[Federal Register: August 25, 2006 (Volume 71, Number 165)]
[Proposed Rules]
[Page 50759-50832]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au06-28]
[[Page 50759]]
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Part IV
Department of Labor
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Employment and Training Administration
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20 CFR Parts 617, 618, 665, and 671
Trade Adjustment Assistance for Workers, Workforce Investment Act;
Amendment of Regulations; Proposed Rule
[[Page 50760]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 617, 618, 665, 671
RIN 1205-AB32
Trade Adjustment Assistance for Workers, Workforce Investment
Act; Amendment of Regulations
AGENCY: Employment and Training Administration, Labor.
ACTION: Notice of Proposed Rule Making (NPRM).
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SUMMARY: On August 6, 2002, President Bush signed into law the Trade
Adjustment Assistance Reform Act of 2002 (the Reform Act), which
amended the Trade Act of 1974, as amended (Act or Trade Act). The
Reform Act reauthorized the Trade Adjustment Assistance (TAA) program
through fiscal year 2007 and made significant amendments to the TAA
program, which generally took effect on November 4, 2002. The
Employment and Training Administration (ETA) of the United States
Department of Labor (Department or DOL) is publishing this proposed
rule to implement the amended TAA program.
DATES: The Department invites written comments on this proposal.
Comments must be submitted by October 24, 2006.
ADDRESSES: You may submit written comments, identified by the proposed
rule's Regulatory Identification Number (RIN) 1205-AB32, on the
proposed rules by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: regulations.TAA@dol.gov. Include RIN 1205-AB32 in
the subject line of the message. Your comment must be in the body of
the e-mail message; do not send attached files.
Fax: (202) 693-3584 (this is not a toll-free number). Only
comments of ten or fewer pages (including a Fax cover sheet and
attachments, if any) will be accepted by Fax.
Mail: Submit comments (preferably with three copies) to
Erica Cantor, Director, Division of Trade Adjustment Assistance, ETA,
U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW.,
Washington, DC 20210. Because of security-related concerns, there may
be a significant delay in the receipt of submissions by United States
Mail. You must take this into consideration when preparing to meet the
deadline for submitting comments.
Instructions: All submissions received must include the agency name
and the RIN for this rulemaking: RIN 1205-AB32. If commenters transmit
comments by Fax or through the Internet and also submit a hard copy by
mail, please indicate that it is a duplicate copy of the Fax or
Internet transmission.
All comments will be available for public inspection and copying
during normal business hours at the Division of Trade Adjustment
Assistance, ETA, U.S. Department of Labor, 200 Constitution Avenue,
NW., Room C-5311, Washington, DC 20210. Copies of the proposed rule are
available in alternative formats of large print and electronic file on
computer disk, which may be obtained at the above-stated address. The
proposed rule is available on the Internet at the Web address http://www.doleta.gov
.
FOR FURTHER INFORMATION CONTACT: Erica Cantor, Director, Division of
Trade Adjustment Assistance, ETA, U.S. Department of Labor, 200
Constitution Avenue, NW., Room C-5311, Washington, DC 20210. Telephone:
(202) 693-3560 (voice) (this is not a toll-free number); 1-800-326-2577
(TDD); facsimile: (202) 693-3584; e-mail: regulations.TAA@dol.gov.
SUPPLEMENTARY INFORMATION: The Reform Act expanded the scope of the TAA
program and increased benefit amounts available under that program,
repealed the North American Free Trade Agreement Transitional
Adjustment Assistance (NAFTA-TAA) program, provided a health coverage
tax credit (HCTC) administered by the Internal Revenue Service (IRS) to
subsidize private health insurance costs for qualified workers, and
enacted a pilot program for Alternative Trade Adjustment Assistance for
older workers (ATAA). These amendments were designed to augment and
improve the delivery of benefits and services to certain workers
adversely affected by foreign trade.
To incorporate into regulations the substantial changes to the TAA
program, including the introduction of ATAA, the Department proposes
creating a new 20 CFR Part 618. The proposed Part 618 consists of nine
subparts: subpart A--General; subpart B--Petitions and Determinations
of Eligibility to Apply for Trade Adjustment Assistance [Reserved];
subpart C--Delivery of Services through the One-Stop Delivery System;
subpart D--Job Search Allowances; subpart E-Relocation Allowances;
subpart F--Training Services; subpart G--Trade Readjustment Allowances
(TRA); subpart H--Administration by Applicable State Agencies; and
subpart I--Alternative Trade Adjustment Assistance for Older Workers
[Reserved]. Because of the complexity of the subject matter and the
States' need for definitive instructions on providing TAA benefits, the
rulemaking for Part 618 is divided into three parts. This Notice of
Proposed Rulemaking covers the general provisions (subpart A) and TAA
benefits portions (subpart C through subpart H) of the regulations.
Separate notices of proposed rulemaking (RIN 1205-AB40 covering subpart
I and RIN 1205-AB44 covering Subpart B) will be published at a later
date.
Consistent with the Reform Act, the Department proposes that the
TAA regulations codified at 20 CFR Part 617 be amended to apply only to
adversely affected workers whose certifications of eligibility to apply
for TAA are based on petitions filed before the effective date of the
amendments, whether the certifications were issued before or after that
date. However, eligible workers covered by Part 617 will be able to use
the HCTC, and the Department proposes to amend Part 617 to require the
States to advise adversely affected workers covered by that Part of the
qualifying requirements for the HCTC and related health insurance
assistance. The Department also proposes revising the regulations
governing Statewide Workforce Investment Activities, and National
Emergency Grants, 20 CFR Parts 665 and 671, respectively. These
revisions will incorporate into the Workforce Investment Act of 1998
(WIA) regulations the new statutory requirement that States provide
rapid response assistance to workers as soon as they have filed
petitions, or petitions have been filed on their behalf, for
certification of eligibility to apply for TAA. A new section will be
added to Part 671 to incorporate the new statutory authority for the
use of funds made available under WIA to make grants to provide health
insurance coverage assistance to certain adversely affected workers
under the Trade Act and others.
This preamble is divided into five sections. Section I provides
general background information on the TAA program. Section II describes
the changes that the Reform Act made to the TAA program. Section III
discusses the Department's guiding principles for implementing reform
of the TAA program through the proposed rule. Section IV discusses the
proposed rule. Section V discusses administrative requirements for this
proposed rulemaking, as mandated by statute and executive order.
[[Page 50761]]
I. Background
The Reform Act amended chapter 2 of title II of the Trade Act of
1974 (Pub. L. 93-618), as amended. The TAA program, established by the
Act in 1974 to provide improved assistance for workers injured or
threatened with injury from increased imports, was changed extensively
by amendments in 1981 (title XXV of Pub. L. 97-35), 1984 (sections 2671
and 2672 of Pub. L. 98-369), 1986 (Part 1 of subtitle A of title XIII
of Pub. L. 99-272), 1988 (Part 3 of subtitle D of title I of Pub. L.
100-418), and 1993 (section 506 of Pub. L. 103-182).
Before the TAA program's most recent amendment in August 2002, the
Department conducted a fact-finding investigation in response to its
receipt of a petition for TAA from a group of workers (or their
representative). If the investigation resulted in the finding that a
group of workers of a firm (or subdivision) had been adversely affected
by import competition, then an ETA certifying officer issued a
certification stating that workers in the identified worker group were
eligible to apply for TAA benefits with the Cooperating State Agency
(CSA).
Then, as now, State agencies administered the TAA program as agents
of the federal government through agreements signed by the Secretary
and Governors of the States. State agencies notified certified workers
of potential TAA benefits and services, made eligibility determinations
for individuals, and delivered benefits and services. Individual
workers who were members of the certified worker group applied for
benefits and services at a local office of the State's One-Stop
delivery system.
Individual workers who met the qualifying criteria could receive up
to 104 weeks of job training, generally up to 52 weeks 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 were eligible for basic reemployment services,
including assistance in writing resumes, job referrals, and
participation in job clubs.
On December 8, 1993, the President signed into law the NAFTA
Implementation Act of 1993, which created the NAFTA-TAA program
(section 250 of subchapter D of chapter 2 of title II of the 1974 Act).
Certifications of worker groups under the NAFTA-TAA program were made
only if imports from Canada and/or Mexico caused the import impact, or
if the workers' firm shifted production of an article to either Canada
or Mexico. Workers (or their representatives) filed petitions with the
Governor of the State in which they were employed, not directly with
the Department. The State performed a preliminary investigation upon
receipt of a NAFTA-TAA petition. If the workers appeared to be impacted
by imports from Canada or Mexico or a shift of production to Canada or
Mexico and the firm's (or subdivision's) sales or production decreased
absolutely, then the State undertook rapid response activities under
WIA. The State transmitted all information gathered in its preliminary
investigation to DOL, which issued the final determination on whether
to certify the group of workers as eligible to apply for NAFTA-TAA
benefits. In order to qualify for TRA, a worker certified under the
NAFTA-TAA program had to be enrolled in approved training within
specific time limits; no waivers from this requirement were allowed.
However, the TAA program allowed waivers of ``basic'' TRA (i.e., the
first 26 weeks of TRA) if training was ``not feasible or appropriate''
for the worker.
As part of its passage of the NAFTA Implementation Act, Congress
approved the Administration's Statement of Administrative Action (SAA).
NAFTA, H.R. Doc. No. 103-159, vol. 1, at 10 (1993). The SAA committed
the Department to provide assistance under the Job Training Partnership
Act (and, after the repeal of that act, under WIA) to ``secondary''
workers who lost their jobs as a result of the loss of business with a
primary firm that was directly affected by imports, but who were not
directly impacted by trade with Canada or Mexico. See id. at 450
(1993). Workers would receive assistance if their firm supplied
components to, or performed finishing operations for, a firm that was
directly impacted by trade with Canada or Mexico. These ``secondary
workers'' either filed a petition for certification under both the TAA
program and the NAFTA-TAA program or filed a petition just under the
NAFTA-TAA program. The Department initiated an investigation into their
eligibility under the SAA if their certification was denied following
the investigation of a NAFTA-TAA petition. The Department determined
whether the worker group was impacted indirectly or ``secondarily'' by
imports from Canada and/or Mexico or a shift of production to Canada or
Mexico. If the Department made an affirmative determination, then
workers in the group were eligible to apply for benefits and services
delivered through the dislocated worker program, even though they did
not qualify for assistance under the NAFTA-TAA program.
II. How the Reform Act Changed the TAA Program
The TAA program has been a required partner in the workforce
investment system since the enactment of WIA in 1998. The Reform Act
expressly directed the Secretary and the States to coordinate the TAA
program with the workforce investment system created under WIA to help
adversely affected workers return to the workforce as quickly as
possible.
The Reform Act expanded the coverage of the TAA program and
increased the benefits provided to adversely affected workers, in part
by consolidating the TAA program and the NAFTA-TAA program. As a
result, there is a uniform set of requirements that replaces the often
different and confusing sets of rules and procedures that applied to
the two programs when they were separate. Before the enactment of the
Reform Act, only workers whose firms (or subdivisions) were directly
affected by increased imports could be certified as eligible to apply
for TAA. Eligibility requirements for the NAFTA-TAA program were more
inclusive. Workers whose firms (or subdivision) were directly affected
by either increased imports from or a shift in production to Mexico or
Canada of an article that is like or directly competitive with the
article their firm (or subdivision) produced could be certified as
eligible to apply for NAFTA-TAA benefits. The Reform Act expanded
eligibility even further by retaining the TAA program's eligibility for
workers who were directly affected by increased imports from any
country and adding provisions to include workers who lose their jobs
when their firms (or subdivisions) shifted production to: a country
that is a party to a free trade agreement with the United States (such
as, but not limited to, NAFTA); a country that is a beneficiary under
certain specified legislation enacted by Congress involving trade
relations; or to any other foreign country when there has been or there
is likely to be an increase in imports of articles that are like or
directly competitive with the articles produced by their firm (or
subdivision).
In addition, the Reform Act expanded TAA program eligibility to
include two categories of secondary workers in the stream of commerce:
those who perform work upstream in the production of a trade-impacted
article and those who perform work downstream in that production. The
first category covers workers who perform activities for a
[[Page 50762]]
firm (or subdivision of a firm) that supplies component parts for the
article produced by a ``primary firm'' (i.e., a firm that employed a
certified group of workers). The Act requires that, if a significant
number or proportion of such secondary workers have been separated (or
threatened with separation), then they will be certified as eligible to
apply for TAA if either the component parts sold to the primary firm
constituted at least 20 percent of the sales of the supplier, or the
loss of business with the primary firm contributed importantly to the
loss of jobs at the supplying firm.
The second category of secondary workers includes workers employed
by ``downstream producers,'' defined as firms (or subdivisions)
providing additional, value-added production processes, such as
finishers or final assemblers of articles produced by a primary firm.
These workers will be certified as eligible to apply for TAA when:
workers of the primary firm were TAA-certified due to increased imports
from or shifts in production to Mexico or Canada of the articles that
were the basis for the TAA certification; a significant number or
proportion of the workers in the secondary workers' firm (or applicable
subdivision) were separated or threatened with separation; and the
secondary workers' firm's (or subdivision's) loss of business from the
primary firm (or appropriate subdivision) contributed importantly to
their separation (or threatened separation). Both the upstream
``supplier'' and the ``downstream producer'' categories of secondary
workers, although not covered by the NAFTA-TAA program, may have been
eligible under the SAA to receive adjustment assistance initially
through the Job Training Partnership Act and later through WIA.
The Reform Act made a number of changes in administrative
requirements under the TAA program. One-Stop operators, One-Stop
partners, including certain State agencies as well as employers of
workers, are specifically added to the categories of entities who may
file a petition, though previously these entities could have filed
petitions only if they were duly authorized representatives of a group
of workers. To inform workers more quickly of the availability of
assistance and to facilitate reemployment, rapid response assistance
under WIA is now triggered by the concurrent submission of a petition
to the Governor and the Secretary. The Department must now make a
determination on whether a petition for certification meets the
approval criteria within 40 days instead of 60 days from the date of
filing of the petition.
To promote adjustment and accelerate reemployment, the Reform Act
provides that eligibility for TRA, which is additional income support
after unemployment insurance (UI) is exhausted, will be contingent on a
worker's enrollment in training not later than 16 weeks after
separation from employment or 8 weeks after the petition for
eligibility has been approved, whichever date is later. In extenuating
circumstances, these deadlines for enrollment in training may be
extended up to 45 days; and a waiver of the enrollment in training
requirement to receive basic TRA may be issued only under limited and
specified conditions. The Reform Act also increased the length of time
that TRA is available to an adversely affected worker who is in
training by increasing the availability of ``additional'' TRA from 26
to 52 weeks and by further adding up to 26 additional weeks of TRA if a
worker is enrolled in a course of remedial education. The primary
purpose of this extended income support is to minimize workers'
financial hardship until they complete training. By requiring that
workers expeditiously enroll in training as a condition of receiving
TRA, the Reform Act amendments provide that workers will be more likely
to complete the training within the duration of that income support.
The Reform Act also established ATAA, a pilot program designed to
encourage the rapid reemployment of workers aged 50 or older.
Petitioners seeking ATAA certification for a group of workers on whose
behalf TAA certification is sought should make their request on the TAA
petition form they submit to the Department. In determining whether to
certify a group of workers as eligible to apply for ATAA, the following
criteria must be considered: (1) Whether a significant number of
workers in 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; and (3) the competitive conditions within the workers'
industry.
A qualified worker in a group certified as eligible to apply for
ATAA may choose to receive payments of 50 percent of the difference
between their pre-layoff wages and their reemployment wages in lieu of
all other benefits available under the TAA program except the HCTC. A
worker may receive payments for up to a two-year period, but the
maximum amount paid may not exceed $10,000. In order to qualify, a
worker must be at least 50 years of age, become reemployed within 26
weeks of separation, and be reemployed at annual wages of less than
$50,000 in a full-time job that is not the job from which he or she was
laid off. The termination date for ATAA is August 6, 2008, five years
after the date of its implementation. However, participants may
continue to receive the balance of the payments for which they were
eligible after the termination date.
The Reform Act amended the Internal Revenue Code (IRC) to authorize
the HCTC for certain eligible individuals in the new and old TAA
programs and in the NAFTA-TAA program. The Reform Act added a new
section 35 to the IRC, establishing the HCTC which is a tax credit
covering 65 percent of the cost paid by the individual for coverage of
the individual and the individual's qualified family members under
qualified health insurance. Potentially eligible individuals fall into
three groups: (1) ``eligible TAA recipients,'' meaning individuals who
are receiving TRA or who would be eligible to receive TRA if they had
exhausted their UI; (2) ``eligible alternative TAA recipients,''
meaning individuals who are receiving a benefit under the ATAA program;
and (3) ``eligible PBGC pension recipients,'' meaning individuals who
are at least age 55 and receiving pension benefits paid, at least in
part, by the Pension Benefit Guaranty Corporation (PBGC). The credit
has been available on an advance basis since August 1, 2003. With
respect to advance payments of the credit, the Reform Act requires the
Secretary of Labor to certify an individual as an eligible TAA
recipient, eligible ATAA recipient, or eligible PBGC pension recipient
to enable potentially eligible recipients to seek the credit from the
IRS. The IRS then determines whether the other HCTC eligibility
criteria have been met. The Department is coordinating administration
of this responsibility and other aspects of the HCTC with the
Department of the Treasury, the Department of Health and Human
Services, the PBGC, and the CSAs administering the TAA program.
The Reform Act also added two new aspects to the National Emergency
Grant (NEG) program administered by the DOL under WIA to assist the
States in providing health insurance coverage assistance to eligible
individuals. One type of NEG is available primarily to provide health
insurance coverage assistance to eligible individuals and to pay the
administrative and startup costs of enrolling such individuals, which
includes the processing of the eligibility certificates necessary for
the tax credit. The other type of NEG is available
[[Page 50763]]
primarily to provide interim health insurance coverage assistance and
supportive services (such as transportation, child and dependent care,
and income assistance) to individuals eligible for the tax credit,
including eligible TAA recipients under the old TAA and NAFTA-TAA
programs.
The Reform Act also amended the Employee Retirement Income Security
Act, the Public Health Service Act, and the IRC to allow a temporary
60-day extension of the period during which individuals who are ``TAA-
eligible recipients'' may elect Consolidated Omnibus Budget
Reconciliation Act (COBRA) continuation coverage under the layoff
employer's health insurance plan. The temporary extension provided
under the Reform Act begins on the day the individual first meets the
TAA eligibility requirements. The TAA-eligible worker must elect to
receive the temporary extension within six months after the date of the
TAA-related loss of coverage, which the statute defines as the loss of
health benefits coverage associated with the separation of the TAA-
eligible individual from employment. If a worker elects to receive the
extension, then either the tax credit or the NEG would be available to
assist the worker to make the payments for the continuation coverage.
Aspects of the tax credit that are administered by the Internal
Revenue Service and the Department of the Treasury are not addressed in
the proposed regulations. However, the Department proposes amendments
to WIA regulations at 20 CFR Part 671 to reflect the new tax credit-
related changes to the NEG programs. Funds made available to States
under WIA section 174 will be used to provide health insurance coverage
assistance to eligible TAA recipients, eligible ATAA recipients and
eligible PBGC pension recipients under WIA section 173(f) and (g).
The Reform Act also created a separate TAA for Farmers program.
Eligibility determinations for that program are the responsibility of
the Secretary of Agriculture. Agricultural commodity producers entitled
to cash benefits under that program are entitled to the same basic
reemployment services and training as other workers covered by the TAA
program, but they may not receive TRA, job search or relocation
allowances, or the HCTC. The Department of Labor provides funding for
the employment services and the Secretary of Agriculture oversees the
payment of cash assistance (up to $10,000 per year) provided to
eligible agricultural commodity producers under the Department of
Agriculture's certification. The Secretary of Agriculture issued
regulations implementing the Department of Agriculture's function in
the TAA for Farmers program on August 20, 2003 (68 FR 50048) and
November 1, 2004 (69 FR 63317-01).
III. Guiding Principles for the TAA Program Under Proposed 20 CFR Part
618
The Secretary seeks to ensure that States use effective strategies
to assist adversely affected workers in rapidly obtaining sustainable
employment through the operation of the TAA program and the
demonstration ATAA program for older workers. State agencies must
increase their focus on early intervention, upfront assessment and
reemployment services for adversely affected workers. The initiation of
rapid response activities upon the filing of a petition for
certification of eligibility to apply for TAA allows State agencies the
opportunity to provide workers with early assessment and identification
of their marketable skills. A CSA's first priority should be to provide
job search assistance and other reemployment services to improve the
likelihood of these workers obtaining sustainable employment quickly.
Where training is appropriate, it should be designed to return the
worker to employment as quickly as is consistent with the worker's
training goals.
Career centers in the One-Stop delivery system will become the main
point of participant intake and delivery of benefits and services by
the States. This approach encourages coordination among workforce
investment and other One-Stop partner programs including the TAA
program, which will better serve workers and promote efficiencies in
the workforce investment system.
Fiscal integrity and performance accountability will be monitored
to ensure that the money allocated for TAA and ATAA is used to assist
workers and thereby strengthen the economy. Improved participant
outcome measures for the program will assist the Department and the
States in reaching these goals.
IV. Summary and Discussion of Regulatory Provisions
The rules proposed in this NPRM, covering TAA program benefits and
administration, are based largely on the current regulations codified
at 20 CFR Part 617 (Trade Adjustment Assistance for Workers under the
Trade Act of 1974). The proposed Part 618 regulations also incorporate
amendments to the TAA program effectuated by the Reform Act, and
simplify the language adopted from the current regulations in
compliance with the Presidential directive that Federal agencies write
new regulations in plain language (63 FR 31885, June 10, 1998). In
accordance with the Reform Act, the claims of workers covered by
petitions filed before November 4, 2002 continue to be governed by the
rules of the TAA and NAFTA-TAA programs prior to that date. These rules
will continue to be codified at 20 CFR Part 617. In addition, the
NAFTA-TAA operating instructions previously issued by DOL, General
Administrative Letter No. 7-94 (59 FR 3871, January 27, 1994) and
changes 1, 2, and 3 (69 FR 60898, October 13, 2004; 69 FR 67963-03,
November 22, 2004) will continue to apply to eligible participants of
the TAA and NAFTA-TAA programs until superseded by these regulations.
The proposed amendments to 20 CFR Part 617 and to the WIA
regulations, codified at 20 CFR Parts 665 and 671, respectively,
reflect both the Reform Act requirements for coordination between the
workforce investment system and the TAA program and changes to the NEG
program relating to the HCTC.
Part 617--Trade Adjustment Assistance Under the Trade Act of 1974 for
Workers Certified Under Petitions Filed Before November 4, 2002
The proposed revisions to Part 617 include changing the title to
clearly identify that this Part applies only to workers certified as
eligible to apply for trade adjustment assistance under petitions filed
before the Reform Act changed the TAA program. Proposed Sec. 617.1
amends this section to provide further clarification that the
provisions for TAA assistance under this Part 617 will continue to
apply after the effective date of Part 618 only to adjustment
assistance, TRA, and other allowances available to adversely affected
workers covered by certifications issued under petitions filed with the
Secretary before November 4, 2002, the effective date of the Reform Act
amendments to the TAA programs. Proposed Sec. 617.10 adds a new
paragraph (e) to that section to require CSAs to advise adversely
affected workers subject to the requirements of the TAA program in
effect before November 4, 2002 of the qualifying requirements for the
health coverage tax credit (HCTC) and related health insurance
assistance established by the Reform Act.
[[Page 50764]]
Part 618--Trade Adjustment Assistance Under the Trade Act of 1974 for
Workers Certified Under Petitions Filed After November 3, 2002.
Subpart A--General
Subpart A describes the TAA program and the contents of all the
subparts. In addition, it defines all relevant terms used in other
subparts. (Several definitions related to subpart B (Petitions and
Determinations of Eligibility to Apply for Trade Adjustment Assistance)
are held in reserve for publication with subpart B.) Several
definitions have been modified and simplified to clarify their
meanings, or eliminated in response to statutory changes in the TAA
program. In addition, definitions of new terms have been added to
describe the amended TAA programs, including the new ATAA program. Use
of these definitions in the NPRM is intended to facilitate the
integration of the TAA programs into the One-Stop system under the WIA
and to describe and implement new concepts introduced into the TAA
programs by the Reform Act, such as the HCTC. Major changes include:
The goal of the program has been defined as providing
workers, so as quickly as possible, with assistance to return them to
work that will use the highest skill levels and pay the highest wages
given the workers' preexisting skill levels and education and the
condition of the labor market.
The definition of adversely affected worker has been
clarified to include the owner of a small business adversely affected
by foreign trade.
A new definition of customized training has been added.
Definitions necessary for HCTC processing have been added.
Proposed Sec. 618.100 describes the purpose of the program, which
the Department, based on past experience, has modified to reflect
achievable outcomes for a worker. Under the current statement of
purpose at 20 CFR 617.2, the stated goal of the TAA program is to
return workers to suitable employment as quickly as possible. In this
context, ``suitable employment'' means that after the worker received
services under the TAA program, the worker would be re-employed at 80
percent of his or her former salary. While that goal has not changed,
the Department has revised the wording of the goal to make it clear
that finding ``suitable employment'' is a goal, not a requirement of
the Act.
Although the ``suitable employment'' standard is a worthy goal, and
one that the Department intends to continue to pursue, it is merely a
goal and not a program requirement. Unfortunately, there are situations
in which workers may be unable to obtain ``suitable employment'' either
in the local labor market or as a result of training. This may occur
because the workers are experienced workers for whom few jobs at their
former wages are available, because of a depressed local labor market
in which there are few available jobs, or because the workers have
substantial barriers to reemployment. These factors significantly
constrain the training opportunities that are available for these
workers, and therefore, their employment prospects as well. Yet
providing training, especially in a stagnant labor market, may
significantly increase a worker's chances for obtaining a decent job
with career advancement prospects or of succeeding in the labor market.
The Department's goal is to provide the best possible outcome for
each worker participating in the program. Therefore, the Department is
committed to providing training that will allow a worker to compete for
the highest paying employment achievable given the worker's pre-
existing skills, abilities, and education, and the current job market.
The proposed purpose section accurately reflects the Department's goal.
Proposed Sec. 618.105 sets forth the effective dates for various
aspects of the TAA program, the ATAA program, and HCTC, as provided by
the Reform Act. Until these regulations at Part 618 take effect,
Training and Employment Guidance Letter (TEGL) No. 11-02 and its
changes will continue to govern determinations on certifications and
benefits for workers covered under petitions filed after November 3,
2002. Similarly, TEGL No. 2-03, and its changes, continue to govern
determinations on ATAA certifications and benefits made before the
effective date of this Part 618. Part 617 will continue to apply to the
operational and benefit provisions of the TAA program for petitions
filed before November 4, 2002 and certifications granted under those
petitions. General Administrative Letter (GAL) No. 7-94 (59 FR 3871,
January 27, 1994) and its changes (69 FR 60898-60903, October 13, 2004)
continue to apply to NAFTA-TAA petitions filed before November 4, 2002,
even when determinations on those petitions are issued after that date.
The terms defined in proposed Sec. 618.110 apply to both the
petition process and the benefit provisions of the TAA program. They
derive from six basic sources: the Act prior to the Reform Act
amendments, the Reform Act, 20 CFR Part 617, 29 CFR Part 90, the WIA
and its implementing regulations at 29 CFR Part 652, et seq. Several
definitions used in 20 CFR Part 617 and 29 CFR Part 90 have been
modified and simplified to clarify their meanings, amended to reflect
current TAA statutory language or eliminated in response to TAA
statutory changes.
The particular definitions are explained as they appear in this
section, in alphabetical order, as follows.
Act--The citation for the Trade Act in the proposed definition is
updated from the citations in 29 CFR Part 90 and 20 CFR 617.3(a) to
include all amendments to the Act through the date of publication of
this notice.
Additional compensation--This proposed term was included in the
description of unemployment compensation in 20 CFR 617.3(oo). The
proposed definition of this term is the same as Sec. 617.3(oo)(2).
Adversely affected employment--This proposed definition is based on
the statutory definition, which was codified in 20 CFR 617.3(a), and,
although the definition has been revised for clarity, no substantive
change from that definition is intended.
Adversely affected worker--This proposed definition modifies the
definition in 20 CFR 617.3(c) to clarify the Department's
interpretation of this statutory term. Under this proposed definition,
an employer may be considered an adversely affected worker when the
employer is also an employee of a business that closes or experiences a
reduction in operation. In this circumstance, if the employer becomes
totally or partially separated from his or her employment, the employer
is an ``adversely affected worker.'' The proposed definition also
changes the definition in 20 CFR 617.3(c) to include the applicable
periods during which the worker's separation must occur in order for
that worker to be eligible to apply for TAA, or TAA and ATAA: the
period from the impact date to two years after the date on which the
certification is signed or earlier if the certification is terminated
before it expires after two years.
Agent State--This proposed definition is substantively unchanged
from the definition and description of agent State codified in 20 CFR
617.3(aa)(2) and 617.16(e).
Alternative Trade Adjustment Assistance, Alternative TAA or ATAA--
This proposed term refers to the assistance provided under the
demonstration program introduced by the Reform Act to provide an
alternate path for adversely affected workers over the age of 50 years
to elect to receive benefits under the Act, as discussed in
[[Page 50765]]
subpart I (reserved for publication at a later date).
Applicable State law--This proposed definition is substantially the
same as in 20 CFR 617.16. The wording has been changed slightly to make
the definition more easily understood, and the separate paragraph
addressing adversely affected workers entitled to UI under the Railroad
Unemployment Insurance Act (RRUI) has been dropped because it is
duplicative of paragraph (a)(2) of this definition in 20 CFR 617.16,
which also applies to adversely affected workers entitled to UI under
the RRUI.
Average weekly hours--This proposed definition is the same as in 20
CFR 617.3(e).
Average weekly wage--This proposed definition is substantively the
same as in 20 CFR 617.3(f). However, it replaces the phrase ``the
individual's appropriate week'' with the phrase ``the week in which the
individual's first separation occurred.'' This change eliminates the
definition of ``appropriate week,'' which was referenced only one time
in the definition of ``average weekly wage'' at 20 CFR 617.3(f).
Therefore, the Department proposes to remove the term ``appropriate
week,'' as defined at 20 CFR 617.3(d), from this proposed Part 618.
This definition otherwise did not change substantively.
Benefit period--This proposed definition is the same as in 20 CFR
617.3(h).
Bona fide application for training--This proposed definition is the
same as the definition in 20 CFR 617.3(i), except that it no longer
includes the direction to the CSA that the form must be signed and
dated upon receipt and the form used is not required to contain the
local office number of the CSA. Instead, proposed Sec. 618.605(b)(2)
directs a representative of the CSA to sign and date the application
upon receipt. Access to CSAs and their contact information via
telephone directories and information assistance and the Internet
obviates the need for a bona fide application for training to contain
the local office telephone number, which may soon be outdated.
Certification--This proposed definition modifies the definition in
Sec. 617.3(j)(1) to include a reference to ATAA. The procedures for
obtaining a certification will be described in the proposed subpart B
[reserved].
Certification period--This proposed definition is the same as in 20
CFR 617.3(j)(2).
Certifying officer--This proposed definition is updated from the
definition in 20 CFR Part 617 by changing ``Office'' to ``Division''
and ``Part 90'' to ``Part 618.''
Co-enrollment--This proposed term refers to an individual who is
participating in a TAA program and is also enrolled in another program
administered through a State's WIA One-Stop delivery system.
Commuting area--This proposed definition is the same as in 20 CFR
617.3(k).
Confidential business information--This proposed definition
replaces the definition at 29 CFR 90.33(a), and provides a more precise
statutory basis, under the Trade Secrets Act, 18 U.S.C. 1905, for
withholding from disclosure commercial and financial data received by
the Department during its investigation of petitions for certification
of worker eligibility to apply for TAA, or TAA and ATAA. Section
90.33(a) identifies the Freedom of Information Act, 5 U.S.C. 552
(FOIA), and the Department's regulations implementing FOIA, 29 CFR Part
70, as the bases for designating confidential commercial information as
``privileged or confidential.'' FOIA exemption (b)(4) exempts from
mandatory disclosure under FOIA certain commercial or financial
information that is the subject of a FOIA request. The Trade Secrets
Act affirmatively prohibits the disclosure of confidential business or
commercial information, in the absence of legal authority. The term
``confidential business information'' is used in connection with
disclosure of information by the Department and by the States, as in
proposed Sec. 618.865(b).
Cooperating State agency or CSA--This proposed term is added to
accurately identify the agency or agencies at the State level that
carry out provisions of the Act because of the new emphasis on
coordination between the TAA programs and the One-Stop delivery system.
While the proposed definition includes the ``State agency,'' as that
term was defined in 20 CFR 617.3(ii), it also includes the State
Workforce Agency and other State or local agencies that cooperate in
the administration of the TAA programs under an agreement between the
Governor and the Secretary.
Customized training--This proposed term is newly defined to
identify a type of training previously not referenced in the Act. While
the Reform Act generally did not amend the job retraining provisions of
the Act, it changed the reference to ``on-the-job training'' to
``employer-based training, including (i) on-the-job training and (ii)
customized training.'' The proposed definition of customized training
refers to Sec. 618.635(b) which describes customized training
similarly to the definition for such training under WIA.
Date of certification--This proposed term means the same as the
term ``date of issuance'' in 29 CFR 90.2, but has been expanded and
renamed to avoid any suggestion that the date on which the
certification is signed may be different from the date on which the
certification is issued. The phrase ``for a group of adversely affected
workers at a firm or subdivision'' is added to the proposed definition
to indicate that the certification will identify the group of workers
to whom it applies.
Date of filing--This proposed definition is modified from the
definition in 29 CFR 90.2. The current office handling petitions under
the TAA programs, DTAA, is substituted. The definition also makes clear
that a petition is only considered filed on the date on which DTAA
receives a complete petition.
Date of separation--This proposed definition is intended to have
the same meaning as 20 CFR 617.3(l), but is rephrased slightly for
clarity and is stated in the disjunctive to make it clear that the
three situations listed are alternatives.
Department of Labor or Department or DOL--This proposed term
identifies the Department of Labor. The abbreviations are added to
simplify references to the agency.
Director--This proposed definition differs from the definition in
29 CFR 90.2 by using the term Division rather than Office to reflect
the current ETA organizational structure, and by including any person
who is designated to act in the place of the Director.
Division of Trade Adjustment Assistance or DTAA--This proposed
definition refers to the name of the organization within the Employment
Training Administration of the Department with responsibility for
administering the TAA programs. CSAs work under the direction of DTAA
to provide services and benefits under the TAA programs.
Eligible ATAA recipient, Eligible PBGC pension recipient and
Eligible TAA recipient--These proposed definitions incorporate the
definitions the categories of persons who may be eligible to qualify
for the health coverage tax credit under section 35 of the Internal
Revenue Code and health insurance coverage assistance under section
173(g) of the WIA, 29 U.S.C. 2918, as amended by the Reform Act. These
categories are defined in sections 35(c)(3), 35(c)(4) and 35(c)(2) of
the Internal Revenue Code, 26 U.S.C. 35(c)(3), (c)(4) and (c)(2). The
CSA must send a list of eligible ATAA and TAA recipients to the
Internal Revenue Service (IRS). However, only the IRS
[[Page 50766]]
can make a determination that an individual who is on that list is
eligible to receive the HCTC.
Employer--This proposed definition is the same as in 20 CFR
617.3(n).
Employment--This proposed definition is the same as in 20 CFR
617.3(o).
Extended compensation or Extended Benefits or EB--This proposed
term was included in the description of unemployment compensation in 20
CFR 617.3(oo). The proposed definition of this term has been revised to
simplify and update Sec. 617.3(oo)(3).
Family--This proposed definition is the same as the definition of
this term in 20 CFR 617.3(q), which is based on the Internal Revenue
Code definition, except for updating the date of the Internal Revenue
Code from ``1954'' to ``1986.''
Federal student financial assistance--This proposed term is added
to describe the various types of student financial assistance
authorized by title IV of the Higher Education Act of 1965, as amended
(20 U.S.C. 1070 et seq.) and Bureau of Indian Affairs student
assistance programs which may be available to adversely affected
workers.
Federal supplemental compensation--This proposed term was included
in the description of unemployment compensation in 20 CFR 617.3(oo).
The proposed definition of this term has been revised to simplify and
update the language used in Sec. 617.3(oo)(4).
Firm--This proposed definition is substantially the same as in 29
CFR 90.2. The definition is intended to be broad enough to encompass
all kinds of organizations and to include closely related or affiliated
organizations. The definition is, however, limited by basic rules of
corporate and organizational law to entities that share the indicia of
common ownership or control.
First benefit period--This proposed definition is substantively the
same as in 20 CFR 617.3(r). To achieve consistency in proposed Part
618, the term ``worker'' is used instead of ``individual,'' which is
used in this definition in Part 617.
First qualifying separation--This proposed definition is
substantially changed from 20 CFR 617.3(t)(3), which defines this term
one way for purposes of determining the weekly and maximum amounts of
basic TRA, and another way for all the other purposes of Part 617. For
simplification, the proposed definition of this term applies solely for
the purpose of determining the weekly and maximum amounts of basic TRA
and is substantively the same as at 20 CFR 617.3(t)(3)(ii). The other
purpose for which this term is used in 20 CFR 617.3(t)(3)(i) is now
covered in the proposed definition of ``qualifying separation'' at
proposed Sec. 618.110.
First separation--This proposed definition is the same as in 20 CFR
617.3(t)(1), except that the cross reference has been deleted as
unnecessary.
Health Coverage Tax Credit or HCTC--This proposed term is added to
describe the tax benefit under section 35 of the Internal Revenue Code
of 1986 (26 U.S.C. 35) that the Reform Act makes available to qualified
TAA and ATAA recipients.
Impact date--This proposed definition slightly revises the
definition of this term at 20 CFR 617.3(v) for simplicity. The impact
date is stated in the certification for eligibility of covered workers
to apply for TAA. As required by section 223(b)(1) of the Act, the
impact date may not be more than one year before the date of the
petition on which such certification was granted.
Individual employment plan (IEP)--This is a new definition.
Generally, an IEP is prepared after conducting a comprehensive
assessment of the worker's employment goals and strategies to achieve
those goals. An IEP means an ongoing strategy jointly developed by the
participant and the case manager that identifies the participant's
employment goals, the appropriate achievement objectives, and the
appropriate combination of services for the participant to achieve the
employment goals.
Job finding club--This proposed definition is the same as the
definition of this term in 20 CFR 617.3(y).
Job search program or JSP--This proposed definition is the same as
the definition of this term in 20 CFR 617.3(w).
Job search workshop--The proposed wording of this term varies
slightly from 20 CFR 617.3(x) to provide a clearer description, but the
meaning is intended to be the same.
Lack of work--This term is used in the definitions of ``adversely
affected worker'' in section 247(2) of the Act, as well as in the
definitions of ``adversely affected worker'' and ``layoff'' in these
proposed regulations. Thus, the term is defined here to clarify its
meaning. The definition includes situations where the employer is
downsizing the workforce by attrition or offering severance benefits to
encourage workers to leave the workforce voluntarily, and where a
worker's hours of employment have been reduced because sufficient work
to maintain that worker's customary hours of work is not available. A
worker who is separated from employment under these circumstances may
be covered as an ``adversely affected worker'' and be eligible to
receive TAA, or TAA and ATAA. It should be noted that some workers will
meet this definition of a ``lack of work'' separation, but will be
disqualified for UI under State voluntary quit provisions. The UI
disqualification will make these workers ineligible for TRA, although
they may qualify for other forms of TAA.
Layoff--This proposed definition follows the definition in 20 CFR
617.3(z) and contains two minor changes to the definition of this same
term in 29 CFR 90.2. The phrase ``suspension or separation from
employment'' used in Sec. 617.3(z) is adopted instead of the phrase
``suspension from pay status'' used in the definition of this term in
Sec. 90.2 because the Department intends for ``layoff'' to include
persons separated from employment who receive severance pay and
therefore may be considered to be in a pay status. This definition may
be an issue for some States, and some workers will be able to get TAA
services other than TRA, for which they may be disqualified based upon
the receipt of severance pay. The Department proposes using the phrase
``expected to be for a definite or indefinite period of not less than
seven (7) consecutive days'' from 20 CFR 617.3(z) rather than the
phrase ``expected to last for no less than seven (7) consecutive
calendar days,'' which is used in the definition of this term in 29 CFR
90.2. Use of the Part 617 language will remove any ambiguity about
whether a suspension or separation from employment may be for a
definite or indefinite period and still be a ``layoff'' for TAA
purposes. Additionally, use of the Part 617 language will notify CSAs
that they must continue to measure the duration of a suspension or
separation from employment as they have been under Part 617.
Liable State--This proposed definition follows 20 CFR 617.3(aa) but
is revised for simplicity. The term ``Agent State'' is now separately
defined at proposed Sec. 618.110.
One-Stop delivery system--This proposed term refers to the system
of entities within a State operating under WIA and its implementing
regulations to provide employment and training activities, including
coordination of services to eligible dislocated workers as defined
under section 101(9) of WIA. WIA section 121(b)(1)(B)(viii) requires
the TAA program to be a partner in the One-Stop delivery system.
On-the-job training (OJT)--This proposed definition, unlike the
[[Page 50767]]
definition in 20 CFR 617.3(bb), defines this term by reference to the
on-the-job training provision at proposed Sec. 618.635(a)(1)
(enrollment in on-the-job and customized training).
Partial separation--This proposed definition combines the slightly
different definitions of this term in 20 CFR 617.3(cc) and 29 CFR 90.2.
The definition of this term in Sec. 90.2 applies to separations ``at
the firm or appropriate subdivision thereof,'' referring to workers who
have not yet been certified as eligible to apply for TAA. After they
have been determined to be eligible to apply for TAA, the workers'
``partial separation'' is referred to in Sec. 617.3(cc) as being ``in
adversely affected employment,'' the term that the Trade Act uses in
section 247(6) of the Act to describe the two measures of ``partial
separation.'' The proposed combined definition retains the statutory
criteria of ``partial separation'' to refer to both workers on whose
behalf a petition has been filed and workers who are covered by a
certification. The proposed definition also clarifies the meaning of
the term by specifying that, in order for the worker to be counted as
partially separated from adversely affected employment, the reduction
of hours must have occurred during a week ending on or after the impact
date specified in a certification.
Program of remedial education--This new proposed term is used to
refer, as the Reform Act does, to education designed to upgrade the
basic knowledge of adversely affected workers through such courses as
adult basic education, basic math and literacy, English-as-a-second-
language, and high school equivalency.
Qualifying separation--This term, as defined at 20 CFR 617.3(t)(2),
is used to determine whether an individual qualifies as an adversely
affected worker and for basic TRA. Under the proposed definition of
this term, it applies for both those purposes as well as for
determining the 16-week period for enrollment in approved training and
the basic TRA eligibility period.
For the purpose of determining the basic TRA eligibility period
under proposed Sec. 618.745(a), an adversely affected worker's
eligibility for basic TRA ends at ``the close of the 104-week [or,
under the Reform Act amendments, if necessary to complete an approved
training program that includes remedial education, the 130-week] period
beginning with the first week following the week in which the adversely
affected worker's most recent qualifying separation (defined in
proposed Sec. 618.110) occurred.'' Thus, every time an adversely
affected worker has a ``qualifying separation,'' he or she begins a new
basic TRA eligibility period, as provided in section 233(a)(2) of the
Act.
This ``movable basic TRA eligibility period'' is the same under
proposed Part 618 as it is under Part 617 because the Reform Act did
not amend it. However, the Part 618 regulations achieve the same result
in a simpler fashion. Section 617.15(a) of 20 CFR provided a 104-week
``eligibility period.'' This term is defined at 20 CFR 617.3(m)(1)(ii)
in reference to the ``first total qualifying separation,'' which is a
``first qualifying separation'' under 20 CFR 617.3(t)(3)(i)(B).
However, the definition of ``eligibility period'' in Part 617 provides
that if an individual has a ``subsequent total qualifying separation
within the certification period of the same certification,'' that
individual would have a new 104-week eligibility period. Thus, the Part
617 regulations provide for a movable basic TRA eligibility period,
through several steps by running the eligibility period from the
``first total qualifying separation,'' and then restarting it where the
adversely affected worker had a ``subsequent total qualifying
separation.'' The Part 618 regulations achieve the same result, but
more simply, by running the eligibility period from the most recent
``qualifying separation'' (defined as, among other things, a total
separation).
The definition of ``qualifying separation'' is used also for the
purpose of determining the 16-week period for enrollment in approved
training as a condition of TRA, a deadline added by the Reform Act.
Proposed Sec. 618.720(b)(2) establishes this deadline as the ``last
day of the 16th week after the adversely affected worker's most recent
qualifying separation as defined in Sec. 618.110,'' thus establishing
a ``movable'' 16-week period for enrollment in approved training, as
provided in section 231(a)(5)(A)(ii)(I) of the Act.
As noted in the preamble explanation of the definition of ``first
qualifying separation'' at proposed Sec. 618.110, that definition
applies only for the purposes of determining the weekly and maximum
amount of basic TRA. The proposed definition of ``qualifying
separation'' also modifies the 20 CFR 617.3(t)(2) definition by
eliminating outdated provisions.
Regional Administrator--This proposed definition is substantively
unchanged from 20 CFR 617.3(dd).
Regular compensation--This proposed term was included in the
description of unemployment compensation in 20 CFR 617.3(oo). The
proposed definition of this term is the same as Sec. 617.3(oo)(1).
Secretary--This proposed term, used to refer to the Secretary of
Labor, United States Department of Labor, is the same as in 20 CFR
617.3(ff).
State--This proposed definition is the same as the definition of
this term in 20 CFR 617.3(hh).
State agency--This proposed definition revises the definition of
this term used in Part 617 by incorporating the statutory definition of
``the agency of the State which administers the State law.'' The
proposed definition of ``CSA'' in proposed Sec. 618.110 is the same as
the 20 CFR 617.3(ii) definition of ``State agency,'' except that
current terminology is used instead of ``State Employment Security
Agency.''
State law--This proposed definition is the same as in 20 CFR
617.3(jj), except that the reference to the Internal Revenue Code has
been updated.
Suitable employment--The proposed definition of ``suitable
employment'' comes from section 236(e) of the Act, defining it as
``work of a substantially equal or higher skill level than the worker's
past adversely affected employment, and wages for such work at not less
than 80 percent of the worker's average weekly wage.'' That section
expressly states that its definition of this term applies for purposes
of section 236. Section 236 uses the term ``suitable employment'' only
in section (a)(1)(A) (the first criterion for the approval of
training), providing for approval where ``there is no suitable
employment * * * available for an adversely affected worker.''
The term ``suitable employment'' also is used in section
231(c)(1)(B) of the Act to permit waiver of the training requirement
for receiving TRA where an adversely affected worker has marketable
skills for ``suitable employment'' and there is a reasonable
expectation of employment at equivalent wages in the foreseeable
future. Section 231 of the Act neither incorporates the definition of
``suitable employment'' in section 236(e) of the Act nor provides a
different definition of the same term. The Department has determined
that it is appropriate to apply the section 236(e) definition of the
term in implementing section 231 of the Act because these provisions
are interrelated. Where ``suitable employment'' is available for an
adversely affected worker, approval of training will be denied under
section 236(a)(1)(A) of the Act. However, the worker may need income
support while looking for that ``suitable employment,'' which may
depend upon a waiver of the training requirement. Using the same
[[Page 50768]]
definition of ``suitable employment'' for purposes of section
231(c)(1)(B) of the Act allows CSAs to decide whether to deny training
and to grant waivers on the same basis.
