[Federal Register Volume 67, Number 220 (Thursday, November 14, 2002)]
[Notices]
[Pages 69029-69041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28932]
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DEPARTMENT OF LABOR
Employment and Training Administration
Trade Adjustment Assistance Program: Training and Employment
Guidance Letter Interpreting Federal Law
The Employment and Training Administration interprets federal law
requirements pertaining to Trade Adjustment Assistance (TAA). These
interpretations are issued in Training and Employment Guidance Letters
(TEGLs) to the State Workforce Agencies. The TEGL described below is
published in the Federal Register in order to inform the public.
TEGL 11-02
TEGL 11-02 advises states of the federal law requirements
applicable to implementing reforms of the Trade Adjustment Assistance
(TAA) program enacted by the TAA-Reform Act of 2002.
The operating instructions in TEGL 11-02 are issued to the States
and the cooperating state workforce agencies (SWAs) as guidance
provided by the Department of Labor (DOL) in its role as the principal
in the TAA program. As agents of the Secretary of Labor, the
[[Page 69030]]
States and cooperating SWAs may not vary from the operating
instructions in TEGL 11-02 without prior approval from DOL.
Pending the issuance of regulations implementing the provisions of
the TAA Reform Act of 2002, the operating instructions in TEGL 11-02
constitute the controlling guidance for the States and the cooperating
SWAs implementing and administering the Trade Act of 1974, as amended,
pursuant to the agreements between the States and the Secretary of
Labor under section 239 of the Trade Act of 1974, as amended.
Changes to the TAA program are set out in TEGL 11-02 according to
the principal parts of the TAA program and generally in the order in
which they appear in the TAA Reform Act of 2002. The changes to each
part, and those aspects of each part that remain unchanged, are
explained in turn, along with the regulations principally affected and
the changes in program administration that may be required. Sections of
the Trade Act of 1974 that are entirely unchanged by the TAA Reform Act
of 2002 are discussed after the sections that are changed.
Dated: November 7, 2002.
Emily Stover DeRocco,
Assistant Secretary of Labor.
Training and Employment Guidance Letter No. 11-02
To: All State workforce liaisons, All State workforce agencies, All
one-stop center system leads.
From: Emily Stover DeRocco, assistant Secretary.
Subject: Operating Instructions for Implementing the Amendments to the
Trade Act of 1974 Enacted by the Trade Act of 2002.
1. Purpose. To assist the State Workforce Agencies (SWA) in
implementing the provisions of the Trade Act of 2002 that amend the
current Trade Adjustment Assistance program and repeal the North
American Free Trade-Transitional Adjustment Assistance program.
2. References. The Trade Act of 1974, as amended (Pub. L. 93-618,
as amended); the Trade Act of 2002 (Pub. L. 107-210); 20 CFR part 617;
29 CFR part 90; General Administration Letter 7-94 with changes 1, 2,
and 3. The amendments to the TAA program may also be referred to as the
Trade Adjustment Assistance Reform Act of 2002. Forthcoming directives:
Unemployment Insurance Program Letter (UIPL) No. 02-03; ETA guidance--
Use of National Emergency Grant Funds Under the Workforce Investment
Act, as Amended, to Support Healthcare Assistance for Trade Impacted
Workers; Department of the Treasury instructions and guidance on
implementing the Health Insurance Tax Credit provisions of the Trade
Act of 2002.
To provide guidance on the implementation of various aspects of the
Trade Act of 2002, ETA plans to issue the following additional
instructions:
----------------------------------------------------------------------------------------------------------------
Effective
Provision Instructions Expected issue date date of
provision
----------------------------------------------------------------------------------------------------------------
Health Insurance Assistance NEGs for TEGL: Use of NEGs to Develop 10/10/02................... 8/6/02
System-Building. Systems for Health Insurance
Coverage Assistance for Trade-
Impacted Workers.
End-of-Year Tax Credit................ UIPL No. 02-03: Health 10/10/02................... 12/1/02
Insurance Tax Credit for
Eligible Trade Adjustment
Assistance/Trade Readjustment
Allowances (TAA/TRA)
Recipients.
New Petition Procedures............... TEGL.......................... Spring 2003................ ...........
Advance Tax Credit.................... Companion Advisory to IRS Late Spring 2003........... 8/1/03
Instructions.
Alternative TAA for Older Workers TEGL.......................... Spring 2003................ 8/6/03
Program.
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3. Guiding Principle for TAA Implementation. The reauthorization
and reform of the TAA program and repeal of the NAFTA-TAA program
provide an opportunity to ensure that effective strategies are employed
to assist affected workers in obtaining reemployment. It is essential
that DOL and the states work together to move trade-affected workers
into new jobs as quickly and effectively as possible so that they
continue to be productive members of our workforce and so that our
businesses remain competitive. To this end, the intervention strategies
used for program benefits and services will be aimed toward rapid,
suitable and long-term employment for adversely affected workers.
States must:
A. Increase the focus on early intervention, upfront assessment,
and reemployment services for adversely affected workers. It should not
be assumed that the best reemployment strategy for all workers is the
long-term training and extended income support that has traditionally
been the focus of the program. The new requirements in the 2002
Amendments requiring the provision of rapid response and core and
intensive services available under WIA and other Federal programs to
workers filing a TAA petition afford an important opportunity to stress
early intervention and more rapid reemployment. providing an early
assessment and identification of the worker's marketable skills, and
the provision of job search assistance and other reemployment services
will assist many workers in obtaining suitable reemployment quickly.
B. Use One-Stop Career Centers as the main point of participant
intake and delivery of benefits and services. This will encourage
coordination among programs in order to better serve workers and
promote efficiencies in the workforce system.
C. Maintain fiscal integrity and promote performance
accountability. ETA will ensure that money allocated for TAA is sued
for the purposes Congress intended--to improve the economy, and assist
workers and businesses--and that it is spent with the interests of
taxpayers in mind. This will occur, in part, through strengthened
participant outcome measures for the program.
4. Background. the Trade Adjustment Assistance (TAA) program for
workers was first established at the U.S. Department of Labor (DOL) by
the Trade Act of 1974 (1974 Act). Currently, when DOL receives a
petition for TAA from a group of workers or its authorized
representative, DOL conducts a fact-finding investigation to determine
whether increased imports have contributed importantly to the workers'
dispacement. IF the findings of the investigation show that the workers
have been adversely affected by import competition, the Secretary of
Labor issues a certification of eligibility to apply for adjustment
assistance. Once a certification is issued, it is transmitted
[[Page 69031]]
to the State. The SWAs act as agents of the Secretary to notify
certified workers of potential Trade Act benefits and services, make
eligibility determinations for individuals, and deliver benefits and
services. Individual workers who are members of the certified worker
group apply for benefits and services at a One-Stop Career Center or
other local office of the SWA. Individual workers who meet the
qualifying criteria may receive up to 104 weeks of job retraining, up
to 52 weeks (generally) of income support in the form of Trade
Readjustment Allowances (TRA), job search allowances, and relocation
allowances. In addition, all workers covered by a certification are
eligible for basic reemployment services such as job referrals, job
clubs, resume-writing assistance, and so forth. Most of the steps in
this current process have been affected by the provisions of the Trade
Act of 2002 (2002 Act).
The 1974 Act has been amended several times since its initial
passage. In December 1993, the North American Free Trade Implementation
Act created the North American Free Trade Agreement--Transitional
Adjustment Assistance (NAFTA-TAA) program by adding subchapter D to
chapter 2 of title II of the 1974 Act. Subchapter D contains one
section, section 250, which established the NAFTA-TAA program and
specified some differences between it and the regular TAA program.
Certifications of worker groups under NAFTA-TAA were made only if
imports from Canada and/or Mexico caused the import impact, or if the
workers' firm shifted production to either Canada or Mexico. Workers
filed their petitions with the Governor of the State in which they were
employed, not directly with DOL, and the State performed a preliminary
investigation. If the workers appeared to be impacted by imports from
Canada or Mexico or a shift of production to Canada or Mexico, the
state provided rapid response assistance under the Workforce Investment
Act of 1998 (WIA). The State then transmitted all information gathered
in the preliminary investigation to DOL, which issued the final
determination on eligibility to apply. In order to qualify for TRA,
workers had to be enrolled in training within specific time limits.
Workers certified under NAFTA-TAA had to be enrolled in approved
training in order to qualify for TRA; no waivers from this requirement
were allowed. Regular TAA allowed waivers if training was ``not
feasible or appropriate'' for the worker.
