Intel Corporation Fab 23 Colorado Springs, CO; Notice of Negative Determination on Remand, 34045-34048 [E8-13402]
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Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Notices
APPENDIX—Continued
[TAA petitions instituted between 5/27/08 and 5/30/08]
TA-W
Subject firm
(petitioners)
Location
63453 ................
Dell, Inc.—Topfer Manufacturing Center (State) ..................
Round Rock, TX ...................
[FR Doc. E8–13400 Filed 6–13–08; 8:45 am]
BILLING CODE 4510–FN–P
DEPARTMENT OF LABOR
Employment and Training
Administration
[TA–W–61,601]
rwilkins on PROD1PC63 with NOTICES
Intel Corporation Fab 23 Colorado
Springs, CO; Notice of Negative
Determination on Remand
On March 24, 2008, the U.S. Court of
International Trade (USCIT) granted the
Department of Labor’s request for
voluntary remand to conduct further
investigation in Former Employees of
Intel Corporation v. U.S. Secretary of
Labor, Court No. 07–00420.
On May 30, 2007, an official of Intel
Corporation, Fab 23, Colorado Springs,
Colorado (subject firm) filed a petition
for Trade Adjustment Assistance (TAA)
and Alternative Trade Adjustment
Assistance (ATAA) on behalf of workers
and former workers of the subject firm.
The subject firm official stated that the
subject firm produced ‘‘WiFi products’’
for Intel Corporation (Intel) and
communication microprocessors for a
company that replaced purchases from
the subject firm with products
manufactured by a Taiwanese company.
The official further stated in the petition
that ‘‘As a result of the production of
these two product lines going overseas,
Fab 23 no longer has product to build
and will be ceasing production on
August 4, 2007.’’ AR 2–3.
The institution of the TAA petition
was published in the Federal Register
on June 14, 2007 (72 FR 32915). AR 10–
11.
In determining whether a petitioning
worker group has met the statutory
criteria, the Department refers to the
applicable regulation, 29 CFR part 90,
for guidance.
During the initial investigation, the
subject firm official stated that the
subject firm produced ‘‘silicon wafers’’
and that the worker separations were
due to the subject firm’s customer
shifting to another company. AR 12. The
company official also stated that the
subject firm made silicon wafers for
wireless fidelity (WiFi) chips and that
the wafers were a component of the
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WiFi cards imported into the United
States. The company official further
stated that the subject firm shifted
silicon wafer production to Taiwan. AR
13. Further, information provided
during the initial investigation
confirmed that the subject firm
produced silicon wafers bearing WiFi
chips and communications
microprocessors, that the subject
workers were not separately identifiable
by product line, and that the subject
firm would close on August 4, 2007 due
to the shift of production to Taiwan
during the second and third quarters of
2007 (April–September 2007). AR 14.
The initial investigation further
revealed that subject firm’s production
of silicon wafers increased in 2006 from
2005 levels and increased during
January through April 2007 from
January through April 2006 levels. AR
16.
The Department’s Notice of negative
determination, issued on June 15, 2007,
regarding the subject workers’ eligibility
to apply for TAA/ATAA stated that
sales and production for silicon wafers
increased in 2005, 2006, and year to
date 2007, that the subject firm did not
import silicon wafers, and that the
subject firm did not shift production of
silicon wafers to a foreign country
during the relevant period. AR 23–25.
The determination published in the
Federal Register on June 28, 2007 (72
FR 35517). AR 26–30.
In a letter dated July 14, 2007, a
former worker, David Alexander,
requested administrative
reconsideration of the Department’s
negative determination. AR 39. The
request for reconsideration alleged:
(1) That when Intel Corporation (Intel)
sold the rights to the ‘‘Hermon’’ chip to
another company, Intel became an agent
of that principal company, and,
subsequently, the subject workers
became employees of the principal
company;
(2) That the subject firm did not
produce silicon wafers but
‘‘manufactures electronic circuits * * *
on a silicon wafer’’;
(3) That ‘‘(a) INTEL buys the bare
silicon wafer from a supplier, (b) Fab 23
then manufactures the electronic circuit
on the wafer called a die and (c) then
die is tested and assembly. Item c can
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Date of
institution
05/30/08
Date of
petition
05/29/08
be done else where, I believe at this time
(July 2007) Marvel chooses elsewhere’’;
(4) That the subject workers are
secondary/downstream employees to
the so-called principal company; and
(5) That the principal company’s shift
of production to Taiwan is a basis for
TAA certification of the subject workers.
AR 40–43.
In the request for reconsideration, Mr.
Alexander stated that ‘‘packaged dies
are called ‘chips.’ ’’ AR 41.
