Notice of Issuance of Final Determination Concerning Country of Origin of Fleetcam Vehicle Cameras, 24136-24138 [2018-11091]
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Federal Register / Vol. 83, No. 101 / Thursday, May 24, 2018 / Notices
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Dave Fluty,
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[FR Doc. 2018–11090 Filed 5–23–18; 8:45 am]
BILLING CODE 9111–14–P
DEPARTMENT OF HOMELAND
SECURITY
U.S. Customs and Border Protection
Notice of Issuance of Final
Determination Concerning Country of
Origin of Fleetcam Vehicle Cameras
U.S. Customs and Border
Protection, Department of Homeland
Security.
ACTION: Notice of final determination.
AGENCY:
This document provides
notice that U.S. Customs and Border
Protection (‘‘CBP’’) has issued a final
determination concerning the country of
origin of a vehicle digital video camera
known as the FleetCamTM. Based upon
the facts presented, CBP has concluded
that the processing in the United States
does not substantially transform the
imported digital video cameras for
purposes of U.S. Government
procurement.
DATES: The final determination was
issued on May 18, 2018. A copy of the
sradovich on DSK3GMQ082PROD with NOTICES
SUMMARY:
VerDate Sep<11>2014
18:10 May 23, 2018
Jkt 244001
final determination is attached. Any
party-at-interest, as defined in 19 CFR
177.22(d), may seek judicial review of
this final determination within June 25,
2018.
FOR FURTHER INFORMATION CONTACT:
Robert Dinerstein, Valuation and
Special Programs Branch, Regulations
and Rulings, Office of Trade (202–325–
0132).
SUPPLEMENTARY INFORMATION: Notice is
hereby given that on May 18, 2018,
pursuant to subpart B of Part 177,
Customs and Border Protection (CBP)
Regulations (19 CFR part 177, subpart
B), CBP issued a final determination
concerning the country of origin of the
FleetCamTM digital video camera, which
may be offered to the United States
Government under an undesignated
government procurement contract. This
final determination, HQ H294933, was
issued under the procedures set forth at
19 CFR part 177, subpart B, which
implements Title III of the Trade
Agreements Act of 1979, as amended
(19 U.S.C. 2511–18). In the final
determination, CBP concluded the
country of origin of the finished
FleetCamTM was China, where the
digital video camera and the camera’s
firmware were manufactured.
Section 177.29, CBP Regulations (19
CFR 177.29), provides that a notice of
final determination shall be published
in the Federal Register within 60 days
of the date the final determination is
issued. Section 177.30, CBP Regulations
(19 CFR 177.30), provides that any
party-at-interest, as defined in 19 CFR
177.22(d), may seek judicial review of a
final determination within 30 days of
publication of such determination in the
Federal Register.
Dated: May 18, 2018.
Alice A. Kipel,
Executive Director, Regulations and Rulings,
Office of Trade.
HQ H294933
May 18, 2018
OT:RR:CTF:VS H294933 RSD
CATEGORY: Origin
Upneet S. Teji, Esq.
Greensfelder, Hemker & Gale, P.C.
PO 00000
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220 Madison Street, Suite 3300
Chicago, Illinois 60606
RE: Final Determination of U.S. Government
Procurement; Country of Origin of a
FleetCamTM vehicle camera
Dear Mr. Teji:
This is in response to your eruling request
of January 27, 2018, for a final determination
on behalf of Forward Thinking Systems LLC,
(the Company), concerning the country of
origin of a FleetCam vehicle camera pursuant
to subpart B of Part 177, U.S. Customs and
Border Protection (‘‘CBP’’) Regulations (19
CFR § 177.21 et. seq.). We note that the
Company is a party-at-interest within the
meaning of 19 CFR § 177.22(d)(1) and is
entitled to request this final determination.
FACTS:
The product at issue is referred to as a
FleetCam, which is a high-resolution digital
video camera installed in a vehicle for
streaming and recording images in real time.
