                            Slip Op. 06-171

           UNITED STATES COURT OF INTERNATIONAL TRADE


INDEPENDENT STEELWORKERS              :
UNION,                                :
                                      :
                    Plaintiff,        : Before: Richard K. Eaton,
                                      : Judge
          v.                          :
                                      : Court No. 04-00492
UNITED STATES SECRETARY               :
OF LABOR,                             :
                                      :
                    Defendant.        :
                                      :

                           OPINION AND ORDER

[Plaintiff’s motion for judgment upon the agency record denied in
part. Defendant’s motion to dismiss denied. Case remanded to
United States Department of Labor to assemble and submit
administrative record.]


                                              Dated: November 17, 2006


     Stewart and Stewart (Terence P. Stewart, J. Daniel Stirk,
and Sarah V. Stewart), for plaintiff.

     Peter D. Keisler, Assistant Attorney General, Civil
Division, United States Department of Justice; David M. Cohen,
Director, Civil Division, Commercial Litigation Branch, United
States Department of Justice; Patricia M. McCarthy, Assistant
Director, International Trade Section, Civil Division, Commercial
Litigation Branch, United States Department of Justice (Claudia
Burke), for defendant.


     Eaton, Judge: This matter is before the court on plaintiff

Independent Steelworkers Union’s (“plaintiff” or “ISU”) motion

for judgment upon the agency record pursuant to USCIT Rule 56.1,

and defendant United States’ (“defendant” or “United States”)

motion on behalf of the United States Department of Labor
Court No. 04-00492                                         Page 2

(“Labor” or the “Department”) to dismiss Count IV of plaintiff’s

complaint for lack of subject matter jurisdiction pursuant to

USCIT Rule 12(b)(1).

     By its motion, plaintiff contests two actions taken by the

Department.   First, ISU disputes the Department’s denial, after

reconsideration, of the petition filed by employees of Weirton

Steel Corporation (“Weirton”) for certification as eligible for

Trade Adjustment Assistance (“TAA”) benefits beginning on April

24, 2004.   See Weirton Steel Corporation, Weirton, West Virginia;

Notice of Negative Determination Regarding Application for

Reconsideration, AR at 195 (July 23, 2004) (“Reconsideration

Denial”) (citations to “AR” refer to the Administrative Record);

Weirton Steel Corporation, Weirton, West Virginia; Notice of

Negative Determination Regarding Application for Reconsideration,

69 Fed. Reg. 47,184 (Dep’t Labor Aug. 4, 2004).   Second,

plaintiff takes issue with the Department’s denial of its request

to extend Weirton’s previously existing certification, which

expired on April 23, 2004.   See Certification Regarding

Eligibility to Apply for Worker Adjustment Assistance, 67 Fed.

Reg. 22,112 (Dep’t Labor May 2, 2002) (“2002 Certification”);

Letter from the U.S. Dep’t of Labor to Mr. Terence P. Stewart

(Sept. 24, 2004) (“Labor Letter”).

     By its motion, the United States argues that the

Reconsideration Denial was fully justified by the law and facts
Court No. 04-00492                                         Page 3

and that the court lacks jurisdiction to hear Count IV of the

complaint challenging Labor’s denial of plaintiff’s request to

extend the already existing TAA certification.     For the following

reasons, the court sustains the Reconsideration Denial, denies

defendant’s motion to dismiss Count IV of plaintiff’s complaint

and reserves judgment on plaintiff’s challenge to the

Department’s denial of its request to extend the duration of the

2002 Certification until such time as Labor assembles and submits

the administrative record for the requested extension.



                              BACKGROUND

     On July 16, 2001, Labor initiated a TAA certification

investigation in response to a petition filed on behalf of

workers at Weirton engaged in the production of hot and cold

rolled coated carbon steel.    See Pl.’s Mem. Supp. R. 56.1 Mot. J.

Agency R. (“Pl.’s Mem.”) at 4–5.    The Department’s investigation

led it to conclude that increased imports of articles competitive

with those produced by Weirton “contributed importantly to the

decline in sales or production and to the total or partial

separation of workers of Weirton Steel.”     Id. at 5.   As a result,

on April 23, 2002, the Department certified as eligible for TAA

benefits all workers at Weirton who became totally or partially

separated from employment on or after July 3, 2000.      See 2002

Certification, 67 Fed. Reg. at 22,112.     The 2002 Certification
Court No. 04-00492                                          Page 4

would remain in effect for two years from the date of

certification, and thus expire on April 23, 2004.       See 19 U.S.C.

§ 2291 (2000).1

     In May 2003, approximately one year prior to the expiration

date of the 2002 Certification, Weirton filed for Chapter 11

bankruptcy.   See Pl.’s Mem. at 7; see also Weirton Steel

Voluntary Pet. Chapter 11 Bankr., AR at 188.       After the filing,

but prior to the expiration of the 2002 Certification, Weirton

officials agreed to sell the company’s assets (but not the

company itself) to International Steel Group (“ISG”).       See Pl.’s

Mem. at 8.2

     1
          This provision provides, in pertinent part:

          Payment of a trade readjustment allowance
          shall be made to an adversely affected worker
          covered by a certification under subpart A of
          this part . . . if the following conditions
          are met:

                  (1) Such worker’s total or partial
                  separation before his application
                  under this part occurred —— . . .

