Notice2023-12865
Notice of Interagency Labor Committee for Monitoring and Enforcement Final Procedural Guidelines for Petitions Pursuant to the USMCA
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Published
June 22, 2023
Issuing agencies
Trade Representative, Office of United States
Abstract
The Interagency Labor Committee for Monitoring and Enforcement (Committee) publishes in the Annex to this notice the final revised procedural guidelines for submissions by the public of information with respect to potential failures of Canada or Mexico to implement their labor obligations under the United States-Mexico-Canada Agreement (USMCA or Agreement). These procedural guidelines include revisions that respond to comments received and minor technical clarifications.
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<title>Federal Register, Volume 88 Issue 119 (Thursday, June 22, 2023)</title>
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[Federal Register Volume 88, Number 119 (Thursday, June 22, 2023)]
[Notices]
[Pages 40914-40920]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12865]
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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
Notice of Interagency Labor Committee for Monitoring and
Enforcement Final Procedural Guidelines for Petitions Pursuant to the
USMCA
AGENCY: Office of the United States Trade Representative (USTR).
ACTION: Notice.
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SUMMARY: The Interagency Labor Committee for Monitoring and Enforcement
(Committee) publishes in the Annex to this notice the final revised
procedural guidelines for submissions by the public of information with
respect to potential failures of Canada or Mexico to implement their
labor obligations under the United States-Mexico-Canada Agreement
(USMCA or Agreement). These procedural guidelines include revisions
that respond to comments received and minor technical clarifications.
FOR FURTHER INFORMATION CONTACT: Deborah Birnbaum, Office of the
General Counsel, at <a href="/cdn-cgi/l/email-protection#0a4e6f6865786b62246f2448637864686b7f674a7f797e78246f657a246d657c"><span class="__cf_email__" data-cfemail="185c7d7a776a7970367d365a716a767a796d75586d6b6c6a367d7768367f776e">[email protected]</span></a> or (202) 395-9622.
[[Page 40915]]
SUPPLEMENTARY INFORMATION:
I. Background
On December 21, 2006, the U.S. Department of Labor published a
final notice of procedural guidelines for the receipt and review of
public submissions on matters related to free trade agreement labor
chapters and the North American Agreement on Labor Cooperation (NAALC).
Those guidelines continue to apply to public submissions on matters
related to free trade agreement labor chapters other than the USMCA.
The Protocol of Amendment for the USMCA terminated the NAALC upon
the protocol's entry into force on July 1, 2020. Pursuant to section
711 of the USMCA Implementation Act (Implementation Act), the President
established the Committee through Executive Order 13918 of April 28,
2020. Section 716(a) of the Implementation Act and Article 23.11 of the
USMCA require the Committee to establish procedures for submissions by
the public of information with respect to potential failures to
implement the labor obligations of a USMCA country.
II. The Committee's Response to Significant Comments <SUP>1</SUP>
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\1\ The rulemaking procedures of the Administrative Procedure
Act (5 U.S.C. 553) do not apply to these final procedural
guidelines, which are promulgated pursuant to section 716(a) of the
Implementation Act and Article 23.11 of the USMCA, and are within
the foreign affairs function of the United States and the foreign
affairs exemption of 5 U.S.C. 553(a)(1).
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A. Amendments Made to Interim Procedural Guidelines
On June 30, 2020, the Committee published interim procedural
guidelines and invited comments from the public. See 85 FR 39257. The
Committee received and carefully reviewed the comments on the interim
procedural guidelines. Based on that review, the Committee adopted
final procedural guidelines that reflect the following adjustments from
the interim procedural guidelines:
<bullet> Amended the procedures described in Sections C.5.c and
C.7.c \2\ to allow petitions to be filed anonymously.
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\2\ Unless otherwise noted, this notice refers to sections using
the numbering in the final procedural guidelines. The numbering of
some sections changed from the interim to the final procedural
guidelines.
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<bullet> Amended Sections C.6 and C.8 to remove the recommendation
to petitioners to provide information regarding:
[cir] whether relief has been sought under domestic laws or
procedures; and
[cir] whether any matter referenced in the petition has been
addressed by, or is pending before, any international body.
