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.

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.