[Federal Register Volume 60, Number 10 (Tuesday, January 17, 1995)]
[Proposed Rules]
[Pages 3472-3482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-911]




[[Page 3471]]

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Part IV





Department of Labor





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Employment and Training Administration



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20 CFR Part 617



Trade Adjustment Assistance for Workers; Amendment of Regulations; 
Proposed Rule

  Federal Register / Vol. 60, No. 10 / Tuesday, January 17, 1995 / 
Proposed Rules   
[[Page 3472]] 

DEPARTMENT OF LABOR

Employment and Training Administration
RIN 1205-AB07


Trade Adjustment Assistance for Workers; Amendment of Regulations

AGENCY: Employment and Training Administration, Labor.

ACTION: Proposed rule.

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SUMMARY: The Department of Labor proposes to amend the regulations on 
the trade adjustment assistance program for workers. The proposal would 
implement amendments to the Trade Act of 1974 made by Title V of the 
North American Free Trade Agreement Implementation Act, enacted 
December 8, 1993, and would provide uniform rules for States and State 
agencies in carrying out their responsibilities under the Trade Act. 
The proposed rule would affect workers in firms who are separated from 
employment because of increased imports from Mexico or Canada of 
articles like or directly competitive with articles produced by the 
workers' firm or because of the shift in production of such articles to 
Mexico or Canada. It would also impact State agencies that serve as 
agents of the United States, through written agreements with the 
Secretary of Labor, in providing trade adjustment assistance to 
adversely impacted workers.

DATES: Written comments on this proposed rule must be received in the 
Department on or before March 20, 1995.

ADDRESSES: Written comments may be mailed or delivered to the Office of 
Trade Adjustment Assistance, Employment and Training Administration, 
200 Constitution Avenue NW., Room C-4318, Washington, DC 20210.
    All comments received will be available for public inspection 
during normal business hours in Room C-4318 at the above address.

FOR FURTHER INFORMATION CONTACT: Victor J. Trunzo, Program Manager, 
Office of Trade Adjustment Assistance, Employment and Training 
Administration, 200 Constitution Avenue NW., Washington, DC 20210. 
Telephone: (202) 219-5555 (this is not a toll free number). Copies of 
this proposed rule are available in alternative formats for persons 
with disabilities. They may be obtained at the above office.

SUPPLEMENTARY INFORMATION: Pursuant to Chapter 2 of Title II of the 
Trade Act of 1974, when a petition for trade adjustment assistance 
(TAA) is submitted to the Department of Labor (the Department) by a 
group of workers or its authorized representative, a factfinding 
investigation is conducted. If the findings substantiate that the 
workers of a firm or subdivision of a firm have been adversely affected 
by import competition, a certification of eligibility is issued by the 
Department stating that the workers are eligible to apply for TAA 
benefits and services at a local office of a State employment security 
agency. TAA benefits and services include training, job search 
allowances, relocation allowances, trade readjustment allowances (TRA) 
and other reemployment services.
    This proposed rule would implement amendments to Chapter 2, Title 
II, of the Trade Act made by Title V--NAFTA Transitional Adjustment 
Assistance and Other Provisions--of the North American Free Trade 
Agreement (NAFTA) Implementation Act (Pub. L. 103-182). The amendments 
in Title V made a significant change to Chapter 2, Title II, by adding 
a new TAA program for workers whose employment is adversely affected 
because of NAFTA. This program assists workers who have been adversely 
affected as a result of increased imports from Mexico or Canada of 
articles like or directly competitive with articles produced by the 
workers' firm or because of the shift in production of articles by the 
firm to Mexico or Canada.
    The Title V amendments: (1) Add a new Subchapter D in Chapter 2, 
Title II, of the Trade Act entitled: ``Establishment of a Transitional 
Program''; (2) set out separate criteria for certifying a worker group 
for NAFTA transitional adjustment assistance (NAFTA-TAA); (3) institute 
procedures for filing and processing NAFTA-TAA petitions by having 
petitions filed with the Governor in the State where the workers' firm 
is located; (4) establish time frames for Governors and the Secretary 
of Labor to process NAFTA-TAA petitions; (5) provide for the review of 
a petition under the regular TAA program when denied certification 
under the NAFTA-TAA group eligibility requirements; (6) provide that 
workers covered by a NAFTA-TAA certification are eligible, with 
specified exceptions, for benefits and services in the same manner and 
to the same extent as workers certified under the regular TAA program; 
(7) require workers certified for NAFTA-TAA to be enrolled in training 
within a prescribed time period to qualify for TRA; (8) eliminate the 
waiver of the training requirement as a condition for TRA eligibility 
for workers certified under the NAFTA-TAA program; (9) require States 
to provide rapid response and basic readjustment services to workers 
under Title III of the Job Training Partnership Act (JTPA) when the 
Governor preliminarily finds the workers to be adversely affected by 
increased imports from, or the shift of production to, Canada or 
Mexico; (10) provide that no worker may receive assistance relating to 
a separation under both the regular TAA and NAFTA-TAA programs; and 
(11) make other conforming changes.
    This proposed rule relates only to those provisions of Title V of 
the NAFTA Implementation Act affecting the TAA program. Most of the 
provisions of Title V are in the form of amendments to Chapter 2 of 
Title II of the Trade Act of 1974. While some of the provisions of 
Title V are not in the form of amendments to the Trade Act, they 
nonetheless must be given effect in implementing the NAFTA-TAA program.
    While the NAFTA-TAA program is generally similar to the regular TAA 
program, it does differ in several ways. Under the NAFTA-TAA program, 
Governors have been given the specific role of making a preliminary 
finding in response to all petitions filed by worker groups of firms in 
the State. State agencies administering the TAA program have also been 
given new program responsibilities. Workers who have been certified as 
eligible to receive NAFTA-TAA are required to be enrolled in training 
within a prescribed time period to qualify for TRA payments. Waiver of 
the training requirement as a condition for TRA eligibility, which is 
now available to eligible workers in the regular TAA program, is not 
available to workers certified for NAFTA-TAA.

Section by Section Discussion

Section 617.1  Scope

    Section 617.1 would be revised to expand the scope of part 617 to 
include the NAFTA-TAA program. Since there are differences between the 
original TAA program and the NAFTA-TAA program, the original program 
will be referred to as the ``regular TAA program'' in subpart H and in 
several sections of the regulations revised by this rulemaking. 
However, all the regulations that use the term ``TAA program'' in part 
617 would not be revised. Therefore, where this term is used in 
subparts A through G, it would ordinarily apply to both programs. Other 
technical changes would be made to this section to better reflect the 
[[Page 3473]] services and benefits available to adversely affected 
workers under both programs.

Section 617.2  Purpose

    The purpose section would be revised by adding that an objective of 
the trade adjustment assistance program is to assist workers separated 
from employment because of increased imports from Mexico or Canada or 
by a shift in production by the workers' firm to Mexico or Canada. The 
revised provision would make specific reference to the new NAFTA-TAA 
program.

Section 617.3  Definitions

    The definitions in paragraphs (j)(1) Certification, (mm) Trade 
adjustment assistance (TAA) and (nn) Trade readjustment allowance (TRA) 
of Sec. 617.3 would be revised to bring them in accord with the 
provisions of proposed subpart H governing the NAFTA-TAA program.
    The definition for Certification would be revised by removing the 
clause ``under section 223'' and thereby expanding the scope to include 
all certifications issued under the Act, including those related to the 
NAFTA-TAA program. The revised definition would state that 
Certification means a certification of eligibility to apply for TAA 
issued under the Act with respect to a specified group of workers of a 
firm or appropriate subdivision of a firm.
    The definition for Trade adjustment assistance (TAA) would be 
revised to include references to both the regular TAA program and the 
NAFTA-TAA program. The revised definition would state that Trade 
adjustment assistance (TAA) means the services and allowances provided 
for achieving reemployment of adversely affected workers under both the 
regular TAA and NAFTA-TAA programs, including TRA, training, job search 
allowances, relocation allowances, and other reemployment services.
    The present definition for Trade readjustment allowance (TRA) would 
be revised by removing the clause ``under subpart B,'' thereby 
expanding the definition to include TRA payable to all eligible workers 
under part 617, including those under the NAFTA-TAA program. The 
revised definition would state that Trade readjustment allowance (TRA) 
means a weekly allowance payable to an adversely affected worker with 
respect to such worker's unemployment under part 617.

