[Federal Register Volume 76, Number 17 (Wednesday, January 26, 2011)]
[Notices]
[Pages 4733-4735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1617]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-70,344]
Atlantic Southeast Airlines, a Subsidiary of Skywest, Inc.,
Airport Customer Service Division, Fort Smith, AR; Notice of Negative
Determination on Second Remand
On November 4, 2010, the United States Court of International Trade
(USCIT) granted the Department of Labor's second request for voluntary
remand to conduct further investigation in Former Employees of Atlantic
Southeast Airlines, a Subsidiary of Skywest, Inc., Airport Customer
Service Division v. United States Secretary of Labor (Court No. 09-
00522).
On September 28, 2009, the Department of Labor (Department) issued
a Negative Determination regarding eligibility to apply for Trade
Adjustment Assistance (TAA) applicable to workers and former workers of
Atlantic Southeast Airlines, a Subsidiary of Skywest, Inc., Airport
Customer Division, Fort Smith, Arkansas (subject firm). AR 35. Workers
at the subject firm (subject worker group) provided airline customer
services. AR 4,8,14,37. The Department's Notice of determination was
published in the Federal Register on November 17, 2009 (74 FR 59251).
AR 48.
For the Department to issue a certification for workers under
Section 222(a) of the Trade Act of 1974, as amended (the Act), 19
U.S.C. 2272(a), the following criteria must be met:
I. The first criterion (set forth in Section 222(a)(1) of the Act,
19 U.S.C. 2282(a)(1)) requires that a significant number or proportion
of the workers in the workers' firm must have become totally or
partially separated or be threatened with total or partial separation.
II. The second criterion (set forth in Section 222(a)(2) of the
Act, 19 U.S.C. 2272(a)(2)) may be satisfied in one of two ways:
(A) Increased Imports Path:
(i) sales or production, or both, at the workers' firm must have
decreased absolutely, and
(ii)(I) imports of articles or services like or directly
competitive with articles or services produced or supplied by the
workers' firm have increased, OR
(II)(aa) imports of articles like or directly competitive with
articles into which the component part produced by the workers' firm
was directly incorporated have increased; OR
(II)(bb) imports of articles like or directly competitive with
articles which are produced directly using the services supplied by the
workers' firm have increased; OR
(III) imports of articles directly incorporating component parts
not produced in the U.S. that are like or directly competitive with the
article into which the component part produced by the workers' firm was
directly incorporated have increased.
(B) Shift in Production or Supply Path:
(i)(I) there has been a shift by the workers' firm to a foreign
country in the production of articles or supply of services like or
directly competitive with those produced/supplied by the workers' firm;
or
(i)(II) there has been an acquisition from a foreign country by the
workers' firm of articles/services that are like or directly
competitive with those produced/supplied by the workers' firm.
III. The third criterion requires that the increase in imports or
shift/acquisition must have contributed importantly to the workers'
separation or threat of separation. See Sections 222(a)(2)(A)(iii) and
222(a)(2)(B)(ii) of the Act, 19 U.S.C. 2272(a)(2)(A)(iii),
2272(a)(2)(B)(ii).
For the Department to issue a certification for adversely-affected
secondary workers under Section 222(c) of the Act, 19 U.S.C. 2272(c),
the following criteria must be met:
(1) A significant number or proportion of the workers in the
workers' firm or an appropriate subdivision of the firm have become
totally or partially separated, or are threatened to become totally or
partially separated;
(2) the workers' firm is a Supplier or Downstream Producer to a
firm that employed a group of workers who received a certification of
eligibility under Section 222(a) of the Act, 19 U.S.C. 2272(a), and
such supply or production is related to the article or service that was
the basis for such certification; and
(3) either:
(A) the workers' firm is a supplier and the component parts it
supplied to the firm described in paragraph (2) accounted for at least
20 percent of the production or sales of the workers' firm; or
(B) a loss of business by the workers' firm with the firm described
in
[[Page 4734]]
paragraph (2) contributed importantly to the workers' separation or
threat of separation.
Section 222(d)(3)(A) of the Act, 19 U.S.C. 2272(d)(3)(A), states
that a ``downstream producer means a firm that performs additional,
value-added production processes or services directly for another firm
for articles or services with respect to which a group of workers in
such other firm has been certified under subsection (a).'' Section
222(d)(3)(B) of the Act, 19 U.S.C. 2272(d)(3)(B), states that ``value-
added production processes or services include final assembly,
finishing, testing, packaging, or maintenance or transportation
services.''
The negative determination states that, although there was a
significant proportion or number of workers of the subject firm that
were separated, the remaining criteria of Section 222(a) and Section
222(c) of the Act were not met. AR 37. The negative determination
stated that the subject firm did not import like or directly
competitive services during the relevant period or shift these services
abroad. AR 38.
In the request for reconsideration, the petitioner alleged that
because the workers at the subject firm provided services to
individuals that are part of worker groups eligible to apply for TAA,
the workers at the subject firm should also be eligible for TAA as
``downstream producers.'' AR 42,43.
