Gensym Corporation, a Subsidiary of Versata Enterprises, Inc.; Burlington, MA; Notice of Revised Determination on Remand, 454-455 [E9-31387]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Notices]
[Pages 454-455]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-31387]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-64,591]


Gensym Corporation, a Subsidiary of Versata Enterprises, Inc.; 
Burlington, MA; 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,

[[Page 455]]

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 U.S.C. 
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, DC, this 23rd day of December 2009.
Richard Church,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E9-31387 Filed 1-4-10; 8:45 am]
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