<bullet> Deleted the section that was Section D.7 in the interim
procedural guidelines, which concerned Committee considerations in
making a determination.
<bullet> Amended the list of entities and individuals with whom the
Committee may consult, or whose views it may consider, in Section D.7
to add:
[cir] ``employer organizations,'' and
[cir] ``the employer, or the owner or operator of a facility''.
<bullet> Amended Section D.8 to clarify when the Committee will
provide notice and response to a petitioner, and to make such response
mandatory by changing ``may'' to ``will''.
The final revised procedural guidelines also include other minor
clarifications and technical adjustments, including:
<bullet> Regarding how petitioners should send petitions and
accompanying information to the Committee, the acceptable languages for
petitions, forms of acceptable contact information, and when the USMCA
entered into force.
<bullet> Clarifying the definition of ``labor organization,'' and
that the definition of ``Denial of Rights'' matches that used in the
USMCA text.
<bullet> Clarifying the preambles of Sections C.6 and C.8, such
that the Committee recommends, but does not require, that the
referenced subjects be addressed in a petition.
<bullet> In Section E on Confidentiality, noting that information
submitted, particularly identity information, will be treated as exempt
from public inspection.
B. Response to Significant Comments Not Accepted by the Committee
The Committee carefully considered other adjustments to the
procedural guidelines that were suggested by commenters. However, the
Committee did not deem that any adjustments, other than those listed
above, were warranted. To the extent comments were not accepted, the
Committee determined that the proposed adjustment did not further the
goals of the procedural guidelines to provide public petitioners with
clear, streamlined procedures for submitting petitions that would not
raise unnecessary barriers to submission or discourage participation.
In addition, the Committee received a number of comments that were
outside the scope of its June 30, 2020, request for comments on the
interim procedural guidelines as they did not deal specifically with
the proposed guidelines for submissions by the public of information
with respect to potential failures of Canada or Mexico to implement
their labor obligations under the USMCA. These comments were thus
rejected. More detailed responses to various categories of comments
follow below.
III. Summary of Comments
To provide further information to the public, the Committee here
summarizes, and provides responses to, the comments it received on the
interim procedures.
(a) Definitions.
Comment: One commenter sought to change the definition of ``Covered
Facility'' under USMCA Annex 31-A to limit remedies to the specific
facility involved in a denial of rights and not to other facilities
that the person or entity may own or control.
Response: Article 31-A.15 of the USMCA defines ``Covered facility''
for purposes of Annex 31.A. Moreover, Article 31-A.10 of the USMCA
provides for the remedies a Party may impose to remedy a denial of
rights. Therefore, the Committee retained the definition of ``Covered
facility'' in Section A consistent with the USMCA's definition.
Comment: Several commenters sought to have the Guidelines define
the term ``sufficient, credible evidence.''
Response: What constitutes ``sufficient, credible evidence'' is a
fact- and context- specific determination. Accordingly, further
definition in the Guidelines would not be appropriate.
(b) Petitions and Accompanying Information.
Comment: Commenters sought to effectuate a substantive ``standing''
limitation on who can file a petition. Certain comments also sought to
require a statement under penalty of perjury that the petition is true
and correct. One commenter sought to effectuate these changes by
building a penalty-of-perjury requirement and a standing requirement
into the definitions of ``petition'' and ``petitioner,'' respectively.
Response: The proposed limitation and requirement would be
inconsistent with the Implementation Act and could deter individuals
from making the Committee aware of matters of interest to the
Committee. Consequently, the Committee did not incorporate this change
into the Guidelines.
Comment: Commenters sought a requirement that petitions alleging a
denial of rights under Annex 31-A be production and representation area
specific, and that petitioners identify the affected production or
representation area.
Response: The Facility-Specific Rapid Response Labor Mechanism
(RRM)
[[Page 40916]]
applies with respect to a denial of rights to ``workers at a Covered
Facility.'' See USMCA Article 31-A.2. Nothing in the USMCA or the
Implementation Act would suggest a basis for requiring the
identification of a particular production or representation area in a
petition, or for requiring that allegations in a petition be limited to
workers in one or more specific production or representation areas. By
contrast, the proposed requirements could deter some petitioners from
making the Committee aware of denials of rights.
