DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-65,739

EOS AIRLINES INCORPORATED
PURCHASE, NEW YORK

Notice of Negative Determination
Regarding Application for Reconsideration

By application dated May 18, 2009, the petitioner 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 the subject
firm. The denial notice was signed on April 14, 2009 and
published in the Federal Register on April 30, 2009 (74 FR
19996).
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 negative TAA determination issued by the Department for
the workers of Eos Airline Incorporated, Purchase, New York was
based on the findings that the worker group did not produce an
article within the meaning of Section 222 of the Trade Act of
1974. The investigation revealed that workers of the subject
firm provided air transportation services to customers. The
investigation further revealed that no production of article(s)
occurred within the firm or appropriate subdivision during the
relevant period.
The petitioner in the request for reconsideration contends
that the Department erred in its interpretation of the work
performed by the workers of the subject firm. The petitioner
states that the workers of the subject firm produced an article
in the form of “Available Seat Mile”. The petitioner seems to
allege that the pilots produced Seat Miles while transporting
customers to their destination.
The investigation revealed that during the relevant period,
the workers of Eos Airlines Incorporated, Purchase, New York
provided air transportation services to customers. Specifically,
according to the company official, the workers of the subject
firm were pilots who provided air services between the United
Sates and Europe.

These functions, as described above, are not considered
production of an article within the meaning of Section 222 of the
Trade Act. While the provision of services results in providing
the customers with the Available Seat Mile, which is used in
measuring the productivity of an airline, the Seat Mile is
incidental to the provision of these services. No production
took place at the subject facility, nor did the workers support
production of an article at any domestic location during the
relevant period.
The petitioner also states that the workers would have been
eligible for TAA under the new Trade Act if they filed the
petition in May 2009. The petitioner seems to allege that the
workers of the subject firm should be evaluated using new
eligibility criteria and receive a certification for TAA under
the new law, even though they filed a petition under the old
Trade Act before the new provision went into effect.
On February 17, 2009, President Obama signed into law the
American Recovery and Reinvestment Act of 2009, commonly known as
the economic stimulus package. The new provision of the Trade
Act went into effect on May 18, 2009 and applies to petitions
filed on or after that date. The petition at hand was filed on
March 30, 2009, and therefore, cannot be considered under the new
provision.
The workers are encouraged to file a new petition, if the
workers wish to be considered under the New TAA Program.
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 22nd day of June, 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-65,739

EOS AIRLINES INCORPORATED
PURCHASE, 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 investigation was initiated on April 2, 2009 in response
to a petition filed on behalf of workers of Eos Airlines
Incorporated, Purchase, New York. The workers of the subject firm
provided air transportation services to customers.
Eos Airlines Incorporated, Purchase, New York, does not
produce an article within the meaning of Section 222(a)(2) of the
Act. In order to be considered eligible to apply for adjustment
assistance under Section 223 of the Trade Act of 1974, the worker
group seeking certification (or on whose behalf certification is
being sought) must work for a "firm" or appropriate subdivision
that produces an article and there must be a relationship between
the workers' work and the article produced by the workers' firm or
appropriate subdivision.
The workers described above do not support a firm or
appropriate subdivision that produces an article domestically and
thus the worker group cannot be considered import impacted or
affected by a shift in production of an article.
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 Eos Airlines
Incorporated, Purchase, 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 14th day of April 2009

/s/ Elliott S. Kushner

_____________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance





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