E9-2732. Joy Technologies, Inc., dba Joy Mining Machinery, Mt. Vernon Plant, Mt. Vernon, IL; Notice of Revised Determination on Remand

On January 22, 2009, the U.S. Court of International Trade (USCIT) remanded to the U.S. Department of Labor (Department) for further review Former Employees of Joy Technologies, Inc. v. U.S Secretary of Labor, Court No. 06-00088.

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 (subject facility) producing underground mining equipment. The petition alleged that the subject facility would close September 23, 2005, due to a shift of production to Canada, China, Mexico and Russia.

During the initial TAA investigation, the Department determined that the subject workers produced mining machinery and mining machinery components, and that the workers were not separately identifiable by product line.

The group eligibility requirements for directly impacted (primary) workers under Section 222(a) the Trade Act of 1974, as amended, can be satisfied in either of two ways:

I. Section (a)(2)(A) all of the following must be satisfied:

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;

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 (a)(2)(B) both of the following must be satisfied:

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;

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;

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 that are like or directly competitive with articles which are or were produced by such firm or subdivision.

The initial negative determination regarding eligibility to apply for TAA, issued on September 25, 2005, was based on the Department's findings that employment at the subject facility increased during the relevant period, that subject facility sales did not decrease during the relevant period, that Joy corporate sales increased during the relevant period, and that there was no shift of production to a foreign country.

By application letter application dated November 3, 2005, the former workers requested administrative reconsideration, alleging that the workers' separations were due to a shift of production to Mexico.

On January 19, 2006, the Department issued a negative determination on reconsideration. The denial was based on the Department's findings that there was no shift of production to Mexico and that the workers were not eligible to apply for TAA as workers of a secondarily affected company.

By letter dated March 15, 2006, Plaintiffs sought judicial review. Plaintiffs asserted that the petitioning workers are eligible to apply for TAA due to either increased imports of articles like or directly competitive with crawler track frames (a type of mining machinery component) produced by the subject facility or a shift of production crawler track frames to Mexico.

During the first remand investigation, the Department determined that there was no shift of production to a foreign country and that increased imports could not have contributed importantly to the workers' separations because subject firm sales increased during the relevant period. On January 8, 2007, the Department issued a negative determination on remand.

During the second remand investigation, the Department determined that crawler track frame production at the subject facility increased during the relevant period and that imports of articles like or directly competitive with these articles ceased before the subject facility closed, and concluded that imports of crawler track frames did not contribute importantly to subject facility sales and/or production declines and worker separations. A second negative determination on remand was issued on June 12, 2008.

During the third remand investigation, the Department carefully reviewed the language of the statute, the applicable regulation, and the administrative record.

As a result of the review, the Department determined that, during the relevant period, a significant portion or number of workers at the subject facility was separated and there was a shift of production of mining machinery components to Mexico. Therefore, the Department determines that the group eligibility requirements under Section 222(a)(2)(B) the Trade Act of 1974, as amended, has been met.

In accordance with Section 246 the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department herein presents the results of its investigation regarding certification of eligibility to apply for ATAA.

The Department has determined in this case that the group eligibility requirements of Section 246 have been met.

A significant number of workers at the firm are age 50 or over and possess skills that are not easily transferable. Competitive conditions within the industry are adverse.

Conclusion

After careful review of the facts generated through the first and second remand investigations, I determine that a shift of production to Mexico of articles like or directly competitive to mining machinery components produced at the subject facility contributed to the total or partial separation of a significant number or proportion of workers at the subject facility.

In accordance with the provisions of the Act, I make the following certification:

“All workers of Joy Technologies, Inc., DBA Joy Mining Machinery, Mt. Vernon Plant, Mt. Vernon, Illinois (TA-W-57,700), who became totally or partially separated from employment on or after August 2, 2004, through two years from the issuance of this revised determination, are eligible to apply for Trade Adjustment Assistance under Section 223 of the Trade Act of 1974, and are eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”

Signed at Washington, DC this 26th day of January 2009.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.