[Federal Register: May 5, 2009 (Volume 74, Number 85)]
[Proposed Rules]
[Page 20647-20658]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my09-22]
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DEPARTMENT OF COMMERCE
Economic Development Administration
13 CFR Parts 313 and 315
[Docket No.: 090429810-9808-01]
RIN 0610-AA65
Revisions to the Trade Adjustment Assistance for Firms Program
Regulations and Implementation Regulations for Community Trade
Adjustment Assistance Program
AGENCY: Economic Development Administration, Department of Commerce.
ACTION: Notice of proposed rulemaking.
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SUMMARY: On February 17, 2009, President Barack Obama signed into law
the American Recovery and Reinvestment Act of 2009 (Pub.L. No. 111-5,
123 STAT. 115). Included in that omnibus measure was the Trade and
Globalization Adjustment Assistance Act of 2009 (``TGAAA''), which
contains specific amendments to chapters 3 and 4 of the Trade Act of
1974, as amended (19 U.S.C. 2341 et seq.) (``Trade Act''). See Subtitle
I (letter ``I'') of Title I of Division B of Public Law No. 111-5, 123
Stat. 367, at 396-436. Chapter 3 of the Trade Act authorizes the Trade
Adjustment Assistance for Firms (``TAAF'') Program, under which a
national network of eleven Trade Adjustment Assistance Centers provide
technical assistance to firms that have lost domestic sales and
employment due to increased imports of similar or competitive goods.
Chapter 4 of the Trade Act establishes the Community Trade Adjustment
Assistance (``Community TAA'') Program, which is designed to help local
economies adjust to changing trade patterns through the coordination of
federal, State, and local resources and the creation and implementation
of community-based development strategies to help address trade
impacts. As a result of the enactment of the TGAAA, EDA is publishing
this notice of proposed rulemaking (``NPRM'') to request comments on
the promulgation of the Community TAA Program regulations and specific
proposed changes to the TAAF Program regulations, both of which
implement the amendments to the Trade Act made by the TGAAA. In large
part, the revisions to the existing TAAF Program regulations propose to
make service sector firms potentially eligible for assistance and
include longer ``look back'' time periods for which Firms may present
data for certification purposes.
DATES: Comments on this NPRM must be received by EDA's Office of Chief
Counsel no later than 5 p.m. Eastern Time on June 4, 2009.
ADDRESSES: Comments on this NPRM may be submitted through any of the
following:
Federal eRulemaking Portal: http://www.Regulations.gov.
Mail: Economic Development Administration, Office of Chief
Counsel, Room 7005, Department of Commerce, 1401 Constitution Avenue,
NW., Washington, DC 20230.
Commenters are advised that U.S. Department of Commerce mail security
measures may delay receipt of United States Postal Service mail for up
to two weeks. Commenters may wish to use the facsimile or e-mail
options.
Facsimile: (202) 482-5671, Attention: Office of Chief
Counsel. Please indicate ``Comments on the NPRM'' on the cover page.
E-mail: edaregs@eda.doc.gov. Please state ``Comments on
the NPRM'' in the subject line.
FOR FURTHER INFORMATION CONTACT: Jamie Lipsey, Economic Development
Administration, Department of Commerce, Room 7005, 1401 Constitution
Avenue, NW., Washington, DC 20230; telephone: (202) 482-4687.
SUPPLEMENTARY INFORMATION:
Background
EDA's mission is to lead the federal economic development agenda by
promoting innovation and competitiveness, preparing American regions
for growth and success in the worldwide economy. In implementing this
mission, EDA administers the TAAF Program under the Trade Act, which
was enacted in part to provide adequate procedures to safeguard
American industry and labor against unfair or injurious import
competition and assist industries, firms, workers, and communities in
adjusting to changes in international trade flows. The responsibility
for administering both the TAAF and Community TAA Programs is delegated
from the Secretary of Commerce to EDA.
EDA is publishing proposed revisions to its TAAF Program
regulations to reflect the TGAAA amendments made to chapter 3 of the
Trade Act. Under the TAAF Program, EDA funds a national network of
eleven non-profit or university-affiliated organizations, each known as
a Trade Adjustment Assistance Center (``TAAC''). The TAACs provide
technical assistance to Firms that have lost domestic sales and
employment due to increased imports of similar or competitive goods.
In addition, the TGAAA amended chapter 4 of the Trade Act to
establish the Community TAA Program. The purpose of this program is to
assist communities impacted by trade with economic adjustment through
the coordination of federal, State and local resources and the creation
of community-based development strategies. EDA sets out in detail below
proposed Community TAA Program regulations.
Proposed Community TAA Program Regulations
Set out below are EDA's proposed regulations for the Community TAA
Program, which would be codified at 13 CFR part 313. In addition to
implementing the amendments to the Trade Act made by TGAAA, the
proposed regulations reflect EDA's practices and policies in
administering the Community TAA Program similar to its administration
of programs under the Public Works and Economic Development Act of
1965, as amended (42 U.S.C. 3121 et seq.). The discussion below
presents the proposed regulations by section number and explains each
proposed regulatory provision.
Part 313--Community Trade Adjustment Assistance
Authority Section
The authority for the Community TAA Program regulations derives
from the Trade Act, inclusive of the amendments made by TGAAA.
Section 313.1--Purpose and Scope
This section introduces the Community TAA Program to the reader,
including a reference to the TGAAA. It also provides the purpose of the
program and a brief overview for its administration, including EDA's
certification of Communities, provision of technical assistance, and
assistance in the creation and implementation of Strategic Plans.
Section 313.2--Definitions
This section proposes definitions for key terms to be used in part
313. It includes terms provided in the TGAAA as well as new terms to
increase clarity and to assist with the efficient
[[Page 20648]]
administration of the Community TAA Program.
The following discussion traces the definition of ``Agricultural
Commodity Producer'' as provided in the TGAAA. The TGAAA states that ``
`Agricultural Commodity Producer' has the meaning given that term in
section 291.'' Section 291 of the Trade Act states that ``[t]he term
`agricultural commodity producer' has the same meaning prescribed by
regulations promulgated under section 1308(e) of Title 7 (before the
amendment made by section 1703(a) of the Food, Conservation, and Energy
Act of 2008).'' Before it was amended by section 1703(e) of the Food
Conservation, and Energy Act of 2008, section 1308(e) of Title 7
provided that the Secretary of Agriculture would issue regulations
defining the term ``person'' and required that for the purposes of the
regulations ``the term `person' means--(i) an individual, including any
individual participating in a farming operation as a partner in a
general partnership, a participant in a joint venture, a grantor of a
revocable trust, or a participant in a similar entity (as determined by
the Secretary; (ii) a corporation, joint stock company, association,
limited partnership, charitable organization, or other similar entity
(as determined by the Secretary), including any such entity or
organization participating in the farming operation as a partner in a
general partnership, a participant in a joint venture, a grantor of a
revocable trust, or as a participant in a similar entity (as determined
by the Secretary); and (iii) a State, political subdivision, or agency
thereof.'' The Trade Adjustment Assistance for Farmers regulations
promulgated under section 1308(e) of Title 7 state: ``Person means an
individual, partnership, joint stock owner, corporation, association,
trust, estate, or any other legal entity as defined in 7 CFR 1400.3.''
The term Community is defined in accordance with the TGAAA. The
definition of Impacted Community combines and replaces the terms
Community Impacted By Trade and Eligible Community as defined in the
TGAAA. These terms were combined because they are essentially identical
and merging them helps clarify the regulations and is consistent with
the intent of the TGAAA.
In addition, this section includes a definition for a Cognizable
Certification. In accordance with the TGAAA, a Cognizable Certification
may be a certification from the (i) Secretary of Labor that a group of
workers in the Community is eligible for TAA for Workers benefits; (ii)
Secretary of Commerce that a Firm in the Community is eligible for TAA
for Firms benefits; or (iii) Secretary of Agriculture that a group of
Agricultural Commodity Producers is eligible for TAA for Farmers and
Fishermen benefits. Further, Strategic Plan is defined, and the concept
of a Strategic Plan is fully described in proposed section 313.6.
Section 313.3--Overview of Community Trade Adjustment Assistance
This section provides a more detailed roadmap for the
administration of and participation in the Community TAA Program.
First, a Community must petition for assistance and EDA must make an
affirmative determination that the Community is impacted by trade;
second, once an affirmative determination has been made, EDA will
provide technical assistance to the Impacted Community to address that
impact; third, EDA may provide an impacted Community with assistance in
developing a Strategic Plan to the trade impacts; and fourth, EDA may
provide assistance to implement certain projects described in the EDA-
approved Strategic Plan.