During the reconsideration
investigation, the Department confirmed
that a company, Marvel, purchased from
Intel the rights to the Hermon chip, and
that, under the agreement, the subject
firm would produce silicon wafers
bearing the Hermon chip until Marvel’s
Taiwanese supplier was fully
operational. The subject firm ceased
production in April 2007 and the last
shipment of silicon wafers from the
subject firm to Marvel was in the second
quarter of 2007. AR 54–55. The
Department also confirmed that the
articles produced at the subject firm
were silicon wafers bearing ‘‘WiFi
semiconductor chips.’’ AR 57.
The subject firm also provided
information about Intel’s semiconductor
chip production process.
The subject firm purchased bare
silicon wafers from various vendors, AR
66, then used a photolithographic
printing process to fabricate each chip
onto the silicon wafer. AR 57, 65, 66.
Each chip is called a die and is tested
on the wafer before it was separated
from the silicon wafer. AR 65, 74. The
process of separating chips from the
wafer is called ‘‘dicing’’ or ‘‘scribing.’’
AR 113.
The silicon wafers bearing WiFi
semiconductor chips were sent from the
subject firm to other Intel facilities. At
these facilities, the wafers were diced
and the semiconductor chips were
packaged. AR 65–66, 101. The
packaging of the chip entails ‘‘mounting
the chip on a stamped lead-wire harness
in a process called die bonding, then
encapsulating this assembly in the final
package.’’ AR 113.
Without this packaging process, the
chip could not electrically communicate
outside of itself, could not be placed
into a motherboard, and had no
customer application. AR 65–66. The
dicing of silicon wafers and the
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packaging of dies used in WiFi products
for Intel occur in Taiwan and the
Philippines, with testing of the
packaged dies occurring in Malaysia
and the Philippines. AR 66, 101. The
separation of Marvel’s Hermon
semiconductor chip from the silicon
wafer and the packaging of Hermon
chips occurs in Korea, with the testing
occurring in the Philippines. AR 66.
During the reconsideration, the
Department contacted the subject firm
and ascertained that the subject firm did
not shift production to a country that is
a party to a free trade agreement with
the United States or named as a
beneficiary under the Andean Trade
Preferences Act, the African Growth and
Opportunity Act or the Caribbean Basin
Economic Recovery Act, AR 55, 56, 70,
101. Through contact with the subject
firm, the Department also confirmed
that the articles imported by Intel are
not silicon wafers bearing
semiconductor chips, dies, or packaged
dies but are WiFi cards. AR 101–102.
The negative determination on
reconsideration, issued on September
26, 2007, stated that the subject firm
produced silicon wafers and explained
that since Taiwan is not a country that
is a party to a free trade agreement with
the United States or named as a
beneficiary under the Andean Trade
Preferences Act, the African Growth and
Opportunity Act or the Caribbean Basin
Economic Recovery Act, the subject
workers cannot be certified for TAA
based on a shift of production to that
country absent evidence of increased
imports (actual or likely) of like or
directly competitive articles following
the shift of production to another
country. The determination also stated
that the subject workers are not
secondary workers because the subject
firm neither supplied a component part
to a buyer nor finished or assembled a
final product for a buyer. AR 114–120.
The Department’s Notice determination
was published in the Federal Register
on October 3, 2007 (72 FR 56387). AR
121–123.
By letter dated November 5, 2007,
former workers of the subject firm
applied to the USCIT for review. The
complaint alleged that ‘‘the Department
of Labor decision is flawed by lack of
technical knowledge and adherence to
previous CIT decisions.’’
The USCIT granted the Department’s
request for voluntary remand, and
directed the Department to determine
whether, following the subject firm’s
shift of semiconductor wafer production
to a foreign country, there were (actual
or likely) increased imports of articles
like or directly competitive with
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semiconductor wafers produced by the
subject firm.
Mr. Alexander stated in the request
for reconsideration that packaged dies
are referred to as chips. AR 41.
However, the subject firm refers to
semiconductor devices, on the silicon
wafer or separated from the wafer, as
chips. AR 57, 65, 66.
In order to have consistent
terminology during the course of the
remand determination, the Department
refers to a semiconductor device on the
wafer as a chip, a chip separated from
the wafer as a die, and a packaged die
as an integrated circuit. The terminology
is defined in a pamphlet titled ‘‘How to
Make an Integrated Circuit.’’ AR 113–
114.
In their March 26, 2008 letter,
Plaintiffs alleged that the Department
misidentified the article produced at the
subject firm during the relevant period,
that semiconductor chips produced at
the subject firm were like or directly
competitive with imported
semiconductor chips, and that it is
possible that if ‘‘Intel retained
production of the Hermon chips,’’ the
subject firm would have stayed open.
SAR 2–3.
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 one of two ways:
I. Section 222(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 222(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
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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.