Along with the creation of the NAFTA-TAA program, the Clinton
Administration issued a Statement of Administrative Action (SAA) that
committed to providing assistance to workers who were not directly
impacted by trade with Canada or Mexico, but were indirectly impacted
because their firm supplied components to, or performed finishing
operations for, a firm which was directly impacted. These secondarily-
impacted workers petitioned for certification in the same way as for
the NAFTA-TAA program, or DOL initiated a secondary investigation if
the result of a primary NAFTA-TAA investigation was a denial of
eligibility to apply. In either case, if the worker group was found to
be secondarily impacted by imports from Canada and/or Mexico or a shift
of production to Canada or Mexico, the members of the group qualified
for benefits and services delivered through the dislocated worker
program under WIA.
On August 6, 2002, President George W. Bush signed into law H.R.
3009, the Trade Act of 2002 (2002 Act), Pub. L. 107-210. The 2002 Act
makes several amendments to the 1974 Act. The amendments that are
covered in these operating instructions apply to petitions for
adjustment assistance that are filed on or after November 4, 2002.
Petitions filed on or before November 3, 2002, are covered by the
provisions of the 1974 Act that were in effect on September 30, 2001.
The 2002 Act repeals subchapter D of chapter 2 of title II of the
1974 Act (the NAFTA-TAA program). However, workers covered under
certifications issued pursuant to NAFTA-TAA petitions filed on or
before November 3, 2002, will continue to be covered under the
provisions of the NAFTA-TAA program that were in effect on September
30, 2001. The 2002 Act generally did not amend the job retraining
provisions of the 1974 Act, except that customized training may now be
approved for import-impacted workers. The statutory cap on funds that
may be allocated to the States for training is raised from $110 million
to $220 million per year. The maximum amount of TRA is increased by 26
weeks of additional TRA for all workers in training. Up to 26 more
weeks of additional TRA may be approved if the worker must undergo
remedial training as part of his/her retraining program. In order to
qualify for TRA, a worker must be enrolled in training within 16 weeks
of his/her most recent total qualifying separation, or within 8 weeks
of the issuance of the certification, whichever is later. However,
States may grant an extension of these requirements for up to 45 days
if there are extenuating circumstances. Waivers from the training
requirement are available under six specific conditions. A worker may
continue to receive TRA during a break in training that lasts up to 30
days (raised from 14 days).
To petition for eligibility to apply for TAA, workers or their
authorized representatives must now file the petition simultaneously
with the Secretary of Labor and the Governor of the State where the
workers were employed. The Governor no longer has responsibility for
conducting a preliminary investigation. However, the Governor must
provide rapid response services and appropriate core and intensive to
all petitioning workers. DOL has 40 days to conduct an eligibility
investigation and issue a determination. The 2002 Act also makes the
secondary-worker coverage, as provided under the Statement of
Administrative Action, statutory. Workers who are found to be
secondarily-impacted, as defined in the Act, are eligible to apply for
the same benefits and services as workers certified as primarily
impacted; the benefits and services for both primarily and secondarily-
affected workers are paid from TAA funds.
The 2002 Act creates a program of health insurance tax credits
(HITC) for certain trade-impacted workers and others. Covered
individuals include workers who are eligible for TRA (including those
workers who would be eligible except that they have not exhausted all
entitlement to unemployment insurance), workers participating in the
alternative TAA program (next paragraph), and individuals over 55 years
old who are receiving monthly benefits paid by the Pension Benefit
Guaranty Corporation (PBGC). Covered individuals may be eligible to
receive a tax credit equal to 65% of the amount they paid for
qualifying coverage under qualified health insurance. The tax credit
may be claimed at the end of the year, or, beginning in August 2003, a
qualified individual may receive the credit in the form of monthly
advance payments to the health insurance provider.
The 2002 Act creates the Alternative TAA (ATAA) for Older Workers
program. Under the ATAA, workers at least 50 years who obtain
different, full-time employment within 26 weeks of separation from
adversely-affected employment at wages less than the wages earned in
the adversely-affected employment may receive 50 percent of the wage
differential, up to a maximum of $10,000, during their two-year
eligibility period. To be eligible for the ATAA program, workers may
not earn more than $50,000 per year in the new employment. Also, the
firm where the
[[Page 69032]]
workers worked must meet certain eligibility criteria. Workers who take
advantage of the ATAA cannot receive three of the regular TAA benefits
and services (training, TRA, and job search allowances); they are,
however, eligible to apply for relocation allowances and the health
insurance tax credit.
The 2002 Act also creates a separate TAA program for farmers.
Eligibility determinations for that program are the responsibility of
the Secretary of Agriculture. Farmers certified under that program are
entitled to the same DOL-funded basic reemployment services, training,
job search, and relocation services as regular TAA workers, but they
may not receive TRA. The Secretary of Agriculture is authorized to make
cash assistance payments (up to $10,000 per year) to eligible farmers.
5. Operating Instructions. The operating instructions in this
document are issued to the States and the cooperating SWAs as guidance
provided by the Department of Labor (DOL) in its role as the principal
in the TAA program. As agents of the Secretary of Labor, the States and
cooperating State agencies may not vary from the operating instructions
in this document without prior approval from DOL.
Pending the issuance of regulations implementing the provisions of
the 2002 Act, the operating instructions in this document constitute
the controlling guidance for the States and the cooperating State
agencies in implementing and administering the 1974 Act, as amended,
pursuant to the agreements between the States and the Secretary of
Labor under section 239 of the 1974 Act, as amended.
Changes to the TAA program are set out in this document according
to the principal parts of the TAA program and generally in the order in
which they appear in the 2002 Act. The changes to each part, and those
aspects of each part that remain unchanged, are explained in turn,
along with the regulations principally affected and the changes in
program administration that may be required. Sections of the 1974 Act
which are entirely unchanged by the 2002 Act are discussed after the
sections that are changed.
In general, the amendments to the 1974 Act made by the 2002 Act
take effect on November 4, 2002, 90 days after the President signed the
2002 Act into law.
All of the changes to the petitioning process apply to petitions
filed on or after November 4, 2002. Changes to the eligibility
requirements and levels of Trade Act benefits and services apply to
workers covered by certifications issued pursuant to petitions filed on
or after November 4, 2002. For convenience and emphasis, the effective
date is repeated in several sections of these instructions. Exceptions
to this effective date apply to certain aspects of the health insurance
tax credit and to the ATAA program. Instructions for those are not
included in this document, but will be issued in separate directives in
the near future.
There are provisions of the 2002 Act that are not covered by these
operating instructions. The Health Insurance Tax Credit (HITC)
provisions involve several Departments, including the Departments of
Labor, Health and Human Services, and the Treasury (including the
Internal Revenue Service). Guidance and instructions for the HITC are
forthcoming. Similarly, the ATAA will not be implemented until the
summer of 2003. Complete guidance and operating instructions for the
ATAA are forthcoming. The HITC and the ATAA are discussed briefly in
this document, and only for informational purposes.
For purposes of these operating instructions, the following
definitions will apply:
1. 2002 Act means the Trade Act of 2002, Pub. L. 107-210.
2. 1974 Act means the Trade Act of 1974, as amended (but not
including the amendments in the 2002 Act), Pub. L. 93-618, as amended.
3. DOL means the U.S. Department of Labor.
4. Secretary means the Secretary of Labor.
5. TAA means the Trade Adjustment Assistance program.
6. NAFTA-TAA means the North American Free Trade Agreement-
Transitional Adjustment Assistance program.
7. TRA means Trade Readjustment Allowances.
8. ATAA means Alternative Trade Adjustment Assistance program.
9. HITC means Health Insurance Tax Credit.
10. WIA means the Workforce Investment Act of 1998.
A. Reauthorization, Termination, and Expenditure Record
Statutory Change: Section 111 of the 2002 Act amends sections 245
and 285 of the 1974 Act as follows:
Sec. 285. Termination
(a) Assistance for Workers.--Section 245 of the Trade Act of
1974 (19 U.S.C. 2317) is amended by striking `October 1, 1998, and
ending September 30, 2001, each place it appears and inserting
October 1, 2001, and ending September 30, 2007,'.
(c) Termination.--Section 285 of the Trade Act of 1974 is
amended to read as follows:
(a) Assistance for Workers.--
(1) In General.--Except as provided in paragraph (2), trade
adjustment assistance, vouchers, allowances, and other payments or
benefits may not be provided under chapter 2 after September 30,
2007.
(2) Exception.--Notwithstanding paragraph (1), a worker shall
continue to receive trade adjustment assistance benefits and other
benefits under chapter 2 for any week for which the worker meets the
eligibility requirements of that chapter, if on or before September
30, 2007, the worker is--
(A) Certified as eligible for trade adjustment assistance
benefits under chapter 2 of this title; and
(B) Otherwise eligible to receive trade adjustment benefits
under chapter 2.
