                          Slip Op. 09-35

           UNITED STATES COURT OF INTERNATIONAL TRADE

UNITED STEEL, PAPER AND       :
FORESTRY, RUBBER,             :
MANUFACTURING, ENERGY, ALLIED :
INDUSTRIAL AND SERVICE WORKERS:
INTERNATIONAL UNION, LOCAL    :   Before: Richard K. Eaton, Judge
2911,                         :
                              :   Court No. 04-00492
                    Plaintiff,:
                              :
          v.                  :
                              :
UNITED STATES SECRETARY       :
OF LABOR,                     :
                              :
                    Defendant.:
                              :

                              OPINION

[United States Department of Labor’s final negative determination
on remand denying plaintiff’s application for trade adjustment
assistance sustained.]

                                           Dated: April 30, 2009


     Stewart and Stewart (Terence P. Stewart, Elizabeth J. Drake,
and Philip A. Butler), for plaintiff.

     Michael F. Hertz, Acting Assistant Attorney General; Jeanne
E. Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (Russell A. Shultis), for defendant.


     Eaton, Judge:   In United Steel, Paper and Forestry, Rubber,

Manufacturing, Energy, Allied Industrial and Service Workers

International Union, Local 2911 v. United States Secretary of

Labor, 32 CIT __, Slip Op. 08-45 (Apr. 30, 2008) (not reported in

the Federal Supplement) (“Steelworkers II”), the court remanded
Court No.04-00492                                        Page 2

this matter to the United States Department of Labor (“Labor” or

the “Department”) for further explanation of its determination to

deny plaintiff ISU’s1 request for an extension of Weirton Steel

Corporation’s (“Weirton”) Trade Adjustment Assistance (“TAA”)

eligibility certification from April 23, 2004 to May 18, 2004.

On remand, the Department has again reached a negative

determination.   See Negative Determination on Remand, TA-W-

54,455, Weirton Steel Corp., Weirton, WV (Dep’t of Labor Aug. 28,

2008) (the “Remand Results”).

     As in Steelworkers II, jurisdiction lies under 28 U.S.C.

§ 1581(i)(4).    See 32 CIT at __, Slip Op. 08-45 at 3-4; Indep.

Steelworkers Union v. U.S. Sec’y of Labor, 30 CIT 1793, 1803-08,

Slip Op. 06-171 at 21-30 (Nov. 17, 2006) (not reported in the

Federal Supplement) (“Steelworkers I”) (“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.”).

For the following reasons, Labor’s negative determination

embodied in its Remand Results is sustained.




     1
        For purposes of continuity, the court again refers to
plaintiff United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union, Local 2911 as “ISU,” in reference to its
former name, Independent Steelworkers Union.
Court No.04-00492                                         Page 3

                           BACKGROUND

     Weirton was a steel producer.   Because the company was faced

with “serious difficulties due to import surges” and financial

hardship, ISU petitioned Labor in mid-2001 to establish the

eligibility of the Weirton workers to apply for TAA benefits.2

     2
        The group eligibility requirements for TAA benefits are
as follows:

          (a) In general

          A group of workers (including workers in any
          agricultural firm or subdivision of an
          agricultural firm) shall be certified by the
          Secretary as eligible to apply for adjustment
          assistance under this part pursuant to a
          petition filed under section 2271 of this
          title if [Labor] determines 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
          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
                                                    (continued...)
Court No.04-00492                                            Page 4

Pl.’s Rule 56.1 Mot. for J. Agency R. (“Pl.’s Br.”) 3-4

(citations omitted).     Labor’s determination was affirmative and

the resulting certification found all Weirton workers, who became

totally or partially separated from employment on or after July

3, 2000, eligible to apply for TAA cash benefits.     See Notice of

Determinations Regarding Eligibility to Apply for Worker

Adjustment Assistance and NAFTA Traditional Adjustment

Assistance, 67 Fed. Reg. 22,112 (Dep’t of Labor May 2, 2002) (the

“2002 Certification”).     Under the statute, the 2002 Certification

was to remain in effect for two years from the date of

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

§ 2291(a)(1)(B).