Comment: Several commenters sought a requirement that the owner of
a facility at issue in an RRM petition be notified soon after the
filing of the petition, asserting that a failure to notify the facility
would raise procedural due process concerns. Some commenters also
sought to have the Committee establish procedures by which owners of
facilities at issue in RRM petitions could respond to the petitions or
appeal from a determination by the Committee to refer the matter for
enforcement action.
Response: The Committee will make every effort to consult with the
employer's representatives in appropriate circumstances. In practice,
the Committee consults with the owners of a facility or an employer
that is the subject of an RRM petition whenever practicable regarding
the issues raised in the petition. However, the Implementation Act does
not impose a requirement on the Committee in this respect.
Additionally, in some circumstances, informing the owner could lead to
the destruction of evidence or witness intimidation. However, ``the
employer, or the owner or operator of a facility'' and ``employer
organizations'' have been added to the indicative list of entities that
the Committee may choose to consult with when making its determination.
This change clarifies that the Committee may, among other things,
consult with, and consider views expressed by, affected covered
facility owners as part of the determination process.
Comment: Commenters requested that the procedures include a
requirement that a petitioner identify the legal or economic interest
that drives the petition.
Response: The Implementation Act imposes no requirement that a
petitioner have a legal or economic interest in the subject of the
petition in order to submit a petition. Further, the legal or economic
interest, if any, of the petitioner is not relevant to the existence of
a denial of rights or of any other failure to comply with the
obligations of another Party under the Labor Chapter of the USMCA.
Requiring the identification of a legal or economic interest, if any,
also could defeat the ability of a petitioner to maintain anonymity.
The Committee, therefore, declines to make the requested change.
Comment: Some commenters sought to include in the Guidelines a
requirement that petitioners exhaust other remedies, including domestic
remedies, before filing a petition. Certain commenters also sought to
include a requirement that, if a petitioner seeks relief from an
international organization prior to filing a petition, the petitioner
complete the alternate process before filing the petition. By contrast,
another comment sought language clarifying that the RRM can be used
regardless of whether domestic remedies have been sought or exhausted.
Response: The Committee has amended Sections C.6 and C.8 in a
manner that clarifies that there is no requirement to pursue or exhaust
domestic remedies or the procedures of any international organization
prior to filing an RRM or Labor Chapter petition with the Committee.
While information about use of domestic remedies and processes of
international organizations may be of utility to the Committee, a
petitioner need not provide this information in order to file a
petition. There is no basis in the USMCA or the Implementation Act for
requiring the exhaustion of domestic remedies or procedures of
international organizations prior to the filing of a petition with the
Committee.
Comment: One commenter expressed that the procedures should not
request information from Labor Chapter petitioners about whether the
matter referenced in the petition occurred in a manner affecting trade
or investment because the USMCA creates a rebuttable presumption that
violations occur in a manner affecting trade or investment.
Response: As the commenter correctly pointed out, USMCA Article
23.3, fn. 5, states that ``[f]or purposes of dispute settlement, a
panel shall presume that a failure is in a manner affecting trade or
investment between the Parties, unless the responding Party
demonstrates otherwise.'' However, establishing that an alleged
violation of a Party's labor obligations occurred in a manner affecting
trade or investment is an element of the obligation under USMCA Article
23.3, see fn. 4. Therefore, it is an element that the Committee may
consider when taking action on a Petition. However, because such
information can be of utility to the Committee, the Committee continues
to recommend that a petitioner provide this information to the extent
possible.
Comment: Several commenters sought a requirement that, where a
petitioner claims both non-compliance by Mexico with obligations under
the Labor Chapter and a denial of rights under Annex 31-A, the
petitioner be required to file separate petitions even if the claims
are based on the same set of underlying facts.
Response: Nothing in the Implementation Act would support such a
requirement and the Committee finds it would not be appropriate to make
such a change. The separation of claims into separate petitions could
prove difficult for some petitioners. A requirement to do so therefore
could deter potential petitioners.
Comment: A commenter stated that the process should allow
individuals to file petitions anonymously for safety reasons.
Response: The Committee understands that some individuals may be
unable or unwilling to come forward and report information to the
Committee about potential breaches of the USMCA for safety reasons.
