U.S. DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-82,074

KOMAX SOLAR, INC.
A WHOLLY OWNED SUBSIDIARY OF KOMAX HOLDINGS AG
YORK, PENNSYLVANIA

Notice of Negative Determination
Regarding Application for Reconsideration

By applications received on November 12, 2012 and November 26,
2012, two workers independently requested administrative
reconsideration of the negative determination regarding workers’
eligibility to apply for Trade Adjustment Assistance (TAA) applicable
to workers and former workers Komax Solar, Inc., a wholly owned
subsidiary of Komax Holdings, AG, York, Pennsylvania (subject firm or
Komax). The negative determination was issued on November 1, 2012.
The Department’s Notice of Determination was published in the Federal
Register on November 26, 2012 (77 FR 70480).
Pursuant to 29 CFR 90.18(c), administrative 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 workers of Komax were engaged in activities related to the
production of solar panel production machines. The products
manufactured at the subject firm are predominantly for export sale.
The petition stated that the workers were informed by the
subject firm that the layoffs were a result of production shifting to
a Komax facility in Asia. In the request for reconsideration, the
workers again asserted that separations at Komax are attributable to
a future shift of solar panel production to Asia.
Machines used to produce solar panels are not component parts of
solar panels and are neither like nor directly competitive with solar
panels.
The negative determination was based on the Department’s
findings that the subject firm did not shift to a foreign country the
production of articles like or directly competitive with the solar
panel production machines produced by the workers, or acquire the
production of such articles from a foreign country; that the workers’
separation, or threat of separation, was not related to any increase
in imports by the subject firm of articles like or directly
competitive with solar panel production machines; and that the
workers’ firm is not a supplier or a downstream producer to a firm
that employed a group of workers who received a TAA certification.
The Department did not conduct a survey on the subject firm’s
declining domestic customers of solar panel production machines
because sales to domestic customers increased during the relevant
time period. Further, the articles manufactured at the subject firm
during the relevant time period were almost entirely export sales.
One of the requests for reconsideration alleges “flooding of the
market by underpriced Chinese solar modules.” The Department notes
that the International Trade Commission did not name Komax as a
member of a domestic industry in an investigation resulting in an
affirmative finding of serious injury, market disruption, or material
injury, or threat thereof.
The workers in the requests for reconsideration did not supply
facts not previously considered or 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.
Based on these findings, the Department determines that 29 CFR
90.18(c) has not been met.
Conclusion
After review of the applications 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 at Washington, D.C., this 27th day of December, 2012
/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-82,074

KOMAX SOLAR, INC.
A WHOLLY OWNED SUBSIDIARY OF KOMAX HOLDINGS AG
YORK, PENNSYLVANIA

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), (b) or (e)
of Section 222 of the Act, 19 U.S.C. § 2272(a), (b) and (e). 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
criteria must be met:
(1) 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.

(2) 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.
(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.

(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
(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; and
(ii) the shift described in clause (i)(I) or the acquisition of
articles or services described in clause (i)(II)
contributed importantly to such workers’ separation or
threat of separation.

For the Department to issue a secondary worker certification
under Section 222(b) of the Act, 19 U.S.C. § 2272(b), 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.

Section 222(c) of the Act, 19 U.S.C. § 2272(c), defines the
terms “Supplier” and “Downstream Producer.”
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(e) of the
Act, 19 U.S.C. § 2272(e).
The group eligibility requirements for workers of a firm under
Section 222(e) of the Act, 19 U.S.C. § 2272(e), 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 October 15, 2012 on behalf of workers of Komax Solar, Inc., a
wholly owned subsidiary of Komax Holdings, AG, York, Pennsylvania
(Komax). The workers’ firm is engaged in activities related to the
production of solar panel production machines.
The petitioners’ alleged that, “On October 5, 2012, the
President of Komax Solar York conducted an employee stand-up meeting
prior to the last round of layoffs. The President explained that in
order to cut costs to the company, the firm would have to layoff
workers and outsource production to a Komax facility in China. The
loss of work was due to the oversaturation of solar panels from
outside the United States.”
During the course of the investigation, information was
collected from the workers’ firm.
With respect to Section 222(a)(2)(A)(ii) of the Act, the
investigation revealed that Komax did not import articles like or
directly competitive with solar panel production machines during
2010, 2011, and January through September 2012. Komax’s sales and
production of solar panel production machines increased during 2011
compared to 2010. Komax’s sales and production of solar panel
production machines declined during January through September 2012
compared to the corresponding 2011 period. The declines in Komax’s
sales and production of solar panel machines are attributed to lost
export sales. Furthermore, Komax’s domestic customer sales increased
during the relevant period. Therefore, due to the factors depicted,
no customer survey was conducted.
With respect to Section 222(a)(2)(B) of the Act, the
investigation revealed that the firm did not shift the production of
solar panel production machines or like or directly competitive
article to a foreign country or acquire solar panel production
machines or like or directly competitive article from a foreign
country. In response to the petitioners’ allegations, a shift to a
foreign country or an acquisition of production from a foreign
country did not occur at Komax.
With respect to Section 222(b)(2) of the Act, the investigation
revealed that Komax is not a Supplier 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).
With respect to Section 222(b)(2) of the Act, the investigation
revealed that Komax does not act as a Downstream Producer to a firm
(or subdivision, whichever is applicable) 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).
Finally, the group eligibility requirements under Section 222(e)
of the Act, have not been satisfied either because Criterion (1) has
not been met since the workers’ firm has not been publically
identified by name by the International Trade Commission as a member
of a domestic industry in an investigation resulting in an
affirmative finding of serious injury, market disruption, or material
injury, or threat thereof.


Conclusion
After careful review of the facts obtained in the investigation,
I determine that the requirements of Section 222 of the Act, 19
U.S.C. § 2272, have not been met and, therefore, deny the petition
for group eligibility of Komax Solar, Inc., a wholly owned subsidiary
of Komax Holdings, AG, York, Pennsylvania engaged in activities
related to the production of solar panel production machines to apply
for adjustment assistance, in accordance with Section 223 of the Act,
19 U.S.C. § 2273.
Signed in Washington, D.C. this 1st day of November, 2012


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







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