Section 313.4--Affirmative Determinations
This section would implement section 273 of chapter 4 of the Trade
Act, as amended by the TGAAA, which relates to the process and
requirements for a Community's petition for EDA's affirmative
determination that it is trade-impacted under the Community TAA
Program. A Community's completed petition for an affirmative
determination is the first step toward receiving assistance in the form
of an implementation grant under proposed part 313. Sections 313.4(a)
and (b) explain which Communities may petition for assistance. Section
313.4(c) details what type of information a Community must provide to
EDA in a petition and provides the criteria that EDA will use to make
an affirmative determination that a Community is import-impacted. For
EDA to make an affirmative determination about a Community, a
Cognizable Certification must have been made with respect to the
Community. As specified at Section 313.4(c), EDA will obtain applicable
Cognizable Certifications from publicly available sources. However, to
expedite a petition, a Community may choose to provide EDA with a copy
of any applicable Cognizable Certification. In addition, the
petitioning Community must provide information about the impact(s) on
the Community from the actual or threatened loss of jobs attributable
to the effects of competition by imports that led to the applicable
Cognizable Certification(s) made by the Secretaries of Labor, Commerce
or Agriculture, in order to allow EDA to determine that the Community
is significantly affected. EDA will measure such impacts against the
petitioning Community's most recent Civilian Labor Force statistics as
reported by the Bureau of Labor Statistics, U.S. Department of Labor,
effective at the time of petition for affirmative determination.
Upon receiving appropriations for the Community TAA Program, EDA
will publish guidance regarding the determination of the significance
of the impact when it posts the announcement of federal funding
opportunity online at eda.doc.gov. EDA anticipates that it will
establish a threshold level for an impact to be considered
``significant'' based on unemployment and the size of the Community.
Once EDA makes an affirmative determination that a Community is
trade-impacted, the Community becomes an Impacted Community, as defined
in Section 313.2. Section 313.4(d) implements section 273(c) of the
Trade Act as amended by TGAAA, which provides that EDA will promptly
notify the Impacted Community and the Governor of the State in which
the Impacted Community is located upon making an affirmative
determination.
Section 313.5--Technical Assistance
This section would implement subsections 274(a) and (b) of chapter
4 of the Trade Act, as amended by the TGAAA, which provides the types
of technical assistance an Impacted Community may receive. Upon an
affirmative determination that a Community is an Impacted Community and
subject to the availability of funding, EDA will provide technical
assistance to the Impacted Community. Section 313.5(a) provides that an
Impacted Community will receive technical assistance for certain
purposes, which are to improve the Impacted Community's economy,
identify impact-related economic challenges within the Impacted
Community, and develop or update a Strategic Plan to address import
impacts. Section 313.5(b) provides that EDA will coordinate the
provision of technical assistance with other federal, State, and local
resources to ensure the effective delivery of services and better
leverage assistance.
Section 313.6--Strategic Plans
Section 313.6 would implement section 276 of chapter 4 of the Trade
[[Page 20649]]
Act, as amended by the TGAAA, which relates to the development of a
Strategic Plan to assist an Impacted Community. Under the TGAAA, the
development of an EDA-approved Strategic Plan to address trade impacts
is one type of technical assistance that an Impacted Community may
receive under the Community TAA Program. An EDA-approved Strategic Plan
is required before a Community may receive an implementation grant, as
provided in Section 313.6(a). Section 313.6(b) provides that the
Strategic Plan should be developed to the extent possible with
participation from local, county, and State governments; local Firms
(as defined under title II, chapter 3, section 259 of the Trade Act, as
amended (see also the definition of Firm at 13 CFR 315.2)); local
workforce investment boards; labor organizations; and educational
institutions. Section 313.6(c) sets out the technical requirements of a
Strategic Plan by which EDA will evaluate and approve the Strategic
Plan. These requirements include an analysis of the economic
development challenges facing the Impacted Community and the
Community's capacity to achieve economic adjustment to these
challenges; an assessment of the Community's long-term commitment to
the Strategic Plan (including how it will be integrated with any
existing Comprehensive Economic Development Strategy (CEDS) developed
under EDA's economic development assistance programs as provided under
Section 303.7) and the participation of Community members; a
description of educational opportunities and future employment needs in
the Community; an assessment of the funding required to implement the
Strategic Plan, including a timeline and methods of financing; and a
strategy for continuing the Impacted Community's economic adjustment
after the projects in the Strategic Plans have been completed. Section
313.6(d) provides that EDA's cost share of a Strategic Plan will not
exceed 75 percent. To ensure that as many merit-worthy projects as
possible are funded, EDA may base the Community's required cost share
of developing a Strategic Plan on the Impacted Community's Civilian
Labor Force statistics.
Section 313.7--Implementation Grants for Impacted Communities
Section 313.7 would implement section 275 of chapter 4 of the Trade
Act, as amended by the TGAAA, which relates to grants for implementing
projects and programs included in an EDA-approved Strategic Plan.
Section 313.7(a) provides that EDA may assist an Impacted Community in
implementing a Strategic Plan project or program. Paragraphs (1)-(6)
under Section 313.7(a) are a list of examples of projects that may be
undertaken, including infrastructure projects; market or industry
research and analysis; technical assistance; public services; training;
and other activities justified in the Strategic Plan. Section 313.7(b)
provides information on the application for an implementation grant and
how an Impacted Community's application for assistance will be
evaluated. Section 313.7(c) provides for maximum coordination of
implementation grants among the Impacted Community's existing grant
programs. Section 313.7(d) explains the cost-sharing requirements
applicable to implementation grants. The federal share may not exceed
95 percent and, as mentioned earlier, to ensure that as many merit-
worthy projects as possible are funded, EDA may base the Community`s
required share of implementing a Strategic Plan on the Impacted
Community's Civilian Labor Force statistics. Section 313.7(e) specifies
the statutory funding limitation that an Impacted Community may not
receive more than $5,000,000 in implementation grant funding under the
Community TAA Program.
Section 313.8--Competitive Process
In accordance with EDA's economic development assistance programs
and to ensure effective expenditure of federal funds, this section
proposes that EDA will review all applications for the development of a
Strategic Plan and for an implementation grant under the Community TAA
Program in accord with a competitive process, as set out in an
applicable Federal Funding Opportunity (``FFO'') announcement, provided
monies are appropriated for the program. Paragraph (b) implements
section 275(e) of chapter 4 of the Trade Act, as amended by the TGAAA,
which provides for priority for the implementation grant applications
received from small- and medium-sized Communities. Paragraph (c)
implements section 277(c)(3) of chapter 4 of the Trade Act, as amended
by the TGAAA, which provides that the Community TAA Program shall
supplement and not supplant other federal, State, and local assistance
to Communities.
Section 313.9--Records
This section provides that a Community that receives assistance
under the Community TAA Program is subject to the records requirements
set out at 13 CFR 302.14.
Section 313.10--Conflicts of Interest
This section clarifies that a Community that receives assistance
under the Community TAA Program is subject to the conflicts-of-interest
provisions set out at 13 CFR 302.17.
Section 313.11--Other Requirements
This section clarifies that a Community that receives assistance
under the proposed part 313 is subject to certain other award
requirements set out in EDA's regulations at 13 CFR part 302, including
terms and conditions relating to environmental, post-disaster
assistance, public information, relocation assistance and land
acquisitions, federal policies and procedures, amendments and changes,
pre-approval costs, intergovernmental project review, attorneys' and
consultants' fees and the employment of expediters, the economic
development information clearinghouse, project administration,
operation and maintenance, post-approval requirements, indemnification,
civil rights and property management. The section provides the
citations for all of these requirements.
Discussion of Changes to the TAAF Program Regulations
EDA proposes revisions to 13 CFR part 315 to implement provisions
of the TGAAA that expand the scope of the TAAF Program to include
service sector firms, modify the requirements for certification, and
make conforming changes to other related provisions in the regulations.
EDA provides below a discussion of all substantive revisions
according to section number. Where substantive and non-substantive
changes are made in one part, they are discussed together. Non-
substantive edits may include grammatical changes and are intended to
clarify or make a specific provision easier to understand. Additional
non-substantive changes also update the regulations in light of
developments since EDA's publication of an interim final rule on
October 22, 2008 (73 FR 62858). Capitalized terms used but not
otherwise defined in the discussion below have the meanings ascribed to
them in 13 CFR 315.2. For convenience and ease of reading, EDA sets
forth the revised regulatory text for the program in its entirety.
