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###### Department of Labor

###### Employment and Training Administration 

          - [TA-W-65,739] 

                    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 misinterpretation 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 States 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.                           ( print page 34044)    

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, DC, this 22nd day of June, 2009. 

Elliott S. Kushner, 

Certifying Officer, Division of Trade Adjustment Assistance.

 [FR Doc. E9-16631 Filed 7-13-09; 8:45 am] 

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