DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-90,233

MILLER WELDING & MACHINE COMPANY
111 2ND STREET
INCLUDING ON-SITE LEASED WORKERS FROM SPHERION STAFFING AGENCY
BROOKVILLE, PENNSYLVANIA

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), (b)
or (e) of Section 222 of the Act, 19 U.S.C. § 2272(a), (b) and
(e). 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 criteria must be met:
(1) The first criterion (set forth in Section 222(a)(1) of the
Act, 19 U.S.C. § 2272(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.

(2) 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; AND
(iii) the increase in imports described in clause (ii)
contributed importantly to such workers' separation
or threat of separation and to the decline in the
sales or production of such firm.

(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
(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; and
(ii) the shift described in clause (i)(I) or the
acquisition of articles or services described in
clause (i)(II) contributed importantly to such
workers' separation or threat of separation.

For the Department to issue a secondary worker
certification under Section 222(b) of the Act, 19 U.S.C. §
2272(b), 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.

Section 222(c) of the Act, 19 U.S.C. § 2272(c), defines the
terms "Supplier" and "Downstream Producer."
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(e) of the Act, 19 U.S.C. § 2272(e).
The group eligibility requirements for workers of a firm
under Section 222(e) of the Act, 19 U.S.C. § 2272(e), 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), the 1-year
period preceding the 1-year period described in
paragraph (2).

The investigation was initiated in response to a petition
filed on September 10, 2015 by a company official on behalf of
workers of Miller Welding & Machine Company, 111 2nd Street,
Brookeville, Pennsylvania (herein referred to as "Miller
Welding & Machine Company"). The workers' firm is engaged in
activities related to the production of fabricated metal
components. The subject worker group includes on-site leased
workers from Spherion Staffing Agency.
The petitioner alleges that, "One of our biggest
customers, JLG Industries, moved majority of their business to a
plant they are building in Mexico. This took a lot of business
away from Miller Welding & Machine Company."
During the course of the investigation, information was
collected from the workers' firm and the firm's alleged
declining customer(s).
With respect to Section 222(a)(2)(A)(ii) of the Act, the
investigation revealed that that the firm and firm's
customer's imports have not increased from 2013 to 2014, and
January through August 2015 compared to the same period in
2014. The firm's major declining customer(s) increased their
sales and production of the finished articles incorporating
the Miller Welding & Machine Company's metal components making
any United States imported finished article incorporating like
or directly competitive components to those produce by the
workers not contributing importantly to the subject firm's
loss of business with the customer and the separations of the
subject worker group.
With respect to Section 222(a)(2)(B) of the Act, the
investigation revealed that the firm did not shift the
production of metal components or a like or directly
competitive article to a foreign country or acquire fabricated
metal components or a like or directly competitive article
from a foreign country. In response to the allegation of the
customer shifting production to a foreign country, as stated
in Section 222(a)(2)(B)of the act: the subject firm must be
the one who shifted production to a foreign country or
acquired like or directly competitive articles from a foreign
country, and that shift or acquisition by the subject firm
must contribute importantly to the worker separations at the
subject firm. It was confirmed in the investigation that
Miller Welding & Machine Company has not shifted production to
a foreign country or acquired like or directly competitive
fabricated metal components from a foreign country. Whether
the firm's customer did or did not shift production to a
foreign country does not translate to a shift in production by
the firm.
With respect to Section 222(b)(2) of the Act, the
investigation revealed that Miller Welding & Machine Company
is not a Supplier 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). The firm did not supply component
parts to a firm whose workers were certified eligible to apply
for Trade Adjustment Assistance.
With respect to Section 222(b)(2) of the Act, the
investigation revealed that Miller Welding & Machine Company
does not act as a 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).
Finally, the group eligibility requirements under Section
222(e) of the Act, have not been satisfied either because
Criterion (1) has not been met since the workers' firm has not
been publicly identified by name by the International Trade
Commission as a member of a domestic industry in an
investigation resulting in an affirmative finding of serious
injury, market disruption, or material injury, or threat
thereof.
Conclusion
After careful review of the facts obtained in the
investigation, I determine that the requirements of Section 222
of the Act, 19 U.S.C. § 2272, have not been met and, therefore,
deny the petition for group eligibility of Miller Welding &
Machine Company, 111 2nd Street, including on-site leased
workers from Spherion Staffing Agency, Brookeville, Pennsylvania
engaged in activities related to the production of fabricated
metal components to apply for adjustment assistance, in
accordance with Section 223 of the Act, 19 U.S.C. § 2273.
Signed in Washington, D.C. this 24th day of February 2017.
/s/Hope D. Kinglock
______________________________
HOPE D. KINGLOCK
Certifying Officer, Office of
Trade Adjustment Assistance