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Implementation of the Economic Development Administration Reform Act of 1998 Including Economic Adjustment Grants-Revolving Loan Funds

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AGENCY:

Economic Development Administration (EDA), Department of Commerce (DoC).

ACTION:

Final rule.

SUMMARY:

The Economic Development Administration (EDA) is clarifying and further streamlining previously published regulations to implement the Economic Development Administration Reform Act of 1998 and is finalizing its interim-final rule on Economic Adjustment Assistance Revolving Loan Funds.

DATES:

Effective Date: November 28, 2000.

ADDRESSES:

Send comments to Edward M. Levin, Chief Counsel, Economic Development Administration, U.S. Department of Commerce, Herbert C. Hoover Building, 1401 Constitution Avenue, NW, Room 7005, Washington, DC 20230.

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FOR FURTHER INFORMATION CONTACT:

Edward M. Levin, Chief Counsel, Telephone Number 202-482-4687, fax 202-482-5671, e-mail elevin@doc.gov.

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SUPPLEMENTARY INFORMATION:

Background

The Economic Development Administration (EDA) was reauthorized for a five-year period by legislation enacted on November 13, 1998, creating stability and opportunities for EDA to better serve economically distressed communities across the country. On February 3, 1999, EDA published an interim-final rule, Economic Development Administration Regulation: Revision to Implement the Economic Development Reform Act of 1998, Public Law 105-393 (the Reform Act), (64 FR 5347-5486). The public was invited to submit comments on the interim-final rule for a period of sixty (60) days ending April 5, 1999. EDA's final rule without RLF changes was published on December 14, 1999, 64 FR 69867. EDA reviewed comments on the RLF Task Force Recommendations as well as other comments on RLF matters and published an interim-final rule on January 18, 2000, 65 FR 2530, requesting comments on or before March 18, 2000.

Explanation of Changes

A commenter suggested that the table at § 300.3(b), be modified to add the OMB Control Number for the Certification Form filled out and submitted by firms alleging injury due to imports under EDA's Trade Adjustment Assistance Program (see 13 CFR part 315). EDA concurs and has modified the rule by adding Control Number 0610-0091 to the Table at § 300.3(b).

A commenter suggested that § 301.1(b) be modified to add a reference to part 308 as providing for an exception to the requirement for evidence of cooperation (by letter or resolution) with officials of a general purpose political subdivision of a state or an Indian tribe, as applicable when applicant is a nonprofit organization. We concur and have revised the rule accordingly.

A commenter suggested that § 302.1(b) be modified for consistency and clarification to state that strategies required for District designation meet the CEDS requirements under § 303.3. We concur and have modified the rule accordingly.

A commenter suggested that § 302.4 (b)(4) be modified to add the letter “s” to the word “requirement” when referring to CEDS requirements under part 303. Since this was an inadvertent typographical error, EDA concurs and has corrected the rule accordingly.

A commenter suggested that § 303.2 be modified to state the statutory requirement placed upon any district located in the Appalachian region to ensure that a copy of the CEDS of such district is provided to the Appalachian Regional Commission. We concur and have revised the rule accordingly.

A commenter suggested that Subpart B to part 305—Requirements for Approved Projects, be added to the rule. EDA concurs since this was inadvertently not printed as was intended, and has corrected the rule to include the Subpart to immediately precede “§ 305.5-Pilot program.”

Commenters suggested that § 305.5 be revised to remove specific references to the Chicago Regional Office's pilot program and certain aspects thereof and to provide instead, without setting any timetables, that Regional Offices, upon approval of the Deputy Assistant Secretary for Program Operations, may institute pilot programs for post-approval construction monitoring, thereby continuing EDA's efforts to streamline and simplify. We concur and have modified the rule accordingly.

A commenter suggested that § 306.1 be revised to state EDA's longstanding policy and practice of supporting partnership planning grants with Districts, Indian Tribes and other eligible applicants, as well as funding short term grants to eligible grantees. We concur and have revised the rule accordingly.

A commenter suggested that § 307.7(c) should be removed because post-approval requirements are found in § 307.12. We concur and have revised the rule accordingly.

