« AnteriorContinuar »
$ 601.4 Conditions in licenses.
as added by said section 6(c)). The Act The licenses to be issued will be
provides, inter alia that any nonprofit granted on the following express condi
institution (whether public or private) tions: (a) The Government of the United
established for educational or scientific States will not guarantee the validity of
purposes may obtain duty-free treatment
of certain instruments and apparatus the patent covered by the license, nor will it undertake to defend any suits
entered for its use, if the Secretary of brought against the licensees or to in
Commerce determines that no instrudemnify for infringement of the patent;
ment or apparatus of equivalent scien(b) the Government of the United States
tific value to such article, for the purwill reserve the right at any time to grant
poses for which the instrument or apadditional licenses; and (c) the Govern
paratus is intended to be used, is being ment will reserve the right to revoke the
manufactured in the United States. A license at any time. It will also be pro
public or private nonprofit institution vided in the license that it be non
established for educational or scientific transferable.
purposes desiring to obtain free entry
of an instrument or apparatus under § 601.5 Revocation.
item 851.60, Tariff Schedules of the Although licenses issued under the United States, shall file an application regulations in this part are revocable at
for such entry in accordance with the will, licenses will not ordinarily be re
requirements of 19 CFR 10.115 and voked. The occurrence of the following
$ 602.2. (All references in this part to may, however, result in the revocation items, headnotes, schedules or parts, unof the license: (a) Failure to abide by
less otherwise indicated, are references to the terms and conditions of the license; items, headnotes, schedules or parts of (b) failure to use the process or device
the Tariff Schedules of the United covered by the patent; (c) the bank
States.) If the application is made in acruptcy or insolvency of the licensee. cordance with applicable regulations, no
tice and opportunity to present views will PART 602-INSTRUMENTS AND AP
be provided in accordance with $ 602.4,
subject to $ 602.5(e). Thereafter the apPARATUS FOR EDUCATIONAL AND
plication shall be reviewed, and a deciSCIENTIFIC INSTITUTIONS
sion made thereon and published in the Sec.
FEDERAL REGISTER, in accordance with 602.1 General provisions.
$ 602.5. An appeal from any such deci602.2 Application for duty-free entry of sion may be taken, in accordance with foreign instruments.
headnote 6(e) to part 4 of Schedule 8, 602.3 Review of the application by the Com- Tariff Schedules of the United States, missioner of Customs.
only to the U.S. Court of Customs and 602.4 Public notice of application and op
Patent Appeals and only on a question portunity to present views. 602.5 Review and findings of the Depart
or questions of law, within 20 days ment of Commerce.
after publication of the decision in
the FEDERAL REGISTER. If at any time Appendix A--Sample Form BDSAF-768.
while its application is under conAUTHORITY: The provisions of this part 602 sideration by the Secretary of Comissued under 80 Stat. 897 (1966); 19 U.S.C.
merce or by the Court of Customs nts. prec. 1202; Department of Commerce
and Patent Appeals on an appeal from Order No. 152, as revised July 11, 1968.
a finding by him, an institution cancels SOURCE: The provisions of this part 602 an order for the instrument or apparaappear at 34 F.R. 15787, Oct. 14, 1969, unless tus to which the application relates or otherwise noted.
ceases to have a firm intention to order $ 602.1 General provisions.
such instrument or apparatus, the insti
tution shall promptly notify the Admin(a) Introductory provisions. The reg
istrator or such court, as the case may be. ulations in this part are issued under the
(b) Definitions. (1) “Instruments and authority of the Educational, Scientific,
apparatus” shall embrace only instruand Cultural Materials Importation Act
ments and apparatus classifiable under of 1966 (Public Law 89-651; 80 Stat. 897; the tariff items specified in headnote 6(a) see particularly section 6(c) thereof and of part 4 of Schedule 8. A combination of headnote 6(f) to part 4, of Schedule 8, a basic instrument or apparatus and Tariff Schedules of the United States, additional components shall be treated section 1202, title 19, United States Code, as a single instrument or apparatus here
under 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.
(2) "Accessory' shall have the meaning which it has under normal commercial usage. An accessory for which dutyfree entry is sought under item 851.60 shall be the subject of a separate application when it is not an accompanying accessory.
(3) "Foreign instrument" shall mean 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.