                       (B) before the expiration
                       of the 2-year period
                       beginning on the date
                       on which the
                       determination under
                       section 2273 of this
                       title was made . . . .

19 U.S.C. § 2291(a)(1)(B).
     2
          On April 22, 2004, just one day before the 2002
Certification was set to expire, the United States Bankruptcy
Court for the Northern District of West Virginia approved the
                                                   (continued...)
Court No. 04-00492                                       Page 5

     As a result of the sale, Weirton retained some of its

workers to maintain the plant and ensure a smooth transition of

the facilities to the new owners.    See Pl.’s Mem. at 8.

Following execution of the sales agreement, both Weirton and ISU

contacted the Department and asked that the 2002 Certification be

extended beyond its April 23, 2004 termination date so that the

retained workers would be eligible to apply for TAA benefits upon

being released.3   See id.   This request, which was made prior to

the expiration of the 2002 Certification, was denied by the

Department “as a matter of policy . . . .”4    Id. (“The ISU

     2
      (...continued)
sale of Weirton’s assets to ISG, thus making it clear that the
retained workers would not become separated from Weirton until
after the 2002 Certification expired. See Order of Bankr. N.D.
W.Va. of 4/22/04.
     3
          Neither the date of the initial request for extension
of the 2002 Certification nor the denial of that request can be
determined from the record or the parties’ submitted briefs. As
far as the court can determine, the date for both the request and
denial was early 2004, sometime prior to March 9, 2004, the date
on which the company filed its 2004 petition for certification.
     4
          It does not appear to the court that the Department has
a policy to deny out-of-hand a petitioning group’s request to
extend the duration of an existing certification. While ISU
referenced two examples where the Department found reason to
extend the duration of a previously existing certification, it is
apparent that granting these extension requests is an often-
engaged-in practice. See, e.g., O/Z Gedney Co., Div. of EGS
Electrical Group, Terryville, CT; Amended Certification Regarding
Eligibility To Apply for Worker Adjustment Assistance, 69 Fed.
Reg. 43,454 (Dep’t Labor July 20, 2004) (extending certification
expiration by one year so as to include a worker retained to be
engaged in activities related to the close-down process of a
production firm); Wiegand Appliance Division, Emerson Electric
Company, Vernon, AL; Amended Certification Regarding Eligibility
                                                   (continued...)
Court No. 04-00492                                          Page 6

contacted the Department seeking to extend the expiration of the

[2002 Certification], but was told by Labor that as a matter of

policy, such extensions are not granted.”).    As an alternative,

the Department suggested that Weirton’s workers file a new TAA

petition.    See id.

     On March 9, 2004, Weirton followed Labor’s advice and filed

a new petition with the Department in the hope of obtaining

certification for the 300 retained workers.5   See Pet. Trade


     4
      (...continued)
To Apply for Worker Adjustment Assistance, 68 Fed. Reg. 50,198
(Dep’t Labor Aug. 20, 2003) (extending certification expiration
by five days so as to include workers completing tracking of
previous orders to customers).
     5
          A petition “shall be filed by a group of workers for a
certification of eligibility to apply for adjustment assistance
or by their certified or recognized union or other duly
authorized representative.” 29 C.F.R. § 90.11(a) (2004). The
petition shall include:

            (1) the name(s), address(es), and telephone
            number(s) of the petitioner(s);

            (2) the name or a description of the group of
            workers on whose behalf the petition is
            filed . . .;

            (3) the name and address of the workers’ firm or
            appropriate subdivision thereof;

            (4) the name, address, telephone number, and title
            of an official of the firm;

            (5) the approximate date(s) on which the total or
            partial separation of a significant number or
            proportion of the workers in the workers’ firm or
            subdivision began and continued, or threatened to
            begin, and the approximate number of workers
                                                     (continued...)
Court No. 04-00492                                          Page 7

Adjustment Assistance, AR at 2 (“2004 Petition”).     In its

petition, Weirton stated that it continued to suffer the effects

of increased steel imports made from late 1997 through mid-2003.

See id. Ex. B, AR at 6.

     Upon receipt of plaintiff’s petition, the Department

conducted an investigation, but unlike in 2002, the Department

issued a negative determination.     See Negative Determination

Regarding Eligibility To Apply for Worker Adjustment Assistance

And Alternative Trade Adjustment Assistance, AR at 101–02 (“2004

Determination”); Notice of Determinations Regarding Eligibility

To Apply for Worker Adjustment Assistance, 69 Fed. Reg. 31,134,


     5
         (...continued)
             affected by such actual or threatened total or
             partial separations;

             (6) a statement of reasons for believing that
             increases of like or directly competitive imports
             contributed importantly to total or partial
             separations and to the decline in the sales or
             production (or both) of the firm or subdivision;

             (7) a description of the articles produced by the
             workers’ firm or appropriate subdivision, the
             production or sales of which are adversely
             affected by increased imports, and a description
             of the imported articles concerned.

             If available, the petition should also
             include information concerning the method of
             manufacture, end uses, and wholesale or
             retail value of the domestic articles
             produced and the United States tariff
             provision under which the imported articles
             are classified.

29 C.F.R. § 90.11(c)(1)-(7).
Court No. 04-00492                                         Page 8

31,135 (Dep’t Labor June 2, 2004).      Labor based the denial on its

conclusion that the Weirton workers failed to meet the statutory

requirements for certification, specifically 19 U.S.C.

