[Federal Register Volume 59, Number 104 (Wednesday, June 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13297]


[[Page Unknown]]

[Federal Register: June 1, 1994]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR
[TA-W-29,554]

 

O&K, Incorporated, Batavia, NY; Notice of Negative Determination 
Regarding Application for Reconsideration

    By an application dated May 13, 1994, Local #78 of the 
International Brotherhood of Boilermakers requested administrative 
reconsideration of the subject petition for trade adjustment assistance 
(TAA). The denial notice was signed on April 29, 1994 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 investigation findings show that the workers performed 
warehousing, material handling including parts supply, technical 
services and general administrative functions for the sales and service 
of O&K front end loaders.
    The Department's denial was based on the fact that the workers do 
not produce an article within the meaning of section 222(3) of the 
Trade Act. The Department has consistently determined that the 
performance of services does not constitute the production of an 
article and this determination has been upheld in the U.S. Court of 
Appeals. Accordingly, warehousing, material handling and general 
administrative duties, by themselves, do not constitute the production 
of an article.
    All production of articles at Batavia ceased in March, 1992. 
Section 223(b)(1) of the Trade Act does not permit the certification of 
workers who were laid off prior to one year of the date of the workers' 
petition. The date of the union's petition is February 4, 1994. Workers 
laid off with the cessation of production at Batavia in March 1992 
could not be covered under any certification whose petition is dated 
February 4, 1994.
    The investigation files show that the workers were initially 
certified for TAA under TA-W-24,230, issued on June 14, 1990, when the 
workers were still producing front end loaders. However, this is not 
the case now since Batavia's function has changed from a producer to an 
importer of front end loaders. For importers, increased imports should 
have a positive impact on employment not the other way around.
    The worker adjustment assistance program was not intended for 
everyone who is in some way affected by imports but only for those 
workers who were producing an article in the relevant period and were 
adversely affected because of increased imports of like or directly 
competitive products which contributed importantly to declines in 
employment and sales or production at the workers' firm.

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 at Washington, DC, this 23rd day of May 1994.
Robert O. Deslongchamps,
Director, Office of Legislation and Actuarial Service, Unemployment 
Insurance Service.
[FR Doc. 94-13297 Filed 5-31-94; 8:45 am]
BILLING CODE 4510-30-M