[Federal Register: October 13, 2004 (Volume 69, Number 197)]
[Notices]
[Page 60903-60904]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13oc04-83]
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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, Change 1
TEGL 11-02, Change 1 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, Change 1 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
states and cooperating SWAs may not vary from the operating
instructions in TEGL 11-02, Change 1 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
and TEGL 11-02, Change 1 constitute the controlling guidance for the
states and the cooperating SWAs in 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 operating instructions in TEGL 11-02,
Change 1 focus on further explanation of requirements relating to
eligibility deadlines and to the issuance of training waivers, and
supplement the guidance issued in TEGL 11-02.
Dated: October 6, 2004.
Emily Stover DeRocco,
Assistant Secretary for Training and Employment.
Training and Employment Guidance Letter No. 11-02, Change 1
To: All State Workforce Agencies, All State Workforce Liaisons,
All One-Stop Center System Leads.
From: Emily Stover DeRocco, Assistant Secretary.
Subject: Change 1 to the Operating Instructions for Implementing
the Amendments to the Trade Act of 1974 Enacted by the Trade Act of
2002.
1. Purpose. To provide guidance to State Workforce Agencies
(SWAs) on training deadlines, issuing waivers to the Trade
Adjustment Assistance (TAA) program training requirements, and
additional information on implementing the TAA Reform Act of 2002.
2. References. The Trade Act of 1974, as amended (Pub. L. 93-
618, as amended) (``the Trade Act''); the Trade Act of 2002 (Pub. L.
107-210) (``the 2002 amendments''); 20 CFR Part 617; Training and
Employment Guidance Letter (TEGL) No. 11-02 (October 10, 2002); TEGL
No. 20-02 (March 3, 2003); General Administration Letter (GAL) No.
7-94 (December 28, 1993); Unemployment Insurance Program Letter
(UIPL) No. 24-03 and No. 33-03. The 2002 amendments to the TAA
program are also known as the Trade Adjustment Assistance Reform Act
of 2002.
3. Clarification of Training Deadlines for Eligibility for Trade
Readjustment Allowances (TRA). The training deadlines requiring
clarification include the following:
``8/16 week deadline'' for enrolling in training.
45-day extension of the 8/16 week deadline for
extenuating circumstances.
210-day time limit for applying for training.
Section 114 of the 2002 amendments, which amended section
231(a)(5)(A) of the Trade Act, imposed a deadline by which a worker
must be enrolled in approved training, or have a waiver of this
requirement, in order to be eligible for TRA.
This deadline is either the last day of the 8th week after the
week of issuance of the certification of eligibility covering the
worker or the last day of the 16th week after the worker's most
recent total qualifying separation, whichever is later (commonly
referred to as the 8/16 week deadline). The ``8/16 week deadline''
applies to eligibility for all TRA, both basic and additional TRA.
If a worker fails to meet the applicable 8/16 week deadline, then
the worker is not eligible for any TRA (basic TRA or additional TRA,
including TRA for remedial training) under the relevant
certification. In many cases, the 8/16 week deadline for a worker
will be reached while the worker is still receiving unemployment
insurance (UI). Some workers are not aware that this deadline may
apply before they exhaust their UI. The SWA is responsible for
informing workers of these requirements. The SWA must also assist
such workers in enrolling in an approved training program prior to
the 8/16 week deadline, or issue the workers waivers prior to the 8/
16 week deadline, if appropriate.
Under certain extenuating circumstances, the 8/16 week deadline
for enrollment may be extended for up to 45 days. TEGL No. 11-02
explained the definition of ``extenuating circumstances.'' That
definition applies and includes situations that could arise, such as
when a worker has been enrolled in a training program that is
abruptly cancelled, where a worker suffers injury or illness that
adversely affects the worker's ability to enroll in a training
program, or other events where the states can justify and document
that the application of extenuating circumstances is warranted.
The 2002 amendments did not change the 210-day time limit
applicable to additional TRA. Additional TRA, beyond basic TRA, may
be paid to workers participating in approved training who meet all
TRA eligibility requirements, including the 210-day deadline. This
means, in order to be eligible for additional TRA, a worker must
have filed a bona fide application for training with the SWA within
210 days of either the issuance of the certification covering the
worker or the worker's most recent separation, whichever is later.
This 210-day deadline applies to additional TRA, but not to remedial
TRA that may be received by workers enrolled in remedial training.