Section 617.4  Benefit Information to Workers

    This section would be amended to require State agencies to ensure 
that their staffs are familiar with the NAFTA-TAA and the regular TAA 
programs, and the procedures for filing petitions under each program. 
According to existing Sec. 617.4, the staff must inform workers 
applying for employment services and unemployment insurance benefits 
about the regular TAA program. Paragraph (a) of Sec. 617.4 would be 
revised by deleting specific references to subparts B through E and 
section 223 of the Act, to make it applicable to certifications of 
eligibility for the NAFTA-TAA as well as the regular TAA program.
    For the same reasons, paragraph (c) of Sec. 617.4 would be revised 
by deleting the reference to section 223 of the Act; paragraph (i) of 
Sec. 617.4(d)(1) would be revised by deleting the reference to subparts 
B through E and section 223 of the Act; and paragraphs (1),(2), and (3) 
of Sec. 617.4(e) would be revised by deleting any references to subpart 
B and section 221 of the Act. Further, paragraph (e)(3) would be 
revised to clarify the references to time periods for enrollment in 
training in order to qualify for TRA under either TAA program.

Section 617.10  Application for TRA

    Paragraph (b) of Sec. 617.10, would be divided into two 
subparagraphs. The present paragraph (b) concerning timing of 
applications under the regular TAA program would be retained as 
paragraph (1) of Sec. 617.10(b) and would specifically state that it 
applies only to applications for TRA under the regular TAA program.
    Paragraph (b)(2), concerning the timing of applications under the 
NAFTA-TAA program, would state that for purposes of the NAFTA-TAA 
program, eligibility for TRA is conditional upon enrollment in an 
approved training program as required by Sec. 617.78(b). The 
requirements of this provision are explained in the discussion of 
Sec. 617.78 later in this pre-amble. The good cause provision in 
paragraph (b)(1) would not be repeated in this paragraph because the 
Act provides for specific time periods for enrollment in training that 
must be met in order to qualify for TRA.

Subpart H--NAFTA Transitional Adjustment Assistance

    Subpart H, entitled NAFTA Transitional Adjustment Assistance, would 
be added to part 617. This subpart would include the rules for 
implementing the NAFTA-TAA program. Subpart H would contain provisions 
that address the certification process, eligibility for program 
benefits and services, and other administrative provisions related to 
the NAFTA-TAA program.

Section 617.70 Definitions

    This section would include the definitions applicable to the 
Governor's responsibilities for factfinding and making a preliminary 
finding in response to petitions for certification of eligibility under 
the NAFTA-TAA program and for administering this program. The proposed 
definitions are arranged in alphabetical order and, although primarily 
used in subpart H, are applicable to all of part 617.
    The proposed definitions for Appropriate subdivision, Firm, 
Increased imports, Like or directly competitive, and Significant number 
or proportion of workers, are the same as the definitions of those 
terms in 29 CFR 90.2 which address the Department's processing of 
petitions under the regular TAA program. Therefore, they are not 
discussed further in this preamble. Use of these terms would provide 
consistency in their application in both the regular TAA and the NAFTA-
TAA programs.
    The definition of Contributed importantly is taken from paragraph 
(2) of section 250(a) of the Trade Act. This is the same definition in 
section 222(b)(1) of the Trade Act for the regular TAA program. It also 
is identical with 29 CFR 90.16(b)(3) regarding determinations and 
certifications of eligibility to apply for adjustment assistance under 
the regular TAA program.
    The term Governor would be defined as the chief elected executive 
branch official of the States of the United States, the District of 
Columbia, and the Commonwealth of Puerto Rico. This definition 
identifies the official responsible for receiving and making a 
preliminary finding upon petitions in all the jurisdictions within the 
NAFTA-TAA program.
    The definitions of NAFTA-TAA and regular TAA programs are included 
in order to differentiate between the special TAA program for NAFTA-
affected workers in subpart H and the regular TAA program.
    A definition for the Office of Trade Adjustment Assistance (OTAA) 
is included in the proposal to identify the organization within the 
Department of Labor responsible for the administration of the trade 
adjustment assistance programs for workers. This is the office that 
State officials work with in order to administer the NAFTA-TAA program. 
The delegation to OTAA to act on behalf of the Secretary is derived 
from Secretary's Order No. 3-81 (46 FR [[Page 3474]] 31117), which was 
issued on June 1, 1981.
    A definition for Shift in production is included in the proposed 
rule since the NAFTA-TAA program permits the certification of workers 
based solely on a shift in production while the regular TAA program 
does not have a similar provision. This definition states that the term 
means a change, by the workers' firm or appropriate subdivision, in the 
location of the production of an article that was formerly produced in 
the U.S. by the workers' firm or appropriate subdivision to a producing 
plant located in Mexico or Canada, or a contract or license by the firm 
producing the article in the U.S. to have a firm produce that article 
in Mexico or Canada.

Section 617.71  Group Eligibility Requirements

    Paragraph (a) of this section would set forth the group eligibility 
requirements for a worker group to be certified under the NAFTA-TAA 
program. This section is substantially identical to paragraph (a) of 
section 250 of the Trade Act. It would provide that a group of workers 
(including workers in any agricultural firm or subdivision) will be 
certified as eligible to apply for adjustment assistance under the 
NAFTA-TAA program if the Secretary determines that a significant number 
or proportion of the workers have become totally or partially 
separated, or are threatened to become totally or partially separated 
as a result of increased imports from, or a shift in production to, 
Mexico or Canada.
    In order for the worker group to be eligible for certification, the 
investigation of the petition must substantiate that: (1) The sales or 
production, or both, of such firm or subdivision have decreased 
absolutely; (2) imports from Mexico or Canada of articles like or 
directly competitive with articles produced by such firm or subdivision 
have increased; and (3) the increase in imports contributed importantly 
to the workers' separation or threat of separation and to the decline 
in sales or production of such firm or subdivision.
    Alternatively, workers may be certified under the NAFTA-TAA program 
when it can be substantiated that, in addition to worker separations, 
there has been a shift in production by such workers' firm or 
appropriate subdivision to Mexico or Canada of articles like or 
directly competitive with articles that are produced by the firm or 
appropriate subdivision. The article must have been formerly produced 
by a U.S. located firm or appropriate subdivision of the firm and now 
be produced in Mexico or Canada. A shift in production may occur either 
by the firm or subdivision moving production of the article to Mexico 
or Canada, or the U.S. located firm contracting or licensing for 
production of an article with a firm located in Mexico or Canada.
    These provisions are generally similar to the group eligibility 
provisions used in the regular TAA program except that they focus on 
imports from Mexico or Canada. A significant variation is the provision 
for certification of a worker group when the firm shifts production to 
Mexico or Canada, a factor not relevant in the regular TAA program.
    Paragraph (b) would state that workers of a firm or subdivision of 
the firm that provide a service rather than produce an article would 
not qualify for NAFTA-TAA. This limitation is consistent with the 
regular TAA program. This provision is based on the requirement in the 
Trade Act that eligibility must be based on increased imports or shifts 
in production of like or directly competitive ``articles.''
    It is the Department's policy that workers of a firm that 
manufactures and supplies component parts to a separate firm, in which 
the workers of such firm have been certified under the NAFTA-TAA 
program, may only be covered by a certification of eligibility if the 
workers producing the component parts independently meet the 
eligibility criteria for certification. This is also consistent with 
the certification provisions of the regular TAA program. However, 
workers who were employed by such firms may be eligible for 
reemployment services and assistance under Title III of the Job 
Training Partnership Act (JTPA).

