Notice of Proposed Rulemaking FRN

Federal Register / Vol. 74, No. 85 / Tuesday, May 5, 2009 / Proposed Rules
paid from funds collected pursuant to
§§ 983.71 and 983.72.
Dated: April 29, 2009.
Robert C. Keeney,
Acting Associate Administrator, Agricultural
Marketing Service.
[FR Doc. E9–10150 Filed 5–4–09; 8:45 am]
BILLING CODE 3410–02–P

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.
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

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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: [email protected].
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:

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.

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

The authority for the Community
TAA Program regulations derives from
the Trade Act, inclusive of the
amendments made by TGAAA.

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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

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

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Federal Register / Vol. 74, No. 85 / Tuesday, May 5, 2009 / Proposed Rules

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

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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

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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

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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 EDAapproved 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

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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.

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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 nonsubstantive 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.

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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.

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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 12month 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

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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 24and 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

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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-ofinformation 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

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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

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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
§ 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 communitybased 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.

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Federal Register / Vol. 74, No. 85 / Tuesday, May 5, 2009 / Proposed Rules
Definitions.

In addition to the defined terms set
forth in § 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 § 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 § 313.6.
Subpart B—Participation in the
Community Trade Adjustment
Assistance Program
§ 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
§ 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 § 313.5.

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(c) Strategic Plan development. An
Impacted Community that intends to
apply for an implementation grant in
accordance with § 313.7 must develop,
in accordance with § 313.6, an EDAapproved Strategic Plan.
(d) Implementation grant. In
accordance with § 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.
§ 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

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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
§ 313.6.
§ 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 § 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.
§ 313.6

Strategic Plans.

(a) General. An Impacted Community
that intends to apply for a grant for
implementation assistance under
§ 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:

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(1) Federal, local, county, or State
government agencies serving the
Impacted Community;
(2) Firms, as defined in § 315.2 of this
chapter, including small- and mediumsized 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 labormanagement 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 § 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

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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.
§ 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 § 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 § 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

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20653

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.
§ 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 mediumsized Community.
(c) Supplement, not supplant. The
Community TAA Program and any

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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
§ 313.9

Records.

Communities that receive assistance
under this part are subject to the records
requirements set out in § 302.14 of this
chapter.
§ 313.10

Conflicts of interest.

Communities that receive assistance
under this part are subject to the
conflicts of interest provisions as set out
in § 302.17 of this chapter.
§ 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 (§ 302.1);
post-disaster assistance (§ 302.2); public
information (§ 302.4); relocation
assistance and land acquisition
(§ 302.5); federal policies and
procedures (§ 302.6); amendments and
changes to awards (§ 302.7); preapproval costs (§ 302.8);
intergovernmental project reviews
(§ 302.9); attorneys’ and consultants’
fees or the employment of expediters
(§ 302.10); EDA’s economic
development information clearinghouse
(§ 302.11); project administration,
operation, and maintenance (§ 302.12);
post-approval requirements (§ 302.18);
indemnification (§ 302.19); and civil
rights (§ 302.20). In addition, any
Property (defined in § 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.

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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 importimpacted 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
§ 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.
§ 315.2

Definitions.

In addition to the defined terms set
forth in § 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

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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)

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(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:

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(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 § 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.
§ 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.
§ 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 § 315.17 and to the
extent funds are appropriated to

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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.
§ 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.

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(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.
§ 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 §§ 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 § 315.7.

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(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 tradeinjured 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
§ 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 12month 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

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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 sixmonth 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.
§ 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 24month, 36-month, or 48-month period,
as required under § 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

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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
§ 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
§ 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.
§ 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

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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.
§ 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

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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.
§ 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
§ 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 § 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
§ 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.
§ 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.
§ 315.14

Certifications.

EDA will provide no Adjustment
Assistance to any Firm unless the

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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.
§ 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
§ 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

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(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
§ 315.17 Assistance to Firms in importimpacted 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

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