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On January 31, 2005, the Department of Labor issued its Notice of Affirmative Determination Regarding Application for Reconsideration for workers and former workers of the subject firm. The Department's Notice was published in the Federal Register on February 22, 2005 (70 FR 8638).

The Department's initial determination was issued on the basis that the workers did not produce an article within the meaning of section 222(a)(2) of the Trade Act.

In the request for reconsideration, the petitioner alleged that the workers produced an article, licensed pharmaceutical sales software sold in a physical medium, such as CD-ROM.Start Printed Page 21248

During the reconsideration investigation, the Department contacted several members of the subject worker group and several company officials to determine whether the workers were engaged in activity related to the production of an article.

The reconsideration investigation revealed that the workers used to work for another company that produced sales force automation software and began working for the subject company when it was purchased by the subject company in 1999. After the purchase, the subject company continued to sell the sales force automation software to vendors within the pharmaceutical industry and provided related software support and maintenance services to its clients, such as implementing changes in the software configuration to adapt to a client's needs. Sales of the software ceased in 2002 and the subject facility did not replicate any software available to the retail public after 2002.

From that time in 2002 until the subject facility closed in 2004, the workers provided software support and maintenance services. The services rendered pursuant to a service contract included providing a “bug-fix” solution burned on a CD to a client in response to a specific problem, sending another copy of the obsolete software per a client's request, and updating software via electronic mail or network messages.

The reconsideration also revealed that those activities which were moved to Bangalore, India did not subsequently enter the United States in a physical medium and that the remaining support services were consolidated into the subject company's Bethlehem, Pennsylvania and Bedminster, New Jersey facilities.

Furthermore, because the “bug-fix” solution was not mass-produced but custom designed to meet specific, one-time needs of an individual client, it was inherently unique. As such, each “bug-fix” release was a separate creation of a trouble-solving solution. Therefore, even if the Department were to consider the “bug-fix” CD to be a product for purposes of TAA, neither Section 222(a)(2)(B)—increased imports—nor Section 222 (a)(2)(A)—shift of production—of the Trade Act would have been met because each solution could not have been considered “like or directly” competitive with other custom designed solutions.

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 Dendrite International, Stroudsburg, Pennsylvania.

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