[Federal Register Volume 74, Number 85 (Tuesday, May 5, 2009)]
[Proposed Rules]
[Pages 20647-20658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10356]


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DEPARTMENT OF COMMERCE

Economic Development Administration

13 CFR Parts 313 and 315

[Docket No.: 090429810-9808-01]
RIN 0610-AA65


Revisions to the Trade Adjustment Assistance for Firms Program 
Regulations and Implementation Regulations for Community Trade 
Adjustment Assistance Program

AGENCY: Economic Development Administration, Department of Commerce.

ACTION: Notice of proposed rulemaking.

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SUMMARY: On February 17, 2009, President Barack Obama signed into law 
the American Recovery and Reinvestment Act of 2009 (Pub.L. No. 111-5, 
123 STAT. 115). Included in that omnibus measure was the Trade and 
Globalization Adjustment Assistance Act of 2009 (``TGAAA''), which 
contains specific amendments to chapters 3 and 4 of the Trade Act of 
1974, as amended (19 U.S.C. 2341 et seq.) (``Trade Act''). See Subtitle 
I (letter ``I'') of Title I of Division B of Public Law No. 111-5, 123 
Stat. 367, at 396-436. Chapter 3 of the Trade Act authorizes the Trade 
Adjustment Assistance for Firms (``TAAF'') Program, under which a 
national network of eleven Trade Adjustment Assistance Centers provide 
technical assistance to firms that have lost domestic sales and 
employment due to increased imports of similar or competitive goods. 
Chapter 4 of the Trade Act establishes the Community Trade Adjustment 
Assistance (``Community TAA'') Program, which is designed to help local 
economies adjust to changing trade patterns through the coordination of 
federal, State, and local resources and the creation and implementation 
of community-based development strategies to help address trade 
impacts. As a result of the enactment of the TGAAA, EDA is publishing 
this notice of proposed rulemaking (``NPRM'') to request comments on 
the promulgation of the Community TAA Program regulations and specific 
proposed changes to the TAAF Program regulations, both of which 
implement the amendments to the Trade Act made by the TGAAA. In large 
part, the revisions to the existing TAAF Program regulations propose to 
make service sector firms potentially eligible for assistance and 
include longer ``look back'' time periods for which Firms may present 
data for certification purposes.

DATES: Comments on this NPRM must be received by EDA's Office of Chief 
Counsel no later than 5 p.m. Eastern Time on June 4, 2009.

ADDRESSES: Comments on this NPRM may be submitted through any of the 
following:
     Federal eRulemaking Portal: http://www.Regulations.gov.
     Mail: Economic Development Administration, Office of Chief 
Counsel, Room 7005, Department of Commerce, 1401 Constitution Avenue, 
NW., Washington, DC 20230.

Commenters are advised that U.S. Department of Commerce mail security 
measures may delay receipt of United States Postal Service mail for up 
to two weeks. Commenters may wish to use the facsimile or e-mail 
options.
     Facsimile: (202) 482-5671, Attention: Office of Chief 
Counsel. Please indicate ``Comments on the NPRM'' on the cover page.
     E-mail: eda.doc.gov">edaregs@eda.doc.gov. Please state ``Comments on 
the NPRM'' in the subject line.

FOR FURTHER INFORMATION CONTACT: Jamie Lipsey, Economic Development 
Administration, Department of Commerce, Room 7005, 1401 Constitution 
Avenue, NW., Washington, DC 20230; telephone: (202) 482-4687.

SUPPLEMENTARY INFORMATION: 

Background

    EDA's mission is to lead the federal economic development agenda by 
promoting innovation and competitiveness, preparing American regions 
for growth and success in the worldwide economy. In implementing this 
mission, EDA administers the TAAF Program under the Trade Act, which 
was enacted in part to provide adequate procedures to safeguard 
American industry and labor against unfair or injurious import 
competition and assist industries, firms, workers, and communities in 
adjusting to changes in international trade flows. The responsibility 
for administering both the TAAF and Community TAA Programs is delegated 
from the Secretary of Commerce to EDA.
    EDA is publishing proposed revisions to its TAAF Program 
regulations to reflect the TGAAA amendments made to chapter 3 of the 
Trade Act. Under the TAAF Program, EDA funds a national network of 
eleven non-profit or university-affiliated organizations, each known as 
a Trade Adjustment Assistance Center (``TAAC''). The TAACs provide 
technical assistance to Firms that have lost domestic sales and 
employment due to increased imports of similar or competitive goods.
    In addition, the TGAAA amended chapter 4 of the Trade Act to 
establish the Community TAA Program. The purpose of this program is to 
assist communities impacted by trade with economic adjustment through 
the coordination of federal, State and local resources and the creation 
of community-based development strategies. EDA sets out in detail below 
proposed Community TAA Program regulations.

Proposed Community TAA Program Regulations

    Set out below are EDA's proposed regulations for the Community TAA 
Program, which would be codified at 13 CFR part 313. In addition to 
implementing the amendments to the Trade Act made by TGAAA, the 
proposed regulations reflect EDA's practices and policies in 
administering the Community TAA Program similar to its administration 
of programs under the Public Works and Economic Development Act of 
1965, as amended (42 U.S.C. 3121 et seq.). The discussion below 
presents the proposed regulations by section number and explains each 
proposed regulatory provision.
Part 313--Community Trade Adjustment Assistance
Authority Section
    The authority for the Community TAA Program regulations derives 
from the Trade Act, inclusive of the amendments made by TGAAA.
Section 313.1--Purpose and Scope
    This section introduces the Community TAA Program to the reader, 
including a reference to the TGAAA. It also provides the purpose of the 
program and a brief overview for its administration, including EDA's 
certification of Communities, provision of technical assistance, and 
assistance in the creation and implementation of Strategic Plans.
Section 313.2--Definitions
    This section proposes definitions for key terms to be used in part 
313. It includes terms provided in the TGAAA as well as new terms to 
increase clarity and to assist with the efficient

[[Page 20648]]