A commenter suggested that § § 308.4 (b) and (c)(1)(i) be modified so that not all strategy grants or implementation grants must meet the CEDS requirements under § 303.3, since there might be a non-construction non-CEDS project to develop a non-CEDS strategy or implementation which would not need to follow CEDS requirements to meet the objectives of the Economic Adjustment program. EDA concurs and has changed the rule accordingly.

Commenters suggested that § 308.4(c)(1)(i) be modified for consistency to state that implementation grants for CEDS must meet the CEDS requirements at § 303.3. EDA concurs and has changed the rule accordingly.

A commenter suggested that § 308.5(a) be modified to state that for Technical Assistance under the Economic Adjustment program, when the project is regional or national in scope, EDA may determine that the requirement that public or private nonprofit organizations must act in cooperation with officials of a political subdivision of a state is satisfied by the nature of the project. We concur and have revised the rule accordingly.

A commenter noted that § 308.9 is not clear about what RLF Plan requirements do not apply to states and political subdivisions of states. EDA concurs and has clarified the rule to indicate what RLF Plan approval requirements must be met by States/political subdivisions of states.

A commenter suggested that § 308.11(a) be modified to state that for a determination of eligibility for new RLF lending areas, such areas must be included in or added to a CEDS in accordance with requirements under § 301.3. EDA concurs and we have modified the rule accordingly.

Commenters suggested that EDA clarify the meaning of § 308.11(a)(1). EDA concurs (this was an inadvertent typographical error) and has rewritten the rule accordingly.

A commenter suggested that § 308.12(b) be modified to add “Loan Start Printed Page 71023losses should be expense [sic] first to current RLF income after deducting administrative costs. If the net current RLF income is depleted, retained RLF income from previous annual periods may be used with the written approval of EDA.” EDA does not concur. In accordance with § 308.12(c), RLF income not used for administrative expenses must be added to the capital base for lending. While this can have the effect of compensating or partially compensating for actual loan losses that may occur from time to time, EDA does not believe that expensing losses against RLF income is necessary.

A commenter suggested that § 308.12(d) be modified to cite to the applicable OMB Cost Circular(s) and to list any costs which would be allowable for RLFs with EDA's approval, even though such costs are not allowable under the OMB Circular. It is not possible to develop such a list in advance because any extraordinary costs that might be allowed, with EDA's approval, would be handled on a case by case basis. We have, however, revised the rule to cite the applicable OMB Cost Circulars.

A commenter suggested that § 308.14(a) be modified to allow those RLFs that have received recapitalization funds within the past two years, and have successfully managed and reported on previously awarded RLF funds for more than two years, to report on an annual basis for all funds. EDA does not concur. EDA's grant monitoring responsibility requires semi-annual reports from all active grants in their disbursement phase plus one year, after which EDA will consider a request to submit annual reports.

A commenter suggested that § 308.17(c) be modified to allow for securitization of loan funds, as well as borrowing to generate additional capital with EDA approval. EDA does not concur that a change to the regulation is necessary to allow securitization. EDA's definition of securitization is intentionally sufficiently broad to permit, with EDA approval, other similar activities, such as collateralized borrowing. In granting approval for such activities, EDA can suspend the capital utilization standard of § 308.17(c) as necessary to allow the leveraged/borrowed funds to be lent. Note that the definition of the term “Securitization” at § 308.8, is also applicable to § 314.10.

A commenter suggested that § 308.18, introductory paragraph, be revised to delete the word “agreement” (after “loan”) and to insert instead, the word “application'. EDA does not agree because the loan purpose should be noted directly or by reference in the loan agreement.

A commenter suggested that EDA revise § 308.18(c) (credit otherwise available) to include a provision allowing RLFs to provide incentive financing for specific community objectives in rural areas to attract business, eliminate blight, and revitalize downtown areas and that this suggested revision not supersede specific uses and terms of RLF loan proceeds previously granted by EDA. EDA does not concur. EDA authority to approve variances is sufficiently broad to accommodate case by case circumstances as described by the commenter.

A commenter suggested that EDA establish a permanent RLF working group composed of RLF managers and representatives from other federal loan fund programs. EDA does not agree that a working group should be established by regulation. EDA is committed to the development of better communications between the Agency and the RLF community utilizing other vehicles.

