[Federal Register: October 22, 2008 (Volume 73, Number 205)]
[Rules and Regulations]
[Page 62858-62871]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc08-4]
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DEPARTMENT OF COMMERCE
Economic Development Administration
13 CFR Parts 300, 301, 302, 303, 305, 307, 308, 310, 314 and 315
[Docket No.: 080213181-8811-01]
RIN 0610-AA64
Revisions to the EDA Regulations
AGENCY: Economic Development Administration, Department of Commerce.
ACTION: Interim final rule.
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SUMMARY: The Economic Development Administration (``EDA'') published
final regulations in the Federal Register on September 27, 2006. In
March 2007, the Office of the Inspector General (``OIG'') published a
report titled Aggressive EDA Leadership and Oversight Needed to Correct
Persistent Problems in the RLF Program. In the time since the
publication of this report, EDA has made significant improvements in
the management and oversight of its revolving loan fund (``RLF'')
program, including the issuance of written guidance that provides EDA
staff with reasonable steps to help better ensure grantee compliance
with RLF requirements. EDA is publishing this interim final rule (this
``IFR'') to synchronize the RLF regulations with that guidance.
Additionally, EDA is publishing this IFR to make changes to certain
definitions in the Trade Adjustment Assistance for Firms Program
regulations set out in 13 CFR part 315. This IFR also provides notice
of other substantive and non-substantive revisions made to the EDA
regulations.
DATES: The effective date of this IFR is October 22, 2008. Comments on
this IFR must be received by EDA's Office of Chief Counsel no later
than 5 p.m. E.S.T. on December 22, 2008. Although these regulations are
effective as of date of publication in the Federal Register, EDA
solicits and welcomes any comments on the regulations discussed herein.
ADDRESSES: You may submit comments, identified by Docket No. 080213181-
8811-01, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[[Page 62859]]
Agency Web Site: http://www.eda.gov/Home/EDAHomePage.xml.
Follow the instructions for submitting comments at http://www.eda.gov/
InvestmentsGrants/Lawsreg.xml.
E-mail: edaregs@eda.doc.gov. Please state ``Comments on
the IFR'' and include Docket No. 080213181-8811-01 in the subject line
of the message.
Fax: (202) 482-5671, Attention: Office of Chief Counsel.
Please indicate ``Comments on the IFR'' on the cover page.
Mail: Economic Development Administration, Office of Chief
Counsel, Room 7005, Department of Commerce, 1401 Constitution Avenue,
NW., Washington, DC 20230.
Hand Delivery/Courier: Economic Development
Administration, Office of Chief Counsel, Room 7005, Department of
Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted without change to
http://www.eda.gov/InvestmentsGrants/Lawsreg.xml, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.eda.gov/Home/EDAHomePage.xml.
FOR FURTHER INFORMATION CONTACT: Hina Shaikh, Esq., Deputy Chief
Counsel, Economic Development Administration, Department of Commerce,
Room 7005, 1401 Constitution Avenue, NW., Washington, DC 20230;
telephone: (202) 482-4687.
SUPPLEMENTARY INFORMATION:
Background
On September 27, 2006, EDA published final regulations in the
Federal Register (71 FR 56658) to implement amendments made to EDA's
authorizing statute, the Public Works and Economic Development Act of
1965 (42 U.S.C. 3121 et seq.) (``PWEDA''), by the Economic Development
Administration Reauthorization Act of 2004 (Pub. L. 108-373, 118 Stat.
1756). In addition to tracking the statutory amendments to PWEDA, the
September 27, 2006 final rule reflected EDA's current practices and
policies in administering its economic development programs that have
evolved since the promulgation of EDA's former regulations.
As set out in detail below, EDA is publishing this IFR to make
necessary revisions to its RLF regulations in order to ensure that they
correspond with new policy determinations that EDA has made in response
to the OIG's audit report titled Aggressive EDA Leadership and
Oversight Needed to Correct Persistent Problems in the RLF Program
(March 2007). The OIG found that EDA did not have an adequate tracking
and oversight system, and was unable to ensure grantees' compliance
with critical financial reporting requirements. EDA has addressed this
issue by creating a web-based reporting system that eliminates all
duplicative and calculable fields. This system is designed to allow
grantees, if they so choose, to upload data directly from their
accounting software into the web-based system, thus eliminating time-
consuming data entry. Alternatively, grantees have the option of
manually entering data into the web-based system. All grantees will be
required to report on a semi-annual basis.
EDA also is publishing this IFR to make certain substantive changes
to its regulations that implement the Trade Adjustment Assistance for
Firms program (the ``TAA Program''), and to provide notice of necessary
substantive and non-substantive revisions made to its regulations.
Capitalized terms used but not otherwise defined in this IFR have
the meanings ascribed to them in 13 CFR 300.3, 302.20, 303.2, 307.8 and
314.1, and all section citations used herein refer to sections EDA's
regulations set out in 13 CFR chapter III.
Discussion of Changes to EDA's Regulations
Set out below, the revisions to various parts that comprise 13 CFR
chapter III are explained in sequential order. Where substantive and
non-substantive changes are made in one part, they are discussed
together. The non-substantive edits include typos, grammatical errors
and title changes, and are intended to make the regulations easier to
understand. Additional non-substantive changes also update the
regulations in light of developments since their publication on
September 27, 2006.
Section 300.3--Definitions
For increased clarity in the definition of ``Eligible Recipient,''
this IFR replaces the word ``under'' with the phrase ``pursuant to
Sec. 306.1(d)(3) of''. This more adequately explains EDA's statutory
authority to enter into contracts as opposed to grants with private
individuals, partnerships, businesses, corporations, or appropriate
institutions under the local and national technical assistance
programs.
In the context of restrictions relating to conflicts of interest,
EDA amends its regulations to recognize a domestic partner or
significant other as a ``spouse'' in the definition of ``Immediate
Family,'' to take into account that a couple may consist of persons
living together who are not married.
Section 301.3--Economic Distress Levels
In Section 301.3(a)(1)(i), the word ``percent'' is changed to
``percentage point.'' This revision does not change current practice
and is made for increased clarity.
Section 301.4--Investment Rates
Corresponding to the change described above in Section
301.3(a)(1)(i), Table 1 in Section 301.4(b)(1)(ii) is revised to state
that a Project located in a Region demonstrating a 24-month
unemployment rate at least one (1) ``percentage point'' greater than
the national average is eligible to receive a maximum allowable
Investment Rate of fifty (50) percent. Accordingly, the ``1%'' in row
(G) in Table 1 is replaced with the phrase ``1 percentage point.'' This
change does not substantively alter this regulation and is made for
clarity only.
In Section 301.4(b)(2), in the second sentence, ``allowable'' is
inserted between the words ``maximum'' and ``Investment'' to make clear
that a Project subject to a Special Need may be eligible for an
Investment Rate up to the maximum allowable Investment Rate of eighty
(80) percent, unless the Project is eligible for a higher Investment
Rate under Section 301.4(b)(5).
For more precise wording in Section 301.4(b)(4), the first sentence
is introduced with a lead-in phrase beginning with ``Except as
otherwise provided in paragraph (b)(5) of this section,'' similar to
paragraphs (b)(2) and (b)(3) of Section 301.4. The second sentence is
revised to be more parallel in structure and content as section 207 of
PWEDA (42 U.S.C. 3147).
Section 301.10--Formal Application Requirements
To ensure that prospective applicants are aware that PWEDA does not
require nor does EDA provide an appeals process in the event that an
application is denied, this IFR inserts the following sentence at the
end of Section 301.10(a): ``PWEDA does not require nor does EDA provide
an appeals process for an applicant whose application for Investment
Assistance is denied.''
[[Page 62860]]
Section 302.14--Records and Audits
The changes made to Section 302.14 are non-substantive. To better
identify the subject matter of this section, the heading is changed
from ``Records and audits'' to ``Records.'' In addition, subparagraphs
(a)(1)-(4) are rearranged and reworded as follows:
``(1) The total cost of the Project;
(2) The amount and disposition by the Recipient of the Investment
Assistance;
(3) The amount and nature of the portion of Project costs provided
by other sources; and
(4) Such other information as EDA determines will facilitate an
effective audit.''
To track section 608(b) of PWEDA (42 U.S.C. 3218) and for increased
clarity, the heading of Section 302.14(b) is changed from ``Audits'' to
``Access to records.'' Additionally, ``and/or'' is changed to ``or''
for clarity.
Section 302.16--Reports by Recipients
In the third sentence in Section 302.16(b), ``this data and
report'' is changed to ``the data and reports'' to ensure clarity. In
Section 302.16(c), ``Projects'' is replaced with ``a Project,''
``provide'' is changed to ``provides,'' and ``that Recipients'' is
changed to ``the Recipient to.''
Section 302.17--Conflicts of Interest
In the first sentence of Section 302.17(b)(1), the extraneous comma
after the word ``indirect'' is removed.
Section 303.4--Award Requirements
In Section 303.4(c), for consistency with Department of Commerce
guidance, the word ``award'' is replaced with ``project.''