The FleetCam allows companies who
purchase the product to watch the drivers
that they employee in real-time, as well as
view recorded speeding and other behavior
moments. The FleetCam is also able to
capture, record, and transmit images of a
driver’s view of the road ahead. The
FleetCam is comprised of a physical digital
video camera or several cameras setup
together. The product also contains related
cabling and a receiver that is compatible for
use specifically with the Company’s software
and mobile applications. To use the
FleetCam product, a user must purchase the
hardware and a subscription to the software
from the Company.
The FleetCam’s physical digital video
camera is made in China and sourced by the
Company from a Chinese firm. The firmware
that is loaded onto the camera to allow it to
be operational with the Company’s software
was also developed by the Chinese firm;
however, you state that the firmware was
developed based upon the design,
specifications, and software architecture
produced by the Company’s staff located in
the United States. The firmware developed
for the FleetCam is designed specifically for
use with the Company’s fleet management
software. The digital camera hardware
(together with the firmware) is purchased by
the Company from a Chinese producer.
The firmware is not loaded onto the
camera hardware until it is received by the
Company in the United States. Upon receipt
of the camera and the firmware code, the
Company’s engineers load and install the
firmware on the camera hardware at the
Company’s offices in the United States. An
additional hardware component of the
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Federal Register / Vol. 83, No. 101 / Thursday, May 24, 2018 / Notices
FleetCam product is the telematics gateway
unit (the ‘‘cabling’’). The cabling units,
including the receivers, are purchased from
one or more manufacturers, and they are
manufactured and procured from other TAAcompliant jurisdictions. The digital camera
contains dual SD Cards that allow it to
internally record the events that took place.
The basic software component of the
FleetCam product is produced in the United
States. In addition, other than the firmware
development for the camera hardware, all of
the FleetCam software (including without
limitation, software applications and mobile
applications) are designed, developed, and
integrated with the Company’s cloud service
in the United States. In order for the
FleetCam to be functional and operational,
the hardware and the related firmware is
installed with the cabling and integrated with
the FleetCam software platform. This
compilation process occurs entirely in the
United States.
The Company sells the FleetCam software
as a software-as-a service subscription,
whereby the Company’s customers enter into
a separate subscription for use of the
FleetCam software. After purchase of the
FleetCam hardware, the Company’s
customers pay a separate monthly fee for
using its proprietary software. The FleetCam
hardware and software must be purchased
together as part of the same package. Without
the FleetCam software, it is stated that the
camera and the related components are not
operational. If a customer cancels its software
subscription, the FleetCam product will no
longer be functional.
sradovich on DSK3GMQ082PROD with NOTICES
ISSUE:
Whether the imported components
including the digital video camera and
cabling for the FleetCam are substantially
transformed through the downloading of the
Company’s proprietary software in the
United States so as to make the FleetCam a
product of the United States.
LAW AND ANALYSIS:
CBP issues country of origin advisory
rulings and final determinations as to
whether an article is or would be a product
of a designated country or instrumentality for
the purposes of granting waivers of certain
‘‘Buy American’’ restrictions in U.S. law or
practice for products offered for sale to the
U.S. Government, pursuant to subpart B of
Part 177, 19 C.F.R. § 177.21 et seq., which
implements Title III of the Trade Agreements
Act of 1979, as amended (19 U.S.C. § 2511 et
seq.).
Under the rule of origin set forth under 19
U.S.C. § 2518(4)(B): An article is a product of
a country or instrumentality only if (i) it is
wholly the growth, product, or manufacture
of that country or instrumentality, or (ii) in
the case of an article which consists in whole
or in part of materials from another country
or instrumentality, it has been substantially
transformed into a new and different article
of commerce with a name, character, or use
distinct from that of the article or articles
from which it was so transformed.
See also 19 C.F.R. § 177.22(a).
In rendering final determinations for
purposes of U.S. Government procurement,
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18:21 May 23, 2018
Jkt 244001
CBP applies the provisions of subpart B of
Part 177 consistent with the Federal
Procurement Regulations. See 19 C.F.R.
§ 177.21. In this regard, CBP recognizes that
the Federal Acquisition Regulations restrict
the U.S. Government’s purchase of products
to U.S.-made or designated country end
products for acquisitions subject to the Trade
Agreements Act. See 48 C.F.R. § 25.403(c)(1).
