[Federal Register Volume 69, Number 44 (Friday, March 5, 2004)]
[Notices]
[Pages 10481-10482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4962]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-52, 981]


OC[Eacute] Groupware Technology, Inc. (OGT), A Subsidiary of 
OC[Eacute]--USA Holding, Inc., A Member of the OC[Eacute] Group, A 
Subsidiary of OC[Eacute] N.V., Boise, ID

Notice of Negative Determination Regarding Application for 
Reconsideration

    By application postmarked December 1, 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 Oc[eacute] Groupware Technology, 
Inc. (OGT), a subsidiary of Oc[eacute]--USA Holding, Inc., a member of 
the Oc[eacute] Group, a subsidiary of Oc[eacute] N.V., Boise, Idaho was 
signed on October 10, 2003,

[[Page 10482]]

and published in the Federal Register on November 6, 2003 (68 FR 
62832).
    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 Oc[eacute] 
Groupware Technology, Inc. (OGT), a subsidiary of Oc[eacute]--USA 
Holding, Inc., a member of the Oc[eacute] Group, a subsidiary of 
Oc[eacute] N.V., Boise, Idaho engaged in development of 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 software as a final ``master'' package 
product. As a proof, the petitioner attached a description and price 
lists of the software, and an example of a Software License and 
Transfer Agreement dated May, 1999.
    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 Oc[eacute] Group, a subsidiary of Oc[eacute] 
N.V., Boise, Idaho are software engineers, engaged in IT solution and 
development, and administrative workers, engaged in sales, support, 
marketing and product planning. The official further clarified that the 
subject facility develops a unique software which is transmitted from 
the subject facility to Itasca, Illinois for software ``duplicating'' 
or stamping on to CD-roms in response to orders received. The CDs are 
further packaged and shipped to customers. The company official 
reported that the development stage of software is currently in the 
process of being outsourced to Belgium. The company official further 
stated that development process which is done in Belgium will consist 
of engineers developing updated and new versions of the software which 
further will be transmitted either to the Netherlands for stamping and 
delivering to European and Asian markets, or to the Itasca, Illinois 
facility in the United States for further 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 Belgium, 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.

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 12th day of February, 2004.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 04-4962 Filed 3-4-04; 8:45 am]
BILLING CODE 4510-30-P