A commenter suggested that the authority citation for parts 315 and 316 be corrected to refer to 19 U.S.C. 2341 (instead of 19 U.S.C. 2391), to remove a reference in part 315 to Executive Order 12372 as unnecessary, to remove a reference in part 315 to 42 U.S.C. 5141 as incorrect, and to add a reference to 42 U.S.C. 5141 to part 316. We concur and have modified the rule accordingly.

A commenter suggested that § 315.9 be modified to include standards for certification of firms on the basis of interim employment decline or an interim decrease in sales or production to codify longstanding EDA policy and practice. We concur and have modified the rule accordingly.

A commenter suggested that § 316.9(c) be modified to provide for the possibility of project changes when no-year funds are involved. We concur and have modified the rule accordingly.

A commenter suggested that § 317.1(f)(3)(vi) concerning required information about employees of EDA assisted planning organizations, be revised to correct an inadvertent typographical error by deleting the word “data” and inserting in lieu thereof, the word “date”. We concur and have modified the rule accordingly.

A commenter suggested that § 317.1(f)(5) concerning annual civil rights compliance reviews for districts and other planning organizations, be revised to correct an inadvertent typographical error by deleting the reference to requirements under paragraph (f)(3), and inserting in lieu thereof, reference to requirements under paragraph (f)(4). We concur and have modified the rule accordingly.

Executive Order 12866 and 12875

This rule has been determined to be not significant for purposes of Executive Order 12866, Regulatory Planning and Review. In addition, it has been determined that, consistent with the requirements of Executive Order 12875, Enhancing Intergovernmental Partnership, this final rule will not impose any unfunded mandates upon state, local, and tribal governments.

Regulatory Flexibility Act

Since notice and an opportunity for comment are not required to be given for the rule under 5 U.S.C. 553 or any other law, under sections 603(a) and 604(a) of the Regulatory Flexibility Act (5 U.S.C. 601-612) no initial or final Regulatory Flexibility Analysis is required, and none has been prepared.

Paperwork Reduction Act

This rule imposes no new information collection or record keeping requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.), as amended, and has been cleared under OMB's clearance process under OMB approval numbers 0610-0093, 0610-0094, and 0610-0096, valid until November 30, 2002, and 0610-0095 valid until August 31, 2002.

Administrative Procedure Act (APA)

This rule is exempt from the rulemaking requirements of the APA, see 5 U.S.C. 533, pursuant to authority at 5 U.S.C. 533(a)(2).

Executive Order 12612 (Federalism Assessment)

This action has been reviewed in accordance with the principles and criteria contained in Executive Order 12612. It has been determined that this final rule does not have significant Federalism implications to warrant a full Federalism Assessment under the principles and criteria contained in Executive Order 12612.

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List of Subjects

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Accordingly, 13 CFR Chapter III is amended as set forth below, and the interim final rule amending 13 CFR Parts 308 and 314, which was published at 65 FR 2530 on January 18, 2000, is adopted as final with the following changes:

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PART 300—GENERAL INFORMATION

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1. The authority citation for part 300 continues to read as follows:

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Authority: 42 U.S.C. 3211; Department of Commerce Organization Order 10-4.

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2. Section 300.3 is amended by revising paragraph (b) to read as follows:

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OMB control numbers.
* * * * *

(b) Control number table:

13 CFR part or section where identified an describedCurrent OMB control No.
3010610-0094
3020610-0094
3030610-0093
3040610-0094
3050610-0094 and 0610-0096
3060610-0094
3070610-0094
3080610-0094 and 0610-0095
3140610-0094
3150610-0091 and 0610-0094
3160610-0094
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PART 301—GENERAL ELIGIBILITY AND GRANT RATE REQUIREMENTS

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1. The authority citation for part 301 continues to read as follows:

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Authority: 42 U.S.C. 3211; Department of Commerce Organization Order 10-4.

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2. Section 301.1 is amended by revising paragraph (b) to read as follows:

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Applicants.
* * * * *

(b) Except as otherwise provided in parts 307 and 308 of this chapter, a public or private nonprofit organization applicant must include in its application for assistance, a resolution passed by, or a letter signed by, an authorized representative of a general purpose political subdivision of a State or an Indian tribe, acknowledging that the applicant is acting in cooperation with officials of the political subdivision or Indian tribe, as applicable.

