[Federal Register: March 5, 2004 (Volume 69, Number 44)]
[Notices]
[Page 10481-10482]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05mr04-119]
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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