[Federal Register Volume 75, Number 74 (Monday, April 19, 2010)]
[Notices]
[Pages 20394-20396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8870]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-65,433]
American Racing Equipment, LLC, Denver, CO; Notice of Negative
Determination on Remand
On January 8, 2010, the United States Court of International Trade
(USCIT) granted the Department of Labor's request for voluntary remand
to conduct further investigation in Former Employees of American Racing
Equipment, LLC v. United States Secretary of Labor (Court No. 09-
00288).
On April 6, 2009, the Department of Labor (Department) issued a
Negative Determination regarding eligibility to apply for Trade
Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance
(ATAA) applicable to workers and former workers of American Racing
Equipment, LLC, Denver, Colorado (the subject firm). (AR 49) The
Department's Notice of negative determination was published in the
Federal Register on June 25, 2009 (74 FR 3033). (AR 59.) The
determination stated that the subject firm's affiliate did not import
two piece wheels like or directly competitive with those warehoused and
wholesaled by the subject worker group. Additionally, the customers of
the affiliate did not make import purchases of these articles in the
period under investigation. (AR 50.)
By application dated April 25, 2009, the petitioner requested
administrative reconsideration on the Department's negative
determination. In the request for reconsideration, the petitioner
alleged that the workers of the subject firm supported production of
cast, one piece wheels and that the subject firm shifted production of
these articles abroad and increased imports of these products. (AR 61-
73.)
Because new information was provided by the petitioners that had
not been previously considered, the Department issued a Notice of
Affirmative Determination Regarding Application for Reconsideration for
workers at the subject firm on May 11, 2009. (AR 76.) The Notice was
published in the Federal Register on June 16, 2009 (74 FR 28552). (AR
79.)
In the request for reconsideration, the petitioner alleged that the
workers of the subject firm supported production of cast, one piece
wheels, that the subject firm shifted production of the cast, one piece
wheels abroad, and that there was an increase in imports of these
articles. (AR 62-64, 68-70.)
During the reconsideration investigation, the Department obtained
additional information from the company official regarding the
petitioners' claims. The additional material, however, did not contain
information sufficient to reverse the initial negative determination.
As a result of the reconsideration investigation, the Department
issued a Notice of Negative Determination Regarding Application for
Reconsideration on June 26, 2009. (AR 83-85) The determination stated
that the Department did not find additional information pertaining to a
shift in production or increased imports that contributed to the
petitioners' separations. (AR 84, 85) On July 14, 2009, the Notice was
published in the Federal Register (74 FR 34044). (AR 87, 88.)
In a letter to the Colorado Department of Labor, dated July 23,
2009, the Plaintiff appealed to the USCIT for judicial review. The
Plaintiff stated that ``the relevant period'' for the investigation
should have been identical to the relevant time period covered in TAA
certifications TA-W-58,665 and TA-W-63,760 and based the appeal on
``facts not considered'' and misinterpretation of the facts.
On December 14, 2009, the Department requested the USCIT to grant
its request for remand to investigate further the Plaintiffs'
allegations. On January 8, 2010, the USCIT granted the Department's
Motion for voluntary remand.
On May 18, 2009, the Department implemented the Trade and
Globalization Adjustment Assistance
[[Page 20395]]
Act of 2009 (TGAAA). Under Section 1891(a) of the TGAAA, only worker
groups covered by petitions filed on or after May 18, 2009 are eligible
to apply for TAA under provisions set forth in the TGAAA. Worker groups
covered by petitions filed before May 18, 2009 must meet the
eligibility criteria that existed at the time the petition was filed.
Because the petition for TA-W-65,433 was filed on February 26, 2009, in
order for the subject worker group to be eligible to apply for TAA as
primary workers (workers of a firm that produces an article), the
workers must meet the group eligibility requirements under Section
222(a) of the Trade Act of 1974, as amended, which existed on February
26, 2009.
The group eligibility requirements under Section 222(a) of the
Trade Act which existed on February 26, 2009 can be satisfied in one of
two ways:
I. 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
II. 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.
In order to determine whether the subject workers meet the TAA
group eligibility requirements, the Department must first determine
whether or not an article was produced at the subject firm, then
determine whether the workers are adversely impacted by increased
imports of articles like or directly competitive with those produced by
the subject firm or by a shift in production abroad of articles like or
directly competitive with those which are produced by the subject firm.
