[Federal Register Volume 72, Number 218 (Tuesday, November 13, 2007)]
[Notices]
[Pages 63929-63930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22062]


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DEPARTMENT OF LABOR

[TA-W-61,897]

Employment and Training Administration


Management Business Solutions, LLC, Applications Support 
Department, Fort Collins, Colorado; Notice of Negative Determination 
Regarding Application for Reconsideration

    By application dated October 17, 2007, workers requested 
administrative reconsideration of the Department's negative 
determination regarding eligibility for workers and former workers of 
Management Business Solutions, LLC, Applications Support Department, 
Fort Collins, Colorado (subject firm) to apply for Trade Adjustment 
Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA). 
The determination was issued on September 6, 2007. The Notice of 
determination was published in the Federal Register on September 21, 
2007 (72 FR 54076).
    The worker-filed TAA/ATAA petition was denied because the subject 
firm does not produce an article within the meaning of section 
222(a)(2) of the Act. The determination stated that, because the 
workers did not produce an article, and did not support a firm or 
appropriate subdivision that produced an article domestically, the 
workers cannot be considered import impacted or affected by a shift of 
production abroad. Workers are engaged in support of internal business 
applications for the subject firm's clients.
    Pursuant to 29 CFR 90.18(c), administrative reconsideration may be 
granted if:
    (1) It appears on the basis of facts not previously considered that 
the determination complained of was erroneous;
    (2) it appears that the determination complained of was based on a 
mistake in the determination of facts not previously considered; or
    (3) in the opinion of the Certifying Officer, a misinterpretation 
of facts or of the law justified reconsideration of the decision.
    The request for reconsideration alleges that (1) the subject firm 
shifted production of an article (``application management service'') 
overseas and (2) consulting firms, such as the subject firm, are 
covered by the Trade Act because it ``does not differentiate between 
types of businesses that it covers.''
    It is the Department's policy that the subject firm must produce an 
article domestically. The Department's policy

[[Page 63930]]

is supported by current regulation. 29 CFR section 90.11(c)(7) requires 
that the petition includes a ``description of the articles produced by 
the workers' firm or appropriate subdivision, the production or sales 
of which are adversely affected by increased imports, and a description 
of the imported articles concerned. If available, the petition should 
also include information concerning the method of manufacture, end 
uses, and wholesale or retail value of the domestic articles produced 
and the United States tariff provision under which the imported 
articles are classified.''
    In order to determine whether the subject firm is a manufacturing 
firm, the Department consulted the Web site for the North American 
Industry Classification System (NAICS). The NAICS Web site (http://www.naics.com/faq.htm#q1) states that ``The North American Industry 
Classification System * * * was developed as the standard for use by 
Federal statistical agencies in classifying business establishments for 
the collection, analysis, and publication of statistical data related 
to the business economy of the U.S.'' The NAICS designation identifies 
the primary activity of the company, which is useful in understanding 
what a firm does for its customers, which, in turn, aids in determining 
whether a firm produces an article or provides services for its 
customers.
    The subject firm is categorized in NAICS subsection 541611 
(``Administrative Management and General Management Consulting 
Services''). This category consists of ``establishments primarily 
engaged in providing operating advice and assistance to businesses and 
other organizations on administrative management issues, such as 
financial planning and budgeting, equity and asset management, records 
management, office planning, strategic and organizational planning, 
site selection, new business startup, and business process 
improvement'' and includes ``establishments of general management 
consultants that provide a full range of administrative; human 
resource; marketing; process, physical distribution, and logistics; or 
other management consulting services to clients.''
    After careful review of the request for reconsideration and 
previously submitted information, the Department determines that the 
subject firm is a service firm and not a manufacturing firm. As a 
corollary, the Department determines that there was no shift of 
production abroad.
    The Department operates the program in accordance with current law, 
and while the Department has discretion to issue regulations and 
guidance on the operation of a program that it is charged with 
implementing, the Department cannot expand the program to include 
workers that Congress did not intend to cover.
    In 2002, while amending the Trade Act, the Senate explained the 
purpose and history of TAA:

    Since it began, TAA for workers has covered mostly manufacturing 
workers, with a substantial portion of program participants being 
steel and automobile workers in the mid- to late-1970s to early 
1980s, and light industry and apparel workers in the mid- to late-
1990s. In fiscal years 1995 through 1999, the estimated number of 
workers covered by certifications under the two TAA for workers 
programs averaged 167,000 annually, reaching a high of about 228,000 
in 1999, despite a falling overall unemployment rate. During the 
same period, approximately 784 firms were certified under the TAA 
for firms program. Participating firms represent a broad array of 
industries producing manufactured products, including auto parts, 
agricultural equipment, electronics, jewelry, circuit boards, and 
textiles, as well as some producers of agricultural and forestry 
products.

S. Rep. 107-134, S. Rep. No. 134, 107th Cong., 2nd Sess. 2002, 2002 WL 
221903 (February 4, 2002)(emphasis added). Clearly, the language 
suggests that the focus of TAA is the manufacture of marketable goods.
    Congress has recognized the difference between manufacturers and 
service firms and that an amendment to the Trade Act is needed to cover 
workers in service firms. It has recently rejected at least two 
attempts to amend the Trade Act to expand TAA coverage to service 
firms. It did not pass the ``Trade Adjustment Assistance Equity for 
Service Workers Act of 2005'' or the ``Fair Wage, Competition, and 
Investment Act of 2005.'' Most recently, Senator Baucus introduced the 
``Trade and Globalization Adjustment Assistance Act of 2007'' which 
provides for an expansion of coverage to workers in a ``service sector 
firm'' when there are increased imports of services like or directly 
competitive with articles produced or services provided in the United 
States, or a shift in provision of like or directly competitive 
articles or services to a foreign country, and Congressman Rangel 
introduced a similar bill in the House of Representatives that was 
discussed in late October 2007.
    Until Congress amends the Trade Act to cover service workers, in 
order to be considered eligible to apply for adjustment assistance 
under section 223 of the Trade Act of 1974, the worker group seeking 
certification (or on whose behalf certification is being sought) must 
work for a firm or appropriate subdivision that produces an article and 
there must be a relationship between the workers' work and the article 
produced by the workers' firm or appropriate subdivision that produces 
an article domestically.
    After careful review of the request for reconsideration and 
previously submitted materials, the Department determines that there is 
no new information that supports a finding that section 222(a)(2) of 
the Trade Act of 1974 was satisfied and that there was no mistake or 
misinterpretation of the facts or the law.

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 5th day of November 2007.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
 [FR Doc. E7-22062 Filed 11-9-07; 8:45 am]
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