[Federal Register Volume 74, Number 158 (Tuesday, August 18, 2009)]
[Rules and Regulations]
[Pages 41592-41603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19774]


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DEPARTMENT OF COMMERCE

Economic Development Administration

13 CFR Parts 313 and 315

[Docket No. 090429810-91212-02]
RIN 0610-AA65


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

AGENCY: Economic Development Administration, Department of Commerce.

ACTION: Final rule.

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SUMMARY: On May 5, 2009, the Economic Development Administration 
(`EDA') published a notice of proposed rulemaking to reflect the 
amendments made to the Trade Act of 1974, as amended, by the Trade and 
Globalization Adjustment Assistance Act of 2009 (`TGAAA'), which was 
included as subtitle I within the American Recovery and Reinvestment 
Act of 2009. The notice of proposed rulemaking provided a public 
comment period from May 5, 2009 through June 4, 2009. The TGAAA 
provides that the Secretary of Commerce must establish the Community 
Trade Adjustment Assistance Program by August 1, 2009, under which EDA 
would provide technical assistance under section 274 of the Trade Act 
to communities impacted by trade to facilitate the economic adjustment 
of those communities. The TGAAA amendments to the Trade Act took effect 
on May 17, 2009, 90 days after enactment. As a result of the enactment 
of the TGAAA, EDA promulgates this final rule to provide regulations to 
implement the Community Trade Adjustment Assistance Program and makes 
specific changes to the Trade Adjustment Assistance for Firms Program 
regulations.

DATES: This rule is effective as of August 18, 2009.

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

SUPPLEMENTARY INFORMATION: 

Background

    EDA published a notice of proposed rulemaking (the `NPRM') in the 
Federal Register (74 FR 20647) on May 5, 2009. The NPRM reflects the 
amendments made to the Trade Act of 1974, as amended (19 U.S.C. 2341 et 
seq.) (the `Trade Act'), by the Trade and Globalization Adjustment 
Assistance Act of 2009 (the `TGAAA'), which was included as subtitle I 
to the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5, 
123 Stat. 115, at 367). The TGAAA authorized the Trade Adjustment 
Assistance for Communities (`Community TAA') Program and made 
amendments to certain provisions affecting the Trade Adjustment 
Assistance for Firms (`TAAF') Program, which EDA currently administers 
through a network of 11 University-affiliated and non-profit Trade 
Adjustment Assistance Centers (each, a `TAAC') located throughout the 
nation.
    This final rule promulgates the Community TAA Program regulations 
and makes specific changes to the TAAF Program regulations, both of 
which implement the amendments to the Trade Act made by the TGAAA. It 
also reflects EDA's current practices and policies in administering the 
TAAF Program that have evolved since the promulgation of EDA's current 
regulations. Chapter 3 of title II of the Trade Act authorizes the TAAF 
Program, under which technical assistance is provided to Firms that 
have lost domestic sales and employment due to increased imports of 
similar or competitive goods. Chapter 4 of title II of the Trade Act 
establishes the 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.
    Capitalized terms used but not otherwise defined in this final rule 
have the meanings ascribed to them in EDA's regulations set out in 13 
CFR chapter III (see, e.g., 13 CFR 300.3, 303.2, 315.2, and 315.15). A 
complete discussion of the changes made to EDA's regulations was 
provided in the NPRM and is not repeated here.

[[Page 41593]]

