DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-50,184

CORNING CABLE SYSTEMS, LLC.
BUSINESS OPERATION SERVICES-OPTICON NETWORK MANAGER
HICKORY, NORTH CAROLINA

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 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, D.C., this 17th day of March, 2003.

/s/ Edward A. Tomchick

EDWARD A. TOMCHICK
Director, Division of
Trade Adjustment Assistance