[Federal Register: November 12, 2004 (Volume 69, Number 218)]
[Notices]
[Page 65457-65458]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12no04-90]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-55,382]
Eclipsys Corporation Santa Rosa, CA; Notice of Negative
Determination on Reconsideration
On October 20, 2004, the Department issued an Affirmative
Determination Regarding Application for Reconsideration for the workers
and former workers of the subject firm. The notice was published in the
Federal Register on October 29, 2004 (69 FR 63182).
The petition for the workers of Eclipsys Corporation, Santa Rosa,
California engaged in technical writing for software development 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 software and software documentation should be
considered a product and workers compiling PDF files 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,
and writes, technical documentation, which includes online files and
manuals, such as user guides, configuration, database dictionaries,
system administration, and installation books. The official further
clarified that the documentations created by the subject company are
electronically sent to Eclipsys Corporation facility in San Jose,
California, where they are merged with the software codes and compiled
on CD-ROMs for mass production and distribution to clients.
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.
[[Page 65458]]
Technical writing of PDF files is 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, 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. However, it was revealed that electronic
documentation created by the subject company is integrated with
software and recorded on media devices (CD-ROMs) for further mass-
production and distribution at an affiliated facility. Thus, it was
determined that the petitioning group of service workers support
production of CD-ROMs containing software at an affiliated facility in
San Jose, California.
The Department conducted an additional investigation to determine
whether workers can be considered eligible for TAA as directly-impacted
workers in support of production of CD-ROMs containing software at an
affiliated facility, Eclipsys Corporation, San Jose, California.
The group eligibility requirements for directly-impacted (primary)
workers under Section 222(a) the Trade Act of 1974, as amended, can be
satisfied in either of two ways:
I. Section (a)(2)(A) all of the following must be satisfied:
A. A significant number or proportion of the workers in such
workers' firm, or an appropriate subdivision of the firm, have
become totally or partially separated, or are threatened to become
totally or partially separated;
B. The sales or production, or both, of such firm or subdivision
have decreased absolutely; and
C. Increased imports of articles like or directly competitive
with articles produced by such firm or subdivision have contributed
importantly to such workers' separation or threat of separation and
to the decline in sales or production of such firm or subdivision;
or
II. Section (a)(2)(B) both of the following must be satisfied:
A. A significant number or proportion of the workers in such
workers' firm, or an appropriate subdivision of the firm, have
become totally or partially separated, or are threatened to become
totally or partially separated;
B. There has been a shift in production by such workers' firm or
subdivision to a foreign country of articles like or directly
competitive with articles which are produced by such firm or
subdivision; and
C. One of the following must be satisfied:
1. The country to which the workers' firm has shifted production
of the articles is a party to a free trade agreement with the United
States;
2. The country to which the workers' firm has shifted production
of the articles is a beneficiary country under the Andean Trade
Preference Act, African Growth and Opportunity Act, or the Caribbean
Basin Economic Recovery Act; or
3. There has been or is likely to be an increase in imports of
articles that are like or directly competitive with articles which
are or were produced by such firm or subdivision.
The investigation of Eclipsys Corporation, San Jose, California
revealed that criteria (I.B) and (II.B) were not met. According to the
information provided by the company official, sales and production of
CD-ROMs containing software at Eclipsys Corporation, San Jose,
California did not decline during the relevant time period. Moreover,
the subject firm did not shift production abroad, nor did it increase
company imports of CD-ROMs containing software, during the relevant
period.
The petitioner further alleges that because workers lost their jobs
due to a transfer of job functions, such as technical writing, to
Canada, petitioning workers should be considered import impacted.
The company official stated that one position of a Technical Writer
was transferred to Canada, while the rest of the positions eliminated
at the subject firm were primarily moved to Boston, Massachusetts and
Malvern, Pennsylvania.
Technical writing of informational documentation 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 PDF files and technical
documentation do not become products until they are recorded on media
device, there was no shift in production of an ``article'' abroad
within the meaning of the Trade Act of 1974.
Conclusion
After reconsideration, I affirm the original notice of negative
determination of eligibility to apply for worker adjustment assistance
for workers and former workers of Eclipsys Corporation, Santa Rosa,
California.
Signed at Washington, DC, this 2nd day of November, 2004.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E4-3138 Filed 11-10-04; 8:45 am]
BILLING CODE 4510-30-P