General Updates and Elimination of Certain TAAF and PWEDA Regulations, 8373-8383 [2020-00453]

Agencies

• DEPARTMENT OF COMMERCE
• Economic Development Administration

[Federal Register Volume 85, Number 31 (Friday, February 14, 2020)]
[Rules and Regulations]
[Pages 8373-8383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00453]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 85, No. 31 / Friday, February 14, 2020 / 
Rules and Regulations

[[Page 8373]]



DEPARTMENT OF COMMERCE

Economic Development Administration

13 CFR Parts 302 and 315

[Docket No.: 191218-0119]
RIN 0610-AA80


General Updates and Elimination of Certain TAAF and PWEDA 
Regulations

AGENCY: Economic Development Administration, U.S. Department of 
Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Economic Development Administration (``EDA''), U.S. 
Department of Commerce (``DOC''), is issuing a final rule to update the 
agency's regulations implementing the Trade Adjustment Assistance for 
Firms (``TAAF'') provisions of the Trade Act of 1974, as amended 
(``Trade Act''), and the Public Works and Economic Development Act of 
1965, as amended (``PWEDA''). The changes to the TAAF program 
regulations clarify the process for import-impacted U.S. manufacturing 
firms, oil and natural gas production firms, and service firms to 
obtain technical assistance--identified in the Trade Act as 
``adjustment assistance''--through the TAAF program, reorganize the 
regulations to make them easier to read and understand, incorporate 
best practices, and bring the regulations into closer alignment with 
the program's statutory requirements. The result will be to ease the 
burden on firms seeking adjustment assistance through the TAAF program 
and make it easier for Trade Adjustment Assistance Centers (``TAACs'') 
to work with firms. EDA is also eliminating certain TAAF and PWEDA 
regulations that are unnecessary or duplicative because they describe 
requirements already established in other regulations or award 
documentation.

DATES: This final rule is effective on March 16, 2020.

ADDRESSES: EDA received no comments on the notice of proposed 
rulemaking (``NPRM'') that preceded this final rule, so there are no 
comments for EDA to post to the Federal Rulemaking Portal, 
www.regulations.gov. For convenience, after the final rule becomes 
effective, EDA plans to update the full text of EDA's regulations, as 
amended, and post it on EDA's website at https://www.eda.gov/about/regulations.htm.

FOR FURTHER INFORMATION CONTACT: Ryan Servais, Attorney Advisor, Office 
of the Chief Counsel, Economic Development Administration, U.S. 
Department of Commerce, 1244 Speer Boulevard, Suite 431, Denver, CO 
80204; telephone: (303) 844-4403.

SUPPLEMENTARY INFORMATION: 

Background

    Through strategic grant investments that foster job creation and 
attract private investment, EDA supports development in economically 
distressed areas of the United States to prepare these areas for growth 
and success in the worldwide economy.
    EDA is issuing this final rule to update the agency's regulations 
implementing the TAAF program (Part I) and PWEDA (Part II). The changes 
will ease the burden on firms and grantees by eliminating unnecessary 
and duplicative regulations and clarifying and reorganizing the 
regulations to make them easier to understand.
    The updates will also incorporate best practices. For example, EDA 
is adding a requirement that firms must begin implementation of their 
Adjustment Proposal (``AP'') within six months after the AP is approved 
by EDA. Firms that do not begin implementation within six months after 
approval must update and re-submit their AP, and then request re-
approval before any Adjustment Assistance may be provided. EDA is also 
incorporating changes that will enable firms to amend their APs within 
two years of EDA approval and that will require firms to complete 
implementation of the APs within five years of approval. These are 
existing best practices and help to ensure that APs reflect current 
conditions and are maximally effective.
    The updates will align the regulations more closely with statutory 
requirements. Specifically, EDA refers to imported articles or services 
that compete with and are substantially equivalent to the petitioning 
firm's as ``directly competitive or like,'' as written in the Trade 
Act, rather than simply ``directly competitive.'' In addition, EDA is 
clarifying all references to ``days'' as ``calendar days,'' to reflect 
this usage in the Trade Act, a change that will also speed up the time 
within which EDA is required to make determinations regarding firm 
eligibility and assistance.
    On August 19, 2019, EDA published an NPRM in the Federal Register 
requesting public comments on the general updates and elimination of 
certain TAAF and PWEDA regulations contained in this final rule (84 FR 
42831). The public comment period closed on September 18, 2019. EDA 
received no comments in response to the NPRM. For this reason, this 
final rule contains no changes to the rulemaking that was proposed in 
the NPRM, apart from two technical corrections. The first technical 
correction changes several instances of ``Adjustment Plan'' to 
``Adjustment Proposal.'' ``Adjustment Plan'' is not a defined term; 
``Adjustment Proposal'' is the correct term that should be used 
throughout. The second technical correction, to revised 13 CFR 315.15, 
eliminates an improper citation to the Tariff Act and is discussed 
below in Part I.
    Lastly, because this rule will remove certain regulations and will 
make it easier for firms and EDA grantees to comply with the 
requirements for the TAAF and EDA grant programs, it is considered a 
``deregulatory action'' pursuant to the April 5, 2017, OMB guidance 
memorandum implementing Executive Order 13771 (M-17-21).

Part I: Updates to TAAF Program Regulations

Trade Act Background

    Authorized under chapter 3 of title II of the Trade Act of 1974 (19 
U.S.C. 2341-2355), the TAAF program assists import-impacted U.S. 
manufacturing firms, oil and natural gas production firms, and service 
firms with developing and implementing projects to regain global 
competitiveness, expand markets, strengthen operations, and increase 
profitability, thereby increasing U.S. jobs.
    The TAAF program provides cost-sharing technical assistance to 
eligible import-impacted U.S. manufacturing

[[Page 8374]]

firms, oil and natural gas production firms, and service firms in all 
50 States, the District of Columbia, and the Commonwealth of Puerto 
Rico. Technical assistance is provided through a nationwide network of 
11 TAACs, which are non-profit or university-affiliated entities.
    TAACs provide eligible firms with customized assistance from 
industry experts knowledgeable about the unique needs, challenges, and 
opportunities facing industries in their respective regions. Firms work 
with TAACs to apply for certification of eligibility for TAAF 
assistance. Firms demonstrate their eligibility by documenting that 
they have experienced a decline in sales or a decline or impending 
decline in employment or worker hours, and that an increase of imports 
of directly competitive goods or services contributed importantly to 
such declines. EDA then renders a decision regarding the firms' 
eligibility.
    TAACs work closely with eligible firms' management to identify the 
firms' strengths and weaknesses and then develop customized business 
recovery plans, APs, which are designed to stimulate recovery and 
growth. The TAAF program pays up to 75 percent of the costs of 
developing APs. EDA reviews firms' APs and determines whether or not to 
approve them. When an AP has been approved, firm management and TAAC 
staff jointly identify consultants with the specific expertise to help 
the firm implement the AP. If the cost exceeds the simplified 
acquisition threshold, consultants are selected through a competitive 
procurement process.

