DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-72,103

TEREX USA, LLC
CEDAR RAPIDS, IOWA


Notice of Negative Determination
Regarding Application for Reconsideration

By application dated March 8, 2010, the State of Iowa Trade
Adjustment Assistance (TAA) Coordinator requested administrative
reconsideration of the Department's negative determination
regarding eligibility to apply for TAA applicable to workers and
former workers of the subject firm. The Notice of negative
determination was signed on February 3, 2010. The Department’s
Notice was published in the Federal Register on March 12, 2010
(74 FR 11925).
The petitioner states in the request for reconsideration
that the initial customer survey was limited to only the largest
customer of the subject firm and that perhaps many of the
subject firm’s customers are purchasing imports of products like
those produced by the subject firm, and that such purchasing of
imports by many small customers could have brought about the
worker separations at the subject firm.
Pursuant to 29 CFR 90.18(c) reconsideration may be granted
under the following circumstances:
(1) If it appears on the basis of facts not previously
considered that the determination complained of
was erroneous;
(2) if it appears that the determination complained of
was based on a mistake in the determination of facts
not previously considered; or
(3) if in the opinion of the Certifying Officer, a mis-
interpretation of facts or of the law justified
reconsideration of the decision.
The initial investigation resulted in a negative
determination, which was based on the finding that shifts of
production of crushing, screening, and paving equipment (types
of construction equipment) did not contribute importantly to
worker separations at the subject firm and that a major portion
of the sales decline of the subject firm can be attributed to a
loss of exports and thus is not affected by imports.
During the initial investigation, the subject firm provided
sales and contact information for its major declining customers:
one domestic customer and three foreign customers. The sole
domestic customer constituted 16 percent of the sales decline
experienced by the subject firm and the three foreign customers
constituted 72 percent of the subject firm’s sales decline.
The Department confirmed during the initial investigation
that the three foreign customers were purchasing finished
articles and not component parts of construction equipment from
the subject firm, and determined that the subject firm’s
declining sales with the three foreign customers was loss of
export business by the subject firm. Further, during the
initial investigation, the Department had collected aggregate
data that shows that imports into the United States of
agricultural and construction machinery decreased by almost 40
percent during the relevant period.
Because the export losses and the losses to the sole
domestic customer account for 88 percent of the decline in sales
for the subject firm and there were decreasing aggregate imports
of construction equipment, the Department determined that the
customer survey conducted during the initial investigation was
appropriate.
The petitioner did not supply facts not previously
considered; nor provide additional documentation indicating that
there was either 1) a mistake in the determination of facts not
previously considered or 2) a misinterpretation of facts or of
the law justifying reconsideration of the initial determination.
After careful review of the request for reconsideration,
the Department determines that 29 CFR 90.18(c) has not been met.


Conclusion
After review of the application and investigative findings,
I conclude that there has been no error or misinterpretation of
the law or of the facts which would justify reconsideration of
the Department of Labor's prior decision. Accordingly, the
application is denied.
Signed in Washington, D.C., this 1st day of April, 2010

/S/ Del Min Amy Chen
______________________________
DEL MIN AMY CHEN
Certifying Officer, Division of
Trade Adjustment Assistance


4510-FN-P


DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-72,103

TEREX USA, LLC
CEDAR RAPIDS, IOWA

Negative Determination Regarding Eligibility
To Apply for Worker Adjustment Assistance

In accordance with Section 223 of the Trade Act of 1974, as
amended (“Act”), 19 U.S.C. § 2273, the Department of Labor
herein presents the results of an investigation regarding
certification of eligibility to apply for worker adjustment
assistance.
Workers of a firm may be eligible for worker adjustment
assistance if they satisfy the criteria of subsection (a), (c)
or (f) of Section 222 of the Act, 19 U.S.C. § 2272(a), (c), (f).
For the Department of Labor to issue a certification for workers
under Section 222(a) of the Act, 19 U.S.C. § 2272(a), the
following three criteria must be met:
I. The first criterion (set forth in Section 222(a)(1) of the
Act, 19 U.S.C. § 2282(a)(1)) requires that a significant
number or proportion of the workers in the workers’ firm
must have become totally or partially separated or be
threatened with total or partial separation.

II. The second criterion (set forth in Section 222(a)(2) of the
Act, 19 U.S.C. § 2272(a)(2)) may be satisfied in one of two
ways:
(A) Increased Imports Path:
(i) sales or production, or both, at the workers’ firm
must have decreased absolutely, AND
(ii) (I) imports of articles or services like or directly
competitive with articles or services produced or
supplied by the workers’ firm have increased, OR
(II)(aa) imports of articles like or directly
competitive with articles into which the
component part produced by the workers’ firm was
directly incorporated have increased; OR
(II)(bb) imports of articles like or directly
competitive with articles which are produced
directly using the services supplied by the
workers’ firm have increased; OR
(III) imports of articles directly incorporating
component parts not produced in the U.S. that are
like or directly competitive with the article
into which the component part produced by the
workers’ firm was directly incorporated have
increased.