Section 617.72  Filing Petitions

    This proposed section sets out provisions for filing a NAFTA-TAA 
petition. Paragraph (a) would require that a petition be filed with the 
Governor of the State in which the manufacturing facility is located. 
It would also require that the petition be filed by a group of three or 
more workers of a firm (including any agricultural firm or subdivision 
of an agriculture firm) or by an official of a certified or recognized 
union or by any other duly authorized representative of the workers. An 
official of the firm from which the adversely affected workers were 
separated or are threatened to be separated may serve as the duly 
authorized representative for the purpose of filing a petition, as may 
a community-based organization.
    This provision would also provide that Form ETA-9042, OMB Control 
number 1205-0338, Petition for NAFTA Transitional Adjustment 
Assistance, be used by workers or their authorized representative to 
petition under the NAFTA-TAA program. The form number is included to 
ensure that workers submit the correct form to the Governor.
    Paragraph (b) would require States to make copies of the NAFTA-TAA 
petition form available in every local employment service and 
unemployment insurance office. Petition forms would also be made 
available at offices of cooperating agencies. Such agencies could 
include JTPA program offices, but this could vary depending on the 
State.
    For purposes of clarification, it should be noted that, pursuant to 
29 CFR 90.11(c), worker petitions under the regular TAA program will 
continue to be submitted on Form ETA-8560, Petition for Trade 
Adjustment Assistance, directly to the Department's Office of Trade 
Adjustment Assistance, at the address on the reverse side of the form.

Section 617.73  Finding and Assistance

    This proposed section addresses the role of the Governor, the 
procedures to be used by the State in processing petitions under the 
NAFTA-TAA program, and the time frame for issuing a preliminary finding 
in response to petitions.
    Paragraph (a) would set out the procedures and actions that must be 
taken by the Governor within 10 days. This 10-day requirement is 
derived from section 250(b)(2)(B) of the Act. Various provisions would 
set out the Governor's role, as well as the time frames for processing 
NAFTA-TAA petitions. Because of these time frames, specific processing 
procedures have been incorporated into the proposal. One provision 
would require the Governor to initiate factfinding in response to each 
petition.
    Also included would be provisions that address the information to 
be obtained from the company official identified on the petition as the 
contact person. Accuracy in identifying the articles produced by the 
firm is critical in determining whether imports of like or directly 
competitive articles have increased.
    Paragraph (a) would also include requirements for transmitting data 
request forms, notifying the State employment security agency and other 
cooperating agencies that a NAFTA-TAA petition has been received and 
that factfinding on a petition is underway, and transmitting to the 
OTAA the face page of the petition form with any changes obtained from 
the company [[Page 3475]] official. Receipt of the face sheet by OTAA 
would serve as notification to the Secretary that the Governor has 
received a petition and that factfinding has been initiated. Data on 
imports from Canada and Mexico would be prepared by OTAA and furnished 
to the State. The import data provided by OTAA would be required to be 
made part of the case file and used by the State when making a 
preliminary finding. When a petition indicates that the workers' firm 
shifted production to Mexico or Canada, data on imports would be 
furnished to the State by OTAA only upon the receipt of further 
information from the State that worker separations because of a shift 
in production by the workers' firm could not be substantiated.
    The proposal would also require the State to contact the company 
official to urge completion and transmittal of the data package if it 
has not been received. Further, if the company official fails to 
cooperate, the State has the authority to inform the company of the 
subpoena authority provided in Sec. 617.53. However, company 
cooperation is the best approach for obtaining the requested 
information. The State's goal should be to facilitate receipt of the 
data while avoiding subpoena procedures which can result in lengthy 
legal negotiations and even court proceedings. It is expected that a 
State will confer with OTAA when subpoena procedures are being 
considered.
    Finally, paragraph (a) would require a preliminary finding of 
whether the group eligibility requirements of proposed Sec. 617.71 have 
been met. In making this preliminary finding, the Governor will not 
apply the ``contributed importantly'' test in paragraph (iii) of 
Sec. 617.71(a)(1). This provision is derived from Section 
250(a)(1)(A)(iii) of the Trade Act. The completed petition package, 
with the preliminary finding, would then be transmitted to OTAA. This 
petition package would be required to include the petition face sheet, 
data packet (including the customer list), and the reasons for the 
preliminary finding. Further, petitioners would be required to be 
notified of the preliminary finding and that the petition package was 
submitted to the Department for review and final determination.
    When the actions required by paragraph (a) are not completed within 
10 days, paragraph (b) would require that every possible action be 
taken to complete them as soon thereafter as possible. This would help 
to assure that complete petition packages are submitted to the 
Department so that OTAA can promptly render a final decision.
    Paragraph (c) is derived from section 250(b)(2)(C) of the Trade 
Act. When the Governor makes an affirmative preliminary finding that 
the employment of workers at a directly affected firm has been 
adversely affected by increased imports from, or production shift to, 
Canada or Mexico, the Governor must ensure, pursuant to 20 CFR 
631.3(j), that rapid response and basic readjustment services 
authorized under Title III of the JTPA are made available to the 
workers. This requirement was recently added to 20 CFR part 631 (59 FR 
45811, 45858).

Section 617.74  OTAA Procedures for Review of Petitions

    This section would set out the procedures and actions to be taken 
by the OTAA to facilitate the Governor's responsibilities pursuant to 
proposed Sec. 617.73.
    Paragraphs (a) and (b) would require OTAA, when notified by a 
Governor of a petition for certification under the NAFTA-TAA program, 
to review the NAFTA-TAA Management Information System established in 
OTAA to ensure that a duplicate petition does not exist. A case number 
would be assigned to the petition and entered into the NAFTA-TAA 
Management Information System. The case number would be used to track 
progress in processing the petition by both the Governor and the 
Department. The case number would also be used in the final 
determination made by the Secretary on the petition. When a 
certification of eligibility is issued to a worker group in response to 
a petition, the case number is used by the State to report all program 
services and benefits provided to certified workers during the life of 
the NAFTA-TAA program certification.
    The OTAA would also initiate the Department's responsibilities with 
regard to the petition when the case number is assigned. Paragraph (c) 
would require that OTAA publish a notice in the Federal Register. This 
notice would indicate that a petition has been received from a Governor 
and that factfinding has been initiated in response to the petition.
    Paragraph (d) would require that OTAA notify the appropriate 
regional office and State agency of the case number assigned to the 
petition received from a Governor and that factfinding has been 
initiated.
    Paragraphs (e) and (f) would require OTAA to analyze, in a timely 
fashion, U.S. import data regarding the article(s) produced by the 
petitioning workers' firm and to FAX information to the appropriate 
State agency regarding imports of such article(s) from Mexico and 
Canada, if such import data are relevant to the determination. Where 
there is a shift in production, import data would not be relevant when 
the Governor makes a preliminary finding on the petition.
    Paragraph (g) would require OTAA to provide advice and guidance to 
State agencies on all aspects of their responsibilities for factfinding 
and for issuing preliminary findings in response to NAFTA-TAA 
petitions.

Section 617.75  Determinations by Secretary on Petitions

    Paragraph (a) would set out the procedures and actions that must be 
taken by OTAA, on behalf of the Secretary, within 30 days after 
receiving the completed petition package from the Governor. The 30-day 
requirement is derived from paragraph (1) of section 250(c) of the 
Trade Act.
    The proposal would require OTAA to review the governor's 
preliminary finding and to take other actions necessary to determine 
whether or not the petition meets the group eligibility requirements 
for certification in Sec. 617.71(a). To confirm the Governor's 
preliminary finding, OTAA would be required to apply the group 
eligibility requirements in paragraphs (a) and (b) of Sec. 617.71, 
including the ``contributed importantly'' criterion, as appropriate. 
The customer list obtained by the Governor from the worker's firm would 
be used when applying the ``contributed importantly'' criterion.
    Paragraph (a) would also require OTAA to issue either a 
certification of eligibility to workers to apply for benefits under the 
NAFTA-TAA program at a local office of the State employment security 
agency or to issue a denial of the certification.
    Paragraph (b) would require OTAA to notify the appropriate regional 
office and State of the Secretary's determination to grant or deny a 
certification of eligibility, and to publish the determination in the 
Federal Register.
    Paragraph (c) would provide that when the Secretary issues a 
negative determination regarding a petition under the NAFTA-TAA program 
because the workers' firm provides a service rather than produces an 
article, as provided in Sec. 617.71(b), a factfinding investigation to 
determine eligibility to apply for benefits under the regular TAA 
program, pursuant to Sec. 617.76(a), would not be conducted. The 
negative determination issued by the Secretary in such instances would 
indicate that a denial is also issued pursuant to 29 CFR 90.16(f) since 
the requirement that the [[Page 3476]] workers' firm produce an article 
has not been met.

