OCÉ Groupware Technology, Inc. (OGT), A Subsidiary of OCÉ-USA Holding, Inc., A Member of the OCÉ Group, A Subsidiary of OCÉ 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 Océ Groupware Technology, Inc. (OGT), a subsidiary of Océ—USA Holding, Inc., a member of the Océ Group, a subsidiary of Océ N.V., Boise, Idaho was signed on October 10, 2003, 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 Océ Groupware Technology, Inc. (OGT), a subsidiary of Océ—USA Holding, Inc., a member of the Océ Group, a subsidiary of Océ 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 Océ Group, a subsidiary of Océ 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.