Former Employees of International Business Machines Corp. v. U.S. Secretary of Labor (483 F. Supp. 2d 1284, 2007)

OPINION

RIDGWAY, Judge.

This action challenges the determinations of the U.S. Department of Labor denying the petition for trade adjustment assistance (“TAA”) filed by the plaintiff Former Employees, who claim TAA benefits as “leased service workers,” and who were employed for years by BP/Amoco, before being “outsourced” to the consulting services group of Pricewaterhouse Coopers (“PwC”), which was' — -in turn— acquired by IBM, before the Former Employees’ termination.

Pending before the Court is the Labor Department’s [Third] Notice of Negative Determination on Remand, 41 Fed.Reg. 10,709 (March 2, 2006) (CSAR 1019-50; SAR 1019-50) (“Third Negative Redeter-mination on Remand”), which was filed pursuant to Former Employees of Int’l Bus. Mach. Corp. v. U.S. Secretary of Labor, 29 CIT, -, 403 F.Supp.2d 1311 (2005) (“IBM I”). In its Third Negative Redetermination on Remand, the Labor Department announced a new Leased Worker Policy, establishing seven criteria to be applied in cases — like this one— involving leased workers, “to determine the extent to which a worker group engaged in activities related to the production of an article by a producing firm is under the operational control of the producing firm.” See Third Negative Determination on Remand, 41 Fed.Reg. at 10,-712. Concluding that all seven criteria weighed against the Former Employees here, the Labor Department reaffirmed its denial of TAA certification. Id. at 10,712-14; CSAR 1035-50.

The Former Employees challenge the Third Negative Redetermination on Remand, characterizing the Labor Department’s remand investigation as “a sham, which lacked transparency and was conducted to reach a predetermined negative result.” See Plaintiffs’ Comments Concerning the Department of Labor’s Negative Determination on Remand (“Pis.’ Brief’) at 1; see also Plaintiffs’ Reply to Defendant’s April 28, 2006 Response (“Pis.’ Reply Brief’) at 1-5. The Former Employees further contend that, contrary to the agency’s determination, “substantial record evidence demonstrates that the Former Employees were under the operational control of BP,” and that the Labor Department “has failed to identify any other certification requirements not supported by substantial evidence on the record.” Pis.’ Brief at 3; see also Pis.’ Reply Brief at 8-9.

Accordingly, the Former Employees urge the Court to reverse the Third Negative Redetermination on Remand, and to order the Labor Department to certify the Former Employees as eligible to receive TAA benefits. In the alternative, the Former Employees ask that the Court remand this matter to the Labor Department after explicitly finding that the agency’s determination as to operational control is not supported by substantial evidence and that the Former Employees’ satisfaction of all other requirements for certification has been conceded. Pis.’ Brief at 36; Pis.’ Reply Brief at 1,11.

For its part, the Government maintains that the Labor Department’s Third Negative Redetermination on Remand is supported by substantial evidence in the administrative record and is otherwise in accordance with law. The Government therefore contends that the agency’s negative determination should be sustained in all respects. See generally Defendant’s Response to Plaintiffs’ Comments Upon Labor’s Remand Determination (“Def.’s Brief’).

Jurisdiction lies under 28 U.S.C. § 1581(d)(1) (2000). For the reasons set forth below, this action is remanded to Defendant yet again, for further proceedings not inconsistent with this opinion, and judgement is reserved as to the consequences of Defendant’s failure to comply with the Court’s instructions in IBM I. See, e.g., section IV.E, infra.

I. The Relevant Legal Framework

Trade adjustment assistance has long served as the quid pro quo for U.S. national policies of free trade. See generally Former Employees of BMC Software, Inc. v. U.S. Sec’y of Labor, 30 CIT,-, — 454 F.Supp.2d 1306, 1307-08 (2006) (citing Former Employees of Chevron Prods. Co. v. U.S. Sec’y of Labor, 27 CIT 1930, 1943-44, 298 F.Supp.2d 1338, 1349-50 (2003) (“Chevron III”)) (summarizing policy underpinnings of TAA laws). As UAW v. Marshall explains, “much as the doctrine of eminent domain requires compensation when private property is taken for public use,” the TAA laws similarly reflect the country’s recognition that “fairness demand[s] some mechanism whereby the national public, which realizes an overall gain through trade readjustments, can compensate the particular ... workers who suffer a[job] loss”. UAW v. Marshall, 584 F.2d 390, 395 (D.C.Cir.1978).

Trade adjustment assistance is generally designed to assist workers who have lost their jobs as a result of increased import competition from — or shifts in production to — other countries, by helping those workers “learn the new skills necessary to find productive employment in a changing American economy.” Former Employees of Chevron Prods. Co. v. U.S. Sec’y of Labor, 26 CIT 1272, 1273, 245 F.Supp.2d 1312, 1317 (2002) (“Chevron I”) (quoting S.Rep. No. 100-71, at 11 (1987)).

As remedial legislation, the TAA laws are to be construed broadly to effectuate their intended purpose. UAW v. Marshall, 584 F.2d at 396 (recognizing the “general remedial purpose” of TAA statutes, and noting that “remedial statutes are to be liberally construed”). Moreover, both “because of the ex parte nature of the certification process, and the remedial purpose of [the TAA statutes], the [Labor Department] is obliged to conduct [its] investigation with the utmost regard for the interests of the petitioning workers.” Stidham, v. U.S. Dep’t of Labor, 11 CIT 548, 551, 669 F.Supp. 432, 435 (1987) (citing Abbott v. Donovan, 7 CIT 323, 327-28, 588 F.Supp. 1438, 1442 (1984) (quotation marks omitted)); see also BMC, 30 CIT at-, 454 F.Supp.2d at 1312 (and cases cited there).

Thus, although the Labor Department is vested with considerable discretion in the conduct of its investigations of TAA claims, “there exists a threshold requirement of reasonable inquiry.” Former Employees of Hawkins Oil & Gas, Inc. v. U.S. Sec’y of Labor, 17 CIT 126, 130, 814 F.Supp. 1111, 1115 (1993). Courts have not hesitated to set aside agency determinations which are the product of perfunctory investigations.

II. Background

As detailed in IBM I, the events leading to this action stretch back more than a decade, and include a corporate merger, the workforce reduction that followed that merger, the “outsourcing” of the Former Employees, the acquisition of their new employer by another firm, and, ultimately, their termination, followed by a growing line of determinations by the Labor Department denying their petition for TAA certification. See generally IBM I, 29 CIT at-,-, 403 F.Supp.2d at 1313,1319— 23.

