Joy Technologies, Inc., dba Joy Mining Machinery, Mt. Vernon Plant, Mt. Vernon, IL; Notice of Negative Determination on Remand, 36121-36127 [E8-14298]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 73, Number 123 (Wednesday, June 25, 2008)]
[Notices]
[Pages 36121-36127]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-14298]


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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 October 31, 2007, the U.S. Court of International Trade (USCIT) 
remanded to the U.S. Department of Labor (Department) for further 
investigation Former Employees of Joy Technologies, Inc. v. U.S. 
Secretary of Labor, Court No. 06-00088.

Case History

    On August 2, 2005, the International Brotherhood of Boiler-makers, 
Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 483, filed 
a petition for Trade Adjustment Assistance (TAA) and Alternative Trade 
Adjustment Assistance (ATAA) on behalf of workers and former workers of 
Joy Mining Machinery, Mt. Vernon, Illinois producing underground mining 
equipment. The petition alleged that the Mt. Vernon facility would 
close September 23, 2005, due to a shift of production to Canada, 
China, Mexico and Russia. Administrative Record (AR) 2-3, 20.
    Workers of the Mt. Vernon facility were previously denied 
eligibility to apply for TAA under TA-W-42,234 on the basis that the 
workers did not produce an article. AR 8, Supplemental Administrative 
Record (SAR) 127.
    During the initial investigation, the petitioners submitted 
documents in support of the allegation that mining equipment production 
shifted to Mexico. AR 22-28.
    Also, during the initial investigation, Joy officials provided 
information that the principal functions performed at the Mt. Vernon 
Illinois facility were building and rebuilding shuttle cars; rebuilding 
electrical motors used in certain types of mining machinery; and 
rebuilding gearboxes for armored face conveyors (AFC), AR 12, 14-15, 
44. In addition, the Department learned that the Mt. Vernon facility 
was scheduled to close on September 23, 2005. AR 9, 12, 125.
    Joy also provided information that the Mt. Vernon facility's 
closure was due to the relocation of operations to a new facility in 
Kentucky. AR 12, 15, 16, 29, 126. The new facility in Kentucky

[[Page 36122]]

