02-28817. 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 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.