Response to Comments

    A 31-day public comment period, from May 5, 2009 through June 4, 
2009, followed the publication of the NPRM. EDA received a small number 
of public comments on different portions of the NPRM. All comments 
received, which were from the Directors of three TAACs, related to the 
TAAF Program. EDA did not receive any comments related to the Community 
TAA Program. A summary of the comments and EDA's response are provided 
below.
Section 315.2--Definitions
    EDA received one comment from the Director of the Rocky Mountain 
TAAC that stated the following: ``The definition of `Absolutely' has 
been determined by EDA to mean five percent. This is an arbitrary 
number that the TAACs at times have been told is no longer valid. The 
intended result is to only accept firms that are truly impacted. The 
actual result is usually several months' delay in assistance for the 
firm until sales and employment declines enough to satisfy the five 
percent decline. This delay causes unnecessary hardship to the firm. 
`Absolutely' should not be defined in this document, but be determined 
on a case-by-case basis, which is customary with other similar 
definitions like `significant,' which is purposely not defined.''
    The proposed revision to the definition of `Decreased Absolutely' 
does not in any way alter the meaning of the term `Decreased 
Absolutely' or EDA's current administration of the TAAF Program. EDA 
replaced the word `irrespective' in paragraph (1) with the word 
`independent' for increased clarity and ease of understanding. Although 
the NPRM did not propose a revision to the provision of the definition 
that the commenter addresses, EDA has reviewed the comment and 
addresses it here. Requiring a Firm to show at least a five percent 
decline in sales and employment to be eligible for assistance under the 
TAAF Program is consistent with the need to marshal limited TAAF 
Program resources. In EDA's experience, the five percent minimum 
threshold helps to ensure that import-impacted Firms receive limited 
program resources.
    However, EDA recognizes that Firms' situations differ, and there 
are instances when an import impact will not manifest as such a 
quantifiable decline. Accordingly, EDA provided case-by-case 
flexibility in the interim final regulations published in the Federal 
Register on October 22, 2008 (73 FR 62858). In the October 22, 2008 
interim final rule, EDA revised the definitions of Decreased Absolutely 
and `Significant Number or Proportion of Workers,' which requires 
eligible Firms to demonstrate a workforce decline of at least five 
percent, to include the phrase, ``unless EDA determines that these 
limitations in a given case would not be consistent with the purposes 
of the Trade Act.'' This added language provides for the threshold five 
percent, but allows for case-by-case flexibility when the threshold may 
be unduly restrictive. In practice, the revised definitions have been 
effective to avoid unjust denials and efficiently use limited program 
financial and staff resources.
    EDA received the following comment from the Director of the 
Northwest TAAC regarding the proposed definition of `Increase in 
Imports,' which was 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 case. 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. The commenter 
stated: ``EDA's use of the word `certification' in this paragraph on 
the definition of Increase in Imports is confusing. If what is meant is 
some sort of `writing' from the customer of the petitioning firm then 
EDA is misconstruing the intent of Congress. To require such a 
`writing' from a customer will make it almost impossible to use this 
method to show an increase in imports. Customers are very reluctant to 
admit they are purchasing imports out of fear there will be some sort 
of retribution placed upon them. Congress did not intend to make 
certification of service firms more difficult than manufacturing firms. 
(See section 288 of the Act `sense of Congress.') Since there are no 
HTS statistics for service imports, customer verification will be the 
primary method. However, to require a `writing' in order for a customer 
to `certify' their purchase of imports will not work. Besides, the 
petitioning firm, the petition preparer and the TAAC director already 
give their assurance as to the accuracy and completeness of the 
petition.''
    EDA believes that the amendment made by section 1863 of the TGAAA 
requires a written customer certification in certain circumstances. The 
revised definition of Increase in Imports implements section 251 of the 
Trade Act, as amended by section 1863 of the TGAAA, to provide that 
certification by a Firm's customers of increased imports to the 
Secretary is a method by which EDA may determine the existence of an 
Increase in Imports. Previously, the method to determine whether an 
Increase in Imports had occurred was left to the Secretary's 
discretion, and EDA used a combination of Harmonized Tariff Schedule 
(`HTS') data and the TAAC's interviews of the Firm's customers. This 
dual information gathering helps demonstrate import impacts on two 
levels: using HTS data helps show overall import trends in a 
manufacturing Firm's market, while customer interviews provide 
confirmation of trade impacts at the local level. The HTS comprises a 
hierarchical structure that classifies goods into specific `buckets' 
using criteria such as name, use, and material used in a good's 
description. Using HTS data works well for manufacturing companies 
because the goods that are produced allow such Firms to fit within a 
specific HTS `bucket,' and the trend data can be readily accessed. To 
understand the local forces affecting a Firm, the TAAC interviews the 
Firm's customers.
    However, HTS data for a `Service Sector Firm' is extremely broad 
and does not allow for such a snapshot, which makes it infeasible as a 
method to assess import trends for Service Sector Firms. Other reliable 
data for assessing how imports affect service sector industries do not 
yet exist to provide information on import trends within a given 
Service Sector Firm's market. The TGAAA specifies the customer 
certification method to address this lack of industry data and provide 
a reliable method to assess the import impact(s). The plain meaning of 
`certify' is to make a formal acknowledgment, and such certification 
must be in writing.
    The commenter also expressed concern that customers will be ``very 
reluctant to admit they are purchasing imports out of fear there will 
be some sort of retribution placed on them.'' As far as EDA is aware, 
information obtained from a Firm's customers and others has never been 
and will not be used for any other purpose than to make the required 
eligibility determinations in order to certify a Firm under the TAAF 
Program.
    The commenter noted that a written certification contravenes the 
`Sense of Congress' expressed in the Trade Act, as amended by the 
TGAAA. EDA intends

