[Federal Register: November 9, 2005 (Volume 70, Number 216)]
[Notices]
[Page 68093-68094]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09no05-97]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-57,143]
ACCPAC International, Inc., Customer Support, Santa Rosa, CA;
Notice of Negative Determination on Reconsideration
By letter of August 19, 2005, a petitioner requested administrative
reconsideration of the Department of Labor's Notice of Negative
Determination Regarding Eligibility to Apply for Worker Adjustment
Assistance, applicable to workers of ACCPAC International, Inc.,
Customer Support, Santa Rosa, California. The denial notice was signed
on June 24, 2005, and published in the Federal Register on July 20,
2005 (70 FR 41793).
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 petitioner contends that the Department erred in its
interpretation of work performed at the subject facility as a service
and further conveys that the workers of the subject firm supported the
production of the software during the pre-production phases. The
petitioner further conveys that the software was recorded on CD media
or floppy diskettes for further distribution to customers.
A company official was contacted for clarification in regard to the
nature of the work performed at the subject facility. The official
stated the workers of the subject firm provided development, marketing,
sales, professional services, administrative, training and technical
support of the ACCPAC software. The technical support representatives
of the subject firm provided post-sale technical assistance,
troubleshooting and training via telephone to ACCPAC customers and
business partners. In addition, the workers of the subject firm
provided some support to software development prior to its release on
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 for mass-production to an independent non-affiliated party vendor
for further duplication on CD-ROMs, floppy diskettes or paper. The
official supported the information previously provided by the subject
firm that software created at the subject facility is not mass-produced
on any media device by the subject firm for further duplication and
distribution to
[[Page 68094]]
customers and that there are no products manufactured within the
subject firm.
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.
Technical writing, design, programming, testing and technical
assistance of the software 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. Furthermore, workers of the subject firm did not
support production of an article at any affiliated facility.
The petitioner further alleges that because workers lost their jobs
due to a transfer of job functions to Canada, petitioning workers
should be considered import impacted.
The company official stated that the positions of six technical
support representatives were moved to a Canadian office as a result of
the closure of the subject firm.
Technical support of informational documentation that is
electronically transmitted is not considered production within the
context of TAA eligibility requirements. Further, as software 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.
Service workers can be certified only if worker separations are
caused by a reduced demand for their services from a parent or
controlling firm or subdivision whose workers produce an article
domestically who meet the eligibility requirements, or if the group of
workers are leased workers who perform their duties on-site at a
facility that meet the eligibility requirements.
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 ACCPAC International, Inc., Customer
Support, Santa Rosa, California.
Signed at Washington, DC this 21st day of October, 2005.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 05-22323 Filed 11-8-05; 8:45 am]
BILLING CODE 4510-30-U