Mr. Joshua Holzer
Wilson, Sonsini, Goodrich & Rosati
1700 K Street, NW, Fifth Floor
Washington, DC 20006-3817

RE:     U.S. Government Procurement; Title III, Trade Agreements Act of 1979 (19 U.S.C. § 2511); Subpart B, Part 177, CBP Regulations; ICS Units

Dear Mr. Holzer: This is in response to your request dated October 15, 2009, made on behalf of Scale Computing (“Scale”). You ask for a country of origin marking decision and final determination relating to government procurement pursuant to subpart B of Part 177, Customs and Border Protection (“CBP”) Regulations (19 C.F.R. § 177.21 et seq.). Under these regulations, which implement Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. § 2511 et seq.), CBP issues country of origin advisory rulings and final determinations on 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.

This final determination concerns the country of origin of Scale’s SN1000, SN2000, and SN4000 Commodity-based Clustered Storage (“ICS”) Units. We note that Scale is a party-at-interest within the meaning of 19 C.F.R. § 177.22(d)(1) and is entitled to request this final determination. FACTS: Scale Computing produces storage appliances that offer a multi-protocol, multi-density suite of non-controller-based, unified NAS/SAN, enterprise-class storage solutions. Scale’s SN1000, SN2000, and SN4000 ICS Units are mass data storage devices similar in function to Storage Area Network (“SAN”) or Network Attached Storage (“NAS”) devices (i.e., special-purpose networks that interconnect different kinds of data storage devices – such as tape libraries and disk arrays – with associated data servers on behalf of a larger network of users). Their software architecture uses both proprietary and licensed technologies to create a grid storage system from multiple clustered “nodes” (small, commodity-based hardware devices). The models at issue differ only in their storage capacity; the SN1000 holds 1 Terabyte worth of data, the SN2000 holds 2 Terabytes, and the SN4000 holds 4 Terabytes.

The ICS Units consist of the following components:

A. Hardware

A Central Processing Unit (“CPU”), which is used to provide the computing power;

An Application Specific Integrated Circuit (“ASIC”) that provides the proper processing speeds;

A capacitor and resistors;

Electrically erasable programmable read-only memory (“EEPROM”) to retain data in the event of power loss;

A “motherboard”, which is a printed circuit board populated by transistors, diodes, capacitors, and communication board;

Additional motherboard components that provide additional data throughput;

A Western Digital brand Hard Disk Drive (“HDD”) that stores data;

A memory module, which enhances overall throughput;

An air shroud, which helps with system cooling;

A heat sink that protects internal components from heat;

Two five foot patch cables, which connect to backplane for communication; and

A chassis that encloses all of the above listed components.

The components listed above are manufactured in several countries including China, India, Malaysia, Taiwan, and Thailand. (Significantly, the motherboard, which is the most expensive hardware component, is manufactured in China.) They are assembled in the U.S. upon importation “through a build and verification process that includes approximately 112 steps [summarized below].”

B. Software

The ICS Units also contain proprietary application software and firmware. Together, they enable the ICS Units to (1) create a cluster of nodes which act in unison, and (2) independently control the entire cluster.

The application software and the firmware were developed in the U.S. by Scale. You indicated that the development process entailed: (1) a requirements analysis; (2) product design; (3) code writing; (4) quality assurance testing; (5) bug fixing and maintenance; and (5) support. By your estimation, “at least 12,480 hours were invested in the development of the firmware and application software in question” with “at least 10,400 more hours invested each year in continued development and maintenance.”

C. Assembly

The ICS Units are made from components manufactured in China, India, Malaysia, Taiwan, and Thailand. They are ultimately assembled in the U.S., according to the following process:

Initial Quality Control: personnel take component inventory and visually inspect each component. Serial numbers from each component are scanned into inventory and grouped with a particular ICS Unit. Serial numbers are verified for compatibility with other components in the group.

Preparation of the System Chassis: after clearing the system board area, the motherboard is secured to the chassis.

The Serial Advanced Technology Attachment (“SATA”) backplane cabling is attached: after lining up the appropriate markings, the SATA cable is connected to the SATA Backplane by using a SATA cable tree.

The molex connector and intrusion detectors are attached to the SATA backplane.

