Merrill Corporation, St. Paul, MN; Notice of Negative Determination on Reconsideration on Remand

The United States Court of International Trade (USCIT) granted the Secretary of Labor's motion for a voluntary remand for further investigation in Former Employees of Merrill Corporation v. Elaine Chao, U.S. Secretary of Labor, Court No. 03-00662.

The Department's initial negative determination for the workers of Merrill Corporation (hereafter “Merrill”) was issued on July 22, 2003. The notice was published in the Federal Register on July 10, 2003 (68 FR 43373). The determination was based on the finding that workers did not produce an article within the meaning of section 222 of the Trade Act of 1974. The Department determined that the subject worker group was not engaged in the production of an article, but rather engaged in activities related to document management services.

On September 9, 2003, the petitioner applied to the U.S. Court of International Trade for administrative reconsideration, asserting that the subject firm produces an article (documents) and that the workers are engaged in this production.

The petitioner asserted that “[t]ypesetting is an industry that uses raw material (text data) to produce a finished product of economic value”; that workers received text files containing raw data which were sent electronically or in printed form (which had to be converted to an electronic format) and “typeset the information into an electronic format”; and that the file was sent to be printed and/or filed electronically with the Securities Exchange Commission (SEC).

On remand, the Department conducted an investigation to determine whether the company produces an article. In the investigation, the Department reviewed previously-submitted information and requested additional information from the petitioner and the company regarding the functions of the subject worker group and the operations of the company.

The remand investigation revealed that the subject company does not produce an “article” within the meaning of the Trade Act of 1974. The nature of the company is service-oriented.

Merrill describes itself as a “communication and document services company providing printing, photocopying and document management services to the financial, legal, and corporate markets. Merrill's services integrate traditional composition, imaging and printing services with online document management and distribution technology for the preparation and distribution of * * * materials.” (Administrative Record, page 12)

A company official reiterated that “Merrill helps clients to prepare required disclosure documents required by the Securities and Exchange Commission (SEC).” (Supplemental Administrative Record, page 10)

Merrill helps its clients prepare and electronically file disclosure documents required by the SEC, such as prospectuses, annual reports and proxy statements. While the documents are valuable as financial records and references, they have no intrinsic value beyond the value of the materials upon which they are recorded (the paper, CD-Rom, floppy disk, etc.) and merely state the economic conditions or status of a company.

The petitioner's submission states that clients submit text files either electronically or in printed form to Merrill's customer service, and that Merrill would either send the electronic files to the typesetters or convert the printed files into electronic files before sending them to the typesetters. If typesetters receive an unconverted file, they would use proprietary computer applications to convert the file to a form compatible to the program used to manipulate the information into the appropriate format to meet clients' needs and the SEC's filing specifications.

The company's submission is similar to the petitioner's, but supports the position that no article is produced.

According to the company, clients send their documents to Customer Service Group offices which are located throughout the United States and the United Kingdom. The documents are either in electronic or paper form. The Customer Service Group offices then send the documents to the Typesetting Center in St. Paul, Minnesota. The documents may be sent electronically or in print form (and later converted into an electronic format). At the Typesetting Center, typesetters use proprietary software to type, edit and format documents to satisfy client needs and meet the SEC's specifications. Proofreaders audit the documents for accuracy before the documents are filed electronically with the SEC. If a client requests a printed copy of the document, a Customer Services Group office will arrange for the printing.

Throughout the Trade Act, an article is often referenced as something that has a value that makes it marketable, fungible and interchangeable for commercial purposes. The SEC filings are public records and the documents are not sold or marketed individually or as a component to an article.

Because the documents have no commercial value and the company is a service provider, the workers do not produce an article.

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.