DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-70,454

GRAPHITE ENGINEERING AND SALES COMPANY
GREENVILLE, MICHIGAN

Notice of Negative Determination
Regarding Application for Reconsideration

By application dated November 13, 2009, a petitioner
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
September 24, 2009 and was published in the Federal Register on
November 17, 2009 (74 FR 59255).
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, based on the finding that imports of graphite and
carbon parts did not contribute to worker separations at the
subject facility and there was no shift in production from the
subject firm to foreign country during the period under
investigation. The “contributed importantly” test is generally
demonstrated through a survey of the workers’ firm’s declining
customers. The survey revealed no imports of graphite and carbon
parts by declining customers during the relevant period. The
subject firm did not import graphite and carbon parts nor shift
production to a foreign country during the relevant period.
The petitioner states that workers of the subject firm
indirectly supplied parts that were integral in petroleum
production. The petitioner further states that demand for
drilling equipment has diminished because of the new fuel
efficiency standards and seems to allege that the workers of the
subject firm should be eligible for TAA as secondary impacted
workers under Section 222(c).
For the Department to issue a secondary worker certification
under Section 222(c), to workers of a secondary upstream
supplier, the subject firm must produce for a certified customer
a component part of the article that was the basis for the
customers’ certification.

In this case, however, the subject firm does not act as an
upstream supplier, because graphite and carbon parts do not form
a component part of petroleum products. Thus the subject firm
workers are not eligible under secondary impact as suppliers to
companies producing petroleum fuel.
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 10th day of December, 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-70,454

GRAPHITE ENGINEERING AND SALES COMPANY
GREENVILLE, MICHIGAN


Negative Determination Regarding Eligibility
To Apply for Worker Adjustment Assistance

In accordance with Section 223 of the Trade Act of 1974, as
amended (“Act”), 19 U.S.C. § 2273, the Department of Labor herein
presents the results of an investigation regarding certification of
eligibility to apply for worker adjustment assistance.
Workers of a firm may be eligible for worker adjustment
assistance if they satisfy the criteria of subsection (a), (c) or
(f) of Section 222 of the Act, 19 U.S.C. § 2272(a), (c), (f). For
the Department of Labor to issue a certification for workers under
Section 222(a) of the Act, 19 U.S.C. § 2272(a), the following three
criteria must be met:
I. The first criterion (set forth in Section 222(a)(1) of the
Act, 19 U.S.C. § 2282(a)(1)) requires that a significant
number or proportion of the workers in the workers’ firm must
have become totally or partially separated or be threatened
with total or partial separation.

II. The second criterion (set forth in Section 222(a)(2) of the
Act, 19 U.S.C. § 2272(a)(2)) may be satisfied in one of two
ways:
(A) Increased Imports Path:
(i) sales or production, or both, at the workers’ firm must
have decreased absolutely, AND
(ii) (I) imports of articles or services like or directly
competitive with articles or services produced or
supplied by the workers’ firm have increased, OR
(II)(aa) imports of articles like or directly
competitive with articles into which the component
part produced by the workers’ firm was directly
incorporated have increased; OR
(II)(bb) imports of articles like or directly
competitive with articles which are produced
directly using the services supplied by the
workers’ firm have increased; OR
(III) imports of articles directly incorporating
component parts not produced in the U.S. that are
like or directly competitive with the article into
which the component part produced by the workers’
firm was directly incorporated have increased.

(B) Shift in Production or Supply Path:
(i)(I) there has been a shift by the workers’ firm to a
foreign country in the production of articles or supply
of services like or directly competitive with those
produced/supplied by the workers’ firm; OR
(i)(II) there has been an acquisition from a foreign country
by the workers’ firm of articles/services that are like
or directly competitive with those produced/supplied by
the workers’ firm.

III. The third criterion requires that the increase in imports or
shift/acquisition must have contributed importantly to the
workers’ separation or threat of separation. See Sections
222(a)(2)(A)(iii) and 222(a)(2)(B)(ii) of the Act, 19 U.S.C.
§§ 2272(a)(2)(A)(iii), 2272(a)(2)(B)(ii).