Overview of Changes to the TAAF Regulations

    The discussion that follows presents an overview of substantive 
changes by subpart letter and section number.
Subpart A
    EDA is transferring Sec. Sec.  315.4 and 315.5 from subpart A to 
subpart B. This change will retain all general provisions within 
subpart A, while consolidating the regulations regarding TAAC 
selection, operation, role, and coverage within subpart B.
Section 315.1
    EDA is replacing this section with a new programmatic description 
of TAAF's purpose. The revised section more clearly lays out the 
process by which EDA executes its responsibilities concerning the TAAF 
program, as delegated by the Secretary of Commerce, and the process by 
which firms work with TAACs to request and obtain Adjustment 
Assistance.
Section 315.2
    EDA is making changes to the definitions identified below.
Adjustment Assistance
    EDA is making three revisions to the definition of Adjustment 
Assistance. First, EDA is removing the reference to ``or industries.'' 
As explained further in the discussion of the changes to Sec.  315.17, 
EDA is eliminating its regulations related to the provision of trade 
adjustment assistance to industries. EDA has historically not provided 
separate industry-wide assistance programs because firms within 
impacted industries have solicited help through TAAF on an individual 
basis and because there has been no demand for industry-wide 
assistance. In addition, EDA provides expedited review of petitions and 
APs from firms within impacted industries. When the U.S. International 
Trade Commission (``ITC'') makes an injury determination, in accordance 
with chapter 3 of the Trade Act, EDA provides expedited consideration 
to petitions by firms in the affected industry, as well as expedited 
assistance in preparing and processing AP applications to such firms. 
EDA believes this individualized approach has been effective in 
facilitating adjustments within both firms and industries. The removal 
of regulations that reference trade adjustment assistance to industries 
will help prevent potential confusion regarding the availability of a 
parallel industry program. In the event that EDA does determine it is 
appropriate to provide trade adjustment assistance for industries, EDA 
will promulgate new regulations to implement the program.
    Second, EDA is revising the definition to clarify that Adjustment 
Assistance refers to technical assistance provided by TAACs. The 
current regulation is ambiguous and could be interpreted such that EDA 
provides the technical assistance directly, which is not the case. 
Third, EDA is adding to the definition a statement that EDA determines 
what type of assistance is provided and adding a list of the types of 
assistance that this may include: Preparing a firm's petition for 
certification of eligibility, developing an AP, and implementing an AP.
Adjustment Proposal
    EDA is revising the definition for Adjustment Proposal, clarifying 
that the AP is a firm's plan for improving its competitiveness in the 
marketplace, consistent with the intent of the TAAF program as 
established in the Trade Act.
Decreased Absolutely
    EDA is making a minor change to the definition of Decreased 
Absolutely to add language clarifying that a firm's sales or production 
must have declined by a minimum of five percent relative to its sales 
or production during the applicable time period and that the decline is 
independent of industry or market fluctuations and relative only to the 
previous performance of the firm unless EDA determines that such 
limitations would not be consistent with the purposes of the Trade Act.
Directly Competitive
    EDA is revising the defined term Directly Competitive to add the 
words ``or Like'' to the end, such that the term will be Directly 
Competitive or Like. This change will more closely align this term with 
the terminology of the Trade Act. EDA is further revising this 
definition by adding language that clarifies the linkage between this 
definition and the reference to firms that engage in exploring, 
drilling, or producing oil or natural gas. By adding the phrase ``For 
the purposes of this term,'' before the final sentence in this 
definition, EDA reinforces the requirement in Section 251 of the Trade 
Act that firms that engage in these types of activities be considered 
as producing articles that are directly competitive with imported oil 
and natural gas for the purposes of TAAF eligibility.
Firm
    EDA is capitalizing the term, ``Unjustifiable Benefits,'' as 
referenced in this definition. This change is the result of EDA adding 
a definition for Unjustifiable Benefits, as described below. EDA is 
further revising this definition by adding to the sub-definition of 
Subsidiary, which is included as a category of firm that may be 
considered jointly with another firm that is requesting Adjustment 
Assistance pursuant to TAAF in an effort to prevent Unjustifiable 
Benefits. EDA is qualifying the definition of Subsidiary by adding an 
explanation that a firm acquired by another firm but which operates 
independently of the acquiring firm is considered an Independent 
Subsidiary and may be considered separately from the acquiring firm as 
eligible for Adjustment Assistance. This change reflects existing 
practice and addresses a growing trend in petitions requesting 
Adjustment Assistance for firms that have been acquired by another firm 
but continue to operate independently after the

[[Page 8375]]