Administration: The trade adjustment assistance program for workers
is reauthorized through September 30, 2007, the end of fiscal year
2007. The amendment also authorizes the payment past that date of
program benefits to workers who are covered by a certification issued
on or before that date and are otherwise eligible to receive the
benefits.
Statutory Change: Section 120 of the 2002 Act amends section 245 of
the 1974 Act as follows:
Section 245 of the Trade Act of 1974 (19 U.S.C. 2317), as
amended by section 111(a) of this Act, is further amended by
amending subsection (b) to read as follows:
(b) Period of Expenditure.--Funds obligated for any fiscal year
to carry out activities under sections 235 through 238 may be
expended by each State receiving such funds during that fiscal year
and the succeeding two fiscal years.
Administration: This amendment codifies the existing way of
handling funds allocated to States for job training (including
transportation and subsistence allowances), job search allowances, and
relocation allowances.
States may accrue expenditures during the fiscal year in which they
receive funding, and during the succeeding two fiscal years. States
must liquidate all accrued expenditures charged to a particular fiscal
year within 90 days after the close of the second succeeding fiscal
year (29 CFR 97.23(b)).
B. Petition Filing and Provision of Rapid Response Assistance
B.1. Petition Filing
Statutory Change: Section 112(a) of the 2002 Act amends section
221(a) of the 1974 Act to read as follows:
(a)(1) A petition for certification of eligibility to apply for
adjustment assistance for a group of workers under this chapter may
be filed simultaneously with the Secretary and the Governor of the
State in which such workers' firm or subdivision is located by any
of the following:
(A) The group of workers (including workers in an agricultural
firm or subdivision of an agricultural firm).
[[Page 69033]]
(B) The certified or recognized union or other dully authorized
representative of such workers.
(C) Employers of such workers, one-stop operators are one-stop
partners (as defined in section 101 of the Workforce Investment Act
of 198 (29 U.S.C. 2801)), including State employment security
agencies, or the State dislocated worker unit established under
title I of such Act, on behalf of such workers.
(2) Upon receipt of a petition filed under paragraph (1), the
Governor shall--
(A) Ensure that rapid response assistance, and appropriate core
and intensive services (as described in section 134 of the Workforce
Investment Act of 1998 (29 U.S.C. 2864)) authorized under other
Federal laws are made available to the workers covered by the
petition to the extent authorized under such laws; and
(B) Assist the Secretary in the review of the petition by
verifying such information and providing such other assistance as
the Secretary may request.
Administration: Beginning on November 4, 202, petitions for
certification of eligibility to apply for adjustment assistance must be
filed simultaneously with the Secretary of Labor and the Governor of
the State where the petitioning workers worked. Although the language
of the statute says ``may'' be filed simultaneously, the legal
interpretation is that anyone who has standing to file a petition and
who wishers to do so must file simultaneously with the Secretary and
the Governor in order that they are both able to carry out their
statutory responsibilities. If the statute had said ``shall'' file
simultaneously, that would be a legal requirement that all persons in
the United States who fit into one or more of the three listed
categories must file petitions for adjustment assistance.
Throughout those operating instructions, the terms ``filed'' and
``received'' have the same meaning with respect to the petitioning
process. Regulations published at 29 CFR 90.2 state that ``Date of
filing means the date on which petitions and other documents are
received by the Office of Trade Adjustments Assistance. Employment and
Training Administration, U.S. Department of Labor * * *''.
Petitions may be filed by any of the following:
1. Three or more individual members of the affected worker group;
2. An official of the certified or recognized union that represents
the workers;
3. An official of the company where the workers worked;
4. One-Stop operators are partners as defined in section 101 of the
WIA, including SWAs or the State dislocated worker unit.
The States is also required to assist the Secretary in the review
of the petition by verifying such information and providing other
assistance as the Secretary may request. However, States no longer
perform preliminary investigations as they did under the NAFTA-TAA
program.
States must be prepared to assist petitioners in completing and
filing petitions. Petitions forms must be readily available at all One-
Stop Career Centers and other local offices of the SWA. Upon receiving
a petition, the State must immediately transmit the petition by
facsimile or other electronic means to DOL. If a petition is received
both in the State and transmitted to DOL on the same day, the petition
will be considered to have been filed simultaneously with the Secretary
and the Governor. However, in practice, strictly simultaneous filing
may not be practical. If a petition is not received on the same day by
both the Secretary and the Governor, it will be considered to be filed
on the later of the two different dates of receipt. A new petition form
will be supplied to the States by DOL; the new petition form will also
be available for download from the TAA Web site (http://www.doleta.gov/tradeact). Petitions filed on or after November 4, 2002, must use the
new form.
B.2. Rapid Response
Upon receipt of a petition on or after November 4, 2002, the State
must ensure that rapid response assistance and appropriate core and
intensive services, as described in section 134 of the WIA, are made
available to the workers covered by the petition to the extent
authorized under the WIA and other Federal laws. This requirement
applies to every petition received. If a petition is generated during
the course of rapid response assistance to a worker group, this
requirement will be satisfied for that petition. The State shall use
the date that the petition is received by the State as the criterion
for providing rapid response assistance.
C. Group Eligibility Requirements
Section 113 of the 2002 Act amends section 222 of the 1974 Act by
broadening the criteria for certification and adding eligibility for
certain secondarily-affected workers. In order to properly assist
workers or their representatives to file petitions for adjustment
assistance, or to properly file themselves on behalf of workers, States
must know the new criteria for certification of petitions for both
primarily-affected workers and secondarily-affected workers.
Responsibility for investigating petitions and applying the criteria
for certification will rest with DOL.
It is important to note from the outset that the inclusion of
secondarily-affected workers does not create a separate group of
certified workers who are eligible for benefits and services that are
different from those available to other certified workers. All workers
covered by certifications issued pursuant to petitions filed on or
after November 4, 2002, whether they are `primarily affected' or
`secondarily affected', are eligible to apply for the same set of
benefits and services.
C.1. Certification Criteria
Statutory Change: Section 113 of the 2002 Act amends section 222(a)
of the 1974 Act to read as follows:
(a) In General.--A group of workers (including workers in any
agricultural firm of subdivision of an agricultural firm) shall be
certified by the Secretary as eligible to apply for adjustment
assistance under this chapter pursuant to a petition filed under
section 221 if the Secretary determines that--
(1) A significant number or proportion of the workers in such
workers' firm, or an appropriate subdivision of the firm, have
become totally or partially separated, or are threatened to become
totally or partially separated; and
(2)(A)(i) The sales or production, or both, of such firm or
subdivision have decreased absolutely;
(ii) Important of articles like or directly competitive with
articles produced by such firm or subdivision have increased; and
(iii) The increase in imports described in clause (ii)
contributed importantly to such workers' separation or threat of
separation and to the decline in sales or production of such firm or
subdivision; or
(B)(i) There has been a shift of production by such workers'
firm or subdivision to a foreign country of articles like or
directly competitive with articles which are produced by such firm
or subdivision; and
(ii)(I) The country to which the workers' firm has shifted
production of the articles is a party to a free trade agreement with
the United States;
(II) The country to which the workers' firm has shifted
production of the articles is a beneficiary country under the Andean
Trade Preferences Act, African Growth and Opportunity Act, or the
Caribbean Basin Economic Recovery Act; or
(III) There has been or is likely to be an increase in imports
of articles that are like or directly competitive with articles
which are or were produced by such firm or subdivision.
Administration: The criteria for certification of eligibility to
apply for adjustment assistance now cover adverse effects either from
increased imports or from a shift of production to certain countries.
In order for a certification to be issued, the petition must satisfy
these two criteria:
[[Page 69034]]
1. A significant number or proportion of the workers in the
workers' firm, or an appropriate subdivision of such firm, must have
become totally or partially separated or be threatened with total or
partial separation.
2. The second criterion is satisfied if either A or B below are
satisfied:
A.(i) Sales or production, or both, at the petitioning workers'
firm or subdivision must have decreased absolutely, and
(ii) Imports of articles like or directly competitive with articles
produced by the petitioning workers' firm or subdivision have
increased, and
(iii) The increase in imports described in (ii) contributed
importantly to the petitioning workers' separation or threat of
separation and to the decline in sales or production at the firm or
subdivision.
B. (i) There has been a shift of production by the petitioning
workers' firm or subdivision to a foreign country of articles like or
directly competitive with the articles which are produced by the firm
or subdivision, and
(ii) one of the following conditions applies:
a. The country to which the workers' firm has shifted production of
the articles is a party to a free trade agreement with the United
States; or
b. The country to which the workers' firm has shifted production of
the articles is a beneficiary country under the Andean Trade Preference
Act, the African Growth and Opportunity Act, or the Caribbean Basin
Economic Recovery Act, or
c. There has been or is likely to be an increase in imports of the
articles that are like or directly competitive with articles which are
or were produced by the firm or subdivision.
The new certification criteria are basically a combination of the
criteria for the old TAA program and those for the NAFTA-TAA program.
the first set of criteria for certification are the same as those that
have applied to the TAA program since its inception. The second set of
criteria takes the shift of production criterion from the NAFTA-TAA
program and modifies it to cover shifts to many, but not all,
countries. The applicable countries are those included in three
specific trade-promotion Acts and any others that are parties to free-
trade agreements with the United States. The group of countries that
are applicable for these purposes may change from time to time; a
current list of such countries will be available on the TAA Web site.
For shifts of production to countries that do not fall into either of
those groups, there is a third criterion that covers actual or
prospective increases of imports of like or directly competitive
products. The latter criterion does not require that the actual or
prospective increases in imports come from the country to which the
shift of production occurred.
C.2. Secondarily-Affected Worker Eligibility
Statutory Change: Section 113(b) of the 2002 Act continues the
amendments to section 222 of the 1974 Act by redesignating section
222(b) of the 1974 Act as section 222(c) and inserting the following:
(b) Adversely Affected Secondary Workers.--A group of workers
(including workers in any agricultural firm or subdivision of an
agricultural firm) shall be certified by the Secretary as eligible
to apply for adjustment assistance benefits under this chapter if
the Secretary determines that--
(1) A significant number or proportion of the workers in the
workers' firm or an appropriate subdivision of the firm have become
totally or partially separated, or are threatened to become totally
or partially separated;
(2) The workers' firm (or subdivision) is a supplier or
downstream producer to a firm (or subdivision) that employed a group
of workers who received a certification of eligibility under
subsection (a), and such supply or production is related to the
article that was the basis for such certification (as defined in
subsection (c)(3) and (4)); and
(3) Either--
(A) the workers' firm is a supplier and the component parts it
supplied to the firm (or subdivision) described in paragraph (2)
accounted for at least 20 percent of the production or sales of the
workers' firm; or
(B) A loss of business by the workers' firm with the firm (or
subdivision) described in paragraph (2) contributed importantly to
the workers' separation or threat of separation determined under
paragraph (a).
Section 113(b) of the 2002 Act amends section 222(c) (as
redesignated) of the 1974 Act by adding the following:
(3) Downstream Producer.--The term `downstream producer' means a
firm that performs additional, value-added production processes for
a firm or subdivision, including a firm that performs final assembly
or finishing, directly for another firm (or subdivision), for
articles that were the basis for a certification of eligibility
under subsection (a) of a group of workers employed by such other
firm, if the certification of eligibility under subsection (a) is
based on an increase in imports from, or a shift of production to,
Canada or Mexico.
(4) Supplier.--The term `supplier' means a firm that produces
and supplies directly to another firm (or subdivision) component
part for articles that were the basis for a certification of
eligibility under subsection (a) of a group of workers employed by
such other firm.
Administration: there are basically two groups of workers that can
be certified as eligible to apply for adjustment assistance because the
workers are secondarily affected--workers who supply components
(upstream) to a firm whose workers are certified (primary) or workers
who perform additional, value-added production and finishing operations
(downstream) for a firm whose workers are certified (primary).
Upstream workers must directly supply the primary firms. the
articles produced by upstream workers must be directly incorporated
into the articles that were the basis for the certification of the
primary firm's workers. Supplier chains are often categorized according
to ``tiers.'' Firms in the first tier supply components directly to the
producer of the final product. Firms in the second tier supply
components to firms in the first tier, and so forth. The secondary-
worker coverage applies only to workers employed by firms in the first
tier. The components supplied to the primary firm by the upstream
workers must either account for at least 20 percent to the production
or sales of the upstream firm, or the loss of business with the primary
firm by the upstream firm must have contributed importantly to the
upstream workers' separations or threat of separations. For upstream
workers to be certified as secondarily affected, the import impact on
the primary firm can come from increased imports from any country or a
shift of production to any country that qualifies under the shift-of-
production criteria.
Downstream workers must directly perform additional, value-added
production processes, including final assemble or finishing, on the
products of the primary firm. Downstream workers can only be certified
as secondarily affected if the workers of the primary firm are
certified based on increased imports from Canada or Mexico or a shift
of production to Canada or Mexico. Also, the downstream workers' firm
must have suffered a loss of business with the primary firm that
contributed importantly to the workers' separations or threat of
separations.
C.3. Secondary Worker Coverage Under the SAA
The secondary-worker coverage that was established by the Statement
of Administrative Action (SAA) that accompanied the NAFTA implementing
legislation applied only to workers who were adversely affected by
imports from, or a shift of production to, Canada or Mexico. Workers
determined to be secondarily impacted under the SAA received benefits
and services through the dislocated worker program under WIA. Under the
2002 Act, the TAA
[[Page 69035]]
program will be responsible for benefits and services provided to
workers who are certified as secondarily affected pursuant to petitions
received on or after November 4, 2002. The benefits and services
available to such workers, and the eligibility critiera applicable to
them, are exactly the same as for workers who are certified as
primarily impacted.
D. Trade Readjustment Allowances
D.1. Exhaustion of Unemployment Insurance
Statutory Change: Section 114(a) of the 2002 Act amends section
231(a)(3)(B) of the 1974 Act by inserting at the end of the subsection
``except additional compensation that is funded by a State and is not
reimbursed from any Federal funds.''
Administration: As amended, section 231(a)(3)(B) requires that a
worker must exhaust all entitlement to unemployment insurance in order
to be eligible for TRA. Entitlement to unemployment insurance includes
regular UC and Extended Benefits (EB) and Temporary Extended
Unemployment Compensation (TEUC). However, the new amendment means that
an eligible worker may receive TRA before (or, depending on State law,
along with) receiving additional compensation that is entirely State-
funded.
Under section 233(a)(1) of the 1974 Act, which has not been
amended, a determination of the amount of basic TRA to which an
eligible worker is entitled is made by computing 52 times the most
recent TRA weekly benefit amount (WRA), then deducting from that amount
the sum of the unemployment insurance to which the worker was entitled
in the worker's first benefit period. However, the statutory change to
section 231(a)(3)(B) is interpreted to mean that additional
compensation that is entirely State-funded shall not be deducted from
the product of 52 times the worker's WBA in computing a worker's basic
TRA maximum benefit amount.
D.2. Enrollment in Training Requirement
Statutory Change: Section 114(b) of the 2002 Act amends section
231(a)(5)(A) of the 1974 Act to read;
(5) Such worker
(A)(i) Is enrolled in a training program approved by the
Secretary under section 236(a) of this title, and
(ii) The enrollment required under clause 9i) occurs no later
than the latest of--
(I) The last day of the 16th week after the worker's most recent
total separation form adversely affected employment which meets the
requirements of paragraphs (1) and (2),
(II) The last day of the 8th week after the week in which the
Secretary issues a certification covering the worker,
(III) 45 days after the later of the dates specified in
subclause (I) or (II), if the Secretary determines that there are
extenuating circumstances that justify an extension in the
enrollment period, or
(IV) The last day of a period determined by the Secretary to be
approved for enrollment after the termination of a waiver issued
pursuant to subsection (c).
Administration: ``Enrolled in training'' means that the worker's
application for training has been approved by the SWA and that the
training institution has furnished written notice to the SWA that the
worker has been accepted into the approved program which is to begin
within 30 days of such approval (20 CFR 617.11(a)(2)(vii)(D)). States
are encourage to select training providers that have met the
qualifications necessary to be included in the Eligible Training
Provider List (ETPL) as defined in the WIA.
``Extenuating circumstances'' are situations that could arise when
training programs are abruptly cancelled or where the first available
enrollment date is past the end of the 60-day period, as well as in
cases where a worker suffers injury or illness that adversely affects
the worker's ability to enroll in training. These new enrollment
deadlines are nearly the same as those that have existed for the NAFTA-
TAA program since 1994. These deadlines may be waived for specified
reasons, which are discussed next. However, the intent of time
limitations is that adversely-affected workers who are in need of
training be enrolled in training quickly in order to expedite their
adjustment and reemployment.
For purposes of subsection IV, ``the last day of a period
determined by the Secretary'' is the first Monday of the week following
the week in which the waiver is terminated, whether by revocation or
expiration, until such time as this issue is addressed in regulations.
D.3. Training Waivers
Statutory Change: Section 115 of the 2002 Act amends section 231(c)
of the 1974 Act to read as follows:
(c) Waivers of Training Requirements.--
(1) Issuance of waivers.--The Secretary may issue a written
statement to an adversely affected worker waiving the requirement to
be enrolled in training described in subsection (a)(5)(A) if the
Secretary determines that it is not feasible or appropriate for the
workers, because of 1 or more of the following reasons:
(A) Recall.--The workers has been notified that the workers will
be recalled by the firm from which the separation occurred.