Because the subject firm ceased
production in April 2007, AR 54–55, the
Department determines that section
222(a)(2)(A)(A) and (B) have been met.
Further, because the subject firm has
shifted semiconductor wafer production
to a foreign country, the Department
determines that section 222(a)(2)(B)(A)
and (B) have been met.
The only issues in the case at hand,
therefore, are whether the subject
worker group has satisfied section
222(a)(2)(A)(C)—increased imports of
like or directly competitive products
contributed importantly to subject firm
sales and/or production declines and
worker separations—or section
222(a)(2)(B)(C)—shift of production to a
qualified country and/or increased
imports following the shift of
production to a foreign country.
Article Produced by the Subject Firm
During the Relevant Period
Plaintiffs allege that the subject firm
did not produce silicon wafers but
produced semiconductor chips in wafer
form and that the subject firm may have
produced dies and/or packaged dies
(integrated circuits) during the relevant
period. SAR 2–3.
In support of the allegation that the
subject firm did not produce silicon
wafers, Plaintiffs submitted a
declaration by Mr. Alexander, dated
May 1, 2008, SAR 55–57 and a
supplemental declaration, dated May 7,
2008, by Mr. Alexander. SAR 61.
In the May 1, 2008 declaration, Mr.
Alexander stated that ‘‘I performed a
variety of complex operations and
routine technical duties in a wafer
fabrication environment’’ and ‘‘Fab 23
manufactured semiconductor chips on
silicon wafers.’’ Mr. Alexander also
stated that the subject firm produced
‘‘silicon wafers, which * * * contain
multiple semiconductor chips’’ and that
a ‘‘wafer sort’’ was conducted to identify
defective chips. Mr. Alexander further
stated that ‘‘Following the wafer sort
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process, INTEL typically would cut
semiconductor chips from each silicon
wafer; however, these tasks could be
undertaken outside of INTEL.’’ SAR 55.
Exhibit 1 of the declaration identifies
the activities that occur at the subject
firm as ‘‘Preparing wafer for
manufacturing,’’ ‘‘Manufacturing of
dies/chips on wafer,’’ and ‘‘Wafer Sort.’’
SAR 57.
In the May 7, 2008 declaration, Mr.
Alexander stated that ‘‘My
responsibilities included a variety of
duties directly related to the
preparation, manufacturing and testing
of silicon wafers at Fab 23.’’ The
supplemental declaration did not
address the allegation that the subject
firm may have produced dies and/or
packaged dies (integrated circuits). SAR
61.
The subject firm, in an earlier
submission, explained that the bare
silicon wafers were purchased from
various vendors and that the articles
produced at the subject firm were
silicon wafers bearing semiconductor
chips (these wafers are also referred to
in the industry as semiconductor
wafers). AR 57, 65, 66. During the
remand investigation, the subject firm
stated that the articles that left Intel, Fab
23 and were sent to its customer were
semiconductor wafers, SAR 31, 32, 64–
73, and that semiconductor wafers were
sold uncut and unpackaged. SAR 32. A
subject firm official sent pictures of the
article produced at the subject firm,
SAR 65–68, which show that the article
is an eight-inch diameter wafer, SAR 66,
with multiple chips on it. SAR 64–68.
Based on previously-submitted
information and additional information
obtained during the remand
investigation, the Department
determines that, during the relevant
period, the subject firm did not produce
silicon wafers but produced
semiconductor wafers.
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Subject Worker Were Not AdverselyImpacted by Increased Imports
The Trade Act of 1974 provides for
certification in cases in which
production of an article was shifted to
a country that is neither a party to a Free
Trade Agreement nor a beneficiary of
the Andean Trade Preference Act, the
African Growth and Opportunity Act or
the Caribbean Basin Economic Recovery
Act only if the increased imports are of
articles like or directly competitive with
articles produced by the subject firm.
The articles produced by the subject
firm were eight-inch diameter
semiconductor wafers. SAR 64–68. The
articles imported by the subject firm are
WiFi cards. AR 101–102.
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The applicable regulation, 29 CFR
90.2, defines ‘‘like’’ articles as ‘‘those
which are substantially identical in
inherent or intrinsic characteristics (i.e.,
materials from which the articles are
made, appearance, quality, texture,
etc.)’’
The semiconductor wafers produced
at the subject firm were made with a
silicon base and measured eight inches
in diameter. AR 57, 65, 66, SAR 64–68.
A WiFi card is a portable, electronic
device that consists of multiple parts.
AR 108–111. Because these two articles
are markedly different, they do not meet
the definition of ‘‘like articles’’ in 29
CFR 90.2, and the Department
determines that WiFi cards are not
‘‘like’’ semiconductor wafers.
29 CFR 90.2 defines ‘‘directly
competitive’’ articles as those articles
‘‘which, although not substantially
identical in their inherent or intrinsic
characteristics, are substantially
equivalent for commercial purposes
(i.e., adapted to the same uses and
essentially interchangeable therefore).’’
