[Federal Register Volume 71, Number 146 (Monday, July 31, 2006)]
[Notices]
[Pages 43217-43218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12199]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-59,039]


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

[[Page 43218]]

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.
 [FR Doc. E6-12199 Filed 7-28-06; 8:45 am]
BILLING CODE 4510-30-P