[Federal Register Volume 72, Number 9 (Tuesday, January 16, 2007)]
[Notices]
[Pages 1771-1774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-463]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-57,700]


Joy Technologies, Inc.; DBA Joy Mining Machinery; MT. Vernon 
Plant, MT. Vernon, IL; Notice of Negative Determination on Remand

    On September 25, 2006, the U.S. Court of International Trade 
(USCIT) granted the U.S. Department of Labor's motion for a voluntary 
remand in Former Employees of Joy Technologies, Inc. v. U.S. Secretary 
of Labor, Court No. 06-00088. SAR 240.

Case History

    On August 9, 2005, the International Brotherhood of Boilermakers, 
Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 483, 
(``Union'') filed a petition for Trade Adjustment Assistance (TAA) and 
Alternative Trade Adjustment Assistance (ATAA) on behalf of workers and 
former workers of Joy Technologies, Inc., DBA Joy Mining Machinery, Mt. 
Vernon Plant, Mt. Vernon, Illinois (the subject facility) producing 
underground mining machinery (the subject worker group). AR 2.
    The Department's negative determination, issued on September 15, 
2005, was based on findings that sales and employment at the subject 
facility increased in 2004 from 2003 levels, that sales remained stable 
in January through July 2005 over the corresponding 2004 period, and 
that employment increased during January through July 2005 over the 
corresponding 2004 period. The denial was also based on the findings of 
no shift of underground mining machinery production abroad and no 
increased imports of underground mining machinery during the relevant 
period. AR 130-135. The Notice of the Department's determination was 
published in the Federal Register on October 31, 2005 (70 FR 62345). AR 
142.
    On November 3, 2005, workers requested administrative 
reconsideration of the Department of Labor's Notice of Negative 
Determination Regarding Eligibility to Apply for Worker Adjustment 
Assistance, applicable to workers of the subject firm. In the request 
for reconsideration, the workers asserted that the Department's 
interpretation of the reasons for the plant closure and the activities 
of the subject workers was erroneous. According to the workers, 
production and employment increased at the subject facility from 2003 
to 2004 due to a ``Contract Agreement'' between the subject firm and 
the Union and that ``the worker group at Joy, Mt. Vernon, IL has been 
an upstream supplier to the Joy Mining Machinery facility located in 
Franklin, PA. [p]roducing various components used in the final assembly 
of the firms products'' and that in ``2004, the worker group * * * 
resumed being an upstream supplier of component parts * * * to be used 
in final production or to be sold as new replacement components to Joy 
Mining Machinery customers.'' The workers allege that ``[t]hese 
components are being produced in a foreign country (Mexico).'' AR 145-
147.
    In support of the allegation, the workers provided the Department 
with a copy of a November 17, 2005 electronic message from a Joy 
official to the Union which confirmed that the Joy, Mt. Vernon, 
Illinois facility supplied components for Joy, Franklin, Pennsylvania, 
AR 159, and stated that ``three sets of track frames that were 
fabricated in Mexico were finished in the Mt. Vernon machine and weld 
shops.'' AR 160.
    On November 16, 2005, the Department issued an Affirmative 
Determination Regarding Application for Reconsideration for the workers 
and former workers of the subject firm. The Notice of affirmative 
determination was published in the Federal Register on December 15, 
2005 (70 FR 74373).
    During the reconsideration investigation, the Union informed the 
Department that it is not involved with the request for reconsideration 
and directed the Department to speak with the workers. AR 149.
    According to workers Jerome Tobin and John Moore, the subject 
facility is an upstream supplier to the Joy plant in Franklin, 
Pennsylvania; the Franklin, Pennsylvania facility outsourced production 
to Mexico; the component parts made at the subject facility were 
outsourced to Mexico, and the components were sent to Joy, Eagle Pass, 
Texas. Id. During a conference call, the workers also stated that they 
would file a new petition as secondarily-affected workers. Id. In a 
later conference call, Jerome Tobin, John Moore, and Steve Lisenbey, 
stated that Joy had outsourced production to Extreme Machine. Id.
    During the reconsideration investigation, the Department found that

[[Page 1772]]

during the relevant period, the subject facility produced shuttle cars, 
rebuilt electrical motors and armored face conveyors (AFC), assembled 
gearboxes, and produced components used in the final assembly of mining 
machinery produced at other Joy facility, including the Franklin, 
Pennsylvania facility. AR 146. According to the Joy Mining Machinery 
``Global Caplight'' article, dated July 29, 2005, the subject firm 
opened a new, larger production facility in Lebanon, Kentucky that is 
``scheduled to open in the fall of 2005'' and will ``manufacture 
shuttle cars, rebuild motors and rebuild AFC gearcases.'' AR 126.
    The reconsideration investigation also found that from May 2004 
through September 2005, when the subject facility closed, the subject 
worker group produced ``69 conveyors, 72 conveyor supports and 86 
crawler track frames (43 sets).'' AR 148. The Department also found 
that ``three sets of track frames that were fabricated in Mexico'' were 
sent to the subject facility for finishing. AR 160.
    A careful review of the administrative record revealed that the 
subject firm had cooperated with the investigation in good faith and 
had no incentive to prevent the subject workers from receiving TAA 
benefits, AR 29-30. Further, the subject firm decided ``to bring 
products * * * into Mount Vernon for a period of time to maintain work 
for employees who would ultimately lose their jobs with the plant 
closure.'' AR 160. Indeed, the subject firm stated that it wants 
employees ``to receive all of the benefits to which they are legally 
entitled.'' Id.
    On January 19, 2006, the Department issued a Negative Determination 
on Reconsideration. AR 180. The Department found that there was no 
shift of production to Mexico, that the work at issue was ``temporary 
work'' which was assigned to several Joy Mining Machinery (Joy) 
facilities (including the Mt. Vernon, Illinois facility), that the 
workers' separations were due to a shift of operations to an 
affiliated, domestic facility in Kentucky, and that the subject workers 
are not eligible to apply for TAA as workers of a secondarily-affected 
company. AR 180.
    The Department's Notice of determination on reconsideration was 
published in the Federal Register on January 20, 2006 (71 FR 4937). AR 
185-186. A corrected Notice of determination was issued on February 6, 
2006, AR 187, and was published in the Federal Register on February 22, 
2006 (71 FR 9162). AR 191.
    On March 15, 2006, the Plaintiffs appealed the negative 
reconsideration determination to the USCIT.
    In an August 24, 2006 letter, Plaintiffs' counsel stated that a 
voluntary remand is appropriate because the Department failed to (1) 
Identify the manufacturing functions at the subject facility; (2) 
investigate the allegation of imports, particularly from Mexico; (3) 
investigate about the shift of production to Kentucky; and (4) 
investigate imports by Joy's customers, and because the administrative 
record is incomplete. SAR 193-198.
    In order to address the issues raised above, the Department sought, 
and was granted, a voluntary remand. SAR 240.

Plaintiffs' Allegations

    In the complaint, Plaintiffs asserted ``we were an upstream 
supplier to the Joy Mining Machinery facility at Franklin, PA. * * * 
Joy Mining Machinery outsources the components to * * * Mexico * * * 
these Mexican facilities * * * produce the component work that was 
formerly done * * * at Joy Mining Machinery Mt. Vernon, Illinois'' and 
the work done by Plaintiffs ``is not being done at the new Joy Mining 
Machinery facility in Lebanon, Kentucky.'' SAR 238-239. In subsequent 
submissions, Plaintiffs asserted that they manufactured components for 
Joy's Franklin, Pennsylvania facility, SAR 194, 204-205, and may have 
produced components for other Joy domestic facilities. SAR 205. 
Plaintiffs also asserted that component production shifted to Mexico, 
that Joy increased imports of components. SAR 204-205, and that 
components were stamped ``hecho en Mexico.'' SAR 260.

Remand Investigation

    While conducting the remand investigation, the Department contacted 
Plaintiffs' counsel, SAR 200-201, 202-234, 242-392, 409-411, Joy 
corporate counsel, SAR 200-201, 235, 412-415, 420-421, and individuals 
identified by the Plaintiffs as having relevant information, SAR 200-
201, 407-408, 416-419, 422-423.
    During the remand investigation, the Department received several 
affidavits from Plaintiffs. A summary of relevant facts of each 
affidavit follows:
    Robin Buckingham states that the subject facility always 
manufactured both finished products and components of mining machinery; 
Joy's main production facility is in Franklin, Pennsylvania but there 
are facilities throughout the United States, including Utah, Virginia, 
and West Virginia; a ``substantial part'' of the subject facility's 
work is performed as ``an upstream supplier'' for the Franklin, 
Pennsylvania; between 2002 and 2004, the subject facility imported 
mining machinery components from Mexico; and that a former Joy 
supervisor had spoken to him about the parts stamped ``hecho en 
Mexico.'' SAR 257-262.
    Gary Coles states that the subject facility always manufactured 
both finished products and components of mining machinery; Joy's main 
production facility is in Franklin, Pennsylvania but there are 
facilities throughout the United States, including Utah, Virginia, and 
West Virginia; a ``substantial part'' of the subject facility's work is 
performed as ``an upstream supplier'' for the Franklin, Pennsylvania; 
the subject facility had sold completed components ``directly to 
customers''; from 2002 and through 2004, the subject facility imported 
mining machinery components from Mexico; and that a Joy sales manager 
had spoken to him about the parts stamped ``hecho en Mexico.'' SAR 268-
273.
    Steve Lisenbey states that the subject facility always manufactured 
both finished products and components of mining machinery; Joy's main 
production facility is in Franklin, Pennsylvania but there are 
facilities throughout the United States, including Utah, Virginia, and 
West Virginia; a ``substantial part'' of the subject facility's work is 
performed as ``an upstream supplier'' for the Franklin, Pennsylvania; 
in January 2002, a subject facility manager stated that ``Joy had 
formed a partnership with a Mexican supplier to outsource the 
fabrication of continuous miner components'' and ``components 
fabricated in Mexico did not meet the International Organization for 
Standardization (``ISO'') standards,'' so ``the completed components 
Joy outsourced to Mexico had to be brought to Mt. Vernon for the final 
machining''; in 2004, the subject facility imported crawler track 
frames from Mexico; and the Joy, Lebanon, Kentucky facility ``does not 
have the same manufacturing functions and duties'' as the subject 
facility because it does not fabricate components. SAR 280-283.
    John Moore states that the subject facility always manufactured 
both finished products and components of mining machinery; Joy's main 
production facility is in Franklin, Pennsylvania but there are 
facilities throughout the United States, including Utah, Virginia, and 
West Virginia; a ``substantial part'' of the subject facility's work is 
performed as ``an upstream supplier'' for the Franklin, Pennsylvania; 
that the subject facility ``took sales orders directly from

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customers''; in 2003 and 2004, the subject facility ``did the final 
machining on completed crawler track frames that originated in 
Mexico''; the subject facility ``retrofitted gathering pans'' were 
marked ``hecho en Mexico''; and in ``approximately October or November 
2005, a sales manager for Joy ``told me that Joy was outsourcing 
manufacture and assembly of mining equipment to Mexico.'' SAR 292-296.
    Robert Patterson stated that the subject facility manufactured 
finished products and components of mining machinery; Joy's main 
production facility is in Franklin, Pennsylvania but there are 
facilities throughout the United States, including Utah, Virginia, and 
West Virginia; a ``substantial part'' of the subject facility's work is 
performed as ``an upstream supplier'' for the Franklin, Pennsylvania 
facility; in 2003 and 2004, the subject facility ``machined completed 
crawler track frames that originated in Mexico''; and the subject 
facility received components stamped ``hecho en Mexico.'' SAR 304-307.
    Jerome Tobin stated that the subject facility always manufactured 
both finished products and components of mining machinery; Joy's main 
production facility is in Franklin, Pennsylvania but there are 
facilities throughout the United States, including Utah, Virginia, and 
West Virginia; a ``substantial part'' of the subject facility's work is 
performed as ``an upstream supplier'' for the Franklin, Pennsylvania 
facility; in 2004, the subject facility ``machined completed crawler 
track frames that originated in Mexico''; the subject facility received 
track frames and components stamped ``hecho en Mexico''; and on 
``October 17, 2006,'' Merlin Orser, the President of the Union's local 
at Franklin, Pennsylvania, ``confirmed for me that the Lebanon facility 
does only assembly work * * * does not perform the manufacturing 
functions that the Mt. Vernon facility performed when it was open.'' 
SAR 316-320.
    David Vaughn states that the subject facility manufactured finished 
products and components of mining machinery; Joy's main production 
facility is in Franklin, Pennsylvania but there are facilities 
throughout the United States, including Utah, Virginia, and West 
Virginia; a ``substantial part'' of the subject facility's work is 
performed as ``an upstream supplier'' for the Franklin, Pennsylvania 
facility; in 2004, the subject facility ``did the final machining on 
completed crawler track frames originated in Mexico''; the subject 
facility received components stamped ``hecho en Mexico''; and a former 
Joy supervisor ``told me that at Coal Age he is outsourcing the 
manufacture of continuous miner frames to a company in Mexico * * * the 
same Mexican company for outsourcing that Joy used to fabricate the 
continuous miner components.'' SAR 328-332.
    Ronald Wilkey states that the subject facility always manufactured 
both finished products and components of mining machinery; Joy's main 
production facility is in Franklin, Pennsylvania but there are 
facilities throughout the United States, including Utah, Virginia, and 
West Virginia; a ``substantial part'' of the subject facility's work is 
performed as ``an upstream supplier'' for the Franklin, Pennsylvania 
facility; in 2004, the subject facility ``did the final machining on 
completed crawler track frames originated in Mexico''; the subject 
facility received components stamped ``hecho en Mexico''; that ``in 
approximately August 2005, I was one of the laborers who helped to 
unload a truck full of crawler track frames that had originated in 
Mexico''; and that the subject facility had received component parts 
stamped ``hecho en Mexico.'' SAR 340-343.
    Jesse Russell Hamilton states that subject facility always 
manufactured both finished products and components of mining machinery; 
Joy's main production facility is in Franklin, Pennsylvania but there 
are facilities throughout the United States, including Utah, Virginia, 
and West Virginia; a ``substantial part'' of the subject facility's 
work is performed as ``an upstream supplier'' for the Franklin, 
Pennsylvania facility; in 2004, the subject facility ``machined crawler 
track frames that originated in Mexico''; and the subject facility 
received components stamped ``hecho en Mexico.'' SAR 356-359.
    Steven Kirkpatrick states that the subject facility always 
manufactured both finished products and components of mining machinery; 
Joy's main production facility is in Franklin, Pennsylvania but there 
are facilities throughout the United States, including Utah, Virginia, 
and West Virginia; a ``substantial part'' of the subject facility's 
work is performed as ``an upstream supplier'' for the Franklin, 
Pennsylvania facility; in 2004, the subject facility ``machined crawler 
track frames that originated in Mexico''; the subject facility received 
mining machinery component parts marked ``hecho en Mexico''; and in 
2003, ``DMUs came into the Mt. Vernon plant from Mexico.'' SAR 366-370.
    Robert Baxley stated that the subject facility always manufactured 
both finished products and components of mining machinery; Joy's main 
production facility is in Franklin, Pennsylvania but there are 
facilities throughout the United States, including Utah, Virginia, and 
West Virginia; a ``substantial part'' of the subject facility's work is 
performed as ``an upstream supplier'' for the Franklin, Pennsylvania 
facility; in 2004, the subject facility ``did the final machining on 
completed crawler track frames that originated in Mexico''; the subject 
facility received crawler track frames and other component parts 
stamped ``hecho en Mexico''; and ``in November 2005, I took pictures of 
the Mexican crawler track frames that had been brought into the Joy Mt. 
Vernon facility earlier in the year.'' SAR 378-381.
    Darrell Cockrum states that in August 2005, Mr. Peircey from Engles 
Trucking told him that he had picked up a shipment of crawler track 
frames at Extreme Machine, Youngstown, Ohio; that the shipment had 
originated in Mexico; that Extreme Machine ``had a large number of 
crawler track frames that Joy had fabricated in Mexico''; Joy had 
shipped the frames from Mexico to Extreme Machine for final machining; 
and that the frames in the August 2005 shipments were from Mexico and 
sent to the subject facility for final machining. SAR 394-395.
    William Perkins states that in 2004 and 2005, he photographed and 
inspected conveyor supports, discharge tails, and crawler track frames 
that had originated in Mexico and were stamped ``hecho en Mexico.'' SAR 
410-411.
    While the Department has carefully reviewed the Plaintiffs' 
submissions, the Department has not received any information to support 
the allegation of a shift of production abroad. Further, on December 
28, 2006, the Department contacted Plaintiffs' counsel to request any 
information not already in the record. SAR 201. No additional 
information was received.
    According to current and former Joy officials, the subject facility 
produced finished mining machinery and finished components. AR 146, SAR 
247-250, 414. Joy confirmed that the subject facility closed in 
September 2005, that production of finished mining machinery shifted to 
a Joy facility in Lebanon, Kentucky, and that the subject firm does not 
have an affiliated production facility in Mexico. SAR 248.
    Because the workers who produce finished mining machinery and 
mining components at the subject facility are not separately 
identifiable by product line, the Department determines that the 
subject workers were engaged in the