Sections 237(a)(2)(B) and 238(a)(2)(B) of the Act require, as
conditions for receipt of job search and relocation allowances, that
``the worker cannot reasonably be expected to secure suitable
employment in the commuting area in which the worker resides.'' In
implementing these provisions, the Department proposes in subparts D
and E to use the same definition of the term ``suitable employment.''
This is a departure from the current regulations at 20 CFR 617.32(a)(4)
(on job search allowances) and 617.42(a)(6) (on relocation allowances)
which interpret ``suitable employment'' to mean ``suitable work'' as
defined in 20 CFR 617.3(kk)(1) and (2), whichever is applicable to the
individual. ``Suitable employment'' is generally work at higher skill
levels and wage rates than is ``suitable work.'' By changing the
interpretation of ``suitable employment'' to have the same meaning for
purposes of eligibility for relocation and job search allowances that
it has in proposed subpart F of Part 618 on training, the Department
intends to encourage workers to use these benefits in a manner
consistent with the purpose of the program to encourage workers to seek
new jobs with compensation levels near the levels of those jobs from
which they were separated. This proposed regulatory change may increase
the number of workers who qualify for job search allowances in areas
where ``suitable employment'' opportunities are limited. On the other
hand, using ``suitable employment'' in the eligibility criteria for
relocation allowances could restrict the jobs for which relocation
allowances may be paid.
The Department invites comment on whether it should instead define
``suitable employment'' for purposes of job search and relocation
allowance eligibility as a job at lower wages than ``suitable
employment'' as defined in section 236(e) of the Act for job training
approval. A lower standard for ``suitable employment'' would have the
beneficial effect of increasing the number of jobs for which a worker
might obtain a job search or relocation allowance. On the other hand,
approval for either of these allowances requires that there be no
reasonable expectation of securing ``suitable employment'' in the
commuting area. Therefore, a lower standard would make it more likely
that a disqualifying ``suitable employment'' would be available
locally. The Department also invites comment on what level would be
appropriate, and why.
The proposed definition of ``suitable employment'' differs slightly
from the definition in 20 CFR 617.22(a)(1)(i) by expressly requiring
the CSA to take into consideration the value of fringe benefits,
including health insurance, in determining whether the level of wages
for work is at least 80 percent of the adversely affected worker's
average weekly wage in the adverse employment from which the worker was
separated. The broad definition of the term ``wages'' in 20 CFR
617.3(pp) and proposed paragraph 618.110, which includes ``all
compensation for employment for an employer, including commissions,
bonuses, and the cash value of all compensation in a medium other than
cash,'' is the basis for emphasizing to the CSAs that they must
consider fringe benefits as part of the total wage package factor in
making determinations as to whether ``suitable employment'' is
available to an adversely affected worker. Comments on this change in
definition are specifically requested.
Suitable work--The definition proposed for Part 618 is the same as
the definition of this term in 20 CFR 617.3(kk)(1) and (2), that is,
either as suitable work as defined in the applicable State law for
claimants for regular compensation, or suitable work as defined in
applicable State law provisions consistent with section 202(a)(3) of
the Federal-State Extended Unemployment Compensation Act (EUCA) of
1970. State unemployment insurance laws define ``suitable work'' in
terms of a worker's job prospects. The better the job prospects, the
higher the level of work considered suitable. Further, where a worker's
job prospects are not good, the EUCA considers any work within the
worker's capabilities to be suitable. Lastly, the proposed definition,
as well as the Part 617 definition, excludes self-employment or
employment as an independent contractor. Thus, if self-employment or
employment as an independent contractor is the only available
employment in the worker's commuting area, the worker may be eligible
for a job search or relocation allowance as he or she will not be
disqualified for this reason.
Supportive services--This proposed new term is used to refer to
such services as transportation, childcare, dependent care, and housing
that are needed to enable an individual to participate in activities
authorized under the Act.
Total separation--This proposed definition combines the definitions
currently codified in 20 CFR 617.3(ll) and 29 CFR 90.2. The definition
of ``total separation'' in 29 CFR Part 90 refers to an individual's
layoff or severance ``from a firm or an appropriate subdivision
thereof;'' the 20 CFR Part 617 definition refers to an individual's
layoff or severance from ``employment with a firm in which, or in a
subdivision of which, adversely affected employment exists,'' and
therefore refers to a determination that the individual is covered by a
certification of eligibility to apply for TAA. The proposed definition
recognizes that a ``total separation'' is the same whether or not the
worker group involved is covered by a certification.
Trade adjustment assistance or TAA--The proposed definition of TAA
has been revised to refer to the services and allowances to help
adversely affected workers become reemployed. They include TRA,
training and other reemployment services, job search allowances and
relocation allowances, and HCTC.
Trade adjustment assistance for Farmers program or TAA for Farmers
program--This term is added to refer to the program of adjustment
assistance added to the Act by subtitle C of the Reform Act to provide
benefits and services to agricultural commodity producers through a
certification process administered by the United States Department of
Agriculture under regulations codified at Part 1580 of title 7 of the
Code of Federal Regulations. Employment services and training under the
TAA program are available to agricultural commodity producers
determined by the Department of Agriculture to be eligible to receive a
cash benefit under that program.
Trade readjustment allowance or TRA--This proposed definition is
substantively unchanged from 20 CFR 617.3(nn).
Unemployment insurance or UI--This proposed definition has been
revised to simplify, update and clarify the language in 20 CFR
617.3(oo). The four types of UI defined in 20 CFR 617.3(oo) (regular
compensation, additional compensation, extended compensation or
extended benefits or EB, and Federal supplemental compensation) are
separately defined in this section.
Wages--This proposed definition is the same as the definition of
this term in 20 CFR 617.3(pp).
Wagner-Peyser Act--This new proposed term refers to the Wagner-
Peyser Act, as amended (29 U.S.C. 49 et seq.).
[[Page 50769]]
Week--This proposed definition is the same as the definition of
this term in 20 CFR 617.3(qq).
Week of unemployment--The proposed definition follows the
definition of this term in the Act, and differs from the definition but
not the meaning of this term in 20 CFR 617.3(rr) by using the phrase
``Federal unemployment insurance law'' instead of ``Federal
unemployment compensation law'' to accord with the proposed definition
of UI in paragraph (b)(80) of Sec. 618.110.
Workforce Investment Act or WIA--This proposed term refers to the
Workforce Investment Act of 1998, under which the Department provides
States and local Workforce Investment Areas with funds for employment
and training activities for adults and dislocated workers and for youth
activities.
Subpart C--Delivery of Services Through the One-Stop Delivery System
Proposed subpart C is an entirely new subpart that sets forth
requirements for CSAs to assist individuals who are covered by a
petition but not yet certified, as well as adversely affected workers.
This subpart provides a road map for CSAs of their responsibility for
providing reemployment services, whether they are provided through the
TAA program, through the WIA One-Stop delivery system, or through any
other federal law. It covers rapid response assistance and access to
WIA core and intensive services, as well as supportive and other
services. It emphasizes the integration of the TAA program into the WIA
One-Stop delivery system. Subpart C is added in response to amendments
made by the Reform Act, so it does not have an exact counterpart in
Part 617 of the DOL regulations. Major points include:
CSAs must ensure that their TAA program administration
complies with the One-Stop partnership requirements.
Individuals covered by a petition must be offered rapid
response assistance and WIA core and intensive services.
A needs assessment is required for each TAA applicant and
a comprehensive assessment for any recipient entering training.
CSAs must make every reasonable effort to secure for
adversely affected workers counseling, testing, and placement services
as well as supportive and other services provided for under any other
Federal law.
Co-enrollment is encouraged as a strategy for delivering
services.
CSAs are required to prepare an individual employment plan
(IEP).
Worker benefit eligibility is protected by requiring CSAs
to take timely action on training waivers when appropriate.
CSAs are required to provide employment services to
individuals entitled to cash benefits under the TAA for Farmers program
administered by the U.S. Department of Agriculture.
Proposed Sec. 618.300 discusses the scope of this new subpart,
which focuses on the requirement that TAA program benefits and services
be integrated to the extent possible with the reemployment services
provided through the WIA-funded One-Stop delivery system. Consistent
with the Reform Act, Subpart C is intended to provide individuals with
a seamless delivery of services necessary for each to return to
employment as quickly as possible by requiring and promoting the
integration activities and services described below.
The Act requires cooperating State agencies to provide reemployment
services to two classes of participants: (1) Individuals covered by a
petition for TAA filed by, or on behalf of, a group of workers and, (2)
adversely affected workers who are covered by a petition that has
already been certified. Under section 221(a)(2)(A) of the Act, the
Governor must offer individuals covered by a petition rapid response
assistance and WIA core and intensive services. Adversely affected
workers must be offered core and intensive services, including
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. This requirement is based on new
language in section 235, 239(a), (e) and (g) of the Act and the
Congressional Declaration of Policy in section 125(a) of the Reform
Act. These services must be coordinated with workforce activities and
services under Title I of WIA. Section 239(e) and (g) provides the
Secretary with the authority to establish the responsibilities and
requirements for such coordination.
Proposed Sec. 618.305 requires CSAs to ensure that the TAA
program, as a required partner in the One-Stop delivery system,
complies with One-Stop partnership requirements such as sharing staff,
materials, and/or financial resources. The partnership activities help
ensure the seamless delivery of necessary services, including a
comprehensive array of appropriate services not funded under the Trade
Act, to both individuals covered by petitions and adversely affected
workers.
Proposed Sec. 618.310 explains the CSAs' responsibilities for
delivering employment services not funded by the Act. Proposed
paragraph (a) addresses such employment services that CSAs must make
available to workers covered by a petition. It implements section
221(a)(2)(A) of the Act, which requires that, upon the filing of a
petition for TAA, the Governor ensure that covered workers have
available to them WIA rapid response activities (as described in 20 CFR
665.300 and 665.310) and WIA core and applicable intensive services not
funded under the Act. The timely provision of core and intensive
services is an important step toward improving both the efficiency and
the effectiveness of TAA. Further, immediately beginning the process of
employment needs assessment improves participation rates and allows
workers covered by a petition, whether or not the petition is
certified, more time to consider all of the options available to them.
Early intervention services that will benefit covered workers and
adversely affected workers may include orientation; initial assessment
of skill levels, aptitudes, and abilities; provision of labor market
information; job search assistance; financial management workshops; and
other services.
Proposed Sec. 618.310(b) lists services that CSAs must make every
reasonable effort to provide to workers after TAA certification, as
required under section 235 of the Act. Because the TAA program does not
fund a comprehensive program of reemployment services, it must be
supplemented by services provided through the One-Stop delivery system:
(1) Wagner-Peyser Act labor exchange system services described at 20
CFR 651.3 to facilitate the matching of workers seeking jobs and
employers seeking to fill jobs; and (2) WIA core and intensive services
such as assessment, vocational testing, employment counseling, case
management, placement and follow-up services, and development of
individual employment plans (IEPs), as well as supportive services such
as transportation and child care assistance.
Proposed Sec. 618.310(c) implements section 235 of the Act by
requiring CSAs to make every reasonable effort to ensure the provision
of services for adversely affected workers under other Federal laws.
This provision comports with Congress' statutory design not to
duplicate efforts by requiring the Secretary and CSAs to seek other
available funding streams for the provision of reemployment services to
adversely affected workers.
Proposed Sec. 618.310(d) permits adversely affected workers to
receive
[[Page 50770]]
employment services from another program if they meet the eligibility
requirements of that program, even if that program is funded under the
Wagner-Peyser Act or WIA, or the program is not exclusively federally-
funded, in accordance with the descriptions of One-Stop partners in 20
CFR 662.200 and 20 CFR 662.210. CSAs should explore the wide variety of
services available through such One-Stop partners as economic
development agencies, and community-based and faith-based organizations
in developing a comprehensive service strategy for workers.
Proposed Sec. 618.310(e) reminds CSAs of the availability of two
funding sources for reemployment services for adversely affected
workers: WIA Dislocated Worker funds for an adversely affected worker
who meets the dislocated worker definition at WIA section 101(9); and
WIA-funded Adult programs for adversely affected workers who remain
partially employed and therefore do not meet the WIA definition of a
dislocated worker. When providing services to partially employed
workers, the CSAs should assess the likelihood of restoring full
employment and any other of the workers' circumstances to develop
appropriate IEPs.
Proposed Sec. 618.315 describes reemployment services which may be
paid for with Trade Act funds. Proposed paragraph (a) implements
section 239(f) of the Act by requiring CSAs to provide information to
individuals about TAA, as detailed in proposed Sec. 618.820. Proposed
paragraph (b) follows 20 CFR 617.20(b) in describing the
responsibilities that a CSA has for the delivery of reemployment
services. However, since proposed paragraph (b) only lists those
responsibilities funded under the Act, paragraphs (b)(2), (b)(5), and
(b)(13) of 20 CFR 617.20 are inapplicable because TAA funds are not
used to provide those services. Paragraph (a) of 20 CFR 617.20 also is
inapplicable under the seamless system envisioned under the Act. The
paragraph is also updated to eliminate a reference to now-inapplicable
Title III of the Job Training Partnership Act by substituting a
reference to the Wagner-Peyser Act and the WIA at proposed Sec.
618.315(b)(12).
Proposed Sec. 618.320 implements the new requirement, at section
221(a)(2)(A) of the Act, that the Governor, upon receipt of a petition
for TAA certification, must ensure the availability of WIA rapid
response assistance (described as ``rapid response activities'' in 20
CFR 665.300 and 20 CFR 665.310) and appropriate core and intensive
services to workers covered by the petition. Under 20 CFR 665.300(a),
which the Department also proposes to amend to address the broadened
State responsibility to covered workers, regular rapid response
activities follow either a permanent closure or mass layoff, or a
natural or other disaster resulting in a mass job dislocation.
Proposed Sec. 618.320(a) provides some flexibility for the
Governor in providing rapid response activities to workers covered by a
TAA petition where rapid response activities were already provided to
those workers. In such cases, the Governor must review the rapid
response activities already provided and determine whether it is
necessary to provide additional information or assistance once the TAA
petition is filed. The Governor may establish protocols and procedures
for CSA and rapid response staff to ensure they use the most effective
methods to notify workers about any additional benefits available to
them under the TAA program. This advance collaboration becomes useful
when the State learns of the filing of a petition at some time after
the layoff has occurred.
Proposed Sec. 618.320(b) encourages Governors to ensure access to
appropriate core and intensive services (as described in WIA section
134(d)(2) and (3)) for workers covered by a TAA petition by using rapid
response activity funding. During rapid response activities, the State
rapid response staff, in coordination with the local One-Stop delivery
system, assesses the needs of the individuals in the petition group, as
well as the local and State resources available to support the workers.
Use of rapid response activity funding to help individuals access core
and intensive services can encourage a more rapid return to employment.
In addition, where there are insufficient partner and other resources
to provide the necessary complementary services to these individuals,
the rapid response activity staff may participate in analyzing the
information gathered through the needs assessment to help develop an
application and secure WIA national emergency grant (NEG) funding to
bring additional reemployment services into the area to support a more
rapid return to employment.
Proposed Sec. 618.325 discusses strategies to ensure the
availability of a comprehensive array of services for adversely
affected workers. Proposed paragraph (a) requires the CSA to
collaborate with local workforce investment boards and other One-Stop
partners, in accordance with the Reform Act, which requires the
Secretary to use services provided under any other Federal law,
``including the services provided through [O]ne-[S]top delivery systems
described in section 134(c)'' of the WIA. This regulation also
encourages collaboration with other available programs, such as local
faith- and community-based programs that may not be One-Stop partners,
to increase the availability of services to adversely affected workers.
This integration of service strategies arises from the requirement in
section 235 of the Act that every reasonable effort be made to secure
employment services, such as counseling, testing, placement services,
and supportive and other services for adversely affected workers.
Proposed Sec. 618.325(b) introduces the topic of co-enrollment of
workers in both TAA and WIA-funded programs. The Department believes
that co-enrollment is the best means to accomplish integration of
services, although the Department leaves the programmatic mechanism to
accomplish this requirement to State and local program design. CSAs may
enhance and expand co-enrollment to include multiple enrollments with a
broader range of service delivery partners and programs. Multiple
enrollment resources may include Wagner-Peyser activities, vocational
rehabilitation services, and veterans' programs such as those provided
by the Department's Veterans Employment and Training Service. Properly
implemented, co-enrollment or multiple-enrollment of trade-impacted
workers in the programs offered through the One-Stop delivery system,
as well as early provision of rapid response services, will further the
adjustment process and promote the most rapid possible return to
employment for all workers. Co-enrollment or multiple-enrollment also
allows covered individuals and adversely affected workers to receive
supportive services that may assist them in a quicker transition to
work.
Proposed Sec. 618.330 requires CSAs to design an assessment
process that affords workers enough time and information to consider,
request, and enroll in training or obtain a waiver of the training
requirement for TRA before expiration of the 8-week and 16-week
deadlines for enrollment in training provided under section
231(a)(5)(A) of the Act.
Proposed Sec. 618.335 discusses the requirements for an initial
assessment of adversely affected workers; the first step in the process
to determine whether the worker will need employment services and
training and may meet the requirements for HCTC and ATAA. It should be
noted that benefit information provided by the CSA to all adversely
[[Page 50771]]
affected workers as discussed in proposed Sec. 618.820(f), should be
no later than at the time of the initial assessment of the adversely
affected worker. However, the CSA may provide this information earlier,
to a worker covered by a petition upon its receipt by the Department
and the Governor.
Proposed Sec. 618.335(a) lists factors that must be considered to
find the best approaches to reemployment that are tailored to a
worker's particular circumstances. A review of the local labor market
conditions will help the CSA determine if any jobs are available in the
local area for which the worker could apply. A review of the workers'
skills from previous jobs will help the CSA determine whether the
worker will be able to use those skills in new available jobs, or
whether the worker's skills are too specialized to be able to be
transferred to other available jobs. A review of any significant
barriers to employment that may prevent the worker from obtaining
employment will help the CSA identify available training, such as
remedial training to get a high school equivalency degree or to provide
English language training, to address barriers to employment.
Proposed Sec. 618.335(b) allows CSAs to use WIA initial
assessments and assessments performed under other WIA partner programs,
such as those performed under the UI profiling system to identify UI
claimants who are likely to exhaust their UI benefits, as tools for
providing an initial assessment, as long as these other assessments
meet the specific requirements of paragraph (a) of this section. The
use of partner programs' assessments can increase efficiency, ensure
that workers quickly receive appropriate reemployment services, and
quickly identify those workers requiring a more comprehensive
assessment of their skills. The Department recognizes that the lack of
uniform requirements for assessments means that some assessments may
not meet all of the TAA requirements for an initial assessment. In this
case the CSA may be required to supplement those assessments to acquire
sufficient information.
Proposed Sec. 618.335(c) explains the CSA's options for service
strategies based on the information it gathers from the initial
assessment. If a CSA determines there is suitable employment for the
worker, and the worker agrees with this determination, then it will
provide WIA core and intensive services. However, if the worker
disagrees with the determination, then the CSA must provide the worker
with a comprehensive assessment under proposed Sec. 618.345 to be
certain that the initial assessment is correct. If the CSA determines
that no suitable employment is available for the worker, the CSA must
perform a comprehensive assessment to develop a comprehensive service
strategy for the worker and provide reemployment services funded under
the Act, as described in proposed Sec. 618.315. The CSA may also
provide reemployment services not funded under the Act, as described in
proposed Sec. 618.310.
Proposed Sec. 618.340 discusses the CSAs obligations to adversely
affected workers not enrolled in training. Proposed paragraph (a)
focuses on workers who are determined through an initial assessment to
possess marketable skills for suitable employment and are reasonably
expected to find employment at equivalent wages in the foreseeable
future. This section recognizes that the ``suitable employment''
determination in the initial assessment took into account prevailing
local labor market conditions, as required under proposed Sec.
618.335(a)(1). Also, the CSA must provide for the worker to obtain
referrals to suitable work, as defined in proposed Sec. 618.110,
whichever is applicable to the worker depending on whether the worker
is collecting regular UC or extended benefits (EB)/TRA. Actual
referrals to suitable work are necessary to enable the worker to meet
the EB work test, which is a condition of TRA eligibility under section
231(a)(4) of the Act. The EB regulations appear at 20 CFR Part 615.
Proposed Sec. 618.340(b) requires the CSA to develop a strategy to
review the assessments of workers who may not be successful in a job
search for suitable employment, bearing in mind the deadlines for other
TAA benefits and services, such as TRA and training, when a worker has
not received a training waiver. The review may result in the CSA
developing a strategy to provide the worker with additional services to
facilitate the search for suitable employment without TRA-approved
training. For those workers who received a training waiver for
marketable skills, as provided under proposed Sec. 618.725(b)(2), the
review should be part of the periodic review of waivers issued under
proposed Sec. 618.725(b) to determine whether the conditions for which
the CSA issued the waivers continue to exist, which is required under
paragraph (e) of that section. The review also may result in the CSA
revoking a training waiver and, or initiating a comprehensive
assessment in preparation for enrollment in training.
Workshops provided through WIA or Wagner-Peyser Act programs can
assist those workers with marketable skills to obtain the necessary job
search skills. The TAA program also provides important cash assistance
to help with this job search process, such as reimbursement for Job
Search Program (JSP) expenses, and job search allowances for out of
area job searches (described in subpart D, infra) and relocation
allowances (described in subpart E, infra). Nonetheless, in scheduling
services to be provided after their review of a worker's assessment and
progress in finding employment, CSAs must allow enough time to complete
a comprehensive assessment, as well as any career counseling necessary
for the worker to make an informed training decision and maintain
eligibility for TRA.
Proposed Sec. 618.345 discusses the comprehensive assessment that
the CSA must arrange for each worker seeking TAA approval of a training
program. The comprehensive assessment must update determinations in the
initial assessment regarding the worker's skills, aptitudes, and
abilities (including reading and math levels), and consider the
worker's interests as they relate to employment opportunities that are
in demand either in the worker's commuting area, as defined in proposed
Sec. 618.110, or, where there is no reasonable expectation of
employment in the commuting area, outside the commuting area if the
worker is interested in relocating. The purpose of requiring the
comprehensive assessment is to assure that cooperating State agencies
gather relevant information that will help the worker in selecting
appropriate training, thus increasing the worker's chances of
successfully completing training and finding sustainable employment
afterwards.
Proposed Sec. 618.350 requires the CSA to prepare an IEP, as
defined in proposed Sec. 618.110, for any worker who receives a
comprehensive assessment. The IEP must document the results of the
comprehensive assessment and document a service strategy to provide the
worker with needed services for reemployment, and it must also provide
specific documentation on four specific items. Those four items are:
(1) Whether the six criteria for training approval in Sec. 618.610(a)
through (f) or for issuing a training waiver in proposed Sec. 618.725
have been met; (2) the type of training proposed, if any; (3) any
additional services the worker needs to obtain employment, including
intensive services, supportive services, and post-
[[Page 50772]]
training and follow-up services, as required in proposed Sec.
618.360(b); and (4) any financial prearrangements for the payment of
approved training costs (as described in proposed Sec. 618.625(c)), as
well as any amendments to the training program and any subsistence or
transportation payments, with the basis for its calculation.
Proposed Sec. 618.355 describes the knowledge and abilities that
the staff performing the initial assessment should possess because the
initial assessment is critical to proper functioning of the TAA
program. These skills include: (1) An understanding of the local labor
market; (2) knowledge of local employer skill demands and hiring
prerequisites, such as educational requirements and professional
certifications, and the sets of skills workers from various occupations
are likely to possess; (3) the ability to identify transferable skills
that a worker may possess that would be of interest to other local
employers outside of the individual's present occupational area; (4)
the ability to quickly evaluate a worker's knowledge of and ability to
implement job search strategies with little or no assistance; and (5)
the ability to identify a worker's apparent employment barriers that
will require additional training and counseling. Because of the
importance that the Department places on the assessment process and its
central role in providing effective and efficient services to adversely
affected workers, the Department believes that having qualified and
knowledgeable staff to perform the assessment function is critical to
the proper functioning of the TAA program.
Proposed 618.360 requires CSAs to continue to provide all workers
enrolled in approved training programs access to the reemployment
services available under proposed Sec. 618.310 and proposed Sec.
618.315 to assist workers as they make the transition from trainee to
employee. The CSAs also must provide follow-up services, including
placement and other appropriate supportive services, to adversely
affected workers upon their completion of training. Such follow-up
services protect the large financial investment the program made in
training the worker by helping workers in need of such services make
the transition back into the workforce.
Proposed Sec. 618.365, which implements section 296(d) of the Act
(19 U.S.C. 2401e(d)), requires the CSA to provide employment services
to agricultural commodity producers who are entitled to cash benefits
under the TAA for Farmers program administered by the U.S. Department
of Agriculture. These individuals may receive training (including
subsistence and transportation allowances), but they are not entitled
to any other benefits under the TAA program.
Subpart D--Job Search Allowances
Subparts D and E address job search and relocation allowance
provisions. Proposed subpart D keeps the 20 CFR Part 617 requirements
intact concerning allowances for job searches outside the commuting
area. For purposes of clarity, these subparts also contain various
editorial and procedural changes, but most changes do not affect the
substantive requirements in the current program regulations. Proposed
subpart E covers relocation allowances available to individuals who
obtain suitable employment outside their commuting area. Major changes
in subparts D and E include:
Changes the eligibility requirement for both job search
and relocation allowances that there be no ``suitable work'' (a state
UI definition) available in the local area to the requirement that
there be no ``suitable employment'' (a national TAA definition)
available in the local area. Since ``suitable employment'' is generally
work at higher skill levels and wage rates than is ``suitable work,''--
meaning that a job is less likely to meet the higher ``suitable
employment'' standard and that such jobs will therefore less likely be
available--the proposed change would make it easier to qualify for a
job search allowance but possibly make it harder to qualify for a
relocation allowance.
Increases the limit for job search allowance reimbursement
per individual per certification from $800 to $1,250, as well as the
lump-sum payment for relocation from $800 to $1,250.
The first section of subpart D, proposed Sec. 618.400, revises 20
CFR 617.30 to reflect the goal of providing a job search allowance to
help the worker secure ``suitable employment,'' as defined in section
236 of the Act, instead of merely assisting the worker in finding a job
that is ``suitable work.'' As discussed earlier in this preamble, the
Department believes that this change will meet the intent of the Act by
encouraging workers to find better paying jobs.
Proposed Sec. 618.405 describes the application process but
differs from the existing regulations at 20 CFR 617.31 on when to file
an application. Under the current regulations, an individual who is
covered under a petition and who is totally or partially separated may
apply for a job search allowance before a certification is issued.
Proposed Sec. 618.405 changes these procedures to require that
applications for job search allowance be accepted only after a
certification has been issued. Thus, all references in proposed subpart
D are to ``adversely affected workers'' and not to ``individuals'' as
in 20 CFR part 617, subpart D. This change is consistent with paragraph
237(a)(1) of the Act, which provides that ``an adversely affected
worker covered by a certification'' may file an application for a job
search allowance. The Department proposes to eliminate pre-
certification applications for job search allowances to avoid
unrealistic expectations for reimbursement. Further, because the
Department has made great strides in reducing the time in which
determinations are made on petitions, the Department believes there is
less need to permit pre-certification applications. The Department has
reduced the average processing time for petitions from 103 days in 2002
to less than 28 days presently. Thus, for most workers, requiring
certification prior to filing a job search application will result in
only a short delay in filing and no delay in payment because only
adversely affected workers may receive a job search allowance. This
approach is similar to that of many assistance programs that generally
do not reimburse individuals for activities conducted with their own
resources prior to the individual becoming eligible for assistance.
Proposed Sec. 618.405(c) also incorporates the one change that the
Reform Act made to the time limits within which a worker must request a
job search allowance. Prior to its amendment, section 237(b)(3) of the
Act required that a worker apply for a job search allowance within 182
days after concluding training approved under the Act, and 20 CFR
617.31(c)(2) contains this time limit. However, the Reform Act amended
this time limit by adding the condition: ``unless the worker received a
training waiver under section 231(c).'' The Department interprets this
statutory amendment to mean that a worker who received a training
waiver before entering an approved training program is not entitled to
the 182-day period after the conclusion of approved training to apply
for a job search allowance. Rather, the worker must file a job search
allowance application within the same 365-day deadline applicable to
other workers under section 237(a)(2)(C) of the Act.
Proposed Sec. 618.410 sets forth the eligibility requirements for
job search allowances. The significant difference between this
provision and 20 CFR
[[Page 50773]]
617.32 is that 20 CFR 617.32(a)(4) requires a CSA to determine that
``suitable work'' is not available in the commuting area and that the
worker has a reasonable expectation of obtaining suitable work of a
long-term duration outside the commuting area. Proposed Sec.
618.410(a)(4) substitutes ``suitable employment'' (as defined in Sec.
618.110) for ``suitable work.'' ``Suitable employment'' is generally
work at higher skill levels and wage rates than is ``suitable work.''
The Department believes this change will increase the availability of
job search allowances to adversely affected workers so that these
workers will have the financial ability to conduct job searches outside
their commuting area. The requirement in 20 CFR 617.32(a)(3) is not
included because proposed Sec. 618.315(b) already requires CSAs to
provide reemployment services and the Act does not contain this
particular registration requirement for job search allowance
eligibility.
Proposed Sec. 618.410(a)(4) implements the new requirement that
the worker has not previously received a relocation allowance under
subpart E under the same certification to clarify that job search
allowances are inappropriate following receipt of a relocation
allowance since a worker has already obtained work to qualify for such
relocation allowance.
Proposed Sec. 618.410(a)(5) allows an individual 30 calendar days
within which to complete a job search, while 20 CFR 617.32(a)(5)
provides ``a reasonable period not exceeding 30 days after the day on
which the job search began'' within which to conduct a job search
outside the commuting area. This change is made to simplify and clarify
the rules for completing job searches. Proposed Sec. 618.410(a)(5)
also adds language that the job search must begin after the date of
certification, which corresponds to the change in proposed Sec.
618.405(b) regarding the application for job search allowances after
issuance of a certification.
Proposed Sec. 618.410(b) describes when a job search is complete
and comports with 20 CFR 617.32(b). A job search is not complete until
the worker has obtained a job or has contacted each employer the worker
planned to contact or to whom the worker was referred by the CSA or
other One-Stop partner.
Proposed Sec. 618.415 describes the CSA's responsibilities and
introduces the terms ``liable State'' and ``agent State'' for
delineating the responsibilities between CSAs with respect to job
search allowances when a job search occurs in a different State.
Because funding is limited, paragraph (a) requires that before
approving a job search payment, a CSA must determine that job search
funds are available for the fiscal year in which the job search
activity takes place. The only proposed change under paragraph (b) is
that it includes the employer contact verification requirement found at
20 CFR 617.32(c), and thereby requires a CSA to verify the worker's
contracts with employers identified in both the worker's own job search
plan and through referrals.
Proposed Sec. 618.420 follows the current regulations at 20 CFR
617.34, but increases the maximum amount available for allowances from
$800 to $1,250 based upon the 2002 Amendments. Proposed Sec.
618.420(b) limits reimbursement to the statutory dollar limit instead
of a particular dollar amount so that, if Congress later increases the
dollar amount, these regulations will not have to be amended.
Proposed Sec. 618.425, like 20 CFR 617.35, requires a worker to
provide supporting documentation in order for payment to be made upon
completion of a job search and require the CSA to reimburse the worker
promptly. Paragraph (a) of this proposed section changes the language
in 20 CFR 617.35(a) by eliminating temporal references because, under
the changes in proposed Sec. 618.405(b), the CSA will accept
applications for job search allowances only after a certification is
issued. Further, paragraph (a) clarifies that job search allowance
determinations are subject to the requirements of Sec. 618.825
(determinations and notice) and Sec. 618.830 (appeals and hearings)
and requires CSAs to include copies of job search allowance
applications and determinations in the worker's case file.
Proposed Sec. 618.425(c), like 20 CFR 617.35(c), permits the CSA
to advance up to 60 percent of the expected cost to be paid to the
worker.
Proposed Sec. 618.430 implements the Reform Act amendment to
section 237(c) of the Act to allow an adversely affected worker
participating in a job search program [JSP] approved by the Secretary
reimbursement for necessary expenses, including transportation and
subsistence allowances, related to their participation in an approved
JSP within or outside their commuting area, subject to available
funding.
Subpart E--Relocation Allowances
This proposed subpart covers relocation allowances available to
workers who obtain suitable employment outside their commuting area.
For purposes of clarity, this proposed subpart makes editorial and
minor procedural changes, most of which do not affect substantive
requirements. The proposed changes are discussed below.
Proposed Sec. 618.500 revises 20 CFR 617.40 to reflect the goal of
providing a relocation allowance to help the worker relocate to secure
``suitable employment,'' as defined in section 236 of the Act, instead
of merely assisting the worker in relocating to begin ``suitable work''
outside the worker's former commuting area (but inside the United
States). As discussed earlier in this preamble, the Department believes
that this change will meet the intent of the Act by encouraging workers
to find better paying jobs.
Proposed Sec. 618.505 retains the general discussion of relocation
allowances found in 20 CFR 617.40, but eliminates the reference to the
``head of the family.'' Instead, it authorizes payment to the adversely
affected worker in the family who first applies for the relocation
allowance, if otherwise eligible. The Department believes this minor
change makes the test easier to administer by eliminating the need
under the current regulations for the family to produce financial
records indicating which family member maintains a home for the family
by providing more than half the cost of maintenance.
Proposed Sec. 618.510 describes the application process for a
relocation allowance but differs from 20 CFR 617.41 on when to file an
application. While proposed paragraph (a) is essentially unchanged from
20 CFR 617.41(a), proposed paragraph (b) allows a worker to apply for a
relocation allowance only after a certification covering that worker is
issued. Thus, all references in proposed subpart E are to ``adversely
affected workers'' and not to ``individuals'' as in 20 CFR Part 617,
subpart E. This is consistent with section 238(a)(1) of the Act, which
provides for ``[a]n adversely affected worker covered by a
certification * * * [to] file an application for a relocation
allowance. * * *'' A worker who is not covered by a certified petition
may relocate using personal funds to take advantage of an opportunity
outside the commuting area, but the worker will not be reimbursed for
the costs of that relocation. As previously noted in the preamble
discussion of proposed Sec. 618.405 (on job search allowances), the
Department is concerned that permitting pre-certification applications
will raise false expectations. Also, because of the substantial
reduction in the average processing time for petitions noted in that
discussion, there will only
[[Page 50774]]
be a short delay in workers being able to file applications.
Proposed Sec. 618.510 also contains the basic requirement that the
relocation may only be approved after a worker files an application and
before the relocation is undertaken. The time limits for filing an
application in proposed Sec. 618.510(c) are the same as in 20 CFR
617.41(c), except that the Reform Act eliminated the second time limit
for filing an application for a relocation allowance (as it did for
filing an application for a job search allowance) for those workers who
receive a training waiver. Prior to its amendment, section 238(a)(2) of
the Act required that the individual must apply for the relocation
allowance within 182 days after concluding training, which is reflected
in 20 CFR 617.41(c)(2). The Reform Act amended this requirement by
adding the condition ``unless the worker received a waiver [of the
participation in training requirement] under section 231(c).'' The
Department interprets this statutory amendment to mean that a worker
who received a training waiver before entering an approved training
program is not entitled to the 182-day period after the completion of
approved training to apply for a relocation allowance. Thus, whenever
the CSA grants a training waiver to a worker under proposed Sec.
618.725, the worker must file for a relocation allowance within the
425-day time limit after the date of certification or the worker's last
total separation under Sec. 618.510(c)(1). Eliminating the 182-day
period whenever the CSA grants a training waiver is consistent with the
plain language of section 238(a) (2)(E)(ii) of the Act.
Proposed Sec. 618.515 on eligibility for a relocation allowance
retains essentially the same requirements as 20 CFR 617.42
(Eligibility) and 20 CFR 617.43 (Time of relocation) but combines these
sections, edits them for clarity and makes three significant changes.
The requirement in 20 CFR 617.42(a)(5) is removed because proposed
Sec. 618.310 of subpart C now requires CSAs to provide reemployment
services and the Act does not contain this particular for relocation
allowance eligibility.
There is an important difference between proposed Sec.
618.515(a)(5) and 20 CFR 617.42(a)(6) in the definition of eligibility.
The proposed provision substitutes ``suitable employment'' (as defined
at proposed Sec. 618.110) for ``suitable work.'' Therefore, before
granting a relocation allowance, the CSA must determine that a worker
has no reasonable expectation of securing ``suitable employment'' in
the commuting area. This is consistent with the treatment of job search
allowances and is a higher standard than the ``suitable work'' standard
that is used in Part 617. Using ``suitable employment'' in the
eligibility criteria for relocation allowances restricts the jobs for
which a relocation allowance may be paid. Nevertheless, the change
furthers the purpose of the TAA program, and the use of relocation
allowances in particular, by improving the financial ability of workers
to obtain new jobs with compensation and skill levels at or near those
of the jobs from which they were separated.
Two other significant differences between Sec. 618.515 and current
regulations involve the timing of relocations. First, proposed Sec.
618.515(a)(6) integrates 20 CFR 617.42(a)(7) and 20 CFR 617.43 and
simply states the two statutory 182-day time limits for beginning a
relocation (instead of stating that a worker must begin a relocation
``within a reasonable period''). Paragraph (a)(6) continues to refer to
a ``reasonable period'' for the time period for completing the
relocation, while retaining the required factors found at 20 CFR
617.43(a) that a CSA must consider in determining whether a worker has
completed the relocation within a reasonable time.
The second significant difference involves the statutory 182-day
time limit in which the relocation must occur. The Reform Act amended
section 238(c)(2) of the Act, which requires the worker's relocation to
occur within 182 days after the conclusion of an approved training
program, by adding at the end of the sentence the condition ``if the
worker entered a training program approved by the Secretary under
section 2296 [section 236 of the Act] (b)(1) and (2) [providing
subsistence and transportation payments for workers in training outside
the commuting area].'' The Department interprets section 238(c)(2) of
the Act to mean that only a worker approved by the CSA, under proposed
Sec. 618.640(c) and (d), to receive subsistence and transportation
payments for training at facilities outside the worker's commuting
area, may use the 182-day time limit after the conclusion of training
within which to relocate. Workers not approved by the CSA to receive
such subsistence and transportation payments, that is, workers who take
their training within their commuting area, are ineligible for the
additional 182-day time limit after the conclusion of training.
Instead, their relocation must occur within the 182-day time limit
after filing the application for a relocation allowance under Sec.
618.515(a)(6)(i)(A).
Proposed Sec. 618.525 simplifies, edits and updates the
requirements for determining the amount of relocation allowances under
20 CFR 617.45, 617.46 and 617.47. In general, a relocation allowance
includes 90 percent of the travel and subsistence costs of the worker
and their family to reach their new home, 90 percent of the cost of
moving household effects, and a lump sum payment equal to three times
the worker's average wage, not to exceed $1,250. This lump sum payment
was raised from $800 by the Reform Act. Proposed Sec. 618.525(a)(4),
however, does not refer to a lump sum dollar amount. Instead, it simply
provides the citation to section 237(b)(2) of the Act so that, if
Congress later increases the amount, these regulations will not have to
be amended.
Proposed Sec. 618.525 requires CSAs to follow the Federal Travel
Regulations (FTR). Proposed Sec. 618.525(a)(2) sets reimbursement
amounts for the family's meals and lodging at 90 percent of the lower
of their actual meals and lodging costs or one-half the applicable
prevailing per diem rates in the FTR. The current per diem rates can be
found on the Internet at the following Web site: http://www.gsa.gov.
Proposed paragraph (a)(1) refers to 41 CFR Parts 301-311 (travel) and
proposed paragraph (a)(3) refers to 41 CFR Part 302 (movement of
household goods). Proposed Sec. 618.525(a)(3)(ii) increases the
allowable amount of insurance coverage of such household goods and
effects to $40,000 from the current $10,000 found in 20 CFR
617.47(a)(1). The Department notes that moving a house trailer or
mobile home, as permitted under proposed Sec. 618.525(a)(3)(i), has
special requirements under the FTR, at 41 CFR 302-10, of which the
worker should be made aware prior to planning such a move. The specific
sections of the FTR may be accessed on the Internet at the following
Web site: http://www.access.gpo.gov/nara/cfr/waisidx_02/41cfrv4_02.html#301-1
.
Proposed Sec. 618.530 on the time and method of payment of a
relocation allowance serves the same purpose as 20 CFR 617.48, although
the proposed rule is edited for clarity and simplified. No relocation
allowances may be paid until the worker is covered under a
certification, makes a timely application, and is otherwise eligible,
and the CSA must promptly make and record determinations, as well as
make prompt payment of, relocation allowances. Any advance payments of
relocation costs will be made at the time of the relocation or as close
to the time of the scheduled relocation as possible,
[[Page 50775]]
but no more than 10 days before scheduled departure. Upon completing
the relocation as described in paragraph (f) of proposed Sec. 618.530,
the worker and the cooperating State agency will reconcile the advances
and costs and the worker will either receive the balance of the
allowance or repay any advance amount that might be due.
Subpart F--Training Services
Proposed subpart F governs TAA training. TAA approval of a training
program entitles a worker to payment of the costs of the training,
subject to a number of limitations included in this subpart. Section
236(a)(6) of the Act does, however, permit other funding sources to pay
all or part of the costs of a TAA-approved training program.
Participation in a TAA-approved training program is an eligibility
requirement for TRA, as explained in subpart G. Major changes include:
CSAs would be required to ensure that every worker has a
comprehensive assessment leading to the development of an IEP to
facilitate appropriate training for the worker.
Clarifying language is added to the six criteria provided
in the law that will enable CSAs to better determine what constitutes
approvable training.
Up to 26 additional weeks of training is provided for
individuals who need remedial education as part of their training
program, for a total of up to 130 weeks of training.
Excludes the purchase of computers as part of the cost of
a training program.
Allows adversely affected workers who are military
reservists ordered to perform active duty that interrupts their
training program to resume, repeat, or begin a new training program
upon discharge.
Provides workers training flexibility by allowing CSAs to
permit individuals to amend their training programs.
Allows the approval of part-time training when combined
with employment, which gives workers the option to continue working
while participating in training.
Requires the use of eligible training providers approved
under WIA to facilitate quality training and co-enrollment for trade
affected workers.
Expands worker training options by permitting distance
learning for all or part of a worker's program where the final degree
or certificate is equivalent to what would have been received if the
training had been conducted on campus.
Allows the Department to use a formula to allocate TAA
training funds to enable states to maximize timely training
opportunities for workers.
Permits the worker to continue training at his or her own
expense when the appropriation for training funds has been exhausted.
This enables a worker to continue to receive TRA and HCTC.
Introduces customized training as an allowable activity
under the TAA program to meet the needs of an employer or group of
employers.
Makes it easier for the worker to attend employer-paid
training by allowing the state to assume any unfunded portion of
partially employer funded programs and by allowing the state to assume
any liability if the worker is unable to successfully complete the
training.
Makes transportation costs for travel to and from training
payable for miles outside the worker's commuting area.
Facilitates the largest number of workers served by
allowing a CSA to determine a maximum reasonable cost for training for
the state or each local area.
Provides training services to individuals entitled to cash
benefits under the TAA for Farmers program administered by the U.S.
Department of Agriculture.
Proposed Sec. 618.600 explains that the purpose of an approved
training program is to assist an adversely affected worker to obtain
skills leading to a new job as quickly and effectively as possible.
Proposed Sec. 618.605 discusses general procedures for adversely
affected workers to apply for training, as well as other procedures
CSAs must follow in making determinations on applications for training.
Proposed paragraph (a) requires CSAs to ensure that every worker has a
comprehensive assessment leading to the development of an IEP, as
described in proposed Sec. Sec. 618.345 and 618.350, before approving
an application for training. The use of a comprehensive assessment in
the development of a worker's IEP is essential to ensure the proper
coordination and use of reemployment services to develop a successful
training program.
Proposed Sec. 618.605(b)(1) follows 20 CFR 617.22(d) on the use of
forms when applying for training, but simplifies the current regulatory
language to describe more accurately the process by which the worker
chooses a training program and applies to the CSA for approval based on
statutory criteria. While a worker may seek assistance from a CSA in
selecting a training program, ultimately it is the worker and not the
CSA who decides whether to apply to a particular training program.
Proposed paragraph (c) differs from 20 CFR 617.22(e) by adding that the
CSA, in making determinations on training and TAA-funded subsistence
and transportation payments under proposed Sec. 618.640, must keep
copies of all applications and determinations in the adversely affected
worker's case file. The Department proposes adding this language to
ensure that a worker's case file is complete and that it contains
relevant information about a worker's request for training.
Proposed Sec. 618.605(d) slightly changes 20 CFR 617.23(a) by
clarifying that CSAs are not required to create new training programs
or develop new curricula where none currently exist. Nonetheless, the
Department strongly encourages CSAs to use all necessary means to find
appropriate training where a significant void in training opportunities
exists. CSAs, in collaboration with the local One-Stop delivery system
and other partners, should explore how to make new training
opportunities available either by approving out of area training or by
encouraging training providers to provide needed training in the local
area, as well as exploring ways in which on-the-job training (OJT),
customized training, and other training programs can be adapted to
accommodate workers in areas that lack training opportunities.
Proposed Sec. 618.610, which corresponds to 20 CFR 617.22(a)(1)
through (a)(6), implements all six statutory criteria for training
approval. The introductory language adds a new requirement that a CSA
must refer to a worker's comprehensive assessment and IEP before
approving training because they will be important tools for measuring
the proposed training against the approval criteria.
Criterion 1, implemented by proposed Sec. 618.610(a), requires
that there be no suitable employment available for the adversely
affected worker. Section 236(e) of the Act provides the definition of
``suitable employment, which appears at proposed Sec. 618.110.
Proposed paragraph (a) generally follows 20 CFR 617.22(a)(1)(i), but
includes the condition that a CSA must deny training approval if the
worker is notified of a specific recall to the firm in the same or
essentially the same job that is expected to be permanent. When recalls
are scheduled in the foreseeable future, workers clearly do not require
training because suitable employment is available to the worker. In
that case, it is appropriate for the CSA to grant a waiver of the
training requirement under the recall provision at proposed Sec.
618.725(b)(1) to allow the worker to qualify for TRA while awaiting the
recall. Proposed paragraph (a) also
[[Page 50776]]
explores more fully the concept of ``no reasonable prospect of such
suitable employment in the foreseeable future'' by requiring the CSA to
look at both the worker's skills and the local or appropriate out of
area labor market indicators as well as the likelihood of recall.
Criterion 2 (the worker would benefit from the appropriate
training), implemented by proposed Sec. 618.610(b), contains similar
requirements to the current regulation at 20 CFR 617.22(a)(2)(i).
However, instead of referring to ``job readiness,'' criterion 2
emphasizes that the training is expected to improve the worker's
chances of obtaining and retaining ``sustainable employment at higher
wages for the worker than in the absence of training.'' This change
emphasizes the Department's belief that approved training should
provide the worker with the skills necessary to remain employed
throughout a career.
