E6-12199. Nortel, Xpm Gnps, Design and Support, Research Triangle Park, NC; Notice of Negative Determination Regarding Application for Reconsideration

By application dated May 25, 2006, 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 Nortel, XPM GNPS, Design and Support, Research Triangle Park, North Carolina was signed on April 26, 2006 and published in the Federal Register on May 11, 2006 (71 FR 27520).

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 Nortel, XPM GNPS, Design and Support, Research Triangle Park, North Carolina engaged in research and development organization that was responsible for development of software in support of all releases related to XPM 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 providing a service and further conveys that workers of the subject firm “created a new filmware load for the Calls Modem Resource (aka CMR)” and that “it is a new product which is only sent to paying customers.”

A company official was contacted for clarification in regard to the nature of the work performed at the subject facility. The official stated that workers of the subject firm were not directly involved in the work that went into the aforementioned load. Furthermore, the changes that were made in the firmware load were a direct result of a reported problem in the field and were not made to provide a feature to the field. The official further clarified that the firmware was not sold but given to the field and that the production of the modified firmware was not moved to a foreign facility but started and remained offshore, once the changes to it were implemented. The official stated that the loads are being built in a foreign country and the workers of the subject firm support this offshore production.

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.

Research, development and technical support of the existing software or offshore production of the software 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.

The investigation on reconsideration supported the findings of the primary investigation that the petitioning group of workers does not produce an article.

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 at a facility that meets 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 18th day of July, 2006.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.