Petitioner Type: Union
Impact Date:
Filed Date: 02/15/2008
Most Recent Update: 05/30/2008
Determination Date: 05/30/2008
Expiration Date:
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-62,853
IRVING FOREST PRODUCTS
NASHVILLE PLANTATION, MAINE
Notice of Negative Determination
Regarding Application for Reconsideration
By application dated July 12, 2008, the United Steel
Workers, Local 4-1310 (the Union) requested administrative
reconsideration of the Department's negative determination
regarding eligibility to apply for Trade Adjustment Assistance
(TAA) and Alternative Trade Adjustment Assistance (ATAA)
applicable to workers and former workers of Irving Forest
Products, Nashville Plantation, Maine (the subject firm). The
determination was signed on May 30, 2008. The Department’s
Notice of determination was published in the Federal Register on
June 16, 2008 (73 FR 34044). The workers produce lumber and
woodchips, and are not separately identifiable by product line.
The denial was based on the Department’s findings that the
subject firm did not import lumber or woodchips and did not
shift production of lumber or woodchips to a foreign country
during the relevant period.
A survey of the subject firm’s major declining customers
regarding their purchases of lumber and woodchips revealed that
most customers decreased imports during the relevant period and
that any imports did not contribute importantly to subject firm
sales and production declines.
Aggregate U.S. imports of coniferous lumber declined in
2007 compared with 2006, and continued to decline in January
2008 compared with the corresponding 2007 period. Aggregate
U.S. imports of both coniferous and non-coniferous wood in chips
or particles declined in 2007 compared with 2006, and declined
in January through February 2008 over the corresponding 2007
period.
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.
In the request for reconsideration, the Union asserts the
following three points:
1) with regards to the TAA group eligibility requirements
for directly-impacted workers, “the reasons for denial are
unfair as it relates to choosing 1 area from each section when
only the criteria from one section needs to be met”;
2) “We feel it is inaccurate to first look at the entire
United States aggregate imports of coniferous lumber” because in
order “for the Trade Act to protect the workers that it is
intended to protect it should be pliable in its review as it
relates to specific regions” and that the Department’s review
should consider that “trade may only have slowed over the past
12 months due to high transportation costs as well as equalizing
the value of the dollar while discounting the impact trade has
had leading up to the devestation of the lumber industry all
along the eastern seaboard”; and
3) the Department failed to receive information from the
subject firm regarding “the possible shift or planned shift in
production from it’s Nashville Plantation, Maine mill to it’s
other facilities”.
In order to apply for TAA, petitioners must satisfy the
group eligibility requirements for directly-impacted (primary)
workers under Section 222(a) the Trade Act of 1974, as amended.
The group eligibility requirements can be satisfied in one of
two ways, either Section (a)(2)(A) or Section (a)(2)(B).
In order to satisfy Section (a)(2)(A), all of the following
criteria must be met:
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.
In order to satisfy Section (a)(2)(B), all of the following
criteria must be met:
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.
The Union appears to assert that because the Department
identified in the negative determination two criteria that were
not met, the Department requires that, in order for a worker
group to be certified for TAA, both of the afore-mentioned
sections must be met.
In determining whether a worker group has met the criteria
set forth in the Trade Act of 1974, as amended, the Department
investigates whether the worker group has met the criteria of
either Section (a)(2)(A) or Section (a)(2)(B), not both. If the
criteria of either Section are met, the Department will certify
the worker group as eligible to apply for TAA.
The Union asserts that it is unfair that the Department
considers only “United Stated aggregate imports” because to do
so would discount the disproportionate impact that imports have
on a specific region, such as the Eastern Seaboard.
Section (a)(2)(A)(C) requires that there be a finding of
increased imports. 29 CFR section 90.2 states that “increased
imports means that imports have increased either absolutely or
relatively to domestic production compared to a representative
bade period.” As asserted by the Union, imports did not
increase in 2007 compared to 2006. Absent a finding of
increased imports, the Department cannot determine whether or
not increased imports contributed importantly to subject firm
sales and/or production declines and worker separations.
