E8-29614. CBC Latrobe Acquisition, LLC, a Subsidiary of City Brewery Company, LLC, Latrobe, PA; Notice of Negative Determination Regarding Application for Reconsideration

By application dated November 19, 2008, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA), applicable to workers and former workers of the subject firm. The denial notice was signed on October 21, 2008 and published in the Federal Register on November 10, 2008 (73 FR 66677).

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 initial investigation resulted in a negative determination was based on the finding that imports of beer did not contribute importantly to worker separations at the subject facility and there was no shift of production to a foreign country. The subject firm did not import beer during the relevant period. The “contributed importantly” test is generally demonstrated through a survey of the workers' firm's declining domestic customers. A survey conducted by the Department of Labor revealed that a major customer did not purchase imported beer in 2006, 2007 and during January through August 2008.

The petitioner provided a citation from the 2007 shareholder report that “competitiveness with foreign product on the shelves of distributors has increased” and stated that the workers of the subject firm should be eligible for TAA because domestic production has been “disrupted” by foreign products.

The investigation revealed no imports of beer during the relevant period and no shift of production to a foreign source. Upon further review of the initial investigation, it was revealed that sales and production at the subject facility have increased in the relevant period. The subject firm was anticipating a temporary shutdown at the end of 2008 due to problems with equipment. Therefore, the initial determination document should have also stated that criteria (a)(2)(A)(I.B) and (a)(2)(B)(II.B) have not been met. Sales and production of the subject firm increased and there was no shift in production to a foreign country in the relevant period.

The petitioner did not supply facts not previously considered; nor provide additional documentation indicating that there was either (1) a mistake in the determination of facts not previously considered or (2) a misinterpretation of facts or of the law justifying reconsideration of the initial determination.

After careful review of the request for reconsideration, the Department determines that 29 CFR 90.18(c) 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 in Washington, DC this 5th day of December 2008.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.