Section 305.6--Allowable Methods of Procurement for Construction
Services
In the second sentence of Section 305.6(a), the phrase ``design/
bid/build'' is changed to ``design/build'' so that the sentence makes
sense in relation to the first sentence of the provision. This was an
inadvertent mistake overlooked in publishing the September 27, 2006
final rule. ``Design/bid/build'' and ``design/build'' are two distinct
construction delivery methods.
Part 307--Economic Adjustment Assistance Investments
As the agency responsible for administering the RLF program under
PWEDA, EDA must provide adequate oversight and demand accountability
from its staff and RLF Recipients to help protect these program dollars
from waste, fraud and abuse. EDA makes most of the changes discussed
below to help better ensure that all RLF Recipients involved in the RLF
program adhere to EDA's statutory and regulatory requirements.
Section 307.8--Definitions
First, in the definition of ``Closed Loan,'' the comma after the
word ``been'' is removed.
Second, as of the effective date of this IFR, EDA will not allow
RLF Recipients to use RLF Capital to guarantee loans. While this
authority has been used extremely infrequently throughout the four-
decade history of the RLF program, EDA has determined that loan
guaranties are too risky and of limited utility, since, unlike federal
guaranties that are backed by the full faith and credit of the United
States, RLF loan guaranties are backed only by the assets in the RLF.
Therefore, the definition of ``Guaranteed Loan'' in Section 307.8 is
removed in its entirety.
Last, to ensure understanding of the two reporting periods relevant
to the new semi-annual report that will be required of all current and
prospective RLF Recipients, as discussed under Section 307.14 below,
this IFR includes in this section a definition of ``Reporting Period,''
which means the period from April 1st to September 30th and the period
from October 1st to March 31st. These are the reporting periods for
completing the new semi-annual report (Form ED-209 or any successor
form) and the current RLF Income and Expense Statement (Form ED-209I or
any successor form), if applicable.
Section 307.9--Revolving Loan Fund Plan
Consistent with requiring all RLF Recipients to submit semi-annual
reports to EDA in electronic format, as more fully described below
under Section 307.14, this IFR also revises Section 307.9 to require
Recipients to submit RLF Plans electronically to EDA for approval.
Accordingly, the second sentence in Section 307.9 beginning with ``The
Plan shall * * *.'' is replaced with the following sentence: ``The Plan
shall be submitted in electronic format to EDA for approval, unless EDA
approves a paper submission.''
In the course of discussions with RLF program staff, EDA has
learned that many RLF Recipients are operating with outdated Plans.
Some of the Plans were written and submitted to EDA before the Region
had a Comprehensive Economic Development Strategy (CEDS), and a few
Regions in fact do not have a CEDS, as that term is described in
Section 303.7. In order to ensure that Section 307.9 reflects this
reality, the word ``CEDS'' in paragraph (a)(1) is replaced with the
phrase ``Region's CEDS or EDA-approved economic development plan, if
applicable,'' and the word ``strategy'' in paragraph (b)(1) is replaced
with ``economic development plan, if applicable,''.
Additionally, in order to give EDA discretion to require new and
updated Plans that properly analyze the current local capital market in
various Regions, this IFR revises paragraph (c) to require the RLF
Recipient to update its Plan as necessary in accordance with changing
economic conditions in the Region; however, at a minimum, the RLF
Recipient must submit an updated Plan to EDA every five (5) years.
Additionally, EDA changes its regulations to require notification of
any change(s) to the RLF Recipient's Plan. Any material modification,
such as a merger or change in the EDA-approved lending area under
Section 307.18, a change in critical management staff, or a change to
the strategic purpose of the RLF, must be submitted to EDA for approval
prior to any revision of the Plan.
Section 307.12--Revolving Loan Fund Income
To be consistent with the new Form ED-209 that will be required of
all RLF Recipients on a semi-annual basis (discussed in Section
307.14), the references in paragraphs (a)(1) and (2) to ``twelve-
month'' reporting periods are changed to ``six-month''. The words
``reporting period'' in paragraphs (a)(1), (2) and (3) are initially
capitalized per the introduction of ``Reporting Period'' as a defined
term in Section 307.8.
In 2005, the Office of Management and Budget (``OMB'') made Title 2
in the Code of Federal Regulations a single location where the public
can find both OMB guidance for grants and cooperative agreements
(Subtitle A) and the associated Federal Agency's regulations
implementing this OMB guidance (Subtitle B), thereby codifying three
(3) OMB Circulars on federal cost principles. For consistency and
accuracy, Section 307.12(b)(1) is rewritten to include applicable
references to title 2 of the Code of Federal Regulations for the
following circulars: OMB Circular A-87 for State, local, and Indian
tribal governments (2 CFR part 225); OMB Circular A-122 for non-profit
organizations other than institutions of higher education, hospitals or
organizations named in OMB Circular A-122 as not subject to such
Circular (2 CFR part 230); and OMB Circular A-21 for educational
institutions (2 CFR part 220).
Additionally, the heading of Section 307.12(b) is changed from
``Compliance
[[Page 62861]]
guidelines'' to ``Compliance guidance,'' to indicate that OMB issues
guidance to Federal Agencies on government-wide policies and procedures
for the award and administration of grants and cooperative agreements.
In the first sentence, ``OMB'' is replaced with ``federal'' for
consistency with the rest of the regulations and ``guidelines'' is
replaced with ``requirements'' to make clear that OMB Circular A-133
sets out single audit or program-specific audit requirements, as
appropriate, which RLF Recipients must satisfy. Additionally, ``RLF''
immediately in front of the word ``audit'' is deleted, as OMB Circular
A-133 sets out single and program-specific audit requirements--not RLF
audit requirements--for a variety of entities receiving federal
financial assistance: States, local governments, and colleges,
universities, hospitals and other non-profit organizations.
Section 307.13--Records and Retention
In its audit report titled Aggressive EDA Leadership and Oversight
Needed to Correct Persistent Problems in the RLF Program, the OIG
recommended that EDA ``[d]evelop a strategy and plan of action that
addresses the RLF program's problems and challenges, and identifies
opportunities for improvement.'' EDA adopted this recommendation as
part of a complete action plan, and committed to reviewing EDA's
current policy of using two separate reporting forms: The semi-annual
(Form ED-209S) and the annual (Form ED-209A). The agency determined
that the use of two separate reporting forms had hindered data
collection efforts, as the data fields on these forms are not always
equivalent. The current semi-annual reporting form contains more useful
information than the current annual reporting form (Form ED-209A), but
EDA determined that the semi-annual form required additional data
fields to allow EDA to exercise more vigorous oversight of grantee
operations. Accordingly, in June 2008, the agency finalized a revised
RLF semi-annual reporting form, Form ED-209, to replace the current
semi-annual and annual reporting forms (Forms ED-209S and ED-209A), and
submitted this streamlined, web-based form to OMB for approval under
the Paperwork Reduction Act. EDA will require all RLF Recipients to
semi-annually complete and submit the new Form ED-209.
Although requiring all RLF Recipients to submit the Form ED-209 on
a semi-annual basis, rather than approving the substitution of an
annual report for some RLF Recipients, will increase the frequency of
reporting for some grantees, EDA estimates that the new Form ED-209
actually will reduce the average paperwork burden per RLF report on the
RLF Recipient from 12 hours to 2.9 hours. This significant decrease
results from the elimination of calculated and duplicative fields from
the grantee's data entry screens and the creation of a web-based
reporting system. This IFR, therefore, removes the reference to the
annual report from Section 307.13 and other sections in part 307. In
paragraph (b)(2), the words ``or annual'' are removed and ``period'' is
changed to ``Reporting Period''. For clarity, the phrase ``or for five
(5) years from the date the costs were claimed, whichever is less'' is
removed and replaced with a clear statement that all records relating
to the RLF's operations must be retained for three years from the
submission date of the last semi-annual report (on the new Form ED-209
or any successor form).
Section 307.14--Revolving Loan Fund Semi-Annual and Annual Reports
In line with the determination that all RLF recipients will report
on a semi-annual basis, the heading of Section 307.14 is changed from
``Revolving Loan Fund semi-annual and annual reports'' to ``Revolving
Loan Fund semi-annual report and Income and Expense Statement,'' to
accurately reflect the current Form ED-209I, the RLF Income and Expense
Statement, discussed in paragraph (c). Section 307.14(a) is rewritten
in its entirety to incorporate the requirement for all RLF Recipients,
including those receiving Recapitalization Grants for existing RLFs, to
submit to EDA a semi-annual report (Form ED-209 or any successor form)
in electronic format, unless EDA approves a paper submission. In
paragraph (b), the words ``or annual'' are removed. Paragraph (c)(1) is
re-designated as paragraph (c). The first sentence of re-designated
paragraph (c)(1) is rewritten to require the RLF Recipient that uses
either fifty (50) percent or more (or more than $100,000) of RLF Income
for administrative costs in a six-month (6) Reporting Period to submit
to EDA a completed Income and Expense Statement (Form ED-209I or any
successor form) for that Reporting Period in electronic format, unless
EDA approves a paper submission. The second sentence is removed in its
entirety because the agency determined, as part of its action plan to
respond to OIG's recommendations regarding the RLF program, that the
revised three-year period in Section 307.13(b) adequately covers the
necessary retention of records for administrative expenses.
