[Federal Register Volume 69, Number 8 (Tuesday, January 13, 2004)]
[Notices]
[Pages 2007-2008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-652]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-51,368]


Mellon Bank, N.A., Pittsburgh, PA; Notice of Negative 
Determination on Reconsideration on Remand

    The United States Court of International Trade (USCIT) granted the 
Secretary of Labor's motion for a voluntary remand for further 
investigation in Former Employees of Mellon Bank, N.A. v. Elaine Chao, 
U.S. Secretary of Labor, No. 03-00374.
    The Department's initial negative determination for the workers of 
Mellon Bank, N.A. (hereafter ``Mellon Bank'') was issued on April 14, 
2003, and published in the Federal Register on May 1, 2003 (68 FR 
23322). The determination was based on the finding that workers did not 
produce an article within the meaning of section 222 of the Trade Act 
of 1974. The Department determined that the subject worker group were 
not engaged in the production of an article, but engaged in activities 
related to computer technology services.
    By letter to the U.S. Court of International Trade, filed on June 
13, 2003, the petitioner requested administrative reconsideration. The 
petitioner asserted that the workers produced a product through 
development and creation of software and, therefore, were not service 
providers.
    On remand, the Department conducted an investigation to determine 
whether the petitioners were production workers and, if so, whether the 
workers were eligible to apply for TAA. The remand investigation 
consisted of independent research and analysis of software as a 
commodity and requesting additional information from the petitioner and 
the company regarding the functions of the subject worker group and the 
operations of the subject company.
    The remand investigation revealed that Mellon Bank provides 
financial services for corporations, institutions and wealthy 
individuals. These services include asset management, trust and custody 
securities lending, foreign

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exchange, annuities, private wealth management, private banking, cash 
management, and credit and capital market services. In addition, it was 
determined that neither Mellon Bank nor the petitioning workers produce 
an ``article'' within the meaning of the Trade Act of 1974.
    The remand investigation also revealed that the petitioning workers 
designed and developed computer software applications that allow the 
subject company to provide financial services to its customers, such as 
software that were custom-designed to fit end-users' needs and produced 
reports that are electronically transmitted to the customer. These 
applications are not sold as manufactured products to the general 
public or sold as a component to an article that is available to the 
general public.
    While the Department considers workers who are engaged in the mass 
copying of software and manufacturing of the medium upon which the 
software is stored, such as compact disks and floppy disks, to be 
production workers, the Department does not consider the design and 
development of the software itself to be production and, therefore, 
does not consider software designers and developers to be production 
workers.
    The U.S. Customs Service does not regard software design and 
development as a tangible commodity and determines the value of 
software based only on the cost of the carrier media, such as compact 
discs, floppy disks, records, and tapes. Further, computer software is 
not listed on the Harmonized Tariff Schedule of the United States 
(HTS), a code that represents an international standard maintained by 
most industrialized countries as established by the International 
Convention on the Harmonized Commodity Description and Coding.
    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. While a wide 
variety of tangible products are described as articles and 
characterized as dutiable in the HTS, informational products that could 
historically be sent in letter form and that can currently be 
electronically transmitted are not listed in the HTS. Such products are 
not the type of employment work products that customs officials inspect 
and that the TAA program was generally designed to address.

Conclusion

    After reconsideration on remand, I affirm the original notice of 
negative determination of eligibility to apply for adjustment 
assistance for workers and former workers of Mellon Bank, N.A., 
Pittsburgh, Pennsylvania.

    Signed at Washington, DC, this 6th day of January, 2004.
Linda G. Poole,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 04-652 Filed 1-12-04; 8:45 am]
BILLING CODE 4510-30-P