DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-50,477

FLEMING COMPANIES, INC.
ALTOONA, PENNSYLVANIA

Notice of Negative Determination
Regarding Application for Reconsideration

By application dated March 17, 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
Fleming Companies, Inc., Altoona, Pennsylvania, was signed on
February 4, 2003, and published in the Federal Register on
February 24, 2003 (68 FR 8620).
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 Fleming
Companies, Inc., Altoona, Pennsylvania, engaged in activities
related to distribution 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 asserted that the petitioning worker group
did not perform distribution services, but produced “business
application software.” The petitioner further clarified that the
product involved a type of distribution software that could be
used in convenience stores.
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, technology services that are 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, D.C., this 17th day of April, 2003.
/s/ Elliott S. Kushner
________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance