[Federal Register Volume 70, Number 216 (Wednesday, November 9, 2005)]
[Notices]
[Pages 68093-68094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22323]


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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