Merrill Corporation, St. Paul, MN; Notice of Negative Determination on Reconsideration on Remand, 72857-72858 [E5-6991]

Download as PDF Federal Register / Vol. 70, No. 234 / Wednesday, December 7, 2005 / Notices DEPARTMENT OF LABOR Employment and Training Administration [TA–W–52,050] Merrill Corporation, St. Paul, MN; Notice of Negative Determination on Reconsideration on Remand The United States Court of International Trade (USCIT) remanded to the Department of Labor for further investigation Former Employees of Merrill Corporation v. Elaine Chao, U.S. Secretary of Labor, Court No. 03–00662 (issued July 28, 2005). The Department’s initial negative determination for the workers of Merrill Corporation (hereafter ‘‘Merrill’’) was issued on July 22, 2003. The Notice was published in the Federal Register on July 10, 2003 (68 FR 43373). The determination was based on the finding that workers did not produce an article within the meaning of section 222 of the Trade Act of 1974. The Department determined that the subject worker group was not engaged in the production of an article, but rather engaged in activities related to document management services. The plaintiffs did not seek administrative reconsideration by the Department but sought judicial review by the USCIT on September 9, 2003, asserting that Merrill produces an article (documents) and that the workers are engaged in this production. On April 2, 2004, the Department issued a Notice of Negative Determination on Remand for workers of the subject facility. The determination was based on the finding that the subject company does not produce an ‘‘article’’ within the meaning of the Trade Act of 1974. The Notice was published in the Federal Register on April 16, 2004 (69 FR 20645). On July 28, 2005, the USCIT remanded the matter to the Department, directing the Department to determine whether (1) Plaintiffs were engaged in ‘‘production’’ of printed matter or other articles; (2) the volume of articles produced by Plaintiffs; (3) Merrill’s customers contracted for the production of printed matter; (4) sales or production (or both) have decreased; (5) there has been or is likely to be an increase in imports of articles like or directly competitive with Merrill’s articles; (6) any increase in imports contributed importantly to Plaintiffs’ separation from Merrill and to its decline in sales or production; and (7) there was a shift in production to a foreign country of VerDate Aug<31>2005 13:01 Dec 06, 2005 Jkt 208001 articles like or directly competitive with Merrill’s articles, and if so, to what country. For purposes of determining workers’ eligibility to apply for Trade Adjustment Assistance (TAA), the relevant period is the complete twelve-month period prior to the petition date. Because the petition date is June 10, 2003, the scope of the investigation is confined to June 2002 through May 2003. During the second remand investigation, the Department contacted the company to request information about the subject facility and affiliated domestic print facilities and requested information from the plaintiffs. Further, the Department provided the Plaintiff an opportunity to respond to the Department’s preliminary findings. Supp. AR at 59–63. According to Merrill, the company derives revenue from document management services and commercial and business forms printing. A company official also stated that the financial documents are customized and owned by the client, that composed documents are printed pursuant to clients’ requests, that the printing is done at an off-site facility, and that print jobs are transmitted electronically from the subject facility to the off-site printing facilities. Supp. AR at 10–11, 36. In a September 2, 2005 letter, the plaintiffs confirmed the unique and customized nature of the documents but contradicted Merrill’s assertion that printing was not done at the subject facility. Supp. AR at 15–17. The Department sought clarification from the subject company and was informed that the printing facility at Merrill, St. Paul, Minnesota had closed by May 2001 and that Merrill had several domestic printing facilities during the relevant period. Supp AR at 36, 50–51. Since no production took place at the subject facility during the relevant period, the Department investigated whether the subject workers supported production at an affiliated, domestic production facility during June 2002 through May 2003, whether sales and/ or production declined at that production facility, and whether increased imports during the relevant period contributed importantly to those declines. As previously stated, composed