[Federal Register: November 9, 2005 (Volume 70, Number 216)]
[Notices]
[Page 68097-68098]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09no05-101]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-56,536, TA-W-56,536A and TA-W-56,536B]
Butler Manufacturing Company, Subsidiary of Bluescope Steel, Ltd,
Building Division, Wall and Roof Panels Production, Galesburg, IL;
Butler Manufacturing Company, Subsidiary of Bluescope Steel, Ltd,
Building Division, Trim and Components Production, Galesburg, IL;
Butler Manufacturing Company, Subsidiary of Bluescope Steel, Ltd,
Building Division, Secondaries Production, Galesburg, IL; Notice of
Negative Determination on Remand
The United States Court of International Trade (USCIT) granted the
Department of Labor's motion for voluntary remand for further
investigation in Former Employees of Butler Manufacturing Company v.
United States Secretary of Labor (Court No. 05-00440, issued September
2, 2005). AR 181-182.
On February 7, 2005, three workers filed a petition for Trade
Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance
(ATAA) on behalf of workers at Butler Manufacturing Company, Galesburg,
Illinois (TA-W-56,536). The petitioners stated that the workers'
separations were due to the shift of the subject firm's production of
prefabricated buildings to India, Mexico, and China and Butler's
imports of that article from Mexico and China. AR 2.
The Secretary of Labor may certify as eligible for TAA benefits
only those workers who are employed in the subdivision that produces
the article that is adversely affected by imports of ``like or directly
competitive'' articles. Paden v. U.S. Department of Labor, 562 F.2d
470, 475 (7th Cir.1977); See Abbott v. Donovan, 596 F.Supp 475 (C.I.T.
1984). Therefore, during the investigation, the Department of Labor
(hereafter referred to as ``the Department'') requested information
from Butler Manufacturing Company in order to determine what articles
were produced at the subject firm during February 2004 through February
2005, the twelve month period prior to the petition date (February 7,
2005) which is the ``relevant period'' for investigation. The
Department also requested sale, production, and import figures
regarding those articles produced at the Galesburg, Illinois facility
during (AR 25-39, 57-66, 68) and conducted a survey of the company's
major customer's regarding their purchases of those articles during the
relevant period. AR 53-56, 67.
Based on information provided by the subject firm (AR 68), the
Department partitioned the petition into three subparts (Butler
Manufacturing Company, Subsidiary of BlueScope Steel, LTD, Buildings
Division, Wall and Roof Panels Production, Galesburg, Illinois, TA-W-
56,536; Butler Manufacturing Company, Subsidiary of BlueScope Steel,
LTD, Buildings Division, Trim and Components Production, Galesburg,
Illinois, TA-W-56,536A; and Butler Manufacturing Company, Subsidiary of
BlueScope Steel, LTD, Buildings Division, Secondaries Production,
Galesburg, Illinois, TA-W-56,536B)--hereafter referred to collectively
as ``the subject firm''--to address those articles produced at Butler
Manufacturing Company, Galesburg, Illinois facility during the relevant
period: Panels, trim and components, and secondaries.
On March 2, 2005, the Department issued a determination denying
certification of the workers' eligibility to apply for TAA and ATAA. AR
72-75. The negative determination was based on the investigation's
findings that the subject firm did not shift its production of panels,
trim and components, or secondaries to a foreign country and that there
were no increased imports by the subject firm or its customers of
panels, trim and components, or secondaries. The Department's Notice of
determination was published in the Federal Register on April 1, 2005
(70 FR 16847). AR 80.
By application of April 1, 2005, the petitioners requested
administrative reconsideration of the Department's denial, alleging
that the workers were not separately identifiable by product line and
that the workers' separations were due to a shift of production abroad
and increased imports. AR 84-87. On April 1, 2005, the Department
issued a Notice of Affirmative Determination Regarding Application for
Reconsideration. AR 92. On April 23, 2005, the Notice was published in
the Federal Register (70 FR 21247). AR 125.
During the reconsideration investigation, the Department contacted
the subject company (AR 100, 133-139) and the workers (AR 104-105) for
additional information. Based on information received by the company
officials (AR 100, 129, 133-139) and the workers (AR 106-124, 126-128,
130-132), the Department determined on reconsideration that the workers
were ineligible to apply for TAA and ATAA. The Department determined
that those workers were not separately identifiable by product line
and, nevertheless, that the subject firm did not shift production of
panels, trim and components, or secondaries abroad. Instead, the
subject firm was shifting production of those articles to domestic,
affiliated facilities. AR 140-143. The Department issued a Notice of
Negative Determination on Reconsideration on May 11, 2005. The Notice
of Negative Determination on Reconsideration was published in the
Federal Register on May 25, 2005 (70 FR 30142). AR 179-180.