Part 315--Trade Adjustment Assistance for Firms
Authority Section
The authority from which the TAAF Program regulations derive is the
Trade Act, as amended by the TGAAA.
[[Page 20650]]
Section 315.2--Definitions
In the definition of Decreased Absolutely, EDA proposes to replace
the word ``irrespective'' in paragraph (1) with the word
``independent'', for increased clarity and ease of understanding. This
change does not in any way alter the definition of the term Decreased
Absolutely or EDA's current administration of the TAAF Program.
EDA proposes to revise the definition of Directly Competitive to
include services to take into account the TGAAA's inclusion of
``service sector firms'' as eligible for trade adjustment assistance.
In addition, EDA revised the definition with respect to Firms engaged
in exploring, drilling, or producing oil or natural gas to ensure that
the definition hues closely to the statutory treatment set out in
section 251(c)(2)(B) of the Trade Act.
A significant change to this section involves the TGAAA's expansion
of the definition of Firm to include a ``service sector firm.''
Accordingly, the first sentence of the definition is revised to include
service sector entities. A statement is included following this
sentence to direct the reader to the new definition of Service Sector
Firm found later in this section. Similarly, the definition of Like
Articles is expanded to include services.
The definition of Increase in Imports is revised to include a
discussion of the type of evidence EDA may consider in determining
whether an increase in imports has occurred in a particular situation.
The proposed revision adds the new requirement from section 1863 of the
TGAAA to permit EDA to determine that an Increase in Imports exists if
customers accounting for a significant percentage of the decline in a
Firm's sales or production certify that their purchases of imported
Like Articles or Services have increased absolutely or relative to the
acquisition of such Like Articles or Services from suppliers in the
United States.
EDA proposes to include a new term in this section to define
``Service Sector Firm'' as a Firm engaged in the business of supplying
services. The definition also includes language similar to that
contained in the definition of Firm to make clear that for purposes of
receiving benefits under 13 CFR part 315, when a Service Sector Firm
owns or controls other Service Sector Firms, the Service Sector Firm
and such other Service Sector Firms may be considered a single Service
Sector Firm when they furnish like or Directly Competitive services or
are exerting essential economic control over one or more servicing
facilities.
Section 315.5--TAAC Scope, Selection, Evaluation and Awards
For increased clarity, EDA deletes the last sentence in paragraph
(a) because an FFO announcement typically is not published in
connection with administering the TAAF Program. Also for increased
clarity and consistency, EDA replaces the words ``and/or'' with ``or''
in paragraph (b)(1). In Section 315(b)(2), EDA replaces the words
``TAAC proposals'' with ``applications,'' and deletes the second
sentence because EDA no longer has a two-step application process. An
application would be submitted on EDA's Form ED-900. In Section
315.5(c)(2)(iv), the word ``funding'' is replaced with ``funds'' for
consistency with the phrase ``availability of funds'' in Section
315.5(c)(1)(iii). Finally, in Section 315.5(d)(1), EDA clarifies that
it funds a TAAC for a three-year project period that consists of three
12-month ``funding periods.'' This revision is made to bring the
regulation in line with current administration of the TAAF Program.
Section 315.7--Certification Requirements
This section would be revised to reflect changes made by the TGAAA
to the time periods that Firms may use to demonstrate injury due to an
Increase in Imports. As set out in the certification thresholds at
Section 315.7(b) and defined at Section 315.2, for certification under
the TAAF Program, a Firm must present data to demonstrate three basic
items: that its sales or production have Declined Absolutely, a
Significant Number of Workers became or are threatened to be totally or
partially separated, and increased imports Contributed Importantly to
the decline in sales or production and workforce. Before the enactment
of the TGAAA, a Firm was permitted to present data for certification
from the 12 months immediately preceding the most recent 12-month
period for which data are available, to demonstrate that imports
adversely impacted its business under one of the thresholds. The
amendments to the Trade Act expand this ``look back'' period so that a
Firm may use the average of one, two, or three years of sales or
production data, or both, preceding the most recent 12-month period for
which data are available to demonstrate that the Firm's sales or
production have Decreased Absolutely or that the Firm's sales,
production, or both of an article or service that accounts for at least
25 percent of its total production or sales has Decreased Absolutely as
a result of increased imports. Therefore, EDA proposes to revise
paragraph (b) to include the new 24-, and 36-month ``look back'' or
comparison time periods to the existing 12-month, interim sales or
production decline, and interim employment decline thresholds. For
clarity and ease of reading, EDA has set out each certification
threshold separately, and the inclusion of the 24- and 36-month
comparison periods increases the number of certification thresholds
from three to five. EDA, however, is not proposing to change the
certification requirement beyond expanding the allowable comparison
periods. EDA will continue to accept petitions that are able to
demonstrate six months of sales or production data or six months of
employment data for an interim sales or production decline or
employment decline in accordance with Sections 315.7(b)(4) and (5). For
each of the five certification thresholds listed in paragraph (b), the
required Increase in Imports is revised to make clear that any such
Increase in Imports must have Contributed Importantly to the applicable
Total or Partial Separation or Threat of Total or Partial Separation,
and to the applicable decline in sales or production or supply of
services as required by section 251 of the Trade Act.
Section 315.8--Processing Petitions for Certification
EDA revises Section 315.8 to implement the expansion of the TAAF
Program to include ``service section firms'' pursuant to the TGAAA.
Paragraphs (b)(2) and (b)(3), which discuss the scope of information
required in Form ED-840P, would be revised to include information on
services. In addition, paragraph (b)(4) would be revised to include 24-
, 36-, and 48-month periods in line with the additional ``look back''
time periods proposed in Section 315.7(b). In accordance with the
amendments to the Trade Act made by the TGAAA, EDA would amend
paragraph (g)(1) to reduce the maximum time period in which EDA is
allowed to make its determination from 60 days to 40 days.
Section 315.10--Loss of Certification Benefits
In paragraph (d) of this section, EDA proposes to change the length
of the time period that a Firm has to diligently pursue an approved
Adjustment Proposal after the date of certification from two years to
five years. This revision would make this provision consistent with
EDA's current practice that allows Certified Firms to have five, not
two, years from the date of EDA's approval of an Adjustment Proposal to
[[Page 20651]]
complete work on that Adjustment Proposal. It has been EDA's experience
that it generally takes Certified Firms longer than two years to
diligently implement an Adjustment Proposal. This may occur for a
variety of reasons, generally time needed to gather the capacity and
resources to implement the goals of the Adjustment Proposal and some
projects may have extended time horizons. This change would therefore
implement current practice.
Section 315.14--Certifications
In order to track the Trade Act more accurately in this section,
EDA proposes to amend this section to clarify that the certification
must be provided to EDA.
Classification
Prior notice and opportunity for public comment are not required
for rules concerning public property, loans, grants, benefits, and
contracts (5 U.S.C. 553(a)(2)). Because prior notice and an opportunity
for public comment are not required pursuant to 5 U.S.C. 553, or any
other law, the analytical requirements of the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory
flexibility analysis has not been prepared.
Paperwork Reduction Act
This NPRM contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA). The use of Form ED-900
(Application for Investment Assistance) has been approved by the Office
of Management and Budget (OMB) under the Control Number 0610-0094. To
estimate burden, EDA examined its experience with its public works and
economic adjustment assistance programs. The potential demand for those
programs is of course much greater because eligibility is based on
general economic distress and is not restricted to trade impact. EDA
estimates that demand from trade impacted areas would constitute a
small fraction of all areas experiencing economic distress.
Nonetheless, to a certain extent that demand will be elastic depending
on the amount of appropriations Congress and the President approve for
the program. Because the respondent burden will be similar for
applications under trade program as it is for applications under EDA's
traditional programs, if the Community TAA Program is funded at its
authorized level of $150,000,000, EDA estimates that it may receive
about 350 responses for a petition for affirmative determination and
300 responses for an implementation grant. EDA estimates that the total
annual paperwork burden for a petition for affirmative determination
would be about 550 hours and the total annual paperwork burden for an
implementation grant application would be about 6,500 hours. The use of
Form ED-840P (Petition by a Firm for Certification of Eligibility to
Apply for Trade Adjustment Assistance) has been approved by OMB under
the Control Number 0610-0091. In light of the expansion of the TAAF
Program to service firms and the expansion of the ``look back'' period,
EDA estimates responses related to certifications of eligibility will
increase more than 100 percent to about 500 responses and that the
total annual paperwork burden would be about 4,100 hours.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
Executive Order No. 12866
It has been determined that this NPRM is significant for purposes
of Executive Order 12866.