Section (a)(2)(B)(B) requires that there “has been” a shift
of production. That the requirement is in the past tense means
that the shift is an event in the past and not in the future.
Therefore, the subject firm’s “possible shift or planned shift”
(if any) would not have been a basis for TAA certification.
After careful review of the request for reconsideration,
the Department determines that 29 CFR 90.18(c) has not been met.
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, D.C., this 28th day of July 2008.
/s/ Elliott S. Kushner
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance
4510-FN-P
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-62,853
IRVING FOREST PRODUCTS
NASHVILLE PLANTATION, MAINE
Negative Determinations Regarding Eligibility
To Apply for Worker Adjustment Assistance
And Alternative Trade Adjustment Assistance
In accordance with Section 223 of the Trade Act of 1974, as amended (19 USC 2273),
the Department of Labor herein presents the results of an investigation regarding certification of
eligibility to apply for worker adjustment assistance. The group eligibility requirements for
directly-impacted (primary) workers under Section 222(a) the Trade Act of 1974, as amended,
can be satisfied in either of two ways:
I. Section (a)(2)(A) all of the following must be satisfied:
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;
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
II. Section (a)(2)(B) both of the following must be satisfied:
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;
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:
3. 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;
4. 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
5. 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.
The investigation was initiated on February 15, 2008, in
response to a petition filed by a union official on behalf of
workers of Irving Forest Products, Nashville Plantation, Maine.
The workers produce lumber and woodchips.
The investigation revealed that criteria (a)(2)(A)(I.C) and
(a)(2)(B) (II.B) have not been met.
The subject firm did not import lumber or woodchips in 2006
through February of 2008 nor did it shift production of such
products to a foreign country in the same period.
United States aggregate imports of coniferous lumber
declined both absolutely and relative to U.S. production in 2007
compared with 2006, and imports continued to decline in January
2008 compared with the same period in 2007.
A significant portion of the sales of the subject firm are
for the export market and thus not affected by imports.
The Department of Labor surveyed the subject firm’s major
declining domestic customers regarding their purchases of lumber
and woodchips in 2006 and 2007. The survey revealed that most
customers decreased imports in the relevant period, and any
imports did not contribute importantly to the decline in sales
and production at the subject firm.
The investigation also revealed that sales and production
of woodchips at the subject firm increased in 2007 compared with
2006, and also increased through February of 2008 compared with
the same period in 2007.
United States aggregate imports of both coniferous and non-
coniferous wood in chips or particles declined sharply in 2007
compared with 2006. In January through February 2008 the two
types taken together showed decreased imports.
Regarding possible secondary certification of workers, the
subject firm does not sell significant quantities of products to
companies whose workers are under certification for adjustment
assistance.
In addition, in accordance with Section 246 the Trade Act
of 1974 (26 USC 2813), as amended, the Department of Labor
herein presents the results of its investigation regarding
certification of eligibility to apply for alternative trade
adjustment assistance (ATAA) for older workers.
In order for the Department to issue a certification of
eligibility to apply for ATAA, the worker group must be
certified eligible to apply for trade adjustment assistance
(TAA). Since the workers are denied eligibility to apply for
TAA, the workers cannot be certified eligible for ATAA.
Conclusion
After careful review of the facts obtained in the investigation, I
determine that all workers of Irving Forest Products, Nashville
Plantation, Maine, are denied eligibility to apply for adjust-
ment assistance under Section 223 of the Trade Act of 1974, and
are also denied eligibility to apply for alternative trade
adjustment assistance under Section 246 of the Trade Act of
1974.
