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TAA Decision 75043


Note: Determinations for this case number, this case number with an alphabetic suffix, and any appeals or amendments appear below.

DEPARTMENT OF LABOR

Employment and Training Administration

	TA-W-75,043

SPECTRAWATT, INC.
INCLUDING ON-SITE LEASED WORKERS FROM KELLY SERVICES
HOPEWELL JUNCTION, NEW YORK

Notice of Revised Determination
on Reconsideration

      On June 6, 2011, the Department of Labor issued an Affirmative 
Determination Regarding Application for Reconsideration applicable to 
workers and former workers of SpectraWatt, Inc., Hopewell Junction, 
New York (subject firm). Workers at the subject firm were engaged in 
employment related to the production of solar cells for their 
application in solar panels.  The worker group includes on-site 
leased workers from Kelly Services.
      During the reconsideration investigation, the Department 
carefully reviewed previously-submitted material and analyzed 
aggregate industry data and industry trends, including U.S. aggregate 
imports of like or directly competitive articles and finished 
articles containing components like or directly competitive to those 
produced by the subject firm.
      The analysis revealed that, during the period of investigation, 
imports of articles like or directly competitive with solar cells 
produced by the subject firm have increased, and that the increased 
imports of solar cells (or like or directly competitive articles) 
contributed importantly to the worker group separations and 
sales/production declines at the subject firm.  
      The analysis also revealed that, over the relevant time 
period, solar modules installed in the U.S. included a lower 
percentage of U.S. produced solar cells and that the decline 
contributed importantly to the worker group separations and 
sales/production declines at the subject firm.  
Conclusion
	After careful review of the additional facts obtained during the 
reconsideration investigation, I determine that workers of 
SpectraWatt, Inc., Hopewell Junction, New York, meet the worker group 
certification criteria under Section 222(a) of the Act, 19 U.S.C. § 
2272(a). In accordance with Section 223 of the Act, 19 U.S.C. § 2273, 
I make the following certification:
 “All workers of SpectraWatt, Inc., Including On-site leased 
workers from Kelly Services, Hopewell Junction, New York, who 
became totally or partially separated from employment on or 
after December 22, 2009, through two years from the date of this 
revised certification, and all workers in the group threatened 
with total or partial separation from employment on date of 
certification through two years from the date of certification, 
are eligible to apply for adjustment assistance under Chapter 2 
of Title II of the Trade Act of 1974, as amended.”
Signed in Washington, D.C., this 28th day of September, 2011

			/s/ Del Min Amy Chen		
                                    ______________________________     
                                    DEL MIN AMY CHEN
                               Certifying Officer, Office of
                                    Trade Adjustment Assistance
                                    4510-FN-P


DEPARTMENT OF LABOR

	Employment and Training Administration

	TA-W-75,043

SPECTRAWATT, INC.
INCLUDING ON-SITE LEASED WORKERS FROM KELLY SERVICES
HOPEWELL JUNCTION, NEW YORK

	Negative Determination Regarding Eligibility
	To Apply for Worker Adjustment Assistance

      In accordance with Section 223 of the Trade Act of 1974, as 
amended (“Act”), 19 U.S.C. § 2273, the Department of Labor herein 
presents the results of an investigation regarding certification of 
eligibility to apply for worker adjustment assistance.
      Workers of a firm may be eligible for worker adjustment 
assistance if they satisfy the criteria of subsection (a), (c) or (f) 
of Section 222 of the Act, 19 U.S.C. § 2272(a), (c), (f).  For the 
Department of Labor to issue a certification for workers under 
Section 222(a) of the Act, 19 U.S.C. § 2272(a), the following three 
criteria must be met:
I.	The first criterion (set forth in Section 222(a)(1) of the Act, 
19 U.S.C. § 2282(a)(1)) requires that a significant number or 
proportion of the workers in the workers’ firm must have become 
totally or partially separated or be threatened with total or 
partial separation.

II.	The second criterion (set forth in Section 222(a)(2) of the Act, 
19 U.S.C. § 2272(a)(2)) may be satisfied in one of two ways:
(A) Increased Imports Path:
(i)	sales or production, or both, at the workers’ firm must 
have decreased absolutely, AND 
(ii)	(I) 	imports of articles or services like or directly 
competitive with articles or services produced or 
supplied by the workers’ firm have increased, OR
(II)(aa) imports of articles like or directly competitive 
with articles into which the component part produced 
by the workers’ firm was directly incorporated have 
increased; OR
(II)(bb) imports of articles like or directly competitive 
with articles which are produced directly using the 
services supplied by the workers’ firm have increased; 
OR
(III) imports of articles directly incorporating component 
parts not produced in the U.S. that are like or 
directly competitive with the article into which the 
component part produced by the workers’ firm  was 
directly incorporated have increased.

(B) Shift in Production or Supply Path:
(i)(I)	there has been a shift by the workers’ firm to a 
foreign country in the production of articles or supply of 
services like or directly competitive with those 
produced/supplied by the workers’ firm; OR
(i)(II)	there has been an acquisition from a foreign country 
by the workers’ firm of articles/services that are like or 
directly competitive with those produced/supplied by the 
workers’ firm.

