[Federal Register Volume 71, Number 97 (Friday, May 19, 2006)]
[Notices]
[Page 29183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7609]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-50,129; TA-W-50,129A]


IBM Corporation Global Services Division, Piscataway, NJ; 
Middletown, NJ; Notice of Revised Determination on Remand

    On April 10, 2006, the United States Court of International Trade 
(USCIT) granted a consent motion for partial voluntary remand in Former 
Employees of IBM Corporation, Global Services Division v. U.S. 
Secretary of Labor, Court No. 03-00656.
    On November 13, 2002, a petition for Trade Adjustment Assistance 
(TAA) was filed with the U.S. Department of Labor (Department) on 
behalf of workers at IBM Corporation, Global Services Division, 
Piscataway, New Jersey, and Middletown, New Jersey (the subject firm). 
The petitioning workers alleged that the subject firm was shifting 
computer software production to Canada and importing those products 
from Canada. Workers are software developers who write and test 
computer software.
    The Department determined that the workers did not produce an 
article within the meaning of section 222 of the Trade Act. The 
Department's determination was issued on March 26, 2003. The Notice of 
determination was published in the Federal Register on April 7, 2003 
(68 FR 16834).
    On April 29, 2003, a petitioner requested administrative 
reconsideration of the Department's negative determination regarding 
eligibility for the subject workers to apply for TAA. The Department's 
Notice of Negative Determination Regarding Application for 
Reconsideration was issued on June 26, 2003, and published in the 
Federal Register on July 15, 2003 (68 FR 41845).
    On September 11, 2003, the Plaintiffs requested review by the 
USCIT. On December 9, 2005, the Department issued its Notice of 
Negative Determination on Remand, finding that the subject workers are 
not engaged in the production of an article or support of an article. 
The Notice was published in the Federal Register on December 21, 2005 
(70 FR 75837).
    Since the publication of the last remand determination, the 
Department has revised its policy to acknowledge that, at least in the 
context of this case, there are tangible and intangible articles and to 
clarify that the production of intangible articles can be distinguished 
from the provision of services. Software and similar intangible goods 
that would have been considered articles, for the purposes of the Trade 
Act, if embodied in a physical medium will now be considered to be 
articles regardless of their method of transfer.
    The Department stresses that it will continue to implement the 
longstanding precedent that firms must produce an article to be 
certified under the Trade Act. This determination is not altered by the 
fact the provision of a service may result in the incidental creation 
of an article. Because the revised policy may have implications beyond 
this case of which the Department is not fully cognizant, it will be 
further developed in rulemaking.
    Therefore, due to the Department's policy change, the Department 
requested the second remand to conduct an investigation to determine 
whether the subject workers are eligible to apply for trade adjustment 
assistance.
    Reviewing previously-submitted information through the lens of the 
revised policy, the Department has determined that, for purposes of the 
Trade Act, the subject workers produce an article (computer software). 
During the relevant period, a significant portion of workers was 
separated from the Piscataway, New Jersey facility and production 
shifted to an affiliated facility located in Canada; a significant 
portion of workers was separated from the Middletown, New Jersey 
facility and production shifted to an affiliated facility located in 
Canada.

Conclusion

    After careful review of the facts generated through the second 
remand investigation, I determine that a shift in production of 
software like or directly competitive to that produced at the subject 
facilities to Canada contributed to the total or partial separation of 
a significant number or proportion of workers at the subject 
facilities. In accordance with the provisions of the Act, I make the 
following certification:

All workers of IBM Corporation, Global Services Division, 
Piscataway, New Jersey (TA-W-50,129), and Middletown, New Jersey 
(TA-W-50,129A), who became totally or partially separated from 
employment on or after November 13, 2001, 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 10th day of May 2006.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
 [FR Doc. E6-7609 Filed 5-18-06; 8:45 am]
BILLING CODE 4510-30-P