The semiconductor wafers produced
at the subject firm cannot be used in any
capacity, even though chips on them
may be fully functional, because until
the chip is cut away from the wafer
(becomes a die) and is packaged, the
chip cannot communicate outside of
itself. AR 65–66.
A WiFi card consists of an integrated
circuit and can be inserted into a laptop
computer for immediate use. AR 108–
111. The integrated circuit is a mere
component of the WiFi card, and the
Department has consistently determined
that components cannot be considered
like or directly competitive with the
finished product. Because these two
articles do not meet the definition of
‘‘directly competitive articles’’ in 29
CFR 90.2, the Department determines
that semiconductor wafers are not
directly competitive with WiFi cards.
Based on the afore-mentioned
regulation and information, the
Department determines that the alleged
imports are not like or directly
competitive with the semiconductor
wafers that were produced at the subject
firm, and, as such, the subject workers
cannot be adversely impacted by the
increased imports by the subject firm.
During the remand investigation, the
Department surveyed the subject firm’s
only declining customer to determine
whether it had increased its imports
(relatively or absolutely) of
semiconductor wafers (and articles like
or directly competitive with
semiconductor wafers). SAR 37–40, 51–
53. Because there were no such
increased imports, SAR 53, the
Department determines that the subject
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34047
workers cannot be adversely impacted
by increased imports by the subject
firm’s declining customer.
Whether Subject Firm Would Have
Stayed Open if Intel Retained
Production of Hermon Chip Is
Irrelevant
Plaintiff further allege that it is
possible that if ‘‘Intel retained
production of the Hermon chips,’’ the
subject firm would have stayed open.
SAR 2–3.
Because the statute requires the
Department to consider events that
occurred during the relevant period, the
Department does not predict possible
results based on events that did not
occur. As such, the Department
determines that this allegation is
irrelevant.
Subject Firm Did Not Shift Production
to a Country With Whom the U.S. Has
a Free Trade Agreement
The U.S. does not have a free trade
agreement with Taiwan. Therefore, a
shift of production to Taiwan cannot be
a basis for TAA certification for the
subject worker group.
Based on the information obtained
during the initial investigation, the
reconsideration investigation, and the
remand investigation, the Department
determines that, in the case at hand,
neither section 222(a)(2)(A)(C) nor
section 222(a)(2)(B)(C) have been met.
Therefore, the Department determines
that the group eligibility criteria set
forth in the Trade Act of 1974, as
amended, has not been met.
In addition, in accordance with
section 246 of the Trade Act of 1974, as
amended, the Department herein
presents the results of its investigation
regarding certification of eligibility to
apply for ATAA.
In order to apply 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 workers are denied
eligibility to apply for TAA, they cannot
be certified eligible to apply for ATAA.
Conclusion
After careful review of the findings of
the second remand investigation, I
affirm the notice of negative
determination of eligibility to apply for
worker adjustment assistance for
workers and former workers of Intel
Corporation, Fab 23, Colorado Springs,
Colorado.
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Federal Register / Vol. 73, No. 116 / Monday, June 16, 2008 / Notices
Signed at Washington, DC, this 6th day of
June, 2008.
Elliott S. Kushner,
Certifying Officer, Division of Trade
Adjustment Assistance.
[FR Doc. E8–13402 Filed 6–13–08; 8:45 am]
BILLING CODE 4510–FN–P
DEPARTMENT OF LABOR
Employment and Training
Administration
[TA–W–62,832]
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GAF Materials Corporation,
Quakertown, PA; Notice of Negative
Determination Regarding Application
for Reconsideration
By application dated May 5, 2008,
International Association of Machinists
and Aerospace Workers, District 1
requested administrative
reconsideration of the Department’s
negative determination regarding
eligibility to apply for Trade Adjustment
Assistance (TAA) and Alternative Trade
Adjustment Assistance (ATAA),
applicable to workers and former
workers of the subject firm. The denial
notice was signed on March 26, 2008
and published in the Federal Register
on April 11, 2008 (73 FR 19900).
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 initial investigation resulted in a
negative determination was based on
the finding that imports of residential
roofing materials did not contribute
importantly to worker separations at the
subject facility and there was no shift of
production to a foreign country. The
subject firm did not import residential
roofing materials during the relevant
period. The ‘‘contributed importantly’’
test is generally demonstrated through a
survey of the workers’ firm’s declining
domestic customers. A survey
conducted by the Department of Labor
revealed that major customers did not
purchase imported residential roofing
materials during 2006, 2007 and during
the January through February 2008
period.
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The petitioner indicates that ‘‘The
workers produced asphaltic roofing
materials and that the sales and
employment at the firm declined during
the relevant period.’’