documents were transmitted electronically from the subject facility to off-site printing facilities when customers requested physical copies of their financial documents. Supp AR at 11, 17 The expanded investigation revealed that production at all five printing facilities decreased during June PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 72857 2002 through May 2003 from June 2001 through May 2002 levels. Supp. AR at 58. After completing its investigation, the Department concludes that the workers should not be certified for TAA benefits. The plaintiffs claim they are eligible for benefits because Merrill shifted production to India. The Department has determined that the workers created electronic documents for printing and filing with the Securities and Exchange Commission (SEC). It is undisputed that Merrill sent that responsibility to India. The Department has consistently determined, however, that electronic creations are not ‘‘articles’’ for the purposes of the Trade Act unless they are embodied in a physical medium. See, e.g., Former Employees of Dendrite International, 70 FR 212247–3 (April 25, 2005); Former Employees of Gale Group, Inc., 70 FR 6732–1 (February 8, 2005). Therefore, the workers do not produce an article themselves. In its letter of November 7, 2005, the plaintiffs argue that the important issue is whether Merrill, not the workers themselves, creates an article. Supp. AR at 61. In order for the Department to certify in a case where the workers allege a shift of production, however, there must be a shift of production of an article. In the present case, the only job shifted was the creation of electronic files, which, as discussed above, is not the production of an article. Because the data entry function formerly done by the workers was the only function transferred to India, and because the financial reports were delivered to the United States via electronic transmission only, then there was no shift of production of an article, as required by the Trade Act. See Former Employees of Murray Engineering v. Chao, 358 F. Supp.2d 1269, 1272 n.7 (‘‘the language of the Act clearly indicates that the HTSUS governs the definition of articles, as it repeatedly refers to ‘‘articles’’ as items subject to a duty’’); HTS, General Note 3(I) (exempting ‘‘telecommunications transmissions’’ from ‘‘goods subject to the provisions of the [HTSUS]’’). Furthermore, under the Department’s interpretation of ‘‘like or directly competitive,’’ (29 CFR 90.2) ‘‘like’’ articles are those articles which are substantially identical in inherent or intrinsic characteristics and ‘‘directly competitive’’ articles are those articles which are substantially equivalent for commercial purposes (essentially interchangeable and adapted to the same uses), even though the articles may not be substantially identical in their inherent or intrinsic characteristics. E:\FR\FM\07DEN1.SGM 07DEN1 72858 Federal Register / Vol. 70, No. 234 / Wednesday, December 7, 2005 / Notices During the remand investigation, the Department confirmed that the material created by the workers and produced at the Merrill printing facilities is unique to each order. Supp. AR at 10–11, 36. No two orders for one customer are alike because the material captures legal and financial information which is unique unto itself. Similarly, one customer’s order cannot be intrinsically similar to another customer’s. Accordingly, there are no articles which are ‘‘like’’ or ‘‘directly competitive’’ to any single ‘‘article’’ created by Merrill because each electronic file is a unique document which is created for the sole purpose of satisfying a specific customer’s particular need at a particular point in time. Thus, there are no articles which are essentially interchangeable or can be adapted to the same use as a Merrill document, and there are no articles ‘‘like or directly competitive’’ with any Merrill ‘‘article.’’ See Former Employees of Murray Engineering, Inc. v. Chao, 2005 WL 1527642 (CIT 2005) (articles that are ‘‘neither interchangeable with nor substitutable’’ for the petitioner’s designs are not considered directly competitive.) (citing Machine Printers & Engravers Ass’n v. Marshall, 595 F.2d 860, 862 (DC Cir. 1979)). Since there are no articles which are like or directly competitive with those produced by the subject company, there cannot be any imports, much less increased imports. Therefore, neither section 222(a)(2)(A) nor section 222(a)(2)(B) of the Trade Act, as amended, has been satisfied. The plaintiffs argue that the Department’s interpretation ignores the fact that the workers’ jobs were shifted to