[Federal Register Volume 73, Number 52 (Monday, March 17, 2008)]
[Notices]
[Pages 14272-14273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5227]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-62,333]


Liberty Fibers Corporation, Lowland, TN; Notice of Negative 
Determination on Reconsideration

    On December 11, 2007, the Department of Labor (Department) issued 
an Affirmative Determination Regarding Application for Reconsideration 
for workers and former workers of Liberty Fibers Corporation, Lowland, 
Tennessee (the subject firm). The Department's Notice of affirmative 
determination was published in the Federal Register on December 19, 
2007 (72 FR 71962).
    A certification for Trade Adjustment Assistance (TAA) and 
Alternative Trade Adjustment Assistance (ATAA) applicable to workers at 
the subject firm was issued on October 21, 2005 and remained valid 
until October 21, 2007 (TA-W-58,039). The certification was based on 
the Department's finding that the subject workers produced rayon staple 
fiber and that increased imports of articles like or directly 
competitive with those produced by the subject firm contributed 
importantly to subject firm sales or production declines and to 
workers' separations.
    On August 24, 2007, a TAA/ATAA petition (TA-W-62,049) was filed by 
a company official on behalf of workers and former workers of the 
subject firm. The petition was withdrawn on August 29, 2007. The 
Department issued a Notice of Termination of Investigation on September 
4, 2007.
    On October 22, 2007, a TAA/ATAA petition was filed by a company 
official on behalf of workers and former workers of the subject firm 
(TA-W-62,333). The petition stated that the subject firm produced rayon 
staple fiber, the subject firm closed on September 26, 2005, and that 
``Five (5) employees remain in the employment of the company to assist 
the bankruptcy trustee. The remaining employees will be laid off in the 
next 6-9 months.''
    The initial determination, issued on November 13, 2007, stated that 
the workers performed maintenance of a closed fiber production 
facility, that the workers no longer support a firm or appropriate 
subdivision that produces an article domestically, and, thus, the 
subject worker group cannot be considered import impacted or affected 
by a shift in production of an article.
    The request for reconsideration stated that the subject firm ceased 
operations in September 2005, that a Chapter 7 bankruptcy (dissolution) 
trustee was appointed in November 2005, and that the trustee retained 
the service of several employees to assist in the settlement of the 
corporation's estate. The request also stated that, with regards to 
petition TA-W-58,039, the Department ``accurately designated the loss 
of those permanent jobs to be the result of increased imports 
activity'' and asserts that workers covered by petition TA-W-62,333 
should be eligible to apply for TAA and ATAA on the same basis 
(increased imports).
    In order to be certified as eligible to apply for adjustment 
assistance under section 223 of the Trade Act of 1974, the petitioning 
group must work for a firm or appropriate subdivision that produces an 
article domestically, and there must be a relationship between the 
workers' work and the article produced by the workers' firm or 
appropriate subdivision.
    Under section 223(a) of the Trade Act of 1974, as amended, TAA 
certification may be made if the following criteria are met:

    Section (a)(2)(A)--
    A. A significant number or proportion of the workers in such 
workers' firm, or an appropriate subdivision of the firm, have 
become totally or partially separated, or are threatened to become 
totally or partially separated; and
    B. The sales or production, or both, of such firm or subdivision 
have decreased absolutely; and
    C. Increased imports of articles like or directly competitive 
with articles produced by such firm or subdivision have contributed 
importantly to such workers' separation or threat of separation and 
to the decline in sales or production of such firm or subdivision; 
or
    Section (a)(2)(B)--
    A. A significant number or proportion of the workers in such 
workers' firm, or an appropriate subdivision of the firm, have 
become totally or partially separated, or are threatened to become 
totally or partially separated; and
    B. There has been a shift in production by such workers' firm or 
subdivision to a foreign country of articles like or directly 
competitive with articles which are produced by such firm or 
subdivision; and
    C. One of the following must be satisfied:
    1. the country to which the workers' firm has shifted production 
of the articles is a party to a free trade agreement with the United 
States; or
    2. the country to which the workers' firm has shifted production 
of the articles is a beneficiary country under the Andean Trade 
Preference Act, African Growth and Opportunity Act, or the Caribbean 
Basin Economic Recovery Act; or
    3. there has been or is likely to be an increase in imports of 
articles that are like or directly competitive with articles which 
are or were produced by such firm or subdivision.