Preparation of the system board: The CPU, CPU Cooler, and Random Access Memory (“RAM”) are attached to the system board.

Integration of the system board: the system board is integrated into the chassis by aligning it with the mounting holes and ensuring proper alignment with the I/O shield. The system board, main power harness, and power connector are then secured to the chassis. The main power harness is attached to the system board.

Fan kit assembly: Fan connectors are plugged into internal ports.

Routing and bundling of the front panel connectors: Front panel connectors are appropriately routed and connected.

Air shroud integration: air shroud is positioned and attached to power cable.

Signal Cables: signal cables are connected to the system board in the appropriate order, from SATA 0 through SATA 3.

Verify and ensure the cable routing and connections: the intrusion detection cable is bundled and secured, and the “Chassis Intrusion” is attached next to the SATA connectors.

Hard drive Integration: hard drive fillers are removed from chassis.

Install hard drives (parts from Bill of Materials) and secure: the capacity of all hard drives is verified to ensure they are either 500 GB or 1000GB. The hard drives are the systematically distributed on all order systems.

Verify hardware integration: the hardware is verified to ensure that the system boards with CPU, Heat sink, and RAM has been properly mounted; the heat sink has proper orientation and is properly mounted; the cable routing and connections are correctly implemented; the air-duct (black shroud) is properly attached to the system board; the hard drives are properly assembled in carrier and lock in place; and that the Intrusion Detection Switch and Connector has been properly integrated.

Secure chassis: the lid of chassis is secured with screws.

First power on: the system is connected to a power source. The Network Interface Card (“NIC”) is connected to the “Staging Services”. The keyboard and mouse are plugged in. The power system is turned and checked for any abnormalities. The boot process is checked. The POST of system is tested to verify that there are no acoustical warnings.

BIOS Configuration: each system is booted into BIOS and all of the BIOS variables are reset to their defaults. The BIOS is then customized to run Scale’s firmware and application software by adjusting fifteen separate settings.

Diagnostic Testing: after the system is rebooted, a technician performs a general diagnostic test and reboots again.

Scale Image Loading: on this reboot, a technician connects the ICS Unit to power and checks that the system’s configuration is correct. After connecting the ICS Unit to a network, the technician loads the Company’s proprietary Operating System (“OS”) application software image, which enables the ICS Unit to act as part of a Scale system. The technician must observe the entire load process to ensure that the ICS Unit is properly configured and accepts the OS load.

Verification: the technician now runs an MD5 Check-Sum program to confirm that the OS image on the ICS Unit is identical to Scale’s proprietary OS image.

Complete Integration and Verify: the technician now reboots the ICS Unit again to verify the BIOS settings are correctly implemented. The ICS Unit is then shut down.

It takes approximately one hour to assemble each ICS Unit.

ISSUE: What is the country of origin of the ICU Units for purposes of U.S. Government procurement? LAW AND ANALYSIS: 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 (“TAA”; 19 U.S.C. § 2511 et seq.), CBP issues country of origin advisory rulings and final determinations on 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.

Under the rule of origin set forth at 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 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 Procurement Regulations. See 19 C.F.R. § 177.21. In this regard, CBP recognizes that the Federal Procurement Regulations restrict 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 C.F.R. § 25.403(c)(1).

In order to determine whether a substantial transformation occurs when components of various origins are assembled to form completed articles, CBP considers the totality of the circumstances and makes such decisions on a case-by-case basis. The country of origin of the article’s components, the extent of the processing that occurs within a given country, and whether such processing renders a product with a new name, character, and use are primary considerations in such cases. Additionally, facts such as resources expended on product design and development, extent and nature of post-assembly inspection procedures, and worker skill required during the actual manufacturing process will be considered when analyzing whether a substantial transformation has occurred; however, no one such factor is determinative.