acquisition, generally retaining the same management, maintaining 
control over management decisions, and otherwise continuing operations 
without significant change.
Increase in Imports
    EDA is modifying this definition by moving the second sentence of 
this definition to the revised subpart C (Certification of firms) as a 
new paragraph (c) in Sec.  315.6 (Certification Requirements). EDA 
believes this sentence is more appropriately located in subpart C as a 
description of one method for a firm to demonstrate that it meets the 
eligibility requirements for Certification to apply for Adjustment 
Assistance. The sentence provides that a firm may submit certifications 
from a firm's customers that account for a significant percentage of 
the firm's decrease in sales or production, that the customers 
increased their purchase of imports of Directly Competitive or Like 
Articles or Services from a foreign country.
Partial Separation
    EDA is changing the definition of Partial Separation by replacing 
language denoting that this definition is with respect to any 
employment in a firm with language which clarifies that a Partial 
Separation occurs when there has been no increase in overall employment 
at the firm and either of the conditions currently described in this 
definition exist: (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. EDA occasionally receives petitions submitted by 
firms whose overall employment figures have increased within the 
periods of time in question and which, nonetheless, assert that there 
has been a Partial Separation with regards to a certain portion of 
their workforce's work hours or weekly wages. EDA believes that this 
revision should resolve the apparent confusion caused by the current 
wording and clarify that a firm does not meet the eligibility criteria 
if its overall employment has increased during the relevant time 
period.
Service Sector Firm
    EDA is revising the definition of Service Sector Firm to remove the 
last two sentences of the definition because they are already included 
in the definition of firm.
Total Separation
    EDA is streamlining and clarifying the definition of Total 
Separation by removing the phrase ``with respect to any employment in a 
firm'' and adding the words ``in a firm'' after ``the laying off or 
termination of employment of an employee.''
Unjustifiable Benefits
    As noted above, EDA is also adding a definition for Unjustifiable 
Benefits. Under this new definition, Unjustifiable Benefits describe 
Adjustment Assistance inappropriately accruing to the benefit of (1) 
other firms that would not otherwise be eligible when provided to a 
firm or (2) any predecessor or successor firm, or any affiliated firm 
controlled or substantially beneficially owned by substantially the 
same person, rather than treating these entities as a single firm. EDA 
believes that this is an important concept that should be fully 
explained to help firms understand TAAF eligibility requirements.
Section 315.3
    EDA is not changing this section.
Subpart B
    EDA is revising this subpart to consolidate and clarify all 
regulations regarding TAAC selection, operations, and coverage. The 
revised subpart B, entitled ``TAAC Provisions,'' would be inserted 
after Sec.  315.3 and would include revised Sec. Sec.  315.4 and 315.5, 
which would be transferred to subpart B from subpart A.
Section 315.4
    EDA is revising paragraph (a) of this section to better describe 
the TAAC selection process.
    EDA is revising paragraph (b) of this section to replace the 
existing language with an explanation that TAACs are awarded 
cooperative agreements that are subject to all Federal laws and to 
Federal, Department, and EDA policies, regulations, and procedures 
applicable to Federal financial assistance awards, including 2 CFR part 
200, Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards, and that TAACs work closely with EDA 
and import-impacted firms.
Section 315.5
    EDA is re-designating paragraph (a)(1) as paragraph (a) and, in 
that same paragraph, revising the third sentence in order to clarify 
that information regarding all of the TAACs' service areas, rather than 
just particular geographic areas, are available at the websites listed 
in that section.
    EDA is re-designating paragraphs (a)(2) and (3) as paragraphs (b) 
and (c), respectively. EDA is also streamlining newly re-designated 
paragraph (c) by renumbering paragraphs (i) and (ii) as (1) and (2), 
respectively, and by rewording newly re-designated paragraphs (c)(1) 
and (2) to provide enhanced clarity on the types of Adjustment 
Assistance a TAAC may provide to a firm.
    EDA is removing existing paragraphs (b), (c), and (d) in their 
entirety. EDA believes these paragraphs are unnecessary, as these 
provisions and requirements will generally be covered in the Notice of 
Funding Opportunity used to announce the availability of funding for 
TAAC awards.
Subpart C
    EDA is revising subpart C to consolidate all regulations regarding 
the certification of firms. The revised subpart C will include 
Sec. Sec.  315.6 through 315.10.
Section 315.6
    EDA is moving the matching share requirements for APs as set forth 
in current paragraph (c)(2) to the new Sec.  315.11 (``Adjustment 
Proposal Process'') in subpart D (``Adjustment Proposals''). EDA is 
eliminating the remaining requirements in Sec.  315.6, which are 
duplicative of other regulations in this part and provide no additional 
guidance or clarity to TAACs or firms. Finally, EDA is re-designating 
the current Sec.  315.7 as Sec.  315.6.
    In addition to these revisions, as noted above in the discussion 
regarding revisions to the definition of Increase in Imports at Sec.  
315.2, EDA is adding a new paragraph (c) to revised Sec.  315.6 and 
moving into this paragraph the language formerly located in the 
definition of Increase in Imports that enabled firms to help 
demonstrate that they meet the eligibility requirements for Adjustment 
Assistance by submitting certification from the firm's customers that 
account for a significant percentage of the firms' decrease in sales or 
production, that the customers increased their purchase of imports of 
Directly Competitive or Like Articles or Services from a foreign 
country. EDA is further adding to this new paragraph (c) a sentence 
specifying that such certification from a firm's customer must be 
submitted directly to a TAAC or to EDA. EDA believes this addition will 
ease some confusion by firms, some of which have requested their 
customers to provide such certification directly to the firms which 
subsequently pass on the certifications to EDA through the TAACs.

[[Page 8376]]