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PART 302—ECONOMIC DEVELOPMENT DISTRICTS; STANDARDS FOR DESIGNATION, MODIFICATION AND TERMINATION

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

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Authority: 42 U.S.C. 3211; Department of Commerce Organization Order 10-4.

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2. Section 302.1 is amended by revising paragraph (b) to read as follows:

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Designation of Economic Development Districts.
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(b) It has an EDA approved strategy which meets CEDS requirements under § 303.3 of this chapter.

* * * * *
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3. Section 302.4 is amended by revising paragraph (b)(4) to read as follows:

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District organization functions and responsibilities.
* * * * *

(b) * * *

(4) Comply with the requirements of part 303 of this chapter.

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PART 303—PLANNING PROCESS AND STRATEGIES FOR DISTRICT AND OTHER PLANNING ORGANIZATIONS SUPPORTED BY EDA

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1. The authority citation for part 303 continues to read as follows:

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Authority: 42 U.S.C. 3211; Department of Commerce Organization Order 10-4.

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2. Section 303.2 is amended by adding paragraph (g) to read as follows:

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Planning process.
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(g) If any part of a district is in the Appalachian region (as defined in section 403 of the Appalachian Regional Development Act of 1965 (40 U.S.C. App.)) the district shall ensure that a copy of the district's CEDS is provided to the Appalachian Regional Commission.

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PART 305—GRANTS FOR PUBLIC WORKS AND DEVELOPMENT FACILITIES

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1. The authority citation for part 305 continues to read as follows:

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Authority: 42 U.S.C. 3211; Department of Commerce Organization Order 10-4.

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2. The heading for Subpart B is revised to read as follows:

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Subpart B—Requirements for Approved Projects

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3. Section 305.5 is revised to read as follows:

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Pilot program.

(a) EDA's Regional Offices may, upon approval of the Deputy Assistant Secretary for Program Operations, institute pilot programs for post-approval construction monitoring, thereby continuing EDA's efforts to Start Printed Page 71025streamline and simplify procedures for monitoring approved EDA construction projects. The knowledge and efficiencies gained from the pilot programs will be evaluated and used to improve and revise EDA's post-approval project management requirements and procedures.

(b) As part of a pilot program, the procedures developed by a Regional Office may vary from those listed in this subpart B. No additional requirements are imposed by pilot program procedures. A Regional Office will provide guidelines, in its version of the “Requirements for Approved Projects,” to all recipients of grants for construction projects monitored by the Office. The recipient may not be required to submit to EDA certain documentation at any set time, but will be required to maintain all documentation supporting any and all certifications submitted to the Regional Office, for the period of time provided in 15 CFR part 14 or 24, as appropriate.

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4. Section 305.19 is amended by revising paragraph (d) to read as follows:

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Contract change orders.
* * * * *

(d) When a change order is for a project funded with one-year funds, EDA approval of such change order must be based on a finding by EDA that the work called for in the change order is within the project scope and is required for satisfactory operation or functioning of the project.

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PART 306—PLANNING ASSISTANCE

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1. The authority citation for part 306 continues to read as follows:

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Authority: 42 U.S.C. 3211; Department of Commerce Organization Order 10-4.

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2. Section 306.1 is amended by revising the introductory text to read as follows:

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Purpose and scope.

The primary objective of planning assistance is to provide funding for administrative expenses to support the formulation and implementation of economic development planning programs and for the conduct of planning activities designed to create and retain permanent jobs and increase incomes, particularly for the unemployed and underemployed in the nation's most economically distressed areas. EDA's planning assistance is for partnership planning grants with Districts, Indian Tribes and other eligible applicants, as well as for short term grants to eligible grantees. Planning activities supported by these funds must be part of a continuous process involving the active participation of public officials and private citizens, and include the following:

* * * * *
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PART 307—LOCAL TECHNICAL ASSISTANCE, UNIVERSITY CENTER TECHNICAL ASSISTANCE, NATIONAL TECHNICAL ASSISTANCE, TRAINING, RESEARCH, AND EVALUATION

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1. The authority citation for part 307 continues to read as follows:

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Authority: 42 U.S.C. 3211; Department of Commerce Organization Order 10-4.

