DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-64,591

GENSYM CORPORATION
A SUBSIDIARY OF VERSATA ENTERPRISES, INC.
BURLINGTON, MASSACHUSETTS

Notice of Revised Determination
on Remand

On August 25, 2009, the U.S. Court of International Trade
(USCIT) remanded to the U.S. Department of Labor (Department)
for further review Former Employees of Gensym Corporation v.
United States Secretary of Labor, Court No. 09-00240.
The group eligibility requirements for directly-impacted
(primary) workers under Section 222(a) the Trade Act of 1974, as
amended, can be satisfied in either of two ways:
Under Section 222(a)(2)(A), the following criteria must be
satisfied:
A. a significant number or proportion of the workers in
such workers' firm, or an appropriate subdivision of
the firm, have become totally or partially separated,
or are threatened to become totally or partially
separated;
B. the sales or production, or both, of such firm or
subdivision have decreased absolutely; and
C. increased imports of articles like or directly
competitive with articles produced by such firm or
subdivision have contributed importantly to such
workers’ separation or threat of separation and to the
decline in sales or production of such firm or
subdivision; or



Under Section 222(a)(2)(B), the following criteria must be

satisfied:

A. a significant number or proportion of the workers in
such workers' firm, or an appropriate subdivision of
the firm, have become totally or partially separated,
or are threatened to become totally or partially
separated;
B. there has been a shift in production by such workers’
firm or subdivision to a foreign country of articles
like or directly competitive with articles which are
produced by such firm or subdivision; and
C. one of the following must be satisfied:
1. the country to which the workers’ firm has shifted
production of the articles is a party to a free
trade agreement with the United States;
2. the country to which the workers’ firm has shifted
production of the articles is a beneficiary country
under the Andean Trade Preference Act, African
Growth and Opportunity Act, or the Caribbean Basin
Economic Recovery Act; or
3. there has been or is likely to be an increase in
imports of articles that are like or directly
competitive with articles which are or were produced
by such firm or subdivision.

