Trade Updates for Week of January 30, 2019

United States Court of International Trade


TAA Decision Remanded for Further Explanation

Before the Court in Former Employees of Honeywell Int'l, Inc. v. United States Secretary of Labor, Slip Op. 19-11, Court No. 17-00279 (January 23, 2019) was the final negative determination of the Department of Labor (“Labor”)  denying the eligibility of the former employees of Honeywell International, Inc. for benefits under the Trade Adjustment Assistance (“TAA”) program.  The Court had previously granted Labor a voluntary remand to reconsider their determinations regarding the number of employees separated during the applicable period. For the following reasons Labor’s remand results and negative determination regarding Plaintiffs’ eligibility for benefits were remanded for further consideration.

“Eligibility for TAA requires Labor to find that a significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated” within the one year time period prior to the submission of the petition. Id. at 5.  29 C.F.R. § 90.2 “defines significant number or proportion of the workers as follows: … at least three workers in a firm … with a work force of fewer than 50 workers would ordinarily have to be affected.” Id. at 6. In this case, Labor concluded in its investigation that Honeywell-Procurement, a subdivision of a subdivision consisting of only three employees was the appropriate subdivision for evaluation for TAA eligibility, and that a significant number of workers were not affected or separated from their work. The Court said it was “having trouble sustaining as reasonable Labor’s reliance on its three-person minimum requirement when applied to a subdivision consisting of only three employees,” where the entire sourcing department was outsourced to Mexico. Thus, the results would be remanded for further reconsideration Id. at 10.   


Commerce’s Decision is Sustained in Part

Before the Court in Clearon Corp. et. al. v. United States et. al., Slip Op. 19-13, Court No. 17-00171 (January 25, 2019) were challenges to two determinations made by Commerce in the administrative review of the countervailing duty order on chlorinated isocyanurates from China. First, was the decision to use adverse facts available to determine that the Export Buyer’s Credit Program was countervailable because the Chinese Government withheld information that Commerce insisted it needed. Second was Commerce’s selection of 0.87 percent as the adverse facts available rate for the Export Buyer’s Credit Program. For the following reasons the Court sustained in part and remanded in part Commerce’s determinations.

“A foreign government may be found to be a non-cooperating party.” Id. at 18. “The application of adverse facts available may adversely impact a cooperating party, although Commerce should seek to avoid such impact if relevant information exists elsewhere on the record.” Id. The Court said “Commerce must resort to facts available only when necessary information is not available on the record,” and that in this case Commerce must “provide an adequate answer as to why the information it seeks to fully understand the operation of the program is necessary to fill a gap.” In addition the Court said all determinations made by Commerce regarding the 0.87 percent rate were based on substantial evidence.