(B) Marketable Skills.--The workers possesses marketable skills
for suitable employment (as determined pursuant to an assessment of
the worker, which may include the profiling system under section
303(j) of the Social Security Act (42 U.S.C. 503(j)), carried out in
accordance with guidelines issued by the Secretary) and there is a
reasonable expectation of employment at equivalent wages in the
foreseeable future.
(C) Retirement.--The worker is within 2 years of meeting all
requirements for entitlement to either--
(i) Old-age insurance benefits under title II of the Social
Security Act (42 U.S.C. 401 et seq.) (except for application
therefor); or
(ii) A private pension sponsored by an employer or labor
organization.
(D) Health.--The worker is unable to participate in training due
to the health of the worker, except that a waiver under this
subparagraph shall not be construed to exempt a worker from
requirements relating to the availability for work, active search
for work, or refusal to accept work under Federal or State
unemployment compensation laws.
(E) Enrollment Unavailable.--The first available enrollment date
for the approved training of the worker is within 60 days after the
date of the determination made under this paragraph, or, if later,
there are extenuating circumstances for the delay in enrollment, as
determined pursuant to guidelines issued by the Secretary.
(F) Training Not Available.--Training approved by the Secretary
is not reasonably available to the worker from either governmental
agencies or private sources (which may include area vocational
education schools, as defined in section 3 of the Carl D. Perkins
Vocational and Technical Education Act of 1988 (20 U.S.C. 2302), and
employers), no training that is suitable for the worker is available
at reasonable cost, or no training funds are available .
(2) Duration of Waivers.--
(A) In General.--A waiver issued under paragraph (1) shall be
effective for not more than 6 months after the date on which the
waiver is issued, unless the Secretary determines otherwise.
(B) Revocation.--The Secretary shall revoke a waiver issued
under paragraph (1) if the Secretary determines that the basis of a
waiver is no longer applicable to the worker and shall notify the
worker in writing of the revocation.
(3) Agreements Under Section 239.--
(A) Issuance by Cooperating States.--Pursuant to an agreement
under section 239, the Secretary may authorize a cooperating State
to issue waivers as described in paragraph (1).
(B) Submission of Statements.--An agreement under section 239
shall include a requirement that the cooperating State submit to the
Secretary the written statements provided under paragraph (1) and a
statement of the reasons for the waiver.
Section 115 of the 2002 Act also amends section 231(a)(5)(C) of the
1974 Act by striking the word ``certified''.
[[Page 69036]]
Administration: There are now six specific criteria for issuing a
waiver of the training requirement. Criterion (A) requires that a
worker has received specific notice of recall to the worker's
adversely-affected employment. States shall require that this notice of
recall be in writing from the firm. Criterion (B) should be used as a
means of encouraging more rapid reemployment and the use of up-front
job search. As part of the marketable skills test, workers in a
petitioning worker group may receive core and intensive services using
rapid response funding before their petition is certified to encourage
more rapid reemployment. Criterion (E) requires that the worker's
training begin within 60 days after the approval of the waiver, unless
there are extenuating circumstances. Such circumstances could arise
when training programs are abruptly cancelled or where the first
available enrollment date is past the end of the 60-day period, as well
as in cases where a worker suffers injury or illness that adversely
affects the worker's ability to enroll in training. The statutory
language in criteria (C), (D), and (F) needs no further explanation.
Also, as before, a waiver only applies to eligibility for basic
TRA, not additional TRA. In order to receive additional TRA, a worker
must be participating in approved training in each week for which the
additional TRA is paid.
In accordance with section 231(c)(3)(A) of the 1974 Act, as amended
by the 2002 Act, States may issue waivers from the training
requirement, when necessary and proper, in accordance with the
statutory language and these instructions for eligible workers who are
covered by certifications issued pursuant to petitions received on or
after November 4, 2002. Also, in accordance with section 231(c)(3)(B)
of the 1974 Act, as amended by the 2002 Act, States must submit to the
Secretary reports on all waivers issued. The required reports are
discussed in more detail in these instructions in section K, Program
Reporting.
D.4. Limitations on TRA
Statutory Change: Section 116(a) of the 2002 Act amends section
233(a) of the 1974 Act so that paragraph (2) reads as follows:
(2) A trade readjustment allowance shall not be paid for any
week occurring after the close of the 104-week period (or, in the
case of an adversely affected worker who requires a program of
remedial education (as described in section 236(a)(5)(D)) in order
to complete training approved for the worker under section 235, the
130-week period) that begins with the first week following the week
in which the adversely affected worker was most recently totally
separated from adversely affected employment--
(A) Within the period which is described in section 231(a)(1) of
this title, and
(B) With respect to which the worker meets the requirements of
section 231(a)(2) of this title.
Administration: This section of the 1974 Act creates as 104-week
period beginning with a worker's most recent total qualifying
separation during which the worker may receive any basic TRA to which
the worker is entitled. States must continue to apply this rule, except
that, in cases where a worker requires remedial education as part of
the worker's reemployment plan, such a worker has a 130-period in which
to receive any basic TRA to which the worker is entitled.
Statutory Change: Section 116(a) of the 2002 Act also amends
section 233(a) of the 1974 Act so that paragraph (3) reads as follows:
(3) Notwithstanding paragraph (1), in order to assist the
adversely affected worker to complete training approved for him
under section 236 of this title, and in accordance with regulations
prescribed by the Secretary, payments may be made as trade
readjustment allowances for up to 52 additional weeks in the 52-week
period that--
(A) Follows the last week of entitlement to trade readjustment
allowances otherwise payable under this part; or
(B) Begins with the first week of such training, if such
training begins after the last week described in subparagraph (A).
Payments for such additional weeks may be made only for weeks in
such 52-week period during which the individual is participating in
such training.
Administration: This amendment increases the maximum number of
weeks of additional TRA for all eligible workers from 26 to 52. In all
other respects, the regulations and operating instructions related to
additional TRA are unchanged, except for the case where a worker who
undergoes remedial training may qualify for up to 36 more weeks of
additional TRA (see below).
States must continue to apply the regulatory definition of
additional TRA (20 CFR 617.3(m)(2)), and the regulations on weeks of
additional TRA (20 CFR 617.15(b)), which continue to be in effect until
they are superseded by new regulations, except that all occurrences of
``26 weeks'' in the regulations are interpreted as referring to ``52
weeks'' for workers covered by certifications that are issued pursuant
to petitions received on or after November 4, 2002.
Statutory Change: Section 116(b) of the 2002 Act amends section
233(f) of the 1974 Act to read:
(f) Workers treated as participating in training. For purposes
of this part, a worker shall be treated as participating in training
during any week which is part of a break in training that does not
exceed 30 days if--
(1) The worker was participating in a training program approved
under section 236 of this title before the beginning of such break
in training, and
(2) The break is provided under such program.
Administration: A State must continue to pay TRA to a worker who is
receiving TRA while participating in approved training during scheduled
or other normal breaks in the training that last for up to 30 days. The
regulations which govern breaks in training, 20 CFR 617.15(d), continue
in effect, except that the number ``14'' in that section is interpreted
as ``30'' and the number ``15'' found in section 617.15(d)(3) is
interpreted as ``31'' until they are superseded by new regulations. In
addition, the reference to ``14-day break in training'' in 20 CFR
617.22(f)(3)(ii) is interpreted as ``30-day break in training''.
Statutory Change: Section 116(c) of the 2002 Act amends section 233
of the 1974 Act by adding the following subsection at the end:
(g) Notwithstanding any other provision of this section, in
order to assist an adversely affected worker to complete training
approved for the worker under section 236 which includes a program
of remedial education (as described in section 236(a)(5)(D)), and in
accordance with regulations prescribed by the Secretary, payments
may be made as trade readjustment allowances for up to 26 additional
weeks in the 26-week period that follows the last week of
entitlement to trade readjustment allowances otherwise payable under
this chapter.
Administration: Remedial education is defined as training in the
elementary skills that every worker must have in order to achieve basic
reemployability. Remedial training should be considered pre-vocational;
that is, it leads to occupational, on-the-job, or customized training
that will equip the participant with specific job skills. Wherever
practical, remedial training should be conducted concurrently with the
early parts of occupational training. Examples of remedial education
are basic writing and mathematical skills training, English as a Second
Language (ESL) and courses leading to a G.E.D.
