[Federal Register Volume 73, Number 147 (Wednesday, July 30, 2008)]
[Notices]
[Pages 44285-44287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17379]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-58,624]


Fairchild Semiconductor International Mountain Top, Pennsylvania; 
Notice of Revised Determination on Remand

    On April 18, 2008, the U.S. Court of International Trade (USCIT) 
remanded to the Department of Labor (Department) for further 
investigation the matter Former Employees of Fairchild Semiconductor 
Corporation v. United States Secretary of Labor, Court No. 06-00215.
    In the January 11, 2006 petition for Trade Adjustment Assistance 
(TAA) and Alternative Trade Adjustment Assistance (ATAA), an official 
of Fairchild Semiconductor International (the subject firm) alleged 
that production of ``discrete semiconductor devices'' at Fairchild 
Semiconductor International, Mountain Top, Pennsylvania (the subject 
facility) ``deteriorated because of a transfer of production'' abroad 
and that its customers are ``purchasing similar devices from other 
suppliers with locations in foreign countries.'' AR 3-4.
    The initial investigation revealed that semiconductor wafers were 
produced at the subject facility during the relevant period, AR 27-28, 
30, 42, that the subject facility shifted semiconductor wafer 
production to China, AR 27-28, and that the subject facility did not 
import semiconductor wafers after the shift. AR 7, 27, 59.
    On February 28, 2006, the Department issued a negative 
determination regarding workers' eligibility to apply for TAA and ATAA 
for those workers of the subject facility. AR 41. The Department's 
Notice of determination was published in the Federal Register

[[Page 44286]]

on March 24, 2006 (71 FR 14954). AR 55.
    By application dated March 20, 2006, the petitioner requested 
administrative reconsideration of the Department's negative 
determination. The request for reconsideration stated that the subject 
facility produces ``semiconductor wafer chips'' and that semiconductor 
wafer chips are like or directly competitive with discrete 
semiconductor devices. AR 57.
    By letter dated April 26, 2006, the Department dismissed the 
request for reconsideration, stating that discrete semiconductor 
devices are not like or directly competitive with semiconductor wafer 
chips and that the subject facility was not directly impacted by 
increased imports of semiconductor wafers. AR 60. The Department's 
Dismissal of the Application for Reconsideration was issued on May 1, 
2006. AR 63. The Department's Notice of dismissal was published in the 
Federal Register on May 10, 2006 (71 FR 27292). AR 64.
    In a letter filed with the USCIT on June 21, 2006, the Plaintiff 
sought judicial review. In the complaint, the Plaintiff alleged that 
the subject workers should be certified based on a shift of production 
followed by increased imports of articles, and that the workers should 
be certified because they are similarly situated as the workers covered 
by TA-W-53,335. The Department agreed to a remand to discuss this 
issue.
    On remand, the Department determined that the subject workers 
produced semiconductor wafers and that increased imports of finished 
semiconductor devices cannot be the basis for certification of a 
petition applicable to workers engaged in the production of 
semiconductor wafers. In the determination, the Department stated that 
the denial was appropriate because the two articles are neither like 
nor directly competitive with each other. The Department issued a 
negative determination on remand on April 27, 2007. The Department's 
Notice of determination was published in the Federal Register on May 3, 
2007 (72 FR 24613).
    In its April 18, 2008 opinion, the USCIT stated that the 
Department's identification of the article at issue was confusing based 
on the record before the court, and, therefore, the Department's 
determination was not ``supported by substantial evidence.'' The USCIT 
thereupon remanded the case to the Department for further investigation 
as to whether there were increased imports during the relevant period 
of articles like or directly competitive with semiconductor wafers 
produced by the subject workers following the shift of production to a 
foreign country.
    To address the USCIT's concerns in its April 18, 2008 order, the 
Department made efforts to better understand this industry and the 
operations of the subject facility during the second remand 
investigation. These efforts include further investigation of actual 
plant operations, SAR 22, 28-35, and researching the semiconductor 
wafer production process and the semiconductor chip production process. 
SAR 5-21, 39-42.
    To clarify its findings in the second remand investigation, the 
Department sets forth the following terms and definitions:
     ``Wafer'' means the thinly sliced and polished disc, 
usually 4-8 inches in diameter and made of silicon, upon which 
semiconductor chips are made;
     ``Semiconductor chip'' (also referred to as a ``chip'') 
means the multiple layers of circuitry that are stacked on a wafer, 
with the wafer as the base layer;
     ``Semiconductor wafer'' means a wafer that has stacked on 
it hundreds or thousands of semiconductor chips (depending on the 
surface area of the wafer and the dimensions of each chip);
     ``Die'' means a semiconductor chip that is separated from 
the wafer upon which it was created; and
     ``Semiconductor device'' (also referred to as an 
integrated circuit) means that the die has been mounted on a lead-wire 
harness and packaged (the die in the harness is encapsulated, usually 
in plastic).
    Based on the January 11, 2006 petition date, the relevant period 
for purposes of determining TAA eligibility in the case at hand is 
January 2005 through December 2005, and the article produced by the 
subject firm during January 2005 through December 2005 is the focus of 
the TAA investigation.
    As part of its efforts to accurately identify the article produced 
at the Fairchild, Mountain Top, Pennsylvania facility during the 
relevant period, the Department received information from the company 
official who filed the petition (a senior human resources associate), 
SAR 22, the human resources manager of Fairchild, Mountain Top, 
Pennsylvania, SAR 22, Fairchild legal counsel, SAR 31, 34, 39 and the 
managing director of all operations at Fairchild, Mountain Top, 
Pennsylvania. SAR 34.
    According to the senior human resources associate, the subject 
facility produced semiconductor chips in 8-inch wafer form. The senior 
human resources associate further stated that he believes that the 
subject facility produced semiconductor wafers and semiconductor chips 
because each chip on the wafer is fully functional as designed. This 
individual also stated that semiconductor wafers produced at the 
subject facility are sent to Asia. SAR 22.
    According to the human resources manager of Fairchild, Mountain 
Top, Pennsylvania, the subject facility produced 8-inch semiconductor 
wafers bearing semiconductor chips. The human resources manager further 
stated that because the wafer becomes part of the semiconductor chip, 
the terms semiconductor wafers and semiconductor chip are 
interchangeable. This official also stated that the subject facility 
only produced semiconductor wafers and not semiconductor devices as the 
semiconductor wafers are sent to Asia to be cut into die and packaged. 
SAR 22.
    In efforts to reconcile the seemingly contradictory statements by 
the senior human resources associate and the human resources manager, 
the Department contacted Fairchild's legal counsel for clarification. 
SAR 23-33. Fairchild legal counsel sent the Department a link to an 
Internet site that describes the article produced at the subject 
facility. SAR 39. Legal counsel also requested that the managing 
director of operations at Fairchild, Mountain Top, Pennsylvania, 
identify what activities took place at the subject firm during the 
relevant period. SAR 34. This individual was directly involved in the 
manufacturing of these products and has the most experience and 
expertise in the actual production line and the products manufactured. 
SAR 34.
    According to the managing director, only steps 8, 9, and 10 as 
described in the pamphlet ``HOW TO MAKE AN INTEGRATED CIRCUIT: A step-
by-step guide for the serious do-it-yourselfer'' were done at the 
subject facility during the relevant period. SAR 34, 37-38. As found in 
the second remand investigation, the process at the subject facility 
starts with a ``wafer'' as above defined.
    At the end of this process (steps 8-10 of the ``HOW TO MAKE AN 
INTEGRATED CIRCUIT'' pamphlet), SAR 37-38, the subject facility has 
produced a ``semiconductor wafer'' which may contain hundreds or 
thousands of individual ``chips'' as indicated by the managing 
director. SAR 34, 37-38. Because the managing director is fully 
knowledgeable about the activities that took place at the subject 
facility during the relevant period and about the semiconductor 
production process, during this remand