Signed in Washington, D.C., this 30th day of May 2008
/s/Richard Church
______________________________
RICHARD CHURCH
Certifying Officer, Division of
Trade Adjustment Assistance
- 11 -
Employment and Training Administration
TA-W-62,853
IRVING FOREST PRODUCTS
NASHVILLE PLANTATION, MAINE
Notice of Negative Determination
Regarding Application for Reconsideration
By application dated July 12, 2008, the United Steel
Workers, Local 4-1310 (the Union) requested administrative
reconsideration of the Department's negative determination
regarding eligibility to apply for Trade Adjustment Assistance
(TAA) and Alternative Trade Adjustment Assistance (ATAA)
applicable to workers and former workers of Irving Forest
Products, Nashville Plantation, Maine (the subject firm). The
determination was signed on May 30, 2008. The Department’s
Notice of determination was published in the Federal Register on
June 16, 2008 (73 FR 34044). The workers produce lumber and
woodchips, and are not separately identifiable by product line.
The denial was based on the Department’s findings that the
subject firm did not import lumber or woodchips and did not
shift production of lumber or woodchips to a foreign country
during the relevant period.
A survey of the subject firm’s major declining customers
regarding their purchases of lumber and woodchips revealed that
most customers decreased imports during the relevant period and
that any imports did not contribute importantly to subject firm
sales and production declines.
Aggregate U.S. imports of coniferous lumber declined in
2007 compared with 2006, and continued to decline in January
2008 compared with the corresponding 2007 period. Aggregate
U.S. imports of both coniferous and non-coniferous wood in chips
or particles declined in 2007 compared with 2006, and declined
in January through February 2008 over the corresponding 2007
period.
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.
In the request for reconsideration, the Union asserts the
following three points:
1) with regards to the TAA group eligibility requirements
for directly-impacted workers, “the reasons for denial are
unfair as it relates to choosing 1 area from each section when
only the criteria from one section needs to be met”;
2) “We feel it is inaccurate to first look at the entire
United States aggregate imports of coniferous lumber” because in
order “for the Trade Act to protect the workers that it is
intended to protect it should be pliable in its review as it
relates to specific regions” and that the Department’s review
should consider that “trade may only have slowed over the past
12 months due to high transportation costs as well as equalizing
the value of the dollar while discounting the impact trade has
had leading up to the devestation of the lumber industry all
along the eastern seaboard”; and
3) the Department failed to receive information from the
subject firm regarding “the possible shift or planned shift in
production from it’s Nashville Plantation, Maine mill to it’s
other facilities”.
In order to apply for TAA, petitioners must satisfy the
group eligibility requirements for directly-impacted (primary)
workers under Section 222(a) the Trade Act of 1974, as amended.
The group eligibility requirements can be satisfied in one of
two ways, either Section (a)(2)(A) or Section (a)(2)(B).
In order to satisfy Section (a)(2)(A), all of the following
criteria must be met:
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.
In order to satisfy Section (a)(2)(B), all of the following
criteria must be met:
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.
The Union appears to assert that because the Department
identified in the negative determination two criteria that were
not met, the Department requires that, in order for a worker
group to be certified for TAA, both of the afore-mentioned
sections must be met.
In determining whether a worker group has met the criteria
set forth in the Trade Act of 1974, as amended, the Department
investigates whether the worker group has met the criteria of
either Section (a)(2)(A) or Section (a)(2)(B), not both. If the
criteria of either Section are met, the Department will certify
the worker group as eligible to apply for TAA.
The Union asserts that it is unfair that the Department
considers only “United Stated aggregate imports” because to do
so would discount the disproportionate impact that imports have
on a specific region, such as the Eastern Seaboard.
Section (a)(2)(A)(C) requires that there be a finding of
increased imports. 29 CFR section 90.2 states that “increased
imports means that imports have increased either absolutely or
relatively to domestic production compared to a representative
bade period.” As asserted by the Union, imports did not
increase in 2007 compared to 2006. Absent a finding of
increased imports, the Department cannot determine whether or
not increased imports contributed importantly to subject firm
sales and/or production declines and worker separations.