Congressional Review Act
This NPRM is not ``major'' under the Congressional Review Act (5
U.S.C. 801 et seq.)
Executive Order No. 13132
Executive Order 13132 requires agencies to develop an accountable
process to ensure ``meaningful and timely input by State and local
officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in Executive Order 13132 to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.'' It has been determined that this NPRM does not contain
policies that have federalism implications.
List of Subjects
13 CFR Part 313
Impacted community, Implementation grant, Petition and affirmative
determination requirements, Strategic plan, Trade adjustment assistance
for communities.
13 CFR Part 315
Adjustment proposals, Administrative practice and procedure,
Certification requirements, Eligible petitioner, Firm selection,
Recordkeeping and audit requirements, Trade adjustment assistance.
Regulatory Text
For reasons stated in the preamble, EDA amends chapter III of title
13 of the Code of Federal Regulations to add new part 313, and to amend
part 315 as follows:
1. Add new part 313 to read as follows:
PART 313--COMMUNITY TRADE ADJUSTMENT ASSISTANCE
Subpart A--General Provisions
Sec.
313.1 Purpose and Scope.
313.2 Definitions.
Subpart B--Participation in the Community Trade Adjustment Assistance
Program
313.3 Overview of Community Trade Adjustment Assistance.
313.4 Affirmative Determinations.
313.5 Technical Assistance.
313.6 Strategic Plans.
313.7 Implementation Grants for Impacted Communities.
313.8 Competitive Process.
Subpart C--Administrative Provisions
313.9 Records.
313.10 Conflicts of Interest.
313.11 Other Requirements.
Authority: 19 U.S.C. 2341 et seq., as amended by Division B,
Title I, Subtitle I, Part II of Pub. L. No. 111-5; 42 U.S.C. 3211;
Department of Commerce Organizational Order 10-4.
Subpart A--General Provisions
Sec. 313.1 Purpose and scope.
The regulations in this part set forth the responsibilities of the
Secretary of Commerce under chapter 4 of title II of the Trade Act
concerning Community Trade Adjustment Assistance (``Community TAA'').
The Community TAA Program is designed to assist communities impacted by
trade with economic adjustment through the coordination of federal,
State, and local resources, the creation of community-based development
strategies, and the development and provision of programs that meet the
training needs of workers. The statutory authority and responsibilities
of the Secretary of Commerce relating to Community TAA are delegated to
EDA. EDA certifies Communities as eligible to apply for assistance
under the Community TAA Program, provides technical assistance to
Impacted Communities, and provides implementation assistance to
Impacted Communities in preparing and carrying out Strategic Plans.
[[Page 20652]]
Sec. 313.2 Definitions.
In addition to the defined terms set forth in Sec. 300.3 of this
chapter, the terms used in this part shall have the following meanings:
Agricultural Commodity Producer has the same meaning given to that
term in title II, chapter 6, section 291 of the Trade Act.
Cognizable Certification means a certification:
(1) By the Secretary of Labor that a group of workers in the
Community is eligible to apply for assistance under chapter 2, section
223 of the Trade Act;
(2) By the Secretary of Commerce that a Certified Firm (as defined
at Sec. 315.2 of this chapter) located in the Community is eligible to
apply for Adjustment Assistance in accordance with chapter 3, sections
251-253 of the Trade Act; or
(3) By the Secretary of Agriculture that a group of agricultural
commodity producers in the Community is eligible to apply for
assistance under chapter 6, section 293 of the Trade Act.
Community means a city, county, or other political subdivision of a
State or a consortium of political subdivisions of a State.
Community Adjustment Assistance means technical and implementation
assistance provided to a Community under chapter 4 of title II of the
Trade Act.
Impacted Community means a Community that is affected by trade to
such a degree that the Secretary has made an affirmative determination
that it is eligible to apply for assistance under this part.
Strategic Plan means an Impacted Community's plan for improving its
economic situation developed in accordance with Sec. 313.6.
Subpart B--Participation in the Community Trade Adjustment
Assistance Program
Sec. 313.3 Overview of Community Trade Adjustment Assistance.
The Community TAA Program is designed to assist Communities
impacted by trade to adjust to that impact. The Community TAA Program
will be administered in accordance with the following process:
(a) Determination of eligibility. First, EDA must make an
affirmative determination that the Community is impacted by trade in
accordance with Sec. 313.4.
(b) Provision of technical assistance. After an affirmative
determination is made, EDA will provide the Impacted Community with
technical assistance in accordance with Sec. 313.5.
(c) Strategic Plan development. An Impacted Community that intends
to apply for an implementation grant in accordance with Sec. 313.7
must develop, in accordance with Sec. 313.6, an EDA-approved Strategic
Plan.
(d) Implementation grant. In accordance with Sec. 313.7, EDA may
award an implementation grant to assist an Impacted Community in
carrying out a project or program included in a Strategic Plan.
Sec. 313.4 Affirmative Determinations.
(a) General. Subject to the availability of funds, a Community may
apply for an affirmative determination if:
(1) On or after August 1, 2009, one or more Cognizable
Certifications are made with respect to the Community; and
(2) The Community submits the petition at least 180 days after the
date of the most recent Cognizable Certification.
(b) Grandfathered Communities. If one or more Cognizable
Certifications were made with respect to a Community on or after
January 1, 2007, and before August 1, 2009, the Community may submit a
petition to EDA for an affirmative determination under this section not
later than February 1, 2010.
(c) Affirmative determination petition requirements. (1) The
Community must submit a complete petition to the applicable regional
office (or regional offices in the event the Community crosses multiple
geographic boundaries) serving the geographic area in which the
Community is located. A complete petition for an affirmative
determination shall contain the following:
(i) The Application for Federal Assistance (Form SF-424) and
sections A1-A10 of the Application for Investment Assistance (Form ED-
900 or any successor form);
(ii) The applicable Cognizable Certification(s) upon which the
Community bases its petition; and
(iii) Such other information as EDA considers material.
(2) The petition for affirmative determination must contain
information about the impact(s) on the Community from the actual or
threatened loss of jobs attributable to the effects of competition by
imports that led to the applicable Cognizable Certification(s) made by
the Secretaries of Labor, Commerce or Agriculture, in order for EDA to
determine that the Community is significantly affected. EDA shall
measure such impact(s) using the petitioning Community's most recent
Civilian Labor Force statistics as reported by the Bureau of Labor
Statistics, U.S. Department of Labor, effective at the time of petition
for affirmative determination. EDA will obtain the applicable
Cognizable Certification from publicly available resources. However, a
petitioning Community may also provide copies of the applicable
Cognizable Certification to EDA.
(d) Notification to Community. Upon making an affirmative
determination, EDA shall notify promptly the Community and the Governor
of the State in which the Community is located of the means for
obtaining assistance under this part and other appropriate economic
assistance that may be available to the Community. Such notification
will identify the appropriate EDA regional office that will provide
technical assistance under Sec. 313.6.
Sec. 313.5 Technical Assistance.
(a) General. Once EDA has made an affirmative determination that a
Community is an Impacted Community and subject to the availability of
funds, EDA shall provide comprehensive technical assistance to:
(1) Diversify and strengthen the economy in the Impacted Community;
(2) Identify significant impediments to economic development that
result from the impact of trade on the Impacted Community; and
(3) Develop or update a Strategic Plan in accordance with Sec.
313.6 to address economic adjustment and workforce dislocation in the
Impacted Community, including unemployment among agricultural commodity
producers.
(b) Coordination of federal response. EDA will coordinate the
federal response to an Impacted Community by:
(1) Identifying federal, State, and local resources that are
available to assist the Impacted Community in responding to economic
distress; and
(2) Assisting the Impacted Community in accessing available federal
assistance and ensuring that such assistance is provided in a targeted,
integrated manner.
Sec. 313.6 Strategic Plans.
(a) General. An Impacted Community that intends to apply for a
grant for implementation assistance under Sec. 313.7 shall develop and
submit a Strategic Plan to EDA for evaluation and approval. EDA shall
evaluate the Strategic Plan based on the technical requirements set
forth in paragraph (c) of this section.
(b) Involvement of private and public entities. To the extent
practicable, an Impacted Community shall consult with the following
entities in developing a Strategic Plan:
[[Page 20653]]
(1) Federal, local, county, or State government agencies serving
the Impacted Community;
(2) Firms, as defined in Sec. 315.2 of this chapter, including
small- and medium-sized Firms, within the Impacted Community;
(3) Local workforce investment boards established under section 117
of the Workforce Investment Act of 1998 (29 U.S.C. 2832);
(4) Labor organizations, including State labor federations and
labor-management initiatives, representing workers in the Impacted
Community; and
(5) Educational institutions, local educational agencies, or other
training providers serving the Impacted Community.
