[Federal Register Volume 76, Number 220 (Tuesday, November 15, 2011)]
[Notices]
[Pages 70761-70765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29397]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-72,673]


Weather Shield Manufacturing, Inc. Corporate Office, Medford, WI; 
Notice of Negative Determination on Remand

    On August 3, 2011, the United States Court of International Trade 
(USCIT) granted the Department of Labor's request for voluntary remand 
to conduct further investigation and to submit a new administrative 
record in Former Employees of Weather Shield Manufacturing, Inc. v. 
United States Secretary of Labor (Court No. 10-00299) that contains 
information obtained during both the previous investigations and the 
latest investigation of this matter.
    On July 16, 2010, the Department of Labor (Department) issued a 
Negative Determination regarding eligibility to apply for Trade 
Adjustment Assistance (TAA) applicable to workers and former workers of 
Weather Shield Manufacturing, Inc., Corporate Office, Medford, 
Wisconsin (subject facility). AR 598. Workers at the subject facility 
(subject worker group) supply administrative support services related 
to the production of doors and windows which takes place at various 
domestic locations of Weather Shield Manufacturing, Inc. (subject 
firm). The Department's notice of determination was published in the 
Federal Register on August 2, 2010 (75 FR 45163). AR 611.

Background--Petition TA-W-64,725

    On December 17, 2008, workers filed a petition for TAA and 
Alternative Trade Adjustment Assistance (ATAA) on behalf of workers and 
former workers of Weather Shield Manufacturing, Inc., Corporate Office, 
Medford, Wisconsin (petition TA-W-64,725--hereafter referred to as 
Weather Shield I). AR 1, 4, 6.
    The Department determined in the initial and reconsideration 
investigations in Weather Shield I that the subject firm did not shift 
production to a foreign country and that imports of articles like or 
directly competitive with those produced by the subject firm did not 
contribute importantly to worker separations at the subject facility. 
AR 17, 27, 69, 75. A sample survey of the subject firm's declining 
customers conducted both in the initial and administrative 
reconsideration investigations revealed negligible imports of products 
like or directly competitive with those produced by workers at the 
subject firm. AR 42, 44, 45, 51, 54, 64, 69, 104, 105.
    On January 19, 2010, Plaintiffs filed a complaint with the USCIT in 
which they alleged that their separations were attributable to 
increased customer imports. In order to conduct a further investigation 
to address Plaintiff allegations, the Department requested a voluntary 
remand. During that remand investigation, the Department obtained a 
list of all the customers of the subject firm (AR 145) and conducted a 
larger sample customer survey to determine whether or not there were 
increased customer imports during the relevant time period (calendar 
years 2007 and 2008) of articles like or directly competitive with 
doors and/or windows. AR 279-530. The survey revealed that customer 
imports had increased during the relevant time period. AR 1345.
    Accordingly, the Department issued a Revised Determination on 
Remand on August 9, 2010, applicable to workers at

[[Page 70762]]

the subject facility who became totally or partially separated from 
employment on or after December 17, 2007, through August 9, 2012, which 
granted certification of eligibility to apply for TAA and ATAA 
benefits. Under the Department's practice, certifications typically 
cover workers separated on or after the impact date, as defined in 29 
CFR 90.2, and ending at the expiration of the two-year period following 
the determination. Therefore, the Weather Shield I certification 
covered workers separated in the year preceding the date of the 
petition and continued for two years after the date of certification. 
The Department's Notice of Revised Determination on Remand was 
published in the Federal Register on August 23, 2010 (75 FR 51851). AR 
1436.

