Merrill Corporation, St. Paul, MN; Notice of Negative Determination on Remand, 52346-52347 [E6-14590]
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Federal Register / Vol. 71, No. 171 / Tuesday, September 5, 2006 / Notices
DEPARTMENT OF LABOR
Employment and Training
Administration
[TA–W–52,050]
sroberts on PROD1PC70 with NOTICES
Merrill Corporation, St. Paul, MN;
Notice of Negative Determination on
Remand
On May 17, 2006, the United States
Court of International Trade (USCIT)
remanded Former Employees of Merrill
Corporation v. Elaine Chao, U.S.
Secretary of Labor, Court No. 03–00662,
to the Department of Labor (Department)
for further investigation, in light of the
Department’s Notice of Revised
Determination on Remand for Lands’
End, A Subsidiary of Sears Roebuck and
Company, Business Outfitters CAD
Operations, Dodgeville, Wisconsin
(Lands’ End), TA–W–56,688 (issued on
March 24, 2006).
Plaintiffs, workers of Merrill
Corporation, St. Paul, Minnesota
(Merrill), created electronic documents
for clients for filing with the U.S.
Securities and Exchange Commission
(SEC). Plaintiffs lost their jobs when
Merrill shifted that work to India. The
details of Merrill’s business activities
and the Plainitffs’ responsibilities can
be found in the Federal Register notices
cited below.
The Department’s Notice of Negative
Determination Regarding Eligibility to
Apply for Worker Adjustment
Assistance for the workers of Merrill
was issued on July 2, 2003 and
published in the Federal Register on
July 22, 2003 (68 FR 43373). The Notice
of Negative Determination on Remand
for workers of Merrill was issued on
April 2, 2004 and published in the
Federal Register on April 16, 2004 (69
FR 20645). In both determinations, the
Department denied the workers
eligibility to apply for Trade Adjustment
Assistance (TAA) because Merrill does
not produce an ‘‘article’’ within the
meaning of the Trade Act of 1974.
On November 17, 2005, the
Department issued a Notice of Negative
Determination on Reconsideration on
Remand for workers of Merrill. The
Notice was published in the Federal
Register on December 7, 2005 (70 FR
72857). The Department determined
that the workers are not eligible to apply
for TAA because Merrill does not
produce an ‘‘article’’ since electronic
creations are not ‘‘articles’’ unless they
are embodied in a physical medium.
The Department also determined that
even if Merrill produced an ‘‘article,’’
the uniqueness of each filing means that
there cannot be any articles which are
like or directly competitive with the
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17:24 Sep 01, 2006
Jkt 208001
‘‘articles’’ created by Merrill and,
consequently, there cannot be any
increased imports of such articles.
In the Department’s Lands’ End
determination, the Department stated
that ‘‘the Department has revised its
policy to acknowledge that there are
tangible and intangible articles and to
clarify differences between intangible
articles and services * * * Products
that would have been considered an
article if embodied in a physical
medium will now be considered an
article * * * Workers providing
services that may result in the
incidental production * * * however,
are not engaged in the production of an
article for the purposes of the Act.’’ (71
FR 18357)
Applying the revised policy to the
immediate case, the Department
determines that Merrill provides a
service, incidental to which Plaintiffs
produce an intangible article. Under the
revised policy, however, the incidental
production of an article does not change
the Department’s treatment of workers
who work for a firm that produces an
article incidental to providing a service.
Rather, the Lands’ End determination
reinforces this policy (‘‘Workers
providing services that may result in the
incidental production * * * are not
engaged in the production of an article
for the purposes of the Act’’).
The Department has consistently held
that workers who work for a firm that
provides a service, such as sales and
repair, are not eligible for TAA benefits.
The Department’s policy was recently
upheld by the USCIT in Former
Employees of Gale Group, Inc., 403
F.Supp.2d 1299 (CIT 2005).1 In the Gale
opinion, the USCIT established that
workers in a service firm are not eligible
to apply for benefits under the Trade
Act. Id. at 1303.
During the third remand
investigation, the Department confirmed
that the subject workers manipulate
information into a format required for
filing with the SEC and that Merrill does
not generate revenue by the sale of the
filings. The Department also confirmed
that the filings created by the subject
workers adhere to the customer’s
specifications and accommodate the
special needs dictated by the SEC. SSAR
8, 18.
1 The Plaintiffs in Gale appealed the decision to
the United States Court of Appeals for the Federal
Circuit. Upon further investigation, after the Lands
End determination, the Department concluded that
Gale Group, Inc. produced an article, not incidental
to the provision of a service. The Department
sought a remand and certified the plaintiffs. See
Notice of Revised Determination on Remand for
Gale Group, Inc., TA–W–54, 434 (July 19, 2006).