administration of the Community TAA Program.
    The following discussion traces the definition of ``Agricultural 
Commodity Producer'' as provided in the TGAAA. The TGAAA states that `` 
`Agricultural Commodity Producer' has the meaning given that term in 
section 291.'' Section 291 of the Trade Act states that ``[t]he term 
`agricultural commodity producer' has the same meaning prescribed by 
regulations promulgated under section 1308(e) of Title 7 (before the 
amendment made by section 1703(a) of the Food, Conservation, and Energy 
Act of 2008).'' Before it was amended by section 1703(e) of the Food 
Conservation, and Energy Act of 2008, section 1308(e) of Title 7 
provided that the Secretary of Agriculture would issue regulations 
defining the term ``person'' and required that for the purposes of the 
regulations ``the term `person' means--(i) an individual, including any 
individual participating in a farming operation as a partner in a 
general partnership, a participant in a joint venture, a grantor of a 
revocable trust, or a participant in a similar entity (as determined by 
the Secretary; (ii) a corporation, joint stock company, association, 
limited partnership, charitable organization, or other similar entity 
(as determined by the Secretary), including any such entity or 
organization participating in the farming operation as a partner in a 
general partnership, a participant in a joint venture, a grantor of a 
revocable trust, or as a participant in a similar entity (as determined 
by the Secretary); and (iii) a State, political subdivision, or agency 
thereof.'' The Trade Adjustment Assistance for Farmers regulations 
promulgated under section 1308(e) of Title 7 state: ``Person means an 
individual, partnership, joint stock owner, corporation, association, 
trust, estate, or any other legal entity as defined in 7 CFR 1400.3.''
    The term Community is defined in accordance with the TGAAA. The 
definition of Impacted Community combines and replaces the terms 
Community Impacted By Trade and Eligible Community as defined in the 
TGAAA. These terms were combined because they are essentially identical 
and merging them helps clarify the regulations and is consistent with 
the intent of the TGAAA.
    In addition, this section includes a definition for a Cognizable 
Certification. In accordance with the TGAAA, a Cognizable Certification 
may be a certification from the (i) Secretary of Labor that a group of 
workers in the Community is eligible for TAA for Workers benefits; (ii) 
Secretary of Commerce that a Firm in the Community is eligible for TAA 
for Firms benefits; or (iii) Secretary of Agriculture that a group of 
Agricultural Commodity Producers is eligible for TAA for Farmers and 
Fishermen benefits. Further, Strategic Plan is defined, and the concept 
of a Strategic Plan is fully described in proposed section 313.6.
Section 313.3--Overview of Community Trade Adjustment Assistance
    This section provides a more detailed roadmap for the 
administration of and participation in the Community TAA Program. 
First, a Community must petition for assistance and EDA must make an 
affirmative determination that the Community is impacted by trade; 
second, once an affirmative determination has been made, EDA will 
provide technical assistance to the Impacted Community to address that 
impact; third, EDA may provide an impacted Community with assistance in 
developing a Strategic Plan to the trade impacts; and fourth, EDA may 
provide assistance to implement certain projects described in the EDA-
approved Strategic Plan.
Section 313.4--Affirmative Determinations
    This section would implement section 273 of chapter 4 of the Trade 
Act, as amended by the TGAAA, which relates to the process and 
requirements for a Community's petition for EDA's affirmative 
determination that it is trade-impacted under the Community TAA 
Program. A Community's completed petition for an affirmative 
determination is the first step toward receiving assistance in the form 
of an implementation grant under proposed part 313. Sections 313.4(a) 
and (b) explain which Communities may petition for assistance. Section 
313.4(c) details what type of information a Community must provide to 
EDA in a petition and provides the criteria that EDA will use to make 
an affirmative determination that a Community is import-impacted. For 
EDA to make an affirmative determination about a Community, a 
Cognizable Certification must have been made with respect to the 
Community. As specified at Section 313.4(c), EDA will obtain applicable 
Cognizable Certifications from publicly available sources. However, to 
expedite a petition, a Community may choose to provide EDA with a copy 
of any applicable Cognizable Certification. In addition, the 
petitioning Community must provide information about the impact(s) on 
the Community from the actual or threatened loss of jobs attributable 
to the effects of competition by imports that led to the applicable 
Cognizable Certification(s) made by the Secretaries of Labor, Commerce 
or Agriculture, in order to allow EDA to determine that the Community 
is significantly affected. EDA will measure such impacts against the 
petitioning Community's most recent Civilian Labor Force statistics as 
reported by the Bureau of Labor Statistics, U.S. Department of Labor, 
effective at the time of petition for affirmative determination.
    Upon receiving appropriations for the Community TAA Program, EDA 
will publish guidance regarding the determination of the significance 
of the impact when it posts the announcement of federal funding 
opportunity online at eda.doc.gov. EDA anticipates that it will 
establish a threshold level for an impact to be considered 
``significant'' based on unemployment and the size of the Community.
    Once EDA makes an affirmative determination that a Community is 
trade-impacted, the Community becomes an Impacted Community, as defined 
in Section 313.2. Section 313.4(d) implements section 273(c) of the 
Trade Act as amended by TGAAA, which provides that EDA will promptly 
notify the Impacted Community and the Governor of the State in which 
the Impacted Community is located upon making an affirmative 
determination.
Section 313.5--Technical Assistance
    This section would implement subsections 274(a) and (b) of chapter 
4 of the Trade Act, as amended by the TGAAA, which provides the types 
of technical assistance an Impacted Community may receive. Upon an 
affirmative determination that a Community is an Impacted Community and 
subject to the availability of funding, EDA will provide technical 
assistance to the Impacted Community. Section 313.5(a) provides that an 
Impacted Community will receive technical assistance for certain 
purposes, which are to improve the Impacted Community's economy, 
identify impact-related economic challenges within the Impacted 
Community, and develop or update a Strategic Plan to address import 
impacts. Section 313.5(b) provides that EDA will coordinate the 
provision of technical assistance with other federal, State, and local 
resources to ensure the effective delivery of services and better 
leverage assistance.
Section 313.6--Strategic Plans
    Section 313.6 would implement section 276 of chapter 4 of the Trade

[[Page 20649]]

Act, as amended by the TGAAA, which relates to the development of a 
Strategic Plan to assist an Impacted Community. Under the TGAAA, the 
development of an EDA-approved Strategic Plan to address trade impacts 
is one type of technical assistance that an Impacted Community may 
receive under the Community TAA Program. An EDA-approved Strategic Plan 
is required before a Community may receive an implementation grant, as 
provided in Section 313.6(a). Section 313.6(b) provides that the 
Strategic Plan should be developed to the extent possible with 
participation from local, county, and State governments; local Firms 
(as defined under title II, chapter 3, section 259 of the Trade Act, as 
amended (see also the definition of Firm at 13 CFR 315.2)); local 
workforce investment boards; labor organizations; and educational 
institutions. Section 313.6(c) sets out the technical requirements of a 
Strategic Plan by which EDA will evaluate and approve the Strategic 
Plan. These requirements include an analysis of the economic 
development challenges facing the Impacted Community and the 
Community's capacity to achieve economic adjustment to these 
challenges; an assessment of the Community's long-term commitment to 
the Strategic Plan (including how it will be integrated with any 
existing Comprehensive Economic Development Strategy (CEDS) developed 
under EDA's economic development assistance programs as provided under 
Section 303.7) and the participation of Community members; a 
description of educational opportunities and future employment needs in 
the Community; an assessment of the funding required to implement the 
Strategic Plan, including a timeline and methods of financing; and a 
strategy for continuing the Impacted Community's economic adjustment 
after the projects in the Strategic Plans have been completed. Section 
313.6(d) provides that EDA's cost share of a Strategic Plan will not 
exceed 75 percent. To ensure that as many merit-worthy projects as 
possible are funded, EDA may base the Community's required cost share 
of developing a Strategic Plan on the Impacted Community's Civilian 
Labor Force statistics.
Section 313.7--Implementation Grants for Impacted Communities
    Section 313.7 would implement section 275 of chapter 4 of the Trade 
Act, as amended by the TGAAA, which relates to grants for implementing 
projects and programs included in an EDA-approved Strategic Plan. 
Section 313.7(a) provides that EDA may assist an Impacted Community in 
implementing a Strategic Plan project or program. Paragraphs (1)-(6) 
under Section 313.7(a) are a list of examples of projects that may be 
undertaken, including infrastructure projects; market or industry 
research and analysis; technical assistance; public services; training; 
and other activities justified in the Strategic Plan. Section 313.7(b) 
provides information on the application for an implementation grant and 
how an Impacted Community's application for assistance will be 
evaluated. Section 313.7(c) provides for maximum coordination of 
implementation grants among the Impacted Community's existing grant 
programs. Section 313.7(d) explains the cost-sharing requirements 
applicable to implementation grants. The federal share may not exceed 
95 percent and, as mentioned earlier, to ensure that as many merit-
worthy projects as possible are funded, EDA may base the Community`s 
required share of implementing a Strategic Plan on the Impacted 
Community's Civilian Labor Force statistics. Section 313.7(e) specifies 
the statutory funding limitation that an Impacted Community may not 
receive more than $5,000,000 in implementation grant funding under the 
Community TAA Program.
Section 313.8--Competitive Process
    In accordance with EDA's economic development assistance programs 
and to ensure effective expenditure of federal funds, this section 
proposes that EDA will review all applications for the development of a 
Strategic Plan and for an implementation grant under the Community TAA 
Program in accord with a competitive process, as set out in an 
applicable Federal Funding Opportunity (``FFO'') announcement, provided 
monies are appropriated for the program. Paragraph (b) implements 
section 275(e) of chapter 4 of the Trade Act, as amended by the TGAAA, 
which provides for priority for the implementation grant applications 
received from small- and medium-sized Communities. Paragraph (c) 
implements section 277(c)(3) of chapter 4 of the Trade Act, as amended 
by the TGAAA, which provides that the Community TAA Program shall 
supplement and not supplant other federal, State, and local assistance 
to Communities.
Section 313.9--Records
    This section provides that a Community that receives assistance 
under the Community TAA Program is subject to the records requirements 
set out at 13 CFR 302.14.
Section 313.10--Conflicts of Interest
    This section clarifies that a Community that receives assistance 
under the Community TAA Program is subject to the conflicts-of-interest 
provisions set out at 13 CFR 302.17.
Section 313.11--Other Requirements
    This section clarifies that a Community that receives assistance 
under the proposed part 313 is subject to certain other award 
requirements set out in EDA's regulations at 13 CFR part 302, including 
terms and conditions relating to environmental, post-disaster 
assistance, public information, relocation assistance and land 
acquisitions, federal policies and procedures, amendments and changes, 
pre-approval costs, intergovernmental project review, attorneys' and 
consultants' fees and the employment of expediters, the economic 
development information clearinghouse, project administration, 
operation and maintenance, post-approval requirements, indemnification, 
civil rights and property management. The section provides the 
citations for all of these requirements.

Discussion of Changes to the TAAF Program Regulations

    EDA proposes revisions to 13 CFR part 315 to implement provisions 
of the TGAAA that expand the scope of the TAAF Program to include 
service sector firms, modify the requirements for certification, and 
make conforming changes to other related provisions in the regulations.
    EDA provides below a discussion of all substantive revisions 
according to section number. Where substantive and non-substantive 
changes are made in one part, they are discussed together. Non-
substantive edits may include grammatical changes and are intended to 
clarify or make a specific provision easier to understand. Additional 
non-substantive changes also update the regulations in light of 
developments since EDA's publication of an interim final rule on 
October 22, 2008 (73 FR 62858). Capitalized terms used but not 
otherwise defined in the discussion below have the meanings ascribed to 
them in 13 CFR 315.2. For convenience and ease of reading, EDA sets 
forth the revised regulatory text for the program in its entirety.
Part 315--Trade Adjustment Assistance for Firms
Authority Section
    The authority from which the TAAF Program regulations derive is the 
Trade Act, as amended by the TGAAA.