[[Page 41594]]

to apply the provisions of chapter 3 of the Trade Act with the utmost 
regard to Firms, but it also must comply with the directly expressed 
requirements of the TGAAA, which specify customer certifications to the 
Secretary. EDA is construing the provision narrowly and making its 
application minimally burdensome. For example, a customer certification 
will be required only to certify: (i) A manufacturing Firm when the 
applicable HTS data does not show an Increase in Imports; and (ii) 
Service Sector Firms until applicable HTS data become available. Also, 
EDA will accept customer certifications by email.
    Finally, the commenter indicated that requiring customer 
certification is redundant since the Firm and the TAAC already certify 
to the accuracy and completeness of a petition. EDA notes that this 
requirement comes directly from the statute, as section 1863 of the 
TGAAA specifies that ``customers accounting for a significant 
percentage of the decrease in the sales or production of the firm'' 
must ``certify to the Secretary that such customers have increased 
their imports of such articles or services from a foreign country.''
Section 315.6--Firm Eligibility for Adjustment Assistance
    EDA received one comment from the Director of the Midwest TAAC 
requesting clarification on existing Firm matching share requirements 
as set out in section 315.6(c)(2)(i). The comment states the following: 
``Does section 315.6(b)(2)(i) remove the $150,000 cap on total AP 
requests?''
    The NPRM did not propose changes to this provision, however, EDA 
reviewed and addresses the question here. After a Firm is certified as 
eligible for assistance under the TAAF Program, the Firm must develop 
an EDA-approved Adjustment Proposal, which is a strategy document 
designed to map out a path for the Firm's recovery. In an effort to 
marshal limited resources, EDA's general policy is to limit the amount 
of Federal assistance provided under the Adjustment Proposal to 
$150,000, which consists of $75,000 in EDA funds and $75,000 in Firm 
matching funds. EDA does not contemplate raising the $150,000 cap at 
this time.
Section 315.7--Certification Requirements
    EDA received one comment from the Director of the Rocky Mountain 
TAAC on the existing interim sales or production decline Firm 
certification option, which was relocated, but not substantively 
amended by the NPRM and is set out in section 315.7(4). The comment 
stated: ``The six month interim decline is useful, but not responsive 
enough to deal with a firm facing a rapid decline. A three month 
interim decline would provide for more timely assistance, and minimize 
unnecessary hardship to the firm.''
    The NPRM did not propose a revision to this provision, however, EDA 
has reviewed and addresses the comment in this final rule. EDA assumes 
that the commenter is referring to the interim sales or production and 
employment decline certification options in EDA's current regulations, 
which allow a Firm to pursue certification without at least a year of 
data showing sales or production and employment decline. The interim 
decline options are a regulatory rule; they are not statute-based. The 
addition of the interim decline options to the TAAF Program regulations 
was based on EDA's interpretation of the Trade Act's language and 
intent regarding the threat of employment separation and the need to 
provide proactive assistance. EDA extrapolated that since the Trade Act 
also focuses on the threat of harm, if a Firm can show a precipitous 
decline over six months, then it is a reasonable assumption that the 
pattern may continue.
    Although the interim decline options are not statute-derived, 
Congress has consistently appropriated the TAAF Program with those 
options in place. EDA does not believe that three months provide enough 
data to reasonably foresee a sales or production and employment 
decline, and does not believe cutting the interim decline options in 
half to three months will provide optimal program results.
Section 315.8--Processing Petitions for Certifications
    EDA received two similar comments from the Directors of the Rocky 
Mountain and Northwest TAACs on the proposed revision to section 315.8, 
which provides that EDA has 40 days instead of 60 days from the date 
EDA accepts a petition to make a certification determination to 
implement section 251(d) of the Trade Act, as amended by section 1867 
of the TGAAA. The commenters stated: ``This section should contain a 
maximum number of days from receipt of a petition by EDA to `accept' 
the petition for processing. To allow EDA an unlimited time to `accept' 
a petition defeats the intent of Congress to only allow 40 days for EDA 
to make a determination to certify or reject the petition. (see section 
288 of Act).''
    In practice, many petitions that are submitted to EDA are 
incomplete or otherwise deficient in some manner. EDA has allowed and 
continues to allow the TAACs to informally submit a petition and works 
with the TAAC to resolve any deficiencies. After all deficiencies have 
been resolved, EDA accepts the petition, which starts the certification 
determination clock. EDA believes that automatically accepting all 
petitions will result in a higher rate of petition denials. Once a 
petition has been denied, the petitioning Firm must wait for one year 
from the date of denial before re-applying. Although EDA may waive the 
one-year limitation for good cause, EDA believes that the flexibility 
of the current system best serves the interests of Firms. This 
flexibility allows EDA to more effectively achieve the Congressional 
intent, which is to assist trade-impacted Firms with a minimum of delay 
and administrative burden. Firms likely to suffer the greatest trade-
induced stress may have difficulty responding expeditiously to requests 
for clarification or to provide documentation and are most likely to 
exceed a hard and fast 40-day limit. The new regulations should not 
impose new response demands on already stressed Firms.
Section 315.10--Loss of Certification Benefits
    EDA received the following comment from the Director of the 
Northwest TAAC on proposed section 315.10(d), which was revised to 
reflect EDA's current practice that a Certified Firm has five, not two, 
years from the date upon which EDA approves an Adjustment Proposal to 
complete work on the Adjustment Proposal: ``There should be a subpart 
`(e)'. This subpart (e) should state a firm has five years from the 
date their AP is approved to complete all parts of the implementation 
as found within its AP, without approval from EDA for going beyond this 
five year period to implement all aspects of the approved AP. This 
would put these regulations in compliance with what is actually 
occurring at the present time.''
    EDA believes that the proposed revision reflects current practice 
and that another subpart is not necessary.