Paragraph (c)(2) titled ``Performance Measures'' is deleted in its
entirety because the agency has determined that the ``Core Performance
Measures'' discussed in paragraph (c)(2) actually refer to performance
reporting requirements under the Government Performance and Results Act
of 1993 (``GPRA''), which RLF Recipients report every three years.
These measures are covered under Section 302.16 of the regulations and,
therefore, were incorrectly referenced in Section 307.14.
Section 307.15--Prudent Management of Revolving Loan Funds
EDA has and continues to require the RLF Recipient to submit a
record of decision for an RLF loan, which generally is the RLF board of
directors' meeting minutes that state the board's approval of the RLF
loan. In reviewing this section, EDA discovered that the loan
documentation listed in paragraph (b)(2) does not include the meeting
minutes. Therefore, this IFR amends the loan documentation list to
include submission of the board of directors' meeting minutes approving
the RLF loan. The list is sequentially renumbered to account for this
new insertion.
As stated above under Section 307.8, as of the effective date of
this IFR, EDA will not allow RLF Recipients to use RLF Capital to
guarantee loans. Therefore, in Section 307.15, current paragraph
(b)(2)(vii), which references a guaranty agreement, is replaced with
the concept set out in paragraph (c) of Section 307.17 (the RLF
Recipient's obligation to demonstrate that credit is not otherwise
available). This provision requires the RLF Recipient to submit to EDA
a signed bank turn-down demonstrating that credit is not otherwise
available on terms and conditions that permit the completion or
successful operation of the activity to be financed. This provision
belongs in the loan documentation listed in Section 307.15(b)(2) rather
than in Section 307.17 because it is evidence EDA would look for when
reviewing an RLF Recipient's certification that proper documentation is
in place for lending.
In light of current lower borrowing costs to companies and
households, EDA analyzed the current minimum interest rate which an RLF
Recipient may charge an eligible borrower with the goal of giving the
RLF Recipient more flexibility to make loans while still maintaining
its viability as a lender. To this end, this IFR introduces a dual
interest rate floor in paragraph (c) of Section 307.15, whereby the
interest rate an RLF Recipient may charge cannot be less than the lower
of four (4)
[[Page 62862]]
percent or 75 percent of the prime interest rate listed in the Wall
Street Journal.
To make improvements in the administration and oversight of the RLF
program, EDA may institute a new requirement, whereby all RLF
Recipients will have to undergo a mandatory certification program to
enhance their ability to administer RLF Grants in a prudent manner.
Accordingly, after paragraph (d), this IFR adds another paragraph to
Section 307.15 to incorporate this requirement into the regulations. If
so required by EDA, the RLF Recipient must satisfactorily complete the
certification program, and may consider the cost of attending the
certification courses as an administrative cost, provided the
requirements regarding RLF Income set out in Section 307.12 are
satisfied.
Section 307.16--Effective Utilization of Revolving Loan Funds
For consistency with other changes made to part 307, the words
``reporting intervals'' are replaced with ``Reporting Periods'' in the
first sentence of paragraph (c)(2)(i). The phrase ``separate from the
EDA funds account'' in that sentence was placed at OIG's specific
request. During recent training conferences held by EDA in conjunction
with the OIG, the OIG became aware, through discussions with RLF
Recipients, of the unnecessarily burdensome red tape involved in
placing excess funds in an account separate from the EDA funds account,
and has approved EDA to eliminate this requirement. Accordingly, the
phrase ``separate from the EDA funds account'' is removed. For
increased clarity, in the second sentence of paragraph (c)(2)(i), the
words ``the Federal Share (as defined in Sec. 314.5 of this chapter)
of'' are placed in front of the words ``the RLF Grant''.
As part of the agency's action plan to address OIG's
recommendations regarding the RLF program, EDA has identified the need
to address and monitor high loan default rates among its RLF
Recipients. In that regard, this IFR adds a new paragraph after
paragraph (c) in Section 307.16, to state that EDA will take steps
necessary to document and assess an RLF Recipient's high loan default
rate. Pursuant to this new regulation, EDA will monitor the RLF
Recipient's loan default rate to ensure proper protection of the
Federal Share of the RLF property, and may request information from the
RLF Recipient as necessary to determine whether it is collecting loan
repayments and complying with the financial obligations under the RLF
Grant. If the RLF Recipient fails to provide the information requested
and to take steps to protect the Federal Share, the RLF Recipient may
be subject to enforcement action under Section 307.21 and the terms and
conditions of the Grant.
Section 307.17--Uses of Capital
For correct formatting, the semi-colon in paragraph (b)(6)(ii) is
replaced with a period. Paragraph (c) of this section sets out the RLF
Recipient's obligation to demonstrate to EDA in the RLF loan
documentation that credit is not otherwise available. Upon closer
examination, the agency has determined that current paragraph (c)
belongs under Section 307.15(b)(2), which lists the required minimum
standard loan documentation.
To facilitate better monitoring of RLF Capital and to ensure that
RLF Capital is used for making RLF loans that are consistent with the
RLF Plan or such other purposes approved by EDA, this IFR adds a new
paragraph (c) that requires an independent third party to conduct a
compliance and loan quality review for the RLF Grant every (3) three
years. The RLF Recipient may undertake this review as an administrative
cost associated with the RLF's operations, provided the requirements
set out in Section 307.12 are satisfied.
In paragraph (d), the word ``provisions'' is changed to
``conditions'' for accuracy. In accordance with EDA's determination to
disallow loan guaranties, paragraph (e) of Section 307.17 is removed in
its entirety.
Section 307.18--Addition of Lending Areas; Merger of RLFs
For consistency throughout part 307 with respect to semi-annual
reporting required uniformly of all RLF Recipients, Section
307.18(b)(1)(i) is rewritten to expressly incorporate references to the
semi-annual report. Similarly, paragraph (b)(2)(i) is rewritten to
reference the requirement that surviving RLF Recipients must be up-to-
date with all semi-annual reports in accordance with Section 307.14.
Section 307.20--Partial Liquidation and Liquidation Upon Termination
The title to this section is rewritten as ``Partial liquidation;
liquidation upon termination'' to make clear that that a partial
liquidation is separate from a liquidation upon EDA approving a
termination of the RLF Grant. Current paragraph (a) provides that EDA
may require an RLF Recipient to transfer any RLF loans that are more
than 120 days delinquent to an RLF Third Party for liquidation. In
reviewing EDA's current RLF portfolio, the agency examined various
scenarios in which it has had to take action to partially liquidate or
``disallow'' a portion of an RLF Grant, and therefore, recover the pro-
rata Federal Share. Additionally, the OIG in its March 2007 audit
report on the RLF program recommended that EDA develop policies and
procedures that promote a uniform approach to sequestering excess cash.
This IFR revises paragraph (a) to extend the ``partial liquidation''
action to problematic instances beyond the RLF Recipient having RLF
loans that are more than one hundred and twenty (120) days delinquent,
such as making an ineligible loan; failing to disburse the EDA funds in
accordance with the time schedule prescribed in the RLF Grant; or
requesting that a portion of the RLF Grant be disallowed, and EDA
agrees to allow the disallowance.
To eliminate redundancy, the parenthetical ``(as defined in Sec.
314.5 of this chapter)'' is deleted from Section 307.20(d)(2), since
that reference now appears in the revised Section 307.20(a).
Section 307.21--Termination of Revolving Loan Funds
In an effort to ensure strong recipient compliance with RLF
reporting, efficient capital utilization, and OMB Circular A-133 single
audit requirements, this IFR revises Section 307.21(a) to include
additional grounds for which EDA may suspend or terminate and RLF Grant
for cause. These additional grounds are failure to: (i) Submit an
updated Plan to EDA in accordance with Section 307.9(c); (ii) submit
timely progress, financial and audit reports in the format required;
(iii) manage the RLF Grant in accordance with Prudent Lending
Practices, as defined in Section 307.8; (iv) sequester excess funds or
remit the interest on EDA's portion of the sequestered funds to the
U.S. Treasury; (v) submit the documentation requested by EDA regarding
a high loan default rate and collection efforts; (vi) comply with audit
requirements; and (vii) comply with an EDA-approved corrective action
plan to remedy RLF-related audit findings. EDA also includes in
paragraph (a) a provision to ensure that EDA maintains effective
control over and accountability for all Grant funds and assets when
effecting a suspension or termination.
Section 308.3--Planning Performance Awards
EDA discovered that the first paragraph under Section 308.3 does
not read consistently with the corresponding provision in section
216(b) (42 U.S.C. 3154b) of PWEDA, which provides that the Assistant
[[Page 62863]]
Secretary may make a planning performance award to an Eligible
Recipient under section 216(a) (42 U.S.C. 3154b) of PWEDA in connection
with a Grant for a Project if the Assistant Secretary ``determines
before closeout of the [P]roject that'' specific accomplishments were
attained by the Recipient. In contrast, Section 308.3(a) currently
states that EDA must determine ``no later than three (3) years
following closeout of the Project that * * *'' the Recipient has
attained the specific list of accomplishments. To ensure consistency
between the statute and the regulation, Section 308.3(a) is revised to
replace the phrase ``no later than three (3) years following'' with the
word ``before''.