Accordingly, as noted above, the Committee has amended the procedures
described in Sections C.5.c and C.7.c of the final procedures to allow
petitions to be filed anonymously. The Committee takes individuals'
safety seriously and will strive to protect all petitioners' private
information to the maximum extent possible. Additionally, as noted in
further detail in the Guideline section on Confidentiality, the
Committee recommends that each person filing a petition that wishes to
keep their identity protected furnish an explanation as to the need for
exemption from public inspection.
(c) Review of Petitions.
Comment: Two commenters sought to have the Guidelines specify that
the Committee's review would be limited to the claim alleged in the
petition.
Response: The Implementation Act tasks the Committee with
monitoring conditions in Mexico and Canada with respect to the
implementation of USMCA labor obligations, and the Committee may
request enforcement action based on such monitoring. Nothing in the
Implementation Act precludes the Committee from considering potential
claims that it becomes aware of by any means. This includes claims that
are not formally alleged in a petition, but are suggested by facts
alleged in a petition or uncovered by the Committee while considering a
petition. Further, petitions may be presented by individuals who may
have difficulty formulating a precise legal claim. Precluding
[[Page 40917]]
consideration of claims not raised in the petition could frustrate the
Committee's ability to pursue matters raised by such petitioners.
Comment: Certain commenters sought to require that Committee
reviews of RRM petitions be limited to allegations of denials of the
right of free association and collective bargaining, and that Committee
reviews of Labor Chapter petitions be limited to allegations of
breaches of the Labor Chapter.
Response: The matters that can be pursued through USMCA enforcement
mechanisms are specified in the USMCA. As noted above, section 716 of
the Implementation Act sets forth relevant provisions with respect to
Committee reviews. The Committee will carefully review all information
raised in a petition and proceed as appropriate.
Comment: Some commenters requested language in the Guidelines
precluding the Committee from reviewing petitions on matters that
already have been resolved by mediation, arbitration or settlement, or
through a domestic legal process, in order to avoid relitigating the
same dispute and extraterritorial ``forum shopping''. Another commenter
argued that subsections D.7.c and D.7.d of the interim procedures,
which identified as a consideration in reviewing a petition under the
Labor Chapter whether relief had been sought under the other Party's
domestic laws and whether the matter has been addressed by, or is
pending before, any international body, should be deleted.
Response: The United States is a party in RRM proceedings and
dispute settlement proceedings involving the Labor Chapter of the
USMCA. The interests of the United States would not have been
represented in any prior adjudication, arbitration, settlement or
mediation to which the United States was not a party. Similarly, the
purpose of the RRM proceedings and dispute settlement proceedings under
the Labor Chapter is to provide a forum to determine whether a
violation of the agreement has occurred, and the standard for such a
determination will thus differ from the standard in other legal
processes. If the Committee considers that a denial of rights alleged
in a petition has been partially or fully resolved in another
proceeding, the Committee may take that into account in its own review
of the evidence supporting the alleged denial of rights.
The Committee agrees with the comment that requested the deletion
of subsections D.7.c and d of the interim procedures and, as noted
above, the entirety of section D.7 of the interim procedures has been
removed from the final procedures. As the commenter noted, inclusion of
those considerations is not determinative of the decision to review or
take action on a petition.
Comment: One commenter argued that in the introduction to section
D.8 of the interim procedures (section D.7 of the final procedures),
``may'' should be changed to ``shall,'' such that consultation with the
listing entities would be required.
Response: The Implementation Act does not require consultation with
all of the listed individuals and entities. In many cases, some of the
entities and individuals listed would not have relevant information.
Requiring consultation with all of them could delay the Committee's
consideration of petitions. In some instances, consultation with
particular entities could create a risk of witness intimidation or
evidence tampering. The Committee will make case-by-case determinations
about the individuals or entities to consult when assessing a petition.
Therefore, the final procedures do not incorporate the requested
change.
Comment: One commenter sought to have the Guidelines establish
timelines for review of a petition.
Response: Applicable timelines already have been established in
section 716 of the Implementation Act and noted in the Guidelines.