§ 2272(a)(2)(A)(iii) and § 2272(a)(2)(B)(i).      See Def.’s Resp.

Pl.’s R. 56.1 Mot. J. Agency R. and Def.’s Mot. Dismiss (“Def.’s

Resp.”) at 9–10.   That is, the Department found that increased

steel imports did not contribute importantly to the worker

separations during the 2002–2003 investigatory period, and that

steel imports had not led Weirton to shift its production to a

foreign country.     See id. at 10.6   Based on its investigation,

the Department concluded that Weirton’s sales had actually

increased from 2003 to 2004.     See 2004 Determination, AR at 102.

In addition, Labor found that, based on a survey of Weirton’s

major customers regarding their purchases of the products at

issue, “[m]ost respondents either did not import or reported

declining imports.”     2004 Determination, AR at 102.

     On June 18, 2004, ISU timely filed its written request that

the Department reconsider its denial of Weirton’s 2004 Petition.



     6
          The Department, in accordance with its regulations,
used the import data from the immediately preceding year to
determine worker eligibility for certification in 2004. In
determining whether increased subject imports contributed
importantly to the separation of the petitioning group, the
regulations direct the Department to compare import data in what
is referred to as the “representative base period.” 29 C.F.R.
§ 90.2. “The representative base period shall be one year
consisting of the four quarters immediately preceding the date
which is twelve months prior to the date of the petition.” Id.
Court No. 04-00492                                         Page 9

See Request for Reconsideration of TA-W-54,455: Former Employees

of Weirton Steel Corporation (June 18, 2004), AR at 119

(“Reconsideration Request”); 29 C.F.R. § 90.18(a).7   In its

request, ISU claimed that the Department unreasonably failed to

examine any evidence that related to events that occurred outside

of the one-year representative base period.   See Reconsideration

Request, AR at 122.   For ISU, had the Department considered this

evidence when reaching its final determination, it would have

been compelled to conclude that increased imports led to

Weirton’s decline, eventual bankruptcy and worker separation.

See id.   Put another way, ISU argued that considering the

evidence outside of the representative period would result in an

affirmative determination and, thus, certification of the workers

as eligible to apply for TAA benefits.   ISU urged the Department,

as a matter of policy, to extend the period of investigation

because doing so would be “[i]n keeping with the remedial purpose


     7
           The regulation provides, in pertinent part:

           (a) Determinations subject to
           reconsideration; time for filing. Any
           worker, group of workers, . . . or authorized
           representative of such worker or group,
           aggrieved by a determination issued pursuant
           to the Act . . . may file an application for
           reconsideration of the determination . . . .
           All applications must be in writing and must
           be filed no later than thirty (30) days after
           the notice of the determination has been
           published in the Federal Register.

29 C.F.R. § 90.18(a).
Court No. 04-00492                                         Page 10

of the statute, and the ability of the Department to deviate from

its regulations and prior practice where good cause

exists . . . .”    Reconsideration Request, AR at 129.

     On July 23, 2004, the Department published its determination

denying plaintiff’s Reconsideration Request, stating that it

“must conform to the Trade Act and associated regulations,” which

limit its review to evidence from the “relevant period of the

current investigation.”     Reconsideration Denial, AR at 197.

Based on the evidence from the representative base period, Labor

found that: (1) sales at Weirton increased from 2002 to 2003; and

(2) imports did not contribute importantly to the layoffs of

Weirton’s workers.     See id., AR at 196.

     On September 14, 2004, having failed in its attempt to

persuade the Department to reconsider the denial of Weirton’s

2004 Petition, ISU again asked Labor to amend the 2002

Certification to extend its coverage to May 18, 2004, three-and-

a-half weeks beyond the established expiration date.      See Letter

from Mr. Terence P. Stewart to Mr. Timothy F. Sullivan, Director,

Division of Trade Adjustment Assistance (Sept. 14, 2004)

(“Stewart Letter”).    As of May 18, 2004, ISG was the new owner of

the plant.   See id. at 2.    As a result, ISU argued that Weirton

could no longer be considered a producer of steel and, thus, all

of its production employees were permanently separated from that

date forward.     See id.   In support of its position, ISU cited two
Court No. 04-00492                                      Page 11

prior instances where Labor granted similar requests.   See id. at

3.   Nevertheless, on September 24, 2004, the Department denied

ISU’s request to extend the duration of the 2002 Certification

because: (1) Weirton was a steel producer; (2) the scenario

presented was dissimilar to those in which amendments had

previously been granted because, in this case, production at the

plant continued whereas in the other instances, workers were

retained in decommissioning the plant; and (3) as Labor indicated

in its earlier determinations relating to Weirton’s workers,

increased steel imports simply were not a cause of the workers’

separation from the company.   See Labor Letter.

