DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-64,796

TRACY EVANS LTD
NEW YORK, NEW YORK

Notice of Negative Determination
Regarding Application for Reconsideration

By application dated March 9, 2009, petitioners 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 January 27, 2009
and published in the Federal Register on February 23, 2009 (74 FR
8116).
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 initial investigation resulted in a negative
determination which was based on the finding that imports of
designs and patterns for women’s garments did not contribute
importantly to worker separations at the subject plant and there
was no shift of production to a country that is a party to a free
trade agreement with the United States or a beneficiary country.
The “contributed importantly” test is generally demonstrated
through a survey of the workers’ firm’s declining domestic
customers. In this instance, the subject firm did not sell
designs and patterns for women’s garments to outside domestic
customers, thus a survey was not conducted. The subject firm did
not import designs and patterns for women’s garments into the
United States during the relevant period.
In the request for reconsideration the petitioner alleged
that Tracy Evans transferred its U.S. operations to a foreign
country. Furthermore, the petitioner referred to an article
reporting a “problematic industrial trend of garment jobs being
outsourced to foreign countries within the garment district in
New York City.”
When assessing eligibility for TAA, the Department
exclusively considers production of articles like or directly
competitive with the ones manufactured at the subject firm during
the relevant period (one year prior to the date of the petition).
The issue of a shift in production by the subject firm to a
foreign country was addressed during the initial investigation.
It was revealed that the subject firm did not shift production of
designs and patterns for women’s garments during the relevant
period.
The petitioner did not supply facts not previously
considered; nor provide additional documentation indicating that
there was either 1) a mistake in the determination of facts not
previously considered or 2) a misinterpretation of facts or of
the law justifying reconsideration of the initial determination.
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 13th day of March, 2009


/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-64,796

TRACY EVANS LTD
NEW YORK, NEW YORK

Negative Determination 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:
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;
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 investigation revealed that criteria (a)(2)(A)(I.C.) and
(a)(2)(B)(II.B.) were not met.
The investigation was initiated on December 31, 2008 in
response to a petition filed by on behalf of workers of Tracy Evans
LTD, New York, New York. The workers at the subject firm are
engaged in activities associated with the production of women’s
garments. Specifically, the workers design and cut patterns for
women’s garments.
The investigation revealed that the subject firm did not shift
the design and pattern cutting for women’s garments functions
abroad. The subject firm did report imports but, however, what is
being imported back is not like or directly competitive with the
design and pattern cutting for women’s garments functions performed
by the workers at the subject firm.
The Department was unable to survey the subject firm’s major
declining customers regarding purchases of women’s garments for the
reason that what is being purchased by the customers is the
finished article (women’s garments) and not the design or cutting
pattern.
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 this
investigation, I determine that all workers of Tracy Evans LTD, New
York, New York, are denied eligibility to apply for adjustment
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 27th day of January, 2009


/s/Linda G. Poole
______________________________
LINDA G. POOLE
Certifying Officer, Division of
Trade Adjustment Assistance






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