Comment: One commenter sought a requirement for the Committee to
provide the owner of a facility with updates on the status of the
Committee's review of an RRM petition concerning the facility, and to
inform the owner of any determination by the Committee that there is
not sufficient credible evidence of a denial of rights enabling the
good-faith invocation of enforcement mechanisms.
Response: The transparency obligations and procedures applicable to
the Committee's review of petitions are as specified in section 716 of
the Implementation Act and detailed in the Guidelines. Further, in some
circumstances, notification to a facility owner concerning the progress
of Committee review could create a risk of evidence tampering, witness
tampering, or retaliation. Such risks may exist even in situations
where a determination has been made that there is not sufficient,
credible evidence of a denial of rights to enable the good-faith
invocation of enforcement mechanisms. Consequently, the Guidelines do
not include this requested change.
Comment: One commenter suggested that the Guidelines should include
details regarding what happens following notification to the U.S. Trade
Representative of an affirmative Committee determination.
Response: These Guidelines concern the Committee's handling of
petitions. How the U.S. Trade Representative will proceed following an
affirmative Committee determination is not an appropriate subject for
Committee Guidelines. Section 716 of the Implementation Act provides
information on how the U.S. Trade Representative will proceed following
an affirmative Committee determination. In the case of an affirmative
determination pursuant to an RRM petition, ``the Trade Representative
shall submit a request for review . . . with respect to the covered
facility . . .'' In the case of an affirmative determination pursuant
to other petitions, the U.S. Trade Representative shall, within 60
days, initiate appropriate enforcement action or notify the appropriate
congressional committees as to the reasons for not initiating action.
Comment: Two commenters sought to require that the Committee
provide petitioners updates on the Committee's review.
Response: The Committee agrees that petitioners have a strong
interest in the progress of the Committee's review, and has amended
Section D.8 to require timely response to a petitioner following a
review and specific notice of RRM determinations.
(d) Confidentiality.
Comment: One commenter sought a requirement that petitioners and
other persons not make a petition and accompanying information public
until an RRM Panel has made its determination to avoid impacting the
reputation of a facility at issue. Another commenter proposed that
public disclosure of a petition occur only if a ``governmental entity''
finds a violation of the USMCA. Relatedly, some commenters proposed
that the Committee's process be confidential, while another commenter
suggested that the Committee's final determination regarding a petition
should be made public.
Response: The transparency obligations and procedures applicable to
the Committee's review of petitions are as specified in section 716 of
the Implementation Act. The Implementation Act does not impose any
restrictions on petitioners or other persons from disseminating
information. To the extent that commenters sought additional
restrictions on the dissemination of information by the Committee or
Member agencies, the Committee does not consider such changes to be
[[Page 40918]]
appropriate because such restrictions could impede the investigation of
matters raised to the Committee.
(e) Other Comments.
Comment: One commenter proposed that the Committee publish a Code
of Ethics for RRM panel members, with certain specified features.
Response: Both RRM panelists and panelists in labor disputes under
Chapter 31 are subject to the Code of Conduct adopted in Decision 1 of
the USMCA Free Trade Commission, available at: <a href="https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/free-trade-commission-decisions/annex-iii">https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/free-trade-commission-decisions/annex-iii</a>.
Comment: Several commenters suggested that the guidelines should
seek to clarify or limit the authorities of RRM panels and USMCA
Chapter 31 panels considering labor matters.
Response: The authorities of RRM and Chapter 31 panels are
specified in the USMCA, and procedures for these proceedings are
specified in the Rules of Procedure for Chapter 31 (Dispute
Settlement), contained in Annex III to Decision 1 of the USMCA Free
Trade Commission, available at: <a href="https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/free-trade-commission-decisions/annex-iii">https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/free-trade-commission-decisions/annex-iii</a>. The Committee's Procedural Guidelines
cannot alter the authorities and procedures of panels specified in
USMCA Chapter 31 and the Rules of Procedure for Chapter 31.
Annex
USMCA Procedural Guidelines
Summary
The Interagency Labor Committee for Monitoring and Enforcement
(Committee) announces the procedures for the receipt and review of
petitions and information pursuant to the United States-Mexico-Canada
Agreement (USMCA) Chapter 23 (Labor Chapter) and Annex 31-A (Facility-
Specific Rapid Response Labor Mechanism, hereafter Rapid Response
Mechanism), under section 716 of the USMCA Implementation Act (Pub. L.
