[Federal Register Volume 68, Number 175 (Wednesday, September 10, 2003)]
[Notices]
[Pages 53395-53397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23000]


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DEPARTMENT OF LABOR

Employment and Training Administration

[TA-W-50,588]


Murray Engineering, Inc. Complete Design Service, Flint, MI; 
Notice of Negative Determination 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 Murray Engineering, Inc. v. U.S. 
Secretary of Labor, No. 03-00219.
    On February 5, 2003, the Department of Labor (Department) issued a 
negative determination regarding eligibility to apply for Trade 
Adjustment Assistance (TAA) for the workers of Murray Engineering, 
Inc., Complete Design Service, Flint, Michigan (hereafter referred to 
as Murray Engineering). The determination was based on the 
investigation's finding that the workers' firm provided industrial 
design and engineering services and did not produce an article in 
accordance with Section 222 of the Trade Act of 1974. On February 24, 
2003, the Notice of Negative Determination Regarding Eligibility to 
Apply for Worker Adjustment Assistance for Murray Engineering, Inc., 
Complete Design Service, Flint, Michigan was published in the Federal 
Register (68 FR 8620).
    The initial TAA investigation showed that workers at Murray 
Engineering supplied design and engineering solutions for general 
manufacturing industries. Workers of Murray Engineering drafted designs 
and drawings, which were then sent to customers either copied on to a 
computer disk or CD-Rom, printed out on paper, or electronically. The 
investigation also revealed that workers of Murray Engineering did not 
supply components to either a TAA-certified company or an affiliate of 
a TAA-certified company.
    In a letter dated February 19, 2003, the petitioner requested 
administrative reconsideration of the Department's negative 
determination. The Department

[[Page 53396]]