Proposed Sec. 618.610(b)(2) follows the current regulations at 20
CFR 617.22(a)(2)(i) in requiring that a worker be capable of
undertaking, making satisfactory progress in, and completing the
training. However, the Department proposes eliminating the phrase
``mental and physical capabilities'' that is currently contained in 20
CFR 617.22(a)(2)(i) and substituting the phrase ``knowledge, skills,
and abilities'' as the test for determining whether a worker can
undertake, make satisfactory progress in, and complete the training in
order to eliminate any suggestion that a CSA or subrecipient may
lawfully take the disability or disabilities of a qualified worker into
consideration when determining eligibility for training. Section 504 of
the Rehabilitation Act of 1973 (29 U.S.C. 794) and its implementing
regulations at 29 CFR Part 32 and, if applicable, WIA section 188 (29
U.S.C. 2938) and its implementing regulations at 29 CFR Part 37,
prohibit such consideration. Both 20 CFR Part 32 and 29 CFR Part 37
define the circumstances under which a particular individual with a
disability may be considered ``qualified'' for a program or activity.
See the definition of ``qualified handicapped individual'' in 29 CFR
32.3 and 29 CFR 37.4. For the same reasons, the same change was made in
Sec. 618.610(e) and ``knowledge, skills and abilities'' replaces the
word ``capabilities'' in Sec. 618.610(f). For further information
about these requirements, contact the Department's Civil Rights Center
(CRC) as directed in the regulatory text of proposed Sec.
618.875(i)(3).
Proposed Sec. 618.610(b)(3) contains a new requirement that a CSA
must not approve applications for training programs that would result
in seasonal employment of such short duration and minimum compensation
that a worker cannot achieve self-sufficiency, as defined by the Local
Workforce Investment Board under 20 CFR 663.230. The Department
believes that training that would result in this type of seasonal
employment does not benefit the worker and would be an inappropriate
use of limited training funds.
Criterion 3 (there is a reasonable expectation of employment
following the completion of such training) is implemented by proposed
Sec. 618.610(c)(3) and corresponds to 20 CFR 617.22(a)(3). It provides
that the CSA must assess, based on labor market information about
present and future employment conditions and trends, whether the skills
and education acquired while in training is likely to allow the worker
to find a job allowing the worker to achieve self-sufficiency, as
defined by the State or Local Workforce Investment Board under 20 CFR
663.230.
Criterion 3 would not require that TAA-approved training must lead
to a job or that the CSA must create training that leads to jobs for
adversely affected workers. The Department recognizes that there are
situations in which tight local labor markets or significant barriers
to employment may make it difficult or impossible to identify immediate
job opportunities for workers. The same workers may, however, benefit
from training by improving their abilities to compete in the labor
market by gaining skills needed to compete for jobs. The Department
proposes to interpret criterion 3 flexibly enough to allow CSAs to
approve training that they determine will lead to the acquisition of
skills that will significantly improve a worker's prospects of
obtaining a job in the local labor market, even if job opportunities
after completion of the training cannot be identified.
Accordingly, proposed paragraph (c)(1) expands upon the statutory
language discussed in 20 CFR 617.22(a)(3) by expressly providing that a
reasonable expectation of employment does not require that employment
opportunities for a worker be available, or offered, immediately upon
the completion of training. However, it may not be realistic to approve
training in an occupation in which there has been a trend of fewer and
fewer job openings over some period of time, or where the industry in
which the retraining is proposed has been laying-off workers with
skills similar to those for which training is requested. This criterion
requires TAA and One-Stop delivery system staff to continually update
their knowledge of the local labor market and its trends.
Proposed paragraphs (c)(2) through (c)(5) do not have counterparts
in current regulations. Paragraph (c)(2) allows CSAs to use the demand
occupation list maintained by the Local Workforce Investment Board, as
required in the WIA regulations at 20 CFR 661.350 in determining
whether there is a reasonable expectation of employment following
training. Use of this common information source reinforces the
relationship of the partner programs in the One-Stop delivery system
and encourages the Local Workforce Investment Board to think broadly
about the types of workers who that system serves. WIA permits each
Local Workforce Investment Board to define ``demand occupation'' based
on its unique labor market conditions, trends, and employer-identified
skill needs. As the staff of a required partner in the One-Stop
delivery system, TAA program staff should participate in discussions
about how demand occupations are determined and the content of the
list. Proposed Sec. 618.610(c)(3) places a new obligation on the CSA
to document that there is a reasonable expectation of employment in the
planned area of relocation when a worker desires to relocate.
Proposed Sec. 618.610(c)(4) recognizes that a ``demand for one''
can exist in the local labor market, as long as that demand can be
documented by the CSA with evidence that an employer intends to hire
the worker upon successful completion of the training. This provision
permits the CSA to determine that a reasonable expectation of
employment exists in an occupation that may be a valid career choice,
but for which there are very limited numbers of jobs in rural areas or
in larger workforce areas where only a few skilled specialists are
needed to meet the local demand (e.g., taxidermist or underwater boat
repairer). Proposed paragraph (c)(5) recognizes that self-employment is
a viable option under existing market conditions, even where there is
no expectation that employers have positions available in a given
occupation upon completion of training.
Criterion 4 (training is reasonably available) is implemented by
proposed Sec. 618.610(d) and corresponds to 20 CFR 617.22(a)(4) but
has been simplified. This criterion requires that training be
reasonably available to the worker from either governmental agencies or
private sources and refers to the list of possible sources of approved
training contained
[[Page 50777]]
in proposed Sec. 618.620, noting that the list is not exhaustive. It
eliminates the requirement in current 20 CFR 617.22(a)(4)(ii) that
first consideration be given to training within the worker's normal
commuting area and that training outside the commuting area should only
be approved if such training is not available within the commuting area
or would cost less. A similar requirement now appears in proposed Sec.
618.610(f)(2)(ii) as part of the sixth criterion for training approval.
Criterion 5 (the worker is qualified to undertake and complete such
training), implemented by proposed Sec. 618.610(e), follows the
requirements in 20 CFR 617.22(a)(5), but has been reorganized and some
minor provisions added. Proposed paragraph (e)(1) adds a new
requirement directing the CSA to consult the worker's IEP or
comprehensive assessment. Proposed paragraph (e)(2) generally follows
20 CFR 617.22(a)(5)(ii), and stresses that the duration of the approved
training must be commensurate with the worker's financial resources.
Criterion 6 (the training is suitable for the worker and available
at a reasonable cost) is implemented by proposed Sec. 618.610(f) and
generally follows the current regulations at 20 CFR 617.22(a)(6).
Proposed paragraph (f)(1) identifies the worker's comprehensive
assessment and IEP as sources of information on the worker's knowledge,
skills, and abilities, background and experience. The first sentence of
20 CFR 617.22(a)(6)(i) is not included because it is unnecessary.
Proposed Sec. 618.610(f)(2) discusses reasonable cost, which has
been and continues to be a critical determinant in approving training
programs to ensure that training funds are expended wisely, are
available for the maximum number of adversely affected workers, and can
also adequately support workers to ensure that they will complete their
selected training. Proposed paragraph (f)(2)(i) includes a new cost
prohibition against using TAA funds to purchase personal computer
equipment for adversely affected workers to own in order for them to
engage in a training program that requires such equipment as a
prerequisite. However, this provision allows CSAs to purchase personal
computer equipment which it can then lend to those workers who are
required to have such equipment for their particular training programs.
Certain One-Stop systems using funds under WIA have successfully
instituted similar loan arrangements for use of computer equipment.
Therefore, if a training program requires the use of computer
equipment, a CSA may not approve the training if it determines that the
worker lacks access to the necessary computer equipment. This
prohibition will help to ensure that purchases of personal computer
equipment for workers to own will not deplete the TAA funds available
for training and other benefits.
Since the amount of training funds is capped, the statute requires
that training be approved only if it is ``available at a reasonable
cost,'' and, once approved, a worker is entitled to payment of all the
costs of the approved training, the Department believes it is important
to assure that the costs of training are kept in check as long as the
training is adequate to meet the worker's needs. Proposed Sec.
618.610(f)(2)(ii) through (iv), as well as the proposed cost cap in
Sec. 618.650, seek to accomplish this cost containment in several
ways. These paragraphs restate many of the requirements of Sec.
617.22(a)(6)(ii) and (iii). These proposed paragraphs have not retained
the requirement, in Sec. 617.22(a)(6)(ii), that, in determining the
reasonableness of the cost of training, the cost be compared with the
costs of training workers in similar occupations. The Department
believes that CSAs should have more flexibility in determining the
reasonable cost of training, within the parameters set forth below.
Proposed Sec. 618.610(f)(2)(ii) provides that the CSA must first
consider the lowest cost training available in the worker's commuting
area, if that training is of sufficient quality, content, and expected
outcome to meet the worker's occupational goal as reflected in the
worker's IEP, as developed under proposed Sec. 618.340. A CSA may
approve higher cost training if it is of higher quality, content, or
expected outcomes or is expected to achieve comparable results in a
significantly shorter duration. The Department intends that higher cost
training not be approved unless there is a clear (``demonstrable'')
difference in the quality and results of the training or unless the
same results can be achieved in a significantly shorter time, which is
consistent with the Act's intent to get workers back into employment as
rapidly as possible. The words ``demonstrably'' and ``significant''
have been included in the regulatory language to make clear that there
must be a real and substantial benefit from a more expensive training
program in order for it to be approvable when a good and less expensive
training program is available.
Proposed Sec. 618.610(f)(2)(iii) consolidates 20 CFR 617.22(b)
into this criterion 6. It provides that training in a selected
occupational area may not be approved if (1) it requires an
extraordinarily high skill level, and (2) the total costs of the
training are substantially higher than the costs of other types of
training that are suitable for the worker. The intent of the second
clause is to require CSAs to choose the least expensive method of
training that provides similar results for the worker. So, for example,
if an on-the-job training opportunity would cost $2,000 and a classroom
training course that would teach the same skills would cost $6,000, a
CSA must approve the OJT opportunity.
Proposed Sec. 618.610(f)(2)(iv) follows 20 CFR
617.22(a)(6)(iii)(C) in prohibiting approval where transportation or
subsistence payments for training outside the worker's commuting area
add substantially to the total cost of training, if other appropriate
training in the commuting area is available at a lower cost. Proposed
paragraph (f)(2)(v) introduces a new restriction. A CSA may deny
approval of training when its costs exceed the limit on the amount of
training per worker set by a CSA, unless that agency makes an exception
based upon individual and exceptional circumstances, as provided in
proposed Sec. 618.650(a). The preamble discussion of Sec. 618.650
explains this training cap.
Proposed Sec. 618.615 discusses the various limitations on a CSA's
approval of a training program. In particular, proposed paragraph
(a)(2) contains a new requirement that CSAs consider factors such as a
worker's full- or part-time non-suitable employment, as described in
proposed Sec. 618.630, childcare considerations, and the worker's
course selection.
Proposed Sec. 618.615(a)(3) corresponds to 20 CFR 617.22(f)(2),
which limits the maximum duration of any approvable training program to
match the duration of training to the statutory limits on income
support since, for most workers, the availability of income support is
critical to the ability to engage in training. The Department
interprets the Reform Act's addition of 26 weeks of TRA for adversely
affected workers who require remedial education, as discussed in
proposed Sec. 618.755, to mean that Congress intended to match the
maximum number of weeks of training with the maximum number of
available weeks of income support (UI plus TRA). Therefore, paragraph
(a)(3)(i) changes the current 104-week regulatory limit on weeks of
training to include up to an additional 26 weeks of training for
workers whose approved training includes remedial education, for a
total
[[Page 50778]]
number of weeks of training not to exceed 130 weeks.
This proposed paragraph also clarifies the existing regulation by
specifically stating the current program requirement of counting
consecutive calendar weeks when measuring the duration of training.
This ensures that the number of weeks of an approved training program
does not significantly exceed the number of weeks of UI plus TRA.
Proposed Sec. 618.615(a)(3)(iii) does not have a counterpart in
Part 617 because it concerns program changes adopted in the Reform Act.
It requires the CSA to consult the worker's comprehensive assessment or
IEP when determining the length of remedial education the worker needs,
and permits a CSA to approve a training program consisting entirely of
remedial education when such a program is appropriate for the worker.
The Department proposes these measures to ensure that the duration of
any remedial education component of a training program meets the
worker's specific needs. The Department expects CSAs to approve
remedial education programs when it is justified to help workers who
need assistance with the basic skills of reading, writing, mathematics
and/or language to obtain employment. When determining the type and
length of remedial education appropriate for the worker, CSAs should
assess the worker's basic skills to determine whether there are
deficits in any area that necessitate remedial education. Remedial
education may occur before, or while participating in, the requested
training program.
Proposed Sec. 618.615(a)(4) creates an exception to the duration
of training requirements to meet the training needs of adversely
affected workers who are members of a reserve component of the U.S.
Armed Forces ordered to perform active duty service. Such workers
should not be penalized for serving their country. The exception tolls
the duration of training requirement so that those workers who return
after involuntarily being called up to active duty service can re-
enroll in a training program upon their return or even begin a new
training program. The terms, notification procedures, and documentation
requirements in proposed paragraphs (a)(4)(i) through (a)(4)(v)
coincide with those in the Uniform Services Employment and Reemployment
Rights Act (USERRA) (38 U.S.C. 4301-4333), which protects reemployment
rights of workers called to military service. These procedural
requirements differ from those in USERRA, 38 U.S.C. 4312, when
necessary to conform to the situation of an adversely affected worker
enrolled or participating in a TAA-approved program.
The Department invites comments on whether to allow other
exceptions to the duration of approvable training programs and, if so,
what exceptions might be appropriate. As is discussed above, a purpose
of the proposed limits is to ensure that income support is available
throughout the training period. However, the Department recognizes that
not all workers need income support to complete training, and that some
workers might have a need for a longer training program or to
temporarily suspend training. Allowing exceptions could provide such
workers more options. On the other hand, further exceptions could
undermine the purpose of TAA to return a worker to worker as fast as
possible.
Proposed Sec. 618.615(b) greatly expands upon the current
regulatory requirement for amending an approved training program. The
second sentence of 20 CFR 617.22(f)(3)(ii) merely permitted an
amendment ``to add a course designed to satisfy unforeseen needs of the
individual.'' Proposed paragraph (b) recognizes that more substantial
amendments may be necessary and sets forth the circumstances, and
conditions, under which amendments, including the substitution of an
entirely new program, may be made. Proposed paragraph (c) retains the
single training program rule of 20 CFR 617.22(f)(2), but permits
exceptions for amendments, as well as when an adversely affected worker
is called for active duty as provided in paragraph (a)(4). Paragraph
(c) thereby seeks to ensure careful expenditure of limited training
funds in a manner that will meet the training needs of the greatest
number of adversely affected workers.
Proposed Sec. 618.615(d) corresponds to 20 CFR 617.22(f)(4) on
full-time training, but differs significantly by permitting CSAs to
approve part-time training. This section recognizes that a mix of
training and employment suited to the worker's situation may achieve
the sustained employment goal, and do so as quickly as possible. This
will permit workers financially or otherwise unable to participate in
full-time training to enroll in TAA program training opportunities to
upgrade their skills. In particular, proposed paragraph (d)(2)(i)
requires that the combination of part-time training and part-time
employment must represent the equivalent of full-time employment as
defined by the State UI law. However, the overall limitation on the
duration of training under proposed Sec. 618.615(b) remains the same.
Proposed Sec. 618.615(d)(ii) provides that if the hours of work
are reduced so that the combination of part-time employment and part-
time training no longer represent the equivalent of full-time
employment, the worker may complete that session or semester. However,
the training approval must be rescinded beginning with the next session
or semester, unless the combination of part-time employment and part-
time training is changed to represent the equivalent of full-time
employment by that time. Proposed paragraph (d)(2)(ii) recognizes that
employers may reduce workers' hours of employment or terminate
employment during an approved training program and protects a worker by
allowing the worker to continue in training for a period of time or to
find other non-suitable employment or to increase his/her training
schedule to continue in the approved training program on a part-time
basis.
Proposed paragraph (d)(2)(iii) also protects workers by requiring
CSAs to ensure that workers understand the effects of part-time
employment on receipt of UI and other TAA benefits, including the HCTC,
to prevent their unknowingly losing benefits due to this choice. Even
with these limitations on part-time training, this change provides a
worker the option, if approved by the cooperating State agency, to
choose a mix of training and employment that best suits the worker's
situation. While the Department seeks to provide workers with greater
flexibility in choosing training options, the primary goal of approved
training remains returning the worker to employment as quickly as
possible. CSAs should keep this goal in mind when determining whether
to approve part-time training.
Proposed Sec. 618.620 provides for the selection of training
programs. Proposed paragraph (a) represents a change from the language
at 20 CFR 617.23(d), which outlined the selection criteria for training
programs and also evaluated a training provider's success by placement
rates.
Proposed Sec. 618.620(a) establishes the criteria for selecting
training providers but also describes the procedures for approving
affected worker requests for training by a training provider that is
not on a State approved list. Under proposed Sec. 618.620(a)(1),
training other than OJT, customized training, or training for a limited
demand occupation must be provided to an adversely affected worker
through a program approved under the WIA eligible training provider
provisions. Further, proposed Sec. 618.620(a)(2) eliminates the
reference to a training
[[Page 50779]]
provider's placement rates and requires the CSA to follow procedures
under WIA when an affected worker requests training from a provider
that has not been approved. Proposed Sec. 618.620(a)(3) makes an
exception from the requirement that a training provider must be on the
State-approved list for training in limited demand occupations if the
training meets the requirements described in Sec. 618.610(c)(4).
The Department believes that the TAA requirements for approving a
training provider for an adversely affected worker should follow the
requirements of WIA. By following the WIA approval procedures, CSAs
would be required to ensure the credibility and accountability of
service providers and for providing quality performance information to
participants. Following the WIA procedures would fulfill the
requirement of section 239(e) of the Act, which requires the Department
to coordinate services provided under TAA with those offered under WIA.
It would also abandon the outdated ``silo'' approach to workforce
development and make the various programs work together more closely,
as the Reform Act amendments contemplate. This approach also is
consistent with section 236(a)(1)(B) of the Act, which allows training
to be approved if the CSA determines that the worker can benefit from
the training. Requiring CSAs to use training providers approved under
WIA provides an assurance that workers will receive the skills needed
to reach their employment goals because the providers have demonstrated
that they operate effective training programs.
To take account of possible amendments to the process of approving
training providers in the WIA reauthorization, the Department refers to
``eligible training providers'' under WIA rather than specifically
referring to the Eligible Training Provider list. This revision would
allow the TAA training requirements to change as the WIA training
provider requirements evolve through future legislation.
Proposed Sec. 618.620(a) does not include the language in 20 CFR
617.23(d)(2) that describes the procedures for determining the types of
training that may be provided, including the requirement to consult
with local employers, appropriate labor organizations, and others. The
Department believes this language is unnecessary because CSAs may only
approve training by providers that have been approved under WIA
requirements. Those requirements provide an opportunity for business
and labor to comment on the selection procedures. Therefore, the
Department believes that this process is sufficient to accomplish the
same result without the additional language in 20 CFR 617.23(d)(2).
Proposed Sec. 618.620(b) covers methods of training and generally
follows 20 CFR 617.23(b), (c)(1) and (c)(2). Proposed paragraph (b)(2)
provides for preference to be given to on-the-job training under
proposed Sec. 618.635 when firm-specific training is not practical. In
determining whether to approve OJT, the CSA must consider the six
criteria in Sec. 618.610, as well as the availability of OJT and the
worker's need for remedial education, and must inform the worker of the
effect of such training on eligibility for HCTC. Because of these
latter two new factors, added by the Reform Act, the Department has
revised the language about the preference for OJT to make it clear that
these new factors must be taken into account in determining what
training method best fits an adversely affected worker's needs.
Proposed Sec. 618.620(b)(4) is derived from 20 CFR 617.23(c)(2),
but adds some new features. It describes institutional training methods
and gives priority to training in public area vocational and technical
education schools and community colleges (when it is determined that
these schools are at least as effective and efficient as other
institutional alternatives). The Department has added the reference to
community colleges in recognition of their importance to the nation's
overall training efforts. Proposed paragraph (b)(4) also expands the
kinds of approvable institutional training specifically to include the
increasingly popular option of distance learning, where a participant
completes all or part of an educational or training program in a
location remote from the institution hosting the program.
Proposed Sec. 618.620(c), which provides a non-exclusive list of
other specific types of approvable training programs, generally follows
20 CFR 617.24(d), (e) and (f). However, this provision adds vocational
and technical education to the list of approvable types of training
because they are included in the Carl D. Perkins Vocational and Applied
Technology Education Act, which supercedes the Vocational Education Act
of 1963, to which section 236(a)(1)(D) of the Act refers.
Proposed Sec. 618.625 explicates a series of restrictions on
payments for training programs. It follows 20 CFR 617.25(b), but has
been rewritten, simplified and condensed to eliminate certain
redundancies. The introductory paragraph contains new language that
specifically allows the Department to use a formula to distribute the
statutorily-capped training funds to CSAs, as permitted under section
236(a)(2)(B) of the Act. Distribution of TAA funds by formula adds
predictability and regularity to the funding process, and allows CSAs
to better plan for and manage the use of available training funds.
Of particular note, proposed Sec. 618.625 (c) permits the CSA to
share training costs with authorities administering other Federal,
State, and private funding sources. It is based on section 236(a)(5)(E)
and 236(a)(6) of the Act, allowing for the sharing of program costs,
and follows 20 CFR 617.25(b)(2) and (b)(3). The CSA should take into
consideration all appropriate and available funds to pay for a TAA
training program, thereby reducing the amount of TAA training funds
used to cover the costs. Within the One-Stop delivery system, it may be
possible to leverage training resources, including resources for basic
and remedial education, and specialized training for workers with
disabilities, with other One-Stop delivery system partner programs.
Proposed Sec. 618.625(c)(1) follows 20 CFR 617.25(b)(3)(ii)(A). It
authorizes the CSA to share future costs of training where prior costs
were paid from another Federal, State or private source, as permitted
by section 236(a)(5)(E) and 236(a)(6) of the Act. However, it prohibits
reimbursement from TAA funds of any training costs which were incurred
and for which payment became due before the approval of the training
program. For example, if a laid-off worker is enrolled in WIA-funded
training (using a prearrangement discussed in proposed paragraph
(c)(2)) in order to ensure that there is no delay in the worker's
access to needed training because the semester will begin before the
certification decision on the TAA petition, then TAA funds may not be
used to pay for any costs of the training program incurred before
certification.
Proposed Sec. 618.625(c)(2)(i) corresponds to 20 CFR
617.25(b)(2)(ii) and (b)(3)(ii)(A), describing prearrangements and what
is required in prearrangement agreements. These agreements may be
entered into on a case-by-case basis to address specific training
situations of workers or they may be part of an overall statewide
strategy to effectively use and maximize available resources from TAA,
workforce development and other programs. Prearrangements help prevent
duplication of the payment of training costs, which is prohibited by
section 236(a)(4)(B)(i) of the Act. They also help ensure that training
costs that are
[[Page 50780]]
reimbursable under any other Federal law are not paid from TAA funds,
which would violate section 236(a)(4)(B)(ii) of the Act. Proposed
paragraph (c)(2)(i) also contains a new requirement that the CSA must
enter into an agreement with another funding source to specify how the
worker's training program will be funded if funds become available from
another source to pay for training after TAA funds are committed. The
Department has added this provision for clarity because it specifically
covers a situation not previously addressed in the regulations.
Proposed Sec. 618.625(c)(2)(ii) follows 20 CFR 617.25(b)(3)(ii)(B)
and is derived from section 236(a)(6)(B) of the Act. This provision
will help avoid duplicate payments of training costs by requiring the
worker to enter into a written agreement with the CSA providing that
TAA funds will not be applied toward, or used to pay, any portion of
the costs of the training that the worker has reason to believe will be
paid by any other source.
Proposed Sec. 618.625(c)(3)(i) follows 20 CFR 617.25(b)(4)(ii)(C).
As required by section 236(a)(4)(C) of the Act, the CSA must not
consider payments to the worker under other Federal laws which do not
directly cover the costs of training in determining the amount of
training costs payable from TAA funds. Thus, Federal student financial
assistance paid directly to a worker is not deducted from the worker's
TAA benefits. This is also consistent with 20 U.S.C. 1087uu, which
prohibits Federal student financial assistance from being considered in
determining eligibility for, or the benefit amount, under any other
Federally-funded benefit or assistance program. To effectuate this
prohibition, proposed paragraph (c)(3)(i) eliminates the requirement of
20 CFR 617.25(b)(4)(ii)(C)(1) that payments of Federal student
financial assistance to the worker be deducted from TRA.
Proposed Sec. 618.625(c)(3)(ii) follows 20 CFR
617.25(b)(4)(ii)(C)(2) in requiring that when other Federal funding
sources directly pay the training provider for training costs, the
payments must be accounted for as a direct payment of training costs
under that other Federal law. Thus, the CSA must deduct the amount of
those other payments from the amount of TAA funds payable to the
training provider in order to prevent duplication in the payment of
training costs. Generally, the CSA will use a prearrangement agreement
to assure proper accounting for these payments.
Proposed Sec. 618.625(d)(2)(i), modified from 20 CFR
617.25(b)(5)(ii), prohibits the approval of a training program if the
worker is required to pay training costs from TAA funds or any funds
belonging to the worker from any source, subject to the limited
exception provided in proposed paragraph (d)(2)(ii). This prohibition
follows section 236(a)(1) of the Act, which provides that the worker is
entitled to have the costs of approved training paid by the Secretary,
subject to the annual training cap limitation under section
236(a)(2)(A). Proposed paragraph (d)(2)(ii) creates a new and limited
exception that permits a worker to contribute personal funds for the
payment of training costs when the Director determines that all
available funds have been allocated, and only when the CSA determines
that no other funding from other sources is available to pay for such
worker's training program. Where the worker chooses to pay those
unfunded costs, the CSA is not liable to pay those costs. Where the
worker chooses not to pay the unfunded costs, the CSA must waive the
training requirement in order to preserve any remaining basic TRA
eligibility under proposed Sec. 618.725(b)(6) on the basis that
training is not available. Of course, waiving the training requirement
will not benefit those workers who have begun receiving additional TRA
before ceasing training due to lack of training funds. The Department
expects CSAs to make every reasonable effort to find other funding,
including WIA dislocated worker and NEG funds, to provide training when
TAA funds are capped. This option should rarely be used and only as a
last resort.
Proposed Sec. 618.625(d)(2)(iii) is also new and addresses the
situation where an employer or other entity agrees to fund training
costs under conditions that may make the worker liable for all or a
portion of those costs if certain conditions are not met. For example,
an employer may offer separated employees paid training, but require
the worker to reimburse the employer if the worker does not maintain a
certain minimum grade point average (GPA). If the training is otherwise
approvable under the Act, this proposed provision would allow the CSA
to contract with an employer or other entity to assume any unfunded
costs on the worker's behalf. Thus, in the above example, if the
employer required the worker to maintain a 2.5 GPA or lose the paid
training benefit, the worker could enroll in and receive employer-
funded training, and, if the worker later achieves only a 2.4 GPA, the
agreement would allow the CSA to assume the cost of training and not
force the adversely affected worker to reimburse the employer. This
provides the CSA with greater flexibility to leverage the use of
nongovernmental funds made available by employers and others to
adversely affected workers.
Proposed Sec. 618.630, which follows 20 CFR 617.22(g), derives
from section 236(d) of the Act. This provision addresses those workers
who cannot find suitable employment, as defined in proposed Sec.
618.110, but who obtain non-suitable employment. These workers, while
employed, continue to be eligible for TAA training opportunities as
long as their proposed training meets the approval criteria in proposed
Sec. 618.610. They may continue their employment while waiting for
their selected training course to begin. Upon approval and enrollment
in training, they may choose to terminate their employment, reduce the
hours worked, or continue in either full- or part-time employment while
taking training (as discussed in proposed Sec. 618.615(c)). The
workers may not be determined ineligible or disqualified for UI or TAA
program benefits, including TRA, because they left work that is not
suitable employment. Of course, choosing to continue in such
employment, either part- or full-time, may have negative effects on UI
and TAA benefits, including the possible loss of the HCTC. Proposed
paragraph (a) requires CSAs to provide written notice to warn an
adversely affected worker who continues in non-suitable employment on a
part-time or full-time basis while undertaking approved training that,
due to disqualifying income, the worker may not receive any UI or TRA,
which might then forfeit the worker's eligibility for the HCTC.
Employed TAA participants continue to be eligible for job search and
relocation allowances before or upon completion of their TAA training,
as discussed in proposed Sec. 618.630(b).
Proposed Sec. 618.635 modifies 20 CFR 617.25(a) to provide a new
description of OJT that follows the statutory definition at section
247(16) of the Act. This section sets forth detailed requirements for
OJT and customized training. OJT must be provided under a contract
between the CSA and an employer, which may be in either the public or
private sector. Related education necessary for acquisition of skills
needed for the position should be provided to the extent possible,
either as part of the OJT contract or separately as approved TAA
training. Classroom training sponsored by the employer (known as
vestibule training) may be part of OJT and may occur either before the
actual ``hands-on'' training or may be provided for part of the day
with the balance of the training day in a productive setting. The IEP
and the OJT
[[Page 50781]]
contract should specify the duration of the OJT, which must be
appropriate to the occupation for which the adversely affected worker
is being trained. The duration of the OJT does not need to be the same
for the same occupation for all workers as long as it allows the worker
to become proficient in the occupation.
Proposed Sec. 618.635(a)(5) contains the conditions required by
section 236(c) of the Act for approval of the costs of OJT. Proposed
paragraphs (a)(5)(i) through (a)(5)(viii) are essentially unchanged
from 20 CFR 617.25(a)(1) through (a)(7) and (a)(9), except for minor
language changes. Paragraphs (a)(8) and (a)(10) of 20 CFR 617.25(a)
have been dropped because of the repeal of the previous language of
section 236(c)(8) of the Act, which required the employer to certify to
the Secretary that the employer will continue to employ such worker for
at least 26 weeks after completion of training if the worker desires to
continue employment and the employer does not have due cause to
terminate the employment. In the Reform Act, Congress replaced the
former section 236(c)(8) requirement with a requirement that the
employer be 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. This requirement is now
included in proposed Sec. 618.635(a)(4).
Proposed Sec. 618.635(a)(6) follows the statutory provision
requiring payments for OJT to be made to employers in equal monthly
installments. Proposed paragraph (a)(6) changes 20 CFR 617.25(a) to
eliminate confusion over this requirement and to clarify that it does
not require equal dollar amounts be paid on a monthly basis. Instead,
proposed paragraph (a)(6) permits CSAs to pay either in equal monthly
dollar amounts or to compute the monthly payments based on the same
rate of reimbursement for each hour worked, up to a maximum of 40 hours
each week. Under this latter method of computation, the dollar amounts
of the payments may fluctuate because, though paid at the same rate,
the payments are based on different numbers of hours.
Proposed Sec. 618.635(a)(7) is a reminder that proposed Sec.
618.765(c) provides that workers engaged in OJT are not eligible for
TRA because workers must be eligible for TRA to be considered eligible
for the HCTC.
Proposed Sec. 618.635(b) explains customized training, which is a
new term under section 236(f) of the Act and is part of employer-based
training under section 236(a)(5)(A) of the Act. Proposed paragraphs
(b)(1) through (b)(3) set forth the specific requirements for
customized training. For example, proposed paragraph (b)(3) requires
the CSA to consider similar policies established under WIA by the State
and Local Workforce Investment Boards in determining the portion, which
must be at least 50 percent, of the cost of customized training paid by
the employer.
Proposed Sec. 618.640 discusses the requirements for TAA-funded
subsistence and transportation payments and combines 20 CFR 617.27 and
617.28. Proposed paragraph (b) incorporates the determination and
notice requirements of proposed Sec. 618.825 and the hearings and
appeals requirements of proposed Sec. 618.835 for any determination by
a CSA on an application for supplemental assistance.
Proposed Sec. 618.640(c) and (d) correspond to, condense, and
rewrite for clarity 20 CFR 617.27 and 20 CFR 617.28, respectively.
Proposed paragraph (d)(3) sets forth the calculation of the
transportation allowance, and provides that these payments are solely
for those miles beyond the commuting area. This is a significant change
from 20 CFR 617.28(b), which provides an allowance for the entire round
trip distance where training is conducted outside the commuting area.
Section 236(b) of the Act permits, but does not require, the Department
to pay, ``where appropriate,'' supplemental assistance necessary to
defray ``reasonable'' transportation expenses when the training is
outside the community area. In order to conserve the capped training
funds for tuition, fees, books, and equipment, the Department proposes
to limit training allowances to only those miles beyond the commuting
area. The Department believes this change is reasonable because workers
who travel to training within the commuting area receive no allowance.
Proposed Sec. 618.645 establishes a new requirement for an
adversely affected worker's voluntary withdrawal from a training
program. Proposed paragraph (a) provides that the CSA must advise the
adversely affected worker that eligibility to training, even though not
completed, under the existing certification is terminated if they
withdraw from approved training. The worker will not be able to resume
the training program. Proposed paragraph (a) also recognizes an
exception: If a worker ceases participation in a training program for
justifiable cause, the worker may resume the program if it can be
completed within the 104 or 130 week time limits of proposed Sec.
618.615(a)(3). This provision further implements the single training
program rule of proposed Sec. 618.615(c). Because of the limitations
on training funds, the Department cannot afford to pay for workers to
take more than one approved training program. However, proposed
paragraph (b) recognizes that adversely affected workers who withdraw
from training still may receive job search and relocation allowances if
they meet all the eligibility requirements for these benefits as set
forth in proposed Sec. Sec. 618.410 and 618.515.
Proposed Sec. 618.650 provides new authority, under certain
conditions, for CSAs to set limits on the amount of training costs
payable for adversely affected workers. Section 236(a)(F) of the Act
requires the Secretary to approve training suitable for the worker and
available at a reasonable cost. The Department has interpreted
``reasonable cost'' in proposed Sec. 618.610(f)(2) to require taking
into consideration, among other things, ``the least cost to TAA funding
of providing suitable training opportunities to the worker.'' This
requires the CSA to focus on approving training for individual workers
at the lowest reasonable cost for the particular type of training in
that area that will enable the worker to obtain employment within a
reasonable period of time. This focus on the lowest reasonable cost
will result in training opportunities for the largest number of
adversely affected workers.
To achieve the goal of expanding training opportunities for the
largest number of workers, the Department believes it must give CSAs
the authority to set specific training caps as a tool to ensure they
approve training for individual workers at the lowest reasonable costs
which will lead to employment. Proposed Sec. 618.650 allows CSAs to
establish training caps on a statewide or local area basis, and, if
caps are established, requires that they be set based on the costs for
training available in the local area. The Department is concerned that
a state-wide training cost cap could shortchange areas of the State in
which training costs are high. Thus, a CSA may not arbitrarily
establish a cap. In recognition that in a large State costs may vary
significantly from urban areas to rural areas, the State must arrive at
a reasonable cap based upon training costs in the local areas
throughout the State.
Proposed Sec. 618.650(a) allows training caps to be established on
a statewide or local area basis. If these caps are used, however, they
must reasonably reflect the costs for training available in all the
local areas throughout the State. The CSA must also develop standards
and procedures for the review and approval
[[Page 50782]]
of training costs that exceed established limits, based on individual
and exceptional circumstances. This exception to the cost cap will
prevent the denial of a training program based solely on a cost
limitation. While the Department expects CSAs to be judicious in
granting exceptions, the Department recognizes that there will likely
be a few exceptional cases in which relief from the cap is appropriate.
The genesis of training caps goes back over a decade. The
Department previously proposed to amend 20 CFR 617.22(b) to allow CSAs
to establish, annually, a maximum amount allowable for the total cost
of training for each worker. 59 FR 906, 924 (January 6, 1994). Comments
on that proposal noted that Congress rejected a proposed $4,000 per
worker limit on training costs because training and related costs for
individual workers may vary significantly from one region of the
country to another and from one worker dislocation to another. 59 FR
924. The comments also pointed out the contradiction in requiring CSAs
to establish a single maximum amount but then indicating that States
should take into consideration the different types of occupational
training and varying durations of training, which would then seem to
render a single maximum cost meaningless. The comments also raised
concerns that inequities would occur in setting a single amount both
for individuals in a rural area without training facilities and for
individuals in an urban area with training facilities. Although the
Department abandoned its proposal, instead adopting the current
language at 20 CFR 617.22(a)(6) making no provision for caps, some CSAs
have expressed a desire over the past several years to have the
flexibility to establish training caps when warranted by State and
local circumstances.
The Department believes that the earlier concerns on implementing
training caps, while valid, are less of a concern under proposed Sec.
618.650. First, the requirement that a training cap be based on the
local area cost basis should eliminate the problem of significant
variances in costs that would exist across regions if a single state
cap were used. Second, the requirement to base caps on local area costs
should guard against the possibility of workers in certain areas of a
State being shut out of reasonably priced training opportunities in
their local area because any cap, whether statewide or local, will have
to consider the reasonable costs of training in that local area.
Although not required, CSAs may choose a statewide cap based on the
local area in the State with the highest reasonable costs of training.
This would ensure that all workers in the State have an opportunity to
obtain training at a reasonable cost. Third, the requirement that CSAs
develop standards and procedures to review and approve training costs
that exceed established limits based on individual and exceptional
circumstances, should help eliminate the specific concerns of workers
in rural areas who may be concerned that the lack of training
opportunities will force them to seek higher-cost training outside
their local area because of the need for adding subsistence and
transportation payments as a component to their total training costs.
This requirement also means that CSAs will continue to review
individual training programs under the cost criteria for types and
duration of training since reasonable training for a particular
worker's circumstances may be approved even if it is above the
established training cap.
Finally, the advent of the WIA and the One-Stop delivery system,
which focuses on forging partnerships for training and employment
services in local labor markets to assist individuals in finding jobs,
now provides CSAs with better information on local labor markets and
local training opportunities, including their costs. The One-Stop
delivery system was not in place when the Department last considered
training caps, but this system now allows for the collection of data on
various training programs and puts the CSA in a better position to
gauge local training costs. Better information on local labor markets
and on the costs and quality of various training opportunities provides
CSAs with the ability to establish reasonable local, regional or
statewide training caps that reflect current conditions. Thus, the
Department believes that this current proposal addresses the earlier
concerns about their fairness and can be implemented effectively under
the One-Stop delivery system.
Proposed Sec. 618.650(b) requires cooperating State agencies to
review their training caps annually and to change them when warranted.
Proposed paragraph (c) requires that whenever a CSA establishes,
changes, or ceases using a training cap, the CSA must send written
notice and full documentation supporting its action to the Director
before establishing, changing, or ending such limits. This requirement
allows the Department to monitor, review, and approve the cost limits
in accordance with the criteria in proposed paragraph (a) of this
section. The CSA's caps, or their modification or termination, will
take effect in 30 calendar days after receipt by the Director, unless
the Department objects in writing to the CSA.
Proposed Sec. 618.655 implements section 296(d)(2) of the Act,
entitling an agricultural commodity producer entitled to receive a cash
benefit under the TAA for Farmers program (see 7 CFR Part 1580) to
employment services and training benefits (including subsistence and
transportation payments) under the Department of Labor's TAA program.
Although section 296(d)(2) of the Act entitles these individuals to
training, it does not mean that they are entitled to receive any
training they want. Rather, the Department must place reasonable
limitations on the approval of this training to assure that public
funds are spent wisely for purposes for which Congress appropriated
them. Thus, although section 296(d)(2) of the Act does not require
application of the six criteria for training approval at section 236 of
the Act, the Department believes that approval criteria 2 through 6
(proposed Sec. 618.610(b) through (f)) establish reasonable conditions
for selecting and approving training for these or any individuals.
Criteria 2 through 6 relate to the quality of the training and the
utility of the training for the worker and thus permit CSAs to ensure
that the training meets the needs of affected farmers. Proposed
paragraph (a)(1) would apply, for example, approval criteria 5, at
proposed Sec. 618.610(e)(2), requiring, for training approval, that
the worker have sufficient personal or family resources on which to
live to allow completion of the training. It would make no sense to
spend scarce training dollars on training that an individual will be
forced to quit because of inadequate personal finances.
The Department proposes not to apply training approval criterion 1
(proposed Sec. 618.610(a)), that there is no suitable employment
available except where the agricultural commodity producer actually
obtains suitable employment, because this is the major threshold
requirement for determining whether a worker is entitled to training.
The Department believes that it should not stand in the way of the
statutory training eligibility. However, all of the other provisions of
this subpart F would apply to place reasonable parameters around this
eligibility. Thus, for example, an approved training program for an
eligible agricultural commodity producer (as for an adversely affected
worker) could not exceed 104 consecutive calendar weeks, with a
possible 26 additional calendar weeks, as needed, to complete approved
[[Page 50783]]
remedial education, per proposed Sec. 618.615(a)(3)(i).
Proposed Sec. 618.655(a)(3) would require denial of training
approval where the agricultural commodity producer has already obtained
what is, in effect, ``suitable employment'' under section 236(e) of the
Act. An adversely affected worker who obtains ``suitable employment''
is not entitled to training under criterion 1, requiring that no
``suitable employment'' be available. Since an agricultural commodity
producer does not receive wages, but instead earns income from the sale
of a commodity, proposed paragraph (a)(3) substitutes ``average weekly
income'' for ``average weekly wages'' in the definition of ``suitable
employment.'' ``Average weekly income'' would be calculated based on
the agricultural commodity producer's self-employment income earned in
his or her most recent tax year before the notice of entitlement to a
cash benefit under the TAA for Farmers program. ``Average weekly
income'' would be based on ``all self-employment'' because the CSA will
likely be unable to isolate that portion of the self-employment income
that was the basis of the cash benefit under the TAA for Farmers
program. By using ``average weekly income'' in the definition of
suitable employment in proposed paragraph (a)(3), the CSA treats
agricultural commodity producers the same as adversely affected workers
by denying training where the agricultural commodity producer has made
a successful adjustment by obtaining, what is, in effect, suitable
employment.
Proposed Sec. 618.655(b) provides that the CSA must verify
agricultural commodity producer's entitlement to a cash benefit under
the TAA for Farmers program in accordance with procedures established
by the Department of Labor. Currently this is done through an approved
Form FFA-229, ``Application for Trade Adjustment Assistance (TAA) for
Individual Producers,'' signed by the approving official at the Farm
Service Agency. However, the Department expects that in the future CSAs
will be able to confirm this entitlement electronically, using a
Department of Agriculture database.
Proposed Sec. 618.655(c) provides that an agricultural commodity
producer receiving training is entitled to subsistence and
transportation payments where the CSA determines that the requirements
of proposed Sec. 618.640 are met. It is logical and reasonable that
those same requirements apply to agricultural commodity producers.
Proposed Sec. 618.655(d) limits an agricultural commodity producer
entitled to a cash benefit in multiple years for the same commodity to
only one training program per affected commodity. Although section
296(d)(2) of the Act could be read as permitting a new training program
each year, that result would not be a logical or reasonable reading of
the law. A training program approved under subpart F should give an
individual the skills necessary to obtain new employment, and a second
training program would be an unnecessary diversion of scarce training
funds from better uses. If an agricultural commodity producer receives
TAA training under a certification and a future certification is issued
with respect to the same commodity, the individual will be considered
to have already received the training eligibility under section
296(d)(2) of the Act.
Proposed Sec. 618.655(e), sets the limits on the TAA services that
an eligible agricultural commodity producer may receive, found in
section 296(d)(2) of the Act. Agricultural commodity producers entitled
to a cash benefit are entitled to employment services under subpart C,
but not any TRA under subpart G, job search allowances under subpart D,
relocation allowances under subpart E, or ATAA under subpart I
[reserved].
Subpart G--Trade Readjustment Allowances
Proposed subpart G, derived from 20 CFR Part 617, subpart B, covers
the eligibility requirements for, and the amounts and duration of,
trade readjustment allowances (TRA). Proposed subpart G reorganizes and
simplifies some of the parallel provisions of Part 617 to make them
easier to follow and excludes provisions of Part 617 that have lapsed.
Proposed subpart G also implements several Reform Act amendments to TRA
eligibility criteria. Major changes include:
Allows individuals to receive wholly state-funded
additional UI in addition to TRA to support an individual's job search
and/or participation in training.
Encourages rapid re-employment by instituting deadlines
(i.e., 8/16 enrollment deadline) for enrollment in approved training in
order to qualify for TRA.
Strengthens the connection between TRA and training by
establishing specific criteria for issuing waivers of the training
requirement for basic TRA eligibility.
Increases additional TRA for workers in approved training
from 26 weeks to 52 weeks, thus reducing the chance of a worker
dropping out of training due to insufficient income support.
Permits the payment of up to an additional 26 weeks of
TRA, which assists workers who require remedial education to have
enough income support to complete occupational training.
Provides conditions under which TAA participants meet the
definition of ``eligible TAA recipient'' for HCTC purposes, and directs
the CSA to transmit the names of such workers to the Internal Revenue
Service (IRS).
Provides prompt access to HCTC for qualified TAA
recipients and reduces the administrative burden on state agencies for
issuing waivers by allowing workers to receive TRA, and thus be
potentially eligible for HCTC, without enrolling in training or
receiving a waiver for the weeks prior to the 8/16 enrollment deadline.
Proposed Sec. 618.700 describes the scope of this proposed subpart
G.
Proposed Sec. 618.705 explains that there are three categories of
TRA: Basic, additional, and remedial. This proposed section has no
parallel in part 617. It is intended to make the rest of proposed
subpart G easier to follow by providing context to the references
throughout subpart G to the three distinct types of TRA. Proposed
paragraphs (a) and (b) identify, respectively, basic TRA and additional
TRA and reference their respective qualifying requirements contained in
later sections in subpart G.
Proposed paragraph (c) addresses remedial TRA. Even though the Act
does not explicitly refer to ``remedial TRA'' as a separate category of
TRA, the Act, as amended by the Reform Act, implicitly recognizes
remedial TRA as a distinct form of TRA. Section 233(g) of the Act
permits the payment of up to 26 additional weeks of TRA, to assist
those workers who require remedial education by providing extended
income support while the worker completes occupational training.
Proposed paragraph (c) makes eligibility for remedial TRA contingent
upon the specific qualifying requirements of proposed Sec. 618.755. In
particular, and as explained in more detail in the preamble explanation
of proposed Sec. 618.755, remedial TRA need not be concurrent with
participation in remedial education, as long as the adversely affected
worker had participated in remedial education and is participating in
approved training while receiving remedial TRA.
Finally, in order to prevent duplication of benefits, proposed
paragraph (d) provides that an adversely
[[Page 50784]]
affected worker may receive only one form of TRA--basic, additional, or
remedial--for a given week of unemployment.
Proposed Sec. 618.710 covers applications for TRA. Under proposed
paragraph (a), a worker may apply for TRA if the worker is covered
under either a certification or, if before a certification is issued, a
petition. Proposed paragraph (b) provides, as does 20 CFR 617.10(a),
that, for a TRA application filed before a certification covering the
adversely affected worker is issued, the CSA must make those
determinations necessary to establish or protect such worker's TRA
entitlement and, if necessary, to protect the worker's eligibility for
the HCTC. The reference to HCTC is added because eligibility for HCTC
may depend upon meeting all of the TRA eligibility requirements except
exhausting UI. The CSA must also advise an applicant that a
determination on payment of TRA cannot be made unless a certification
is issued.
