[Federal Register Volume 69, Number 218 (Friday, November 12, 2004)]
[Notices]
[Pages 65457-65458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E4-3138]


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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