affirmed its finding that the workers of Murray Engineering were not 
eligible to apply for TAA on the basis that they did not produce a 
product within the meaning of Section 222 of the Trade Act. 
Accordingly, the Department issued a Notice of Negative Determination 
Regarding Application for Reconsideration on March 31, 2003. The Notice 
was published in the Federal Register on April 15, 2003 (68 FR 18264).
    In the request for reconsideration, the petitioner made three 
assertions: (1) That the workers produced a product; (2) that the 
Department may have been misled by part of the company's name, 
``Complete Design Service,'' thinking that the company did not produce 
a product; and (3) that the Department prematurely concluded the 
workers were service workers because of the company's name.
    In the reconsideration investigation, the Department reviewed the 
description of the design services provided by the subject firm and 
determined that, regardless of the mode of conveyance, engineering 
drawings and schematics prepared by subject firm were services, and not 
considered production within the meaning of the Trade Act. A review by 
the Department of the initial investigation and the subsequent 
reconsideration investigation revealed that no conclusion was drawn 
based on the company's name. Further, the Department did not rely on 
the company's name during this voluntary remand investigation.
    On April 30, 2003, the petitioner filed a Notice of Appeal in the 
Court of International Trade. The Department's motion for Voluntary 
Remand was granted on June 25, 2003.
    On August 1, 2003, plaintiff's counsel sent the Department a letter 
containing arguments for certification. This letter makes two 
assertions: (1) The Department wrongly determined that the workers of 
Murray Engineering did not produce an article, and (2) even if the 
Department was correct in its determination that designs are not an 
article, the workers of Murray Engineering are adversely affected 
secondary workers and, as such, are eligible to apply for trade 
adjustment assistance.
    The first issue is whether the workers of Murray Engineering 
produce an article.
    Plaintiff's August 1, 2003 letter relies on Nagy v. Donovan, 6 Ct. 
Int'l Trade 141, 145, 571 F. Supp. 1261, 1264 (Ct. Int'l Trade 1983), 
to support the position that the designs are articles. Nagy held, among 
other things, that workers who either create or manufacture a tangible 
commodity or transform a thing into a new or different thing produce an 
article. The letter asserts that the designs can be reproduced on paper 
and, therefore, are a tangible commodity. The letter further asserts 
that without the designs, the customer could not produce the machines 
that make the tools, and, therefore, the designs are ``part and 
parcel'' of the machines and sometimes incorporated into the body of 
the machines when the operating instructions are mounted into the 
machine or fixture.
    In its remand investigation, the Department contacted Murray 
Engineering company officials and issued a detailed information request 
seeking new information as well as clarification of previously 
submitted information. The main purpose of this review was to ascertain 
whether the work performed by the petitioning worker group should be 
construed as production or service.
    Information supplied by the company on remand indicates that 
Complete Design Service does industrial design for general 
manufacturing industries, applying design & engineering solutions 
through AutoCAD and Unigraphics by designing intricate custom drawings 
that are customized to customer specifications. These custom drawings 
are delivered to the customer by any or all of the following: (a) 
Printed drawing on paper, (b) CD or computer diskette, (c) electronic 
mail.
    The customer contacts Complete Design Service with the purchase 
order and instructions of the job to be done. An employee is assigned 
to the job and is given all of the pertinent information for the job. 
The employee then begins the design, in AutoCAD or Unigraphics 
(computer design programs). Periodically throughout the design process, 
the customer reviews the design-in-progress to assess whether 
modifications are necessary. When the design is 100% completed, it is 
saved on the subject firm's network and given to the customer in their 
required format (e.g., plotted on paper, on CD or diskette, or e-
mailed). The company further states that the customer could not build 
their products without these designs. The customer pays for the custom 
designs either by the design or on an hourly basis.
    The Department traditionally has deemed designs of any type 
generated by computer as a service. Electronically generated 
engineering designs, drawings, and schematics are not tangible 
commodities. This is supported by the fact that they are not marketable 
products listed on the Harmonized Tariff Schedule of the United States 
(HTS), published by the United States International Trade Commission 
(USITC), Office of Tariff Affairs and Trade Agreements, which describes 
all articles imported to or exported from the United States.
    However, if workers draft designs by hand, the drawings they 
produce are classified under HTS number 4906.00.00.00 (``Plans and 
drawings for architectural, engineering, industrial, commercial, 
topographical or similar purposes, being originals drawn by hand; 
handwritten text; photographic reproduction on a sensitized paper and 
carbon copies of the forgoing''). Workers of the subject firm clearly 
do not fall into this classification, because they produced all designs 
electronically. That the HTS referenced here is updated periodically 
and was last published in 2003 supports that the USITC continues to 
distinguish electronic designs from designs by hand.
    Further support that Murray Engineering workers did not produce an 
article is found in examining what items are subject to a duty. 
Throughout the Trade Act, an article is often referenced as something 
that can be subject to a duty. To be subject to a duty on a tariff 
schedule, an article will have a value that makes it marketable, 
fungible, and interchangeable for commercial purposes.
    However, although a wide variety of tangible products are described 
as articles and characterized as dutiable in the HTS, informational and 
design products that historically could be sent in letter form and that 
currently can be electronically transmitted are not listed in the HTS. 
Such items are not the type of work products that customs officials 
inspect and that the Trade Adjustment Assistance program was generally 
designed to address. Further, informal discussions in the past with 
several USITC analysts clarified those factors that were used to 
classify design and drawing work as service instead of production. The 
USITC industry analysts identified designs as services because the 
value of the intellectual service is greater than the cost of the 
materials used to store or transfer it. The analysts also stated that 
tariffs are based on the cost of the media (such as paper, CD, or 
computer disk) and not on the value of the service.
    In addition, the 2002 edition of the North American Industrial 
Classification System (NAICS), a standard used by the Department to 
categorize products and services, designates ``establishments primarily 
engaged in drawing detailed layouts,

[[Page 53397]]

