                         Slip Op. 07 - 38

           UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - -x

FORMER EMPLOYEES OF FAIRCHILD SEMI-     :
CONDUCTOR CORP.,
                                        :
                          Plaintiffs,
                                        :
               v.                           Court No. 06-00215
                                        :
UNITED STATES SECRETARY OF LABOR,
                                        :
                          Defendant.
                                        :
- - - - - - - - - - - - - - - - - -     x


                          Memorandum & Order

[Remand to defendant for reconsideration
 of negative determination(s) regarding
 eligibility for trade-adjustment assistance.]



                                            Decided:   March 13, 2007


     Robert R. Petruska, pro se.

     Peter D. Keisler, Assistant Attorney General; Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Jeffrey S. Pease); and Office of the Solicitor, U.S.
Department of Labor (Vincent Costantino), of counsel, for the
defendant.


          AQUILINO,   Senior   Judge:       In   necessarily   denying

plaintiffs' motion for leave to proceed in forma pauperis herein

per slip opinion 06-173, 30 CIT ___ (Nov. 21, 2006), the court
Court No. 06-00215                                                       Page 2


nevertheless      confirmed     its   commitment     to    timely   review   their

instant       appeal   from     the   Negative     Determinations      Regarding

Eligibility      To    Apply    for   Worker     Adjustment     Assistance    And

Alternative Trade Adjustment Assistance of the Employment and

Training Administration ("ETA"), U.S. Department of Labor, TA-W-

58,624 (Feb. 28, 2006).1         It has now done so.


                                             I

              Jurisdiction is based upon 28 U.S.C. §§ 1581(d)(1) and

2631(d)(1), which refer to

       any final determination of the Secretary of Labor under
       section 223 of the Trade Act of 1974 with respect to the
       eligibility of workers for adjustment assistance under
       such Act[.]


That section 223, 19 U.S.C. §2273, requires the Secretary to

determine      whether   a     petitioning   group    of    workers   meets   the

requirements of preceding section 2272 and to issue a certification

of eligibility to apply for trade-adjustment assistance under that

act.       That certification ensues, in general, if it is determined

that

            (1) a significant number or proportion of the
       workers in such workers' firm, or an appropriate


       1
       That slip opinion offered the plaintiffs the opportunity to
present or re-present their arguments in support of their requested
relief on the merits.
Court No. 06-00215                                           Page 3


     subdivision of the firm, have become totally or
     partially separated, or are threatened to become
     totally or partially separated; and

          (2)(A)(i) the sales or production, or both, of
          such firm or subdivision have decreased abso-
          lutely;

               (ii) imports of articles like or directly
          competitive with articles produced by such firm
          or subdivision have increased; and

              (iii) the increase in imports described in
          clause (ii) contributed importantly to such
          workers' separation or threat of separation and
          to the decline in the sales or production of
          such firm or subdivision; or

             (B)(i) 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

               (ii)(I) 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;

                  (II) 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

                 (III) 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.


19 U.S.C. §2272(a).
Court No. 06-00215                                                  Page 4


                                   A

           The administrative record ("AR") filed herein contains an

ETA   Certification   Regarding   Eligibility    To   Apply   for   Worker

Adjustment Assistance and Alternative Trade Adjustment Assistance,

TA-W-53,335 (Dec. 2, 2003), to wit:


      All workers of Fairchild Semiconductor Corporation,
      Mountaintop, Pennsylvania, who became totally or
      partially separated from employment on or after December
      1, 2003 through two years from the date of certification
      are eligible to apply for adjustment assistance under
      Section 223 of the Trade Act of 1974, and are also
      eligible to apply for alternative trade adjustment
      assistance under Section 246 of the Trade Act of 1974.


AR, p. 38.    On its face, the Certification was restricted to a

period that ended on December 1, 2005.          Among other things, it

pointed out that Fairchild workers produced discrete semiconductor

devices; that ETA's investigation revealed that company sales and

employment decreased absolutely during January to September 2003

when compared to the same period in 2002; that the preponderance in

declines in Fairchild employment were related to a shift in

production of discrete semiconductor devices to Korea and China;

and that the agency had determined that company imports of those

devices were likely to increase.       See id. at 36-37.
Court No. 06-00215                                                      Page 5


            That Certification also noted that Fairchild workers had

been previously certified as eligible to apply for trade-adjustment

assistance per petition number TA-W-40,054, which expired November

30, 2003.    See id. at 37.

                                       B

            Whereafter, on or about January 11, 2006, the petition on

ETA Form 9042A (Rev. 11/05) for similar relief (and which underlies

the matter now at bar) was lodged with the agency, numbered TA-W-

58,624.     See id. at 3-5.         It was posited on behalf of seven

Fairchild workers who have been or will be laid off, with the

articles    produced   at   the    firm    again   stated   to   be   "Discrete

Semic[on]ductor Devices".         Id. at 3.


            Unlike the results of the ETA investigations engendered

by the preceding two petitions on behalf of Fairchild workers,

number TA-W-58,624 led to the Negative Determinations at issue

herein.     With regard to certification under 19 U.S.C. §2272(a),

supra, the agency concluded that the criteria of subsections

(2)(A)(ii) & (iii) and (2)(B)(ii) thereof had not been met viz.:


     . . . The workers at the subject firm produce
     semiconductor wafers. . . . The investigation revealed
     that all semiconductor wafers manufactured at the
     Mountain Top, Pennsylvania plant are exported for further
     processing    into   discrete    semiconductor    devices
     manufactured overseas.
Court No. 06-00215                                                  Page 6


          The investigation further revealed that the subject
     firm did not import semiconductor wafers during the
     period under investigation.