     2
         (...continued)
             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.     See also 19 U.S.C. §§ 2271, 2273.
Court No.04-00492                                         Page 5

     In May 2003, however, approximately one year prior to the

2002 Certification’s expiration, Weirton filed for Chapter 11

bankruptcy.   See Pl.’s Br. 7; see also Weirton Steel Corp.

Voluntary Pet. Chapter 11 Bankr., Admin. R. (“AR”) at 188-89.

Thereafter, Weirton officials agreed to sell the company’s assets

to its competitor International Steel Group (“ISG”).      See Pl.’s

Br. 8.   To complete the sale, Weirton retained some of its

workers to maintain the plant and to ensure a smooth transition

of its facility to the new owners.   See Letter Dated Sept. 14,

2004 from Mr. Terence P. Stewart to Labor, Suppl. Admin. R.

(“SR”) at 12-15 (the “Stewart Letter”).

     On March 9, 2004, ISU filed a new petition with Labor

seeking TAA re-certification for Weirton’s workers based on facts

present during an investigatory period covering the year prior to

the petition’s filing (March 9, 2003, through March 9, 2004).

See Weirton Steel Corp. Petition for TAA Dated Mar. 9, 2004 (the

“2004 Petition”), AR at 2-40.   Labor issued a negative

determination with respect to this petition on May 14, 2004,

finding that Weirton’s workers failed to meet the statutory

requirements for certification.   That is, Labor found that,

during the investigatory period, increased steel imports did not

contribute importantly to the worker separations.   See Weirton

Steel Corp., Weirton, WV: Negative Determination Regarding

Eligibility To Apply for Worker Adjustment Assistance and
Court No.04-00492                                         Page 6

Alternative Trade Adjustment Assistance (Dep’t of Labor May 14,

2004), AR at 101–03 (the “Negative Determination”); Notice of

Determinations Regarding Eligibility To Apply for Worker

Adjustment Assistance, 69 Fed. Reg. 31,134, 31,135 (Dep’t of

Labor June 2, 2004) (notice).

     Thereafter, on July 23, 2004, Labor denied plaintiff’s

request for administrative reconsideration of the Negative

Determination.    See Weirton Steel Corp., Weirton, WV: Notice of

Negative Determination Regarding Application for Reconsideration

(Dep’t of Labor July 23, 2004), AR at 195-97 (the

“Reconsideration Denial”); Weirton Steel Corp., Weirton, WV:

Notice of Negative Determination Regarding Application for

Reconsideration, 69 Fed. Reg. 47,184 (Dep’t of Labor Aug. 4,

2004) (notice).

     On September 14, 2004, having failed to secure benefits by

way of a re-certification, ISU wrote Labor to “formally request

that [Labor] amend the [2002] TAA certification to change its

expiration date from April 23, 2004, to May 18, 2004, so as to

include all workers of Weirton Steel who were adversely affected

by increased imports.”    See Stewart Letter, SR at 12-15.   The

Stewart Letter details the circumstances that ISU believed

justified an amendment to extend the 2002 Certification.

Specifically, it recounts that the 2002 Certification’s

expiration date of April 23, 2004 “came just a few weeks before
Court No.04-00492                                         Page 7

substantially all of the production assets of Weirton Steel

Corporation were acquired out of bankruptcy” by ISG, and that on

May 18, 2004 the company ceased to produce steel.    See Stewart

Letter, SR at 13.   It is those workers who remained with the

company for the three to four weeks after the 2002 Certification

expired, but before the Weirton sale was completed, that were the

subject of Weirton’s request to extend the 2002 Certification.

Stewart Letter, SR at 13-14.

     According to plaintiff, the remaining workers “were engaged

in preserving Weirton’s assets and facilities and preparing them

for the sale to ISG.”3   Stewart Letter, SR at 14.   Plaintiff

maintained that only an amendment of the 2002 Certification

“would ensure that all the workers of Weirton Steel who were

adversely affected by increased imports are included under [the

2002] Certification and eligible for needed assistance.”    Stewart

Letter, SR at 14.

