2010-12897. National Briquetting Corporation, a Subsidiary of Harsco, Also Known as Performix East Chicago, East Chicago, IN; Notice of Negative Determination Regarding Application for Reconsideration

By application dated May 11, 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 the subject firm. The denial notice was signed on April 16, 2010, 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 negative determination of the TAA petition filed on behalf of workers at National Briquetting Corporation, a subsidiary of Harsco, also known as Performix East Chicago, East Chicago, Indiana, was based on the finding that there has been no increase in imports by the subject firm or its customers, or a shift/acquisition to a foreign country by the subject firm; and that the subject firm did not produce an article or supply a service that was used by a firm with a TAA-certified worker group in production of an article that was the basis for TAA certification.

In the request for reconsideration the petitioner stated that the workers of the subject firm should be eligible for TAA because of an increase in slag conditioner (another product of the subject firm) being exported to a foreign firm that is one of the subject firm's primary customers, and that has itself begun to do the processing that had previously been done by the subject firm.

However, the conducting by a foreign customer in a foreign country of a production process formerly carried out in the United States by the subject firm cannot be the basis for certification of the subject firm since: (1) The subject firm has not imported the products like and directly competitive with those it formerly produced—the products are being manufactured in an offshore location and, rather than being imported into this country, are being consumed outside of the United States; and (2) the customer itself and not the subject firm has shifted production to an offshore location.

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 14th day of May 2010.

Del Min Amy Chen,

Certifying Officer, Division of Trade Adjustment Assistance.