SWAs should be mindful that the 210-day deadline may pass if a
worker has a long-term waiver of the training requirement. This
could happen if a worker (who lacks marketable skills) receives a
waiver due to lack of training funds. For example, if a worker
receives a waiver 16 weeks after the worker's most recent qualifying
separation and that waiver remains in effect for the maximum 26
weeks, then a total of 42 weeks (294 days) might pass without the
worker being required to be enrolled in approved training. If the
worker does not file a bona fide application for training with the
SWA during this 210-day period, then the worker is ineligible for
additional TRA. Therefore, SWA's are responsible for ensuring that
workers are informed of this deadline.
Issuance of a waiver before the 8/16 week deadline might occur
while the worker is still receiving UI. In these instances, workers
must meet the Extended Benefit work test requirement (except as
provided in 20 CFR 617.11 (a)(2)(vi)(B)) as a condition of TRA.
4. HCTC and Waivers. All workers covered by TAA or NAFTA-TAA
certified petitions who are receiving TRA, or would be receiving TRA
except they have not exhausted their UI, may be eligible for the
Health Coverage Tax Credit (HCTC) under the 2002 amendments. States
are responsible for identifying and transmitting the names of
[[Page 60904]]
those individuals to the Internal Revenue Service's HCTC Program
Office in accordance with instructions contained in UIPL No. 24-03.
The HCTC Program Office is ultimately responsible for determining
whether HCTC-eligible TAA recipients meet all other qualifying
criteria for receipt of the HCTC.
If a worker is still on UI and seeking the HCTC, actions must be
taken to ensure that all criteria for TRA eligibility are met as
described in TEGL No. 11-02, including that the worker is enrolled
in an approved training program, has completed an approved training
program, or has received a written waiver of the training
requirement.
A preliminary assessment of each trade affected worker's skills
must be carried out to identify workers for whom immediate
enrollment in training is appropriate. Except where such an
assessment of a worker clearly indicates a need to enroll in
training immediately, the Department of Labor believes it would
generally be appropriate to approve a waiver request under the
marketable skills condition if such a determination is made shortly
after separation and the worker qualifies for such a waiver. This
waiver would allow some period of job search and avoid removing some
workers prematurely from the labor force and investing training
resources that may not be necessary to helping a worker obtain
reemployment. All waivers must be reevaluated every 30 days for the
duration of the waiver period. If the waiver is issued on the basis
of marketable skills, the reevaluation will take into account the
reasons the individual has been unable to obtain employment during
the job search. If the difficulty finding work is attributed to
skill deficiencies, it may be appropriate to revoke the waiver and
immediately enroll the worker in training.
It should be emphasized that waivers are not permitted under the
NAFTA-TAA program. Therefore, workers covered by a NAFTA-TAA
certification may only qualify for HCTC if the worker is receiving
TRA or if the worker is enrolled in an approved training program, or
has completed an approved training program, while still receiving UI
and while satisfying the other TRA eligibility criteria found at 20
CFR 617.11.
5. Extension of Waivers Beyond Six Months. The discussion in
sections 3 and 4 above cover cases that may require a determination
on whether to issue a waiver of the training requirement before a
worker's UI entitlement has expired. The TAA Reform Act of 2002
specifically limits the maximum duration of a waiver to six months,
unless the Secretary determines otherwise (section 231(c)(2)(A) of
the Trade Act). In the absence of such a determination by the
Secretary, a waiver issued during a worker's UI period often will
not cover the worker's entire entitlement to basic TRA. For example,
a six-month waiver could expire before all UI is exhausted and basic
TRA begins for a worker who receives a waiver in order to establish
HCTC eligibility. This can occur when a worker is granted a six-
month waiver eight weeks after separation from employment. Such a
waiver could expire one month before maximum entitlement to UI
compensation (for example, 26 weeks of UI and 13 weeks of Temporary
Extended Unemployment Compensation (TEUC) and basic TRA (13 weeks)
are exhausted).
The Department interprets the wording of section 231(c)(2)(A) to
cover cases in which it may be necessary to issue a waiver to a
worker before the worker actually begins to receive basic TRA.
Therefore, the Department has determined that a state may extend a
worker's waiver beyond six months in any case where it is necessary
to cover the worker's full entitlement to basic TRA.
6. Action Required. 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.
[FR Doc. 04-22919 Filed 10-12-04; 8:45 am]
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