The Federal Acquisition Regulations define
‘‘U.S.-made end product’’ as ‘‘an article that
is mined, produced, or manufactured in the
United States or that is substantially
transformed in the United States into a new
and different article of commerce with name,
character, or use distinct from that of the
article or articles from which it was
transformed.’’ See 48 C.F.R § 25.003.
In Data General v. United States, 4 C.I.T.
182 (1982), the court determined that the
programming of a foreign PROM
(Programmable Read-Only Memory chip) in
the United States substantially transformed
the PROM into a U.S. article. In the United
States, the programming bestowed upon each
integrated circuit its electronic function, that
is, its ‘‘memory’’ which could be retrieved. A
distinct physical change was effected in the
PROM by the opening or closing of the fuses,
depending on the method of programming.
The essence of the article, its
interconnections or stored memory, was
established by programming. See also, Texas
Instruments v. United States, 681 F.2d 778,
782 (CCPA 1982) (stating the substantial
transformation issue is a ‘‘mixed question of
technology and customs law’’); HQ 735027,
dated September 7, 1993 (programming blank
media (EEPROM) with instructions that
allow it to perform certain functions that
prevent piracy of software constitutes a
substantial transformation); and, HQ 734518,
dated June 28, 1993 (motherboards are not
substantially transformed by the implanting
of the central processing unit on the board
because, whereas in Data General use was
being assigned to the PROM, the use of the
motherboard had already been determined
when the importer imported it).
‘‘The term ‘character’ is defined as ‘one of
the essentials of structure, form, materials, or
function that together make up and usually
distinguish the individual.’ ’’ National Hand
Tool Corp. v. United States, 16 C.I.T. 308,
311 (1992) (citing Webster’s Third New
International Dictionary (1981)). In National
Juice Prods. Ass’n v. United States, the Court
of International Trade applied the ‘‘essence
test’’ and found that the fundamental
character of orange juice concentrate was not
changed by the addition of water, orange
essences, and oils to make frozen
concentrated orange juice, and hence, there
was no substantial transformation. 10 C.I.T.
48, 628 F. Supp. 978 (1986).
HQ H258960, dated May 19, 2016,
reviewed the country of origin of hardware
components of certain transceivers in two
scenarios that are instructive to the case at
issue here. The hardware components of the
transceivers were wholly manufactured in a
foreign country and imported into the United
States. In the first scenario, the transceivers
were ‘‘blanks’’ and completely nonfunctional and specialized proprietary
software was developed and downloaded in
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24137
the United States, making the transceivers
functional and compatible with the OEM
technology. In the second scenario, the
transceivers were preprogrammed with a
generic program that was replaced with
specialized proprietary software. It was
argued that in both scenarios, the imported
hardware was substantially transformed by
the development, configuration, and
downloading operations of the U.S. origin
software. In the first scenario, we found that
the non-functional transceivers were
substantially transformed as a result of
downloading performed in the United States,
with proprietary software developed in the
United States. However, in the second
scenario, it was determined that since the
transceivers had generic network
functionality, programming them merely to
customize their network compatibility would
not actually change the identity of the
imported transceivers. See also HQ H241177,
dated December 3, 2013. Accordingly, it was
determined that the country where the last
substantial transformation occurred was
China or another Asian country where the
hardware components were manufactured.
A similar finding was made in HQ
H284523, dated August 23, 2017, where
imported tablet computers were
preprogrammed with a generic program
when they were first imported. The tablets
could perform all of the standard functions
of an android tablet in their imported
condition. After importation, the imported
tablets were customized for a particular use
as part of a system to collect and transmit a
patient’s medical data by the installation of
proprietary software. The original tablet had
the ability to perform all of previous
functions, but it was determined that for ease
of use and for other reasons it was best to
disable these functions and to consolidate
them in one function via the specialized
software. It was stated that the general
functionality of the tablet was removed and
replaced so that it was easier for patients to
use the device and access the system. It was
also stated that the security of the patient’s
medical data would be better protected. In
HQ H284523, we noted that it was clear that
merely loading the specialized software onto
the tablet computer that remained fully
functional as a computer would be
insufficient to constitute a new and different
article of commerce, since all of the
functionality of the original computer would
be retained.
