E9-23902. Invista, S.A.R.L., Nylon Apparel Filament Fibers Group, a Subsidiary of Koch Industries, Inc., Chattanooga, TN; Notice of Revised Determination on Remand

On June 18, 2009, the U.S. Court of International Trade (USCIT) remanded to the Department of Labor's motion for further investigation into the matter of Former Employees of Invista, S.A.R.L. v. U.S Secretary of Labor, Court No. 07-00160.

On December 15, 2006, an official of Invista, S.A.R.L, Nylon Apparel Filament Fibers Group, A Subsidiary of Koch Industries, Inc., Chattanooga, Tennessee (Invista) filed a petition for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) on behalf of workers and former workers at Invista engaged in activity related to the production of nylon fiber. AR 1. The petition stated that the separations were due to a shift in production to Mexico that was the basis for a certification that expired on August 20, 2006 (TA-W-55,055). AR 2. The company official stated that, as of February 1, 2007, all workers of Invista would be terminated from employment. AR 7.

On February 7, 2007, the Department of Labor (Department) issued a negative determination regarding workers' eligibility to apply for TAA/ATAA. AR 30-32. On February 21, 2007, the Department's Notice of determination was published in the Federal Register (72 FR 7909). AR 43.

In support of a request for administrative reconsideration (dated February 18, 2007), a worker stated that the workers' separations are “a direct result of the textile industry going to developing countries.” AR 38.

In a letter dated March 15, 2007, the Department stated that the request for reconsideration was being dismissed because insufficient evidence was furnished to warrant reconsideration pursuant to 29 CFR 90.18(c) and that the shift in production that was the basis for the certification of TA-W-55,055 occurred outside the relevant period. AR 45. The Dismissal of Application for Reconsideration was issued on March 21, 2007. AR 47. The Department's Notice of dismissal was published in the Federal Register on March 30, 2007 (72 FR 15169). AR 48.

On May 11, 2007, Plaintiffs sought review by the USCIT. The Plaintiffs assert that the worker separations are due to Invista's shift in production to Mexico.

On March 27, 2008, the USCIT granted the Department's motion for voluntary remand and directed the Department to conduct further investigation to determine whether workers of Invista are eligible to apply for TAA and ATAA.

On June 2, 2008, the Department issued a Notice of Negative Determination on Remand based on the finding that there was no causal nexus between the worker separations and an earlier shift in production to Mexico of articles like or directly competitive with nylon fiber produced at Invista. SAR 35. The Department's Notice of determination was published in the Federal Register on June 10, 2008 (73 FR 32739). SAR 42.

On June 18, 2009, the USCIT ordered the Department to conduct further investigation to determine whether workers of Invista are eligible to apply for TAA and ATAA.

The group eligibility requirements for directly-impacted (primary) workers under Section 222(a) of the Trade Act of 1974, as amended, can be satisfied in either of two ways:

I. Section (a)(2)(A)—all of the following must be satisfied:

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;

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)—both of the following must be satisfied:

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;

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;

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.

During the second remand investigation, the Department obtained additional information regarding Invista's shift in production of nylon fiber to Mexico, Invista's business decisions related to the post-shift reorganization, and the subsequent worker separations at Invista. SAR 67-71.

Following a careful review of the information obtained during its investigations, the Department determined that a significant portion or number of workers at Invista was separated and that there was a shift in production to Mexico of articles like or directly competitive with nylon fiber produced at Invista. Therefore, the Department determines that the group eligibility requirements under Section 222(a)(2)(B) the Trade Act of 1974, as amended, have been met.

In accordance with Section 246 the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department herein presents the results of its investigation regarding certification of eligibility to apply for ATAA.

The Department has determined in this case that the group eligibility requirements of Section 246 have been met.

A significant number of workers at the firm are age 50 or over and possess skills that are not easily transferable. Competitive conditions within the industry are adverse.

Conclusion

After careful review of the facts generated through the first and second remand investigations, I determine that a shift in production by Invista to Mexico of articles like or directly competitive to nylon fiber produced at Invista contributed to the total or partial separation of a significant number or proportion of workers at Invista.

In accordance with the provisions of the Act, I make the following certification:

All workers of Invista, S.A.R.L, Nylon Apparel Filament Fibers Group, A Subsidiary of Koch Industries, Inc., Chattanooga, Tennessee, who became totally or partially separated from employment on or after August 21, 2006, through two years from the issuance of this revised determination are eligible to apply for Trade Adjustment Assistance under Section 223 of the Trade Act of 1974, and are eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.

Signed at Washington, DC, this 8th day of September 2009.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.