Changes From the NPRM

    After publication of the NPRM, EDA discovered that the proposed 
revisions to the Firms' 24- or 36-month sales decline certification 
requirements, set out in section 315.7(b)(2) and (3), do not reflect 
the `average annual' language as provided in section 251 of the Trade 
Act, as amended by section 1862 of the TGAAA. Therefore, in this final 
rule, EDA revises section 315.7 to include the `average annual' 
language, thereby

[[Page 41595]]

succeeding and nullifying the revision proposed in the NPRM.

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)). In the alternative, EDA finds good 
cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in 
effectiveness. EDA is required by the Trade and Globalization 
Adjustment Assistance Act of 2009, which was included as subtitle I 
within the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-
5, 123 Stat. 115, at 401), to implement these regulations by August 1, 
2009. If this rulemaking was delayed to allow for a 30-day delay in 
effectiveness, EDA would not be able to meet its statutory requirement. 
Therefore, in order to make these regulations effective before August 
1, 2009, EDA waives the 30-day in effectiveness and makes this rule 
effective immediately.
    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 final rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (`PRA'). In regard to the 
Community TAA Program, the Office of Management and Budget (`OMB') has 
approved the use of Form ED-900 (`Application for Investment 
Assistance') under Control Number 0610-0094. Form SF-424 (`Application 
for Federal Assistance') is approved under OMB Control Number 4040-
0004. To estimate burden, EDA examined its experience with its public 
works and economic adjustment assistance programs, which are authorized 
under the Public Works and Economic Development Act of 1965, as amended 
(42 U.S.C. 3121 et seq.) (`PWEDA'). The potential demand for programs 
under PWEDA 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, demand will be elastic depending on 
the amount of appropriations Congress and the President approve for the 
Community TAA Program. Because the respondent burden will be similar 
for applications under the Community TAA 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. In regard to the TAAF Program, 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 
Control Number 0610-0091. In light of the expansion of the TAAF Program 
to Service Sector Firms and the expansion of the `look back' periods, 
EDA estimates the number of respondents who complete petitions for a 
certification of eligibility will increase more than 100 percent to 
about 500 respondents 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 final rule is significant for 
purposes of Executive Order 12866.

Congressional Review Act

    This final rule 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 final rule does not 
contain policies that have federalism implications.

List of Subjects

13 CFR Part 313

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

13 CFR Part 315

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

Regulatory Text

0
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:
0
1. Add 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. 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

[[Page 41596]]

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.


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.
    Community Adjustment Assistance means technical and implementation 
assistance provided to an Impacted Community under chapter 4 of title 
II 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.
    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.
    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) that 
contains such information to allow EDA to determine that the 
petitioning Community is significantly affected by the threat to, or 
the loss of, jobs associated with one or more Cognizable 
Certifications;
    (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 trade 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.  313.5.


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.

[[Page 41597]]

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:
    (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 Federal 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 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.

[[Page 41598]]

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 
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 at Sec.  314.1) acquired in connection with 
Investment Assistance is subject to the property management regulations 
set out in part 314 of this chapter.

0
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. 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

[[Page 41599]]

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) (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.

[[Page 41600]]

    (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.
    (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 average annual sales or production, or both, of the 
Firm has Decreased Absolutely; or average annual 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 average annual sales or production, or both, of the 
Firm has Decreased Absolutely; or average annual 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:

[[Page 41601]]

    (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, 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

[[Page 41602]]

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 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.

[[Page 41603]]

    (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: August 13, 2009.
Dennis Alvord,
Acting Deputy Assistant Secretary of Commerce for Economic Development.
[FR Doc. E9-19774 Filed 8-17-09; 8:45 am]
BILLING CODE 3510-24-P