(c) Technical requirements. EDA shall evaluate the Strategic Plan
based on the following minimum requirements:
(1) An analysis of the capacity of the Impacted Community to
achieve economic adjustment to the impact(s) of trade;
(2) An analysis of the economic development challenges and
opportunities facing the Impacted Community as well as the strengths,
weaknesses, opportunities, and threats facing the Impacted Community;
(3) An assessment of the commitment of the Impacted Community to
the Strategic Plan over the long term and the participation and input
of members of the Community affected by economic dislocation, including
how the Strategic Plan will be integrated effectively with one or more
applicable Comprehensive Economic Development Strategies (CEDS) that
have been developed in connection with EDA's economic development
assistance programs as set out at Sec. 303.7 of this chapter;
(4) A description of the role and the participation of the entities
described in paragraph (b) of this section in developing the Strategic
Plan;
(5) A description of the projects to be undertaken by the Impacted
Community under its Strategic Plan and how such projects will
facilitate the Impacted Community's economic adjustment;
(6) A description of the educational and training programs
available to workers in the Impacted Community and the future
employment needs of the Community;
(7) An assessment of the cost of implementing the Strategic Plan,
including the timing of funding required by the Impacted Community to
implement the Strategic Plan and the method of financing to be used to
implement the Strategic Plan; and
(8) A strategy for continuing the economic adjustment of the
Impacted Community after the completion of the projects described in
paragraph (c)(5) of this section.
(d) Cost sharing limitation. Assistance awarded to an Impacted
Community to develop a Strategic Plan under this section shall not
exceed 75 percent of the cost of developing the Strategic Plan. In
order to provide funding to as many merit-worthy Impacted Communities
as feasible, EDA may base the amount of the Community's required share
on the relative distress caused by the actual or threatened decline in
the most recent Civilian Labor Force statistics effective on the date
EDA receives an application to develop a Strategic Plan.
Sec. 313.7 Implementation Grants for Impacted Communities.
(a) General. EDA may provide assistance in the form of a grant
under this section to an Impacted Community to help the Community carry
out a project or program that is included in a Strategic Plan developed
in accordance with Sec. 313.6. Such assistance may include:
(1) Infrastructure improvements, such as site acquisition, site
preparation, construction, rehabilitation and equipping of facilities;
(2) Market or industry research and analysis;
(3) Technical assistance, including organizational development such
as business networking, restructuring or improving the delivery of
business services, or feasibility studies;
(4) Public services;
(5) Training; and
(6) Other activities justified by the Strategic Plan that satisfy
applicable statutory and regulatory requirements.
(b) Application evaluation criteria. (1) An Impacted Community that
seeks to receive an implementation grant under this section shall
submit a completed Application for Investment Assistance (Form ED-900
or any successor form) to the applicable regional office (or regional
offices in the event the Community crosses multiple geographic
boundaries) serving the geographic area in which the Community is
located. A complete application also shall include:
(i) The EDA-approved Strategic Plan that meets the requirements of
Sec. 313.6; and
(ii) A description of the project or program included in the
Strategic Plan with respect to which the Impacted Community seeks
assistance.
(2) EDA will evaluate all applications for the feasibility of the
budget presented and conformance with statutory and regulatory
requirements. EDA also will consider the degree to which an
implementation grant in the Impacted Community will satisfy the
evaluation criteria set forth in the applicable Federal Funding
Opportunity (``FFO'') announcement.
(c) Coordination among grant programs. If an entity in an Impacted
Community seeks or plans to seek a Community College and Career
Training Grant under section 278 of the Trade Act or a Sector
Partnership Grant under section 279A of the Trade Act while the
Impacted Community seeks assistance under this section, the Impacted
Community shall include in the application for assistance a description
of how the Impacted Community will integrate any projects or programs
carried out using assistance provided under this section with any
projects or programs that may be implemented with other federal
assistance.
(d) Cost sharing requirement. (1) If an Impacted Community is
awarded an implementation grant under this section, the following
requirements shall apply:
(i) Federal share. The federal share of a project or program for
which a grant is awarded may not exceed 95 percent of the cost of
implementing the project or program; and
(ii) Community's share. The Impacted Community must contribute at
least five percent of the amount of the implementation grant towards
the cost of implementing the project or program for which the grant is
awarded.
(2) In order to provide funding to as many merit-worthy Impacted
Communities as feasible, EDA may base the amount of the Community's
required share on the relative distress caused by the actual or
threatened decline in the most recent Civilian Labor Force statistics
effective on the date EDA receives an application for an implementation
grant.
(e) Limitation. An Impacted Community may not be awarded more than
$5,000,000 in implementation grant assistance under this section.
Sec. 313.8 Competitive Process.
(a) Applications for assistance to develop a Strategic Plan or for
an implementation grant shall be reviewed by EDA in accord with a
competitive process as set forth in the applicable FFO, to ensure that
EDA awards funds to the most merit-worthy projects.
(b) Priority for grants to small- and medium-sized Communities. EDA
shall give priority to an application submitted under this part by an
Impacted Community that is a small- or medium-sized Community.
(c) Supplement, not supplant. The Community TAA Program and any
[[Page 20654]]
funds appropriated to implement its provisions shall be used to
supplement and not supplant other federal, State, and local public
funds expended to provide economic development assistance for
Communities.
Subpart C--Administrative Provisions
Sec. 313.9 Records.
Communities that receive assistance under this part are subject to
the records requirements set out in Sec. 302.14 of this chapter.
Sec. 313.10 Conflicts of interest.
Communities that receive assistance under this part are subject to
the conflicts of interest provisions as set out in Sec. 302.17 of this
chapter.
Sec. 313.11 Other requirements.
Communities that receive assistance under this part are subject to
the general terms and conditions for Investment Assistance set out in
part 302 of this chapter relating to requirements involving the
environment (Sec. 302.1); post-disaster assistance (Sec. 302.2);
public information (Sec. 302.4); relocation assistance and land
acquisition (Sec. 302.5); federal policies and procedures (Sec.
302.6); amendments and changes to awards (Sec. 302.7); pre-approval
costs (Sec. 302.8); intergovernmental project reviews (Sec. 302.9);
attorneys' and consultants' fees or the employment of expediters (Sec.
302.10); EDA's economic development information clearinghouse (Sec.
302.11); project administration, operation, and maintenance (Sec.
302.12); post-approval requirements (Sec. 302.18); indemnification
(Sec. 302.19); and civil rights (Sec. 302.20). In addition, any
Property (defined in Sec. 314.1) acquired in connection with
Investment Assistance is subject to the property management regulations
set out in part 314 of this chapter.
2. Revise part 315 to read as follows:
PART 315--TRADE ADJUSTMENT ASSISTANCE FOR FIRMS
Subpart A--General Provisions
Sec.
315.1 Purpose and scope.
315.2 Definitions.
315.3 Confidential Business Information.
315.4 Eligible applicants.
315.5 TAAC scope, selection, evaluation and awards.
315.6 Firm eligibility for Adjustment Assistance.
Subpart B--Certification of Firms
315.7 Certification requirements.
315.8 Processing petitions for certification.
315.9 Hearings.
315.10 Loss of certification benefits.
315.11 Appeals, final determinations and termination of
certification.
Subpart C--Protective Provisions
315.12 Recordkeeping.
315.13 Audit and examination.
315.14 Certifications.
315.15 Conflicts of interest.
Subpart D--Adjustment Proposals
315.16 Adjustment Proposal Requirements.
Subpart E--Assistance to Industries
315.17 Assistance to Firms in import-impacted industries.
Authority: 19 U.S.C. 2341 et seq., as amended by Division B,
Title I, Subtitle I, Part II of Pub. L. No. 111-5; 42 U.S.C. 3211;
Department of Commerce Organization Order 10-4.
Subpart A--General Provisions
Sec. 315.1 Purpose and scope.
The regulations in this part set forth the responsibilities of the
Secretary of Commerce under chapter 3 of title II of the Trade Act
concerning Trade Adjustment Assistance for Firms. The statutory
authority and responsibilities of the Secretary of Commerce relating to
Adjustment Assistance are delegated to EDA. EDA certifies Firms as
eligible to apply for Adjustment Assistance, provides technical
Adjustment Assistance to Firms and other recipients, and provides
assistance to organizations representing trade injured industries.
