[Federal Register: March 18, 2003 (Volume 68, Number 52)]
[Notices]
[Page 12940-12942]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18mr03-115]
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DEPARTMENT OF LABOR
Employment and Training Administration
[NAFTA-3584]
Chevron Products Company, Roosevelt, UT; Notice of Negative
Determination of Reconsideration On Remand
The United States Court of International Trade (USCIT) remanded for
further investigation the Secretary of Labor's negative determination
in Former Employees of Chevron Products Company v. U.S. Secretary of
Labor (00-08-00409).
The Department's initial denial of the petition for employees of
Chevron Products Company, Roosevelt, Utah, was issued on April 24, 2000
and published in the Federal Register on May 11, 2000 (65 FR 30444).
The denial was based on the finding that the workers provided a service
and did not produce an article within the meaning of section 250(a) of
the Trade Act, as amended.
The petitioners requested administrative reconsideration of the
Department's denial, citing that the low price of imported crude oil
forced U.S. producers to reduce activity, and thus, contributed to the
worker separations at Chevron Products Company in Roosevelt, Utah. The
petitioners also cited increased company imports of Canadian crude oil.
The petitioners also claimed that other trucking and non-producing
entities had been certified for Trade Adjustment Assistance (TAA).
Furthermore, the petitioners stated that the Department issued the
determination prematurely because the State of Utah had not issued its
preliminary finding.
On July 21, 2000, the Department issued a Negative Determination on
Application for Reconsideration because no new information was
presented that the Department had erred or misinterpreted the facts or
Trade Act law. The notice was published in the Federal Register on
August 1, 2000 (65 FR 46988).
The USCIT remanded the case to the Department for further
investigation because the USCIT believed that the record did not
support the findings as to the nature of the work performed by the
workers of Chevron Products Company, nor did it support the finding
that the workers did not produce an article but provided a service.
The petitioners described the duties of a gauger as follows: The
Plant Operator (gauger) is to go to each location, a well head and or
crude oil tanks, for purchase. The gauger has a number of tasks to
perform before the crude is purchased--check temperature, gauge the
amount of crude in the tank, take samples for gravity test and grind
out for BS & W, and check the bottom of the tank for water or
impurities. If the samples and all the tests pass, then a crude oil
ticket is written for that tank. At that point the crude is ready for
transportation to one of three locations. Drivers are dispatched to the
location and load the crude oil on their truck and transport it to one
of three refineries.
On remand, the Department contacted the subject firm headquarters
in San Ramon, California to obtain information about the organization
of the company and the work that took place at the Roosevelt, Utah
location.
ChevronTexaco submitted information to the Department that in 1998
and 1999, Chevron Products Company was a division of Chevron U.S.A.,
Inc., a wholly owned subsidiary of Chevron Corporation, now
ChevronTexaco Corporation. According to ChevronTexaco, the business
purpose of Chevron Products Company was marketing, trading, supply and
distribution of crude oil and products derived from petroleum, and the
marketing of related technology. ChevronTexaco also established that
during the same time period, the Chevron Products Company, Roosevelt,
Utah, location was a transportation terminal, involved in picking up
crude oil by truck at the well head, primarily at wells owned by non-
Chevron producers and delivering to the Chevron Products Company's
refinery in Utah or to a pipeline terminal.
The Department obtained from the company the position descriptions
for the Roosevelt terminal worker group. A brief summary of the ``Plant
Operator'' follows:
(a) Receives and stores bulk products from pipeline tenders. Gauges
tanks before and after delivery for product and water, takes
temperatures, sets lines and opens valves (where not done by Pipe Line
Gauger Switchman), takes samples as prescribed; completes tests to
assure product quality.
(b) Performs truck loading activities including cleanliness,
loading of exchange shipments, and verification (visual or meter) of
products loaded.
(c) Periodically inventories product additives and chemicals.
Balances inventories and receipts.
(d) Maintains driver records, regarding miles driven, gallons
delivered.
