02-2341. Agere Systems Optoelectronics Division, Reading and Breinigsville, PA; Notice of Negative Determination Regarding Application for Reconsideration

By application of October 5, 2001 and October 8, 2001, the International Brotherhood of Electrical Workers, Local 1560 and the International Brotherhood of Electrical Workers, Local 1898, respectively requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA) under petition TA-W-39,449A and North American Free Trade Agreement-Transitional Adjustment Assistance (NAFTA-TAA) under petition NAFTA-4955A and Trade Adjustment Assistance (TAA) under petition TA-W-39,437A and North American Free Trade Agreement-Transitional Adjustment Assistance (NAFTA-TAA) under petition NAFTA-4954, respectively. The denial notices applicable to workers of Agere Systems, Optoelectronics Division, Breinigsville, Pennsylvania, were signed on August 29, 2001 (TA-W-4937A and TA-W-39,449A), and August 23, 2001 (NAFTA-4955A and NAFTA-4954) and published in the Federal Register on September 11, 2001 (66 FR 47241) and (66 FR 47243), respectively.

Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:

(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;

(2) if it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or

(3) if in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.

The TAA petitions, filed on behalf of workers at Agere Systems, Optoelectronics Division, Breinigsville, Pennsylvania, and Agere Systems, Optoelectronics Division, Reading, Pennsylvania producing optoelectronics, were denied because the “contributed importantly” group eligibility requirement of section 222(3) of the Trade Act of 1974, as amended, was not met. The “contributed importantly” test is generally demonstrated through a survey of the workers' firm's customers. The survey revealed no increased customer imports of optoelectronics during the relevant period. The investigation further revealed that imports of optoelectronics by the company were negligible.

The NAFTA-TAA petitions for the same worker groups were denied because criteria (3) and (4) of the group eligibility requirements in paragraph (a)(1) of section 250 of the Trade Act, as amended, were not met. A survey was conducted and revealed that customers did not increase their imports of optoelectronics from Mexico or Canada during the relevant period. The subject firm did not import optoelectronics from Mexico or Canada, nor was production of optoelectronics shifted from the workers' firm to Mexico or Canada.

The petitioners allege that plant production is being shifted to Asia and Mexico and that the products will be imported back to the United States.

The petitioners supplied information concerning the company's manufacturing strategy concerning the transfer of plant production to Asia, in conjunction with various other factors that are scheduled to occur. The planned transfer and potential imports are beyond the relevant period of the initial investigation and thus could not be considered during the investigation.

The petitioners further allege that certain products produced by the subject plant were being outsourced to Canada and/or Mexico.

Based on data supplied by the company, only negligible amounts of products produced by the subject plant were being outsourced to foreign sources.

The petitioners also indicated that some modulators, similar to those produced by the subject plant, are scheduled to be made in Singapore.

The shift in production to Singapore does not meet the “contributed importantly” test unless the product was imported back to the United States during the investigation period.

The majority of the information recently provided by the petitioners concerns a time period following the initial decision. The petitioner with their request for reconsideration, attached new TAA and NAFTA-TAA petitions for the Breiningsville, Pennsylvania plant. Those petitions will be instituted shortly. The Department based on the information provided during reconsideration is also initiating new TAA and NAFTA-TAA investigations for the Reading, Pennsylvania location.

Conclusion

After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decisions. Accordingly, the application is denied.

Signed at Washington, DC, this 15th day of January, 2002.

Edward A. Tomchick,

Director, Division of Trade Adjustment Assistance.