In this case, the Company’s proprietary
software is being installed onto a digital
video camera so that the camera can provide
live-streaming of a driver and his view of the
road from multiple vantage points. In
addition, after the software is installed onto
the FleetCam, it is able to capture, record,
and store footage of particular incidents that
may have occurred. While the particular
proprietary software is written and
downloaded in the United States, we note
that the firmware being used to operate the
FleetCam, although designed in the United
States, was not written in the United States,
but in China. Therefore, similar to HQ
H284523, where the tablet could function, in
this case, because the digital camera contains
SD cards, it can fully function as a digital
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Federal Register / Vol. 83, No. 101 / Thursday, May 24, 2018 / Notices
video camera by capturing images and
recording footage. The installation of the
proprietary software onto the FleetCam only
customizes the digital cameras to the
Company’s particular use and does not
change the basic identity of the imported
digital video cameras because they retain all
their functions with the same name,
character and use of the imported digital
video cameras. Therefore, we find that the
FleetCam is not substantially transformed by
the downloading of the Company’s
proprietary software onto the imported
digital video cameras, and the country of
origin of the FleetCam will be China where
the main hardware, including the digital
cameras and the firmware, is manufactured.
HOLDING:
Based on the information presented in this
case, the imported digital video cameras are
not substantially transformed by the
processing performed in the United States.
Therefore, the country of origin of the
FleetCams is the country where the digital
video cameras and the firmware were
originally produced, which in this case is
China.
Notice of this final determination will be
given in the Federal Register, as required by
19 C.F.R. § 177.29. Any party-at-interest other
than the party which requested this final
determination may request, pursuant to 19
C.F.R. § 177.31, that CBP reexamine the
matter anew and issue a new final
determination. Pursuant to 19 C.F.R.
§ 177.30, any party-at-interest may, within 30
days of publication of the Federal Register
Notice referenced above, seek judicial review
of this final determination before the Court
of International Trade.
Sincerely,
Alice A. Kipel,
Executive Director,
Regulations and Rulings
[FR Doc. 2018–11091 Filed 5–23–18; 8:45 am]
BILLING CODE 9111–14–P
Bureau of Land Management
[LLAK940000.L14100000. BX0000.
18X.LXSS001L0100]
Bureau of Land Management,
Interior.
Notice of official filing.
ACTION:
The plats of survey of lands
described in this notice are scheduled to
be officially filed in the Bureau of Land
Management (BLM), Alaska State Office,
Anchorage, Alaska. The surveys, which
were executed at the request of the U.S.
Coast Guard, the Bureau of Indian
Affairs and BLM, are necessary for the
management of these lands.
DATES: Protests must be received by the
BLM by June 25, 2018.
sradovich on DSK3GMQ082PROD with NOTICES
VerDate Sep<11>2014
18:10 May 23, 2018
Jkt 244001
Douglas N. Haywood, Chief, Branch of
Cadastral Survey, Bureau of Land
Management, Alaska State Office, 222
W. 7th Avenue, Anchorage, Alaska
99513; 1–907–271–5481; dhaywood@
blm.gov. Persons who use a
telecommunications device for the deaf
may call the Federal Relay Service (FRS)
at 1–800–877–8339 to contact the above
individual during normal business
hours. The FRS is available 24 hours a
day, 7 days a week, to leave a message
or question with the above individual.
You will receive a reply during normal
business hours.