A. The Facts of the Case

In some cases for up to 30 or 40 years prior to their termination, the Former Employees worked in the oil and gas industry — supporting exploration, drilling, and production from the same wells owned by the same oil company, doing the same tasks, day in and day out, seated at the same desks, inside the same facility in Tulsa, Oklahoma (the “Accounting Center”). See generally IBM I, 29 CIT at -, -, 403 F.Supp.2d at 1313, 1319.

The Former Employees’ initial employer, Amoco Corporation, merged with The British Petroleum Company p.Lc. in December 1998, and — as a result — the Former Employees became employees of BP Amoco Group (now known as BP p.l.c., or simply “BP”). The Former Employees survived the layoffs that followed the 1998 merger. Their colleagues who were less fortunate were later certified as eligible to apply for TAA benefits, in 1999. See generally IBM /, 29 CIT at-, -, 403 F.Supp.2d at 1313, 1319.

In 2000, the Former Employees and others at the Accounting Center who had survived the post-merger reductions in force were struck by another wave of corporate restructuring, when BP “outsourced” their unit to Pricewaterhouse Coopers (“PwC”). Two years later, IBM acquired PwC’s consulting services business, and the Former Employees became employees of IBM. See generally IBM I, 29 CIT at -, -, 403 F.Supp.2d at 1313, 1319.

The Former Employees maintain that, although they were “outsourced” by BP, nothing ever really changed except the company signing their paychecks. The Former Employees attest that, even after their “outsourcing,” the workers at the Accounting Center continued to work for BP — “managing oil and gas production and related leases, managing BP’s production-related assets and equipment, accounting for various production plants, supporting division order operations, performing pro-eurement functions, and submitting regulatory government reports on North American production.” Indeed, according to the Former Employees, BP retained control over work done at the Accounting Center at all times, both as a matter of contract and as a matter of operational reality. See generally IBM I, 29 CIT at-,-, 403 F.Supp.2d at 1313,1319.

Although the Former Employees had successfully weathered repeated corporate shake-ups in the past, them luck ran out in 2003, when they were terminated — a development which they trace to surging imports of oil and natural gas, as well as BP’s shift from domestic to foreign production. See generally IBM /, 29 CIT at-,-, 403 F.Supp.2d at 1313,1319.

According to the Former Employees, at the time of their termination, they were still sitting at the same desks in the same building doing the same work for the same company in support of the same production facilities as their former colleagues who were laid off in 1998. Just as their colleagues laid off in 1998 had done, the Former Employees here filed a TAA petition. But the Former Employees’ petition met a very different fate. See generally IBM I, 29 CIT at -, -, 403 F.Supp.2d at 1313,1319-20.

B. The Procedural History of the Case

In mid-November 2003, the Former Employees filed a petition with the Labor Department, seeking TAA certification. Within a week of the initiation of the investigation, their petition had been denied.

1. The Initial Denial and The First Voluntary Remand Proceeding

The Labor Department’s first negative determination rested on the agency’s conclusion that the Former Employees did not produce an “article” within the meaning of the TAA statute. Notice of Initial Denial, 69 Fed.Reg. 2,621.

As IBM I explained, it is difficult to understate the superficial nature of the Labor Department’s initial investigation. Indeed, the entire “investigation” consisted of a single two-page questionnaire, sent to an IBM official. The agency posed two questions concerning whether IBM produced an article at the Accounting Center. Nowhere did the agency seek to elicit information concerning the Former Employees’ potential eligibility for certification as service workers. And nowhere did the agency probe IBM’s contractual relationship with any other company — even though, on their petition form, the Former Employees listed “IBM/BP Amoco” in the space provided for “Company Name,” and explained elsewhere on the form that the “Accounting Center performs accounting services for BPAmeriea/BP Amoco Oil.” Based on the scant information before it, the Labor Department sent a letter to the Former Employees, informing them that their TAA petition had been denied. See generally IBM I, 29 CIT at -, 403 F.Supp.2d at 1321.

The Former Employees filed both a request for reconsideration with the Labor Department and a letter with this Court seeking judicial review (later deemed the Complaint). In light of the pendency of both a request for administrative reconsideration and a Summons and Complaint challenging the same TAA determination, the Government sought — and was granted — a voluntary remand. See generally IBM /, 29 CIT at --■, 403 F.Supp.2d at 1321.

2. The First Negative Redetermination on Remand

One day after the case was remanded to the agency, the Labor Department issued the results of its investigation on remand — reaffirming its denial of the Former Employees’ TAA petition, but on different grounds. This time, the negative determination was based primarily on the Labor Department’s finding that the Former Employees were “service workers.” According to the agency’s criteria then in place, service workers were eligible for TAA certification only if they were either “in direct support of an affiliated facility currently certified for TAA or employed on a contractual basis at a location currently certified for TAA.” Notice of Denial of Reconsideration, 69 Fed.Reg. at 20,644; see generally IBM I, 29 CIT at-, 403 F.Supp.2d at 1321.

The Labor Department concluded that the Former Employees did not meet the applicable criteria. But the agency failed to consider whether the 1999 certification of the Former Employees’ colleagues at the Accounting Center constituted evidence that the Former Employees — as service workers — had provided “direct support” to BP. Moreover, the agency paid scant attention to the undisputed fact that the Former Employees were paid by BP prior to 1999, and that — notwithstanding their “outsourcing” — they had continued to perform the same work for BP up to the time of their discharge. Notice of Denial of Reconsideration, 69 Fed.Reg. at 20,644-45; see generally IBM I, 29 CIT at-, 403 F.Supp.2d at 1321.

3.The Second Voluntary Remand Proceeding

Less than a month after the results of the initial remand were published, the Government sought a second, 60-day voluntary remand, prompted by a letter from the Court inquiring about inconsistencies in the Labor Department’s articulation of the criteria for TAA certification of service workers. The Government explained that a second remand was necessary to permit the agency to apply a new interpretation of the service workers criteria, which clarified that service workers could be certified provided that the production workers that they supported were “certifiable” for TAA (ie., eligible for certification) — even if the production workers had not actually been certified. The Government further explained that, on remand, the Labor Department “intend[ed] to supplement the administrative record with additional evidence regarding the relationship” between the Accounting Center and BP. See generally IBM I, 29 CIT at-, 403 F.Supp.2d at 1322.