     Plaintiff now challenges Labor’s denial of its

reconsideration and amendment requests.   Jurisdiction over both

the denied petition for TAA eligibility and the denied request

for an amendment lies with 28 U.S.C. § 1581(d)(1) (2000) and 19

U.S.C. § 2395(c) or in the alternative, with respect to the

denied request for an amendment, 28 U.S.C. § 1581(i)(4) provides

a separate basis for jurisdiction.8


     8
          The court has exclusive jurisdiction over an action
commenced to review “any final determination of the Secretary of
Labor under [19 U.S.C. § 2273] with respect to the eligibility of
workers for adjustment assistance . . . .” 28 U.S.C.
§ 1581(d)(1). A negative determination on reconsideration “shall
constitute a final determination for purposes of judicial review
pursuant to . . . 19 U.S.C. § 2395 . . . .” 29 C.F.R. 90.18(i).
Specifically, the court “shall have jurisdiction to affirm the
action of the Secretary of Labor . . . or to set such action
aside, in whole or in part.” 19 U.S.C. § 2395(c). In addition,
                                                   (continued...)
Court No. 04-00492                                        Page 12

                          STANDARD OF REVIEW

         The court reviews the Department’s determination not to

reconsider its denial of plaintiff’s 2004 Petition for

substantial evidence.     Specifically, “[t]he findings of fact by

the Secretary of Labor . . . if supported by substantial

evidence, shall be conclusive; but the court, for good cause

shown, may remand the case . . . to take further evidence, and

[the] Secretary may thereupon make new or modified findings of

fact and may modify his previous action . . . .”     19 U.S.C.

§ 2395(b).     “Substantial evidence is something more than a ‘mere

scintilla,’ and must be enough reasonably to support a

conclusion.”     Ceramica Regiomontana, S.A. v. United States, 10

CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff’d, 810 F.2d 1137

(Fed. Cir. 1987) (citations omitted).     Good cause for remanding

the Department’s determination “exists if [its] chosen

methodology is so marred that [its] finding is arbitrary or of

such a nature that it could not be based on substantial

evidence.”     Former Employees of Linden Apparel Corp. v. United

States, 13 CIT 467, 469, 715 F. Supp. 378, 381 (1989) (internal



     8
      (...continued)
the United States Court of Appeals for the Federal Circuit has
held that the court may exercise jurisdiction pursuant to 28
U.S.C. § 1581(i)(4), but stated that the provision “limits the
court’s review to Labor’s administration and enforcement of Trade
Act determinations under § 1581(d).” Former Employees of Quality
Fabricating, Inc. v. United States Sec’y of Labor, 448 F.3d 1351,
1355 (Fed. Cir. 2006).
Court No. 04-00492                                        Page 13

citations and quotation marks omitted).   Finally, the court’s

review of the Department’s findings is confined to the

administrative record.    See 28 U.S.C. § 2640(c) (“In any civil

action commenced in the Court of International Trade to review

any final determination of the Secretary of Labor under [19

U.S.C. § 2273] . . . the court shall review the matter as

specified in [19 U.S.C. § 2395].”).




                             DISCUSSION

I.   Plaintiff’s Motion

     A.   Relevant Law

     Under the statutory scheme for determining group eligibility

to apply for TAA benefits, petitioning workers must demonstrate

to the Department that:

          (1) 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; and

          (2)(A)(i) the sales or production, or both,
          of such firm or subdivision have decreased
          absolutely;

          (ii) imports of articles like or directly
          competitive with articles produced by such
          firm or subdivision have increased; and

          (iii) the increase in imports described in
          clause (ii) contributed importantly to such
          workers’ separation or threat of separation
          and to the decline in the sales or production
Court No. 04-00492                                          Page 14

          of such firm or subdivision; or

          (B)(i) 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

          (ii)(I) 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;

          (II) 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

          (III) 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.

19 U.S.C. §§ 2272(a)(1),(2)(A) & (B); see also 19 U.S.C.

§ 2273(a) (“As soon as possible after the date on which a

petition is filed under section 2271 of this title, . . . the

Secretary shall determine whether the petitioning group meets the

requirements of section 2272 . . . .”).   For purposes of 19

U.S.C. § 2272(a)(2)(A)(iii), the petitioning workers need only

demonstrate that the increase in imports is an important cause of

the separation, “but not necessarily more important than any

other cause.”   19 U.S.C. § 2272(c)(1).   Satisfaction of

§ 2272(a)(1) and (2)(A) or (2)(B) results in the issuance of a

certification of eligibility.   The certification must specify the
Court No. 04-00492                                       Page 15

date of worker separation.   See 19 U.S.C. § 2273(a).

     Notably, Labor not only decides whether a group of workers

is eligible for TAA benefits, but may also determine when the

certification expires.   See 19 U.S.C. § 2273(d) (permitting Labor

to terminate certification where “total or partial separations

from [the] firm or subdivision are no longer attributable to the

conditions specified in [19 U.S.C. § 2272] . . . .”); see also 29

C.F.R. § 90.16(d)(2) (“When applicable, the certification shall

specify the date(s) after which the total or partial separations

of the petitioning group of workers . . . specified in the

certification are no longer attributable to the conditions set

forth in paragraph (b) of this section.”); 29 C.F.R. § 90.17(f)

(“Upon reaching a determination that the certification of

eligibility should be continued, the certifying officer shall

promptly publish in the Federal Register a summary of the

determination with the reasons therefor.”).   That is, where the

Department does not specify a termination date at the time of

certification, the statute and regulations anticipate a further

investigation by which the Department may decide to terminate or

continue the certification based on the circumstances.    See 19

U.S.C. § 2273(d); 29 C.F.R. § 90.17(f).   Absent such

circumstances, the period in which workers are certified to apply

for TAA benefits is statutorily limited to two years.    See

19 U.S.C. § 2291(a)(1)(B); see also Commc’ns Workers of Am., AFL-
Court No. 04-00492                                        Page 16

CIO v. United States Sec’y of Labor, 19 CIT 687, 690 (1995) (not

published in the Federal Supplement).