Proposed paragraph (c) follows 20 CFR 617.10(b), although it is
edited for clarity. It sets the time limits for applications for TRA.
Proposed paragraph (d) follows 20 CFR 617.10(c) in providing the
procedures for filing TRA applications.
Proposed paragraph (e) provides that TRA determinations are subject
to specified requirements in proposed subpart H concerning
determinations, appeals and hearings. It also requires that an
adversely affected worker's case record must include the worker's TRA
applications and the determinations on the applications. This is a new
provision with no explicit counterpart in current regulations, but it
merely clarifies, rather than changes or adds to, existing
requirements.
Proposed paragraph (f) follows 20 CFR 617.11(a)(2)(i) and 617.11(b)
in providing that a CSA may not pay a worker TRA until a certification
is issued covering the worker, and that an adversely affected worker
may not be paid TRA until the first week beginning more than 60 days
after the date of the filing of the petition that resulted in the
certification under which the worker is covered.
Proposed Sec. 618.715 follows 20 CFR 617.11(a)(2) in setting forth
the requirements for basic TRA eligibility.
Proposed paragraphs (a) through (c) follow 20 CFR 617.11(a)(2)(i)
through (a)(2)(iii) setting three of the rules for basic TRA
eligibility.
Proposed paragraph (d) follows 20 CFR 617.11(a)(2)(iv) in providing
that an adversely affected worker must have been entitled to UI for a
week within the first benefit period, as defined in proposed Sec.
618.110. Proposed paragraph (d) simplifies the language in the current
regulation by eliminating references to the ``first qualifying
separation,'' because that term is incorporated into the definition of
``first benefit period.''
Proposed paragraph (e)(1) requires exhaustion of UI entitlement and
follows the requirement in 20 CFR 617.11(a)(2)(v)(A) and (B) except in
two respects. First, proposed paragraph (e) contains an exception to
the exhaustion requirement, under section 231(a)(3)(B) of the Act, as
amended by the Reform Act, that exhaustion of additional compensation
that is funded by a State and not reimbursed from any Federal funds,
including any waiting weeks, is not required. Second, it explains that
whenever a worker becomes entitled (or would become entitled if the
worker had applied therefor) to UI--except additional compensation that
is funded by a State and not reimbursed from any Federal funds--TRA
eligibility is suspended until the worker again exhausts UI.
Proposed paragraph (f) provides that the adversely affected worker
must be able and available for work and must meet the EB work test
requirements, except while enrolled in, or participating in, training
approved under proposed subpart F. The requirements in proposed
paragraph (f) combine the requirements in 20 CFR 617.11(a)(2)(vi) and
20 CFR 617.17, except that the 20 CFR 617.17(a)(1) requirement that a
worker be unemployed appears in proposed paragraph (g) of this section.
Proposed paragraph (f) also reorganizes and rephrases the paragraphs
containing the specified means for meeting the EB work test
requirements in a way the Department believes is easier to follow.
Proposed paragraph (g) provides that the adversely affected worker
must be unemployed as defined in the applicable State law for UI
claimants. This requirement follows 20 CFR 617.17(a)(1) and is placed
in this section because it is a qualifying requirement for basic TRA.
Finally, proposed paragraph (h) mirrors the ``participation in
training'' requirement of 20 CFR 617.11(a)(2)(vii)(1). The specific
requirements in 20 CFR 617.11(a)(2)(vii)(2) and (3) have been moved to
a separate section, proposed Sec. 618.720.
Proposed paragraph (h) also provides that the participation in
training requirement does not apply to a worker before what is commonly
referred to as the 8/16-week deadline for enrollment in training. In
fact, there are four alternative deadlines set out in section
231(a)(5)(A)(ii) of the Act and in proposed Sec. 618.720(c). The
deadlines are: (1) The last day of the 16th week after the worker's
most recent total qualifying separation; (2) the last day of the eighth
week after the week in which the certification covering the worker is
issued; (3) 45 days after the later of the above two dates, if there
are extenuating circumstances to justify an extension in the enrollment
period; or (4) the last day of a period determined by the Secretary to
be approved for enrollment after the termination of a waiver. These
alternative deadlines are implemented in proposed Sec. 618.720(c)(1)
through (4) and are discussed also below in the preamble discussion of
those paragraphs.
The Department proposes to interpret the participation in TAA-
approved training eligibility requirement as not applying before the
applicable deadline. Until the deadline is reached, the fact that a
worker is not enrolled in or participating in training or has not
received a waiver of participation in training does not preclude
eligibility for basic TRA. Applying the participation in TAA-approved
training requirement before the deadline would undermine one purpose of
the deadlines, that is, to provide sufficient time to identify and make
arrangements for an appropriate training program. Further, applying the
participation in training requirement before the deadlines would cause
some adversely affected workers who do not participate in training
before the deadline to be denied eligibility for the HCTC because, by
not meeting a requirement for TRA eligibility, they would not be
``eligible TAA recipients'' as required to receive the HCTC. A
Government Accountability Office (GAO) report on the TAA program,
published on September 22, 2004, found that in a majority of the
states, some adversely affected workers might not be enrolling in the
most appropriate training program because the 8/16-week deadline forced
the states into rushed assessments of the workers' needs. See pages 13-
17 of this GAO report, available at http://www.gao.gov/new.items/d041012.pdf.
The Department believes that not applying the
participation in training requirement before the 8/16-week deadline
will prevent aggravation of this problem.
A related issue, on which the Department seeks public comment, is
whether the deadlines should apply to waivers of the training
requirement in the case of adversely affected workers who do not enroll
in training by the applicable deadline; whether the issuance of a
waiver after the deadline
[[Page 50785]]
has passed can revive eligibility for basic TRA. The Department's
current position, reflected in Sec. 618.725(a), is that an adversely
affected worker who neither enrolls in training by the applicable
deadline, nor receives a waiver of the training requirement by that
deadline, may not become eligible for TRA by later receiving such a
waiver. This position was articulated in the operating instructions in
Training and Employment Guidance Letter (TEGL) No. 11-02, Change 1 (69
FR 60903 (2004)), which interpreted section 231(a)(5)(A) as imposing
``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.'' However, a CSA recently brought to the Department's attention an
alternative reading, based on the structure of the Act, that the
applicable deadline applies only to enrollment in training and not to
waivers of the training requirement. The argument is that the
alternative deadlines are contained only in the Act's provision on the
enrollment in training requirement, section 231(a)(5)(A); that language
in section 231(a)(5)(A)(ii) suggests the requirement applies only to
the enrollment in training requirement in section 231(a)(5)(A)(i); and
that the alternative requirement that the worker receive a waiver of
the training requirement is contained in a separate provision, section
231(a)(5)(C) of the Act. While this argument is plausible, the
Department is concerned that it effectively undermines Congress' intent
that TAA-eligible workers be quickly returned to work or quickly
provided with the training they need to succeed in the labor market. In
light of this argument, the Department encourages public comments on
this issue.
As noted above, proposed Sec. 618.720 provides the requirements
governing a worker's participation in training approved under proposed
subpart F as a condition of receiving TRA.
Proposed paragraph (a) provides that an adversely affected worker
must be enrolled in, participating in, or have completed training
approved under proposed subpart F, or have a waiver granted under
proposed Sec. 618.725 in effect by the applicable deadline for
enrollment in training. Proposed paragraph (a) repeats some of the
requirements in proposed Sec. 618.715(h) so that all the requirements
related to basic TRA eligibility and all the requirements related to
training requirements for receipt of TRA are placed in separate
sections of the proposed rule.
Proposed paragraph (b) is self-explanatory.
Proposed paragraph (c) implements the enrollment in training
deadlines, added by the Reform Act to section 231(a)(5)(A)(ii) of the
Act. It implements the statutory requirement that, unless a worker who
has a waiver in effect, the worker must be enrolled in training
approved under subpart F no later than one of four alternative
specified deadlines to be eligible for basic TRA. Proposed paragraphs
(c)(1) through (c)(4) describe the deadlines and mirror the Act.
Proposed paragraph (c)(3) provides an alternative deadline of the
last day of the 30-consecutive calendar day period following the
termination or revocation of a waiver under proposed Sec. 618.725.
This paragraph implements section 231(a)(5)(A)(ii)(IV) of the Act,
added by the Reform Act, which directs the Secretary to determine the
deadline by which a worker must enroll in approved training after the
termination of a waiver. The Department believes 30 calendar days is
sufficient time for a worker whose waiver has been terminated or
revoked to be advised of, and consider, training options, select an
option, and enroll in training.
Proposed paragraph (c)(4) implements the requirement of section
231(a)(5)(A)(ii)(III) of the Act, added by the Reform Act, that a
worker may have 45 additional days after the later of the 16/8-week
deadlines, if there are extenuating circumstances that justify the
extension. The Act does not elaborate on what are extenuating
circumstances. Proposed paragraph (c)(4) explains that extenuating
circumstances are unusual situations that are beyond the direct control
of the adversely affected worker and that make enrollment within the
otherwise applicable deadline impossible or impractical. Proposed
paragraphs (c)(4)(i) through (iv) provide a non-exhaustive list of
examples of extenuating circumstances.
Finally, proposed paragraph (c)(5) provides the same exception to
the participation in training requirement that is contained in proposed
Sec. Sec. 618.715(h) and 618.720(a), as explained in the discussion of
proposed Sec. 618.715(h).
Proposed paragraph (d), derived from section 231(b)(2) of the Act,
follows 20 CFR 617.11(a)(2)(vii)(B). It provides an exception to the
training requirement for claims for basic TRA for weeks of unemployment
beginning before the filing of an initial claim for TRA (within a
reasonable period of time, as provided in proposed Sec. 618.710(c)),
and for weeks before notification that a worker is covered by a
certification and is fully informed of the requirements for enrollment
in training.
Proposed paragraph (e) interprets the terms ``enrolled in
training,'' ``participating in training,'' and ``completed training.''
Proposed paragraphs (e)(1) and (e)(3) interpret, respectively,
``enrolled in training'' and ``completed training'' substantially the
same as, respectively, paragraphs (1) and (2) of 20 CFR
617.11(a)(2)(vii)(D); but the interpretation of ``completed training''
is revised for clarity.
Proposed paragraph (e)(2) interprets ``participating in training.''
Part 617 does not interpret this term, despite using it throughout.
Interpreting it in proposed Part 618 is helpful.
Proposed paragraph (e)(2)(i) provides that an adversely affected
worker is ``participating in training'' if the worker is attending and
participating in all scheduled classes, required activities, and
required events, or the training institution has excused the worker's
absence or failure to participate. Proposed paragraph (e)(2)(i) also
provides a mechanism for ensuring that an adversely affected worker
does not receive basic TRA when that worker has ``ceased
participation'' in the approved training in which the worker is
enrolled, in accordance with Sec. 618.765(b)(3)(ii). It requires the
training institution to certify in writing on a monthly basis to the
CSA whether the adversely affected worker has met this requirement,
and, if not, whether it has excused the worker.
Proposed paragraph (e)(2)(ii) provides that an adversely affected
worker in a distance learning program is ``participating in training''
if the worker is meeting all the requirements of the training
institution. Proposed paragraph (e)(2)(ii) also provides the same
mechanism, monthly reports, for ensuring that a worker is participating
in the training. The Department specifically invites comments on
whether the requirements for monthly certifications by training
institutions of worker participation is overly burdensome and whether
there is a better means of assuring that a worker is participating in
training as required for TRA.
Proposed paragraph (e)(2)(iii) provides that a worker is
participating in training during breaks in training that meet the
requirements of Sec. 618.760.
Proposed Sec. 618.725 addresses waivers of the training
requirement as a condition for receiving basic TRA. This proposed
section, because of the Reform Act amendments, varies substantially
from the waiver provisions in 20 CFR 617.19(a)(2) and (b) through (d).
[[Page 50786]]
Proposed paragraph (a) provides the general rule that a CSA may
issue to an adversely affected worker a written waiver of the training
requirement if it finds that training is not feasible or appropriate
for one or more of the reasons listed in paragraph (b). Proposed
paragraph (a) also provides that no waiver of the training requirement
is permitted for additional TRA or remedial TRA eligibility. Finally,
proposed paragraph (a) requires, as discussed above in the discussion
of proposed Sec. 618.715(h), that a waiver must be issued no later
than the latest of the applicable training enrollment deadlines
described in Sec. 618.720(c).
Proposed paragraph (b) sets forth the permissible bases for waiving
the training requirement, implementing Reform Act amendments to section
231(c) of the Act. Before the Reform Act, the Act permitted waiver of
the training requirement where training was not feasible or appropriate
for a worker and gave the Secretary discretion to decide the criteria
for determining whether training is feasible or appropriate. The Reform
Act reduced the Secretary's discretion by specifying six bases, at
least one of which must be cited in any determination that training is
not feasible or appropriate for an adversely affected worker. Proposed
paragraphs (b)(1) through (b)(6) identify the six bases, mostly
verbatim from the Act; however, some of them elaborate on the statutory
requirement, as explained below.
Proposed paragraph (b)(1) implements the statutory waiver criterion
that ``[t]he worker has been notified that the worker will be recalled
by the firm from which the separation occurred.'' The Department
believes that this means that the recall must be to the same or
substantially the same position by the firm from which the separation
occurred, and that the recall is expected to be permanent. In this way,
the criteria for approval of training will work in tandem with waiver
of the training requirement where the worker has been notified of a
recall and ensure that the worker receives income support while
awaiting the recall. That is, section 236(a)(1) of the Act (implemented
in proposed Sec. 618.610(a)) requires denial of training where
suitable employment is available, which includes a recall. However,
section 231(c)(1)(A) of the Act (implemented in this proposed
paragraph) provides for waiver of the training requirement where a
worker has been notified of a recall to the adversely affected
employment.
Proposed paragraph (b)(1) differs from its counterpart in 20 CFR
617.19(b)(2)(ii)(A) in that it excludes ``general'' recalls, described
in 20 CFR 617.19(b)(2)(ii)(A)(2)(ii), from consideration in determining
whether to issue a waiver due to a recall notice. The Department
believes that a general recall, which by its terms does not include a
specified date or time period for returning to work, is inherently too
vague to rely upon for purposes of issuing a waiver of the training
requirement. It also would simplify administration, and help ensure
consistency among determinations on issuing waivers of the training
requirement and denying approval of training, to require that a recall
have a specified date or time period for returning to work in order to
meet the requirements of both proposed paragraph (b)(1) and proposed
Sec. 618.610(a).
Proposed paragraph (b)(1) also differs from 20 CFR
617.19(b)(2)(ii)(A) in requiring that a recall be permanent. The
Department believes that it would not be appropriate to deny training
if a worker chooses not to return to work that holds no long term
prospect of employment. If a worker chooses to accept a temporary
recall, the worker may remain eligible for TRA upon his/her subsequent
separation, under the moving eligibility rules of the Act.
Proposed paragraph (b)(2) implements the statutory waiver criterion
that an adversely affected worker has marketable skills for suitable
employment, and there is a reasonable expectation of employment at
equivalent wages in the foreseeable future. The definition of
``suitable employment'' in proposed Sec. 618.110 is used also in
proposed Sec. 618.610(a)(1) for purposes of determining whether to
approve training. As discussed in the preamble discussion of the
definition of ``suitable employment,'' the Department believes that,
despite the use of slightly different language in sections 231(c)(1)(B)
and 236(a)(1)(A), the two provisions must be read complementarily, so
that a worker who is denied training because of the availability of
suitable employment is not also denied a waiver because of a
conflicting interpretation of the phrase ``employment at equivalent
wages'' in the waiver criteria. Proposed paragraph (b)(3) implements
the statutory waiver criterion that the worker is within two years of
meeting all requirements for entitlement to either old-age insurance
benefits under title II of the Social Security Act (except for the
requirement of application for these benefits), or a private, employer-
or-labor organization-sponsored pension. Proposed paragraph (b)(3)
interprets entitlement to benefits under title II of the Social
Security Act as including either full or partial retirement benefits.
Proposed paragraph (b)(4) implements the statutory waiver criterion
that the worker is unable to participate in training for health
reasons. Proposed paragraph (b)(4) repeats the statutory language
almost verbatim with no further elaboration.
Proposed paragraph (b)(5) implements the statutory waiver criterion
that the first available enrollment date for the approved training of
the worker is within 60 days after the date of the waiver
determination, or, if later, there are extenuating circumstances for
the delay in enrollment, as determined under guidelines issued by the
Secretary. Proposed paragraph (b)(5) repeats the 60-day deadline almost
verbatim from the statutory language and, for consistency, implements
the extension for extenuating circumstances by applying the test in
proposed Sec. 618.720(b)(4) for determining whether there are
extenuating circumstances.
Proposed paragraph (b)(6) implements the statutory waiver criterion
that a waiver of the training requirement may be issued if training is
unavailable. Proposed paragraph (b)(6) implements this statutory
provision almost verbatim with no further elaboration.
Proposed paragraph (c) governs the contents of a written waiver. It
provides that a waiver does not take effect unless it contains, at a
minimum, six specific items of information. Proposed paragraph (c) is
modified from 20 CFR 617.19(a)(2)(i) through (a)(2)(vii) to account for
the statutory change concerning allowable bases for issuing a waiver,
and is also slightly reorganized to make it easier to follow. In
particular, the requirement for the recipient's signature has been
modified, to account for current claims-taking practice, to permit
other evidence of the participant's receipt and acknowledgement of the
waiver.
Proposed paragraph (d) requires that whenever a waiver request
(whether or not made by the adversely affected worker to whom the
request pertains) is denied, the worker to whom the denial pertains
must be furnished with a written notice of the denial, and that the
written notice must contain certain specified information. The
paragraph is modified from 20 CFR 617.19(a)(3) for clarity about the
required contents of a denial.
Proposed paragraphs (e) and (f) implement provisions of section
231(c)(2) of the Act, as amended by the Reform Act. Proposed paragraph
(e) implements section 231(c)(2)(A) of the Act that a waiver of the
training
[[Page 50787]]
requirement may be effective for not more than 6 months after the date
on which it is issued ``unless the Secretary determines otherwise.''
Proposed paragraph (f) implements section 231(c)(2)(B) of the Act
requiring revocation of a waiver if the basis of a waiver no longer
applies, and written notification of the revocation to the worker.
Proposed paragraph (e)(1) implements the 6-month limit with two
additional qualifications. First, it provides that the extension may be
for a period not to exceed 6 months or the worker's period of basic TRA
entitlement, whichever comes first. This limitation is consistent with
the fact that a waiver may be issued only for basic TRA. Second, the
waiver must be reviewed every 30 days to determine if one or more of
the bases for a waiver continue to apply. The Department believes this
requirement would be an effective means of ensuring that the waiver
criteria continue to be met for the duration of the waiver. Not
regularly reviewing waivers would undermine the Act's requirement that
waivers should remain in effect only as long as the bases for a waiver
continue to apply.
Proposed paragraph (e)(2) implements the statutory authority to
extend a waiver beyond 6 months by providing two criteria that must be
met in order for a CSA to extend a waiver. The criteria require that
one or more of the bases for a waiver apply to the worker, and that the
worker has not yet exhausted basic TRA entitlement. The first criterion
permits a CSA to extend a waiver beyond 6 months as long as at least
one of the six bases for a waiver continues to apply, even if the
original basis or bases for issuing the waiver no longer apply. This
criterion implements the statutory mandate that a waiver be in effect
only if specified criteria are met. The Department includes the second
criterion because extending a waiver of the training requirement would
be pointless if the worker has exhausted basic TRA eligibility. The
Department believes these criteria provide the maximum flexibility to
extend a waiver within the spirit of the statutory requirements for
such waivers.
Proposed paragraph (f) implements the statutory requirement that a
waiver must be revoked if none of the six specified statutory bases for
a waiver continues to apply. It requires the CSA to revoke a waiver if
the waiver criteria are no longer met, and to notify the adversely
affected worker in writing of the revocation. The notice would be
required to contain the same information as a denial of waiver issued
under proposed paragraph (d). Proposed paragraph (g) implements the new
statutory requirement added by the Reform Act to section 231(c)(3)(B)
of the Act that CSAs submit to the Secretary the written waivers of the
training requirement issued under the Act and a statement of reasons
for each waiver. Proposed paragraph (g) implements this requirement by
requiring CSAs to transmit a copy to the appropriate Regional
Administrator of any or all waivers or any or all revocations of
waivers together with a statement of the reasons for the waiver or
revocation. As a practical matter, a separate statement of reasons will
not need to be submitted if the waiver follows the requirements of
proposed paragraphs (c) and (f) and contains the reasons for the waiver
or revocation.
Proposed Sec. 618.730, modeled after 20 CFR 617.12, provides the
requirements for evidence of qualification for basic, additional, and
remedial TRA.
Proposed paragraph (a), containing the basic requirement that CSAs
obtain the basic information necessary to establish whether a TRA
applicant is eligible to receive TRA, is substantially the same as 20
CFR 617.12(a). However, proposed paragraph (a) excludes the requirement
in 20 CFR 617.12(a)(2) that a State agency must obtain a TRA
applicant's average weekly wage. This information is not
administratively necessary in the case of a TRA applicant who is
totally separated from adversely affected employment.
Proposed paragraphs (b) and (c) on obtaining alternative
information where records are unavailable include only one change from
20 CFR 617.12(b) and (c). Where 20 CFR 617.12(c) requires verification
by the employer of information received from other sources, proposed
paragraph (c) requires such verification only ``if possible.'' This
change acknowledges that in some cases the employer might have gone out
of business, so that obtaining the required verification is virtually
impossible.
Proposed paragraph (d), concerning the data on which a CSA must
base a determination on TRA entitlement and benefit amounts, is
substantively similar to 20 CFR 617.12(d), but, rather than requiring
the CSA to make adjustments to the suspect data and make its
determinations on the basis of the adjusted data, requires the CSA to
make its determinations from the best available information. The
Department believes that this change provides CSAs with more
flexibility.
Proposed Sec. 618.735, governing the determination of a worker's
weekly amount of TRA, whether basic, additional, or remedial, is
modeled on 20 CFR 617.13.
Proposed paragraphs (a) and (b) are substantively the same as their
counterparts in, 20 CFR 617.13(a) and (b).
Proposed paragraph (c), requiring specified reductions to the TRA
weekly amount, closely follows 20 CFR 617.13(c). However, proposed
paragraph (c)(2) is modified from 20 CFR 617.13(c)(2) in order to
resolve a conflict between the Act and another Federal statutory
provision. The conflict is between section 232(c) of the Act, requiring
a worker's TRA weekly benefit amount to be reduced by the amount of a
training allowance the worker received for that week under any other
Federal law, and another Federal statutory provision, at 20 U.S.C.
1087uu, that prohibits Federal student financial assistance from being
considered in the determination of a Federal student financial
assistance recipient's eligibility for or benefit amount under any
other Federally funded benefit or assistance program. The provision at
20 CFR 617.13(c)(2) interprets training allowances referred to in
section 232(c) of the Act as including specified types of payments that
constitute Federal student financial assistance under 20 U.S.C. 1087uu.
Proposed paragraph (c)(2) resolves this conflict by requiring that
no reduction of the TRA weekly amount be made for the receipt of
Federal student financial assistance, as defined in proposed Sec.
618.110. It further provides that in the case of a worker to whom such
Federal student financial assistance is available, the State must rely
on prearrangements for the sharing of costs under proposed subpart F in
order to harmonize the provision of such Federal student financial
assistance with the worker's TRA entitlement. The Department believes
that prearrangements can be used to harmonize TRA with the provision of
Federal student financial assistance consistent with the requirements
of both otherwise conflicting statutory requirements. Under such a
prearrangement, the agency responsible for providing Federal student
financial assistance might, to the extent provided for under its laws,
adjust that assistance in view of the worker's receipt of TRA.
Proposed Sec. 618.740, on calculating the maximum amount of basic
TRA, follows 20 CFR 617.14, with a few substantive and organizational
differences. The calculation in proposed paragraph (a) is substantively
the same except for two differences. The first difference is that
additional compensation (defined at proposed Sec. 618.110) is not
included in
[[Page 50788]]
the total sum of UI that must be subtracted as part of the calculation
of the maximum amount of basic TRA. This difference results from an
amendment by the Reform Act to section 231(a)(3)(B) that a worker need
not exhaust additional compensation funded by a state and not
reimbursed from federal funds to qualify for TRA. The purpose of that
amendment was to allow a worker to collect TRA even though he or she
was entitled to additional compensation, which the worker might then
collect after exhausting TRA. To deduct such additional compensation
from a worker's TRA would defeat this purpose.
The second difference concerns the reduction for the total sum of
the adversely affected worker's UI entitlement. Section 617.14(a)(2)
provides that a worker's UI reduction must include, in addition to any
UI the worker actually received, any UI to which the worker would have
been entitled had the worker applied for it during the worker's first
benefit period. The last sentence of that paragraph adds that in
calculating the worker's maximum TRA amount, the worker's full UI
entitlement for the first benefit period must be subtracted, regardless
of the amount, if any, actually paid to the worker. This last sentence
created an unintended result in recent years for workers who, after
they began receiving TRA during their first benefit period, became
eligible for extended benefits or benefits under the Temporary Extended
Unemployment Compensation (TEUC) program. For example, assume that
three weeks before a worker's benefit year ends, the worker becomes
eligible for a TEUC maximum benefit amount of 13 weeks. If the worker
is entitled to regular UI in a second benefit year, that regular UI
entitlement means the worker is not eligible for TEUC as of the start
of the second benefit year. Therefore, the worker could have collected
at most three weeks of TEUC. However, because of the last sentence in
20 CFR 617.14(a)(2), all 13 weeks of TEUC would be deducted from the
basic TRA maximum benefit amount, even though the worker could not have
collected 10 weeks of it.
These workers would have their basic TRA maximum amount reduced by
the full potential amount of the extended UI entitlement during their
first benefit period, whether or not they were actually paid that full
potential entitlement or could even actually qualify for the entire
amount. In some cases, this resulted in workers having their maximum
amount of TRA reduced to an amount below what they already had
received, which resulted in TRA overpayments being established, despite
these workers having received TRA for weeks of unemployment for which
they were not eligible for any UI. Because these workers lawfully
received TRA for weeks of unemployment for which they were not eligible
for UI, and could not have known that they would become eligible for
extended UI at a later time during their first benefit period, it seems
contrary to the Act to declare the lawfully received TRA payments to be
overpayments. Upon further review of the legislative history, the
Department has determined that the Act does not compel the reduction of
the TRA maximum amount by the full potential UI entitlement during the
first benefit period.
Therefore, the Department proposes to exclude the last sentence of
20 CFR 617.14(a)(2) from proposed paragraph (a) of Sec. 618.740 so
that no deduction will be made from the basic TRA maximum benefit
amount for the potential amount of extended benefits or TEUC that could
not be received. However, excluding this provision potentially could
cause another problem: a worker could receive basic TRA for weeks for
which the worker did not receive UI because of State UI law
disqualification provisions. Even though the disqualification
provisions at proposed Sec. 618.765(a) prohibit that result, proposed
Sec. 618.740(a) arguably could be read as conflicting with proposed
Sec. 618.765(a). To avoid any conflict, and because the Department
believes it would defeat the purpose of the disqualification provisions
to allow workers to receive TRA for such weeks, the Department proposes
requiring the UI reduction to include the total sum of UI the worker
would have received in the worker's first benefit period had such
worker ``either applied therefor or not been subject to a
disqualification under the applicable State law.''
Proposed paragraph (b), which contains exceptions to the maximum
TRA amount calculation is substantively unchanged from 20 CFR
617.14(b)(1) and (2). However, proposed paragraph (b) excludes language
in 20 CFR 617.14(b) that nothing in that paragraph will affect an
individual's eligibility for the allowances described in that
paragraph. The Department believes this language is unnecessary.
Finally, another difference between proposed Sec. 618.740 and 20
CFR 617.14 is that the heading for proposed Sec. 618.740 explicitly
provides that this section applies only to calculating the maximum
amount of basic TRA. The heading for 20 CFR 617.14 does not contain
this limitation, but 20 CFR 617.14(b)(3) effectuates the same result by
explicitly excluding additional TRA from the maximum amount
calculation. The Department believes it can accomplish the same thing
simply by modifying the section heading.
Proposed paragraph (c), which requires reductions of the maximum
TRA amount for the receipt of Federal training allowances under other
programs, follows 20 CFR 617.14(c), but has substantive differences.
Proposed paragraph (c)(1) requires a worker's total number of weeks of
TRA eligibility to be reduced by the number of weeks for which the
worker both receives a training allowance referred to in proposed Sec.
618.735(c)(2) and would be eligible to receive TRA. However, unlike 20
CFR 617.14(c)(1), no deduction would be made for the receipt of Federal
student financial assistance. As explained above, in the discussion of
proposed Sec. 618.735(c)(2), such a deduction would conflict with 20
U.S.C. 1087uu. Proposed paragraph (c)(1) provides for prearrangements,
as does proposed Sec. 618.735(c)(2).
Proposed paragraph (c)(2) requires that if a training allowance
from another training program is less than the TRA weekly benefit
amount for a given week, then the worker must receive a TRA amount for
that week not to exceed the difference between the worker's regular TRA
weekly amount calculated under proposed Sec. 618.735(a) and the amount
of the training allowance paid to the worker for that week. Proposed
paragraph (c)(2) contains the same requirement for the treatment of
Federal student financial assistance as proposed paragraph (c)(1).
Proposed Sec. 618.745, establishing the basic TRA eligibility
period, is substantively different from 20 CFR 617.15(a). Proposed
paragraph (a) implements the requirement in section 233(a)(2) of the
Act, as amended by the Reform Act, that provides that the 104-week TRA
eligibility period will be extended to a 130-week period where
necessary for an adversely affected worker to complete remedial
education approved under the Act.
Proposed paragraph (b) is an entirely new provision. It addresses
situations where, because of the delays associated with litigation over
the denials of certifications of petitions, certifications are issued
so late that workers covered under the certification would not have
enough time during which they could be paid basic or additional TRA to
be able to complete approved training. Proposed paragraph (b) remedies
this by providing that, as long as the petitioner or the adversely
affected worker did not contribute to the delay in issuing the
[[Page 50789]]
certification, for example, failing to meet filing deadlines or
repeatedly requesting extensions of filing deadlines, the basic TRA
eligibility period will be extended for a period, decided on a case-by-
case basis, necessary to provide an eligibility period for basic and
additional TRA, and remedial TRA, if needed, that would provide a
worker TRA through completion of approved training. The Department
believes that in these cases, the adversely affected workers should not
be unfairly penalized by not receiving TRA throughout their approved
training. The Department proposes paragraph (b) to restore such workers
to the position they would have occupied had the certification covering
them been issued without the delay.
For the same reasons, proposed paragraph (c) extends this exception
to cases in which a CSA's determination that a worker is ineligible for
TRA is ultimately reversed through reconsideration or appeal.
Conforming provisions in proposed Sec. Sec. 618.720(d)(2) and
618.750(a)(3) modify the training enrollment deadline and the deadline
for a bona fide training application for a worker whose initial TRA
negative determination is reversed on reconsideration or appeal.
Without these modifications, a worker might miss these deadlines
through no fault of the worker, but because of the delay in finding the
worker eligible.
Proposed Sec. 618.750, establishing the qualifying requirements
for, and duration of, additional TRA, has no specific counterpart in 20
CFR Part 617; however, most of the provisions in proposed Sec. 618.750
are contained in various sections of 20 CFR Part 617. The Department
believes including a section governing only additional TRA in proposed
Part 618 would make the TRA requirements easier to follow than the
current regulations.
Proposed paragraph (a) contains additional TRA qualifying
requirements and is, in substance, unchanged from the current
regulations in 20 CFR 617.11(a)(2) (TRA qualifying requirements),
617.15(b)(2) (training application filing deadlines), and 617.15(b)(3)
(requirement of participation in training except during breaks in
training).
Proposed paragraph (b), governing the duration of additional TRA,
closely follows the definition of ``eligibility period'' for
``additional TRA'' in 20 CFR 617.3(m)(2). The only substantive
difference is that an adversely affected worker may receive up to 52
weeks of additional TRA, rather than up to 26 weeks, because of the
Reform Act's amendment to section 233(a)(3) of the Act.
Proposed Sec. 618.755, providing the qualifying requirements for,
and duration of, remedial TRA, is a new section because remedial TRA
added by the Reform Act. Under section 233(g) of the Act, remedial TRA
may be paid only ``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.'' The Department would
implement this requirement in proposed paragraphs (a)(2) and (a)(3) by
requiring participation in remedial education and that such
participation must have caused training to extend beyond the period for
which basic and additional TRA were payable. Additionally, the
Department believes that because the Act does not provide any other
distinctions between remedial TRA and other types of TRA, an adversely
affected worker also must, as a condition for receiving remedial TRA,
meet the qualifying requirements for receipt of basic TRA, as would be
required by proposed paragraph (a)(1).
Section 233(g) of the Act authorizes payment of remedial TRA for
``up to 26 * * * weeks in the 26-week period that follows the last week
of entitlement to [TRA] otherwise payable under this chapter.'' The
Department interprets this provision as requiring that remedial TRA be
paid during a 26-consecutive calendar week period; that remedial TRA be
paid only for the same number of weeks, but not exceeding 26, that the
worker participates in remedial education; and that remedial TRA be
paid only after exhausting basic and additional TRA. These
interpretations are reflected in proposed paragraph (b).
The Department recognizes that permitting payment of remedial TRA
only after exhaustion of basic and additional TRA could create an
apparent anomaly because most workers would not be enrolled in remedial
education concurrent with receipt of remedial TRA. This is because, in
many cases, the remedial education component of an approved training
program would occur early in the program. Therefore, proposed paragraph
(a)(2) provides that participation in remedial education may occur
either during or before the week for which remedial TRA is claimed.
Further, since nothing in the Act prohibits a worker receiving basic or
additional TRA for weeks in which the worker participates in remedial
education, proposed paragraph (c) clarifies that a worker may receive
basic or additional TRA for those weeks that exceed the 26-week maximum
for which remedial TRA may be paid or that fall outside the required
26-consecutive calendar week period.
Proposed Sec. 618.760, governing payment of TRA, whether basic,
additional, or remedial, during breaks in training, is substantially
the same as 20 CFR 617.15(d) except that, as the result of a Reform Act
amendment to section 233(f) of the Act, it extends the maximum number
of days a break may last without interrupting TRA payments from 14 days
to 30 days. Proposed Sec. 618.760 omits provisions in 20 CFR 617.15(d)
(5) and (6) that clarify requirements for the maximum amount of basic
TRA and the basic and additional TRA eligibility periods. These
clarifications would be unnecessarily duplicative in proposed Sec.
618.760. The requirements in 20 CFR 617.15(d)(5), concerning the effect
of breaks in training on the basic TRA maximum amount and the basic TRA
eligibility period, are effectuated by proposed Sec. Sec. 618.740
(maximum amount of basic TRA) and 618.745 (basic TRA eligibility
period). The requirement in 20 CFR 617.15(d)(6), concerning the running
of the additional TRA eligibility period for weeks during which
additional TRA is not paid, is effectuated by proposed Sec. 618.750(b)
(duration of additional TRA).
Proposed Sec. 618.765, governing disqualifications from receiving
TRA, is substantively unchanged from 20 CFR 617.18, except for changes
in 20 CFR 617.18(b) reflected in proposed Sec. 618.765(b)(2) and (3).
Proposed paragraph (b)(2), providing for the disqualification from
receipt of TRA for workers enrolled in approved training under certain
conditions, contains the same requirements as in 20 CFR 617.18(b)(2)
except that it adds clarifications.
Proposed paragraph (b)(2)(i) follows 20 CFR 617.18(b)(2)(i), with
two modifications. One modification is that proposed paragraph
(b)(2)(i) omits language in 20 CFR 617.18(b)(2)(i) that a
disqualification under that paragraph applies to not just basic TRA but
also to ``any other payment'' under Part 617. The Department believes
this language is partly inaccurate and partly unnecessary. It is partly
inaccurate because participation in training is not an eligibility
requirement for job search or relocation allowances or Alternative TAA
for Older Workers, so that a TRA disqualification under (b)(2)(i) would
not affect the worker's entitlement to those payments. It is partly
unnecessary because provisions in other sections of this proposed
subpart G and other proposed subparts are sufficient to ensure that a
worker who fails to meet the participation in training requirement
[[Page 50790]]
would not receive benefits for which participation in training is
required as a condition of receiving such benefits. Specifically,
proposed Sec. Sec. 618.750 and 618.755 prohibit payment of,
respectively, additional TRA and remedial TRA for any week in which the
worker did not participate in training, and proposed Sec. 618.840(g)
requires establishment of overpayments for a worker who, without good
cause, does not complete training approved under proposed subpart F.
Second, proposed paragraph (b)(2)(i) includes two clarifications
not contained in 20 CFR 617.18(b)(2)(i). The first is that a worker who
has justifiable cause (as described in paragraph (b)(3)(iii)) for a
failure to begin, or cessation of participation in, training may
receive basic TRA for any week in which such failure or cessation
occurred if the worker otherwise meets the requirements of this subpart
G. The Department believes that if a worker is unable to begin or
continue participation in training through no fault of the worker, it
is appropriate to permit the worker to continue to collect basic TRA.
Since, in some cases, the deadlines for granting a waiver set forth in
Sec. 618.720(c), will have passed, this exception will allow such
workers to continue to collect basic TRA. The second clarification is
that failure to begin participation in training, cessation of
participation in training, or revocation of a waiver does not change
the eligibility periods in proposed Sec. Sec. 618.745, 618.750(b), and
618.755(b), even if the worker had justifiable cause.
Proposed paragraphs (b)(2)(ii) and (b)(2)(iii) are new provisions,
but they only provide clarifications of TRA requirements rather than
create new substantive requirements. Proposed paragraph (b)(2)(ii)
provides that no adversely affected worker may receive additional or
remedial TRA for any week in which the worker failed to participate in
training, regardless of whether such worker had justifiable cause. This
is merely a clarification to reinforce the requirement already
contained in proposed Sec. Sec. 618.750 and 618.755, which cover the
qualifying requirements for and duration of additional and remedial
TRA. This clarification would be helpful because a person reading
proposed Sec. 618.765 in isolation might overlook the requirement that
a worker must, with no exceptions except for breaks in training that
meet the requirements of proposed Sec. 618.760, participate in
training for every week for which the worker receives additional or
remedial TRA.
Proposed paragraph (b)(2)(iii) provides that the disqualification
in proposed paragraph (b)(2)(i) does not apply to an adversely affected
worker for TRA claims for weeks beginning before the filing of an
initial claim for TRA, nor for any week beginning before the worker is
notified that he or she is covered by a TAA certification and is fully
informed of the disqualification rules. This provision restates an
exception to the participation in training requirement provided in
proposed Sec. 618.720(d). Like proposed paragraph (b)(2)(ii), this
clarification would be helpful because a person reading proposed Sec.
618.765 in isolation might otherwise overlook the exception to the
participation in training requirement contained in proposed Sec.
618.720(d).
Proposed paragraph (b)(3) provides the interpretation of three
terms used in proposed paragraph (b)(2). Proposed paragraphs (b)(3)(i)
and (b)(3)(ii) interpret, respectively, ``failed to begin
participation'' and ``ceased participation'' in training the same as
the current regulation in 20 CFR 617.18(b)(2)(ii)(A) and (B). In
requiring in both interpretations that a worker participate in all
classes and activities in the training program, the Department intends
that the worker be disqualified from receiving TRA if the worker misses
even a single class or activity in the training program in a week
without good cause. The Department believes that TAA-approved training
is meant to provide adversely affected workers with the opportunity to
find new employment as quickly and efficiently as possible. The
Department believes that the best way to effectuate this intent, to
ensure that TAA funds are effectively spent, and to improve program
performance, is to require that the workers who receive those funds
participate in each and every class and activity in their approved
training program unless excused by the training provider.
Proposed paragraph (b)(3)(iii) interprets ``justifiable cause''
very similarly to 20 CFR 617.18(b)(2)(ii)(C), but with four changes.
Proposed paragraph (b)(3)(iii) slightly rephrases the basic
interpretation of ``justifiable cause;'' excludes the examples used in
20 CFR 617.18(b)(2)(ii)(C); adds an example not contained in 20 CFR
617.18(b)(2)(ii)(C); and adds a requirement that CSAs determine whether
``justifiable cause'' exists on a case-by-case basis.
First, the basic interpretation of ``justifiable cause'' in
proposed paragraph (b)(3)(iii) requires the reasons for the worker's
conduct to be compared to the conduct expected of a reasonable worker
in the ``same or similar'' circumstances, rather than in ``like''
circumstances, as provided in 20 CFR 617.18(b)(2)(ii)(C). The
Department believes this change is clearer and easier to administer
than the previous test.
Second, the exclusion of the examples in 20 CFR 617.18(b)(2)(ii)(C)
does not mean the reasons listed in the current regulation no longer
are valid; rather, the Department believes the reasons themselves are
somewhat vague and not necessarily very helpful.
Third, the new example in proposed paragraph (b)(3)(iii) is that an
excused absence under a training institution's written policy may be
considered ``justifiable cause.'' The Department believes that the
specific inclusion of excused absences as justifiable cause ameliorates
any arbitrary effects of the rule that a worker must attend all classes
and activities to avoid disqualification by recognizing that there will
be situations in which nonattendance at a class or activity is
justified by other needs of the individual or the individual's
training.
Fourth, the additional language on case-by-case determination has
no parallel in the current regulation but also, in the Department's
view, does not change the current requirements. Rather, this language
would merely codify what already is done in practice in the States.
Proposed paragraph (b)(3) applies to distance learning as well as
to institutional training. Distance learning may, in some cases, be
more self-paced than institutional training, which usually requires
physical attendance at specific classes. CSAs will need to work with
distance learning providers to understand the specific requirements or
milestones of the distance learning program and to make sure that the
training provider keeps the agency informed of the student's adherence
to those requirements.
Finally, proposed paragraph (c), prohibiting payment of TRA to a
worker for any week during which the worker is receiving on-the-job
training, is substantively identical to 20 CFR 617.18(c) but rephrased
for clarity and simplicity.
Proposed Sec. 618.770 is new. It implements the Department's role
in administering the HCTC, created by the Reform Act. Proposed
paragraph (a) references some of the substance in section 35 of the
Internal Revenue Code (26 U.S.C. 35), which authorizes the HCTC.
Proposed paragraph (a) is informational, since the IRS determines HCTC
eligibility. Proposed paragraph (b) describes the duties of the CSA in
administering the HCTC.
[[Page 50791]]
Subpart H--Administration By Applicable State Agencies
This proposed subpart is modeled after subpart G of 20 CFR Part
617. However, sections in this proposed subpart H are organized
differently than their companion sections in 20 CFR Part 617, and have
been revised to reflect changes made by the Reform Act. Also, some new
sections have been added. This proposed subpart covers the
administrative procedures that the CSA will follow in delivering TAA
program benefits and services to adversely affected workers. Major
changes include:
Clarifies that, in order to better integrate service
delivery with all workforce investment programs, and provide
flexibility to the states, merit staffing is not required, except that
these merit system standards do apply to employees of the state UI or
employment service (ES) agency who perform functions under both the TAA
program and the UI and/or ES programs.
Clarifies the need for the CSA to submit, upon request, a
copy of each waiver of the training requirement, and a statement of the
reasons for such waiver.
Clarifies actions the Department may take in the absence
of a jointly-signed Governor-Secretary Agreement for a particular
state.
Directs the CSA to provide information on ATAA benefits
and deadlines to a worker, and inform the worker that a choice must be
made between TAA and ATAA benefits and services, if the worker is
covered under both a TAA and an ATAA certification.
Requires the state to provide information about the HCTC
and second COBRA election period available to affected workers to
increase their opportunities to access the HCTC.
Provides that ATAA will be treated in the same manner as
TRA for recovering overpayments.
Directs CSAs to submit, only upon request, a copy of any
administrative or judicial ruling on an individual's eligibility to TAA
or ATAA. Previously, states were required to submit a copy of every
administrative or judicial ruling.
Adds a new section, which establishes ``priority of
service'' requirements for the TAA program consistent with the Jobs for
Veterans Act of 2002. This gives the highest priority for approval and
funding of TAA benefits to an adversely affected worker meeting the
veterans' priority of service.
Provides that the Department may reduce the training
allocation or administrative funding of CSAs that fail to submit
accurate and timely reports.
Informs CSAs of the need to report financial results on an
accrual basis.
Requires CSAs to supply data to the Secretary on national
TAA program performance goals identified in applicable regulations, the
Department's written advisories, or any other written means used to
communicate such goals.
To ensure a complete and accurate accounting of program
performance, directs the use of quarterly wage record information, the
Wage Record Interchange System, and supplemental data, when
appropriate.
Proposed Sec. 618.800 sets out the scope for subpart H; that it
covers administrative procedures governing the TAA program.
Proposed Sec. 618.805 addresses the Agreements between the States
and the Secretary of Labor that are required under section 239 of the
Act before a State may deliver TAA to adversely affected workers. It
follows Sec. 617.59 but reorders the provisions and edits them for
clarity. Proposed Sec. 618.805 omits two provisions in 20 CFR 617.59
that the Department believes are obsolete and also adds a new provision
not contained in 20 CFR 617.59.
Proposed paragraph (b), which provides the requirements for
executing an Agreement, is significantly rephrased but remains
substantively unchanged from 20 CFR 617.59(b). The one difference is
that proposed paragraph (b) includes language more explicitly requiring
the Secretary, in addition to the State, to sign and date the Agreement
as a prerequisite to the Agreement taking effect. Proposed paragraph
(b) recognizes the current practice of executing Agreements. A new
sentence indicating the consequences of not entering an Agreement has
been added to proposed paragraph (b) to serve as a reminder.
Proposed paragraph (d) is a new provision that clarifies the
applicability of State merit systems to the TAA program. The Department
has received inquiries in recent years about the applicability of the
merit system standards, promulgated by the U.S. Office of Personnel
Management in 5 CFR 900.603, to the TAA program. These standards apply
to the States' administration of, among other things, the UI program as
a condition of the States receiving administrative grants. TAA has no
legislative requirement to use State merit system employees, nor do the
programs authorized under the Workforce Investment Act. The Reform Act
requires the Secretary to secure for adversely affected workers the
services provided through the One-Stop delivery system. To avoid
imposing new merit staffing requirements on the One-Stop partner
programs, including those funded by WIA, proposed paragraph (d)
provides that the merit system standards in 5 CFR 900.603 do not apply
to the TAA program, except that these merit system standards do apply
to employees who perform functions under both the TAA program and other
programs covered by the merit standards.
Proposed paragraph (e) is a new provision which identifies required
provisions in each Agreement while also clarifying that it is not an
exhaustive list. Proposed paragraph (e)(1) requires Agreements to
contain provisions consistent with the requirements of section 239 of
the Act. It is designed to remind States of, and insure compliance
with, the requirements of section 239 of the Act. Proposed paragraph
(e)(2) reflects the provisions of section 231(c)(2) of the Act by
requiring Agreements to contain provisions authorizing the CSA to issue
waivers of the training requirement under proposed Sec. 618.725, and
requiring the CSA to submit, to the Secretary, upon request, a copy of
each waiver and, if not already contained within each waiver, a
statement of the reasons for such waiver. Proposed paragraph (e)(3)
provides that Agreements must contain the requirement that CSAs supply
data to the Secretary on national TAA program performance goals
identified in applicable regulations, the Department's written
directives, or any other written means used to communicate such goals.
