[Federal Register Volume 76, Number 193 (Wednesday, October 5, 2011)]
[Notices]
[Pages 61744-61745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25716]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-74,733]


Xpedite Systems, LLC Deerfield Beach, Florida; Notice of Negative 
Determination on Reconsideration

    On March 4, 2011, the Department of Labor issued an Affirmative 
Determination Regarding Application for Reconsideration for the workers 
and former workers of Xpedite Systems, LLC, a subsidiary of Easylink 
Services International Corporation, formerly a subsidiary of Premier 
Global Services, Inc., Deerfield Beach, Florida (Xpedite). The 
Department's Notice was published in the Federal Register on March 17, 
2011 (76 FR 14698). Workers of the subject firm are engaged in 
activities related to the supply of communication, applications, and 
support services.
    Pursuant to 29 CFR 90.18(c), reconsideration may be granted under 
the following circumstances:

[[Page 61745]]

    (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 Trade Adjustment Assistance (TAA) petition is dated October 8, 
2010 and was filed by three workers who supplied ``application 
development & support'' services and were separated on October 30, 
2009. The petition states that worker separations occurred because 
``services outsourced to India--Development & Testing, Russia--
Development.''
    The initial investigation was based on the Department's findings 
that imports of services like or directly competitive with those 
supplied by the workers of Xpedite did not increase during the relevant 
period; there has not been a shift to a foreign country by the workers' 
firm in the supply of (like or directly competitive) services; and 
Xpedite did not supply a service that was used by a firm that employed 
a worker group eligible to apply for TAA and used the services supplied 
by the subject firm in the production of an article or supply of a 
service that was the basis for the afore-mentioned TAA certification.
    In the request for reconsideration, the workers provide a summary 
of their allegations: ``* * * there was a contract between Xpedite and 
AppLabs, an Indian company to do customer development work. Xpedite's 
Sales staff are promoting custom development work on Xpedite's platform 
to gain customers that need custom data transfers. Xpedite was also 
using AppLabs for migration work. AppLabs employees located in India 
are writing/testing custom software applications on Xpedite's platform. 
In the long run employees in India replaced'' workers at the Deerfield 
Beach, Florida facility.
    The workers attached a document titled ``Contract Highlights'' 
which included a process map with the following sequence of events: 
``AppLabs completes SOW (SOW template) reviewed by SE before going to 
customer'' ``SOW delivered to customer, documented in Workflow tool'' 
``Customer signs off on SOW'' ``App Labs builds and does initial 
testing on request'' ``Depending on Project Management Ownership, 
customer is contacted for test/confirmation of work.'' The request also 
included a document titled ``Ancillary Processes and Service Level 
Agreements (SLA)'' that provides narrative support to the process map 
and a spreadsheet that identifies AppLabs projects, including 
``migration projects to remove Xpedite's existing customers from old 
outdated platforms to Xpedite's current platform.''
    In a subsequent communication with the Department, a petitioning 
worker stated that ``PWI Technologies was another company that did 
custom software development work for Xpedite'' and asserted that it is 
possible that ``Xpedite stopped using PWI Technologies for software 
development * * * when they went into the contract with AppLabs.''
    During the course of the reconsideration investigation, Xpedite 
addressed multiple worker allegations and provided additional 
materials, including a copy of a Strategic Agreement with AppLabs 
Technologies Private Limited (AppLabs). In making its determination on 
reconsideration, the Department carefully reviewed all responses and 
material submitted during the reconsideration investigation and the 
administrative record.
    A careful review of information previously-submitted by Xpedite 
revealed that prior to October 21, 2010, Xpedite was a wholly-owned 
subsidiary of Premier Global Services, Inc. Effective October 21, 2010, 
Xpedite was acquired by EasyLink Services International Corporation in 
a stock purchase.
    The definition of a firm includes an individual proprietorship, 
partnership, joint venture, association, corporation (including a 
development corporation), business trust, cooperative, trustee in 
bankruptcy, and receiver under decree of any court. Further, a firm, 
together with a predecessor or successor-in-interest, or together with 
any affiliated firm controlled or substantially beneficially owned by 
substantially the same people, may be considered a single firm. 29 CFR 
90.2
    The careful review of previously-submitted information also 
revealed that Xpedite Systems, LLC had an affiliated facility in Tinton 
Falls, New Jersey that supplied some of the same services, and that 
operations were consolidated to the New Jersey facility in October 
2009. Workers whose functions were not eliminated due to the domestic 
consolidation remained at the Florida facility until the acquisition of 
the subject firm by EasyLink Services International Corporation in 
October 2010.
    Because the petition and filing dates precede the change in 
ownership, and because of the regulatory definition of a firm, the 
Department determines that, for purposes of this TAA investigation 
only, the subject firm is Xpedite Systems, LLC, a subsidiary of Premier 
Global Services, Inc., Deerfield Beach, Florida (Xpedite Systems, LLC), 
and the subject worker group consists only of former workers of Xpedite 
Systems, LLC, a subsidiary of Premier Global Services, Inc., Deerfield 
Beach, Florida. There were no leased or temporary workers at the 
subject firm from October 1, 2009 through October 21, 2010.
    During the reconsideration investigation, the Department obtained a 
copy of a Strategic Agreement entered into by Xpedite Systems, LLC and 
AppLabs on October 13, 2009. Based on a careful review of the 
agreement, the Department determines that Xpedite Systems, LLC and 
AppLabs are two separate entities and do not constitute a single firm.
    Section 222(a)(2) of the Trade Act of 1974, as amended, 19 U.S.C. 
22272(a)(2), states that the shift in supply of services criterion may 
be met if there was a shift by the workers' firm to a foreign country 
in the supply of services like or directly competitive with the 
services supplied by the workers' firm.
    Because Xpedite Systems, LLC and AppLabs are separate firms, a 
shift to/acquisition from a foreign country of services by AppLabs is 
not a shift to/acquisition from a foreign country of services by 
Xpedite Systems, LLC. Consequently, the shift in the supply of services 
by AppLabs to India cannot be a basis for certification of workers of 
Xpedite Systems, LLC. Further, the reconsideration investigation 
revealed that Xpedite Systems, LLC did not contract with AppLabs, PWI 
Technologies, or any other entity to perform like or directly 
competitive services in a foreign country.

Conclusion

    After reconsideration, I affirm the original notice of negative 
determination of eligibility to apply for worker adjustment assistance 
for workers and former workers of Xpedite Systems, LLC, a subsidiary of 
Premier Global Services, Inc., Deerfield Beach, Florida.

    Signed in Washington, DC, on this 28th day of September 2011.
Del Min Amy Chen
Certifying Officer, Office of Trade Adjustment Assistance.
[FR Doc. 2011-25716 Filed 10-4-11; 8:45 am]
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