[Federal Register Volume 70, Number 216 (Wednesday, November 9, 2005)]
[Notices]
[Pages 68097-68098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22322]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-56,536, TA-W-56,536A and TA-W-56,536B]


Butler Manufacturing Company, Subsidiary of Bluescope Steel, Ltd, 
Building Division, Wall and Roof Panels Production, Galesburg, IL; 
Butler Manufacturing Company, Subsidiary of Bluescope Steel, Ltd, 
Building Division, Trim and Components Production, Galesburg, IL; 
Butler Manufacturing Company, Subsidiary of Bluescope Steel, Ltd, 
Building Division, Secondaries Production, Galesburg, IL; Notice of 
Negative Determination on Remand

    The United States Court of International Trade (USCIT) granted the 
Department of Labor's motion for voluntary remand for further 
investigation in Former Employees of Butler Manufacturing Company v. 
United States Secretary of Labor (Court No. 05-00440, issued September 
2, 2005). AR 181-182.
    On February 7, 2005, three workers filed a petition for Trade 
Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance 
(ATAA) on behalf of workers at Butler Manufacturing Company, Galesburg, 
Illinois (TA-W-56,536). The petitioners stated that the workers' 
separations were due to the shift of the subject firm's production of 
prefabricated buildings to India, Mexico, and China and Butler's 
imports of that article from Mexico and China. AR 2.
    The Secretary of Labor may certify as eligible for TAA benefits 
only those workers who are employed in the subdivision that produces 
the article that is adversely affected by imports of ``like or directly 
competitive'' articles. Paden v. U.S. Department of Labor, 562 F.2d 
470, 475 (7th Cir.1977); See Abbott v. Donovan, 596 F.Supp 475 (C.I.T. 
1984). Therefore, during the investigation, the Department of Labor 
(hereafter referred to as ``the Department'') requested information 
from Butler Manufacturing Company in order to determine what articles 
were produced at the subject firm during February 2004 through February 
2005, the twelve month period prior to the petition date (February 7, 
2005) which is the ``relevant period'' for investigation. The 
Department also requested sale, production, and import figures 
regarding those articles produced at the Galesburg, Illinois facility 
during (AR 25-39, 57-66, 68) and conducted a survey of the company's 
major customer's regarding their purchases of those articles during the 
relevant period. AR 53-56, 67.
    Based on information provided by the subject firm (AR 68), the 
Department partitioned the petition into three subparts (Butler 
Manufacturing Company, Subsidiary of BlueScope Steel, LTD, Buildings 
Division, Wall and Roof Panels Production, Galesburg, Illinois, TA-W-
56,536; Butler Manufacturing Company, Subsidiary of BlueScope Steel, 
LTD, Buildings Division, Trim and Components Production, Galesburg, 
Illinois, TA-W-56,536A; and Butler Manufacturing Company, Subsidiary of 
BlueScope Steel, LTD, Buildings Division, Secondaries Production, 
Galesburg, Illinois, TA-W-56,536B)--hereafter referred to collectively 
as ``the subject firm''--to address those articles produced at Butler 
Manufacturing Company, Galesburg, Illinois facility during the relevant 
period: Panels, trim and components, and secondaries.
    On March 2, 2005, the Department issued a determination denying 
certification of the workers' eligibility to apply for TAA and ATAA. AR 
72-75. The negative determination was based on the investigation's 
findings that the subject firm did not shift its production of panels, 
trim and components, or secondaries to a foreign country and that there 
were no increased imports by the subject firm or its customers of 
panels, trim and components, or secondaries. The Department's Notice of 
determination was published in the Federal Register on April 1, 2005 
(70 FR 16847). AR 80.
    By application of April 1, 2005, the petitioners requested 
administrative reconsideration of the Department's denial, alleging 
that the workers were not separately identifiable by product line and 
that the workers' separations were due to a shift of production abroad 
and increased imports. AR 84-87. On April 1, 2005, the Department 
issued a Notice of Affirmative Determination Regarding Application for 
Reconsideration. AR 92. On April 23, 2005, the Notice was published in 
the Federal Register (70 FR 21247). AR 125.
    During the reconsideration investigation, the Department contacted 
the subject company (AR 100, 133-139) and the workers (AR 104-105) for 
additional information. Based on information received by the company 
officials (AR 100, 129, 133-139) and the workers (AR 106-124, 126-128, 
130-132), the Department determined on reconsideration that the workers 
were ineligible to apply for TAA and ATAA. The Department determined 
that those workers were not separately identifiable by product line 
and, nevertheless, that the subject firm did not shift production of 
panels, trim and components, or secondaries abroad. Instead, the 
subject firm was shifting production of those articles to domestic, 
affiliated facilities. AR 140-143. The Department issued a Notice of 
Negative Determination on Reconsideration on May 11, 2005. The Notice 
of Negative Determination on Reconsideration was published in the 
Federal Register on May 25, 2005 (70 FR 30142). AR 179-180.
    By letter dated July 21, 2005 to the USCIT, petitioners requested 
judicial review. AR 154-155.
    On September 2, 2005, the USCIT granted the Department's request 
for voluntary remand and directed the Department to further investigate 
the subject workers' eligibility to apply for TAA and ATAA. AR 181-182.
    During the remand investigation, the Department carefully reviewed 
previously submitted information, solicited information from the 
plaintiff and workers (AR 201), and contacted the subject firm to 
obtain new and additional information regarding the articles produced 
during the relevant period, the work done by the subject workers, and 
the shift of production from the subject firm.
    A careful review of previously-submitted information and newly-
obtained information revealed that the Department's finding in the 
determination on reconsideration that the workers are not separately 
identifiable by product line was in error (AR 141), and the initial 
negative determination (of TA-W-56,536) finding on this issue (AR 74) 
was correct. The information shows that the workers were dedicated to 
particular production lines, that workers' movements between production 
lines were infrequent, and that such movement were determined by union 
guidelines and usually based on seniority. AR 41-49, 196-199. Because 
the workers' assignments to product lines in the Buildings Division 
were constant and changes among workers on the production lines were 
not the norm but the exception, the Department determines that the 
workers were separately identifiable by product line. However, 
regardless of whether or not the workers were separately identifiable 
by product line, the evidence obtained from all parties during the 
investigations do not support the workers' claim that there was a shift 
of production of prefabricated buildings or

