E7-2284. Lexmark International, Inc.; Supply Chain Workforce Printing Solutions And Services Division; Lexington, KY; Notice of Revised Determination on Remand

On December 8, 2006, the U.S. Court of International Trade (USCIT) granted the U.S. Department of Labor's motion for a voluntary remand in Former Employees of Lexmark International, Inc. v. United States, Court No. 06-00327.

On February 7, 2006, three workers filed a petition for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) on behalf of workers and former workers of Lexmark International, Inc., Supply Chain Workforce, Printing Solutions and Services Division, Lexington, Kentucky (subject facility). The petitioners stated that the subject facility produced “printers and supplies” and attached an article which stated that Lexmark International, Inc. (Lexmark) planned to move jobs abroad to countries where Lexmark has existing ink cartridge production facilities, including Mexico, China, and the Philippines (“Lexmark benefits from its plans to trim jobs,” Bloomberg News, January 25, 2006).

In the negative determination, the Department stated that the subject workers did not work directly in the manufacture of the products made by Lexmark. The determination also stated that the predominant cause of worker separations was not a shift of production abroad but was Lexmark's decision to position support tasks closer to where Lexmark's manufacturing partners and customers are located worldwide, including Mexico and the Philippines.

The Department's Notice of determination applicable to the subject facility was issued on February 24, 2006. The Department's Notice of determination was published in the Federal Register on March 22, 2006 (71 FR 14550).

On March 25, 2006, a worker requested administrative reconsideration of the Department's determination. In the request for reconsideration, the worker alleged that the subject workers supported the production of ink and printer cartridges produced by Lexmark and inferred that support activities were shifted overseas when production shifted abroad.

The Department issued a Notice of Affirmative Determination Regarding Application for Reconsideration applicable to the subject facility on April 13, 2006. On April 24, 2006, the Department's Notice of determination was published in the Federal Register (71 FR 21042).

During the reconsideration investigation, the Department determined that the subject workers are an integral part of ink and printer cartridge production and are not separately identifiable by product line. However, because the Department was repeatedly informed by the subject firm that neither the subject facility nor Lexmark produced ink or cartridges domestically during the relevant period, the Department determined that the subject workers are not employed by a company covered by the statute and, therefore, are not eligible to apply for TAA because the subject workers were not employed by a firm (or an appropriate subdivision) which produced an article domestically during the relevant period.

The Department's Notice of Negative Determination on Reconsideration applicable to the subject facility was issued on July 19, 2006. The Department's Notice of determination was published in the Federal Register on July 31, 2006.

On September 19, 2006, the Plaintiff filed a complaint with the USCIT. In the complaint, the Plaintiff alleged that the Department's determination was based on the erroneous finding that “Lexmark did not produce ink or cartridges domestically during the twelve-month period prior to the petition date.”

After careful review of the Plaintiff's complaint and the administrative record, prepared in response to the complaint, the Department filed a motion for voluntary remand.

On December 8, 2006, the USCIT granted the Department's motion for voluntary remand to conduct further investigation and to make a redetermination regarding the Plaintiffs' eligibility to apply for worker adjustment assistance (TAA and ATAA).

In order to make an affirmative determination and issue a certification of eligibility to apply for TAA, the group eligibility requirements in either paragraph (a)(2)(A) or (a)(2)(B) of Section 222 of the Trade Act must be met. It is determined in this case that the requirements of (a)(2)(B) of Section 222 have been met.

During the remand investigation, the Department reviewed the administrative record, contacted Plaintiff's counsel, and requested additional information and clarification from Lexmark.

During the remand investigation, the Department obtained new information which revealed that, contrary to information previously-submitted by Lexmark, the subject facility produced ink and that the subject firm shifted ink production from the subject facility to existing foreign inkjet cartridge production facilities, including facilities in Mexico, during the relevant period, and that a significant proportion of the workforce at the subject facility was separated.

In accordance with Section 246 the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department herein presents the results of its investigation regarding certification of eligibility to apply for ATAA for older workers. In order for the Department to issue a certification of eligibility to apply for ATAA, the group eligibility requirements of Section 246 of the Trade Act must be met.

The Department has determined in the case at hand that the requirements of Section 246 have been met.

A significant number of workers at the firm are age 50 or over and possess skills that are not easily transferable. Competitive conditions within the industry are adverse.

Conclusion

After careful review of the facts generated through the remand investigation, I determine that a shift of production to Mexico of articles like or directly competitive with ink produced at the subject facility contributed to the total or partial separation of a significant number or proportion of workers at the subject facility. In accordance with the provisions of the Act, I make the following certification:

All workers of Lexmark International, Inc., Supply Chain Workforce, Printing Solutions and Services Division, Lexington, Kentucky, who became totally or partially separated from employment on or after February 7, 2005, through two years from the issuance of this revised determination, are eligible to apply for Trade Adjustment Assistance under Section 223 of the Trade Act of 1974, and are eligible to apply for Alternative Trade Adjustment Assistance under Section 246 of the Trade Act of 1974, as amended.

Signed at Washington, DC this 5th day of February 2007.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.