[[Page 44287]]

investigation, the Department relied on facts provided by the managing 
director in determining that, during the relevant period, the subject 
facility produced semiconductor wafers.
    The Department also considered in the second remand investigation 
whether that shift of production could provide a basis for 
certification of the petitioning workers even though the subject 
facility did not import semiconductor wafers after that production 
shift.
    In order for a group of workers to meet the certification 
requirements under Section 222(a)(1) and Section 222(a)(2)(B) of the 
Trade Act of 1974, as amended, the Department must determine that the 
following was satisfied:
    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. 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
    C. One of the following must be satisfied:
    1. 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; or
    2. 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
    3. 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.
    Because semiconductor wafer production shifted from the subject 
facility to China, a country that does not fall within subparagraphs 
C.1. or C.2. above, the only issue at hand is whether, following the 
shift of production abroad, there has been or is likely to be an 
increase of imports of articles like or directly competitive with the 
semiconductor wafers produced by the subject firm or subject facility.
    During the second remand investigation, the Department obtained new 
information which revealed that, after the subject firm shifted 
semiconductor wafer production from the subject facility to China, the 
subject firm is likely to import semiconductor wafers that are like 
those produced at the subject facility. This fact was revealed during 
the investigation of petition TA-W-63,121 (Fairchild Semiconductor 
Corporation, Wafer Sort Department, Including On-Site Leased Workers 
from Manpower, South Portland, Maine; issued May 20, 2008; published in 
the Federal Register on June 3, 2008 at 73 FR 31716). As such, the 
Department determines that following the shift of production to China, 
the subject firm is likely to import semiconductor wafers that are like 
those produced by the subject workers during the relevant period.
    Based on the aforementioned information, the Department has 
determined that there was a shift in production by the subject firm of 
articles like or directly competitive with the semiconductor wafers 
produced by the subject facility to a foreign country, and that, 
following the shift of production, there was a likely increase in 
imports by the subject firm of articles that are like or directly 
competitive with the semiconductor wafers produced at the subject 
facility.
    In accordance with Section 246 the Trade Act of 1974 (26 U.S.C. 
2813), as amended, the Department herein presents the results of its 
investigation regarding certification of eligibility to apply for ATAA. 
The Department has determined in this case that the group eligibility 
requirements of Section 246 have been met.
    A significant number of workers at the firm are age 50 or over and 
possess skills that are not easily transferable. Competitive conditions 
within the industry are adverse.

Conclusion

    After careful review of the facts generated through the second 
remand investigation, I determine that there was a total or partial 
separation of a significant number or proportion of workers at the 
subject facility, and that there was a shift in production to a foreign 
country followed by likely increased imports by the subject firm of 
articles like or directly competitive with semiconductor wafers 
produced at the subject facility.
    In accordance with the provisions of the Act, I make the following 
certification:

    All workers of Fairchild Semiconductor International, Mountain 
Top, Pennsylvania, who became totally or partially separated from 
employment on or after January 11, 2005, through two years from the 
issuance of this revised determination, are eligible to apply for 
Trade Adjustment Assistance under Section 223 of the Trade Act of 
1974, and are eligible to apply for alternative trade adjustment 
assistance under Section 246 of the Trade Act of 1974.

    Signed at Washington, DC, this 22nd day of July 2008.
 Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E8-17379 Filed 7-29-08; 8:45 am]
BILLING CODE 4510-FN-P