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 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 §§ 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 § 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 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 § 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 § 315.3 and would include revised §§ 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 §§ 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 § 315.11 (“Adjustment Proposal Process”) in subpart D (“Adjustment Proposals”). EDA is eliminating the remaining requirements in § 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 § 315.7 as § 315.6.

In addition to these revisions, as noted above in the discussion regarding revisions to the definition of Increase in Imports at § 315.2, EDA is adding a new paragraph (c) to revised § 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.

Section 315.7

EDA is re-designating the current § 315.8 as § 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 § 315.9 as § 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 § 315.10 as § 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 § 315.11 as § 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 §§ 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 § 315.6 to the revised § 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 § 315.16(a), which says APs must be submitted to EDA for approval within two years after the date of Certification, to the new § 315.11(a).

In addition to moving the requirements that currently exist in § 315.6(a)(3) to the revised § 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 § 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 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 § 315.16 as § 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 § 315.11(a).

EDA is eliminating the current § 315.12 (Recordkeeping). With the proposed revisions to § 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 § 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 §§ 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 § 315.14 (Certifications) and the requirements regarding conflicts of interest that are contained the current § 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 § 315.14, to § 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 § 315.13 (Audit and examination). With the proposed revisions to § 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 § 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 § 315.15 to § 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 § 315.13.

Subpart F

EDA is adding subpart F, entitled “International Trade Commission Investigations.” Subpart F sets forth, through § 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 § 315.17 as § 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 § 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 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 § 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 § 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 § 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.

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

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.

2. Remove §§ 302.4 and 302.5.

3. Remove § 302.11.

4. Remove § 302.14.

PART 315—TRADE ADJUSTMENT ASSISTANCE FOR FIRMS

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.

6. Revise § 315.1 to read as follows:

7. Amend § 315.2 by:

a. Revising the introductory text and the definitions for “Adjustment Assistance” and “Adjustment Proposal”;

b. In the definition of “Decreased Absolutely”, revising the introductory text;

c. Removing the definition of “Directly Competitive” and adding the definition of “Directly Competitive or Like” in its place;

d. In the definition of “Firm”, revising the introductory text and paragraph (4);

e. Revising the definition of “Increase in Imports”;

f. In the definition of “Partial Separation”, revising the introductory text;

g. Revising the definitions of “Service Sector Firm” and “Total Separation”; and

h. Adding in alphabetical order a definition for “Unjustifiable Benefits”.

The revisions and additions read as follows:

8. Sections 315.4 through 315.6 are removed.

9. Revise subparts B through E and add subpart F to read as follows:

Subpart B—TAAC Provisions

Subpart C—Certification of Firms

Subpart D—Adjustment Proposals

Subpart E—Protective Provisions

Subpart F—International Trade Commission Investigations