E9-30251. Eaton Aviation Corporation, Aviation and Aerospace Components Division, Aurora, CO; Notice of Negative Determination Regarding Application for Reconsideration

By application dated September 21, 2009, a company official 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). The denial notice was signed on August 28, 2009 and will soon be published in the Federal Register.

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 Eaton Aviation Corporation, Aviation and Aerospace Components Division, Aurora, Colorado was based on the finding that imports of services like or directly competitive with services provided by workers of the subject firm did not contribute to worker separations at the subject firm during the relevant period. The investigation revealed that workers of the subject firm were engaged in facilities maintenance related to the closing of the location, disposing of equipment and materials through sale or discard, and archiving paper manufacturing records. The subject firm did not import, nor acquire services from a foreign country and also did not shift the provision of these services to a foreign country.

In the request for reconsideration, the petitioner stated that workers of the subject firm were previously certified eligible for TAA based on a shift in production of aviation and aerospace parts and components to Mexico. The petitioner further stated that even though production of aviation and aerospace parts and components did not occur at the subject facility in the relevant period, workers of the subject firm were retained by the subject firm to close the plant “through no fault or decision of their own.” The petitioner appears to allege that because the subject firm asked the petitioning workers to remain employed at the subject facility beyond the expiration date of the previous certification, the workers of the subject firm should be granted another TAA certification.

The workers of Eaton Aviation Corporation, Aviation and Aerospace Components Division, Aurora, Colorado were previously certified eligible for TAA under petition numbers TA-W-60,965, which expired on May 1, 2009. The investigation revealed that at that time workers of the subject firm were engaged in production of aviation and aerospace parts and components and the employment declines at the subject facility were attributed to a shift in production of aviation and aerospace parts and components to Mexico. The current investigation revealed that production of aviation and aerospace parts and components at the subject firm ceased in June, 2007.

When assessing eligibility for TAA, the Department exclusively considers worker activities during the relevant period (from one year prior to the date of the petition). Therefore, events occurring in 2007 are outside of the relevant period and are not considered in this investigation.

The investigation revealed that workers of the subject firm were engaged in facilities maintenance, disposing of equipment and materials through sale or discard, and archiving paper manufacturing records during the relevant period. No production took place at the subject facility in 2008 and 2009. In order for workers of the subject firm to be eligible for TAA under Section 222(a), there has to be evidence of increased imports of services or a shift abroad in provision of services supplied by workers of the subject firm. The functions performed by workers of Eaton Aviation Corporation, Aviation and Aerospace Components Division, Aurora, Colorado, as described above, were not imported, or shifted abroad nor were the services acquired from a foreign country during the relevant period. Therefore, criteria II.A. and II.B. of Section 222(a) of the Act were not met.

Furthermore, because there were no imports of services supplied by workers of the subject firm and the subject firm did not shift facilities maintenance, disposing of equipment and materials through sale or discard, and archiving paper manufacturing records abroad, criterion II.C is not met. Imports or shift/acquisition in services provided by workers of the subject firm did not contribute importantly to the workers' separation.

Furthermore, with the respect to Section 222(c) of the Act, the investigation revealed that criterion 2 was not met because the workers did not supply a service that was used by a firm with TAA-certified workers in the production of an article or supply of a service that was a basis for TAA certification.

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 at Washington, DC, this 10th day of December, 2009.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.