E7-1469. Davis International, Okolona, MS; Notice of Negative Determination Regarding Application for Reconsideration

By application of January 2, 2007, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Alternative Trade Adjustment Assistance (ATAA).

The workers of Davis International, Okolona, Mississippi were certified eligible to apply for Trade Adjustment Assistance (TAA) and denied to apply for ATAA on December 5, 2006. The denial notice will be soon published in the Federal Register.

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.

The group eligibility criteria for the ATAA program that the Department must consider under Section 246 of the Trade Act are:

1. Whether a significant number of workers in the workers' firm are 50 years of age or older.

2. Whether the workers in the workers' firm possess skills that are not easily transferable.

3. The competitive conditions within the workers' industry (i.e., conditions within the industry are adverse).

The initial ATAA investigation revealed that no workers at the subject firm were 50 years of age or older during the relevant time period and thus criterion (1) has not been met.

In the request for reconsideration, the petitioner stated that he was part of the petitioning worker group and that he was also over the age of 50 during the relevant time period.

A company official was contacted to confirm the age of all the employees of the subject firm during the relevant time period. The company official did acknowledge the fact that the worker who submitted the request for reconsideration is over the age of 50 and that she made a mistake omitting him from the petitioning worker group during the initial investigation. The official further stated that this worker was the only employee over the age of 50 or older at the subject firm during the relevant time period.

When assessing eligibility for ATAA, the Department makes its determinations based on the requirements as outlined in Section 222 of the Trade Act. In particular, the Department considers the relevant employment data for the facility where the petitioning worker group was employed in order to establish whether criterion 1 has been met. For this purpose, the term “significant number” means five percent of the adversely affected workforce or 50 workers, whichever is less, or at least three workers in a firm with less than 50 adversely affected workers.

As the total number of workers 50 years of age or older was one employee during the relevant period, criterion (1) of the eligibility requirements for ATAA 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 at Washington, DC this 17th day of January, 2007.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.