International Business Machines Corporation, IBM Integrated Supply Chain Operations, Hopewell Junction, NY; Notice of Negative Determination Regarding Application for Reconsideration

By application dated February 21, 2009, the petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA), applicable to workers and former workers of the subject firm. The denial notice was signed on January 2, 2009 and published in the Federal Register on January 26, 2009 (74 FR 4464).

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 misinterpretation of facts or of the law justified reconsideration of the decision.

The negative TAA determination issued by the Department for the workers of International Business Machines Corporation, IBM Integrated Supply Chain Operations, Hopewell Junction, New York was based on the findings that the worker group did not produce an article within the meaning of Section 222 of the Trade Act of 1974. The investigation revealed that workers of the subject firm provided internal maintenance and development services for various Web based applications. The investigation further revealed that no production of article(s) occurred within the firm or appropriate subdivision during the relevant period.

The petitioner in the request for reconsideration contends that the Department erred in its interpretation of the work performed by the workers of the subject firm. The petitioner states that from 1996 to 2007 the workers of the subject firm developed applications that “were being deployed in China for education and financial purposes”. The petitioner also indicates that the workers maintained and created applications for customers.

When assessing eligibility for TAA, the Department exclusively considers production and import impact during the relevant time period (one year prior to the date of the petition). Events occurring between 1996 and October 2007 are outside of the relevant time period as established by the petition date of November 4, 2008, and thus cannot be considered in this investigation.

The investigation revealed that during the relevant period, the workers of International Business Machines Corporation, IBM Integrated Supply Chain Operations, Hopewell Junction, New York managed existing applications in the IBM Procurement portfolio that were used internally for purposes such as invoice support, Web orders, and procurement.

These functions, as described above, are not considered production of an article within the meaning of Section 222 of the Trade Act. While the provision of services may result in printed material or can be stored electronically, it is incidental to the provision of these services. No production took place at the subject facility, nor did the workers support production of an article at any domestic location during the relevant period.

The petitioner also alleges that job functions have been shifted from the subject firm to China.

The allegation of a shift to another country might be relevant if it was determined that workers of the subject firm produced an article. However, the investigation determined that workers of International Business Machines Corporation, IBM Integrated Supply Chain Operations, Hopewell Junction, New York do not produce an article within the meaning of Section 222 of the Trade Act of 1974.

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.