     In addition, the Stewart Letter stated that it was

plaintiff’s “understanding that the Department has previously

amended TAA certifications to extend the period of eligibility

where workers have been retained beyond the original expiration

date of a certification.”   Stewart Letter, SR at 14 n.5 (citing


     3
        The Stewart Letter recounts ISU’s filing of the 2004
Petition and Labor’s subsequent Negative Determination and
Reconsideration Denial, since sustained by this court in
Steelworkers I. See Stewart Letter, SR at 14; Steelworkers I, 30
CIT at 1803, Slip Op. 06-171 at 31.
Court No. 04-00492                                        Page 8

O/Z-Gedney Co., Div. of EGS Elec. Group, Terryville, CT: Amended

Certification Regarding Eligibility To Apply for Worker

Adjustment Assistance, 69 Fed. Reg. 43,454 (Dep’t of Labor July

20, 2004) (“O/Z-Gedney”); Wiegand Appliance Div., Emerson Elec.

Co., Vernon, AL: Amended Certification Regarding Eligibility To

Apply for Worker Adjustment Assistance, 58 Fed. Reg. 50,198

(Dep’t of Labor Aug. 20, 2003) (“Wiegand”)).

     By letter dated September 24, 2004, Labor denied ISU’s

amendment request for two reasons.    See Letter Dated Sept. 24,

2004 from Labor to Mr. Terence P. Stewart, SR at 16-17 (the

“Denial Letter”).    The first was that the facts presented in this

case were distinguishable from the facts of the two

certifications cited in plaintiff’s amendment request (O/Z-Gedney

and Wiegand) because, in the case of the Weirton facility,

production at the plant continued, whereas in the other cases

“workers were retained to assist with the plant closure after

production had ceased.”    See Denial Letter, SR at 16 (emphasis

added).   The second reason was that, after a “full and careful

investigation for the relevant period,” Labor determined that

workers’ separation from the company was not due to an increase

in imports.   This second reason was apparently a reference to the

2004 Petition for re-certification.    See Denial Letter, SR at 16.

     In Steelworkers I, the court sustained the denial of

benefits pursuant to the 2004 Negative Determination and
Court No. 04-00492                                        Page 9

Reconsideration Denial.    See 30 CIT at 1803, Slip Op. 06-171 at

21 (sustaining the Department’s determination “because the

evidence supports Labor’s conclusion that plaintiff did not

satisfy the statutory requirements for certification”).    The

court, however, refrained from reaching the merits of ISU’s

amendment request pending the submission of a supplemental

administrative record.    See id. at 1808, Slip Op. 06-171 at 31.

     Following submission of the supplemental administrative

record, further briefing, and review, the court in Steelworkers

II held that Labor did not explain adequately its decision to

deny ISU’s request to amend Weirton’s 2002 Certification until

May 18, 2004.    See Steelworkers II, 32 CIT at __, Slip Op. 08-45

at 25-27.   Accordingly, Steelworkers II remanded this matter to

Labor with instructions that the Department further explain its

determination.   See 32 CIT at __, Slip Op. 08-45 at 26-27.



                          STANDARD OF REVIEW

     In cases brought under 28 U.S.C. § 1581(i), this Court

applies the default standard of review set forth in the

Administrative Procedure Act (“APA”) and therefore will “hold

unlawful and set aside agency action, findings, and conclusions

found to be . . . arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law . . . .”    See 5 U.S.C.

§ 706(2)(A); see also Former Employees of Alcatel Telecomms.
Court No. 04-00492                                         Page 10

Cable v. Herman, 24 CIT 655, 658-59, Slip Op. 00-88 at 6-7 (2000)

(not reported in the Federal Supplement).    Under this standard,

“the court (1) must consider whether the decision was based on a

consideration of relevant factors and whether there has been a

clear error of judgment, and (2) analyze whether a rational

connection exists between the agency’s factfindings and its

ultimate action.”     See Consol. Fibers, Inc. v. United States, 32

CIT __, __, 535 F. Supp. 2d 1345, 1354 (2008).    Further, the APA

provides that, “[t]o the extent necessary to decision and when

presented, the reviewing court shall decide all relevant

questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability of the

terms of an agency action.”    5 U.S.C. § 706.



