[Federal Register: March 17, 2008 (Volume 73, Number 52)]
[Notices]
[Page 14272-14273]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr08-94]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-62,333]
Liberty Fibers Corporation, Lowland, TN; Notice of Negative
Determination on Reconsideration
On December 11, 2007, the Department of Labor (Department) issued
an Affirmative Determination Regarding Application for Reconsideration
for workers and former workers of Liberty Fibers Corporation, Lowland,
Tennessee (the subject firm). The Department's Notice of affirmative
determination was published in the Federal Register on December 19,
2007 (72 FR 71962).
A certification for Trade Adjustment Assistance (TAA) and
Alternative Trade Adjustment Assistance (ATAA) applicable to workers at
the subject firm was issued on October 21, 2005 and remained valid
until October 21, 2007 (TA-W-58,039). The certification was based on
the Department's finding that the subject workers produced rayon staple
fiber and that increased imports of articles like or directly
competitive with those produced by the subject firm contributed
importantly to subject firm sales or production declines and to
workers' separations.
On August 24, 2007, a TAA/ATAA petition (TA-W-62,049) was filed by
a company official on behalf of workers and former workers of the
subject firm. The petition was withdrawn on August 29, 2007. The
Department issued a Notice of Termination of Investigation on September
4, 2007.
On October 22, 2007, a TAA/ATAA petition was filed by a company
official on behalf of workers and former workers of the subject firm
(TA-W-62,333). The petition stated that the subject firm produced rayon
staple fiber, the subject firm closed on September 26, 2005, and that
``Five (5) employees remain in the employment of the company to assist
the bankruptcy trustee. The remaining employees will be laid off in the
next 6-9 months.''
The initial determination, issued on November 13, 2007, stated that
the workers performed maintenance of a closed fiber production
facility, that the workers no longer support a firm or appropriate
subdivision that produces an article domestically, and, thus, the
subject worker group cannot be considered import impacted or affected
by a shift in production of an article.
The request for reconsideration stated that the subject firm ceased
operations in September 2005, that a Chapter 7 bankruptcy (dissolution)
trustee was appointed in November 2005, and that the trustee retained
the service of several employees to assist in the settlement of the
corporation's estate. The request also stated that, with regards to
petition TA-W-58,039, the Department ``accurately designated the loss
of those permanent jobs to be the result of increased imports
activity'' and asserts that workers covered by petition TA-W-62,333
should be eligible to apply for TAA and ATAA on the same basis
(increased imports).
In order to be certified as eligible to apply for adjustment
assistance under section 223 of the Trade Act of 1974, the petitioning
group must work for a firm or appropriate subdivision that produces an
article domestically, and there must be a relationship between the
workers' work and the article produced by the workers' firm or
appropriate subdivision.
Under section 223(a) of the Trade Act of 1974, as amended, TAA
certification may be made if the following criteria are met:
Section (a)(2)(A)--
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;
or
Section (a)(2)(B)--
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 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.
Because the request for reconsideration asserts that the workers
covered by TA-W-62,333 should be certified for TAA and ATAA for the
same reason that the workers covered by TA-W-58,039 were certified
(increased imports), the Department investigated whether the criteria
set forth in section (a)(2)(A) were met.
The Section (a)(2)(A) requires that ``imports of articles like or
directly competitive with articles produced by such firm or subdivision
have increased'' and increased imports must have ``contributed
importantly to such workers' separation or threat of separation and to
the decline in sales or production of such firm or subdivision.''
To be certified based on increased imports, the Department must
find that increased imports is a cause that contributed importantly to
a two-part effect: the workers' separation or threat of separation, and
the decline in subject firm sales or production. Because the cause must
precede the effect, it follows that increased imports must occur before
or coincide with the subject firm's sales or production decline, and,
that without that effect, causality cannot be established.
``Increased imports,'' defined at 29 CFR 97.2, means ``that imports
have increased either absolutely or relative to domestic production
compared to a representative base period. The representative base
period shall be one year consisting of the four quarters immediately
preceding the date which is twelve months prior to the date of the
petition.''
Because the date of the petition is October 22, 2007, the relevant
period (the twelve months prior to the petition date) is October 2006
through September 2007 and the representative base period is October
2005 through September 2006. Therefore, for there to be increased
imports, imports during October 2006 through September 2007 would have
to increase compared to the period of October 2005 through September
2006.
During the reconsideration investigation, the Department confirmed
that the subject firm ceased operation and closed permanently in
September 2005, that the subject firm filed for
[[Page 14273]]
Chapter 11 bankruptcy (reorganization) on September 29, 2005, and that
the case was converted to Chapter 7 bankruptcy (dissolution) on
November 21, 2005.
Because there were no subject firm sales or production since
September 2005, the Department finds that there could not have been any
decline in sales or production at the subject firm during the relevant
period. Consequently, increased imports could not have ``contributed
importantly to * * * the decline in sales or production of'' the
subject firm. Accordingly, the subject workers cannot be certified
under section 222(a)(2)(A).
Further, the Department finds that because the subject firm
permanently closed in September 2005, there was not production that
could have shifted to a foreign country. Accordingly, the subject
workers cannot be certified under section 222(a)(2)(B).
Although the request for reconsideration did not allege that the
subject workers were adversely affected as secondary workers (workers
of a firm that supply component parts to a TAA-certified company or
finished or assembled for a TAA-certified company), the Department
expanded the investigation to determine whether they would be eligible
to apply for TAA on this basis. Such a certification, under section
223(b)(2), must be based in the certification of a primary firm.
Prior to the closure in September 2005, the subject firm produced a
final article (rayon staple fiber) and, therefore, neither supplied
component parts to other companies nor finished or assembled an article
for other companies. Even if the subject firm did engage in such
activity, the activity occurred prior to September 2005, and,
therefore, occurred prior to the relevant period and cannot be a basis
for certification. Accordingly, the subject workers cannot be certified
under section 223(b)(2).
In order for the Department to issue a certification of eligibility
to apply for Alternative Trade Adjustment Assistance (ATAA), the
subject worker group must be certified eligible to apply for TAA. Since
the petitioning worker group is denied eligibility to apply for TAA,
the subject workers cannot be certified eligible for ATAA.
Conclusion
After careful reconsideration, I affirm the original notice of
negative determination of eligibility to apply for worker adjustment
assistance for workers and former workers of Liberty Fibers
Corporation, Lowland, Tennessee.
Signed at Washington, DC, this 7th day of March 2008.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E8-5227 Filed 3-14-08; 8:45 am]
BILLING CODE 4510-FN-P