For a worker who must undergo remedial education as part of the
worker's retraining plan, the maximum number of weeks of additional TRA
is 78, or 26 more than the maximum for workers who do not participate
in remedial education. States must also apply the definition of
additional TRA
[[Page 69037]]
(20 CFR 617.3(m)(2)) as well as the regulations on weeks of additional
TRA (20 CFR 617.15(b)), which continue to be in effect until they are
superseded by new regulations, except that all occurrences of ``26
weeks'' in the regulations shall be interpreted as referring to ``78
weeks'' for workers who undergo remedial education and are covered by
certifications that are issued pursuant to petitions received on or
after November 4, 2002. In addition, Stat4es must pay the weeks of the
TRA for trainees in remedial education on the basis of one week of this
additional TRA for one week of remedial education, up to the 26-week
maximum. For example, of a worker undergoes 15 weeks of remedial
education, then participates in occupational training, the State may
not pay more than 15 weeks of this additional TRA for trainees in
remedial education. If a worker undergoes more than 26 weeks of
remedial education, the worker may not receive more than the maximum of
26 weeks of this additional TRA. However many weeks a worker is
eligible for, those weeks must be a fixed, continuous time period of
that many weeks. The weeks of additional TRA for remedial education
must follow the last week of entitlement to any other TRA otherwise
payable.
D.5. TRA-Related Provisions That Are Unchanged
Most of the statutory provisions related to trade readjustment
allowances remain the same as they were before the 2002 Act. Except for
the specific provision discussed above, the TRA provisions found in
sections 231 through 234 of the 1974 Act (19 U.S.C. 2291 through 19
U.S.C. 2294) must be administered according to regulations published at
20 CFR 617.10 through 617.19 until those regulations are superseded by
regulations implemented as a result of the enactment of the 2002 Act.
In summary, the unchanged TRA-related provisions are:
1. Qualifying requirements for TRA that are unchanged are:
A. The worker's separation must have occurred between the impact
date and the expiration date that are specified in the certification
under which the worker is covered.
B. The worker must have had, during the 52-week period ending with
the week in which the worker's qualifying separation occurred, 26 weeks
of employment at wages of $30 or more per week in adversely affected
employment with a single firm or subdivision of a firm. The statutory
provisions regarding the definition of weeks of employment continue to
apply.
C. The worker must be entitled to, or would be entitled to if the
worker applied for, unemployment insurance for a week within the
benefit period in which the worker's qualifying separation took place
or which began, or would have begun, by reason of filing of a claim for
unemployment insurance by such worker after such qualifying separation.
D. The worker would not be disqualified for extended compensation
under the Federal-State Extended Unemployment Compensation Act of 1970
by reason of the work acceptance and job search requirements in section
202(a)(3) of such Act for weeks in which the worker is not in approved
training.
E. The worker is enrolled in an approved training program, or has
completed the approved training program, or has a waiver from these
requirements.
2. The prohibition against paying TRA to any worker who has failed
to begin participation in training, or has ceased to participate in
training, without justifiable cause, is unchanged.
3. The statutory provisions related to weekly amounts of TRA are
unchanged.
4. The requirement that, in order to be eligible for additional
TRA, a worker make a bona fide application for training within 210 days
of the later of the worker's most recent qualifying separation or the
first certification of eligibility to apply for adjustment assistance
that covers the worker remains unchanged. Under the NAFTA-TAA program,
this requirement was irrelevant because no waivers of the training
requirement were permitted under that program. Therefore, a worker not
only had to file a bona fide training plan, the worker was required to
be enrolled in training within the \6/16\-week time limits in order to
receive any TRA. However, the possibility that a worker could receive a
waiver of up to six-months' duration of the \8/16\-week time limits
implies that it is possible for a worker to file a bona fide training
plan, and enroll in training, more than 210 days after the later of the
dates mentioned above and before the worker's basic TRA entitlement is
exhausted. Hence, this provision of the law is still applicable.
5. The statutory provisions in section 233(c) related to adjustment
of amounts payable are unchanged.
6. The provisions in Section 234 on application of State laws are
unchanged.
E. Job Retraining
E.1. Cap on Training Funds
Statutory Change: Section 117 of the 2002 Act amends section
236(a)(2)(A) of the 1974 Act by increasing the cap on training funds
that can be allocated to the States to $220 million per year.
Administration: These funds must cover training, including
necessary transportation and subsistence allowances, for all eligible
workers, including those covered by certifications issued under the
NAFTA-TAA program. States apply for training funds in the same way as
before, by submitting form ETA 9023 through the appropriate Regional
office.
E.2. Employer-Based Training
Statutory Change: Section 118(a) of the 2002 Act amends section
236(a)(5)(A) of the 1974 act by changing ``on-the-job training'' to
``employer-based training, including (i) on-the-job training and (ii)
customized training.'' In addition, section 118(b) of the 2002 Act
amends section 236(c)(8) of the 1974 Act to read ``the employer is
provided reimbursement of not more than 50 percent of the wage rate of
the participant, for the cost of providing the training and additional
supervision related to the training.'' (Note: the previous language of
section 236(c)(8), which is replaced, was ``the employer certifies to
the Secretary that the employer will continue to employ such worker for
at least 26 weeks after completion of such training if the worker
desires to continue such employment and the employer does not have due
cause to terminate such employment.'')
Finally, section 118(c) of the 2002 Act adds a subsection to the
end of section 236 of the 1974 act as follows:
(c) For purposes of this section, the term ``customized
training'' means training that is--
(1) Designed to meet the special requirements of an employer or
group of employers;
(2) Conducted with a commitment by the employer or group of
employers to employ an individual upon successful completion of the
training; and
(3) For which the employer pays for a significant portion (but
in no case less than 50 percent) of the cost of such training, as
determined by the Secretary.
Administration: The previous requirement for on-the-job training,
that the employer promise to continue to employ a worker in on-the-job
training for at least 26 weeks after the completion of the training
(provided that the worker wants to continue employment and the employer
does not have due cause to terminate the employment) is not applicable
to workers covered by certifications issued pursuant to petitions filed
on or after November 4, 2002. The definitions of
[[Page 69038]]
on-the-job and customized training, and the approval criteria for such
training, are now very similar to the equivalent definitions and
approval criteria for such training under the dislocated worker program
of WIA. On-the-job training is job training that occurs at a firm where
the trainee is employed by the firm. Customized training is training
designed to the specific requirements of a firm or group of firms, but
conducted by a separate training vendor. In customized training, the
trainee is not employed by the firm or group of firms for which the
training is designed.
Current TAA regulations published at 20 CFR 617.23(c)(1) require
that States give priority, insofar as possible, to on-the-job training
when designing a reemployment program for an eligible worker. States
shall also give priority, insofar as possible, to customized training
for eligible workers. These forms of training ensure that workers
obtain job skills which are necessary to obtain employment in a
particular occupation.
E.3. Length of Training
The limit of 104 weeks on the length of a TAA-approved training
program is not statutory. That limit is in the regulations (20 CFR
617.22(f)(2)). The new limits on weeks of TRA that are contained in the
2002 Act are interpreted to mean that Congress intended to match the
maximum number of weeks of training with the maximum number of weeks of
income support (UI plus TRA). The 2002 Act allows up to 26 weeks of TRA
for workers who must complete some remedial education before beginning
their retraining programs. Therefore, the intent of the statute is
interpreted as allowing a maximum of 130 weeks of training in cases
where workers require remedial education before they can enroll in
occupational training. The number of weeks of training that are between
104 and 130 cannot be more than the number of weeks of the remedial
training. For example, if a worker's remedial training lasts for only
10 weeks, then the maximum number of weeks of training for that worker
would be 114 weeks. Even if the remedial training is more than 26
weeks, the maximum number of weeks for the total retraining plan cannot
exceed 130.
E.4. Statutory Training-Related Provisions That Are Unchanged
Most of the statutory provisions related to job retraining remain
the same as they were prior to the 2002 Act. Except for the two
specific provisions discussed above, the job training provisions found
in section 236 of the 1974 Act (19 U.S.C. 2296) shall be administered
according to regulations published at 20 CFR 617.22 through 617.25
until those regulations are superseded by regulations implementing the
2002 Act. In summary, the unchanged training-related provisions are:
1. The six criteria for approving training which are found in
section 236(a)(1) of the 1974 Act (19 U.S.C. 2296(a)(1));
2. The prohibitions against non-duplication of payments which are
found in sections 236(a)(4), 236(a)(6), and 236(a)(7) of the 1974 Act
(19 U.S.C. 2296(a)(4), 2296(a)(6), and 2296(a)(7));
3. The types of training that may be approved for eligible workers
which are found in section 236(a)(5) of the 1974 Act (19 U.S.C.
2296(a)(5));
4. Supplementary assistance to defray the costs of transportation
and subsistence expenses when training is provided in facilities which
are not within the commuting distance of the worker's regular place of
residence provided in section 236(b) of the 1974 Act (19 U.S.C.
