[Federal Register Volume 69, Number 106 (Wednesday, June 2, 2004)]
[Notices]
[Pages 31130-31131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12383]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-54,080]


Accenture LLP, Oaks, PA; Notice of Negative Determination 
Regarding Application for Reconsideration

    By application of March 15, 2004, 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 Accenture LLP, Oaks, 
Pennsylvania, was signed on February 13, 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 Accenture LLP, 
Oaks, Pennsylvania engaged in maintenance and development of software 
code. 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

[[Page 31131]]

work performed at the subject facility as a service. The petitioner 
further compares software programs developed under the auspices of 
Accenture to Microsoft software packages and computer games which are 
packaged and sold as ``products''. Consequently, the petitioner 
concludes that software developed by the subject group of workers 
should be considered a product as well.
    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 at the subject firm are engaged in application 
development and maintenance services of a trust accounting software to 
a customer, which in its turn provides investment processing services 
for financial institutions. Accenture workers perform application fault 
fixes, enhancements and modifications. The official further clarified 
that software developed by the subject group of workers is not recorded 
on media devices for further distribution. All Accenture activities are 
performed on the application code residing on customer's mainframe and 
transferred electronically.
    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 development and maintenance 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 databases 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 Department does acknowledge software 
as a product in cases when the software is recorded and marketed on a 
physical media device, in which case the process of recording (burning) 
is considered a production and the physical media device a product.
    The petitioner also alleges that imports caused layoffs at the 
subject firm, asserting that because workers lost their jobs due to a 
transfer of job functions abroad, petitioning workers should be 
considered import impacted.
    The company official stated that Accenture LLP did transfer a 
number of junior level Programmer-Analyst positions to Philippines 
during the relevant time period. However, none of these positions 
involve any sort of production. The Philippine team of analysts is 
performing programming activities by remotely accessing mainframe 
system, which is located in Oaks, Pennsylvania and making changes 
directly to the software on that system. Informational material that is 
electronically transmitted is not considered production within the 
context of TAA eligibility requirements, so there are no imports of 
products in this instance. Further, as the edited material does not 
become a product until it is recorded on media device, there was no 
shift in production of an ``article'' within the meaning of the Trade 
Act of 1974.

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 21st day of May, 2004.
Linda G. Poole,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 04-12383 Filed 6-1-04; 8:45 am]
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