[[Page 20650]]

Section 315.2--Definitions
    In the definition of Decreased Absolutely, EDA proposes to replace 
the word ``irrespective'' in paragraph (1) with the word 
``independent'', for increased clarity and ease of understanding. This 
change does not in any way alter the definition of the term Decreased 
Absolutely or EDA's current administration of the TAAF Program.
    EDA proposes to revise the definition of Directly Competitive to 
include services to take into account the TGAAA's inclusion of 
``service sector firms'' as eligible for trade adjustment assistance. 
In addition, EDA revised the definition with respect to Firms engaged 
in exploring, drilling, or producing oil or natural gas to ensure that 
the definition hues closely to the statutory treatment set out in 
section 251(c)(2)(B) of the Trade Act.
    A significant change to this section involves the TGAAA's expansion 
of the definition of Firm to include a ``service sector firm.'' 
Accordingly, the first sentence of the definition is revised to include 
service sector entities. A statement is included following this 
sentence to direct the reader to the new definition of Service Sector 
Firm found later in this section. Similarly, the definition of Like 
Articles is expanded to include services.
    The definition of Increase in Imports is revised to include a 
discussion of the type of evidence EDA may consider in determining 
whether an increase in imports has occurred in a particular situation. 
The proposed revision adds the new requirement from section 1863 of the 
TGAAA to permit EDA to determine that an Increase in Imports exists if 
customers accounting for a significant percentage of the decline in a 
Firm's sales or production certify that their purchases of imported 
Like Articles or Services have increased absolutely or relative to the 
acquisition of such Like Articles or Services from suppliers in the 
United States.
    EDA proposes to include a new term in this section to define 
``Service Sector Firm'' as a Firm engaged in the business of supplying 
services. The definition also includes language similar to that 
contained in the definition of Firm to make clear that for purposes of 
receiving benefits under 13 CFR part 315, when a Service Sector Firm 
owns or controls other Service Sector Firms, the Service Sector Firm 
and such other Service Sector Firms may be considered a single Service 
Sector Firm when they furnish like or Directly Competitive services or 
are exerting essential economic control over one or more servicing 
facilities.
Section 315.5--TAAC Scope, Selection, Evaluation and Awards
    For increased clarity, EDA deletes the last sentence in paragraph 
(a) because an FFO announcement typically is not published in 
connection with administering the TAAF Program. Also for increased 
clarity and consistency, EDA replaces the words ``and/or'' with ``or'' 
in paragraph (b)(1). In Section 315(b)(2), EDA replaces the words 
``TAAC proposals'' with ``applications,'' and deletes the second 
sentence because EDA no longer has a two-step application process. An 
application would be submitted on EDA's Form ED-900. In Section 
315.5(c)(2)(iv), the word ``funding'' is replaced with ``funds'' for 
consistency with the phrase ``availability of funds'' in Section 
315.5(c)(1)(iii). Finally, in Section 315.5(d)(1), EDA clarifies that 
it funds a TAAC for a three-year project period that consists of three 
12-month ``funding periods.'' This revision is made to bring the 
regulation in line with current administration of the TAAF Program.
Section 315.7--Certification Requirements
    This section would be revised to reflect changes made by the TGAAA 
to the time periods that Firms may use to demonstrate injury due to an 
Increase in Imports. As set out in the certification thresholds at 
Section 315.7(b) and defined at Section 315.2, for certification under 
the TAAF Program, a Firm must present data to demonstrate three basic 
items: that its sales or production have Declined Absolutely, a 
Significant Number of Workers became or are threatened to be totally or 
partially separated, and increased imports Contributed Importantly to 
the decline in sales or production and workforce. Before the enactment 
of the TGAAA, a Firm was permitted to present data for certification 
from the 12 months immediately preceding the most recent 12-month 
period for which data are available, to demonstrate that imports 
adversely impacted its business under one of the thresholds. The 
amendments to the Trade Act expand this ``look back'' period so that a 
Firm may use the average of one, two, or three years of sales or 
production data, or both, preceding the most recent 12-month period for 
which data are available to demonstrate that the Firm's sales or 
production have Decreased Absolutely or that the Firm's sales, 
production, or both of an article or service that accounts for at least 
25 percent of its total production or sales has Decreased Absolutely as 
a result of increased imports. Therefore, EDA proposes to revise 
paragraph (b) to include the new 24-, and 36-month ``look back'' or 
comparison time periods to the existing 12-month, interim sales or 
production decline, and interim employment decline thresholds. For 
clarity and ease of reading, EDA has set out each certification 
threshold separately, and the inclusion of the 24- and 36-month 
comparison periods increases the number of certification thresholds 
from three to five. EDA, however, is not proposing to change the 
certification requirement beyond expanding the allowable comparison 
periods. EDA will continue to accept petitions that are able to 
demonstrate six months of sales or production data or six months of 
employment data for an interim sales or production decline or 
employment decline in accordance with Sections 315.7(b)(4) and (5). For 
each of the five certification thresholds listed in paragraph (b), the 
required Increase in Imports is revised to make clear that any such 
Increase in Imports must have Contributed Importantly to the applicable 
Total or Partial Separation or Threat of Total or Partial Separation, 
and to the applicable decline in sales or production or supply of 
services as required by section 251 of the Trade Act.
Section 315.8--Processing Petitions for Certification
    EDA revises Section 315.8 to implement the expansion of the TAAF 
Program to include ``service section firms'' pursuant to the TGAAA. 
Paragraphs (b)(2) and (b)(3), which discuss the scope of information 
required in Form ED-840P, would be revised to include information on 
services. In addition, paragraph (b)(4) would be revised to include 24-
, 36-, and 48-month periods in line with the additional ``look back'' 
time periods proposed in Section 315.7(b). In accordance with the 
amendments to the Trade Act made by the TGAAA, EDA would amend 
paragraph (g)(1) to reduce the maximum time period in which EDA is 
allowed to make its determination from 60 days to 40 days.
Section 315.10--Loss of Certification Benefits
    In paragraph (d) of this section, EDA proposes to change the length 
of the time period that a Firm has to diligently pursue an approved 
Adjustment Proposal after the date of certification from two years to 
five years. This revision would make this provision consistent with 
EDA's current practice that allows Certified Firms to have five, not 
two, years from the date of EDA's approval of an Adjustment Proposal to

[[Page 20651]]

complete work on that Adjustment Proposal. It has been EDA's experience 
that it generally takes Certified Firms longer than two years to 
diligently implement an Adjustment Proposal. This may occur for a 
variety of reasons, generally time needed to gather the capacity and 
resources to implement the goals of the Adjustment Proposal and some 
projects may have extended time horizons. This change would therefore 
implement current practice.
Section 315.14--Certifications
    In order to track the Trade Act more accurately in this section, 
EDA proposes to amend this section to clarify that the certification 
must be provided to EDA.

Classification

    Prior notice and opportunity for public comment are not required 
for rules concerning public property, loans, grants, benefits, and 
contracts (5 U.S.C. 553(a)(2)). Because prior notice and an opportunity 
for public comment are not required pursuant to 5 U.S.C. 553, or any 
other law, the analytical requirements of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory 
flexibility analysis has not been prepared.

Paperwork Reduction Act

    This NPRM contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA). The use of Form ED-900 
(Application for Investment Assistance) has been approved by the Office 
of Management and Budget (OMB) under the Control Number 0610-0094. To 
estimate burden, EDA examined its experience with its public works and 
economic adjustment assistance programs. The potential demand for those 
programs is of course much greater because eligibility is based on 
general economic distress and is not restricted to trade impact. EDA 
estimates that demand from trade impacted areas would constitute a 
small fraction of all areas experiencing economic distress. 
Nonetheless, to a certain extent that demand will be elastic depending 
on the amount of appropriations Congress and the President approve for 
the program. Because the respondent burden will be similar for 
applications under trade program as it is for applications under EDA's 
traditional programs, if the Community TAA Program is funded at its 
authorized level of $150,000,000, EDA estimates that it may receive 
about 350 responses for a petition for affirmative determination and 
300 responses for an implementation grant. EDA estimates that the total 
annual paperwork burden for a petition for affirmative determination 
would be about 550 hours and the total annual paperwork burden for an 
implementation grant application would be about 6,500 hours. The use of 
Form ED-840P (Petition by a Firm for Certification of Eligibility to 
Apply for Trade Adjustment Assistance) has been approved by OMB under 
the Control Number 0610-0091. In light of the expansion of the TAAF 
Program to service firms and the expansion of the ``look back'' period, 
EDA estimates responses related to certifications of eligibility will 
increase more than 100 percent to about 500 responses and that the 
total annual paperwork burden would be about 4,100 hours.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

Executive Order No. 12866

    It has been determined that this NPRM is significant for purposes 
of Executive Order 12866.