Over the course of the two months that followed, the Labor Department verified the existence of the Service Level Agreement (“SLA”) between BP and PwC/ IBM, under which employees at the Accounting Center continued to provide services to BP even after the outsourcing (although the agency failed to obtain a copy of the contract itself). Among other things, the Labor Department also learned that, although some IBM employees at the Accounting Center served some other companies, most of the work done at that location was for BP. See generally IBM I, 29 CIT at -, 403 F.Supp.2d at 1322-23.

4.The Second Negative Redetermination on Remand

Ultimately, the Labor Department denied certification of the Former Employees yet again, citing three grounds for its determination. First, although the Former Employees had never even claimed to be production workers, the Labor Department concluded that they could not be so certified. In the course of explaining that determination, the agency dismissed as “immaterial” the 1999 certification of the Former Employees’ former colleagues at the Accounting Center. Second, and most relevant here, the Labor Department concluded that the Former Employees could not be certified as service workers because they were not under the “control” of BP. And, third, the agency concluded that— even if the Former Employees had been under the control of BP — they still would not be eligible for TAA benefits because they were not working in a BP production facility or in an appropriate subdivision of such a facility. Notice of Second Negative Redetermination on Remand, 69 Fed.Reg. 48,527; see generally IBM I, 29 CIT at -, 403 F.Supp.2d at 1323. The Labor Department’s Second Negative Redetermi-nation on Remand was the subject of IBM I. Id.

5.The Court’s Decision in IBM I

Much of IBM I was devoted to the issue of “control.” As IBM I noted, the Labor Department’s traditional test for TAA certification of service workers requires, in relevant part, that the petitioning workers’ separation be “caused importantly by a reduced demand for their services from a parent firm, a firm otherwise related to the subject firm by ownership, or a firm related by control.” See IBM I, 29 CIT at -, 403 F.Supp.2d at 1315 (citing Chevron I, 26 CIT at 1285, 245 F.Supp.2d at 1328) (emphasis added).

IBM I explained that the Labor Department historically had interpreted “control” as limited to “ownership and corporate voting control.” Id., 29 CIT at -, 403 F.Supp.2d at 1315 (citing Former Employees of Pittsburgh Logistics Systems, Inc. v. U.S. Sec’y of Labor, 27 CIT 1301, 1312, 2003 WL 22020510 (2003) (“Pittsburgh Logistics II ”)). But, as IBM I noted, Pittsburgh Logistics ruled that “control” must be interpreted more expansively, to include not only corporate/legal control, but operational control as well. See IBM I, 29 CIT at -, 403 F.Supp.2d at 1315-16 (citing Pittsburgh Logistics II, 27 CIT at 1314-16, 1318-20, 2003 WL 22020510).

The workers in Pittsburgh Logistics had been terminated from their employment at an LTV Steel Company facility in Independence, Ohio, after LTV ceased production. The Pittsburgh Logistics (“PLS”) workers petitioned for TAA certification, asserting that they were a “PLS subdivision” of LTV consisting of former LTV workers who had been “outsourced” to PLS; “that they were under the de facto control of LTV”; and that their duties were essential to the production of steel at LTV facilities. See IBM I, 29 CIT at -, 403 F.Supp.2d at 1316 (quoting Former Employees of Pittsburgh Logistics Systems, Inc. v. U.S. Sec’y of Labor, 27 CIT 339, 341, 2003 WL 716272 (2003) (“Pittsburgh Logistics I”)).

Although the Labor Department had certified workers at LTVs Cleveland plant (as well as certain workers at LTV’s Independence facility), the agency initially denied the petition of the PLS workers, based in part on its finding that they were service workers and that their employer— PLS — was not related to LTV by ownership or “control.” See IBM I, 29 CIT at -, 403 F.Supp.2d at 1316 (citing Pittsburgh Logistics I, 27 CIT at 340, 2003 WL 716272). But, based on the Pittsburgh Logistics court’s more expansive interpretation of the term “control,” and its determination that the PLS workers were indeed under the operational control of LTV, the Labor Department was ordered to certify the PLS workers as eligible for TAA benefits. Pittsburgh Logistics II, 27 CIT at 1318-20, 2003 WL 22020510.

Wackenhut raised basically the same issues presented in Pittsburgh Logistics. See Former Employees of Wackenhut Corp. v. U.S. Sec’y of Labor, Court No. 02-00758. As IBM I explained, the Wacken-hut Corporation had supplied BHP Copper, Inc. with workers who had provided security services at a BHP production facility in Arizona. Following lay-offs due to increased imports of copper cathodes and closure of the facility, the Labor Department certified BHP workers at the facility as eligible for TAA. But the agency twice denied the petition filed by the Wackenhut workers. See IBM I, 29 CIT at -, 403 F.Supp.2d at 1316.

As IBM I explained, applying the same narrow definition of “control” that it had applied in Pittsburgh Logistics, the Labor Department had concluded in Wackenhut that the workers could not be certified as service workers, because “Wackenhut and BHP are not controlled or substantially beneficially owned by the same persons.” See IBM I, 29 CIT at -, 403 F.Supp.2d at 1316-17 (citing The Wackenhut Corporation, San Manuel, AZ: Notice of Negative Determination on Reconsideration on Remand, 68 Fed.Reg. 47,097, 47,098 (Aug. 7, 2003) (“Wackenhut Notice of Denial on Reconsideration”); Notice of Determinations Regarding Eligibility to Apply for Worker Adjustment Assistance and NAFTA Transitional Adjustment Assistance, 67 Fed.Reg. 67,421 (Nov. 5, 2002)).

But — as IBM I noted — the issuance of Pittsburgh Logistics II turned the tide for the Wackenhut workers, resulting in their certification. See IBM I, 29 CIT at-, 403 F.Supp.2d at 1317 (citing The Wacken-hut Corp., San Manuel, AZ: Notice of Revised Determination, 69 Fed.Reg. 26,-623 (May 13, 2004) (“Wackenhut Notice of Revised Determination”)). In January 2004, in response to Pittsburgh Logistics and similar cases, the Labor Department revised its policy on certification of so-called “leased” workers. See IBM I, 29 CIT at-, 403 F.Supp.2d at 1317 (citing Labor Department Internal Memo re: New Leased Workers Policy (Jan. 23, 2004) (CSAR 261-62)). It was that January 2004 policy which was at issue in IBM I.

