E9-30252. Graphite Engineering and Sales Company, Greenville, MI; Notice of Negative Determination Regarding Application for Reconsideration

By application dated November 13, 2009, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA), applicable to workers and former workers of the subject firm. The denial notice was signed on September 24, 2009 and was published in the Federal Register on November 17, 2009 (74 FR 59255).

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, based on the finding that imports of graphite and carbon parts did not contribute to worker separations at the subject facility and there was no shift in production from the subject firm to foreign country during the period under investigation. The “contributed importantly” test is generally demonstrated through a survey of the workers' firm's declining customers. The survey revealed no imports of graphite and carbon parts by declining customers during the relevant period. The subject firm did not import graphite and carbon parts nor shift production to a foreign country during the relevant period.

The petitioner states that workers of the subject firm indirectly supplied parts that were integral in petroleum production. The petitioner further states that demand for drilling equipment has diminished because of the new fuel efficiency standards and seems to allege that the workers of the subject firm should be eligible for TAA as secondary impacted workers under Section 222(c).

For the Department to issue a secondary worker certification under Section 222(c), to workers of a secondary upstream supplier, the subject firm must produce for a certified customer a component part of the article that was the basis for the customers' certification.

In this case, however, the subject firm does not act as an upstream supplier, because graphite and carbon parts do not form a component part of petroleum products. Thus the subject firm workers are not eligible under secondary impact as suppliers to companies producing petroleum fuel.

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 10th day of December, 2009.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.