Section 617.76  Denial of Certification

    This section would require OTAA to review the petition to ascertain 
whether the workers may be certified under the regular TAA program when 
the Secretary issues a negative determination on a NAFTA-TAA petition 
under Sec. 617.73. Such a review would be done routinely and would not 
require the submission of a petition form for the regular TAA program. 
An exception to this requirement would apply when the workers' firm 
provides a service rather than produces an article pursuant to 
Sec. 617.75(c). The group eligibility requirements for the regular TAA 
program are provided at 29 CFR 90.16. While the group eligibility 
requirements for the regular TAA program are generally similar to those 
for the NAFTA-TAA program, there are two significant differences.
    First, under the regular TAA program, increased imports of articles 
like or directly competitive with those produced by the workers' firm 
are considered from all countries, including Mexico and Canada, while 
under the NAFTA-TAA program only increased imports from Mexico and 
Canada are applicable. Second, the provision that a worker group may be 
certified for adjustment assistance solely because of a shift in 
production of articles does not exist in the regular TAA program. Under 
the regular TAA program, when a shift in production occurs, the 
workers' firm must begin to import that article in order for the 
workers to be certified.
    Paragraph (a) would require the Department to complete a 
factfinding investigation and issue a determination as to whether or 
not a certification could be issued under the regular TAA program. As 
explained in the previous section, an exception to this requirement 
would be provided for in situations where the workers' firm provides a 
service rather than produces an article. The 60-day period for issuing 
a determination under subchapter A of the Act, would begin on the date 
of the denial of certification under the NAFTA-TAA program.
    Paragraph (b) would provide that any worker aggrieved by a decision 
of the Secretary on a petition will be afforded the same rights for 
administrative reconsideration by the Department and for judicial 
review by the U. S. Court of International Trade as provided to workers 
pursuant to the applicable provisions of 29 CFR 90.18 and 19.

Section 617.77  Comprehensive Assistance

    This section would require that, except as provided in Sec. 617.78, 
workers covered by a certification under the NAFTA-TAA program will be 
provided reemployment and other program services and benefits in the 
same manner and to the same extent as workers covered by a 
certification under the regular TAA program. These services and 
benefits include employment services, training, job search allowances, 
relocation allowances and TRA payments. This provision is consistent 
with section 250(e) of the Trade Act and would assure uniformity of 
services and benefits to all workers, unless otherwise set out in 
proposed Sec. 617.78.

Section 617.78  TRA Eligibility

    This section would set out provisions related to eligibility for 
TRA applicable to workers who are certified under the NAFTA-TAA 
program. The conditions for qualifying for TRA are substantially 
different for the NAFTA-TAA program than for the regular TAA program. 
These differences would be addressed by this section. Rules related to 
eligibility for TRA not addressed by this section would be the same as 
under the regular TAA program.
    Paragraph (a) would provide that the eligibility rules for the 
regular TAA program set forth in subpart B of part 617 apply except as 
those rules are modified by the section.
    Paragraph (b) would require that a worker be enrolled in a training 
program approved under Sec. 671.22(a) within one of two prescribed time 
periods: First, by the later of the last day of the 16th week of the 
worker's first benefit period, as defined in Sec. 617.3(r) which 
pertains to the unemployment compensation benefit period; or second, by 
the later of the last day of the 6th week after the week in which the 
Secretary issues a certification of eligibility covering such worker. 
These time periods are set forth in accordance with paragraph (B) of 
section 250(d)(3) of the Trade Act.
    Paragraph (c) would set out provisions for counting the weeks in 
the 16-week period in the first unemployment compensation (UC) benefit 
period and would explain when a worker is considered to be enrolled in 
training. Paragraph (c)(1) would provide that the 16-week period begins 
with the effective date of the UC claim and ends with the last day of 
the 16th week thereafter and includes weeks of waiting period credit, 
weeks of disqualification, weeks of employment, and weeks of 
unemployment.
    With respect to the 16-week enrollment deadline the statute refers 
to the ``initial unemployment compensation period.'' In order to give 
effect to the word ``initial,'' the proposed rule refers to the term 
``first benefit period,'' as defined at 20 CFR 617.3(r). ``First 
benefit period'' means the benefit period established after the 
individual's first qualifying separation or, if the first qualifying 
separation occurs within an already established benefit period, the 
benefit period in which such separation occurs.
    The Department recognizes that there will be situations in which 
workers do not qualify for TRA because they were unable to enroll in a 
training program within the statutory time periods. Often workers 
experience periods of intermittent unemployment after an initial UC 
benefit period has been established and therefore will not enroll in 
approved training before the last day of the 16th week of the worker's 
first benefit period. Such workers may also be separated from 
employment after the last day of the 6th week in which the 
certification is issued and similarly delay enrollment in approved 
training. In situations where both time periods are missed, workers 
should be advised to file a new petition under the regular TAA program 
since the time periods for enrolling in training and qualifying for TRA 
differ from the NAFTA-TAA program. However, if the NAFTA-TAA 
certification is based on a shift in production, a petition for regular 
TAA may not necessarily result in a certification.
    Paragraph (c)(2) would provide that a worker is considered to be 
enrolled in a training program when the worker's application for 
training is approved by the State agency and the training institution 
or the worker has furnished written documentation to the State agency 
that the worker has been accepted in approved training which will begin 
within 30 days. The worker would begin to collect TRA when the 
conditions for enrollment in training have been satisfied and the 
worker has exhausted UC eligibility, or would have exhausted UC 
eligibility if the worker had applied for UC.
    Paragraph (d) would set out provisions that address extenuating 
circumstances under which a worker may be allowed an additional 30-day 
period to enroll in training in order to qualify for TRA. The provision 
would allow the State to extend the time for enrollment in training for 
a period not to exceed 30 days, for justifiable cause, if, due to 
circumstances beyond the worker's control, the worker is unable to 
enroll in training for reasons such as, a [[Page 3477]] program is 
abruptly canceled; the first available enrollment date is past the 
deadline; injury or illness adversely affects the ability of the worker 
to enroll in training; or intermittent employment prevents the worker 
from enrolling in training. When the additional 30 days expire, it 
would not be possible for a worker to qualify for TRA.
    Workers who are certified as eligible for TAA, but who are not 
eligible for UC, do not meet the tenure requirement for TRA, or do not 
meet the time requirements for enrollment in training in order to 
qualify for TRA, may be eligible for income support and other services 
under the JTPA Title III program. State agency staff should inform 
workers in these situations of the eligibility requirements for JTPA 
Title III income support and assist them in applying for such income 
support.
    Paragraph (e) would require that in order for a worker to collect 
basic TRA pursuant to this section, the worker must continue to 
participate in or complete the approved training program.
    Paragraph (f) would include the statutory requirement that no 
waiver of the training requirement may be authorized for workers 
certified under the NAFTA-TAA program. This provision, applicable only 
to the NAFTA-TAA program, is derived from paragraph (A) in section 
250(d)(3) of the Trade Act.
    Paragraph (g) would provide that in order to assist a worker to 
complete an approved training program, TRA payments may be made for up 
to an additional 26 weeks pursuant to Sec. 617.15(b)(1). Since there 
are separate time periods for enrollment in training in order to 
qualify for TRA under the NAFTA-TAA program, the 210-day requirement in 
Sec. 617.15(b)(2) would not apply.
    Paragraph (h) would require the State agency to apply the break in 
training provisions in Sec. 617.15(d). These provisions authorize the 
payment of TRA during certain breaks in training.
    The provisions of paragraphs (f) through (h) would assure 
consistency in application of TRA payments to eligible workers under 
both programs.

