[Federal Register: March 3, 2009 (Volume 74, Number 40)]
[Notices]
[Page 9290-9291]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03mr09-110]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-59,517]
Advanced Electronics, Inc., Boston, MA; Notice of Negative
Determination on Remand
On November 18, 2008, the U.S. Court of International Trade (USCIT)
remanded to the Department of Labor (Department) for further
investigation Former Employees of Advanced Electronics, Inc. v. United
States Secretary of Labor (Court No. 06-00337).
On July 18, 2006, the Department issued a Negative Determination
regarding eligibility to apply for Trade Adjustment Assistance (TAA)
and Alternative Trade Adjustment Assistance (ATAA) applicable to
workers and former workers of Advanced Electronics, Inc., Boston,
Massachusetts (subject firm). The Department's Notice of determination
was published in the Federal Register on August 4, 2006 (71 FR 44320).
Prior to separation, the subject workers produced printed circuit board
assemblies.
The negative determination was based on the Department's findings
that, during the relevant period, the subject firm did not shift
production of printed circuit board assemblies to a foreign country,
that the subject firm did not import printed circuit board assemblies
(or like or directly competitive articles), and that the subject firm's
major declining customers did not import printed circuit board
assemblies (or like or directly competitive articles). Further, the
Department determined that a portion of the decline in company sales of
printed circuit board assemblies is attributed to declining purchases
from a foreign customer during the relevant period.
Administrative reconsideration was not requested by any of the
parties pursuant to 29 CFR section 90.18.
On October 23, 2007, the USCIT granted the Department's request for
voluntary remand to conduct further investigation to determine whether,
during the relevant period, any of the foreign customer's facilities
located in the United States received printed circuit boards produced
by the subject firm and, if so, whether the facility(s) had imported
articles like or directly competitive with the printed circuit board
assemblies produced by the subject firm.
Based on information obtained during the first remand investigation
(that the subject firm sent the articles purchased by the foreign
customer to a facility located outside of the United States), the
Department determined that the foreign customer did not import articles
like or directly competitive with the printed circuit board assemblies
produced by the subject firm. On December 17, 2007, the Department
issued a Notice of Negative Determination on Remand. The Department's
Notice of negative determination was published in the Federal Register
on December 31, 2007 (72 FR 74340).
Although the USCIT stated in its November 18, 2008 opinion that
substantial evidence supported the Department's finding that increasing
imports of like or directly competitive articles did not contribute
importantly to the subject firm's decreased sales to domestic
customers, the USCIT also stated that it ``declines to adopt a
construction of the Act under which Labor need never consider, in any
circumstances, whether increased imports of a like or directly
competitive article contributed importantly to a plaintiff's separation
by causing the employer to lose business from a customer outside of the
United States.''
The USCIT, in its November 18, 2008 order, directs the Department
during the second remand investigation to ``determine whether, and to
what extent, an increase in imports into the United States of articles
like or directly competitive with the Company's printed circuit boards
caused the Company to lose business from its foreign customer.''
On second remand, the Department conducted an investigation to
determine whether the foreign customer switched its order from the
subject firm to another domestic firm that imported some or all of the
printed circuit boards it supplied to the subject firm's foreign
customer.
In order to apply for TAA based on increased imports, the subject
worker group must meet the group eligibility requirements under Section
222(a) of the Trade Act of 1974, as amended. Under Section
222(a)(2)(A), the following criteria must be met:
A. 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
B. The sales or production, or both, of such firm or subdivision
have decreased absolutely; and
C. Increased imports of articles like or directly competitive
with articles produced by such firm or subdivision have contributed
importantly to such workers' separation or threat of separation and
to the decline in
[[Page 9291]]
sales or production of such firm or subdivision.
The Department has previously determined that because the subject
firm closed on September 2005, criteria (A) and (B) have been met.
Therefore, the only issue at hand is whether criterion (C) has been
met.
29 CFR Section 90.16(b)--Requirements for determinations--states,
in part, that ``the certifying officer shall make findings of fact
concerning whether * * * (3) increases (absolute or relative) of
imports of articles like or directly competitive with articles like or
directly competitive with articles produced by such workers' firm or
appropriate subdivision thereof contributed importantly to such total
or partial separation, or threat thereof, and to such decline in sales
or production.''
The corollary to the regulation is that if the certifying officer
finds no such increased imports, whether or not the absent factor
``contributed importantly'' to ``such total or partial separation, or
threat thereof, and to such decline in sales or production'' is moot.
29 CFR Section 90.2--Definitions--states that ``Increased imports
means that imports have increased either absolutely or relative to
domestic production compare to a representative base period. 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.''
Because the date of the petition is June 5, 2006, the investigatory
period is June 2005 through May 2006 and the representative base period
is June 2004 through May 2005.
During the second remand investigation, the Department obtained new
information that shows that when the subject firm ceased operations in
2005, the foreign customer replaced printed circuit boards produced by
the subject firm with those produced by a preferred vendor. The
preferred vender is another domestic company. The new information also
shows that the printed circuit boards supplied by the preferred vendor
was produced outside the United States and shipped from the foreign
production facility to the foreign customer.
The Department determines that while the foreign customer did
switch its order from the subject firm to another domestic vendor, the
domestic vendor that replaced the subject firm did not import into the
United States any of the printed circuit boards it sold to the subject
firm's foreign customer.
Because there was no finding of increased imports of article like
or directly competitive with the printed circuit boards produced by the
subject firm, it is moot whether or not the ``contributed importantly''
portion of the regulation has been satisfied. Therefore, the Department
determines that TAA criterion (C) has not been met.
In order for the Department to issue a certification of eligibility
to apply for ATAA, the subject worker group must be certified eligible
to apply for TAA. Since the subject workers are not eligibility to
apply for TAA, the workers cannot be certified eligible for ATAA.
Conclusion
After careful reconsideration, I affirm the original notice of
negative determination of eligibility to apply for worker adjustment
assistance for workers and former workers of Advanced Electronics,
Inc., Boston, Massachusetts.
Signed at Washington, DC this 19th day of February 2009.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E9-4389 Filed 3-2-09; 8:45 am]
BILLING CODE 4510-FN-P