DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-61,897

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 mis-
interpretation 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 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 website for the
North American Industry Classification System (NAICS). The NAICS
website (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, D.C. this 5th day of November 2007

/s/ Elliott S. Kushner
___________________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance
4510-FN-P


DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-61,897

MANAGEMENT BUSINESS SOLUTIONS, LLC
APPLICATIONS SUPPORT DEPARTMENT
FORT COLLINS, COLORADO

Negative Determination Regarding Eligibility
To Apply For Worker Adjustment Assistance
And Alternative Trade Adjustment Assistance

In accordance with Section 223 of the Trade Act of 1974, as
amended (19 USC 2273), the Department of Labor herein presents the
results of an investigation regarding certification of eligibility
to apply for worker adjustment assistance.
The investigation was initiated on July 30, 2007, in response
to a petition filed on behalf of workers of Management Business
Solutions, LLC, Applications Support Department, Fort Collins,
Colorado. Workers at Management Business Solutions, LLC,
Applications Support Department, Fort Collins, Colorado are engaged
in support of internal business applications for their clients.
The investigation revealed that Management Business Solutions,
LLC employed in the Applications Support Department does not
produce an article within the meaning of Section 222(a)(2) of the
Act. 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 and
thus the worker group cannot be considered import impacted or
affected by a shift in production of an article.
In addition, in accordance with Section 246 the Trade Act of
1974 (26 USC 2813), as amended, the Department of Labor herein
presents the results of its investigation regarding certification
of eligibility to apply for alternative trade adjustment assistance
(ATAA) for older workers.
In order for the Department to issue a certification of
eligibility to apply for ATAA, the worker group must be certified
eligible to apply for trade adjustment assistance (TAA). Since the
workers are denied eligibility to apply for TAA, the workers cannot
be certified eligible for ATAA.


Conclusion
After careful review, I determine that all workers of
Management Business Solutions, LLC, Applications Support
Department, Fort Collins, Colorado Applications Support Department
are denied eligibility to apply for adjustment assistance under
Section 223 of the Trade Act of 1974, and alternative trade
adjustment assistance under Section 246 of the Trade Act of 1974.

Signed in Washington, D.C., this 6th day of September 2007

/s/ Elliott S. Kushner
______________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance







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