would ``manufacture shuttle cars, rebuild motors and rebuild AFC 
gearcases.'' AR 126. Joy Mining Machinery (Joy) already had warehouse 
facilities in Kentucky. AR 126.
    Information received from Joy documents that the Mt. Vernon 
facility's sales during November 2003 through October 2004 increased 
from November 2002 through October 2003 levels and that sales during 
November 2004 through July 2005 decreased from November 2003 through 
July 2004 levels, and that Joy's domestic sales in fiscal year 2004 
increased from fiscal year 2003 levels, and increased during the first 
three quarters of 2005 when compared to the first three quarters of 
2004. AR 14, 29.
    The initial negative determination, issued on September 15, 2005, 
was based on the Department's findings that:
     Workers at Joy Technologies, Inc., Mt. Vernon, Illinois 
produced underground mining machinery;
     Sales and employment at the Mt. Vernon facility increased 
from 2003 to 2004;
     Mt. Vernon facility sales remained stable in January 
through July 2005 when compared to January through July 2004;
     Company-wide sales increased in January through July 2005 
when compared to January through July 2004;
     Joy did not shift production to a foreign country; and
     Joy did not import articles like or directly competitive 
with those produced by the Mt. Vernon facility. AR 132-135.
    By letter dated November 3, 2005, the former employees requested 
administrative reconsideration, stating that the workers were engaged 
in fabrication of mining equipment components and that these components 
are being produced in a foreign country. The request further alleged 
that the worker separations were due to Joy's shift of production to a 
foreign country (Mexico). AR 145-148
    The negative reconsideration determination, issued on January 19, 
2006, was based on the Department's findings that:
     There was no shift of production to Mexico;
     the work at issue was temporary work re-assigned to 
several domestic Joy facilities, including the Mt. Vernon facility;
     The workers' separations were due to a shift of operations 
to an affiliated domestic facility in Kentucky; and
     The subject workers were not eligible to apply for TAA as 
workers of either a primary company or a secondarily-affected company. 
AR 180-183.
    By letter dated March 15, 2006, Plaintiffs sought judicial review 
by the USCIT. Plaintiffs' counsel's August 24, 2006 letter stated that 
the Department failed to identify the manufacturing functions of the 
Mt. Vernon facility and to adequately investigate, and subsequently 
determine, whether the petitioning workers are eligible to apply for 
worker adjustment assistance under the Trade Act of 1974, as amended, 
due to either increased imports of articles like or directly 
competitive with those produced by the Mt. Vernon facility or a shift 
of production to a foreign country, specifically Mexico. SAR 193-198.
    The Department's motion for voluntary remand to further investigate 
the Plaintiffs' allegations and to issue a re-determination of subject 
workers' eligibility to apply TAA and ATAA was granted by the USCIT on 
September 25, 2006. SAR 240.
    During the first remand investigation, the Department contacted 
Plaintiffs' counsel for information, SAR 200-234, 242-392, 409-411, 
reviewed submissions from Plaintiffs, SAR 200-201, 407-408, 416-419, 
422-423, and reviewed information provided by Joy. SAR 200-201, 235, 
412-415, 420-421.
    During the first remand investigation, the Department received 12 
affidavits from Plaintiffs. A summary of relevant facts of each 
affidavit follows:
    Ten affiants 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 were Joy 
facilities throughout the United States, including Utah, Virginia, and 
West Virginia; and a ``substantial part'' of the subject facility's 
work is performed as ``an upstream supplier'' for the Franklin, 
Pennsylvania facility. The same ten affiants stated that the subject 
facility imported mining machinery components from Mexico, ``did the 
final machining on completed crawler track frames that originated in 
Mexico,'' or some close variation thereof. Nine affiants referenced 
parts or components stamped ``hecho en Mexico.''