Initial Investigation--Petition TA-W-72,673

    On October 23, 2009, workers filed a petition for TAA on behalf of 
workers and former workers of Weather Shield Manufacturing, Inc., 
Corporate Office, Medford, Wisconsin (petition TA-W-72,673--hereafter 
referred to as Weather Shield II). AR 534, 539. The petitioners in 
Weather Shield II stated on the petition that worker separations were 
due to ``the economy'' and that the subject firm operated several 
domestic facilities and sought certification under the expanded 
certification requirements for TAA under the TAA program as amended by 
the Trade and Globalization Act Adjustment Assistance Act of 2009 which 
provided a higher level of benefits for certified workers.
    During the investigation of the Weather Shield II petition, the 
subject firm confirmed that a significant number or proportion of the 
workers at the subject facility had been totally or partially separated 
from employment, or threatened with such separation. AR 585, 593. 
According to the subject firm, the separations were due to the collapse 
of the domestic housing market and the corresponding decreased demand 
for windows and doors used in residential units. AR 585, 593, 594.
    The investigation also revealed that there was not a shift to or 
acquisition from a foreign country by the subject firm in the supply of 
services like or directly competitive with the administrative support 
services supplied by the subject worker group. AR 585, 593, 594. 
Therefore, the Department proceeded with a customer survey to determine 
if the worker separations were attributable to increased imports.
    The Department surveyed the subject firm's major declining 
customers regarding their purchases of doors and/or windows in the 
relevant period. AR 562-584. The survey revealed that customer imports 
of articles like or directly competitive with those produced by the 
subject firm declined in the relevant period, both in absolute terms 
and relative to the purchases made from the subject firm. AR 587. The 
Department determined that, for the relevant period of the Weather 
Shield II petition, the separations in the subject worker group were 
not related to an increase in imports.
    The customers selected for the survey were chosen based on the 
complete customer list obtained in the investigation of Weather Shield 
I and the results of the customer surveys conducted during that 
investigation. AR 145. Reviewing information already on record enabled 
the Department to select a representative sample of customers, the data 
of which was sufficient to reach the initial determination on the 
petition. Selecting which customers to survey based on the survey 
results collected in Weather Shield I provided more clarity regarding 
the approximate size of the surveyed customers as the size of each 
customer was not specified by the subject firm. AR 145, 279-530, 1345.
    In addition, data collected on U.S. aggregate imports of articles 
like or directly competitive with those produced by the subject firm 
showed a decline between 2008 and 2009. AR 591, 592.
    Based on this information, the Department issued a negative 
determination on July 16, 2010. The Department's Notice of Negative 
Determination was published in the Federal Register on August 2, 2010 
(75 FR 45163). AR 611.

Reconsideration Investigation--Petition TA-W-72,673

    By application dated August 23, 2010, a petitioner requested 
administrative reconsideration on the Department's negative 
determination. AR 612, 620, 627, 635, 642. In the application, the 
petitioner stated that the factual circumstances in TA-W-72,673 are the 
same as in petition TA-W-64,725 and that the current petition should 
therefore also be certified.
    Because the petitioner did not supply facts not previously 
considered, provide documentation to show that the determination was 
erroneous, or show that there was a misinterpretation of facts or the 
law, the Department determined that administrative reconsideration 
could not be granted, in accordance with 29 CFR 90.18(c), and issued a 
Notice of Negative Determination Regarding Application for 
Reconsideration for the subject worker group on September 10, 2010. AR 
649.
    The Department explained that because the petition date of TA-W-
64,725 is December 17, 2008 and the petition date of TA-W-72,673 is 
October 23, 2009, the investigation periods in the two cases are 
different and that the findings in TA-W-64,725 cannot be used as the 
basis for certification of TA-W-72,673. The Department's Notice of 
Negative Determination Regarding Application for Reconsideration was 
published in the Federal Register on September 21, 2010 (75 FR 57519). 
AR 653.

Remand Investigation--Petition TA-W-72,673

    The petitioners then filed a complaint with the USCIT on October 8, 
2010, and argued the same allegations as in their request for 
administrative reconsideration. The Department determined that further 
investigation under judicial review was not justified, for the same 
reasons that the application for administrative reconsideration was not 
granted, and filed an administrative record that consisted of the 
materials upon which the Department relied in making its determination 
with regards to the subject worker group's eligibility to apply for 
TAA.
    In Plaintiffs' Motion to Supplement the Administrative Record, 
dated March 30, 2011, Plaintiffs indicated that the administrative 
record did not include documentation that adequately supported the 
negative determination. Specifically, the Plaintiffs pointed to TAA 
certifications of other door and window manufacturers, and provided 
lists of the ``Top 100 Window Manufacturers'' and of door and window 
dealers with which the subject firm competed. In addition, the 
Plaintiffs indicated that the record was missing material that was 
collected in the Weather Shield I initial and remand investigations and 
that was considered in the Weather Shield II investigation.
    On May 2, 2011, the Department filed a Motion for Voluntary Remand 
in which it sought to supplement the administrative record with 
material that was received during the investigation of Weather Shield I 
and to provide a thorough explanation as to how it relied on the 
omitted documents to make its determination.
    The Department amended the administrative record on June 3, 2011 to 
include documents from the Weather Shield I initial and remand 
investigations that supported the