[[Page 68098]]

their components abroad or increased imports of those articles during 
the relevant period.
    Information provided by the subject firm revealed that the only 
articles produced during the relevant period were panels, trim and 
components, and secondaries. AR 183, 194-195. As such, the Department 
focused its remand investigation on those articles produced at the 
subject firm during the relevant period. AR 195-201.
    According to the subject firm, all trim and component, secondaries, 
and panel production at the subject facility had ceased by April 2005 
and had shifted to a newly built facility in Jackson, Tennessee. As 
anticipated by the subject firm (AR 41-42), the production shift began 
in February 2005 and finished in May 2005. AR 184, 195. Information 
provided by the subject firm revealed no imports of panels (AR 186), 
trim and components (AR 187), or secondaries (AR 188). The previously 
conducted customer survey covered the appropriate products and revealed 
no increased imports of any products produced by the subject firm. AR 
53-56, 67.
    In response to the plaintiff's assertion that production had 
shifted to Mexico, India and China, the company official agreed that a 
representative of the Mexico plant had visited the subject firm. 
However, the reason for that visit was related to securing replacement 
and updated equipment for truss purlin production in Mexico (an article 
not produced at the subject firm during the relevant period). AR 195. 
While some production of component parts of these articles did shift to 
Asia (China), that shift occurred in 2003, which is prior to the 
relevant period for this petition. Further, those components were not 
made during the relevant period at the subject firm. AR 184, 195.
    Because the remand investigation revealed no imports of articles 
like or directly competitive with panels, trim and components, 
secondaries produced by the workers of the subject firm by the subject 
firm or its customers during the relevant period and no shifts of 
production of those articles abroad during the relevant period, the 
statutory requirements of neither Section 222(a)(1) and (2)(a) nor 
Section 222(a)(1) and (2)(B) of the Trade Act or 1974, as amended, were 
met, and the Department cannot certify the subject workers as eligible 
to apply for TAA. Further, since the workers are not eligible to apply 
for TAA, the workers cannot be found eligible to apply for ATAA under 
Section 246(a)(3)(B)(i) of that law.

Conclusion

    As the result of the findings of the investigation on remand, I 
affirm the negative determination of eligibility to apply for 
adjustment assistance for workers and former workers of Butler 
Manufacturing Company, Subsidiary of BlueScope Steel, LTD, Buildings 
Division, Wall and Roof Panels Production, Galesburg, Illinois (TA-W-
56,536); Butler Manufacturing Company, Subsidiary of BlueScope Steel, 
LTD, Buildings Division, Trim and Components Production, Galesburg, 
Illinois (TA-W-56,536A); and Butler Manufacturing Company, Subsidiary 
of BlueScope Steel, LTD, Buildings Division, Secondaries Production, 
Galesburg, Illinois (TA-W-56,536B).

    Signed at Washington, DC this 1st day of November 2005.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 05-22322 Filed 11-8-05; 8:45 am]
BILLING CODE 4310-30-U