(B) Shift in Production or Supply Path:
(i)(I) there has been a shift by the workers’ firm to a
foreign country in the production of articles or
supply of services like or directly competitive with
those produced/supplied by the workers’ firm; OR
(i)(II) there has been an acquisition from a foreign
country by the workers’ firm of articles/services that
are like or directly competitive with those
produced/supplied by the workers’ firm.

III. The third criterion requires that the increase in imports
or shift/acquisition must have contributed importantly to
the workers’ separation or threat of separation. See
Sections 222(a)(2)(A)(iii) and 222(a)(2)(B)(ii) of the Act,
19 U.S.C. §§ 2272(a)(2)(A)(iii), 2272(a)(2)(B)(ii).

Section 222(d) of the Act, 19 U.S.C. § 2272(d), defines the
terms “Supplier” and “Downstream Producer.” For the Department
to issue a secondary worker certification under Section 222(c)
of the Act, 19 U.S.C. § 2272(c), to workers of a Supplier or a
Downstream Producer, the following criteria must be met:
(1) a significant number or proportion of the workers in
the workers’ firm or an appropriate subdivision of the
firm have become totally or partially separated, or
are threatened to become totally or partially
separated;

(2) the workers’ firm is a Supplier or Downstream Producer
to a firm that employed a group of workers who
received a certification of eligibility under Section
222(a) of the Act, 19 U.S.C. § 2272(a), and such
supply or production is related to the article or
service that was the basis for such certification; and

(3) either
(A) the workers’ firm is a supplier and the component
parts it supplied to the firm described in paragraph
(2) accounted for at least 20 percent of the
production or sales of the workers’ firm; or
(B) a loss of business by the workers’ firm with the firm
described in paragraph (2) contributed importantly to
the workers’ separation or threat of separation.

Workers of a firm may also be considered eligible if they
are publicly identified by name by the International Trade
Commission as a member of a domestic industry in an
investigation resulting in a category of determination that is
listed in Section 222(f) of the Act, 19 U.S.C. § 2272(f).
The group eligibility requirements for workers of a firm
under Section 222(f) of the Act, 19 U.S.C. § 2272(f), can be
satisfied if the following criteria are met:
(1) the workers’ firm is publicly identified by name by
the International Trade Commission as a member of a
domestic industry in an investigation resulting in--
(A) an affirmative determination of serious injury or
threat thereof under section 202(b)(1);
(B) an affirmative determination of market disruption
or threat thereof under section 421(b)(1); or
(C) an affirmative final determination of material
injury or threat thereof under section
705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of
1930 (19 U.S.C. 1671d(b)(1)(A) and
1673d(b)(1)(A));
(2) the petition is filed during the 1-year period
beginning on the date on which--
(A) a summary of the report submitted to the
President by the International Trade Commission
under section 202(f)(1) with respect to the
affirmative determination described in paragraph
(1)(A) is published in the Federal Register under
section 202(f)(3); or
(B) notice of an affirmative determination described
in subparagraph (1) is published in the Federal
Register; and
(3) the workers have become totally or partially
separated from the workers’ firm within--
(A) the 1-year period described in paragraph (2); or
(B) notwithstanding section 223(b)(1), the 1-year
period preceding the 1-year period described in
paragraph (2).

The investigation was initiated in response to a petition
filed on August 24, 2009 by an Iowa state workforce official on
behalf of workers of Terex LLC, Cedar Rapids, Iowa. The
workers manufacture crushing, screening, and paving equipment.
The worker group includes on-site independent information
technology contractors and leased workers of Accountemps.
The petitioner alleges that the subject firm has shifted
to a foreign country the production of goods like those
manufactured in Cedar Rapids.
The investigation included obtaining data from company
officials and from the subject firm’s major domestic customer.
With respect to Section 222(a) of the Act, the
investigation revealed that Criterion III has not been met.
A major portion of the sales decline of the subject firm
can be attributed to a loss of exports and thus is not affected
by imports.
The subject firm did not import like products in the
relevant period.
The Department of Labor surveyed the major domestic
customer of the subject firm regarding its purchases of heavy
equipment like that produced by the subject firm. The customer
reported no imports.
The subject firm shifted a minor portion of its production
abroad on a one time basis. The shift represented a very small
area of production, and did not contribute importantly to
widespread separations at the subject firm.
With respect to Section 222(c) of the Act, the
investigation revealed that Criterion (2) has not been met
because the workers did not produce an article or supply a
service that was used by a firm with TAA-certified workers in
the production of an article or supply of a service.
Finally, the group eligibility requirements under Section
222(f) of the Act, 19 U.S.C. § 2272(f), have not been satisfied
because the workers’ firm has not been identified in an
affirmative finding of injury by the ITC.


Conclusion
After careful review of the facts obtained in the
investigation, I determine that workers of Terex USA, LLC, Cedar
Rapids, Iowa, are denied eligibility to apply for adjustment
assistance under Section 223 of the Act, 19 U.S.C. § 2273.
Signed in Washington, D.C., this 3rd day of February, 2010


/s/Richard Church
______________________________
RICHARD CHURCH
Certifying Officer, Division of
Trade Adjustment Assistance






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