Sec. 315.2 Definitions.
In addition to the defined terms set forth in Sec. 300.3 of this
chapter, the following terms used in this part shall have the following
meanings:
Adjustment Assistance means technical assistance provided to Firms
or industries under chapter 3 of title II of the Trade Act.
Adjustment Proposal means a Certified Firm's plan for improving its
economic situation.
Certified Firm means a Firm which has been determined by EDA to be
eligible to apply for Adjustment Assistance.
Confidential Business Information means any information submitted
to EDA or a TAAC by a Firm that concerns or relates to trade secrets
for commercial or financial purposes, which is exempt from public
disclosure under 5 U.S.C. 552(b)(4), 5 U.S.C. 552b(c)(4) and 15 CFR
part 4.
Contributed Importantly, with respect to an Increase in Imports,
refers to a cause which is important but not necessarily more important
than any other cause. Imports will not be considered to have
Contributed Importantly if other factors were so dominant, acting
singly or in combination, that the worker separation or threat thereof
or decline in sales or production would have been essentially the same,
irrespective of the influence of imports.
Decreased Absolutely means a Firm's sales or production has
declined by a minimum of five percent relative to its sales or
production during the applicable prior time period,
(1) Independent of industry or market fluctuations; and
(2) Relative only to the previous performance of the Firm, unless
EDA determines that these limitations in a given case would not be
consistent with the purposes of the Trade Act.
Directly Competitive means imported articles or services that
compete with and are substantially equivalent for commercial purposes
(i.e., are adapted for the same function or use and are essentially
interchangeable) as the Firm's articles or services. Any Firm that
engages in exploring or drilling for oil or natural gas, or otherwise
produces oil or natural gas, shall be considered to be producing
articles directly competitive with imports of oil and with imports of
natural gas.
Firm means an individual proprietorship, partnership, joint
venture, association, corporation (includes a development corporation),
business trust, cooperative, trustee in bankruptcy or receiver under
court decree, and includes fishing, agricultural or service sector
entities and those which explore, drill or otherwise produce oil or
natural gas. See also the definition of Service Sector Firm. Pursuant
to section 261 of chapter 3 of title II of the Trade Act (19 U.S.C.
2351), a Firm, together with any predecessor or successor firm, or any
affiliated firm controlled or substantially beneficially owned by
substantially the same person, may be considered a single Firm where
necessary to prevent unjustifiable benefits. For purposes of receiving
benefits under this part, when a Firm owns or controls other Firms, the
Firm and such other Firms may be considered a single Firm when they
produce or supply like or Directly Competitive articles or services or
are exerting essential economic control over one or more production
facilities. Accordingly, such other Firms may include a(n):
(1) Predecessor--see the following definition for Successor;
(2) Successor--a newly established Firm (that has been in business
less than two years) which has purchased substantially all of the
assets of a previously operating company (or in some cases a whole
distinct division)
[[Page 20655]]
(such prior company, unit or division, a ``Predecessor'') and is able
to demonstrate that it continued the operations of the Predecessor
which has operated as an autonomous unit, provided that there were no
significant transactions between the Predecessor unit and any related
parent, subsidiary, or affiliate that would have affected its past
performance, and that separate records are available for the
Predecessor's operations for at least two years before the petition is
submitted. The Successor Firm must have continued virtually all of the
Predecessor Firm's operations by producing the same type of products or
services, in the same plant, utilizing most of the same machinery and
equipment and most of its former workers, and the Predecessor Firm must
no longer be in existence;
(3) Affiliate--a company (either foreign or domestic) controlled or
substantially beneficially owned by substantially the same person or
persons that own or control the Firm filing the petition; or
(4) Subsidiary--a company (either foreign or domestic) that is
wholly owned or effectively controlled by another company.
Increase in Imports means an increase of imports of Directly
Competitive or Like Articles or Services with articles produced or
services supplied by such Firm. EDA may consider as evidence of an
Increase in Imports a certification from the Firm's customers that
account for a significant percentage of the Firm's decrease in sales or
production that they have increased their purchase of imports of
Directly Competitive or Like Articles or Services from a foreign
country, either absolutely or relative to their acquisition of such
Like Articles or Services from suppliers located in the United States.
Like Articles or Services means any articles or services, as
applicable, which are substantially identical in their intrinsic
characteristics.
Partial Separation means, with respect to any employment in a Firm,
either:
(1) A reduction in an employee's work hours to 80 percent or less
of the employee's average weekly hours during the year of such
reductions as compared to the preceding year; or
(2) A reduction in the employee's weekly wage to 80 percent or less
of his/her average weekly wage during the year of such reduction as
compared to the preceding year.
Person means an individual, organization or group.
Record means any of the following:
(1) A petition for certification of eligibility to qualify for
Adjustment Assistance;
(2) Any supporting information submitted by a petitioner;
(3) The report of an EDA investigation with respect to petition;
and
(4) Any information developed during an investigation or in
connection with any public hearing held on a petition.
Service Sector Firm means a Firm engaged in the business of
supplying services. For purposes of receiving benefits under this part,
when a Service Sector Firm owns or controls other Service Sector Firms,
the Service Sector Firm and such other Service Sector Firms may be
considered a single Service Sector Firm when they furnish like or
Directly Competitive services or are exerting essential economic
control over one or more servicing facilities. Such other Service
Sector Firm may be a Predecessor, Successor, Affiliate or Subsidiary,
each as defined in the definition of Firm.
Significant Number or Proportion of Workers means five percent of a
Firm's work force or 50 workers, whichever is less, unless EDA
determines that these limitations in a given case would not be
consistent with the purposes of the Trade Act. An individual farmer or
fisherman is considered a Significant Number or Proportion of Workers.
Substantial Interest means a direct material economic interest in
the certification or non-certification of the petitioner.
TAAC means a Trade Adjustment Assistance Center, as more fully
described in Sec. 315.5.
Threat of Total or Partial Separation means, with respect to any
group of workers, one or more events or circumstances clearly
demonstrating that a Total or Partial Separation is imminent.
Total Separation means, with respect to any employment in a Firm,
the laying off or termination of employment of an employee for lack of
work.
Sec. 315.3 Confidential Business Information.
EDA will follow the procedures set forth in 15 CFR 4.9 for the
submission of Confidential Business Information. Submitters should
clearly mark and designate as confidential any Confidential Business
Information.
Sec. 315.4 Eligible applicants.
(a) The following entities may apply for assistance to operate a
TAAC:
(1) Universities or affiliated organizations;
(2) States or local governments; or
(3) Non-profit organizations.
(b) For purposes of Sec. 315.17 and to the extent funds are
appropriated to implement section 265 of the Trade Act, organizations
assisting or representing industries in which a substantial number of
Firms or workers have been certified as eligible to apply for
Adjustment Assistance under sections 223 and 251 of the Trade Act,
include:
(1) Existing agencies;
(2) Private individuals;
(3) Firms;
(4) Universities;
(5) Institutions;
(6) Associations;
(7) Unions; or
(8) Other non-profit industry organizations.
Sec. 315.5 TAAC scope, selection, evaluation and awards.
(a) TAAC purpose and scope.
(1) TAACs are available to assist Firms in obtaining Adjustment
Assistance in all 50 U.S. States, the District of Columbia and the
Commonwealth of Puerto Rico. TAACs provide Adjustment Assistance in
accordance with this part either through their own staffs or by
arrangements with outside consultants. Information concerning TAACs
serving particular areas may be obtained from the TAAC Web site at
http://www.taacenters.org or from EDA at http://www.eda.gov.
(2) Prior to submitting a petition for Adjustment Assistance to
EDA, a Firm should determine the extent to which a TAAC can provide the
required Adjustment Assistance. EDA will provide Adjustment Assistance
through TAACs whenever EDA determines that such assistance can be
provided most effectively in this manner. Requests for Adjustment
Assistance will normally be made through TAACs.
(3) A TAAC generally provides Adjustment Assistance by providing
assistance to a:
(i) Firm in preparing its petition for eligibility certification;
and
(ii) Certified Firm in diagnosing its strengths and weaknesses, and
developing and implementing an Adjustment Proposal.
(b) TAAC selection.
(1) EDA invites currently funded TAACs to submit either new or
amended applications, provided they have performed in a satisfactory
manner and complied with previous or current conditions in their
Cooperative Agreements with EDA and contingent upon availability of
funds. Such TAACs shall submit an application on a form approved by
OMB, as well as a proposed budget, narrative scope of work, and such
other information as requested by EDA. Acceptance of an application or
amended application for a Cooperative Agreement does not ensure funding
by EDA.
[[Page 20656]]
(2) EDA may invite new applications through a Federal Funding
Opportunity (``FFO'') announcement. An application will require a
narrative scope of work, proposed budget and such other information as
requested by EDA. Acceptance of an application does not ensure funding
by EDA.
(c) TAAC evaluation.
(1) EDA generally evaluates currently funded TAACs based on:
(i) Performance under Cooperative Agreements with EDA and
compliance with the terms and conditions of such Cooperative
Agreements;
(ii) Proposed scope of work, budget and application or amended
application; and
(iii) Availability of funds.
(2) EDA generally evaluates new TAACs based on:
(i) Competence in administering business assistance programs;
(ii) Background and experience of staff;
(iii) Proposed scope of work, budget and application; and
(iv) Availability of funds.
(d) TAAC award requirements.
(1) EDA generally funds a TAAC for a three-year project period
consisting of three separate funding periods of 12 months each.
(2) There are no matching share requirements for Adjustment
Assistance provided by the TAACs to Firms for certification or for
administrative expenses of the TAACs.
Sec. 315.6 Firm eligibility for Adjustment Assistance.
(a) Firms participate in the Trade Adjustment Assistance for Firms
program in accordance with the following:
(1) Firms apply for certification through a TAAC by completing a
petition for certification. The TAAC will assist Firms in completing
such petitions (at no cost to the Firms);
(2) Firms certified in accordance with the procedures described in
Sec. Sec. 315.7 and 315.8 must prepare an Adjustment Proposal for
Adjustment Assistance from the TAAC (``Adjustment Proposal'') and
submit it to EDA for approval; and
(3) EDA determines whether the Adjustment Assistance requested in
the Adjustment Proposal is eligible based upon the evaluation criteria
set forth in subpart D of this part. A Certified Firm may submit a
request to the TAAC for Adjustment Assistance to implement an approved
Adjustment Proposal.
(b) For certification, EDA evaluates Firms' petitions strictly on
the basis of fulfillment of the requirements set forth in Sec. 315.7.
(c) (1) Certified Firms generally receive Adjustment Assistance
over a two-year period.
(2) The matching share requirements are as follows:
(i) Each Certified Firm must pay at least 25 percent of the cost of
preparing its Adjustment Proposal. Each Certified Firm requesting
$30,000 or less in total Adjustment Assistance in its approved
Adjustment Proposal must pay at least 25 percent of the cost of that
Adjustment Assistance. Each Certified Firm requesting more than $30,000
in total Adjustment Assistance in its approved Adjustment Proposal must
pay at least 50 percent of the cost of that Adjustment Assistance.
(ii) Organizations representing trade-injured industries must pay
at least 50 percent of the total cash cost of the Adjustment
Assistance, in addition to appropriate in-kind contributions.
Subpart B--Certification of Firms
Sec. 315.7 Certification requirements.
(a) General. EDA may certify a Firm as eligible to apply for
Adjustment Assistance under section 251(c) of the Trade Act if it
determines that the petition for certification meets one of the minimum
certification thresholds set forth in paragraph (b) of this section. In
order to be certified, a Firm must meet the criteria listed under any
one of the 5 circumstances described in paragraph (b) of this section.
(b) Minimum certification thresholds.
(1) Twelve-month decline. Based upon a comparison of the most
recent 12-month period for which data are available and the immediately
preceding twelve-month period:
(i) A Significant Number or Proportion of Workers in the Firm has
undergone Total or Partial Separation or a Threat of Total or Partial
Separation;
(ii) Either sales or production, or both, of the Firm has Decreased
Absolutely; or sales or production, or both, of any article or service
that accounted for not less than 25 percent of the total production or
sales of the Firm during the 12-month period preceding the most recent
12-month period for which data are available have Decreased Absolutely;
and
(iii) An Increase in Imports has Contributed Importantly to the
applicable Total or Partial Separation or Threat of Total or Partial
Separation, and to the applicable decline in sales or production or
supply of services.
(2) Twelve-month versus twenty-four month decline. Based upon a
comparison of the most recent 12-month period for which data are
available and the immediately preceding 24-month period:
(i) A Significant Number or Proportion of Workers in the Firm has
undergone Total or Partial Separation or a Threat of Total or Partial
Separation;
(ii) Either sales or production, or both, of the Firm has Decreased
Absolutely; or sales or production, or both, of any article or service
that accounted for not less than 25 percent of the total production or
sales of the Firm during the 24-month period preceding the most recent
12-month period for which data are available have Decreased Absolutely;
and
(iii) An Increase in Imports has Contributed Importantly to the
applicable Total or Partial Separation or Threat of Total or Partial
Separation, and to the applicable decline in sales or production or
supply of services.
(3) Twelve-month versus thirty-six month decline. Based upon a
comparison of the most recent 12-month period for which data are
available and the immediately preceding 36-month period:
(i) A Significant Number or Proportion of Workers in the Firm has
undergone Total or Partial Separation or a Threat of Total or Partial
Separation;
(ii) Either sales or production, or both, of the Firm has Decreased
Absolutely; or sales or production, or both, of any article or service
that accounted for not less than 25 percent of the total production or
sales of the Firm during the 36-month period preceding the most recent
12-month period for which data are available have Decreased Absolutely;
and
(iii) An Increase in Imports has Contributed Importantly to the
applicable Total or Partial Separation or Threat of Total or Partial
Separation, and to the applicable decline in sales or production or
supply of services.
(4) Interim sales or production decline. Based upon an interim
sales or production decline:
(i) Sales or production has Decreased Absolutely for, at minimum,
the most recent six-month period during the most recent 12-month period
for which data are available as compared to the same six-month period
during the immediately preceding 12-month period;
(ii) During the same base and comparative period of time as sales
or production has Decreased Absolutely, a Significant Number or
Proportion of Workers in such Firm has undergone Total or Partial
Separation or a Threat of Total or Partial Separation; and
(iii) During the same base and comparative period of time as sales
or production has Decreased Absolutely,
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an Increase in Imports has Contributed Importantly to the applicable
Total or Partial Separation or Threat of Total or Partial Separation,
and to the applicable decline in sales or production or supply of
services.
(5) Interim employment decline. Based upon an interim employment
decline:
(i) A Significant Number or Proportion of Workers in such Firm has
undergone Total or Partial Separation or a Threat of Total or Partial
Separation during, at a minimum, the most recent six-month period
during the most recent 12-month period for which data are available as
compared to the same six-month period during the immediately preceding
12-month period; and
(ii) Either sales or production of the Firm has Decreased
Absolutely during the 12-month period preceding the most recent 12-
month period for which data are available; and
(iii) An Increase in Imports has Contributed Importantly to the
applicable Total or Partial Separation or Threat of Total or Partial
Separation, and to the applicable decline in sales or production or
supply of services.
Sec. 315.8 Processing petitions for certification.
(a) Firms shall consult with a TAAC for guidance and assistance in
the preparation of their petitions for certification.
(b) A Firm seeking certification shall complete a Petition by a
Firm for Certification of Eligibility to Apply for Trade Adjustment
Assistance (Form ED-840P or any successor form) with the following
information about such Firm:
(1) Identification and description of the Firm, including legal
form of organization, economic history, major ownership interests,
officers, directors, management, parent company, Subsidiaries or
Affiliates, and production and sales facilities;
(2) Description of goods or services supplied or sold;
(3) Description of imported Directly Competitive or Like Articles
or Services with those produced or supplied;
(4) Data on its sales, production and employment for the applicable
24-month, 36-month, or 48-month period, as required under Sec.
315.7(b);
(5) One copy of a complete auditor's certified financial report for
the entire period covering the petition, or if not available, one copy
of the complete profit and loss statements, balance sheets and
supporting statements prepared by the Firm's accountants for the entire
period covered by the petition; publicly-owned corporations should
submit copies of the most recent Form 10-K annual reports (or Form 10-Q
quarterly reports, as appropriate) filed with the U.S. Securities and
Exchange Commission for the entire period covered by the petition;
(6) Information concerning its major customers and their purchases
(or its bids, if there are no major customers); and
(7) Such other information as EDA considers material.
(c) EDA shall determine whether the petition has been properly
prepared and can be accepted. Promptly thereafter, EDA shall notify the
petitioner that the petition has been accepted or advise the TAAC that
the petition has not been accepted, but may be resubmitted at any time
without prejudice when the specified deficiencies have been corrected.
Any resubmission will be treated as a new petition.
(d) EDA will publish a notice of acceptance of a petition in the
Federal Register.
(e) EDA will initiate an investigation to determine whether the
petitioner meets the requirements set forth in section 251(c) of the
Trade Act and Sec. 315.7.
(f) A petitioner may withdraw a petition for certification if EDA
receives a request for withdrawal before it makes a certification
determination or denial. A Firm may submit a new petition at any time
thereafter in accordance with the requirements of this section and
Sec. 315.7.
(g) Following acceptance of a petition, EDA will:
(1) Make a determination based on the Record as soon as possible
after the petitioning Firm or TAAC has submitted all material. In no
event may the determination period exceed 40 days from the date on
which EDA accepted the petition; and
(2) Either certify the petitioner as eligible to apply for
Adjustment Assistance or deny the petition. In either event, EDA shall
promptly give written notice of action to the petitioner. Any written
notice to the petitioner of a denial of a petition shall specify the
reason(s) for the denial. A petitioner shall not be entitled to
resubmit a petition within one year from the date of denial, provided,
EDA may waive the one-year limitation for good cause.
Sec. 315.9 Hearings.
EDA will hold a public hearing on an accepted petition if the
petitioner or any interested Person found by EDA to have a Substantial
Interest in the proceedings submits a request for a hearing no later
than 10 days after the date of publication of the notice of acceptance
in the Federal Register, under the following procedures:
(a) The petitioner or any interested Person(s) shall have an
opportunity to be present, to produce evidence and to be heard;
(b) A request for public hearing must be delivered by hand or by
registered mail to EDA. A request by a Person other than the petitioner
shall contain:
(1) The name, address and telephone number of the Person requesting
the hearing; and
(2) A complete statement of the relationship of the Person
requesting the hearing to the petitioner and the subject matter of the
petition, and a statement of the nature of its interest in the
proceedings.
(c) If EDA determines that the requesting party does not have a
Substantial Interest in the proceedings, a written notice of denial
shall be sent to the requesting party. The notice shall specify the
reasons for the denial;
(d) EDA shall publish a notice of a public hearing in the Federal
Register, containing the subject matter, name of petitioner, and date,
time and place of the hearing; and
(e) EDA shall appoint a presiding officer for the hearing who shall
respond to all procedural questions.
Sec. 315.10 Loss of certification benefits.
EDA may terminate a Firm's certification or refuse to extend
Adjustment Assistance to a Firm for any of the following reasons:
(a) Failure to submit an acceptable Adjustment Proposal within two
years after date of certification. While approval of an Adjustment
Proposal may occur after the expiration of such two-year period, a Firm
must submit an acceptable Adjustment Proposal before such expiration;
(b) Failure to submit documentation necessary to start
implementation or modify its request for Adjustment Assistance
consistent with its Adjustment Proposal within six months after
approval of the Adjustment Proposal, where two years have elapsed since
the date of certification. If the Firm anticipates needing a longer
period to submit documentation, it should indicate the longer period in
its Adjustment Proposal. If the Firm is unable to submit its
documentation within the allowed time, it should notify EDA in writing
of the reasons for the delay and submit a new schedule. EDA has the
discretion to accept or refuse a new schedule;
(c) EDA has denied the Firm's request for Adjustment Assistance,
the time period allowed for the submission of any documentation in
support of such
[[Page 20658]]
request has expired, and two years have elapsed since the date of
certification; or
(d) Failure to diligently pursue an approved Adjustment Proposal
where five years have elapsed since the date of certification.
Sec. 315.11 Appeals, final determinations and termination of
certification.
(a) Any petitioner may appeal in writing to EDA from a denial of
certification, provided that EDA receives the appeal by personal
delivery or by registered mail within 60 days from the date of notice
of denial under Sec. 315.8(g). The appeal must state the grounds on
which the appeal is based, including a concise statement of the
supporting facts and applicable law. The decision of EDA on the appeal
shall be the final determination within the Department. In the absence
of an appeal by the petitioner under this paragraph, the determination
under Sec. 315.8(g) shall be final.
(b) A Firm, its representative or any other interested domestic
party aggrieved by a final determination under paragraph (a) of this
section may, within 60 days after notice of such determination, begin a
civil action in the United States Court of International Trade for
review of such determination, in accordance with section 284 of the
Trade Act.
(c) Whenever EDA determines that a Certified Firm no longer
requires Adjustment Assistance or for other good cause, EDA will
terminate the certification and promptly publish notice of such
termination in the Federal Register. The termination will take effect
on the date specified in the published notice.
(d) EDA shall immediately notify the petitioner and shall state the
reasons for any termination.
Subpart C--Protective Provisions
Sec. 315.12 Recordkeeping.
Each TAAC shall keep records that fully disclose the amount and
disposition of Trade Adjustment Assistance for Firms program funds so
as to facilitate an effective audit.
Sec. 315.13 Audit and examination.
EDA and the Comptroller General of the United States shall have
access for the purpose of audit and examination to any books,
documents, papers, and records of a Firm, TAAC or other recipient of
Adjustment Assistance pertaining to the award of Adjustment Assistance.
Sec. 315.14 Certifications.
EDA will provide no Adjustment Assistance to any Firm unless the
owners, partners, members, directors or officers thereof certify to
EDA:
(a) The names of any attorneys, agents, and other Persons engaged
by or on behalf of the Firm for the purpose of expediting applications
for such Adjustment Assistance; and
(b) The fees paid or to be paid to any such Person.
Sec. 315.15 Conflicts of interest.
EDA will provide no Adjustment Assistance to any Firm under this
part unless the owners, partners, or officers execute an agreement
binding them and the Firm for a period of two years after such
Adjustment Assistance is provided, to refrain from employing, tendering
any office or employment to, or retaining for professional services any
Person who, on the date such assistance or any part thereof was
provided, or within one year prior thereto, shall have served as an
officer, attorney, agent, or employee occupying a position or engaging
in activities which involved discretion with respect to the provision
of such Adjustment Assistance.
Subpart D--Adjustment Proposals
Sec. 315.16 Adjustment Proposal Requirements.
EDA evaluates Adjustment Proposals based on the following:
(a) EDA must receive the Adjustment Proposal within two years after
the date of the certification of the Firm;
(b) The Adjustment Proposal must include a description of any
Adjustment Assistance requested to implement such proposal, including
financial and other supporting documentation as EDA determines is
necessary, based upon either:
(1) An analysis of the Firm's problems, strengths and weaknesses
and an assessment of its prospects for recovery; or
(2) If EDA so determines, other available information;
(c) The Adjustment Proposal must:
(1) Be reasonably calculated to contribute materially to the
economic adjustment of the Firm (i.e., that such proposal will
constructively assist the Firm to establish a competitive position in
the same or a different industry);
(2) Give adequate consideration to the interests of a sufficient
number of separated workers of the Firm, by providing, for example,
that the Firm will:
(i) Give a rehiring preference to such workers;
(ii) Make efforts to find new work for a number of such workers;
and
(iii) Assist such workers in obtaining benefits under available
programs; and
(3) Demonstrate that the Firm will make all reasonable efforts to
use its own resources for its recovery, though under certain
circumstances, resources of related Firms or major stockholders will
also be considered; and
(d) The Adjustment Assistance identified in the Adjustment Proposal
must consist of specialized consulting services designed to assist the
Firm in becoming more competitive in the global marketplace. For this
purpose, Adjustment Assistance generally consists of knowledge-based
services such as market penetration studies, customized business
improvements, and designs for new products. Adjustment Assistance does
not include expenditures for capital improvements or for the purchase
of business machinery or supplies.
Subpart E--Assistance to Industries
Sec. 315.17 Assistance to Firms in import-impacted industries.
(a) Whenever the International Trade Commission makes an
affirmative finding under section 202(B) of the Trade Act that
increased imports are a substantial cause of serious injury or threat
thereof with respect to an industry, EDA shall provide to the Firms in
such industry assistance in the preparation and processing of petitions
and applications for benefits under programs which may facilitate the
orderly adjustment to import competition of such Firms.
(b) EDA may provide Adjustment Assistance, on such terms and
conditions as EDA deems appropriate, for the establishment of industry-
wide programs for new product development, new process development,
export development or other uses consistent with the purposes of the
Trade Act and this part.
(c) Expenditures for Adjustment Assistance under this section may
be up to $10,000,000 annually per industry, subject to availability of
funds, and shall be made under such terms and conditions as EDA deems
appropriate.
Dated: April 30, 2009.
Barry Bird,
Chief Counsel, Economic Development Administration.
[FR Doc. E9-10356 Filed 5-4-09; 8:45 am]
BILLING CODE 3510-24-P