03-10137. Electronic Data Systems Corporation, I Solutions Center, Fairborn, OH; Notice of Negative Determination Regarding Application for Reconsideration

By application dated March 4, 2003, petitioners 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 Electronic Data Systems (EDS) Corporation, I Solutions Center, Fairborn, Ohio was signed on January 15, 2003, and published in the Federal Register on February 6, 2003 (68 FR 6211).

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 Electronic Data Systems Corporation, Fairborn, Ohio engaged in activities related to information technology services. The petition was denied because the petitioning workers did not produce an article within the meaning of Section 222 of the Act.

The petitioners resubmitted an attachment to the original petition listing the “articles” produced, including computer programs, job control language, databases and various types of documentation.

A petitioner was contacted and asked as to the nature of the computer programs produced. He clarified that the subject firm created a custom-designed program for the customer's financial department.

Petitioning workers do not produce an “article” within the meaning of the Trade Act of 1974. The functions performed at the subject firm relate to information technology services. These services are thus not tangible commodities, that is, marketable products, and are not listed on the Harmonized Tariff Schedule of the United States (HTS), which describes all articles imported to the United States.

Further, the Trade Adjustment Assistance (TAA) program was established to help workers who produce articles and who lose their jobs as a result of increases of like or directly competitive imports of such articles contributing importantly to the layoff. 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 support that could historically be sent in letter form and that can currently be electronically transmitted, are not listed in the HTS.

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 15th day of April, 2003.

Edward A. Tomchick,

Director, Division of Trade Adjustment Assistance.