[[Page 70763]]

determination in Weather Shield II. Namely, the Department added to the 
record the customer surveys received during the remand investigation; 
the complete customer list obtained during the remand investigation; 
the ``Non-Production Questionnaire'' (OMB No. 1205-0447) and 
``Confidential Data Request'' forms (OMB No. 1205-0342) received during 
the initial investigation; email correspondence in which the subject 
firm provided to the Department sales figures during the remand 
investigation; and the Department's investigative report from the 
initial investigation. AR 655, 657, 662, 667, 673, 675. The Department 
also supplemented the record with an explanation regarding the 
relevance of these documents. AR 740.
    The record shows that while the subject worker group covered by 
Weather Shield I is the same as the subject worker group covered by 
Weather Shield II, the investigations of the subject worker group cover 
different time periods. In Weather Shield I, the petition date is 
December 18, 2008, making the relevant period calendar year 2008 and 
the representative base period calendar year 2007. In Weather Shield 
II, the petition date is October 23, 2009, making the relevant period 
October 2008 through September 2009 and the representative base period 
October 2007 through September 2008.
    This distinction is important in that 29 CFR 90.2 states that 
``Increased imports 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 the twelve 
month prior to the date of the petition.'' (Emphasis added).
    The remand investigation of Weather Shield I and the initial 
investigation of Weather Shield II were conducted concurrently because 
the USCIT complaint in Weather Shield I was filed on January 19, 2010, 
approximately two and half months after the petition to the Department 
for Weather Shield II was filed on October 23, 2009. AR 534. AR 
Therefore, the Department used some of the documents already in its 
possession that were obtained in the initial and remand investigations 
of Weather Shield I in determining whether the subject worker group 
covered under the Weather Shield II petition met the eligibility 
criteria for certification. AR 655, 657, 662, 667, 673, 675.
    Because of the different relevant time periods for each 
investigation, the Department considered only information that could 
not have changed from one set of time periods to the next. For example, 
in order to determine whether subject firm sales had declined, the 
Department collected from the subject firm sales data for calendar 
2009, which was compared to the 2008 data already on record. Similarly, 
as explained above, the Department used the complete customer list 
obtained during the course of the Weather Shield I remand investigation 
to conduct the survey in Weather Shield II. The Department's Notice of 
Amended Negative Determination was published in the Federal Register on 
June 15, 2011 (76 FR 35026). AR 1438.
    On July 5, 2011, the Plaintiffs filed a Memorandum of Points and 
Authorities in Support of Plaintiffs' Amended Motion for Judgment on 
the Agency Record in which they asked the Department to conduct further 
investigation and apply the same methodology as in the Weather Shield I 
remand investigation in regards to administering customer surveys and 
determining import competition.
    On August 3, 2011, the Department requested a voluntary remand to 
complete the administrative record with all the contents of Weather 
Shield I, to reopen the case to conduct further investigation, and to 
permit the Plaintiffs to submit evidence.
    On September 2, 2011, the Plaintiffs submitted additional 
information in support of their claims. AR 1023, 1114. In their letter, 
the Plaintiffs reiterated the allegations supplied in the October 8, 
2010 USCIT complaint, the March 30, 2011 Motion, and the July 5, 2011 
Memorandum and provided information to show an overlap between Weather 
Shield's customers and those of other domestic firms that allegedly 
import from foreign countries articles like or directly competitive 
with doors and/or windows. AR 1023, 1114. The Plaintiffs alleged that 
the subject firm competed with other U.S. window and door 
manufacturers, to the workers of which the Department granted TAA 
certifications, and pointed to possible import competition between the 
subject firm and its competitors. AR 1023, 1114.
    The Plaintiffs stated that the Department should: 1. expand the 
record to include data from additional customers by conducting more 
surveys, including surveying all the same customers that were 
identified in the Weather Shield I remand; 2. show that the surveyed 
customers account for a significant percentage of the subject firm's 
sales decline; 3. collect additional information from one of the 
customers that was surveyed in the initial investigation regarding the 
information reported on the survey in order to determine whether this 
customer's purchases from other domestic firms were imported or 
domestic, and establish that the decline in sales to this customer by 
the subject firm was not attributable to an increase in imports; 4. 
take into consideration the TAA certifications of alleged competitors 
Jeld-Wen Premium Doors, Springs Window Fashions, Woodgrain Millworks, 
and Simpson Door Company and how the activities of these firms could 
have created import competition for the subject firm; 5. examine the 
competition that occurs between the ``Top 100 Window Manufacturers'' 
and look for overlapping customers between Weather Shield and its 
competitors, especially those that employed TAA certified worker 
groups. AR 1023, 1114.
    The Weather Shield I petition was filed under the Trade Adjustment 
Assistance Reform Act of 2002 requirements for TAA certification 
whereas the Weather Shield II petition was filed under the Trade and 
Globalization Adjustment Assistance Act of 2009 requirements. Under the 
2009 amendments, the group eligibility requirements for workers of a 
Firm under Section 222(a) of the Act, 19 U.S.C. 2272(a), can be 
satisfied if the following criteria are met:

    (1) A significant number or proportion of the workers in such 
workers' firm have become totally or partially separated, or are 
threatened to become totally or partially separated; and
    (2)(A)(i) the sales or production, or both, of such firm have 
decreased absolutely;
    (ii)(I) imports of articles or services like or directly 
competitive with articles produced or services supplied by such firm 
have increased;
    (II) imports of articles like or directly competitive with 
articles--
    (aa) into which one or more component parts produced by such 
firm are directly incorporated, or
    (bb) which are produced directly using services supplied by such 
firm, have increased; or
    (III) imports of articles directly incorporating one or more 
component parts produced outside the United States that are like or 
directly competitive with imports of articles incorporating one or 
more component parts produced by such firm have increased; and
    (iii) the increase in imports described in clause (ii) 
contributed importantly to such workers' separation or threat of 
separation and to the decline in the sales or production of such 
firm; or
    (B)(i)(I) there has been a shift by such workers' firm to a 
foreign country in the production of articles or the supply of 
services like or directly competitive with articles which are 
produced or services which are supplied by such firm; or
    (II) such workers' firm has acquired from a foreign country 
articles or services that are

[[Page 70764]]

like or directly competitive with articles which are produced or 
services which are supplied by such firm; and
    (ii) the shift described in clause (i)(I) or the acquisition of 
articles or services described in clause (i)(II) contributed 
importantly to such workers' separation or threat of separation.