SUPPLEMENTARY INFORMATION: The lands
surveyed are:
U.S. Survey No. 3813, accepted March 5,
2018
U.S. Survey No. 3923, accepted March 5,
2018
U.S. Survey No. 4269, accepted March 5,
2018
U.S. Survey No. 4738, accepted January 5,
2018
U.S. Survey No. 9891, accepted January 5,
2018
U.S. Survey No. 14461, accepted March 13,
2018
U.S. Survey No. 14462, accepted March 13,
2018
U.S. Survey No. 14478, accepted January 29,
2018
Kateel River Meridian, Alaska
T. 2 S., R. 40 W., accepted May 1, 2018
T. 3 S., R. 40 W., accepted May 1, 2018
Filing of Plats of Survey: Alaska
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Copper River Meridian, Alaska
T. 67 S., R. 75 E., accepted April 4, 2018
T. 67 S., R. 76 E., accepted April 4, 2018
T. 68 S., R. 75 E., accepted April 4, 2018
T. 68 S., R. 76 E., accepted April 4, 2018
T. 69 S., R. 79 E., accepted March 26, 2018
T. 70 S., R. 79 E., accepted April 4, 2018
T. 75 S., R. 86 E., accepted April 4, 2018
DEPARTMENT OF THE INTERIOR
AGENCY:
A copy of the plats may be
obtained from the Alaska Public
Information Center at the BLM Alaska
State Office, 222 W. 7th Avenue,
Anchorage, Alaska 99513, upon
required payment. The plats may be
viewed at this location at no cost. Please
use this address when filing written
protests.
ADDRESSES:
A person or party who wishes to
protest one or more plats of survey
identified above must file a written
notice of protest with the State Director
for Alaska, BLM. The notice of protest
must identify the plat(s) of survey that
the person or party wishes to protest.
The notice of protest must be filed
before the scheduled date of official
filing for the plat(s) of survey being
protested. Any notice of protest filed
after the scheduled date of official filing
will not be considered. A notice of
protest is considered filed on the date it
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is received by the State Director for
Alaska during regular business hours; if
received after regular business hours, a
notice of protest will be considered filed
the next business day. A written
statement of reasons in support of a
protest, if not filed with the notice of
protest, must be filed with the State
Director for Alaska within 30 calendar
days after the notice of protest is filed.
If a notice of protest against a plat of
survey is received prior to the
scheduled date of official filing, the
official filing of the plat of survey
identified in the notice of protest will be
stayed pending consideration of the
protest. A plat of survey will not be
officially filed until the dismissal or
resolution of all protests of the plat.
Before including your address, phone
number, email address, or other
personal identifying information in a
notice of protest or statement of reasons,
you should be aware that the documents
you submit, including your personal
identifying information, may be made
publicly available in their entirety at
any time. While you can ask us to
withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
Authority: 43 U.S.C. Chap. 3.
Douglas N. Haywood,
Chief Cadastral Surveyor, Alaska.
[FR Doc. 2018–11148 Filed 5–23–18; 8:45 am]
BILLING CODE 4310–JA–P
DEPARTMENT OF THE INTERIOR
National Park Service
[NPS–WASO–NRNHL–DTS#–25581;
PPWOCRADI0, PCU00RP14.R50000]
National Register of Historic Places;
Notification of Pending Nominations
and Related Actions
National Park Service, Interior.
Notice.
AGENCY:
ACTION:
The National Park Service is
soliciting comments on the significance
of properties nominated before May 5,
2018, for listing or related actions in the
National Register of Historic Places.
DATES: Comments should be submitted
by June 8, 2018.
ADDRESSES: Comments may be sent via
U.S. Postal Service and all other carriers
to the National Register of Historic
Places, National Park Service, 1849 C St.
NW, MS 7228, Washington, DC 20240.
SUPPLEMENTARY INFORMATION: The
properties listed in this notice are being
considered for listing or related actions
in the National Register of Historic
SUMMARY:
E:\FR\FM\24MYN1.SGM
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]]>Agencies
[Federal Register Volume 83, Number 101 (Thursday, May 24, 2018)]
[Notices]
[Pages 24136-24138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11091]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
Notice of Issuance of Final Determination Concerning Country of
Origin of Fleetcam Vehicle Cameras
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: Notice of final determination.
-----------------------------------------------------------------------
SUMMARY: This document provides notice that U.S. Customs and Border
Protection (``CBP'') has issued a final determination concerning the
country of origin of a vehicle digital video camera known as the
FleetCamTM. Based upon the facts presented, CBP has
concluded that the processing in the United States does not
substantially transform the imported digital video cameras for purposes
of U.S. Government procurement.
DATES: The final determination was issued on May 18, 2018. A copy of
the final determination is attached. Any party-at-interest, as defined
in 19 CFR 177.22(d), may seek judicial review of this final
determination within June 25, 2018.
