ments, the request shall be reviewed by the Executive Secretary of the Board to initially determine its availability. If he determines, as provided by law, that the record is not to be made available to the requesting person, said party shall be informed in writing of the specific reason(s) why the record is not being disclosed.

(c) If an identifiable record is to be made available for public inspection and copying, the person who requested access to the record shall be promptly advised of the availability of the record.

§ 400.1405 Requests for reconsideration of nonavailability.

(a) Any person whose request to inspect a record has been denied because the record was not to be made available for stated reason(s), may request a reconsideration of the initial denial in accordance with procedures set forth in Part 4 of this title.

(b) The decision upon such review shall be made by the Chairman of the Foreign-Trade Zones Board, and shall be based upon the original request, the

denial, and any written argument submitted by the person requesting the review.

(c) The decision upon review shall be promptly made in writing and transmitted to the person requesting the review. If the decision is wholly or partly in favor of said person, the requested record to such extent shall be made available for inspection in accordance with § 400.1404 (c). To the extent that the decision is adverse to the request, the reason(s) for the denial shall be stated.

(d) A decision upon review completed as provided herein shall constitute the final decision and action of the Board as to the availability of a requested record, except as may be required by court proceedings initiated pursuant to 5 U.S.C. 552(a)(3).

(c) "Department" means the Department of Commerce.

(d) "OTAA" means the Office of Trade Adjustment Assistance, Department of Commerce.

(e) "Director" means the Director of OTAA.

(f) "Agency" includes any agency, department, board, wholly or partly owned corporation, instrumentality, commission or establishment of the United States.

(g) "Firm" includes an individual proprietorship, partnership, joint venture, association, corporation (including a development corporation), business trust, cooperative, trustees in bankruptcy, and receivers under decree of any court. Where determined necessary by the Secretary to prevent unjustifiable benefits, a firm, together with any predecessor, successor or affiliated firm controlled

or substantially beneficially owned by substantially the same person or persons may be considered a single firm.

(h) "Person" means an individual, firm, trust or estate.

(i) "Adjustment proposal" means a proposal for economic adjustment of a firm filed under Subpart C of this part. Subpart B-Eligibility of Firms To Apply for Adjustment Assistance § 500.20 General.

No firm may apply for adjustment assistance unless first certified by the Director as eligible to apply pursuant to the requirements of section 302(b) (1) or 302(c) of the Act and of this subpart. § 500.21 Statutory criteria.

A firm may seek certification of eligibility to apply for adjustment assistance only if:

(a) (1) The Tariff Commission has made an affirmative finding pursuant to section 301(b)(1) of the Act that, as a result in major part of concessions granted under trade agreements, an article is being imported into the United States in such increased quantities as to cause or threaten to cause serious injury to the domestic industry producing an article that is like or directly competitive with the imported article, (2) the President has provided, pursuant to section 302(a) of the Act, that firms in such industry may request the Secretary for such certification of eligibility, and

(3) the applicant firm is a part of such industry;

(b) The Tariff Commission has made an affirmative finding pursuant to section 301 (c) (1) of the Act that, as a result in major part of concessions granted under trade agreements, an article like or directly competitive with an article produced by the firm is being imported into the United States in such increased quantities as to cause, or threaten to cause, serious injury to such firm; or

(c) (1) One half of the Tariff Commissioners voting in a case under section 301(b) (1) or 301(c) (1) of the Act have made an affirmative finding and (2) the President has decided to accept the finding of those Commissioners voting in the affirmative as the finding of the Commission: Provided, That in a case arising under section 301(b) (1) of the Act the President shall also have provided, pursuant to section 302 (a) of the Act, that firms in the industry may request the Secretary for certification of eligibility, and the applicant firm is a part of such industry.

§ 500.22

Certification of eligibility to apply under section 302(b)(1) of the Act.

