E6-12192. Gale Group, Inc., A Division of the Thompson Corporation, Belmont, CA; Notice of Revised Determination on Remand

On June 2, 2006, the United States Court of International Trade (USCIT) granted the Department of Labor's motion for voluntary remand for further investigation in Former Employees of Gale Group, Inc. v. U.S. Secretary of Labor, Court No. 04-00374. These workers created electronic documents and performed electronic indexing services and occasionally wrote abstracts of articles.

On May 20, 2004, the Department of Labor (Department) issued a negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA) for workers of Gale Group, A Division of the Thompson Corporation, Belmont, California (Gale Group). The negative determination was based on the investigation's finding that the workers did not produce an article in accordance with Section 222 of the Trade Act of 1974 (Trade Act). The Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance for the subject firm was published in the Federal Register on June 17, 2004 (69 FR 33940).

In response to the petitioner's request for administrative reconsideration, the Department affirmed its finding that the subject workers did not produce an article within the meaning of the Trade Act. The Department's Dismissal of Application for Reconsideration was issued on July 16, 2004 and the Notice of Dismissal of Application for Reconsideration was published in the Federal Register on July 23, 2004 (69 FR 44064).

The petitioners appealed the denial to the USCIT. The Department made a motion for voluntary remand for further investigation. The CIT granted the Department's motion in an October 25, 2004 Order. In response to that Order, the Department conducted a further investigation to determine whether the petitioners were eligible to apply for TAA. On January 27, 2005, the Department affirmed its conclusion that the workers did not produce an article within the meaning of the Trade Act. The Department's Notice was published in the Federal Register on February 8, 2005 (70 FR 6732).

The CIT subsequently ruled that the Department's denial of TAA certification because the plaintiffs did not produce an “article” was reasonable and supported by substantial evidence. The petitioners appealed to the United States Court of Appeals for the Federal Circuit.

After the case reached the Court of Appeals the Department revised its policy to acknowledge that there are tangible and intangible articles. Products that would have been considered an article if embodied in a physical medium will now be considered an article for purposes of the Trade Act even if transmitted or stored electronically. Because it is the Department's practice to apply a new policy if doing so is in the best interest of the workers, the Department requested a voluntary remand from the Court of Appeals to determine whether, under the new policy, the petitioners are eligible to apply for TAA. The Court of Appeals remanded the case to the CIT which remanded it to the Department.

Upon review, the Department has determined that the subject workers produce an intangible article (electronic documents) and that, following the shift of production abroad, documents like or directly competitive with those produced at the subject firm were brought back into the United States.

Conclusion

After careful review of the facts generated through the remand investigation, I determine that a shift in production abroad of electronic documents like or directly competitive to that produced at the subject facility 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 Gale Group, A Division of the Thompson Corporation, Belmont, California, who became totally or partially separated from employment on or after February 23, 2003, 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 19th day of July 2006.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.