[[Page 1774]]

production of finished mining machinery and components.
    To be certified as eligible to apply for TAA, the following 
criteria must be met:

    (1) A significant number or proportion of the workers in such 
workers' firm (or appropriate subdivision of the firm) have become, 
or are threatened to become, totally or partially separated;
    (2) Sales or production, or both, of such firm or subdivision 
have decreased absolutely; and
    (3) Increases (absolute or relative) of imports of articles 
produced by such workers' firm or an appropriate subdivision thereof 
contributed importantly to such total or partial separation, or 
threat thereof, and to such decline in sales or production, or
    (4) There has been a shift in production by such workers' firm 
or subdivision to a foreign country of articles like or directly 
competitive with articles which are produced by such firm or 
subdivision; and the country to which the workers' firm has shifted 
production of the articles is a party to a free trade agreement with 
the United States, is a beneficiary country under the Andean Trade 
Preference Act, African Growth and Opportunity Act, or the Caribbean 
Basin Economic Recovery Act or there has been or is likely to be an 
increase in imports of articles that are like or directly 
competitive with articles which are or were produced by such firm or 
subdivision.

    Because the subject facility closed on September 23, 2005, the 
Department determines that criteria (1) and (2) have been met.
    Pursuant to 29 CFR 90.2, ``increased imports'' means that imports 
have increased, absolutely or relative to domestic production, compared 
to a representative base period. The regulation also establishes the 
representative base period as the one-year period preceding the 
relevant period (the twelve-month period prior to the date of the 
petition).
    Because the petition date is August 9, 2005, the relevant period 
for the case at hand is July 2004 through August 2005 and the 
representative base period is July 2003 through August 2004.
    Because Plaintiffs allege increased imports of mining machinery 
components and it is undisputed that Joy did not import finished mining 
machinery, AR 13-14, 170, and that Joy shifted finished mining 
machinery production to an affiliated facility in Lebanon, Kentucky, 
SAR 280-283, 316-320, the scope of the Department's remand 
investigation is limited to mining machinery components like or 
directly competitive with those produced at the subject facility during 
the relevant period.
    In order for TAA criteria (3) to be satisfied, it must be shown 
that increased imports of mining machinery components during the 
relevant period ``contributed importantly'' to workers' separations and 
the decline in sales or production. Therefore, the presence of 
increased imports is established if the import level during July 2004 
through August 2005 is greater than the import level during July 2003 
through August 2004.
    Per the Plaintiffs' request, the Department contacted two 
individuals who were identified as having information relevant to 
increased imports of mining machinery components by the subject firm. 
SAR 407, 416-417, 419, 422.
    One of the individuals, a former Joy manager, who was identified by 
several Plaintiffs, had left Joy prior to the relevant period and was 
therefore unable to speak about events during July 2004 through 
September 2005. SAR 407, 419. The other individual, a vendor with whom 
Joy currently conducts business, stated that the mining machinery 
components did not come from Mexico but were shipped from, and back to, 
the subject firm's Franklin, Pennsylvania facility. SAR 416-417.
    Data previously provided by the subject firm reflect that there 
were no imports during the relevant period. AR 13-14. Rather, the 
subject firm has indicated that it had brought in extra work from 
Mexico in order to create work for the workers. AR 160. Because the 
subject firm has repeatedly expressed its concern for the subject 
worker group, AR 29-30, 160 and SAR 428, the Department has no reason 
to believe that the subject firm is being less than forthcoming during 
the remand investigation.
    Even if there were increased subject firm imports during the 
relevant period, the increased imports could not have ``contributed 
importantly to such total or partial separation, or threat thereof, and 
to such decline in sales or production'' (emphasis added) because sales 
for Joy increased during the relevant period. AR 29-30. In the event 
that there were company-wide sale declines, the Department may 
interpret a closure of an affiliated plant as an effort by the company 
to adjust to increased foreign competition. However, this is not the 
case at hand.
    Plaintiffs also allege that the Department failed to inquire into 
Joy's customers' import activities. SAR 193-198. Again, because sales 
for Joy increased during the relevant period, there were no declining 
customers for the Department to survey about their decreased purchases. 
AR 29-30.
    As such, having given full consideration to all information 
submitted by the Plaintiffs, the Department determines that TAA 
criterion (3) has not been met.
    Plaintiffs allege that the subject firm shifted mining machinery 
component production to Mexico. SAR 204. As stated before, Joy does not 
have an affiliated production facility in Mexico. AR 170, SAR 204, 251. 
Therefore, there is no facility to which Joy can shift production. 
Further, the record further substantiates that the subject firm had 
shifted production to other Joy domestic facilities, rather than to a 
foreign supplier. AR 9, 20, 29-30, 130-131, 159-160, 169-170, SAR 248, 
251, 415, 425. While several Plaintiffs have asserted that all 
activities did not shift to Joy's Lebanon, Kentucky facility, the 
evidence supports the conclusion that any shift of production was to 
other Joy domestic facilities, and not to a foreign production 
facility. As such, having given full consideration to all information 
submitted by the Plaintiffs, the Department determines that TAA 
criterion (4) has not been met.
    After careful review of the administrative record and the 
submissions of the remand investigation, the Department has inquired 
into the various allegations of the Plaintiffs and has determined that 
they are without merit.
    In addition, in accordance with Section 246 of the Trade Act of 
1974, as amended, the Department herein presents the results of its 
investigation regarding certification of eligibility to apply for ATAA.
    In order to apply the Department to issue a certification of 
eligibility to apply for ATAA, the subject worker group must be 
certified eligible to apply for TAA. Since the workers are denied 
eligibility to apply for TAA, they cannot be certified eligible to 
apply for ATAA.

Conclusion

    After careful review of the findings of the remand investigation, I 
affirm the notice of negative determination of eligibility to apply for 
worker adjustment assistance for workers and former workers of Joy 
Technologies, Inc., DBA Joy Mining Machinery, Mt. Vernon Plant, Mt. 
Vernon, Illinois.

    Signed at Washington, DC, this 8th day of January 2007.
Richard Church,
Certifying Officer, Division of Trade Adjustment Assistance.
 [FR Doc. E7-463 Filed 1-12-07; 8:45 am]
BILLING CODE 4510-30-P