Section 310.1--Special Impact Area
In Section 310.1(a), a semi-colon is placed immediately after the
word ``need'' for grammatical consistency.
Part 314--Property
Section 314.5--Federal Share
The first sentence of Section 314.5 is revised to give the agency a
more definitive standard by which to calculate the Federal Share. The
new sentence makes clear that the Federal Share will be the current
fair market value of the Property after deducting: (i) Reasonable
repair expenses, if any, incurred to put the Property into marketable
condition; and (ii) sales, commission and marketing costs. The format
also is adjusted for greater clarity.
Section 314.6--Encumbrances
For increased clarity and correct word usage, the phrase
``collateralized or'' in the first sentence in Section 314.6(a) is
deleted.
In paragraph (b)(3)(iv), EDA adds language to clarify the scope of
EDA's inquiry in determining whether the Recipient is capable of
carrying out its obligations under the award. EDA will take into
account whether a Recipient that is a non-profit organization is joined
in the Project with a co-Recipient that is a public body, whether the
non-profit organization has demonstrated stability over time, and such
other factors as EDA deems appropriate.
Section 314.7--Title
Paragraph (c) of Section 314.7 lists various exceptions to the
general rule, stated in paragraph (a), that the Recipient must at all
times hold unencumbered title to the Real Property required for a
Project. EDA requires the Recipient to maintain some interest in the
Property for the entire Estimated Useful Life to help ensure that the
Recipient carries out the Project as contemplated at the date of award.
This IFR revises the exception to the general rule stated in paragraph
(c)(2)(ii) to include that EDA must be able to determine that the terms
and conditions of the lease adequately demonstrate the economic
development and public benefits of the leasehold transaction. EDA in
this revision clarifies the scope of its review in determining the
acceptability of the leasehold transaction as a substitute for title,
and therefore, makes clear that the agency will evaluate the
transaction from the standpoint of its impact on the economic
development potential of the project and its potential public benefit,
as opposed to ``private benefit.''
In applying the exception set out in paragraph (c)(4), EDA
discovered it to be difficult and time consuming to require the State
or local government to provide the currently stated assurances, given
that EDA lacks privity with any non-Recipient parties that may be
involved with or have title to Project-related Property. Absent
privity, EDA cannot assert a claim against the public highway owner for
breach of the terms of the Grant or other relief pursuant to the Grant.
When a Project includes construction on a public highway the owner of
which is not the Recipient, the Recipient, rather than the State or
county owner of the highway, should provide the necessary assurances
and authorizations to EDA. Accordingly, this IFR revises paragraph
(c)(4) in its entirety to require the Recipient to confirm in writing
to EDA that it is committed during the Estimated Useful Life of the
Project to operate, maintain and repair all improvements for the
Project consistent with the Investment Assistance; and if at any time
during the Estimated Useful Life of the Project any or all of the
improvements in the Project within the public highway are relocated for
any reason pursuant to requirements of the owner of the public highway,
the Recipient will be responsible for accomplishing such relocation, so
that the Project continues as authorized by the Investment Assistance.
The revised paragraph requires the Recipient to obtain all written
authorizations (i.e., State or county permit(s)) necessary for the
Project to be constructed within the public highway.
Part 315--Trade Adjustment Assistance for Firms
EDA administers the TAA Program under the Trade Act of 1974, as
amended (19 U.S.C. 2341-2391) (the ``Trade Act''). Under the TAA
Program, EDA funds a national network of eleven (11) non-profit or
university-affiliated organizations, each known as a Trade Adjustment
Assistance Center (``TAAC''). Each TAAC is assigned a different
geographic service region, and provides technical or adjustment
assistance to firms or industries in that region which have been or are
adversely affected by increased import competition. Before the TAAC may
provide assistance, the firm must apply for certification regarding
eligibility under the TAA Program by completing a petition for
certification. As explained below, EDA makes substantive changes to TAA
Program-related definitions in 13 CFR 315.2.
Section 315.2--Definitions
During the course of evaluating and processing petitions for
certification, a few petitions have raised eligibility issues and
questions as to whether two defined terms in Section 315.2, ``Decreased
Absolutely'' and ``Significant Number or Proportion of Workers,'' may
be unduly restrictive. In some cases, the requisite five (5) percent
decline in sales or production and the five (5) percent decline in a
Firm's workforce may be unduly restrictive for a petition that
straddles a narrow border between significant and insignificant sales
or employment loss. For example, a Firm may demonstrate a qualitative
``significant'' decline in sales because of import competition that has
affected a major product line. Because of that decline, the employees
associated with this product line also may suffer a ``significant''
employment loss. Nonetheless, under the current quantitative
definitions, the Firm's employment on a ``firm-wide'' basis may not
meet the required threshold of employment loss under Section 251(c) of
the Trade Act (19 U.S.C. 2341) because the regulations impose a
quantitative limitation on a standard that in statute is qualitative.
This problem is in part a result of the statutory requirement that EDA
measure unemployment on a ``firm-wide'' basis (for example, a Firm may
have increased employment in different divisions or unrelated product
lines that offsets a downsizing, or loss of employment, in the import-
impacted product line(s)). EDA believes the definitions in the
regulations should be broad enough to give the agency authority to
certify petitions in appropriate cases when a Firm may have an absolute
job loss but less than the five (5) percent currently required.
Accordingly, EDA revises the definitions of the terms Decreased
Absolutely and Significant Number or Proportion of Workers to allow EDA
to certify in instances where EDA determines that the five (5) percent
[[Page 62864]]
threshold would not be consistent with the purposes of the Trade Act.
EDA believes the definition of Firm may be clarified by including
language that provides the conditions set out in the definition of the
term in the Trade Act. Accordingly, the agency clarifies that in
accordance with 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.
The word ``including'' is replaced with ``includes'' in the first
sentence of the definition of Firm. In the second sentence, the third
comma is deleted. The sentence beginning with ``Such other Firms
include:'' is replaced with ``Accordingly, such other Firms may include
a(n):''.
Section 315.4--Eligible Petitioners
For clarity and understanding about the types of organizations that
may apply for assistance under the TAA Program, as opposed to eligible
petitioners (Firms) under the TAA Program, which are discussed in
Section 315.6, the title of Section 315.4 is changed from ``Eligible
petitioners'' to ``Eligible applicants'' and the introductory text in
Section 315.4 is deleted. Paragraph (a) is rewritten to make clear the
entities that may apply to EDA for assistance to operate a TAAC, which
are universities or affiliated organizations; States or local
governments; or non-profit organizations.
Paragraph (b) relating to the eligibility of Firms is misplaced in
this section, as Firms are program beneficiaries and not applicants for
grant assistance under the TAA Program. Accordingly, paragraph (b) is
deleted and paragraph (c) of Section 315.4 is re-designated as
paragraph (b). EDA includes conditional language in the newly re-
designated paragraph (b) that restricts the regulation for purposes of
Section 315.17 only, and to the extent funds are appropriated to
implement section 265 of the Trade Act. EDA has not received
appropriations for twenty years to carry out section 265 of the Trade
Act.
Section 315.5--TAAC Scope, Selection, Evaluation and Awards
For conciseness and clarity, Section 315.5(a)(3) is rewritten as
follows:
``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.''
Additionally, in each of the last sentences in Section 315.5(b)(1) and
(2), ``assure'' is replaced with ``ensure.''
Section 315.6--Firm Eligibility for Adjustment Assistance
For increased clarity, the word ``Certified'' is inserted before
``Firms'' in Section 315.6(c)(1). In Section 315.6(c)(2), ``Matching
Share requirements are as follows:'' is replaced with ``The matching
share requirements are as follows:'' to distinguish the matching share
specification for Adjustment Assistance provided to Firms from the
Matching Share requisite under PWEDA. In the first sentence of Section
315.6(c)(2)(i), ``the preparation of'' is replaced with ``preparing''
for conciseness. Finally, in each of the three sentences in Section
315.6(c)(2)(i), the word ``Certified'' is inserted before ``Firm.''
Section 315.8--Processing Petitions for Certification
In Section 315.8(d), the reference to the ``Federal Register'' is
italicized to clarify that it is a publication.
The reference to Section 315.10(d) in the third sentence in Section
315.8(g)(2) was erroneous in the 2005 interim final rule and was
inadvertently not corrected in the subsequent September 27, 2006 final
rule. This sentence is revised to remove the reference to Section
315.10(d) and is rewritten more clearly as: ``Any written notice to the
petitioner of a denial of a petition shall specify the reason(s) for
the denial.'' This change is technical only and does not substantively
change the regulation.
Section 315.9--Hearings
In the first sentence in Section 315.9, the reference to ``any
person, organization, or group'' is replaced with ``or any interested
Person'' because Section 315.2 contains a definition for ``Person''
that includes individuals, organizations and groups. Additionally, the
comma after ``proceedings'' is removed, ``Notice of Acceptance'' is
changed to ``notice of acceptance,'' and the reference to ``Federal
Register'' is italicized. In paragraph (a) of Section 315.9, the phrase
``and other interested Persons'' is replaced with ``or any interested
Person(s).'' In Section 315.9(d), the reference to ``Federal Register''
is italicized.
