Notice2025-09321
Notice of Issuance of Final Determination Concerning Platform Software
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 23, 2025
Issuing agencies
Homeland Security DepartmentU.S. Customs and Border Protection
Abstract
This document provides notice that U.S. Customs and Border Protection (CBP) has issued a final determination concerning the country of origin of platform software. Based upon the facts presented, CBP has concluded that the last substantial transformation occurs in the United States.
Full Text
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<title>Federal Register, Volume 90 Issue 99 (Friday, May 23, 2025)</title>
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[Federal Register Volume 90, Number 99 (Friday, May 23, 2025)]
[Notices]
[Pages 22107-22109]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-09321]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
Notice of Issuance of Final Determination Concerning Platform
Software
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 platform software. Based upon the facts presented,
CBP has concluded that the last substantial transformation occurs in
the United States.
DATES: The final determination was issued on May 15, 2025. 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 no later than June 23, 2025.
FOR FURTHER INFORMATION CONTACT: Jordan Higgins, Valuation and Special
Programs Branch, Regulations and Rulings, Office of Trade, at (202)
325-1134.
SUPPLEMENTARY INFORMATION: Notice is hereby given that on May 15, 2025,
CBP issued a final determination concerning the country of origin of
Unifyia platform software for purposes of title III of the Trade
Agreements Act of 1979. This final determination, Headquarters Ruling
Letter (``HQ'') H342822, was issued at the request of Unifyia, Inc.
under 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 has concluded
that, based upon the facts presented, the platform software is
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substantially transformed in the United States.
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.
Alice A. Kipel,
Executive Director, Regulations and Rulings, Office of Trade.
HQ H342822
May 15, 2025
OT:RR:CTF:VS H342822 JH
Category: Origin
David M. Verhey, Principal, FLG Counsel, 1717 K Street NW, Suite
900, Washington, DC 20006
Re: U.S. Government Procurement; Title III, Trade Agreements Act of
1979 (19 U.S.C. 2511); Subpart B, Part 177, CBP Regulations; Country
of Origin of Unifyia Platform Software; Substantial Transformation
Dear Mr. Verhey:
This is in response to your request, dated October 31, 2024, on
behalf of Unifyia, Inc. (``Unifyia''), for a final determination
concerning the country of origin of Unifyia Platform Software,
pursuant to Title III of the Trade Agreements Act of 1979 (``TAA''),
as amended (19 U.S.C. 2511 et seq.), and subpart B of Part 177, U.S.
Customs and Border Protection (``CBP'') Regulations (19 CFR 177.21,
et seq.). Unifyia, Inc. is a party-at-interest within the meaning of
19 CFR 177.22(d)(1) and 177.23(a) and is therefore entitled to
request this final determination.
Facts
The merchandise under consideration is Unifyia Platform
Software, described as software that provides identity and
credential management, and high assurance authentication solutions
for the United States Government. Unifyia's software is built using
a four-step process with the assistance of a subsidiary in India.
The first step is design and engineering efforts conducted by the
Unifyia team in the United States; the second step is source code
development by the Unifyia team in India; the third step is the
compilation of source code into executable object code by the same
team in the United States; and the last step is to secure the
finished software in storage on Amazon Web Services (``AWS'') for
deployment to government customers.
Step 1
The beginning stages of the development process start in the
United States. The company's U.S.-based engineers design the
software functionality and service model for the development
process.
Step 2
In this step, the Indian-based team, in coordination with the
U.S. team during the development process, produces 80 percent of the
source code, while the remaining 20 percent is developed in the
United States. The code is made to meet the requirements of the U.S.
design architecture plan. The software programmers write the
computer code using Java, C++, and Swift languages, while the user-
interface designers design and write the computer code for a
graphical layout using Typescript, HTML, FreeMarker, React Native,
and JavaScript. Once completed, the India-based team uploads the
source code to Bitbucket, a secure U.S.-based code repository.
Before step 3 can begin, the U.S. team initiates code cleansing
and debugging. This must be performed before the source code can be
transformed into executable code. This process is done in the United
States under the direction of the U.S. engineering team which
ensures that all issues are addressed. During the process, the
source code is modified by deleting or modifying one or more
portions of the original source code to produce new source code.
Step 3
Once cleansing and debugging are complete, the U.S. team
initiates the continuous integration/continuous deployment (CI/CD)
process. At this stage, the U.S. team authorizes the movement of the
source code from Bitbucket to Bitbucket Pipeline (a U.S.-based
platform) or to the server (U.S.-based machine), that automatically
converts the source code to executable object code. In the same
process, the object code is released with version control for easier
maintenance.
Step 4
Stated as the end of the CI/CD process, Unifyia in the United
States sends the executable object code to DockerHub, Dropbox, the
App Store, and/or the Play Store, all U.S.-based platforms, for
secure storage. The U.S. team then delivers the new object code to
the purchaser through AWS, a U.S.-based platform located in Ashburn,
Virginia, that allows customers to access applications or that
provides secure storage for its customers.
Issue
What is the country of origin of the platform software for
purposes of U.S. Government procurement?
Law & 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 purpose 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 CFR 177.21 et seq., which
implements Title III, Trade Agreements Act of 1979, as amended (19
U.S.C. 2511-2518).
CBP's authority to issue advisory rulings and final
determinations stems from 19 U.S.C. 2515(b)(1), which states:
For the purposes of this subchapter, the Secretary of the
Treasury shall provide for the prompt issuance of advisory rulings
and final determinations on whether, under section 2518(4)(B) of
this title, an article is or would be a product of a foreign country
or instrumentality designated pursuant to section 2511(b) of this
title.