Congressional Review Act

    This NPRM is not ``major'' under the Congressional Review Act (5 
U.S.C. 801 et seq.)

Executive Order No. 13132

    Executive Order 13132 requires agencies to develop an accountable 
process to ensure ``meaningful and timely input by State and local 
officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in Executive Order 13132 to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' It has been determined that this NPRM does not contain 
policies that have federalism implications.

List of Subjects

13 CFR Part 313

    Impacted community, Implementation grant, Petition and affirmative 
determination requirements, Strategic plan, Trade adjustment assistance 
for communities.

13 CFR Part 315

    Adjustment proposals, Administrative practice and procedure, 
Certification requirements, Eligible petitioner, Firm selection, 
Recordkeeping and audit requirements, Trade adjustment assistance.

Regulatory Text

    For reasons stated in the preamble, EDA amends chapter III of title 
13 of the Code of Federal Regulations to add new part 313, and to amend 
part 315 as follows:
    1. Add new part 313 to read as follows:

PART 313--COMMUNITY TRADE ADJUSTMENT ASSISTANCE

Subpart A--General Provisions
Sec.
313.1 Purpose and Scope.
313.2 Definitions.
Subpart B--Participation in the Community Trade Adjustment Assistance 
Program
313.3 Overview of Community Trade Adjustment Assistance.
313.4 Affirmative Determinations.
313.5 Technical Assistance.
313.6 Strategic Plans.
313.7 Implementation Grants for Impacted Communities.
313.8 Competitive Process.
Subpart C--Administrative Provisions
313.9 Records.
313.10 Conflicts of Interest.
313.11 Other Requirements.

    Authority: 19 U.S.C. 2341 et seq., as amended by Division B, 
Title I, Subtitle I, Part II of Pub. L. No. 111-5; 42 U.S.C. 3211; 
Department of Commerce Organizational Order 10-4.

Subpart A--General Provisions


Sec.  313.1  Purpose and scope.

    The regulations in this part set forth the responsibilities of the 
Secretary of Commerce under chapter 4 of title II of the Trade Act 
concerning Community Trade Adjustment Assistance (``Community TAA''). 
The Community TAA Program is designed to assist communities impacted by 
trade with economic adjustment through the coordination of federal, 
State, and local resources, the creation of community-based development 
strategies, and the development and provision of programs that meet the 
training needs of workers. The statutory authority and responsibilities 
of the Secretary of Commerce relating to Community TAA are delegated to 
EDA. EDA certifies Communities as eligible to apply for assistance 
under the Community TAA Program, provides technical assistance to 
Impacted Communities, and provides implementation assistance to 
Impacted Communities in preparing and carrying out Strategic Plans.

[[Page 20652]]

Sec.  313.2  Definitions.

    In addition to the defined terms set forth in Sec.  300.3 of this 
chapter, the terms used in this part shall have the following meanings:

    Agricultural Commodity Producer has the same meaning given to that 
term in title II, chapter 6, section 291 of the Trade Act.

    Cognizable Certification means a certification:

    (1) By the Secretary of Labor that a group of workers in the 
Community is eligible to apply for assistance under chapter 2, section 
223 of the Trade Act;
    (2) By the Secretary of Commerce that a Certified Firm (as defined 
at Sec.  315.2 of this chapter) located in the Community is eligible to 
apply for Adjustment Assistance in accordance with chapter 3, sections 
251-253 of the Trade Act; or
    (3) By the Secretary of Agriculture that a group of agricultural 
commodity producers in the Community is eligible to apply for 
assistance under chapter 6, section 293 of the Trade Act.

    Community means a city, county, or other political subdivision of a 
State or a consortium of political subdivisions of a State.

    Community Adjustment Assistance means technical and implementation 
assistance provided to a Community under chapter 4 of title II of the 
Trade Act.

    Impacted Community means a Community that is affected by trade to 
such a degree that the Secretary has made an affirmative determination 
that it is eligible to apply for assistance under this part.

    Strategic Plan means an Impacted Community's plan for improving its 
economic situation developed in accordance with Sec.  313.6.

Subpart B--Participation in the Community Trade Adjustment 
Assistance Program


Sec.  313.3  Overview of Community Trade Adjustment Assistance.

    The Community TAA Program is designed to assist Communities 
impacted by trade to adjust to that impact. The Community TAA Program 
will be administered in accordance with the following process:
    (a) Determination of eligibility. First, EDA must make an 
affirmative determination that the Community is impacted by trade in 
accordance with Sec.  313.4.
    (b) Provision of technical assistance. After an affirmative 
determination is made, EDA will provide the Impacted Community with 
technical assistance in accordance with Sec.  313.5.
    (c) Strategic Plan development. An Impacted Community that intends 
to apply for an implementation grant in accordance with Sec.  313.7 
must develop, in accordance with Sec.  313.6, an EDA-approved Strategic 
Plan.
    (d) Implementation grant. In accordance with Sec.  313.7, EDA may 
award an implementation grant to assist an Impacted Community in 
carrying out a project or program included in a Strategic Plan.


Sec.  313.4  Affirmative Determinations.

    (a) General. Subject to the availability of funds, a Community may 
apply for an affirmative determination if:
    (1) On or after August 1, 2009, one or more Cognizable 
Certifications are made with respect to the Community; and
    (2) The Community submits the petition at least 180 days after the 
date of the most recent Cognizable Certification.
    (b) Grandfathered Communities. If one or more Cognizable 
Certifications were made with respect to a Community on or after 
January 1, 2007, and before August 1, 2009, the Community may submit a 
petition to EDA for an affirmative determination under this section not 
later than February 1, 2010.
    (c) Affirmative determination petition requirements. (1) The 
Community must submit a complete petition to the applicable regional 
office (or regional offices in the event the Community crosses multiple 
geographic boundaries) serving the geographic area in which the 
Community is located. A complete petition for an affirmative 
determination shall contain the following:
    (i) The Application for Federal Assistance (Form SF-424) and 
sections A1-A10 of the Application for Investment Assistance (Form ED-
900 or any successor form);
    (ii) The applicable Cognizable Certification(s) upon which the 
Community bases its petition; and
    (iii) Such other information as EDA considers material.
    (2) The petition for affirmative determination must contain 
information about the impact(s) on the Community from the actual or 
threatened loss of jobs attributable to the effects of competition by 
imports that led to the applicable Cognizable Certification(s) made by 
the Secretaries of Labor, Commerce or Agriculture, in order for EDA to 
determine that the Community is significantly affected. EDA shall 
measure such impact(s) using the petitioning Community's most recent 
Civilian Labor Force statistics as reported by the Bureau of Labor 
Statistics, U.S. Department of Labor, effective at the time of petition 
for affirmative determination. EDA will obtain the applicable 
Cognizable Certification from publicly available resources. However, a 
petitioning Community may also provide copies of the applicable 
Cognizable Certification to EDA.
    (d) Notification to Community. Upon making an affirmative 
determination, EDA shall notify promptly the Community and the Governor 
of the State in which the Community is located of the means for 
obtaining assistance under this part and other appropriate economic 
assistance that may be available to the Community. Such notification 
will identify the appropriate EDA regional office that will provide 
technical assistance under Sec.  313.6.


Sec.  313.5  Technical Assistance.

    (a) General. Once EDA has made an affirmative determination that a 
Community is an Impacted Community and subject to the availability of 
funds, EDA shall provide comprehensive technical assistance to:
    (1) Diversify and strengthen the economy in the Impacted Community;
    (2) Identify significant impediments to economic development that 
result from the impact of trade on the Impacted Community; and
    (3) Develop or update a Strategic Plan in accordance with Sec.  
313.6 to address economic adjustment and workforce dislocation in the 
Impacted Community, including unemployment among agricultural commodity 
producers.
    (b) Coordination of federal response. EDA will coordinate the 
federal response to an Impacted Community by:
    (1) Identifying federal, State, and local resources that are 
available to assist the Impacted Community in responding to economic 
distress; and
    (2) Assisting the Impacted Community in accessing available federal 
assistance and ensuring that such assistance is provided in a targeted, 
integrated manner.


Sec.  313.6  Strategic Plans.

