[Federal Register Volume 68, Number 84 (Thursday, May 1, 2003)]
[Notices]
[Page 23325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10743]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-50,477]


Fleming Companies, Inc., Altoona, PA; Notice of Negative 
Determination Regarding Application for Reconsideration

    By application dated March 17, 2003, petitioners requested 
administrative reconsideration of the Department's negative 
determination regarding eligibility for workers and former workers of 
the subject firm to apply for Trade Adjustment Assistance (TAA). The 
denial notice applicable to workers of Fleming Companies, Inc., 
Altoona, Pennsylvania, was signed on February 4, 2003, and published in 
the Federal Register on February 24, 2003 (68 FR 8620).
    Pursuant to 29 CFR 90.18(c) reconsideration may be granted under 
the following circumstances:
    (1) If it appears on the basis of facts not previously considered 
that the determination complained of was erroneous;
    (2) If it appears that the determination complained of was based on 
a mistake in the determination of facts not previously considered; or
    (3) If in the opinion of the Certifying Officer, a 
misinterpretation of facts or of the law justified reconsideration of 
the decision.
    The TAA petition was filed on behalf of workers at Fleming 
Companies, Inc., Altoona, Pennsylvania, engaged in activities related 
to distribution services. The petition was denied because the 
petitioning workers did not produce an article within the meaning of 
section 222 of the Act.
    The petitioner asserted that the petitioning worker group did not 
perform distribution services, but produced ``business application 
software.'' The petitioner further clarified that the product involved 
a type of distribution software that could be used in convenience 
stores.
    Petitioning workers do not produce an ``article'' within the 
meaning of the Trade Act of 1974. The functions performed at the 
subject firm relate to information technology services. These services 
are thus not tangible commodities, that is, marketable products, and 
are not listed on the Harmonized Tariff Schedule of the United States 
(HTS), which describes all articles imported to the United States.
    Further, the Trade Adjustment Assistance (TAA) program was 
established to help workers who produce articles and who lose their 
jobs as a result of increases of like or directly competitive imports 
of such articles contributing importantly to the layoff. Throughout the 
Trade Act an article is often referenced as something that can be 
subject to a duty. To be subject to a duty on a tariff schedule an 
article will have a value that makes it marketable, fungible and 
interchangeable for commercial purposes. But, although a wide variety 
of tangible products are described as articles and characterized as 
dutiable in the HTS, technology services that are electronically 
transmitted are not listed in the HTS.

Conclusion

    After review of the application and investigative findings, I 
conclude that there has been no error or misinterpretation of the law 
or of the facts which would justify reconsideration of the Department 
of Labor's prior decision. Accordingly, the application is denied.

    Signed at Washington, DC, this 17th day of April, 2003.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 03-10743 Filed 4-30-03; 8:45 am]
BILLING CODE 4510-30-P