[Federal Register: October 28, 2008 (Volume 73, Number 209)]
[Notices]
[Page 63995-63996]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28oc08-92]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-63,761]
Level 3 Communications, L.L.C., Austin, TX; Notice of Negative
Determination Regarding Application for Reconsideration
By application dated September 29, 2008, a worker 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 Level 3 Communications,
L.L.C., Austin, Texas (subject firm). The determination was issued on
September 11, 2008. The Department's Notice of determination was
published in the Federal Register on September 24, 2008 (73 FR 55137).
The subject workers are engaged in telecommunication activities related
to network design and provisioning in support of customer requests,
infrastructure, and network grooming activities.
The petition for TAA was denied because the workers do not produce
an article within the meaning of Section 222(a)(2) of the Trade Act of
1974. In order to be certified eligible to apply for ATAA, the worker
group must be eligible to apply for TAA. Since the worker group is
denied eligibility to apply for TAA, they cannot be certified eligible
to apply for ATAA.
In the request for reconsideration, the worker stated that ``the
position I held did create an article that was required by the
customers * * * a document referred to as an LOA (Letter of
Authorization).'' The worker also states that the LOA ``provided vital
information, which included the actual circuit and channel assignment,
to the customer. Without this information they would not be able to
physically connect to the correct equipment in the field * * * The LOA
also gave them a legal document that stated they were allowed to
connect to our equipment and or we were allowed to connect to their
equipment in the field. The circuit design and or provisioning could
not be done or move forward without this LOA.''
Pursuant to 29 CFR 90.18(c), administrative 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.
In order to be considered eligible to apply for adjustment
assistance, the worker group seeking certification 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 workers' firm provides telecommunication network services. The
firm's Web site states that it is a ``provider of fiber-based
communication services * * * Our network offerings include Internet
Protocol (IP) services * * * content and video delivery, data and voice
services.'' Further, previously-submitted documents, including the
petition and the
[[Page 63996]]
questionnaire completed by the subject firm, confirm that the subject
firm provides a service.
Unlike a manufacturing firm, Level 3 Communications, L.L.C. (Level
3) is not in the business of producing an article and then selling it,
and the subject firm does not receive revenue from the sales of the
LOA. Level 3's revenue flows from providing its customers with network
communication services. The LOA merely memorializes the service
agreement between the subject firm and its customer. As such, it is not
an article produced by the subject firm. Rather, the issuance of a LOA
is merely incidental to the service provided by the subject firm.
It is the Department's policy that something which is created
incidental to the provision of a service is not an ``article'' for
purposes of the Trade Act. The Department's policy that those workers
who provide services are not engaged in the production of an article
for the purposes of the Act, even if something (tangible or intangible)
is generated in the provision of those services, has been upheld by the
U.S. Court of International Trade (USCIT) in Former Employees of
Mortgage Guaranty Insurance Corporation v. United States Secretary of
Labor, Court No. 07-00182. In its August 13, 2008, opinion, the USCIT
stated ``the Trade Act does not provide for the eligibility of workers
engaged in the provision of services.''
After careful review of the request for reconsideration, the
Department determines that there is no new information that supports a
finding that Section 222 of the Trade Act of 1974 was satisfied and
that no mistake or misinterpretation of the facts or of the law with
regards to the number or proportion of workers separated from the
subject firm during the relevant period.
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, DC, this 10th day of October 2008.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E8-25463 Filed 10-27-08; 8:45 am]
BILLING CODE 4510-FN-P