Section 222(d) of the Act, 19 U.S.C. § 2272(d), defines the
terms “Supplier“ and “Downstream Producer.“ For the Department to
issue a secondary worker certification under Section 222(c) of the
Act, 19 U.S.C. § 2272(c), to workers of a Supplier or a Downstream
Producer, the following criteria must be met:
(1) a significant number or proportion of the workers in the
workers’ firm or an appropriate subdivision of the firm
have become totally or partially separated, or are
threatened to become totally or partially separated;

(2) the workers’ firm is a Supplier or Downstream Producer to
a firm that employed a group of workers who received a
certification of eligibility under Section 222(a) of the
Act, 19 U.S.C. § 2272(a), and such supply or production
is related to the article or service that was the basis
for such certification; and

(3) either
(A) the workers’ firm is a supplier and the component parts
it supplied to the firm described in paragraph (2)
accounted for at least 20 percent of the production or
sales of the workers’ firm; or
(B) a loss of business by the workers’ firm with the firm
described in paragraph (2) contributed importantly to the
workers’ separation or threat of separation.

Workers of a firm may also be considered eligible if they
are publicly identified by name by the International Trade
Commission as a member of a domestic industry in an investigation
resulting in a category of determination that is listed in
Section 222(f) of the Act, 19 U.S.C. § 2272(f).
The group eligibility requirements for workers of a firm under
Section 222(f) of the Act, 19 U.S.C. § 2272(f), can be satisfied if
the following criteria are met:
(1) the workers’ firm is publicly identified by name by the
International Trade Commission as a member of a domestic
industry in an investigation resulting in--
(A) an affirmative determination of serious injury or
threat thereof under section 202(b)(1);
(B) an affirmative determination of market disruption
or threat thereof under section 421(b)(1); or
(C) an affirmative final determination of material
injury or threat thereof under section 705(b)(1)(A)
or 735(b)(1)(A) of the Tariff Act of 1930 (19
U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the 1-year period beginning
on the date on which--
(A) a summary of the report submitted to the President
by the International Trade Commission under section
202(f)(1) with respect to the affirmative
determination described in paragraph (1)(A) is
published in the Federal Register under section
202(f)(3); or
(B) notice of an affirmative determination described in
subparagraph (1) is published in the Federal
Register; and
(3) the workers have become totally or partially
separated from the workers’ firm within--
(A) the 1-year period described in paragraph (2); or
(B) notwithstanding section 223(b)(1), the 1-year
period preceding the 1-year period described in
paragraph (2).
The investigation was initiated in response to a petition
filed on May 22, 2009 on behalf of workers of Graphite Engineering
and Sales Company, Greenville, Michigan (Graphite). The workers
were engaged in activities related to the production of graphite
and carbon parts for industry use. The petitioners allege that
their occupation is a trade occupation, and that Carbone Lorraine
purchased Graphite four years ago and is French owned.
With respect to Section 222(a) of the Act, the investigation
revealed that Criterion II and III have not been met.
Criterion II has not been met because there was no increase in
imports of graphite and carbon parts from January through June 2009
over the corresponding 2008 period and no shift in production or
acquisition abroad by the workers’ firm.
Criterion III has not been met because the workers separation
or threat of separation was not related to an increase of imports
or a shift/acquisition abroad. The acquisition that occurred four
years ago did not contribute importantly to the worker separations
at the workers firm during the relevant period.
With respect to Section 222(c) of the Act, the investigation
revealed that Criterion (2) has not been met because the workers
did not produce an article that was used by a firm with TAA-
certified workers in the production of an article or supply of
service that was the basis for TAA-certification. None of the firms
provided by the company official was found to have TAA-certified
workers.
Finally, the group eligibility requirements under Section
222(f) of the Act, 19 U.S.C. § 2272(f), have not been satisfied
because the workers firm has not been identified in an affirmative
finding of injury by the International Trade Commission.






Conclusion
After careful review of the facts obtained in the
investigation, I determine that workers of Graphite Engineering


and Sales Company, Greenville, Michigan who are engaged in the
manufacturing of graphite and carbon parts are denied eligibility
to apply for adjustment assistance under Section 223 of the Act, 19
U.S.C. § 2273.
Signed in Washington, D.C., this 24th day of September, 2009.



/s/Elliott S. Kushner
______________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance





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