E5-2944. VF Intimates, LP Johnstown, PA; Notice of Determination of Alternative Trade Adjustment Assistance on Remand

The U.S. Court of International Trade (USCIT) granted the Department of Labor's motion for a voluntary remand for further investigation in Former Employees of VF Intimates, Inc. v. Elaine Chao, U.S. Secretary of Labor, No. 05-00052, on April 4, 2005.

Workers of VF Intimates, LP, Johnstown, Pennsylvania were certified as eligible to apply for Trade Adjustment Assistance (TAA) on June 15, 2004. The Notice of determination was published in the Federal Register on April 1, 2005 (70 FR 16847). An Amended Certification Regarding Eligibility to Apply for Worker Adjustment Assistance for workers of the subject company was issued on July 21, 2004 and published in the Federal Register on August 4, 2004 (69 FR 47184).

By letter dated September 29, 2004, a company official requested that the Department consider certification for Alternative Trade Adjustment Assistance (ATAA) for workers and former workers covered by petition TA-W-54,952. The request was dismissed because the application for ATAA was not filed with the TAA petition, as required by the Secretary's interpretation of section 246 of the Trade Act, Training and Employment Guidance Letter No. 2-03 (August 6, 2003). 69 FR 60904, October 13, 2004.

By letter dated January 17, 2005, the company official appealed to the USCIT, asserting that the Department failed to meet certain administrative obligations by not conducting an ATAA investigation solely because the request for ATAA was not marked. Specifically, the company official alleges that the Department processed an incomplete petition, erroneously assumed that ATAA was not requested when the question was unmarked, and failed to provide petitioners with assistance and adequate opportunity to request ATAA because the requirements for applying are ambiguous.

Upon further consideration, the Department has determined that it is appropriate to investigate the workers' eligibility for ATAA benefits, given the circumstances as presented, in order to effectuate the purposes of the Trade Act of 1974, as amended. The group eligibility certification criteria for the ATAA program under section 246 the Trade Act of 1974, as amended, established that the Department must determine whether a significant number of workers in the workers' firm are 50 years of age or older, whether the workers in the workers' firm possess skills that are not easily transferable, and whether the competitive conditions within the workers' industry are adverse.

The remand investigation revealed that at least five percent of the workforce at the subject firm was at least fifty years of age as of the date of the petition (May 18, 2004), the workers possess skills that are not easily transferable, and competitive conditions within the industry are adverse.

Conclusion

After careful review of the facts, I conclude that the requirements of Section 246 of the Trade Act of 1974, as amended, have been met for workers at the subject firm. In accordance with the provisions of the Act, I make the following certification:

“All workers at VF Intimates, LP, Johnstown, Pennsylvania, who became “totally or partially separated from employment on or after March 6, 2004 through June 15, 2006, are eligible to apply for adjustment assistance under section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”

Signed at Washington, DC, this 19th day of May 2005.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.