This is a new requirement designed to implement guidance from the
Office of Management and Budget (OMB) on the Government Performance
Results Act of 1993 (GPRA). GPRA requires, among other things, that
Federal agencies take steps to improve the performance outcomes of
federally funded programs. Toward this end, proposed Sec. 618.880
requires States to report specified data on TAA performance outcomes to
the Department. The Department believes that including a specific
provision in the Agreements requiring reporting of performance data
would emphasize to States the importance of pursuing improved
performance outcomes in the TAA program.
Proposed paragraph (g) provides that ETA Regional Administrators
are responsible for monitoring and reviewing State and CSA compliance
with the Agreement. It is slightly rephrased from 20 CFR 617.59(g),
deleting ``initially'' from language in 20 CFR 617.59(g) that stated
ETA Regional Administrators are ``initially'' responsible for
monitoring and reviewing State and CSA compliance, and omitting
language in 20 CFR
[[Page 50792]]
617.59(g) that provides for ``periodic'' monitoring and review by ETA
Regional Administrators. The word ``initially'' is a confusing and
unnecessary qualification to the central role that ETA Regional
Administrators assume in overseeing the States' administration of the
TAA program. The word ``periodic'' is omitted because Departmental
review is an ongoing process.
Proposed paragraph (h) is modified from 20 CFR 617.59(f). Proposed
paragraph (h) retains the substance of 20 CFR 617.59(f) but also
provides that the Secretary may, upon finding a State has not fulfilled
its commitments under its Agreement, ``disallow costs or impose such
other sanctions as may be appropriate.'' The Department believes it is
important to explicitly provide for lesser sanctions that might be more
effective in encouraging compliance with the terms of the Agreements
than only the more severe sanction of terminating the Agreement.
Finally, proposed Sec. 618.805 omits two provisions of 20 CFR
617.59 that the Department believes are obsolete. The first of these
provisions is 20 CFR 617.59(d), which provides that a State or State
agency must execute an amended Agreement with the Secretary before
administering any amendments to the Act. The Department believes this
provision to be unnecessary and counterproductive. The Act contains no
such requirement, and it would be more efficient and beneficial to all
interested parties to allow States, which have already agreed to
administer the TAA program in accordance with the law and the
Department's instructions, to administer amendments to the Act before
the execution of an amended Agreement. However, the omission of this
provision from proposed Part 618 should not be construed as removing
the Department's authority to require execution of an amended Agreement
after amendments to the Act are enacted.
The second provision is 20 CFR 617.59(h), which requires
coordination among State agencies administering programs under subpart
C of 20 CFR Part 617, entities administrating the Job Training
Partnership Act (JTPA), and State UI agencies. JTPA has been superseded
by the Workforce Investment Act of 1998 (WIA), and, reflecting the
Reform Act's increased emphasis on program coordination, the Department
proposes a new set of coordination requirements in proposed subpart C
that need not be repeated in proposed Sec. 618.805.
Proposed Sec. 618.810, providing the requirements governing State
agency rulemaking concerning State TAA administration, is slightly
rephrased but contains only two substantive differences from 20 CFR
617.54. The first difference is that while the current regulation
permits the Department's temporary approval of a State supplemental
procedure to remain in effect for not longer than 90 days, proposed
Sec. 618.810 provides that such temporary approval may remain in
effect ``not to exceed a period determined by the Secretary on a case-
by-case basis.'' The 90-day maximum in the current regulation is
unnecessarily restrictive and all interested parties would be better
served if the periods for temporary approvals are decided on a case-by-
case basis, depending on the importance of the provision to state
operations and the length of the review process. The second difference
from 20 CFR 617.54 is that, while 20 CFR 617.54 requires a CSA to
follow State UI law requirements for public notice and opportunity for
hearing, proposed Sec. 618.810 more broadly requires the State to
follow also any other State or Federal law that may require such public
notice and opportunity for hearing. This change accommodates the
possibility that other laws that require public participation in
changes to State plans or procedures, such as WIA, could apply.
Proposed Sec. 618.815, authorizing CSAs to issue and enforce
subpoenas for various purposes specified in that provision, is
substantially the same as 20 CFR 617.53, with one modification.
Proposed Sec. 618.815 identifies the purposes for which subpoenas to
require attendance of witnesses and production of records may be
issued: for making benefit determinations and assisting in the petition
determination process.
Proposed Sec. 618.820 contains requirements the States must meet
in providing TAA program and benefit information to workers. It is
significantly modified from 20 CFR 617.4 and has been placed in
proposed subpart H on State administration where it more logically
fits. Proposed Sec. 618.820 omits some provisions in 20 CFR 617.4 that
the Department believes are unnecessary. It updates some provisions and
adds a few provisions to reflect Reform Act amendments to the Act. It
also includes other changes that have occurred since Part 617 became
effective, and some of the requirements typically contained in the
Agreements with the States.
Proposed paragraph (a), requiring CSAs to provide general program
information and advice to workers, serves the same purpose as 20 CFR
617.4(a) but is more condensed.
Proposed paragraph (b) is a new provision mandated by the Reform
Act which requires CSAs to provide rapid response assistance and
appropriate core and intensive services, consistent with section 134 of
WIA, to workers covered under a TAA petition.
Proposed paragraph (c) implements section 235 of the Act and
requires CSAs to provide specified reemployment services to adversely
affected workers. This is a new provision.
Proposed paragraph (d) requires CSAs to provide assistance to
complete and file TAA petitions. It combines requirements contained in
20 CFR 617.4(b) and 20 CFR 617.4(e)(2), simplifies the language of
those provisions, and adds the authorization, provided by the Reform
Act, for CSAs to file petitions on behalf of worker groups.
Proposed paragraph (e) requires CSAs to provide certain information
and assistance to adversely affected workers after a certification
covering their worker group is issued. The provisions in proposed
paragraph (e) are substantively identical to 20 CFR 617.4, but they
have been rephrased and slightly reorganized for clarity and
simplicity. Proposed paragraph (e)(2) mirrors 20 CFR 617.4(d)(1) but
has some minor changes. The first change is that proposed paragraph
(e)(2) adds a sentence encouraging CSAs to provide notice of benefits
during the rapid response process to workers who are covered by a
certification and who have received a notice of separation, consistent
with the Reform Act's requirement that rapid response assistance be
provided. The second change is to add to the information that must be
included in the written notice mailed to each worker covered by a
certification information regarding the training enrollment deadlines
that are a condition of TRA eligibility.
Proposed paragraph (f) requires CSAs to provide specific benefit
assistance to workers. Proposed paragraph (f)(1) is modeled on 20 CFR
617.4(e)(1) but is rephrased for clarity. One minor change from 20 CFR
617.4(e)(1) is that proposed paragraph (f)(1) omits the reference to UI
claimants because it might be confusing. The Department interprets
section 225(b)(1) of the Act to require that the CSA provide notice to
each worker that it can reasonably identify as being covered by a
certification whether or not that worker has applied for UI.
Proposed paragraph (f)(2) combines the requirements of 20 CFR
617.4(e)(3) and 20 CFR 617.4(e)(4) into a single paragraph because they
are closely related. The language has been changed
[[Page 50793]]
to emphasize the need to timely provide the advice and reemployment
services adversely affected workers need to make the decisions about
employment or training necessary to preserve eligibility for TAA
benefits. Language has been added to recognize that a worker may
decline to be interviewed.
Proposed paragraphs (f)(3) and (f)(4) are new provisions that
require CSAs to provide information on ATAA benefits and deadlines and
on HCTC and the second COBRA election.
Proposed Sec. 618.825 contains Federal procedural requirements
that apply to State benefit determination and redetermination
processes. It contains four minor differences from 20 CFR 617.50, only
two of which are noteworthy. The first is in proposed paragraph (d),
which excludes an exception contained in 20 CFR 617.50(d) that the
State law and regulations do not apply where they are inconsistent with
the letter or purpose of 20 CFR part 617. This exception is unnecessary
because this paragraph applies only to matters that by the terms of
Federal law are committed to be decided under State law. The second
difference is in proposed paragraph (g), which omits an exception in 20
CFR 617.50(g) that the specified provisions of the Employment Security
Manual do not apply where part 617 requires otherwise. This exception
is unnecessary because it is axiomatic that where there is a conflict
between the Act or the implementing regulations and the Employment
Security Manual, the Act or implementing regulations govern.
Proposed Sec. 618.830, concerning the respective responsibilities
of a liable State and an agent State, repeats the requirements in 20
CFR 617.26 but updates the requirements to reflect changes made by the
Reform Act, and also reorganizes the requirements. Proposed paragraph
(a)(6) requires a liable State to provide lists of eligible TRA
recipients and eligible ATAA recipients to the IRS consistent with the
requirements of proposed Sec. 618.770. These lists are necessary for
the IRS to determine who is potentially eligible to receive the HCTC.
Also, the specific reference in 20 CFR 617.26(a) that ``the liable
State also is responsible for publishing newspaper notices'' alerting
the public to certifications is omitted here as unnecessary because it
is contained in proposed Sec. 618.820(e)(3).
Proposed Sec. 618.835, providing requirements governing appeals
and hearings of TAA determinations and redeterminations, repeats the
requirements in 20 CFR 617.51, but slightly rephrases the language for
clarity and also adds a new paragraph. This new paragraph, proposed
paragraph (b), clarifies that, as an exception to the general rule
concerning appeals in proposed paragraph (a), a complaint that a
determination or redetermination under this part 618 violates
applicable Federal nondiscrimination laws administered by the U.S.
Department of Labor must be filed in accordance with the procedures of
29 CFR parts 31, 32, 35, 36, and/or 37, as provided in proposed Sec.
618.875(i) (Nondiscrimination and equal opportunity requirements). This
clarification would help insure that proper procedures are followed
where a claimant alleges discrimination.
Proposed Sec. 618.840, concerning overpayments, fraud, and
penalties for fraud, generally repeats 20 CFR 617.55, but reorganizes
the section outline to make it easier to follow. Proposed Sec. 618.840
slightly rephrases some of the provisions in 20 CFR 617.55 and also
contains a few substantive differences from 20 CFR 617.55. Also,
proposed Sec. 618.840 omits provisions in 20 CFR 617.55(h) on using
TAA to offset other debts because, reflecting the importance the
Department places upon these provisions, proposed subpart H devotes a
separate proposed section to them, Sec. 618.845.
Proposed paragraph (a) repeats the requirements in 20 CFR
617.55(a), except that the language on the overpayment waiver criteria
has been moved into separate paragraphs for clarity.
Proposed paragraph (b), concerning the State election to permit
waivers of overpayment recoveries, repeats the requirements in 20 CFR
617.55(a)(2)(ii)(C)(4) and places this provision toward the beginning
of proposed Sec. 618.840 because it logically precedes other
provisions in this proposed section. A sentence has been added to
clarify that if a CSA elects the option of waiving overpayments,
waivers must follow the rules in Sec. 618.840, and the CSA must
document that its waiver rules do so. Proposed paragraph (c) repeats
the requirements of 20 CFR 617.55(a)(2)(ii)(C)(3) but modifies them
slightly by specifying that the waiver request must be made to the CSA.
Proposed paragraph (d) repeats the requirements in 20 CFR
617.55(a)(1)(i)-(ii).
Proposed paragraph (e) contains more specific waiver criteria that
interpret the general criteria in proposed paragraphs (d)(1) and
(d)(2).
Proposed paragraphs (e)(1) and (e)(2) provide the criteria to
determine whether an overpayment was made without fault of the person
or individual who received the overpayment. Proposed paragraph (e)(1)
repeats the requirements in 20 CFR 617.55(a)(2)(i)(A)(1)-(5), with one
exception. It changes the standard for determining whether fault exists
from ``knew or could have been expected to know'' to ``knew or should
have known.'' The Department believes this test is easier to administer
because it is a common standard that administrative and judicial
adjudicators apply routinely.
Proposed paragraphs (e)(3) and (e)(4) repeat the requirements in 20
CFR 617.55(a)(2)(ii)(A)(1) and 20 CFR 617.55(a)(2)(ii)(B). However,
proposed paragraph (e)(3)(ii) rephrases the language of the current
regulation to make it easier to understand.
Proposed paragraphs (e)(5)(i) and (e)(5)(ii) repeat the
requirements in 20 CFR 617.55(a)(2)(ii)(C)(1) and (a)(2)(ii)(C)(2),
with two modifications. The first modification is that the explanation
of what is a ``lasting financial hardship'' in proposed paragraph
(e)(5)(i) omits the requirement that the hardship must also be
``extraordinary'' to make it clear that these are two separate tests.
The second modification is that where 20 CFR 617.55(a)(2)(ii)(C)(2)
refers to a person's or individual's ``firm'' or ``organization,''
proposed paragraph (e) refers to the person's or individual's ``wholly
or family-owned business'' and omits the term ``organization.'' This
wording more clearly focuses attention on the debtor's assets.
Proposed paragraph (f) repeats the requirements about
determinations of fraud in 20 CFR 617.55(b) but makes one modification,
adding that a person or individual found guilty of fraud in a TAA claim
is ``forever more'' ineligible for any further TAA payments. The
Department believes that this ``lifetime'' ban is the better
interpretation of section 243(b) of the Act, which it implements.
Proposed paragraph (g) retains the requirements in 20 CFR 617.55(c)
about the consequences of failing to complete training, a job search,
or a relocation funded by the TAA program, but is rewritten for
clarity.
Proposed paragraph (h) repeats the requirements in 20 CFR
617.55(d), slightly rephrased for clarity.
Proposed paragraph (i) repeats the requirements in 20 CFR
617.55(a)(2)(ii)(C)(5), with changes concerning recovering an
overpayment from the affected person's or individual's State UI
entitlement and with some added provisions. The current regulation
permits, but does not require, recovery from State UI payments.
Proposed paragraph (i)(2) requires overpayment recovery from
[[Page 50794]]
State UI in a State that has in effect a cross-program offset Agreement
with the Secretary under authority of 42 U.S.C. 503(g)(2), subject to
the limitation on the amount that may be recovered from any single
payment in proposed paragraph (i)(4). The current regulations predated
the cross-program offset Agreements and, therefore, contain no
provision for them. Proposed paragraph (i)(3) provides that, in States
that do not have a cross-program offset Agreement, overpayment recovery
from State UI is permitted but not required, and also is subject to the
limitation in proposed paragraph (i)(4). Proposed paragraph (i)(4)
limits recoveries from all types of UI described in proposed paragraph
(i) to no more than 50 percent of each of the affected person's or
individual's State UI payments. This limitation would implement the
limitation in section 243(a)(2) of the Act. However, since the Act sets
the 50-percent deduction as a ceiling, proposed paragraph (i)(4)
requires each State to follow its own law if its law provides for a
greater limitation.
Proposed paragraphs (j) and (k) repeat the requirement of 20 CFR
617.55(e) and (f).
Proposed paragraph (l) repeats the requirements of 20 CFR 617.55(g)
but makes one change. It changes the requirement that State procedures
for detection and prevention of fraudulent TAA overpayments be
``commensurate with'' those for State UI to a requirement that State
procedures to be ``no less rigorous than'' those for State UI. The
Department believes this change provides a clearer standard.
Proposed paragraph (m) follows 20 CFR 617.55(i) in explaining who
is a ``person'' for purposes of proposed Sec. Sec. 618.840 and
618.845, except for two modifications. The modifications are that
proposed paragraph (m) explicitly includes ``any training institution
as well as the officers and officials thereof,'' and ``an adversely
affected worker or other individual.''
Proposed Sec. 618.845 governs the use of TAA benefits to offset
debts that a benefit recipient owes to others. Proposed paragraph (a)
largely follows 20 CFR 617.55(h)(1) but rephrases it for clarity and
adds ATAA. The authority for this requirement is the Debt Collection
Act of 1982 (Pub. L. 97-365) and its implementing regulations in 29 CFR
Part 20.
Proposed paragraph (b) makes a significant change in 20 CFR
617.55(h)(2). The current regulation prohibits using TAA to pay debts
owed to any State or other person or entity but permits offset only for
debts owed for child support and alimony required to be collected under
State and Federal law. Proposed paragraph (b) limits the general
prohibition to allow TAA and ATAA to be applied to any debt that may be
collected under the State law for UI. The Department proposes this
change because the exception in the current regulation goes beyond
Federal law and because, since State laws must follow the Social
Security Act (SSA), there is no good reason to single out one instance
in which the SSA requires or permits collection of debts but to ignore
others.
Most particularly, SSA section 303(e)(2) requires a State to deduct
``child support obligations'' from ``any unemployment compensation
otherwise payable to an individual.'' Under SSA section 303(e)(2)(B),
this deduction is applicable to TRA. However, SSA section 303(e)(1)
defines ``child support obligations'' as ``only includ[ing] obligations
which are being enforced pursuant to a plan described in section 454 of
this Act which has been approved by the Secretary of Health and Human
Services under Part B of title IV of this Act.'' It therefore does not
permit deductions for alimony or for child support in general, as
provided by 20 CFR 617.55(h)(2), but only for child support obligations
of the type specified. Unemployment Insurance Program Letter No. 45-89
(55 FR 1886 (1990)) explained in detail the deductions permitted under
SSA section 303(e)(2).
Other SSA provisions permit deductions from State UI for other
purposes. These SSA provisions, like section 303(e)(2), apply to TRA.
For example, section 303(d)(2)(A), SSA, permits offset of UI to recover
uncollected over-issuances of food stamps under section
303(e)(2)(B)(iii). The Department believes that all TAA and ATAA, which
are closely connected to TRA, should follow the same rules for the
offset of benefits as State UI law, except as provided under proposed
paragraph (a).
Proposed Sec. 618.850, on uniform interpretation and application
of the Act and these proposed regulations, repeats the requirements in
20 CFR 617.52, but with some reorganization and a few substantive
changes. A change throughout proposed Sec. 618.850 is that these
provisions apply explicitly to both TAA and ATAA.
Proposed paragraphs (a) and (b) repeat the requirements in 20 CFR
617.52(a) and (b).
Proposed paragraph (c)(1) modifies the requirements in 20 CFR
617.52(c)(1) that States to forward to the Department a copy of each
administrative and judicial TAA decision within 10 days after the
decision's issuance to a requirement to forward to the Department a
copy of any TAA determination or redetermination only upon the
Department's request. Proposed paragraph (c)(1) also applies the
requirement to all administrative and judicial decisions. The
Department believes the current requirement is unduly burdensome and
that the purpose of this provision, oversight of State benefit rulings,
can be accomplished effectively with this less burdensome requirement.
Proposed paragraph (c)(2) combines the requirements in 20 CFR
617.52(c)(2), (3) and (5) and makes some changes. Proposed paragraph
(c)(2) rewrites and simplifies the provisions in 20 CFR 617.52(c)(2)
and (c)(3), eliminating the distinction between ``ordinary'' and
``patent and flagrant'' interpretations. Since the procedures
applicable to both types of determination are the same, the Department
sees no need to retain the distinction. Proposed paragraph (c)(2)(ii)
also eliminates any ambiguity in 20 CFR 617.52(c)(3), concerning the
conditions under which payments otherwise ``due'' within the meaning of
SSA section 303(a)(1) may be temporarily delayed in the case of a
determination, redetermination, or decision awarding TAA that is
inconsistent with the Department's interpretation of the Act or the
regulations. Section 617.52(c)(3) uses the phrase ``redetermination or
appeal action is taken.'' This language leaves unclear what is the
``redetermination action'' that must be taken and how that action
differs from the actual redetermination. Proposed paragraph (c)(2)(ii)
resolves this ambiguity by requiring that the redetermination be
issued.
Proposed paragraph (c)(2)(iii) repeats the requirements of 20 CFR
617.52(c)(5), with three substantive changes: that the request for
reconsideration must be in writing; that the request must be made
within 10 calendar days of receiving the notice; and that the Secretary
will respond to the request within 30 calendar days. These changes will
make for a more orderly and predictable process.
Proposed paragraph (c)(3) repeats the requirements in 20 CFR
617.52(c)(4) but slightly rephrases them for clarity. Proposed
paragraph (c)(4) repeats the requirement in 20 CFR 617.52(c)(6).
Proposed Sec. 618.855 repeats the requirements in 20 CFR 617.56
concerning inviolate rights to TAA almost verbatim but extends it to
include ATAA.
Proposed Sec. 618.860, a new section, establishes ``priority of
service''
[[Page 50795]]
requirements for the TAA program consistent with the Jobs for Veterans
Act of 2002. Under that Act, armed forces veterans and specified
categories of spouses of such veterans are entitled to a ``priority of
service'' in Department of Labor-funded workforce development programs.
This proposed section requires CSAs to give ``the highest priority''
for approval and funding of TAA to an adversely affected worker meeting
the veterans' priority of service. In particular, this priority would
come into play if the TAA program is approaching its annual national
cap on training funds. In that case, each CSA must give priority to
veterans and to the specified categories of spouses, over other
adversely affected workers' training applications, in approving and
funding training. Of course, when a CSA is about to run out of its
allotted training funds, it may request supplemental training funds to
ensure that all adversely affected workers' training needs are met.
There is no annual national cap on payments of other TAA benefits, and
a CSA about to run out of its allotted funds for such other benefits
may request supplemental funding for such benefits; however, it is
possible that the funds appropriated for other TAA services could be
exhausted, in which case the priority of service would apply to TAA
program benefits beyond training.
Proposed Sec. 618.865 repeats the requirements in 20 CFR 617.57
concerning recordkeeping and disclosure of information but makes a few
minor changes.
Proposed paragraph (a) is very similar to 20 CFR 617.57(a), with
two changes. First, proposed paragraph (a) omits reference to reporting
form ETA 563. This omission does not mean that reporting on this form
is no longer required. Rather, required reporting would be governed by
proposed Sec. 618.870. Second, proposed paragraph (a) adds that CSAs
are required to maintain records that contain any information that the
Department determines to be appropriate in support of any reports that
the Department may require, including the reports specified in proposed
Sec. Sec. 618.875(j) and 618.880(e). This new language would
facilitate initiatives on improving TAA program performance and
outcomes.
Proposed paragraph (b) modifies the requirements in 20 CFR
617.57(b). The opening sentence requires States to keep information on
TAA applicants confidential to the extent required under all State and
Federal laws. This is a change from the first sentence in 20 CFR
617.57(b), which requires information in records kept by a State in its
administration of the Act to be kept confidential and to be disclosed
only in the same manner and to the same extent as State UI information
may be disclosed under State law.
Proposed paragraph (b) omits the second sentence of 20 CFR
617.57(b) and substitutes a new second sentence that explicitly
identifies confidential business information, as defined in proposed
Sec. 618.110, as a type of information that States must keep
confidential. The requirements in the first two sentences of 20 CFR
617.57(b) are appropriate for 20 CFR Part 617 because it governs only
individual benefits administration and not the petition determination
process, which can bring the State into possession of confidential
business information obtained when determining whether to issue a
certification. State UI law confidentiality and disclosure requirements
may not apply to confidential business information and also may not
consider other Federal law confidentiality requirements that could
apply to that information. Because proposed Part 618, governs both the
petition determination process and individual benefits administration,
it is necessary that proposed paragraph (b) contain these more broadly
applicable requirements. Also, the language in proposed paragraph (b)
is more consistent with the language in the Agreements with the States,
which more broadly encompasses any State and Federal confidentiality
and disclosure requirements that might apply to TAA information.
Proposed Sec. 618.870 expands on the one-sentence requirement in
20 CFR 617.61 requiring CSAs to submit such information and reports and
conduct such studies as the Secretary requires for TAA purposes.
Proposed paragraph (a) repeats the requirement in 20 CFR 617.61 and
adds that CSAs must submit financial and non-financial reports on
activities conducted with TAA program funds to the Department in
accordance with reporting instructions on such reports' content,
frequency, and due dates approved by the Office of Management and
Budget. The Department proposes adding this requirement to facilitate
initiatives on improving TAA program performance and outcomes.
Proposed paragraph (b), a new provision, provides that the
Department may reduce the funding of CSAs that fail to submit accurate
and timely reports or whose reports cannot be validated or verified as
accurately counting and reporting activities. This provision reflects
the importance the Department places on the submission of timely and
accurate reports and provides an additional incentive for CSAs to
comply with reporting requirements.
Proposed Sec. 618.875, a new section, contains general fiscal and
administrative requirements applicable to CSA' administration of the
TAA program. It is modeled on the WIA regulations at 20 CFR 667.200,
but with significant differences. Proposed Sec. 618.875 contains no
requirements that States are not already required to meet. Its
requirements are those also found in Federal regulations in 29 CFR and
48 CFR, various Office of Management and Budget (OMB) Circulars that
govern uses of Federal funds by recipients of such funds, and the
Department's interpretations of those regulations and Circulars. The
Department believes including this section in subpart H to highlight
these requirements would result in improved compliance by CSAs and
other entities receiving TAA funds.
Proposed paragraph (a) is roughly modeled on the WIA regulation in
20 CFR 667.200(a) but contains significant differences because it is
written for TAA purposes.
Proposed paragraph (a)(3) provides that the period of expenditure
for TAA funds granted for employment services, training, and job search
and relocation allowances is three years. This provision follows
section 245(b) of the Act, as amended by the Reform Act.
Proposed paragraph (a)(4) provides that equipment, as described in
Attachment B of ``Cost Principles for State, Local and Indian Tribal
Governments,'' codified at 2 CFR Part 225, and in 29 CFR 97.32,
includes equipment acquired with TAA administrative funds under both
current and prior Agreements.
29 CFR 97.32, includes equipment acquired with TAA administrative
funds under both current and prior TAA Annual Cooperative Financial
Agreements. This provision, which only clarifies existing Federal law
requirements, responds specifically to two situations observed in the
States. First, in the case of a CSA's internal reorganization, any
equipment purchased in prior years with TAA funds remains the CSA's
property and must continue to be used for the TAA program. Second, this
provision makes clear that a CSA may charge other non-TAA State
agencies for using equipment purchased originally with TAA funds in
previous years.
Proposed paragraph (a)(5), mirrors the requirement in the WIA
regulation at 20 CFR 667.200(a)(5), that TAA grant recipients apply the
addition method to all program income earned under TAA
[[Page 50796]]
grants. Proposed paragraph (a)(5) codifies the Department's view that
the addition method always should be used in TAA administration.
Proposed paragraph (b) governs allowable costs and cost principles,
mirroring the requirements in the WIA regulation in 20 CFR 667.200(c).
Proposed paragraph (b)(7) provides that all types of organizations must
abide by the limitation on administrative costs for training and job
search and relocation allowances contained in the TAA Annual
Cooperative Financial Agreement.
Proposed paragraphs (c) through (e) provide specific cost
principles applicable to TAA grants. Proposed paragraphs (c) and (d)
mirror the requirements in the WIA regulations at 20 CFR 667.200(c)(6)
and (e). Proposed paragraph (e) provides that, as an exception to 2 CFR
part 225 (codifying OMB Circular No. A-87 (Revised)), the costs of
certain State employee fringe benefit plans may be charged to TAA grant
funds if certain conditions are met. This preserves the benefit rights
of State UC and ES agency employees who perform functions in the TAA
program.
Proposed paragraph (f) waives, with one specified exception, the
requirement in 2 CFR part 225 that TAA grant recipients obtain the
Department's approval before purchasing equipment, as defined in 29 CFR
97.3, using TAA grant funds. Prior Department approval still is
required for real estate purchases. The Department also reserves the
right to require the transfer of automatic data processing equipment in
accordance with applicable regulations.
Proposed paragraphs (g) and (h) are self-explanatory.
Proposed paragraph (i) contains nondiscrimination and equal
opportunity requirements, drawn from 29 CFR Part 37. It is modeled on
the nondiscrimination and equal opportunity provisions at 20 CFR
641.827 in the Department's regulations implementing the Senior
Community Service Employment Program, but is revised to make it
appropriate for the TAA program.
Proposed paragraph (i)(1) notifies CSAs and subrecipients of
financial assistance under the TAA program that, as recipients of
Federal financial assistance, they are subject to the requirements of
specified Parts of 29 CFR, setting forth prohibitions relating to
discrimination.
Proposed paragraph (i)(2) notifies CSAs and subrecipients of
financial assistance under the TAA program of the circumstances under
which they may be subject to 29 CFR Part 37, which implements the
nondiscrimination provisions in section 188 of WIA. It states that the
WIA nondiscrimination regulations apply to CSAs and subrecipients that
operate their TAA programs and activities ``as part of the One-Stop
delivery system,'' as provided in 29 CFR 37.2(a)(2). Since CSAs and
entities that carry out ``activities authorized under chapter 2 of
title II of the Trade Act of 1974'' (29 U.S.C. 2841(b)(1)(B)(viii)) are
required One-Stop partners, the WIA nondiscrimination regulations apply
to them. Coverage under this provision is not limited to CSAs or
subrecipients that co-locate their operations in a One-Stop Center.
Proposed paragraph (i)(2)(ii) notifies CSAs and subrecipients that
there may be additional circumstances under which they are subject to
29 CFR Part 37 if they in any other way meet the definition of
``recipient'' in 29 CFR 37.4.
Proposed paragraph (i)(3) directs those with questions about the
cited nondiscrimination provisions to DOL's Civil Rights Center. It
also explains where persons who believe that those nondiscrimination
regulations have been violated may file complaints.
Proposed paragraph (i)(4) explains how the cited nondiscrimination
provisions affect the applicability of any other Federal
nondiscrimination laws, or any relevant State or local laws, to TAA
programs and activities. Proposed paragraph (i)(4)(i) provides that
proposed Sec. 618.875(i) does not, and is not intended to, affect any
rights regarding, or protections against, discrimination provided by
such laws, except as provided in proposed paragraphs (4)(ii) and (iii).
Proposed paragraph (i)(4)(ii) makes clear that the provisions of
DOL's regulations implementing certain Federal statutes requiring
nondiscrimination take precedence over any State or local law or other
requirement that permits, or requires, discrimination on the bases
protected by those Federal regulations. Proposed paragraph (i)(4)(iii)
provides that 29 CFR Part 37 takes precedence over any State or local
law or other requirement that permits or requires discrimination
against beneficiaries of the TAA program on the basis of participation
in a program or activity that is financially assisted under title I of
WIA or on the basis of citizenship or status as a non-citizen lawfully
admitted to work in the United States.
Proposed paragraph (j) contains fiscal reporting requirements for
CSAs. Like other DOL workforce development programs, CSAs are required
to report financial results on an accrual basis.
Proposed Sec. 618.880 is a new section which contains TAA program
performance requirements. As mentioned in the discussion of proposed
Sec. 618.805, proposed Sec. 618.880 implements OMB guidance on GPRA.
Toward this end, proposed Sec. 618.880(a) requires States to report
specified data on TAA performance outcomes to the Department.
Proposed paragraph (b) requires States to report TAA program data
necessary to calculate performance in three specified categories and
also includes a provision authorizing the Department to establish
additional categories. The three specified categories are taken from
the ``common measures'' through which the Federal Government measures
the performance of a variety of workforce development programs. The
Department has adopted the common measures and will apply them to all
Department-funded workforce development programs.
Proposed paragraph (c)(1) identifies, in general terms, the
performance measures States must use in reporting performance under
each category identified in proposed paragraph (b). It also authorizes
the Department to establish additional measures. Proposed paragraph
(c)(2) provides that the Department will identify certain timeframes,
definitions, and units of cost in future administrative issuances to
provide more detailed reporting guidance. The Department believes that
flexibility is required in setting the details of performance
reporting, which is best provided in administrative issuances.
Proposed paragraph (d) requires CSAs, consistent with State law, to
use quarterly wage record information, as defined in the WIA regulation
at 20 CFR 666.150(c), in measuring progress on the program performance
measures. Specifically, it requires CSAs to use social security numbers
if permitted by Federal law, and other identifying designations if
Federal law prohibits such use of social security numbers, to measure
the progress of TAA program participants using quarterly wage
information. The Department believes current Federal law permits such
use of social security numbers but recognizes that Congress in recent
years has considered restricting the uses of social security numbers.
Further, proposed paragraph (d) requires CSAs that participate in the
Wage Record Interchange System (WRIS) to use WRIS to obtain pertinent
wage information for individuals who obtain work outside the State in
which they received services. Finally, proposed paragraph (d) permits
CSAs to use supplemental
[[Page 50797]]
sources to obtain pertinent wage and employment data.
Proposed paragraph (e) imposes performance reporting requirements
on CSAs. The Department plans to initially require the use only of the
Trade Act Participant Report that States already submit. However,
proposed paragraph (e) recognizes that the Department in the future
might require reports that supersede or supplement this report.
Proposed paragraph (e) also requires that reports be verified or
validated as accurate.
Proposed paragraph (f) provides that State performance outcomes
will be measured against national goals established by the Department.
These evaluations of State performance compared to national goals would
be used to plan actions to improve program performance. Proposed
paragraph (f) also provides that the Department may negotiate and
establish performance goals each fiscal year with each CSA.
Finally, proposed paragraph (g) provides that the Department will
annually publish the States' TAA program performance.
Proposed Sec. 618.885 contains requirements related to the
termination of the TAA program after it expires. This provision is very
different from 20 CFR 617.64, because it reflects amendments to section
285 of the Act made after the promulgation of 20 CFR 617.64, including
those made by the Reform Act.
Proposed paragraph (a) provides the general rule that TAA benefits
may not be paid after the termination date in section 285 of the Act or
as otherwise provided by law. Section 285(a)(1) of the Act currently
provides a termination date of September 30, 2007. However, history
demonstrates that this date can change, and the Act might be
reorganized so that a termination date might not always be contained in
section 285. Therefore, the Department proposes omitting a specific
date in the regulation and also qualifying the reference to section 285
to accommodate that possibility.
Proposed paragraph (b) provides the one exception to the general
rule that benefits may not be paid after the termination date: That TAA
benefits must continue to be paid to adversely affected workers who are
covered under TAA certifications issued before the termination date and
who otherwise meet TAA benefit eligibility requirements.
Proposed subpart H also excludes some provisions contained in
subpart G of 20 CFR Part 617 which are based on expired laws. Also,
proposed subpart H omits the provision in 20 CFR 617.58 that UI
otherwise payable to an adversely affected worker must not be denied or
reduced for any week because of the worker's entitlement for any TAA
benefit. The Department believes other provisions in proposed Part 618
effectuate the same result, obviating the need for such a provision in
proposed subpart H.
Part 665--Statewide Workforce Investment Activities Under Title I of
the Workforce Investment Act
The amendments to the WIA regulations proposed to be codified at 20
CFR Part 665 reflect the Reform Act requirements for coordination
between the workforce investment system and the TAA program that
proposed 20 CFR 618.320 also addresses. Proposed Sec. 665.330 revises
the title of this section to read: ``Are Trade Adjustment Assistance
(TAA) program requirements for rapid response assistance, under the
Trade Act of 1974, as amended, also required activities?'' The revised
title clearly identifies that this section applies to the TAA programs
instead of the NAFTA-TAA program under the NAFTA Implementation Act
(Pub. L. 103-182), which was repealed by the Reform Act. Accordingly,
this revised section incorporates the requirement that section
221(a)(2)(A) of the Act places on the States, through the Governors, to
expand State rapid response assistance to cover workers who have filed,
or on whose behalf has been filed, a petition for certification of
eligibility to apply for TAA.
Proposed Sec. 665.330 recognizes that the full range of rapid
response activities required by Sec. 665.310 may not be appropriate
for workers covered by a petition because of the size or the timing of
the layoff, or because such assistance has been provided previously in
response to a layoff. Under those circumstances, paragraphs (b) and (c)
of proposed Sec. 665.330 permit States to make alternative
arrangements to assist workers seeking TAA certification to obtain
employment. Rapid response assistance by the States includes providing
individuals covered by a petition with: the information specified at
proposed Sec. 665.310(b) and proposed Sec. Sec. 618.310 and 618.820;
and information about and access to appropriate core and intensive
services, and training opportunities, income support, and potential
HCTC assistance, if they have not otherwise been provided.
Part 671--National Emergency Grants for Dislocated Workers
The proposed revisions to the WIA regulations codified at 20 CFR
Part 671 reflect changes to the NEG program relating to the HCTC.
Proposed Sec. 671.105 revises this section to reflect that the Reform
Act amended WIA section 174 to permit grants to provide health
insurance coverage assistance under WIA section 173(f) and (g) to
adversely affected workers under the Trade Act.
A new section, Sec. 671.115 ``Under what circumstances are NEG
grants available to provide assistance under WIA section 173(f) and
(g)?,'' is proposed to be added to Part 671. This new section would
explain how NEG grants described in Sec. 671.105 may be used to pay
for health insurance coverage and other assistance for administrative
and start-up expenses related to enrolling TAA recipients, ATAA
recipients and PBGC pension recipients in qualified health insurance,
as provided under the Reform Act.
V. Administrative Requirements
Executive Order 12866
This proposal to revise 20 CFR Part 617, add 20 CFR Part 618, and
revise 20 CFR Part 663 and 20 CFR Part 671 is not an economically
significant rule because it will not materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs, have an
annual effect on the economy of $100 million or more, or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities. However,
the proposal is a significant regulatory action under Executive Order
12866, section 3(f), Regulatory Planning and Review, because it raises
novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order. Accordingly, this regulation has been submitted to the Office of
Management and Budget (OMB) for review.
Paperwork Reduction Act
This proposed rule contains requirements for States to submit to
the Department, at the Department's request, copies of any judicial or
administrative decisions relating to an individual's eligibility to TAA
and the text of procedures or supplemental procedures enacted by the
States to further effective administration of the TAA program (proposed
Sec. Sec. 618.845 and 618.810, currently codified at 20 CFR 617.52 and
617.54). These requirements were previously reviewed and approved for
use by the Office of Management and Budget (OMB) under 20 CFR 601.2 and
[[Page 50798]]
Sec. 601.3 and assigned OMB control number 1205-0222 under the
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13)
(PRA). Additionally, in accordance with the PRA, OMB has approved the
Department's reporting requirements for the States at: proposed Sec.
618.870(e) concerning TAA program performance data (OMB control number
1205-0392); and proposed Sec. 618.725(g) concerning written waivers of
the training requirement, and proposed Sec. Sec. 618.855 and 618.860
concerning reports on TAA activity in general (OMB control number 1205-
0016). The Department has determined that this proposed rule contains
no new information collection requirements.
Executive Order 13132: Federalism
The Department has reviewed this proposed rule revising the
operation of a federal benefit program in accordance with Executive
Order 13132 and found that it will not have substantial direct effects
on the States or the relationship between the national government and
the States, or the distribution of power and responsibilities among the
various levels of government, within the meaning of the Executive
Order.
Unfunded Mandates Reform Act and Executive Order 12875
This regulatory action has been reviewed in accordance with the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) and Executive
Order 12875. The Department has determined that this rule does not
include any federal mandate that may result in increased expenditures
by state, local, or tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year. Accordingly,
the Department has not prepared a budgetary impact statement.
Regulatory Flexibility Act/SBREFA
We have notified the Chief Counsel for Advocacy, Small Business
Administration, and made the certification pursuant to the Regulatory
Flexibility Act (RFA) at 5 U.S.C. 605(b), that this proposed rule will
not have a significant economic impact on a substantial number of small
entities. Under the RFA, no regulatory flexibility analysis is required
where the rule ``will not * * * have a significant economic impact on a
substantial number of small entities.'' 5 U.S.C. 605(b). A small entity
is defined as a small business, small not-for-profit organization, or
small governmental jurisdiction. 5 U.S.C. 601(3)-(5). Therefore, the
definition of the term ``small entity'' does not include States or
individuals.
This rule revises and updates procedures governing an entitlement
program administered by the States and not by small governmental
jurisdictions. In addition, the entitlement program applies to
individuals who seek certification of eligibility under the program
only, and not small entities as defined by the Regulatory Flexibility
Act. Therefore, the Department certifies that this proposed rule will
not have a significant impact on a substantial number of small entities
and, as a result, no regulatory flexibility analysis is required.
In addition, the Department certifies that this proposed rule is
not a major rule as defined by section 804 of the Small Business
Regulatory Enforcement Act of 1996 (SBREFA). Under section 804 of
SBREFA, a major rule is one that is an ``economically significant
regulatory action'' within the meaning of Executive Order 12866.
Because this proposed rule is not an economically significant rule
under Executive Order 12866, we certify that it also is not a major
rule under SBREFA.
Effect on Family Life
The Department certifies that this proposed rule has been assessed
in accordance with section 654 of Public Law 105-277, 112 Stat. 2681,
for its effect on family well-being. The Department concludes that the
rule will not adversely affect the well-being of the nation's families.
Rather, it should have a positive effect on family well-being by
providing greater benefits, including health insurance coverage
assistance, to eligible individuals.
Congressional Review Act
This proposed rule is not a ``major rule'' as defined in the
Congressional Review Act (5 U.S.C. 801 et seq.). If promulgated as a
final rule, this rule will not result in an annual effect on the
economy of $100,000,000 or more; a major increase in costs or prices
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets.
Catalogue of Federal Domestic Assistance Number
This program is listed in the Catalogue of Federal Domestic
Assistance at No. 17.245.
List of Subjects
20 CFR Parts 617 and 618
Administrative practice and procedure, Employment, Fraud, Grant
programs-labor, Manpower training programs, Relocation assistance,
Reporting and recordkeeping requirements, Trade adjustment assistance,
Vocational education.
20 CFR Parts 665 and 671
Employment, Grant programs--labor.
Words of Issuance
For the reasons stated in the preamble, Part 617 of title 20, Code
of Federal Regulations, is amended, Part 618 of title 20, Code of
Federal Regulations is added, and Part 665 and 671 of title 20, Code of
Federal Regulations, as amended, as set forth as follows:
Signed at Washington, DC on July 27, 2006.
Emily Stover DeRocco,
Assistant Secretary of Labor.
PART 617--TRADE ADJUSTMENT ASSISTANCE FOR WORKERS UNDER THE TRADE
ACT OF 1974
1. The authority citation for part 617 continues to read as
follows:
Authority: 19 U.S.C. 2320; Secretary's Order No. 3-81, 46 FR
31117.
2. The heading for part 617 is revised to read as follows:
PART 617--TRADE ADJUSTMENT ASSISTANCE UNDER THE TRADE ACT OF 1974
FOR WORKERS CERTIFIED UNDER PETITIONS FILED BEFORE NOVEMBER 4, 2002
3. Section Sec. 617.1 is amended by revising paragraphs (a) and
(b) to read as follows:
Sec. 617.1 Scope.
The regulations in this part 617 pertain to:
(a) Adjustment assistance, such as counseling, testing, training,
placement, and other supportive services for adversely affected workers
under the terms of chapter 2 of title II of the Trade Act of 1974, as
amended prior to August 6, 2002 (the Act), covered by certifications
issued under petitions filed with the Secretary before November 4,
2002;
(b) Trade readjustment allowances (TRA) and other allowances such
as allowances while in training, job search and relocation allowances,
for adversely affected workers under the Act covered by certifications
issued under petitions
[[Page 50799]]
filed with the Secretary before November 4, 2002; and
* * * * *
4. Section 617.10 is amended by adding paragraph (e) to read as
follows:
Sec. 617.10 Applications for TRA.
* * * * *
(e) Advising workers to apply for health coverage tax credit. State
agencies will advise each worker of the qualifying requirements for the
health coverage tax credit (HCTC) and related health insurance
assistance.
5. Title 20, chapter V, is amended by adding new part 618 to read
as follows:
PART 618--TRADE ADJUSTMENT ASSISTANCE UNDER THE TRADE ACT OF 1974
FOR WORKERS CERTIFIED UNDER PETITIONS FILED AFTER NOVEMBER 3, 2002
Subpart A--General
Sec.
618.100 Purpose and scope.
618.105 Effective dates for the 2002 amendments to the Trade Act of
1974.
618.110 Definitions.
Subpart B--[Reserved]
Subpart C--Delivery of Services through the One-Stop System
Sec.
618.300 Scope.
618.305 The TAA program as a One-Stop partner.
618.310 Responsibilities for the delivery of employment services not
funded under the Act.
618.315 Responsibilities for the delivery of employment services
funded under the Act.
618.320 Coordination with WIA-funded rapid response activities.
618.325 Integrated service strategies to ensure that a comprehensive
array of services are provided by WIA or other programs.
618.330 Assessment of adversely affected workers.
618.335 Initial assessment of adversely affected workers.
618.340 Employment services and waiver provisions for workers not
enrolled in training.
618.345 Comprehensive assessment for adversely affected workers.
618.350 IEPs for adversely affected workers.
618.355 Staff requirements for assessments.
618.360 Employment services for workers enrolled in training and
follow-up services.
618.365 Employment services and the TAA for Farmers program.
Subpart D--Job Search Allowances
618.400 Scope.
618.405 Applying for a job search allowance.
618.410 Eligibility for a job search allowance.
618.415 Findings required.
618.420 Amount of a job search allowance.
618.425 Determination and payment of a job search allowance.
618.430 Job search program participation.
Subpart E--Relocation Allowances
618.500 Scope.
618.505 General.
618.510 Applying for a relocation allowance.
618.515 Eligibility for a relocation allowance.
618.520 Findings required.
618.525 Determining the amount of a relocation allowance.
618.530 Determinations and payment of a relocation allowance.
Subpart F--Training Services
618.600 Scope.
618.605 Procedures.
618.610 Criteria for approval of training.
618.615 Limitations on approval of training.
618.620 Selection of training program.
618.625 Payment restrictions for training programs.
618.630 Training of reemployed workers not in suitable employment.
618.635 Enrollment in on-the-job and customized training.
618.640 Subsistence and transportation payments.
618.645 Voluntary withdrawal from a training program.
618.650 State training cost caps.
618.655 Training services and TAA for Farmers program.
Subpart G--Trade Readjustment Allowances
618.700 Scope.
618.705 Categories of TRA.
618.710 Applications for TRA and payment.
618.715 Qualifying requirements for basic TRA.
618.720 Training requirement for receipt of basic, additional, and
remedial TRA.
618.725 Waiver of training requirement for basic TRA.
618.730 Evidence of qualification for basic, additional, and
remedial TRA.
618.735 Weekly amounts of basic, additional, and remedial TRA.
618.740 Maximum amount of basic TRA.
618.745 Eligibility period for basic TRA.
618.750 Qualifying requirements for, and duration of, additional
TRA.
618.755 Qualifying requirements for, and duration of, remedial TRA.
618.760 Payment of basic, additional, or remedial TRA during breaks
in training.
618.765 Disqualifications.
618.770 Health Coverage Tax Credit.
Subpart H--Administration By Applicable State Agencies
618.800 Scope.
618.805 Agreements with the Secretary of Labor.
618.810 Cooperating State agency rulemaking.
618.815 Subpoenas.
618.820 TAA program and benefit information to workers.
618.825 Determinations of eligibility; notices to individuals.
618.830 Liable State and agent State responsibilities.
618.835 Appeals and hearings.
618.840 Overpayments; penalties for fraud.
618.845 Recovery of debts due the United States or to others by TAA
offset.
618.850 Uniform interpretation and application of the Act and
regulations.
