Gale Group, Inc., Belmont, CA; Notice of Negative Determination on Remand, 6732-6733 [E5-486]
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Federal Register / Vol. 70, No. 25 / Tuesday, February 8, 2005 / Notices
medium, are considered to be ‘‘like or
directly competitive’’ with other custom
services, then almost any work can be
covered by the Trade Act, and the like
or directly competitive requirement is
effectively read out of the Act.
(3) and (4) Identify what type of
documentation was produced by EDS
(brochures, manuals, etc.), and
determine what was the production
volume of such documentation and
whether it was considered part of the
product purchased by EDS’s customers:
As stated above, the software and
documentation designed and/or
supported by the workers of the subject
facility was rarely delivered to the client
on a physical carrier medium, but was
normally installed onto a mainframe
data center from which the client could
access it remotely and print it.
Documentation was rarely embodied in
hardcopy, because the client could print
such documentation on their own. On
the rare occasion that the client
requested hardcopies of documentation,
bulk printing was carried out by a thirdparty copy facility (SAR at 11). In effect,
EDS provided no brochures, manuals, or
other physical product documentation
to its client in the course of serving the
client’s needs. Accordingly, there is no
volume to measure or value to assess for
the documentation the subject facility
provided to its customer.
Conclusion
The Department thoroughly
investigated the petition for EDS, I
Solutions Center, Fairborn, Ohio on
remand and could not find any evidence
that workers of the subject facility
produced or supported production of
any article. To the contrary, the
evidence presented in the SAR supports
the conclusion that the EDS workers did
not produce an article. Indeed, the
products designed and/or developed at
the Fairborn facility were not massreplicated to any physical carrier
medium. In any event, as custom
designs, the software solutions and
documentation were inherently unique
and, therefore, not ‘‘like or directly
competitive’’ with any other products.
In the case of EDS, I Solutions Center,
Fairborn, Ohio, the evidence clearly
establishes that the workers of the
subject facility did not produce an
article, nor did they support, either
directly or through an appropriate
subdivision of EDS, the production of
an article within the meaning of the
Trade Act. Because the petitioners are
employees of a firm or subdivision that
does not produce or support production
of an article within the meaning of the
Trade Act, they are not eligible for
certification.
VerDate jul<14>2003
19:01 Feb 07, 2005
Jkt 205001
As the result of the findings of the
investigation on remand, I affirm the
original notice of negative
determination of eligibility to apply for
adjustment assistance for workers and
former workers of Electronic Data
Systems Corporation, I Solutions Center,
Fairborn, Ohio.
Signed in Washington, DC this 31st day of
January 2005.
Elliott S. Kushner,
Certifying Officer, Division of Trade
Adjustment Assistance.
[FR Doc. E5–487 Filed 2–7–05; 8:45 am]
BILLING CODE 4510–30–P
DEPARTMENT OF LABOR
Employment And Training
Administration
[TA–W–54,434]
Gale Group, Inc., Belmont, CA; Notice
of Negative Determination on Remand
The United States Court of
International Trade (USCIT) granted the
Department of Labor’s motion for
voluntary remand for further
investigation in Former Employees of
Gale Group, Inc. v. U.S. Secretary of
Labor, Court No. 04–00374. The Court
Order was issued on October 25, 2004.
On May 20, 2004, the Department of
Labor (Department) issued a negative
determination regarding eligibility to
apply for Trade Adjustment Assistance
(TAA) for the workers of Gale Group, A
Division of the Thompson Corporation,
Belmont, California (Gale Group). The
determination was based on the
investigation’s finding that the workers
at the subject facility performed
electronic indexing services, including
converting paper periodicals into an
electronic format, assigning relevant
index terms and occasionally writing
abstracts of articles, and thus did not
produce an article in accordance with
section 222 of the Trade Act of 1974.
The Notice of Negative Determination
Regarding Eligibility to Apply for
Worker Adjustment Assistance for the
subject firm was published in the
Federal Register on June 17, 2004 (69
FR 33940).