    Gary Coles further stated that the subject facility had sold 
completed components ``directly to customers.'' Steve Lisenbey further 
stated that 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''; 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 further stated that the subject facility ``took sales 
orders directly from customers''; 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.
    Jerome Tobin further stated that 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 further stated that 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.
    Steven Kirkpatrick further stated that in 2003, ``DMUs came into 
the Mt. Vernon plant from Mexico.'' SAR 366-370.
    Darrell Cockrum stated 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 stated 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.
    In the course of the first remand, the Department determined that 
the subject workers produced mining machinery and finished mining 
machinery components, and rebuilt mining machinery components. Because 
the workers who produced finished mining machinery and mining machinery 
components were not separately

[[Page 36123]]

identifiable by product line, AR 12, the Department determined that the 
subject worker group was engaged in the production of mining machinery 
and mining machinery components. Since rebuilding machinery is a repair 
activity, it was considered a service and was not an issue in the first 
remand investigation.
    On January 8, 2007, the Department issued a negative determination 
on remand. The Department based its determination on the following 
findings:
     There was no shift of production of either finished mining 
machinery or components from the Mt. Vernon facility to a foreign 
country;
     Production shifted from the Mt. Vernon facility to Joy's 
Lebanon, Kentucky facility;
     Neither the Mt. Vernon facility nor Joy (overall) 
increased imports of articles like or directly competitive with those 
produced at the Mt. Vernon facility; and
     Increased imports, if any, could not have contributed 
importantly to workers' separations because sales increased during the 
relevant period. SAR 429-448.
    The USCIT, in its October 31, 2007 decision, concluded that the 
denial of benefits was not supported by substantial evidence. Further, 
the Court found that the Department misstated the Trade Adjustment 
Assistance requirements, where the Department determined that there was 
not a shift of production to Equimin, a sometime Mexican supplier, 
based on the Department's finding that Equimin was not owned by Joy.
    Accordingly, the Court ordered a second remand investigation, in 
order for the Department to determine whether the subject workers were 
eligible to apply for TAA and ATAA. The Department carefully reviewed 
USCIT decision for guidance in designing the remand investigation, so 
that the Department could:
     Review the work performed by the subject workers, 
regardless of whether the work was ``core'' or ``non-core'' functions 
of the Mt. Vernon facility;
     Determine whether increases (absolute or relative) in 
imports of articles like or directly competitive with those produced by 
the Mt. Vernon facility contributed importantly to worker separations 
(total or partial), or threat thereof, and to declines in Mt. Vernon 
facility sales and/or production;
     Determine whether there has been a shift in production by 
Joy of articles like or directly competitive with those produced by the 
Mt. Vernon facility to a qualified country (a foreign country, such as 
Mexico, that is either a party to a free trade agreement with the 
United States or a beneficiary country under the Andean Trade 
Preference Act, African Growth and Opportunity Act, or the Caribbean 
Basin Economic Recovery Act);
     Determine whether there has been a shift of production by 
Joy of articles like or directly competitive with those produced by the 
Mt. Vernon facility to a foreign country followed by an actual or 
likely increase in imports of articles like or directly competitive 
with articles which are or were produced by the Mt. Vernon facility; 
and
     Issue a re-determination whether the subject workers are 
eligible to apply for TAA and ATAA.

Trade Adjustment Assistance Criteria

    To apply for TAA, the group eligibility requirements under section 
222(a) of the Trade Act of 1974, as amended, must be met. The 
requirements can be satisfied in either of two ways:
    I. Section 222(a)(2)(A)--
    A. A significant number or proportion of the workers in such 
workers' firm, or an appropriate subdivision of the firm, have become 
totally or partially separated, or are threatened to become totally or 
partially separated; and
    B. The sales or production, or both, of such firm or subdivision 
have decreased absolutely; and
    C. Increased imports of articles like or directly competitive with 
articles produced by such firm or subdivision have contributed 
importantly to such workers' separation or threat of separation and to 
the decline in sales or production of such firm or subdivision; or
    II. Section 222(a)(2)(B)--
    A. A significant number or proportion of the workers in such 
workers' firm, or an appropriate subdivision of the firm, have become 
totally or partially separated, or are threatened to become totally or 
partially separated; and
    B. 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
    C. One of the following must be satisfied:
    1. 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; or
    2. The country to which the workers' firm has shifted production of 
the articles is a beneficiary country under the Andean Trade Preference 
Act, African Growth and Opportunity Act, or the Caribbean Basin 
Economic Recovery Act; or
    3. There has been or is likely to be an increase in imports of 
articles like or directly competitive with articles which are or were 
produced by such firm or subdivision.

Applicable Regulations

    Under the definition of ``increased imports'' presented in 29 CFR 
90.2, imports must have increased, absolutely or relative to domestic 
production, compared to a representative base period. The regulation 
establishes what the Department refers to as the ``relevant period,'' 
i.e., the twelve-month period prior to the date of the petition, and 
the ``representative base period,'' the one-year period preceding the 
relevant period.
    Further, pursuant to 29 CFR 90.2, 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).''

Second Remand Investigation Glossary

    To more easily understand the terms used in this determination, the 
Department will use the following definitions:
     ``Continuous miner'' and ``Miner'' are terms that are used 
interchangeably and refer to a type of heavy underground mining 
equipment used to remove earth during the mining process;
     ``Crawler Track Frames'' and ``CAT Frames'' are bare steel 
Structures that serve as the framework for the construction of a 
continuous miner;
     ``Haulage'' refers to a type of heavy equipment that is 
used to transport coal and earth during the mining process, and 
includes shuttle cars;
     ``Joy'' refers to Joy Technologies, Inc., doing business 
as (DBA) Joy Mining Machinery (corporate entity);
     ``Rebuild'' refers to repair;
     ``Relevant Period'' refers to the 12-month period prior to 
the petition date, which is August 2004 through July 2005;
     ``Subject Workers'' refers to workers and former workers 
at Joy Technologies, Inc., DBA Joy Mining Machinery, Mt. Vernon, 
Illinois.

Mt. Vernon Facility Operations

THIS SECTION CONTAINS BUSINESS CONFIDENTIAL INFORMATION

[[Page 36124]]

AND PORTION BETWEEN BRACKETS MUST BE REDACTED FROM PUBLIC VERSION
[ ]

Joy's Relationship With EQUIMIN

THIS SECTION CONTAINS BUSINESS CONFIDENTIAL INFORMATION AND PORTION 
BETWEEN BRACKETS MUST BE REDACTED FROM PUBLIC VERSION
[ ]

Scope of Second Remand Investigation

    The Department recognizes the remedial nature of the TAA program, 
and therefore reviews facts in the light most favorable to the 
separated workers seeking benefits. However, the Department has a 
statutory obligation to determine whether the petitioning workers have 
met the group eligibility criteria of the Trade Act of 1974, as 
amended. In an effort to effectuate the remedial purposes of the Trade 
Act, the Department generally incorporated, verbatim, Plaintiff's 
proposed questions for Joy into the second remand investigation (SAR 
496, 507-508) and carefully considered Plaintiffs' relevant input.
    In order to determine whether a petitioning worker group has met 
the statutory criteria, the Department first determines what article(s) 
the subject workers produced during the relevant period. Second, the 
Department determines whether, during the relevant period, there were 
significant worker separations.
    After making those determinations, the Department determines 
whether there were declines (absolute or relative) in Mt. Vernon 
facility sales and/or production. If so, the Department determines 
whether increased imports, as described in 29 CFR 90.2, of articles 
like or directly competitive with those produced by the Mt. Vernon 
facility contributed importantly to the worker separations and sales 
and/or production declines.
    The Department must also determine whether, in addition to 
significant worker separations, there has been a shift of production 
from the Mt. Vernon facility of articles like or directly competitive 
with those produced by the Mt. Vernon facility to a qualifying country 
or if there have been, or are likely to be, increased imports of 
articles like or directly competitive with those produced by the Mt. 
Vernon facility following Joy's shift of production to a non-qualifying 
country.
    While the Plaintiffs did not allege secondary-impact (the situation 
where, during the relevant period, the Mt. Vernon facility either 
supplied component parts to or assembled/finished for a company with a 
worker group certified eligible to apply for TAA), it is the 
Department's practice to consider secondary-impact should a petitioning 
worker group not meet the statutory criteria.
    Where the separated workers meet the group eligibility requirement 
(significant separations or threat of separation) of the Trade Act, as 
amended, the Department conducts an investigation to determine if the 
subject workers are eligible to apply for ATAA.
    To determine the subject workers' eligibility to apply for TAA and 
ATAA, the Department reviewed previously-submitted information, as well 
as information submitted during the second remand investigation, 
regardless of whether the work performed by the subject workers could 
be characterized as ``core'' functions of the Mt. Vernon facility.
    Further, the Department has been consistently mindful during the 
second remand investigation of the need to base its determination on 
competent, credible evidence. The plaintiffs have disputed Joy's 
credibility, observing that a particular Joy official had provided 
``less than credible information,'' in a separate proceeding. SAR 862. 
In response, the Department has taken particular care to seek 
information from Joy officials [REDACTED IN PUBLIC VERSION] who were 
qualified to respond based on their familiarity with the Mt. Vernon 
facility's operations, during the Court-ordered remand investigation. 
SAR 895, 975. Further, all information received from Joy was provided 
to Plaintiffs' counsel for review and comment, so that there was full 
opportunity for exposure of any inaccuracy. Indeed, plaintiffs did 
respond to Joy's submissions, characterizing them as non-responsive, 
incomprehensible and insufficient basis for negative determination. SAR 
870-872, 910-914, 939-940, 982-983, 985-986. Plaintiffs focus 
particular attention on Joy's apparent effort to minimize the 
significance of the crawler track frame work performed at the Mt. 
Vernon facility and in Mexico. SAR 912, 985. In addition, two of the 
plaintiffs submitted affidavits that were intended to rebut Joy's 
information. SAR 915-921, 941-942, 987-988. The plaintiffs raised no 
issues as to the truthfulness of Joy's informants.
    A careful review of previously submitted information revealed that 
Joy was aware that TAA and ATAA would be paid at no cost to them (AR 
19) and, therefore, had no incentive to prevent the subject workers 
from receiving TAA benefits, AR 29-30. In addition, a Joy official 
stated that Joy wanted former workers ``to receive all of the benefits 
to which they are legally entitled.'' AR 160.
    After having given every reasonable consideration to plaintiffs' 
critiques of Joy's submissions, the Department has determined that the 
ostensible gaps or flaws in the record developed for the second remand 
investigation reflect areas of inquiry where either there was no 
responsive information (SAR 975-976) or there was no responsive 
information that was relevant to the Department's deliberations. SAR 
973. The company officials and Joy counsel have demonstrated that they 
are knowledgeable of the matters on which they provided information, 
which included hundreds of pages of company records to substantiate 
their responses.
    Further, while both the plaintiffs and the former firm have 
directed considerable effort to expounding their views as to whether 
the fabrication of crawler track frames was a ``core'' activity at the 
Mt. Vernon facility, the Department has determined that the distinction 
between ``core'' and ``non-core'' is irrelevant to the Department's 
decision on remand. Indeed, the application of the statutory criteria 
for certification requires no such finding.
    Based on careful consideration of all relevant factors, the 
Department has found that the information provided by Joy is competent 
and credible.
    Given the remedial purposes of the Trade Act, the Department 
carefully scrutinized all information received from the plaintiffs, 
giving them the benefit of every doubt. However, based on plaintiffs' 
failure to substantiate their allegations or to rebut information 
provided by Joy, the Department has determined that the information 
submitted by the plaintiffs is insufficient to overcome the conclusions 
drawn from the statements and voluminous documentary evidence by Joy. 
Further, to the extent that the plaintiffs' information is credible, 
the facts they have adduced would not have satisfied the statutory 
criteria for certification. In particular, even when viewed in the 
light most favorable to the plaintiffs, the plaintiffs' information 
about [REDACTED IN PUBLIC VERSION] does not support conclusion that 
there was a shift of production from the Mt. Vernon facility to a 
foreign source.
    In order to ensure that the second remand determination is based on 
substantial evidence, the Department has made every reasonable effort 
to obtain pertinent information. To that end, the Department requested 
Plaintiffs' counsel to provide the

[[Page 36125]]

Department with questions that could be sent to Joy. SAR 449-455, 498-
500. In response to the Department's requests, Plaintiffs' counsel 
submitted several questions, including questions regarding imports of 
mining equipment and components; the outsourcing of mining components; 
work orders for mining equipment and components; and employee time 
records for activities related to the production of mining equipment 
and components. SAR 496, 499, 507.
    During the second remand investigation, the Department requested 
that Joy identify the types of mining equipment and components produced 
at the Mt. Vernon facility and provide the quantity of each type of 
mining equipment and component produced at the Mt. Vernon facility. SAR 
506-507. In efforts to seek clarification of the initial responses, the 
Department conducted a conference call with Joy officials to discuss 
previously-submitted information, SAR 904-908, and requested that Joy 
submit marketing material that illustrated the mining equipment. SAR 
948-966.
    Plaintiffs' only submissions during the second remand investigation 
consist of three affidavits from two former workers of the Mt. Vernon 
facility. While both former employees asserted that they rebuilt 
continuous mining equipment and mining component parts, neither former 
worker alleged increased imports of continuous mining equipment and/or 
mining component parts or a shift of production abroad. SAR 930, 941.
    John P. Moore, a former worker of the Mt. Vernon facility who 
submitted an affidavit during the first remand investigation, stated in 
his April 18, 2008 affidavit that:
     In 2001, the Mt. Vernon facility became a ``center of 
excellence for haulage'' with haulage being shuttle cars, armored face 
conveyors, and battery cars;
     Following the change, the Mt. Vernon facility manufactured 
shuttle cars as well as ``miner components, both for its own use, and 
as overflow work from other Joy facilities'';
     ``Joy, Mt. Vernon manufactured many different continuous 
miner components, not just crawler track frames'';
     ``Joy, Mt. Vernon also manufactured and/or serviced other 
continuous miner components * * * Joy, Mt. Vernon manufactured these * 
* * for use in rebuilding and also to sell directly to customers'';
     ``In May 2004, Joy began producing sixty-nine (69) 
conveyors and seventy-two (72) conveyor supports as overflow work for 
the Franklin, Pennsylvania plant''; and
     ``The rebuilding of continuous miners often required 
manufacturing new continuous miner components to replace old 
components.'' SAR 930-933.
    Steven Kirkpatrick, another former worker of the Mt. Vernon 
facility who also provided an affidavit during the first remand 
investigation, described in his April 24, 2008 affidavit the 
fabrication of crawler track frames. SAR 941-942.
    John P. Moore, in his May 22, 2008 affidavit, described several 
continuous miner components and repeated his earlier statement that 
``In May 2004, Joy began producing sixty-nine (69) conveyors and 
seventy-two (72) conveyor supports as overflow work for the Franklin, 
Pennsylvania plant.'' SAR 987.
    During the second remand investigation, the Department received 
from Joy data regarding:
     Production and service orders of mining equipment and 
components at the Mt. Vernon facility during June 2003 through July 
2004, SAR 667-727;
     Production orders of mining equipment and components at 
the Mt. Vernon facility during August 2003 through September 2004, SAR 
773-785, 832-844, 882-891;
     Production and service orders of mining equipment and 
components at the Mt. Vernon facility during August 2004 through 
September 2005, SAR 728-768;
     Production orders of mining equipment and components at 
the Mt. Vernon facility during October 2004 through November 2005, SAR 
781-798, SAR 821-831;
     Employment figures at the Mt. Vernon facility during June 
2003 through August 2005, including the types of workers and the staff 
level of each worker category, SAR 535-666;
     Mining equipment repair data for 2003, 2004, and 2005, SAR 
769; and
     Data regarding labor costs and production costs for 
various Joy facilities, including Mt. Vernon, Illinois, and Lebanon, 
Kentucky. SAR 770.
    All information obtained from Joy during the second remand 
investigation was submitted to Plaintiffs' counsel (subject to the 
USCIT protective order) for review and comment prior to the filing of 
the second remand determination. Indeed, the Department requested an 
extension of the time to file the remand determination, in order to 
provide Plaintiffs' counsel with adequate time to review the materials 
and submit comments, as well as to allow time for the Department to 
consider the Plaintiffs' concerns about Joy's submissions.
Issue 1: Articles Produced by the Mt. Vernon Facility During 
the Relevant Period
    The Department determined in the first remand determination that 
the subject workers were engaged in the production of mining machinery 
and mining machinery components.
    During the second remand investigation, the Department received 
information from Joy which clarified that the Mt. Vernon facility 
produced haulage equipment, SAR 849-856, 905, 908, and rebuilt mining 
component parts. SAR 728-768, 882-891, 905, 978-979. Joy also provided 
information which indicated that the subject workers produced a 
significant quantity of brakes and clutches for after-market sale to 
customers, SAR 907-908. Joy also provided information which indicated 
the Mt. Vernon facility produced some crawler track frames, on an 
``overflow'' basis, during the representative base period and the 
relevant period. SAR 854-855. [REDACTED IN PUBLIC VERSION]
    The Department also received three affidavits (two, dated April 18, 
2008 and May 22, 2008, from one plaintiff and one dated April 24, 2008 
from another). The April 21 affidavit described work performed at the 
Mt. Vernon facility and estimated that work on crawler track frames 
constituted at least 30 percent of the Mt. Vernon facility's work in 
the last year it was open. SAR 917. The April 24 affidavit addressed 
the production of crawler track frames, estimating that the 
fabrication, alone, of the frames required 72 man hours. SAR 941. The 
May 22 affidavit described certain components of continuous miners and 
stated that the Mt. Vernon facility manufactured components for mining 
machinery between 2003 and the time the plant closed. SAR 987-988. Joy 
responded to the plaintiffs' affidavits, questioning the accuracy of 
the 30 percent estimate and the overall relevance of the affiants' 
statements.
    Based on careful review of the record, the Department has 
determined that the subject workers were engaged in the production of 
haulage equipment and mining equipment component parts, including 
crawler track frames, and that the workers were not separately 
identifiable by product line.
Issue 2: Significant Worker Separations at the Mt. Vernon 
Facility During the Relevant Period
    The Mt. Vernon facility closed on September 23, 2005. AR 2, 12. As 
such, the Department determines that, during