Section 315.10--Loss of Certification Benefits
The first sentence is more accurately re-worded by replacing ``A
Firm may fail to obtain benefits of certification, regardless of
whether its certification is terminated,'' with the phrase ``EDA may
terminate a Firm's certification or refuse to extend Adjustment
Assistance to a Firm''.
Section 315.11--Appeals, Final Determinations and Termination of
Certification
In the first sentence in Section 315.11(c), the reference to
``Federal Register'' is italicized.
Section 315.12--Recordkeeping
For consistency throughout 13 CFR part 315, the words ``for Firms''
is inserted immediately after ``Assistance'' in Section 315.12.
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.
Executive Order No. 12866
It has been determined that this IFR is significant for purposes of
Executive Order 12866.
Congressional Review Act
This IFR 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 IFR does not contain
policies that have federalism implications.
[[Page 62865]]
Paperwork Reduction Act
This IFR contains collections-of-information subject to review and
approval by OMB under the Paperwork Reduction Act (``PRA''). The OMB is
required to clear all federally-sponsored data collections pursuant to
the PRA. 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.
On or about June 9, 2008, EDA submitted to OMB an application
(under OMB control number 0610-0095) for PRA clearance of the new Form
ED-209 (semi-annual report). EDA anticipates receiving OMB's clearance
for this new form on or about September 9, 2008. The RLF Income and
Expense Statement (Form ED-209I) also is currently valid under OMB
control number 0610-0095 (with an expiration date of April 30, 2009).
The public reporting burden related to the new semi-annual report on
Form ED-209 (which replaces current Forms ED-209A and ED-209S) and the
RLF Income and Expense Statement is estimated to average 3.15 hours per
individual response, or 6.3 hours annually, which includes the time
necessary for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collections-of-information. Please send comments on these or any
other aspects of the collections-of-information by any means listed
under ADDRESSES above. Alternatively, you may e-mail comments to
David_Rostker@omb.eop.gov, or fax comments to (202) 395-7285.
List of Subjects
13 CFR Part 300
Financial assistance, Distressed region, Headquarters, Regional
offices.
13 CFR Part 301
Grant administration, grant programs, eligibility requirements,
applicant and application requirements, economic distress levels,
investment rates.
13 CFR Part 302
Environmental review, federal policy and procedures, inter-
governmental review, fees, pre-approval requirements, project
administration, reporting and audit requirements, conflicts of
interest, post-approval requirements, civil rights.
13 CFR Part 303
Planning, award and application requirements, comprehensive
economic development strategy, state plans, short-term planning
investments.
13 CFR Part 305
Public works, economic development, award and application
requirements, requirements for approved projects.
13 CFR Part 307
Economic adjustment assistance, award and application requirements,
revolving loan fund, pre-loan requirements, merger, income, record and
reporting requirements, sales and securitizations, liquidation,
termination.
13 CFR Part 308
Performance awards, planning performance awards.
13 CFR Part 310
Special impact area, excessive unemployment, special need.
13 CFR Part 314
Federal interest, authorized use, property, federal share, title,
release, property interest.
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, this IFR amends 13 CFR chapter III
as follows:
PART 300--GENERAL INFORMATION
0
1. The authority citation for part 300 continues to read as follows:
Authority: 42 U.S.C. 3121; 42 U.S.C. 3122; 42 U.S.C. 3211;
Department of Commerce Organization Order 10-4.
0
2. Amend Sec. 300.3 to revise paragraph (7) of the definition of
Eligible Recipient and the definition of Immediate Family to read as
follows:
Sec. 300.3 Definitions.
* * * * *
Eligible Recipient * * *
* * * * *
(7) Private individual or for-profit organization, but only for
Training, Research and Technical Assistance Investments pursuant to
Sec. 306.1(d)(3) of part 306 of this chapter.
* * * * *
Immediate Family means a person's spouse (or domestic partner or
significant other), parents, grandparents, siblings, children and
grandchildren, but does not include distant relatives, such as cousins,
unless the distant relative lives in the same household as the person.
* * * * *
PART 301--ELIGIBILITY, INVESTMENT RATE AND PROPOSAL AND APPLICATION
REQUIREMENTS
0
1. The authority citation for part 301 continues to read as follows:
Authority: 42 U.S.C. 3121; 42 U.S.C. 3141-3147; 42 U.S.C. 3149;
42 U.S.C. 3161; 42 U.S.C. 3175; 42 U.S.C. 3192; 42 U.S.C. 3194; 42
U.S.C. 3211; 42 U.S.C. 3233; Department of Commerce Delegation Order
10-4.
0
2. Amend Sec. 301.3 to revise paragraph (a)(1)(i) to read as follows:
Sec. 301.3 Economic distress levels.
* * * * *
(a) * * *
(1) * * *
(i) An unemployment rate that is, for the most recent twenty-four
(24) month period for which data are available, at least one (1)
percentage point greater than the national average unemployment rate;
* * * * *
0
3. In Sec. 301.4, revise Table 1 in paragraph (b)(1)(ii), and revise
paragraphs (b)(2) and (b)(4) to read as follows:
Sec. 301.4 Investment rates.
* * * * *
(b) * * *
(1) * * *
(ii) * * *
[[Page 62866]]
Table 1
------------------------------------------------------------------------
Maximum allowable
Projects located in regions in which: investment rates
(percentage)
------------------------------------------------------------------------
(A) The twenty-four (24) month unemployment rate is 80
at least 225% of the national average; or..........
(B) The per capita income is not more than 50% of 80
the national average...............................
(C) The twenty-four (24) month unemployment rate is 70
at least 200% of the national average; or..........
(D) The per capita income is not more than 60% of 70
the national average...............................
(E) The twenty-four (24) month unemployment rate is 60
at least 175% of the national average; or..........
(F) The per capita income is not more than 65% of 60
the national average...............................
(G) The twenty-four (24) month unemployment rate is 50
at least 1 percentage point greater than the
national average; or...............................
(H) The per capita income is not more than 80% of 50
the national average...............................
------------------------------------------------------------------------
(2) Projects subject to a Special Need. EDA shall determine the
maximum allowable Investment Rate for Projects subject to a Special
Need (as determined by EDA pursuant to Sec. 301.3(a)(1)(iii)) based on
the actual or threatened overall economic situation of the Region in
which the Project is located. However, unless the Project is eligible
for a higher Investment Rate pursuant to paragraph (b)(5) of this
section, the maximum allowable Investment Rate for any Project subject
to a Special Need shall be eighty (80) percent.
* * * * *
(4) Projects under part 306. Except as otherwise provided in
paragraph (b)(5) of this section, the maximum allowable Investment Rate
for Projects under part 306 of this chapter shall generally be
determined based on the relative needs (as determined under paragraph
(b)(1) of this section) of the Region which the Project will serve. As
specified in section 207 of PWEDA, the Assistant Secretary has the
discretion to establish a maximum Investment Rate of up to one hundred
(100) percent where the Project:
(i) Merits, and is not otherwise feasible without, an increase to
the Investment Rate; or
(ii) Will be of no or only incidental benefit to the Eligible
Recipient.
* * * * *
0
4. Amend Sec. 301.10(a) to read as follows:
Sec. 301.10 Formal application requirements.
* * * * *
(a) General. For Projects selected from successful proposals, EDA
will invite the proponents to submit a formal application for
Investment Assistance. The appropriate regional office will provide
application materials and guidance in completing them. The applicant
will generally have thirty (30) days to submit the completed
application materials to the applicable regional office. EDA staff will
work with the applicant to resolve application deficiencies. PWEDA does
not require nor does EDA provide an appeals process for an applicant
whose application for Investment Assistance is denied.
* * * * *
PART 302--GENERAL TERMS AND CONDITIONS FOR INVESTMENT ASSISTANCE
0
1. The authority citation for part 302 continues to read as follows:
Authority: 19 U.S.C. 2341 et seq.; 42 U.S.C. 3150; 42 U.S.C.
3152; 42 U.S.C. 3153; 42 U.S.C. 3192; 42 U.S.C. 3193; 42 U.S.C.
3194; 42 U.S.C. 3211; 42 U.S.C. 3212; 42 U.S.C. 3216; 42 U.S.C.
3218; 42 U.S.C. 3220; 42 U.S.C. 5141; Department of Commerce
Delegation Order 10-4.
0
2. Revise Sec. 302.14 to read as follows:
Sec. 302.14 Records.
(a) Records. Recipients of Investment Assistance under PWEDA shall
keep such records as EDA shall require, including records that fully
disclose:
(1) The total cost of the Project;
(2) The amount and disposition by the Recipient of the Investment
Assistance;
(3) The amount and nature of the portion of Project costs provided
by other sources; and
(4) Such other information as EDA determines will facilitate an
effective audit.
(b) Access to records. The Recipient shall permit the Assistant
Secretary, the Inspector General of the Department, the Comptroller
General of the United States or any of their respective agents or
representatives access to its properties in order to examine all books,
correspondence, and records, including without limitation computer
programs and data processing software, to verify the Recipient's
compliance with Investment Assistance requirements.