Section 315.7
    EDA is re-designating the current Sec.  315.8 as Sec.  315.7.
    EDA is revising paragraph (b)(5) to clarify the additional 
requirements for publicly-owned corporations when submitting financial 
information as part of their petitions for certification. EDA is 
revising the paragraph to clarify that 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.
    EDA is also revising paragraph (b)(6) to make clear the information 
required regarding a firm's customers. Specifically, EDA is replacing 
the qualifier that the description relates to the ``major'' customers 
of the firm with one that identifies the customers as ``accounting for 
a significant percent of the firm's decline.'' EDA is further revising 
this paragraph to clarify that firms should submit information 
regarding those customers' purchases or the firm's unsuccessful bids if 
there are no customers fitting the description outlined in this 
paragraph.
    EDA is revising paragraph (f) to clarify that, in order to withdraw 
a petition for certification, the petitioner must submit a request for 
withdrawal before EDA makes a determination regarding approval or 
denial of the certification.
    EDA is revising paragraphs (g)(1) and (2) of this section. EDA is 
revising paragraph (g)(1) in order to make clear that EDA may request 
additional material from a firm beyond what was submitted with the 
firm's original petition if necessary to make a determination regarding 
the firm's eligibility for Adjustment Assistance. In addition, EDA is 
revising paragraph (g)(1) to insert the word ``calendar'' before the 
word ``days.'' EDA is also making similar revisions to all references 
to ``days'' found throughout part 315. EDA is making these changes to 
clarify that all references to ``days'' within part 315 refer to 
calendar days as the current regulations are not clear on whether these 
references to ``days'' are calendar or business days. EDA is revising 
paragraph (g)(2) to clarify that firms may not resubmit a petition 
within one year from the date of a denial without a waiver from EDA 
issued for good cause.
Section 315.8
    EDA is re-designating the current Sec.  315.9 as Sec.  315.8.
    For the reasons discussed above, EDA is inserting the word 
``calendar'' in front of the word ``days'' in the introductory 
paragraph to this section.
    EDA is revising paragraph (b)(2) to clarify that, when someone 
other than the petitioner requests a public hearing on an accepted 
petition, the requester must include a statement describing the nature 
of the requester's interest in the proceedings.
    EDA is also revising paragraph (d) of this section to clarify that 
EDA will publish a notice of a public hearing in the Federal Register 
only if EDA has made the determination that the requesting party has a 
substantial interest in the hearing.
Section 315.9
    EDA is re-designating the current Sec.  315.10 as Sec.  315.9.
    EDA is also revising paragraphs (a), (b), and (d) to replace the 
word ``Failure'' at the beginning of each of those paragraphs with the 
words ``The firm failed'' to provide clarity regarding which entity's 
omission triggers the loss of benefits. EDA is further revising 
paragraph (d) to read: ``The firm failed to diligently pursue an 
approved Adjustment Proposal, and five years have elapsed since the 
date of certification.''
Section 315.10
    EDA is re-designating the current Sec.  315.11 as Sec.  315.10.
    EDA is revising paragraphs (a) and (b) of this section by inserting 
the word ``calendar'' before the word ``days'' for the reasons 
mentioned above.
    EDA is removing the designation of paragraph (d) and adding the 
sentence that formerly stood alone as paragraph (d) to the end of 
paragraph (c) in this same section. EDA believes this reorganization 
will reduce potential confusion by placing all requirements regarding 
the steps EDA takes when it terminates a certification in a single 
paragraph.
Subpart D
    EDA is not changing the designation or heading of this subpart. 
However, EDA is revising this subpart to include Sec. Sec.  315.11 and 
315.12.
Section 315.11
    Section 315.11 will be revised to combine requirements currently 
contained in other sections of part 315 and add new language to reflect 
best practices. The section heading will be revised to ``Adjustment 
Proposal Process.''
    EDA is moving paragraphs (a)(2) and (3) from the current Sec.  
315.6 to the revised Sec.  315.11 as paragraphs (a) and (b) within this 
section in order to consolidate AP procedures within a single section. 
In order to more clearly reflect the requirements of the Trade Act, EDA 
is moving the requirement established in the current Sec.  315.16(a), 
which says APs must be submitted to EDA for approval within two years 
after the date of Certification, to the new Sec.  315.11(a).
    In addition to moving the requirements that currently exist in 
Sec.  315.6(a)(3) to the revised Sec.  315.11(b), EDA is adding 
language to these requirements that will require firms to begin 
implementation of their approved AP within six months after approval. 
EDA is also adding a requirement that firms that do not begin 
implementation within six months after approval must update and re-
submit their AP for re-approval before any Adjustment Assistance may be 
provided. These additions reflect long-standing practice and will help 
firms to ensure that their APs reflect the most up-to-date economic 
conditions and financial situation and, consequently, that the firms 
will receive the most effective Adjustment Assistance.
    EDA is adding a paragraph (c) to this section that discusses how 
EDA will make a determination regarding an AP no later than 60 calendar 
days after receipt of the AP, which incorporates the requirement from 
Section 252(b)(2) of the Trade Act.
    EDA is also adding a paragraph (d) to this section. EDA is moving 
the matching share requirements for Adjustment Assistance from the 
existing Sec.  315.6(b)(2) to this paragraph. In addition, EDA is 
adding a sentence stating that certified firms may request no more than 
the amount established by EDA for total Adjustment Assistance over the 
entire lifetime of the firm. This addition incorporates current 
practice, established to ensure that the maximum number of eligible 
firms are able to receive Adjustment Assistance and to encourage 
certified firms to appropriately plan and implement their Adjustment 
Proposals within established funding limits.
    EDA is adding a paragraph (e) to this section and specifying within 
this paragraph that firms may request EDA approval to amend their APs 
within two years from the date of EDA approval of their initial APs. 
This new language incorporates current practice and allows firms to 
update their APs as needed within the two-year time frame to address 
any unexpected changes in their situation, new information, or a need 
to re-direct resources to areas of greatest need.
    EDA is also adding a paragraph (f) to this section. Paragraph (f) 
requires firms

[[Page 8377]]

