E7-8465. Merrill Corporation; St. Paul, MN; Notice of Revised Determination on Remand

On March 28, 2007, 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.

The Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance for workers and former workers of Merrill Corporation, St. Paul, Minnesota (subject firm) was issued on July 2, 2003 and published in the Federal Register on July 22, 2003 (68 FR 43373). The first negative determination on remand was issued on April 2, 2004 and published in the Federal Register on April 16, 2004 (69 FR 20645). The second negative remand determination was issued on November 17, 2005 and published in the Federal Register on December 7, 2005 (70 FR 72857). In these determinations, the Department determined that the workers' electronic creations do not constitute “articles” for purposes of the Trade Act of 1974 (the Act) and that the shift of the workers' functions to India was irrelevant.

On March 24, 2006, the Department revised its policy to recognize tangible and intangible articles and reiterated its policy that workers who produce an article incidental to the provision of a service are not, for the purposes of the Act, engaged in production.

The third negative determination on remand was issued on August 24, 2006 and published in the Federal Register on September 5, 2006 (71 FR 52346). The Department applied the revised article policy to the case at hand and determined that the workers produce electronic documents. The Department concluded, however, that each document was unique, and there were not articles “like or directly competitive” to any document. The Department also determined that the workers' application should be denied because the production of the electronic documents was incidental to the provision of a service.

In its March 28, 2007 opinion, the USCIT disagreed with the Department's policy and the third remand determination, and remanded the matter to the Department.

During the immediate investigation, the Department carefully reviewed the record and has determined that Merrill Corporation has a distinct subdivision producing printed matter sold to Merrill clients and another subdivision that provides services. The Department further determines that the subject worker group is affiliated with both subdivisions. Therefore, the subject worker group made articles not only incidental to the provision of a service.

The Department determines that production of the electronic documents produced by the subject worker group shifted from the subject firm to India and, following the shift, the subject firm increased imports of articles like or directly competitive with those produced by the subject worker group.

Conclusion

After careful review of the facts, I determine that the shift of electronic document production to India followed by increased imports of articles like or directly competitive with those produced at the subject facility contributed to the total or partial separation of a significant number or proportion of workers at the subject facility. I also determine that the electronic documents were not produced solely incidental to the production of an article.

In accordance with the provisions of the Act, I make the following certification:

All workers of Merrill Corporation, St. Paul, Minnesota, who became totally or partially separated from employment on or after June 10, 2002, 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.

Signed at Washington, DC, this 23rd day of April 2007.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.