Notice of Issuance of Final Determination Concerning Country of Origin of Fleetcam Vehicle Cameras |
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Topics: FleetCam
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Alice A. Kipel
Department of Homeland Security
24 May 2018
[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]
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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.
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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
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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]
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