In a letter dated June 16, 2004, the
petitioner requested administrative
reconsideration of the Department’s
negative determination. The Department
affirmed its finding that the workers of
the subject firm should not be certified
as eligible to apply for TAA on the basis
that the firm did not produce an article
within the meaning of section 222 of the
Trade Act because the application
contained no new substantial
information. Accordingly, the
PO 00000
Frm 00121
Fmt 4703
Sfmt 4703
Department issued a letter (dated July
13, 2004) dismissing the petitioner’s
application for reconsideration. A
Dismissal of Application for
Reconsideration was issued on July 16,
2004 and the Notice of Dismissal of
Application for Reconsideration was
published in the Federal Register on
July 23, 2004 (69 FR 44064).
By letter dated August 1, 2004, the
petitioner requested judicial review by
the USCIT. The petitioner asserted that
because ‘‘informational products are
real commodities that are manufactured
and produced for sale,’’ the workers
produce an article and are entitled to a
new investigation to determine whether
they should be certified as eligible for
TAA.
In the motion for voluntary remand,
the Department indicated the need to
determine whether the workers were
engaged in the production of an article
and to resolve certain ambiguities in the
record.
On October 25, 2004, the USCIT
granted the Department’s consent
motion for voluntary remand and
ordered the Department to conduct a
further investigation and to make a
redetermination as to whether
petitioners should be certified as
eligible for TAA.
In its remand investigation, the
Department carefully reviewed
previously submitted information,
contacted the company official to obtain
new and additional information
regarding the work done by the subject
worker group, the products and services
offered by the company, and also
solicited information from the
petitioners. The main purpose of this
extensive investigation was to ascertain
whether the work performed by the
petitioning worker group can be
construed as production or in support of
production of an article by the firm,
Gale Group.
Petitioners allege that they are
engaged in the production of CD-ROMS
and databases which are articles under
the Act. The Department has
investigated each claim and has
determined that the workers are not
engaged in the production of any
articles because no production took
place at the subject firm during the
relevant period and that a mere shift of
service functions abroad cannot support
TAA certification.
The petitioners state that members of
the worker group worked on databases
which were ‘‘marketed for access by
purchasers and by their licensees
initially on CD–ROMS and in electronic
format, and later only on electronic
format—i.e., through a real-time internet
connection.’’ Supp. A.R. 77. The
E:\FR\FM\08FEN1.SGM
08FEN1
Federal Register / Vol. 70, No. 25 / Tuesday, February 8, 2005 / Notices
petitioners also identify products which
they allege are articles: Infotrac, Gale ECommerce Sourcebook, World Retail
Directory and Sourcebook, and Ward’s
Business Directory. Supp. A.R. 81, 82,
88, 89.
Information supplied by the subject
company indicates that the workers
primarily convert paper periodicals into
an electronic format, process the
electronic data so they can be indexed,
and provide access to the databases for
on-line subscribers. Supp. A.R. 8–42.
This information is not contradicted by
petitioners’ submissions, which indicate
that the petitioners’ tasks included
reading and indexing paper articles, as
well as researching, entering and editing
information into the databases. Supp.
A.R. 86–90.
The newly obtained information also
shows that the databases are accessed
via the Internet, are neither recorded nor
stored on a physical carrier medium,
such as CD–Rom, and are not massreplicated by Gale Group. Supp. A.R. 9–
11, 94. The information further reveals
that no tangible articles are
manufactured within either the subject
facility or the larger corporate entity. Id.
On the rare occasion that a customer
requests paper copies of the databases,
the printing is carried out by an
unaffiliated, off-site, third party copy
facility. Supp. A.R. 91. Moreover, as to
these databases, Gale Group derived
revenue not from the sale of copies of
the databases on a physical carrier
medium, but from customers purchasing
a subscription to access information
which is stored in a server off-site, at an
affiliated location in Michigan. Supp.
A.R. 9, 12.
The petitioners do not produce an
article within the meaning of the Trade
Act of 1974. The Department has
consistently held that the processing of
information, especially information
which is created, manipulated and
stored in electronic format, is not the
production of an article for TAA
purposes. Throughout the Trade Act, an
article is referenced as something that
can be subject to a duty.
Telecommunications transmissions
(such as electronically transmitted text
and information) are specifically
exempted from duty as they ‘‘are not
goods subject to the provisions of the
tariff schedule’’ (Harmonized Tariff
Schedule of the U.S., 2004, General
Notes, 3e). As telecommunications
transmissions, the on-line services
provided by Gale Group are not articles.
Further, the Infotrac data base is
available only in the electronic format.
Supp. A.R. 92.
