E6-21791. Short Bark Industries, Tellico Plains, TN; Notice of Negative Determination Regarding Application for Reconsideration

By application of October 20, 2006 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 denial notice was signed on October 3, 2006 and published in the Federal Register on October 31, 2006 (71 FR 63800).

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 TAA petition, filed on behalf of workers at Short Bark Industries, Tellico Plains, Tennessee engaged in production of cut pieces for camouflage clothing was denied because the “contributed importantly” group eligibility requirement of Section 222 of the Trade Act of 1974 was not met. The “contributed importantly” test is generally demonstrated through a survey of the workers' firm's customers. The survey revealed no imports of cut pieces for camouflage clothing in 2004, 2005 and January through August of 2006 when compared with the same period in 2005. The subject firm did not import cut pieces for camouflage clothing in the relevant period nor did it shift production to a foreign country.

In the request for reconsideration, the petitioner alleges that the layoffs at the subject firm are attributable to a shift in production to Honduras and Puerto Rico.

Two company officials were contacted regarding the above allegations. The company officials stated that the subject firm did not shift production from the subject facility to Honduras. The officials stated that the subject firm exported cut pieces for camouflage clothing abroad to a customer with the foreign facility for further production. This ceased its business with the subject firm in order to perform all the cutting abroad. The Short Bark Industries decided not to pursue the cutting business any longer and sold some of the machinery from the subject firm to the customer. Both of the officials confirmed that there is no affiliation between Short Bark Industries, Tellico Plains, Tennessee and its major customer.

Contact with an official of the subject firm's customer confirmed that all production for this customer was exclusively for export purposes. As trade adjustment assistance is concerned exclusively with whether imports impact layoffs of petitioning worker groups, the above-mentioned allegations regarding agreements between the subject firm and their foreign customer base are irrelevant.

The official also confirmed that some of the production was shifted from the subject facility to a plant in Puerto Rico during the relevant time period.

In the request for reconsideration, the petitioner seems to imply that a shift of production to Puerto Rico on the part of the company constitutes a shift of production to a country included in Caribbean Basin Economic Recovery Act. The petitioner seems to conclude that this shift to Puerto Rico is responsible for separations at the subject facility.

Puerto Rico is a U.S. Territory and therefore any movement of production to this region would not constitute a shift of production to a foreign source.

The petitioner provided the name of the former supervisor who according to the petitioner is currently in Honduras training workers.

The official confirmed this statement and added that this supervisor in question is now employed by subject firm's customer and is working in Honduras on behalf of this customer.

The petitioner also provided a name of the subject firm's employee who is allegedly currently making patterns for the Honduras plant.

The Department contacted this employee to verify the above information. The employee stated that he is still employed by Short Bark Industries and that he does not make markers or patterns for the Honduras plant.

The petitioner attached an article, with no reference to the source or the date of the article. The article is a short biography on the founder of Short Bark Industries, and refers to the activities of the subject firm from 1991 to 2003.

In its investigation, the Department considers events and facts that occurred within a year prior to the date of the petition. Thus, the period between 1991 and 2003 is outside of the relevant period as established by the current petition date of November 9, 2006.

The officials of the subject firm confirmed directly that Short Bark Industries did not shift production from the subject firm to any facility abroad in the relevant period.

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 13th day of December, 2006

Linda G. Poole,

Certifying Officer, Division of Trade Adjustment, Assistance.