DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-59,039

NORTEL
XPM GNPS, DESIGN AND SUPPORT
RESEARCH TRIANGLE PARK, NORTH CAROLINA

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 mis-
interpretation 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 meet 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, D.C., this 18th day of July, 2006.
/s/ Elliott S. Kushner
___________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance