Former Employees of Geokinetics, Inc. v. United States Secretary of Labor

Slip Op. 17-37
UNITED STATES COURT OF INTERNATIONAL TRADE
FORMER EMPLOYEES OF
GEOKINETICS, INC.,
Plaintiff,
v.
UNITED STATES SECRETARY OF
LABOR,
Defendant.
Before: Claire R. Kelly, Judge
Court No. 16-00057
PUBLIC VERSION
OPINION AND ORDER
[Remanding the U.S Department of Labor’s negative determination on remand denying
certification to Plaintiffs as entitled to Trade Adjustment Assistance and Alternative Trade
Adjustment Assistance benefits.]
Dated: April 3, 2017
Gregory Carroll Dorris, Pepper Hamilton LLP of Washington, DC, for plaintiff.
Agatha Koprowski, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice of Washington, DC for defendant. With her on the brief were Chad
A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia
Burke, Assistant Director. Of counsel on the brief was Tecla A. Murphy, Attorney Advisor,
Employment and Training Legal Services, Office of the Solicitor, U.S. Department of
Labor.
Kelly, Judge: 	Before the court for review is the U.S. Department of Labor’s
(“Department” or “Labor”) remand determination denying certification to Plaintiffs as a
class of workers entitled to Trade Adjustment Assistance (“TAA”) and Alternative Trade
Adjustment Assistance (“ATAA”) benefits under Section 222(c)(2) of the Trade Act of
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1974, as amended, 19 U.S.C. § 2272(c)(2) (2012). 1 	See Geokinetics, Inc. Notice of
Negative Determination on Remand, Sept. 16, 2016, ECF No. 14-1 (“Remand Results”).
Labor filed its Remand Results pursuant to the court’s order, which granted Defendant’s
unopposed motion for remand of Labor’s Negative Determination Regarding Eligibility
Relating to Geokinetics, Inc. (“Negative Determination”). Order, Aug. 25, 2016, ECF No.
13 (“Remand Order”); Conf. Administrative R. Item p at 93–98, Sept. 16, 2016, ECF No.
15-1 (“Negative Determination”); see generally Notice of Determinations Regarding
Eligibility to Apply for Worker Adjustment Assistance, 81 Fed. Reg. 9,509, 9,512 (Dep’t
Labor Feb. 25, 2016); Unopposed Mot. Voluntary Remand, June 2, 2016, ECF No. 8
(“Remand Mot.”). The court directed Labor to:
consistent with applicable statutes and regulations: (1) conduct further
investigation, as appropriate, including into the aggregate imports and
domestic production data; (2) determine whether the petitioning workers, as
engaged in activities related to the production of oil/gas, are eligible to apply
for [TAA]; and (3) issue the appropriate redetermination on remand.
Remand Order 1.
Labor’s Remand Results are not supported by substantial evidence. Specifically,
the court remands Labor’s determination that Plaintiffs are not entitled to certification for
TAA benefits as primary workers. Labor’s determination is not supported by substantial
evidence because: (1) Labor has not explained why its practice for comparing a firm’s
sales data is reasonable; (2) Labor failed to consider whether like imports increased
absolutely, or explain why it was reasonable not to examine whether like imports had
1 All further references to the Trade Act of 1974, as amended, are to Title 19 of the U.S. Code,
2012 edition.
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PUBLIC VERSION
increased; and (3) Labor failed to consider whether like imports had shifted to foreign
countries, or explain why it was reasonable not to examine whether like imports had
shifted to foreign countries. 	In addition, the court remands Labor’s determination not to
certify Plaintiffs as secondary workers eligible for TAA benefits. On remand, Labor must
further explain its determination in light of these concerns or reconsider its determination
consistent with this decision.
BACKGROUND
Plaintiffs are a group of former employees of the survey department of Geokinetics,
Inc. (“Geokinetics”), a company located in Houston, Texas that is engaged in “seismic oil
[and] gas exploration,” who became separated from the company as of January 31, 2015.
See Public Administrative R. Item a at 1, Sept. 16, 2016, ECF No. 16-1 (“Pet.”); Public
Administrative R. Item o at 91, Sept. 16, 2016, ECF No. 16-1 (“Negative Determination
Investigative Rep.”). 	Plaintiffs filed a petition seeking certification for TAA and ATAA
benefits with Labor on July 10, 2015. See Pet. In their petition, Plaintiffs allege that their
separations occurred as a result of “OPEC’s decision to increase oil production, [which]
caused widespread lay-offs and job cuts in the Energy Industry.” Id. at 2. Plaintiffs annex
to their petition a copy of a letter from Geokinetics informing one of its employees, a
mapper and surveyor, that his employment is terminated as of January 29, 2015. Id. at
3. 	Geokinetics’ letter attributed this employee’s loss of employment to “the current
downturn in the energy industry and its effect on [the] company . . . not a reflection on
[this employee’s] performance.” Id.
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After determining that Plaintiffs had correctly filed a petition, on September 23,
2015, Labor’s Office of Trade Adjustment Assistance (“OTAA”) began its investigation by
soliciting information regarding Plaintiffs’ worker group through a Business Data Request
(“BDR”) issued to Geokinetics, which included a Form ETA-9043a requesting data
tailored to producers of an article. 	See Public Administrative R. Item e at 16, Sept. 16,
2016, ECF No. 16-1; Public Administrative R. Item f at 18–28, Sept. 16, 2016, ECF No.
16-1. 	On September 24, 2015, Geokinetics responded to Labor’s request indicating that
it “does not produce any articles” and referencing the form’s directions that the company
contact the investigator assigned to the case if the company does not produce an article.
See Public Administrative R. Item h at 42, Sept. 16, 2016, ECF No. 16-1. 	Labor
responded indicating that it would send a revised BDR for services “to be completed
instead of the BDR for articles.” Id. at 41–42. On October, 22, 2015, Labor sent a revised
BDR for services (“First BDR”). 2 See Public Administrative R. Item I at 44–57, Sept. 16,
2 This First BDR, which pertained to services, requested information necessary to evaluate
Plaintiffs’ eligibility for TAA and ATAA benefits, including: (1) a description of services supplied by
the subject firm; (2) whether worker separations have occurred and the reasons for separation;
(3) whether the firm imported or acquired services like or directly competitive with the services
supplied by the subject firm from a foreign country; (4) whether the subject firm shifted like or
directly competitive services to another country or if such a shift is scheduled; (5) whether the
services supplied by the subject firm are supplied to another division, parent company, or affiliate
that is producing an article; (6) whether the worker separations were caused in any part by the
subject firm importing any articles like or directly competitive with articles produced using services
supplied by the workers at the subject firm; (7) import data, production and sales data of the
company for the years 2013 and 2014 as well as for the periods January through September of
2014 and January through September of 2015; (8) whether the subject firm supplies services to
a firm whose workers have been certified under the TAA program; and (9) a listing of the
company’s lost bids for contracts to supply services in the past 2 years. First BDR at 46–53.
(footnote continued)
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2016, ECF No. 16-1 (“First BDR”). 	Geokinetics responded to Labor’s First BDR by
providing the requested information. 	See Conf. Administrative R. Item j at 64, 67–68,
Sept. 16, 2016, ECF No. 15-1 (“First BDR Resp.”). 	However, in response to Labor’s
question asking whether Geokinetics supplies services to a firm whose workers have
been certified under the TAA program, Geokinetics did not fill in a response in either the
box marked “yes” or the box marked “no.” 	See id. at 65. 	Geokinetics attributed the
separation of the worker group to a decline in the oil and gas sector to which it provides
services, which it contends is caused by “a sustained collapse in the price of oil. 	As oil
prices have decreased, so has exploration activity, which has greatly reduced the need
for our highly specialized services.” Id. at 63.
On January 16, 2016, Labor issued its first negative determination on Plaintiffs’
petition for certification as a worker group eligible for TAA and ATAA benefits. 3 	See
Negative Determination at 98. Labor denied Plaintiffs’ petition for the following reasons:
(1) 	imports 	of 	services 	like 	or 	directly 	competitive 	with 	the 	services 	supplied 	by
Geokinetics have not increased; 4 (2) Geokinetics did not shift the supply of seismic data
Aside from the fact that the First BDR pertaining to services requested information on
services provided rather than on articles produced, the First BDR differed from the BDR issued
by Labor on September 23, 2015 in that the First BDR requested import data, production and
sales data of the company for the periods January through September of 2014 and January
through September of 2015. See Public Administrative R. Item f at 23, Sept. 16, 2016, ECF No.
16-1.
3 Labor defines the subject worker group as the survey department of Geokinetics. See Negative
Determination Investigative Rep. at 91 (citing Pet. at 1).
4 No findings support Labor’s determination. See Negative Determination Investigative Report.
Labor’s investigative report contains no data reflecting the level of U.S. imports of articles or
services like or directly competitive with articles produced or services supplied by Geokinetics.
See id.
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acquisition or like or directly competitive services to a foreign country or acquire such
services from a foreign country; 5 (3) Geokinetics is not a supplier of services to a firm that
employs workers that have been certified as eligible for TAA or ATAA benefits; and (4)
Geokinetics does not act as a downstream producer to a firm that employed a group of
workers who had been certified as eligible for TAA or ATAA benefits. 6 	See Negative
Determination at 97–98.
On June 2, 2016, Defendant moved for remand so that Labor could “conduct
further investigation and redetermine whether certain current and former employees of
Geokinetics are eligible for certification for [TAA] benefits.” Remand Mot. 1. Plaintiffs did
not oppose Defendant’s remand request. Id. In its request for remand, Defendant states
that, although “Labor addressed whether there was evidence of an increase in ‘imports
of services like or directly competitive with the services supplied by Geokinetics,’ . . .
Labor did not address whether there has been an increase in relevant imports of articles.” 7
5 To support this determination, Labor referenced Geokinetics’ response to its First BDR.
Negative Determination Investigative Rep. at 91 (citing First BDR Resp. at 63).
6 Labor does not cite support for its determinations that: (1) Geokinetics is not a supplier of
services to a firm that employs workers that have been certified as eligible for TAA or ATAA
benefits; or (2) that Geokinetics does not act as a downstream producer to a firm that employed
a group of workers who had been certified as eligible for TAA or ATAA benefits. See Negative
Determination Investigative Rep. at 92; Negative Determination at 97–98.
7 Although Defendant states that Labor addressed whether there was evidence of an increase in
imports of services provided by Geokinetics, see Remand Mot. 2–3, Labor’s investigative report
contains no U.S. import data for any like or directly competitive service. 	See Negative
Determination Investigative Rep. at 91–92. 	Labor only references Geokinetics response to
Labor’s inquiry data relating to Geokinetics’ own imports of like or directly competitive services
with those it supplies. 	See id. at 92 (citing First BDR Resp. at 63 (answering that Geokinetics
itself has not imported or acquired from a foreign country services like or directly competitive with
(footnote continued)
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Id. at 2–3. 	Defendant further recognized that Plaintiffs’ claim raises a question as to
whether Plaintiffs may be eligible for TAA benefits “as employees of a firm that produces
articles directly competitive with imports of oil and gas.” 8 	Id. at 3. 	Lastly, Defendant
contended that, in order to make such a determination during remand, “Labor will conduct
further investigation, as appropriate, including into the aggregate imports and domestic
production data” of oil and gas. 	Id. 	On June 3, 2016, the court granted Defendant’s
motion for remand. See Remand Order.
During its investigation on remand, Labor issued a second BDR (“Second BDR”)
to Geokinetics, which included a Form ETA 9043a for firms that produce articles. 	See
Administrative R. Item t at 124–132, Sept. 16, 2016, ECF No. 16-1 (“Second BDR Resp.”).
Together with its Second BDR, Labor included a covering e-mail, which advised that
According to [19 U.S.C. § 2272(c)(2)] any firm that engages in exploration
or drilling for oil or natural gas shall be considered to be a firm producing oil
or natural gas and any firm that engages in exploration or drilling for oil or
natural gas, or otherwise produces oil or natural gas, shall be considered to
be producing articles directly competitive with imports of oil and with imports
of natural gas. Additionally, the Conference Report that accompanied H.R.
3 (Omnibus Trade and Competitiveness Act of 1988), which amended the
Trade Act, explains the expansion of eligibility to all workers and firms in the
oil and natural gas industry (exploration to refining) and to workers and firms
the services it supplies, but not providing U.S. import data on services like or directly competitive
with those provided by Geokinetics)). Labor does not explain why Geokinetics response to this
question is relevant to assessing whether there has been an increase in imports of services into
the United States like or directly competitive with those provided by Geokinetics. See id..
8 Defendant argued that
[a] remand is appropriate to permit Labor to conduct further investigation, including
into whether there has been an increase in the importation of oil and natural gas,
and any other information appropriate to the determination regarding a firm
producing articles like or directly competitive with imports of oil and imports of
natural gas.
Remand Mot. 3.
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who supply essential goods or essential services as their principal trade or
business to firms in the oil or natural gas industry. This expanded list would
include, 	for 	example, 	independent 	drillers, 	pumpers, 	seismic 	and
geophysical crews, geological crews, and mud companies.
When answering form ETA-9043a – Business Data Request (Article),
please be advised that your responses should be based upon the activities
of the firm, as well as the firm’s production of oil and natural gas (if
applicable).
Id. at 122.
Labor’s Second BDR requested new employment, sales, and import data of the
company for the years 2013 and 2014 as well as for the periods January through June of
2014 and January through June of 2015. 9 See id. at 132. Labor’s Second BDR otherwise
differed from the first, in relevant part, in that it requested: (1) a description of articles
manufactured 	by 	the 	subject 	firm, 	their 	end 	uses, 	and 	whether 	the 	articles 	are
incorporated as components into another article; (2) information on whether the subject
firm imported or acquired from a foreign country articles like or directly competitive with
the articles it produces; (3) information on whether the subject firm imported articles that
incorporate an article like or directly competitive with the articles it produces; (4)
information on whether the subject firm shifted production of articles like or directly
9 In Labor’s First BDR, Labor requested employment, sales, production, and import data for the
years 2013 and 2014 as well as for the periods January through September of 2015. See First
BDR at 34. The periods in Labor’s Second BDR pertaining to articles were the years 2013, 2014,
January through June 2014, and January through June 2015. Second BDR Resp. at 127. The
periods for which Labor requested data in the Second BDR matched the periods in the initial BDR
pertaining to articles that Labor issued in its initial investigation on September 23, 2015. Compare
Public Administrative R. Item f at 23, Sept. 16, 2016, ECF No. 16-1 (requesting employment,
sales, production and import data for the periods 2013, 2014, January through June 2014, and
January through June 2014) with Second BDR Resp. at 127 (also requesting employment, sales,
production and import data for the periods 2013, 2014, January through June 2014, and January
through June 2014).
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competitive with articles it produces to another country or whether such a shift in
production is scheduled; (5) information on whether the firm experienced a decline in
sales to a customer located outside the United States; and (6) information on whether the
subject firm conducts business with any firm whose workers have been certified under
the TAA program. See id.
Geokinetics responded to the Second BDR by stating that
many answers are the same as in the previous submission but for many
others the answer is not N/A as we are not a company that manufactures
products 	but 	rather 	provides 	services. 	Therefore, 	we 	do 	not 	have
“production numbers,” for example.
Id. at 120. Geokinetics otherwise provided the information requested in Labor’s Second
BDR. 10 	See Second BDR Resp. at 124–132. 	In response to Labor’s question asking
whether it conducts business with a firm whose workers have been certified under the
TAA program, Geokinetics did not mark either the box marked “yes” or the box marked
“no.” See id. at 128.
On September 16, 2016, Labor filed its remand results affirming its original
negative determination not to certify Plaintiffs as a class of workers entitled to TAA
10 Geokinetics reported identical employment data in its Second BDR response, but the sales
data reported and the periods differed. See Conf. Administrative R. Item t at 132, Sept. 16, 2016,
ECF No. 15-1; First BDR Resp. at 64. In its First BDR response, Geokinetics reported sales of
“seismic acquisition” services $[[ 	]] for the period January through September of 2014
and $[[ 	]] for the period January through September of 2015. See First BDR Resp. at
64. 	In its Second BDR, Labor requested that Geokinetics report sales of “seismic acquisition,”
which Labor denoted as an “article produced.” Second BDR Resp. at 127. In its Second BDR
response, 	Geokinetics reported 	sales 	for 	the 	period 	January 	through 	June 	of 	2014 	of
$[[ 	]]. 	Second BDR Resp. at 132. 	For the period January through June of 2015,
Geokinetics reported sales of $[[ 	]]. 	Id. 	In each field where Labor requested that
Geokinetics report the quantity of “seismic acquisition” articles produced during a given period,
Geokinetics wrote in “Services.” Id.
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benefits. See Remand Results 8. Labor continued to find that Geokinetics is “engaged
in activities related to the supply of seismic data services to firms within the oil industry.”
Id. at 1 (citing Pet. at 1–5; Negative Determination Investigative Report at 90–91). Labor
identified seismic data services provided by Geokinetics as “production of oil under 19
U.S.C. § 2272(c)(2).” Id. Labor determined that: (1) a significant number or proportion of
workers at the subject firm is totally or partially separated, or threatened with such
separation; (2) industry data shows that aggregate imports of oil and gas during the
relevant 	period 	decreased; 	(3) 	Geokinetics’ 	sales/production 	increased 	during 	the
relevant period; (4) Geokinetics did not shift the production of articles like or directly
competitive with oil to a foreign country; (5) Geokinetics is not a supplier to a firm that
employs workers that have been certified as eligible for TAA or ATAA benefits; and (6)
Geokinetics does not act as a downstream producer to a firm that employed a group of
workers who had been certified as eligible for TAA or ATAA benefits. 	Id. at 6–7 (citing
Negative Determination Investigative Report at 90–92).
In its Remand Results, Labor revisited certain aspects of its initial determination
after further developing the record. First, Labor reviewed the information collected in its
initial investigation along with revised sales and production data provided by Geokinetics
for the years 2013 and 2014 and the periods January through June of 2014 and January
through June of 2015. 11 	See Remand Results at 4 (citing Second BDR Resp. at 132).
11
In completing the Second BDR, Geokinetics filled in “services” in the field where it was directed
to fill in quantity of sales. See Second BDR Resp. at 132. Labor determined that Geokinetics is
engaged in the production of oil. 	Remand Results at 4. Therefore, Labor concluded that
Geokinetics’ sales data functions as production data. Id.
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Labor determined that the revised data comparing sales/production data for the years
2013, 2014 as well as the periods January through June of 2014 and January through
June of 2015 show an overall increase in sales and production. 12 See id. at 6. Second,
Labor compared aggregate import data of oil and gas into the United States for the
periods from August of 2013 through June of 2014 and August of 2014 through June of
2015, and Labor concluded that aggregate imports of oil and gas decreased. 13 	Id. at 6
12 In the investigative report prepared in connection with its remand, Labor requested that
Geokinetics complete the ETA-9043a form for firms engaged in the production of an article (i.e.,
oil and gas), and Geokinetics reported sales data. See Conf. Administrative R. Item Y at 157–
158, Sept. 16, 2016, ECF No. 15-1. 	In its remand investigative report, Labor found that
Geokinetics’ sales, which Labor treats as equivalent to production data, decreased in 2014 from
2013 levels by $[[ 	]], and sales increased from January to June 2014 to the period from
January to June 2015 by $[[ 	]]. 	Id. at 158. 	In the remand investigative report, Labor
further stated that its initial investigation did not include production figures because “the general
counsel representing Geokinetics, Inc. responded that the firm is engaged in activities related to
the supply of a service.” Id. at 154.
13 Labor states that it considers Geokinetics “to be engaged in the production of oil rather than the
provision of a service” because of the language in 19 U.S.C. § 2272(c)(2). Administrative R. Item
y at 157–158, Sept. 16, 2016, ECF No. 15-1.
On remand, Labor examined oil and gas imports. Administrative R. Item y, Sept. 16, 2016,
ECF No. 15-1. 	Labor found that U.S. imports of crude oil declined from 2,821,480 thousand
barrels in 2013 to 2,680,626 thousand barrels in 2014 (a 4.99% decline), and have declined
further from 1,322,027 thousand barrels in the period from January through June of 2014 to
1,315,438 thousand barrels in the period from January through June of 2015 (a 0.50% decline).
Id. at 154, 158–59. 	Labor also found that U.S. production of crude oil has increased from
2,720,782 thousand barrels in 2013 to 3,180,363 thousand barrels in 2014 (a 16.89% increase)
with a further increase from 1,514,407 thousand barrels in the period from January through June
of 2014 to 1,701,470 thousand barrels in the period from January through June of 2015 (a 12.35%
increase). Id. at 159.
Labor found that U.S. imports of natural gas declined from 2,883,355 million cubic feet in
2013 to 2,695,355 million cubic feet in 2014 (a 6.52% decline), but increased from 1,383,948
million cubic feet in the period from January through June of 2014 to 1,406,002 million cubic feet
in the period from January through June 2015 (a 1.59% increase). Id. Labor also found that U.S.
production of natural gas increased from 24,205,523 million cubic feet in 2013 to 25,728,496
million cubic feet in 2014 (a 6.29%) increase, and continues to increase from 11,878,793 million
cubic feet in the period from January through June of 2014 to 13,402,995 million cubic feet in the
period from January through June of 2015 (a 12.83% increase). Id. at 159–60.
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(citing Public Administrative R. Item v at 136–146, Sept. 16, 2016, ECF No. 16-1; Public
Administrative R. Item w at 147–150, Sept. 16, 2016, ECF No. 16-1). 	Labor otherwise
found that the record information obtained on remand confirmed its other findings in the
negative determination. See Remand Results at 6–7.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction pursuant to 28 U.S.C. § 1581(d)(1) (2012) and 19 U.S.C.
§ 2395(a). Under 19 U.S.C. § 2395(b) the agency's determination must be sustained if it
is supported by substantial evidence in the administrative record and is otherwise in
accordance with law. 	See 19 U.S.C § 2395(b) (providing that the Court may remand
Labor’s findings of fact to take further evidence for good cause); see also 28 U.S.C.
§ 2640(c) (2012) (making an action to review a determination by Labor reviewable under
the standard provided by 19 U.S.C. § 2395(b)).
DISCUSSION
I. 	Certification of Primary Workers
The court reviews Labor’s analysis of Plaintiffs’ eligibility for certification as primary
workers. First, the court reviews Labor’s determination that Geokinetics’ sales increased.
For the reasons that follow, Labor’s determination is not supported by substantial
evidence. Second, the court reviews Labor’s determination that imports of like or directly
competitive articles have increased. 	This determination is also not supported by
substantial evidence. Third, the court reviews Labor’s determination that Geokinetics has
not shifted production of like or directly competitive articles to a foreign country or acquired
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like or directly competitive articles from a foreign country. For the reasons that follow, the
court also concludes that this determination is not supported by substantial evidence.
A. Decreased Sales
Plaintiffs contend that Labor compared incorrect periods of sales data to support
its determination that Geokinetics’ sales increased during the relevant period. Comments
of Pls. Former Employees of Geokinetics, Inc. on Remand Results Confidential Version
5–7, Nov. 16, 2016, ECF No. 17 (“Pls.’ Remand Comments”). 	Specifically, Plaintiffs
argue that Labor failed to consider sales data for the month of July in both 2014 and 2015,
which it argues is part of the relevant time period for comparison under the statute. Id. at
6. 	Plaintiffs claim that Labor’s conclusion likely would have been different if it had
considered the additional months of sales data. 14 	Id. 	Defendant responds that Labor’s
determination is supported by the record because Geokinetics’ sales declined during the
relevant time periods, as interpreted by Labor based on relevant statutory and regulatory
authorities. 	See Def.’s Resp. Pl.s’ Comments Dep’t Labor’s Remand Results 11, n.2,
Dec. 30, 2016, ECF No. 21 (“Def.’s Reply”). 	The court remands Labor’s determination
that Geokinetics’ sales decreased absolutely for further explanation and consideration
consistent with this decision.
14 Plaintiffs argue that the sales data produced by Geokinetics showed a “[[
]]” Pls.’ Remand Comments 6. Therefore, Plaintiffs claim that “[i]ncluding July data
for 2014 and 2015 very easily could flip the interim data for 2014 to 2015 to a decline in sales
value.” 	Id. 	Regardless of whether the data makes a difference, Plaintiffs argue that Labor’s
determination cannot be supported by substantial evidence if it fails to consider the appropriate
time periods. See id.
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Certain workers who have been affected by an increase in foreign imports or a
shift in production or services to a foreign country are eligible for certification by Labor for
TAA benefits. 	19 U.S.C. § 2272(a). 	To be eligible for certification under § 2272(a), “a
significant number or proportion of the workers in such workers’ firm” must have become
separated. 	19 U.S.C. § 2272(a)(1). 	If this threshold requirement is satisfied, there are
two general paths leading to certification under § 2272(a): (1) the increased imports path,
19 U.S.C. § 2272(a)(2)(A); and (2) the shift in production or services path, 19 U.S.C.
§ 2272(a)(2)(B). To qualify for certification under the increased imports path, the workers’
firm’s sales or production, or both, must also have decreased absolutely. 	19 U.S.C.
§ 2272(a)(2)(A)(i). 	In addition, any such increase must have “contributed importantly to
such workers’ separation or threat of separation and to the decline in sales or production
of such firm.” 19 U.S.C. § 2272(a)(2)(A)(iii).
The statute does not define the time periods for Labor to analyze in assessing
whether the subject firms sales have decreased absolutely under the increased imports
path. 	See 19 U.S.C. § 2272(a)(2)(A)(i) 	Defendant states that Labor’s practice for
determining the relevant time periods for comparing sales data is contained in Labor’s
BDR, which is sent to subject firms during the TAA investigation. 	See Def.’s Reply 11,
n.2. 	Labor’s First BDR requests that the subject firm report employment, sales,
production, and import data for “the service identified for the last two full years, the most
recent year-to-date period, and the comparable period in the previous year.” 	See First
BDR at 49. Labor’s Second BDR form, issued in the remand investigation, asks the firm
to report its employment, sales, and production data “for the periods provided in the table.”
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From the face of the Second BDR form pertaining to articles, it does not appear that Labor
has any uniform practice for determining the periods for which to examine decreases in
sales and production of subject firms because the language of the form does not state a
uniform methodology for computing the time periods. Moreover, a comparison of Labor’s
First BDR to its Second BDR reveals that Labor defined the relevant periods of time
differently in each depending upon whether the form pertained to articles or services.
Compare First BDR at 34 (requesting partial year data from January through September
of 2014 and January through September of 2015) to Second BDR at 127 (requesting
partial year data from January through June of 2014 and January through June of 2015).
Labor never explains this discrepancy.
Here, Labor determined that a significant number or proportion of workers at the
subject 	firm 	is 	totally 	or 	partially 	separated. 15 	Remand 	Results 	6 	(citing 	Conf.
Administrative R. Item y at 154, Sept. 16, 2016, ECF No. 16-1(“Remand Investigative
Rep.”)). 	Defendant contends that “Labor requested comprehensive sales data for the
most recent completed quarters prior to the petition (in this instance, the first two quarters
of 2015), and the comparable period in the previous year.” 	Def.’s Reply 11 (citing
Remand Results 6). Defendant justifies obtaining sales and production data for the most
recent period as
15 Labor reviews its findings in its investigative report supporting its initial negative determination,
in which Labor notes that it determined that Geokinetics had separated approximately [[ 	]]
workers since July 31, 2014. Remand Investigative Report at 154. Labor further reviews the fact
that the investigation found that [[ 	]] more workers were to be separated in the fourth quarter of
2015 and the first quarter of 2016. 	Id. 	Lastly, Labor notes that the investigation found that
Geokinetics stated that “there were a total of [[ 	]] workers in the worker group through
September 2015.” Id. (citing First BDR Resp.).
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ensur[ing] that the periods of review of imports either predate or occur
simultaneously with the periods for review of sales or production, allowing
Labor to analyze the relationship between import and sales or production
data for evidence that the causal “contributed importantly” standard has
been met.
Id. However, Labor fails to provide any indication that it has a defined practice to compare
sales data for purposes of determining whether sales decreased to determine eligibility
for TAA benefits. 	Moreover, in this investigation Labor solicited information covering
different periods in its initial investigation and on remand without explantion for or
acknowledgment of the difference. Compare First BDR at 34 (requesting partial year data
from January through September of 2014 and January through September of 2015) to
Second BDR at 127 (requesting partial year data from January through June of 2014 and
January through June of 2015). 	Labor may have a reason for defining its relevant time
periods to exclude the months of July of 2014 and 2015, but Labor has not explained how
it defines these periods for purposes of assessing whether sales of the subject firm have
decreased, nor has it explained why the periods compared here are reasonable. 	See
Remand Results 6. 	On remand, Labor must explain how it determines the relevant
periods for comparing sales data and explain why its practice is reasonable in light of its
statutory mandate to determine whether the sales or production, or both, of the subject
firm have decreased, or reconsider its determination.
Defendant 	contends 	that 	Labor’s 	practice 	for 	determining 	the 	periods 	for
comparison of sales and production data is reasonable because it ensures that such data
either occurs simultaneously or after the periods of review of imports. 	Def.’s Reply 11.
Defendant further argues that looking at import data that either predates or occurs
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simultaneously with the periods of review for sales and production data ensures a causal
relationship between the increased imports and the decrease in sales or production
required by the statute. 	See id. (referencing 19 U.S.C. § 2272(a)(2)(A)(ii); 29 C.F.R.
§ 90.16(b)(3) (2015) 16). Defendant’s explanation addresses why it is reasonable to look
at sales and production data for a period occurring simultaneously or after the period of
review for the increase in imports, but Labor does not explain why it is reasonable to
define that period as from January through June. 	The effect of looking at sales data
through June of 2014 and 2015 is to exclude monthly data from July of 2014 and 2015
despite the fact that the petition was filed on July 10, 2015. Neither the statute nor Labor’s
regulations defines the relevant periods for purposes of the decreased sales or production
comparison. See 19 U.S.C. § 2272(a)(2)(A)(ii); 29 C.F.R. § 90.16(b)(3). Although Labor
has discretion to fill gaps in the statute through practice, that practice must be a
reasonable means of effectuating the statutory purpose. See Ceramica Regiomontana,
S.A. v. United States, 10 CIT 399, 404–05, 636 F. Supp. 961, 966 (1986), aff’d 810 F.2d
1137, 1139 (Fed. Cir. 1987). 	Without further explanation, the court cannot assess the
reasonableness of Labor’s practice for defining these time periods or assess whether the
discrepancy between how it defines these periods based on whether it is assessing
producers of articles or providers of services is arbitrary. Firms in industries like oil and
gas, where contracts are bid for far in advance, may be unlikely to show a decrease in
sales well before laying off workers. 	Because firms in long-lead industries must make
staffing decisions based on forecasted demand, anticipated decreases in sales may only
16 Further references to the Code of Federal Regulations are to the 2015 edition.
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become apparent immediately prior to the workers’ separation in such firms because the
firm anticipates decreased sales in the future. 	Thus, data for the month immediately
preceding the filing of the petition may be particularly relevant in evaluating eligibility in
this investigation. On remand, Labor must explain why its interpretation is reasonable in
light of these concerns.
Defendant also contends that Plaintiffs’ “speculation that including July 2015 sales
data would have changed Labor’s determination is contradicted by record evidence.”
Def.’s Reply 12 (citing First BDR Resp. at 64 (showing that sales for the first three quarters
of 2015 were greater than the same period of 2014) (internal citation omitted)). However,
quarterly sales data reflecting increases in third quarter sales does not necessarily
demonstrate that the results would not have been different had Labor included only July
sales.
B. Increased Imports
Plaintiffs argue that Labor failed to consider whether imports of seismic data
services have increased. Pls.’ Remand Comments 8–9. Defendant responds that Labor
properly limited its examination to imports of articles of oil and gas because the statute
requires Labor to limit its analysis to oil and gas imports. 17 	Def.’s Reply 8–9 (citing 19
17 Although neither party requested oral argument, after reviewing the parties’ submissions, the
court 	asked 	Defendant 	for 	further 	explanation 	on 	why 	its 	interpretation 	of 	19 	U.S.C.
§ 2272(a)(2)(A)(ii)(I) as precluding Labor from considering whether imports of services like or
directly competitive with those produced by Geokinetics had increased during the relevant period
is reasonable. See Conf. Letter Concerning Suppl. Briefing Questions 1–3, Jan. 23, 2017, ECF
No. 22; see also Order, Jan. 23, 2017, ECF No. 23; Def.’s Reply Br. 8–11. Labor did not state its
(footnote continued)
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U.S.C. § 2272(c)(2)(A)–(B)). 	The court remands Labor’s determination for further
consideration and explanation. 	Section 2272(c)(2)(B) instructs Labor to treat oil and
natural gas exploration and drilling services as articles directly competitive with imports
of oil and natural gas. 19 U.S.C. § 2272(c)(2)(B). However, § 2272(a)(2)(A)(ii) requires
Labor to consider increased imports of not only directly competitive articles, but also
increased imports of like articles. See 19 U.S.C. § 2272(a)(2)(A)(ii). On remand, Labor
must explain why it is reasonable to consider only oil and gas imports, which the statute
instructs are directly competitive with oil and natural gas exploration and drilling services,
and therefore not like imports, in evaluating Plaintiffs’ eligibility for TAA certification.
In order to qualify for certification under the increased imports path, in addition to
determining whether a significant number or proportion of workers in the subject firm have
become totally or partially separated, see 19 U.S.C. § 2272(a)(1), three additional criteria
must be present. First, “the sales or production, or both, of [the workers’] firm [must] have
decreased absolutely.” 	19 U.S.C. § 2272(a)(2)(A)(i). 	Second, “imports of articles or
services like or directly competitive with articles produced or services supplied by [the
interpretation of the statute in its Remand Results. See Remand Results 6. Defendant first stated
that 	Labor’s 	determination 	not 	to 	consider 	increases 	in 	services 	resulted 	from 	Labor’s
interpretation of the statute in its reply brief. See Def.’s Reply Br. 8–11. In response to the court’s
questions, Defendant states that 19 U.S.C. § 2272(a)(2)(A)(i) requires it to consider oil and natural
gas exploration and drilling services firm as engaging in the production competitive with oil and
natural gas. Def.’s Suppl. Br. 4, Feb. 13, 2017, ECF No. 29. Defendant’s argument is first raised
in Defendant’s supplemental brief, see id., to which the court did not permit Plaintiffs to respond.
See Order, Jan. 23, 2017, ECF No. 23.
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subject] firm [must] have increased.” 18 19 U.S.C. § 2272(a)(2)(A)(ii)(I). The increase can
be either absolute or relative to domestic production compared to a representative base
period. 19 	29 C.F.R. § 90.2. 	If these first two criteria are met, Labor must also find that
any such increase “contributed importantly to such workers’ separation or threat of
separation 	and 	to 	the 	decline 	in 	sales 	or 	production 	of 	such 	firm.” 	19 	U.S.C.
§ 2272(a)(2)(A)(iii).
The statute requires Labor to consider whether imports that are like or directly
competitive 	with 	articles 	produced or 	services 	provided by the subject firm 	have
increased. 	See 19 U.S.C. § 2272(a)(2)(A)(ii). 	The statute provides that “[a]ny firm that
engages in exploration or drilling for oil or natural gas, or otherwise produces oil or natural
18 Alternatively, though not at issue in this remand, a petitioning group could show that:
(1) “imports of articles like or directly competitive with articles into which one or more
component parts produced by [the subject] firm are directly incorporated . . . have
increased,” 19 U.S.C. § 2272(a)(2)(A)(ii)(II)(aa);
(2) “imports of articles like or directly competitive with articles which are produced
directly using services supplied by such firm . . . have increased,” 19 U.S.C.
§ 2272(a)(2)(A)(ii)(II)(bb); or
(3) “imports of articles directly incorporating one or more component parts produced
outside the United States that are like or directly competitive with imports of articles
incorporating one or more component parts produced by [the subject] firm have
increased,” 19 U.S.C. § 2272(a)(2)(A)(ii)(III).
19 To assess whether imports have increased, Labor examines imports during the “representative
base period,” (i.e., the earlier period of import data for comparison) defined as “one year consisting
of the four quarters immediately preceding the date which is twelve months prior to the date of
petition.” See 29 C.F.R. § 90.2. Labor compares imports during the representative base period
to a comparison period to determine if imports of like or directly competitive articles or services
have increased. See id. Based upon the language of Labor’s regulation, it can be inferred that
the comparison period (i.e., the latter period of import data for comparison) is one year consisting
of the four quarters preceding the date of the petition. See id. Labor uses the term “relevant time
period” throughout its Remand Results to refer to the later period for comparing imports. 	See,
e.g., Remand Results 4–6.
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gas, shall be considered to be producing articles directly competitive with imports of oil
and with imports of natural gas.” 20 	19 U.S.C. § 2272(c)(2)(B). 	Therefore, as Labor
concluded in its remand determination, the provision of oil and natural gas exploration
and drilling services is, for the purposes of the statute, the production of articles directly
competitive 	with 	oil 	or 	natural 	gas. 	See 	Def.’s 	Suppl. 	Br. 	4 	(citing 	19 	U.S.C.
§ 2272(c)(2)(A)–(B)). 	But the statute mandates that Labor consider both increases in
20 In 1988 Congress amended § 2272 to add 19 U.S.C. §§ 2272(c)(2)(A)–(B). 	See Omnibus
Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, § 1421, 102 Stat. 1107,
1242(1988). The purpose of this amendment was to “facilitate the availability of benefits under
the trade adjustment assistance program for workers employed by firms engaged in exploration
or drilling for crude oil or natural gas.” H.R. Conf. Rep. 100-576, at 694 (Apr. 20, 1988), reprinted
in 1988 U.S.C.C.A.N. 1547, 1727. 	Congress intended for “workers employed by independent
firms engaged in exploration or drilling [to] be eligible to apply for program benefits on the same
basis as workers employed by firms that are engaged in the production of crude oil or natural gas
as well as exploration or drilling.” Id. Previously, “workers engaged in exploration or drilling for
firms that also produce crude oil or natural gas [were] considered as eligible to apply for such
benefits.” Id. See id. At the time of the 1988 amendment, services were not covered under the
TAA and workers in service industries did not qualify for TAA benefits. 	In 2009, the American
Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1801, 123 Stat. 115, 367 (2009),
amended 19 U.S.C. § 2272(a)(2)(A)(ii) to add imports of services like or directly competitive with
services supplied by such firm to the increased imports path. See H.R. Conf. Rep. 111-16, at 247
(Feb. 12, 2009), reprinted in 2009 U.S.C.C.A.N. 3, 654. The motivation for making the change
was that “[m]ost service sector workers presently are ineligible for TAA benefits because of a
statutory requirement that the workers must have been employed by a firm that produces an
‘article.’” 	Id. at 249. When Congress amended the statute in 2009 to extend the statute to all
service workers, it did not deal with the fact that it had effectively previously deemed certain oil
and gas service providers as producers of articles. See American Recovery and Reinvestment
Act § 1801.
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imports of “like” and “directly competitive” articles. 21 These words are not synonymous. 22
The regulations reflect the different considerations each term in the statute calls upon
Labor to consider. 23
In its original determination, Labor treated the Plaintiffs as workers in a firm
providing seismic data acquisition services. See Negative Determination at 96–97. Labor
21 The statute separately states that “[a]ny firm that engages in exploration or drilling for oil or
natural gas shall be considered to be a firm producing oil or natural gas.” 	19 U.S.C.
§ 2272(c)(2)(A). This provision seems to relate to subsection (e) of the act, which allows workers
to seek benefits if their “firm is publicly identified by name by the International Trade Commission
as a member of a domestic industry in an investigation resulting in an affirmative determination”
pursuant to 19 U.S.C. §§ 2252(b)(1), 2451(b)(1), 1671(b)(1)(A) or 1673(b)(1)(A). See 19 U.S.C.
§ 2272(e).
22 	Indeed, 	the 	legislative 	history corroborates the 	notion 	that 	the words 	are 	not 	used
interchangeably, specifically stating that:
The term "like or directly competitive" used in the bill to describe the products of
domestic producers that may be adversely affected by imports was used in the
same context in section 7 of the 1951 Extension Act and in section 301 of the
Trade Expansion Act. The term was derived from the escape-clause provisions in
trade agreements, such as article XIX of the GATT. The words "like" and "directly
competitive," as used previously and in this bill, are not to be regarded 	as
synonymous or explanatory of each other, but rather to distinguish between "like"
articles 	and 	articles 	which, 	although 	not 	"like", 	are 	nevertheless 	"directly
competitive." 	In such context, "like" articles are those which are substantially
identical in inherent or intrinsic characteristics (i.e., materials from which made,
appearance, quality, texture, etc.), and "directly competitive" articles are those
which, 	although 	not 	substantially 	identical 	in 	their 	inherent 	or 	intrinsic
characteristics, are substantially equivalent for commercial purposes, that is, are
adapted to the same uses and are essentially interchangeable therefor.
145 Cong. Rec. H10937 (daily ed. Dec. 10, 1973) (statement of Rep. Ullman; summary of Section
201 of the Trade Act of 1974). See also S. Rep. No. 93-1298, at 232 (1974), reprinted in 1974
U.S.C.C.A.N. 7185, 7360.
23 The regulations provide that “like or directly competitive means that like articles are those which
are substantially identical in inherent or intrinsic characteristics (i.e., materials from which the
articles are made, appearance, quality, texture, etc.); and directly competitive articles are those
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).” 29 C.F.R. § 90.2.
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sought a remand to consider Plaintiffs’ eligibility for TAA benefits as workers of a firm
producing an article despite the fact that Geokinetics provides seismic data services
because that is what the statute requires. Remand Mot. 2–3; Def.’s Suppl. Br. 4. 24 Fair
enough. However, Labor’s determination restricts itself to considering imports of directly
competitive products as defined by § 2272(c)(2)(B), i.e., oil and natural gas articles. See
Remand Results at 6–7. Labor’s analysis ignores the language of the statute requiring it
to also consider imports of like articles and the statute’s broader remedial purpose. 25 	If
24 In its determination on remand, Labor did not tie its determination to consider increased imports
of oil and gas to an interpretation of the statute requiring it to consider Geokinetics to be only a
producer of an article. 	See Remand Results 2–4, 6–7. 	In its request for remand, Defendant
states that, whereas “Labor addressed whether there was evidence of an increase in ‘imports of
services like or directly competitive with the services supplied by Geokinetics,’ . . . Labor did not
address whether there has been an increase in relevant imports of articles.” Remand Mot. 2–3.
Nor do Labor’s instructions to Geokinetics accompanying its Second BDR questionnaire alert
Geokinetics to the notion that Geokinetics is only a provider of articles and not a provider of
services. See Second BDR Resp. at 122. Labor’s instructions state affirmatively that the statute
considers “any firm that engages in exploration of drilling for oil or natural gas, or otherwise
produces oil or natural gas” to be “producing articles directly competitive with imports of oil and
with imports of natural gas.” Id. 	Labor further instructs that Geokinetics responses “should be
based upon the activities of the firm, as well as the firm’s production of oil and natural gas (if
applicable).” Id. It is unclear from these instructions that Geokinetics responded understanding
that Labor considers it only a provider of articles and not provider of services. 	In fact, the
confusion of Geokinetics’ general counsel is apparent from her correspondence with Labor.
Geokinetics states
You will note that many answers are the same as in the previous submission but
for many others the answers [are] now N/A as we are not a company that
manufactures products but rather provides services. 	Therefore we don’t have
“production numbers,” for example.
Id. at 120.
25 Since its inception, the statute has required Labor to consider the effect of increased imports
in order to assess whether those imports are in some measure causing harm to domestic workers.
See Trade Expansion Act of 1962, Pub. L. No. 87-794, § 302, 76 Stat. 872, 885-886 (1962). The
Trade Expansion Act of 1962 established relief that was the precursor to TAA under the Trade
Act of1974. Section 301 of the Trade Expansion Act tied eligibility of a group of workers for tariff
(footnote continued)
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the statute requires Labor to adopt the fiction that oil and gas exploration and drilling
service providers produce articles that are directly competitive with oil and gas production,
then Labor must explain why it is reasonable not to consider imports of seismic data
services (which would appear to be “like” the articles produced by those same service
providers) in order to foster the remedial purposes of the statute or reconsider its
determination. 26
adjustment assistance to the United States Tariff Commission’s (i.e., the precursor agency to the
U.S. International Trade Commission) determinations. 	Trade Expansion Act § 301. 	After a
petition was filed the Tariff Commission had to investigate
whether, as a result in major part of concessions granted under trade agreements,
an article like or directly competitive with an article produced by such workers' firm,
or an appropriate subdivision thereof, is being imported into the United States in
such increased quantities as to cause, or threaten to cause, unemployment or
underemployment of a significant number or proportion of the workers of such firm
or subdivision.
Trade Expansion Act § 301(c)(2). 	A group of workers was eligible to apply for adjustment
assistance if Labor found that
the increased imports (which the Tariff Commission has determined to result from
concessions granted under trade agreements) have caused or threatened to cause
unemployment or underemployment of a significant number or proportion of
workers of such workers' firm or subdivision thereof.
Trade Expansion Act § 302(a)(2). Therefore, the Trade Expansion Act tied the harm caused by
increased imports to concessions granted under trade agreements. 	See id. 	The Trade Act of
1974 made it easier to secure benefits by no longer requiring that the increase in imports be tied
to concessions explicitly granted under trade agreements, see Staffs of S. Comm. on Finance
and H. Comm. on Ways and Means, 93 rd Cong., Trade Act of 1974, Summary of the Provisions
of the Provisions of H.R. 10710 7 (Comm. Print 1974), but the Trade Act of 1974 retained the
concept that “like or directly competitive” articles are being imported and that such imports are
causing worker separations or the threat of separation remained in the statute after these
changes. Trade Act of 1974, Pub. L. No. 93-618, § 222, 88 Stat. 1978, 2019 (1975).
26 Competition from foreign suppliers of seismic data acquisition services may have had a more
significant impact on Geokinetics’ decision to lay off its surveying department than increases in
imports of oil and gas. 	For example, because the oil and gas industry is a global industry
dominated by many large multinational players, it is likely that employees of U.S. providers of
(footnote continued)
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Defendant’s reliance on the Court of Appeals for the Federal Circuit’s holding in
Former Employees of Marathon Ashland v. Chao, 370 F.3d 1375 (2004) to support its
determination does not address the question of whether Labor must also consider an
increase in like imports. 	See Def.’s Suppl. Br. 2 (citing Former Employees of Marathon
Ashland v. Chao, 370 F.3d 1375, 1383–84 (2004)). Rather, the Marathon court held that
Labor’s determination that the services performed by gaugers, whose services were
involved in performing quality control on crude oil purchased from independent oil
producers, were not involved in the oil production process was supported by substantial
evidence. 	See id. at 1376, 1383. 	The court noted that the statute does not require all
employees who perform tasks at the interface between oil production and transportation
to be considered involved in production or transportation services. Id. at 1381 (construing
identical statutory language in what was then 19 U.S.C. § 2272(b)(2)(A)–(B) (2000)).
Here, Plaintiffs do not challenge whether the services provided by Geokinetics are
involved in the oil production process or even whether imports of oil and natural gas
decreased, but rather argue that Labor should have considered increased imports of like
articles (i.e. seismic data services). See Pls.’ Remand Comments 8–9.
C. Shift in Production to Foreign Countries or Acquisition of Products from
a Foreign Country
Plaintiffs argue that Labor failed to adequately evaluate whether Geokinetics
shifted production or services to foreign countries or acquisition of like or directly
exploration and drilling services could be harmed by competition from imports of foreign
exploration and drilling services providers even during a period when the U.S. oil imports was
decreasing. Labor must explain the reasonableness of its determination in light of this concern.
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competitive articles produced or services performed from a foreign country, which it is
obligated to independently investigate under the statute. 	Pls.’ Remand Comments 10–
12 (citing 19 U.S.C. § 2272(a)(2)(B)(i)(I)–(II)). Defendant responds that Labor reasonably
relied on the unrebutted information on the record provided by Geokinetics to conclude
that Geokinetics had not shifted production or services to a foreign country or acquired
like or directly competitive articles produced or services supplied from a foreign country.
Def.’s Reply 13–15. 	The record lacks evidence to support a determination that
Geokenetics did not shift production or services to a foreign country, and it is unclear
whether Labor considered a shift by Geokinetics in seismic data services to foreign
countries.
In order to qualify for TAA certification under the shift in production or services path
or shift in acquisition path, Labor must initially determine that a significant number or
proportion of the workers’ firm have become totally or partially separate or have been
threatened to become totally or partially separated. See 19 U.S.C. § 2272(a)(1). If that
initial requirement is met, the statute further requires that Labor consider both whether:
(1) there has been a shift in the production of articles or the supply of services like or
directly competitive with the articles produced or services supplied by the subject firm to
a foreign country, 19 U.S.C. § 2272(a)(2)(B)(i)(I); or (2) the subject firm has acquired
articles or services that are like or directly competitive with articles which it produces or
services it supplies from a foreign country, 19 U.S.C. § 2272(a)(2)(B)(i)(II). 	In addition,
the statute requires that such a shift have contributed importantly to the workers’
separation or threat of separation. 19 U.S.C. § 2272(a)(2)(B)(ii).
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The court’s concerns with regard to the distinct requirements of the terms “like”
and “directly competitive” under the increased imports path apply equally with regard to
Sections 2272(a)(2)(B)(i)(I) and 2272(a)(2)(B)(i)(II). 	Thus, Labor must explain why it is
reasonable to consider only whether directly competitive production shifted to foreign
countries, see 19 U.S.C. § 2272(a)(2)(B)(i)(I) and whether the subject firm acquired from
a foreign country articles that are directly competitive with articles produced by such firm,
and exclude consideration of like products.
Here, Labor supports its determination that there has not been a shift to a foreign
country or acquisition from a foreign country by the subject firm of articles like or directly
competitive by referencing the negative responses to Labor’s Second BDR questionnaire
indicating that Geokinetics had not imported or acquired from a foreign country articles
that are like or directly competitive with the articles it produced. 	Remand Results 6–7
(citing Second BDR Resp. 126). 27 	It is not at all clear that Geokenetics understood the
full import of Labor’s question given Labor’s shift in its approach to consider Geokinetics
a producer of an article rather than a provider of services. 28 	Labor did not explain that,
27 Geokinetics answers negatively Labor’s questions about whether the subject firm “imported or
acquired from a foreign country articles that are like or directly competitive with articles produced
by the subject firm,” and whether the subject firm “producing like or directly competitive articles
shifted that work to another country or countries, or is a shift in production to another country
scheduled.” 	Second BDR Resp. at 126. 	Geokinetics answers “N/A” in the fields where Labor
requested that it list “Production Shifted by the Subject Firm or Parent Company From this
Location to Foreign Countries.” Id. 132.
28 As already discussed, it is apparent from the correspondence between Labor and Geokinetics
in connection with completing Labor’s Second BDR questionnaire that Geokinetics was confused
about the implications of Labor’s shift in approach. 	See Second BDR at 120. 	Geokinetics
continued to view itself as a provider of services not a manufacturer of oil and natural gas
products, see id., so it is unclear that Geokinetics considered the full range of articles that are
like or directly competitive with oil and natural gas articles.
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pursuant to statute, it would not consider seismic services to be like products. As already
discussed, exploration and drilling services are, by statute, directly competitive with oil
and gas production. See Def.’s Suppl. Br. 2–4; 19 U.S.C. § 2272(c)(2)(B). Labor did not
consider whether seismic data services (presumably a like product to the articles
produced by Geokinetics) had been shifted to or been acquired from a foreign country.
See Remand Results 7. 	Nor did it explain why it was reasonable not to make such an
inquiry. Therefore, Labor’s determination that Geokinetics did not shift the production of
articles like or directly competitive with oil and natural gas or acquire like or directly
competitive articles from a foreign country is not supported by substantial evidence.
Defendant’s argument that Labor’s determination is supported by Geokinetics’
response to Labor’s First BDR questionnaire inquiring whether Geokinetics shifted to a
foreign country or acquired from a foreign country services or products that were like or
directly competitive with the services and products provided by Geokinetics is not
persuasive. 	Def.’s Reply Br. 13. (citing First BDR Resp. at 63 (answering negatively to
Labor’s questions about whether the subject firm “imported or acquired from a foreign
country services like or directly competitive with services supplied by the subject firm” and
whether the subject firm “supplying like or directly competitive services shifted that work
to another country or countries, or is a shift of services to another country scheduled”)).
Labor’s remand determination cites only to the Second BDR Response. 	See Remand
Results 6-7. 	On remand, Labor must clarify its approach to evaluating whether
Geokinetics shifted services to a foreign country, explain why it is reasonable to consider
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only directly competitive articles, explain what record evidence supports its conclusion, or
reconsider its determination.
II. 	Certification of Adversely Affected Secondary Workers
Plaintiffs contend that Labor’s conclusion that Geokinetics is not a supplier or
downstream producer to a firm that employed a group of workers who received TAA
certification is unsupported by substantial evidence. 	Pls.’ Remand Comments 13–14.
Defendant responds that Labor reasonably relied upon Geokinetics response in its BDR.
Def.’s Reply 15–17. 	The statement relied upon by Labor to conclude that Geokinetics
has no supplier or downstream producer relationship with a firm whose workers have
been previously certified as primary workers entitled to TAA benefits does not support
Labor’s determination. See Second BDR Resp. at 128. On remand, Labor must explain
what other evidence on the record supports its determination, inquire further to develop
record information to support its determination, or reconsider its determination.
Similar to certification of primary workers, to be certified to receive TAA benefits
as adversely affected secondary workers, the statute initially requires that “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.” 	19 U.S.C. § 2272(b)(1). 	In addition, to be certified as secondary
workers, the subject firm must be “a supplier or downstream producer to a firm that
employed a group of workers who received [primary worker TAA certification], and such
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supply or production must be related to the article or service that was the basis for such
certification.” 19 U.S.C. § 2272(b)(2). 29
Here, Labor’s determination that Geokinetics is not a supplier or downstream
producer 	to 	a 	firm 	whose 	workers 	received 	primary 	worker 	TAA 	certification 	is
unreasonable because it is based upon Geokinetics’ incomplete responses to Labor’s
Second BDR questionnaire. See Remand Results 7 (citing Second BDR Resp. at 128).
Geokinetics left Labor’s question asking whether it conducts business with a firm whose
workers have been certified under the TAA program blank. 	See Second BDR Resp. at
128. Where Labor asked Geokinetics to provide a list of its customers that account for
the majority of the decline of sales of “data acquisition” articles, Geokinetics responded:
“[Not applicable (“N/A”)] – Customers are variable depending upon exploration activities.
Not constant/fixed.” Id. It is unclear from this response that Geokinetics even understood
the thrust of Labor’s question. 	Whether Geokinetics’ customers vary depending upon
exploration activities does not establish whether Geokinetics is a supplier or downstream
producer to a firm whose workers received TAA certification as primary workers.
Moreover, Geokinetics’ blanket response of “N/A” to Labor’s request that it provide a list
of customers that account for the majority of the decline of sales does not make clear that
the company is stating that a loss of business did not contribute importantly to Plaintiffs’
separation. Nor does Geokinetics’ response that its customers vary necessarily establish
29 Further, either: (1) the subject firm must be a supplier and the component parts it supplied to a
firm it supplied must have accounted for at least 20 percent of the production or sales of the
subject firm; or (2) a loss of business by the subject firm must have “contributed importantly to the
workers’ separation or threat of separation.” 19 U.S.C. §§ 2272(b)(3)(A)–(B).
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that the loss of supply or downstream customers did not contribute importantly to
Plaintiffs’ separation. It is not reasonable for Labor to conclude based upon these limited
and 	inconclusive 	responses 	that 	Plaintiffs 	had 	not 	satisfied 	the 	requirements 	for
certification as secondary workers. On remand, Labor must explain what record evidence
supports a conclusion that Geokinetics is not a supplier or downstream producer to a firm
whose workers were certified for TAA benefits as primary workers, what supports a
determination that Geokinetics’ loss of business did not contribute importantly to Plaintiffs’
separation, or reconsider its determination.
It is also unclear what in the record supports Labor’s statement in its findings that
[s]eparations were not caused by a loss experienced by a customer whose
workers were certified eligible to apply for Trade Adjustment Assistance
(TAA), but rather by a steep drop in oil prices that was not caused by U.S.
imports into the United States.
Remand Investigative Rep. at 160. Although Labor’s findings reference data showing a
decrease in the price of oil, Labor references no data on the record suggesting a causal
relationship between that drop in oil prices and the separations here. On remand, Labor
must explain what record evidence supports such a conclusion.
Defendant argues that Labor is entitled to accept the unrebutted statements
responding to TAA inquiries without undertaking additional investigation. 30 	Def.’s Reply
30 Defendant argues that Labor has no means to determine which firms do business with
Geokinetics other than to rely upon its response to its request for a list of relevant customers.
Def.’s Reply Br. 16. 	The court’s decision remanding Labor’s determination does not prevent
Labor’s reliance on Geokinetics’ customer list in all circumstances. 	However, given the
incompleteness of Geokinetics’ response and the lack of clarity of the response Geokinetics’ did
give to address the relevant questions to evaluating Plaintiffs’ eligibility for certification as
secondary workers, it is unreasonable for Labor to rely on Geokinetics’ response here. 	See
Second BDR Resp. at 128.
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Br. 16 (citing Marathon, 370 F.3d at 1385; Former Employees of Barry Callebaut v. Chao,
357 F.3d 1377, 1382–83 (Fed. Cir. 2004)). 	However, in order for Labor to reasonably
rely upon such statements to support its determination, those statements must be
creditworthy. 	See Marathon, 370 F.3d at 1385; Barry Callebaut, 357 F.3d at 1382–83.
Labor cannot deem a statement creditworthy unless it reasonably supports the facts
Labor accepts those statements to establish. Here, given the ambiguity in Geokinetics’
responses, as already discussed, Labor cannot reasonably consider those responses to
support the notion that Geokinetics is not a supplier or downstream producer to a firm
whose workers were certified for TAA benefits as primary workers or that Geokinetics’
loss of business did not contribute importantly to Plaintiffs’ separation or reconsider its
determination.
CONCLUSION
In accordance with the foregoing, it is hereby
ORDERED that this action is remanded to Labor to clarify or reconsider, as
appropriate, its remand redetermination on Plaintiffs’ petition for certification for TAA
benefits in accordance with this opinion; and it is further
ORDERED that Labor shall file its second remand redetermination with the court
within 60 days of this date; and it is further
ORDERED that Plaintiffs shall have 30 days thereafter to file comments on the
second remand redetermination; and it is further
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ORDERED that Labor shall have 15 days to file its reply to comments on the
second remand redetermination.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: April 3, 2017
New York, New York
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