Section 617.79  Nonduplication of Assistance

    This section would set out provisions to ensure that workers of a 
firm who have been certified as eligible for services and benefits 
under both the NAFTA-TAA and regular TAA programs do not receive 
duplicate benefits. These provisions are derived from section 249A of 
the Trade Act which addresses nonduplication of assistance.
    Paragraph (a) would provide that a worker may not receive duplicate 
assistance relating to a separation pursuant to certifications under 
both the regular TAA and the NAFTA-TAA programs.
    Paragraph (b) would provide that when a worker is covered under 
certifications for both NAFTA-TAA and regular TAA, based upon a single 
separation, the worker must make a one-time election under which 
certification to receive benefits. It would also provide that once a 
decision is made by the worker, that decision may not be changed. 
Further, the provision would state that if a worker begins receiving 
benefits under either certification, the commencement of such benefits 
would constitute an election. This requirement would assure compliance 
with the statutory prohibition of receiving assistance under both 
programs.
    Paragraph (c) would provide that if a worker has a subsequent 
separation covered by the same two certifications, the election made 
pursuant to paragraph (b) also applies to any subsequent separations. 
This provision is necessary so that a worker electing benefits under 
paragraph (b) would not qualify for a duplicate round of benefits 
because of a subsequent qualifying separation covered by the same two 
certifications.
    A worker who is faced with the option of making an election between 
the two TAA programs should be fully informed of the provisions of both 
programs and the consequences of electing one over the other. 
Therefore, paragraph (d) would require that the State agency staff 
provide information on both programs to workers faced with making such 
an election so that the workers can make an informed decision.

Section 617.80  Coverage Under a NAFTA-TAA Certification

    Paragraph (a) of this section would address the reachback provision 
in section 506 of the NAFTA Implementation Act which provides that any 
eligible worker whose last total or partial separation occurred on or 
after December 8, 1993, would be eligible to receive NAFTA-TAA services 
and benefits. December 8, 1993 is the date that the NAFTA 
Implementation Act was signed by the President. It would also provide 
that the impact date on a certification of eligibility can be up to one 
year prior to the date of the petition. Therefore, this section would 
clarify that a certification of eligibility under the NAFTA-TAA program 
applies to any worker whose last total or partial separation from a 
firm or appropriate subdivision of a firm occurred within one year of 
the date of the petition. However, to be covered under a certification, 
such separation could not occur any earlier than December 8, 1993. 
Further, the certification of eligibility would establish a termination 
date of up to two years from the date the certification is issued.
    Paragraph (b) would provide that a certification may be terminated 
by the Secretary, for good cause, prior to the date specified in the 
certification of eligibility. This would assure that the Secretary has 
discretion to terminate a certification when the conditions under which 
the certification was issued have changed significantly.

Section 617.81  Termination of NAFTA-TAA Program Benefits

    This section, which is derived from section 285(c)(2) of the Trade 
Act, as amended by section 505 of the NAFTA Implementation Act, sets 
out provisions for approving and paying assistance, vouchers, 
allowances and other payments to workers in the NAFTA-TAA program 
related to the program termination date of the law.
    Paragraph (a) would require that, except as provided in paragraph 
(b), no assistance, voucher, allowance, or other payment may be 
provided under subpart H after the date that is the earlier of 
September 30, 1998, or the date on which legislation establishing a 
program providing dislocated workers with comprehensive assistance 
substantially similar to the assistance provided by subpart H becomes 
effective.
    Paragraph (b) would provide that on or before the date described in 
paragraph (a), a worker certified as eligible to apply, and who has 
been determined by the State agency to be eligible for assistance under 
subpart H, will continue to be eligible to receive all NAFTA-TAA 
assistance for any week the worker meets the appropriate eligibility 
requirements of subpart H. This provision would allow eligible workers 
to realize the benefits of the program and also provide for an orderly 
termination.
    Paragraph (c) would require that, pursuant to Sec. 617.51, a 
favorable determination, redetermination or decision on appeal, 
regarding benefits and services provided under subparts B through E, 
must be issued by the State agency on or before the date described in 
paragraph (a) in order for a worker to begin receiving assistance for 
any week the worker meets the eligibility requirements of NAFTA-TAA. 
This provision would prohibit the initiation of services and benefits 
to workers [[Page 3478]] based on State determinations, 
redeterminations or decisions after the termination date of the program 
as provided for in paragraph (a). It is important to establish a cutoff 
date for initiation of program service and actions.
    In order for States to have time to make decisions with respect to 
individual claimant benefits all petitioners for certification should 
be aware that the processing of a petition usually takes about 40 days. 
If petitions for certification are submitted at least 40 days prior to 
the termination date of the program, this (1) would likely allow for 
the worker group determination to be issued by DOL, and (2) could 
provide individuals with an opportunity to apply for NAFTA-TAA benefits 
at their SESA local office and have a determination made on their 
individual application prior to the termination of the program.

Other Technical Changes

Subpart F--Job Search Program

    Subpart F of part 617, which contains Sec. 617.49, addressing job 
search programs, would be removed and subpart F would be reserved. The 
1986 amendments to the Act required a worker to participate in a job 
search program as a condition for receiving TRA. The 1988 amendments to 
the Act terminated this requirement and added participation in training 
as a condition of entitlement for TRA for any weeks which begin after 
November 21, 1988. Therefore, this subsection is obsolete.

Section 617.50  Determinations of Entitlement; Notices to Individuals

    A technical change to paragraph (b) of Sec. 617.50 would be made to 
correct an error. The ``$600'' amount, located in the parenthetical in 
the second sentence would be changed to ``$800.'' The $800 amount and 
not the $600 amount is provided for job search allowances in section 
237 of the Trade Act as amended in 1986.

Drafting Information

    This document was prepared under the direction and control of the 
Deputy Director, Office of Trade Adjustment Assistance, Employment and 
Training Administration, U.S. Department of Labor, 200 Constitution 
Avenue NW., Washington, DC 20210: telephone: (202) 219-5555 (this is 
not a toll free number).

Classification Executive Order 12866

    The proposed rule in this document is classified as a ``significant 
regulatory action'' under Executive Order 12866 on Federal Regulations. 
It may raise novel legal or policy issues arising out of legal mandates 
in the President's priorities since it is related to implementation of 
NAFTA. It is not likely to result in having an annual effect on the 
economy of $100 million or more; or create a serious inconsistency or 
interfere with action taken or planned by another agency.

Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
of 1980, 44 U.S.C. Ch. 35, use of petition form ETA-9042, NAFTA 
Petition for NAFTA Transitional Adjustment Assistance, as required in 
Sec. 617.72, has been approved by OMB (OMB control number 1205-0338). 
Form ETA-9043, Transitional Adjustment Assistance Confidential Data 
Request, and Form ETA-9044, Customer Survey Form, as required in 
Sec. 617.73, has been approved by OMB (OMB control numbers 1205-0339 
and 1205-0337). Form ETA-563, Quarterly Determinations, Allowance 
Activities and Reemployment Services Under the Trade Act, previously 
approved by OMB (OMB control number 1205-0016) for reporting program 
activities in the regular TAA program, was also approved by OMB for use 
in reporting NAFTA-TAA program activity.

Regulatory Flexibility Act

    No regulatory flexibility analysis is required where the rule 
``will not * * * have a significant economic impact on a substantial 
number of small entities.'' 5 U.S.C. 605 (b). The definition of the 
term ``small entity'' under 5 U.S.C. 601(6) does not include States. 
Since these regulations involve an entitlement program administered by 
the States, and are directed to the States, no regulatory flexibility 
analysis is required. The Secretary has certified to the Chief Counsel 
for Advocacy of the Small Business Administration to this effect. 
Accordingly, no regulatory flexibility analysis is required.

Catalog of Federal Domestic Assistance Number

    This program is listed in the Catalog of Federal Domestic 
Assistance at No. 17.245, ``Trade Adjustment Assistance--Workers.''

List of Subjects in 20 CFR Part 617

    Job search assistance, labor, reemployment services, relocation 
assistance, trade readjustment allowances, unemployment compensation, 
vocational education.

    Signed at Washington, D.C. on January 5, 1995.
Doug Ross,
Assistant Secretary of Labor.

    For the reasons set out in the preamble, part 617, Chapter V, Title 
20, of the Code of Federal Regulations, is proposed to be amended as 
set forth below.

PART 617--TRADE ADJUSTMENT ASSISTANCE FOR WORKERS

    1. The authority citation for part 617 is revised to read as 
follows:

    Authority: 19 U.S.C. 2320, 2331 and 3314; Secretary's Order No. 
3-81, 46 FR 31117.

    2. Sections 617.1 and 617.2 are revised to read as follows:


Sec. 617.1  Scope.

    (a) The regulations in this part 617 apply to the programs under 
Title II of chapter 2 of the Trade Act of 1974, as amended (the Act) 
in:
    (1) Subchapter A for workers adversely affected because of 
increased import competition (TAA program or regular TAA program); and
    (2) Subchapter D for workers adversely affected because of the 
North American Free Trade Agreement (NAFTA) (NAFTA-TAA program).
    (b) Both programs identified in paragraph (a) of this section 
provide for:
    (1) Reemployment services, such as counseling, testing, training, 
placement, and other supportive services;
    (2) Training, job search and relocation; and
    (3) Trade readjustment allowances (TRA) and other allowances such 
as allowances while in training, job search and relocation allowances.
    (c) The regulations in this part also establish administrative 
requirements applicable to State agencies to which such individuals may 
apply.


Sec. 617.2  Purpose.

    The Act created a program of trade adjustment assistance (TAA) to 
assist individuals who became unemployed as a result of increased 
imports to return to suitable employment. A specific TAA program was 
added to the Trade Act by Title V of the North American Free Trade 
Agreement Implementation Act (Pub. L. 103-182) to assist individuals 
who become unemployed because of increased imports from, or a shift of 
production to, Canada or Mexico. The regular TAA and NAFTA-TAA programs 
provide for reemployment services and other program benefits to 
eligible individuals. The regulations in this part 617 are issued to 
implement the Act. [[Page 3479]] 
    3. Section 617.3 is amended by revising paragraphs (j)(1), (mm) and 
(nn) to read as follows:


Sec. 617.3  Definitions.

* * * * *
    (j)(1) Certification means a certification of eligibility to apply 
for TAA issued under the Act with respect to a specified group of 
workers of a firm or appropriate subdivision of a firm.
* * * * *
    (mm) Trade adjustment assistance (TAA) means the services and 
allowances provided for achieving reemployment of adversely affected 
workers under both the regular TAA and NAFTA-TAA programs, including 
TRA, training and other reem ployment services, job search allowances 
and relocation allowances.
    (nn) Trade readjustment allowance (TRA) means a weekly allowance 
payable to an adversely affected worker with respect to such worker's 
unemployment under this part 617.
* * * * *
    4. Section 617.4 is amended by revising paragraphs (a), (c), 
(d)(1)(i), (e)(1), (e)(2), and (e)(3) to read as follows:


Sec. 617.4  Benefit information to workers.

    (a) Providing information to workers. State agencies shall provide 
full information to workers about the benefit allowances, training, and 
other employment services available under this part and about the 
petition and application procedures, and the appropriate filing dates 
for such allowances, training and services.
* * * * *
    (c) Providing information to State vocational education agencies 
and others. State agencies shall inform the State Board for Vocational 
Education or equivalent agency and other public or private agencies, 
institutions, and employers, as appropriate, of each certification 
issued under the Act and of projections, if available, of the needs for 
training under section 236 of the Act as a result of such 
certification.
    (d) Written and newspaper notices.--(1) Written notices to workers. 
(i) Upon receipt of a certification issued by the Department of Labor, 
the State agency shall provide a written notice through the mail of the 
benefits available under this part to each worker covered by a 
certification of eligibility issued under the Act when the worker is 
partially or totally separated or as soon as possible after the 
certification is issued if such workers are already partially or 
totally separated from adversely affected employment.
    (ii) * * *
* * * * *
    (e) * * *
    (1) Advise each worker who applies for unemployment insurance under 
the State law of the benefits available under this part and the 
procedures and deadlines for applying for such benefits.
    (2) Facilitate the early filing of petitions under the Act and 
Sec. 617.4(b) of this part for any workers who the agency considers are 
likely to be eligible for benefits. State agencies shall utilize 
information received by the State's dislocated worker unit to 
facilitate the early filing of petitions under the Act by workers 
potentially adversely affected by imports or, pursuant to Sec. 617.71 
of this part, a shift in production to Mexico or Canada for workers 
affected by NAFTA.
    (3) Advise each adversely affected worker to apply for approval of 
training under Sec. 617.22(a) as early as possible after a 
certification of eligibility for TAA issued by the Department in order 
that the worker can meet the time period for qualifying for TRA 
payments pursuant to Secs. 617.11(a)(2) (vii) and 617.78 of this part.
* * * * *
    5. Section 617.10(b) is revised to read as follows:


Sec. 617.10  Applications for TRA.

* * * * *
    (b) Timing of applications. (1) For purposes of the regular TAA 
program, an initial application for TRA, and applications for TRA for 
weeks of unemployment beginning before the initial application for TRA 
is filed, may be filed within a reasonable period of time after 
publication of the determination certifying the appropriate group of 
workers under the Act. However, an application for TRA for a week of 
unemployment beginning after the initial application is filed shall be 
filed within the time limit applicable to claims for regular 
compensation under the applicable State law. For purposes of this 
paragraph (b)(1), a reasonable period of time means such period of time 
as the individual had good cause for not filing earlier, which shall 
include, but not be limited to, the individual's lack of knowledge of 
the certification or misinformation supplied the individual by the 
State agency.
    (2) For purposes of the NAFTA-TAA program, eligibility for TRA is 
related to enrollment in an approved training program within the time 
periods specified in Sec. 617.78(b) of this part.
* * * * *


Sec. 617.49  (Subpart F) [Removed and Reserved]

    6. Subpart F, consisting of Sec. 617.49, of part 617, is removed 
and reserved.


Sec. 617.50  [Amended]

    7. In Sec. 617.50(b), remove the word ``$600'' located in the 
parenthetical in the second sentence, and add, in its place, ``$800.''
    8. A new subpart H is added to part 617 to read as follows:

Subpart H--NAFTA Transitional Adjustment Assistance.

Sec.
617.70  Definitions.
617.71  Group eligibility requirements; factfinding.
617.72  Filing of petitions.
617.73  Findings and assistance.
617.74  OTAA procedures for review of petitions.
617.75  Determinations by Secretary on petitions.
617.76  Denial of certification; review and appeals.
617.77  Comprehensive assistance.
617.78  TRA eligibility.
617.79  Nonduplication of assistance.
617.80  Coverage under a NAFTA-TAA certification.
617.81  Termination of NAFTA-TAA program benefits.


Sec. 617.70  Definitions.