Since the worker group was denied on
the fact that imports did not contribute
importantly to the layoffs at the subject
firm and no shift of production to a
foreign source occurred, the information
provided by the petitioner in the request
for reconsideration does not help to
satisfy the criteria necessary for
certification for TAA.
The request for reconsideration also
appears to address workers eligibility
for ATAA. The petitioner states that ‘‘a
significant number of employees at this
location are 50 or older and do not
possess skills that are easily
transferable.’’
In order for the Department to issue
a certification of eligibility to apply for
ATAA, the worker group must be
certified eligible to apply for trade
adjustment assistance (TAA). Since the
workers are denied eligibility to apply
for TAA, the workers cannot be certified
eligible for ATAA.
The Union did not supply facts not
previously considered; nor provide
additional documentation indicating
that there was either (1) a mistake in the
determination of facts not previously
considered or (2) a misinterpretation of
facts or of the law justifying
reconsideration of the initial
determination.
After careful review of the request for
reconsideration, the Department
determines that 29 CFR 90.18(c) has not
been met.
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 decision. Accordingly, the
application is denied.
Signed in Washington, DC, this 4th day of
June, 2008.
Elliott S. Kushner,
Certifying Officer, Division of Trade
Adjustment Assistance.
[FR Doc. E8–13405 Filed 6–13–08; 8:45 am]
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DEPARTMENT OF LABOR
Employment and Training
Administration
[TA–W–63,254]
Teva Neuroscience, Inc., Global
Clinical Professional Resources
Group, Horsham, PA; Notice of
Negative Determination Regarding
Application for Reconsideration
By application dated May 26, 2008, a
petitioner requested administrative
reconsideration of the Department’s
negative determination regarding
eligibility to apply for Trade Adjustment
Assistance (TAA), applicable to workers
and former workers of the subject firm.
The denial notice was signed on May 9,
2008 and published in the Federal
Register on May 22, 2008 (73 FR 29783).
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 negative TAA determination
issued by the Department for workers of
Teva Neuroscience, Inc., Global Clinical
Professional Resources Group, Horsham,
Pennsylvania, was based on the finding
that the worker group does not produce
an article within the meaning of Section
222 of the Trade Act of 1974.
The petitioner states that Global
Clinical Professional Resource Group
(GCPRG) ‘‘belonged to the Innovative
Research and Development division,
which had no involvement in the
manufacturing process.’’ The petitioner
also stated that GCPRG was strictly
dealing with the clinical trials and with
the clinical data collected from the
American population. The petitioner
further infers that employment at the
subject firm was negatively impacted by
the outsourcing of some functions from
the subject facility to India.
The initial investigation revealed that
the workers of Teva Neuroscience, Inc.,
Global Clinical Professional Resources
Group, Horsham, Pennsylvania, are
engaged in operations in support of the
conduct of clinical trials of
pharmaceutical products manufactured
abroad, including database
management, clinical quality control,
and administration. These functions, as
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]]>Agencies
[Federal Register Volume 73, Number 116 (Monday, June 16, 2008)]
[Notices]
[Pages 34045-34048]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-13402]
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DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-61,601]
Intel Corporation Fab 23 Colorado Springs, CO; Notice of Negative
Determination on Remand
On March 24, 2008, the U.S. Court of International Trade (USCIT)
granted the Department of Labor's request for voluntary remand to
conduct further investigation in Former Employees of Intel Corporation
v. U.S. Secretary of Labor, Court No. 07-00420.
On May 30, 2007, an official of Intel Corporation, Fab 23, Colorado
Springs, Colorado (subject firm) filed a petition for Trade Adjustment
Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) on
behalf of workers and former workers of the subject firm. The subject
firm official stated that the subject firm produced ``WiFi products''
for Intel Corporation (Intel) and communication microprocessors for a
company that replaced purchases from the subject firm with products
manufactured by a Taiwanese company. The official further stated in the
petition that ``As a result of the production of these two product
lines going overseas, Fab 23 no longer has product to build and will be
ceasing production on August 4, 2007.'' AR 2-3.
The institution of the TAA petition was published in the Federal
Register on June 14, 2007 (72 FR 32915). AR 10-11.
In determining whether a petitioning worker group has met the
statutory criteria, the Department refers to the applicable regulation,
29 CFR part 90, for guidance.
During the initial investigation, the subject firm official stated
that the subject firm produced ``silicon wafers'' and that the worker
separations were due to the subject firm's customer shifting to another
company. AR 12. The company official also stated that the subject firm
made silicon wafers for wireless fidelity (WiFi) chips and that the
wafers were a component of the WiFi cards imported into the United
States. The company official further stated that the subject firm
shifted silicon wafer production to Taiwan. AR 13. Further, information
provided during the initial investigation confirmed that the subject
firm produced silicon wafers bearing WiFi chips and communications
microprocessors, that the subject workers were not separately
identifiable by product line, and that the subject firm would close on
August 4, 2007 due to the shift of production to Taiwan during the
second and third quarters of 2007 (April-September 2007). AR 14.