FOR FURTHER INFORMATION CONTACT: Robert Dinerstein, Valuation and
Special Programs Branch, Regulations and Rulings, Office of Trade (202-
325-0132).
SUPPLEMENTARY INFORMATION: Notice is hereby given that on May 18, 2018,
pursuant to subpart B of Part 177, Customs and Border Protection (CBP)
Regulations (19 CFR part 177, subpart B), CBP issued a final
determination concerning the country of origin of the
FleetCamTM digital video camera, which may be offered to the
United States Government under an undesignated government procurement
contract. This final determination, HQ H294933, was issued under the
procedures set forth at 19 CFR part 177, subpart B, which implements
Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C.
2511-18). In the final determination, CBP concluded the country of
origin of the finished FleetCamTM was China, where the
digital video camera and the camera's firmware were manufactured.
Section 177.29, CBP Regulations (19 CFR 177.29), provides that a
notice of final determination shall be published in the Federal
Register within 60 days of the date the final determination is issued.
Section 177.30, CBP Regulations (19 CFR 177.30), provides that any
party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial
review of a final determination within 30 days of publication of such
determination in the Federal Register.
Dated: May 18, 2018.
Alice A. Kipel,
Executive Director, Regulations and Rulings, Office of Trade.
HQ H294933
May 18, 2018
OT:RR:CTF:VS H294933 RSD
CATEGORY: Origin
Upneet S. Teji, Esq.
Greensfelder, Hemker & Gale, P.C.
220 Madison Street, Suite 3300
Chicago, Illinois 60606
RE: Final Determination of U.S. Government Procurement; Country of
Origin of a FleetCamTM vehicle camera
Dear Mr. Teji:
This is in response to your eruling request of January 27, 2018,
for a final determination on behalf of Forward Thinking Systems LLC,
(the Company), concerning the country of origin of a FleetCam
vehicle camera pursuant to subpart B of Part 177, U.S. Customs and
Border Protection (``CBP'') Regulations (19 CFR Sec. 177.21 et.
seq.). We note that the Company is a party-at-interest within the
meaning of 19 CFR Sec. 177.22(d)(1) and is entitled to request this
final determination.
FACTS:
The product at issue is referred to as a FleetCam, which is a
high-resolution digital video camera installed in a vehicle for
streaming and recording images in real time. The FleetCam allows
companies who purchase the product to watch the drivers that they
employee in real-time, as well as view recorded speeding and other
behavior moments. The FleetCam is also able to capture, record, and
transmit images of a driver's view of the road ahead. The FleetCam
is comprised of a physical digital video camera or several cameras
setup together. The product also contains related cabling and a
receiver that is compatible for use specifically with the Company's
software and mobile applications. To use the FleetCam product, a
user must purchase the hardware and a subscription to the software
from the Company.
The FleetCam's physical digital video camera is made in China
and sourced by the Company from a Chinese firm. The firmware that is
loaded onto the camera to allow it to be operational with the
Company's software was also developed by the Chinese firm; however,
you state that the firmware was developed based upon the design,
specifications, and software architecture produced by the Company's
staff located in the United States. The firmware developed for the
FleetCam is designed specifically for use with the Company's fleet
management software. The digital camera hardware (together with the
firmware) is purchased by the Company from a Chinese producer.
The firmware is not loaded onto the camera hardware until it is
received by the Company in the United States. Upon receipt of the
camera and the firmware code, the Company's engineers load and
install the firmware on the camera hardware at the Company's offices
in the United States. An additional hardware component of the
[[Page 24137]]
FleetCam product is the telematics gateway unit (the ``cabling'').
The cabling units, including the receivers, are purchased from one
or more manufacturers, and they are manufactured and procured from
other TAA-compliant jurisdictions. The digital camera contains dual
SD Cards that allow it to internally record the events that took
place.
The basic software component of the FleetCam product is produced
in the United States. In addition, other than the firmware
development for the camera hardware, all of the FleetCam software
(including without limitation, software applications and mobile
applications) are designed, developed, and integrated with the
Company's cloud service in the United States. In order for the
FleetCam to be functional and operational, the hardware and the
related firmware is installed with the cabling and integrated with
the FleetCam software platform. This compilation process occurs
entirely in the United States.