While there is evidence in the record
that seems to indicate that these workers
VerDate jul<14>2003
18:12 Feb 07, 2005
Jkt 205001
did work on some products that were
converted into CDs, this did not
constitute the production of an article
under the Act since the CDs were
produced at an unaffiliated off-site
location owned by a third party. Supp.
A.R. 95. It is the production of the CDs,
not the creation of information in
electronic format that constitutes
production of an article under the Act.
In any case, the petitioning workers
have not contributed to any products
recorded on CDs in the last three years.
Supp. A.R. 95.
It is clear that certain product lines of
electronic indexing services sold by
Gale Group could be considered
‘‘articles’’ for TAA certification
purposes if they were put on a physical
carrier medium such as paper or CD–
Rom. These product lines would be
dutiable under the Harmonized Tariff
Schedule as recorded media. However,
because Gale Group did not replicate its
electronic indexing services on recorded
media on site or at an affiliated facility,
it did not produce the article for TAA
purposes of the Act and the petitioning
workers at the subject facility are not
workers of the ‘‘firm’’ producing an
article. Instead, an unaffiliated facility
with which Gale Group contracted
replicated certain but not all of the
electronic indexing services developed
and sold by Gale Group. The
unaffiliated facility produced the
article—electronic indexing services on
the recorded media—that Gale Group
sold. That facility was not part of the
petitioning workers ‘‘firm’’ under the
longstanding regulatory definition of
firm at 29 CFR 90.2 because the facility
was not affiliated with Gale Group.
Because Gale Group was not part of the
‘‘firm’’ that produced the article (the
third party replicating vendor), Gale
Group did not produce an ‘‘article’’ for
TAA purposes.
To be eligible for TAA, workers must
be engaged in activity in support of an
affiliated production facility which is
eligible for TAA certification on its own
merits if their facility does not produce
an article. Because neither Gale Group
nor its affiliates replicates any product,
Supp. A.R. 91 and 94, there is no
qualifying production facility of which
the workers can be in support. As such,
the worker group cannot be eligible for
TAA as service workers in support of a
certifiable production facility.
The petitioner further alleges that
because workers lost their jobs due to a
transfer of job functions to India,
petitioning workers should be
considered import-impacted.
Although the company official stated
that some positions were shifted to
India and Philippines, the petitioning
PO 00000
Frm 00122
Fmt 4703
Sfmt 4703
6733
workers cannot be eligible for TAA
because only the shift of production, not
services, abroad is a basis for
certification. Further, because
informational material that is
electronically transmitted is not
considered production for purposes of
TAA eligibility requirements, there
cannot be any imports following a shift
of services abroad.
The Department has thoroughly
investigated the matter and could not
find a basis to determine that workers of
Gale Group are engaged in the
production of an article. Consequently,
they are not eligible for certification.
Conclusion
In the case of Gale Group, A Division
of the Thompson Corporation, Belmont,
California, it is clearly established that
the workers of the subject facility did
not produce an article, nor did they
support, either directly or through an
appropriate subdivision, the production
of an article within the meaning of the
Trade Act. Because the petitioners are
employees of a firm or subdivision that
does not produce or support production
of an article within the meaning of the
Trade Act, they are not eligible for
certification.
As the result of the findings of the
investigation on remand, I affirm the
original notice of negative
determination of eligibility to apply for
adjustment assistance for workers and
former workers of Gale Group, A
Division of the Thompson Corporation,
Belmont, California.
Signed in Washington, DC this 27th day of
January 2005.
Elliott S. Kushner,
Certifying Officer, Division of Trade
Adjustment Assistance.
[FR Doc. E5–486 Filed 2–7–05; 8:45 am]
BILLING CODE 4510–30–P
DEPARTMENT OF LABOR
Employment and Training
Administration
[TA–W–56,239]
Gasque Plumbing Company, Inc.,
Myrtle Beach, SC; Notice of
Termination of Investigation
Pursuant to section 221 of the Trade
Act of 1974, as amended, an
investigation was initiated on December
22, 2004, in response to a petition filed
on behalf of workers at Gasque
Plumbing Company, Inc., Myrtle Beach,
South Carolina. Workers at the subject
firm install plumbing in commercial
buildings.