The initial investigation further revealed that subject firm's
production of silicon wafers increased in 2006 from 2005 levels and
increased during January through April 2007 from January through April
2006 levels. AR 16.
The Department's Notice of negative determination, issued on June
15, 2007, regarding the subject workers' eligibility to apply for TAA/
ATAA stated that sales and production for silicon wafers increased in
2005, 2006, and year to date 2007, that the subject firm did not import
silicon wafers, and that the subject firm did not shift production of
silicon wafers to a foreign country during the relevant period. AR 23-
25. The determination published in the Federal Register on June 28,
2007 (72 FR 35517). AR 26-30.
In a letter dated July 14, 2007, a former worker, David Alexander,
requested administrative reconsideration of the Department's negative
determination. AR 39. The request for reconsideration alleged:
(1) That when Intel Corporation (Intel) sold the rights to the
``Hermon'' chip to another company, Intel became an agent of that
principal company, and, subsequently, the subject workers became
employees of the principal company;
(2) That the subject firm did not produce silicon wafers but
``manufactures electronic circuits * * * on a silicon wafer'';
(3) That ``(a) INTEL buys the bare silicon wafer from a supplier,
(b) Fab 23 then manufactures the electronic circuit on the wafer called
a die and (c) then die is tested and assembly. Item c can be done else
where, I believe at this time (July 2007) Marvel chooses elsewhere'';
(4) That the subject workers are secondary/downstream employees to
the so-called principal company; and
(5) That the principal company's shift of production to Taiwan is a
basis for TAA certification of the subject workers. AR 40-43.
In the request for reconsideration, Mr. Alexander stated that
``packaged dies are called `chips.' '' AR 41.
During the reconsideration investigation, the Department confirmed
that a company, Marvel, purchased from Intel the rights to the Hermon
chip, and that, under the agreement, the subject firm would produce
silicon wafers bearing the Hermon chip until Marvel's Taiwanese
supplier was fully operational. The subject firm ceased production in
April 2007 and the last shipment of silicon wafers from the subject
firm to Marvel was in the second quarter of 2007. AR 54-55. The
Department also confirmed that the articles produced at the subject
firm were silicon wafers bearing ``WiFi semiconductor chips.'' AR 57.
The subject firm also provided information about Intel's
semiconductor chip production process.
The subject firm purchased bare silicon wafers from various
vendors, AR 66, then used a photolithographic printing process to
fabricate each chip onto the silicon wafer. AR 57, 65, 66. Each chip is
called a die and is tested on the wafer before it was separated from
the silicon wafer. AR 65, 74. The process of separating chips from the
wafer is called ``dicing'' or ``scribing.'' AR 113.
The silicon wafers bearing WiFi semiconductor chips were sent from
the subject firm to other Intel facilities. At these facilities, the
wafers were diced and the semiconductor chips were packaged. AR 65-66,
101. The packaging of the chip entails ``mounting the chip on a stamped
lead-wire harness in a process called die bonding, then encapsulating
this assembly in the final package.'' AR 113.
Without this packaging process, the chip could not electrically
communicate outside of itself, could not be placed into a motherboard,
and had no customer application. AR 65-66. The dicing of silicon wafers
and the
[[Page 34046]]
packaging of dies used in WiFi products for Intel occur in Taiwan and
the Philippines, with testing of the packaged dies occurring in
Malaysia and the Philippines. AR 66, 101. The separation of Marvel's
Hermon semiconductor chip from the silicon wafer and the packaging of
Hermon chips occurs in Korea, with the testing occurring in the
Philippines. AR 66.
During the reconsideration, the Department contacted the subject
firm and ascertained that the subject firm did not shift production to
a country that is a party to a free trade agreement with the United
States or named as a beneficiary under the Andean Trade Preferences
Act, the African Growth and Opportunity Act or the Caribbean Basin
Economic Recovery Act, AR 55, 56, 70, 101. Through contact with the
subject firm, the Department also confirmed that the articles imported
by Intel are not silicon wafers bearing semiconductor chips, dies, or
packaged dies but are WiFi cards. AR 101-102.
