2010-9485. Advanced Electronics, Inc.; Boston, MA; Notice of Negative Determination on Remand

On July 16, 2009, 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 determination was based on the Department's findings that the subject firm did not shift production of printed circuit board (PCB) assemblies to a foreign country or import PCB assemblies or like or directly competitive articles, and that the subject firm's major declining customers did not import PCB assemblies or like or directly competitive articles. Further, the Department determined that a portion of the decline in company sales of PCB assemblies was 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 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 PCB assemblies produced by the subject firm and, if so, whether the facility(s) had imported articles like or directly competitive with the PCB assemblies produced by the subject firm.

Based on information obtained during the first remand investigation, the Department determined that the foreign customer did not import articles like or directly competitive with the PCB assemblies produced by the subject firm and issued a Notice of Negative Determination on Remand on December 17, 2007. The Department's Notice of determination was published in the Federal Register on December 31, 2007 (72 FR 74340).

Although its November 18, 2008 opinion stated 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 directed the Department 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.”

Based on information obtained during the second remand, the Department determined that, although the foreign customer did switch from the subject firm to another domestic firm, the domestic customer did not import PCB assemblies that it supplied to the subject firm's foreign customer. On February 19, 2009, the Department issued a Notice of Negative Determination on Remand. The Department's Notice of determination was published in the Federal Register on March 3, 2009 (74 FR 9290). SAR 27.

On July 16, 2009, the USCIT granted the Department's request for voluntary remand to address the Plaintiff's allegation that the foreign customer replaced the subject firm with two domestic customers and to determine whether increased imports by either, or both, of the domestic customers, of PCB assemblies that were supplied to the subject firm's foreign customer, contributed importantly to worker separations at the subject firm. SAR 94-104.

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, that were in effect on June 5, 2006.

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 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 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 sole issue is whether imports during June 2005 through May 2006 were greater than during June 2004 through May 2005.

During the third remand investigation, the Department contacted the foreign customer, SAR 30-40, company officials of both domestic companies that replaced the subject firm, SAR 41-59, 63-162, and issued a subpoena, 131-138, to obtain information necessary to make a determination regarding the subject workers' eligibility to apply for TAA.

During the third remand investigation, the Department confirmed 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 two preferred vendors, both vendors are domestic companies. SAR 30, 35, 38. The Department also obtained information from each vendor that the PCB assemblies supplied to the foreign customer were produced outside the United States and shipped from the foreign production facility without entering the United States en route to the foreign customer. SAR 41, 44-47, 50, 56, 58, 59-62, 64, 67-68, 105, 108-109, 121, 139, 147-149, 151-152, 154, 159, 161-163.

Because neither of the domestic companies that replaced the subject firm as the preferred vendor of the foreign customer imported articles like or directly competitive with the PCB assemblies produced by the subject firm, 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 eligible 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 15th day of April 2010.

Del Min Amy Chen,

Certifying Officer, Division of Trade Adjustment Assistance.