to complete implementation of their APs within five years of EDA 
approval of their initial APs. This added language reflects current 
practice and EDA's expectation that firms who request Adjustment 
Assistance are financially and operationally prepared to engage in the 
TAAF program and will implement their AP in a timely way.
    EDA is adding a paragraph (g) to this section to address what 
occurs if a certified firm is transferred, sold, or otherwise acquired 
by another firm during the five-year period established in paragraph 
(f). Paragraph (g) requires a certified firm that is transferred, sold, 
or otherwise acquired by another firm during the five-year period of 
Adjustment Assistance to notify EDA no later than 30 calendar days 
following the transfer, sale, or acquisition. EDA will then make a 
determination as to whether the firm remains eligible for Adjustment 
Assistance. This new language incorporates current practice and is 
designed to resolve any confusion about how firms and TAACs should 
handle this scenario.
    Finally, EDA is adding a paragraph (h) to this section. Paragraph 
(h) will require firms that receive Adjustment Assistance to provide 
data regarding the firms' sales, employment, and productivity upon 
completion of the program and each year for the two-year period 
following completion. This language incorporates into the regulations 
reporting requirements established in Section 255A of the Trade Act, 
which requires EDA to report annually to Congress on data regarding the 
TAAF program for the preceding fiscal year.
Section 315.12
    EDA is re-designating the current Sec.  315.16 as Sec.  315.12. As 
discussed above, EDA is eliminating paragraph (a) of this section after 
moving the requirement that firms must submit their APs to EDA within 
two years of the date of certification to Sec.  315.11(a).
    EDA is eliminating the current Sec.  315.12 (Recordkeeping). With 
the proposed revisions to Sec.  315.4(b), which states that TAAC 
cooperative agreements are subject to all Federal laws and to Federal, 
Department, and EDA policies, regulations, and procedures applicable to 
Federal financial assistance awards, including 2 CFR part 200, the 
current Sec.  315.12 is no longer needed as recordkeeping requirements 
are adequately addressed in those materials.
Subpart E
    EDA is revising the heading for this subpart to ``Protective 
Provisions.'' As revised, subpart E will include Sec. Sec.  315.13 and 
315.14. EDA is moving the requirements regarding persons engaged by 
firms to expedite petitions and APs as found in the current Sec.  
315.14 (Certifications) and the requirements regarding conflicts of 
interest that are contained the current Sec.  315.15 (Conflicts of 
interest), both of which are found in the current subpart C, to subpart 
E. EDA believes this reorganization and new location will make it 
easier for firms to read and understand the regulations and will help 
clarify that these provisions apply to firms at all stages of the TAAF 
program.
Section 315.13
    EDA is moving the requirements for firms to certify in writing to 
EDA the names of any attorneys, agents, and other Persons engaged by or 
on behalf of the firm for the purpose of expediting Petitions for 
Adjustment Assistance and the fees paid or to be paid to any such 
Person, as found in the current Sec.  315.14, to Sec.  315.13. EDA is 
further revising these requirements by clarifying, in paragraph (a), 
that they apply to both Adjustment Assistance and APs.
    EDA is eliminating the current Sec.  315.13 (Audit and 
examination). With the proposed revisions to Sec.  315.4(b), which 
states that TAAC cooperative agreements are subject to all Federal laws 
and to Federal, Department, and EDA policies, regulations, and 
procedures applicable to Federal financial assistance awards, including 
2 CFR part 200, the current Sec.  315.13 is no longer needed as audit 
and examination requirements are adequately addressed in those 
materials.
Section 315.14
    EDA is moving the requirements found in the current Sec.  315.15 to 
Sec.  315.14. EDA is also revising these requirements by modifying the 
list of firm representatives subject to the conflicts of interest 
requirements to parallel the list of firm representatives identified in 
the revised Sec.  315.13.
Subpart F
    EDA is adding subpart F, entitled ``International Trade Commission 
Investigations.'' Subpart F sets forth, through Sec.  315.15, what 
actions EDA takes when the ITC makes an affirmative finding under 
section 202(b) of the Trade Act regarding injury or threat of injury to 
an industry.
Section 315.15
    EDA is re-designating the current Sec.  315.17 as Sec.  315.15 and 
is revising the heading of this section to ``Affirmative Findings.'' 
EDA is also removing the designation ``(a)'' from the first paragraph 
of this section and eliminating paragraphs (b) and (c) to reflect the 
fact that EDA, historically, has not provided Adjustment Assistance for 
the establishment of industry-wide programs for new product 
development, export development, or other uses consistent with the 
purposes of the Trade Act because there has been no demand for such 
programs. As noted above in the discussion regarding changes to the 
definition of Adjustment Assistance in Sec.  315.2, firms within 
impacted industries have sought Adjustment Assistance through TAAF on 
an individual basis rather than through industry-wide solutions. EDA 
also provides expedited review of petitions and APs from firms within 
industries for which the ITC has determined that increased imports are 
a substantial cause of serious injury or threat thereof under section 
202(b) of the Trade Act. This individualized approach enables EDA to 
support adjustments at the firm level, while having a cumulative impact 
at the industry level.
    EDA is replacing within this paragraph the language stating that 
EDA will provide to firms in the identified industry assistance in the 
preparation and processing of petitions and applications for benefits; 
EDA instead will include language establishing notification to TAACs 
and expedited review of petitions and APs from firms within the 
specified industry. EDA believes these revisions more clearly describe 
the assistance EDA provides to industries in response to determinations 
made by the ITC under the Trade Act.
    This revised section contains one technical correction to the 
proposed revision in the NPRM published in the Federal Register on 
August 19, 2019 (84 FR 42831). The correction is to eliminate an 
improper citation to the Tariff Act. The proposed revision to this 
section provided that EDA would notify TAACs and provide expedited 
review of petitions and APs from Firms within an industry for which the 
ITC has made an affirmative finding under section 202(b) of the Trade 
Act or under sections 705 or 735 of the Tariff Act. Determinations made 
under section 202(b) of the Trade Act concern serious injury or threat 
thereof to a domestic injury, while determinations made under sections 
705 or 735 of the Tariff Act concern lesser material injury or threat 
thereof to a domestic industry. Pursuant to section 202(g) of the Trade 
Act, EDA is only required to provide expedited review of petitions 
submitted by firms in industries for which the ITC has made

[[Page 8378]]

an affirmative determination under section 202(b) of the Trade Act.

Part II: Updates to PWEDA Regulations

PWEDA Background

    PWEDA is EDA's organic authority and the primary legal authority 
under which EDA awards grants. Other legal authorities include the 
Trade Act and the Stevenson-Wydler Technology Innovation Act of 1980. 
Under PWEDA, EDA provides financial assistance to both rural and urban 
distressed communities by fostering entrepreneurship, innovation, and 
productivity through investments in infrastructure development, 
capacity building, and business development in order to attract private 
capital investments and new and better jobs to regions experiencing 
substantial and persistent economic distress.

Overview of Eliminated PWEDA Regulations

    EDA is eliminating certain provisions within part 302 of the PWEDA 
regulations that are unnecessary or already established in other 
regulations or award documentation. Specifically, EDA is eliminating 
the regulations located at 13 CFR 302.4, 302.5, and 302.14. These 
regulations describe: The responsibilities of EDA grant recipients to 
maintain records, how information supplied to EDA may be subject to 
public release under the Freedom of Information Act or Privacy Act, how 
government auditors may need access to various records, and that grant 
recipients are subject to the government-wide relocation assistance and 
land acquisition policies. These regulations can be removed because 
notice of these terms and conditions is already provided to grant 
recipients through other Department of Commerce-wide or government-wide 
regulations as well as in specific documentation EDA provides to each 
grant recipient. Specifically, recipients of EDA financial assistance 
are already subject to the requirements related to the Freedom of 
Information Act or Privacy Act currently described in Sec.  302.4 
through 15 CFR part 4 and the Standard Terms and Conditions of an EDA 
award. Similarly, the relocation and land acquisition policies 
currently found in Sec.  302.5 are already applicable to all EDA 
financial assistance recipients under government-wide regulations found 
at 49 CFR part 24. Finally, the record-keeping requirements currently 
located in Sec.  302.14 duplicate the requirements of Section 608 of 
PWEDA (42 U.S.C. 3218), 2 CFR 200.333 and 200.336, and the Standard 
Terms and Conditions of an EDA award.
    In addition, EDA is eliminating 13 CFR 302.11. Beginning with the 
enactment of the original section 502 of PWEDA (42 U.S.C. 3192) in 
1998, Congress has required EDA to maintain an economic development 
information clearinghouse on matters related to economic development, 
economic adjustment, disaster recovery, defense conversion, and trade 
adjustment programs and activities. See Public Law 105-393. With the 
EDA Reauthorization Act of 2004 (Pub. L. 108-373 (Oct. 27, 2004)), 
Congress amended section 502 to require EDA to, among other things, 
maintain this information clearinghouse online. The current regulation 
adds nothing of value to the requirements already in place under 
section 502 and consequently should be eliminated.

