01-24822. ASARCO, Inc., East Helena Plant, East Helena, MT; Notice of Negative Determination Regarding Application for Reconsideration

By application of May 31, 2001, the company requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA) under petition TA-W-38,839, and North American Free Trade Agreement-Transitional Adjustment Assistance (NAFTA-TAA) under petition NAFTA-4547. The denial notices applicable to workers of ASARCO Inc., East Helena Plant, East Helena, Montana, were signed on April 17, 2001, and published in the Federal Register on May 3, 2001 (66 FR 22262).

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 misinterpretation of facts or of the law justified reconsideration of the decision.

The TAA petition, filed on behalf of workers at ASARCO Inc., East Helena Plant, East Helena, Montana, producing lead bullion (primary product produced at the plant), was denied because the “contributed importantly” group eligibility requirement of section 222(3) of the Trade Act of 1974, as amended, was not met. The “contributed importantly” test is generally demonstrated through a survey of the workers' firm's customers. The subject plant customers are located outside the United States and therefore the company can not be impacted by customers purchasing imported lead bullion. The subject firm did not import lead bullion during the relevant period.

The NAFTA-TAA petition for the same worker group was denied because criteria (3) and (4) of the group eligibility requirements in paragraph (a)(1) of section 250 of the Trade Act, as amended, were not met. A survey was not conducted due to the conditions depicted in the previous paragraph. The subject firm did not import lead bullion, nor was production of lead bullion shifted form the workers' firm to Mexico or Canada.

The petitioner alleges that other ASARCO Incorporated locations have been certified for Worker Adjustment Assistance and NAFTA-Transitional Adjustment Assistance. The certifications were based on different principle products, with a different customer base than the subject plants' customer base. The work performed at the subject plant is not vertically integrated into any of those products during the relevant period and therefore can not be associated with any of those certifications. Although the subject plant produced lead bullion for a certified facility, producing refined lead, ASARCO's Omaha, Nebraska (TA-W-35,300 and NAFTA-02752) those certifications expired on May 31, 1998. Therefore, the subject plant can not be considered vertically integrated, due to the time frame of that certification not being within under the relevant time frame.

The petitioner also alleges that the plant was impacted by depressed lead prices and events in international markets. Price and events in international markets are not factors which pertain to the “contributed importantly” criteria.

The Department, when determining import impact for a worker group, does consider import statistics for products similar to what the subject plant produces. U.S. import statistics for refined lead are available, however these statistics are not equivalent to the product (lead bullion—an intermediate product) the subject plant produced. Therefore, those statistics are not reflective of the plant's product. While U.S. import data are helpful in identifying trends in imports of specific products, in most cases, the Department relies on a survey of the major declining customers of the subject firm.

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 decisions. Accordingly, the application is denied.

Signed at Washington, D.C., this 18th day of September, 2001.

Edward A. Tomchick,

Director, Division of Trade Adjustment Assistance.