DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-57,143

ACCPAC INTERNATIONAL, INC.
CUSTOMER SUPPORT
SANTA ROSA, CALIFORNIA

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 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, D.C. this 21st day of October, 2005.

/s/ Elliott S. Kushner


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