In Data General v. United States, 4 CIT 182 (1982), the court determined that for purposes of determining eligibility under item 807.00, Tariff Schedules of the United States, the programming of a foreign PROM (Programmable Read-Only Memory chip) substantially transformed the PROM into a U.S. article. In programming the imported PROMs, the U.S. engineers systematically caused various distinct electronic interconnections to be formed within each integrated circuit. The programming bestowed upon each 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. This physical alteration, not visible to the naked eye, could be discerned by electronic testing of the PROM. The court noted that the programs were designed by a project engineer with many years of experience in “designing and building hardware.” While replicating the program pattern from a “master” PROM may be a quick one-step process, the development of the pattern and the production of the “master” PROM required much time and expertise. The court noted that it was undisputed that programming alters the character of a PROM. The essence of the article, its interconnections or stored memory, was established by programming. The court concluded that altering the non-functioning circuitry comprising a PROM through technological expertise in order to produce a functioning read only memory device possessing a desired distinctive circuit pattern was no less a "substantial transformation" than the manual interconnection of transistors, resistors and diodes upon a circuit board creating a similar pattern.

In Texas Instruments v. United States, 681 F.2d 778, 782 (CCPA 1982), the court observed that the substantial transformation issue is a “mixed question of technology and customs law.”

In C.S.D. 84-86, CBP stated:

We are of the opinion that the rationale of the court in the Data General case may be applied in the present case to support the principle that the essence of an integrated circuit memory storage device is established by programming . . . . [W]e are of the opinion that the programming (or reprogramming) of an EPROM results in a new and different article of commerce which would be considered to be a product of the country where the programming or reprogramming takes place.

Accordingly, the programming of a device that changes or defines its use generally constitutes substantial transformation. See also HQ 733085, dated July 13, 1990; and HQ 558868, dated February 23, 1995 (programming of SecureID Card substantially transforms the card because it gives the card its character and use as part of a security system and the programming is a permanent change that cannot be undone); HQ 735027, dated September 7, 1993 (programming blank media (EEPROM) with instructions on it that allows it to perform certain functions of preventing piracy of software constituted substantial transformation); but see HQ 732870, dated March 19, 1990 (formatting a blank diskette did not constitute substantial transformation because it did not add value, did not involve complex or highly technical operations and did not create a new or different product); HQ 734518, dated June 28, 1993 (concluding that motherboards were 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 imports it).

You claim that Scale takes several individual components and combines them in the United States to make otherwise dormant electronic components into a usable customized data storage device. The motherboard is imported from China with integrated circuits, an EEPROM, transistors, diodes, a capacitor, resistors and communication buses. From the information provided, the board is solely or principally used with an ADP storage unit. Once imported, the motherboard will be installed in a chassis from China, along with various other non-originating components including a CPU from Malaysia, HDD from Thailand, memory module, air shroud, cables, and heat sink from China, to complete a rack mounted server. Each of these components is made into a rack mounted storage device, classifiable under 8471.70.40, Harmonized Tariff Schedule (“HTSUS”).

The device does not have pairing capability until the U.S.-made software is downloaded to it, which enables the device to function as a cloud computing device similar to a network storage RAID array (HDDs strung together to allow redundancy in different locations). The software completes a network storage function instead of just a HDD found in a rack mounted storage device. The RAID array storage subsystem components and HDD canisters usually include a disk array controller frame which effects the interface between the subsystem’s storage units and a CPU. In this case, the software effects the interconnection between the CPU and the storage units, and the classification of the finished item becomes 8471.80.10, HTSUS. Thus, the imported components become a new product with a new name and classification.

In summary, Scale imports several components of foreign-origin, including a blank storage medium in the form of a hard disk drive, combines them into a finished product and loads propriety software using skilled technical effort. The customization and installation of firmware and application software make what would otherwise be a non-functioning rack storage unit, into Scale’s proprietary clustered technology. As a result of the U.S. processing, we find that the imported component parts are substantially transformed and therefore, the country of origin of the ICS Units is the United States.

Please be advised, however, that whether the ICS Units may be marked "Made in the U.S.A." or with similar words, is an issue under the authority of the Federal Trade Commission ("FTC"). We suggest that you contact the FTC, Division of Enforcement, 6th and Pennsylvania Avenue, NW, Washington, DC 20508, on the propriety of markings indicating that articles are made in the United States.


Based on the facts provided, the processing operations performed in United States impart the essential character to the ICS Units. As such, the ICS Units will be considered products of the United States for the purpose of government procurement.

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. Any party-at-interest may, within 30 days after publication of the Federal Register notice referenced above, seek judicial review of this final determination before the Court of International Trade.


Sandra L. Bell, Executive Director Regulations and Rulings
Office of International Trade