India. Supp. AR at 62. In fact, the Department recognizes that the workers’ jobs were shifted overseas. The Trade Act, however, does not provide benefits to every person whose job was shifted overseas. First, there must be the shift of production of an ‘‘article,’’ which did not occur here. Supp. AR at 65 Second, the Trade Act requires, in a case such as this one, that there be an increase of imports of articles ‘‘like or directly competitive’’ to the articles whose production was shifted overseas. The plaintiffs argue that the ‘‘process’’ shifted overseas was identical to the ‘‘process’’ that had been done in the United States. Supp. AR at 62. However, it is not enough for the process to be ‘‘like or directly competitive.’’ As discussed above, each individual electronic document transmitted to the United States is inherently unlike and not competitive with any other electronic transmission. The Department’s investigation has demonstrated that some of Merrill’s VerDate Aug<31>2005 13:01 Dec 06, 2005 Jkt 208001 customers ask that the SEC filings be placed on a physical medium. For those customers, Merrill delivered the electronic creations of the plaintiffs to an in-house printer who puts the SEC filing in book form. Therefore, the plaintiffs could be viewed as supporting production of an article. The Department has determined, however, that no printing was transferred to another country. Supp. AR at 65. Therefore, there was no shift of production of an article. the Department that the plant is closing and the production is being shifted to another domestic location. Since the production at the Lumberton, New Jersey location has not been shifted to Mexico, this certification has been terminated. Conclusion After reconsideration on remand, I affirm the original notice of negative determination of eligibility to apply for adjustment assistance for workers and former workers of Merrill Corporation, St. Paul, Minnesota. BILLING CODE 4510–30–P Signed at Washington, DC this 17th day of November 2005. Elliott S. Kushner, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E5–6991 Filed 12–6–05; 8:45 am] Notice of Information Collection BILLING CODE 4510–30–P DEPARTMENT OF LABOR Employment and Training Administration [TA–W–57,960] Solectron Corporation a Subsidiary of Selectron USA, Inc., Lumberton, NJ; Notice of Termination of Certification This notice terminates the Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance issued by the Department on October 24, 2005, applicable to all workers of the subject firm. The notice will soon be published in the Federal Register. The Department, at the request of the State agency, reviewed the certification for workers of Solectron Corporation, a Subsidiary of Solectron USA, Inc., Lumberton, New Jersey. The workers produce computer storage equipment. In response to the petition filed by a company official, the certification was issued based on the investigation finding that there were worker separations and the production of computer storage equipment was shifted from the Lumberton, New Jersey plant to Mexico. New information provided by an official of Solectron Corporation to the State agency reveals that the subject firm has not shifted production of computer storage equipment to Mexico. The company official confirmed with PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 Signed at Washington, DC, this 14th day of November, 2005. Linda G. Poole, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. E5–6998 Filed 12–6–05; 8:45 am] NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [05–160] National Aeronautics and Space Administration (NASA). ACTION: Notice of information collection. AGENCY: SUMMARY: The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)). DATES: All comments should be submitted within 30 calendar days from the date of this publication. ADDRESSES: All comments should be addressed to the Desk Officer for NASA, Office of Information and Regulatory Affairs, Room 10236, New Executive Office Building, Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, Reports Officer, Office of the Chief Information Officer, NASA Headquarters, 300 E Street SW., Mail Suite JA00, Washington, DC 20546, 202–358–1350, walter.kit-1@nasa.gov. SUPPLEMENTARY INFORMATION: I. Abstract The NASA Contractor Financial Management Reporting System is the basic financial medium for contractor reporting of estimated and incurred costs, providing essential data for projecting costs and hours to ensure that contractor performance is realistically planned and supported by dollar and labor resources. The data provided by E:\FR\FM\07DEN1.SGM 07DEN1