The Company sells the FleetCam software as a software-as-a
service subscription, whereby the Company's customers enter into a
separate subscription for use of the FleetCam software. After
purchase of the FleetCam hardware, the Company's customers pay a
separate monthly fee for using its proprietary software. The
FleetCam hardware and software must be purchased together as part of
the same package. Without the FleetCam software, it is stated that
the camera and the related components are not operational. If a
customer cancels its software subscription, the FleetCam product
will no longer be functional.
ISSUE:
Whether the imported components including the digital video
camera and cabling for the FleetCam are substantially transformed
through the downloading of the Company's proprietary software in the
United States so as to make the FleetCam a product of the United
States.
LAW AND ANALYSIS:
CBP issues country of origin advisory rulings and final
determinations as to whether an article is or would be a product of
a designated country or instrumentality for the purposes of granting
waivers of certain ``Buy American'' restrictions in U.S. law or
practice for products offered for sale to the U.S. Government,
pursuant to subpart B of Part 177, 19 C.F.R. Sec. 177.21 et seq.,
which implements Title III of the Trade Agreements Act of 1979, as
amended (19 U.S.C. Sec. 2511 et seq.).
Under the rule of origin set forth under 19 U.S.C. Sec. 2518(4)(B):
An article is a product of a country or instrumentality only if (i)
it is wholly the growth, product, or manufacture of that country or
instrumentality, or (ii) in the case of an article which consists in
whole or in part of materials from another country or
instrumentality, it has been substantially transformed into a new
and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was so
transformed.
See also 19 C.F.R. Sec. 177.22(a).
In rendering final determinations for purposes of U.S.
Government procurement, CBP applies the provisions of subpart B of
Part 177 consistent with the Federal Procurement Regulations. See 19
C.F.R. Sec. 177.21. In this regard, CBP recognizes that the Federal
Acquisition Regulations restrict the U.S. Government's purchase of
products to U.S.-made or designated country end products for
acquisitions subject to the Trade Agreements Act. See 48 C.F.R.
Sec. 25.403(c)(1). The Federal Acquisition Regulations define
``U.S.-made end product'' as ``an article that is mined, produced,
or manufactured in the United States or that is substantially
transformed in the United States into a new and different article of
commerce with name, character, or use distinct from that of the
article or articles from which it was transformed.'' See 48 C.F.R
Sec. 25.003.
In Data General v. United States, 4 C.I.T. 182 (1982), the court
determined that the programming of a foreign PROM (Programmable
Read-Only Memory chip) in the United States substantially
transformed the PROM into a U.S. article. In the United States, the
programming bestowed upon each integrated circuit its electronic
function, that is, its ``memory'' which could be retrieved. A
distinct physical change was effected in the PROM by the opening or
closing of the fuses, depending on the method of programming. The
essence of the article, its interconnections or stored memory, was
established by programming. See also, Texas Instruments v. United
States, 681 F.2d 778, 782 (CCPA 1982) (stating the substantial
transformation issue is a ``mixed question of technology and customs
law''); HQ 735027, dated September 7, 1993 (programming blank media
(EEPROM) with instructions that allow it to perform certain
functions that prevent piracy of software constitutes a substantial
transformation); and, HQ 734518, dated June 28, 1993 (motherboards
are not substantially transformed by the implanting of the central
processing unit on the board because, whereas in Data General use
was being assigned to the PROM, the use of the motherboard had
already been determined when the importer imported it).
``The term `character' is defined as `one of the essentials of
structure, form, materials, or function that together make up and
usually distinguish the individual.' '' National Hand Tool Corp. v.
United States, 16 C.I.T. 308, 311 (1992) (citing Webster's Third New
International Dictionary (1981)). In National Juice Prods. Ass'n v.
United States, the Court of International Trade applied the
``essence test'' and found that the fundamental character of orange
juice concentrate was not changed by the addition of water, orange
essences, and oils to make frozen concentrated orange juice, and
hence, there was no substantial transformation. 10 C.I.T. 48, 628 F.
