03-29264. Agilent Technologies, Manufacturing Test Business Unit, Electronic Manufacturing Test Division, Loveland, CO; Notice of Negative Determination Regarding Application for Reconsideration

By application of July 12, 2003, 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 Agilent Technologies, Inc., Information Technology Division (IT), Loveland, Colorado was signed on June 20, 2003, and published in the Federal Register on July 10, 2003 (68 FR 41179).

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 mis-interpretation of facts or of the law justified reconsideration of the decision.

The TAA petition was filed on behalf of workers at Agilent Technologies, Inc., Information Technology Division (IT), Loveland, Colorado engaged in computer consulting services combined with providing information technology. The petition was denied because the petitioning workers did not produce an article within the meaning of section 222 of the Act.

The petitioner alleges that the negative determination was erroneous because they produce “new software and firmware to support test hardware sent abroad.” The petitioner appears to imply that the fact that they are developing “new” software for a U.S. company, and that their jobs are being shifted abroad, that they should be considered eligible for TAA.

Software development does not constitute production within the meaning of section 222 of the Trade Act.

Even if the software development performed by subject firm workers did constitute production, an investigation would have to establish whether (a) imports contributed importantly to layoffs at the subject firm, or (b) whether a shift in production occurred to a country within the following four categories:

1. Is party to a free trade agreement with the United States.

2. Is a beneficiary country under the Andean Trade Preference Act.

3. Is a beneficiary country under African Growth and Opportunities Act.

4. Is a beneficiary country under the Caribbean Basin Economic Recovery Act.

The Software developed by subject firm workers is sent to Singapore for incorporation into foreign production. Thus, the software is developed exclusively for the export market, as their production is incorporated into a final product produced at a foreign facility. Therefore, there is no evidence of imports that are “like or directly competitive” with those produced at the subject firm contributing importantly to layoffs at the subject facility division.

Finally, the United States' Free Trade Agreement with Singapore is expected to come into force in January of 2004, at which point shifts in production to Singapore will meet the required “shift in production” criteria outlined in TAA legislation. However, this future date falls outside of the relevant period of this investigation and thus has no bearing on petitioning worker eligibility.

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 2nd day of October, 2003.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.