Agencies

[Federal Register Volume 70, Number 234 (Wednesday, December 7, 2005)]
[Notices]
[Pages 72857-72858]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-6991]



[[Page 72857]]

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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-52,050]


Merrill Corporation, St. Paul, MN; Notice of Negative 
Determination on Reconsideration on Remand

    The United States Court of International Trade (USCIT) remanded to 
the Department of Labor for further investigation Former Employees of 
Merrill Corporation v. Elaine Chao, U.S. Secretary of Labor, Court No. 
03-00662 (issued July 28, 2005).
    The Department's initial negative determination for the workers of 
Merrill Corporation (hereafter ``Merrill'') was issued on July 22, 
2003. The Notice was published in the Federal Register on July 10, 2003 
(68 FR 43373). The determination was based on the finding that workers 
did not produce an article within the meaning of section 222 of the 
Trade Act of 1974. The Department determined that the subject worker 
group was not engaged in the production of an article, but rather 
engaged in activities related to document management services.
    The plaintiffs did not seek administrative reconsideration by the 
Department but sought judicial review by the USCIT on September 9, 
2003, asserting that Merrill produces an article (documents) and that 
the workers are engaged in this production.
    On April 2, 2004, the Department issued a Notice of Negative 
Determination on Remand for workers of the subject facility. The 
determination was based on the finding that the subject company does 
not produce an ``article'' within the meaning of the Trade Act of 1974. 
The Notice was published in the Federal Register on April 16, 2004 (69 
FR 20645).
    On July 28, 2005, the USCIT remanded the matter to the Department, 
directing the Department to determine whether
    (1) Plaintiffs were engaged in ``production'' of printed matter or 
other articles; (2) the volume of articles produced by Plaintiffs; (3) 
Merrill's customers contracted for the production of printed matter; 
(4) sales or production (or both) have decreased; (5) there has been or 
is likely to be an increase in imports of articles like or directly 
competitive with Merrill's articles; (6) any increase in imports 
contributed importantly to Plaintiffs' separation from Merrill and to 
its decline in sales or production; and (7) there was a shift in 
production to a foreign country of articles like or directly 
competitive with Merrill's articles, and if so, to what country.
    For purposes of determining workers' eligibility to apply for Trade 
Adjustment Assistance (TAA), the relevant period is the complete 
twelve-month period prior to the petition date. Because the petition 
date is June 10, 2003, the scope of the investigation is confined to 
June 2002 through May 2003.
    During the second remand investigation, the Department contacted 
the company to request information about the subject facility and 
affiliated domestic print facilities and requested information from the 
plaintiffs. Further, the Department provided the Plaintiff an 
opportunity to respond to the Department's preliminary findings. Supp. 
AR at 59-63.
    According to Merrill, the company derives revenue from document 
management services and commercial and business forms printing. A 
company official also stated that the financial documents are 
customized and owned by the client, that composed documents are printed 
pursuant to clients' requests, that the printing is done at an off-site 
facility, and that print jobs are transmitted electronically from the 
subject facility to the off-site printing facilities. Supp. AR at 10-
11, 36.
    In a September 2, 2005 letter, the plaintiffs confirmed the unique 
and customized nature of the documents but contradicted Merrill's 
assertion that printing was not done at the subject facility. Supp. AR 
at 15-17.
    The Department sought clarification from the subject company and 
was informed that the printing facility at Merrill, St. Paul, Minnesota 
had closed by May 2001 and that Merrill had several domestic printing 
facilities during the relevant period. Supp AR at 36, 50-51.
    Since no production took place at the subject facility during the 
relevant period, the Department investigated whether the subject 
workers supported production at an affiliated, domestic production 
facility during June 2002 through May 2003, whether sales and/or 
production declined at that production facility, and whether increased 
imports during the relevant period contributed importantly to those 
declines.
    As previously stated, composed documents were transmitted 
electronically from the subject facility to off-site printing 
facilities when customers requested physical copies of their financial 
documents. Supp AR at 11, 17 The expanded investigation revealed that 
production at all five printing facilities decreased during June 2002 
through May 2003 from June 2001 through May 2002 levels. Supp. AR at 
58.
    After completing its investigation, the Department concludes that 
the workers should not be certified for TAA benefits. The plaintiffs 
claim they are eligible for benefits because Merrill shifted production 
to India. The Department has determined that the workers created 
electronic documents for printing and filing with the Securities and 
Exchange Commission (SEC). It is undisputed that Merrill sent that 
responsibility to India. The Department has consistently determined, 
however, that electronic creations are not ``articles'' for the 
purposes of the Trade Act unless they are embodied in a physical 
medium. See, e.g., Former Employees of Dendrite International, 70 FR 
212247-3 (April 25, 2005); Former Employees of Gale Group, Inc., 70 FR 
6732-1 (February 8, 2005). Therefore, the workers do not produce an 
article themselves.
    In its letter of November 7, 2005, the plaintiffs argue that the 
important issue is whether Merrill, not the workers themselves, creates 
an article. Supp. AR at 61. In order for the Department to certify in a 
case where the workers allege a shift of production, however, there 
must be a shift of production of an article. In the present case, the 
only job shifted was the creation of electronic files, which, as 
discussed above, is not the production of an article.
    Because the data entry function formerly done by the workers was 
the only function transferred to India, and because the financial 
reports were delivered to the United States via electronic transmission 
only, then there was no shift of production of an article, as required 
by the Trade Act. See Former Employees of Murray Engineering v. Chao, 
358 F. Supp.2d 1269, 1272 n.7 (``the language of the Act clearly 
indicates that the HTSUS governs the definition of articles, as it 
repeatedly refers to ``articles'' as items subject to a duty''); HTS, 
General Note 3(I) (exempting ``telecommunications transmissions'' from 
``goods subject to the provisions of the [HTSUS]'').
    Furthermore, under the Department's interpretation of ``like or 
directly competitive,'' (29 CFR 90.2) ``like'' articles are those 
articles which are substantially identical in inherent or intrinsic 
characteristics and ``directly competitive'' articles are those 
articles which are substantially equivalent for commercial purposes 
(essentially interchangeable and adapted to the same uses), even though 
the articles may not be substantially identical in their inherent or 
intrinsic characteristics.

