By application of May 5, 2003, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice was signed on March 27, 2003 and published in the Federal Register on April 11, 2003 (68 FR 17831).
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 TAA petition, filed on behalf of workers at Gilinsky Logging, Inc., Rogue River, Oregon engaged in the production of logs, was denied because the “contributed importantly” group eligibility requirement of Section 222(3) of the Trade Act of 1974, as amended, was not met. The “contributed importantly” test is generally demonstrated through a survey of the workers' firm's customers. The Department conducted a survey of the subject firm's major customer regarding its purchases of competitive products in 2001 and 2002. The respondent reported no increased imports. The subject firm did not import logs during the relevant period, nor did it shift production to a foreign source.
The petitioner states that the impact of Canadian lumber was not taken into account in the original investigation regarding layoffs at the subject firm. To support this allegation, he states that the Department should have looked at the “last fifteen years” of contracts for the subject firm, rather than just the major declining customer surveyed for periods in 2001 and 2002.
The fifteen year time period mentioned by the petitioner far exceeds the relevant period of TAA investigations, which is four quarters (or one year) preceding the petition date compared with a representative base period. Additionally lumber is not competitive with logs, and thus lumber data is irrelevant to establishing import impact in connection with TAA eligibility for this worker group.
The petitioner further provides a list of NAFTA-TAA certified facilities that were customers of the subject firm, implying that the subject firm may be eligible for secondary upstream supplier certification.
For certification on the basis of secondary upstream supplier, the secondary firm must supply at least 20 percent of its production or sales to a manufacturer whose workers were certified eligible to apply for adjustment assistance currently under certification for Trade Adjustment Assistance or NAFTA-TAA or the company must supply component parts to the primary firm and a loss of business with this manufacturer contributed importantly to the workers separation or threat of separation. Of the six trade certified firms listed by the petitioner, four of the certifications had expired at the time of the petition for Gilinsky Logging. The remaining two firms (Louisiana Pacific Corporation, Rogue River, Oregon, NAFTA-5001, and Roseburg Sawmill, Roseburg, Oregon, NAFTA-4988) were under existing certifications at the time of the petition signing. However, collectively, these two customers constituted a very small portion of subject firm business. The initial investigation revealed the layoff occurred as a result of declines in business to a customer who represented the overwhelming majority of business in the relevant period.
Finally, the petitioner alleges that about one-third of U.S. consumption of softwood lumber comes from Canada, and that this alleged fact should be used to verify import eligibility requirements for TAA.
In assessing import impact, the Department considers import trends of like or directly competitive products to determine import impact in the relevant period, thus stagnant figures indicating foreign production for U.S. consumption of softwood lumber are not relevant to this investigation regarding workers producing logs.
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.Start Signature
Signed at Washington, DC, this 20th day of June, 2003.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 03-16905 Filed 7-2-03; 8:45 am]
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