2010-11274. Cummins Power Generation, Including On-Site Leased Workers of Adecco USA, Inc., Aerotek, Inc., the Bartech Group, Back Diamonds Networks, Entegee, Inc., DBA Midstates Technical, Manpower, Inc., Robert Half International, Summit Technical ...

By application dated March 22, 2010, a representative of the State of Minnesota 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 February 4, 2010, and published in the Federal Register on March 12, 2010 (75 FR 11925).

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 negative determination of the TAA petition filed on behalf of workers at Cummins Power Generation, Fridley, Minnesota, was based on the finding that the subject firm did not import articles like or directly competitive with the generators and transfer switches produced at the subject firm during 2007, 2008 or during January through May 2009, nor did it shift production of those articles abroad during the same period. The investigation also revealed that, during the relevant period, none of the major declining customers of the subject firm increased imports of articles like or directly competitive with generators and transfer switches produced at the subject firm while decreasing purchases from the subject firm. The investigation also revealed that the workers did not supply a component part that was used by a firm that employed a worker group currently eligible to apply for TAA.

The request for reconsideration included documents intended to “illustrate how a former employee [of the subject firm] * * * was adversely affected by trade activities and lost her position.” The “trade activities” referred to are the subject firm's use of H1B visas.

This argument errs in confusing the entry of foreign workers into the United States to produce articles at the subject firm with the importation of articles that are like or directly competitive with the articles produced by the subject firm. It is the importation of like or directly competitive articles (and not the entry of foreign workers to produce such articles) that can serve as the basis for a TAA certification.

The petitioner did not supply facts not previously considered or 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 April, 2010.

Del Min Amy Chen,

Certifying Officer, Division of Trade Adjustment Assistance.