The negative determination on reconsideration, issued on September
26, 2007, stated that the subject firm produced silicon wafers and
explained that since Taiwan is not a country that is a party to a free
trade agreement with the United States or named as a beneficiary under
the Andean Trade Preferences Act, the African Growth and Opportunity
Act or the Caribbean Basin Economic Recovery Act, the subject workers
cannot be certified for TAA based on a shift of production to that
country absent evidence of increased imports (actual or likely) of like
or directly competitive articles following the shift of production to
another country. The determination also stated that the subject workers
are not secondary workers because the subject firm neither supplied a
component part to a buyer nor finished or assembled a final product for
a buyer. AR 114-120. The Department's Notice determination was
published in the Federal Register on October 3, 2007 (72 FR 56387). AR
121-123.
By letter dated November 5, 2007, former workers of the subject
firm applied to the USCIT for review. The complaint alleged that ``the
Department of Labor decision is flawed by lack of technical knowledge
and adherence to previous CIT decisions.''
The USCIT granted the Department's request for voluntary remand,
and directed the Department to determine whether, following the subject
firm's shift of semiconductor wafer production to a foreign country,
there were (actual or likely) increased imports of articles like or
directly competitive with semiconductor wafers produced by the subject
firm.
Mr. Alexander stated in the request for reconsideration that
packaged dies are referred to as chips. AR 41. However, the subject
firm refers to semiconductor devices, on the silicon wafer or separated
from the wafer, as chips. AR 57, 65, 66.
In order to have consistent terminology during the course of the
remand determination, the Department refers to a semiconductor device
on the wafer as a chip, a chip separated from the wafer as a die, and a
packaged die as an integrated circuit. The terminology is defined in a
pamphlet titled ``How to Make an Integrated Circuit.'' AR 113-114.
In their March 26, 2008 letter, Plaintiffs alleged that the
Department misidentified the article produced at the subject firm
during the relevant period, that semiconductor chips produced at the
subject firm were like or directly competitive with imported
semiconductor chips, and that it is possible that if ``Intel retained
production of the Hermon chips,'' the subject firm would have stayed
open. SAR 2-3.
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 one of two ways:
I. Section 222(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 222(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.
Because the subject firm ceased production in April 2007, AR 54-55,
the Department determines that section 222(a)(2)(A)(A) and (B) have
been met. Further, because the subject firm has shifted semiconductor
wafer production to a foreign country, the Department determines that
section 222(a)(2)(B)(A) and (B) have been met.
The only issues in the case at hand, therefore, are whether the
subject worker group has satisfied section 222(a)(2)(A)(C)--increased
imports of like or directly competitive products contributed
importantly to subject firm sales and/or production declines and worker
separations--or section 222(a)(2)(B)(C)--shift of production to a
qualified country and/or increased imports following the shift of
production to a foreign country.
Article Produced by the Subject Firm During the Relevant Period
Plaintiffs allege that the subject firm did not produce silicon
wafers but produced semiconductor chips in wafer form and that the
subject firm may have produced dies and/or packaged dies (integrated
circuits) during the relevant period. SAR 2-3.
In support of the allegation that the subject firm did not produce
silicon wafers, Plaintiffs submitted a declaration by Mr. Alexander,
dated May 1, 2008, SAR 55-57 and a supplemental declaration, dated May
7, 2008, by Mr. Alexander. SAR 61.
In the May 1, 2008 declaration, Mr. Alexander stated that ``I
performed a variety of complex operations and routine technical duties
in a wafer fabrication environment'' and ``Fab 23 manufactured
semiconductor chips on silicon wafers.'' Mr. Alexander also stated that
the subject firm produced ``silicon wafers, which * * * contain
multiple semiconductor chips'' and that a ``wafer sort'' was conducted
to identify defective chips. Mr. Alexander further stated that
``Following the wafer sort
[[Page 34047]]
process, INTEL typically would cut semiconductor chips from each
silicon wafer; however, these tasks could be undertaken outside of
INTEL.'' SAR 55. Exhibit 1 of the declaration identifies the activities
that occur at the subject firm as ``Preparing wafer for
manufacturing,'' ``Manufacturing of dies/chips on wafer,'' and ``Wafer
Sort.'' SAR 57.
In the May 7, 2008 declaration, Mr. Alexander stated that ``My
responsibilities included a variety of duties directly related to the
preparation, manufacturing and testing of silicon wafers at Fab 23.''
The supplemental declaration did not address the allegation that the
subject firm may have produced dies and/or packaged dies (integrated
circuits). SAR 61.
The subject firm, in an earlier submission, explained that the bare
silicon wafers were purchased from various vendors and that the
articles produced at the subject firm were silicon wafers bearing
semiconductor chips (these wafers are also referred to in the industry
as semiconductor wafers). AR 57, 65, 66. During the remand
investigation, the subject firm stated that the articles that left
Intel, Fab 23 and were sent to its customer were semiconductor wafers,
SAR 31, 32, 64-73, and that semiconductor wafers were sold uncut and
unpackaged. SAR 32. A subject firm official sent pictures of the
article produced at the subject firm, SAR 65-68, which show that the
article is an eight-inch diameter wafer, SAR 66, with multiple chips on
it. SAR 64-68.