The Department issued a Notice of Negative Determination Regarding
Application for Reconsideration applicable to workers of the subject
firm on November 5, 2009, based on the finding that the petitioner did
not provide new information. AR 44. The Department's Notice was
published in the Federal Register on December 8, 2009 (74 FR 64736). AR
54.
In the complaint to the USCIT, the Plaintiff asserted that workers
at the subject firm are eligible to apply for TAA as secondarily
affected workers, that the decline in travel in the Fort Smith,
Arkansas area is attributable to a reduction in the operations of firms
in the local area due to trade impact, and that this decline in travel
contributed to subject worker group separations.
First Remand Investigation
During the first remand investigation, the Department carefully
reviewed previously submitted information, obtained additional
information from the subject firm, and solicited input from the
Plaintiff.
In the course of the first remand investigation, the Plaintiff
provided information alleging that trade impact caused the layoffs in
the subject worker group. SAR 9.
The Department's findings on remand revealed that the subject
worker group provided airline customer services such as airline ground
handling, baggage, and ticketing, under contract exclusively for Delta
Air Lines (Delta). These services were provided to individual
passengers and the ticket purchases were made by individuals, travel
agencies, corporate accounts, and the United States military. SAR
3,19,21,27,29.
The information obtained by the Department to address the
allegation that the domestic merger between Delta and Northwest
Airlines demonstrates trade impact confirmed the Department's findings.
Subject worker group separations are attributable to Delta ceasing
operations with the subject firm at the Fort Smith, Arkansas location,
but the newly-merged airline maintained operations out of the Fort
Smith, Arkansas location using a different airline customer service
provider. Further, the services provided by the worker group cannot be
imported or shifted abroad as they are used directly by domestic
passengers. AR 17,24,25, SAR 3,19,21,27,29.
Based on careful consideration of all previously submitted
information and new facts obtained during the first remand
investigation, the Department determined that the subject worker group
did not meet the eligibility criteria of the Act and issued a Negative
Determination on Remand on September 3, 2010. SAR 34. The Notice of
determination was published in the Federal Register on September 21,
2010 (75 FR 57517). SAR(II) 1.
Second Remand Investigation
The Department requested, and was granted, a second voluntary
remand to obtain additional information to clarify the reason Delta
ceased using services supplied by the subject firm, to clarify
``directly'' for purposes related to Section 222(d)(3)(A), and to
determine whether the petitioning workers are eligible to apply for
TAA.
During the second remand investigation, the Department obtained
additional information from the subject firm, SAR(II) 6,8,44-48,
solicited input from the Plaintiff, SAR(II) 6,10-15, and obtained new
information from Delta regarding the reason that it ceased using
services supplied by the subject firm in its operations at the Fort
Smith airport. SAR(II) 7-9,29-42,50-52.
Information provided by Delta and the subject firm confirmed that
the subject firm failed to win a bid to continue to supply services at
the Fort Smith airport. When Delta and Northwest Airlines merged,
regional vendors were invited to submit bids to acquire ground handling
operations at the Fort Smith location. The subject firm had the same
opportunity to bid to win the contract to supply services at the Fort
Smith, Arkansas airport as other firms, but did not win the contract.
SAR(II) 46-48,51.
Section 222(d)(3)(A) of the Act requires that a ``downstream
producer'' perform ``additional, value-added production processes or
services directly for another firm for articles or services with
respect to which a group of workers in such other firm has been
certified under subsection (a) [of Section 222 of the Act].'' Section
222(d)(3)(B) includes ``transportation services'' among those services.
The Department's interpretation of ``directly'' in Section
222(d)(3)(A) is that there may not be an intervening customer or
supplier. The subject firm provided services exclusively for Delta, so
Delta is the only direct recipient of the services provided by the
subject worker group. SAR(II) 46. The services supplied by the subject
firm must be to a firm that employs workers eligible to apply for TAA
on a primary certification. Delta does not have a worker group
certified as eligible to apply for TAA, SAR(II) 53, so subject firm
workers may not be certified under the secondary worker provisions of
the statute.
Further, Section 222(c)(2) of the Act does not permit secondary
worker certification unless the service provided by the subject firm
``is related to the article or service that was the basis for such
certification [under Section 222(a) of the Act].'' This clause confirms
Department's finding that it is not necessary to survey Delta's
customers because the articles or services those customers produce or
provide are not related to the supply of airline customer services that
the subject firm provides.
Based on a careful review of both previously-submitted information
and new information obtained during the second remand investigation,
the Department reaffirms that the petitioning workers have not met the
eligibility criteria of Section 222(c) of the Trade Act of 1974, as
amended.
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 Atlantic Southeast
Airlines, a Subsidiary of Skywest, Inc., Airport Customer Division,
Fort Smith, Arkansas.
[[Page 4735]]
Signed at Washington, DC, January 18, 2011.
Del Min Amy Chen,
Certifying Officer, Office of Trade Adjustment Assistance.
[FR Doc. 2011-1617 Filed 1-25-11; 8:45 am]
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