2011-2966. Bob Evans Farms, Inc., an Ohio Corporation, a Subsidiary of Bob Evans Farms, Inc., a Delaware Corporation, Galva, Illinois; Notice of Negative Determination Regarding Application for Reconsideration

By application dated November 12, 2010, 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 Bob Evans Farms, Inc., an Ohio Corporation, a subsidiary of Bob Evans Farms, Inc., a Delaware Corporation, Galva, Illinois. The negative determination was issued on October 15, 2010, and the Notice of Determination was published in the Federal Register on November 3, 2010 (75 FR 67773). The workers produce sausage rolls and links. The petitioner alleged that worker separations are due to increased imports of sows.

The negative determination was issued based on the findings that there have not been increased imports of articles like or directly competitive with those produced by the subject firm, there has not been a shift of production by the subject firm to a foreign country, and the workers are not adversely-affected secondary workers.

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 request for reconsideration states that “with the increased importation of sows (the main component in the production of pork sausage) from Canada, the cost of production of the finished sausage product increased. The workers' hours of production were decreased due to the cost of importation of Canadian sows to the Galva, Illinois plant.” Because this allegation is identical to the petition allegation and has been addressed in the initial investigation, 29 CFR 90.18(c)(1) and (2) have not been met.

The request for reconsideration also infers that increased imports of a component part (sows) are a basis for certification of a worker group that produces the finished article (sausage).

The initial determination was based on the finding that there have not been increased imports of articles like or directly competitive with the sausage rolls or links produced by the subject firm. 29 CFR 90.2 states that “like or directly competitive means that like articles are those which are substantially identical in inherent or intrinsic characteristics (i.e., materials from which the articles are made, appearance, quality, texture, etc.); and directly competitive articles are those, although not substantially identical in their inherent or intrinsic characteristics, are substantially equivalent for commercial purposes (i.e., adapted to the same uses and essentially interchangeable therefore).” Because sows are neither like nor directly competitive with sausage rolls or links, the certification of a worker group engaged in the production of finished articles (sausage rolls and links) cannot be based on increased imports of components (sows). Therefore, 29 CFR 90.18(c)(3) has not been met.

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 26th day of January, 2011.

Del Min Amy Chen,

Certifying Officer, Office of Trade Adjustment Assistance.