                              DISCUSSION

I.   Remand Results

     In the Remand Results, Labor states that its current policy

regarding amendment requests (which it insists has been in effect

throughout all proceedings in this case), is to ensure that “the

certification [will] cover all workers . . . who were adversely

affected by increased imports of the article produced by the firm

or a shift in production of the article, based on the

investigation of the petition.”    Remand Results at 13.   Despite

the absence of a statutory or regulatory provision on point, the
Court No. 04-00492                                         Page 11

Department explains that it “has and continues to amend the

expiration date of certifications when the facts of the case show

that the later worker separations are attributable to the basis

for [the original] certification (the increased imports or shift

of production to a foreign country).”    Remand Results at 13.

According to the Department, using the same standard to grant a

certification in the first instance or extend a certification

comports with the remedial nature of the TAA statute.      See Remand

Results at 13-14.

      In addition, Labor notes that amendment requests are rare.

Remand Results at 17.    When it receives such requests, however,

the Department states that it reviews them on a case-by-case

basis to determine if those worker separations occurring after

the certification’s expiration date are also “attributable” to

the basis of the original certification.    See Remand Results at

17.   Labor explains that

            the earlier and later separated workers must
            have identical characteristics (same
            location, same article, and same basis for
            certification) aside from dates of
            separation. It must also be shown that the
            predominant important cause of the later
            worker separation is identical to the
            conditions that were the basis for the
            certification of the earlier separated
            workers.4


      4
          Labor elaborated:

            If the certification was based on increased
                                                     (continued...)
Court No. 04-00492                                           Page 12

Remand Results at 17.

     The Department further insists that there has been no change

in its policy over time.5    See Remand Results at 15 (citing

Thomson, Inc., Circleville Glass Operations, Circlesville, OH:

Amended Certification Regarding Eligibility To Apply for Worker

Adjustment Assistance and Alternative TAA, 72 Fed. Reg. 5,750

(Dep’t of Labor Feb. 7, 2007) (notice) (“Thomson”)).     Finally,

Labor states:

             The Department has not, to the best of our
             knowledge, amended a certification to extend
             the expiration date except in limited
             circumstances when there has been a plant
             closing and a small number of workers are
             retained past the 2-year expiration date to
             complete shutdown activities. The intent of
             the Department in these cases, as in all
             cases, is for the amended certification to
             cover all adversely affected workers at the
             subject firm or appropriate subdivision
             (based on the investigation of the petition).

Remand Results at 15.


     4
         (...continued)
             imports, the petitioning worker group must
             show that the increased imports (same
             article, same time periods, etc.) contributed
             importantly to their separations; if the
             certification was based on a shift of
             production, the petitioning worker group must
             show that the same shift of production (same
             article, same country, etc.) was the basis
             for their separations.

Remand Results at 17.
     5
        Given this assertion, it is not unexpected that the
Remand Results also state that Labor has taken no steps to notify
the public of any policy change. See Remand Results at 16.
Court No. 04-00492                                         Page 13

      As to the significance of Weirton’s plant remaining open,

the Remand Results state that Labor’s focus in assessing

amendment requests is not on production facility closure, but

rather on determining if the later separated workers were

terminated for the same reasons that formed the basis of the

original certification.6   See Remand Results at 18-19.    The

Department thus maintains that “if there was a change in

circumstance that prevents a causal nexus between the workers’

separation and the basis for certification, then the Department

cannot find that the workers’ separation is attributable to the

basis” for the 2002 Certification.   Remand Results at 18.       In

Labor’s view, a production facility’s closure (accompanied with

worker separations) tends to demonstrate the causal nexus

required to tie the later separated workers to those separated

earlier, and thus to grant an amendment.   See Remand Results at

19.   Furthermore, the Department notes that its investigation


      6
        Labor’s original Denial Letter to the Weirton workers
referenced both continued production and plant closure as being
significant. In distinguishing Weirton’s situation from past
cases, the Department wrote:

           In each of these cases [referring to O-
           Z/Gedney and Wiegand], workers were retained
           to assist with the plant closure after
           production had ceased. This is not the case
           for workers at Weirton Steel. Production of
           steel products at the Weirton, West Virginia
           plant continued during the period relevant to
           the investigation.