    (a) General. An Impacted Community that intends to apply for a 
grant for implementation assistance under Sec.  313.7 shall develop and 
submit a Strategic Plan to EDA for evaluation and approval. EDA shall 
evaluate the Strategic Plan based on the technical requirements set 
forth in paragraph (c) of this section.
    (b) Involvement of private and public entities. To the extent 
practicable, an Impacted Community shall consult with the following 
entities in developing a Strategic Plan:

[[Page 20653]]

    (1) Federal, local, county, or State government agencies serving 
the Impacted Community;
    (2) Firms, as defined in Sec.  315.2 of this chapter, including 
small- and medium-sized Firms, within the Impacted Community;
    (3) Local workforce investment boards established under section 117 
of the Workforce Investment Act of 1998 (29 U.S.C. 2832);
    (4) Labor organizations, including State labor federations and 
labor-management initiatives, representing workers in the Impacted 
Community; and
    (5) Educational institutions, local educational agencies, or other 
training providers serving the Impacted Community.
    (c) Technical requirements. EDA shall evaluate the Strategic Plan 
based on the following minimum requirements:
    (1) An analysis of the capacity of the Impacted Community to 
achieve economic adjustment to the impact(s) of trade;
    (2) An analysis of the economic development challenges and 
opportunities facing the Impacted Community as well as the strengths, 
weaknesses, opportunities, and threats facing the Impacted Community;
    (3) An assessment of the commitment of the Impacted Community to 
the Strategic Plan over the long term and the participation and input 
of members of the Community affected by economic dislocation, including 
how the Strategic Plan will be integrated effectively with one or more 
applicable Comprehensive Economic Development Strategies (CEDS) that 
have been developed in connection with EDA's economic development 
assistance programs as set out at Sec.  303.7 of this chapter;
    (4) A description of the role and the participation of the entities 
described in paragraph (b) of this section in developing the Strategic 
Plan;
    (5) A description of the projects to be undertaken by the Impacted 
Community under its Strategic Plan and how such projects will 
facilitate the Impacted Community's economic adjustment;
    (6) A description of the educational and training programs 
available to workers in the Impacted Community and the future 
employment needs of the Community;
    (7) An assessment of the cost of implementing the Strategic Plan, 
including the timing of funding required by the Impacted Community to 
implement the Strategic Plan and the method of financing to be used to 
implement the Strategic Plan; and
    (8) A strategy for continuing the economic adjustment of the 
Impacted Community after the completion of the projects described in 
paragraph (c)(5) of this section.
    (d) Cost sharing limitation. Assistance awarded to an Impacted 
Community to develop a Strategic Plan under this section shall not 
exceed 75 percent of the cost of developing the Strategic Plan. In 
order to provide funding to as many merit-worthy Impacted Communities 
as feasible, EDA may base the amount of the Community's required share 
on the relative distress caused by the actual or threatened decline in 
the most recent Civilian Labor Force statistics effective on the date 
EDA receives an application to develop a Strategic Plan.


Sec.  313.7  Implementation Grants for Impacted Communities.

    (a) General. EDA may provide assistance in the form of a grant 
under this section to an Impacted Community to help the Community carry 
out a project or program that is included in a Strategic Plan developed 
in accordance with Sec.  313.6. Such assistance may include:
    (1) Infrastructure improvements, such as site acquisition, site 
preparation, construction, rehabilitation and equipping of facilities;
    (2) Market or industry research and analysis;
    (3) Technical assistance, including organizational development such 
as business networking, restructuring or improving the delivery of 
business services, or feasibility studies;
    (4) Public services;
    (5) Training; and
    (6) Other activities justified by the Strategic Plan that satisfy 
applicable statutory and regulatory requirements.
    (b) Application evaluation criteria. (1) An Impacted Community that 
seeks to receive an implementation grant under this section shall 
submit a completed Application for Investment Assistance (Form ED-900 
or any successor form) to the applicable regional office (or regional 
offices in the event the Community crosses multiple geographic 
boundaries) serving the geographic area in which the Community is 
located. A complete application also shall include:
    (i) The EDA-approved Strategic Plan that meets the requirements of 
Sec.  313.6; and
    (ii) A description of the project or program included in the 
Strategic Plan with respect to which the Impacted Community seeks 
assistance.
    (2) EDA will evaluate all applications for the feasibility of the 
budget presented and conformance with statutory and regulatory 
requirements. EDA also will consider the degree to which an 
implementation grant in the Impacted Community will satisfy the 
evaluation criteria set forth in the applicable Federal Funding 
Opportunity (``FFO'') announcement.
    (c) Coordination among grant programs. If an entity in an Impacted 
Community seeks or plans to seek a Community College and Career 
Training Grant under section 278 of the Trade Act or a Sector 
Partnership Grant under section 279A of the Trade Act while the 
Impacted Community seeks assistance under this section, the Impacted 
Community shall include in the application for assistance a description 
of how the Impacted Community will integrate any projects or programs 
carried out using assistance provided under this section with any 
projects or programs that may be implemented with other federal 
assistance.
    (d) Cost sharing requirement. (1) If an Impacted Community is 
awarded an implementation grant under this section, the following 
requirements shall apply:
    (i) Federal share. The federal share of a project or program for 
which a grant is awarded may not exceed 95 percent of the cost of 
implementing the project or program; and
    (ii) Community's share. The Impacted Community must contribute at 
least five percent of the amount of the implementation grant towards 
the cost of implementing the project or program for which the grant is 
awarded.
    (2) In order to provide funding to as many merit-worthy Impacted 
Communities as feasible, EDA may base the amount of the Community's 
required share on the relative distress caused by the actual or 
threatened decline in the most recent Civilian Labor Force statistics 
effective on the date EDA receives an application for an implementation 
grant.
    (e) Limitation. An Impacted Community may not be awarded more than 
$5,000,000 in implementation grant assistance under this section.


Sec.  313.8  Competitive Process.

    (a) Applications for assistance to develop a Strategic Plan or for 
an implementation grant shall be reviewed by EDA in accord with a 
competitive process as set forth in the applicable FFO, to ensure that 
EDA awards funds to the most merit-worthy projects.
    (b) Priority for grants to small- and medium-sized Communities. EDA 
shall give priority to an application submitted under this part by an 
Impacted Community that is a small- or medium-sized Community.
    (c) Supplement, not supplant. The Community TAA Program and any

[[Page 20654]]

funds appropriated to implement its provisions shall be used to 
supplement and not supplant other federal, State, and local public 
funds expended to provide economic development assistance for 
Communities.

Subpart C--Administrative Provisions


Sec.  313.9  Records.

    Communities that receive assistance under this part are subject to 
the records requirements set out in Sec.  302.14 of this chapter.


Sec.  313.10  Conflicts of interest.

    Communities that receive assistance under this part are subject to 
the conflicts of interest provisions as set out in Sec.  302.17 of this 
chapter.


Sec.  313.11  Other requirements.

    Communities that receive assistance under this part are subject to 
the general terms and conditions for Investment Assistance set out in 
part 302 of this chapter relating to requirements involving the 
environment (Sec.  302.1); post-disaster assistance (Sec.  302.2); 
public information (Sec.  302.4); relocation assistance and land 
acquisition (Sec.  302.5); federal policies and procedures (Sec.  
302.6); amendments and changes to awards (Sec.  302.7); pre-approval 
costs (Sec.  302.8); intergovernmental project reviews (Sec.  302.9); 
attorneys' and consultants' fees or the employment of expediters (Sec.  
302.10); EDA's economic development information clearinghouse (Sec.  
302.11); project administration, operation, and maintenance (Sec.  
302.12); post-approval requirements (Sec.  302.18); indemnification 
(Sec.  302.19); and civil rights (Sec.  302.20). In addition, any 
Property (defined in Sec.  314.1) acquired in connection with 
Investment Assistance is subject to the property management regulations 
set out in part 314 of this chapter.
    2. Revise part 315 to read as follows:

PART 315--TRADE ADJUSTMENT ASSISTANCE FOR FIRMS

Subpart A--General Provisions
Sec.
315.1 Purpose and scope.
315.2 Definitions.
315.3 Confidential Business Information.
315.4 Eligible applicants.
315.5 TAAC scope, selection, evaluation and awards.
315.6 Firm eligibility for Adjustment Assistance.
Subpart B--Certification of Firms
315.7 Certification requirements.
315.8 Processing petitions for certification.
315.9 Hearings.
315.10 Loss of certification benefits.
315.11 Appeals, final determinations and termination of 
certification.
Subpart C--Protective Provisions
315.12 Recordkeeping.
315.13 Audit and examination.
315.14 Certifications.
315.15 Conflicts of interest.
Subpart D--Adjustment Proposals
315.16 Adjustment Proposal Requirements.
Subpart E--Assistance to Industries
315.17 Assistance to Firms in import-impacted industries.

    Authority: 19 U.S.C. 2341 et seq., as amended by Division B, 
Title I, Subtitle I, Part II of Pub. L. No. 111-5; 42 U.S.C. 3211; 
Department of Commerce Organization Order 10-4.

Subpart A--General Provisions


Sec.  315.1  Purpose and scope.

    The regulations in this part set forth the responsibilities of the 
Secretary of Commerce under chapter 3 of title II of the Trade Act 
concerning Trade Adjustment Assistance for Firms. The statutory 
authority and responsibilities of the Secretary of Commerce relating to 
Adjustment Assistance are delegated to EDA. EDA certifies Firms as 
eligible to apply for Adjustment Assistance, provides technical 
Adjustment Assistance to Firms and other recipients, and provides 
assistance to organizations representing trade injured industries.


Sec.  315.2  Definitions.