     B.   Plaintiff’s 2004 Petition for Certification

     Plaintiff first claims that the Department not only

unreasonably denied Weirton’s 2004 Petition for certification,

but compounded that unreasonableness by issuing a negative

determination on plaintiff’s request for reconsideration of the

initial denial.    Plaintiff raises two related arguments in

support of its contention that the Department should be required

to reconsider the negative determination and grant plaintiff’s

2004 Petition.    First, it insists that the Department

unreasonably declined to consider evidence of events that took

place outside of the one-year representative base period.      See

Pl.’s Mem. at 13.    Second, plaintiff asserts that the remedial

purpose of the TAA statute required the Department to consider

such factors as the “surges of imports from 1998–2002 [that]

drove steel prices to unsustainable lows,” causing prices to

collapse, even though those events took place outside of the

representative base period.9   Id. at 14.   Thus, ISU claims that

the effects from the same increased steel imports that the

     9
          According to ISU, the trade adjustment statutes are
remedial in nature and should be administered with high regard to
the interest of the workers. See Pl.’s Mem. at 13 (citing Former
Employees of Elec. Data Sys. Corp. v. United States Sec’y of
Labor, 28 CIT   , 350 F. Supp. 2d 1282 (2004)).
Court No. 04-00492                                        Page 17

Department found contributed importantly to the separation of

Weirton’s employees in 2002, continued to affect adversely

workers beyond April 23, 2004.

     In addition, plaintiff argues that while the number of units

sold by Weirton may have increased for some of its products, the

units actually produced by the company decreased for all but one

item during the examined time period.10    See Pl.’s Mem. at 9;

Reconsideration Request, AR at 128.   Plaintiff asserts that these

factors coupled with previous determinations by Labor to extend

the one-year representative base period, demonstrate that Labor’s

denial of plaintiff’s 2004 Petition is unsupported by substantial

evidence and not in accordance with law.

     Labor supports its determination by emphasizing that its

denial of Weirton’s 2004 Petition was the result of its adherence

to its regulations.   That is, Labor found that the evidence from

the representative base period failed to demonstrate that

increased imports contributed importantly to the workers’

separation and, in turn, plaintiff failed to satisfy 19 U.S.C.

§ 2272(a)(2).   See 2004 Determination, AR at 100–03.

Specifically, Labor maintains that during the one year prior to

the filing of the petition on March 9, 2004, there were



     10
          For instance, the record indicates that production
totals dropped from 15,521 to 14,902 (tons per year in thousands)
from 2002 to 2003. See Reconsideration Request, Table I, AR at
128.
Court No. 04-00492                                        Page 18

decreasing imports of “hot rolled carbon sheet, cold rolled

carbon sheet, hot dipped galvanized sheet and strip, galvanized

electrolytic carbon sheet and strip, and tin mill products (black

plate, tin plate, tin free) . . . .”   2004 Determination, AR at

102; see also AR at 71–75.   Likewise, the Department concluded

that Weirton’s relevant sales increased over the same time

frame.11   See 2004 Determination, AR at 102.

     In response to plaintiff’s claim that the Department abused

its discretion by not reviewing evidence outside of the

representative base period, Labor contends that it acted

reasonably by following the limitations imposed by the

regulation.   The regulation provides that “[t]he representative

base period shall be one year consisting of the four quarters

immediately preceding the date which is twelve months prior to

the date of the petition.”   29 C.F.R. § 90.2.   In Labor’s view,

limiting its review to the time period prescribed by its

regulations demonstrates that it acted in accordance with law.

See Def.’s Resp. at 15; Reconsideration Denial, AR at 197.

     The Department’s adherence to the one-year representative

period has previously been found to be reasonable.    See Former

Employees of Homestake Mining Co. v. Brock, 12 CIT 270, 272–73

     11
          Although not providing the primary basis for its
determination, Labor observed that a survey of Weirton’s major
customers indicated that those customers decreased their reliance
on imported steel during the examined time period. See
Reconsideration Denial, AR at 196.
Court No. 04-00492                                        Page 19

(1988) (not published in the Federal Supplement) (“[T]his Court

finds that the Secretary is permitted to confine the

investigation to the year of separation and the immediately

preceding year in determining under [19 U.S.C.

§ 2272(a)(2)(iii)] . . . whether the imports found to be

increasing ‘contributed importantly’ to the worker separations

and to any decline in sales or production.”); see also Paden v.

United States Dep’t of Labor, 562 F.2d 470, 473 (7th Cir. 1977)

(holding that by “confining consideration to imports during the

year of separation and the immediately preceding year, the

Secretary can focus on those imports which are most likely to

affect employment in the year of separation while diminishing

consideration of those factors which, while affecting employment,

are not within the coverage of the act.”).

