The United States Court of International Trade (USCIT) granted the Secretary of Labor's motion for a second voluntary remand for further investigation in Former Employees of Ericsson, Inc. v. U.S. Secretary of Labor (Court No. 02-00809).
The Department's denial of the initial Trade Adjustment Assistance (TAA) petition was issued on April 15, 2003. The Notice of determination was published in the Federal Register on August 18, 2003 (68 FR 49522). The negative determination was based on the finding that the worker group did not produce an article within the meaning of section 222 of the Trade Act of 1974, as amended. The workers performed software development.
The Department's denial of the initial NAFTA-TAA petition was issued on September 24, 2002. The notice of determination was published in the Federal Register on October 10, 2002 (67 FR 63160). The negative determination was based on the finding that the worker group did not produce an article within the meaning of section 250(a) of the Trade Act of 1974, as amended. Workers at the subject facility developed software for other Ericsson units.
The Plaintiffs requested judicial review of the TAA case by letter to the USCIT, filed on December 18, 2002. In the letter, the Plaintiffs contended that the Department failed to fully investigate the TAA petition, that the subject worker group was misclassified, and that the Department did not correctly apply the statutory criteria. On August 20, 2003, the USCIT granted the Plaintiff's motion to consolidate the TAA case into the NAFTA case. On September 11, 2003, the USCIT issued a Voluntary Remand Order, directing the Department to determine whether the workers are eligible for benefits.
During the remand investigation, the Department investigated whether the workers produced an article and, if so, whether the workers were eligible to apply for NAFTA-TAA. The investigation found that the subject worker group did not produce an article within the meaning of the Trade Act. The Department issued a Notice of Negative Determination on Reconsideration on Remand on January 14, 2004. The notice of determination was published in the Federal Register on January 23, 2004 (69 FR 3394).
On October 13, 2004, the USCIT again remanded the matter to the Department, finding that the Department failed to adequately investigate the Plaintiff's claims and that the Department's findings were unsupported by substantial evidence on the record. The USCIT directed the Department to investigate whether the workers were eligible for benefits.
During the second remand investigation, the Department raised additional questions and obtained detailed supplemental responses from the company. In particular, the new information indicates that, in addition to software development, the subject worker group supported production at an affiliated software production facility. As such, the subject worker group did engage in activity related to the production of an article. The second remand investigation also revealed that all production at the affiliated facility shifted to Canada during the relevant period and the subject firm simultaneously began importing the product from Canada.
The investigation revealed that the subject facility experienced employment declines during the relevant time and that the workers were in support of an affiliated production facility that is TAA and NAFTA-TAA certifiable. As such, the Department determines that the subject worker group meets the statutory criteria for TAA and NAFTA-TAA certification.
After careful review of the additional facts obtained on remand, I determine that a shift of production to Canada of articles like or directly competitive with those produced by the subject firm and the simultaneous imports of those articles from Canada, contributed importantly to the worker separations and sales or production declines at the subject firm.
In accordance with the provisions of the Trade Act, I make the following certification:
“All workers of Ericsson, Inc., Brea, California (TA-W-51,173), who became totally or partially separated from employment on or after January 6, 2002, through two years from the issuance of this revised determination, are eligible to apply for worker adjustment assistance under section 223 of the Trade Act of 1974,” and “All workers of Ericsson, Inc., Brea, California (NAFTA 6472), who became totally or partially separated from employment on or after August 1, 2001, through two years from the issuance of this revised determination, are eligible to apply Start Printed Page 6736for NAFTA-TAA under section 250 of the Trade Act of 1974.”Start Signature
Signed in Washington, DC this 31st day of January 2005.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E5-485 Filed 2-7-05; 8:45 am]
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