    In addition to the defined terms set forth in Sec.  300.3 of this 
chapter, the following terms used in this part shall have the following 
meanings:
    Adjustment Assistance means technical assistance provided to Firms 
or industries under chapter 3 of title II of the Trade Act.
    Adjustment Proposal means a Certified Firm's plan for improving its 
economic situation.
    Certified Firm means a Firm which has been determined by EDA to be 
eligible to apply for Adjustment Assistance.
    Confidential Business Information means any information submitted 
to EDA or a TAAC by a Firm that concerns or relates to trade secrets 
for commercial or financial purposes, which is exempt from public 
disclosure under 5 U.S.C. 552(b)(4), 5 U.S.C. 552b(c)(4) and 15 CFR 
part 4.
    Contributed Importantly, with respect to an Increase in Imports, 
refers to a cause which is important but not necessarily more important 
than any other cause. Imports will not be considered to have 
Contributed Importantly if other factors were so dominant, acting 
singly or in combination, that the worker separation or threat thereof 
or decline in sales or production would have been essentially the same, 
irrespective of the influence of imports.
    Decreased Absolutely means a Firm's sales or production has 
declined by a minimum of five percent relative to its sales or 
production during the applicable prior time period,
    (1) Independent of industry or market fluctuations; and
    (2) Relative only to the previous performance of the Firm, unless 
EDA determines that these limitations in a given case would not be 
consistent with the purposes of the Trade Act.
    Directly Competitive means imported articles or services that 
compete with and are substantially equivalent for commercial purposes 
(i.e., are adapted for the same function or use and are essentially 
interchangeable) as the Firm's articles or services. Any Firm that 
engages in exploring or drilling for oil or natural gas, or otherwise 
produces oil or natural gas, shall be considered to be producing 
articles directly competitive with imports of oil and with imports of 
natural gas.
    Firm means an individual proprietorship, partnership, joint 
venture, association, corporation (includes a development corporation), 
business trust, cooperative, trustee in bankruptcy or receiver under 
court decree, and includes fishing, agricultural or service sector 
entities and those which explore, drill or otherwise produce oil or 
natural gas. See also the definition of Service Sector Firm. Pursuant 
to section 261 of chapter 3 of title II of the Trade Act (19 U.S.C. 
2351), a Firm, together with any predecessor or successor firm, or any 
affiliated firm controlled or substantially beneficially owned by 
substantially the same person, may be considered a single Firm where 
necessary to prevent unjustifiable benefits. For purposes of receiving 
benefits under this part, when a Firm owns or controls other Firms, the 
Firm and such other Firms may be considered a single Firm when they 
produce or supply like or Directly Competitive articles or services or 
are exerting essential economic control over one or more production 
facilities. Accordingly, such other Firms may include a(n):
    (1) Predecessor--see the following definition for Successor;
    (2) Successor--a newly established Firm (that has been in business 
less than two years) which has purchased substantially all of the 
assets of a previously operating company (or in some cases a whole 
distinct division)

[[Page 20655]]

(such prior company, unit or division, a ``Predecessor'') and is able 
to demonstrate that it continued the operations of the Predecessor 
which has operated as an autonomous unit, provided that there were no 
significant transactions between the Predecessor unit and any related 
parent, subsidiary, or affiliate that would have affected its past 
performance, and that separate records are available for the 
Predecessor's operations for at least two years before the petition is 
submitted. The Successor Firm must have continued virtually all of the 
Predecessor Firm's operations by producing the same type of products or 
services, in the same plant, utilizing most of the same machinery and 
equipment and most of its former workers, and the Predecessor Firm must 
no longer be in existence;
    (3) Affiliate--a company (either foreign or domestic) controlled or 
substantially beneficially owned by substantially the same person or 
persons that own or control the Firm filing the petition; or
    (4) Subsidiary--a company (either foreign or domestic) that is 
wholly owned or effectively controlled by another company.
    Increase in Imports means an increase of imports of Directly 
Competitive or Like Articles or Services with articles produced or 
services supplied by such Firm. EDA may consider as evidence of an 
Increase in Imports a certification from the Firm's customers that 
account for a significant percentage of the Firm's decrease in sales or 
production that they have increased their purchase of imports of 
Directly Competitive or Like Articles or Services from a foreign 
country, either absolutely or relative to their acquisition of such 
Like Articles or Services from suppliers located in the United States.
    Like Articles or Services means any articles or services, as 
applicable, which are substantially identical in their intrinsic 
characteristics.
    Partial Separation means, with respect to any employment in a Firm, 
either:
    (1) A reduction in an employee's work hours to 80 percent or less 
of the employee's average weekly hours during the year of such 
reductions as compared to the preceding year; or
    (2) A reduction in the employee's weekly wage to 80 percent or less 
of his/her average weekly wage during the year of such reduction as 
compared to the preceding year.
    Person means an individual, organization or group.
    Record means any of the following:
    (1) A petition for certification of eligibility to qualify for 
Adjustment Assistance;
    (2) Any supporting information submitted by a petitioner;
    (3) The report of an EDA investigation with respect to petition; 
and
    (4) Any information developed during an investigation or in 
connection with any public hearing held on a petition.
    Service Sector Firm means a Firm engaged in the business of 
supplying services. For purposes of receiving benefits under this part, 
when a Service Sector Firm owns or controls other Service Sector Firms, 
the Service Sector Firm and such other Service Sector Firms may be 
considered a single Service Sector Firm when they furnish like or 
Directly Competitive services or are exerting essential economic 
control over one or more servicing facilities. Such other Service 
Sector Firm may be a Predecessor, Successor, Affiliate or Subsidiary, 
each as defined in the definition of Firm.
    Significant Number or Proportion of Workers means five percent of a 
Firm's work force or 50 workers, whichever is less, unless EDA 
determines that these limitations in a given case would not be 
consistent with the purposes of the Trade Act. An individual farmer or 
fisherman is considered a Significant Number or Proportion of Workers.
    Substantial Interest means a direct material economic interest in 
the certification or non-certification of the petitioner.
    TAAC means a Trade Adjustment Assistance Center, as more fully 
described in Sec.  315.5.
    Threat of Total or Partial Separation means, with respect to any 
group of workers, one or more events or circumstances clearly 
demonstrating that a Total or Partial Separation is imminent.
    Total Separation means, with respect to any employment in a Firm, 
the laying off or termination of employment of an employee for lack of 
work.


Sec.  315.3  Confidential Business Information.

    EDA will follow the procedures set forth in 15 CFR 4.9 for the 
submission of Confidential Business Information. Submitters should 
clearly mark and designate as confidential any Confidential Business 
Information.


Sec.  315.4  Eligible applicants.

    (a) The following entities may apply for assistance to operate a 
TAAC:
    (1) Universities or affiliated organizations;
    (2) States or local governments; or
    (3) Non-profit organizations.
    (b) For purposes of Sec.  315.17 and to the extent funds are 
appropriated to implement section 265 of the Trade Act, organizations 
assisting or representing industries in which a substantial number of 
Firms or workers have been certified as eligible to apply for 
Adjustment Assistance under sections 223 and 251 of the Trade Act, 
include:
    (1) Existing agencies;
    (2) Private individuals;
    (3) Firms;
    (4) Universities;
    (5) Institutions;
    (6) Associations;
    (7) Unions; or
    (8) Other non-profit industry organizations.


Sec.  315.5  TAAC scope, selection, evaluation and awards.

    (a) TAAC purpose and scope.
    (1) TAACs are available to assist Firms in obtaining Adjustment 
Assistance in all 50 U.S. States, the District of Columbia and the 
Commonwealth of Puerto Rico. TAACs provide Adjustment Assistance in 
accordance with this part either through their own staffs or by 
arrangements with outside consultants. Information concerning TAACs 
serving particular areas may be obtained from the TAAC Web site at 
http://www.taacenters.org or from EDA at http://www.eda.gov.
    (2) Prior to submitting a petition for Adjustment Assistance to 
EDA, a Firm should determine the extent to which a TAAC can provide the 
required Adjustment Assistance. EDA will provide Adjustment Assistance 
through TAACs whenever EDA determines that such assistance can be 
provided most effectively in this manner. Requests for Adjustment 
Assistance will normally be made through TAACs.
    (3) A TAAC generally provides Adjustment Assistance by providing 
assistance to a:
    (i) Firm in preparing its petition for eligibility certification; 
and
    (ii) Certified Firm in diagnosing its strengths and weaknesses, and 
developing and implementing an Adjustment Proposal.
    (b) TAAC selection.
    (1) EDA invites currently funded TAACs to submit either new or 
amended applications, provided they have performed in a satisfactory 
manner and complied with previous or current conditions in their 
Cooperative Agreements with EDA and contingent upon availability of 
funds. Such TAACs shall submit an application on a form approved by 
OMB, as well as a proposed budget, narrative scope of work, and such 
other information as requested by EDA. Acceptance of an application or 
amended application for a Cooperative Agreement does not ensure funding 
by EDA.

