Negative Determination Regarding Application for Reconsideration: Irving Forest Products, Nashiville Plantation, ME

Federal Register: August 5, 2008 (Volume 73, Number 151)

Notices

Page 45475-45476

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr05au08-86

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:

1. 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

2. The sales or production, or both, of such firm or subdivision have decreased absolutely; and

3. 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:

1. 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

2. 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

3. 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

   BILLING CODE 4510-FN-P