(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 § 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 OIPF-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.

§ 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.

§ 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 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 F.R. 3892, Feb. 24, 1972; 37 F.R. 4325, Mar. 2, 1972]

§ 701.7 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 domestic between the applicant and 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]

§ 701.8 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 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. Views 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

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

(ii) That although the instrument or apparatus differs in design from the article, it is nonetheless scientifically equivalent 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 instrument or apparatus are as a general rule either produced 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 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.

§ 701.10 Additions to the record.

(a) The Deputy Assistant Secretary shall assemble the application, and those comments meeting the requirements of § 701.9 into a record. After the period for comment (§ 701.9(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) The Deputy Assistant Secretary 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) If it appears to the Deputy Assistant Secretary that the information in the record is not sufficient to enable him to render a decision, if the action of denial without prejudice to resubmission appears to be inappropriate, and if it further appears that certain additional factual information will cure the insufficiency of the record, the Deputy Assistant Secretary, 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 the party or those parties that appear best suited to provided the information. The Deputy Assistant Secretary 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 Deputy Assistant Secretary shall not, under this procedure, place arguments, explanations or recommendations upon the record. The Deputy Assistant Secretary 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.

§ 701.11 Review and findings of the Department of Commerce.

(a) Scientific equivalency. The determination of scientific equivalency shall be based on a comparison of the pertinent specifications of the foreign instrument with similar pertinent specifications of the most closely comparable domestic instrument. The guaranteed specifications for the foreign article will be considered in the comparison, includ-

ing any amendments to the guaranteed specifications which have been inserted in the record. Similarly, the guaranteed specifications for the most closely comparable domestic instrument will be considered, including any amendments to the guaranteed specifications which have been inserted in the record. In the comparison, the Deputy Assistant Secretary may consider any reasonable combination of domestic instruments and accessories as being comparable to a foreign instrument that combines two or more functions in an integrated unit, if the combination of domestic instruments and accessories is capable of accomplishing the purposes for which the foreign instrument is intended to be used. If the Deputy Assistant Secretary finds that at least one domestic instrument or reasonable combination of domestic instruments does possess all the pertinent specifications of the foreign article, he shall find that there is being manufactured in the United States an instrument of equivalent scientific value to the foreign instrument for such purposes as described in the response to question 7 of the application form. Otherwise, he shall find to the contrary.

in the United

(b) Manufactured States. An instrument, apparatus, or accessory shall be considered as being manufactured in the United States if it is customarily produced for stock, produced on order, or custom-made within the United States. In determining whether a U.S. manufacturer is able and willing to produce a produced on order, or custom-made instrument, apparatus, or accessory and have it available without unreasonable delay to the applicant the Deputy Assistant Secretary shall take into account the normal commercial practices applicable to the production and delivery of instruments, apparatus, or accessories of the same general category. For example, in determining whether a domestic manufacturer is able to produce a custom-made instrument, apparatus. or accessory the Deputy Assistant Secretary may take into account the production experiences of the domestic manufacturer with respect to the types and complexity of products, the extent of the technological gap between the instrument, apparatus, or accessory to which the application relates and the manufacturer's customary products, and the availability of the professional and technical skills, as well as manu

facturing experience, essential to bridging the gap and the time required by the domestic manufacturer to produce an instrument, apparatus, or accessory to purchaser's specifications.

(c) Excessive delivery time. Dutyfree entry of the article shall be considered justified without regard to whether there is being manufactured in. the United States an instrument, apparatus, or accessory of equivalent. scientific value for the purposes described in response to question 7 of the application form, if the delay in obtaining such domestic instrument, apparatus, or accessory (as indicated by the difference between the delivery times quoted by domestic manufacturer and foreign. manufacturer) will seriously impair the accomplishment of the purposes. In determining whether the difference in delivery times is excessive, the Deputy Assistant Secretary shall take into account the relevancy of the applicant's program to other research programs with respect to timing, the applicant's need to have such instrument, apparatus, or accessory available at the scheduled time for the course(s) in which the article is intended to be used, and other relevant circumstances.

(d) Decision on the application. The Deputy Assistant Secretary 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 701.10 which were not entered in the record pursuant to § 701.10 shall also be made available for public review. The Deputy Assistant Secretary may dispose of such materials at any time after final disposition of the application.) Pursuant to 19 CFR 10.117, the Deputy Assistant Secretary shall notify the district director of customs or the district in which entry of the merchandise in question was made, or the Com