[Federal Register: February 24, 2004 (Volume 69, Number 36)]
[Notices]
[Page 8488]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24fe04-120]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-53,209]
Computer Sciences Corporation Financial Services Group (``FSG''),
East Hartford, Connecticut; Notice of Negative Determination on
Reconsideration
On January 5, 2004, the Department issued an Affirmative
Determination Regarding Application for Reconsideration for the workers
and former workers of the subject firm. The notice was published in the
Federal Register on January 23, 2004 (69 FR 3391-3392).
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 mis-
interpretation of facts or of the law justified reconsideration of the
decision.
The TAA petition was filed on behalf of workers at Computer
Sciences Corporation, Financial Services Group (``FSG''), East
Hartford, Connecticut. The petition was denied because the petitioning
workers did not produce an article within the meaning of section 222 of
the Act.
In the request for reconsideration, the petitioner alleged that the
petitioning worker group produced a product and that production (in the
form of design, coding, testing and delivery of software) shifted to
India.
Further contact with the company during reconsideration revealed
that the petitioning workers did produce widely marketed software
components on CD Rom and tapes, and thus did produce an article within
the meaning of the Trade Act.
However, although the company did report that some ``source
coding'' did shift to India in the relevant period, the subject firm
does not import completed software on physical media that is like or
directly competitive with that which was produced at the subject
facility. Business development, design, testing, and packaging remain
in the United States.
A National Import Specialist was contacted at the U.S. Customs
Service to address whether software could be described as an import
commodity. The Import Specialist confirmed that electronically
transferred material is not a tangible commodity for U.S. Customs
purposes. In cases where software is encoded on a medium (such as a CD
Rom or floppy diskette), the software is given no import value, but
rather evaluated exclusively on the value of the carrier medium. This
standard is based on Treasury Decision 85-124 as issued on July 8,
1985, by the U.S. Customs Service. In conclusion, this decision states
that ``in determining the customs value of imported carrier media
bearing data or instructions, only the cost or value of the carrier
medium itself shall be taken into account. The customs value shall not,
therefore, include the cost or value of the data or instructions,
provided that this is distinguished from the cost or the value of the
carrier medium.''
Finally, the North American Industry Classification System (NAICS),
published by the U.S. Department of Commerce, designates all manner of
custom software applications and software systems, including analysis,
development, programming, and integration as ``Services'' (see NAICS
541511 and 541512.)
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 in Washington, DC, this 3rd day of February, 2004.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 04-3930 Filed 2-23-04; 8:45 am]
BILLING CODE 4510-30-P