The Department’s decision in Gale was not a
repudiation of the USCIT’s decision in Gale.
PO 00000
Frm 00030
Fmt 4703
Sfmt 4703
As stated in the USCIT’s Gale
opinion, TAA is only available to
workers in a firm engaged in production
of an article. One significant factor that
distinguishes a production firm from a
service firm is that the former operates
commercially as a manufacturing firm
and generates its revenue from the sale
of the manufactured articles; the
manufacturer is in the business of
making and selling an article. This is in
contrast to a service firm that operates
commercially as a service provider and
generates its revenue from the provision
of services. That an article is created
incidental to the provision of the service
does not make the service firm a
production firm.
A commercial tax preparation firm
that prepares and files tax forms with
the Internal Revenue Service is in the
business of providing tax-related
services for a fee. The firm simply
receives data from its client and places
it into a format acceptable to the
government. That the service may result
in the creation of an article, a tax return,
does not make it a production firm. The
tax preparation firm is not selling its
customers a tax return; rather, it is
selling its expertise in correctly
manipulating the customer’s tax data
into the proper form. Similarly, Merrill
is in the business of providing financial
document related services for a fee. It
receives data from its clients and
reformats it in a form acceptable to the
government. The fact that its services
may result in the incidental production
of an article, an SEC filing, does not
make Merrill a production firm.
Even if the Plaintiffs did produce an
article for purposes of the Trade Act,
they would not be eligible to apply for
TAA because there was neither a shift
of production to a qualified country nor
increased imports of articles like or
directly competitive with those
produced at the subject facility.
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.
Given the nature of the SEC filings,
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. Thus, there are no articles
which are essentially interchangeable or
E:\FR\FM\05SEN1.SGM
05SEN1
Federal Register / Vol. 71, No. 171 / Tuesday, September 5, 2006 / Notices
can be adapted to the same use as a
Merrill document, and there are no
articles ‘‘like or directly competitive’’
with any Merrill ‘‘article.’’ Because
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 Department determines that the
revised policy articulated in Lands’ End
does not affect Plaintiffs’ claim and
determines that the subject workers are
not eligible to apply for TAA.
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 24th day of
August 2006.
Elliott S. Kushner,
Certifying Officer, Division of Trade
Adjustment Assistance.
[FR Doc. E6–14590 Filed 9–1–06; 8:45 am]
BILLING CODE 4510–30–P
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
[Notice (06–063)]
National Environmental Policy Act;
Mars Science Laboratory Mission
National Aeronautics and
Space Administration (NASA).
ACTION: Notice of availability of draft
environmental impact statement (DEIS)
for implementation of the Mars Science
Laboratory (MSL) mission.
sroberts on PROD1PC70 with NOTICES
AGENCY:
SUMMARY: Pursuant to the National
Environmental Policy Act of 1969, as
amended, (NEPA) (42 U.S.C. 4321 et
seq.), the Council on Environmental
Quality Regulations for Implementing
the Procedural Provisions of NEPA (40
CFR Parts 1500–1508), and NASA
policy and procedures (14 CFR Part
1216 subpart 1216.3), NASA has
prepared and issued a DEIS for the
proposed MSL mission. The DEIS
addresses the potential environmental
impacts associated with implementing
the mission. The purpose of this
proposal is to explore the surface of
Mars with a mobile science laboratory
(rover). This environmental impact
statement (EIS) is a tiered document
(Tier 2 EIS) under NASA’s
Programmatic EIS for the Mars
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17:24 Sep 01, 2006
Jkt 208001
Exploration Program (MEP). The DEIS
presents descriptions of the proposed
MSL mission, spacecraft, and candidate
launch vehicle; an overview of the
affected environment at and near the
launch site; and the potential
environmental consequences associated
with the Proposed Action and
alternatives, including the No Action
Alternative.
The MSL mission is planned for
launch during the September–November
2009 time period from Cape Canaveral
Air Force Station (CCAFS), Florida, on
an expendable launch vehicle. The
arrival date at Mars would range from
mid-July 2010 to not later than midOctober 2010, depending on the exact
launch date and selected landing site,
yet to be determined, on the surface of
Mars. Using advanced instrumentation,
the MSL rover would acquire
significant, detailed information
regarding the habitability of Mars from
a scientifically promising location on
the surface. The mission would also
fulfill NASA’s strategic technology goals
of increasing the mass of science
payloads delivered to the surface of
Mars, expanding access to higher and
lower latitudes, increasing precision
landing capability, and increasing
traverse capability (mobility) to
distances on the order of several
kilometers.