E:\FR\FM\08FEN1.SGM
08FEN1
]]>Agencies
[Federal Register Volume 70, Number 25 (Tuesday, February 8, 2005)]
[Notices]
[Pages 6732-6733]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-486]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment And Training Administration
[TA-W-54,434]
Gale Group, Inc., Belmont, CA; Notice of Negative Determination
on Remand
The United States Court of International Trade (USCIT) granted the
Department of Labor's motion for voluntary remand for further
investigation in Former Employees of Gale Group, Inc. v. U.S. Secretary
of Labor, Court No. 04-00374. The Court Order was issued on October 25,
2004.
On May 20, 2004, the Department of Labor (Department) issued a
negative determination regarding eligibility to apply for Trade
Adjustment Assistance (TAA) for the workers of Gale Group, A Division
of the Thompson Corporation, Belmont, California (Gale Group). The
determination was based on the investigation's finding that the workers
at the subject facility performed electronic indexing services,
including converting paper periodicals into an electronic format,
assigning relevant index terms and occasionally writing abstracts of
articles, and thus did not produce an article in accordance with
section 222 of the Trade Act of 1974. The Notice of Negative
Determination Regarding Eligibility to Apply for Worker Adjustment
Assistance for the subject firm was published in the Federal Register
on June 17, 2004 (69 FR 33940).
In a letter dated June 16, 2004, the petitioner requested
administrative reconsideration of the Department's negative
determination. The Department affirmed its finding that the workers of
the subject firm should not be certified as eligible to apply for TAA
on the basis that the firm did not produce an article within the
meaning of section 222 of the Trade Act because the application
contained no new substantial information. Accordingly, the Department
issued a letter (dated July 13, 2004) dismissing the petitioner's
application for reconsideration. A Dismissal of Application for
Reconsideration was issued on July 16, 2004 and the Notice of Dismissal
of Application for Reconsideration was published in the Federal
Register on July 23, 2004 (69 FR 44064).
By letter dated August 1, 2004, the petitioner requested judicial
review by the USCIT. The petitioner asserted that because
``informational products are real commodities that are manufactured and
produced for sale,'' the workers produce an article and are entitled to
a new investigation to determine whether they should be certified as
eligible for TAA.
In the motion for voluntary remand, the Department indicated the
need to determine whether the workers were engaged in the production of
an article and to resolve certain ambiguities in the record.
On October 25, 2004, the USCIT granted the Department's consent
motion for voluntary remand and ordered the Department to conduct a
further investigation and to make a redetermination as to whether
petitioners should be certified as eligible for TAA.
In its remand investigation, the Department carefully reviewed
previously submitted information, contacted the company official to
obtain new and additional information regarding the work done by the
subject worker group, the products and services offered by the company,
and also solicited information from the petitioners. The main purpose
of this extensive investigation was to ascertain whether the work
performed by the petitioning worker group can be construed as
production or in support of production of an article by the firm, Gale
Group.
Petitioners allege that they are engaged in the production of CD-
ROMS and databases which are articles under the Act. The Department has
investigated each claim and has determined that the workers are not
engaged in the production of any articles because no production took
place at the subject firm during the relevant period and that a mere
shift of service functions abroad cannot support TAA certification.
The petitioners state that members of the worker group worked on
databases which were ``marketed for access by purchasers and by their
licensees initially on CD-ROMS and in electronic format, and later only
on electronic format--i.e., through a real-time internet connection.''
Supp. A.R. 77. The
[[Page 6733]]
petitioners also identify products which they allege are articles:
Infotrac, Gale E-Commerce Sourcebook, World Retail Directory and
Sourcebook, and Ward's Business Directory. Supp. A.R. 81, 82, 88, 89.
Information supplied by the subject company indicates that the
workers primarily convert paper periodicals into an electronic format,
process the electronic data so they can be indexed, and provide access
to the databases for on-line subscribers. Supp. A.R. 8-42. This
information is not contradicted by petitioners' submissions, which
indicate that the petitioners' tasks included reading and indexing
paper articles, as well as researching, entering and editing
information into the databases. Supp. A.R. 86-90.
The newly obtained information also shows that the databases are
accessed via the Internet, are neither recorded nor stored on a
physical carrier medium, such as CD-Rom, and are not mass-replicated by
Gale Group. Supp. A.R. 9-11, 94. The information further reveals that
no tangible articles are manufactured within either the subject
facility or the larger corporate entity. Id. On the rare occasion that
a customer requests paper copies of the databases, the printing is
carried out by an unaffiliated, off-site, third party copy facility.