[[Page 20656]]

    (2) EDA may invite new applications through a Federal Funding 
Opportunity (``FFO'') announcement. An application will require a 
narrative scope of work, proposed budget and such other information as 
requested by EDA. Acceptance of an application does not ensure funding 
by EDA.
    (c) TAAC evaluation.
    (1) EDA generally evaluates currently funded TAACs based on:
    (i) Performance under Cooperative Agreements with EDA and 
compliance with the terms and conditions of such Cooperative 
Agreements;
    (ii) Proposed scope of work, budget and application or amended 
application; and
    (iii) Availability of funds.
    (2) EDA generally evaluates new TAACs based on:
    (i) Competence in administering business assistance programs;
    (ii) Background and experience of staff;
    (iii) Proposed scope of work, budget and application; and
    (iv) Availability of funds.
    (d) TAAC award requirements.
    (1) EDA generally funds a TAAC for a three-year project period 
consisting of three separate funding periods of 12 months each.
    (2) There are no matching share requirements for Adjustment 
Assistance provided by the TAACs to Firms for certification or for 
administrative expenses of the TAACs.


Sec.  315.6  Firm eligibility for Adjustment Assistance.

    (a) Firms participate in the Trade Adjustment Assistance for Firms 
program in accordance with the following:
    (1) Firms apply for certification through a TAAC by completing a 
petition for certification. The TAAC will assist Firms in completing 
such petitions (at no cost to the Firms);
    (2) Firms certified in accordance with the procedures described in 
Sec. Sec.  315.7 and 315.8 must prepare an Adjustment Proposal for 
Adjustment Assistance from the TAAC (``Adjustment Proposal'') and 
submit it to EDA for approval; and
    (3) EDA determines whether the Adjustment Assistance requested in 
the Adjustment Proposal is eligible based upon the evaluation criteria 
set forth in subpart D of this part. A Certified Firm may submit a 
request to the TAAC for Adjustment Assistance to implement an approved 
Adjustment Proposal.
    (b) For certification, EDA evaluates Firms' petitions strictly on 
the basis of fulfillment of the requirements set forth in Sec.  315.7.
    (c) (1) Certified Firms generally receive Adjustment Assistance 
over a two-year period.
    (2) The matching share requirements are as follows:
    (i) Each Certified Firm must pay at least 25 percent of the cost of 
preparing its Adjustment Proposal. Each Certified Firm requesting 
$30,000 or less in total Adjustment Assistance in its approved 
Adjustment Proposal must pay at least 25 percent of the cost of that 
Adjustment Assistance. Each Certified Firm requesting more than $30,000 
in total Adjustment Assistance in its approved Adjustment Proposal must 
pay at least 50 percent of the cost of that Adjustment Assistance.
    (ii) Organizations representing trade-injured industries must pay 
at least 50 percent of the total cash cost of the Adjustment 
Assistance, in addition to appropriate in-kind contributions.

Subpart B--Certification of Firms


Sec.  315.7  Certification requirements.

    (a) General. EDA may certify a Firm as eligible to apply for 
Adjustment Assistance under section 251(c) of the Trade Act if it 
determines that the petition for certification meets one of the minimum 
certification thresholds set forth in paragraph (b) of this section. In 
order to be certified, a Firm must meet the criteria listed under any 
one of the 5 circumstances described in paragraph (b) of this section.
    (b) Minimum certification thresholds.
    (1) Twelve-month decline. Based upon a comparison of the most 
recent 12-month period for which data are available and the immediately 
preceding twelve-month period:
    (i) A Significant Number or Proportion of Workers in the Firm has 
undergone Total or Partial Separation or a Threat of Total or Partial 
Separation;
    (ii) Either sales or production, or both, of the Firm has Decreased 
Absolutely; or sales or production, or both, of any article or service 
that accounted for not less than 25 percent of the total production or 
sales of the Firm during the 12-month period preceding the most recent 
12-month period for which data are available have Decreased Absolutely; 
and
    (iii) An Increase in Imports has Contributed Importantly to the 
applicable Total or Partial Separation or Threat of Total or Partial 
Separation, and to the applicable decline in sales or production or 
supply of services.
    (2) Twelve-month versus twenty-four month decline. Based upon a 
comparison of the most recent 12-month period for which data are 
available and the immediately preceding 24-month period:
    (i) A Significant Number or Proportion of Workers in the Firm has 
undergone Total or Partial Separation or a Threat of Total or Partial 
Separation;
    (ii) Either sales or production, or both, of the Firm has Decreased 
Absolutely; or sales or production, or both, of any article or service 
that accounted for not less than 25 percent of the total production or 
sales of the Firm during the 24-month period preceding the most recent 
12-month period for which data are available have Decreased Absolutely; 
and
    (iii) An Increase in Imports has Contributed Importantly to the 
applicable Total or Partial Separation or Threat of Total or Partial 
Separation, and to the applicable decline in sales or production or 
supply of services.
    (3) Twelve-month versus thirty-six month decline. Based upon a 
comparison of the most recent 12-month period for which data are 
available and the immediately preceding 36-month period:
    (i) A Significant Number or Proportion of Workers in the Firm has 
undergone Total or Partial Separation or a Threat of Total or Partial 
Separation;
    (ii) Either sales or production, or both, of the Firm has Decreased 
Absolutely; or sales or production, or both, of any article or service 
that accounted for not less than 25 percent of the total production or 
sales of the Firm during the 36-month period preceding the most recent 
12-month period for which data are available have Decreased Absolutely; 
and
    (iii) An Increase in Imports has Contributed Importantly to the 
applicable Total or Partial Separation or Threat of Total or Partial 
Separation, and to the applicable decline in sales or production or 
supply of services.
    (4) Interim sales or production decline. Based upon an interim 
sales or production decline:
    (i) Sales or production has Decreased Absolutely for, at minimum, 
the most recent six-month period during the most recent 12-month period 
for which data are available as compared to the same six-month period 
during the immediately preceding 12-month period;
    (ii) During the same base and comparative period of time as sales 
or production has Decreased Absolutely, a Significant Number or 
Proportion of Workers in such Firm has undergone Total or Partial 
Separation or a Threat of Total or Partial Separation; and
    (iii) During the same base and comparative period of time as sales 
or production has Decreased Absolutely,

[[Page 20657]]

an Increase in Imports has Contributed Importantly to the applicable 
Total or Partial Separation or Threat of Total or Partial Separation, 
and to the applicable decline in sales or production or supply of 
services.
    (5) Interim employment decline. Based upon an interim employment 
decline:
    (i) A Significant Number or Proportion of Workers in such Firm has 
undergone Total or Partial Separation or a Threat of Total or Partial 
Separation during, at a minimum, the most recent six-month period 
during the most recent 12-month period for which data are available as 
compared to the same six-month period during the immediately preceding 
12-month period; and
    (ii) Either sales or production of the Firm has Decreased 
Absolutely during the 12-month period preceding the most recent 12-
month period for which data are available; and
    (iii) An Increase in Imports has Contributed Importantly to the 
applicable Total or Partial Separation or Threat of Total or Partial 
Separation, and to the applicable decline in sales or production or 
supply of services.


Sec.  315.8  Processing petitions for certification.

    (a) Firms shall consult with a TAAC for guidance and assistance in 
the preparation of their petitions for certification.
    (b) A Firm seeking certification shall complete a Petition by a 
Firm for Certification of Eligibility to Apply for Trade Adjustment 
Assistance (Form ED-840P or any successor form) with the following 
information about such Firm:
    (1) Identification and description of the Firm, including legal 
form of organization, economic history, major ownership interests, 
officers, directors, management, parent company, Subsidiaries or 
Affiliates, and production and sales facilities;
    (2) Description of goods or services supplied or sold;
    (3) Description of imported Directly Competitive or Like Articles 
or Services with those produced or supplied;
    (4) Data on its sales, production and employment for the applicable 
24-month, 36-month, or 48-month period, as required under Sec.  
315.7(b);
    (5) One copy of a complete auditor's certified financial report for 
the entire period covering the petition, or if not available, one copy 
of the complete profit and loss statements, balance sheets and 
supporting statements prepared by the Firm's accountants for the entire 
period covered by the petition; publicly-owned corporations should 
submit copies of the most recent Form 10-K annual reports (or Form 10-Q 
quarterly reports, as appropriate) filed with the U.S. Securities and 
Exchange Commission for the entire period covered by the petition;
    (6) Information concerning its major customers and their purchases 
(or its bids, if there are no major customers); and
    (7) Such other information as EDA considers material.
    (c) EDA shall determine whether the petition has been properly 
prepared and can be accepted. Promptly thereafter, EDA shall notify the 
petitioner that the petition has been accepted or advise the TAAC that 
the petition has not been accepted, but may be resubmitted at any time 
without prejudice when the specified deficiencies have been corrected. 
Any resubmission will be treated as a new petition.
    (d) EDA will publish a notice of acceptance of a petition in the 
Federal Register.
    (e) EDA will initiate an investigation to determine whether the 
petitioner meets the requirements set forth in section 251(c) of the 
Trade Act and Sec.  315.7.
    (f) A petitioner may withdraw a petition for certification if EDA 
receives a request for withdrawal before it makes a certification 
determination or denial. A Firm may submit a new petition at any time 
thereafter in accordance with the requirements of this section and 
Sec.  315.7.
    (g) Following acceptance of a petition, EDA will:
    (1) Make a determination based on the Record as soon as possible 
after the petitioning Firm or TAAC has submitted all material. In no 
event may the determination period exceed 40 days from the date on 
which EDA accepted the petition; and
    (2) Either certify the petitioner as eligible to apply for 
Adjustment Assistance or deny the petition. In either event, EDA shall 
promptly give written notice of action to the petitioner. Any written 
notice to the petitioner of a denial of a petition shall specify the 
reason(s) for the denial. A petitioner shall not be entitled to 
resubmit a petition within one year from the date of denial, provided, 
EDA may waive the one-year limitation for good cause.