2296(b));
5. Criteria for approving on-the-job and customized training
(except for criterion 8 discussed above) which are found in section
236(c) of the 1974 Act (19 U.S.C. 2296(c));
6. The prohibition against finding a worker ineligible for
unemployment insurance because of participation in approved training
found in section 236(d) of the 1974 Act (19 U.S.C. 2296(d); and
7. The definition of the term ``suitable employment,'' used for the
purposes of Section 236 only, found in section 236(e) of the 1974 Act
(19 U.S.C. 2296(e).
F. Job Search Allowances
Statutory Change: Section 121 of the 2002 Act amends section 237 of
the 1974 Act to read as follows:
Sec. 237. Job Search Allowances
(a) Job Search Allowance Authorized--
(1) In General.--An adversely affected worker covered by a
certification issued under subchapter A of this chapter may file an
application with the Secretary for payment of a job search
allowance.
(1) Approval of Applications.--The Secretary may grant an
allowance pursuant to an application filed under paragraph (1) when
all of the following apply:
(A) Assist Adversely Affected Worker.--The allowance is paid to
assist an adversely affected worker who has been totally separated
in securing a job within the United States.
(B) Local Employment Not Available.--The Secretary determines
that the worker cannot reasonably be expected to secure suitable
employment in the commuting area in which the worker resides.
(C) Application.--The worker has filed an application for the
allowance with the Secretary before--
(i) The later of--
(I) The 365th day after the date of the certification under
which the worker is certified eligible; or
(II) The 365th day after the date of the worker's last total
separation; or
(ii) The date that is the 182nd day after the date on which the
worker concluded training, unless the worker received a waiver under
section 231(c).
(b) Amount of Allowance.--
(1) In General.--An allowance granted under subsection (a) shall
provide reimbursement to the worker of 90 percent of the cost of
necessary job search expenses as prescribed by the Secretary in
regulations.
(2) Maximum Allowance.--Reimbursement under this subsection may
not exceed $1,250 for any worker.
(3) Allowance for Subsistence and Transportation.--Reimbursement
under this subsection may not be made for subsistence and
transportation expenses at levels exceeding those allowable under
section 236(b)(1) and (2).
(c) Exception.--Notwithstanding subsection (b), the Secretary
shall reimburse any adversely affected worker for necessary expenses
incurred by the worker in participating in a job search program
approved by the Secretary.
Adminstration: The new job search section is simply a rewriting of
the previous job search section. The qualifying conditions are the same
as before and the application deadlines are the same as before, except
that the new limit for reimbursement per worker per certification is
$1,250. Therefore, States must continue to administer job search
allowances in accordance with regulations published at 20 CFR 617.30
through 617.35, except that the ``$800'' in section 617.34(b) is
interpreted to be ``$1,250.'' until those regulations are superseded by
new regulations.
G. Relocation Allowances
Statutory Change: Section 122 of the 2002 Act amends section 238 of
the 1974 Act to read as follows:
Sec. 238. Relocation Allowances
(a) Relocation Allowance Authorized--
(1) In General.--Any adversely affected worker covered by a
certification issued under subchapter A of this chapter may file an
application for a relocation allowance with the Secretary, and the
Secretary may grant the relocation allowance, subject to the terms
and conditions of this section.
(2) Conditions for Granting Allowance.--A relocation allowance
may be granted if all of the following terms and conditions are met:
(A) Assist An Adversely Affected Worker.--The relocation
allowance will assist an adversely affected worker in relocating
within the United States.
(B) Local Employment Not Available.--The Secretary determines
that the worker cannot reasonably be expected to secure suitable
[[Page 69039]]
employment in the commuting area in which the worker resides.
(c) Total Separation.--The worker is totally separated from
employment at the time the relocation commences.
(D) Suitable Employment Obtained.--The worker
(i) Has obtained suitable employment affording a reasonable
expectation of long-term duration in the area in which the worker
wished to relocate; or
(ii) Has obtained a bona fide offer of such employment.
(E) Application.--The worker filed an application with the
Secretary before--
(i) The later of--
(I) The 425th day after the date of the certification under
subchapter A of this chapter; or
(II) The 425th day after the date of the worker's last total
separation; or
(ii) The date that is the 182nd day after the date on which the
worker concluded training, unless the worker received a waiver under
section 231(c).
(b) Amount of Allowance.--The relocation allowance granted to a
worker under subsection (a) includes--
(1) 90 percent of the reasonable and necessary expenses
(including, but not limited to, subsistence and transportation
expenses at levels not exceeding those allowable under section
235(b)(1) and (2) specified in regulations prescribed by the
Secretary, incurred in transporting the worker, the worker's family,
and household effects; and
(2) A lump sum equivalent to 3 times the worker's average weekly
wage, up to a maximum payment of $1,250.
(c) Limitations.--A relocation allowance may not be granted to a
worker unless--
(1) The relocation occurs within 182 days after the filing of
the application for relocation assistance; or
(2) The relocation occurs within 182 days after the conclusion
of training, if the worker entered a training program approved by
the Secretary under section 236(b)(1) and (2).''
Administration: Like the amendment to the job search section, the
amendment to the relocation section is simply a rewording of the
previous language, except that the one-time payment limit is raised to
$1,250. States shall continue to administer relocation allowances in
accordance with regulations published at 20 CFR 617.40 through 617.48,
except that ``$800'' found in section 617.45(a)(3) shall be interpreted
as ``$1,250,'' until those regulations are superseded by new
regulations.
H. Repeal of the NAFTA-TAA Program
Section 123 of the 2002 Act repeals subchapter D of chapter 2 of
title II of the 1974 Act, as amended. Section 123 also establishes
transition procedures that will be in effect for petitions filed before
the effective date of the 2002 Act and workers currently receiving
benefits and services under the NAFTA-TAA program.
H.1. Repeal of the NAFTA-TAA program
Statutory Change: Section 123(a) repeals the NAFTA-TAA program as
follows:
(a) In General.--Subchapter D of chapter 2 of title II of such
Act (19 U.S.C. 2331) is repealed.
Section 123(b) of the 2002 Act makes conforming amendments to other
parts of the 1974 Act as follows:
(b) Conforming Amendments.--
(1) Section 225(b)(1) and (2) of the Trade Act of 1974 (19
U.S.C. 2275(B)(1) and (2)) is amended by striking ``or subchapter
D'' each place it appears.
(2) Section 249A of such Act (19 U.S.C. 2322) is repealed.
(3) The table of contents of such Act is amended--
(A) By striking the item relating to section 249A; and
(B) By striking the items relating to subchapter D of chapter 2
of title II.
(4) Section 284(a) of such Act is amended by striking ``or
section 250(c)''
H.2. Transition Procedures
Section 123(c) of the 2002 Act establishes an effective date and
transition procedures as follows:
(c) Effective Date.--
(1) In General.--The amendments made by this section shall apply
with respect to petitions filed under chapter 2 of title II of the
Trade Act of 1974, on or after the date that is 90 days after the
date of enactment of this Act.
(2) Workers Certified As Eligible Before Effective Date.--
Notwithstanding subsection (a), a worker receiving benefits under
chapter 2 of title II of the Trade Act of 1974 shall continue to
receive (or be eligible to receive) benefits and services under
chapter 2 of title II of the Trade Act of 1974, as in effect on the
day before the amendments made by this section take effect under
subsection (a), for any week for which the worker meets the
eligibility requirements of such chapter 2 as in effect on such
date.
Administration: Sections 123(c)(1) and 123(c)(2) of the 2002 Act
set out the transition procedures for the NAFTA-TAA program. The
operating instructions for the NAFTA-TAA program that are contained in
General Administration Letter 7-94, along with changes 1, 2, and 3
thereto, continue in effect for petitions received by the State before
the effective date of the 2002 Act, which is November 4, 2002. The
Governor's agent that now receives NAFTA-TAA petitions must continue to
receive NAFTA-TAA petitions, and perform preliminary investigations
thereon, until the preliminary investigations are completed on all
NAFTA-TAA petitions received on or before November 3, 2002. The State
must immediately transmit all such petitions, and all information and
documentation gathered during the preliminary investigation, to DOL.
Any NAFTA-TAA petition received on or after November 4, 2002, is
invalid and must be returned to the petitioners with an explanation of
the provisions of the 2002 Act that make the petition invalid. The
State must also include a blank petition for the new TAA program in
case the petitioners want to file such a petition. This instruction
also applies to NAFTA-TAA petitions dated prior to November 4, 2002,
but received on or after that date; such petitions are not valid.