[[Page 72858]]

    During the remand investigation, the Department confirmed that the 
material created by the workers and produced at the Merrill printing 
facilities is unique to each order. Supp. AR at 10-11, 36. No two 
orders for one customer are alike because the material captures legal 
and financial information which is unique unto itself. Similarly, one 
customer's order cannot be intrinsically similar to another customer's. 
Accordingly, there are no articles which are ``like'' or ``directly 
competitive'' to any single ``article'' created by Merrill because each 
electronic file is a unique document which is created for the sole 
purpose of satisfying a specific customer's particular need at a 
particular point in time. Thus, there are no articles which are 
essentially interchangeable or can be adapted to the same use as a 
Merrill document, and there are no articles ``like or directly 
competitive'' with any Merrill ``article.'' See Former Employees of 
Murray Engineering, Inc. v. Chao, 2005 WL 1527642 (CIT 2005) (articles 
that are ``neither interchangeable with nor substitutable'' for the 
petitioner's designs are not considered directly competitive.) (citing 
Machine Printers & Engravers Ass'n v. Marshall, 595 F.2d 860, 862 (DC 
Cir. 1979)). Since there are no articles which are like or directly 
competitive with those produced by the subject company, there cannot be 
any imports, much less increased imports. Therefore, neither section 
222(a)(2)(A) nor section 222(a)(2)(B) of the Trade Act, as amended, has 
been satisfied.
    The plaintiffs argue that the Department's interpretation ignores 
the fact that the workers' jobs were shifted to India. Supp. AR at 62. 
In fact, the Department recognizes that the workers' jobs were shifted 
overseas. The Trade Act, however, does not provide benefits to every 
person whose job was shifted overseas. First, there must be the shift 
of production of an ``article,'' which did not occur here. Supp. AR at 
65 Second, the Trade Act requires, in a case such as this one, that 
there be an increase of imports of articles ``like or directly 
competitive'' to the articles whose production was shifted overseas. 
The plaintiffs argue that the ``process'' shifted overseas was 
identical to the ``process'' that had been done in the United States. 
Supp. AR at 62. However, it is not enough for the process to be ``like 
or directly competitive.'' As discussed above, each individual 
electronic document transmitted to the United States is inherently 
unlike and not competitive with any other electronic transmission.
    The Department's investigation has demonstrated that some of 
Merrill's customers ask that the SEC filings be placed on a physical 
medium. For those customers, Merrill delivered the electronic creations 
of the plaintiffs to an in-house printer who puts the SEC filing in 
book form. Therefore, the plaintiffs could be viewed as supporting 
production of an article. The Department has determined, however, that 
no printing was transferred to another country. Supp. AR at 65. 
Therefore, there was no shift of production of an article.

Conclusion

    After reconsideration on remand, I affirm the original notice of 
negative determination of eligibility to apply for adjustment 
assistance for workers and former workers of Merrill Corporation, St. 
Paul, Minnesota.

    Signed at Washington, DC this 17th day of November 2005.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
 [FR Doc. E5-6991 Filed 12-6-05; 8:45 am]
BILLING CODE 4510-30-P