[Federal Register Volume 74, Number 40 (Tuesday, March 3, 2009)]
[Notices]
[Pages 9290-9291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4389]


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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