(4) “Accompanying accessory” shall mean an accessory for a foreign instrument that accompanies it in the same shipment and that is necessary for accomplishment of the purposes for which the foreign instrument is intended to be used. Only one application shall be required for a foreigr. instrument and its accompanying accessories.
(5) Unless context indicates otherwise, "article” shall mean a foreign instrument and
its accompanying accessories,
(6) "Domestic instrument" shall mean an instrument, apparatus or accessory which is produced in the United States.
(7) “Pertinent specification” of an instrument, apparatus or accessory shall mean 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 form BDSAF-768, “Request for Duty-Free Entry of Scientific Instruments or Apparatus," excluding from consideration those purposes excluded by headnotes 1 or 6(a) to Part 4, Schedule 8, Tariff Schedules of the United States (TSUS). The term does not extend to such characteristics as size, durability, complexity, or 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.
(8) "Guaranteed specifications" shall
mean 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.
(9) "Administrator" shall mean the Administrator, Business and Defense Services Administration of the Department of Commerce, or such official as may be designated to act in his behalf in this matter.
(c) Applications and comments. Applications (19 CFR 10.115 and $ 602.2) and comments (8 602.4) shall be written, typed or printed, in the English language and 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) Exclusion from duty-free entry under Headnote 6(a). Certain articles will be excluded from duty-free entry as prescribed in 19 CFR 10.114(c).
(e) 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, including 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 Administrator 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 the instrument, apparatus or accessory for which the foreign instrument is in- to which the application relates and the tended to be used. If the Administrator manufacturer's customary products, and finds that at least one domestic instru- the availability of the professional and ment or reasonable combination of do- technical skills, as well as manufacturing mestic instruments does possess all the experience, essential to bridging the gap pertinent specifications of the foreign and the time required by the domestic article, he shall find that there is being manufacturer to produce an instrument, manufactured in the United States an apparatus or accessory to purchaser's instrument of equivalent scientific value specifications. to the foreign instrument for such pur- (g) Excessive delivery time. Duty-free poses as described in the response to entry of the article shall be considered Question 7 of form BDSAF-768. Other- justified without regard to whether there wise, he shall find to the contrary.
is being manufactured in the United (f) Domestic manufacturer. An in- States an instrument, apparatus or acstrument, apparatus, or accessory shall cessory of equivalent scientific value for be considered as being manufactured in
the purposes described in response to the United States if they are customarily Question 7, if the delay in obtaining such produced for stock in anticipation of a domestic instrument, apparatus or acsale, produced according to manufac- cessory (as indicated by the difference turer's specifications only after receipt between the delivery times quoted reof order, or custom-made. Produced for spectively by domestic manufacturer and stock, produced on order, and custom- foreign manufacturer) will seriously immade shall have the following meanings: pair the accomplishment of the pur
(1) Produced for stock. An instru- poses. In determining whether the differment, apparatus, or accessory shall be ence in delivery times is excessive, the considered to be produced for stock if Administrator shall take into account the it was manufactured in the United States, relevancy of the applicant's program to is on sale and available from a stock in other research programs with respect to the United States.
timing, the applicant's need to have such (2) Produced on order. An instrument, instrument, apparatus
accessory apparatus, or accessory shall be con- available at the scheduled time for sidered to be produced on order if a
the course(s) in which the article is indomestic manufacturer lists it in a cur
tended to be used, and other relevant rent catalog and is able and willing to circumstances. produce the instrument, apparatus or
(h) Entry and liquidation. Entry and accessory within the United States and liquidation procedures are prescribed in have it available without unreasonable
19 CFR 10.114(d). delay to the applicant. In determining
$ 602.2 Application for duty-free entry whether a U.S. manufacturer is able and
of foreign instruments. willing to produce such instrument, apparatus, or accessory and have it so
(a) Additional requirements applicaavailable, the Administrator shall take
ble to applications. Business and Defense into account the normal commercial
Services Administration Form 768 practices applicable to the production
(BDSAF-758), “Request for duty-free and delivery of instruments, apparatus,
entry of scientific instruments and apor accessories of the
paratus,” a sample of which is set forth
same general category.