     It is well settled that “[w]hen a court reviews an agency’s

construction of the statute which it administers, . . . if the

statute is silent or ambiguous with respect to the specific

issue, the question for the court is whether the agency’s answer

is based on a permissible construction of the statute.”    Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842–43 (1984).   While possibly not permissible in all cases where

workers have suffered injury from imports, in this case the

regulation appears to be permissible.   In the absence of specific

statutory language, Labor determined that the one-year
Court No. 04-00492                                        Page 20

representative base period would best promote accurate

determinations as to the effects of increased imports on worker

separation, and thereby advance the goal of ensuring that only

those workers truly injured by competitive imports would be

eligible to apply for TAA benefits.    Under the facts of this

case, plaintiff has not made a compelling argument that this

interpretation of the TAA statute embodied in Labor’s regulations

is unreasonable.    This is particularly the case where, as shall

be seen infra, there is an alternative way to address plaintiff’s

complaints.    Thus, the court finds that Labor’s decision to base

its denial of plaintiff’s 2004 Petition and its denial of

plaintiff’s Reconsideration Request solely on evidence from the

representative base period was reasonable and in accordance with

law.

       Having found reasonable Labor’s decision to rely solely on

evidence from the representative base period, the court now turns

to the Department’s substantive finding.    Where petitioning

workers assert in a new petition that their present separation is

caused by the same factors that led to a prior certification, the

Department cannot rely upon its prior findings, but rather must

engage in an independent analysis before granting a new

certification.     See Commc’ns Workers of America, 19 CIT at 691.

       Here, the Department found in its 2004 Determination that

the requirements of § 2272(a)(2)(A) were not met.    Labor
Court No. 04-00492                                        Page 21

concluded that the record demonstrated that: (1) Weirton’s sales

increased absolutely; (2) imports of several articles directly

competitive with those produced by Weirton did not increase; (3)

increased imports did not contribute importantly to the

separation of Weirton’s workers; (4) Weirton had not shifted

steel production to a foreign country; and (5) there would not

likely be an increase in steel imports that would affect

adversely Weirton’s workers.   See 2004 Determination, AR at 102.

While the court agrees with plaintiff that Labor is required to

investigate whether “sales or production, or both” decreased and

may not simply rely on an increase in sales in its analysis, the

statute is clear in its mandate that petitioning workers must

satisfy all of the requirements of either

§ 2272(a)(2)(A) or (B) to be certified as eligible to apply for

TAA benefits.   Plaintiff does not argue that for the period

reviewed, Labor unreasonably determined that its petition failed

to demonstrate that subject imports contributed importantly to

the workers’ separation.   Thus, because the evidence supports

Labor’s conclusion that plaintiff did not satisfy the statutory

requirements for certification, the court sustains Labor’s

Reconsideration Denial.



     C.   Plaintiff’s Request to Amend 2002 Certification

     ISU next challenges Labor’s denial of its September 14, 2004
Court No. 04-00492                                        Page 22

request to amend12 the 2002 Certification to extend the

expiration date by three-and-a-half weeks to cover those 300

workers retained to transfer the plant to ISG.   Although Labor

has extended the time period for a certification’s coverage of

workers in other instances, the Department denied plaintiff’s

request in part because “the situations addressed by the [prior]

amendments . . . are not the same as the situation upon which

plaintiff based its request . . . .”   Def.’s Mot. Leave Resp.

Pl.’s Supplemental Citations and Def.’s Resp. Supplemental

Citations (“Def.’s Resp. Supplemental Citations”) at 2.

Specifically, Labor stated that “the company was not closing, it

was being sold to a new owner who continued to operate the

business and there was undisputed evidence that the company’s

sales and production had increased since that last certification

was issued.”   Id.

     With respect to plaintiff’s appeal to this court, however,

Labor’s principal argument is that the court lacks subject matter

jurisdiction to hear plaintiff’s challenge to its denial of the

amendment request.   Plaintiff asserts that the court has



     12
          The court refers to ISU’s request for an extension of
time as an “amendment,” although that term is not used in the
relevant statutes or regulations. Both Labor and this Court have
used this term in describing previous requests to extend the time
period for certification. See, e.g., Former Employees of
Motorola, Inc. v. United States Dep’t of Labor, 27 CIT __, __,
Slip Op. 03-166 at 3 (Dec. 17, 2003) (not published in the
Federal Supplement).
Court No. 04-00492                                        Page 23

jurisdiction under 19 U.S.C. § 2395(c) and 28 U.S.C. § 1581(d),

or in the alternative, under 28 U.S.C. § 1581(i)(4), the Court’s

residual jurisdiction provision.

     In all cases, the court must, as a threshold matter,

determine whether it has subject matter jurisdiction.     See Grupo

Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 593 (2004)

(“[B]y whatever route a case arrives in federal court, it is the

obligation of both . . . court and counsel to be alert to

jurisdictional requirements.”).    The burden of establishing

jurisdiction lies with the party seeking to invoke the court’s

jurisdiction.   See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d

1573, 1583 (Fed. Cir. 1993).   Neither party disputes that the

court may hear claims challenging a final determination of the

Department that relates to the certification of a group of

workers as eligible to apply for TAA benefits.    See 28 U.S.C.

§ 1581(d)(1) (“The Court of International Trade shall have

exclusive jurisdiction of any civil action commenced to

review . . . any final determination of the Secretary . . . under

[19 U.S.C. § 2273] with respect to the eligibility of workers for

adjustment assistance . . . .”).

     For plaintiff, “[t]he Department’s decision to deny [its]

request for an amendment of the [2002 Certification] was a final

determination of the Secretary of Labor under . . . 19 U.S.C.