0
3. Amend Sec. 302.16 to revise paragraphs (b) and (c) to read as
follows:
Sec. 302.16 Reports by Recipients.
* * * * *
(b) Each report must contain a data-specific evaluation of the
effectiveness of the Investment Assistance provided in fulfilling the
Project's purpose (including alleviation of economic distress) and in
meeting the objectives of PWEDA. Data used by a Recipient in preparing
reports shall be accurate and verifiable as determined by EDA, and from
independent sources (whenever possible). EDA will use the data and
reports to fulfill its performance measurement reporting requirements
under the Government Performance and Results Act of 1993 and to monitor
internal, Investment and Project performance through an internal
performance measurement system, such as the EDA Balanced Scorecard or
other system.
(c) To enable EDA to determine the economic development effect of a
Project that provides service benefits, EDA may require the Recipient
to submit a Project service map and information from which to determine
whether services are provided to all segments of the Region being
assisted.
* * * * *
0
4. Amend Sec. 302.17 to revise paragraph (b)(1) to read as follows:
Sec. 302.17 Conflicts of interest.
* * * * *
(b) * * *
(1) An Interested Party shall not receive any direct or indirect
financial or personal benefits in connection with the award of
Investment Assistance or its use for payment or reimbursement of costs
by or to the Recipient.
* * * * *
PART 303--PLANNING INVESTMENTS AND COMPREHENSIVE ECONOMIC
DEVELOPMENT STRATEGIES
0
1. The authority citation for part 303 continues to read as follows:
Authority: 42 U.S.C. 3143; 42 U.S.C. 3162; 42 U.S.C. 3174; 42
U.S.C. 3211; Department of Commerce Organization Order 10-4.
0
2. Amend Sec. 303.4 to revise paragraph (c) to read as follows:
[[Page 62867]]
Sec. 303.4 Award requirements.
* * * * *
(c) EDA will provide a Planning Investment for the period of time
required to develop, revise or replace, and implement a CEDS, generally
in thirty-six (36) month renewable Investment project periods.
PART 305--PUBLIC WORKS AND ECONOMIC DEVELOPMENT INVESTMENTS
0
1. The authority citation for part 305 continues to read as follows:
Authority: 42 U.S.C. 3211; 42 U.S.C. 3141; Department of
Commerce Organization Order 10-4.
0
2. Amend Sec. 305.6 to revise paragraph (a) to read as follows:
Sec. 305.6 Allowable methods of procurement for construction
services.
(a) Recipients may use alternate construction procurement methods
to the traditional design/bid/build procedures (including lump sum or
unit price-type construction contracts). These methods include but are
not limited to design/build, construction management at risk and force
account. If an alternate method is used, the Recipient shall submit to
EDA for approval a construction services procurement plan and the
Recipient must use a design professional to oversee the process. The
Recipient shall submit the plan to EDA prior to advertisement for bids
and shall include the following, as applicable:
(1) Justification for the proposed method for procurement of
construction services;
(2) The scope of work with cost estimates and schedules;
(3) A copy of the proposed construction contract;
(4) The name and qualifications of the selected design
professional; and
(5) Procedures to be used to ensure full and open competition,
including the selection criteria.
* * * * *
PART 307--ECONOMIC ADJUSTMENT ASSISTANCE INVESTMENTS
0
1. The authority citation for part 307 continues to read as follows:
Authority: 42 U.S.C. 3211; 42 U.S.C. 3149; 42 U.S.C. 3161; 42
U.S.C. 3162; 42 U.S.C. 3233; Department of Commerce Organization
Order 10-4.
0
2. Amend Sec. 307.8 to remove the definition of Guaranteed Loan,
revise the definition of Closed Loan, and add a definition for
Reporting Period in alphabetical order, as set out below:
* * * * *
Sec. 307.8 Definitions.
Closed Loan means any loan for which all required documentation has
been received, reviewed and executed by an RLF Recipient.
* * * * *
Reporting Period, for purposes of this subpart B only, means the
period from April 1st to September 30th or the period from October 1st
to March 31st.
* * * * *
0
3. Amend the introductory text of Sec. 307.9 and Sec. 307.9(a)(1),
(b)(1) and (c) to read as follows:
* * * * *
Sec. 307.9 Revolving Loan Fund Plan.
All RLF Recipients shall manage RLFs in accordance with an RLF plan
(the ``RLF Plan'' or ``Plan'') as described in this section. The Plan
shall be submitted in electronic format to EDA for approval, unless EDA
approves a paper submission.
(a) Format and content.
(1) Part I of the Plan titled ``Revolving Loan Fund Strategy''
shall summarize the Region's CEDS or EDA-approved economic development
plan, if applicable, and business development objectives, and shall
describe the RLF's financing strategy, policy and portfolio standards.
* * * * *
(b) * * *
(1) The Plan must be consistent with the CEDS or EDA-approved
economic development plan, if applicable, for the Region.
* * * * *
(c) Revision and Modification of RLF Plans.
(1) An RLF Recipient must update its Plan as necessary in
accordance with changing economic conditions in the Region; however, at
a minimum, an RLF Recipient must submit an updated Plan to EDA every
five (5) years.
(2) An RLF Recipient must notify EDA of any change(s) to its Plan.
Any material modification, such as a merger or change in the EDA-
approved lending area under Sec. 307.18, a change in critical
management staff, or a change to the strategic purpose of the RLF, must
be submitted to EDA for approval prior to any revision of the Plan. If
EDA approves the modification, the RLF Recipient must submit an updated
Plan to EDA in electronic format, unless EDA approves a paper
submission.
0
4. Revise paragraphs (a)(1), (2) and (3), (b) introductory text, and
(b)(1) of Sec. 307.12 to read as follows:
Sec. 307.12 Revolving Loan Fund Income.
(a) * * *
(1) Such RLF Income and the administrative costs are incurred in
the same six-month (6) Reporting Period;
(2) RLF Income that is not used for administrative costs during the
six-month (6) Reporting Period is made available for lending
activities;
(3) RLF Income shall not be withdrawn from the RLF Capital base in
a subsequent Reporting Period for any purpose other than lending
without the prior written consent of EDA; and
(b) Compliance guidance. When charging costs against RLF Income,
RLF Recipients must comply with applicable federal cost principles and
audit requirements as found in:
(1) 2 CFR part 225 (OMB Circular A-87 for State, local, and Indian
tribal governments), 2 CFR part 230 (OMB Circular A-122 for non-profit
organizations other than institutions of higher education, hospitals or
organizations named in OMB Circular A-122 as not subject to such
Circular), and 2 CFR part 220 (OMB Circular A-21 for educational
institutions); and
* * * * *
0
5. Amend Sec. 307.13(b)(2) to read as follows:
Sec. 307.13 Records and retention.
* * * * *
(b) * * *
(2) Retain records of administrative expenses incurred for
activities and equipment relating to the operation of the RLF for three
(3) years from the actual submission date of the last semi-annual
report that covers the Reporting Period in which such costs were
claimed.
* * * * *
0
6. Revise Sec. 307.14 to read as follows:
Sec. 307.14 Revolving Loan Fund semi-annual report and Income and
Expense Statement.
(a) Frequency of reports. All RLF Recipients, including those
receiving Recapitalization Grants for existing RLFs, must complete and
submit a semi-annual report (Form ED-209 or any successor form) in
electronic format, unless EDA approves a paper submission.
(b) Report contents. RLF Recipients must certify as part of the
semi-annual report to EDA that the RLF is operating in accordance with
the applicable RLF Plan. RLF Recipients also must describe (and propose
pursuant to Sec. 307.9) any modifications to the RLF Plan to ensure
effective use of the RLF as a strategic financing tool.
(c) RLF Income and Expense Statement. An RLF Recipient using either
fifty (50) percent or more (or more
[[Page 62868]]
than $100,000) of RLF Income for administrative costs in a six-month
(6) Reporting Period must submit to EDA a completed Income and Expense
Statement (Form ED-209I or any successor form) for that Reporting
Period in electronic format, unless EDA approves a paper submission.
0
7. Amend Sec. 307.15(b)(2) and (c) to read as follows, and add a new
paragraph (e) as follows:
Sec. 307.15 Prudent management of Revolving Loan Funds.
* * * * *
(b) * * *
(1) * * *
(2) Prior to the disbursement of any EDA funds, the RLF Recipient
shall certify that standard RLF loan documents reasonably necessary or
advisable for lending are in place and that these documents have been
reviewed by its legal counsel for adequacy and compliance with the
terms and conditions of the Grant and applicable State and local law.
The standard loan documents must include, at a minimum, the following:
(i) Loan application;
(ii) Loan agreement;
(iii) Board of directors' meeting minutes approving the RLF loan;
(iv) Promissory note;
(v) Security agreement(s);
(vi) Deed of trust or mortgage (as applicable);
(vii) Agreement of prior lien holder (as applicable); and
(viii) Signed bank turn-down letter demonstrating that credit is
not otherwise available on terms and conditions that permit the
completion or successful operation of the activity to be financed. EDA
will accept alternate documentation only if such documentation is
allowed in the RLF Recipient's EDA-approved RLF Plan.