Eligible workers who are covered by NAFTA-TAA certifications
resulting from petitions received on or before November 3, 2002,
regardless of the date that such certifications are issued by DOL, must
receive benefits and services under the provisions of the NAFTA-TAA
program as in effect on November 3, 2002. Workers being served under
NAFTA-TAA certifications are not eligible for waivers under the new
waiver provisions established by the 2002 Act for the regular TAA
program. In order to be eligible for TRA, such workers are also
required to be enrolled in approved training by the end of the 16th
week after the worker's most recent qualifying separation, or the end
of the 6th week after the issuance of the certification, whichever is
later. The new enrollment deadlines in the 2002 Act do not apply to
such workers.
In fiscal years 2003 and 2004, there will continue to be a NAFTA-
TAA funding stream separate from the TAA funding stream. States must
continue to request funds from DOL for NAFTA-TAA benefits and services
separately from their requests for funds for TAA benefits and services.
I. Coordination With WIA
Statutory Change: Section 119 of the 2002 Act amends section 235 of
the 1974 Act as follows:
Section 235 of the Trade Act of 1974 (19 U.S.C. 2295) is amended
by inserting before the period at the end of the first sentence the
following: ``, including the services provided through one-stop
delivery systems described in section 134(c) of the Workforce
Investment Act of 1998 (29 U.S.C. 2864(c))''.
Statutory Change: Section 125 of the 2002 Act establishes a
Declaration of Policy by the Congress as follows:
(a) Declaration of Policy.--Congress reiterates that, under the
trade adjustment assistance program under chapter 2 of title II of
the Trade Act of 1974, workers are eligible for transportation,
childcare, and healthcare assistance, as well as other related
assistance under programs administered by the Department of Labor.
[[Page 69040]]
Administration: States shall make every reasonable effort to secure
for adversely-affected workers covered by certifications counseling,
testing, and placement services, and supportive and other services,
provided for under any other Federal law, including the Wagner-Peyser
Act and the WIA.
In the One-Stop environment established by WIA, the concept of co-
enrollment of trade-certified workers can be further enhanced and
expanded to include multiple enrollments with a broader range of
service delivery partners and programs. Multiple enrollment resources
may include Wagner-Peyser activities, faith-based and community-based
programs, vocational rehabilitation services, and veterans' programs.
The timely provision of core and intensive services to trade-
impacted workers is an important step toward improving both the
efficiency and the effectiveness of the Trade Act programs. Immediately
beginning the process of needs assessment improves participation rates
and allows individuals more time to consider all of the options
available to them. Early intervention services that will be beneficial
to trade-impacted workers may include orientation; initial assessment
of skill levels, aptitudes, and abilities; provision of labor market
information; job search assistance; and financial management workshops.
Properly implemented, co-enrollment or multiple-enrollment of
trade-impacted workers in the programs offered in the One-Stop
environment, as well as early provision of rapid response services,
will enhance the workers' adjustment process and promote the most rapid
possible return to employment for all workers. Co-enrollment or
multiple-enrollment also allows trade-impacted workers to receive
supportive services that may assist in a quicker transition to work.
J. Unamended Provisions of the 1974 Act
Many of the provisions of the 1974 Act remain unchanged; for
completeness, these are listed below, along with the citation from the
United States Code. Although not all of the provisions listed below are
administered by the States, States shall administer applicable
provisions according to the law and to regulations published at 20 CFR
617.
1. Section 221(b) (19 U.S.C. 2271(b)) which provides for public
hearings on petitions.
2. Section 222(b)(2) (19 U.S.C. 2272(b)(2)) which provides
special definitions for ``firm'' and ``directly competitive'' in
relation to oil and gas exploration and production.
3. Section 223 (19 U.S.C. 2273) is unchanged except for changing
``60 days'' to ``40 days''. This section contains definitions of
impact date and expiration date of a certification, along with
requirements to publish notices in the Federal Register.
4. Section 224 (19 U.S.C. 2274) relating to studies by the
Secretary whenever the U.S. International Trade Commission conducts
an investigation with respect to an industry.
5. Section 225 (19 U.S.C. 2275) containing the requirements for
notification to workers who are covered by certifications of
benefits and services that they may be eligible to receive.
6. Section 232 (19 U.S.C. 2292) covering the determination of
weekly amounts of TRA.
7. Section 234 (19 U.S.C. 2294) relating to the applicability of
State unemployment insurance laws.
8. Section 239 (19 U.S.C. 2311) relating to agreements with
States.
9. Section 240 (19 U.S.C. 2312) relating to program
administration absent an agreement with a State.
10. Section 241 (19 U.S.C. 2313) relating to payments to States.
11. Section 242 (19 U.S.C. 2314) relating to liabilities of
certifying and disbursing officers.
12. Section 243 (19 U.S.C. 2315) relating to fraud and recovery
of overpayments.
13. Section 244 (19 U.S.C. 2316) relating to penalties for false
statements and failure to disclose material facts.
14. Section 247 (19 U.S.C. 2319)--definitions.
15. Section 28 (19 U.S.C. 2320) relating to the Secretary's
authority to prescribe regulations.
16. Section 249 (19 U.S.C. 2321) relating to the Secretary's
subpoena power.
K. Program Reporting
Trade Act Participant Report (TAPR): The TAPR is unchanged.
States must continue to report TAPR data according to instructions
set forth in General Administration Letter 11-00.
Form ETA 563: Form ETA 563 is being revised; the new form will
be available early in calendar year 2003. For the quarters ending
September 30, 2002, and December 31, 2002, States must continue
reporting data on form ETA 563 according to the instructions
contained in ETA Handbook 315. New instructions will accompany the
revised form.
The 2002 Act requires that the States report to the Secretary on
each waiver and the reasons for issuing each waiver. Therefore,
States should expect a new reporting form along with the revised
form ETA 563. This reporting form will be very much like form ETA
9027, which was discontinued in 1997. This new form will also be
available early in calendar year 2003, accompanied by full
instructions.
L. Alternative Trade ADjustment Assistance for Older Workers
Section 124 of the 2002 Act strikes section 246 of the 1974 Act
and replaces it with a demonstration project for alternative trade
adjustment assistance for older workers. The statute allows the
Secretary up to one year from the date of enactment (August 6, 2002)
to establish the ATAA program. Therefore, these operating
instructions do not include instructions for administering the ATAA
program. However, for completeness and to give States some advance
notice of future developments, the general outlines of the ATAA
program are described below.
Petitioning workers must be given the opportunity to request
that they be considered for certification under the ATAA program. In
determining whether to certify a group of workers as eligible for
ATAA, the following criteria are to be used:
1. Whether a significant number of the workers at the workers'
firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that
are not easily transferable.
3. The competitive conditions within the workers' industry.
An individual worker who is covered by a certification for ATAA
must also satisfy all of the following individual qualifying
criteria:
1. The worker is covered under a regular TAA certification.
2. The worker has obtained reemployment not more than 26 weeks
after the date of the worker's separation from adversely-affected
employment.
3. The worker is at least 50 years of age.
4. The worker earns not more that $50,000 per year in wages from
reemployment.
5. The worker is employed on a full-time basis as defined by
State law of the State in which the worker is reemployed.
6. The worker does not return to the employment from which the
worker was separated.
Eligible workers who choose the benefits of ATAA may not receive
three of the regular TAA benefits and services--training, TRA, and
job search allowances. They may, however, receive relocation
allowances if suitable employment is not reasonably available in the
commuting area. Eligible workers who choose ATAA receive the
following benefits:
1. 50 percent of the difference between the wages the worker
receives from reemployment and the wages received by the worker at
separation from adversely-affected employment. This payment is
subject to the following limitaitons:
A. The payments may not be made for longer than two years.
B. The total of all payments may not exceed $10,000 during the
two-year eligibility period.
2. The health insurance tax credit, only for the period in which
the worker is participating in ATAA (not to exceed two years).
Further guidance and instructions for the ATAA program will be
transmitted to the States in the near future.
M. Health Insurance Tax Credit
Sections 201 and 202 of the 2002 Act establish a program of tax
credits for health insurance costs. This program will be implemented
through the cooperative efforts of the Department of Labor, the
Department of Health and Human Services, and the Department of the
Treasury (including the
[[Page 69041]]
Internal Revenue Service). Guidance and operating instructions for
the HITC program will be issued separately.
6. Action Required. States are required to implement the
amendments to the 1974 Act made by the 2002 Act and set forth in
these operating instructions as of the effective date, November 4,
2002. States shall inform all appropriate staff of the contents of
these instructions.
7. Inquiries. States should direct all inquiries to the
appropriate ETA Regional office.
8. Attachment. Subtitle A of Title I, and Title II, of the Trade
Act of 2002.\1\
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\1\ This attachment is available at the following Web site:
www.doleta.gov/tradeact/2002act_index.asp.
[FR Doc. 02-28932 Filed 11-13-02; 8:45 am]
BILLING CODE 4510-30-M