E9-7101. Tracy Evans Ltd, New York, NY; Notice of Negative Determination Regarding Application for Reconsideration

By application dated March 9, 2009, petitioners 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 January 27, 2009 and published in the Federal Register on February 23, 2009 (74 FR 8116).

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 which was based on the finding that imports of designs and patterns for women's garments did not contribute importantly to worker separations at the subject plant and there was no shift of production to a country that is a party to a free trade agreement with the United States or a beneficiary country. The “contributed importantly” test is generally demonstrated through a survey of the workers' firm's declining domestic customers. In this instance, the subject firm did not sell designs and patterns for women's garments to outside domestic customers, thus a survey was not conducted. The subject firm did not import designs and patterns for women's garments into the United States during the relevant period.

In the request for reconsideration the petitioner alleged that Tracy Evans transferred its U.S. operations to a foreign country. Furthermore, the petitioner referred to an article reporting a “problematic industrial trend of garment jobs being outsourced to foreign countries within the garment district in New York City.”

When assessing eligibility for TAA, the Department exclusively considers production of articles like or directly competitive with the ones manufactured at the subject firm during the relevant period (one year prior to the date of the petition). The issue of a shift in production by the subject firm to a foreign country was addressed during the initial investigation. It was revealed that the subject firm did not shift production of designs and patterns for women's garments during 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 13th day of March, 2009.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.