Pitney Bowes, Inc., Holyoke Facility, Holyoke, Massachusetts; Notice of Negative Determination Regarding Application for Reconsideration [02/24/2004]
Volume 69, Number 36, Page 8489-8490
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-53,401]
Pitney Bowes, Inc., Holyoke Facility, Holyoke, Massachusetts;
Notice of Negative Determination Regarding Application for
Reconsideration
By application of December 17, 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 Pitney Bowes, Inc., Holyoke
Facility, Holyoke, Massachusetts was signed on December 5, 2003, and
published in the Federal Register on January 16, 2004 (69 FR 2622).
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 Pitney Bowes,
Inc., Holyoke Facility, Holyoke, Massachusetts engaged in design of
Digital Document Delivery 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 D3tm software as a final product. As a
proof, the petitioner attached a description of the software and a
photocopy of the disk, which bears the logo of ALYSIS Technologies.
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 Holyoke facility are Java engineers, engaged in
IT solution and development, software coding and documentation. The
official further clarified that designed and engineered software (D3)
is electronically transmitted from the subject facility to the CD rom
production facility in Lisle,
[[Page 8490]]
Illinois. The company official reported that the development stage of
D3 product is currently in the process of being outsourced to India.
The company official further stated that development process which will
begin in India will result in engineers developing source codes which
will be electronically transmitted to the United States for further
modification, 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 India, 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.
Finally, the petitioner alleges that the workers of the subject
firm meet the requirements for TAA on the basis that ``workers'
separation was caused by a reduced demand for services from a parent
firm.''
The petitioner should note that this criterion applies to a workers
group only when their separations are 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.
Signed at Washington, DC, this 6th day of February, 2004.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 04-3928 Filed 2-23-04; 8:45 am]
BILLING CODE 4510-30-P
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