E5-6882. OAG Worldwide, Inc., Custom Products Department, Downers Grove, IL; Notice of Negative Determination Regarding Application for Reconsideration

By application dated October 19, 2005 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 OAG Worldwide, Inc., Custom Products Department, Downers Grove, Illinois was signed on October 4, 2005, and published in the Federal Register on November 4, 2005 (70 FR 67196).

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 misinterpretation of facts or of the law justified reconsideration of the decision.

The TAA petition filed on behalf of workers at OAG Worldwide, Inc., Custom Products Department, Downers Grove, Illinois were engaged in running database queries of airline schedules to provide customized information for customers worldwide 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 workers of the subject firm “assemble custom software products and work closely with the IT teams in the United States to assemble the products”.

A company official was contacted for clarification in regard to the nature of the work performed at the subject facility. The official stated that the role of the petitioning group of workers at the subject firm is providing airline schedules and other data to customers worldwide. In particular, workers of the subject firm query the OAG database, compile and audit information and create data files. These data files are further delivered to customers in electronic format. The official further clarified that this query is a programming process written by the information technology staff of the subject firm was for the internal use. The official supported the information previously provided by the subject firm that databases and software created at the subject facility are 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 whether they produce an article within the meaning of section 222 of the Trade Act of 1974.

Querying the databases and compiling electronic information 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 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 the United Kingdom, petitioning workers should be considered import impacted.

The company official stated that creation of the customer data files was transferred from the subject facility to the United Kingdom.

Compiling and creating databases which contain informational documentation and are electronically transmitted is not considered production within the context of TAA eligibility requirements.

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 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, DC, this 25th day of November, 2005.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.