    The following definitions, which are primarily used in this subpart 
H, shall apply to all of part 617:
    (a) Appropriate subdivision means an establishment in a multi-
establishment firm that produces the domestic articles in question or a 
distinct part or section of an establishment (whether or not the firm 
has more than one establishment) where the articles are produced. This 
term includes auxiliary facilities operated in conjunction with 
(whether or not physically separate from) production facilities.
    For purposes of this definition, an ``establishment'' is 
interpreted to include a place of business together with its employees, 
merchandise and equipment.
    (b) Contributed importantly means a cause which is important but 
not necessarily more important than any other cause.
    (c) Firm means an individual proprietorship, partnership, joint 
venture, association, corporation (including a development 
corporation), business trust, cooperative, trustee in bankruptcy, and 
receiver under decree of any court. A firm, together with any 
predecessor or successor-in-interest, or together with any affiliated 
firm controlled or substantially beneficially owned by substantially 
the same persons, may be considered a single firm. [[Page 3480]] 
    (d) Governor means the chief elected executive branch official of a 
State of the United States, the District of Columbia, or the 
Commonwealth of Puerto Rico.
    (e) Increased imports means that imports have increased either 
absolutely or relative to domestic production compared to a 
representative base period. The representative base period shall be one 
year consisting of the four quarters immediately preceding the date 
which is twelve months prior to the date of the petition.
    (f) Like or directly competitive means that ``like'' articles are 
those which are substantially identical in inherent or intrinsic 
characteristics (i.e., materials from which the articles are made, 
appearance, quality, texture, etc.); and ``directly competitive'' 
articles are those which, although not substantially identical in their 
inherent or intrinsic characteristics, are substantially equivalent for 
commercial purposes (i.e., adapted to the same uses and essentially 
interchangeable therefor). An imported article is ``directly 
competitive'' with a domestic article at an earlier or later stage of 
processing, and a domestic article is ``directly competitive with'' an 
imported article at an earlier or later stage of processing, if the 
importation of the article has an economic effect on producers of the 
domestic article comparable to the effect of importation of articles in 
the same stage of processing as the domestic article.
    (g) NAFTA-TAA program means the transitional adjustment assistance 
program for adversely affected workers established under subchapter D, 
Ch. 2, Title II of the Trade Act, as added by Title V of the North 
American Free Trade Agreement Implementation Act (Pub. L. 103-182).
    (h) Office of Trade Adjustment Assistance (OTAA) means the 
organization within the Department of Labor responsible for the 
administration of the trade adjustment assistance program for workers.
    (i) Regular TAA program means the program established under Title 
II, chapter 2 of the Trade Act of 1974, as amended, for workers covered 
by a certification of eligibility issued under subchapter A of chapter 
2. These workers may be eligible for benefits under subparts B through 
E of this part.
    (j) Shift in production means:
    (1) A change in the location of the production of an article by 
such workers' firm or appropriate subdivision, that was formerly 
produced in the U.S. by the workers' firm, to a producing plant located 
in Mexico or Canada, or
    (2) A contract or license by such workers' firm, or appropriate 
subdivision, producing the article in the U.S., to have a firm produce 
that article in Mexico or Canada.
    (k) Significant number or proportion of workers means that:
    (1) In most cases, partial or total separations, or both, as 
defined in Sec. 617.3(cc) and (ll) of this part, in a firm or 
appropriate subdivision thereof, that are the equivalent to a total 
unemployment of five (5) percent of the workers or 50 workers, 
whichever is less; or
    (2) At least three workers in a firm (or appropriate subdivision 
thereof) with a work force of fewer than 50 workers would ordinarily 
have to be affected.


Sec. 617.71  Group eligibility requirements; factfinding.

    (a) A group of workers (including workers in any agricultural firm 
or subdivision of an agricultural firm) shall be certified as eligible 
to apply for adjustment assistance under the NAFTA-TAA program pursuant 
to a petition filed under Sec. 617.72 of this part if the Secretary 
determines that 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, and either---
    (1) That:
    (i) The sales or production, or both, of such firm or subdivision 
have decreased absolutely;
    (ii) Imports from Mexico or Canada of articles like or directly 
competitive with articles produced by such firm or subdivision have 
increased; and
    (iii) The increase in imports under paragraph (a)(1) (ii) of this 
section contributed importantly to such workers' separation or threat 
of separation and to the decline in sales or production of such firm or 
subdivision; or
    (2) That there has been a shift in production by such workers' firm 
or appropriate subdivision to Mexico or Canada of articles like or 
directly competitive with articles that are produced by the firm or 
appropriate subdivision. The article shall have been formerly produced 
by a U.S. located firm or appropriate subdivision of the firm and is 
now produced in Mexico or Canada. A shift in production may occur 
either by the firm or subdivision moving production of the article to 
Mexico or Canada, or the U.S. located firm contracting or licensing for 
production of an article with a firm located in Mexico or Canada.
    (b) Workers of firms that provide a service only, rather than 
produce an article, are excluded from coverage.


Sec. 617.72  Filing of petitions.

    (a) A petition for certification of eligibility to apply for 
benefits under the NAFTA-TAA program (Form ETA-9042, ``Petition For 
NAFTA Transitional Adjustment Assistance'') shall be filed by a group 
of workers (including workers in any agricultural firm or subdivision 
of an agricultural firm) or by their certified or recognized union or 
by any other duly authorized representative. Such petition shall be 
submitted to the Governor of the State in which the manufacturing 
facility is located, or to the State official or organization 
designated by the Governor. For purposes of this paragraph, ``group'' 
means three or more workers in a firm or an appropriate subdivision.
    (b) Copies of the NAFTA-TAA petition form with the address for 
filing the petition in the State shall be available in every local 
employment service and unemployment insurance office. Such forms shall 
also be made available at the offices of cooperating agencies.


Sec. 617.73  Findings and assistance.

    (a) Upon the receipt of a NAFTA-TAA petition, the Governor shall 
take the following actions within 10 days after receiving the 
petition--
    (1) Record the date of receipt of the petition on the face sheet.
    (2) Review the petition for completeness and clarity.
    (3) Initiate a factfinding investigation in response to each 
petition to ascertain whether the group eligibility requirements in 
Sec. 617.71 of this part have been met.
    (4) Telephone the company official listed as the contact person on 
the petition and address the following:
    (i) Determine if the official listed on the petition is the 
appropriate contact. If not, record the name, telephone number and FAX 
number (if available) of the appropriate contact person on the face of 
the petition;
    (ii) Confirm the article description reported on the petition for 
accuracy;
    (iii) Obtain preliminary information regarding total and partial 
worker separations at the firm during the past 12 months;
    (iv) If there were separations or threats of separations, ascertain 
if the company increased imports from Mexico or Canada, had an actual 
or threatened shift of production to either country, or lost sales to 
customers who purchase from firms importing from Mexico or Canada; and 
[[Page 3481]] 
    (v) Inform the official that data request forms will be sent by FAX 
(if available) or by mail, and obtain a commitment to supply the 
requested information promptly in order that a preliminary finding can 
be made within 10 days.
    (5) FAX (if available) or mail the data request forms, which 
include a request for a listing of company customers, to the company 
official, specifying a due date for the information to be returned via 
FAX or mail.
    (6) Inform the State employment security agency, and other 
cooperating agencies as appropriate, that factfinding on a petition is 
underway.
    (7) FAX the face page of the petition form as well as any 
corrections or additions obtained during telephone contacts with the 
company official to OTAA. Based on receipt of this information OTAA 
shall assign a NAFTA-TAA file number to the case. OTAA shall initiate 
an analysis of data regarding imports from Canada or Mexico of the 
subject article except when the petition form indicates that the 
workers' firm shifted production to Mexico or Canada. When a shift in 
production is indicated, data on imports shall be furnished to the 
State only upon the receipt of further information from the State that 
a shift in production could not be substantiated.
    (8) As appropriate, make import data obtained from OTAA part of the 
case file and use such data in making a preliminary finding.
    (9) If the data package has not been received from the company 
official, contact the company official to urge completion and 
transmittal of the data package by FAX (if available) or mail.
    (10) If the company official fails to cooperate pursuant to the 
requirements of this section, the State has the authority to inform the 
company of the subpoena authority provided in Sec. 617.53 of this part 
and, if necessary, issue a subpoena for the required information.
    (11) Make a preliminary finding of whether the group eligibility 
requirements of Sec. 617.71 of this part have been met, except that the 
``contributed importantly'' test in Sec. 617.71(a)(1)(iii) of this part 
shall not be applied when the Governor makes a preliminary finding.
    (12) Transmit the petition package, with the preliminary finding, 
to OTAA by FAX. The petition package shall include the petition face 
sheet, data packet (including the customer list), and the reasons for 
the preliminary finding.
    (13) Notify the petitioners of the preliminary finding and that the 
petition package was submitted to the Department of Labor for review 
and final determination.
    (b) When the actions required by paragraph (a) of this section are 
not completed within 10 days, every possible effort should be 
undertaken to complete them as soon thereafter as possible.
    (c) When an affirmative preliminary finding is made pursuant to 
this section, the Governor shall, pursuant to 20 CFR Sec. 631.3(j), 
make rapid response and basic readjustment services under JTPA Title 
III (Economic Dislocation and Worker Adjustment Assistance Act) 
available to the workers.


Sec. 617.74  OTAA procedures for review of petitions.