Classification

Regulatory Flexibility Act
    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)). EDA's programs, including the TAAF 
program, are financial assistance programs provided through grants and 
cooperative agreements. As such, prior notice and an opportunity for 
public comment are not required pursuant to 5 U.S.C. 553, or any other 
law, and the analytical requirements of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) are inapplicable. Although EDA did choose to 
publish an NPRM in the Federal Register requesting public comments on 
the content of this final rule (84 FR 42831), EDA received no comments 
in response to the NPRM, and thus has received no input from the public 
bearing on the analytical requirements of the Regulatory Flexibility 
Act. For these reasons, a regulatory flexibility analysis has not been 
prepared.
Executive Orders No. 12866, 13563, and 13771
    This final rule was drafted in accordance with Executive Orders 
12866, 13563, and 13771. The Office of Management and Budget (``OMB'') 
has determined that this final rule is not significant for purposes of 
Executive Order 12866 and Executive Order 13563.
    This rule is a deregulatory action that has a neutral effect on the 
costs to firms, organizations, and all other stakeholders to comply 
with the regulations discussed in this notice of final rule. It is 
therefore considered to have a total incremental cost of zero pursuant 
to the April 5, 2017, OMB guidance memorandum implementing Executive 
Order 13771 (M-17-21).
Congressional Review Act
    This final rule is not major under the Congressional Review Act (5 
U.S.C. 801 et seq.).
Executive Order No. 13132
    Executive Order 13132 requires agencies to develop an accountable 
process to ensure ``meaningful and timely input by State and local 
officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in Executive Order 13132 to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' This final rule does not contain policies that have 
federalism implications.
Paperwork Reduction Act
    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) 
(``PRA'') requires that a Federal agency consider the impact of 
paperwork and other information collection burdens imposed on the 
public and, under the provisions of PRA section 3507(d), obtain 
approval from OMB for each collection of information it conducts, 
sponsors, or requires through regulations. Notwithstanding any other 
provision of 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 PRA unless that collection displays a 
currently valid OMB Control Number.
    The following table provides the only collections of information 
(and corresponding OMB Control Numbers) set forth in this final rule. 
These collections of information are necessary for the proper 
performance and functions of EDA. This final rule does not include a 
new information collection requirement and will, thus, use previously 
approved information collections to collect information relevant to a 
petition for certification of eligibility for trade adjustment 
assistance or an AP.

[[Page 8379]]



------------------------------------------------------------------------
 Part or section  of                                     Form/Title/OMB
   this  final rule           Nature of request            control No.
------------------------------------------------------------------------
315.7(b).............  Firms seeking certification of   Form ED-840P,
                        eligibility to apply for trade   Petition by a
                        adjustment assistance must       firm for
                        complete Form ED-840P, which     Certification
                        provides EDA with the            of Eligibility
                        information needed to            to Apply for
                        determine if a firm is           Trade
                        eligible to apply for trade      Adjustment
                        adjustment assistance.           Assistance
                                                         (0610-0091).
315.12...............  The information for Adjustment   Adjustment
                        Proposals is collected           Proposal (0610-
                        pursuant to the same OMB         0091).
                        control number as Form ED-840P
                        (0610-0091). Firms certified
                        by EDA as eligible to apply
                        for trade adjustment
                        assistance must prepare an
                        Adjustment Proposal and submit
                        it to EDA for approval within
                        two years after the date of
                        certification. This provides
                        EDA with the information
                        needed to determine whether
                        the Adjustment Proposal meets
                        the requirements of the Trade
                        Act and 13 CFR part 315.
------------------------------------------------------------------------

List of Subjects

13 CFR Part 302

    Community development, Grant programs-business, Grant programs-
housing and community development, Technical assistance.

13 CFR Part 315

    Administrative practice and procedure, Community development, Grant 
programs-business, Reporting and recordkeeping requirements, Trade 
adjustment assistance.

    For the reasons discussed above, EDA is amending 13 CFR chapter III 
as follows:

PART 302-GENERAL TERMS AND CONDITIONS FOR INVESTMENT ASSISTANCE

0
1. The authority citation of part 302 continues to read as follows:

    Authority: 19 U.S.C. 2341 et seq.; 42 U.S.C. 3150; 42 U.S.C. 
3152; 42 U.S.C. 3153; 42 U.S.C. 3192; 42 U.S.C. 3193; 42 U.S.C. 
3194; 42 U.S.C. 3211; 42 U.S.C. 3212; 42 U.S.C. 3216; 42 U.S.C. 
3218; 42 U.S.C. 3220; 42 U.S.C. 5141; 15 U.S.C. 3701; Department of 
Commerce Delegation Order 10-4.


Sec. Sec.  302.4 and 302.5  [Removed]

0
2. Remove Sec. Sec.  302.4 and 302.5.


Sec.  302.11  [Removed]

0
3. Remove Sec.  302.11.


Sec.  302.14  [Removed]

0
4. Remove Sec.  302.14.

PART 315--TRADE ADJUSTMENT ASSISTANCE FOR FIRMS

0
5. Revise the authority citation of part 315 to read as follows:

    Authority: 19 U.S.C. 2341-2356; 42 U.S.C. 3211; Title IV of Pub. 
L. 114-27, 129 Stat. 373; Department of Commerce Delegation Order 
10-4.


0
6. Revise Sec.  315.1 to read as follows:


Sec.  315.1  Purpose and scope.

    Chapter 3 of title II of the Trade Act of 1974 (19 U.S.C. 2341-
2355) establishes the responsibilities of the Secretary of Commerce 
concerning the Trade Adjustment Assistance for Firms (TAAF) program. 
The regulations in this part lay out those responsibilities as 
delegated to EDA by the Secretary. EDA executes these responsibilities 
through cooperative agreements that support a network of Trade 
Adjustment Assistance Centers (TAACs). The TAACs assist Firms in 
petitioning EDA for certification of eligibility to receive Adjustment 
Assistance. EDA certifies the eligibility of Firms. The TAACs then 
provide Adjustment Assistance to Firms through the development and 
implementation of Adjustment Proposals.