Denial Letter, SR at 16-17.
Court No. 04-00492                                        Page 14

following the 2004 revealed, not only that the Weirton plant had

not closed, but that during the period of investigation “sales of

the subject firm increased” and “there were declining imports or

little or no increase in imports during the relevant period.”

Remand Results at 19 (citation omitted).

     In response to the court’s order directing further

explanation as to why Labor treated those workers separated from

the company after April 23, 2004 differently from those losing

their jobs before that date, the Remand Results stress that the

Department distinguished between these workers “because the

workers separated before April 23, 2004 belong to a separately

identifiable worker group.”   Remand Results at 20.   That is,

Labor found that they were not separated due to the impact of

foreign trade because its investigation of the period preceding

the 2004 Petition revealed that increased steel imports did not

contribute importantly to their eventual separation.     See

Steelworkers I, 30 CIT at 1803, Slip Op. 06-171 at 21.    Thus,

Labor asserts, “[w]hile the certification of workers separated on

or before April 23, 2004 was based on increased imports, worker

separations after April 23, 2004 resulted from ISG’s decision not

to continue to employ the Weirton production workers when it

purchased the operating Weirton plant as part of the May 18, 2004

sale.”   Remand Results at 20-21 (internal citations omitted).

     In order to address the court’s instruction to explain how
Court No. 04-00492                                       Page 15

the Remand Results comport with previous investigations that

resulted in Labor granting amendment requests, the Department

examines three prior cases: (1) O/Z-Gedney, 69 Fed. Reg. at

43,454; (2) Wiegand, 68 Fed. Reg. at 50,198; and (3) Thomson, 72

Fed. Reg. at 5,751.    Labor states that O/Z-Gedney is

distinguishable because there the Department amended the

certification to include a single worker retained at the firm

assisting with the closedown process.    It adds: “The Department

amended the certification because there was a causal nexus

between the workers’ [sic] separation and the plant closure that

was the result of increased imports.”    Remand Results at 21.

     As for Wiegand, the Department notes that workers in that

case were also engaged in activities related to a production

facility closure.    Remand Results at 22 (stating that the

“workers completed the tracking of outstanding customer orders

until their termination”).    It again states: “The Department

amended the certification because there was a causal nexus

between the worker’s [sic] separation and the plant closure that

was the result of increased imports.”    Remand Results at 22.

Likewise, with respect to Thomson, the Remand Results state that

the subject workers were retained for decommissioning activities

pursuant to state regulation, and the amendment request was

granted because Labor determined that there was no break in

causation.   Remand Results at 22-23.
Court No. 04-00492                                        Page 16

      Accordingly, Labor states that these past “amendments were

based on findings that increased imports adversely affected the

workers separated after the expiration of the certification.”

Remand Results at 23.   In contrast, “[t]he Weirton workers

separated after the plant’s acquisition by ISG were not engaged

in the closedown of that facility, but were actually involved in

production and maintenance of the plant.”   Remand Results at 23.

      Finally, with respect to the court’s instruction to the

Department for it to explain why its determination is consistent

with the remedial nature of the TAA statute, Labor states that,

although remedial, “the statute does not authorize the granting

of certification, unlimited by time, in every situation involving

a sympathetic fact pattern.”   Remand Results at 23-24.



II.   Prior to the Issuance of the Remand Results, the Department
      Had No Articulated Policy for Extending Certifications

      Despite its claims to the contrary, it is apparent that the

Department had no articulated policy with respect to extensions

of certifications prior to the issuance of the Remand Results in

this case.   While it may be that in its internal discussions

Labor took into account the factors set forth in the TAA statute

at 19 U.S.C. § 2272, its previous determinations extending

certification did not enunciate reliance on those factors.

Indeed, the Department’s prior determinations do no more than

briefly recite the facts surrounding the decisions to extend the
Court No. 04-00492                                        Page 17

subject certifications and state that Labor’s intent is to

include workers adversely affected by increased imports under

certifications.