III.	The third criterion requires that the increase in imports or 
shift/acquisition must have contributed importantly to the 
workers’ separation or threat of separation.  See Sections 
222(a)(2)(A)(iii) and 222(a)(2)(B)(ii) of the Act, 19 U.S.C. §§ 
2272(a)(2)(A)(iii), 2272(a)(2)(B)(ii).

      Section 222(d) of the Act, 19 U.S.C. § 2272(d), defines the 
terms “Supplier” and “Downstream Producer.” For the Department to 
issue a secondary worker certification under Section 222(c) of the 
Act, 19 U.S.C. § 2272(c), to workers of a Supplier or a Downstream 
Producer, the following criteria must be met:
(1) 	a significant number or proportion of the workers in the 
workers’ firm or an appropriate subdivision of the firm 
have become totally or partially separated, or are 
threatened to become totally or partially separated;
      
(2)	the workers’ firm is a Supplier or Downstream Producer to a 
firm that employed a group of workers who received a 
certification of eligibility under Section 222(a) of the 
Act, 19 U.S.C. § 2272(a), and such supply or production is 
related to the article or service that was the basis for 
such certification; and
      
      (3)	either 
(A) 	the workers’ firm is a supplier and the component parts it 
supplied to the firm described in paragraph (2) accounted 
for at least 20 percent of the production or sales of the 
workers’ firm; or 
(B) a loss of business by the workers’ firm with the firm  
described in paragraph (2) contributed importantly to the 
workers’ separation or threat of separation.

      Workers of a firm may also be considered eligible if they are 
publicly identified by name by the International Trade Commission as 
a member of a domestic industry in an investigation resulting in a 
category of determination that is listed in Section 222(f) of the 
Act, 19 U.S.C. § 2272(f).
      The group eligibility requirements for workers of a firm under 
Section 222(f) of the Act, 19 U.S.C. § 2272(f), can be satisfied if 
the following criteria are met:
(1) 	the workers’ firm is publicly identified by name by the 
International Trade Commission as a member of a domestic 
industry in an investigation resulting in-- 
(A)  an affirmative determination of serious injury or 
threat thereof under section 202(b)(1);
(B)  an affirmative determination of market disruption or 
threat thereof under section 421(b)(1); or
(C)  an affirmative final determination of material injury 
or threat thereof under section 705(b)(1)(A) or 
735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 
1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) 	the petition is filed during the 1-year period beginning on 
the date on which--
(A)  a summary of the report submitted to the President by 
the International Trade Commission under section 
202(f)(1) with respect to the affirmative 
determination described in paragraph (1)(A) is 
published in the Federal Register under section 
202(f)(3); or
(B)  notice of an affirmative determination described in 
subparagraph (1) is published in the Federal Register; 
and  
	(3)  the workers have become totally or partially   
		separated from the workers’ firm within--
		(A)  the 1-year period described in paragraph (2); or
		(B)  notwithstanding section 223(b)(1), the 1-year 
			period preceding the 1-year period described in 
			paragraph (2).
      
      The investigation was initiated in response to a petition filed 
on December 23, 2010 by a company official on behalf of workers of 
SpectraWatt, Inc., Hopewell Junction, New York.  The workers were 
engaged in activities related to the production of crystalline 
silicon solar cells. The investigation revealed the worker group 
includes on-site leased workers from Kelly Services.
      The petitioner alleges the subject firm has been trade 
effected based on global competition.  
      With respect to Section 222(a) of the Act, the investigation 
revealed that Criterion II and III have not been met because the 
workers’ separation or threat of separation was not related to the 
increase in imports or shift/acquisition to foreign sources. The 
decline in sales at the subject firm are primarily attributed to a 
loss in export sales from a major customer during the relevant 
period. Aggregate U.S. imports of articles like or directly 
competitive with the crystalline silicon solar cells produced by 
SpectraWatt, Inc., Hopewell Junction, New York have not increased 
absolutely or relative to domestic shipments.
      With respect to Section 222(c) of the Act, the investigation 
revealed that Criterion (2) has not been met because the workers 
did not produce component parts or supply a service that was 
directly supplied to a firm with a currently certified Trade 
Adjustment Assistance (TAA) worker group.
      Finally, the group eligibility requirements under Section 222(f) 
of the Act, 19 U.S.C. § 2272(f), have not been satisfied because the 
workers’ firm has not been identified in an affirmative finding of 
injury by the International Trade Commission.
Conclusion
	After careful review of the facts obtained in the investigation, 
I determine that workers of SpectraWatt, Inc., including on-site 
leased workers from Kelly Services, Hopewell Junction, New York who 
were engaged in activities related to the production of crystalline 
silicon solar cells are denied eligibility to apply for adjustment 
assistance under Section 223 of the Act, 19 U.S.C. § 2273. 
Signed in Washington, D.C., this 27th day of April, 2011


                                    /s/Elliott S. Kushner_________
                                    ELLIOTT S. KUSHNER
                                    Certifying Officer, Office of 
                                    Trade Adjustment Assistance

                                    


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