The job description for the ``Product Delivery Truck Driver'' is
briefly summarized as follows:
(a) Operates motor vehicle engaged in the delivery of bulk liquid
or packaged products to customers, company terminals or warehouses.
(b) Operates a variety of makes, models, sizes, capacities and
types of automotive equipment, and all appurtenant metering, pumping
and other mechanical devices related or incidental to transporting,
loading and unloading products.
The Department also examined the job description for a gauger as
defined in the Dictionary of Occupational Titles (DOT). The gauger is
included in the group of occupations concerned with conveying
materials, such as oil, gas, water, etc., ``Pumping and Pipeline
[[Page 12941]]
Transportation Occupations.'' The DOT summarizes a gauger's duties as
follows: a gauger gauges and tests the amount of oil in storage tanks
and regulates flow of oil and other petroleum products into pipelines.
More specifically, according to the DOT, gaugers gauge the quantity of
oil in storage tanks before and after delivery, using calibrated steel
tape and conversion tables, including lowering a thermometer into tanks
to obtain a temperature reading.
The document sources reviewed by the Department agree as to the
nature of the work performed by the gauger. An official of Chevron
Products Company initially described the duties performed by the worker
group as ``lifting and transporting crude oil.'' That description,
although true, was incomplete. Gaugers ``gauge tanks before and after
delivery for product and water.''
The petitioners believe that as gaugers they should be considered
directly involved in the production process for crude oil because they
test and determine the quality of crude oil to be purchased and
transported before the drivers arrived to transport the oil for
refining. The Department disagrees.
The documents provided by the petitioners, the company's job
description for the workers, and the definition of gauger from the DOT,
confirms that the duties performed by the worker group subject of this
petition investigation are related to the transportation of crude oil
after the oil has been produced: i.e., the crude oil was already out of
the ground by the time the Roosevelt facility gaugers tested it. In
order for the petitioning worker group to be considered producing crude
oil, they must engage in the exploration or drilling of the crude oil.
Therefore, the Chevron Products workers cannot be certified as
production workers.
Furthermore, the Roosevelt terminal workers could only be certified
as service workers if their separation was caused importantly by a
reduced demand for their services by an affiliated production facility
whose workers could have been certified eligible to apply for NAFTA-
TAA.
One theory is that the ``production facility'' that the subject
workers served was the oil wells where the crude oil was pumped out.
This theory fails in one respect because the subject workers were not
``serving'' the oil wells: they were ``serving'' the adjacent oil
tanks. The oil tanks cannot be considered ``production facilities''
because nothing is produced at a crude oil tank: the crude oil has
already been ``produced'' by the time it is placed in a tank.
However, even if one were to consider an oil tank a production
facility, the subject workers would not be considered ``service
workers'' of the oil tanks for purposes of certification under the
Trade Act because the tanks are not affiliated with their employer. On
remand, the Department obtained the contracts from ChevronTexaco for
the Chevron Products Company regarding the locations at which the
Roosevelt, Utah workers gauged in 1998 and 1999. The contracts in place
at that time and a statement by ChevronTexaco supports the Department's
decision that the tanks that the Roosevelt terminal workers gauged the
oil were not affiliated with Chevron Products Company.
Another theory is that the subject workers serviced the refinery or
refineries where the oil they gauged was delivered for ``production''
as refined oil. The USCIT remand questioned that the Department relied
on information supplied by the company official that the workers
transported crude oil to a Chevron refinery, and failed to investigate
the workers' statement that the oil that they tested was destined for
one of three locations for refining. The Department obtained
information that the petitioners were uncertain as to the ownership of
the refineries, pumping or mixing stations for one of the three
locations. The unavailability of this information, however, is not
critical to the investigation.