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[Amended]
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2. Section 307.7 is amended to remove paragraph (c) and to redesignate paragraphs (d) and (e) as paragraphs (c) and (d) respectively.

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PART 308—REQUIREMENTS FOR ECONOMIC ADJUSTMENT GRANTS

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1. The authority citation for part 308 continues to read as follows:

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Authority: 42 U.S.C. 3211; Department of Commerce Organization Order 10-4.

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2. Section 308.4 is amended by revising paragraphs (b) and (c)(1)(i) to read as follows:

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Selection and evaluation factors.
* * * * *

(b) Strategy grants. EDA will, as appropriate, review strategy grant applications for assurances that the proposed activities will conform to the CEDS requirements in § 303.3 of this chapter.

(c) Implementation Grants. (1) * * *

(i) If appropriate, strategy meets the CEDS requirements in § 303.3 of this chapter.

* * * * *
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3. Section 308.5 is amended by revising paragraph (a) to read as follows:

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Applicant requirements.
* * * * *

(a) Include evidence of area and applicant eligibility (see part 301 of this chapter). For Technical Assistance under the Economic Adjustment program, if the project is regional or national in scope, EDA may determine that the requirement that public or private nonprofit organizations must act in cooperation with officials of a political subdivision of a State is satisfied by the nature of the project;

* * * * *
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4. Section 308.9 is amended by revising the introductory text to read as follows:

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Revolving Loan Fund Plan.

All RLF recipients must manage RLFs in accordance with an RLF Plan (Plan) as described in this part. For all RLF recipients, the Plan must be submitted to and approved by EDA prior to the grant award. For RLF recipients other than states, the RLF Plan must have been approved by resolution of the organizations' governing board and such resolution must be submitted to EDA along with the Plan prior to the grant award; with EDA's approval, political subdivisions of states may be exempted from the resolution requirement.

* * * * *
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5. Section 308.11 is amended by revising paragraphs (a) introductory text and (a)(1) to read as follows:

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Lending areas and modification of lending areas.

(a) The economic activity and benefits of RLF loans must be located within the eligible areas identified in the grant award. For a determination of eligibility for new RLF lending areas, such areas must be included in or added to a CEDS in accordance with requirements under § 301.3 of this chapter.

(1) Where such RLFs have a grant condition that permits new areas that subsequently become eligible to be added to the lending area, RLFs that were awarded assistance (RLF capitalization or recapitalization) before February 11, 1999, whether fully disbursed or not, and fully disbursed RLFs that were awarded assistance (RLF capitalization or recapitalization) on or after February 11, 1999, may add such areas with EDA approval.

* * * * *
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6. Section 308.12 is amended by revising paragraph (d) to read as follows:

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Revolving Loan Fund income.
* * * * *

(d) RLF recipients must comply with applicable OMB cost principles (as found in OMB Circular A-87 for State, Local or Indian tribal governments, OMB Circular A-122 for non-profit organizations other than institutions of higher education, hospitals, or organizations named in OMB Circular A-122 as not subject to that circular, and OMB Circular A-21 for educational institutions) and with RLF Audit Guidelines (as found in OMB Circular A-133, Single Audit Act Requirements for State and Local Governments, Indian tribal governments, Institutions of Higher Education and Other Nonprofit Organizations, or the Compliance Supplement, as appropriate) when charging costs against RLF income. For Start Printed Page 71026availability of OMB circulars, see 5 CFR 1310.3.

* * * * *
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PART 315—CERTIFICATION AND ADJUSTMENT ASSISTANCE FOR FIRMS

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1. The authority citation for part 315 is revised to read as follows:

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Authority: 42 U.S.C. 3211; 19 U.S.C. 2341, et seq.; Department of Commerce Organization Order 10-4.

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2. Section 315.9 is revised to read as follows:

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Certification requirements.