    When notified by the Governor of a petition under the NAFTA-TAA 
program, OTAA shall:
    (a) Ensure that duplicate petitions do not exist, assign a number 
to the case according to the NAFTA-TAA Management Information System, 
and inform the State of the assigned number;
    (b) Enter the case number in the NAFTA-TAA Management Information 
System and initiate the Department of Labor's responsibilities 
regarding the petition;
    (c) Publish a notice in the Federal Register indicating that a 
petition has been received from a Governor and that factfinding has 
been initiated;
    (d) Notify the appropriate regional offices and State agency of the 
number assigned to the case and that factfinding has been initiated in 
response to the petition;
    (e) Analyze in a timely fashion, aggregate U.S. imports for the 
article(s) listed in the petition that are like or directly competitive 
with the article(s) produced at the subject firm, if such information 
is relevant to the determination;
    (f) As appropriate, FAX information to the State regarding relevant 
imports from Mexico or Canada based on the aggregate import analysis; 
and
    (g) Provide advice and guidance to State agencies on their 
responsibilities for factfinding and issuing preliminary findings in 
response to NAFTA-TAA program petitions.


Sec. 617.75   Determinations by Secretary on petitions.

    (a) Within 30 days after receiving the completed petition package 
from the Governor, OTAA shall:
    (1) Review the Governor's preliminary finding;
    (2) Determine whether or not the petition meets the group 
eligibility requirements for certification in Sec. 617.71 of this part; 
and
    (3) Issue or deny a certification of eligibility to workers to 
apply for benefits under the NAFTA-TAA program at a local office of the 
State employment security agency.
    (b) The Secretary's determination to grant or deny a certification 
of eligibility shall be sent to the appropriate regional office and the 
State, and be published in the Federal Register.
    (c) When the Secretary issues a negative determination regarding a 
petition under the NAFTA-TAA program in which the workers' firm 
provides a service rather than produces an article, as required for 
certification under Sec. 617.71 of this part, an investigation pursuant 
to paragraph (a) of Sec. 617.76 of this part shall not be conducted. 
The negative determination issued by the Secretary may, in such 
situations, also deny certification under 29 CFR 90.16(f) since the 
requirement that the workers' firm produce an article has not been met.


Sec. 617.76   Denial of certification; review and appeals.

    (a) A petition for which a certification of eligibility has been 
denied under the NAFTA-TAA program shall be reviewed by OTAA within 60 
days to determine if a certification may be issued under the regular 
TAA program, except as provided in paragraph (c) of Sec. 617.75 of this 
part. This review shall be conducted in accordance with the group 
eligibility requirements of the regular TAA program in 29 CFR 90.16(b). 
The 60-day time period shall begin on the date that the denial of 
certification of eligibility of the NAFTA-TAA petition is issued.
    (b) Workers aggrieved by a decision of the Secretary of Labor on a 
petition under the NAFTA-TAA program shall be afforded the same rights 
for administrative reconsideration by the Department of Labor and for 
judicial review by the U. S. Court of International Trade as provided 
to workers pursuant to the applicable provisions of 29 CFR Secs. 90.18 
and 90.19.


Sec. 617.77   Comprehensive assistance.

    Except as provided in Sec. 617.78 of this part, workers covered by 
a certification of eligibility under the NAFTA-TAA program shall be 
provided reemployment and other program services and benefits under 
this part in the same manner and to the same extent as workers covered 
by a certification under the regular TAA program.


Sec. 617.78   TRA eligibility.

    (a) Except as provided in this section, subpart B of this part 
shall apply in determining eligibility for TRA. [[Page 3482]] 
    (b) To be eligible for TRA under this subpart H, a worker must be 
enrolled in a training program approved under Sec. 617.22(a) of this 
part by the later of the last day of the--
    (1) 16th week of such worker's first benefit period as defined in 
Sec. 617.3(r) of this part; or
    (2) 6th week after the week in which the Secretary of Labor issues 
a certification of eligibility covering such worker.
    (c) For purposes of this section--
    (1) The 16-week period begins with the effective date of the UC 
claim and ends with the last day of the 16th week thereafter and 
includes weeks of waiting period credit, weeks of disqualification, 
weeks of employment, and weeks of unemployment; and
    (2) A worker shall be considered to be enrolled in training when 
the worker's application for training is approved by the State agency 
and the training institution or the worker has furnished written 
documentation to the State agency that the worker has been accepted in 
the approved training program beginning within 30 calendar days.
    (d) A State may extend the time for enrollment in training required 
by this section for a period not to exceed 30 days for justifiable 
cause if, due to circumstances beyond the worker's control, the worker 
is unable to enroll in training if, for example:
    (1) A program is abruptly canceled;
    (2) The first available enrollment date is past the deadline;
    (3) Injury or illness adversely affects the ability of a worker to 
enroll in training; or
    (4) Intermittent employment prevents the worker from enrolling in 
training.
    (e) In order to collect basic TRA pursuant to this section, workers 
shall continue to participate in, or have completed, an approved 
training program.
    (f) No waiver from the training requirement shall be granted.
    (g) To assist an individual to complete an approved training 
program, additional TRA payments may be made for up to 26 weeks in the 
26-week eligibility period established pursuant to Sec. 617.15(b) of 
this part. The 210-day requirement in Sec. 617.15(b)(2) shall not apply 
since there are separate time periods for enrollment in training in 
order to qualify for TRA under the NAFTA-TAA program.
    (h) The break in training provisions in Sec. 617.15(d) of this part 
shall be applied when administering the requirements of this section.


Sec. 617.79   Nonduplication of assistance.

    (a) No worker shall receive duplicate assistance relating to a 
separation pursuant to certifications under the regular TAA and the 
NAFTA-TAA programs.
    (b) When a worker is covered under certifications for both the 
NAFTA-TAA and regular TAA programs based upon a single separation, the 
worker shall make a one-time election under which certification to 
receive benefits. Once a decision is made by the worker, it shall not 
be changed. If a worker begins receiving benefits under either 
certification, this shall constitute an election.
    (c) If a worker has a subsequent separation covered by the same two 
certifications referred to in paragraph (b) of this section, the 
election made under paragraph (b) of this section shall also apply to 
the subsequent separation.
    (d) The State agency shall provide a worker who is covered under 
certifications for both the NAFTA-TAA and regular TAA programs with 
information on both programs so that the worker can make an informed 
choice with respect to the election required by paragraph (b) of this 
section.


Sec. 617.80   Coverage under a NAFTA-TAA certification.

    (a) A certification of eligibility under the NAFTA-TAA program 
shall apply to any worker whose last total or partial separation from a 
firm or appropriate subdivision of a firm occurred:
    (1) On or after the impact date on which total or partial 
separations began or threatened to begin in the adversely affected 
employment as specified in the certification under which the worker 
group is covered. In no event shall the impact date be more than one 
year before the date of the petition on which the certification is 
issued or earlier than December 8, 1993; and
    (2) On or before the expiration of the 2-year period beginning on 
the date on which the determination was made.
    (b) A certification of eligibility may be terminated by the 
Secretary, for good cause, prior to the date specified in paragraph 
(a)(2) of this section.


Sec. 617.81   Termination of NAFTA-TAA program benefits.

    (a) Except as provided in paragraph (b) of this section, no 
assistance, voucher, allowance, or other payment may be provided under 
this subpart H after the day that is the earlier of--
    (1) September 30, 1998, or
    (2) The date on which legislation establishing a program providing 
dislocated workers with comprehensive assistance substantially similar 
to the assistance provided by this subpart H becomes effective.
    (b) A worker certified as eligible to apply, and who has been 
determined by the State agency to be eligible for assistance under this 
subpart on or before the date described in paragraph (a) of this 
section, shall continue to be eligible to receive all assistance 
provided under this subpart for any week the worker meets the 
appropriate eligibility requirements of this subpart.
    (c) Pursuant to Sec. 617.51 of this part, a favorable 
determination, redetermination or decision on appeal, regarding 
benefits and services provided under subparts B through E of this part, 
must be issued by the State agency on or before the date described in 
paragraph (a) of this section in order for a worker to begin receiving 
NAFTA-TAA assistance for any week the worker meets the eligibility 
requirements of this subpart.

[FR Doc. 95-911 Filed 1-13-95; 8:45 am]
BILLING CODE 4510-30-P