DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-56,688

LANDS’ END
A SUBSIDIARY OF SEARS ROEBUCK AND COMPANY
BUSINESS OUTFITTERS CAD OPERATIONS
DODGEVILLE, WISCONSIN


Notice of Revised Determination
On Remand
In an Order issued on December 7, 2005, the United
States Court of International Trade (USCIT) granted the
motion filed by the Department of Labor (Department) for
voluntary remand in Former Employees of Lands’ End Business
Outfitters v. United States Secretary of Labor, Court No.
05-00517.
The Department denied Trade Adjustment Assistance
(TAA) and Alternative Trade Adjustment Assistance (ATAA) to
workers of Lands’ End, a Subsidiary of Sears Roebuck and
Company, Business Outfitters CAD Operations, Dodgeville,
Wisconsin, (Lands’ End) because the workers’ separations
were due to the subject company’s decision to move computer
assisted design operations abroad. The subject worker
group is engaged in computerizing embroidery and logo
designs which are utilized by the production division of
Lands’ End, also located in Dodgeville, Wisconsin. The
Notice of determination was issued on March 25, 2005, and
published in the Federal Register on May 2, 2005 (70 FR
22710).
On June 6, 2005, the Department issued an Affirmative
Determination Regarding Application for Reconsideration for
the workers and former workers of the subject firm. The
Notice of determination was published in the Federal
Register on June 20, 2005 (70 FR 35456). In the request
for reconsideration, the petitioners alleged that workers
produce digitized embroidery designs, that production
shifted overseas, and that imports had increased following
the shift of production abroad.
A negative determination on reconsideration was issued
on July 28, 2005. The Notice of determination was
published in the Federal Register on August 9, 2005 (70 FR
46190). During the reconsideration investigation, the
Department was informed that the workers create digitized
embroidery designs from customers’ logos. The designs are
owned by the customers. The digitized designs are readable
by the embroidery machines at Dodgeville, Wisconsin, and
are embroidered onto clothing and luggage produced by
Lands’ End. Alternatively, the customer may give the
design to another apparel manufacturer for the production
of the logo design on clothing and luggage. The Department
found that the production of digitized embroidery designs
shifted overseas, and that the designs are electronically
returned to Dodgeville, Wisconsin. Because the
Department’s policy required that articles be tangible for
purposes of the Trade Act, it was determined that the
workers did not produce an article and were not covered by
the Trade Act.
Since the issuance of the voluntary remand order, the
Department has revised its policy to acknowledge that, at
least in the context of this case, there are tangible and
intangible articles and to clarify that the production of
intangible articles can be distinguished from the provision
of services. Software and similar intangible goods that
would have been considered articles for the purposes of the
Trade Act if embodied in a physical medium will now be
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 Act. This
determination is not altered by the fact the provision of a
service may result in the incidental creation of an
article. For example, accountants provide services for the
purposes of the Act even though, in the course of providing
those services, they may generate audit reports or similar
financial documents that might be articles on the
Harmonized Tariff Schedule of the United States. Because
the new policy may have ramifications beyond this case of
which the Department is not fully cognizant, the new policy
will be further developed in rulemaking.
Moreover, because it is the Department’s practice to
apply current policy instead of the policy which existed
during the investigative period if doing so is favorable to
the workers, the Department conducted the remand
investigation under the new policy.
After careful review of the facts, the Department has
determined that: the petitioners are former employees of
Land’s End Business Outfitters CAD operations of
Dodgeville, Wisconsin; that the workers’ firm produced an
intangible article (digitized embroidery designs) that
would have been considered an article if embodied in a
physical medium; that employment at the subject facility
declined during the relevant period; that the workers’ firm
shifted digitized embroidery design production abroad; and
that the workers’ firm increased imports of articles like
or directly competitive with the digitized embroidery
designs produced at the subject facility.

In accordance with Section 246 the Trade Act of 1974,
as amended, the Department of Labor herein presents the
results of its investigation regarding certification of
eligibility to apply ATAA.
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.
Additional investigation has determined that the
workers possess skills that are not easily transferable. A
significant number or proportion of the worker group are
age fifty years or over. Competitive conditions within the
industry are adverse.
Conclusion
After careful review of the facts generated through
the remand investigation, I determine that increased
imports of digitized embroidery designs like or directly
competitive with those produced by the subject firm
contributed importantly to the total or partial separation
of a significant number of workers at the subject facility.
In accordance with the provisions of the Act, I make the
following certification:


"All workers of Lands’ End, a Subsidiary of Sears
Roebuck and Company, Business Outfitters CAD
Operations, Dodgeville, Wisconsin, who became
totally or partially separated from employment on or
after March 3, 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 also
eligible to apply for alternative trade adjustment
assistance under Section 246 of the Trade Act of
1974."
Signed at Washington, D.C. this 24th day of March 2006.