[[Page 36126]]

the relevant period, a significant number or proportion of workers at 
the Mt. Vernon facility were totally or partially separated, or 
threatened to become totally or partially separated.
Issue 3: Sales and/or Production Declines at the Mt. Vernon 
Facility During the Relevant Period
    The Mt. Vernon facility experienced sales and production declines 
during the period extending from January 2005 through July 2005, as 
compared to the comparable period the previous year. AR 14. 
Accordingly, the Department determines that, during the relevant 
period, sales and production declined absolutely.
Issue 4: Increased Imports Did Not Contribute Importantly to 
Mt. Vernon Facility Declines or Worker Separations
    Pursuant to 29 CFR 90.2, imports must have increased, absolutely or 
relative to domestic production, during the relevant period when 
compared to a representative base period. The regulation establishes 
the representative base period as the one-year period preceding the 
relevant period.
    Plaintiffs have alleged that ``continuous miner components like or 
directly competitive with those manufactured at Joy Mt. Vernon, were 
being imported to the plant from Mexico,'' SAR 456, and provided 
printed material from the Web site of Equimin that states ``Equimin is 
actually exporting steel structures for underground shielded and belt 
conveyor to the Joy Mining Machinery in U.S.A.'' SAR 458-469.
    Plaintiffs do not dispute that Joy does not import finished mining 
machinery. AR 13-14, 170. Accordingly, the scope of the second remand 
investigation is limited to mining equipment component parts.
    According to Joy, [REDACTED IN PUBLIC VERSION] SAR 970.
    Because the imports occurred during the relevant period (August 
2004 through July 2005), the Department finds that there were imports 
of mining equipment component parts like or directly competitive with 
those produced by the Mt. Vernon facility.\1\ However, the Department 
has determined, given that production of crawler track frames at the 
Mt. Vernon facility increased during the relevant period (SAR 854) and 
the imports ceased before the Mt. Vernon facility closed (SAR 970), 
that imports of crawler track frames did not contribute importantly to 
Mt. Vernon facility sales and/or volume declines and worker 
separations. If anything, the import of frames created work for the Mt. 
Vernon facility, which might otherwise have closed even sooner. SAR 
907.
---------------------------------------------------------------------------

    \1\ The record is not clear about the volume of imports, so it 
cannot be determined whether imports increased during the relevant 
period. For the purposes of this finding, the Department will assume 
that imports increased.
---------------------------------------------------------------------------