          The   investigation   also  revealed   that   plant
     production of semiconductors [sic] wafers is being
     consolidated into another Fairchild facility located in
     China. It has been determined that no articles like or
     directly competitive with semiconductor wafers produced
     by the subject plant will be imported back to the United
     States.


Id. at 42-43.    Whereupon the ETA pointed out that workers denied

eligibility to apply for trade-adjustment assistance under section

223 of the Trade Act of 1974 cannot be certified eligible for

alternative-trade-adjustment assistance pursuant to section 246 of

that act, 19 U.S.C. §2318.


            The petitioners were duly advised that they could request

administrative    reconsideration   by   ETA   within   30   days    after

publication of the Negative Determinations in the Federal Register.

And they did so request, alleging that the agency statement quoted

above that "all semiconductor wafers manufactured at the Mountain

Top . . . plant are exported for further processing into discrete

semiconductor devices manufactured overseas" is "incorrect"2:


          The . . . Pennsylvania plant manufactures
     semiconductor wafer chips. After the product leaves our


     2
         AR, p. 57.
Court No. 06-00215                                           Page 7


     facility, it is sent overseas to either be immediately
     sold as a bare die device or placed into a package. Even
     when the chip is placed in a package, the essence of the
     device is never changed or altered from when it left our
     facility; it is simply cut and placed into a package
     before it returns to the U.S. for sale.           In all
     instances, the device is completely functional with or
     without the package. Also, in each case, the device when
     imported back to the U.S. is both like and directly
     competitive to the semiconductor wafer chips produced by
     the Mountain Top . . . facility.

          Furthermore, if the comment[] . . . were accurate
     (". . . all semiconductor wafers . . . are exported for
     further processing into discrete semiconductor devices
     manufactured overseas[]"), then no U.S. semiconductor
     wafer facility could ever be approved for TAA benefits
     because no U.S. semiconductor wafer facility imports
     discrete wafers, they import the chips. However, past
     TAA applications have been approved for wafer fabrication
     facilities.[3]
                             *   *   *

          Lastly, when the layoff occurred in January of 2006,
     the duties, services and products designed by our staff
     were moved to an overseas location, thus contributing
     directly   and   importantly   to   those    employees[']
     separation.

AR, pp. 57-58.

             This request for reconsideration was dismissed by ETA on

the ground that it

     did not contain new information supporting a conclusion
     that the determination was erroneous, and also did not
     provide a justification for reconsideration of the
     determination that was based on either mistaken facts or
     a misinterpretation of facts or of the law.

Id. at 63.

     3
       Id., citing and discussing ETA determinations in matters
numbered TA-W-56,077 and [id. at 58] TA-W-52,099.
Court No. 06-00215                                         Page 8


          Underlying this dismissal was agency reasoning that:

     The current investigation established that the subject
     firm exported all semiconductor wafers manufactured at
     the subject firm during the relevant time period and
     there was no shift in production of semiconductor wafers
     abroad.

     Furthermore, the review of the initial investigation
     revealed that an insignificant amount of layoffs were
     administered or scheduled at the subject facility during
     the relevant time period. Since the expiration of the
     previous certification of the subject firm on December 2,
     2005, the subject firm laid off less than five percent of
     its employees and because employment levels at the
     subject facility did not decline significantly in the
     relevant period, criterion (1) has also not been met.

Ibid. at 61.

                                C

          That statutory criterion, 19 U.S.C. §2272(a)(1), supra,

must be met, of course, before there need be any analysis of the

further factors for certification set forth in subsection (2).

According to 29 C.F.R. §90.2:


          Significant number or proportion of the workers
     means that:

          (a) In most cases the total or partial separations,
     or both, in a firm or appropriate subdivision thereof,
     are the equivalent to a total unemployment of five
     percent (5 percent) of the workers or 50 workers,
     whichever is less; or

          (b) At least three workers in a firm (or appropriate
     subdivision thereof) with a work force of fewer than 50
     workers would ordinarily have to be affected.
Court No. 06-00215                                              Page 9


             The implication of plaintiffs' current pleading is that

they comprised 100 percent of the remaining subdivision of workers

covered by defendant's previous certification[s] that expired on

December 1, 2005.     To quote pro se plaintiff Petruska's "fact 8",

for example:

     Appeal group, terminated 1/21/2006, and participated in
     the overseas production transfer that affected the
     terminated personnel in the approved TAA Decision #53335.
     We were detained until the production transfer was
     completed at the end of 2005.

             If this, in fact, is this case, then the court is

constrained     to    remand   the   matter   to   the   defendant   for

reconsideration of the merits of its denial of the very same trade-

adjustment     relief     afforded   plaintiffs'     similarly-situated

predecessors at work at Mountain Top.         That reconsideration must

attempt to reconcile the statement in the Negative Determinations

that the underlying investigation

     revealed that plant production of semiconductor[] wafers
     is being consolidated into another Fairchild facility
     located in China4

with the subsequent agency afterthought that "there was no shift of

production of semiconductor wafers abroad."        That reconsideration

must also attempt to "cogently explain"5 how the data adduced on

     4
         AR, p. 43.
     5
      Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 48 (1983).
Court No. 06-00215                                              Page 10


the record do not, in fact, tend to satisfy 19 U.S.C. §2272-

(a)(2)(A)(ii)    &   (iii)   and   (2)(B)(ii)   for   certification   of

eligibility.


                                   II

           The defendant may have until April 27, 2007 for such

reconsideration and to report the results thereof to the plaintiffs

and the court.

           So ordered.

Decided:   New York, New York
           March 13, 2007



                                        /s/ Thomas J. Aquilino, Jr.
                                                Senior Judge