Sec.  315.9  Hearings.

    EDA will hold a public hearing on an accepted petition if the 
petitioner or any interested Person found by EDA to have a Substantial 
Interest in the proceedings submits a request for a hearing no later 
than 10 days after the date of publication of the notice of acceptance 
in the Federal Register, under the following procedures:
    (a) The petitioner or any interested Person(s) shall have an 
opportunity to be present, to produce evidence and to be heard;
    (b) A request for public hearing must be delivered by hand or by 
registered mail to EDA. A request by a Person other than the petitioner 
shall contain:
    (1) The name, address and telephone number of the Person requesting 
the hearing; and
    (2) A complete statement of the relationship of the Person 
requesting the hearing to the petitioner and the subject matter of the 
petition, and a statement of the nature of its interest in the 
proceedings.
    (c) If EDA determines that the requesting party does not have a 
Substantial Interest in the proceedings, a written notice of denial 
shall be sent to the requesting party. The notice shall specify the 
reasons for the denial;
    (d) EDA shall publish a notice of a public hearing in the Federal 
Register, containing the subject matter, name of petitioner, and date, 
time and place of the hearing; and
    (e) EDA shall appoint a presiding officer for the hearing who shall 
respond to all procedural questions.


Sec.  315.10  Loss of certification benefits.

    EDA may terminate a Firm's certification or refuse to extend 
Adjustment Assistance to a Firm for any of the following reasons:
    (a) Failure to submit an acceptable Adjustment Proposal within two 
years after date of certification. While approval of an Adjustment 
Proposal may occur after the expiration of such two-year period, a Firm 
must submit an acceptable Adjustment Proposal before such expiration;
    (b) Failure to submit documentation necessary to start 
implementation or modify its request for Adjustment Assistance 
consistent with its Adjustment Proposal within six months after 
approval of the Adjustment Proposal, where two years have elapsed since 
the date of certification. If the Firm anticipates needing a longer 
period to submit documentation, it should indicate the longer period in 
its Adjustment Proposal. If the Firm is unable to submit its 
documentation within the allowed time, it should notify EDA in writing 
of the reasons for the delay and submit a new schedule. EDA has the 
discretion to accept or refuse a new schedule;
    (c) EDA has denied the Firm's request for Adjustment Assistance, 
the time period allowed for the submission of any documentation in 
support of such

[[Page 20658]]

request has expired, and two years have elapsed since the date of 
certification; or
    (d) Failure to diligently pursue an approved Adjustment Proposal 
where five years have elapsed since the date of certification.


Sec.  315.11  Appeals, final determinations and termination of 
certification.

    (a) Any petitioner may appeal in writing to EDA from a denial of 
certification, provided that EDA receives the appeal by personal 
delivery or by registered mail within 60 days from the date of notice 
of denial under Sec.  315.8(g). The appeal must state the grounds on 
which the appeal is based, including a concise statement of the 
supporting facts and applicable law. The decision of EDA on the appeal 
shall be the final determination within the Department. In the absence 
of an appeal by the petitioner under this paragraph, the determination 
under Sec.  315.8(g) shall be final.
    (b) A Firm, its representative or any other interested domestic 
party aggrieved by a final determination under paragraph (a) of this 
section may, within 60 days after notice of such determination, begin a 
civil action in the United States Court of International Trade for 
review of such determination, in accordance with section 284 of the 
Trade Act.
    (c) Whenever EDA determines that a Certified Firm no longer 
requires Adjustment Assistance or for other good cause, EDA will 
terminate the certification and promptly publish notice of such 
termination in the Federal Register. The termination will take effect 
on the date specified in the published notice.
    (d) EDA shall immediately notify the petitioner and shall state the 
reasons for any termination.

Subpart C--Protective Provisions


Sec.  315.12  Recordkeeping.

    Each TAAC shall keep records that fully disclose the amount and 
disposition of Trade Adjustment Assistance for Firms program funds so 
as to facilitate an effective audit.


Sec.  315.13  Audit and examination.

    EDA and the Comptroller General of the United States shall have 
access for the purpose of audit and examination to any books, 
documents, papers, and records of a Firm, TAAC or other recipient of 
Adjustment Assistance pertaining to the award of Adjustment Assistance.


Sec.  315.14  Certifications.

    EDA will provide no Adjustment Assistance to any Firm unless the 
owners, partners, members, directors or officers thereof certify to 
EDA:
    (a) The names of any attorneys, agents, and other Persons engaged 
by or on behalf of the Firm for the purpose of expediting applications 
for such Adjustment Assistance; and
    (b) The fees paid or to be paid to any such Person.


Sec.  315.15  Conflicts of interest.

    EDA will provide no Adjustment Assistance to any Firm under this 
part unless the owners, partners, or officers execute an agreement 
binding them and the Firm for a period of two years after such 
Adjustment Assistance is provided, to refrain from employing, tendering 
any office or employment to, or retaining for professional services any 
Person who, on the date such assistance or any part thereof was 
provided, or within one year prior thereto, shall have served as an 
officer, attorney, agent, or employee occupying a position or engaging 
in activities which involved discretion with respect to the provision 
of such Adjustment Assistance.

Subpart D--Adjustment Proposals


Sec.  315.16  Adjustment Proposal Requirements.

    EDA evaluates Adjustment Proposals based on the following:
    (a) EDA must receive the Adjustment Proposal within two years after 
the date of the certification of the Firm;
    (b) The Adjustment Proposal must include a description of any 
Adjustment Assistance requested to implement such proposal, including 
financial and other supporting documentation as EDA determines is 
necessary, based upon either:
    (1) An analysis of the Firm's problems, strengths and weaknesses 
and an assessment of its prospects for recovery; or
    (2) If EDA so determines, other available information;
    (c) The Adjustment Proposal must:
    (1) Be reasonably calculated to contribute materially to the 
economic adjustment of the Firm (i.e., that such proposal will 
constructively assist the Firm to establish a competitive position in 
the same or a different industry);
    (2) Give adequate consideration to the interests of a sufficient 
number of separated workers of the Firm, by providing, for example, 
that the Firm will:
    (i) Give a rehiring preference to such workers;
    (ii) Make efforts to find new work for a number of such workers; 
and
    (iii) Assist such workers in obtaining benefits under available 
programs; and
    (3) Demonstrate that the Firm will make all reasonable efforts to 
use its own resources for its recovery, though under certain 
circumstances, resources of related Firms or major stockholders will 
also be considered; and
    (d) The Adjustment Assistance identified in the Adjustment Proposal 
must consist of specialized consulting services designed to assist the 
Firm in becoming more competitive in the global marketplace. For this 
purpose, Adjustment Assistance generally consists of knowledge-based 
services such as market penetration studies, customized business 
improvements, and designs for new products. Adjustment Assistance does 
not include expenditures for capital improvements or for the purchase 
of business machinery or supplies.

Subpart E--Assistance to Industries


Sec.  315.17  Assistance to Firms in import-impacted industries.

    (a) Whenever the International Trade Commission makes an 
affirmative finding under section 202(B) of the Trade Act that 
increased imports are a substantial cause of serious injury or threat 
thereof with respect to an industry, EDA shall provide to the Firms in 
such industry assistance in the preparation and processing of petitions 
and applications for benefits under programs which may facilitate the 
orderly adjustment to import competition of such Firms.
    (b) EDA may provide Adjustment Assistance, on such terms and 
conditions as EDA deems appropriate, for the establishment of industry-
wide programs for new product development, new process development, 
export development or other uses consistent with the purposes of the 
Trade Act and this part.
    (c) Expenditures for Adjustment Assistance under this section may 
be up to $10,000,000 annually per industry, subject to availability of 
funds, and shall be made under such terms and conditions as EDA deems 
appropriate.

    Dated: April 30, 2009.
Barry Bird,
Chief Counsel, Economic Development Administration.
[FR Doc. E9-10356 Filed 5-4-09; 8:45 am]
BILLING CODE 3510-24-P