[Federal Register Volume 69, Number 74 (Friday, April 16, 2004)]
[Notices]
[Pages 20642-20643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E4-860]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-53,918]


BMC Software, Inc., Houston, TX; Notice of Negative Determination 
Regarding Application for Reconsideration

    By application of February 9, 2004, 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 BMC Software, Inc., Houston, 
Texas was signed on January 20, 2004, and published in the Federal 
Register on March 12, 2004 (69 FR 11888).
    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 BMC Software, 
Inc., Houston, Texas engaged in design and 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. 
As proof, the petitioner submitted three URL locations of the BMC Web 
site which contain references to BMC products and product lines. The 
petitioner emphasizes that because the Web site uses the word 
``product'' in regards to BMC software, the Department should consider 
workers of BMC Software, Inc. as production workers.
    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 BMC Software, Inc., Houston, Texas are software 
developers. The official further clarified that software developed at 
the subject firm is not mass-produced on media devices and is not sold 
off-the-shelf. The developers mostly customize software for individual 
users and provide services to support the software. The company 
official further stated that due to significant restructuring actions 
to reduce ongoing operational expenses, BMC Software, Inc. implemented 
large reduction of worldwide workforce, which included some of the 
workers of the subject firm.
    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 and developing 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 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 overseas, petitioning workers should be considered import 
impacted.
    The petitioning worker group is not considered to have been engaged 
in production, thus any foreign transfer of their job duties is 
irrelevant within the context of eligibility for trade adjustment 
assistance.
    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. 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.


[[Page 20643]]


    Signed in Washington, DC, this 31st day of March, 2004.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
 [FR Doc. E4-860 Filed 4-15-04; 8:45 am]
BILLING CODE 4510-13-P