A firm will be certified eligible to apply for adjustment assistance based upon the petition for certification if EDA determines, under section 251(c) of the Trade Act, that:

(a) Based upon a comparison of the most recent 12 month period for which data are available and the immediately preceding 12 month period, the following conditions have been met:

(1) A significant number or proportion of workers in such firm have become totally or partially separated, or are threatened to become totally or partially separated;

(2) Either sales or production, or both of the firm have decreased absolutely; or sales or production, or both of any article 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

(3) Increases of imports (absolute or relative to domestic production) of articles like or directly competitive with articles produced by such firm contributed importantly to such total or partial separation or threat thereof, and to such decline in sales or production; provided that imports will not be considered to have contributed importantly if other factors were so dominant, acting singly or in combination, that the worker separation or threat thereof, or decline in sales or production would have been essentially the same irrespective of the influence of imports; or

(b) Based upon an interim sales or production decline, the following conditions have been met:

(1) There has been an absolute decrease in sales or production for, at minimum, a three month period during the most recent 12 month period for which data are available as compared to the same period of time during the immediately preceding 12 month period;

(2) During the same base and comparative period of time as the period of absolute decrease in sales or production, a significant number or proportion of workers in such firm have become totally or partially separated; and

(3) During the same base and comparative period of time as the period of absolute decrease in sales or production, there has been an increase of imports (absolute or relative to domestic production) of articles like or directly competitive with articles produced by such firm which contributed importantly to such total or partial separation, and to such decline in sales or production; provided that imports will not be considered to have contributed importantly if other factors were so dominant, acting singly or in combination, that the worker separation, or decline in sales or production would have been essentially the same irrespective of the influence of imports; or

(c) Based upon an interim employment decline, the following conditions have been met:

(1) A significant number or proportion of workers in such firm have become totally or partially separated, or are threatened to become totally or partially separated during, at a minimum, the most recent month during the most recent 12 month period for which data are available as compared to the same period of time during the immediately preceding 12 month period; and

(2) Either sales or production, or both of the firm have decreased absolutely during the 12-month period preceding the most recent 12-month period for which data are available; and

(3) There has been an increase of imports (absolute or relative to domestic production) of articles like or directly competitive with articles produced by such firm which contributed importantly to such total or partial separation or threat thereof, and to such decline in sales or production; provided that imports will not be considered to have contributed importantly if other factors were so dominant, acting singly or in combination, that the worker separation or threat thereof, or decline in sales or production would have been essentially the same irrespective of the influence of imports.

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PART 316—GENERAL REQUIREMENTS FOR FINANCIAL ASSISTANCE

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1. The authority citation for part 316 is revised to read as follows:

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Authority: 42 U.S.C. 3211, 42 U.S.C. 5141; 19 U.S.C. 2341, et seq., Department of Commerce Organization Order 10-4.

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2. Section 316.9 is amended by revising paragraph (c) to read as follows:

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Amendments and changes.
* * * * *

(c) Changes of project scope after the time the project grant funds could be obligated will not be approved by EDA. Projects funded with no year funds are not subject to the change of scope rule.

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PART 317—CIVIL RIGHTS

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1. The authority citation for part 317 continues to read as follows:

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Authority: 42 U.S.C. 3211; 42 U.S.C. 2000d-1; 29 U.S.C. 794; 42 U.S.C. 3123; 42 U.S.C. 6709; 20 U.S.C. 1681; 42 U.S.C. 6101; Department of Commerce Organization Order 10-4.

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2. Section 317.1 is amended by revising paragraphs (f)(3)(vi) and (f)(5)to read as follows:

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Civil rights.
* * * * *

(f) * * *

(3) * * *

(vi) A list of employees on the staff of the organization by name, position title, salary, funding source, and hiring date, indicating race, sex, national origin, and age; and

* * * * *

(5) In order to determine whether districts and other planning organizations supported by EDA are complying with the requirements in paragraph (f)(4) of this section, EDA shall conduct annual compliance reviews of these organizations through either an in-depth desk audit or onsite review.

* * * * *
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Dated: November 15, 2000.

Arthur C. Campbell,

Assistant Secretary for Economic Development.

End Signature End Supplemental Information

[FR Doc. 00-29957 Filed 11-27-00; 8:45 am]

BILLING CODE 3510-24-U