[Federal Register Volume 73, Number 151 (Tuesday, August 5, 2008)]
[Notices]
[Pages 45475-45476]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-17884]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-62,853]
Irving Forest Products, Nashville Plantation, Maine; Notice of
Negative Determination Regarding Application for Reconsideration
By application dated July 12, 2008, the United Steel Workers, Local
4-1310 (the Union) 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 Irving
Forest Products, Nashville Plantation, Maine (the subject firm). The
determination was signed on May 30, 2008. The Department's Notice of
determination was published in the Federal Register on June 16, 2008
(73 FR 34044). The workers produce lumber and woodchips, and are not
separately identifiable by product line.
The denial was based on the Department's findings that the subject
firm did not import lumber or woodchips and did not shift production of
lumber or woodchips to a foreign country during the relevant period.
A survey of the subject firm's major declining customers regarding
their purchases of lumber and woodchips revealed that most customers
decreased imports during the relevant period and that any imports did
not contribute importantly to subject firm sales and production
declines.
Aggregate U.S. imports of coniferous lumber declined in 2007
compared with 2006, and continued to decline in January 2008 compared
with the corresponding 2007 period. Aggregate U.S. imports of both
coniferous and non-coniferous wood in chips or particles declined in
2007 compared with 2006, and declined in January through February 2008
over the corresponding 2007 period.
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 mis-
interpretation of facts or of the law justified reconsideration of the
decision.
In the request for reconsideration, the Union asserts the following
three points:
(1) With regards to the TAA group eligibility requirements for
directly-impacted workers, ``the reasons for denial are unfair as it
relates to choosing 1 area from each section when only the criteria
from one section needs to be met'';
(2) ``We feel it is inaccurate to first look at the entire United
States aggregate imports of coniferous lumber'' because in order ``for
the Trade Act to protect the workers that it is intended to protect it
should be pliable in its review as it relates to specific regions'' and
that the Department's review should consider that ``trade may only have
slowed over the past 12 months due to high transportation costs as well
as equalizing the value of the dollar while discounting the impact
trade has had leading up to the devastation of the lumber industry all
along the eastern seaboard''; and
(3) The Department failed to receive information from the subject
firm regarding ``the possible shift or planned shift in production from
its Nashville Plantation, Maine mill to its other facilities''.
In order to apply for TAA, petitioners must satisfy the group
eligibility requirements for directly-impacted (primary) workers under
Section 222(a) the Trade Act of 1974, as amended. The group eligibility
requirements can be satisfied in one of two ways, either Section
(a)(2)(A) or Section (a)(2)(B).
In order to satisfy Section (a)(2)(A), all of the following
criteria must be met:
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; and
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.
In order to satisfy Section (a)(2)(B), all of the following
criteria must be met:
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; and
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
[[Page 45476]]
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; or
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.
The Union appears to assert that because the Department identified
in the negative determination two criteria that were not met, the
Department requires that, in order for a worker group to be certified
for TAA, both of the aforementioned sections must be met.
In determining whether a worker group has met the criteria set
forth in the Trade Act of 1974, as amended, the Department investigates
whether the worker group has met the criteria of either Section
(a)(2)(A) or Section (a)(2)(B), not both. If the criteria of either
Section are met, the Department will certify the worker group as
eligible to apply for TAA.
The Union asserts that it is unfair that the Department considers
only ``United Stated aggregate imports'' because to do so would
discount the disproportionate impact that imports have on a specific
region, such as the Eastern Seaboard.
Section (a)(2)(A)(C) requires that there be a finding of increased
imports. 29 CFR section 90.2 states that ``increased imports means that
imports have increased either absolutely or relatively to domestic
production compared to a representative bade period.'' As asserted by
the Union, imports did not increase in 2007 compared to 2006. Absent a
finding of increased imports, the Department cannot determine whether
or not increased imports contributed importantly to subject firm sales
and/or production declines and worker separations.
Section (a)(2)(B)(B) requires that there ``has been'' a shift of
production. That the requirement is in the past tense means that the
shift is an event in the past and not in the future. Therefore, the
subject firm's ``possible shift or planned shift'' (if any) would not
have been a basis for TAA certification.
After careful review of the request for reconsideration, the
Department determines that 29 CFR 90.18(c) has not been met.
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 in Washington, DC, this 28th day of July 2008.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E8-17884 Filed 8-4-08; 8:45 am]
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