Petitioner Type: Workers
Impact Date:
Filed Date: 01/26/2004
Most Recent Update: 02/13/2004
Determination Date: 02/13/2004
Expiration Date:
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-54,080
ACCENTURE LLP
OAKS, PENNSYLVANIA
Notice of Negative Determination
Regarding Application for Reconsideration
By application of March 15, 2004, 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
Accenture LLP, Oaks, Pennsylvania was signed on February 13,
2004, and published in the Federal Register on March 12, 2004 (69
FR 11888).
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 Accenture
LLP, Oaks, Pennsylvania engaged in maintenance and development of
software code. 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. The petitioner further compares software programs
developed under the auspices of Accenture to Microsoft software
packages and computer games which are packaged and sold as
“products”. Consequently, the petitioner concludes that software
developed by the subject group of workers should be considered a
product as well.
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 at the subject firm are engaged in
application development and maintenance services of a trust
accounting software to a customer, which in its turn provides
investment processing services for financial institutions.
Accenture workers perform application fault fixes, enhancements
and modifications. The official further clarified that software
developed by the subject group of workers is not recorded on
media devices for further distribution. All Accenture activities
are performed on the application code residing on customer’s
mainframe and transferred electronically.
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 development and maintenance 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
databases 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 products that customs
officials inspect and that the TAA program was generally designed
to address. The Department does acknowledge software as a
product in cases when the software is recorded and marketed on a
physical media device, in which case the process of recording
(burning) is considered a production and the physical media
device a product.
The petitioner also alleges that imports caused layoffs at
the subject firm, asserting that because workers lost their jobs
due to a transfer of job functions abroad, petitioning workers
should be considered import impacted.
The company official stated that Accenture LLP did transfer
a number of junior level Programmer-Analyst positions to
Philippines during the relevant time period. However, none of
these positions involve any sort of production. The Philippine
team of analysts is performing programming activities by remotely
accessing mainframe system, which is located in Oaks,
Pennsylvania and making changes directly to the software on that
system. Informational material that is electronically
transmitted is not considered production within the context of
TAA eligibility requirements, so there are no imports of products
in this instance. Further, as the edited material does not become
a product until it is recorded on media device, there was no
shift in production of an “article” within the meaning of the
Trade Act of 1974.
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 21st day of May, 2004
/s/ Linda G. Poole
___________________________
LINDA G. POOLE
Certifying Officer, Division of
Trade Adjustment Assistance
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-54,080
ACCENTURE LLP
OAKS, PENNSYLVANIA
Negative Determination Regarding Eligibility
To Apply For Worker Adjustment Assistance
In accordance with Section 223 of the Trade Act of 1974, as
amended (19 USC 2273), the Department of Labor herein presents the
results of an investigation regarding certification of eligibility
to apply for worker adjustment assistance.
The investigation was initiated on January 26, 2004 in
response to a petition filed on behalf of workers of Accenture LLP,
Oaks, Pennsylvania. The workers performed maintenance and
development of software code.
The investigation revealed that the petitioning workers of
this firm or subdivision do not produce an article within the
meaning of Section 222 of the Act. The Department of Labor has
consistently determined that the performance of services does not
constitute production of an article, as required by Section 222 of
the Trade Act of 1974, and this determination has been upheld in
the U.S. Court of Appeals.
Workers at the firm or subdivision may be certified only if
their separation was caused importantly by a reduced demand for
their services from a parent firm, a firm otherwise related to
their firm by ownership, or a firm related by control. A firm
includes an individual proprietorship, partnership, joint venture,
association, corporation (including a development corporation),
business trust, cooperative, trustee in bankruptcy, and receiver
under decree of any court. A firm, together with any predecessor or
successor-in-interest, or together with any affiliated firm
controlled or substantially beneficially owned by substantially the
same persons, may be considered a single firm.
Additionally, the reduction in demand for services must
originate at a production facility whose workers independently meet
the statutory criteria for certification, and the reduction must
directly relate to the product impacted by imports. These
conditions have not been met for workers at this firm.
Conclusion
After careful review, I determine that all workers of
Accenture LLP, Oaks, Pennsylvania are denied eligibility to apply
for adjustment assistance under Section 223 of the Trade Act of
1974.
Signed in Washington, D. C. this 13th day of February 2004.