Section (a)(2)(B)(B) requires that there “has been” a shift
of production. That the requirement is in the past tense means
that the shift is an event in the past and not in the future.
Therefore, the subject firm’s “possible shift or planned shift”
(if any) would not have been a basis for TAA certification.
After careful review of the request for reconsideration,
the Department determines that 29 CFR 90.18(c) has not been met.
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, D.C., this 28th day of July 2008.
/s/ Elliott S. Kushner
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance
4510-FN-P
DEPARTMENT OF LABOR
Employment and Training Administration
TA-W-62,853
IRVING FOREST PRODUCTS
NASHVILLE PLANTATION, MAINE
Negative Determinations Regarding Eligibility
To Apply for Worker Adjustment Assistance
And Alternative Trade Adjustment Assistance
In accordance with Section 223 of the Trade Act of 1974, as amended (19 USC 2273),
the Department of Labor herein presents the results of an investigation regarding certification of
eligibility to apply for worker adjustment assistance. The group eligibility requirements for
directly-impacted (primary) workers under Section 222(a) the Trade Act of 1974, as amended,
can be satisfied in either of two ways:
I. Section (a)(2)(A) all of the following must be satisfied:
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;
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
II. Section (a)(2)(B) both of the following must be satisfied:
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;
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:
3. 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;
4. 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
5. 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.
The investigation was initiated on February 15, 2008, in
response to a petition filed by a union official on behalf of
workers of Irving Forest Products, Nashville Plantation, Maine.
The workers produce lumber and woodchips.
The investigation revealed that criteria (a)(2)(A)(I.C) and
(a)(2)(B) (II.B) have not been met.
The subject firm did not import lumber or woodchips in 2006
through February of 2008 nor did it shift production of such
products to a foreign country in the same period.
United States aggregate imports of coniferous lumber
declined both absolutely and relative to U.S. production in 2007
compared with 2006, and imports continued to decline in January
2008 compared with the same period in 2007.
A significant portion of the sales of the subject firm are
for the export market and thus not affected by imports.
The Department of Labor surveyed the subject firm’s major
declining domestic customers regarding their purchases of lumber
and woodchips in 2006 and 2007. The survey revealed that most
customers decreased imports in the relevant period, and any
imports did not contribute importantly to the decline in sales
and production at the subject firm.
The investigation also revealed that sales and production
of woodchips at the subject firm increased in 2007 compared with
2006, and also increased through February of 2008 compared with
the same period in 2007.
United States aggregate imports of both coniferous and non-
coniferous wood in chips or particles declined sharply in 2007
compared with 2006. In January through February 2008 the two
types taken together showed decreased imports.
Regarding possible secondary certification of workers, the
subject firm does not sell significant quantities of products to
companies whose workers are under certification for adjustment
assistance.
In addition, in accordance with Section 246 the Trade Act
of 1974 (26 USC 2813), as amended, the Department of Labor
herein presents the results of its investigation regarding
certification of eligibility to apply for alternative trade
adjustment assistance (ATAA) for older workers.
In order for the Department to issue a certification of
eligibility to apply for ATAA, the worker group must be
certified eligible to apply for trade adjustment assistance
(TAA). Since the workers are denied eligibility to apply for
TAA, the workers cannot be certified eligible for ATAA.
Conclusion
After careful review of the facts obtained in the investigation, I
determine that all workers of Irving Forest Products, Nashville
Plantation, Maine, are denied eligibility to apply for adjust-
ment assistance under Section 223 of the Trade Act of 1974, and
are also denied eligibility to apply for alternative trade
adjustment assistance under Section 246 of the Trade Act of
1974.
Signed in Washington, D.C., this 30th day of May 2008
/s/Richard Church
______________________________
RICHARD CHURCH
Certifying Officer, Division of
Trade Adjustment Assistance
- 11 -