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Electric Mobility Corporation, Sewell, NJ; Notice of Revised Determination on Remand

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On May 21, 2008, the United States Court of International Trade (USCIT) granted the Department of Labor's motion for voluntary remand for further investigation in Former Employees of Electric Mobility Corporation v. U.S. Secretary of Labor, Court No. 08-00079.

The petition for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) petition, dated October 2, 2007, was filed on behalf of workers and former workers of Electric Mobility Corporation, Sewell, New Jersey (the subject firm). AR 1. The petition indicated that the workers produced “medical and mobility devices” and that the subject workers are employed by a firm or subdivision that has increased imports of like or directly competitive articles and/or has shifted production of the article to a foreign country. AR 1-2. The petition also noted the reason the petitioner believes the workers are eligible for TAA and ATAA is that workers at the subject firm were “previously certified under TA-W-56342, expired 2/4/07.” AR 2.

To apply for TAA, the group eligibility requirements under Section 222(a) the Trade Act of 1974, as amended, must be met. The group eligibility requirements can be satisfied in either one of two ways:

I. Section (a)(2)(A)—

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; or

II. Section (a)(2)(B)—

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. There has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and

C. One of the following must be satisfied:

1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States; or

2. The country to which the workers' firm has shifted production of the articles is a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or

3. There has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.

On November 1, 2007, the Department of Labor (Department) issued a negative determination regarding eligibility to apply for worker adjustment assistance for workers and former workers of the subject firm. AR 28.

The initial investigation revealed that the subject workers are not separately identifiable by product line, AR 27, and that since the certification applicable to TA-W-56,342 expired on February 4, 2007, the subject firm did not separate or threaten to separate a significant number or proportion of workers as required by Section 222 of the Trade Act of 1974. AR 27.

On November 15, 2007, the Department's Notice of negative determination applicable to the subject workers was published in the Federal Register (72 FR 64247). AR 35.

In the request for administrative reconsideration, dated November 19, 2007, a worker alleged that “there was a work force reduction of over 5% for a company with over 50 employees” and provided documentation in support of the allegation. AR 36-39.

The Department issued a Notice of Affirmative Determination Regarding Application for Reconsideration on November 26, 2007. AR 66. In a letter, dated November 28, 2007, the Department informed the petitioning worker of the determination. AR 69. The Notice of Affirmative Determination was published in the Federal Register on December 3, 2007 (72 FR 67965). AR 70.

On December 19, 2007, the Department issued a Notice of Negative Determination on Reconsideration. The determination stated that while “workers were laid off from the subject firm during the relevant time period * * * overall employment at the subject firm has increased from October 2006 to September 2007.” The Department concluded that since employment levels at the subject firm did not decline during the relevant period and that there were no threats of separations during the relevant period, the subject firm did not separate or threaten to separate a significant number or proportion of workers as required by Section 222 of the Trade Act of 1974. AR 72-73.

In a letter, dated December 27, 2007, the Department informed the petitioning worker of the negative determination. AR 74. The Notice of Negative Determination was published in the Federal Register on January 10, 2008 (73 FR 1897). AR 75.

In the complaint to the USCIT, dated February 25, 2008, the Plaintiff alleged that, during the relevant period, the subject firm did separate or threaten to separate a significant number or proportion of workers. Attached to the complaint is a copy of a message from the “Lead Auditor” of “the ISO Registrar (TUV)” that stated that “during the audit of 10/30/06 the head count was 343. In November of 2006 there was a reduction of 75 for a total of 268. In May of 2007 there was a reduction of 18 for a total of 250. The total headcount on 10/24/2007 was 250.”

On May 21, 2008, the USCIT granted the Department's request for voluntary remand for further investigation.

On remand, the Department sought additional information from Plaintiff's counsel, SAR 1, 5, and requested clarification regarding subject firm employment levels during the relevant period. SAR 32-35. As a result of these efforts, the Department was able to obtain crucial information not previously available.

During the remand investigation, Plaintiff's counsel stated that his client had additional information that was not in the administrative record, SAR 1, and submitted new information for the Department's consideration. SAR 6-29.

During the remand investigation, a subject firm official explained how previously-submitted employment data was unclear, SAR 32, and provided revised employment figures for the relevant period (October 2, 2006 through October 2, 2007). SAR 37.

Based on the above information, the Department determines that employment levels at the subject firm did decline during the relevant period. As such, the Department determines that Section (a)(2)(A)(A) has been met.

Earlier submissions revealed that sales and production at the subject firm declined in 2006 from 2005 levels and declined during January through September 2007 from the corresponding period the prior year. AR 12. As such, the Department determines that Section (a)(2)(A)(B) has been met.

Earlier submissions also revealed that, during the relevant period, the subject Start Printed Page 42374firm increased reliance on imports of articles like or directly competitive with medical and mobility devices produced by the subject workers. AR 12. As such, the Department determines that Section (a)(2)(A)(C) has been met.

In accordance with Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department herein presents the results of its investigation regarding certification of eligibility to apply for ATAA. The Department has determined in this case that the group eligibility requirements of Section 246 have been met.

A significant number of workers at the firm are age 50 or over and possess skills that are not easily transferable. Competitive conditions within the industry are adverse.

Conclusion

After careful review of the facts developed in the remand investigation for workers of Electric Mobility Corporation, Sewell, New Jersey, I determine that there was a total separation of a significant number or proportion of workers at the subject firm, that there was a decline in sales and production, and that increased imports of articles like or directly competitive with medical and mobility devices produced by the subject firm contributed importantly to the decline in sales and production and the worker separations at that firm.

In accordance with the provisions of the Act, I make the following certification:

All workers of Electric Mobility Corporation, Sewell, New Jersey, who became totally or partially separated from employment on or after February 5, 2007, through two years from the issuance of this revised determination, are eligible to apply for Trade Adjustment Assistance under Section 223 of the Trade Act of 1974, and are eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.

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Signed at Washington, DC this 10th day of July 2008.

Linda G. Poole,

Certifying Officer, Division of Trade Adjustment Assistance.

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[FR Doc. E8-16564 Filed 7-18-08; 8:45 am]

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