Based on previously-submitted information and additional
information obtained during the remand investigation, the Department
determines that, during the relevant period, the subject firm did not
produce silicon wafers but produced semiconductor wafers.
Subject Worker Were Not Adversely-Impacted by Increased Imports
The Trade Act of 1974 provides for certification in cases in which
production of an article was shifted to a country that is neither a
party to a Free Trade Agreement nor a beneficiary of the Andean Trade
Preference Act, the African Growth and Opportunity Act or the Caribbean
Basin Economic Recovery Act only if the increased imports are of
articles like or directly competitive with articles produced by the
subject firm.
The articles produced by the subject firm were eight-inch diameter
semiconductor wafers. SAR 64-68. The articles imported by the subject
firm are WiFi cards. AR 101-102.
The applicable regulation, 29 CFR 90.2, defines ``like'' articles
as ``those which are substantially identical in inherent or intrinsic
characteristics (i.e., materials from which the articles are made,
appearance, quality, texture, etc.)''
The semiconductor wafers produced at the subject firm were made
with a silicon base and measured eight inches in diameter. AR 57, 65,
66, SAR 64-68. A WiFi card is a portable, electronic device that
consists of multiple parts. AR 108-111. Because these two articles are
markedly different, they do not meet the definition of ``like
articles'' in 29 CFR 90.2, and the Department determines that WiFi
cards are not ``like'' semiconductor wafers.
29 CFR 90.2 defines ``directly competitive'' articles as those
articles ``which, although not substantially identical in their
inherent or intrinsic characteristics, are substantially equivalent for
commercial purposes (i.e., adapted to the same uses and essentially
interchangeable therefore).''
The semiconductor wafers produced at the subject firm cannot be
used in any capacity, even though chips on them may be fully
functional, because until the chip is cut away from the wafer (becomes
a die) and is packaged, the chip cannot communicate outside of itself.
AR 65-66.
A WiFi card consists of an integrated circuit and can be inserted
into a laptop computer for immediate use. AR 108-111. The integrated
circuit is a mere component of the WiFi card, and the Department has
consistently determined that components cannot be considered like or
directly competitive with the finished product. Because these two
articles do not meet the definition of ``directly competitive
articles'' in 29 CFR 90.2, the Department determines that semiconductor
wafers are not directly competitive with WiFi cards.
Based on the afore-mentioned regulation and information, the
Department determines that the alleged imports are not like or directly
competitive with the semiconductor wafers that were produced at the
subject firm, and, as such, the subject workers cannot be adversely
impacted by the increased imports by the subject firm.
During the remand investigation, the Department surveyed the
subject firm's only declining customer to determine whether it had
increased its imports (relatively or absolutely) of semiconductor
wafers (and articles like or directly competitive with semiconductor
wafers). SAR 37-40, 51-53. Because there were no such increased
imports, SAR 53, the Department determines that the subject workers
cannot be adversely impacted by increased imports by the subject firm's
declining customer.
Whether Subject Firm Would Have Stayed Open if Intel Retained
Production of Hermon Chip Is Irrelevant
Plaintiff further allege that it is possible that if ``Intel
retained production of the Hermon chips,'' the subject firm would have
stayed open. SAR 2-3.
Because the statute requires the Department to consider events that
occurred during the relevant period, the Department does not predict
possible results based on events that did not occur. As such, the
Department determines that this allegation is irrelevant.
Subject Firm Did Not Shift Production to a Country With Whom the U.S.
Has a Free Trade Agreement
The U.S. does not have a free trade agreement with Taiwan.
Therefore, a shift of production to Taiwan cannot be a basis for TAA
certification for the subject worker group.
Based on the information obtained during the initial investigation,
the reconsideration investigation, and the remand investigation, the
Department determines that, in the case at hand, neither section
222(a)(2)(A)(C) nor section 222(a)(2)(B)(C) have been met. Therefore,
the Department determines that the group eligibility criteria set forth
in the Trade Act of 1974, as amended, has not been met.
In addition, in accordance with section 246 of the Trade Act of
1974, as amended, the Department herein presents the results of its
investigation regarding certification of eligibility to apply for ATAA.
In order to apply 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 workers are denied
eligibility to apply for TAA, they cannot be certified eligible to
apply for ATAA.
Conclusion
After careful review of the findings of the second remand
investigation, I affirm the notice of negative determination of
eligibility to apply for worker adjustment assistance for workers and
former workers of Intel Corporation, Fab 23, Colorado Springs,
Colorado.
[[Page 34048]]
Signed at Washington, DC, this 6th day of June, 2008.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E8-13402 Filed 6-13-08; 8:45 am]
BILLING CODE 4510-FN-P