The information is not critical because even if one assumes that
the refining facilities are affiliated with Chevron Products Company,
there is no possibility that the production workers of the refinery (or
refineries) could have been certified for NAFTA-TAA at the relevant
time period. Historically, workers at refineries are not certified
eligible to apply for NAFTA-TAA or TAA because U.S. imports of refined
petroleum products are low. The Department examined a statistical table
regarding refined petroleum products for the time period relevant to
the investigation. From 1998 to 1999, aggregate U.S. imports of refined
petroleum products from Mexico and Canada decreased absolutely. The
U.S. import/shipment ratio was about two percent in 1998 and about one
percent in 1999. DOL considers this a negligible amount. The Department
had no certification in effect for workers of Chevron Products Company,
its parent company, or any other producer of refined petroleum products
during the relevant time period.
The USCIT added that the Department failed to rule out the
possibility that workers at one of the refineries may have
independently met the statutory criteria for certification. As with
this, or any petition investigation, the investigation is conducted for
the appropriate division or subdivision of the firm at which the worker
group was employed. In this case, the petitioners were employees of the
Chevron Products Company, Roosevelt, Utah terminal, not the refineries.
Moreover, the crude oil transported to a refinery is a raw material
used in the output of refined petroleum products. Consequently, crude
oil cannot be considered like or directly competitive with refined
petroleum products.
The State of Utah, Department of Workforce Services, Rapid Response
Dislocated Worker Unit, issued an affirmative preliminary finding
regarding the NAFTA-TAA petition investigation conducted for the
Roosevelt, Utah workers. The State's affirmative finding was based on a
Trade Adjustment Assistance (TAA) certification issued for workers of
Chevron U.S.A. producing crude oil at various locations in Utah, as
well as information obtained from the petitioners, and a statement by
the Chevron Pipeline Company in Houston, Texas, that Chevron imports
crude products from Canada.
The Department's review of the State's finding, however, does not
alter the Department's negative determination regarding eligibility for
this worker group to apply for NAFTA-TAA. Upon the State's receipt of a
NAFTA-TAA petition, the State is required to conduct an investigation
collecting information about the subject firm's sales, production,
employment, imports, or a shift in production to Mexico or Canada, and
issue a preliminary finding. The Department is required to issue the
final determination as to whether there was a shift in production from
the workers' firm to Mexico or Canada, or if increased imports from
those countries of articles like or directly competitive with those
produced at the workers' firm occurred and contributed importantly to
worker separations and to the declines in sales or production at that
firm.
The State's finding that workers that produced crude oil and
natural gas for Chevron Production U.S.A. during the relevant time
period were certified as eligible to apply for TAA does not warrant a
NAFTA-TAA certification for workers of Chevron Products Company because
the worker group eligibility requirements for the TAA and NAFTA-TAA
programs are different.
A NAFTA-TAA petition investigation is limited to import impact from
Mexico or Canada. A NAFTA-TAA certification for the worker group may be
issued if
[[Page 12942]]
increases in imports from Mexico or Canada of articles like or directly
competitive with those produced at the workers' firm ``contributed
importantly'' to the decline in sales or production and to the total or
partial separation of the workers at that firm. The NAFTA-TAA also has
a provision to certify a group of workers when worker separations have
occurred and there has been a shift in production from the workers'
firm to Mexico or Canada.
A TAA petition certification requires that increases in imports
from anywhere of articles like or directly competitive with those
produced at the workers' firm ``contributed importantly'' to the
declines in sales or production and to the total or partial separation
of the workers at that firm. (The petitioners also filed a petition for
the TAA program, and, on February 17, 2000, were denied eligibility for
the same reason as the NAFTA-TAA denial: the workers provided a service
and did not produce an article. The petitioners filed a request for
administrative reconsideration that resulted in a dismissal on March
29, 2000. To the Department's knowledge, the petitioners did not
request judicial review of this decision.)