According to the Labor Department’s January 2004 memorandum, which specifically referenced Wackenhut, “the existence of a standard contract between the contractor firm [i.e., the leased workers’ employer] and the subject firm [i.e., the company producing the trade-impacted article] ... should be considered sufficient evidence to prove the existence of a joint employer relationship.” See IBM I, 29 CIT at -, 403 F.Supp.2d at 1317 (quoting Labor Department Internal Memo re: New Leased Workers Policy (CSAR 261-62)). Significantly, however, the January 2004 memorandum did not identify operational (or other) “control” as a requirement for certification of leased workers. Moreover, although the January 2004 memorandum specified that — to be eligible for certification — leased workers “must perform their duties onsite at the affected location,” no rationale for that requirement was stated. See IBM I, 29 CIT at - & n. 10, 403 F.Supp.2d at 1317-18 & n. 10 (citing Labor Department Internal Memo re: New Leased Workers Policy (CSAR 261-62)).

IBM I observed that the Labor Department’s Second Negative Redetermination on Remand denied the Former Employees’ claim in part because they were not under the control of BP. See IBM I, 29 CIT at -, 403 F.Supp.2d at 1325-26 (citing Notice of Second Negative Remand Determination, 69 Fed.Reg. 48,527). Noting that the Labor Department had applied a restrictive definition of control, IBM I affirmed that — in light of Pittsburgh Logistics — the Labor Department was required to define control more broadly, to include operational control. See IBM I, 29 CIT at -, 403 F.Supp.2d at 1325-28.

Moreover, IBM I found that the then-existing record included “relatively ample evidence supporting the Former Employees’ claims that — as a practical matter— BP continued to exercise management and operational control over their work up to the time of their termination.” See IBM I, 29 CIT at -, 403 F.Supp.2d at 1329; see generally id., 29 CIT at -, 403 F.Supp.2d at 1328-37. In contrast, IBM I noted, there was at best “only minimal evidence that, at the time of their determination, the Former Employees were under the operational control of IBM.” Id., 29 CIT at -, 403 F.Supp.2d at 1329. IBM I further observed that “the relatively little evidence that supported] the agency’s position [on control] consisted] of mere conclusory assertions (generally by IBM officials) and/or statements ... contradicted by other record evidence that the Labor Department ... failed to address.” Id.

Accordingly, IBM I directed:

On remand, the Labor Department shall reevaluate the existing record evidence on the issue of “control” ..., and shall conduct such further investigation of the relevant facts as is necessary to fully develop the evidentiary record (including solicitation of additional information from the Former Employees, among others).

IBM I, 29 CIT at -, 403 F.Supp.2d at 1335-36. IBM I further required the agency, on remand, to “clearly articulate and apply a standard for ‘control’ ... consistent with [the] opinion (clarifying and updating that set forth in its [January 2004] Leased Workers Policy),” and to detail the rationale for its standard. Id., 29 CIT at -, 403 F.Supp.2d at 1336-37.

Finally, IBM I emphasized that the facts of the case at bar are “particularly compelling, because — much like Pittsburgh Logistics, and in contrast to the more typical ‘leased workers’ case like Wackenhut (where the workers had no pre-existing relationship with the company producing the trade-impacted article) — the Former Employees in this case were employed directly by BP until they (and their work) were ‘outsourced.’ ” IBM I, 29 CIT at - n. 20, 403 F.Supp.2d at 1328 n. 20. IBM I therefore mandated that, on remand:

[I]n both its articulation and its application of its policy vis-a-vis TAA certification of leased workers, the Labor Department should recognize and reflect (for purposes of its analysis of “control”) the difference between standard, run-of-the-mill leased workers cases (where there was no pre-existing relationship between the leased workers and the company producing the trade-impacted article) versus cases — like this one— where the petitioning workers were “outsourced” by their initial employer and then immediately leased directly back to that company, as part of an outsourcing strategy.

IBM I, 29 CIT at - n. 38, 403 F.Supp.2d at 1336 n. 38.

As an alternative ground for denying certification, the Second Negative Rede-termination on Remand concluded that— even if BP exercised control over the Former Employees — they nevertheless could not be certified, because they were not “co-located with BP workers at a BP facility that produces an article.” IBM I, 29 CIT at -, 403 F.Supp.2d at 1337 (citing Notice of Second Negative Redetermination on Remand, 69 Fed.Reg. at 48,528); see generally id., 29 CIT at -, 403 F.Supp.2d at 1337-42. Therefore, in addition to analyzing the issue of “control,” IBM I also reviewed the Labor Department’s treatment of the location of the Former Employees’ workplace.

IBM I found that the Labor Department’s “so-called ‘location requirement’ ” defied “meaningful judicial review,” both because the agency had “failed to articulate the legal and policy bases for its position (or, frankly, even to adequately explain exactly what that position [was]),” and because the evidentiary record that the agency had compiled on the issue was “anemic.” IBM I, 29 CIT at -, 403 F.Supp.2d at 1338. IBM I therefore required that:

[0]n remand, the Labor Department shall (1) clearly articulate and explain the significance of any “co-location” criterion for TAA certification (and its relationship to other elements of any “location requirement”), as well as the distinctions — if any — that the agency draws between different classes of workers ...; (2) adequately justify its position as a matter of law and policy (bearing in mind, inter alia, the remedial purpose of the TAA statute); and (3) explain whether, and to what extent, the agency’s actual practice in the application of the “co-location” criterion — in this and other cases — has been consistent with the position that it is espousing here.

IBM I, 29 CIT at - & n. 39, 403 F.Supp.2d at 1337-38 & n. 39. IBM I further directed that, “to the extent that the Labor Department continues to adhere to the ‘co-location’ criterion, the agency shall — on remand — reconsider its [negative] finding on ‘co-location’ in this matter and ensure that its determination is supported by substantial evidence in the record.” Id.

IBM I concluded by observing that, in its Second Negative Redetermination on Remand, the Labor Department had failed to reach determinations on all applicable criteria for certification. See IBM I, 29 CIT at -, 403 F.Supp.2d at 1345. Noting the existence of “confusion as to precisely how the agency’s classic test for certification as ‘service workers’ [was] to be interpreted and applied in light of the agency’s [January 2004] Leased Worker Policy,” IBM I directed that:

On remand, the Labor Department shall spell out with precision all criteria applicable to the Former Employees’ potential certification as leased service workers ... (including any revisions or clarifications of that policy in the course of the remand). In addition, the Labor Department shall explain the origins of and legal bases for all such criteria.

