate.

(iv) The response to Question 14e should contain any additional information or explanation which applicant believes relevant to the question of manufacture in the United States as defined in § 602.1(f), as, for example, applicant's understanding of normal commercial practice applicable to the production or distribution of instruments or apparatus of the same general type; date on which applicant needs the article to accomplish program objectives, effects of delay, etc.

(c) Short form application with respect to certain instruments and in certain circumstances. (1) An applicant requesting duty free entry under item 851.60 of an instrument or apparatus listed in Appendix B hereto may omit Questions 9, 10, 11, 12, 13, and 14 of BDSA Form 768.

(2) An application with such omissions is hereinafter referred to as a "short form application".

(3) An applicant may submit a short form application if it is requesting duty free entry under these regulations for an instrument or apparatus

(i) Which is identical to an instrument or apparatus granted duty free entry pursuant to these regulations not more than one (1) year prior to the date of applicant's application, and

(ii) The intended uses of which are identical to the intended uses of said instrument or apparatus previously admitted as published in the FEDERAL REGISTER in conjunction with the proceeding concerning said instrument or apparatus previously admitted. In such

event, applicant shall also cite the previous application to which applicant refers by its docket number, name or applicant, and date, and citation to decision published in the FEDERAL REGISTER.

§ 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 such merchandise has been entered and the application 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, and, 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 answers to questions 1, 2, 4, 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 authorized 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 though the sets of copies pertaining to two or more applications 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 and pertinent characteristics of instruments or apparatus manufactured by the party.

(4) Explain why one or more instruments or apparatus listed in (3) above is scientifically equivalent to the foreign instrument and its accompanying accessory (ies) for the purposes for which it is intended to be used.

(5) Domestic manufacture: State factual information and explanation showing that an instrument or apparatus, listed in response to Question 3 is being manufactured in the United States in accordance with the criteria set forth in § 602.1(f). Include as appropriate:

(1) A showing that domestic instrument(s) is (are) on sale and available from a stock in the United States (indicate from whom and when available);

(ii) A showing that an instrument(s) or apparatus listed is (are) generally custom-made by domestic manufac

turers of such articles or articles of the same general type;

(iii) A showing that the party (or other U.S. manufacturer) is able and willing to produce an instrument(s) or apparatus listed in subdivision (ii) of this subparagraph within the United States and have it (them) available promptly so that it (they) may be obtained by the applicant without unreasonable delay (state earliest delivery date(s) offered; communicate offer(s), if any, to applicant as well as to the Administrator);

(iv) A showing of the normal commercial practice applicable to the production and distribution of instruments or apparatus of the same general type;

(v) Other pertinent information or explanation.

(6) State any other pertinent information, explanation, or views.

§ 602.5

Review and findings in 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 paragraph, 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 hereof, or (ii) 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, and may make such a denial prior to publication of a notice of the application in the FEDERAL REGIS

TER.

The Secretary of Health, Education, and Welfare shall be promptly informed of such a denial. If the institution is able to correct the deficiencies noted in the denial, it may obtain expedited treatment of a new application on the same article by indicating in a separate letter of transmittal (in five (5) copies) that it is a resubmission of an identified application previously

denied without prejudice.

APPENDIX A-SAMPLE FORM BDSAF-768 U.S. DEPARTMENT OF COMMERCE, BUSINESS AND DEFENSE SERVICES ADMINISTRATION 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 No.

For use only by Department of Commerce: Docket No.

TO BE COMPLETED BY APPLICANT NOTE: To avoid delay in processing the application due to omission of essential details, study the attached regulations and instructions related to each item indicated below. Some of the items will require the use of attachments or additional sheets. Each sheet should be identified with the corresponding item number, the applicant's name and the name of the article. 1. Name of applicant institution 2. Address

b. Country of origin.

c. Name of foreign manufacturer.

d. Manufacturer's type or model number for article and each accompanying accessory. 5. Serial number (if known) of article and each accompanying accessory described in Item 4 above.

6. Expected port of entry. If already entered, provide also the entry number and date of entry.

7. Describe the intended uses of article for which free entry is requested.

8. Attach copies or facsimiles of foreign manufacturer's performance and other specifications relevant to the purposes for which the article is intended to be used.

9. Provide any technical information, in addition to that contained in the foreign manufacturer's specifications, which is considered germane to the question of scientific equivalency between the article and domestically produced counterparts, including evidence of actual performance if known to the applicant.

10. List the names and addresses of domestic manufacturers whose instruments were considered as possible choices by the applicant. In addition, with respect to each listed manufacturer, indicate the following:

a. Whether manufacturer was contacted and afforded an opportunity to offer an instrument capable of fulfilling the purposes for which article is intended to be used.

b. Whether manufacturer (1) replied with an offer to furnish an instrument for the intended uses, (2) replied that the firm did not make an instrument capable of fulfilling the intended purposes, or (3) did not reply.

c. For each manufacturer who offered to furnish an instrument (b(2) above), state in addition the type or model number proffered as capable of fulfilling the intended purposes. (Include all instruments which were so proffered, even if the applicant believes the delivery time quoted by the manufacturer was excessive.)

11. Attach a copy of the applicant's purchase specifications which were furnished to to the foreign manufacturer and to those domestic manufacturers who were afforded an opportunity to supply the instrument desired by applicant.

12. Indicate the basis for requesting dutyfree entry of the article:

a. Domestic instruments are not scientifically equivalent to the article.

b. Excessive delivery times quoted by domestic manufacturers.

c. Other. Specify.