     In O/Z-Gedney, for example, Labor’s Federal Register notice

reads in its entirety:

          In accordance with section 223 of the Trade
          Act of 1974 (19 U.S.C. 2273) the Department
          of Labor issued a Certification of
          Eligibility to Apply for Worker Adjustment
          Assistance on March 27, 2001, applicable to
          workers of O/Z-Gedney Company, Div. of EGS
          Electrical Group, Terryville, Connecticut.
          The notice was published in the Federal
          Register on April 16, 2001 (66 FR 19521). At
          the request of a company official, the
          Department reviewed the certification for
          workers of the subject firm. The workers
          were engaged in the production of electrical
          fittings for the non-residential construction
          industry. New information shows that a
          worker, Ms. Jacqueline Lancioni, was retained
          at the subject firm beyond the March 27,
          2003, expiration date of the certification.
          This employee was engaged in activities
          related to the close-down process until her
          termination on March 26, 2004. Based on
          these findings, the Department is amending
          the certification to extend the March 27,
          2003, expiration date for TA-W-38,569 to read
          March 26, 2004. The intent of the
          Department’s certification is to include all
          workers of O/Z-Gedney Company, Div. of EGS
          Electrical Group, who were adversely affected
          by increased imports. The amended notice
          applicable to TA-W-38,569 is hereby issued as
          follows:

                  A worker of O/Z-Gedney Company,
                  Div. of EGS Electrical Group,
                  Terryville, Connecticut, who became
                  totally or partially separated from
                  employment on or after January 5,
                  2000, through March 26, 2004, is
Court No. 04-00492                                       Page 18

               eligible to apply for adjustment
               assistance under section 223 of the
               Trade Act of 1974.

69 Fed. Reg. at 43,454.    Likewise, the Department’s notice in

Wiegand reads much the same way.    See 68 Fed. Reg. at 50,198.

     Neither O/Z-Gedney nor Wiegand sets forth the policy claimed

by Labor here, i.e., that Labor will amend expiration dates “when

the facts of the case show that the later worker separations are

attributable to the basis for [the original] certification (the

increased imports or shift of production to a foreign country).”

Remand Results at 13.   Nor does either determination state any

facts demonstrating that Labor was acting in a way consistent

with its claimed policy.

     Labor’s determination in Thomson begins to suggest a policy

because the Department engaged in a “nexus” analysis consistent

with the policy it claims here.    See 72 Fed. Reg. at 5,751

(stating that “the Department determined that there was a causal

nexus between the subject firm’s shutdown of operations and the

shutdown workers’ separations and that, therefore, the

separations of the workers . . . [after the certification’s

expiration] are attributable to the conditions specified in

section 222 of the Trade Act”).    Thomson goes on to state,

however, that “[t]he Department’s decision in this case is

limited to the precise circumstances of this specific case and

should not be considered as any indication of how the Department
Court No. 04-00492                                        Page 19

would proceed in other cases or in any subsequent rulemaking on

this subject.”   Id.

     As a result, while it appears the Department has previously

acted in a manner consistent with the policy it has now set

forth, the court finds that it had no articulated policy at the

time the determination not to extend the 2002 Certification was

made.



III. The Department Did Not Act in an Arbitrary or Capricious
     Manner

     While Labor had no declared policy with respect to the

granting of extensions when it declined to extend Weirton’s

certification, this does not end the court’s inquiry.    The court

must decide whether the Department’s action in this case violated

the APA’s arbitrary and capricious standard.     See 5 U.S.C.

§ 706(2)(A).   Indeed, in addition to citing to its past practice,

Labor also claims that it evaluates extension requests on a case-

by-case basis.   See Remand Results at 17.   Having examined the

manner by which Labor reached its result in this case, the court

concludes that the Department did not abuse its discretion or act

contrary to law in reaching its determination.

     The court bases this conclusion primarily on Labor’s denial

of ISU’s 2004 Petition.   As previously noted, ISU petitioned

Labor seeking re-certification for Weirton’s workers on March 9,

2004, i.e., before the 2002 Certification expired and before ISU
Court No. 04-00492                                        Page 20

asked to extend that certification.     See 2004 Petition, AR at 2-

40.    In its Negative Determination on the 2004 Petition, Labor

found that during the one-year period prior to the 2004

Petition’s filing (March 9, 2003, through March 9, 2004),

Weirton’s steel sales increased, and the company “did not import

the products it produces . . . .”    Negative Determination, AR at

102.    Therefore, Weirton’s workers were denied eligibility to

apply for TAA benefits.    Negative Determination, AR at 103.