On December 2, 2008, a State Workforce Office filed a
petition for Trade Adjustment Assistance (TAA) and Alternative
Trade Adjustment Assistance (ATAA) on behalf of workers and
former workers of Gensym Corporation, a subsidiary of Versata
Enterprises, Inc., Burlington, Massachusetts (Gensym-MA).
The initial investigation revealed that, during the
relevant period, a significant number or proportion of workers
at Gensym-MA was totally or partially separated from employment,
the subject worker group performed information technology sales,
consulting, and support services, and Gensym Corporation, a
subsidiary of Versata Enterprises, Inc. (Gensym), did not
produce an article within the meaning of Section 222(a)(2) of
the Trade Act of 1974, as amended (the Trade Act).
The Department issued a Negative Determination Regarding
Eligibility to Apply for Worker Adjustment Assistance and
Alternative Trade Adjustment Assistance on February 4, 2009.
The Department’s Notice of determination was published in the
Federal Register on March 3, 2009 (74 FR 9283).
By application dated February 20, 2009, the Division of
Career Services, Trade Program Manager, Massachusetts, requested
administrative reconsideration of the Department’s negative
determination. The request for reconsideration alleged that
Gensym produced software and that there may have been a shift of
production to at least one foreign country.
The Department issued a Notice of Affirmative Determination
Regarding Application of Reconsideration on March 2, 2009. The
Department’s Notice of determination was published in the
Federal Register on March 11, 2009 (74 FR 10616).
The reconsideration determination stated that Gensym did
not produce software during the relevant period (the date one
year prior to the petition date through the petition date). The
Department concluded that because no production took place at
Gensym during the relevant period, there could not have been a
shift of production by Gensym to a foreign country during the
relevant period and that the subject worker group could not have
supported such domestic production during the relevant period.
The Department’s Notice of Negative Determination of
Reconsideration was issued on April 21, 2009. The Department’s
Notice of determination was published in the Federal Register on
April 30, 2009 (74 FR 19997).
In the Complaint, the Plaintiff asserts that “new releases”
of existing software were produced during the relevant period,
and provided a copy of a Gensym news release (“Gensym Announces
Release of Gensym G2 8.3 R2,” Austin, Texas, March 20, 2008).
In order to determine whether the subject workers meet the
TAA group eligibility requirements, the Department must first
determine whether or not an article was produced at the subject
firm, then determine whether the subject workers are adversely
impacted by increased imports of articles like or directly
competitive with those produced by the subject firm or by a
shift in production abroad of articles like or directly
competitive with articles produced by the subject firm.
In order for a worker group to qualify for TAA as primary
workers, they must either be 1) engaged in domestic production,
or 2) in support of an affiliated domestic production facility.
Where the workers support production, the facility that they
support must be import-impacted or have shifted production
pursuant to Section 222(a)(2)(B).
The requirement that the firm employing the subject workers
produce an article domestically was stated in the Notice of
Revised Determination on Remand for Lands’ End, A Subsidiary of
Sears Roebuck and Company, Business Outfitters CAD Operations,
Dodgeville, Wisconsin, TA-W-56,688 (issued on March 24, 2006,
published at 71 FR 18357). The determination also stated that
articles can be either tangible or intangible. Software code,
software enhancements/updates, software “patches” and new
releases of existing software are considered articles, for
purposes of the Trade Act.
During the remand investigation, the Department sought from
Gensym information regarding the software releases identified in
Plaintiff’s support documentation (“Gensym Announces Release of
Gensym G2 8.3 R2” news release). Based on information submitted
during the course of the remand investigation, the Department
also sought information from Gensym regarding articles (software
updates/enhancements) produced at its Austin, Texas facility
during the relevant period and the relationship between Gensym-
MA and the Austin, Texas facility.
The Department had requested that Plaintiff’s counsel
provide new and additional information that Plaintiff indicated
was relevant to the remand investigation, but did not receive
any such information. Therefore, the remand determination is
based solely on new information provided by Gensym.
During the remand investigation, Gensym confirmed that the
firm did produce updates/enhancements for existing software
products. Gensym also provided new information that revealed
that production of software updates/enhancements was shifted
abroad and that the shift was followed by increased imports of
articles like or directly competitive with those produced by
Gensym.
Based on the new information provided by Gensym during the
remand investigation, the Department determines that the
criteria set forth in Section 222(a)(2)(B) has been satisfied.
In accordance with Section 246 the Trade Act of 1974 (26 USC
2813), as amended, the Department herein presents the results of
its investigation regarding certification of eligibility to
apply for ATAA.
The Department has determined in the immediate case that the
group eligibility requirements of Section 246 have been met.
A significant number of workers at Gensym-MA are age 50 or
over and possess skills that are not easily transferable.
Competitive conditions within the industry are adverse.
Conclusion
After careful review of the facts generated through the
remand investigation, I determine that a shift of production to
a foreign country by Gensym of articles like or directly
competitive with software updates/enhancements, followed by
increased imports of articles like or directly competitive with
those produced by Gensym, contributed to the total or partial
separation of a significant number or proportion of workers at
Gensym Corporation, Burlington, Massachusetts.
In accordance with the provisions of the Act, I make the
following certification:
"All workers of Gensym Corporation, a subsidiary of
Versata Enterprises, Inc., Burlington, Massachusetts, who
became totally or partially separated from employment on
or after December 2, 2007, through two years from the
issuance of this revised determination, are eligible to
apply for Trade Adjustment Assistance under Section 223
of the Trade Act of 1974, and are eligible to apply for
alternative trade adjustment assistance under Section 246
of the Trade Act of 1974."
Signed at Washington, D.C., this 23rd day of December, 2009

/s/ Richard Church
_______________________________
RICHARD CHURCH
Certifying Officer, Division of
Trade Adjustment Assistance

4510-FN-P


DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-64,591
GENSYM CORPORATION
A SUBSIDIARY OF VERSATA ENTERPRISES, INC.
BURLINGTON, MASSACHUSETTS

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 December 4, 2008, in
response to a petition filed by the State Workforce Office on
behalf of workers of Gensym Corporation, a subsidiary of Versata
Enterprises, Inc., Burlington, Massachusetts. The workers
performed IT sales, consulting, and support services.
The investigation revealed that Gensym Corporation, a
subsidiary of Versata Enterprises, Inc., Burlington,
Massachusetts, 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. The IT support workers do not support a 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 of the facts obtained in the
investigation, I determine that all workers of Gensym
Corporation, a subsidiary of Versata Enterprises, Inc.,
Burlington, Massachusetts, are denied eligibility to apply for
adjustment assistance under Section 223 of the Trade Act of
1974, and are also denied eligibility to apply for alternative
trade adjustment assistance under Section 246 of the Trade Act
of 1974.
Signed in Washington, D.C., this 4th day of February 2009

/s/ Linda G. Poole
______________________________
LINDA G. POOLE
Certifying Officer, Division of
Trade Adjustment Assistance







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