DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-55,382

ECLIPSYS CORPORATION
SANTA ROSA, CALIFORNIA

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.
Signed at Washington, D.C. this 2nd day of November, 2004.

/s/ Elliott S. Kushner


ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance
Assistance


DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-55,382

ECLIPSYS CORP
SANTA ROSA, CALIFORNIA

Negative Determination Regarding Eligibility
To Apply For Worker Adjustment Assistance and
Alternative Trade Adjustment Assistance

In accordance with Section 223 of the Trade Act of 1974, as
amended (19 USC 2273), the Department of Labor herein presents the
results of an investigation regarding certification of eligibility
to apply for worker adjustment assistance.
The investigation was initiated on August 4, 2004, in response
to a petition filed by a State agency representative on behalf of
workers of Eclipsys Corp, Santa Rosa, California. The workers are
technical writers for software development.
In order to be considered eligible to apply for adjustment
assistance under Section 223 of the Trade Act of 1974, the worker
group seeking certification (or on whose behalf certification is
being sought) must work for a "firm" or appropriate subdivision
that produces an article domestically and there must be a
relationship between the workers' work and the article produced
by the workers' firm or appropriate subdivision. The
investigation revealed that although production of an article(s)
occurred within the firm or appropriate subdivision, the
technical writers described above does not support this
production. Thus, the worker group cannot be considered import
impacted or affected by a shift in production of an article.
In addition, in accordance with Section 246 the Trade Act of
1974 (26 USC 2813), as amended, the Department of Labor herein
presents the results of its investigation regarding certification
of eligibility to apply for alternative trade adjustment assis-
tance (ATAA) for older workers.
In order for the Department to issue a certification of
eligibility to apply for ATAA, the worker group must be certified
eligible to apply for trade adjustment assistance (TAA). Since the
workers are denied eligibility to apply for TAA, the workers cannot
be certified eligible for ATAA.
Conclusion
After careful review, of the facts obtained in this
investigation, I determine that all workers of Eclipsys Corp, Santa
Rosa, California are denied eligibility to apply for adjustment
assistance under Section 223 of the Trade Act of 1974, and
alternative trade adjustment assistance under Section 246 of the
Trade Act of 1974 as amended.
Signed in Washington, D.C., this 31st day of August, 2004.

/s/ Linda G. Poole
______________________________
LINDA G. POOLE
Certifying Officer, Division of
Trade Adjustment Assistance