Supp. 978 (1986).
HQ H258960, dated May 19, 2016, reviewed the country of origin
of hardware components of certain transceivers in two scenarios that
are instructive to the case at issue here. The hardware components
of the transceivers were wholly manufactured in a foreign country
and imported into the United States. In the first scenario, the
transceivers were ``blanks'' and completely non-functional and
specialized proprietary software was developed and downloaded in the
United States, making the transceivers functional and compatible
with the OEM technology. In the second scenario, the transceivers
were preprogrammed with a generic program that was replaced with
specialized proprietary software. It was argued that in both
scenarios, the imported hardware was substantially transformed by
the development, configuration, and downloading operations of the
U.S. origin software. In the first scenario, we found that the non-
functional transceivers were substantially transformed as a result
of downloading performed in the United States, with proprietary
software developed in the United States. However, in the second
scenario, it was determined that since the transceivers had generic
network functionality, programming them merely to customize their
network compatibility would not actually change the identity of the
imported transceivers. See also HQ H241177, dated December 3, 2013.
Accordingly, it was determined that the country where the last
substantial transformation occurred was China or another Asian
country where the hardware components were manufactured.
A similar finding was made in HQ H284523, dated August 23, 2017,
where imported tablet computers were preprogrammed with a generic
program when they were first imported. The tablets could perform all
of the standard functions of an android tablet in their imported
condition. After importation, the imported tablets were customized
for a particular use as part of a system to collect and transmit a
patient's medical data by the installation of proprietary software.
The original tablet had the ability to perform all of previous
functions, but it was determined that for ease of use and for other
reasons it was best to disable these functions and to consolidate
them in one function via the specialized software. It was stated
that the general functionality of the tablet was removed and
replaced so that it was easier for patients to use the device and
access the system. It was also stated that the security of the
patient's medical data would be better protected. In HQ H284523, we
noted that it was clear that merely loading the specialized software
onto the tablet computer that remained fully functional as a
computer would be insufficient to constitute a new and different
article of commerce, since all of the functionality of the original
computer would be retained.
In this case, the Company's proprietary software is being
installed onto a digital video camera so that the camera can provide
live-streaming of a driver and his view of the road from multiple
vantage points. In addition, after the software is installed onto
the FleetCam, it is able to capture, record, and store footage of
particular incidents that may have occurred. While the particular
proprietary software is written and downloaded in the United States,
we note that the firmware being used to operate the FleetCam,
although designed in the United States, was not written in the
United States, but in China. Therefore, similar to HQ H284523, where
the tablet could function, in this case, because the digital camera
contains SD cards, it can fully function as a digital
[[Page 24138]]
video camera by capturing images and recording footage. The
installation of the proprietary software onto the FleetCam only
customizes the digital cameras to the Company's particular use and
does not change the basic identity of the imported digital video
cameras because they retain all their functions with the same name,
character and use of the imported digital video cameras. Therefore,
we find that the FleetCam is not substantially transformed by the
downloading of the Company's proprietary software onto the imported
digital video cameras, and the country of origin of the FleetCam
will be China where the main hardware, including the digital cameras
and the firmware, is manufactured.
HOLDING:
Based on the information presented in this case, the imported
digital video cameras are not substantially transformed by the
processing performed in the United States. Therefore, the country of
origin of the FleetCams is the country where the digital video
cameras and the firmware were originally produced, which in this
case is China.
Notice of this final determination will be given in the Federal
Register, as required by 19 C.F.R. Sec. 177.29. Any party-at-
interest other than the party which requested this final
determination may request, pursuant to 19 C.F.R. Sec. 177.31, that
CBP reexamine the matter anew and issue a new final determination.
Pursuant to 19 C.F.R. Sec. 177.30, any party-at-interest may,
within 30 days of publication of the Federal Register Notice
referenced above, seek judicial review of this final determination
before the Court of International Trade.
Sincerely,
Alice A. Kipel,
Executive Director,
Regulations and Rulings
[FR Doc. 2018-11091 Filed 5-23-18; 8:45 am]
BILLING CODE 9111-14-P