§ 2273, with respect to the eligibility of workers for adjustment
Court No. 04-00492                                           Page 24

assistance.”    Pl.’s Mem. at 22.   As plaintiff observes,

            The letter from the Department to Terence P.
            Stewart, dated September 24, 2004, denying
            ISU’s request for an extension of the 2002
            [C]ertification’s expiration date constitutes
            a final agency action and there is no other
            adequate remedy in a court. In the letter,
            the Department provided two reasons for
            denying the ISU’s request. First, the
            Department noted that the two trade petition
            certifications referenced by the ISU in its
            request were distinguishable from Weirton’s
            situation because in those cases, workers
            were retained to assist with the plant
            closure after production had ceased. That is
            not the case for workers at Weirton Steel.
            Second, the Department noted that it
            conducted a full and careful investigation in
            [the 2004 Determination] and issued negative
            determinations for the initial petition . . .
            and the subsequent application for
            reconsideration. Labor concluded that since
            the Department determined that workers of the
            firm were not adversely affected by increases
            in imports we are unable to comply with your
            request.

Id. at 23 (internal alterations, citations and quotation marks

omitted).    In other words, plaintiff contends that for Labor to

have concluded that an amendment to the 2002 Certification was

not warranted, it (1) must have examined the evidence and

concluded that the retention of workers for the purpose of

shutting down a plant was somehow different from being retained

until the plant is turned over to a new company; or (2) must

necessarily have analyzed plaintiff’s request under the criteria

set forth in 19 U.S.C. § 2272.
Court No. 04-00492                                      Page 25

     For its part, Labor first claims that jurisdiction is

lacking because on its face “[a] decision denying an extension of

time for the period covering a certification . . . is not a

determination that a petitioning group meets the requirements of

19 U.S.C. § 2272 and, therefore is not an appealable decision

within the jurisdiction of this Court . . . .”   Def.’s Resp. at

17 (internal quotation marks omitted).13   In other words, the

Department understands the analysis involved in determining

whether to grant or deny a request for an extension of a

certification’s duration to be independent from that concerning a

petition for certification and hence not reviewable by the court.

     Read together, 19 U.S.C. § 2395(c) and 28 U.S.C. § 1581(d)

grant the court jurisdiction over final determinations by the

Department concerning the petition of a group of workers for

certification as eligible to apply for TAA benefits.   Thus,

jurisdiction over plaintiff’s claim challenging Labor’s denial of

its request to amend the 2002 Certification may be exercised if


     13
           The Department asserts that the instant dispute is
analogous to that presented to the United States Court of Appeals
for the Federal Circuit in Mitsubishi Elec. of Am., Inc. v.
United States, 44 F.3d 973, 976 (Fed. Cir. 1994). See Def.’s
Resp. at 16–17. There, the Federal Circuit held that this Court
lacked subject matter jurisdiction over any contest of a Customs
decision not relating to one of the specifically delineated
matters in 19 U.S.C. § 1514(a). The Department, therefore,
argues that because review of a Labor determination denying a
plaintiff’s request to amend an existing TAA certification is not
specifically listed in the statute as an action over which the
court has jurisdiction, ISU’s cause of action should be
dismissed.
Court No. 04-00492                                     Page 26
the denial is (1) a final determination; and (2) regards the

requirements for certification set forth in 19 U.S.C. § 2272.

     The court finds that plaintiff established jurisdiction

under 19 U.S.C. § 2395(c) and 28 U.S.C. § 1581(d).   First, the

court recognizes that “final determination” is not defined by

statute or regulation.   However, the concept of finality as

applied to agency determinations is readily understood as

referring to an action where the “decision-making process has

reached a stage where judicial review will not disrupt the

orderly process of adjudication.”   5 Jacob A. Stein, Glenn A.

Mitchell & Basil J. Mezines, Administrative Law § 48.03[1] at 41

(2006); see also Bennett v. Spear, 520 U.S. 154, 177–78 (1997)

(“As a general matter, two conditions must be satisfied for

agency action to be final: First, the action must mark the

consummation of the agency’s decisionmaking process, . . . [a]nd

second, the action must be one by which rights or obligations

have been determined, or from which legal consequences will

flow.”) (internal citations and quotation marks omitted).    Here,

Labor issued its denial on September 24, 2004 in the form of a

letter addressed to plaintiff’s counsel.   See Labor Letter.     In

the letter, the Department stated that the basis for its denial

was its determination that “workers of the firm were not

adversely affected by increases in imports” and suggested that

“former workers of the firm . . . seek information on other
Court No. 04-00492                                        Page 27

programs administered by the Department . . . .”   Id.    Despite

the seeming informality of the Department’s determination, the

denial was indeed final.   See Natural Res. Def. Council, Inc. v.

E.P.A., 22 F.3d 1125, 1132–33 (D.C. Cir. 1994) (“[T]he absence of

a formal statement of the agency’s position . . . is not

dispositive: An agency may not, for example, avoid judicial

review merely by choosing the form of a letter to express a

definitive position on a general question of statutory

interpretation.”) (internal citations and quotation marks

omitted).   It is apparent that the Department engaged in a review

of plaintiff’s request and denied the same with every intention

of binding plaintiff and with no intention of revisiting the

issue.   Thus, the decision to deny plaintiff’s request

constituted a final determination.

     Second, the court finds that Labor’s determination was at

least in part based upon an analysis of the § 2272 criteria.

