03-31861. Descartes Systems (USA) LLC, an Affiliate of the Descartes Systems Group, Inc., Atlanta, GA; Notice of Negative Determination Regarding Application for Reconsideration

By application of October 9, 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 Descartes Systems (USA) LLC, Atlanta, Georgia was signed on September 4, 2003, and published in the Federal Register on October 10, 2003 (68 FR 58719).

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 Descartes Systems (USA) LLC, Atlanta, Georgia engaged in employment related to providing electronic data interchange services. The petition was denied because the petitioning workers did not produce an article within the meaning of Section 222 of the Act.

The petitioner appears to imply that the petitioning worker group should be considered eligible for TAA on the basis that they created an article as part of a “paperless” process.

Data exchange services are not tangible commodities, that is, marketable products, and they are not listed on the Harmonized Tariff Schedule of the United States (HTS), which describes all products imported to or exported from the United States.

Further, the TAA program was established to help workers who produce articles and who lose their jobs as a result of trade agreements. Throughout the Trade Act an article is often referenced as something that can be subject to a duty. To be subject to a duty on a tariff schedule an article will have a value that makes it marketable, fungible and interchangeable for commercial purposes. But, 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.

Only in very limited instances are service workers certified for TAA, namely the worker separations must be 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.

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 18th day of November, 2003.

Linda G. Poole,

Certifying Officer, Division of Trade Adjustment Assistance.