       The court sustained these findings in Steelworkers I.     See

30 CIT at 1803, Slip Op. 06-171 at 21.    Thus, the important

distinction between this case and those relied upon by plaintiff

is that, here, there is an intervening determination finding that

Weirton’s workers were not injured by imports during the period

March 9, 2003, through March 9, 2004.     See Pl.’s Comments 3

(citing Am. Standard, Inc., Trenton, NJ: Amended Eligibility to

Apply for Worker Adjustment Assistance, TA-W-38,582, 68 Fed. Reg.

43,757 (Dep’t of Labor July 24, 2004)).    This determination found

that the evidence did not support a finding that Weirton was

still faced with increased steel imports that contributed

importantly to worker separations.    Thus, unlike the cases on

which plaintiff relies, here there was substantial evidence

establishing that Weirton’s workers were not separated from their

employment due to the impact of foreign trade, as 19 U.S.C.

§ 2272 requires.    In other words, substantial record evidence
Court No. 04-00492                                      Page 21

demonstrated that the conditions that led to the 2002

Certification no longer existed at the time the workers were

separated.

     This situation is thus distinguishable from the Department’s

determination in Thomson.   In Thomson, the remaining workers

would have been separated during the certification period had

they not been required by state regulation to stay on the job in

order to submit a plan concerning the removal of hazardous

materials from the facility.   Thomson, 72 Fed. Reg. at 5,750.

Put another way, but for the state regulatory requirements, the

remaining workers would have been terminated prior to the

expiration of the certification.   Therefore, the reason for their

ultimate termination was the impact of foreign trade.   This

contrasts with Weirton’s situation where Labor’s intervening

investigation revealed just the oppositeSSthat the company’s

remaining workers were not, in fact, terminated due to the impact

of foreign trade.

     As a result, the court cannot conclude that Labor’s reliance

on the results of its intervening investigation, which this court

sustained in Steelworkers I, “represents an unreasonable judgment

in weighing relevant factors” so as to render its determination

arbitrary and capricious.   Star Fruits S.N.C. v. United States,

393 F.3d 1277, 1281 (Fed. Cir. 2005) (citation omitted).    In the

Remand Results, the Department explained that the workers who
Court No. 04-00492                                      Page 22

lost their jobs after April 23, 2004 “belong in a worker group

that is separately identifiable” from those who lost their jobs

prior to April 23, 2004 because of both the operation of the law

and by reason of intervening facts.   Remand Results at 20.   That

is, the Department reasoned that the 2002 Certification expired

on April 23, 2004 by operation of 19 U.S.C. § 2291(a)(1)(B), and

after that point, it became Labor’s duty to assess whether “the

events that caused the separations after April 23, 2004 are

identical to those that were the basis for the certification.”

Remand Results at 20.   In turn, the Department concluded that

these workers were not, in fact, similarly situated because

Weirton’s post-April 23, 2004 workforce was separated from the

company because of ISG’s decision not to keep these workers on,

rather than from increased imports.   See Remand Results at 20-21.

Notwithstanding the court’s finding that Labor has had no clear

policy for certification extensions prior to the issuance of the

Remand Results, the court cannot conclude that this distinction

was unreasonable.



                            CONCLUSION

     The court finds that the Department’s Remand Results are

sufficiently in accordance with the instructions set forth in its

prior opinion.   Accordingly, the court further finds that Labor

acted within its discretion, and did not act in an arbitrary and
Court No. 04-00492                                        Page 23

capricious manner, in concluding that an amendment to the 2002

Certification was not warranted here.   Therefore, for the reasons

stated, the Remand Results are sustained.    Judgment shall be

entered accordingly.


                                            /s/Richard K. Eaton
                                               Richard K. Eaton



Dated:    April 30, 2009
          New York, New York