Therefore, Utah was in error when it issued an affirmative
preliminary finding that was based in part on a TAA certification. The
Chevron Production U.S.A. workers were certified eligible to apply for
TAA using total U.S. imports of crude oil. From 1998 to 1999, aggregate
U.S. imports of crude oil increased, while U.S. imports from Mexico and
Canada decreased. The Chevron Products Company, Roosevelt, Utah worker
group applied for NAFTA-TAA benefits and the NAFTA-TAA investigation
should have focused solely on imports from Canada and Mexico or shifts
in production to Canada and Mexico.
Furthermore, it was inappropriate for the State to contact Chevron
Pipeline Company in Houston, Texas to obtain information about Chevron
Products Company. The Chevron Pipeline Company did not employ the
Roosevelt terminal workers and it is unlikely it could provide relevant
information regarding the employment of Chevron Products Company's
employees. Perhaps that is why the State of Utah reported that there
was a lack of cooperation and that the contact person was ``very
hostile.'' During the conduct of this investigation the Department
found the contact person for Chevron Products to be extremely helpful,
cooperative and complied with Departmental requests within the due
dates requested.
The Department confirmed that Chevron Products Company did import
crude oil from Canada during the time period in which the petitioners
were separated from employment, but that is irrelevant due to the
nature of the work being conducted by the Roosevelt facility worker
group. Part of the worker group, the gaugers, tested the crude oil in
tanks before the other part of the worker group, the drivers, would
lift and transport the crude oil. To the extent they were service
workers, they were servicing oil tanks, which are not properly
considered ``production'' facilities. And, even if an oil tank
qualifies as a ``production facility'', the tanks were not affiliated
with their employer.
In addition, even if the subject workers were considered service
workers to the refineries where the crude oil was delivered, the
refineries were ``producing'' refined petroleum products, not crude
oil. Crude oil cannot be considered like or directly competitive with
refined petroleum products. And, as discussed previously, the
importation of refined petroleum products during the relevant time
period from Mexico and Canada was merely negligible. Therefore, the
refinery workers could not have been certified for NAFTA-TAA benefits.
Because the refinery workers could not have been certified, a worker
``servicing'' the facility (or facilities) could not be certified.
The USCIT also remanded to the Department the finding regarding the
workers' status as members of a Secondarily Affected Worker Group. The
USCIT does not have jurisdiction to evaluate the Department's finding
on this issue because the entitlement is based on a Presidential
Statement of Administrative Action rather than NAFTA or the Trade Act.
Certification as a member of a Secondarily Affected Worker Group
entitles an individual to benefits through the Workforce Investment Act
of 1998 (which replaced the Job Training Partnership Act) rather than
the Trade Act.
Regardless, the subject workers are not qualified as members of a
Secondarily Affected Worker Group. In order for an affirmative finding
to be made, the following requirements must be met:
(1) The subject firm must be a supplier--such as of components,
unfinished or semifinished goods--to a firm that is directly affected
by imports from Mexico or Canada or shifts in production to those
countries; or
(2) The subject firm must assemble or finish products made by a
directly-impacted firm; and
(3) The loss of business with the directly-affected firm must have
contributed importantly to worker separations at the subject firm.
The Chevron Products Company worker group in Roosevelt, Utah,
gauged and transported crude oil to Chevron refineries to produce
refined petroleum products. Although the crude oil can be considered a
component of refined petroleum product, criteria (1) and (3) are not
satisfied because the crude oil gauged and transported to a refinery is
not directly affected by imports from Mexico or Canada.
Criterion (2) is not satisfied because the workers of Chevron
Products Company, Roosevelt, Utah, did not assemble or finish products
for a directly impacted firm.
Conclusion
After reconsideration on remand, I affirm the original notice of
negative determination of eligibility to apply for NAFTA-TAA for
workers and former workers of Chevron Products Company, Roosevelt,
Utah. My reconsideration includes review of the February 26, 2003
letter sent by the petitioner's counsel. I find the letter did not
provide additional facts to consider.
Signed at Washington, DC, this 7th day of March, 2003.
Edward A. Tomchick,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 03-6413 Filed 3-17-03; 8:45 am]
BILLING CODE 4510-30-P