[Federal Register Volume 69, Number 15 (Friday, January 23, 2004)]
[Notices]
[Pages 3394-3395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1438]


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DEPARTMENT OF LABOR

Employment and Training Administration

[NAFTA-6472]


Ericsson, Inc., Brea, CA; 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 Ericsson, Inc. v. Elaine Chao, 
U.S. Secretary of Labor (Court No. 02-00809).
    The Department's initial negative determination for the workers of 
Ericsson, Inc. (hereafter ``Ericsson'') was issued on September 24, 
2002 and published in the Federal Register on October 10, 2002 (67 FR 
63160). The determination was based on the finding that workers did not 
produce an article within the meaning of Section 250(a) of the Trade 
Act of 1974, as amended. The Department determined that the workers 
develop computer software for other Ericsson units. The petitioners did 
not appeal to the Department for administrative reconsideration.
    By letter to the U.S. Court of International Trade, filed on 
December 18, 2002, the petitioner requested judicial review. The 
petitioner asserted that the Department did not conduct a full 
investigation of the petition, that the workers were misclassified as 
service providers, and that the Department incorrectly applied the 
eligibility criteria.
    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 NAFTA-TAA. The remand investigation 
consisted of independent research and analysis of software as a 
commodity and multiple requests of additional information from the 
petitioners and the subject company regarding the functions of the 
subject worker group.
    The initial investigation revealed that Ericsson is a global 
supplier of mobile communication systems and solutions, that the 
subject facility developed software applications for other Ericsson 
units, the absence of production at the subject facility, and that the 
petitioning worker group developed software components which enable 
base station units (controllers) to route cellular phone calls for 
customers with service contracts with Ericsson. The investigation also 
revealed that the subject facility did not support an affiliated 
facility covered by an existing certification.
    The remand investigation revealed that the petitioning workers 
designed and programmed software which enabled base stations (routing 
equipment) to properly route cellular phone messages pursuant to 
customers' telecommunication needs. The software was 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

[[Page 3395]]

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 Ericsson, Inc., Brea, 
California.

    Signed at Washington, DC this 14th day of January 2004.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 04-1438 Filed 1-22-04; 8:45 am]
BILLING CODE 4510-30-P