It is the Department's policy that in order for petitioners to
qualify for TAA as primary workers, they must be (1) engaged in
domestic production; or (2) be in support of an affiliated domestic
production facility; or (3) under the control of an unaffiliated
company that produces the article that the subject workers support.
Where the workers support production, the facility that they support
must be import-impacted or have shifted to a country identified under
Section 113 of the Trade Adjustment Assistance Reform Act of 2002 (Pub.
L. 107-210).
In conducting the remand investigation, the Department obtained
additional information from the subject firm, SAR 89-90, 99-100, 111-
113, and solicited input from the Plaintiff. SAR 91. Based on the
information collected, SAR 99-100, 107-110, 111-113, the Department
determined that the worker group at the subject firm providing services
such as warehousing and wholesaling of wheels was not in direct support
of the production of these articles and, therefore, does not meet the
test of being engaged in the production of an article for the purposes
of the Trade Act.
The Department's policy is to provide TAA benefits to workers
covered by a petition filed before May 18, 2009, who work in a facility
of the workers' firm (the ``appropriate subdivision'' identified in the
petition) that supports an import-impacted domestic production facility
of the workers' firm. 29 CFR Section 90.11(c)(7) requires that the
petition includes a ``description of the articles produced by the
workers' firm or appropriate subdivision, the production or sales of
which are adversely affected by increased imports, and a description of
the imported articles concerned.'' Further, 29 CFR Section 90.2
describes an appropriate subdivision as ``an establishment in a multi-
establishment firm which produces the domestic article in question''
and includes ``auxiliary facilities operated in conjunction with
(whether or not physically separate from) production facilities.''
The Plaintiffs allege that they were impacted by increased imports
of wheels following a shift in production abroad from the subject
firm's production facility located in Rancho Dominquez, California. The
remand investigation revealed that the worker group at the Denver,
Colorado facility did not support the production at the Rancho
Dominguez, California location. Rather, the majority of the product
warehoused and wholesaled by the Denver, Colorado worker group was
imported from China and a small portion entered the Denver, Colorado
facility as a finished article from the subject firm facility in Kansas
City, Missouri. The remand investigation also revealed that the worker
group at the Denver, Colorado location was not engaged in the assembly
or finishing of the articles warehoused and wholesaled out of that
location. Furthermore, when the Denver, Colorado facility ceased to
operate in May 2008, the work was consolidated domestically. SAR 99-
100, 107-110, 111-113.
The Plaintiffs also allege that they were impacted by the shift in
production abroad and subsequent imports. The worker group at the
Denver, Colorado facility did not support the production at the Rancho
Dominguez, California facility nor did they support production at any
other domestic or affiliated facility of the subject firm. SAR 99-100,
107-110, 111-113.
Additionally, the Plaintiffs allege that the period under
investigation should be the same as the period used for the TAA
certifications of petitions TA-W-58,665 and TA-W-63,760. The period of
the investigation is determined by the date of filing of the petition.
See, e.g., 29 CFR 90.2 ``increased imports'' definition identifying the
representative base period. During the relevant period of investigation
for the subject petition, however, the Denver, Colorado facility did
not support production at the Rancho Dominguez, California facility,
nor was the product manufactured at the Rancho Dominguez, California
facility sold out of the Denver, Colorado location. SAR 99-100, 107-
110, 111-113.
The Department determined that the subject workers are not engaged
in the production of an article or in support of an affiliated,
domestic production facility. As such, the Department determines that
there was no ``shift in production by such workers' firm or subdivision
to a foreign country'' as required by the Trade Act. Because the
workers did not produce an article, and did not support a firm or
appropriate subdivision that produced an article domestically, the
workers cannot be considered import impacted or affected by a shift of
production abroad.
[[Page 20396]]
In order for the Department to issue a certification of eligibility
to apply for ATAA, the subject worker group must be certified eligible
to apply for TAA. Since the subject workers are denied eligibility to
apply for TAA, the 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 American Racing Equipment,
LLC, Denver, Colorado.
Signed at Washington, DC, this 8th day of April, 2010.
Del Min Amy Chen
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 2010-8870 Filed 4-16-10; 8:45 am]
BILLING CODE 4510-FN-P