    Pursuant to the August 3, 2011 remand, the Department collected 
additional information from the subject firm and the Plaintiffs, 
conducted an expanded customer survey, and collected aggregate U.S. 
import data pertaining to articles like or directly competitive with 
those produced at the subject firm.
    The Department also confirmed previously collected information from 
the subject firm which revealed updated information regarding the 
shutdown of production facilities and sales figures during the relevant 
period. The corrected information revealed that the subject firm 
production facilities in Park Falls, Wisconsin, Ladysmith, Wisconsin, 
and Medford, Wisconsin had not shut down production in early 2009, as 
previously stated by the subject firm in the initial investigation of 
Weather Shield I. AR 779.
    Additionally, the new information revealed that sales of the 
subject firm increased in the relevant time period. AR 812. 
Nonetheless, the Department conducted a customer survey to determine 
whether possible declines in production at the subject firm had been 
caused by an increase in import competition. AR 823-990, 1243-1324, 
1325-1344.
    The Department surveyed a total of 16 of the subject firm's 
customers regarding their purchases of doors and/or windows in 2008 and 
2009. AR 823-996, 1254-1312, 1326-1341. The survey selection was based 
on information provided by the subject firm pertaining to its top 
customers during the relevant time period. AR 145, 785. The survey also 
included the three customers that were surveyed in the initial 
investigation of Weather Shield II. AR 823, 1243, 1313-1324, 1325, 
1342, 1343.
    The data collected from the 19 surveyed customers demonstrated that 
imports declined at a much faster rate than purchases made from the 
subject firm and other domestic firms between 2009 and the 
representative base period. AR 1344. Although purchases from the 
subject firm by these customers declined, because overall subject firm 
sales increased in the relevant time period, these customers did not 
account for any sales declines at the subject firm. AR 1344.
    The Department collected U.S. aggregate import data of wood window 
and door manufacturing (NAICS 321911) and metal window and door 
manufacturing (NAICS 332321) which showed an overall decrease in 
imports. The first group of data for wood window and door manufacturing 
shows a decline of 36 percent from 2008 to 2009 (imports only) and 10 
percent (imports to shipments) in the relevant time period. The second 
group of data for metal window and door manufacturing shows a decline 
of 34 percent (imports only) and nine percent (imports to shipments) in 
the relevant time period. AR 1346.
    The Plaintiffs also asked the Department to determine whether the 
subject firm may have competed with imported doors and/or windows of 
other domestic suppliers of a specific customer of the subject firm 
that was surveyed in the initial investigation. AR 1023, 1114. The 
Department solicited information from this customer regarding the 
origin of the products it purchases from other domestic firms. AR 823-
852, 997. The customer explained that it does not track import 
information on products purchased from domestic suppliers. AR 823-852. 
The Department conducted further investigation regarding the domestic 
suppliers of this customer to determine if any of the suppliers 
employed workers that had been certified eligible for TAA benefits in 
the relevant time period. AR 998. The investigation revealed that this 
customer had one supplier that sold products like or directly 
competitive with those produced by the subject firm whose workers had 
been certified eligible for TAA. AR 998.
    The Department also conducted a search to reveal how many of the 
firms on the ``Top 100 Window Manufacturers'' list provided by the 
Plaintiffs employed worker groups that were certified for TAA in the 
relevant time period. AR 1354. The search revealed that only six firms 
(nine locations total) employed worker groups that had been certified 
eligible to apply for TAA. AR 1354. Out of the nine locations, the 
workers of two locations received TAA certifications due to increased 
imports during the relevant time period (Jeld-Wen Premium Doors, 
Oshwosh, WI, TA-W-71,644; certified for TAA on July 21, 2009 and 
Woodgrain Millworks, Inc., Nampa, ID, TA-W-63,263; certified for TAA on 
May 9, 2009). AR 1354. Two certifications were granted based on shifts 
in production abroad, three for increased imports that took place prior 
to the relevant time period of this investigation, one for imports of 
an article not like or directly competitive with the articles produced 
at the subject firm, and one on secondary basis. AR 1354.
    For each of the two cases above that received a TAA certification, 
Jeld-Wen Premium Doors and Woodgrain Millworks, Inc., the Department 
compared the customer lists provided by each of these firms to that 
provided by the subject firm. The comparison revealed that these 
alleged competitors and the subject firm do not have any customers in 
common. AR 1363-1431. Therefore, the Department could not verify the 
Plaintiffs' claim that the subject firm and the alleged competitors 
directly competed in the same markets and had no basis for finding that 
these firms competed in the same market area.
    Additionally, the Department contacted an alleged competitor of the 
subject firm, Simpson Door Company, to confirm the Plaintiffs' claims 
that this firm shut down domestic operations due to increased import 
competition. AR 1431A. According to the information provided, this firm 
has not ceased domestic production of doors and/or windows. AR 1431A. 
The Department also collected information regarding this firm's major 
domestic customers. AR 1431A. After comparing the customer list to that 
provided by the subject firm, it was revealed that the two firms only 
have one customer in common where articles from the two firms competed 
directly. AR 1431A. Therefore, the Plaintiffs' claim that the subject 
firm competed with Simpson Door Company's imported products during the 
relevant time period is not justified.
    Additionally, the investigation revealed that although workers at 
Springs Window Fashions, LLC, Montgomery, PA (TA-W-62,704) were 
certified for TAA in the relevant time period, this firm does not 
produce articles like or directly competitive with those produced at 
the subject firm so it could not have posed competition. AR 1350.
    Based on a careful review of previously submitted information and 
new information obtained during the remand investigation, the 
Department finds that worker separations at the subject firm were not 
caused by an increased reliance on imports of articles like or directly 
competitive with those produced by the subject firm. Therefore, the 
Department reaffirms that the petitioning workers have not met the 
eligibility criteria of Section 222(c) of the Trade Act of 1974, as 
amended.

Conclusion

    After careful reconsideration, I affirm the original notice of 
negative determination of eligibility to apply for worker adjustment 
assistance for

[[Page 70765]]

workers and former workers of Weather Shield Manufacturing, Inc., 
Corporate Office, Medford, Wisconsin.

    Signed in Washington, DC, on this 31st day of October, 2011
Elliott S. Kushner,
Certifying Officer, Office of Trade Adjustment Assistance.
[FR Doc. 2011-29397 Filed 11-14-11; 8:45 am]
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