0
7. Amend Sec.  315.2 by:
0
a. Revising the introductory text and the definitions for ``Adjustment 
Assistance'' and ``Adjustment Proposal'';
0
b. In the definition of ``Decreased Absolutely'', revising the 
introductory text;
0
c. Removing the definition of ``Directly Competitive'' and adding the 
definition of ``Directly Competitive or Like'' in its place;
0
d. In the definition of ``Firm'', revising the introductory text and 
paragraph (4);
0
e. Revising the definition of ``Increase in Imports'';
0
f. In the definition of ``Partial Separation'', revising the 
introductory text;
0
g. Revising the definitions of ``Service Sector Firm'' and ``Total 
Separation''; and
0
h. Adding in alphabetical order a definition for ``Unjustifiable 
Benefits''.
    The revisions and additions read as follows:


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 meanings 
set forth below:
    Adjustment Assistance means technical assistance provided to Firms 
by TAACs under chapter 3 of title II of the Trade Act. The type of 
assistance provided is determined by EDA and may include one or more of 
the following:
    (1) Assistance in preparing a Firm's petition for certification of 
eligibility;
    (2) Assistance to a Certified Firm in developing an Adjustment 
Proposal for the Firm; and
    (3) Assistance to a Certified Firm in implementing an Adjustment 
Proposal.
    Adjustment Proposal means a Certified Firm's plan for improving the 
Firm's competitiveness in the marketplace.
* * * * *
    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, and this decline 
is:
* * * * *
    Directly Competitive or Like 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. For 
the purposes of this term, 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

[[Page 8380]]

Firm. Pursuant to section 259 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):
* * * * *
    (4) Subsidiary--a company (either foreign or domestic) that is 
wholly owned or effectively controlled by another company. A Firm that 
has been acquired by another Firm but which maintains operations 
independent of the acquiring Firm is considered an Independent 
Subsidiary and may be considered separately from the acquiring Firm as 
eligible for TAAF assistance.
    Increase in Imports means an increase in imports of Directly 
Competitive or Like Articles or Services with articles produced or 
services supplied by a Firm.
* * * * *
    Partial Separation occurs when there has been no increase in 
overall employment at the Firm and either of the following applies:
* * * * *
    Service Sector Firm means a Firm engaged in the business of 
supplying services.
* * * * *
    Total Separation means the laying off or termination of employment 
of an employee in a Firm for lack of work.
    Unjustifiable Benefits means Adjustment Assistance inappropriately 
accruing to the benefit of:
    (1) Other Firms that would not otherwise be eligible when provided 
to a Firm; or
    (2) Any predecessor or successor Firm, or any affiliated Firm 
controlled or substantially beneficially owned by substantially the 
same person, rather than treating these entities as a single Firm.


Sec. Sec.  315.4, 315.5, and 315.6  [Removed]

0
8. Sections 315.4 through 315.6 are removed.

0
9. Revise subparts B through E and add subpart F to read as follows:
Subpart B--TAAC Provisions
Sec.
315.4 TAAC selection and operation.
315.5 The role and geographic coverage of the TAACs.
Subpart C--Certification of Firms
315.6 Certification requirements.
315.7 Processing petitions for certification.
315.8 Hearings.
315.9 Loss of certification benefits.
315.10 Appeals, final determinations, and termination of 
certification.
Subpart D--Adjustment Proposals
315.11 Adjustment Proposal process.
315.12 Adjustment Proposal requirements.
Subpart E--Protective Provisions
315.13 Persons engaged by Firms to expedite petitions and Adjustment 
Proposals.
315.14 Conflicts of interest.
Subpart F--International Trade Commission Investigations
315.15 Affirmative findings.

Subpart B--TAAC Provisions


Sec.  315.4   TAAC selection and operation.

    (a) EDA solicits applications from organizations interested in 
operating a TAAC through Notice of Funding Opportunity announcements 
laying out selection and award criteria. The following entities are 
eligible to apply:
    (1) Universities or affiliated organizations;
    (2) States or local governments; or
    (3) Non-profit organizations.
    (b) Entities selected to operate the TAACs are awarded cooperative 
agreements and work closely with EDA and import-impacted firms. TAAC 
cooperative agreements are subject to all Federal laws and to Federal, 
Department, and EDA policies, regulations, and procedures applicable to 
Federal financial assistance awards, including 2 CFR part 200.


Sec.  315.5   The role and geographic coverage of the TAACs.

    (a) 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 and 
their coverage areas may be obtained from the TAAC website at https://www.taacenters.org or from EDA at https://www.eda.gov.
    (b) 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 be made through TAACs.
    (c) A TAAC generally provides Adjustment Assistance by:
    (1) Helping a Firm to prepare its petition for eligibility 
certification; and
    (2) Assisting Certified Firms with diagnosing their strengths and 
weaknesses, and with developing and implementing an Adjustment 
Proposal.

Subpart C--Certification of Firms


Sec.  315.6  Certification requirements.

    (a) General. 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. EDA evaluates Firms' 
petitions based on the requirements set forth in Sec.  315.7. EDA may 
certify a Firm as eligible to apply for Adjustment Assistance under 
section 251(c) of the Trade Act (19 U.S.C. 2341) 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 
five 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 12-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:

[[Page 8381]]

    (i) A Significant Number or Proportion of Workers in the Firm has 
undergone Total or Partial Separation or a Threat of Total or Partial 
Separation;
    (ii) Either average annual sales or production, or both, of the 
Firm has Decreased Absolutely; or average annual sales or production, 
or both, of any article or service that accounted for not less than 25 
percent of the total production or sales of the Firm during the 24-
month period preceding the most recent 12-month period for which data 
are available have Decreased Absolutely; and
    (iii) An Increase in Imports has Contributed Importantly to the 
applicable Total or Partial Separation or Threat of Total or Partial 
Separation, and to the applicable decline in sales or production or 
supply of services.
    (3) Twelve-month versus thirty-six month decline. Based upon a 
comparison of the most recent 12-month period for which data are 
available and the immediately preceding 36-month period:
    (i) A Significant Number or Proportion of Workers in the Firm has 
undergone Total or Partial Separation or a Threat of Total or Partial 
Separation;
    (ii) Either average annual sales or production, or both, of the 
Firm has Decreased Absolutely; or average annual sales or production, 
or both, of any article or service that accounted for not less than 25 
percent of the total production or sales of the Firm during the 36-
month period preceding the most recent 12-month period for which data 
are available have Decreased Absolutely; and
    (iii) An Increase in Imports has Contributed Importantly to the 
applicable Total or Partial Separation or Threat of Total or Partial 
Separation, and to the applicable decline in sales or production or 
supply of services.
    (4) Interim sales or production decline. Based upon an interim 
sales or production decline:
    (i) Sales or production has Decreased Absolutely for, at minimum, 
the most recent six-month period during the most recent 12-month period 
for which data are available as compared to the same six-month period 
during the immediately preceding 12-month period;
    (ii) During the same base and comparative period of time as sales 
or production has Decreased Absolutely, a Significant Number or 
Proportion of Workers in such Firm has undergone Total or Partial 
Separation or a Threat of Total or Partial Separation; and
    (iii) During the same base and comparative period of time as sales 
or production has Decreased Absolutely, an Increase in Imports has 
Contributed Importantly to the applicable Total or Partial Separation 
or Threat of Total or Partial Separation, and to the applicable decline 
in sales or production or supply of services.
    (5) Interim employment decline. Based upon an interim employment 
decline:
    (i) A Significant Number or Proportion of Workers in such Firm has 
undergone Total or Partial Separation or a Threat of Total or Partial 
Separation during, at a minimum, the most recent six-month period 
during the most recent 12-month period for which data are available as 
compared to the same six-month period during the immediately preceding 
12-month period; and
    (ii) Either sales or production of the Firm has Decreased 
Absolutely during the 12-month period preceding the most recent 12-
month period for which data are available; and
    (iii) An Increase in Imports has Contributed Importantly to the 
applicable Total or Partial Separation or Threat of Total or Partial 
Separation, and to the applicable decline in sales or production or 
supply of services.
    (c) Evidence of an increase in imports. 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. Such certification from a Firm's customer must be 
submitted directly to a TAAC or to EDA.