(c) Interest rates--
(1) General rule. An RLF Recipient may make loans to eligible
borrowers at interest rates and under conditions determined by the RLF
Recipient to be appropriate in achieving the goals of the RLF. The
minimum interest rate an RLF Recipient may charge is four (4)
percentage points below the lesser of the current money center prime
interest rate quoted in the Wall Street Journal, or the maximum
interest rate allowed under State law. In no event shall the interest
rate be less than the lower of four (4) percent or 75 percent of the
prime interest rate listed in the Wall Street Journal.
(2) Exception. Should the prime interest rate listed in the Wall
Street Journal exceed fourteen (14) percent, the minimum RLF interest
rate is not required to be raised above ten (10) percent if doing so
compromises the ability of the RLF Recipient to implement its financing
strategy.
* * * * *
(e) RLF certification course. EDA may establish a mandatory RLF
certification program to enhance RLF Recipients' ability to administer
RLF Grants in a prudent manner. If so required by EDA, the RLF
Recipient must satisfactorily complete this program, and may consider
the cost of attending the certification courses as an administrative
cost, provided the requirements set forth in Sec. 307.12 are
satisfied.
0
8. Amend Sec. 307.16 to revise paragraph (c)(2)(i) and add a new
paragraph (d), to read as follows:
Sec. 307.16 Effective utilization of Revolving Loan Funds.
* * * * *
(c) * * *
(2) * * *
(i) Sequestration of excess funds. If the RLF Recipient fails to
satisfy the applicable capital utilization percentage requirement for
two (2) consecutive Reporting Periods, EDA may require the RLF
Recipient to deposit excess funds in an interest-bearing account. The
portion of interest earned on the account holding excess funds
attributable to the Federal Share (as defined in Sec. 314.5 of this
chapter) of the RLF Grant shall be remitted to the U.S. Treasury. The
RLF Recipient must obtain EDA's written authorization to withdraw any
sequestered funds.
* * * * *
(d) Loan default rates. (1) EDA shall monitor the RLF Recipient's
loan default rate to ensure proper protection of the Federal Share (as
defined in Sec. 314.5 of this chapter) of the RLF property, and
request information from the RLF Recipient as necessary to determine
whether it is collecting loan repayments and complying with the
financial obligations under the RLF Grant. Such information may
include:
(i) A written analysis of the RLF Recipient's portfolio, which
shall consider the Recipient's business plan, loan and collateral
policies, loan servicing and collection policies and procedures, the
rate of growth of the RLF Capital base, and detailed information on any
loan in default; and
(ii) A corrective action plan subject to EDA's approval, which
shall include specific actions the RLF Recipient must take to reduce
the loan default rate; and
(iii) A quarterly status report indicating the RLF Recipient's
progress on achieving the milestones outlined in the corrective action
plan.
(2) Failure to provide the information requested and to take steps
to protect the Federal Share may subject the RLF Recipient to
enforcement action under Sec. 307.21 and the terms and conditions of
the Grant.
* * * * *
0
9. Revise Sec. 307.17 to read as follows:
Sec. 307.17 Uses of capital.
(a) General. RLF Capital shall be used for the purpose of making
RLF loans that are consistent with an RLF Plan or such other purposes
approved by EDA. To ensure that RLF funds are used as intended, each
loan agreement must clearly state the purpose of each loan.
(b) Restrictions on use of RLF Capital. RLF Capital shall not be
used to:
(1) Acquire an equity position in a private business;
(2) Subsidize interest payments on an existing RLF loan;
(3) Provide for borrowers' required equity contributions under
other Federal Agencies' loan programs;
(4) Enable borrowers to acquire an interest in a business either
through the purchase of stock or through the acquisition of assets,
unless sufficient justification is provided in the loan documentation.
Sufficient justification may include acquiring a business to save it
from imminent closure or to acquire a business to facilitate a
significant expansion or increase in investment with a significant
increase in jobs. The potential economic benefits must be clearly
consistent with the strategic objectives of the RLF;
(5) Provide RLF loans to a borrower for the purpose of investing in
interest-bearing accounts, certificates of deposit or any investment
unrelated to the RLF; or
(6) Refinance existing debt, unless:
(i) The RLF Recipient sufficiently demonstrates in the loan
documentation a ``sound economic justification'' for the refinancing
(e.g., the refinancing will support additional capital investment
intended to increase business activities). For this purpose, reducing
the risk of loss to an existing lender(s) or lowering the cost of
financing to a borrower shall not, without other indicia, constitute a
sound economic justification; or
(ii) RLF Capital will finance the purchase of the rights of a prior
lien holder during a foreclosure action which is necessary to preclude
a significant loss on an RLF loan. RLF Capital may be used for this
purpose only if there is a high probability of receiving compensation
from the sale of assets sufficient to cover an RLF's costs plus a
reasonable portion of the outstanding RLF loan within eighteen
[[Page 62869]]
(18) months following the date of refinancing.
(c) Compliance and Loan Quality Review. To ensure that the RLF
Recipient makes eligible RLF loans consistent with its RLF Plan or such
other purposes approved by EDA, EDA shall require an independent third
party to conduct a compliance and loan quality review for the RLF Grant
every (3) three years. The RLF Recipient may undertake this review as
an administrative cost associated with the RLF's operations, provided
the requirements set forth in Sec. 307.12 are satisfied.
(d) Use of In-Kind Contributions. In-Kind Contributions may satisfy
Matching Share requirements when specifically authorized in the terms
and conditions of the RLF Grant and may be used to provide technical
assistance to borrowers or for eligible RLF administrative costs.
* * * * *
0
10. Amend Sec. 307.18 to revise paragraphs (b)(1)(i) and (b)(2)(i) to
read as follows:
Sec. 307.18 Addition of lending areas; merger of RLFs.
* * * * *
(b) * * *
(1) * * *
(i) It is up-to-date with all semi-annual reports in accordance
with Sec. 307.14;
(2) * * *
(i) The surviving RLF Recipient is up-to-date with all semi-annual
reports in accordance with Sec. 307.14;
* * * * *
0
11. Amend the heading of Sec. 307.20 and paragraphs (a) and (d)(2) to
read as follows:
Sec. 307.20 Partial liquidation; liquidation upon termination.
(a) Partial liquidation or disallowance of a portion of an RLF
Grant. If the RLF Recipient engages in certain problematic practices,
EDA may disallow a corresponding proportion of the Grant or direct the
RLF Recipient to transfer loans to an RLF Third Party for liquidation.
Problematic practices for which EDA may disallow a portion of an RLF
Grant and recover the pro-rata Federal Share (as defined in Sec. 314.5
of this chapter) include but are not limited to the RLF Recipient:
(1) Having RLF loans that are more than one hundred and twenty
(120) days delinquent;
(2) Having excess cash sequestered for twelve (12) months or longer
and EDA has not approved an extension request;
(3) Making an ineligible loan;
(4) Failing to disburse the EDA funds in accordance with the time
schedule prescribed in the RLF Grant; or
(5) Determining that it does not wish to further invest in the RLF
or cannot maintain operations at the degree originally contemplated
upon receipt of the RLF Grant and requests that a portion of the RLF
Grant be disallowed, and EDA agrees to allow the disallowance.
(d) * * *
(2) Second, for the payment of EDA's Federal Share; and
* * * * *
0
12. Amend Sec. 307.21(a) to read as follows:
Sec. 307.21 Termination of Revolving Loan Funds.
(a)(1) EDA may suspend or terminate an RLF Grant for cause,
including but not limited to the RLF Recipient's failure to:
(i) Operate the RLF in accordance with the Plan, the RLF Grant or
this part;
(ii) Obtain prior EDA approval for material changes to the Plan,
including provisions for administering the RLF;
(iii) Submit an updated Plan to EDA in accordance with Sec.
307.9(c);
(iv) Submit timely progress, financial and audit reports in the
format required by the RLF Grant and Sec. 307.14, including the semi-
annual report and the Income and Expense Statement (if applicable);
(v) Manage the RLF Grant in accordance with Prudent Lending
Practices, as defined in Sec. 307.8;
(vi) Sequester excess funds or remit the interest on EDA's portion
of the sequestered funds to the U.S. Treasury, as directed by EDA;
(vii) Submit the documentation requested by EDA regarding a high
loan default rate and collection efforts, or correct a high loan
default rate, as determined by EDA;
(viii) Comply with the audit requirements set forth in OMB Circular
A-133 and the Compliance Supplement, including timely submission of
audit reports to the Federal Audit Clearinghouse and the correct
designation of the RLF as a major program (as defined in OMB Circular
A-133), as applicable;
(ix) Comply with an EDA-approved corrective action plan to remedy
RLF-related audit findings; and
(x) Comply with the conflicts of interest provisions set forth in
Sec. 302.17.
(2) To maintain effective control over and accountability of RLF
Grant funds and assets, EDA shall determine the manner and timing of
any suspension or termination action. EDA may require the RLF Recipient
to repay the Federal Share in a lump-sum payment or enter into a Sale,
or EDA may agree to enter into a repayment agreement with the RLF
Recipient for repayment of the Federal Share.
