[Federal Register: September 22, 2004 (Volume 69, Number 183)]
[Notices]
[Page 56789-56790]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22se04-81]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-55,021]
Parametric Technology Corporation Solutions and Marketing Group
WC Publication and Documentation Department, Needham, MA; Notice of
Negative Determination Regarding Application for Reconsideration
By application of July 22, 2004, a petitioner requested
administrative reconsideration of the Department's negative
determination regarding eligibility to apply for Trade Adjustment
Assistance (TAA), applicable to workers and former workers of the
subject firm. The denial notice was signed on July 1, 2004, and
published in the Federal Register on August 3, 2004 (69 FR 46574).
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 petition for the workers of Parametric Technology Corporation,
Solutions and Marketing Group, WC Publication and Documentation
Departments, Needham, Massachusetts engaged in developing, writing and
maintaining technical documentation integrated into the software code
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
and further conveys that workers of the subject company produced
manuals and help systems which were components of compact disks--a
physical product sold to customers. He further states that because
these components were essential parts of complete products, the workers
writing manuals should be considered workers engaged in production.
A company official was contacted for clarification in regard to the
nature of the work performed at the subject facility. The official
stated that petitioning group of workers at the subject firm develops,
writes, and maintains technical documentation, which indeed includes
online help files and manuals. The official further clarified that the
documentation created is merged with the software code which is further
compiled onto the gold CDs. However, the physical gold CDs are not sold
to customers, but rather represent a master copy of the software, which
in its turn is sent to an independent non-affiliated party vendor for
further duplication and distribution. The official supported the
information previously provided by the subject firm that codes and
software created at the subject facility are not recorded on any media
device by the subject firm for further duplication and distribution to
customers and that there are no products manufactured within Parametric
Technology Corporation, Needham, Massachusetts.
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.
Developing, writing, editing, and maintaining on-line technical
documentation 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.
Information electronic databases, technical documentation and codes,
which are not printed or recorded on media devices (such as CD-ROMs)
for further mass production and distribution, are not tangible
commodities, 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 investigation on reconsideration supported the findings of the
primary investigation that the petitioning group of workers does not
produce an article.
The petitioner further alleges that because workers lost their jobs
due to a transfer of job functions to India, petitioning workers should
be considered import impacted.
The company official stated that some technical writing positions
were shifted to India. The official further stated that the results of
the work assignments completed in India is transmitted back to the US
group who create the gold CD via Parametric's Technology Corporation's
electronic internal systems.
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 technical material does not become a product
[[Page 56790]]
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.
In your request for reconsideration, you doubt the accuracy of the
information provided by Parametric Technology Corporation and request
copies of all the submissions made by the subject firm during the
investigation process.
The Department has no evidence that would suggest that the
officials of the Parametric Technology Corporation had any reason to
mislead the investigation or that they had any interest in the outcome
of this determination that might have been adverse to the former
employees of the subject firm.
The Department is unable to provide you with the requested copies
of documents as all commercial and financial data submitted by the
subject firm is entitled to confidential treatment, in accordance with
29 CFR 90.33, and will not be disclosed except to the extent required
by applicable law or court order.
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 in Washington, DC, this 10th day of September, 2004.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E4-2306 Filed 9-21-04; 8:45 am]
BILLING CODE 4510-30-P