[Federal Register Volume 69, Number 36 (Tuesday, February 24, 2004)]
[Notices]
[Pages 8489-8490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3928]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-53,401]


Pitney Bowes, Inc., Holyoke Facility, Holyoke, Massachusetts; 
Notice of Negative Determination Regarding Application for 
Reconsideration

    By application of December 17, 2003, a petitioner 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 Pitney Bowes, Inc., Holyoke 
Facility, Holyoke, Massachusetts was signed on December 5, 2003, and 
published in the Federal Register on January 16, 2004 (69 FR 2622).
    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 Pitney Bowes, 
Inc., Holyoke Facility, Holyoke, Massachusetts engaged in design of 
Digital Document Delivery software. The petition was denied because the 
petitioning workers did not produce an article within the meaning of 
section 222 of the Act.
    The petitioner contends that the Department erred in its 
interpretation of work performed at the subject facility as a service 
and refers to the production of D3tm software as a final product. As a 
proof, the petitioner attached a description of the software and a 
photocopy of the disk, which bears the logo of ALYSIS Technologies.
    A company official was contacted for clarification in regard to the 
nature of the work performed at the subject facility. The official 
stated that workers of Holyoke facility are Java engineers, engaged in 
IT solution and development, software coding and documentation. The 
official further clarified that designed and engineered software (D3) 
is electronically transmitted from the subject facility to the CD rom 
production facility in Lisle,

[[Page 8490]]

Illinois. The company official reported that the development stage of 
D3 product is currently in the process of being outsourced to India. 
The company official further stated that development process which will 
begin in India will result in engineers developing source codes which 
will be electronically transmitted to the United States for further 
modification, stamping and distribution to customers.
    The sophistication of the work involved is not an issue in 
ascertaining whether the petitioning workers are eligible for trade 
adjustment assistance, but rather only whether they produced an article 
within the meaning of section 222 of the Trade Act of 1974.
    Software design, developing and coding are not considered 
production of an article within the meaning of Section 222 of the Trade 
Act. Petitioning workers do not produce an ``article'' within the 
meaning of the Trade Act of 1974. Formatted electronic software and 
codes are not tangible commodities, that is, marketable products, and 
they are not listed on the Harmonized Tariff Schedule of the United 
States (HTS), as classified by the United States International Trade 
Commission (USITC), Office of Tariff Affairs and Trade Agreements, 
which describes articles imported to the United States.
    To be listed in the HTS, an article would be subject to a duty on 
the tariff schedule and have a value that makes it marketable, fungible 
and interchangeable for commercial purposes. Although 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.
    The petitioner also alleges that imports impacted layoffs, 
asserting that because workers lost their jobs due to a transfer of job 
functions to India, petitioning workers should be considered import 
impacted.
    The petitioning worker group is not considered to have engaged in 
production, thus any foreign transfer of their job duties is irrelevant 
within the context of eligibility for trade adjustment assistance.
    Finally, the petitioner alleges that the workers of the subject 
firm meet the requirements for TAA on the basis that ``workers' 
separation was caused by a reduced demand for services from a parent 
firm.''
    The petitioner should note that this criterion applies to a workers 
group only when their separations are 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. The investigation revealed no such affiliations.

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 6th day of February, 2004.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 04-3928 Filed 2-23-04; 8:45 am]
BILLING CODE 4510-30-P