    If the Department were to consider imports from Mexico as a 
possible basis for certification, the Department would need to 
determine if such imports were ``like or directly competitive with'' 
articles produced at the Mt. Vernon facility. Joy has stated that it 
imported crawler track frames, while averring that it did not import 
any article like or directly competitive with the component parts 
produced at the Mt. Vernon facility. This can best be understood by 
discussing the application of the terms ``like'' and ``directly 
competitive'' within the context of the Trade Act.
    Pursuant to 29 CFR 90.2, 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).''
    Under this definition, prescription glasses are like non-
prescription glasses and are directly competitive with contact lenses, 
but are not directly competitive with non-prescription sunglasses and 
are not like contact lenses. As illustrated, two articles may be like 
each other without being directly competitive with each other, and two 
articles may be directly competitive with each other without being like 
each other.
    According to information provided by both Joy and the plaintiffs 
the crawler track frame work performed in Mexico produced ``just 
grids--metal frames with nothing on them.'' SAR 907. The finishing 
process required substantial additional work. SAR 854, 916. Therefore, 
frames imported from Mexico were components of a finished product, 
rather than the product itself. Accordingly, the crawler track frames 
fabricated in Mexico and imported to the United States for finishing 
were not like or directly competitive with the frames that were fully 
manufactured at the Mt. Vernon facility and elsewhere in the United 
States.
Issue 5: Joy Did Not Shift Production to a Foreign Country
    The plaintiffs have asserted that production of crawler track 
frames shifted from the Mt. Vernon facility to Mexico. SAR 293-296. 
Based on the information the Department obtained during previous 
investigations and confirmed during the second remand investigation, 
the Department has determined that there was no shift of production to 
a foreign country. Rather, production shifted from the Mt. Vernon 
facility to other domestic facilities. AR 9, 20, 29-30, 130-131, 159-
160, 169-170, SAR 248, 251, 415, 425.
    Joy has presented credible and competent evidence that the work 
previously performed at the Mt. Vernon facility has been shifted to 
other Joy facilities or to vendors in the United States, because of 
cost considerations. SAR 971, 975. In particular, Joy noted that the 
number of employees at the Kentucky plant to which some of the work 
previously performed by the Mt. Vernon facility had been shifted is 
roughly equivalent to the number of employees at the Mt. Vernon 
facility. SAR 973. The plaintiffs have not produced evidence that calls 
into question Joy's statement that foreign production sources have done 
no work for Joy since 2005. Therefore, the Department has determined 
that the subject workers are not eligible to apply for TAA based on a 
shift of production to a foreign country. The mere fact that the Mt. 
Vernon facility did work on some products produced in Mexico is not, in 
itself, evidence that production shifted to Mexico when the facility 
closed. Joy's explanation of where the Mt. Vernon facility's work went 
and the reasons for its closure are consistent and well supported in 
the record.
Issue 6: The Mt. Vernon Facility Did Not Supply Component 
Parts to a Company With a Worker Group Certified Eligible To Apply for 
TAA
    Plaintiffs have asserted that the subject workers manufactured 
components for Joy's Franklin, Pennsylvania facility, SAR 194, 204-205, 
and may have produced components for Joy's Duffield, Virginia plant, 
Bluefield, West Virginia plant, and the Price, Utah plant. SAR 205.
    In order to make an affirmative determination and issue a 
certification of eligibility to apply for adjustment assistance based 
on secondary impact, the following group eligibility requirements under 
section 222(b) must be met:
    (1) A significant number or proportion of the workers in the 
workers' firm or

[[Page 36127]]

an appropriate subdivision of the firm have become totally or partially 
separated, or are threatened to become totally or partially separated;
    (2) The workers' firm (or subdivision) is a supplier or downstream 
producer to a firm (or subdivision) that employed a group of workers 
who received a certification of eligibility to apply for trade 
adjustment assistance benefits and such supply or production is related 
to the article that was the basis for such certification; and
    (3) Either--
    (A) The workers' firm is a supplier and the component parts it 
supplied for the firm (or subdivision) described in paragraph (2) 
accounted for at least 20 percent of the production or sales of the 
workers' firm; or
    (B) A loss of business by the workers' firm with the firm (or 
subdivision) described in paragraph (2) contributed importantly to the 
workers' separation or threat of separation.
    The Department has reviewed the record and has determined that 
section 222(b)(2) has not been met, because (1) the Mt. Vernon facility 
was a supplier for other Joy facilities, not for another firm, and (2) 
there is no certified worker group with which the plaintiffs could be 
associated. Therefore, the Department determines that the subject 
workers are not eligible to apply for TAA as secondarily-affected 
workers.
Issue 7: The Worker Group Cannot Be Certified as Eligible To 
Apply for ATAA
    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 for the Department to issue a certification of eligibility 
to apply for ATAA, the subject worker group must be certified as 
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 12th day of June 2008.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E8-14298 Filed 6-24-08; 8:45 am]
BILLING CODE 4510-FN-P