The DEIS evaluates two alternatives
in addition to the No Action
Alternative. Under the Proposed Action
(Alternative 1), the proposed MSL rover
would utilize a radioisotope power
system, a Multi-Mission Radioisotope
Thermoelectric Generator (MMRTG), as
its primary source of electrical power to
operate and conduct science on the
surface of Mars. Under Alternative 2, an
MSL rover would utilize solar energy as
its primary source of electrical power to
operate and conduct science on the
surface of Mars.
DATES: Written comments on the DEIS
must be received by NASA no later than
October 23, 2006, or 45 days from the
date of publication in the Federal
Register of the U.S. Environmental
Protection Agency’s notice of
availability of the MSL DEIS, whichever
is later.
ADDRESSES: Comments submitted via
first class, registered, or certified mail
should be addressed to Mark R. Dahl,
Mail Suite 3X63, Planetary Science
Division, Science Mission Directorate,
NASA Headquarters, 300 E Street SW.,
Washington, DC 20546–0001.
Comments submitted via express mail, a
commercial deliverer, or courier service
should be addressed to Mark R. Dahl,
Mail Suite 3X63, Planetary Science
PO 00000
Frm 00031
Fmt 4703
Sfmt 4703
52347
Division, Science Mission Directorate,
Attn: Receiving & Inspection (Rear of
Building), NASA Headquarters, 300 E
Street SW., Washington, DC 20024–
3210. While hard copy comments are
preferred, comments may be sent by
electronic mail to
mep.nepa@hq.nasa.gov.
The DEIS may be reviewed at the
following locations:
(a) NASA Headquarters, Library,
Room 1J20, 300 E Street, SW.,
Washington, DC 20546;
(b) Jet Propulsion Laboratory, Visitors
Lobby, Building 249, 4800 Oak Grove
Drive, Pasadena, CA 91109.
Hard copies of the DEIS also may be
examined at other NASA Centers (see
SUPPLEMENTARY INFORMATION below).
Limited hard copies of the DEIS are
available, on a first request basis, by
contacting Mark R. Dahl at the address,
telephone number, or electronic mail
address indicated herein. The DEIS is
also available in Adobe portable
document format at https://
spacescience.nasa.gov/admin/pubs/
msl/index.htm.
FOR FURTHER INFORMATION CONTACT:
Mark R. Dahl, Planetary Science
Division, Science Mission Directorate,
NASA Headquarters, Washington, DC
20546–0001, telephone 202–358–4800,
or electronic mail
mep.nepa@hq.nasa.gov.
The MEP
is currently being implemented as a
sustained series of flight missions to
Mars, each of which will provide
important, focused scientific return. The
MEP is fundamentally a science driven
program whose focus is on
understanding and characterizing Mars
as a dynamic system and ultimately
addressing whether life is or was ever a
part of that system. The core MEP
addresses the highest priority scientific
investigations directly related to the
Program goals and objectives. MSL
investigations would be a means of
addressing several of the high-priority
scientific investigations recommended
to NASA by the planetary science
community.
The overall scientific goals of the MSL
mission can be divided into four areas:
(1) Assess the biological potential of at
least one selected site on Mars, (2)
characterize the geology and
geochemistry of the landing region at all
appropriate spatial scales, (3) investigate
planetary processes of relevance to past
habitability, and (4) characterize the
broad spectrum of the Martian surface
radiation environment. The following
specific objectives are planned for the
mission to address these goals:
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[Federal Register Volume 71, Number 171 (Tuesday, September 5, 2006)]
[Notices]
[Pages 52346-52347]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-14590]
[[Page 52346]]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
[TA-W-52,050]
Merrill Corporation, St. Paul, MN; Notice of Negative
Determination on Remand
On May 17, 2006, the United States Court of International Trade
(USCIT) remanded Former Employees of Merrill Corporation v. Elaine
Chao, U.S. Secretary of Labor, Court No. 03-00662, to the Department of
Labor (Department) for further investigation, in light of the
Department's Notice of Revised Determination on Remand for Lands' End,
A Subsidiary of Sears Roebuck and Company, Business Outfitters CAD
Operations, Dodgeville, Wisconsin (Lands' End), TA-W-56,688 (issued on
March 24, 2006).
Plaintiffs, workers of Merrill Corporation, St. Paul, Minnesota
(Merrill), created electronic documents for clients for filing with the
U.S. Securities and Exchange Commission (SEC). Plaintiffs lost their
jobs when Merrill shifted that work to India. The details of Merrill's
business activities and the Plainitffs' responsibilities can be found
in the Federal Register notices cited below.
The Department's Notice of Negative Determination Regarding
Eligibility to Apply for Worker Adjustment Assistance for the workers
of Merrill was issued on July 2, 2003 and published in the Federal
Register on July 22, 2003 (68 FR 43373). The Notice of Negative
Determination on Remand for workers of Merrill was issued on April 2,
2004 and published in the Federal Register on April 16, 2004 (69 FR
20645). In both determinations, the Department denied the workers
eligibility to apply for Trade Adjustment Assistance (TAA) because
Merrill does not produce an ``article'' within the meaning of the Trade
Act of 1974.