618.855 Inviolate rights to TAA or ATAA.
618.860 Veterans' priority of service.
618.865 Recordkeeping and disclosure of information requirements.
618.870 Information, reports, and studies.
618.875 General fiscal and administrative requirements.
618.880 TAA program performance.
618.885 Termination of TAA program benefits.
Authority: 19 U.S.C. 2320; Secretary's Order No. 3-81, 46 FR
31117.
Subpart I--[Reserved]
Subpart A--General
Sec. 618.100 Purpose and scope.
(a) The Trade Act of 1974, as amended (the Act), establishes a
trade adjustment assistance (TAA) program. The goal of the TAA program
is to provide adversely affected workers with assistance to return them
to work that will use the highest skill levels and pay the highest
wages given the workers' preexisting skill levels and education and the
condition of the labor market, and to do so as quickly as possible. The
TAA program also includes the ATAA program, which may be available to
workers 50 years of age or older. Workers who have lost their jobs with
firms who supplied, or were downstream producers to, other firms whose
workers were certified as eligible to apply for TAA may also be covered
under the TAA program. The regulations in this part 618 are issued to
implement the Act.
(b) This part 618 covers:
(1) The scope, purpose, effective dates and transition guidelines,
and definitions of terms applicable to the TAA program;
(2) [Reserved];
(3) Counseling, testing, placement, and other supportive services
for adversely affected workers and agricultural commodity producers
entitled to receive a cash benefit under the TAA for Farmers program
(subpart C);
(4) Job search allowances for adversely affected workers (subpart
D);
(5) Relocation allowances for adversely affected workers (subpart
E);
(6) Training for adversely affected workers (subpart F);
[[Page 50800]]
(7) Trade readjustment allowances (TRA) for adversely affected
workers (subpart G);
(8) Administrative requirements applicable to State agencies
administering the TAA program and assistance for individuals (subpart
H);
(9) [Reserved].
Sec. 618.105 Effective dates for the 2002 amendments to the Trade Act
of 1974.
Section 151 of the Trade Adjustment Assistance Reform Act of 2002
(the ``Reform Act''), Public Law 107-210, provides that its amendments
governing Trade Adjustment Assistance for Workers applies to petitions
for certification filed on or after November 4, 2002. However, ATAA
became effective on August 6, 2003 and the Health Coverage Tax Credit
(HCTC), established under 26 U.S.C. 35 (administered by the Internal
Revenue Service), generally became effective on December 1, 2002.
Consistent with section 151 of the Reform Act, Part 617 of title 20 of
the Code of Federal Regulations governs the operational and benefit
provisions of the TAA program for petitions filed before November 4,
2002, even where the determinations are made after that date.
Sec. 618.110 Definitions.
The following definitions apply in this part.
Act means chapter 2 of title II of the Trade Act of 1974, Public
Law 93-618, 88 Stat. 1978, 2011 et seq. (19 U.S.C. 2271-2321 and 2395),
as amended.
Additional compensation means unemployment compensation totally
financed by a State and payable under State law by reason of conditions
of high unemployment or by reason of other special factors and, when so
payable, includes unemployment compensation payable under chapter 85,
title 5 of the United States Code.
Adversely affected employment means employment in a firm or
appropriate subdivision of a firm (which may include workers in any
agricultural firm or subdivision of an agricultural firm), if workers
of such firm or subdivision are certified as eligible to apply for
trade adjustment assistance under this part.
Adversely affected worker means an individual, including an
employer, who, because of lack of work in adversely affected
employment--
(1) Has been totally or partially separated from such employment
between the impact date and two years after the date on which the
certification is signed, unless the certification expires or is
terminated earlier; or
(2) Has been totally separated from employment with the firm in a
subdivision of which such adversely affected employment exists between
the impact date and two years after the date on which the certification
is signed, unless the certification expires or is terminated earlier.
Agent State means any State other than the liable State for an
adversely affected worker.
Alternative trade adjustment assistance, Alternative TAA or ATAA
means a wage subsidy for adversely affected workers 50 years of age and
older.
Applicable State law means, for any adversely affected worker, the
State law of the State--
(1) In which such worker is entitled to UI (whether or not such
worker has filed a UI claim) immediately following such worker's first
separation, or
(2) If the adversely affected worker is not so entitled to UI under
the State law of any State immediately following such first separation,
or is entitled to UI under the Railroad Unemployment Insurance Act
(RRUI), the State law of the State in which such first separation
occurred.
(3) The applicable State law for an adversely affected worker, as
determined under paragraphs (1) and (2) of this definition, remains the
applicable State law for such worker until such worker becomes entitled
to UI under the State law of another State (whether or not such worker
files a UI claim in that other State).
(4) For purposes of determining the applicable State law for UI
entitlement under paragraph (1) of this definition--
(i) An adversely affected worker is deemed entitled to UI under a
State law if such worker satisfies the base period employment and wage
qualifying requirements of such State law.
(ii) In the case of a combined-wage claim (under part 616 of this
chapter), UI entitlement must be determined under the law of the paying
State.
(iii) In case of a Federal UI claim, or a joint State and Federal
UI claim (under parts 609 and 614 of this chapter), UI entitlement must
be determined under the law of the applicable State for such claims.
Average weekly hours means a figure obtained by dividing:
(1) Total hours worked (excluding overtime) by a partially
separated worker in adversely affected employment in the 52 weeks
(excluding weeks in such period during which the individual was sick or
on vacation) preceding the individual's first qualifying separation, by
(2) The number of weeks in such 52 weeks (excluding weeks in such
period during which the individual was sick or on vacation) in which
the individual actually worked in such employment.
Average weekly wage means one-thirteenth of the total wages paid to
an individual in the individual's high quarter. The high quarter for an
individual is the quarter in which the total wages paid to the
individual were highest among the first four of the last five completed
calendar quarters preceding the week in which the individual's first
separation occurred.
Benefit period means, with respect to an individual--
(1) The benefit year and any ensuing period, as determined under
the applicable State law, during which the individual is eligible for
regular compensation, additional compensation, extended compensation,
or Federal supplemental compensation, or
(2) The equivalent of such a benefit year or ensuing period
provided for under the applicable Federal unemployment insurance law.
Bona fide application for training means an individual's signed and
dated application for training filed with the State agency
administering the TAA training program, on a form provided by the
cooperating State agency necessarily containing the individual's name,
petition number, and specific occupational training.
Certification means a certification of eligibility to apply for
TAA, or TAA and ATAA, with respect to a specified group of workers of a
firm or appropriate subdivision of a firm.
Certification period means the period of time during which total
and partial separations from adversely affected employment within a
firm or appropriate subdivision of a firm are covered by the
certification.
Certifying officer means an official in the Employment and Training
Administration, United States Department of Labor, who has been
delegated the authority granted to the Secretary of Labor to make
determinations and issue certifications of eligibility to apply for
trade adjustment assistance.
Co-enrollment means enrollment in the TAA program and at least one
other program that operates as part of the WIA One-Stop delivery
system, such as the Adult program under title I of the WIA.
Commuting area means the area in which an individual would be
expected to travel to and from work on a daily basis as determined
under the applicable State law.
Confidential business information means commercial or financial
information received by the Director in an investigation of a petition
for
[[Page 50801]]
certification of eligibility to apply for TAA, or TAA and ATAA, whose
disclosure is prohibited under the Trade Secrets Act, 18 U.S.C. 1905.
Cooperating State Agency (CSA) means the State workforce agency or
any other State or local agency administering job training or related
programs and which participates in the administration of the TAA
program under an agreement with the Secretary to carry out any of the
provisions of the Act.
Customized training means training that is designed to meet the
special requirements of one or more employers, as provided in Sec.
618.635(b) (enrollment in on-the-job and customized training).
Date of certification means the date on which the certifying
officer signs the certification of eligibility to apply for TAA, or TAA
and ATAA, for a group of adversely affected workers at a firm or
appropriate subdivision.
Date of filing means the date on which a complete petition is
received by the Division of Trade Adjustment Assistance, Employment and
Training Administration, United States Department of Labor, 200
Constitution Avenue, NW., Washington, DC 20210.
Date of separation means:
(1) With respect to a total separation--
(i) For an individual in employment status, the last day worked; or
(ii) For an individual on employer-authorized leave, the last day
the individual would have worked had the individual not been on the
employer-authorized leave; or
(2) With respect to a partial separation, the last day of the week
in which the partial separation occurred.
Department of Labor or Department or DOL means the United States
Department of Labor.
Director means the Director, Division of Trade Adjustment
Assistance, Employment and Training Administration, United States
Department of Labor, Washington, DC, who has responsibility for
administering the TAA programs, or his or her designee.
Division of Trade Adjustment Assistance or DTAA means the
organization within the Employment and Training Administration, DOL,
Washington, DC that administers the TAA programs, or its successor
organization.
Eligible ATAA recipient means an individual who is receiving
benefits under a demonstration program of Alternative Trade Adjustment
Assistance for older workers under subpart I of part 618.
Eligible PBGC pension recipient means an individual who is 55 years
of age or older and is receiving a pension benefit paid in whole or
part by the Pension Benefit Guaranty Corporation (PBGC).
Eligible TAA recipient means an individual who is receiving a trade
readjustment allowance (TRA) under the TAA program, or would be
eligible for TRA except that he/she has not yet exhausted Unemployment
Insurance benefits.
Employer means any individual or type of organization, including
the Federal government, a State government, a political subdivision, or
an instrumentality of one or more governmental entities, with one or
more individuals performing service in employment for it within the
United States.
Employment means any service performed for an employer by an
officer of a corporation or by an individual for wages.
Extended compensation or Extended Benefits or EB means the extended
unemployment compensation payable to an individual for weeks of
unemployment which begin in an Extended Benefits Period, under those
provisions of a State law which satisfy the requirements of the
Federal-State Extended Unemployment Compensation Act of 1970 and
regulations governing the payment of extended unemployment compensation
and, when so payable, includes unemployment compensation payable under
chapter 85 of title 5 of the United States Code, but does not include
regular compensation, additional compensation, or Federal supplemental
compensation. Extended compensation is explained further in part 615
(Extended Benefits in the Federal-State Unemployment Compensation
Program) of title 20 of the Code of Federal Regulations.
Family means the following members of an individual's household
whose principal place of abode is with the individual in a home the
individual maintains or would maintain but for unemployment:
(1) A spouse;
(2) An unmarried child, including a stepchild, adopted child, or
foster child, under age 21 or of any age if incapable of self-support
because of mental or physical incapacity; and
(3) Any other person whom the individual would be entitled to claim
as a dependent for income tax purposes under the Internal Revenue Code
of 1986, as amended.
Federal student financial assistance means student financial
assistance authorized by title IV of the Higher Education Act of 1965,
as amended (20 U.S.C. 1070 et seq.): Grants to Students in Attendance
at Institutions of Higher Education (20 U.S.C. 1070a-1070f-6)
(popularly known as Pell grants); Federal Family Education Loan Program
(20 U.S.C. 1071-1087-4; William D. Ford Federal Direct Loan Program (20
U.S.C. 1087a-1087j); Federal Perkins Loans (20 U.S.C. 1087aa-1087ii);
Federal Work-Study Programs (42 U.S.C. 2751-2756b); and Bureau of
Indian Affairs student assistance programs, such as Indian and Alaska
Native forestry education assistance programs (35 U.S.C. 3113).
Federal supplemental compensation means the Federal supplemental
unemployment compensation payable to individuals under the Temporary
Extended Unemployment Compensation Act of 2002 or any similar Federal
law.
Firm means an individual proprietorship, partnership, joint
venture, association, corporation (including a development
corporation), business trust, cooperative, trustee in bankruptcy, or
receiver under decree of any court. A firm, together with any
predecessor or successor-in-interest, or together with any affiliated
firm controlled or substantially beneficially owned by substantially
the same persons may be considered a single firm.
First benefit period means the benefit period established after the
worker's first qualifying separation or in which such separation
occurs.
First qualifying separation means, for the purposes of determining
the weekly and maximum amounts of basic TRA payable to an individual,
the individual's first (total or partial) separation within the
certification period of a certification if, with respect to such
separation, the individual meets the requirements of paragraphs (a),
(b), and (d) of Sec. 618.715 (qualifying requirements for basic TRA).
First separation means, for an individual to qualify as an
adversely affected worker for the purposes of TAA program benefits
(without regard to whether the individual also qualifies for TRA), the
individual's first total or partial separation within the certification
period of a certification, irrespective of whether such first
separation also is a qualifying separation.
Health Coverage Tax Credit or HCTC means the tax credit for the
costs of health insurance coverage of eligible individuals authorized
by section 35 of the Internal Revenue Code of 1986 (relating to
refundable credits), as amended (26 U.S.C. 35).
Impact date means the date stated in a certification of eligibility
to apply for TAA, or TAA and ATAA, on which the
[[Page 50802]]
total or partial separations of the workers covered by the
certification began or threatened to begin.
Individual Employment Plan or IEP means a document containing an
ongoing strategy jointly developed by the participant and the CSA,
which identifies the participant's employment goals, the appropriate
achievement objectives, and the appropriate combination of services for
the participant to achieve the employment goals. Generally, the IEP is
prepared after conducting both an initial assessment and a
comprehensive assessment of the worker's employment goals and
strategies to achieve those goals.
Job finding club means a job search workshop that includes a period
of 1 to 2 weeks of structured, supervised activity in which
participants attempt to obtain jobs.
Job search program or JSP means a job search workshop or job
finding club.
Job search workshop means a short (1 to 3 days) seminar designed to
provide participants with knowledge that will enable the participants
to find jobs. Subjects of the seminar include labor market information,
resume writing, interviewing techniques, and techniques for finding job
openings.
Lack of work means that the employer does not have work for the
worker to perform, and includes circumstances when:
(1) Work is not available because the employer closes or ceases
operations; or
(2) Work is not available because the employer downsizes the
workforce by means of attrition or layoff, including downsizing when an
employee accepts an employer's offer of a severance package designed by
the employer to encourage voluntary separations; or
(3) Work to maintain the worker's customary hours of work is not
available.
Layoff means a suspension of or separation from employment by a
firm for lack of work, initiated by the employer, and expected to be
for a definite or indefinite period of not less than seven (7)
consecutive days.
Liable State means the State whose State law is the applicable
State law for an adversely affected worker.
One-Stop delivery system means the system of entities operating
under title I of WIA to administer and deliver workforce investment,
educational, and other human resource program services to enhance
access to these services in local areas and improve long-term
employment, as described in part 662 of title 20 of the Code of Federal
Regulations.
On-the-job training means training provided by an employer to an
individual, as provided in Sec. 618.635(a)(1) (enrollment in on-the-
job and customized training).
Partial separation means, for a worker who has not been totally
separated, whether the worker either is covered by a petition for
certification of eligibility to apply for TAA, or TAA and ATAA, or the
worker has been certified as an adversely affected worker, that:
(1) The worker's hours of work have been reduced to 80 percent or
less of the worker's average weekly hours at the firm or in adversely
affected employment during a week ending on or after the impact date
specified in the certification under which the adversely affected
worker is covered; and
(2) The worker's wages have been reduced to 80 percent or less of
the worker's average weekly wage at the firm or in adversely affected
employment during a week ending on or after the impact date specified
in the certification under which the adversely affected worker is
covered.
Program of remedial education means training that is designed to
enhance the employability of an adversely affected worker by upgrading
basic knowledge through such courses as adult basic education, basic
math and literacy, English-as-a-second-language, and high school
equivalency, among others.
Qualifying separation means, for an individual to qualify as an
adversely affected worker and for basic TRA, for determining the 16-
week period for enrollment in approved training as a condition of TRA,
and for determining the basic TRA eligibility period, any total
separation of the individual within the certification period of a
certification, with respect to which the individual meets all of the
requirements in paragraphs (a), (b), (c) and (d) of Sec. 618.715
(qualifying requirements for basic TRA).
Regional Administrator means the appropriate Regional Administrator
of the Employment and Training Administration, U.S. Department of
Labor.
Regular compensation means unemployment compensation payable to an
individual under any State law, and, when so payable, includes
unemployment compensation payable under chapter 85, title 5 of the
United States Code, but does not include extended compensation,
additional compensation or federal supplemental compensation.
Secretary means the Secretary of Labor, U.S. Department of Labor,
or his or her designee.
State means the States of the United States, the District of
Columbia and the Commonwealth of Puerto Rico; and the term ``United
States,'' when used in the geographical sense, includes the
Commonwealth of Puerto Rico.
State agency means the agency of the State that administers the
State law.
State law means the unemployment insurance law of a State approved
by the Secretary under section 3304 of the Internal Revenue Code of
1986 (26 U.S.C. 3304).
Suitable employment means work of a substantially equal or higher
skill level than the worker's previous adversely affected employment
and wages for such work at not less than 80 percent of the worker's
average weekly wage, including (or taking into consideration) the value
of fringe benefits, including health insurance.
Suitable work means, with respect to an individual--
(1) Suitable work as defined in the applicable State law for
claimants for regular compensation; or
(2) Suitable work as defined in applicable State law provisions
consistent with section 202(a)(3) of the Federal-State Extended
Unemployment Compensation Act of 1970; whichever is applicable, but
does not in any case include self-employment or employment as an
independent contractor.
Supportive services means services such as transportation,
childcare, dependent care, and housing that are needed to enable an
individual to participate in activities authorized under the Act.
Total separation means the layoff or severance of a worker from
employment in a firm in which adversely affected employment exists or
has been alleged to exist in a petition for certification of
eligibility to apply for TAA.
Trade adjustment assistance or TAA means the benefits and services
provided under subparts D, E, F, and G of this part 618 and not ATAA
provided under subpart I [Reserved]. TAA also includes certain
employment services provided to adversely affected workers, as
described in subpart C of this part 618.
Trade adjustment assistance for Farmers program or TAA for Farmers
program means the program implemented by regulations codified at 7 CFR
part 1580 and in Sec. Sec. 618.365 (employment services and the TAA
for Farmers program) and 618.655 (training services and TAA for Farmers
program). Under this program the Department of Agriculture provides
technical assistance and certifies qualified agricultural commodity
producers as
[[Page 50803]]
eligible to apply for cash benefits from the Department of Agriculture.
Trade readjustment allowance or TRA means a weekly allowance
payable to an adversely affected worker with respect to such worker's
unemployment under subpart G of this part 618.
Unemployment insurance or UI means the unemployment compensation
payable to an individual under any State law or Federal unemployment
compensation law, including chapter 85 of title 5, United States Code
(5 U.S.C. 8501 et seq.) and the Railroad Unemployment Insurance Act (45
U.S.C. 351 et seq.), and includes: Regular compensation, additional
compensation, extended compensation or extended benefits or EB, and
Federal supplemental compensation.
Wages means all compensation for employment for an employer,
including commissions, bonuses, and the cash value of all compensation
in a medium other than cash.
Wagner-Peyser Act means the Wagner-Peyser Act, as amended (29
U.S.C. 49 et seq.).
Week means a week as defined in the applicable State law.
Week of unemployment means a week of total, part total, or partial
unemployment as determined under the applicable State law or Federal
unemployment insurance law.
Workforce Investment Act or WIA means the Workforce Investment Act
of 1998 (Pub. L. 105-220), as amended (29 U.S.C. 2801 et seq.).
Subpart B--[Reserved]
Subpart C--Delivery of Services Through the One-Stop System
Sec. 618.300 Scope.
This subpart requires cooperating State agencies, under the
agreements signed with the Secretary under Sec. 618.805 (agreements
with the Secretary of Labor), to integrate the provision of benefits
and services available to workers separated or threatened with
separation under the TAA program with the delivery of employment
services and other assistance provided under any Federal law other than
the Act, through the One-Stop service delivery system (established
under title I of the Workforce Investment Act of 1998 (WIA)), as
required by sections 235 and 239(a), (e), and (g) of the Act. It also
implements the requirements of section 221(a)(2)(A) of the Act for the
provision of rapid response assistance and intensive services described
in WIA section 134(d)(2) and (3) for workers upon the receipt of a
petition covering those workers.
Sec. 618.305 The TAA program as a One-Stop partner.
The cooperating State agency must ensure that the TAA program
complies with One-Stop partnership requirements in 20 CFR 662.230.
Sec. 618.310 Responsibilities for the delivery of employment services
not funded under the Act.
(a) The cooperating State agency must assure the following services
are made available to individuals covered under a petition for
certification of eligibility to apply for TAA or TAA and ATAA:
(1) Rapid response assistance (as specified in Sec. 618.320
(coordination with WIA-funded rapid response activities)); and
(2) Core and applicable intensive services, as needed through the
One-Stop delivery system.
(b) The cooperating State agency must make every reasonable effort
to ensure that the core and intensive services available to adversely
affected workers, including those certified as eligible to apply for
ATAA, include the following services:
(1) Wagner-Peyser Act labor exchange services;
(2) Assessment;
(3) Employment counseling;
(4) Vocational testing;
(5) Placement services;
(6) Development of Individual Employment Plans (IEPs) for adversely
affected workers, as specified in Sec. 618.350; and
(7) Supportive services, as defined in Sec. 618.110.
(c) The cooperating State agency must make every reasonable effort
to ensure the provision of services authorized under other Federal laws
for all adversely affected workers.
(d) The services described in this section may be paid for with WIA
or Wagner-Peyser funds or with funds from One-Stop partner programs if
the workers meet the eligibility requirements of those programs.
(e)(1) Except as provided in paragraph (e)(2) of this section,
adversely affected workers who meet the definition of a dislocated
worker under WIA, section 101(9), may participate in appropriate core,
intensive, training, and supportive services funded with WIA Dislocated
Worker funds.
(2) Those adversely affected workers who are partially separated
generally will not meet the WIA definition of a dislocated worker and
therefore may not be served with WIA Dislocated Worker funds. Such
workers may be served in WIA-funded Adult Worker programs and receive
similar One-Stop core, intensive, training and supportive services.
Sec. 618.315 Responsibilities for the delivery of employment services
funded under the Act.
(a) The CSA is responsible for providing information to individuals
about TAA, as required in Sec. 618.820 (TAA program and benefit
information to workers);
(b) The CSA is responsible for providing the following services to
adversely affected workers, which may be paid out of TAA funds:
(1) Interviewing each adversely affected worker about suitable
training opportunities reasonably available to each worker under
subpart F of this Part, reviewing such opportunities with each worker,
informing each worker of the requirements for participation in
training, including the enrollment deadlines, as a condition for
receiving TRA, and accepting applications for training;
(2) Informing adversely affected workers of the employment services
and allowances available under the Act and this part 618, the
application procedures, the filing requirements for such employment
services and the training requirement and enrollment deadlines for
receiving TRA;
(3) Determining whether suitable employment, as defined in Sec.
618.110, is available;
(4) Providing self-directed job search training, when necessary;
(5) Providing training;
(6) Providing job search and relocation allowances;
(7) Determining which training institutions offer training programs
at a reasonable cost and with a reasonable expectation of employment
(as described in Sec. 618.610(c)) following the completion of such
training, and procuring such training;
(8) Documenting the standards and procedures used to select
occupations and training institutions in which training is approved;
(9) Approving training programs for adversely affected workers;
(10) Monitoring the progress and attendance of adversely affected
workers in approved training programs;
(11) Developing and implementing a procedure for determining
whether to issue a training waiver and reviewing waivers and extensions
at least every 30 days to determine whether the conditions under which
they are issued have changed; and
(12) Coordinating the administration and delivery of employment
services,
[[Page 50804]]
benefits, training, and supplemental assistance for workers with
programs under the Act, the Wagner-Peyser Act, and the WIA.
Sec. 618.320 Coordination with WIA-funded rapid response activities.
(a) Upon the filing of a petition, the Governor must ensure that
rapid response assistance is made available, consistent with 20 CFR
665.300 and 20 CFR 665.310 (WIA rapid response activities).
(1) If rapid response activities have been provided previously in
response to a layoff or plant closure or other event, then the Governor
must determine whether the provision of any additional information or
assistance related to the TAA program is necessary due to the filing of
the petition. This may include information about training
opportunities, income support, employment services, and potential HCTC
assistance.
(2) If rapid response assistance has not been provided previously
in response to a layoff or plant closure or other event, then the
Governor must ensure that appropriate rapid response assistance is
provided. The Governor may develop and implement appropriate methods of
achieving the goals of rapid response in situations where the full
range of rapid response activities required by 20 CFR 665.310 is not
appropriate. The alternative methods should be cost effective and
responsive to the workers' needs. At a minimum, information and access
to unemployment compensation benefits, comprehensive One-Stop system
services, employment services, and TAA program benefits, must be
provided.
(b) The Governor is encouraged to provide workers for whom a TAA
petition has been filed with access to appropriate WIA core and
intensive services using rapid response funding before a determination
on whether to certify the workers' petition is issued in order to
assist a more rapid return to employment.
Sec. 618.325 Integrated service strategies to ensure that a
comprehensive array of services are provided by WIA or other programs.
(a) The cooperating State agency must collaborate with Local
Workforce Investment Boards and other WIA One-Stop partners and is
encouraged to collaborate with other available programs to ensure that
adversely affected workers receive appropriate services, as described
in Sec. 618.310 (responsibilities for the delivery of employment
services not funded under the Act) and Sec. 618.315 (responsibilities
for the delivery of employment services funded under the Act).
(b) Any adversely affected worker may be co-enrolled (as defined in
Sec. 618.110) in one or more appropriate One-Stop employment programs
to ensure that all necessary and appropriate services are available for
the worker. Where an adversely affected worker is not co-enrolled, the
State must employ other integrated service strategies to ensure that
such services are made available to the worker.
Sec. 618.330 Assessment of adversely affected workers.
(a) The cooperating State agency must design its assessment process
to protect a potentially eligible worker's access to TAA-approved
training and to TRA. Services must be scheduled to provide the worker
sufficient time and information to make a meaningful and timely request
for training approval or a waiver, if appropriate, and protect the
worker's eligibility to receive TRA.
(b) The cooperating State agency must provide an adversely affected
worker with an initial assessment, as described in, Sec. 618.335 and,
if appropriate, a comprehensive assessment, as described in Sec.
618.345, to determine which benefits and services, including training,
are most appropriate to enable the worker to become reemployed.
Sec. 618.335 Initial assessment of adversely affected workers.
(a) The initial assessment represents the first step in determining
if the worker will need employment services, whether suitable
employment is available to the worker without training, whether
training is needed and feasible, whether any of the six criteria for
issuing a waiver from the training requirement for receipt of TRA (as
described in Sec. 618.725(b)(1) through (b)(6)) apply, and whether the
worker may meet the requirements for ATAA and the HCTC. The initial
assessment of the worker's likely employment opportunities in the local
labor market must take into consideration the following factors:
(1) Prevailing local labor market conditions, including the
unemployment rate, local employer skill demands and hiring
prerequisites;
(2) Transferable skills that the worker may possess that would be
of interest to other local employers; and
(3) Any significant barriers to reemployment the worker has, such
as:
(i) Obsolete skills in the worker's present occupation;
(ii) Skills similar to those of other workers that represent an
excess supply in the labor market area; or
(iii) Limited English language proficiency coupled with limited or
no skills in demand in the local labor market area.
(b) The initial assessment requirements may be satisfied by a WIA-
funded initial assessment. Assessments performed under the Wagner-
Peyser Act or other partner programs, or a worker's profile under the
UI profiling system (section 303(j) of the Social Security Act (42
U.S.C. 503(j)), may satisfy the initial assessment requirements if they
meet the requirements of paragraph (a) of this section.
(c) Based upon the information gathered in the initial assessment,
described in paragraph (a) of this section, the cooperating State
agency may:
(1) Determine that suitable employment (as defined in Sec.
618.110) is available to the worker, and if so, the cooperating State
agency may provide WIA core and intensive services. If the worker
disagrees with the determination, the cooperating State agency must
provide the worker with a comprehensive assessment (under Sec.
618.345) to be certain that the initial assessment is correct.
(2) Determine that no suitable employment is available to the
worker and, if so, the cooperating State agency may provide services as
described in Sec. 618.310 (responsibilities for the delivery of
employment services not funded under the Act) and Sec. 618.315
(responsibilities for the delivery of employment services funded under
the Act) and must provide a comprehensive assessment (as described in
Sec. 618.345) of the worker's circumstances in order to develop a
comprehensive service strategy for the adversely affected worker.
(d) If the cooperating State agency determines under paragraph (c)
of this section that an adversely affected worker lacks marketable
skills with which the worker can reasonably be expected to secure
suitable employment, as defined under Sec. 618.110, the cooperating
State agency must advise the worker to apply for training under subpart
F, or seek a waiver under Sec. 618.725 (waiver of training requirement
for basic TRA).
Sec. 618.340 Employment services and waiver provisions for workers
not enrolled in training.
(a) The cooperating State agency must coordinate with the One-Stop
delivery system to ensure the provision of services to adversely
affected workers who are determined through the initial assessment
under Sec. 618.335(a) (initial assessment of adversely affected
[[Page 50805]]
workers) to possess marketable skills for suitable employment and who
are reasonably expected to find employment at equivalent wages in the
foreseeable future. For these workers, in addition to the services
discussed in Sec. 618.310 (responsibilities for the delivery of
employment services not funded under the Act) and Sec. 618.315
(responsibilities for the delivery of employment services funded under
the Act), the cooperating State agency must take the following actions,
as necessary, and in a timely manner, to assure that the workers' job
search activities are efficient and effective:
(1) Determine whether a waiver of the training requirement is
appropriate under Sec. 618.725 (waiver of training requirement for
basic TRA), and, if appropriate, issue the waiver;
(2) Refer the worker to suitable work (as defined in Sec. 618.110,
whichever is applicable to the worker) through appropriate labor
exchange services provided by the public employment service system or
through WIA core services.
(b)(1) For workers whose initial assessment under Sec. 618.330
(assessment of adversely affected workers) indicates that suitable
employment is available but who are unsuccessful in their job search
efforts, the cooperating State agency must establish procedures that
will permit review of the assessment and of the reasons for the
workers' circumstances, as follows:
(i) If a waiver of the training requirement has not been issued,
the review must occur in a sufficiently timely manner so as not to
endanger a worker's eligibility for TRA under the time deadlines for
enrollment in a training program described in Sec. 618.725(b).
(ii) If a waiver of the training requirement has been issued based
on the assessment that the worker has marketable skills, the review
should be part of the cooperating State agency's 30-day waiver review
procedures.
(2) Based upon the review under paragraph (b)(1) of this section,
the cooperating State agency may plan appropriate additional employment
services and make a determination whether to continue or revoke a
training waiver issued under Sec. 618.725, to provide additional core
and intensive services, and/or supportive services, or to initiate a
comprehensive assessment in preparation for training.
Sec. 618.345 Comprehensive assessment for adversely affected workers.
(a) The cooperating State agency must arrange for a comprehensive
assessment for each worker seeking TAA approval of a training program.
(b) The comprehensive assessment must expand upon the initial
assessment regarding the worker's skills, aptitudes, and abilities
(including reading and math levels). The cooperating State agency
should determine in the comprehensive assessment, the worker's
interests as they relate to employment opportunities in demand either
in the commuting area (as defined in Sec. 618.110) or, where there is
no reasonable expectation of securing employment in the commuting area
and the worker is interested in relocation to other areas, outside of
the commuting area.
Sec. 618.350 IEPs for adversely affected workers.
A cooperating State agency must prepare an IEP, as defined in Sec.
618.110, for any worker who receives a comprehensive assessment. The
IEP must document the result of the comprehensive assessment and
document a service strategy to provide the worker with the services
needed to obtain employment. The IEP must document:
(a) Whether or not each of the six criteria for training approval
in Sec. 618.610(a) through (f) (criteria for approval of training) or
for issuing a training waiver under Sec. 618.725 has been met;
(b) The type of training proposed, if any;
(c) Any additional services that will be needed by the worker to
obtain employment, including intensive services, supportive services,
and post-training and follow-up services; and
(d) Any prearrangements (as described in Sec. 618.625(c) (payment
restrictions for training programs)) for sharing the costs of the
worker's approved training program, any amendments of the training
program, and any subsistence or transportation payments provided and
the basis for its calculation.
Sec. 618.355 Staff requirements for assessments.
Staff performing either the initial or comprehensive assessment
should possess the following:
(a) An understanding of the local labor market;
(b) Knowledge of local employer skill demands and hiring
prerequisites, such as educational requirements and professional
certifications, and the sets of skills workers from various occupations
are likely to possess;
(c) The ability to identify transferable skills that a worker may
possess that would be of interest to other local employers outside of
the worker's present occupational area;
(d) The ability to evaluate quickly a worker's knowledge of and
ability to implement job search strategies with little or no
assistance; and
(e) The ability to identify a worker's apparent employment barriers
that will require additional training and counseling.
Sec. 618.360 Employment services for workers enrolled in training and
follow-up services.
(a) The cooperating State agency must ensure that all workers who
enroll in training continue to receive access to the full range of core
and intensive services as discussed in Sec. 618.310 (responsibilities
for the delivery of employment services not funded under the Act) and
Sec. 618.315 (responsibilities for the delivery of employment services
funded under the Act), as appropriate, to facilitate their appropriate
and timely re-employment.
(b) The cooperating State agency must provide follow-up services,
including placement and other appropriate supportive services to
workers upon completion of training.
Sec. 618.365 Employment services and the TAA for Farmers program.
The cooperating State agency must provide employment services to
individuals entitled to cash benefits under the TAA for Farmers program
administered by the U.S. Department of Agriculture. Such individuals
may also receive training and incidental supplemental assistance under
subpart F of this part. However, they are not entitled to any other
benefits under the TAA program or under ATAA, including TRA under
subpart G of this part, job search allowances under subpart D of this
part, or relocation allowances under subpart E of this Part.
Subpart D--Job Search Allowances.
Sec. 618.400 Scope.
This subpart D sets forth the conditions under which an adversely
affected worker may apply for and receive a job search allowance to
help the worker secure suitable employment outside the commuting area
but within the United States.
Sec. 618.405 Applying for a job search allowance.
(a) Forms. To receive a job search allowance, an adversely affected
worker must apply to the cooperating State agency, using the forms that
such agency will furnish upon request.
[[Page 50806]]
(b) Submittal. A worker who has a total or partial separation may
apply to the cooperating State agency for a job search allowance after
a certification has been issued covering the worker. The worker must
apply for a job search allowance before beginning a job search, and the
job search allowance will not be approved until the cooperating State
agency has determined that the worker is covered by a certification.
(c) Time limits. To receive a job search allowance, the worker must
apply before the later of the following:
(1) The 365th day after either the date of the certification under
which he or she is covered, or the 365th day after his or her last
total separation, whichever is later; or
(2) The 182nd day after the date of concluding approved training,
unless the worker received a waiver of the participation in training
requirement, in which event this paragraph (c)(2) is inapplicable.
Sec. 618.410 Eligibility for a job search allowance.
(a) Conditions. To be eligible for a job search allowance a worker
must:
(1) File a timely application within the deadlines imposed by Sec.
618.405(c) (applying for a job search allowance);
(2) Be an adversely affected worker totally separated from the job
covered under the certification when he or she begins the job search;
(3) Receive a determination by the cooperating State agency that he
or she cannot reasonably expect to secure suitable employment (as
defined in Sec. 618.110) in the commuting area (as defined in Sec.
618.110), and can reasonably expect to obtain suitable employment
affording a reasonable expectation of employment of a long-term
duration outside the commuting area and in the area of the job search.
(4) Not have previously received a relocation allowance under
subpart E under this same certification; and
(5) Begin each job search after the date of the certification and
complete each State approved job search within 30 calendar days after
the worker leaves the commuting area to begin the job search.
(b) Completion of job search. A job search is completed when the
worker either obtains a job or has contacted each employer the worker
planned to contact or to whom the cooperating State agency or other
One-Stop partner referred the worker as part of the job search.
Sec. 618.415 Findings required.
(a) Available funding. Before any payment of a job search allowance
may be approved, the liable State (as defined in Sec. 618.110) must
determine that job search funds are available for the fiscal year in
which the job search activity takes place.
(b) Findings by liable State. Before final payment of a job search
allowance may be approved, the liable State must also:
(1) Find that the worker meets the eligibility requirements for a
job search allowance specified in Sec. 618.410(a)(1) through (b)(5)
(eligibility for a job search allowance);
(2) Find that the worker submitted the application for a job search
allowance within the time limits specified in Sec. 618.405(c)
(applying for a job search allowance); and
(3) Verify that the worker made contacts with all employers to
which the worker has been referred and must find that the worker
completed the job search (as described in Sec. 618.410(b)) within the
time limits stated in Sec. 618.410(a)(5) (eligibility for a job search
allowance).
(c) Assistance by agent State. (1) When a worker files an
application for a job search allowance to conduct a job search in an
agent State (as defined in Sec. 618.110), the cooperating State agency
of the agent State in which the worker conducts the job search is
responsible for assisting the worker in conducting the job search, and
for assisting the liable State by furnishing to it any information
required for the liable State's determination of the claim.
(2) The agent State must cooperate fully with the liable State in
carrying out its activities and functions with regard to such
applications.
Sec. 618.420 Amount of a job search allowance.
(a) Computation. The job search allowance is 90 percent of the
total costs of each of the following (up to the limit in paragraph (b)
of this section):
(1) Travel. The more cost effective, reasonable mode of travel
which cannot exceed the lesser of:
(i) The actual cost of the most economical round trip travel by
public transportation the worker reasonably can be expected to take
between the worker's home and the job search area; or
(ii) The prevailing cost per mile under the Federal travel
regulations (41 CFR part 301-11) for roundtrip travel by the usual
route from the worker's home to the job search area.
(2) Lodging and meals. The worker's allowable lodging and meals
costs, which cannot exceed the lesser of:
(i) The actual cost for lodging and meals while engaged in the job
search; or
(ii) 50 percent of the prevailing per diem allowance under the
Federal travel regulations for the worker's job search area.
(b) Limit. The worker's total job search allowance under a
certification may not exceed the statutory dollar limit, no matter how
many job searches he or she undertakes. If the worker is entitled to be
paid or reimbursed by another source for any of these travel, lodging
and meals expenses, the job search allowance will be reduced by that
amount.
Sec. 618.425 Determination and payment of a job search allowance.
(a) Determinations. The cooperating State agency must promptly make
and record determinations necessary to assure an adversely affected
worker's eligibility to a job search allowance. Sections 618.825
(determinations and notice) and 618.830 (appeals and hearings) of
subpart H apply to these determinations. Copies of such applications
and all determinations by the cooperating State agency must be included
in the adversely affected worker's case record.
(b) Payment. If the worker makes a timely application, is covered
under a certification, and is otherwise eligible, the cooperating State
agency must make payment as promptly as possible after the worker has
completed a job search and complied with paragraph (d) of this section,
provided that funds are available for job search allowances.
(c) Advances. Once the cooperating State agency determines that the
worker is eligible for a job search allowance, it may advance the
worker 60 percent of the estimated amount of the job search allowance
(subject to the limit of Sec. 618.420(b) (amount of a job search
allowance)) not later than five days before the worker begins the job
search. The advance must be deducted from any payment under paragraph
(b) of this section.
(d) Worker evidence. Once the worker has completed a job search, he
or she must certify, on a form provided by the cooperating State
agency, as to the employer contacts made and the daily lodging and
meals expenses and transportation costs. The worker must provide
receipts for all lodging and purchased transportation expenses during
the job search. An adjustment must be made if the amount advanced is
less or more than the amount to which the worker is eligible under this
section.
[[Page 50807]]
Sec. 618.430 Job search program participation.
(a) Requirements. An adversely affected worker who participates in
an approved job search program (JSP), as defined in Sec. 618.110, may
receive reimbursement for necessary expenses incurred for the worker's
participation in the approved JSP, regardless of the worker's approval
for or receipt of a job search allowance under Sec. 618.420 (amount of
a job search allowance) and Sec. 618.425 (determination and payment of
a job search allowance).
(b) Approved JSP. A cooperating State agency may approve a JSP if:
(1) The JSP is provided through the WIA, the public employment
service, or any other Federal or State funded program, and complies
with Sec. 618.110; or,
(2) The JSP is sponsored by the firm from which the worker has been
separated and complies with Sec. 618.110.
(c) JSP allowances. Subsistence and transportation costs, whether
inside or outside the worker's commuting area, must be approved for
workers participating in JSPs in accordance with Sec. 618.640(c) and
(d) (governing subsistence and transportation costs for workers in
approved training) and within available State funding levels. Costs
incurred may not exceed those allowable for training under Sec.
618.640(c) and (d).
Subpart E--Relocation Allowances
Sec. 618.500 Scope.
This subpart E sets forth the conditions under which an adversely
affected worker may apply for and receive a relocation allowance to
help the worker relocate to secure suitable employment outside the
commuting area but within the United States.
Sec. 618.505 General.
(a) A relocation allowance may be granted to an adversely affected
worker to assist the worker and the worker's family to relocate within
the United States. A relocation allowance may be granted to a worker
only once under a certification.
(b) A relocation allowance may not be granted to more than one
member of a family for the same relocation. If more than one member of
a family applies for a relocation allowance as an adversely affected
worker for the same relocation, then the allowance must be paid to the
family member who files first, if otherwise eligible.
Sec. 618.510 Applying for a relocation allowance.
(a) Forms. To receive a relocation allowance, a worker must apply
to the cooperating State agency, using the forms that such agency will
furnish upon request.
(b) Submittal. A worker who has a total or partial separation may
apply to the cooperating State agency for a relocation allowance after
a certification has been issued covering the worker. The worker must
apply for a relocation allowance before the relocation begins.
(c) Time limits. The worker must apply for a relocation allowance
before the later of the following:
(1) The 425th day after either the date of the certification under
which the worker is covered or the worker's last total separation,
whichever is later; or
(2) The 182nd day after the date the worker concluded training,
unless the worker received a waiver of the participation in training
requirement, in which event this paragraph (c)(2) is inapplicable.
Sec. 618.515 Eligibility for a relocation allowance.
(a) Conditions. To be eligible for a relocation allowance, the
worker must:
(1) File a timely application within the deadlines imposed by Sec.
618.510(c) (applying for a relocation allowance);
(2) Be an adversely affected worker totally separated from
adversely affected employment when the relocation begins;
(3) Not have already received a relocation allowance under the same
certification;
(4) Relocate within the United States but outside the worker's
present commuting area;
(5) Receive a determination by the cooperating State agency that
the worker has no reasonable expectation of securing suitable
employment (as defined in Sec. 618.110) in the commuting area (as
defined in Sec. 618.110), and has obtained suitable employment
affording a reasonable expectation of employment of a long-term
duration, or a bona fide offer of such suitable employment, outside the
commuting area and in the area of intended relocation; and
(6)(i) Begin the relocation as promptly as possible after the date
of certification but no later than:
(A) 182 days after the worker applies for a relocation allowance,
or
(B) 182 days after the conclusion of an approved training program,
if the worker entered a training program approved under Sec.
618.640(c) and (d) (subsistence and transportation payments) for
training outside the worker's commuting area;
(ii) Complete the relocation (as described in Sec. 618.530(e)
(determination and payment of a relocation allowance)) within a
reasonable time as determined in accordance with Federal travel
regulations with the cooperating State agency giving consideration to,
among other factors, whether:
(A) Suitable housing is available in the area of relocation;
(B) The worker can dispose of the worker's residence;
(C) The worker or a family member is ill; and
(D) A member of the family is attending school, and if so, when the
member can best be transferred to a school in the area of relocation.
(b) Job search allowances. The cooperating State agency may not
approve a relocation allowance and a job search allowance for a worker
at the same time. However, if the worker has received a job search
allowance, he or she may receive a relocation allowance at a later
time.
Sec. 618.520 Findings required.
(a) Available funding. Before any payment of a relocation allowance
may be approved, the liable State (as defined in Sec. 618.110) must
make a determination that relocation funds are available for the fiscal
year in which the relocation activity takes place.
(b) Findings by liable State. Before final payment of a relocation
allowance may be approved, the liable State must make the following
findings:
(1) That the worker meets the eligibility requirements for a
relocation allowance specified in Sec. 618.515(a)(1) to (6) and is not
also receiving a job search allowance as specified in Sec. 618.515(b)
(eligibility for a relocation allowance);
(2) That the worker submitted the application for a relocation
allowance within the time limits specified in Sec. 618.510(c)
(applying for a relocation allowance);
(3) That the worker began and completed the relocation within the
time limitations specified in Sec. 618.515(a)(6) (eligibility for a
relocation allowance); and
(4) That the worker obtained suitable employment affording a
reasonable expectation of employment of a long-term duration, or a bona
fide offer of such suitable employment, in the area of intended
relocation, in accordance with Sec. 618.515(a)(5) (eligibility for a
relocation allowance). The liable State must verify (directly or
through the agent State) the employment or bona fide offer with the
employer.
(c) Assistance by agent State. (1) When a worker relocates to an
agent State (as defined in Sec. 618.110), the cooperating State agency
of the agent State is responsible for:
(i) Assisting the worker in relocating to the State, and in
completing an
[[Page 50808]]
application for a relocation allowance with the liable State, and
(ii) Assisting the liable State by furnishing to it any information
required for the liable State's determination on the claim.
(2) The agent State must cooperate with the liable State in
carrying out its activities and functions with regard to relocation
applications. When requested by the liable State, the agent State must
verify with the employer and report to the liable State whether the
worker has obtained suitable employment affording a reasonable
expectation of employment of a long-term duration, or a bona fide offer
of such suitable employment.
Sec. 618.525 Determining the amount of a relocation allowance.
The worker's relocation allowance includes the following, as
applicable:
(a) Reimbursement. (1) Personal travel. The worker may be
reimbursed for 90 percent of the following expenses related to personal
travel:
(i) The lesser of--
(A) the most cost effective, reasonable travel expenses by public
transportation for the worker and family from their old home to their
new home; or
(B) the prevailing cost per mile by privately owned vehicle under
the Federal travel regulations (41 CFR part 301-11) for travel by the
usual route from their old home to their new home.
(ii) Separate travel, computed in accordance with paragraph
(a)(1)(i) of this section, of a family member or members who, for good
cause and with the approval of the cooperating State agency, must
travel separately to their new home. For purposes of this paragraph
(a)(1)(ii), good cause includes but is not limited to reasons such as a
family member's health, schooling or economic circumstances.
(2) Lodging and meals. The worker may be reimbursed for 90% of
lodging and meal expenses for the worker and his or her family while
they are in transit, but such costs may not exceed the lesser of:
(i) The actual lodging and meals cost to the worker and his or her
family while they are traveling; or
(ii) 50 percent of the prevailing per diem allowance under the
Federal travel regulations for the relocation area for those days while
the worker and his or her family are traveling.
(3) Movement of household goods. (i) The worker may be reimbursed
for 90 percent of the allowable costs of moving the worker's and
family's household goods and personal effects. This includes 90 percent
of the costs of moving by the most economical commercial carrier the
worker reasonably can be expected to use, moving by rental truck or
trailer (for rental, mileage and fuel), or moving a house trailer or
mobile home. It also includes 90 percent of the costs of temporary
storage of household goods for up to 60 days. In approving the move of
a house trailer or mobile home, the cooperating State agency must
follow the specific requirements of the Federal travel regulations at
41 CFR part 302-10.
(ii) For a commercial carrier move of household goods or house
trailer or mobile home, the worker must obtain an estimate of the
moving cost and provide this to the liable State. The estimate may
include the cost of insuring such goods and effects for their actual
value or $40,000, whichever is less, against loss or damage in transit.
