E6-7935. Capital City Press, Inc., Publication Services Division, Barre, VT; Notice of Revised Determination on Remand

On April 11, 2006, the United States Court of International Trade (USCIT) granted a consent motion for voluntary remand in Former Employees of Capital City Press, Inc. v. U.S. Secretary of Labor, Court No. 06-00081.

On August 31, 2005, a company official filed a petition for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) with the U.S. Department of Labor (Department) on behalf of workers at Capital City Press, Inc., Publication Services Division, Barre, Vermont (subject firm). The company official stated that the subject firm was shifting production of scientific journals and books to the Philippines and India and importing those products from those countries.

The initial investigation revealed that the workers created documents electronically and that the subject firm imported the publications in an electronic format. The Department determined that the workers did not produce an article within the meaning of Section 222 of the Trade Act. The determination was issued on October 21, 2005. On November 9, 2005, the Department's Notice of negative determination was published in the Federal Register (70 FR 68099).

By letters dating November 22, 2005 and December 5, 2005, the subject firm and Local One-L, Graphic Communications Conference, International Brotherhood of Teamsters, (Union), respectively, requested administrative reconsideration of the Department's negative determination regarding eligibility for the subject workers to apply for TAA and ATAA.

The Department's Notice of Dismissal of Application for Reconsideration was issued on January 10, 2006, and published in the Federal Register on January 17, 2006 (71 FR 2566). The Department determined that the electronic nature of the publications created by the workers and brought into the United States by the subject firm barred the subject workers for consideration as production workers.

Since the publication of the Notice of Dismissal of Application for Reconsideration applicable to workers and former workers of the subject firm, the Department has revised its policy to acknowledge that there are tangible and intangible articles and to clarify that the production of intangible articles can be distinguished from the provision of services. Intangible goods that would have been considered articles, for the purposes of the Trade Act, if embodied in a physical medium are now considered to be articles regardless of their method of transfer.

The Department stresses that it will continue to implement the longstanding precedent that firms must produce an article to be certified under the Trade Act. This determination is not altered by the fact the provision of a service may result in the incidental creation of an article. Because the revised policy may have implications beyond this case of which the Department is not fully cognizant, it will be further developed in rulemaking.

Therefore, due to the Department's policy change, the Department requested the voluntary remand to conduct an investigation to determine whether the subject workers are eligible to apply for TAA and ATAA.

Reviewing previously-submitted information through the lens of the revised policy, the Department has determined that, for purposes of the Trade Act, the subject workers are engaged in activity related to the production of an article (scientific journals and books). The Department has also determined that during the relevant period, a significant portion of workers was separated from the subject facility, production shifted abroad, and the subject firm increased its imports of publications following the shift abroad.

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 this case 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 second remand investigation, I determine that a shift in production abroad of publications like or directly competitive to that produced at the subject facilities followed by increased imports contributed to the total or partial separation of a significant number or proportion of workers at the subject facilities. In accordance with the provisions of the Act, I make the following certification:

All workers of Capital City Press, Inc., Publication Services Division, Barre, Vermont, who became totally or partially separated from employment on or after August 31, 2004, 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 12th day of May 2006.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.