IBM I, 29 CIT at -, 403 F.Supp.2d at 1345-47; see also id., 29 CIT at-n. 38, 403 F.Supp.2d at 1336 n. 38 (mandating that agency include in the record on remand “a complete, self-contained statement articulating all agency criteria for TAA certification of leased workers”). IBM I further instructed the Labor Department to “make determinations as to whether each of the criteria [for certification of leased workers] is satisfied in this case,” and encouraged the agency “to engage in full and candid consultations with the Former Employees on all issues.” Id., 29 CIT at -, 403 F.Supp.2d at 1347.

6. The Third Remand Proceeding

In the course of the third remand proceeding, the Labor Department began— incredibly, for the first time — to seriously probe the merits of the Former Employees’ petition for TAA certification. As the Former Employees candidly acknowledge, “Labor dedicated much more time to contacting and questioning IBM and BP representatives during this remand investigation than it had in any of the prior investigations undertaken in this case.” Pis.’ Brief at 7.

The Labor Department obtained a copy of the contract between BP and PwC/IBM. See CSAR 396-719. The agency also sent a total of five sets of questions to IBM, and three sets to BP. The agency’s questions focused primarily on the issue of control, though a few were addressed to the circumstances that led to the termination of the Former Employees. See, e.g., CSAR 732, 809. In addition, the Labor Department provided IBM with “the statements of the workers and their responses,” and requested IBM’s comments concerning “the accuracy of the [ ] [Former Employees’] statements and whether there are actual facts supporting [the Former Employees’] allegations.” CSAR 786.

Further, the Labor Department held two conference calls with IBM officials to discuss issues raised in the investigation, and convened at least one such call with officials of BP. See generally CSAR 742, 761-62, 993-94; see also CSAR 852. Although counsel for the Former Employees asked to participate in the agency’s teleconferences with BP and IBM, they were never included. See CSAR 997 at n. 1. The teleconferences were memorialized for the administrative record by the agency investigator in summary memoranda; but the completeness of those memoranda is in doubt. See generally section IV.D.2.a(3), infra.

In the course of the remand investigation, the Labor Department sent questions to the Former Employees as well, and provided their counsel with a copy of the contract between BP and PwC/IBM. In addition to responding to the agency’s inquiries, the Former Employees took the initiative to provide the Labor Department with other information relevant to their claims. See, e.g., CSAR 913-14, 942-51. The agency investigator also had several phone conversations with counsel for the Former Employees, discussing the substantive merits of the Former Employees’ case. See, e.g., SAR 904.

However, the record reveals that the Labor Department never truly embraced IBM I’s recommendation to “engage in full and candid consultations with the Former Employees on all issues.” See IBM I, 29 CIT at -, 403 F.Supp.2d at 1347. For example, although the Labor Department contacted IBM and BP as early as the week of December 7 and forwarded questions to the two companies as early as December 12 (see, e.g. CSAR 730, 808), the agency did not engage counsel for the Former Employees for the first time until December 23 — the Friday before Christmas. See CSAR 853; see generally CSAR 851, 856-57, 859 (documenting early efforts by counsel for the Former Employees to reach out to agency); Pis.’ Brief at Exh. 1 (same). Then, at 3:30 p.m. on December 23, with virtually no advance notice to the Former Employees or their counsel, the agency forwarded questions to be answered by the Former Employees, imposing a deadline of December 30. See CSAR 853, 859.

Moreover, the Labor Department agreed to forward for review by counsel for the Former Employees copies of the agency’s questions to IBM and BP, as well as the companies’ answers. But, although it later relented, the agency initially took the position that it would provide counsel for the Former Employees with copies of the companies’ answers only after all information had been obtained from those sources. See CSAR 855, 857, 859. Further, particularly in the early stages of the investigation, the agency was slow to forward even copies of the BP and IBM questions to counsel for the Former Employees. See generally Pis.’ Brief at 9.

But what the Former Employees found most troubling was that the Labor Department never identified for them the criteria that it would apply to decide their fate until the agency issued its Third Negative Redetermination on Remand denying certification once again. See generally section PV.C, infra.

7. The Third Negative Redetermination on Remand

The Labor Department’s Third Negative Redetermination on Remand both articulated a new, seven-criteria test for the “control” of leased workers, and applied that test to the Former Employees, reaffirming the agency’s prior denials of TAA certification. See Third Negative Redeter-mination on Remand, 71 Fed.Reg. 10,709-14, CSAR 1019-50.

According to the Labor Department, it sought on remand to “focus on articulating and applying objective criteria” for the exercise of operational control. Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,712. After reviewing the agency’s prior Leased Worker Policy (set forth in its January 2004 memorandum), the agency determined that it was “appropriate to revise that policy, as an interim response to the issues raised in [the instant] proceeding, so that DOL policy more fully reflects potential real-world situations.” Id. The Labor Department nevertheless noted that it expressly “retains the discretion to further revise [the] policy, so that the subject of ‘operational control’ can continue to receive close scrutiny as DOL undertakes rulemaking to update the regulations implementing the eligibility requirements of the Trade Act.” Id.

The Labor Department advised that, “in response to the CIT’s remand instructions,” it had “re-evaluated the significance of a standard contract between the contractor firm and the subject firm.” Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,712. The agency reasoned that, “[gjiven the Department’s focus on ascertaining operational, rather than formal, control,” “the existence of a contract between the employer (such as a staffing agency, leasing agency or contractor) of a worker group and a producing firm is not an essential pre-requisite for the Department to determine that the workers in question are, in effect, joint employees or leased workers of the producing firm.” Id. Under the agency’s new rationale, “[t]he presence or absence of a contract would simply be one element, albeit an important one, in the Department’s analysis.” Id. The agency also emphasized that, “[i]n all situations,” terminated leased workers “must still have been engaged in activities related to production of an article produced by a firm” to be eligible for certification. Id.

The Third Negative Redetermination on Remand stated that the Labor Department had reviewed various relevant legal authorities, to develop seven criteria to be applied “to determine the extent to which a worker group engaged in activities related to the production of an article by a producing firm is under the operational control of the producing firm.” See Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,712. Noting that “[t]he body of law involving joint employment or independent contractor status is complex and difficult to apply,” the agency explained that it had “sought to distill that body of law into some basic principles, thus creating a test that is useable within the short statutory timeframes that govern TAA investigations.” Id.

