[Federal Register: June 2, 2004 (Volume 69, Number 106)]
[Notices]
[Page 31130-31131]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn04-70]
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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]
BILLING CODE 4510-30-P