* * * * *
PART 308--PERFORMANCE INCENTIVES
0
1. The authority citation for part 308 continues to read as follows:
Authority: 42 U.S.C. 3151; 42 U.S.C. 3154a; 42 U.S.C. 3154b;
Department of Commerce Delegation Order 10-4.
0
2. Revise paragraph (a) of Sec. 308.3 to read as follows:
Sec. 308.3 Planning performance awards.
(a) A Recipient of Investment Assistance awarded on or after the
date of enactment of section 216 of PWEDA for a Project located in an
EDA-funded Economic Development District may, at the discretion of the
Assistant Secretary, receive a planning performance award in an amount
not to exceed five (5) percent of the amount of the applicable
Investment award if EDA determines before closeout of the Project that:
(1) The Recipient, through the Project, actively participated in
the economic development activities of the District;
(2) The Project demonstrated exceptional fulfillment of one (1) or
more components of, and is otherwise in accordance with, the applicable
CEDS, including any job creation or job retention requirements; and
(3) The Recipient demonstrated exceptional collaboration with
federal, State and local economic development entities throughout the
development of the Project.
* * * * *
PART 310--SPECIAL IMPACT AREAS
0
1. The authority citation for part 310 continues to read as follows:
Authority: 42 U.S.C. 3154; Department of Commerce Delegation
Order 10-4.
0
2. Revise Sec. 310.1 to read as follows:
Sec. 310.1 Special Impact Area.
Upon the application of an Eligible Recipient, and with respect to
that Eligible Recipient's Project only, the Assistant Secretary may
designate the Region which the Project will serve as a Special Impact
Area if the Eligible Recipient demonstrates that its proposed Project
will:
(a) Directly fulfill a pressing need; and
(b) Be useful in alleviating or preventing conditions of excessive
unemployment or underemployment, or
[[Page 62870]]
assist in providing useful employment opportunities for the unemployed
or underemployed residents of the Region.
PART 314--PROPERTY
0
1. The authority citation for part 308 continues to read as follows:
Authority: 42 U.S.C. 3211; Department of Commerce Organization
Order 10-4.
0
2. Revise Sec. 314.5 to read as follows:
* * * * *
Sec. 314.5 Federal Share.
(a) For purposes of this part, ``Federal Share'' means that portion
of the current fair market value of any Property attributable to EDA's
participation in the Project. The Federal Share shall be the current
fair market value of the Property after deducting:
(1) Reasonable repair expenses, if any, incurred to put the
Property into marketable condition; and
(2) Sales, commission and marketing costs.
(b) The Federal Share excludes that portion of the current fair
market value of the Property attributable to acquisition or
improvements before or after EDA's participation in the Project, which
are not included in the total Project costs. For example, if the total
Project costs are $100, consisting of $50 of Investment Assistance and
$50 of Matching Share, the Federal Share is fifty (50) percent. If the
Property is disposed of when its current fair market is $250, the
Federal Share is $125 (i.e., fifty (50) percent of $250). If $10 is
spent to put the Property into salable condition, the Federal Share is
$120 (i.e., fifty (50) percent of ($250-$10)).
0
3. Amend paragraphs (a) and (b)(3)(iv) of Sec. 314.6 to read as
follows:
Sec. 314.6 Encumbrances.
(a) General. Except as provided in paragraph (b) of this section or
as otherwise authorized by EDA, Recipient-owned Property acquired or
improved in whole or in part with Investment Assistance must not be
used to secure a mortgage or deed of trust or in any way otherwise
encumbered, except to secure a grant or loan made by a Federal Agency
or State agency or other public body participating in the same Project.
(b) * * *
(3) * * *
(iv) There is a reasonable expectation, as determined by EDA, that
the Recipient will not default on its obligations. In determining
whether an expectation is reasonable for purposes of this paragraph,
EDA shall take into account whether a Recipient that is a non-profit
organization is joined in the Project with a co-Recipient that is a
public body, whether the non-profit organization has demonstrated
stability over time, and such other factors as EDA deems appropriate.
* * * * *
0
4. Amend paragraphs (c)(2)(ii) and (c)(4) of Sec. 314.7 to read as
follows:
Sec. 314.7 Title.
(c) * * *
(2) * * *
(ii) EDA, in its sole discretion, determines that the terms and
conditions of the lease adequately safeguard the Federal government's
interest in the Real Property and demonstrate the economic development
and public benefits of the leasehold transaction.
* * * * *
(4) When the Project includes construction on a public highway the
owner of which is not the Recipient, EDA may allow the Project to be
constructed in whole or in part in the right-of-way of such public
highway, provided that:
(i) All EDA-funded construction is completed in accordance with EDA
requirements;
(ii) The Recipient confirms in writing to EDA, satisfactory to EDA,
that:
(A) The Recipient is committed during the Estimated Useful Life of
the Project to operate, maintain and repair all improvements for the
Project consistent with the Investment Assistance; and
(B) If at any time during the Estimated Useful Life of the Project
any or all of the improvements in the Project within the public highway
are relocated for any reason pursuant to requirements of the owner of
the public highway, the Recipient shall be responsible for
accomplishing such relocation, including as necessary expending the
Recipient's own funds, so that the Project continues as authorized by
the Investment Assistance; and
(iii) The Recipient obtains all written authorizations (i.e., State
or county permit(s)) necessary for the Project to be constructed within
the public highway, copies of which shall be submitted to EDA. Such
authorizations shall contain no time limits that EDA determines
substantially restrict the use of the public highway for the Project
during the Estimated Useful Life of the Project.
* * * * *
PART 315--TRADE ADJUSTMENT ASSISTANCE FOR FIRMS
0
1. The authority citation for part 315 continues to read as follows:
Authority: 42 U.S.C. 3211; 19 U.S.C. 2341 et seq.; Department of
Commerce Organization Order 10-4.
0
2. Amend Sec. 315.2 to revise the definitions of ``Decreased
Absolutely'' and ``Significant Number or Proportion of Workers,'' and
the introductory text in the definition of ``Firm'' to read as follows:
Sec. 315.2 Definitions.
* * * * *
Decreased Absolutely means a Firm's sales or production has
declined by a minimum of five (5) percent relative to its sales or
production during the applicable prior time period,
(1) Irrespective 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.
* * * * *
Firm means an individual proprietorship, partnership, joint
venture, association, corporation (including a development
corporation), business trust, cooperative, trustee in bankruptcy or
receiver under court decree and includes fishing, agricultural entities
and those which explore, drill or otherwise produce oil or natural gas.
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 like or Directly Competitive articles or are exerting essential
economic control over one or more production facilities. Accordingly,
such other Firms may include a(n):
* * * * *
Significant Number or Proportion of Workers means five (5) percent
of a Firm's work force or fifty (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.
* * * * *
0
3. Revise Sec. 315.4 to read as follows:
[[Page 62871]]
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 or 251 of the Trade Act,
including:
(1) Existing agencies;
(2) Private individuals;
(3) Firms;
(4) Universities;
(5) Institutions;
(6) Associations;
(7) Unions; or
(8) Other non-profit industry organizations.
* * * * *
0
4. Amend Sec. 315.5 to revise paragraphs (a)(3) and (b)(1) and (2) to
read as follows:
Sec. 315.5 TAAC scope, selection, evaluation and awards.
(a) * * *
(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 and/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 TAAC proposals through an FFO. If such a
proposal is acceptable, EDA will invite an application on a form
approved by OMB. 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.
* * * * *
0
5. Amend Sec. 315.6 to revise paragraphs (c)(1), (c) introductory
text, and (c)(2)(i) to read as follows:
Sec. 315.6 Firm eligibility for Adjustment Assistance.
* * * * *
(c) * * *
(1) Certified Firms generally receive Adjustment Assistance over a
two-year (2) period.
(2) The matching share requirements are as follows:
(i) Each Certified Firm must pay at least twenty-five (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 twenty-five (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 fifty (50) percent of
the cost of that Adjustment Assistance.
* * * * *
0
6. Amend Sec. 315.8 to revise paragraphs (d) and (g)(2) to read as
follows:
Sec. 315.8 Processing petitions for certification.
* * * * *
(d) EDA will publish a notice of acceptance of a petition in the
Federal Register.
* * * * *
(g) * * *
(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 (1) year from the date of denial,
provided, EDA may waive the one-year (1) limitation for good cause.
* * * * *
0
7. Amend Sec. 315.9 to revise the introductory paragraph and
paragraphs (a) and (d) to read as follows:
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 ten (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;
* * * * *
(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
* * * * *
0
8. Amend Sec. 315.10 to revise the introductory text as follows:
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:
* * * * *
0
9. Amend Sec. 315.11 to revise paragraph (c) to read as follows:
Sec. 315.11 Appeals, final determinations and termination of
certification.
* * * * *
(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.
* * * * *
0
10. Revise Sec. 315.12 to read as follows:
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.
Dated: October 15, 2008.
Benjamin Erulkar,
Deputy Assistant Secretary of Commerce for Economic Development and
Chief Operating Officer.
[FR Doc. E8-25004 Filed 10-21-08; 8:45 am]
BILLING CODE 3510-24-P