[Federal Register Volume 68, Number 66 (Monday, April 7, 2003)]
[Notices]
[Pages 16839-16840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8354]


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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