(a) Following an affirmative finding with respect to an industry by the Tariff Commission pursuant to section 301(b) (1) of the Act (or by the President in cases involving an affirmative finding by one half of the Commissioners voting) and provision by the President pursuant to section 302(a) of the Act that firms in such industry may request the Secretary for certification of eligibility to apply for adjustment assistance, any firm in such industry may apply for such assistance by completing and filing an application as specified in paragraph (b) of this section. Such application must be filed within 1 year of the date of the President's action under section 302(a) of the Act, or such other period of time as he President may specify at the time of such action: Provided, That the Director may grant an extension of time for filing such application upon a showing to his satisfaction that timely submission of the application could not reasonably have been made: And provided further, That any request for extension of time hereunder must be made prior to expiration of the time within which such application would otherwise be required to be filed. (b) An application for certification of eligibility to apply for adjustment assist

ance under this section must be made in accordance with the provisions of the Act, this part and instructions on the appropriate OTAA form (see § 500.60), and must be accurate and complete. In making such applications, a firm should accurately set forth all facts and conditions that are material to its claim for such assistance, including the extent to which the affirmative finding of the Tariff Commission (with respect to the industry of which the firm is a part) applies to the firm and the extent of the firm's injury (or threatened injury) resulting from increased imports of the product that was the subject of the Tariff Commission's investigation. If insufficient or inconsistent information is submitted in support of such application, the firm will be required to provide additional information or otherwise correct its submission. However, every effort will be made by OTAA to proceed with processing of the application to the extent feasible in the interim.

(c) The Secretary will certify a firm that has made a timely application under this section as eligible to apply for adjustment assistance upon a finding that:

(1) The article like or directly competitive with the imported article that was the subject of the Tariff Commission's investigation is or was a significant part of the applicant firm's line of production; and

(2) The serious injury or threat thereof found by the Tariff Commission to exist with respect to the industry in question is likewise applicable to the applicant firm.

(d) In making the finding called for in paragraph (c) of this section the Secretary will, among other pertinent considerations, give due regard to the following factors which applicants should document in detail

(1) Economic factors. In determining whether increased imports of the article in question have caused serious injury or threat thereof to such firm, economic factors that are considered relevant include: (i) Idling of the firm's productive facilities capable of producing the like or directly competitive article, (ii) inability of the firm to operate at a level of reasonable profit, (iii) unemployment or underemployment in the firm, and (iv) competitive position of such firm in reiation to other firms in the industry.

(2) Injury or threat thereof. For the purpose of this section, (i) "serious injury" to a firm means a major adverse

impact on its economic condition from which it cannot reasonably be expected to recover without adjustment assistance provided under this part, and (ii) "threat of serious injury" means that an economic trend has been established that can reasonably be expected to continue and to result in serious injury to the firm in the foreseeable future. A long-range possibility of serious injury is not sufficient to demonstrate a threat thereof.

(3) Causation. Increased imports of the article in question shall be considered to have caused serious injury, or threat thereof, to the applicant firm if the Secretary finds that such imports have been the major factor in causing such injury or threat thereof.

(e) While OTAA will provide all practicable counsel and assistance in the preparation of applications under this section for certification of eligibility to apply for adjustment assistance, the burden is on each firm to establish its own case.

§ 500.23

Certification of eligibility to apply under section 302 (c) of the Act.

Following an affirmative finding with respect to a firm by the Tariff Commission pursuant to section 301(c) (1) of the Act (or by the President in cases involving an affirmative finding by one half of the Commissioners voting), such firm may apply for certification of eligibility to apply for adjustment assistance by filing with the Director a sworn statement, subscribed by the owners, partners or officers of such firm that no material facts were omitted from, and there has occurred no significant change in economic circumstances affecting the firm since presentation of the firm's case to the Tariff Commission. Following receipt of such statement, the Secretary ordinarily will certify promptly that such firm is eligible to apply for adjustment assistance.

§ 500.24 Material change in conditions; denial or revocation of eligibility certification.

(a) A firm that has applied for certification of eligibility to apply for adjustment assistance under § 500.22 or § 500.23 must promptly inform the Director in writing of any material change in economic conditions affecting such firm, including any change in the principal ownership of such firm and any change that has occurred in the facts contained