[Federal Register Volume 69, Number 15 (Friday, January 23, 2004)]
[Notices]
[Pages 3391-3392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1437]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-52,082]


Computer Sciences Corporation Workers Employed at Pratt & 
Whitney; West Palm Beach, FL; Notice of Negative Determination 
Regarding Application for Reconsideration

    By application postmarked September 5, 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 Computer Sciences Corporation 
employed at Pratt & Whitney, West Palm Beach, Florida was signed on 
August 4, 2003, and published in the Federal Register on August 18, 
2003 (68 FR 49522).
    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 mis-
interpretation of facts or of the law justified reconsideration of the 
decision.
    The TAA petition was filed on behalf of workers at Computer 
Sciences Corporation employed at Pratt & Whitney, West Palm Beach, 
Florida engaged in information technology services for Pratt & Whitney. 
The petition was denied because the petitioning workers did not produce 
an article within the meaning of Section 222 of the Act.
    In the request for reconsideration, the petitioners alleged that 
the petitioning worker group did produce a product, describing their 
function specifically as ``writing software programs.'' The petitioner 
also infers that the fact that these software programs are copyrighted 
is proof of their status as a product and not a service. Further 
conversations with the petitioners indicated that they were 
coordinating a shift of work functions to India and Connecticut prior 
to their layoff.
    A conversation with the company official indicated that some of the 
petitioning workers performed computer ``source coding'' for a 
mainframe owned by Pratt & Whitney,

[[Page 3392]]

and that this mainframe was moved to Connecticut, necessitating a 
separation for workers at the West Palm Beach facility. The official 
also stated that other workers were engaged in creating design 
specifications for Pratt & Whitney's SAP applications, and that some 
``source coding services'' were performed in India.
    The Department has traditionally deemed custom software design and 
programming as a service. Electronically generated software code is not 
a tangible commodity. This is supported by the fact that they are not 
marketable products listed on the Harmonized Tariff Schedule of the 
United States (HTS), published by the United States International Trade 
Commission (USITC), Office of Tariff Affairs and Trade Agreements, 
which describes all articles imported to or exported from the United 
States.
    Further support that Computer Sciences Corporation workers in West 
Palm Beach did not produce an article is found in examining what items 
are subject to a duty. 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.
    However, although a wide variety of tangible products are described 
as articles and characterized as dutiable in the HTS, customized 
software code such as that created by the petitioning worker group is 
not listed in the HTS. Such items are not the type of work products 
that customs officials inspect and that the Trade Adjustment Assistance 
program was generally designed to address.
    Further, a discussion with an official at the U.S. Customs Service 
clarified that, when software is considered dutiable, the tariff is 
based on the cost of the media (such as paper, CD, or computer disk) 
and not on the value of the information contained on the media. As the 
customized computer code in question for this worker group is 
transmitted electronically, no value could be assessed in terms of 
import impact.
    In addition, the 2002 edition of the North American Industrial 
Classification System (NAICS), a standard used by the Department to 
categorize products and services, designates ``establishments primarily 
engaged in writing, modifying, testing, and supporting software to meet 
the needs of a particular customer'' as ``Custom Computer Programming 
Services'' (NAICS 541511).
    Only in very limited instances are service workers certified for 
TAA, namely the worker separations must be caused by a reduced demand 
for their services from a parent or controlling firm or subdivision 
whose workers produce an article and who are currently under 
certification for TAA.

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 December, 2003.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 04-1437 Filed 1-22-04; 8:45 am]
BILLING CODE 4510-30-P