/s/ Linda G. Poole
______________________________
LINDA G. POOLE
Certifying Officer, Division of
Trade Adjustment Assistance
Employment and Training Administration
TA-W-54,080
ACCENTURE LLP
OAKS, PENNSYLVANIA
Notice of Negative Determination
Regarding Application for Reconsideration
By application of March 15, 2004, 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
Accenture LLP, Oaks, Pennsylvania was signed on February 13,
2004, and published in the Federal Register on March 12, 2004 (69
FR 11888).
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 Accenture
LLP, Oaks, Pennsylvania engaged in maintenance and development of
software code. 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. The petitioner further compares software programs
developed under the auspices of Accenture to Microsoft software
packages and computer games which are packaged and sold as
“products”. Consequently, the petitioner concludes that software
developed by the subject group of workers should be considered a
product as well.
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 at the subject firm are engaged in
application development and maintenance services of a trust
accounting software to a customer, which in its turn provides
investment processing services for financial institutions.
Accenture workers perform application fault fixes, enhancements
and modifications. The official further clarified that software
developed by the subject group of workers is not recorded on
media devices for further distribution. All Accenture activities
are performed on the application code residing on customer’s
mainframe and transferred electronically.
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 development and maintenance 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
databases 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 products that customs
officials inspect and that the TAA program was generally designed
to address. The Department does acknowledge software as a
product in cases when the software is recorded and marketed on a
physical media device, in which case the process of recording
(burning) is considered a production and the physical media
device a product.
The petitioner also alleges that imports caused layoffs at
the subject firm, asserting that because workers lost their jobs
due to a transfer of job functions abroad, petitioning workers
should be considered import impacted.
The company official stated that Accenture LLP did transfer
a number of junior level Programmer-Analyst positions to
Philippines during the relevant time period. However, none of
these positions involve any sort of production. The Philippine
team of analysts is performing programming activities by remotely
accessing mainframe system, which is located in Oaks,
Pennsylvania and making changes directly to the software on that
system. Informational material that is electronically
transmitted is not considered production within the context of
TAA eligibility requirements, so there are no imports of products
in this instance. Further, as the edited material does not become
a product until it is recorded on media device, there was no
shift in production of an “article” within the meaning of the
Trade Act of 1974.
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 21st day of May, 2004
/s/ Linda G. Poole
___________________________
LINDA G. POOLE
Certifying Officer, Division of
Trade Adjustment Assistance
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-54,080
ACCENTURE LLP
OAKS, PENNSYLVANIA
Negative Determination Regarding Eligibility
To Apply For Worker Adjustment Assistance
In accordance with Section 223 of the Trade Act of 1974, as
amended (19 USC 2273), the Department of Labor herein presents the
results of an investigation regarding certification of eligibility
to apply for worker adjustment assistance.
The investigation was initiated on January 26, 2004 in
response to a petition filed on behalf of workers of Accenture LLP,
Oaks, Pennsylvania. The workers performed maintenance and
development of software code.
The investigation revealed that the petitioning workers of
this firm or subdivision do not produce an article within the
meaning of Section 222 of the Act. The Department of Labor has
consistently determined that the performance of services does not
constitute production of an article, as required by Section 222 of
the Trade Act of 1974, and this determination has been upheld in
the U.S. Court of Appeals.
Workers at the firm or subdivision may be certified only if
their separation was caused importantly by a reduced demand for
their services from a parent firm, a firm otherwise related to
their firm by ownership, or a firm related by control. A firm
includes an individual proprietorship, partnership, joint venture,
association, corporation (including a development corporation),
business trust, cooperative, trustee in bankruptcy, and receiver
under decree of any court. A firm, together with any predecessor or
successor-in-interest, or together with any affiliated firm
controlled or substantially beneficially owned by substantially the
same persons, may be considered a single firm.
Additionally, the reduction in demand for services must
originate at a production facility whose workers independently meet
the statutory criteria for certification, and the reduction must
directly relate to the product impacted by imports. These
conditions have not been met for workers at this firm.
Conclusion
After careful review, I determine that all workers of
Accenture LLP, Oaks, Pennsylvania are denied eligibility to apply
for adjustment assistance under Section 223 of the Trade Act of
1974.
Signed in Washington, D. C. this 13th day of February 2004.
/s/ Linda G. Poole
______________________________
LINDA G. POOLE
Certifying Officer, Division of
Trade Adjustment Assistance