Emphasis added.
The Secretary of the Treasury's authority mentioned above, along
with other customs revenue functions, are delegated to the Secretary
of Homeland Security via Treasury Department Order (TO) 100-20
``Delegation of Customs revenue functions to Homeland Security,''
dated October 30, 2024, and are subject to further delegations to
CBP (see also 19 CFR part 177, subpart B).
The rule of origin set forth in 19 U.S.C. 2518(4)(B) states:
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 CFR 177.22(a).
In rendering advisory rulings and final determinations for
purposes of U.S. Government procurement, CBP applies the provisions
of subpart B of Part 177 consistent with the Federal Acquisition
Regulation (``FAR''). See 19 CFR 177.21. In this regard, CBP
recognizes that the FAR restricts the U.S. Government's purchase of
products to U.S.-made or designated country end products for
acquisitions subject to the TAA. See 48 CFR 25.403(c)(1).
The FAR, 48 CFR 25.003, defines ``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 a name,
character, or use distinct from that of the article or articles from
which it was transformed.
Additionally, the FAR, 48 CFR 25.003, defines ``designated
country end product'' as:
a WTO GPA [World Trade Organization Government Procurement
Agreement] country end product, an FTA [Free Trade Agreement]
country end product, a least developed country end product, or a
Caribbean Basin country end product.
Section 25.003 defines ``WTO GPA country end product'' as an
article that:
(1) Is wholly the growth, product, or manufacture of a WTO GPA
country; or
(2) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in a WTO GPA country 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 transformed. The term refers
to a product offered for purchase under a supply contract, but for
purposes of calculating the value of the end product includes
services (except transportation services) incidental to the
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article, provided that the value of those incidental services does
not exceed that of the article itself.
CBP has consistently held that conducting a software build,
compiling source code into object code, results in a substantial
transformation. In a final determination that CBP issued,
Headquarters Ruling Letter (``HQ'') H301776, dated Aug. 7, 2019, two
software products were produced using a four-step process: (1)
writing original source code, or modifying open source software code
in the United States; (2) writing or modifying source code in
Canada; (3) compiling the source code into executable object code in
the United States; and (4) delivering the finished software to the
purchaser. In the final determination, CBP cited to two secondary
sources to highlight how ``source code'' and ``object code'' differ
in several important ways. Source code is a ``computer program
written in a high level human readable language.'' See, e.g., Daniel
S. Lin, Matthew Sag, and Ronald S. Laurie, Source Code versus Object
Code: Patent Implications for the Open Source Community, 18 Santa
Clara High Tech. L.J. 235, 238 (2001). While it is easier for humans
to read and write programs in ``high level human readable
languages,'' computers cannot execute these programs. See Note,
Copyright Protection of Computer Program Object Code, 96 Harv. L.
Rev. 1723, 1724 (1983). Computers can execute only ``object code,''
which is a program consisting of clusters of ``0'' and ``1''
symbols. Id. Programmers create object code from source code by
feeding it into a program known as a ``compiler.'' Id. CBP held that
the name, character, and use of the source code were changed as a
result of its compilation into executable object code and its
completion into finished software in the United States.
CBP also held in another final determination, HQ H268858, dated
Feb. 12, 2016, that conducting a software build resulted in a
substantial transformation. In that decision, four software products
were produced using a similar multi-stage process: (1) writing the
source code in Malaysia; (2) compiling the source code into usable
object code in the United States; and (3) installing the finished
software on U.S.-origin discs in the United States. CBP held that
all four software products were substantially transformed in the
United States, finding that the software build conducted in the
United States created a new and different article with a new name,
character, and use. See also HQ H243606, dated Dec. 4, 2013 (source
code programmed in China and then compiled into object code in the
United States was a substantial transformation).
In this case, the writing of source code in India (and the
United States) involves the creation of computer instructions in a
high level human readable language, whereas the software build
performed in the United States involves the compilation of those
instructions into a format that computers can execute. Based on the
information provided, and consistent with the rulings cited above,
we find that as a result of the software build that occurs when the
source code is transformed into executable code when moved through
either of the two U.S.-based platforms, Bitbucket Pipeline or the
U.S.-based server, the last substantial transformation occurs in the
United States. Through this process, the character changes from
computer code to finished software, and the use changes from
instructions to an executable program. Therefore, Unifyia's software
is not a product of a foreign country or instrumentality designated
pursuant to 19 U.S.C. 2511(b). As to whether Unifyia's software
qualifies as a ``U.S.-made end product,'' you may wish to consult
with the relevant government procuring agency and review Acetris
Health, LLC v. United States, 949 F.3d 719 (Fed. Cir. 2020).
Holding
Based on the facts and analysis set forth above, the subject
Unifyia, Inc. platform software is last substantially transformed in
the United States.
Notice of this final determination will be given in the Federal
Register, as required by 19 CFR 177.29. Any party-at-interest other
than the party which requested this final determination may request,
pursuant to 19 CFR 177.31, that CBP reexamine the matter anew and
issue a new final determination. Pursuant to 19 CFR 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 U.S. Court of International Trade.
Sincerely,
Alice A. Kipel
Executive Director, Regulations & Rulings, Office of Trade
[FR Doc. 2025-09321 Filed 5-22-25; 8:45 am]
BILLING CODE 9111-14-P
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</html>Indexed from Federal Register on May 23, 2025.
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