    Because the request for reconsideration asserts that the workers 
covered by TA-W-62,333 should be certified for TAA and ATAA for the 
same reason that the workers covered by TA-W-58,039 were certified 
(increased imports), the Department investigated whether the criteria 
set forth in section (a)(2)(A) were met.
    The Section (a)(2)(A) requires that ``imports of articles like or 
directly competitive with articles produced by such firm or subdivision 
have increased'' and increased imports must have ``contributed 
importantly to such workers' separation or threat of separation and to 
the decline in sales or production of such firm or subdivision.''
    To be certified based on increased imports, the Department must 
find that increased imports is a cause that contributed importantly to 
a two-part effect: the workers' separation or threat of separation, and 
the decline in subject firm sales or production. Because the cause must 
precede the effect, it follows that increased imports must occur before 
or coincide with the subject firm's sales or production decline, and, 
that without that effect, causality cannot be established.
    ``Increased imports,'' defined at 29 CFR 97.2, means ``that imports 
have increased either absolutely or relative to domestic production 
compared to a representative base period. The representative base 
period shall be one year consisting of the four quarters immediately 
preceding the date which is twelve months prior to the date of the 
petition.''
    Because the date of the petition is October 22, 2007, the relevant 
period (the twelve months prior to the petition date) is October 2006 
through September 2007 and the representative base period is October 
2005 through September 2006. Therefore, for there to be increased 
imports, imports during October 2006 through September 2007 would have 
to increase compared to the period of October 2005 through September 
2006.
    During the reconsideration investigation, the Department confirmed 
that the subject firm ceased operation and closed permanently in 
September 2005, that the subject firm filed for

[[Page 14273]]

Chapter 11 bankruptcy (reorganization) on September 29, 2005, and that 
the case was converted to Chapter 7 bankruptcy (dissolution) on 
November 21, 2005.
    Because there were no subject firm sales or production since 
September 2005, the Department finds that there could not have been any 
decline in sales or production at the subject firm during the relevant 
period. Consequently, increased imports could not have ``contributed 
importantly to * * * the decline in sales or production of'' the 
subject firm. Accordingly, the subject workers cannot be certified 
under section 222(a)(2)(A).
    Further, the Department finds that because the subject firm 
permanently closed in September 2005, there was not production that 
could have shifted to a foreign country. Accordingly, the subject 
workers cannot be certified under section 222(a)(2)(B).
    Although the request for reconsideration did not allege that the 
subject workers were adversely affected as secondary workers (workers 
of a firm that supply component parts to a TAA-certified company or 
finished or assembled for a TAA-certified company), the Department 
expanded the investigation to determine whether they would be eligible 
to apply for TAA on this basis. Such a certification, under section 
223(b)(2), must be based in the certification of a primary firm.
    Prior to the closure in September 2005, the subject firm produced a 
final article (rayon staple fiber) and, therefore, neither supplied 
component parts to other companies nor finished or assembled an article 
for other companies. Even if the subject firm did engage in such 
activity, the activity occurred prior to September 2005, and, 
therefore, occurred prior to the relevant period and cannot be a basis 
for certification. Accordingly, the subject workers cannot be certified 
under section 223(b)(2).
    In order for the Department to issue a certification of eligibility 
to apply for Alternative Trade Adjustment Assistance (ATAA), the 
subject worker group must be certified eligible to apply for TAA. Since 
the petitioning worker group is denied eligibility to apply for TAA, 
the subject workers cannot be certified eligible for ATAA.

Conclusion

    After careful reconsideration, I affirm the original notice of 
negative determination of eligibility to apply for worker adjustment 
assistance for workers and former workers of Liberty Fibers 
Corporation, Lowland, Tennessee.

    Signed at Washington, DC, this 7th day of March 2008.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
 [FR Doc. E8-5227 Filed 3-14-08; 8:45 am]
BILLING CODE 4510-FN-P