(iii) If more economical, the cooperating State agency may make
direct arrangements for moving and insuring a worker's household goods
and personal effects with a carrier and insurer selected by the worker
and may make payment of 90 percent of moving and insurance costs
directly to the carrier and insurer. No such arrangement releases a
carrier from liability otherwise provided by law or contract for loss
or damage to the worker's goods and effects. The United States must not
be or become liable to either party for personal injury or property
loss damage under any circumstances.
(iv) The maximum net weight of the household goods relocated from
the worker's old home to the relocation area may not exceed that set by
the Federal travel regulations (41 CFR Parts 301 through 304); and
(4) Lump sum. As part of the relocation allowance, the worker will
receive a lump sum payment equivalent to three times his or her average
weekly wage, not to exceed the statutory dollar limit under section
237(b)(2) of the Act or its successor provision.
(b) Reduction. If the worker is eligible to receive or has received
moving expenses from any other source for the same relocation, the
amount received will be deducted from the amount of the relocation
allowance as determined in paragraphs (a)(1), (a)(2) and (a)(3) of this
section.
(c) Limitation. In no case may the cooperating State agency pay a
travel allowance for the worker or a family member more than once for a
single relocation.
Sec. 618.530 Determinations and payment of a relocation allowance.
(a) Determinations. The cooperating State agency must promptly make
and record determinations necessary to assure a worker's eligibility to
a relocation allowance. Sections 618.825 (determinations and notice)
and 618.830 (appeals and hearings) of subpart H apply to these
determinations. Copies of such applications and all determinations by
the cooperating State agency must be included in the adversely affected
worker's case record.
(b) Payment. If the worker makes a timely application, is covered
under a certification, and is otherwise eligible, the cooperating State
agency must make payment as promptly as possible after the worker has
completed the relocation.
(c) Travel allowances. (1) The cooperating State agency must pay,
in advance, by check payable to the worker, the allowances, computed
under Sec. 618.525(a) (determining the amount of a relocation
allowance), within 10 days before or at the time of the worker's
scheduled departure to begin relocation. Payment for a family member
approved for separate travel must be paid in advance within 10 days
before or at the time of that family member's scheduled departure.
(2) Worker Evidence. After a worker completes the relocation, he or
she must certify on a State form the daily lodging and meals expenses.
The worker must provide receipts for all lodging and purchased
transportation expenses for the worker and family related to the
relocation. If the advance the worker received was more or less than
the actual allowance, an appropriate adjustment must be made.
(d) Movement of Household Goods. The cooperating State agency must
pay the amount equal to 90 percent of the estimate of the costs of
moving the worker's household goods by the most economical commercial
carrier the worker reasonably can be expected to use (as described at
Sec. 618.525(a)(3) (determining the amount of a relocation allowance))
as follows:
(1) Commercial carrier. If a commercial carrier moves the worker's
household goods and personal effects, the cooperating State agency must
provide the worker with an advance equal to 90 percent of the estimated
cost of the move, including any other charges that the cooperating
State agency has approved such as insurance. The funds must be advanced
by check or checks payable to the carrier and insurer; the cooperating
State agency must deliver the check to the worker within 10 days of, or
at the time of, the scheduled shipment.
(i) On completion of the move (as determined under paragraph (e) of
this section), the worker must promptly
[[Page 50809]]
submit to the cooperating State agency a copy of the carrier's bill of
lading, including a receipt showing payment of moving costs.
(ii) If the amount the worker received as an advance is greater
than 90 percent of the actual approved moving costs, he or she must
reimburse the cooperating State agency for the difference. If the
advance the worker received is less than 90 percent of the actual
moving costs approved by the cooperating State agency, the cooperating
State agency must reimburse the worker for the difference.
(iii) If more economical, the cooperating State agency may make
direct arrangements for moving and insuring a worker's household goods
and personal effects with a carrier and insurer selected by the worker
and may make payment of 90 percent of moving and insurance costs
directly to the carrier and insurer subject to the condition of Sec.
618.525(a)(3)(iii) (determining the amount of a relocation allowance).
(2) Private truck and trailer, rental truck or trailer, or house
trailer move. (i) Private vehicle with trailer. If the move is by
private vehicle and trailer, 90 percent of the estimated cost for the
use of the private vehicle must be made by check payable to the worker
and must be delivered within 10 days of the scheduled move.
(ii) Truck and trailer rental. If the move is by rental truck or
rental trailer, 90 percent of the estimated rental cost must be
advanced by check payable to the worker or the rental agency and must
be delivered to the worker within 10 days of the scheduled move.
(iii) House trailer. If a house trailer or mobile home is moved by
commercial carrier, 90 percent of the approved estimated cost must be
advanced by check payable to the worker or the carrier, and must be
delivered to the worker within 10 days of the scheduled move.
(iv) On completion of the move, the worker must promptly submit a
receipt to the cooperating State agency itemizing and evidencing
payment of the rental charges for the rental trailer and fuel costs, or
for the rental truck and trailer and fuel costs, or for the actual
charges for the house trailer or mobile home move. If the amount the
worker received as an advance is greater than 90 percent of the actual
approved moving costs, he or she must reimburse the cooperating State
agency for the difference. If the advance the worker received is less
than 90 percent of the actual moving costs approved by the cooperating
State agency, the cooperating State agency must reimburse the worker
for the difference.
(3) Temporary storage. If temporary storage, not to exceed 60 days,
of household goods and personal effects is necessary and incident to
transportation of the household goods for the relocation, then 90
percent of the approved estimated cost must be advanced by check
payable to the worker or the rental agency and must be delivered to the
worker within 10 days of the scheduled move.
(e) Lump sum allowance. The lump sum allowance provided in Sec.
618.525(a)(4) (determining the amount of a relocation allowance) must
be paid when arrangements for the relocation are finalized, but not
more than 10 days before the earlier of the worker's anticipated
departure from his or her old home or the anticipated date of shipment
of the worker's household goods and personal effects.
(f) Relocation completed. A worker completes a relocation when the
worker and family, if any, along with household goods and personal
effects are delivered to the new residence in the area of relocation or
to temporary storage. If no household goods and personal effects are
moved, then a worker completes a relocation when the worker and family,
if any, arrive in the area of relocation and establish a residence in
the new area. When a family member is approved for separate travel, the
later arrival of such family member does not alter the date the
relocation was completed.
Subpart F--Training Services
Sec. 618.600 Scope.
This subpart covers approval of training for an adversely affected
worker. The purpose of an approved training program is to assist an
adversely affected worker to obtain skills that will lead them to work
that will use their highest skill levels, including those gained in the
training program, and pay the highest wages given the workers'
preexisting skill levels and education and the condition of the labor
market, and to do so as quickly as possible.
Sec. 618.605 Procedures.
(a) Comprehensive Assessment. The cooperating State agency must
ensure that every worker has a comprehensive assessment leading to the
development of an IEP, as described in subpart C, before an application
for training can be approved.
(b) Applications. (1) Applications for approval of training,
including requests for TAA-funded transportation and subsistence
payments, must accord with this subpart F and be documented on forms
which the cooperating State agency must furnish to individuals.
(2) A bona fide application for training under this subpart F must
contain the information specified in Sec. 618.110 and must be signed
and dated by a cooperating State agency representative upon receipt.
(c) Determinations. Selection for, approval of, or referral of a
worker to training, including TAA-funded transportation and subsistence
payments, under this subpart F, or a decision with respect to any
specific training or non-selection, non-approval, or non-referral for
any reason is a determination to which Sec. 618.825 (determinations
and notice), Sec. 618.830 (liable and agent State responsibilities)
and Sec. 618.835 (appeals and hearings) of subpart H apply. Copies of
such applications and all determinations by the cooperating State
agency whether to approve or deny the training, including TAA-funded
transportation and subsistence payments, must be included in the
adversely affected worker's case record.
(d) Linkages for training opportunities. It is the responsibility
of the cooperating State agency to explore, identify, and secure
training opportunities and to establish linkages with other public and
private agencies, as described in Sec. 618.325 (integrated service
strategies to ensure that a comprehensive array of services are
provided by WIA or other programs), which can provide training that
maximizes the potential of adversely affected workers to return to
employment as soon as possible. A cooperating State agency is not
required to create new training programs or develop new curricula where
none currently exist.
Sec. 618.610 Criteria for approval of training.
The cooperating State agency must consult the worker's
comprehensive assessment and IEP, as described respectively under Sec.
618.345 and Sec. 618.350, before approving an application for
training. Training must be approved for an adversely affected worker if
the cooperating State agency determines all of the following six
criteria are met:
(a) Criterion 1: There is no suitable employment available for the
adversely affected worker. (1) There is no suitable employment, as
defined at Sec. 618.110 (which may include technical and professional
employment), available for an adversely affected worker either in the
commuting area, as defined in Sec. 618.110, or outside the commuting
[[Page 50810]]
area in an area to which the worker desires to relocate with the
assistance of a relocation allowance under subpart E of this Part, and
there is no reasonable prospect of such suitable employment becoming
available for the worker in the foreseeable future. Notification of a
specific recall, as described in Sec. 618.725(b)(1) (waiver of
training requirement for basic TRA), to adversely affected employment
by the worker's firm in the same or essentially the same job is
considered suitable employment if the recall is expected to be
permanent, and the worker's application for training must be denied.
(2) ``No reasonable prospect of such suitable employment in the
foreseeable future'' means that the worker does not have a likely
prospect of being recalled to the adversely affected employment and an
assessment of the worker's skills and local labor market indicators, or
local labor market indicators in the area where the worker desires to
relocate, does not provide evidence of suitable employment being
available in the foreseeable future.
(3) If an application for training is denied under paragraph (a)(1)
of this section, the cooperating State agency must document the
availability of suitable employment through local labor market
information or job orders.
(b) Criterion 2: The worker would benefit from appropriate
training. (1) The worker would benefit from appropriate training when a
direct relationship exists between the worker's need for skills
training or remedial education in order to increase the likelihood of
obtaining suitable employment and those skills or remediation that
would be provided by the training program under consideration for the
worker. It also means that the training is expected to improve the
worker's chances of obtaining and retaining sustainable employment at
higher wages than would have been obtained in the absence of training;
(2) The worker must also have the knowledge, skills, and abilities
to undertake, make satisfactory progress in, and complete the training.
(3) The cooperating State agency may not approve training for a
worker that would result in seasonal employment, unless the duration
and minimum compensation of such employment meets the criteria for
employment that will lead to self-sufficiency set by the State
Workforce Investment Board or the Local Workforce Investment Board for
the local workforce investment area under 20 CFR 663.230.
(c) Criterion 3: There is a reasonable expectation of employment
following completion of such training. A reasonable expectation of
employment following completion of such training means that, given the
job market conditions expected to exist at the time of the completion
of the training program, a reasonable expectation, fairly and
objectively considered, exists that the worker is likely to find a job
that will allow the worker to achieve self-sufficiency. Self-
sufficiency is judged in accordance with criteria established by the
State Workforce Investment Board or the Local Workforce Investment
Board for the local workforce investment area under 20 CFR 663.230
using the skills and education acquired while in training, after
completion of such training. The job market conditions considered must
be limited to those in the worker's commuting area, as defined in Sec.
618.110, or in an area where the worker desires to relocate with the
assistance of a relocation allowance under subpart E of this part.
(1) Any determination under this criterion must take into account
that ``a reasonable expectation of employment'' does not require that
employment opportunities for the worker be available, or offered,
immediately upon the completion of the approved training. This
criterion emphasizes that, when initially approving such training,
there must be a fair and objective projection of job market conditions
expected to exist at the time of completion of the training. This
criterion recognizes that new employment occurs on employers' time
schedules that may not coincide with the time of the completion of the
training.
(2) The cooperating State agency may measure expected job market
conditions using the list of high growth and demand occupations
maintained by the Local Workforce Investment Board (which is based in
part on pertinent labor market data, including job order activity where
appropriate), or by contacting the local and State economic development
agencies for information about jobs requiring training that may not
already exist in the local workforce investment area but which have a
reasonable prospect of soon becoming available.
(3) When a worker desires to relocate within the United States but
outside the worker's present commuting area upon completion of
training, the cooperating State agency must obtain documentation (such
as telephone contact notes, copies of e-mail communications, or written
statements or a facsimile copy) of labor market information in the area
in which relocation is planned to support the determination that a
reasonable expectation of employment exists within the area of the
planned relocation.
(4) A reasonable expectation of employment may exist in a limited
demand occupation for a single, trained worker in an occupation that
occurs in exceptionally limited numbers in the worker's commuting area
(such as, a taxidermist or antique doll restorer) but is one in which
the worker has expressed a desire for training. Such an occupation
ordinarily will not appear on a list of high-growth and demand
occupations. A limited demand for such an occupation does not preclude
the development of an IEP that includes such an occupational training
program, but the cooperating State agency must determine that there is
a reasonable expectation that the worker can find employment in the
occupation. Cooperating State agencies must require that an employer
interested in hiring such a trained person provide evidence of an
intent to hire the worker upon successful completion of approved
training which provides documentation in the IEP that an employment
opportunity is expected to be available.
(5) A cooperating State agency may approve training in an
occupation if it finds that there is a reasonable expectation that the
training will lead to a reasonable prospect of self employment in the
occupation for which the worker requests training.
(d) Criterion 4: Training approved by the Secretary is reasonably
available to the worker from either governmental agencies or private
sources (which may include area vocational education schools and
employers). This criterion means that training is reasonably accessible
to the worker at any governmental or private training (or education)
provider. Training may be institutional training, on-the-job training
or customized training with employers. This criterion also means that
emphasis must be given to finding accessible training for the worker in
the commuting area, although it does not preclude approving training
outside the commuting area if none is available at the time within the
worker's commuting area. Whether the training is within or outside the
commuting area, the training must be available at a reasonable cost as
prescribed in paragraph (f) of this section. Sources of approved
training may include those described in Sec. 618.620 (selection of
training programs).
(e) Criterion 5: The worker is qualified to undertake and complete
such training. This means the worker is qualified to undertake and
complete such training, as follows:
[[Page 50811]]
(1) Evaluation of the worker's qualifications must determine that
the worker's knowledge, skills, and abilities, educational background,
work experience and financial resources, are adequate to undertake and
complete the specific training program being considered. The
cooperating State agency must consult the adversely affected worker's
comprehensive assessment or IEP developed in accordance with subpart C
of this part in determining whether the worker is qualified to
undertake and complete the training.
(2) The worker must have sufficient personal or family resources on
which to live to allow completion of the training within the time
limits in Sec. 618.615(a)(3) (limitations on approval of training).
(i) In making this determination, the cooperating State agency must
consider:
(A) The worker's remaining weeks of UI and TRA payments in relation
to the duration of the selected training program;
(B) Other sources of income support available to the worker
including severance, earnings of other family members, and other family
resources;
(C) Other fixed financial obligations and expenses of the worker
and family;
(D) The availability of Federal student financial assistance as
defined in Sec. 618.110 or any State-funded student financial
assistance; and
(E) If applicable, the worker's employment situation while
attending training.
(ii) Before approving a TAA training program, the cooperating State
agency must document that financial resources were discussed with the
worker and a determination made that the worker had adequate personal
or family resources along with UI and/or TRA payments to allow for the
completion of training.
(iii) When a worker has inadequate financial resources to complete
a selected TAA training program regardless of whether it exceeds the
duration of UI and TRA payments, then that training must not be
approved and consideration must be given to other training
opportunities or related workforce development programs' assistance
available to the worker.
(f) Criterion 6: Such training is suitable for the worker and
available at a reasonable cost. (1) Suitable for the worker. Suitable
for the worker means that the training being considered meets the
criteria in paragraph (e) of this section and that the training is
appropriate for the worker given the worker's knowledge, skills, and
abilities, background and experience.
(2) Available at a reasonable cost. (i) Costs of a training program
include tuition and related expenses (books, tools, uniforms and other
training-related clothing including goggles and work boots, laboratory
fees and other academic fees required as part of the approved training
program), subsistence expenses and travel expenses (described in Sec.
618.640(c) and (d) (subsistence and transportation expenses)). Under no
circumstances may the costs of a training program include the payment
for personal computer equipment for a worker to own, even when it is a
prerequisite for a worker's training program, although cooperating
State agencies may purchase personal computer equipment and then lend
it to those workers who require it for their training; if a worker
lacks sufficient access to such computer equipment, then the training
program must not be approved. Cooperating State agencies must pay the
costs of initial licensing and certification tests and fees where a
license or certification is required for employment.
(ii) The cooperating State agency must give first consideration to
the lowest cost training for the occupation that is available in the
worker's commuting area, if that training is of sufficient quality,
content, and expected outcome to meet the worker's occupational goal as
reflected in the IEP. The cooperating State agency may approve higher
cost training if that training is expected to be of demonstrably higher
quality, content or expected outcomes, or to achieve comparable results
in a significantly shorter duration.
(iii) Training in a selected occupational area may not be approved
if:
(A) It requires an extraordinarily high skill level; and
(B) The total costs of the training are substantially higher than
the costs of other types of training that are suitable for the worker.
(iv) Training at facilities outside the worker's commuting area
requiring transportation or subsistence payments which add
substantially to the total costs may not be approved if other
appropriate training in the commuting area is available at a lower
cost.
(v) A training program may not be approved if the cost exceeds the
limit on the amount of training per worker set by the cooperating State
agency, except as permitted under Sec. 618.650 (State training cost
caps).
Sec. 618.615 Limitations on approval of training.
(a) Length of training. The cooperating State agency, in
determining whether to approve training, must determine the
appropriateness of the length of training, as follows:
(1) The training must be of suitable duration to achieve the
desired skill level to facilitate employment in the selected occupation
in the shortest possible time.
(2) Factors that may affect the workers' participation in training,
including employment (full- or part-time) under Sec. 618.630 (training
of reemployed workers not in suitable employment), availability of
childcare, and the course schedule of the selected training
institution, must be considered.
(3) Duration. (i) The maximum duration for any approvable training
program is 104 consecutive calendar weeks, and up to 26 additional
calendar weeks, as needed, for a worker to complete approved remedial
education (as discussed in Sec. 618.755 (qualifying requirements for
TRA)) for a total not to exceed 130 consecutive calendar weeks.
(ii) If a training program meets the duration requirements of
paragraph (a)(3)(i) of this section, but will extend beyond the period
in which TRA is available, the cooperating State agency must determine,
under Sec. 618.610(e)(2) (criteria for approval of training), that the
worker has sufficient personal resources to complete the training.
(iii) The cooperating State agency must consult the adversely
affected worker's comprehensive assessment and IEP, as discussed in
Sec. 618.345 (comprehensive assessment) and Sec. 618.350 (IEPs), when
determining the length of remedial education the worker needs to return
to employment. This paragraph does not preclude the cooperating State
agency from approving a training program consisting entirely of
remedial education when it is determined to be appropriate for the
worker as long as it is consistent with, in particular, Sec.
618.610(c) (criteria for approval of training) that there is a
reasonable expectation of sustainable employment following completion
of training.
(4) Exception for certain workers who perform service in the
Uniformed Services. A member of one of the Reserve components of the
U.S. Armed Forces means the Army Reserve; Air Force Reserve; Naval
Reserve; Marine Corps Reserve; Coast Guard Reserve; Army and Air
National Guard when performing duty under Federal authority. A member
of one of the Reserve components of the U.S. Armed Forces ordered to
perform active duty service in the uniformed services will have the
period for training, under paragraph (a)(3) of this section, suspended
upon being called up to
[[Page 50812]]
duty, provided the requirements specified in paragraphs (a)(4)(i)
through (v) of this section are met. Such a Reserve component member
may either resume training upon discharge from active service for
whatever training period still remains from the point when the
Reservist left training for active duty, or be allowed to repeat
portions of the training if doing so is necessary for completion of the
approved training program, or, where appropriate, begin a new approved
training program. Where the Reservist repeats a training program or
begins a new training program, the Reservist will be entitled to a new
104-consecutive calendar week period, and up to an additional 26
calendar weeks, as needed, to complete approved remedial education (as
discussed in Sec. 618.755), for a total not to exceed 130-consecutive
calendar weeks. To be eligible to resume, repeat, or begin a new
approved training program, the Reservist must meet the following
requirements:
(i) The active duty service must be under competent Federal orders
and must be involuntary service in support of: a war or national
emergency declared by the President or the Congress; an operational
mission; a critical mission or requirement of the uniformed services;
or other contingencies for which an involuntary activation is deemed
necessary.
(ii) The worker must give prior oral or written notice of the
active duty service to the cooperating State agency, unless the giving
of notice is precluded by military necessity or is otherwise impossible
or unreasonable.
(iii) The worker must not have:
(A) received a dishonorable or bad conduct discharge;
(B) received a separation under other than honorable conditions;
(C) received a dismissal under section 10 U.S.C. 1161(a); or
(D) been dropped from the rolls under 10 U.S.C. 1161(b).
(iv) The worker must apply to the cooperating State agency for
training within 90 days following release from active duty service, as
described in Sec. 618.605(b)(2) (procedures) above. The application
may be oral or written.
(v) Upon request of the cooperating State agency, the worker must
provide documentation that the worker has not received a dishonorable
or other disqualifying discharge upon release from active duty service
as described in paragraph (a)(4)(iii) of this section.
(b) Amending approved training. The cooperating State agency may,
with the approval of the worker, amend a worker's approved training
program under the following conditions:
(1) The cooperating State agency determines after reviewing and
amending the worker's IEP that--
(i) A course or courses designed to satisfy unforeseen needs of the
worker, such as remedial education or new employer skill requirements,
are necessary;
(ii) The originally approved training program cannot be
successfully completed by the worker;
(iii) The originally approved training program is determined to be
of poor quality; or
(iv) Training in another occupation will lead to a better outcome.
(2) The proposed training program meets the criteria for approval
of training at Sec. 618.610 (criteria for approval of training), and,
specifically, the costs for the amended training program continue to
meet the reasonable cost requirement of Sec. 618.610(f).
(3) The amended training program and the originally approved
training program combined do not exceed the 104-week limitation, or the
130-week limitation when remedial education is part of the training
program, on the duration of training.
(c) One approved training program per certification. Except as
provided under paragraphs (a)(4) and (b) of this section, no worker may
receive more than one approved training program under a single
certification.
(d) Full-time or part-time training. A cooperating State agency may
approve a training program on a full-time or part-time basis.
(1) Full-time. Full-time training means that the hours in a day and
days in a week of attendance in training are full-time in accordance
with the established hours and days of the training provider. If a
worker in full-time training has obtained employment (which is not
suitable employment as defined in Sec. 618.110, then the worker may
choose to continue with such employment if the worker is willing and
able to accommodate a full-time training schedule under the training
institution's standard for full-time training.
(2) Part-time. (i) A cooperating State agency may approve part-time
training when the worker has employment which is not suitable
employment, or may amend an approved training program from full-time to
part-time if a worker obtains employment which is not suitable
employment and the worker wants to accept or continue with such
employment. A cooperating State agency may also approve part-time
training for partially separated workers. In such instances, the time
limits under paragraph (a)(3) of this section will continue to apply
for receipt of training and TRA (if applicable). Participants seeking
approval to attend training on a part-time basis must be employed on at
least a part-time basis in employment as defined under the State law of
the State in which the worker is employed. The combination of part-time
employment and part-time training must represent at least the
equivalent of full-time employment as defined by State law. The
training approval requirements of Sec. 618.610 (criteria for approval
of training) apply to part-time training. In particular, the
cooperating State agency must assure, before approving part-time
training or the amendment of an approved training program from a full-
time to a part-time basis, that the program provides the worker with a
reasonable expectation of employment following completion of the
training program.
(ii) If the hours of work are reduced so that the combination of
part-time employment and part-time training no longer represent the
equivalent of full-time employment, the worker may complete that
session or semester. However, the training approval must be rescinded
beginning with the next session or semester, unless the combination of
part-time employment and part-time training represents the equivalent
of full-time employment by the start of the next session or semester.
(iii) The cooperating State agency must ensure that the worker, if
choosing to engage in part-time employment and part-time training, is
informed of the possible negative effects on UI and other TAA benefits,
including loss of the HCTC. The cooperating State agency must require a
worker to sign a statement (for inclusion in the worker's case file)
establishing that the worker has been informed of the potential for
reduced benefits.
(e) Previous approval of training under other law. Training
previously approved for a worker under another State or Federal law or
other authority is not training approved under Sec. 618.610. Any such
training may be approved under Sec. 618.610 (criteria for approval of
training), if it meets all of the requirements and limitations of Sec.
618.610 and the other provisions of this subpart F, but such approval
may not be retroactive for any of the purposes of this Part 618,
including payment of the costs of the training and payment of TRA to
the worker participating in the training. However, in the case of a
redetermination or decision reversing a determination denying approval
of training, the redetermination or decision must be given effect
retroactive to the issuance
[[Page 50813]]
of the determination that was reversed; but no costs of training may be
paid unless such costs actually were incurred for training in which the
individual participated, and no basic nor additional TRA may be paid
with respect to any week the individual was not actually participating
in the training.
(f) Training outside the United States. In no case may a worker be
approved for training under this subpart F that is conducted totally or
partially at a location outside the United States.
Sec. 618.620 Selection of training program.
(a) Standards and procedures for selection of training. Cooperating
State agencies must document the standards and procedures used to
select training providers and training programs in which training is
approved. The following provisions apply to the selection of a training
program other than OJT, customized training, or training in limited
demand occupations:
(1) Cooperating State agencies may only approve training for an
adversely affected worker if the training is provided by an eligible
training provider under WIA, except as provided in paragraphs (a)(2)
and (a)(3) of this section.
(2) Cooperating State agencies must follow the applicable
requirements under WIA to approve requested training from a provider
that is not an eligible training provider.
(3) Cooperating State agencies may approve training in limited
demand occupations with a provider that has not been approved as an
eligible training provider if the provider meets the requirements
described at Sec. 618.610(c)(4).
(b) Methods of training. Eligible adversely affected workers must
be provided training using either one or a combination of the following
methods:
(1) Firm-specific retraining program. To the extent practicable and
before referring a worker to approved training, the cooperating State
agency must consult with the adversely affected worker's firm and
certified or recognized union, or other authorized representative, to
identify if there is suitable employment at the worker's firm for which
the worker can be retrained. If such suitable employment is identified,
the cooperating State agency must determine whether there is training
available that meets the firm's staffing needs and preserves or
restores the employment relationship between the worker and the firm.
That other employers in the area have no need for workers in a specific
occupation for which training is undertaken does not preclude approval
of a training program for such occupation with the adversely affected
worker's firm.
(2) In the event that firm-specific retraining is not practical,
preference should be given to on-the-job training under Sec. 618.635
(enrollment in OTJ and customized training), which may include related
education necessary to acquire skills needed for a position within a
particular occupation, in the firm or elsewhere. In determining whether
to approve on-the-job training, the cooperating State agency must
consider the six criteria in Sec. 618.610 (criteria for approval of
training), the availability of on-the-job opportunities and the
worker's need for remedial education, and inform the worker of the
effect of such training on eligibility for HCTC;
(3) Customized training; and
(4) Institutional training, with priority given to providing the
training in public area vocational and technical education schools, as
well as community colleges, if it is determined that such schools are
at least as effective and efficient as other institutional
alternatives. This also includes distance learning where a worker may
complete all or part of an educational or vocational program in a
geographical location apart from the institution hosting the training
program, and where the final certificate or degree conferred is
equivalent in standard of achievement and content to the same program
completed on campus or at another institutional training location.
(c) Other training. In addition to the training programs discussed
in paragraph (b) of this section, training programs that may be
approved under Sec. 618.610 (criteria for approval of training)
include, but are not limited to--
(1) Any program of remedial education, including adult basic
education courses and other remedial education courses, English as a
Second Language (ESL) courses, and General Equivalency Diploma (GED)
preparation courses offered through community colleges or other
training vendors;
(2) Vocational and technical education and apprenticeships;
(3) Any training program approvable under Sec. 618.610 for which
all, or any portion, of the costs of training the worker are paid--
(i) Under any other Federal or State program other than this
subpart F, or
(ii) From any source other than this part; and
(4) Any other training program approved by the Department.
Sec. 618.625 Payment restrictions for training programs.
The cooperating State agency must (subject to the cap on training
funds under section 236(a)(2)(A) of the Act) provide for payment of the
costs of an adversely affected worker's training approved under Sec.
618.610 (criteria for approval of training) as provided in this
section. The Department may use a formula to distribute to States
training funds for adversely affected workers.
(a) Funding of training programs. The costs of a training program
approved under the Act may be paid--
(1) Solely from TAA funds,
(2) Solely from other public or private funds (except as prohibited
in paragraph (d) of this section), or
(3) Partly from TAA funds and partly from other public or private
funds (except as prohibited in paragraph (d) of this section).
(b) No duplication of costs allowed. (1) Any use of TAA funds to
duplicate the payment of training costs in any circumstances is
prohibited.
(2) Procedures. When the direct costs of a training program
approvable under Sec. 618.610 (criteria for approval of training) are
payable from TAA funds and are also wholly or partially payable from
any other source, the cooperating State agency must establish
procedures that ensure TAA funds will not duplicate funds available
from the other source(s), but this preclusion of duplication does not
prohibit and must not discourage sharing of costs under prearrangements
authorized under paragraph (c)(2) of this section.
(c) Cost sharing permitted. (1) Sharing the future costs of
training is authorized where prior costs were paid from another source,
but this paragraph (c)(1) does not authorize reimbursement from TAA
funds of any training costs which were incurred, and for which payment
became due, before the approval of the training program under Sec.
618.610 (criteria for approval of training).
(2) Prearrangements and agreements. (i) Where training costs are
shared between the TAA program and any other source, the cooperating
State agency must enter into a prearrangement with the other funding
source to agree upon the mix of TAA funds and other funds to be used to
pay the costs of a training program approved under Sec. 618.610
(criteria for approval of training). A prearrangement must be a
specific, binding agreement from the other sources to pay the costs
they agree to assume, and must be entered into before any TAA funds are
obligated. If, after TAA funds are committed to a training program,
other funds become available to pay for that training, the
[[Page 50814]]
cooperating State agency must enter into an agreement with the other
funding source specifying how the training program will be funded.
(ii) Before approving any training program under subpart F of this
part, which may involve the sharing of training costs under the
authority of paragraph (a)(3) of this section, the cooperating State
agency must require the worker to enter into a written agreement with
the cooperating State agency, under which TAA funds will not be applied
for or used to pay any portion of the costs of the training the worker
has reason to believe will be paid by any other source.
(3)(i) A cooperating State agency may not take into account, in
determining whether training costs are payable from TAA funds, any
payments to the worker under any other Federal law, such as Federal
student financial assistance as defined in Sec. 618.110, which may
have the effect of indirectly paying all or a portion of the training
costs.
(ii) If payments of Federal student financial assistance and other
training allowances from other Federal funding sources are made to the
training provider instead of the worker and are used for training
costs, then such payments must be taken into account as direct payment
of the training costs under another Federal law for purposes of this
section.
(d) No training fees or costs to be paid by worker from TAA funds.
(1) A training program must not be approved under the Act if--
(i) All or a portion of the costs of such training program are paid
under any nongovernmental plan or program; and
(ii) The adversely affected worker has a right to obtain training
or funds for training under such plan or program; and
(iii) Such plan or program requires the worker to reimburse the
plan or program from funds provided under the Act, or from wages paid
under such training program, for any portion of the costs of such
training program paid under the plan or program.
(2)(i) No training program may be approved under Sec. 618.610
(criteria for approval of training) if the worker is to, or may, pay
any of the costs of a training program from any other funds belonging
to the worker from any source, except as provided in paragraph
(d)(2)(ii) of this section.
(ii) When the Director determines that all available funds under
section 236(a)(2)(A) of the Act have been allocated, the Director will
promptly publish a notice in the Federal Register announcing that
determination. A cooperating State agency must then seek funding from
other sources (other than from adversely affected workers), including
WIA national emergency grants for dislocated workers under 20 CFR part
671, to cover the costs of training approved under Sec. 618.610. To
the extent that a cooperating State agency is unable to fund training
costs from those other sources, the agency may approve training under
Sec. 618.610 where the worker pays those unfunded costs. Where the
worker chooses to pay those unfunded costs, the cooperating State
agency is not liable for paying those costs. Where the worker chooses
not to pay the unfunded costs, the cooperating State agency must waive
the training requirement on the basis that training is not available,
in order to preserve any remaining basic TRA eligibility under Sec.
618.725(b)(6) (waiver of training requirement for basic TRA).
(iii) If an employer or other entity agrees to fund training costs
under conditions that may make the worker liable for all or a portion
of those costs under certain conditions, the cooperating State agency
may, if the training is otherwise approvable, contract with the
employer or other entity to assume any unfunded costs on the worker's
behalf.
Sec. 618.630 Training of reemployed workers not in suitable
employment.
(a) An adversely affected worker who obtains new employment that is
not suitable employment, as defined in Sec. 618.110, and has been
approved for training under Sec. 618.610 (criteria for approval of
training) may elect to terminate the job, reduce the hours worked in
the job, or continue in full- or part-time employment. Such a worker
must not be subject to ineligibility or disqualification for UI or TRA
as a result of such termination or reduction in employment. A worker
who continues such full- or part-time employment while undertaking
training is considered to be in training under Sec. 618.765(b)
(disqualifications). If the worker continues in full- or part-time
employment that is not suitable employment while undertaking approved
training, the cooperating State agency must inform the worker in
writing that such employment may have negative effects on UI and other
TAA benefits due to disqualifying income, which could also include the
possible loss of the HCTC.
(b) An adversely affected worker described in paragraph (a) of this
section may also be eligible for job search and relocation allowances.
Sec. 618.635 Enrollment in on-the-job and customized training.
(a) On-the-job training (OJT). (1) Description. On-the-job training
is training provided by an employer to an adversely affected worker who
has been hired by the employer. OJT is conducted while the worker is
engaged in productive work in a job that provides knowledge or skills
essential to the full and adequate performance of the job. OJT is
provided under a contract with an employer in the public or private
sector.
(2) Related education. In providing OJT, the cooperating State
agency, insofar as possible, must ensure the provision of related
education necessary for the acquisition of skills needed for a position
within the occupational goal in the worker's IEP. Such related skills
training may be provided as part of the on-the-job training contract or
separately. Classroom training (also known as vestibule training)
sponsored by the employer may be provided prior to or in conjunction
with OJT to ensure the participant has sufficient working vocabulary
and concepts of the employer's industry or firm, or has a basic
understanding of such things as applicable safety rules and regulations
prior to on-site training. Such training may be provided at the
employment site or at educational institutions or other locations. Such
classroom or vestibule training may be conducted for a portion of the
day, to be followed by on-site OJT.
(3) Duration. The worker's IEP and the OJT contract with the
employer must specify the duration of the OJT. The duration of the OJT
must be appropriate to the occupational goal for which the adversely
affected worker is being trained, taking into account the content of
the training, the worker's prior work experience, and the worker's
skills as documented in the IEP. The duration of the training must
allow enough time for the worker to become sufficiently proficient in
the occupation for which the training is being provided to enable the
worker to perform as well as workers in comparable positions within the
firm.
(4) Reimbursement. (i) Under an OJT contract, the employer may be
reimbursed not more than 50 percent of the worker's wage rate for a
maximum 40-hour work week (including hours spent in classroom or
vestibule training conducted by the employer or the employer's
representatives) for the cost of providing the training and additional
supervision related to the OJT.
(ii) The reimbursement for OJT must be limited to the duration of
approved training as specified in the OJT contract.
[[Page 50815]]
(5) Approval of the Costs of OJT. OJT costs for an adversely
affected worker may be approved by a cooperating State agency only if a
determination is made that:
(i) No currently employed individual is displaced (including a
partial displacement, such as a reduction in the hours of non-overtime
work, wages, or employment benefits) by the adversely affected worker;
(ii) Such training does not impair existing contracts for services
or collective bargaining agreements;
(iii) In the case of training that would be inconsistent with the
terms of a collective bargaining agreement, written concurrence has
been obtained from the concerned labor organization;
(iv) No other individual is on layoff from the same or any
substantially equivalent job for which the adversely affected worker is
being trained;
(v) The employer has not terminated the employment of any regular
employee or otherwise reduced the workforce with the intention of
filling the vacancy created by hiring the adversely affected worker;
(vi) The job for which the adversely affected worker is being
trained is not being created in a promotional line that will infringe
in any way upon the promotional opportunities of currently employed
individuals;
(vii) The training is not for the same occupation from which the
adversely affected worker was separated and with respect to which such
worker's group was certified; and
(viii) The employer has not received payment under the TAA program
or under any other Federal law for any other OJT provided by such
employer which failed to meet the requirements of paragraphs (a)(5)(i)
through (a)(5)(vi) of this section or the requirements of the other
Federal laws governing employment practices.
(6) Payment of the costs of OJT. The costs of OJT that are paid
from TAA funds must be paid in equal monthly installments. To meet the
requirement that payments be made in equal monthly installments, a
cooperating State agency must either pay OJT costs in equal monthly
dollar amounts or, alternatively, compute the monthly payments at the
same rate. For the latter, payments based upon the number of hours of
paid work up to a maximum of 40 hours a week during the month and then
multiplied by the agreed-upon rate of payment are equal monthly
installments in that the payment for each month is computed at the same
rate.
(7) Under Sec. 618.765(c), an adversely affected worker may not be
paid TRA for any week during which that worker is in OJT and,
therefore, may be ineligible for the HCTC.
(b) Customized training. Customized training may be conducted by a
training vendor, and is training that is:
(1) Designed to meet the special requirements of one or more
employers;
(2) Conducted with a commitment by the employer(s) to employ an
adversely affected worker upon successful completion of the training;
and
(3) For which the employer(s) pay(s) for a significant portion (but
in no case less than 50 percent) of the cost of such training as
determined by the cooperating State agency and consistent with similar
policies established under WIA by the State Workforce Investment Board
and Local Workforce Investment Board for the local workforce investment
area.
Sec. 618.640 Subsistence and transportation payments.
(a) General. Subsistence and transportation payments must be
provided to an adversely affected worker whose training has been
approved under Sec. 618.610 (criteria for approval of training) to
defray reasonable subsistence and transportation expenses while the
worker attends a training program at a facility outside the worker's
commuting area. The need for such subsistence and transportation
payments must be identified in the worker's IEP as described in Sec.
618.350 (IEPs).
(b) Applications for subsistence and transportation payments. An
adversely affected worker must submit an application for any
subsistence or transportation payments in accordance with this section
on forms furnished by the cooperating State agency. A determination on
an application made under this section is subject to Sec. 618.825
(determinations and notice) and Sec. 618.835 (appeals and hearings).
(c) Subsistence payments. (1) General. Subsistence payments must be
made for the costs of separate maintenance, which means maintaining
another (second) residence, when the training facility is located
outside the adversely affected worker's commuting area.
(2) Requirements for subsistence payments. (i) An adversely
affected worker must receive subsistence payments only for the period
when he or she is not receiving or authorized to receive reimbursement
or separate payments for such costs from any other source; and
(ii) No subsistence payment may be made for any day for which such
worker receives a daily commuting transportation allowance from TAA
funds or from any other source or any day of unexcused absence as
certified by the training institution.
(3) Amount of subsistence payments. The cooperating State agency
may pay subsistence to an adversely affected worker only for the lesser
of:
(i) The adversely affected worker's actual per diem expenses for
subsistence, or
(ii) 50 percent of the prevailing per diem allowance rate
authorized under the Federal travel regulations (see 41 CFR parts 301
through 304) for the training facility.
(4) Timing of subsistence payments. The cooperating State agency
must make subsistence payments upon an adversely affected worker's
completion of a week of training, but may advance a subsistence payment
for a week if it determines that such advance is necessary to enable an
adversely affected worker to participate in training.
(d) Transportation payments. (1) General. Travel for which a
transportation payment must be paid includes travel:
(i) At the beginning and end of the training program located
outside the commuting area, where the adversely affected worker lives
at or near the training site and will not commute daily to his or her
permanent residence;
(ii) In order to return to the worker's permanent residence when
the worker fails with justifiable cause (as described in Sec.
618.765(b)(3)(iii)) to complete a training program located outside the
worker's commuting area; and
(iii) When the worker travels daily beyond the commuting area, and
receives transportation payments in lieu of subsistence. In such cases,
the daily transportation payment must not exceed the amount otherwise
payable as subsistence for each day of commuting.
(2) Requirements for transportation payments. An adversely affected
worker must receive payments for transportation expenses when commuting
to and from the training facility outside the commuting area.
Transportation payments will only be made when the total amount of such
payments will not exceed the total amount of subsistence payments that
would be made if the adversely affected worker were to maintain a
residence within the commuting area of the training facility.
Transportation payments are payable only for the actual days traveled.
Transportation payments must not be paid when:
(i) Transportation is arranged and paid for by the cooperating
State agency for one or more workers,
[[Page 50816]]
(ii) Such payments are being provided under any other law, or
(iii) The adversely affected worker is authorized to be paid or
reimbursed for such expenses from any other source.
(3) Amount of transportation payments. Such transportation payments
to an adversely affected worker must not exceed the lesser of:
(i) The actual cost for travel by the least expensive means of
public transportation reasonably available, or
(ii) The cost per mile at the prevailing personal vehicle mileage
rate authorized under the Federal travel regulations (see 41 CFR parts
301 through 304). See also Travel on Government Business, Privately
Owned Vehicle Reimbursement Rate at: http://www.gsa.gov. Cost per mile
payments are solely for those miles beyond the commuting area as
defined at Sec. 618.110.
(4) Timing of transportation payments. (i) An adversely affected
worker must receive transportation payments after completion of a week
of training approved under Sec. 618.610 (criteria for approval of
training). However, such payment may also be made in advance to
facilitate the worker's attendance at the training institution.
(ii) An adversely affected worker receiving subsistence payments
may also receive transportation payments only:
(A) At the beginning and end of the training program outside the
daily commuting area, or
(B) When the adversely affected worker fails for justifiable cause
(as described in Sec. 618.765(b)(3)(iii)) to complete the training
program and must return home before the end of the training program.
(e) Adjustments to subsistence and transportation payment advances.
The cooperating State agency must adjust subsistence and/or
transportation payments if it advances funds and the amount of the
advance is more or less than the amount to which the adversely affected
worker is entitled to receive under paragraphs (c)(3) and (d)(3) of
this section.
Sec. 618.645 Voluntary withdrawal from a training program.
(a) The cooperating State agency must advise an adversely affected
worker who chooses to withdraw from approved training that the worker's
eligibility for TAA training (even though it was not completed) is
terminated and the worker will not be able to resume the training
program, except as provided in Sec. 618.615(a)(4) (limitations on
approval of training) except that if a worker ceases participation in
training for justifiable cause, as described in Sec.
618.765(b)(3)(iii) (disqualifications), the worker may resume the
approved training program if the program can be completed within the
104 or 130-week period described in Sec. 618.615(a)(3)(i).
(b) The worker's eligibility for job search and relocation
allowances will not be affected by the decision to withdraw from
training. To be eligible for these allowances, the worker must meet all
eligibility requirements for these benefits as set forth in Sec.
618.410 (job search allowances) and Sec. 618.515 (relocation
allowances).
Sec. 618.650 State training cost caps.
(a) A cooperating State agency may set a statewide or local area
limit on the amount of training costs payable for training programs. If
such limits are used, the methods used for calculating such limits must
be documented and the limits must reasonably take into account the
costs for training available in the local areas throughout the State.
Factors that may be taken into account include average historical costs
of training available from eligible training providers, costs of
training for work force needs in high growth and high demand
industries, and the overall labor prospects. The cooperating State
agency must develop standards and procedures for the review and
approval of training costs that exceed established limits, based on
individual and exceptional circumstances.
(b) The cooperating State agency must review any established limits
on an annual basis to determine whether they continue to be appropriate
and change or end such limits if warranted.
(c) Whenever a cooperating State agency establishes, changes, or
ceases using State-established limits on training costs payable under
paragraph (a) of this section, the cooperating State agency must send
written notice and full documentation supporting its action to the
Director for review. Unless the Department notifies the cooperating
State agency, otherwise, in writing, within 30 calendar days of receipt
of such documentation, the cooperating State agency may establish,
change, or end such limits.
(d) The liable State will adhere to the agent State's training cost
caps, if any, when approving training programs in the agent State.
Sec. 618.655 Training services and the TAA for Farmers program.
(a)(1) An agricultural commodity producer entitled to receive a
cash benefit under a certification under the TAA for Farmers program
administered by the U.S. Department of Agriculture (see 7 CFR part
1580) is entitled to training under this subpart F where the
cooperating State agency determines that training approval criteria 2
through 6 (Sec. Sec. 618.610(b) through (f)) are met.
(2) With the exception of training approval criterion 1 (Sec.
618.610(a)), all the provisions of subpart F of this Part apply to
training for an agricultural commodity producer under paragraph (a)(1)
of this section.
(3)(i) An agricultural commodity producer is not entitled to
training under subpart F of this Part where that individual obtains
work of a substantially equal or higher skill level than his or her
past work as an agricultural commodity producer and wages for such work
at not less than 80 percent of the agricultural commodity producer's
average weekly income.
(ii) The average weekly income will be determined based upon the
most recent tax year that has ended for the individual prior to the
agricultural commodity producer's notice of entitlement to a cash
benefit under the TAA for Farmers program. The average weekly income
will be obtained by dividing by 52 the net income reported on the
agricultural commodity producer's tax return as income from all self-
employment. In the event that the agricultural commodity producer filed
a joint return, the average weekly income will be determined based upon
the share of that self-employment income attributable to that
individual.
(b) The cooperating State agency must, upon receiving an
application for training by an agricultural commodity producer, verify
the individual's entitlement to a cash benefit under the TAA for
Farmers program in accordance with procedures established by the
Department of Labor.
(c) An agricultural commodity producer receiving training under
paragraph (a) of this section is entitled to subsistence and
transportation payments in accordance with Sec. 618.640 where the
cooperating State agency determines that the requirements of that
section are met.
(d) An agricultural commodity producer entitled to a cash benefit
in multiple years for the same commodity is not entitled to a different
training program under each certification. Only one training program is
allowed per affected commodity, except as provided under Sec.
618.615(a)(4) (regarding certain workers who perform service in the
Uniformed Services) and Sec. 618.615(b) (on amending approved training
programs).
(e) An agricultural commodity producer establishing entitlement to
a cash benefit in accordance with
[[Page 50817]]
paragraph (a)(2) of this section is entitled to employment services
under subpart C of this part, but is not entitled to any other benefits
under the TAA program, including TRA under subpart G, job search
allowances under subpart D, relocation allowances under subpart E, or
ATAA.
Subpart G--Trade Readjustment Allowances
Sec. 618.700 Scope.
This subpart explains the requirements for eligibility for and the
amounts and duration of basic TRA, additional TRA, and remedial TRA,
all of which are income support in the form of cash payments for an
adversely affected worker after such worker exhausts all rights to UI
(except for additional compensation, as defined in Sec. 618.110).
Sec. 618.705 Categories of TRA.
(a) Basic TRA. Basic TRA is payable to an adversely affected worker
who meets the requirements of Sec. 618.715 (qualifying requirements
for basic TRA). Basic TRA is payable for weeks of unemployment after
the worker meets the criteria for exhaustion of UI under Sec.