116-113) (Implementation Act). Please direct petitions and information
discussed below to the U.S. Department of Labor, Bureau of
International Labor Affairs (ILAB), Office of Trade and Labor Affairs
(OTLA), for Committee consideration.
Email is the preferred means for sending petitions and accompanying
information to the Committee. Petitions and accompanying information
may be emailed to the OTLA for Committee consideration at: <a href="/cdn-cgi/l/email-protection#b5e0e6f8f6f498c5d0c1dcc1dcdadbc6f5d1dad99bd2dac3"><span class="__cf_email__" data-cfemail="7025233d33315d0015041904191f1e0330141f1c5e171f06">[email protected]</span></a>. Petitions and accompanying information provided by
hand delivery or mail for Committee consideration may be sent to:
Office of Trade and Labor Affairs, Bureau of International Labor
Affairs, U.S. Department of Labor, 200 Constitution Avenue NW, Room S-
5315, Washington, DC 20210. A document must be sent to the email
address or street address identified in this paragraph to be treated as
a petition or as information accompanying a petition. However, the
Committee may evaluate and act upon allegations and information that it
receives by other means, including through the Department of Labor-
monitored web-based hotline at <a href="https://www.dol.gov/agencies/ilab/our-work/trade/labor-rights-usmca/hotline">https://www.dol.gov/agencies/ilab/our-work/trade/labor-rights-usmca/hotline</a>. For any questions, contact OTLA
by telephone at 202-693-4802. Individuals with hearing or speech
impairments may access the telephone number above via TTY by calling
the Federal Information Relay Service at 1-877-889-5627.
Section A. Definitions
Another Party or other Party means a country other than the United
States that is a Party to the USMCA.
Covered facility means a facility in the territory of Mexico that
is in a Priority Sector and (i) produces a good, or supplies a service,
traded between the Parties, or (ii) produces a good, or supplies a
service, that competes in the territory of a Party with a good or a
service of the United States.
Days means calendar days, unless otherwise specified.
Denial of rights has the meaning specified, with respect to Mexico,
in USMCA Annex 31-A.2, including footnote 2.
Enterprise means an entity constituted or organized under
applicable law, whether or not for profit, and whether privately owned
or governmentally owned or controlled, including a corporation, trust,
partnership, sole proprietorship, joint venture, association or similar
organization.
Labor Chapter means Chapter 23, including Annex 23-A, of the USMCA.
Labor obligations means obligations under the Labor Chapter,
including Annex 23-A.
Labor organization includes any organization of any kind, including
local, provincial, territorial, state, national, and international
organizations or federations, in which employees participate and which
exists for the purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay, hours, or
other terms or conditions of employment.
Party means a Party to the USMCA.
Person means a natural person or an enterprise.\3\
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\3\ For greater certainty, ``person'' includes labor
organizations and non-governmental organizations.
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Petition means a written statement to the Committee asserting that
there is a denial of rights at a covered facility (Rapid Response
Petition) or any other failure to comply with the obligations of
another Party under the Labor Chapter of the USMCA (Labor Chapter
Petition).\4\
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\4\ ``Petitions with accompanying information'' for purposes of
this document are similar to ``submissions'' as that term is used in
the OTLA Procedural Guidelines regarding other free trade
agreements. See Bureau of International Affairs; Notice of
Reassignment of Functions of Office of Trade Agreement
Implementation to Office of Trade and Labor Affairs; Notice of
Procedural Guidelines, 71 FR 76691 (December 14, 2006).
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Petitioner means any person that files a petition.
Priority sector means a sector that produces manufactured goods,
including but not limited to, aerospace products and components, autos
and auto parts, cosmetic products, industrial baked goods, steel and
aluminum, glass, pottery, plastic, forgings, and cement; supplies
services; or involves mining.
Section B. The Committee
1. In accordance with section 711 of the Implementation Act, the
Committee, co-chaired by the U.S. Trade Representative and the
Secretary of Labor,\5\ has been established to coordinate United States
efforts with respect to each Party:
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\5\ The day-to-day operations of the Committee will be carried
out by the Assistant U.S. Trade Representative for Labor Affairs,
Office of the United States Trade Representative (USTR), and the
Deputy Undersecretary for International Affairs at the U.S.