By letter dated July 21, 2005 to the USCIT, petitioners requested
judicial review. AR 154-155.
On September 2, 2005, the USCIT granted the Department's request
for voluntary remand and directed the Department to further investigate
the subject workers' eligibility to apply for TAA and ATAA. AR 181-182.
During the remand investigation, the Department carefully reviewed
previously submitted information, solicited information from the
plaintiff and workers (AR 201), and contacted the subject firm to
obtain new and additional information regarding the articles produced
during the relevant period, the work done by the subject workers, and
the shift of production from the subject firm.
A careful review of previously-submitted information and newly-
obtained information revealed that the Department's finding in the
determination on reconsideration that the workers are not separately
identifiable by product line was in error (AR 141), and the initial
negative determination (of TA-W-56,536) finding on this issue (AR 74)
was correct. The information shows that the workers were dedicated to
particular production lines, that workers' movements between production
lines were infrequent, and that such movement were determined by union
guidelines and usually based on seniority. AR 41-49, 196-199. Because
the workers' assignments to product lines in the Buildings Division
were constant and changes among workers on the production lines were
not the norm but the exception, the Department determines that the
workers were separately identifiable by product line. However,
regardless of whether or not the workers were separately identifiable
by product line, the evidence obtained from all parties during the
investigations do not support the workers' claim that there was a shift
of production of prefabricated buildings or
[[Page 68098]]
their components abroad or increased imports of those articles during
the relevant period.
Information provided by the subject firm revealed that the only
articles produced during the relevant period were panels, trim and
components, and secondaries. AR 183, 194-195. As such, the Department
focused its remand investigation on those articles produced at the
subject firm during the relevant period. AR 195-201.
According to the subject firm, all trim and component, secondaries,
and panel production at the subject facility had ceased by April 2005
and had shifted to a newly built facility in Jackson, Tennessee. As
anticipated by the subject firm (AR 41-42), the production shift began
in February 2005 and finished in May 2005. AR 184, 195. Information
provided by the subject firm revealed no imports of panels (AR 186),
trim and components (AR 187), or secondaries (AR 188). The previously
conducted customer survey covered the appropriate products and revealed
no increased imports of any products produced by the subject firm. AR
53-56, 67.
In response to the plaintiff's assertion that production had
shifted to Mexico, India and China, the company official agreed that a
representative of the Mexico plant had visited the subject firm.
However, the reason for that visit was related to securing replacement
and updated equipment for truss purlin production in Mexico (an article
not produced at the subject firm during the relevant period). AR 195.
While some production of component parts of these articles did shift to
Asia (China), that shift occurred in 2003, which is prior to the
relevant period for this petition. Further, those components were not
made during the relevant period at the subject firm. AR 184, 195.
Because the remand investigation revealed no imports of articles
like or directly competitive with panels, trim and components,
secondaries produced by the workers of the subject firm by the subject
firm or its customers during the relevant period and no shifts of
production of those articles abroad during the relevant period, the
statutory requirements of neither Section 222(a)(1) and (2)(a) nor
Section 222(a)(1) and (2)(B) of the Trade Act or 1974, as amended, were
met, and the Department cannot certify the subject workers as eligible
to apply for TAA. Further, since the workers are not eligible to apply
for TAA, the workers cannot be found eligible to apply for ATAA under
Section 246(a)(3)(B)(i) of that law.
Conclusion
As the result of the findings of the investigation on remand, I
affirm the negative determination of eligibility to apply for
adjustment assistance for workers and former workers of Butler
Manufacturing Company, Subsidiary of BlueScope Steel, LTD, Buildings
Division, Wall and Roof Panels Production, Galesburg, Illinois (TA-W-
56,536); Butler Manufacturing Company, Subsidiary of BlueScope Steel,
LTD, Buildings Division, Trim and Components Production, Galesburg,
Illinois (TA-W-56,536A); and Butler Manufacturing Company, Subsidiary
of BlueScope Steel, LTD, Buildings Division, Secondaries Production,
Galesburg, Illinois (TA-W-56,536B).
Signed at Washington, DC this 1st day of November 2005.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 05-22322 Filed 11-8-05; 8:45 am]
BILLING CODE 4310-30-U