On November 17, 2005, the Department issued a Notice of Negative
Determination on Reconsideration on Remand for workers of Merrill. The
Notice was published in the Federal Register on December 7, 2005 (70 FR
72857). The Department determined that the workers are not eligible to
apply for TAA because Merrill does not produce an ``article'' since
electronic creations are not ``articles'' unless they are embodied in a
physical medium. The Department also determined that even if Merrill
produced an ``article,'' the uniqueness of each filing means that there
cannot be any articles which are like or directly competitive with the
``articles'' created by Merrill and, consequently, there cannot be any
increased imports of such articles.
In the Department's Lands' End determination, the Department stated
that ``the Department has revised its policy to acknowledge that there
are tangible and intangible articles and to clarify differences between
intangible articles and services * * * Products that would have been
considered an article if embodied in a physical medium will now be
considered an article * * * Workers providing services that may result
in the incidental production * * * however, are not engaged in the
production of an article for the purposes of the Act.'' (71 FR 18357)
Applying the revised policy to the immediate case, the Department
determines that Merrill provides a service, incidental to which
Plaintiffs produce an intangible article. Under the revised policy,
however, the incidental production of an article does not change the
Department's treatment of workers who work for a firm that produces an
article incidental to providing a service. Rather, the Lands' End
determination reinforces this policy (``Workers providing services that
may result in the incidental production * * * are not engaged in the
production of an article for the purposes of the Act'').
The Department has consistently held that workers who work for a
firm that provides a service, such as sales and repair, are not
eligible for TAA benefits. The Department's policy was recently upheld
by the USCIT in Former Employees of Gale Group, Inc., 403 F.Supp.2d
1299 (CIT 2005).\1\ In the Gale opinion, the USCIT established that
workers in a service firm are not eligible to apply for benefits under
the Trade Act. Id. at 1303.
---------------------------------------------------------------------------
\1\ The Plaintiffs in Gale appealed the decision to the United
States Court of Appeals for the Federal Circuit. Upon further
investigation, after the Lands End determination, the Department
concluded that Gale Group, Inc. produced an article, not incidental
to the provision of a service. The Department sought a remand and
certified the plaintiffs. See Notice of Revised Determination on
Remand for Gale Group, Inc., TA-W-54, 434 (July 19, 2006). The
Department's decision in Gale was not a repudiation of the USCIT's
decision in Gale.
---------------------------------------------------------------------------
During the third remand investigation, the Department confirmed
that the subject workers manipulate information into a format required
for filing with the SEC and that Merrill does not generate revenue by
the sale of the filings. The Department also confirmed that the filings
created by the subject workers adhere to the customer's specifications
and accommodate the special needs dictated by the SEC. SSAR 8, 18.
As stated in the USCIT's Gale opinion, TAA is only available to
workers in a firm engaged in production of an article. One significant
factor that distinguishes a production firm from a service firm is that
the former operates commercially as a manufacturing firm and generates
its revenue from the sale of the manufactured articles; the
manufacturer is in the business of making and selling an article. This
is in contrast to a service firm that operates commercially as a
service provider and generates its revenue from the provision of
services. That an article is created incidental to the provision of the
service does not make the service firm a production firm.
A commercial tax preparation firm that prepares and files tax forms
with the Internal Revenue Service is in the business of providing tax-
related services for a fee. The firm simply receives data from its
client and places it into a format acceptable to the government. That
the service may result in the creation of an article, a tax return,
does not make it a production firm. The tax preparation firm is not
selling its customers a tax return; rather, it is selling its expertise
in correctly manipulating the customer's tax data into the proper form.
Similarly, Merrill is in the business of providing financial document
related services for a fee. It receives data from its clients and
reformats it in a form acceptable to the government. The fact that its
services may result in the incidental production of an article, an SEC
filing, does not make Merrill a production firm.
Even if the Plaintiffs did produce an article for purposes of the
Trade Act, they would not be eligible to apply for TAA because there
was neither a shift of production to a qualified country nor increased
imports of articles like or directly competitive with those produced at
the subject facility.
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.
Given the nature of the SEC filings, 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.
Thus, there are no articles which are essentially interchangeable or
[[Page 52347]]
can be adapted to the same use as a Merrill document, and there are no
articles ``like or directly competitive'' with any Merrill ``article.''
Because 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 Department determines that the revised policy articulated in
Lands' End does not affect Plaintiffs' claim and determines that the
subject workers are not eligible to apply for TAA.
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 24th day of August 2006.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. E6-14590 Filed 9-1-06; 8:45 am]
BILLING CODE 4510-30-P
