02-13544. SEH-America, Vancouver, WA; Notice of Negative Determination Regarding Application for Reconsideration

By application received February 26, 2002, the petitioner, 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). The denial notice was signed on January 2, 2002 and published in the Federal Register on January 11, 2002 (67 FR 1511).

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 mis-interpretation of facts or of the law justified reconsideration of the decision.

The TAA petition, filed on behalf of workers at SEH-America, Vancouver, Washington engaged in the production of polished silicon wafers (6 & 8 inch), was denied because the “contributed importantly” group eligibility requirement of section 222(3) of the Trade Act of 1974, as amended, was not met. The subject firm did not import 6-inch silicon wafers produced by SEH-America at Vancouver, Washington. The subject firm has always imported 8-inch wafers (a different product entirely), but company imports of that item have been declining in recent years.

The investigation further revealed that the subject firm intended to shift some 6-inch wafer production offshore, and in the future import the product back into the U.S. for sale and distribution in this country. The move, however, was scheduled for later in 2002.

The petitioner alleges that another company was certified under NAFTA-Transitional Adjustment (NAFTA-TAA) when that company shifted their production to Mexico and thus feels that a shift in 6-inch wafer production by the subject firm to Malaysia should qualify the workers of SEH-America, Vancouver, Washington eligible to apply for TAA.

Under NAFTA-TAA, a shift in subject plant production to Mexico or Canada normally meets the eligibility requirements. However, under TAA a shift in plant production to any foreign source is not relevant to meeting the eligibility requirement of section 222(3) of the Trade Act of 1974. Imports “like or directly competitive” with what the subject plant produced must “contribute importantly” to the layoffs at the subject firm. The imports must be entering the Untied States during the relevant period.

A review of the initial decision shows that imports of the 6-inch wafers were not scheduled to begin arriving until mid-2002, well beyond the relevant period of the investigation. The workers were advised to submit a new petition during the relevant period of time the 6-inch wafers were scheduled to arrive into the United States from Malaysia.

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 30th day of April, 2002.

Edward A. Tomchick,

Director, Division of Trade Adjustment Assistance.