Sec.  315.7  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.  
315.6(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. In addition, publicly-owned 
corporations should also 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 customers accounting for a significant 
percent of the Firm's decline and the customers' purchases (or the 
Firm's unsuccessful bids, if there are no customers fitting this 
description); 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 (19 U.S.C. 2341) and Sec.  315.6.
    (f) A petition for certification may be withdrawn if EDA receives a 
request for withdrawal submitted by the petitioner before EDA 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.  315.6.
    (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 requested 
material. In no event may the determination period exceed 40 calendar 
days from the date on which EDA accepted the petition; and
    (2) Either certify the petitioner as eligible to apply for 
Adjustment

[[Page 8382]]

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 unless EDA waives the 
one-year limitation for good cause.


Sec.  315.8   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 calendar 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 the requesting party's 
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) If EDA determines that the requesting party does have a 
Substantial Interest in the proceedings, 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.
    (e) EDA shall appoint a presiding officer for the hearing who shall 
respond to all procedural questions.


Sec.  315.9   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) The Firm failed 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) The Firm failed 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 request has expired, and two years have elapsed since 
the date of certification.
    (d) The Firm failed to diligently pursue an approved Adjustment 
Proposal, and five years have elapsed since the date of certification.


Sec.  315.10  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 calendar days from the date of 
notice of denial under Sec.  315.7(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 (a), the 
determination under Sec.  315.7(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 calendar 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 (19 U.S.C. 2395).
    (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. EDA shall immediately 
notify the petitioner and shall state the reasons for any termination.

Subpart D--Adjustment Proposals


Sec.  315.11  Adjustment Proposal process.

    (a) Firms certified in accordance with the procedures described in 
Sec. Sec.  315.6 and 315.7 must prepare an Adjustment Proposal and 
submit it to EDA for approval within two years after the date of 
certification.
    (b) EDA determines whether to approve the Adjustment Assistance 
requested in the Adjustment Proposal based upon the evaluation criteria 
set forth in Sec.  315.12. Upon approval, a Certified Firm may submit a 
request to the TAAC for Adjustment Assistance to implement an approved 
Adjustment Proposal. Firms must begin implementation within six months 
after approval. Firms that do not begin implementation within six 
months after approval must update, re-submit their Adjustment Proposal, 
and request re-approval before any Adjustment Assistance may be 
provided.
    (c) EDA will make a determination regarding the Adjustment Proposal 
no later than 60 calendar days upon receipt of the Adjustment Proposal.
    (d) Adjustment Assistance is subject to matching share 
requirements. 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. Certified Firms may request no more than the amount as 
established by EDA for total Adjustment Assistance over the entire 
lifetime of the firm.
    (e) Firms may request EDA approval to amend their Adjustment 
Proposals within two years from the date of EDA approval of their 
initial Adjustment Proposal.
    (f) Firms must complete implementation of their Adjustment 
Proposals within five years of EDA approval of their initial Adjustment 
Proposal.
    (g) If a Certified Firm is transferred, sold, or otherwise acquired 
by another Firm during the five-year period of Adjustment Assistance, 
the Firm must notify EDA no later than 30 calendar days following the 
transfer, sale, or acquisition. EDA will then make a determination as 
to whether the Firm remains eligible for Adjustment Assistance. EDA 
will make this

[[Page 8383]]

determination no later than 60 calendar days following notification by 
the Firm.
    (h) In accordance with Section 255A of chapter 3 of title II of the 
Trade Act (19 U.S.C. 2345a), Firms that receive Adjustment Assistance 
must provide data regarding the Firms' sales, employment, and 
productivity upon completion of the program and each year for the two-
year period following completion.


Sec.  315.12   Adjustment Proposal requirements.

    EDA evaluates Adjustment Proposals based on the following:
    (a) 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;
    (b) 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
    (c) 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 
purposes of this paragraph (c), 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--Protective Provisions


Sec.  315.13   Persons engaged by Firms to expedite petitions and 
Adjustment Proposals.

    EDA will provide no Adjustment Assistance to any Firm unless the 
owners, partners, members, directors, or officers thereof certify in 
writing 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 petitions for 
such Adjustment Assistance or Adjustment Proposals; and
    (b) The fees paid or to be paid to any such Person.


Sec.  315.14   Conflicts of interest.

    EDA will provide no Adjustment Assistance to any Firm under this 
part unless the owners, partners, members, directors, or officers 
thereof 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 F--International Trade Commission Investigations


Sec.  315.15   Affirmative findings.

    Whenever the International Trade Commission makes an affirmative 
finding under section 202(b) of the Trade Act (19 U.S.C. 2252) that 
increased imports are a substantial cause of serious injury or threat 
thereof with respect to an industry, EDA will notify the TAACs and 
provide expedited review of petitions and Adjustment Proposals from 
Firms within the specified industry.

    Dated: January 6, 2020.
John Fleming,
Assistant Secretary of Commerce for Economic Development.
[FR Doc. 2020-00453 Filed 2-13-20; 8:45 am]
 BILLING CODE 3510-24-P