[Federal Register Volume 68, Number 52 (Tuesday, March 18, 2003)]
[Notices]
[Pages 12940-12942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6413]


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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