The seven criteria outlined in the Third Negative Redetermination on Remand are:

1. Whether the subject workers were on-site or off-site of a facility of a production firm.

2. Whether the subject workers performed tasks that were part of the producing firm’s core business functions, as opposed to independent, discrete projects that were not part of the producing firm’s core business functions.

3. Whether the production firm has the discretion to hire, fire and discipline subject workers.

4. Whether the production firm exercises the authority to supervise the subject workers’ daily work activities, including assigning and managing work, and determining how, where, and when the work of individual workers takes place. Factors such as the hours of work, the selection of work, and the manner in which the work is to be performed by each individual are relevant.

5. Whether the services of the worker group have been offered on the open market (e.g., do workers of the subject group perform work that supports other clients?).

6. Whether the production firm has been responsible for establishing wage rates and the payment of salaries to individual workers of the subject worker group.

7. Whether the production firm has provided skills training to subject workers.

Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,712 (footnotes added).

According to the Labor Department, none of the seven factors is “dispositive.” Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,712. Moreover, the agency recognized “that there may be cases in which evidence of every one of the criteria is not available.” Id. Thus, the Labor Department indicated, in applying the new test, it intends to “look at such evidence as there is that goes to all these factors and ... determine whether, on balance, the evidence supports a level of control by the producing firm that demonstrates that the workers of the contractor or secondary firm are, in fact, leased workers or joint employees of both firms.” Id.

After setting forth its new, seven-criteria test for control, the Labor Department applied that test to the Former Employees. See Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,712-14, CSAR 1035-50. According to the Third Negative Redetermination on Remand, the agency “made every effort to explore whether the [Former Employees] were under the operational control of BP as the first step in determining if they are entitled to certification.” Third Negative Re-determination on Remand, 71 Fed.Reg. at 10,711.

“In order to determine who exercised actual, operational control” over the Former Employees, the Labor Department looked to the BP-PwC/IBM contract “as a starting point, not the endpoint, for its inquiries.” Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,711. The agency stated that, through its inquiries, it “sought to develop a true understanding of the ‘real-world’ relationship between [the Former Employees], IBM management, and BP employees/management.” Id.

The Labor Department thus “sought to determine what constitute the ‘practical realities’... of the relationship between [the Former Employees] and BP,” by “Mpplying the [seven, newly-established] criteria [for control] to the record evidence.” Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,712. The Labor Department acknowledged that “the petitioners, but not necessarily all former IBM employees at the Tulsa facility, had been BP employees prior to being outsourced in 2000 and that the outsourcing did not result in changes to their work assignments.” Id., 71 Fed.Reg. at 10,711. The agency further conceded that “IBM’s acquisition of PwC had no impact on the petitioners’ work assignments.” Id. In addition, the agency noted that “in 1999, the Department certified accountants formerly employed by BP in Tulsa as eligible for TAA because their work had been performed in support of trade-impacted production activity at BP facilities.” Id.

Nevertheless, reviewing each of its seven new criteria for control in turn, the Labor Department concluded that all of them weighed against the Former Employees. Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,712-14, CSAR 1035-50. The agency therefore “affirm[ed][its] original notice of negative determination of eligibility,” denying certification of the Former Employees. Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,714.

Although IBM I expressly instructed the Labor Department on remand to “spell out with precision all criteria applicable to the Former Employees’ potential certification as leased service workers” (IBM I, 29 CIT at -, 403 F.Supp.2d at 1345-47 (emphasis added); see also id., 29 CIT at -n. 38, 403 F.Supp.2d at 1336 n. 38), the Third Negative Redetermination on Remand addressed only the test for “control.”

IBM I similarly directed the Labor Department on remand to “make determinations as to whether each of the criteria [for certification of leased workers] is satisfied in this case.” IBM I, 29 CIT at-, 403 F.Supp.2d at 1347. The Third Negative Redetermination on Remand stated in passing that IBM’s 2003 Annual Report “documented the manner in which IBM ‘rebalanced’ its staffing after acquiring PwC,” and asserted that the information in the annual report “corroborates other record evidence which indicates that the staffing reductions at IBM’s Tulsa Accounting Center had nothing to do with BP.” Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,711 n. 3. And, elsewhere, the Third Negative Redetermination on Remand stated that “[t]he reasons that led to the layoffs [of the Former Employees’ ex-colleagues] in 1999 [were] simply different from those present in 2003,” so that “even if [the Former Employees] were deemed to be under BP’s control, they could not be certified.” Id., 71 Fed.Reg. at 10,711. However nowhere did the Labor Department make a formal determination on any criteria for certification other than control. Instead, immediately following the analysis of the seven newly-articulated criteria for control of leased workers, the Third Negative Redetermination on Remand reaffirmed the agency’s denial of the Former Employees’ TAA petition.

Thus, as discussed in greater detail below, in these and other major respects, the Labor Department’s Third Negative Rede-termination on Remand failed to comply with the mandate of IBM I.

III. Standard of Review

Judicial review of a Labor Department determination denying certification of eligibility for trade adjustment assistance benefits is confined to the administrative record. See, e.g., Former Employ ees of Chevron Products Co. v. U.S. Sec’y of Labor, 27 CIT 1135, 1142, 279 F.Supp.2d 1342, 1350 (2003) (“Chevron II”) (citations omitted). The agency’s determination must be sustained if it is supported by substantial evidence in the record and is otherwise in accordance with law. 19 U.S.C. § 2395(b); Former Employees of Shaw Pipe, Inc. v. U.S. Sec’y of Labor, 21 CIT 1282, 1284-85, 988 F.Supp. 588, 590 (1997) (citations omitted); Former Employees of Merrow Mach. Co. v. U.S. Sec’y of Labor, 18 CIT 17, 18-19, 843 F.Supp. 1480, 1481 (1994) (citations omitted).

The Labor Department’s findings of fact are thus conclusive if they are supported by substantial evidence. See Former Employees of Galey & Lord Indus., Inc. v. Chao, 26 CIT 806, 808-09, 219 F.Supp.2d 1283, 1285-86 (2002) (citations omitted); Merrow Mach. Co., 18 CIT at 19, 843 F.Supp. at 1481 (citing 19 U.S.C. § 2395(b)). “However, substantial evidence is more than a ‘mere scintilla’; it must be enough to reasonably support a conclusion.” Chevron II, 27 CIT at 1143, 279 F.Supp.2d at 1349 (citing Galey & Lord Indus., 26 CIT at 808, 219 F.Supp.2d at 1286 (citations omitted)).

