E7-8825. International Business Machines Corporation, Tulsa, OK; Notice of Revised Determination on Remand

On March 30, 2007, the United States Court of International Trade (USCIT) remanded to the Department of Labor (Department) for further investigation Former Employees of International Business Machines Corporation v. U.S. Secretary of Labor, Court No. 04-00079. In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273), the Department herein presents the results of the remand investigation regarding workers' eligibility to apply for worker adjustment assistance.

The initial investigation to determine the eligibility of workers of International Business Machines Corporation (IBM), Tulsa, Oklahoma (subject firm) to apply for Trade Adjustment Assistance (TAA) was initiated on November 26, 2003 in response to a worker-filed petition. The Department's initial negative determination, issued on December 2, 2003 and published in the Federal Register on January 16, 2004 (69 FR 2622), was based on finding that the workers did not produce an article within the meaning of Section 222 of the Trade Act of 1974.

The petitioners requested administrative reconsideration of the negative determination on February 6, 2004. By letter dated February 11, 2004, the petitioners also sought judicial review of the negative determination. On March 30, 2004, the USCIT granted the Department's request for voluntary remand in order to issue a finding pursuant to the request for reconsideration.

The Department issued a negative determination on the request for reconsideration on March 31, 2004. The Department's Notice of determination was published in the Federal Register on April 16, 2004 (69 FR 20644). The determination was based on findings that the workers' firm did not produce an article within the meaning of Section 222 of the Trade Act and that the workers did not provide services in direct support of an affiliated TAA certified firm.

On May 14, 2004, the Department filed its second consent motion for voluntary remand. The Department issued a negative determination on remand on August 2, 2004. The Department's Notice of determination was published in the Federal Register on August 10, 2004 (69 FR 48527). The determination was based on findings that the workers at the subject facility did not produce or support the production of an article by IBM and were not under the control of BP. On December 2, 2005, the USCIT remanded the matter to the Department.

On February 6, 2006, the Department issued a second negative determination on remand. The Department's Notice of determination was published in the Federal Register on March 2, 2006 (71 FR 10709). The Department's determination was based on findings that the criteria developed by the Department to determine the extent to which a worker group engaged in activities related to the production of an article by a producing firm was under the control of the producing firm had not been met. On March 30, 2007, the USCIT remanded the matter to the Department.

The Department has determined after further review that during the relevant period, a significant number or proportion of the subject worker group was separated and that the subject worker group was working in support of, and under sufficient control of import impacted BP production facilities, whose workers were certified as eligible for TAA.

Conclusion

Based on review of the record evidence, I determine that BP controlled the subject worker group and that increased imports of articles like or directly competitive with crude oil produced by an affiliated facility which the subject worker group supported, contributed to the total or partial separation of a significant number or proportion of workers at the subject facility.

In accordance with the provisions of the Act, I make the following certification:

“All workers of International Business Machines Corporation, Tulsa, Oklahoma, who became totally or partially separated from employment on or after November 26, 2002, through two years from the issuance of this revised determination, are eligible to apply for Trade Adjustment Assistance under Section 223 of the Trade Act of 1974.”

Signed at Washington, DC this 2nd day of May 2007.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.