Department of Labor.
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a. to monitor the implementation and maintenance of the labor
obligations;
b. to monitor the implementation and maintenance of Mexico's labor
reform; and
c. to request enforcement actions with respect to a Party that is
not in compliance with such labor obligations.
2. The Committee will review petitions and accompanying information
regarding another Party's labor obligations arising under the USMCA, as
set out in Section D.
3. In connection with any of its activities, the Committee may
evaluate and act upon any allegations and information received from the
public, including by means of the Department of Labor monitored web-
based hotline at <a href="https://www.dol.gov/agencies/ilab/our-work/trade/labor-rights-usmca/hotline">https://www.dol.gov/agencies/ilab/our-work/trade/labor-rights-usmca/hotline</a> referred to in section 717 of the
Implementation Act.
[[Page 40919]]
4. The ILAB is the designated contact point, in regular
consultation and coordination with the USTR Office of Labor Affairs,
pursuant to Article 23.15 of the Labor Chapter.
5. Any person may provide information for the Committee to the
OTLA. The information should be in written format, when practicable.
Written information may be provided by electronic means, hand delivery,
or mail, including courier. Clear identification of the person sending
information will facilitate follow-up communication, and is encouraged
where feasible.
Section C. Petitions and Accompanying Information
1. Any person of a Party may, through the OTLA, file a Rapid
Response Petition or Labor Chapter Petition with the Committee.
2. A petition may be accompanied by information that supports the
petition's allegations. Upon receipt of a petition with accompanying
information, the Committee will deem this a written submission for
purposes of USMCA Article 23 and follow the relevant review procedures
identified in Section D.
3. To be treated as a petition or as information accompanying a
petition, a document must be sent to <a href="/cdn-cgi/l/email-protection#1d484e505e5c306d786974697472736e5d797271337a726b"><span class="__cf_email__" data-cfemail="2772746a64660a5742534e534e4849546743484b09404851">[email protected]</span></a> or to the
Office of Trade and Labor Affairs, Bureau of International Labor
Affairs, U.S. Department of Labor, 200 Constitution Avenue NW, Room S-
5315, Washington, DC 20210.
4. A petition must be in writing, in the English or Spanish
language. To assist the Committee in making its determination in a
timely manner, the Committee prefers that petitioners send petitions
and accompanying information to OTLA by email and in searchable
formats, but will accept such documents by hand delivery or mail,
including by courier. The Committee encourages any petitioner that does
not submit a petition or information electronically to provide
electronic versions of all documents.
Rapid Response Petitions
5. Any Rapid Response Petition must:
a. identify the covered facility to which the petition pertains;
b. provide a description, including facts with sufficient
specificity, of the matter alleged to constitute a denial of rights;
and
c. either:
i. identify the person filing the petition, as well as either (A)
the person's email address or (B) the person's mailing address and
telephone number; or
ii. if the filer chooses not to disclose their identity, designate
an email address or telephone number at which the filer can receive and
respond to communications from the Committee and its members.
Communications sent to the designated email address or telephone number
shall be deemed communicated to the filer, regardless of whether the
filer is the owner of the designated email account or telephone number.
6. The Committee recommends that, as relevant and to the extent
possible, each Rapid Response Petition be accompanied by information
that corroborates the petitioner's factual allegations, such as written
or recorded witness statements or documentary evidence, and in
addition, that the petition address:
a. whether the facility to which the petition pertains is a covered
facility; and
b. the laws, and specific provisions thereof, of Mexico with which
there is alleged non-compliance.
Labor Chapter Petitions
7. Any Labor Chapter Petition must:
a. identify the other Party alleged to be out of compliance with an
obligation under the Labor Chapter;
b. provide reasons, including facts with sufficient specificity,
supporting the petitioner's allegation that the other Party is out of
compliance; and
c. either:
i. identify the person filing the petition, as well as either (A)
the person's email address or (B) the person's mailing address and
telephone number; or
ii. if the filer chooses not to disclose their identity, designate
an email address or telephone number at which the filer can receive and
respond to communications from the Committee and its members.