Moreover, the evidence on which the agency relies does not exist in a vacuum. Thus, to determine whether substantial evidence exists, the record compiled by the agency must be reviewed “in its entirety, including all evidence that ‘fairly detracts from the substantiality of the evidence.’ ” Consol. Bearings Co. v. United States, 412 F.3d 1266, 1269 (Fed.Cir.2005) (citations omitted); see also Gerald Metals, Inc. v. United States, 132 F.3d 716, 720 (Fed.Cir.1997) (“[T]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” (citations omitted)); Chevron II, 27 CIT at 1143, 279 F.Supp.2d at 1350 (“[A]n assessment of the substantiality of record evidence must take into account whatever else in the record fairly detracts from its weight.” (citations omitted)).

Finally, all rulings based on the agency’s findings of fact must be “in accordance with the statute and not ... arbitrary and capricious”; to that end, “the law requires a showing of reasoned analysis.” Former Employees of Gen. Elec. Corp. v. U.S. Dep’t of Labor, 14 CIT 608, 611 (1990) (quoting UAW v. Marshall, 584 F.2d at 396 n. 26).

In short, although it is clear that the scope of judicial review is narrow, and that a court is not free to substitute its judgment for that of the agency, it is equally clear that “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Former Employees of Alcatel Telecomms. Cable v. Herman, 24 CIT 655, 658-659, 2000 WL 1118208 (2000) (quoting Motor Vehicle Mfr.’s Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citations omitted)).

Where good cause is shown, a case may be remanded to the Labor Department for further investigation and analysis. 19 U.S.C. § 2395(b); see also Former Employees of Motorola Ceramic Products v. United States, 336 F.3d 1360, 1362 (Fed. Cir.2003) (citations omitted). Moreover, where circumstances warrant, the agency may be ordered to certify a group of workers, as “a remedy of last resort.” See Pittsburgh Logistics II, 27 CIT at 1310, 1320, 2003 WL 22020510 (ordering certification where agency “continue[d] to adhere to a discredited position ... at odds with the developed facts of record”).

IY. Analysis

The Former Employees challenge the Labor Department’s Third Negative Rede-termination on Remand — including its new Leased Worker Policy — on a number of grounds, substantive and procedural.

The threshold question is whether the Former Employees’ TAA petition is properly subject to the Labor Department’s new Leased Worker Policy. The validity of that new policy, and the sufficiency of the agency’s articulated rationale, are also at issue.

Other arguments go to the Labor Department’s substantive analysis of the specific facts of this case. The Former Employees claim that the remand investigation was lacking in transparency, and designed to reach a predetermined outcome. They also dispute the reliability of much of the evidence on which the agency relies, and they maintain that the agency simply ignored evidence contrary to its determination.

In addition, the Former Employees contend that a criterion-by-criterion review of the existing record under the Labor Department’s new policy demonstrates that they were indeed subject to BP’s “operational control,” and that the agency’s determination to the contrary is unsupported by substantial evidence in the record. The Former Employees further contend that, because the agency failed to make determinations on any certification criteria other than control, their satisfaction of those criteria should be deemed conceded. The Former Employees conclude that — under the circumstances presented here — a fourth remand would be inappropriate, and court-ordered certification is the only just remedy.

Each of the Former Employees’ challenges to the Labor Department’s Third Negative Redetermination on Remand is considered below, in turn.

A. The Potential Applicability of the Agency’s Prior Leased Worker Policy

As a threshold matter, the Labor Department apparently takes it as a given that the Former Employees’ TAA claim is subject to the seven newly-articulated criteria for “control” set forth in the agency’s latest Leased Worker Policy. But the issue is far from clear.

As a matter of simple fairness and equal protection (if nothing else), it would seem clear that the Labor Department should not hold the Former Employees to a higher standard than similarly-situated worker groups who sought — and were granted— TAA certification during the same general timeframe. See Former Employees of Merrill Corp. v. United States, 31 CIT -, -, 2007 WL 924498, *13 (2007) (“It goes without saying that similarly-situated claimants should be treated similarly under the law.”) (citation omitted). Neither the Labor Department nor the Government has addressed this point directly. But, in a different context, the Government has asserted that — compared to other, prior iterations of the agency’s Leased Worker Policy — the new Leased Worker Policy is more liberal, because it “lowers the burden for establishing eligibility [for TAA certification of leased workers] by eliminating the co-location requirement.” See Def.’s Brief at 35.

At least in the case at bar, however, there is a powerful argument that, in fact, the Former Employees were “co-located” with the production firm at issue, BP. See generally section IV.D.3.a, infra. If the Former Employees indeed were effectively “co-located” with BP, then they may be eligible for certification “under the former leased worker policy, which looked only at whether there was a contract and whether the workers were on-site.” See Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,714 (seeking to distinguish the case at bar from “the situation of the petitioners in Former Employees of Wackenhut Corp. v. USDOL, Ct. No. 02-00758” on the grounds that Wackenhut “was decided under the former leased worker policy, which looked only at whether there was a contract and whether the workers were on-site”).

Accordingly, this matter must be remanded to permit the Labor Department to determine — following consultation with the Former Employees — whether the Former Employees’ TAA claim should be “decided under the former leased worker policy, which looked only at whether there was a contract and whether the workers were on-site” (or, for that matter, some other prior formulation of the policy), or whether their claim is properly subject to the agency’s latest Leased Worker Policy (or some variation of it). See Third Negative Rede-termination on Remand, 71 Fed.Reg. at 10,714. The Labor Department shall set forth its rationale in the remand results, detailing all relevant legal and policy considerations, as well as the relevant facts.

B. The Validity of the Agency’s New Leased Worker Policy

Even if the Former Employees’ TAA claim is not subject to “the former leased worker policy, which looked only at whether there was a contract and whether the workers were on-site” (see Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,714), or some other prior version of the policy, it does not necessarily follow that their claim is subject to the Labor Department’s new Leased Worker Policy. The validity of that new policy has yet to be established.

As the Former Employees note, the Labor Department failed to provide the requisite reasoned analysis explaining and justifying its new policy. See Pis.’ Brief at 18-19. It is black letter law that, although an agency is permitted to change its methodology in appropriate circumstances, the agency must nevertheless articulate a reasoned basis for the change. See, e.g., British Steel PLC v. United States, 127 F.3d 1471, 1475 (Fed.Cir.1997). Moreover — quite apart from that generally-applicable tenet of administrative law — IBM I specifically directed that, on remand, the Labor Department was not only to “spell out with precision all criteria applicable to the Former Employees’ potential certification as leased service workers,” but also to “explain the origins of and legal bases for all such criteria.” IBM I, 29 CIT at-, 403 F.Supp.2d at 1347; see also 29 CIT at - n. 38, 403 F.Supp.2d at 1336 n. 38 (emphasis added).