plans, and illustrations of * * * components from engineering * * * 
specifications'' as ``drafting services'' (NAICS 541340). Another code 
that describes ``engineering in the design, development, and 
utilization of machines'' (emphasis added) is classified within a code 
that signifies services (specifically, NAICS 541330).
    Workers of Murray Engineering neither make a product nor transform 
an existing product into something new and different. The Department 
thoroughly investigated and could not find any evidence that workers of 
Murray Engineering produced any articles or that the petitioners 
transformed anything into something new and different; to the contrary, 
the evidence cited above supports a conclusion that the Murray workers 
did not produce an article. Consequently, they are not eligible for 
certification as production workers.
    The second issue is whether the workers of Murray Engineering are 
adversely-affected secondary workers.
    In the August 1, 2003 letter to the Department, the plaintiff 
asserts that: (1) Murray Engineering was a supplier of designs to a 
TAA-certified company (Lamb Technicon, Machining Systems, Warren, 
Michigan) and that such supply is related to the article that was the 
basis for certification (automated metal removal equipment, transfer 
lines, and dial transfers); and (2) Lamb Technicon accounted for at 
least twenty percent of Murray Engineering's production or sales or 
otherwise must have contributed importantly to the workers' 
separations. These assertions appear to be provided in an attempt to 
show that the subject firm workers should be certified as eligible to 
apply for TAA on the basis of serving as secondary upstream suppliers.
    In order to be eligible as secondary suppliers, the petitioning 
worker group must have produced a component part of the product that is 
the basis of the TAA certification. Because Murray Engineering did not 
produce a component part of the automated metal removal equipment 
produced by Lamb Technicon, they were not secondary suppliers of a TAA-
certified facility, as required by the relevant TAA legislation. Even 
if, as plaintiff asserts, the subject firm workers' design 
specifications were sometimes mounted or affixed on their customers' 
manufacturing equipment, such mounting or affixment were not necessary 
for the equipment to function properly and, thus, were not component 
parts.
    Further, the subject firm's business with Lamb Technicon ceased 
prior to the beginning of the investigative period. The subject firm 
workers' petition was dated January 15, 2003 and instituted on January 
16, 2003. Therefore, the relevant investigative period is 2001 and 
2002. However, according to the subject firm official, Murray 
Engineering did no business with Lamb Technicon after 1999. Therefore, 
Lamb Technicon did not account for at least twenty percent of Murray 
Engineering's production or sales, nor did loss of business with this 
customer contribute importantly to the subject firm, during the 
relevant period.
    Finally, the petitioner argues that Complete Design Service did the 
same work as Lamb Technicon and, thus, should be certified for TAA. The 
workers of Lamb Technicon were certified (TA-W-40,267 & TA-W-40,267A) 
based on the fact that the workers were engaged in employment related 
to the production of articles (automated metal removal equipment, 
transfer lines, and dial transfers). Any workers who may have been 
engaged in design and engineering solutions at Lamb Technicon were 
included in the certification because their separation was caused 
importantly by a reduced demand for their services due to a decline in 
manufacturing by their subject firm, or a parent firm, or a firm 
otherwise related to their firm by ownership or control. Additionally, 
the reduction in demand for services must originate at a production 
facility whose workers independently meet the statutory criteria for 
certification, and the reduction must directly relate to the product 
impacted by imports. These conditions in meeting the TAA eligibility 
requirements were met for workers in support activities at Lamb 
Technicon. However, workers at Murray Engineering, Inc., Complete 
Design Center, Flint, Michigan do not meet these criteria and, thus, 
may not be certified based on Lamb Technicon's workers' certification.

Conclusion

    Under section 222 of the Act, what is relevant to determining 
whether a worker group is eligible for TAA certification is whether the 
workers' firm or an appropriate subdivision of the workers' firm 
produced an article.
    The workers' firm in this case is Murray Engineering, Complete 
Design Service, Flint, Michigan. The evidence clearly establishes that 
Murray Engineering does not produce, directly or through an appropriate 
subdivision, an article within the meaning of the Trade Act. Once the 
Department concludes that the workers' employer was not a firm that 
produced an article, it must conclude that the workers are not eligible 
for assistance. Because the petitioners are employees of a firm or 
subdivision that does not produce an article within the meaning of the 
Trade Act, they are not eligible for certification.
    As the result of the findings of the investigation on voluntary 
remand, I affirm the original notice of negative determination of 
eligibility to apply for adjustment assistance for workers and former 
workers of Murray Engineering, Complete Design Service, Flint, 
Michigan.

    Signed at Washington, DC this 20th day of August, 2003.
Elliott S. Kushner,
Certifying Officer, Division of Trade Adjustment Assistance.
[FR Doc. 03-23000 Filed 9-9-03; 8:45 am]
BILLING CODE 4510-30-P