[Federal Register: April 7, 2003 (Volume 68, Number 66)]
[Notices]
[Page 16839-16840]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap03-99]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-50,184]
Corning Cable Systems, LLC, Business Operation Services--OpitiCon
Network Manager, Hickory, NC; Notice of Negative Determination
Regarding Application for Reconsideration
By application postmarked January 2, 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 Corning Cable Systems, LLC,
Business Operation Services--OpitiCon Network Manager, Hickory, North
Carolina was signed on December 20, 2002, and published in the Federal
Register on January 9, 2003 (67 FR 1199).
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 Corning Cable
Systems, LLC, Business Operation Services--OpitiCon Network Manager,
Hickory, North Carolina engaged in activities related to data entry.
The petition was denied because the petitioning workers did not produce
an article within the meaning of section 222(3) of the Act.
The petitioner alleges that the reason subject firm workers were
listed in the Federal Register as having been denied was on the basis
``that criterion (2) has not been met * * * the workers firm (or
subdivision) is not a supplier or downstream producer for trade
affected companies.''
In fact, the petitioner mistakenly quotes the paragraph below the
listing of TA-W-50,184, when the correct paragraph citing the reason
for the negative determination was above the listing. The relevant
paragraph reads as follows: ``the workers firm does not produce an
article as required for certification under section 222 of the Trade
Act of 1974.''
The petitioner alleges that ``several other groups from the same
company and same town got coverage'' and that, on that basis, the
petitioning worker group should also be considered eligible. The
petitioner also appears to allege that, because the company marketed
various products and services together as a ``Total Solutions''
package, all worker groups should be equally eligible.
In fact, only one other worker group has been TAA and NAFTA-TAA
certified for Corning Cable Systems in Hickory, North Carolina. This
worker group produced cable assembly hardware, which, unlike the data
entry performed by the petitioning worker group, constitutes a product
within the meaning of section 222 of the Trade Act. Further, the
subject firm's marketing strategy in selling products and services in a
package does not create the affiliation required for service in support
of production. Service workers must perform a function that directly
supports the production of the certified worker group in order to be
eligible for trade adjustment assistance. In this case, the petitioning
worker group performs data entry for the purpose of creating
independent databases, and do not contribute to the production of cable
assembly hardware of the worker group certified at the same facility.
The petitioner also asserts that the subject firm did not correctly
address the petitioning worker group's function in describing their job
duties as ``data entry'', implying that there were much more complex
functions involved, and that the description does not properly take
into account the ``technological knowledge and skills'' of the
petitioning workers.
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(3) of the Trade Act of 1974.
The petitioner appears to allege that, because petitioning workers
``built virtual networks for fiber management,'' their work should be
considered production.
Virtual networks are not considered production of an article within
the meaning of section 222(3) of the Trade Act.
The petitioner appears to allege that, on the basis that that
petitioning workers produced an article within the meaning of a
dictionary definition provided in the request for reconsideration, the
worker group should be eligible for trade adjustment assistance.
Petitioning workers do not produce an ``article'' within the
meaning of the Trade Act of 1974. Databases are not tangible
commodities, that is, marketable products, and they are not listed on
the Harmonized Tariff Schedule of the United States (HTS), published by
the United States International Trade Commission (USITC), Office of
Tariff Affairs and Trade Agreements, which describes all articles
imported to or exported from the United States. Furthermore, when a
Nomenclature Analyst of the USITC was contacted in regards to whether
virtual networks and databases provided by subject firm workers fit
into any existing HTS basket categories, the Department was informed
that no such categories exist.
In addition, the Trade Adjustment Assistance (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
[[Page 16840]]
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 employment work products that customs officials inspect and that the
TAA program was generally designed to address.
The petitioner also argues that the petitioning worker group did
not simply ``provide services'', asserting that, because the data entry
took the form of databases recorded on CD-ROMs, they ``handed over
goods.''
Electronically generated information is not considered production
in the context of assessing worker group eligibility for trade
adjustment assistance. The fact that the device used to record
electronically generated information processed by the petitioning
workers has a physical form does not qualify the petitioning worker
group as having produced an article.
The petitioner also alleges that imports impacted layoffs,
asserting that because workers lost their jobs due to a transfer of job
functions to India, 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.
The petitioner appears to assert that the Division of Trade
Adjustment Assistance is ``supposed to look at each case individually''
in assessing the eligibility of worker groups for TAA. The petitioner
also appears to suggest that, because the workers performed services
that involved ``newer technology'', the meaning of ``article'' as
defined in the Trade Act is outdated, and therefore irrelevant.
In fact, the eligibility of petitioning worker groups is considered
exclusively within the context of section 222 of the Trade Act.
In conclusion, the workers at the subject firm did not produce an
article within the meaning of section 222(3) 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, DC, this 17th day of March, 2003.
Edward A. Tomchick,
Director, Division of Trade Adjustment Assistance.
[FR Doc. 03-8354 Filed 4-4-03; 8:45 am]
BILLING CODE 4510-30-P