Contrary to the instructions in IBM I (quoted above), the new Leased Worker Policy embodied in the Third Negative Redetermination on Remand is limited to the issue of control. And, even as to control, the Labor Department’s terse explanation leaves much to be desired. For example, the Labor Department stated that — in formulating its new seven-criteria test for “control” — it referred “to pertinent case law; to the Internal Revenue Code (26 U.S.C. § 3121(d)); to Revenue Ruling 87-41 and to the Restatement (Second) of Agency § 2, Master; Servant; Independent Contractor and § 220, Definition of Servant (1958).” See Third Negative Redetermination on Remand, 71 Fed. Reg. at 10,712. The Labor Department represented that it found “the case law related to the ‘economic realities’ test particularly useful.” Id. However, the agency specifically cited only a single ease — Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) — and failed to identify any other “pertinent case law” that it consulted.

Similarly, the Labor Department did not explain why it chose to rely on certain legal authorities and not others, much less why it adopted only some of the criteria set forth in the authorities on which it chose to rely and rejected other criteria set forth in those same authorities. Thus, for instance, the Labor Department proffered no explanation for its decision not to include among its seven criteria “the duration of the relationship between the parties” — one of the criteria listed in the excerpt from Nationwide that the agency quoted in outlining its new policy (and one that would appear to weigh heavily in favor of the Former Employees). See Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,712.

The Labor Department’s statement of rationale is lacking in numerous other respects as well. For example, in citing Nationwide, the Labor Department noted that it was “a case arising under the Employee Retirement Income Security Act,” intimating that the agency may have been cognizant that the differing public policies underlying different, but related, areas of the law may influence the substance of the law. See Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,712. But the agency’s sparse rationale includes no discussion whatsoever of the subject. Certainly there is no indication that, in distilling principles from disparate bodies of law into its seven criteria, the Labor Department was mindful of the remedial nature of the TAA laws and its own obligation to act with the “utmost regard” for the interests of the nation’s displaced workers.

Moreover, ignoring the explicit instructions in IBM I, the Labor Department’s new criteria fail to provide for consideration of whether the leased workers in a particular case were previously employed directly by the production firm at issue (as they were in the ease at bar). IBM I unequivocally directed that:

[I]n both its articulation and its application of its policy vis-a-vis TAA certification of leased workers, the Labor Department should recognize and reflect (for purposes of its analysis of “control”) the difference between standard, run-of-the-mill leased workers cases (where there was no pre-existing relationship between the leased workers and the company producing the trade-impacted article) versus cases — like this one— where the petitioning workers were “outsourced” by their initial employer [the production firm] and then immediately leased directly back to that company, as part of an outsourcing strategy.

IBM I, 29 CIT at - n. 88, 403 F.Supp.2d at 1336 n. 38; see also 29 CIT at - n. 20, 403 F.Supp.2d at 1328 n. 20. The Labor Department’s rationale is inexplicably silent on the subject.

The new Leased Worker Policy also suffers from a lack of clarity. For example, the policy includes numerous references to “operational control” as the key concept. See Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,711-13. And, in at least one place, the language of the policy suggests that shared control of leased workers is sufficient to justify certification. See Third Negative Redetermi-nation on Remand, 71 Fed.Reg. at 10,711 (referring to a situation where “a ‘client’ shares or has exclusive operational control over workers”). The policy also refers (with seeming approval) to “joint employment,” “joint employees,” and “joint employees of both firms” — though the policy fails to define or otherwise explain those terms (for example, to explain how they relate to “shared control”). See Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,712.

Elsewhere, however, the language of the policy seems to indicate that leased workers may be certified only where the production firm has exclusive control. See, e.g., Third Negative Redetermination on Remand, 71 Fed.Reg. at 10,711 (“DOL has made every effort to explore whether the plaintiffs were under the operational control of BP”), 10,712 (“For the former IBM employees to be found eligible, the Department must be able to establish that ‘client’ BP, not ‘employer’ IBM, exercised effective operational control over the workers’ performance of their duties. In essence, DOL must determine whether the outsourcing of BP workers effectively transferred control over those workers to PwC/ IBM.”). These and other instances of the confusing use of critical terminology render the Labor Department’s new policy substantially flawed.

On remand, the Labor Department shall clarify and expand its new Leased Worker Policy, to address — at a minimum — the points outlined above, in addition to other points raised in IBM I which the policy does not presently address. Finally, the revised policy shall be a public, “standalone” document (separate and apart from the agency’s redetermination on remand analyzing the facts of the case at bar, but filed with it).

C. The Timing of the Agency’s Issuance of Its New Leased Worker Policy

The Former Employees characterize the Labor Department’s standard for TAA certification in this case as “a constantly moving target.” Pis.’ Brief at 15. As they see it, “[a]s soon as the Former Employees submit evidence establishing their eligibility for certification pursuant to Labor’s last articulated standard, Labor determines that the Former Employees are not eligible for certification based upon an entirely different certification standard.” Id.; see also Pis.’ Reply Brief at 2 (asserting that “Labor’s ‘moving target’ approach is fundamentally unfair to the Former Employees and is inconsistent with Labor’s mandate to conduct TAA investigations with the ‘utmost regard’ for the petitioning workers”). The Former Employees maintain that the most recent remand proceeding was no different.

The Former Employees assert that — ■ notwithstanding their repeated requests during the course of the remand proceeding — the Labor Department “refused to explain the control standards upon which its decision would be based.” Pis.’ Reply Brief at 2, 4 & nn. 1 -2; see also Pis.’ Brief at 10, 17. They point out that “[o]nly after Labor’s [most recent] negative remand determination was filed with the Court did the Former Employees learn the test that determined their fate.” Pis.’ Reply Brief at 5. According to the Former Employees, “[b]ecause Labor did not notify the Former Employees of the existence of [its new] seven factor test until Labor issued its [most recent] decision denying the Former Employees’ request for certification, it was impossible for the Former Employees to bring to Labor’s attention pertinent information addressing each of the seven factors of the test.” Pis.’ Reply Brief at 6. Instead, the Former Employees “were left to submit information and a