[Federal Register: November 13, 2002 (Volume 67, Number 219)]
[Notices]
[Page 68834-68835]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13no02-30]
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DEPARTMENT OF COMMERCE
International Trade Administration
University of Vermont; Notice of Decision on Application for
Duty-Free Entry of Scientific Instrument
This decision is made pursuant to section 6(c) of the Educational,
Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89-
651, 80 Stat. 897; 15 CFR part 301). Related records can be viewed
between 8:30 AM and 5 PM in Suite 4100W, U.S. Department of Commerce,
Franklin Court Building, 1099 14th Street, NW, Washington, DC.
Docket Number: 02-033. Applicant: University of Vermont,
Burlington, VT 05405. Instrument: High Speed CCD Camera, Model CPL
MS1000. Manufacturer: Canadian Photonic Labs, Canada. Intended Use: See
notice at 67 FR 52944, August 14, 2002.
Comments: None received. Decision: Application denied. Instruments
or apparatus of equivalent scientific value to the foreign instrument,
for such purposes as this instrument is intended to be used, are being
manufactured in the United States. Reasons: Pursuant to 15 CFR
301.5(d)(1)(iii) duty-free entry is predicated upon a finding by the
Director with respect to ``* * * whether an instrument or apparatus of
equivalent scientific value to such article, for the purposes for which
the article is intended to be used, is being manufactured in the United
States.'' Furthermore, 15 CFR 301.5(d)(1)(i) stipulates that ``The
determination of scientific equivalency shall be based on a comparison
of the pertinent specifications of the foreign instrument with similar
pertinent specifications of comparable domestic instruments.'' As
defined by 15 CFR 301.2(s):
Pertinent specifications are those specifications necessary for the
accomplishment of the specific scientific research or science-related
educational purposes described by the applicant. Specifications of
features (even if guaranteed) which afford greater convenience, satisfy
personal preferences, accommodate institutional commitments or
limitations, or assure lower costs of acquisition, installation,
operation, servicing or maintenance are not pertinent.
The applicant states that it conducted a thorough search for
potential vendors of high-speed CCD imaging systems and contacted
relevant manufacturers. The applicant claims that ``It was during this
phase that it was realized that many of the products on the market--
domestic or otherwise--were (1) unnecessarily
[[Page 68835]]
advanced and (2) prohibitively expensive for our needs.'' The applicant
then claims, with respect to the foreign article, that ``* * * the
other products were unacceptable for the reasons (1) and/or (2).'' The
applicant also states that ``The domestic products encountered during
the searching were unnecessarily advanced; they were ``overkill'' for
the intended types of applications planned.''
The applicant cites only one pertinent specification respecting its
requirements; namely a ``high speed'' CCD camera, pointing out that
``Cost rises dramatically with the speed, and the domestic instruments
encountered during product searching were designed for frame speeds
that were unnecessarily high for the applications being planned.
Consequently their costs were prohibitive.'' Notwithstanding design
considerations, it is common industry practice to make frame and
shutter speeds adjustable, as the foreign manufacturer does, so that
most domestic cameras should be operable at slower rates if required.
The applicant fails to specify any rate or advance any argument to the
contrary.
The regulations explicitly disallow matters of cost, convenience or
institutional limitations as pertinent considerations in determining
eligibility for duty exemption. Furthermore, a domestic instrument
whose performance specifications are superior to those of the foreign
instrument is considered ``scientifically equivalent.'' Pursuant to CFR
15 301.5 (d)(1)(i) the necessary condition for duty exemption is that
``* * * the Director finds that the foreign instrument possesses one or
more pertinent specifications not possessed by the domestic instrument
* * *''. The application has failed to cite any such specification.
Furthermore, 15 CFR 301.5(e)(7) provides, in part, as follows:
Information provided in a resubmission that * * * contradicts or
conflicts with information provided in a prior submission, or is not a
reasonable extension of the information contained in the prior
submission, shall not be considered in making the decision on an
application that has been resubmitted. Accordingly, an applicant may
elect to reinforce an original submission by elaborating in the
resubmission on the description of the purposes contained in a prior
submission and may supply additional examples, documentation and/or
other clarifying detail, but the applicant shall not introduce new
purposes or other material changes in the nature of the original
application. (Emphasis supplied.)
Consequently, in view of the applicant's own determination, cited
above, that equivalent domestic instruments were ``prohibitively
expensive'' and by its failure to specify a pertinent feature possessed
by the foreign and not by domestic instruments, we conclude that a
resubmission cannot establish, without introducing conflicting
information or impermissible new purposes, that a scientifically
equivalent domestic instrument is not available. Therefore, the
application is denied.
Gerald A. Zerdy,
Program Manager, Statutory Import Programs Staff.
[FR Doc. 02-28817 Filed 11-12-02; 8:45 am]