E4-2548. Ripplewood Phosporous U.S., LLC, Formerly Akzo Nobel Functional Chemical LLC, Gallipolis Ferry, WV; Notice of Negative Determination Regarding Application for Reconsideration

By application dated September 2, 2004, 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 Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA). The negative determination applicable to workers of Ripplewood Phosphorous U.S., LLC, Formerly Akzo Nobel Functional Chemical LLC, Gallipolis Ferry, West Virginia was issued on August 6, 2004. The Notice of determination was published in the Federal Register on August 20, 2004 (69 FR 51715).

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 subject company produces flame-retardant chemicals, including Fyrol PCF, Fyrol FR-2, Fyroflex RDP, Fyroflex BDP, Phosphorus Trichloride, Phosphorous Oxychloride, Phosflex 4, Phosflex TBEP and Fyrol CEF. The workers are not separately identifiable by product line.

The TAA/ATAA petition was denied because during the relevant time period, subject company sales and production increased and the subject company did not shift production abroad.

In the request for reconsideration, the petitioner agrees that subject company sales and production increased during the relevant time period but contends that the increased sales were due to increased imports and infers that the increased imports were the cause of worker separations. Further, the petitioner contends that the Department should investigate imports of phosphorous, a raw material for phosphorus trichloride.

According to the petitioner, phosphorus trichloride “was the base product for the facility; which was used in 80% of all the manufacturing products.” The company confirmed that phosphorous was imported to make phosphorus trichloride and that phosphorus trichloride was, in turn, used to make the other flame-retardant chemicals. The company also stated that although some phosphorus trichloride was sold to customers, the company did not sell any phosphorus.

Increased company imports of article(s) produced at the subject facility could be a basis for TAA certification when there are decreased company sales and/or production and worker separations during the relevant period. However, increased imports of raw material used in production of articles produced at the subject facility cannot be the basis for TAA certification, since the workers do not produce that article. Thus, alleged import increases of a raw material (phosphorous) cannot be a basis for TAA certification for the subject worker group.

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 21st day of September, 2004.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.