as Appendix A hereto and is hereby made (3) Custom-made. An instrument, ap
a part hereof, shall be used in the prep
aration of an application. Seven copies paratus or accessory shall be considered to be custom-made if it is an instrument,
of the form shall be completed in accord
ance with paragraph (b) of this section. apparatus, or accessory made to purchaser's specifications. In determining
Questions 1, 2, 3, 4, 6, and 10 of the form
shall be answered by an authorized fiscal whether a domestic manufacturer is able
officer of the applicant institution; Questo produce a custom-made instrument,
tions 5, 7, 8, and 9 shall be answered by apparatus, or accessory as defined herein,
the person in the applicant institution the Administrator shall take into account
under whose direction and control the the production experiences of the do- foreign instrument will be used and who mestic manufacturer with respect to the is thoroughly familiar with the specific types and complexity of products, the program requiring an instrument, extent of the technological gap between apparatus or accessory having the pertinent specifications of the foreign The response to this question shall deinstrument. Two of such forms shall be scribe the intended purposes of the artiexecuted in original by the aforemen- cle in sufficient detail to permit identifytioned persons; five shall be conformed ing each specification of the article that copies. The seven completed copies of is alleged to be pertinent with the parthe form, with the attachments required ticular purpose(s) and the related obto complete the form fully should be filed jective(s) for the accomplishment of with the Commissioner of Customs, At- which the specification is claim to be tention: Tariff Classification Rulings, necessary. If the article is intended to be Washington, D.C. 20226.
used in both research and educational (b) BDSAF-768. The applicant should programs, the purposes and relevant obanswer all applicable questions appearing jectives of each program shall be deon BDSAF-768. The instructions set scribed separately. Programs that may be forth below are to be followed in com- undertaken in some unspecified future pleting the form. Unless otherwise indi- period shall not be considered in the cated from context, terms used in the comparison. form have the meanings defined in (4) Question 8 (Justification for duty$ 602.1(b).
free entry)--(i) No instrument, appara(1) Question 5 (Description of article). tus, or accessory of the same general catA single application in the required egory is being manufactured in the number of copies) may be submitted for United States. The term "same general any quantity of the same type or model category” shall mean the category in of the foreign instrument, apparatus or which an instrument, apparatus or acaccessory, provided that all of that quan- cessory is customarily classified in trade tity are intended to be used for all of the directories and product-source lists purposes described in the response to (electron microscope, mass spectromeQuestion 7. If the purchase order includes ters, light microscopes, X-ray spectromdifferent types or models of the same eters, and the like). If any instrument, category of instrument, apparatus or ac- apparatus or accessory of the same gencessory, à separate application shall be eral category is being manufactured in submitted for each type or model al- the United States, without regard to the though all may be intended for the same degree of comparability with the article, purposes. The specifications of the for- the applicant shall justify the noneign manufacturer or facsimile thereof equivalency of such instrument, apparashall be included in the response to Ques- tus or accessory in accordance with subtion 5. These specifications shall be in a division (ii) of this subparagraph. form that permits comparison with cus- (ii) No instrument, apparatus, or actomary specifications for comparable cessory being manufactured in the domestic instruments, apparatus, or ac- United States is of equivalent scientific cessories. If the technical nature of the value to the article for such purposes as foreign instrument, apparatus, or acces- described in respsone to Question 7. The sory is such that the specifications for a comparison of the alleged pertinent performance capability may vary accord- specifications of the article shall be made ing to variations in test procedures, sam- with similar specifications of the most ple material, sample size, and other closely comparable instrument being parameters, the specifications for the manufactured in the United States. The article shall identify the relevant param- term "most closely comparable instrueters. In the case of produced-on-order ment” shall mean the domestic instruor custom-made instruments, apparatus ment(s) or apparatus and accessories or accessories, the response to Question 5 that most closely fulfill the applicant's shall include a statement from the for- technical requirement described in reeign manufacturer attesting to the de- sponse to Question 7, without regard to gree of compliance with purchaser's differences in cost, design or structural specifications.
characteristics. In making the compari(2) Question 6 (Serial number(s)). If son only the article and accompanying the serial numbers of the foreign instru- accessories described in response to ment and accompanying accessories are Question 5 and the purposes described not known when the application is sub- in response to Question 7 shall be mitted, they shall be supplied in writing considered. The planned purchase of adto the Administrator promptly when they ditional accessories or the planned conbecome known to the applicant.
version of the article at some unspecified (3) Question 7 (Intended purposes). 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