Supp. A.R. 91. Moreover, as to these databases, Gale Group derived
revenue not from the sale of copies of the databases on a physical
carrier medium, but from customers purchasing a subscription to access
information which is stored in a server off-site, at an affiliated
location in Michigan. Supp. A.R. 9, 12.
The petitioners do not produce an article within the meaning of the
Trade Act of 1974. The Department has consistently held that the
processing of information, especially information which is created,
manipulated and stored in electronic format, is not the production of
an article for TAA purposes. Throughout the Trade Act, an article is
referenced as something that can be subject to a duty.
Telecommunications transmissions (such as electronically transmitted
text and information) are specifically exempted from duty as they ``are
not goods subject to the provisions of the tariff schedule''
(Harmonized Tariff Schedule of the U.S., 2004, General Notes, 3e). As
telecommunications transmissions, the on-line services provided by Gale
Group are not articles. Further, the Infotrac data base is available
only in the electronic format. Supp. A.R. 92.
While there is evidence in the record that seems to indicate that
these workers did work on some products that were converted into CDs,
this did not constitute the production of an article under the Act
since the CDs were produced at an unaffiliated off-site location owned
by a third party. Supp. A.R. 95. It is the production of the CDs, not
the creation of information in electronic format that constitutes
production of an article under the Act. In any case, the petitioning
workers have not contributed to any products recorded on CDs in the
last three years. Supp. A.R. 95.
It is clear that certain product lines of electronic indexing
services sold by Gale Group could be considered ``articles'' for TAA
certification purposes if they were put on a physical carrier medium
such as paper or CD-Rom. These product lines would be dutiable under
the Harmonized Tariff Schedule as recorded media. However, because Gale
Group did not replicate its electronic indexing services on recorded
media on site or at an affiliated facility, it did not produce the
article for TAA purposes of the Act and the petitioning workers at the
subject facility are not workers of the ``firm'' producing an article.
Instead, an unaffiliated facility with which Gale Group contracted
replicated certain but not all of the electronic indexing services
developed and sold by Gale Group. The unaffiliated facility produced
the article--electronic indexing services on the recorded media--that
Gale Group sold. That facility was not part of the petitioning workers
``firm'' under the longstanding regulatory definition of firm at 29 CFR
90.2 because the facility was not affiliated with Gale Group. Because
Gale Group was not part of the ``firm'' that produced the article (the
third party replicating vendor), Gale Group did not produce an
``article'' for TAA purposes.
To be eligible for TAA, workers must be engaged in activity in
support of an affiliated production facility which is eligible for TAA
certification on its own merits if their facility does not produce an
article. Because neither Gale Group nor its affiliates replicates any
product, Supp. A.R. 91 and 94, there is no qualifying production
facility of which the workers can be in support. As such, the worker
group cannot be eligible for TAA as service workers in support of a
certifiable production facility.
The petitioner further alleges that because workers lost their jobs
due to a transfer of job functions to India, petitioning workers should
be considered import-impacted.
Although the company official stated that some positions were
shifted to India and Philippines, the petitioning workers cannot be
eligible for TAA because only the shift of production, not services,
abroad is a basis for certification. Further, because informational
material that is electronically transmitted is not considered
production for purposes of TAA eligibility requirements, there cannot
be any imports following a shift of services abroad.
The Department has thoroughly investigated the matter and could not
find a basis to determine that workers of Gale Group are engaged in the
production of an article. Consequently, they are not eligible for
certification.
Conclusion
In the case of Gale Group, A Division of the Thompson Corporation,
Belmont, California, it is clearly established that the workers of the
subject facility did not produce an article, nor did they support,
either directly or through an appropriate subdivision, the production
of an article within the meaning of the Trade Act. Because the
petitioners are employees of a firm or subdivision that does not
produce or support production of an article within the meaning of the
Trade Act, they are not eligible for certification.
As the result of the findings of the investigation on remand, I
affirm the original notice of negative determination of eligibility to
apply for adjustment assistance for workers and former workers of Gale
Group, A Division of the Thompson Corporation, Belmont, California.
Signed in Washington, DC this 27th day of January 2005.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E5-486 Filed 2-7-05; 8:45 am]
BILLING CODE 4510-30-P