Indeed, it is unlikely that a decision not to extend the duration

of an existing TAA eligibility certification could be based on

substantial evidence without evaluating whether the factors found

in § 2272 are satisfied.   This evaluation appears to have been

one of the reasons Labor gave for its decision in its September

24, 2004 letter.   Therefore, because the Department’s denial of

ISU’s request to amend the 2002 Certification was a final

determination relating to the § 2272 criteria, jurisdiction is
Court No. 04-00492                                       Page 28

had pursuant to 19 U.S.C. § 2395(c) and 28 U.S.C. § 1581(d)(1).

     Should it be that the foregoing analysis does not provide a

basis for jurisdiction, however, 28 U.S.C. § 1581(i)(4) provides

an independent basis for hearing plaintiff’s case.   Subsection

1581(i)(4) empowers the Court to hear complaints regarding an

agency’s administration and enforcement of the trade laws.     See

28 U.S.C. § 1581(i)(4) (“[T]he [Court] shall have exclusive

jurisdiction of any civil action commenced against the United

States, its agencies, or its officers, that arises out of any law

of the United States providing for . . . administration and

enforcement with respect to the matters referred to in . . .

subsections (a)-(h) of this section.”).   As has been previously

seen, 28 U.S.C. § 1581(d)(1) and 19 U.S.C. § 2395(c) give the

Court authority to review any final determination of the

Department regarding the eligibility of workers to apply for TAA

benefits.

     It is clear that plaintiff’s action seeking review of the

Department’s denial of its amendment request is a challenge to

the Department’s administration and enforcement of 19 U.S.C.

§§ 2272 and 2273.    In denying plaintiff’s application to extend

the 2002 Certification, the Department was clearly engaging in

the administration and enforcement of that certification.

Therefore, an independent basis for jurisdiction over the instant

matter is found under 28 U.S.C. § 1581(i)(4).
Court No. 04-00492                                        Page 29

     Labor next advances the argument that, should the court find

it has jurisdiction over this matter, plaintiff’s action should

nevertheless be dismissed as having been untimely commenced.      See

Def.’s Resp. at 16.   This position rests on Labor’s framing of

plaintiff’s request as one seeking reconsideration of the 2002

Certification determination.   According to 29 C.F.R. § 90.18(a)

“[a]ll applications [for reconsideration] must be in writing and

must be filed no later than thirty (30) days after the notice of

the determination has been published in the Federal Register.”

According to the Department:

          If ISU wanted to appeal Labor’s determination
          regarding the date the [2002] [C]ertification
          expired, it should have done so within the
          time limit to appeal that decision. It did
          not do so. Therefore, ISU cannot now avoid
          the time limit for appealing that decision by
          submitting a request to amend the earlier
          decision and then appealing the denial of the
          request to amend.

Def.’s Resp. at 16.   Thus, because plaintiff did not seek

reconsideration of the Department’s 2002 determination within

thirty days of its issuance, Labor maintains that the court

cannot hear plaintiff’s claim.14




     14
          It is worth noting that although not cited as a basis
for its denial of plaintiff’s request, the Department now
contends that it has an established policy of dismissing these
requests out-of-hand. See Def.’s Resp. Supplemental Citations at
2 (“It is these type[s] of amendments that Labor later determined
were not within its authority to issue and Labor has advised
defendant’s counsel that it has ceased issuing them.”).
Court No. 04-00492                                       Page 30

     The Department’s position is untenable.   A request to amend

an existing certification based on changed circumstances is not

the same as an application for reconsideration of an initial

determination.   An application for reconsideration seeks the

correction of an error discoverable at the time the final

determination is issued.   The thirty-day period provided by 29

C.F.R. § 90.18(a) confirms that such error must be apparent or

capable of being discovered at that time.   The making of the

application for reconsideration, therefore, is unlike a request

for an amendment to an existing certification in that it is not

contingent on a change of circumstances.    The adoption of Labor’s

position would require a petitioning group of workers to predict

within thirty days of publication of the determination what

circumstances might exist as much as two years later.   In the

present case, the Department would have Weirton look ahead

twenty-two months and determine whether certification should

extend beyond the two-year statutory period.   Thus, the court

finds that a petitioning group’s request to amend an existing

certification as the result of a change in circumstances does not

constitute an application for reconsideration as contemplated by

29 C.F.R. § 90.18(a).

     As a result of the foregoing, the court finds that it may

properly exercise jurisdiction over plaintiff’s challenge to

Labor’s determination not to extend the 2002 Certification and
Court No. 04-00492                                        Page 31

that defendant’s other arguments are without merit.    The court

refrains from reaching the merits of this matter, however, until

Labor has submitted the complete administrative record with

respect to plaintiff’s amendment request.



                           CONCLUSION

     Based on the foregoing, it is hereby

     ORDERED that Labor’s determination denying plaintiff’s

request for reconsideration of Labor’s denial of plaintiff’s 2004

Petition is sustained;

     ORDERED that defendant’s motion to dismiss Count IV of

plaintiff’s complaint is denied; and it is further

     ORDERED that this matter is remanded to Labor with

instructions to assemble and submit to the court the

administrative record regarding plaintiff’s amendment claim by

December 18, 2006.




                                            /s/Richard K. Eaton
                                               Richard K. Eaton

Dated:    November 17, 2006
          New York, New York