/s/ Elliott S. Kushner
_____________________________
ELLIOTT S. KUSHNER
Certifying Officer, Division of
Trade Adjustment Assistance



DEPARTMENT OF LABOR

Employment and Training Administration

TA-W-56,688

LANDS’ END
SUBSIDIARY OF SEARS ROEBUCK AND COMPANY
BUSINESS OUTFITTERS CAD OPERATIONS
DODGEVILLE, WISCONSIN

Negative Determinations Regarding Eligibility
To Apply for Worker Adjustment Assistance
And Alternative Trade Adjustment Assistance

In accordance with Section 223 of the Trade Act of
1974, as amended (19 USC 2273), the Department of Labor
herein presents the results of an investigation regarding
certification of eligibility to apply for worker adjustment
assistance. The group eligibility requirements for
directly-impacted (primary) workers under Section 222(a)
the Trade Act of 1974, as amended, can be satisfied in
either of two ways:
I. Section (a)(2)(A) all of the following must be
satisfied:
A. a significant number or proportion of the workers
in such workers' firm, or an appropriate
subdivision of the firm, have become totally or
partially separated, or are threatened to become
totally or partially separated;
B. the sales or production, or both, of such firm or
subdivision have decreased absolutely; and
C. increased imports of articles like or directly
competitive with articles produced by such firm or
subdivision have contributed importantly to such
workers’ separation or threat of separation and to
the decline in sales or production of such firm or
subdivision; or

II. Section (a)(2)(B) both of the following must be
satisfied:

A. a significant number or proportion of the workers
in such
workers' firm, or an appropriate subdivision of the
firm, have become totally or partially separated,
or are threatened to become totally or partially
separated;
B. there has been a shift in production by such
workers’ firm or subdivision to a foreign country
of articles like or directly competitive with
articles which are produced by such firm or
subdivision; and

C. One of the following must be satisfied:
1. the country to which the workers’ firm has
shifted production of the articles is a party
to a free trade agreement with the United
States;
2. the country to which the workers’ firm has
shifted production of the articles is a
beneficiary country under the Andean Trade
Preference Act, African Growth and Opportunity
Act, or the Caribbean Basin Economic Recovery
Act; or
3. there has been or is likely to be an increase
in imports of articles that are like or
directly competitive with articles which
are or were produced by such firm or
subdivision.

The investigation was initiated on March 4, 2005 in
response to a petition filed on behalf of workers of Lands’
End, a subsidiary of Sears Roebuck and Company, Business
Outfitters CAD Operations, Dodgeville, Wisconsin. The
workers are engaged in computerizing embroidery and logo
designs. The digitalized designs are utilized by the
production division of Lands’ End.
The investigation revealed that criteria
(a)(2)(A)(I.C) and (a)(2)(B)(II.B) have not been met.
The separations of Business Outfitters CAD operation
workers are directly attributable to Lands’ End’s decision
to move the CAD operations abroad. Separations are not the
result of a shift in production of an article to a trade
beneficiary country, or to an increase in imports of
articles as required by the Trade Act.
In addition, in accordance with Section 246 the Trade
Act of 1974 (26 USC 2813), as amended, the Department of
Labor herein presents the results of its investigation
regarding certification of eligibility to apply for
alternative trade adjustment assistance (ATAA) for older
workers.
In order for the Department to issue a certification
of eligibility to apply for ATAA, the worker group must be
certified eligible to apply for trade adjustment assistance
(TAA). Since the workers are denied eligibility to apply
for TAA, the workers cannot be certified eligible for ATAA.
Conclusion
After careful review, I determine that all workers of
Lands’ End, Subsidiary of Sears Roebuck and Company,
Business Outfitters CAD Operations, Dodgeville, Wisconsin
are denied eligibility to apply for adjustment assistance
under Section 223 of the Trade Act of 1974, and are also
denied eligibility to apply for alternative trade adjust-
ment assistance under Section 246 of the Trade Act of 1974.
Signed in Washington, D.C., this 25th day of March 2005.

/s/ Richard Church
_____________________________
_
RICHARD CHURCH
Certifying Officer, Division
of Trade Adjustment
Assistance