Communications sent to the designated email address or telephone number
shall be deemed communicated to the filer, regardless of whether the
filer is the owner of the designated email account or telephone number.
8. The Committee recommends that, as relevant and to the extent
possible, each Labor Chapter Petition be accompanied by information
that supports the petitioner's factual allegations, such as written or
recorded witness statements or documentary evidence, and in addition,
that the petition address:
a. the particular obligation in the Labor Chapter with which the
petitioner considers there is non-compliance;
b. whether there has been harm to the petitioner or other persons,
and, if so, to what extent;
c. for claims alleging a failure by a Party to effectively enforce
labor laws under Article 23.5, whether there has been a sustained or
recurring course of action or inaction of non-enforcement of labor law
by another Party; and
d. whether the matter referenced in the petition occurred in a
manner affecting trade or investment.
Section D. Review of a Petition
Rapid Response Petitions
1. When the Committee receives a Rapid Response Petition with
accompanying information, the Committee will review the petition and
any accompanying information within 30 days of their receipt by the
OTLA and determine whether there is sufficient, credible evidence of a
denial of rights at the covered facility enabling the good-faith
invocation of enforcement mechanisms.
2. If the Committee decides that there is sufficient, credible
evidence of a denial of rights at the covered facility enabling the
good faith invocation of enforcement mechanisms, the Committee will
inform the U.S. Trade Representative for purposes of submitting a
request for review in accordance with Article 31-A.4 of the USMCA.
3. If the Committee determines that there is not sufficient,
credible evidence of a denial of rights at the covered facility
enabling the good faith invocation of enforcement mechanisms, the
Committee will certify that determination to the United States Senate
Committee on Finance, the United States House of Representatives
Committee on Ways & Means, and the petitioner.
Labor Chapter Petitions
4. When the Committee receives a Labor Chapter Petition with
accompanying information, the Committee will review the petition and
any accompanying information not later than 20 days after they were
received by the OTLA.
5. If, after the review provided for in paragraph 4 of this
section, the Committee determines that further review is warranted, the
Committee will conduct a further review focused exclusively on
determining, not later than 60 days after the date of receipt, whether
there is sufficient, credible evidence that the other Party is not in
compliance with its labor obligations, for purposes of initiating
enforcement action under Chapter 23 or Chapter 31 of the USMCA.
[[Page 40920]]
6. If the Committee determines that there is sufficient, credible
evidence that the other Party is not in compliance with its obligations
under the Labor Chapter for purposes of initiating enforcement action
under Chapter 23 or Chapter 31 of the USMCA, the Committee will
immediately so inform the U.S. Trade Representative.
Engagement
7. In making any determination identified in this section, the
Committee may, among other things, consult with, and consider views
expressed by, any individual or entity, including:
a. officials of the United States government;
b. officials of any State or local government;
c. officials of any foreign government;
d. the designated contact point of the relevant Party;
e. labor organizations;
f. employer organizations;
g. non-government representatives;
h. advisory committees;
i. the petitioner; and
j. the employer, or the owner or operator of a facility.
8. The Committee will provide a timely response to the petitioner
following a review conducted in accordance with section D, including
by, in the case of a Rapid Response Petition:
a. informing the petitioner if the petition results in the U.S.
Trade Representative submitting a request for review; and
b. certifying to the petitioner a negative determination concerning
the petition in accordance with section 716(b)(2) of the Implementation
Act.
Section E. Confidentiality
1. Information provided by a person or another Party to the
Committee shall be treated as confidential and exempt from public
inspection if the information meets the requirements of 5 U.S.C. 552(b)
of the Freedom of Information Act or if otherwise permitted by law. The
Committee will carefully review all documents submitted to it determine
whether they can be treated as exempt from public inspection and make
every effort to protect confidential information to the fullest extent
possible under the law.
2. The OTLA and the Committee are sensitive to the confidentiality
needs of a person and will make every effort to protect a natural
person's identity pursuant to the law.
Joshua Kagan,
Assistant U.S. Trade Representative for Labor, Office of the United
States Trade Representative.
[FR Doc. 2023-12865 Filed 6-21-23; 8:45 am]
BILLING CODE 3390-F3-P
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</html>Indexed from Federal Register on June 22, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.