03-8349. United Container Machinery, Glen Arm, MD; Notice of Negative Determination Regarding Application for Reconsideration

By application January 1, 2003, 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 November 29, 2002, and published in the Federal Register on December 23, 2002 (67 FR 78257).

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 mis-interpretation of facts or of the law justified reconsideration of the decision.

The petition for the workers of United Container Machinery, Glen Arm, Maryland was denied because the “contributed importantly” group eligibility requirement of section 222(3) of the Trade Act of 1974, as amended, was not met. The “contributed importantly” test is generally demonstrated through a survey of customers of the workers' firm. The survey revealed that none of the respondents increased their purchases of imported machinery for corrugated boxes.

The petitioner states that the subject firm workers were previously certified for trade adjustment assistance in 1998, and thus appears to allege that they should be considered eligible currently.

The Department considers import impact in terms of the relevant period of the current investigation; therefore import impact as established in a previous investigation that is outside the relevant period is irrelevant.

The petitioner also states that the company did not file a new petition on behalf of subject firm workers when the previous certification expired.

This fact has no bearing on eligibility of subject firm workers for trade adjustment assistance.

The petitioner asserts that an affiliate of the subject firm imports competitive products from Hungary.

In response to this allegation, a company official clarified that United Container Machinery did merge with another company in the late summer of 2002, and that the merger did include the acquisition of a Hungarian facility. He also verified that the foreign firm has imported a small percentage of their production to the United States for some time; however, imports of products produced from this facility have not increased since the merger, and so have not contributed to layoffs at the subject firm.

The petitioner asserts that a foreign competitor sells competitive products to at least two customers of the subject firm.

When contacted about this allegation, the company official stated that the two companies mentioned comprised a very small percentage of the subject firm's sales declines. In fact, according to the company official, the layoffs were not brought about by sales and production declines, but rather by a shift in production to two affiliated domestic facilities.

The petitioner also stated that United Container Machinery acted as a selling agent of competitive machinery and that this role “in the long run affected some of our prospective sales.”

The company official that commented on this stated that the subject firm had taken part in a partnership with several foreign firms to sell competitive corrugated box machinery, receiving a commission for their services. However, the imports resulting from the partnership between the subject firm and the foreign firms constituted a very small amount relative to production at the Glen Arm facility. The company official further clarified that imports declined for the twelve months ending August of 2002, when the partnership ceased.

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 25th day of March 2003.

Edward A. Tomchick,

Director, Division of Trade Adjustment Assistance.