618.715(e); and, consistent with Sec. 618.720 (training requirement
for receipt of basic, additional, and remedial TRA), for weeks of
unemployment during which the worker either is enrolled in, is
participating in, or has completed training (including, if necessary,
remedial education) approved under subpart F of this part 618, or has
received from the State agency a waiver of the training requirement
(under Sec. 618.725).
(b) Additional TRA. Additional TRA is payable to an adversely
affected worker who meets the requirements of Sec. 618.750 (qualifying
requirements for, and duration of, additional TRA). Additional TRA is
payable only for weeks of unemployment during which the worker is
participating in a training program, whether remedial education or
other training, approved under subpart F of this part 618 and only
after the worker has exhausted all rights to basic TRA.
(c) Remedial TRA. Remedial TRA is payable to an adversely affected
worker who meets the requirements of Sec. 618.755 (qualifying
requirements for, and duration of, remedial TRA). Remedial TRA is
payable only for weeks of unemployment during which the worker is
participating in a training program, whether remedial education or
other training, approved under subpart F of this part 618. Remedial TRA
is payable only after the worker has exhausted all rights to basic and
additional TRA.
(d) Nonduplication of TRA. An adversely affected worker may receive
only one form of TRA (basic, additional, or remedial) for a given week
of unemployment.
Sec. 618.710 Applications for TRA and payment.
(a) When a worker may apply for TRA. A worker may apply to the
cooperating State agency for TRA if the worker is covered under either
a certification or, if before a certification is issued, a pending
petition for certification.
(b) Determinations on TRA applications that are filed before
certification issued. The cooperating State agency must make those
determinations necessary to establish or protect an individual's
potential entitlement to TRA and, if necessary, to protect the worker's
eligibility for the HCTC. These determinations may include
determinations on enrollment in training and determinations on waivers.
If a determination is made before a certification is issued, the
cooperating State agency must advise the worker that eligibility for
the benefits that are the subject of the determination is contingent on
the issuance of a certification.
(c) Timing of TRA application after certification issued. For TRA
applications filed after a certification covering a worker is issued,
an initial application for TRA, as well as applications for TRA for
weeks of unemployment beginning before the initial application for TRA
is filed, may be filed within a reasonable period of time after
publication of the determination certifying a group of workers as
eligible to apply for TAA or TAA and ATAA . However, an application for
TRA for a week of unemployment beginning after the initial application
is filed must be filed within the time limit applicable to claims for
regular compensation under the applicable State law. For purposes of
this paragraph (c), a reasonable period of time means such period of
time as the adversely affected worker had good cause for not filing
earlier, which may include, but need not be limited to, such worker's
lack of knowledge of the certification or misinformation supplied such
worker by the cooperating State agency.
(d) Applicable procedures. Applications must be filed in accordance
with this subpart G and on forms furnished to workers by the
cooperating State agency. The procedures for reporting and filing
applications for TRA must be consistent with this part 618 and with the
Secretary's ``Standard for Claim Filing, Claimant Reporting, Job
Finding and Employment Services,'' Employment Security Manual, Part V,
sections 5000 et seq. (Appendix A of Part 617 of this chapter).
(e) Treatment of Determinations. Determinations on TRA applications
are determinations to which Sec. Sec. 618.625 (determinations and
notice), 618.830 (liable and agent State responsibilities), and 618.835
(appeals and hearings) of subpart H apply. Copies of such applications
for TRA and all determinations by the cooperating State agency on such
applications, must be included in the adversely affected worker's case
record.
(f) Payment of TRA. (1) A cooperating State agency must not make
any payment of TRA (or other TAA) until a certification is issued and
the cooperating State agency determines that the worker is covered
thereunder; and
(2) The first week any adversely affected worker may be entitled to
a payment of TRA is the first week beginning more than 60 days after
the date of the filing of the petition that resulted in the
certification under which the adversely affected worker is covered.
Sec. 618.715 Qualifying requirements for basic TRA.
To qualify for basic TRA for a week of unemployment, an individual
must meet each of the requirements in paragraphs (a) through (h) of
this section:
(a) Certification. The individual must be an adversely affected
worker covered under a certification;
(b) Separation. The adversely affected worker's first qualifying
separation (as defined in Sec. 618.110) must occur on or after the
impact date of the certification and before the expiration of the two
year period beginning on the date of such certification, or, if
earlier, before the termination date, if any, of such certification;
(c) Wages and employment. The adversely affected worker must meet
the following wage and other requirements:
(1) In the 52-week period (i.e., 52 consecutive calendar weeks)
ending with the week of the adversely affected worker's first
qualifying separation (as defined in Sec. 618.110), or any subsequent
qualifying separation (as defined in Sec. 618.110) under the same
certification, the worker must have had at least 26 weeks of employment
at wages of $30 or more a week in adversely affected employment with a
single firm or,
[[Page 50818]]
where there is more than one subdivision, the appropriate subdivision
of that firm. Evidence that the worker meets this requirement must be
obtained as provided in Sec. 618.730 (maximum amount of basic TRA).
Employment and wages covered under more than one certification may not
be combined to qualify for TRA.
(2) The following categories of weeks also must be treated as weeks
of employment at wages of $30 or more, regardless of whether the
adversely affected worker actually receives any wages during such
weeks, for purposes of this paragraph (c):
(i) All weeks, up to a maximum of 7 weeks, during which the
adversely affected worker is on employer-authorized leave for vacation,
sickness, injury, maternity, or inactive duty or active duty military
service for training.
(ii) All weeks, up to a maximum of 7 weeks, during which the
adversely affected worker had adversely affected employment interrupted
to serve as a full-time representative of a labor organization in such
firm or subdivision.
(iii) All weeks, up to a maximum of 26 weeks, during which the
adversely affected worker has a disability compensable under a workers'
compensation law or plan of a State or the United States.
(iv) All weeks, up to a maximum of 26 weeks, during which the
adversely affected worker is on call-up for the purpose of active duty,
if such active duty is ``Federal service'' as defined in Sec. 614.2(g)
of this chapter, in a reserve status in the Armed Forces of the United
States.
(3) Wages and employment creditable under this paragraph (c) must
not include employment, or wages earned or paid for employment, which
is contrary to or prohibited by any Federal law.
(d) Entitlement to UI. The adversely affected worker must have been
entitled to (or would have been entitled to if the worker had applied
therefor) UI for a week within the first benefit period as defined in
Sec. 618.110;
(e) Exhaustion of UI. The adversely affected worker must meet the
following two requirements:
(1) The adversely affected worker must have exhausted all rights to
any UI, except additional compensation that is funded by a State and
not reimbursed from any Federal funds (see Sec. 618.110), to which
such worker was entitled (or would have been entitled had such worker
applied therefor). Thus, whenever an adversely affected worker becomes
entitled (or would become entitled if the worker applied therefor) to
any type of UI (as defined in Sec. 618.110), except additional
compensation funded by a State and not reimbursed from any Federal
funds, after the start of the adversely affected worker's receipt of
TRA, then payment of TRA must be suspended until such worker exhausts
entitlement to such UI. After the adversely affected worker exhausts
that entitlement, as set forth in Sec. 618.240(a), payments of TRA to
which the worker is still entitled may resume.
(2) The adversely affected worker must have no unexpired waiting
period applicable to such worker for any UI, except additional
compensation (as defined in Sec. 618.110) that is funded by a State
and is not reimbursed from any Federal funds.
(f) Extended Benefit work test. The adversely affected worker must
be able and available for work, as defined in the applicable State law
for UI claimants, and must meet the Extended Benefit (EB) work test
requirements by the means described in this paragraph (f), unless any
exception described in paragraph (f)(2) of this section applies:
(1) The EB work test requirement must be met by:
(i) Registering for work with the State, in accordance with those
provisions of the applicable State law which apply to EB claimants and
which are consistent with part 615 of this chapter,
(ii) Applying for any suitable work, as defined in Sec. 618.110,
to which the adversely affected worker is referred by the State,
(iii) Actively engaging in seeking work,
(iv) Furnishing the State with tangible evidence of work search
efforts each week, and
(v) Accepting any offer of suitable work.
(2) The able and available requirement and the EB work test
requirement do not apply for purposes of TRA eligibility--
(i) When the adversely affected worker is enrolled or participating
in a training program approved under Subpart F of this Part 618, or,
(ii) During a break in training that does not exceed 30 days as
counted in accordance with Sec. 618.760(b), or,
(iii) With respect to claims for TRA for those weeks of
unemployment beginning before the filing of an initial claim for TRA,
or for any week which begins before the adversely affected worker is
notified that such worker is covered by a certification issued under
the Act and is fully informed of the EB work test requirements. Before
such notification and advice, the worker must not be subject to the EB
work test requirements for TRA eligibility purposes, nor to any State
timely filing requirement, but must be required to be unemployed and
able to work and available for work with respect to any such week
except as provided in paragraphs (f)(2)(i) and (f)(2)(ii) of this
section for adversely affected workers enrolled in, or participating
in, a training program approved under subpart F.
(g) Unemployed. The adversely affected worker must be unemployed,
as defined in the applicable State law for UI claimants.
(h) Participation in approved training. The adversely affected
worker must be enrolled in, participating in, or have completed,
training under the requirements of Sec. 618.720 (training requirement
for receipt of basic, additional, and remedial TRA), unless, with
respect to basic TRA, these requirements are waived under Sec.
618.725. This participation in approved training requirement does not
apply as a condition for receiving basic TRA before the applicable
deadline under Sec. 618.720(c).
Sec. 618.720 Training requirement for receipt of basic, additional,
and remedial TRA.
(a) Basic TRA. As a condition for receiving basic TRA, except
before the applicable deadline under paragraph (c) of this section, the
adversely affected worker, after a total or partial separation from
adversely affected employment within the certification period of a
certification issued under this part 618, must--
(1) Be enrolled in (as explained in paragraph (e)(1) of this
section) a training program approved under subpart F of this part 618;
or
(2) Be participating in (as explained in paragraph (e)(2) of this
section) a training program approved under subpart F of this part 618;
or
(3) Have completed (as explained in paragraph (e)(3) of this
section) a training program approved under subpart F of this part 618;
or
(4) Have a waiver granted under Sec. 618.725 in effect.
(b) Additional and remedial TRA. As a condition for receiving
additional or remedial TRA, the adversely affected worker must be
participating in a training program approved under subpart F of this
part 618, as explained in paragraph (e)(2) of this section.
(c) Enrollment in training deadlines. As a condition for receiving
basic, additional, or remedial TRA, the adversely affected worker must
be enrolled in a training program approved under subpart F of this part
618 (unless, in the case of basic TRA, a waiver
[[Page 50819]]
granted under Sec. 618.725 is in effect) no later than the latest of:
(1) The last day of the 16th week after the adversely affected
worker's most recent qualifying separation as defined in Sec. 618.110;
or
(2) The last day of the 8th week after the week in which the
certification was issued; or
(3) The last day of the 30-consecutive calendar day period
following the termination or revocation of a waiver under Sec.
618.725; or
(4) 45 days after the later of the dates specified in paragraphs
(c)(1) or (c)(2) of this section, if there are extenuating
circumstances that justify an extension of the enrollment period.
Extenuating circumstances that justify the 45-day extension are unusual
situations that are beyond the direct control of the adversely affected
worker, and that make enrollment within the otherwise applicable
deadline impossible or impractical. They include, but are not limited
to, the following:
(i) Abrupt cancellation of the training program by the training
provider;
(ii) The first available enrollment date is after the deadline
specified in paragraphs (c)(1) or (c)(2) of this section;
(iii) The adversely affected worker suffers injury or illness that
prevents his or her ability to enroll; or
(iv) Failure of the cooperating State agency to notify the
adversely affected worker of the petition certification and/or training
enrollment deadlines.
(5) An adversely affected worker who is not enrolled in training
may receive basic TRA before the expiration of the applicable deadline
under this paragraph (c).
(d) Exceptions. (1) The requirement of paragraph (a) of this
section that a worker be enrolled in, or participating in, training
does not apply to an adversely affected worker with respect to claims
for basic TRA for weeks of unemployment beginning before the filing of
an initial claim for TRA within a reasonable period of time as provided
in Sec. 618.710(c), nor for any week which begins before the worker is
notified that the individual is covered by a certification issued under
the Act and is fully informed of the requirements of this section.
(2)(i) The enrollment in training deadlines of paragraph (c) of
this section do not apply where a cooperating State agency's negative
determination on an initial application for TRA under subpart G of this
part 618 has been reversed through redetermination or appeal; the delay
in obtaining the reversal is not attributable to the adversely affected
worker; and the adversely affected worker is unable to meet the
enrollment in training deadlines because of the delay in obtaining the
reversal of the negative determination.
(ii) Where the conditions of paragraph (d)(2)(i) of this section
are met, the worker will have until the last day of the 8th week after
the week in which the negative determination was reversed in which to
enroll in training.
(e) For purposes of the training requirement in paragraphs (a) and
(b) of this section, the following provisions apply:
(1) A worker is ``enrolled in training'' if the cooperating State
agency has approved an application for training and the training
institution has furnished written notice that the worker has been
accepted into the approved program, which is scheduled to begin within
30 calendar days of the approval of the training application.
(2) An adversely affected worker is ``participating in training''
if--
(i) The worker is either attending and participating in all
scheduled classes, required activities, and required events, or the
training institution has excused the worker's absence or failure to
participate in accordance with its written policies. After the close of
each month during which the training program is in session, the
training institution must certify in writing to the cooperating State
agency whether, for each week ending during the prior month, the worker
has attended and participated in all scheduled classes, required
activities, and required events or whether it has excused the worker's
absence in accordance with it written policies; or
(ii) In the case of distance learning, the worker is either meeting
all the requirements of the training institution in accordance with its
rules, regulations, and standards, or the training institution has
excused the worker's failure to meet those requirements in accordance
with its written policies. After the close of each month during which
the training program is in session, the training institution must
certify in writing to the cooperating State agency whether, for each
week ending during the prior month, the worker has met all the
requirements of the training institution, or whether it has excused the
worker from those requirements in accordance with its written policies;
or
(iii) For any week during a break in training, if all of the
requirements of Sec. 618.760 (concerning payment of TRA during breaks
in training) are met.
(3) An adversely affected worker has ``completed training'' if--
(i) The training program was approved under subpart F of this part
618; and
(ii) The training program was completed after the worker's total or
partial separation from adversely affected employment within the
certification period of a TAA certification; and
(iii) The training provider has certified that all the conditions
for completion of the training program have been satisfied.
Sec. 618.725 Waiver of training requirement for basic TRA.
(a) Waiver for basic TRA. A cooperating State agency may issue a
written waiver of the requirement in Sec. 618.720 that an adversely
affected worker be enrolled or participating in training as a condition
of basic TRA eligibility upon a finding that training for such worker
is not feasible or appropriate, for one or more reasons identified in
paragraph (b) of this section. The waiver must contain the information
required in paragraph (c) of this section. No waiver of the training
requirement is permitted for additional TRA or remedial TRA
eligibility. Waivers must be issued no later than the latest of the
applicable deadlines described in Sec. 618.720(c).
(b) Bases for a waiver. The cooperating State agency, in order to
issue a written waiver to an adversely affected worker, must conclude,
after conducting an assessment of such worker, that training is not
feasible or appropriate for one or more of the following reasons, which
must be cited in the written waiver:
(1) The adversely affected worker has been notified that he or she
will be recalled to the same or substantially the same position by the
firm from which the separation occurred, and the recall is expected to
be permanent. A recall for purposes of this paragraph (b)(1) means that
the employer who separated the worker from adversely affected
employment has issued a specific recall whereby the employer notified
the adversely affected worker, or a group of workers including such
worker, to return to work on a certain date or within a specified time
period.
(2) The adversely affected worker has marketable skills and there
is a reasonable expectation of suitable employment (as defined in Sec.
618.110) within the foreseeable future.
(3) The adversely affected worker is within 2 years of meeting all
requirements for entitlement to either:
(i) Full or partial retirement old-age insurance under title II of
the Social Security Act (42 U.S.C. 401 et seq.)
[[Page 50820]]
(except for the requirement of application therefor); or
(ii) A private pension sponsored by an employer or labor
organization.
(4) The adversely affected worker is unable to participate in a
training program for health reasons. A waiver granted for this reason
does not exempt the worker from requirements relating to the
availability for work, active search for work, or refusal to accept
work under Federal or State UI laws.
(5) The first available enrollment date for training is within 60
days after the date on which a waiver determination is made, or, if
later, there are extenuating circumstances, as determined under the
criteria in Sec. 618.720(b)(4) (training requirement for basic TRA),
that apply to the delay in enrollment in training.
(6) Training is not reasonably available from governmental or
private sources (which may include area vocational education schools,
as defined in Sec. 3 of the Carl D. Perkins Vocational and Technical
Education Act of 1998 (20 U.S.C. 2302), and employers), or suitable
training is not available at a reasonable cost, or training funds are
unavailable.
(c) Contents of a waiver. A waiver issued under this section may
not take effect unless it contains, at a minimum, the following
information:
(1) The adversely affected worker's name and the worker's social
security number or another identifying designation used by the State;
(2) The name and location of the worker group and the petition
number under which the adversely affected worker's group was certified;
(3) A statement of the reasons why training is not feasible or
appropriate for the adversely affected worker, citing to one or more
reasons identified in paragraph (b) of this section;
(4) The effective date and expiration date of the waiver;
(5) A statement that the waiver must be revoked immediately upon a
determination that the basis or bases for the waiver no longer apply;
and
(6) The signature of an official of the cooperating State agency
authorized to grant the waiver, and the signature of the adversely
affected worker or other evidence of the worker's receipt of the waiver
to acknowledge such worker's receipt of the waiver.
(d) Denial of a waiver. In any case where the cooperating State
agency denies a request (whether or not made by the adversely affected
worker to whom the request pertains) that a waiver under this section
be issued, the adversely affected worker to whom the denial pertains
must be furnished with a written notice of the denial of waiver. The
cooperating State agency must afford such worker the right to appeal
the denial of a waiver. The written notice of denial of waiver must
contain, at minimum, the information in paragraphs (c)(1), (c)(2) and
(c)(6) of this section; the specific reason(s) for the denial; the date
of the denial; and notice of the adversely affected worker's appeal
rights.
(e) Duration of a waiver issued under this section. (1) A waiver
issued under this section may be for a period not to exceed 6 months,
or the worker's period of basic TRA entitlement, whichever comes first,
and must be reviewed every 30 days to determine if one or more of the
bases in paragraph (b) of this section continue to apply.
(2) Notwithstanding the 6-month limitation in paragraph (e)(1) of
this section, a cooperating State agency may extend an adversely
affected worker's waiver beyond 6 months, only if:
(i) Training continues not to be feasible or appropriate for such
worker for one or more of the reasons described in paragraph (b) of
this section; and
(ii) Such worker has not yet exhausted his or her basic TRA
entitlement.
(f) Revocation of a waiver. The cooperating State agency must
revoke a waiver issued under this section if the waiver criteria are no
longer met. The cooperating State agency must notify the adversely
affected worker in writing of any such revocation. The notice of
revocation must be appealable and must contain the same information as
a denial of waiver issued under paragraph (d) of this section as
appropriate.
(g) Submission of waivers and notices. The cooperating State agency
must submit to the appropriate Regional Administrator, upon request, a
copy of any or all waivers issued under this section together with a
statement of reasons for each such waiver, and a copy of any or all
notices of revocation of waiver issued under this section together with
a statement of reasons for each such revocation.
Sec. 618.730 Evidence of qualification for basic, additional, and
remedial TRA.
(a) Cooperating State agency action. When a worker applies for
basic, additional, or remedial TRA, the cooperating State agency having
jurisdiction under Sec. 618.825 (determinations of eligibility) must
obtain information necessary to establish:
(1) Whether the worker meets the qualifying requirements in Sec.
618.715 for basic TRA, in Sec. 618.750 for additional TRA, or in Sec.
618.755 for remedial TRA;
(2) For a worker claiming to be partially separated, the average
weekly hours (as defined in Sec. 618.110) and average weekly wage (as
defined in Sec. 618.110) in adversely affected employment.
(b) Insufficient data. If information specified in paragraph (a) of
this section is not available from cooperating State agency records or
from any employer, the cooperating State agency must require the worker
to submit a signed statement setting forth such information as may be
required for the cooperating State agency to make the determinations
required by paragraph (a) of this section.
(c) Verification. A statement made under paragraph (b) of this
section must be certified by the worker to be true to the best of the
worker's knowledge and belief and must be supported by evidence such as
W-2 Forms, paycheck stubs, union records, income tax returns, or
statements of fellow workers, and must, if possible, be verified by the
employer.
(d) Determinations. The cooperating State agency must make the
necessary determinations on the basis of information obtained under
this section, except that if, after reviewing information obtained
under paragraph (b) and (c) of this section against other available
data, including agency records, it concludes that such information is
not reasonably accurate, it must make the determination on basis of the
best available information.
Sec. 618.735 Weekly amounts of basic, additional, and remedial TRA.
(a) Regular allowance. The amount of basic, additional, or remedial
TRA payable for a week of total unemployment (including a week of
training approved under subpart F of this part 618) is an amount equal
to the most recent weekly benefit amount of UI (including dependents'
allowances) payable to the individual for a week of total unemployment
preceding the individual's exhaustion of UI following the individual's
first qualifying separation (as defined in Sec. 618.110); except
that--
(1) In a State in which weeks of UI are paid in varying amounts
related to wages with separate employers, the weekly amount of TRA must
be calculated as it would be to pay extended compensation; and
(2) Where a State calculates a base amount of UI and calculates
dependents' allowances on a weekly supplemental basis, TRA weekly
benefit amounts must be calculated in the same manner and under the
same terms and conditions as apply to claimants for UI, except that the
base amount must not change.
[[Page 50821]]
(b) Increased allowance. An adversely affected worker in training
approved under subpart F of this part 618 who is thereby entitled for
any week to TRA and a training allowance under any other Federal law
for the training of workers will be paid in the amount computed under
paragraph (a) of this section or, if greater, the amount to which the
adversely affected worker would be entitled under such other Federal
law if such worker applied for such allowance. A payment under this
paragraph (b) is in lieu of any training allowance to which the
adversely affected worker is entitled under such other Federal law.
(c) Reductions to the TRA weekly amount.The weekly amount of TRA
payable under this section will be reduced (but not below zero) by--
(1) Income that is deductible from UI under the disqualifying
income provisions of the applicable State law or Federal UI law;
(2) The amount of a training allowance (other than a training
allowance referred to in paragraph (b) of this section) under any
Federal law that the adversely affected worker receives for such week,
except that no reduction of the TRA weekly amount will be made for the
receipt of Federal student financial assistance (as defined in Sec.
618.110), and that in the case of an adversely affected worker to whom
such Federal student financial assistance is available, the State will
rely on prearrangements for the sharing of costs under Sec.
618.625(c)(2) (payment restrictions for training programs) in order to
harmonize the provision of such Federal student financial assistance
with the worker's TRA entitlement; and
(3) Any amount that would be deductible from UI for days of absence
from training under the provisions of the applicable State law that
applies to workers in approved training.
Sec. 618.740 Maximum amount of basic TRA.
(a) General rule. Except as provided in paragraph (b) of this
section, the maximum amount of basic TRA payable to an adversely
affected worker is the product of 52 multiplied by the TRA weekly
amount for a week of total unemployment, calculated under Sec.
618.735(a) (weekly amounts of TRA), reduced by the total sum of UI
(except additional compensation (defined at Sec. 618.110)) that such
worker received, or would have received had such worker either applied
therefor or not been subject to a disqualification under the applicable
State law, in such worker's first benefit period as defined in Sec.
618.110.
(b) Exceptions. The maximum amount of TRA determined under
paragraph (a) of this section does not include:
(1) The amount of dependents' allowances paid as a supplement to
the base weekly amount determined under Sec. 618.735(a); and
(2) The amount of the difference between the adversely affected
worker's weekly increased allowances determined under Sec. 618.735(b)
and such worker's weekly amount determined under Sec. 618.735(a).
(c) Reduction for Federal training allowance. (1) If a training
allowance referred to in Sec. 618.735(c)(2) is greater than the amount
of TRA otherwise payable to an adversely affected worker for any week
of unemployment with respect to which the worker would be entitled to
TRA (determined without regard to any disqualification under Sec.
618.765(b)(2)), if the worker had applied for TRA for such week, then
each week must be deducted from the total number of weeks of TRA
otherwise payable to such worker, except that no such deduction will be
made for the receipt of Federal student financial assistance as defined
in Sec. 618.110. In the case of an adversely affected worker to whom
such Federal student financial assistance is available, the State will
rely on prearrangements for the sharing of training costs under Sec.
618.625(c)(2) in order to harmonize the provision of such Federal
student financial assistance with the worker's TRA entitlement.
(2) If the training allowance referred to in paragraph (c)(1) of
this section is less than the amount of TRA otherwise payable to the
adversely affected worker for such week, such worker must, when
applying for TRA for such week, be paid TRA in an amount not to exceed
the difference between such worker's regular weekly TRA amount, as
determined under Sec. 618.735(a), and the amount of the training
allowance paid to such worker for such week. However, if the training
allowance referred to in paragraph (c)(1) is Federal student financial
assistance as defined in Sec. 618.110, then the amount of TRA will not
be reduced. In the case of an adversely affected worker to whom such
Federal student financial assistance is available, the State will rely
on prearrangements for the sharing of training costs under Sec.
618.625(c)(2) (payment restrictions for training programs) in order to
harmonize the provision of such Federal student financial assistance
with the worker's TRA entitlement.
Sec. 618.745 Eligibility period for basic TRA.
(a) Except as provided in paragraph (b) of this section, an
adversely affected worker is ineligible to receive basic TRA for any
week of unemployment beginning after the close of the 104-week period
beginning with the first week following the week in which the adversely
affected worker's most recent qualifying separation (defined in Sec.
618.110) occurred. If necessary to permit an adversely affected worker
to complete training, approved under subpart F of this part 618, that
includes remedial education, that 104-week period will be extended to
130 weeks.
(b) The limitation in paragraph (a) of this section does not apply
where a negative determination on a petition filed under subpart B of
this part 618 has been appealed to the United States Court of
International Trade; and the certification is later granted; and the
delay in the certification is not attributable to the petitioner or the
adversely affected worker; and the adversely affected worker does not
have enough weeks remaining in the eligibility period established under
paragraph (a) of this section, together with weeks of entitlement to
additional TRA, to extend the duration of the period of TRA eligibility
(basic, additional, and remedial) through the completion of training
approved under subpart F of this part 618. In that event, the
eligibility period for basic TRA will be extended, on a case-by-case
basis, as necessary to provide an eligibility period for basic and
additional TRA (and remedial TRA, if applicable) through the completion
of that training. In no event may the basic TRA eligibility period
extend beyond the close of the 104-week period (or, in cases where the
worker takes remedial education courses, the 130-week period) beginning
with the first week following the week of the certification. Nothing in
this paragraph (b) modifies the limitation on the maximum amount of
basic, additional, or remedial TRA.
(c) The limitation in paragraph (a) of this section does not apply
where a cooperating State agency's negative determination on an
application for TRA filed under subpart G of this part 618 has been
reversed on redetermination or appeal; the delay in obtaining the
reversal is not attributable to the adversely affected worker; and the
adversely affected worker does not have enough weeks remaining in the
eligibility period established under paragraph (a) of this section,
together with weeks of entitlement to additional TRA, to extend the
duration of the period of TRA eligibility (basic,
[[Page 50822]]
additional, and remedial) through the completion of training approved
under subpart F of this part 618. In that event, the eligibility period
for basic TRA will be extended, on a case-by-case basis, as necessary
to provide an eligibility period for basic and additional TRA (and
remedial TRA, if applicable) through the completion of that training.
In no event may the basic TRA eligibility period extend beyond the
close of the 104-week period (or, in cases where the worker takes
remedial education courses, the 130-week period) beginning with the
first week following the week of the reversal. Nothing in this
paragraph (c) modifies the limitation on the maximum amount of basic,
additional, or remedial TRA.
Sec. 618.750 Qualifying requirements for, and duration of, additional
TRA.
(a) Qualifying requirements for additional TRA. An adversely
affected worker is eligible to receive additional TRA for any week only
if:
(1) The worker meets all qualifying requirements for receipt of
basic TRA in Sec. 618.715; and
(2) Except as provided in Sec. 618.760 for a break in training,
the adversely affected worker actually participated in training,
approved under subpart F of this part 618, during that week; and
(3) The adversely affected worker filed a bona fide application for
training (as defined in Sec. 618.110) within the later of 210 days
after the certification date or 210 days after such worker's most
recent total or partial separation (as defined, respectively, in Sec.
618.110 and Sec. 618.110); provided, that if the adversely affected
worker is unable to meet this deadline for the same reasons as in Sec.
618.720(d)(2)(i), the worker will have 210 days from the date of the
reversal of a denial of an initial application for TRA in which to file
a bona fide application.
(b) Duration of additional TRA. Additional TRA is payable for up to
52 weeks during the 52 consecutive-calendar week period that--
(1) Immediately follows the last week of entitlement to basic TRA
otherwise payable to the individual; or
(2) Begins with the first week of training approved under subpart F
of this part 618, if such training begins after the last week described
in paragraph (b)(1) of this section; or
(3) Begins with the first week in which such training is approved
under subpart F of this part 618, if such training is approved after
the training has commenced; but approval of training under subpart F of
this part 618 after the training has commenced does not imply or
justify approval of a payment of basic or additional TRA with respect
to any week which ended before the week in which such training was
approved, nor approval of payment of any costs of training or any costs
or expenses associated with such training (such as travel or
subsistence) which were incurred before the date of the approval of
such training under subpart F of this part 618.
Sec. 618.755 Qualifying requirements for, and duration of, remedial
TRA.
(a) Qualifying requirements for remedial TRA. An adversely affected
worker is eligible to receive remedial TRA for any week only if--
(1) Such worker meets all qualifying requirements for receipt of
basic TRA in Sec. 618.715 (qualifying requirements for basic TRA); and
(2) The adversely affected worker actually participated in a
program of remedial education, approved under subpart F of this part
618, during or before that week; and
(3) Participation in the program of remedial education caused the
worker's training program to extend for a period longer than the
periods during which basic and additional TRA are payable under,
respectively, Sec. Sec. 618.715 (qualifying requirements for basic
TRA) and 618.750 (qualifying requirements for, and duration of,
additional TRA).
(b) Duration of remedial TRA. Remedial TRA is payable only for up
to 26 consecutive calendar weeks as necessary for an adversely affected
worker to complete a training program that is approved under subpart F
of this part 618 and which includes remedial education, and is payable
only during the 26-consecutive calendar week period that begins with
the first week following the week in which the adversely affected
worker exhausted all rights to additional TRA under Sec. 618.750
(qualifying requirements for, and duration of, additional TRA). No
adversely affected worker may receive remedial TRA for a greater number
of weeks than the number of weeks during which such worker participated
in a program of remedial education approved under subpart F of this
part 618. Remedial TRA may be paid only for the number of weeks that
the program of remedial education caused the training program to extend
training and the period in which additional TRA is payable under Sec.
618.750.
(c) Other forms of TRA payable for remedial education. Where a
program of remedial education approved under subpart F of this part 618
exceeds 26 weeks, or falls outside the 26-consecutive calendar week
period established under paragraph (b) of this section, an adversely
affected worker may, if otherwise eligible, receive basic or additional
TRA for those weeks of remedial education exceeding 26 or falling
outside the 26-consecutive calendar week period.
Sec. 618.760 Payment of basic, additional, or remedial TRA during
breaks in training.
(a) TRA (basic, additional, or remedial) is payable to an otherwise
eligible adversely affected worker during breaks in training (periods
within or between courses, terms (quarters or semesters), and academic
years) that do not exceed 30 days (counted in accordance with paragraph
(b) of this section), only if--
(1) The adversely affected worker participated in training approved
under subpart F of this part 618 immediately before the beginning of
the break in training; and
(2) The break in training was provided in the established schedule
of the training provider; and
(3) The adversely affected worker resumes participation in the
training immediately after the break ends.
(b) Counting of days for breaks in training. For the purpose of
determining whether a break in training is within the 30-day maximum
allowed under this section, all calendar days beginning with the first
day of the training break and ending with the last day of the break, as
provided in the published schedule of the training provider, must be
counted. However, any Saturday, Sunday, or official State or National
Holiday occurring during the scheduled break in training is excluded
from the 30-day count if training normally would not be scheduled in
the training program during those days if there was no break.
Sec. 618.765 Disqualifications.
(a) General rule. Except as stated in paragraph (b)(1) of this
section and in Sec. 618.840(f) (concerning disqualification due to
fraud), an adversely affected worker may not be paid TRA for any week
of unemployment such worker is or would be disqualified from receiving
UI under the disqualification provisions of the applicable State law,
including the provisions of the applicable State law which apply to EB
claimants and are consistent with the Federal-State Extended
Unemployment Compensation Act of 1970.
(b) Disqualification of trainees. (1) State law inapplicable. A
State law may not be applied to disqualify an adversely affected worker
from receiving UI or TRA because:
(i) Such worker is enrolled in or participating in a training
program
[[Page 50823]]
approved under subpart F of this part 618; or
(ii) Such worker refuses work to which the State agency referred
such worker because such work either would require discontinuation of
approved training or when added to the number of hours of approved
training would occupy such worker more than 8 hours a day or 40 hours a
week, except that this paragraph (b)(1)(ii) does not apply to an
adversely affected worker who is ineligible under paragraph (b)(2) of
this section; or
(iii) Such worker quits work that was not suitable employment (as
defined in Sec. 618.110) and it was reasonable and necessary to quit
in order to begin or continue training approved under subpart F of this
part 618.
(2) Disqualifications. (i) An adversely affected worker who,
without justifiable cause (as described in paragraph (b)(3)(iii) of
this section), fails to begin participation (as described in paragraph
(b)(3)(i) of this section) in training approved under subpart F of this
part 618, or ceases participation (as described in paragraph (b)(3)(ii)
of this section) in such training, or for whom a waiver is revoked
under Sec. 618.725(f) (waiver of training requirement for basic TRA),
may not receive basic TRA for any week in which such failure,
cessation, or revocation occurred. The disqualification will continue
for any succeeding week thereafter until the week in which such worker
begins or resumes participation in a training program approved under
subpart F of this part 618. A worker who has justifiable cause (as
described in paragraph (b)(3)(iii) of this section) for such failure to
begin, or ceasing, participation in training may receive basic TRA for
any week in which such failure or cessation occurred if the worker
otherwise meets the requirements of this subpart G. Such failure,
cessation, or revocation does not change the eligibility periods
defined in Sec. Sec. 618.745, 618.750(b), and 618.755(b), regardless
of whether such worker had justifiable cause.
(ii) No adversely affected worker may receive additional or
remedial TRA for any week in which such worker failed to participate in
training, regardless of whether such worker had justifiable cause.
(iii) The disqualification in paragraph (b)(2)(i) of this section
will not apply to an individual with respect to claims for TRA for
weeks of unemployment beginning before the filing of an initial claim
for TRA, nor for any week which begins before the individual is
notified that the individual is covered by a certification issued under
the Act and is fully informed of the requirements of this section.
(3) For determining the disqualification of trainees, the following
provisions apply:
(i) Failed to begin participation. A worker will be determined to
have failed to begin participation in a training program when the
worker fails to attend one or more scheduled training classes and other
training activities in the first week of the training program, without
justifiable cause.
(ii) Ceased participation. A worker will be determined to have
ceased participation in a training program when the worker fails to
attend all scheduled training classes and other training activities
scheduled by the training institution in any week of the training
program, without justifiable cause.
(iii) Justifiable cause means, for purposes of this section, the
reason(s) that justify the adversely affected worker's conduct when
measured by conduct expected of a reasonable worker in the same or
similar circumstances. For example, an excused absence under a training
institution's written policy may be considered ``justifiable cause.''
The cooperating State agency must determine all cases of failure to
enroll or begin or continue participation in training on a case-by-case
basis.
(c) Disqualification while in on-the-job training. An adversely
affected worker may not be paid any TRA for any week during which such
worker is receiving on-the-job training.
Sec. 618.770 Health Coverage Tax Credit.
(a) An eligible TAA recipient, as defined in Sec. 618.110, an
eligible ATAA recipient, as defined in Sec. 618.110, and an eligible
PBGC recipient, as defined in Sec. 618.110, may be eligible for the
Health Coverage Tax Credit subject to a determination by the Internal
Revenue Service.
(b) The cooperating State agency is responsible for: (1)
Transmitting a list of eligible TAA recipients and eligible ATAA
recipients to the Internal Revenue Service;
(2) Providing information and assistance to workers under Sec.
618.820(f)(4) (TAA program and benefit information to workers); and
(3) Assisting in other activities and functions required by the
State's Agreement with the Secretary under Sec. 618.805 (agreements
with the Secretary of Labor).
Subpart H--Administration By Applicable State Agencies
Sec. 618.800 Scope.
This subpart covers the administrative procedures a cooperating
State agency must follow in delivering TAA program benefits and
services to adversely affected workers.
Sec. 618.805 Agreements with the Secretary of Labor.
(a) Authority. A State or cooperating State agency must, before
performing any function or exercising any jurisdiction under the Act
and this part 618, execute an Agreement with the Secretary meeting the
requirements of the Act.
(b) Execution. An Agreement under paragraph (a) of this section
must be signed and dated on behalf of the State or the cooperating
State agency by an authorized official whose authority is certified by
the State Attorney General or counsel for the cooperating State agency,
unless the Agreement is signed by the Governor or the chief elected
official of the State. To become effective, in addition to an
aforementioned State official signing and dating the Agreement, the
Secretary must sign and date the Agreement on behalf of the United
States. In the event that a State does not execute an Agreement under
paragraph (a) of this section, then section 3302(c)(3) of the Internal
Revenue Code of 1986 (26 U.S.C. 3302 (c)(3)) (loss of unemployment tax
credits under section 3302(a) and (b)) applies.
(c) Agent of the United States. A State that has executed an
Agreement under this section is an agent of the United States for
purposes of carrying out the terms of the Agreement, and the
cooperating State agency must carry out fully the purposes of the Act
and this part 618, including making determinations and redeterminations
and in connection with proceedings for review thereof.
(d) Merit staffing. A State need not apply the merit system
standards of 5 CFR 900.603 to TAA program staff, except that employees
who also perform other functions covered by the merit system must be
merit staffed.
(e) Contents. Each Agreement under this section must contain
provisions including, but not limited to, the following:
(1) Provisions consistent with the requirements of section 239 of
the Act (19 U.S.C. 2311) providing for these Agreements;
(2) Authorization for the cooperating State agency to issue waivers
under Sec. 618.725 (waiver of the training requirement for basic TRA),
and the
[[Page 50824]]
requirement that the cooperating State agency submit, upon request, to
the Secretary a copy of each such waiver and, if not already contained
within each waiver, a statement of the reasons for such waiver; and
(3) The requirement that the cooperating State agency supply data
to the Secretary on national TAA program performance goals identified
in applicable regulations, the Department of Labor's written
directives, or any other written means used to communicate such goals.
(f) Public access to Agreements. The cooperating State agency must
make available for inspection and copying an accurate copy of its
Agreement under this section to any individual or organization that
requests it. Copies of the Agreement may be furnished upon payment of
the same charges, if any, as apply to the furnishing of copies of other
records of the cooperating State agency.
(g) Review of cooperating State agency compliance. The appropriate
ETA Regional Administrator is responsible for monitoring and reviewing
State and cooperating State agency compliance with the Agreement
entered into under the Act and this section.
(h) Breach. If the Secretary finds that the State or cooperating
State agency has not fulfilled its commitments under its Agreement
under this section, the Secretary may terminate the Agreement, disallow
costs or impose such other sanctions as may be appropriate. In the
event that the Secretary terminates the Agreement, section 3302(c)(3)
of the Internal Revenue Code of 1986 (regarding loss of unemployment
tax credits under section 3302(a) and (b)) applies. The Secretary must
provide the State or cooperating State agency reasonable notice and
opportunity for hearing before the Secretary makes a finding whether
the State has not fulfilled its commitments under its Agreement.
(i) Administration absent State Agreement. In any State in which no
Agreement under this section is in effect, the Secretary must
administer the Act and this part 618 and pay TAA hereunder through
appropriate arrangements made by the Department. For this purpose, the
Secretary or the Department is substituted for the State or cooperating
State agency wherever appropriate under the Act and this part 618. Such
arrangements must require that TAA be administered in accordance with
this part 618 and the provisions of the applicable State law, except to
the extent that such State law is inconsistent with this part 618, or
section 303 of the Social Security Act (42 U.S.C. 503), or section
3304(a) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)). Any
such arrangement must include a provision for a fair hearing for any
individual whose application for TAA is denied. A final determination
as to eligibility to TAA will be subject to review by the courts of
competent jurisdiction as provided by 42 U.S.C 405(g), as required by
section 240(b) of the Trade Act.
Sec. 618.810 Cooperating State agency rulemaking.
A cooperating State agency may establish supplemental procedures
not inconsistent with the Act or this part 618 or procedures prescribed
by the Department to further effective administration of this part 618.
The exact text of such supplemental procedure or procedures, certified
as accurate by a responsible official, employee, or counsel of the
cooperating State agency, must be submitted to the Department. No
supplemental procedure may become effective unless and until approved
by the Department. Approval may be granted on a temporary basis, not to
exceed a period determined by the Secretary on a case-by-case basis, in
cases of administrative necessity. On reasonable notice to a
cooperating State agency, approval of a supplemental procedure may be
withdrawn at any time. If public notice and opportunity for hearing
would be required under either a State law for adoption of a similar or
analogous procedure involving UI or other State or Federal law, the
cooperating State agency must provide such public notice and
opportunity for hearing as to the supplemental procedure.
Sec. 618.815 Subpoenas.
A cooperating State agency may issue subpoenas to require
attendance of witnesses and production of records on the same terms and
conditions as under the State law in the determination of a worker's
claim for TAA or to obtain information needed by the Department of
Labor or the cooperating State agency in the petition determination
process. The cooperating State agency may enforce compliance with
subpoenas as provided under the State law and, if a State court
declines to enforce a subpoena issued under this section, the
cooperating State agency may petition for an order requiring compliance
with such subpoena to the United States District Court with
jurisdiction over the proceeding.
Sec. 618.820 TAA program and benefit information to workers.
(a) Providing general program information and advice. Cooperating
State agencies must provide full information and advice to workers
about the benefits available under this part 618, and about the
petition and application procedures and the appropriate filing
deadlines for such benefits.
(b) Rapid response assistance. Cooperating State agencies must
ensure that rapid response assistance and appropriate core and
intensive services, as described in section 134 of the Workforce
Investment Act, as amended, are made available to workers for whom a
petition under subpart B of this part 618 has been filed.
(c) Providing reemployment services. Cooperating State agencies
must provide to adversely affected workers reemployment services,
including testing, counseling, assessment, selection and referral to
training, placement services, and such other reemployment services as
the Secretary may prescribe.
(d) Petition filing assistance. Cooperating State agencies must
provide whatever assistance is necessary to enable individuals and
entities to prepare petitions or applications for program benefits.
Cooperating State agencies must facilitate the early filing of
petitions for any workers who, based on information received from
sources, including but not limited to, the State's dislocated worker
unit, reasonably may be eligible to apply for benefits under this part
618. Cooperating State agencies may file petitions on behalf of groups
of workers for whom petitions have not otherwise been filed.
(e) Providing information after a certification is issued. (1)
Cooperating State agencies must inform the State's board on vocational
and technical education (also called the eligible agency, as defined in
20 U.S.C. 2302(9)) or the equivalent agency in the State and other
public or private agencies, institutions, and employers, as
appropriate, of each certification issued under subpart B of this part
618 and of projections, if available, of the needs for training under
subpart F of this part 618 as a result of such certification.
(2) Upon receipt of a certification issued under subpart B of this
part 618 by the Department of Labor, the cooperating State agency must
provide a written notice through the mail of the benefits available
under this part 618 to each worker known to be covered by the
certification when the worker becomes partially or totally separated or
as soon as possible after the certification is
[[Page 50825]]
issued if the worker is already partially or totally separated from
adversely affected employment. As part of its rapid response
responsibilities under Sec. 618.320, cooperating State agencies are
encouraged to provide notice of benefits to certified workers who have
not yet been totally or partially separated but who have received
notice of separation. The cooperating State agency must obtain from the
firm, or another reliable source, the names and addresses of all
workers who were partially or totally separated from adversely affected
employment before the agency received the certification, and of all
workers who are thereafter partially or totally separated within the
certification period. The cooperating State agency must mail to each
such worker a written notice that contains the following information:
(i) The worker group(s) covered by the TAA or the TAA and ATAA
certification, and the article(s) produced as specified in the copy of
the certification furnished to the State agency.
(ii) The name and the address or location of workers' firm.
(iii) The impact, certification, and expiration dates in the
certification document.
(iv) A summary of benefits and reemployment services available to
the workers.
(v) An explanation of how, when, and where the workers may apply
for TAA benefits and services.
(vi) The training enrollment deadlines for TRA qualification.
(vii) Whom to contact to get additional information on the
certification.
(3) Upon receipt of a copy of a certification issued by the
Department affecting workers in a State, the cooperating State agency
must publish a notice of the certification in a newspaper of general
circulation in areas in which such workers reside. A newspaper notice
is not required to be published, however, in the case of a
certification with respect to which the cooperating State agency can
substantiate, and enters in its records evidence substantiating, that
all workers covered by the certification have received the written
notice required by paragraph (c)(2) of this section. The published
notice must include the same information identified in paragraphs
(e)(2)(i) through (e)(2)(vii) of this section.
(f) Specific benefit assistance to workers. Cooperating State
agencies must--
(1) Advise each adversely affected worker, as soon as practicable
after the worker is separated from adversely affected employment or, if
later, after a certification is issued, of the benefits and services
available under this part 618, and of the qualifying requirements,
procedures, and deadlines for applying for such benefits and services.
(2) Interview each adversely affected worker unless the worker
declines the interview, as soon as practicable after the worker is
separated from adversely affected employment or after a certification
is issued. The interview must be scheduled in time for the worker to
meet the 8 week or 16 week deadlines for enrollment in training. The
interview must include, when appropriate, information about suitable
training opportunities available to the worker under subpart F of this
part 618, about jobs available in the labor market for workers with
marketable skills, and about a waiver under Sec. 618.725.
(3) Provide information on ATAA benefits and deadlines, including
informing the potentially eligible worker that the worker must make a
choice between TAA and ATAA benefits and services, if ATAA is included
in the certification.
(4) Provide information about:
(i) The health coverage tax credit (HCTC) available to eligible TAA
program recipients and eligible ATAA program recipients (as defined in
Sec. 618.110), as provided under section 35 of the Internal Revenue
Code of 1986. Information provided to workers about the HCTC must
include guidance on how to contact the appropriate division of the
Internal Revenue Service for more detailed eligibility and benefit
information about the HCTC;
(ii) The second COBRA election opportunity (a second period during
which HCTC-eligible individuals, who did not elect COBRA coverage
during the first election period, may elect coverage under COBRA, which
provides an individual and his/her family temporary continuation of
health insurance coverage under the individual's previous employer-
provided health insurance plan) available to eligible TAA recipients
and eligible ATAA recipients (as defined in Sec. 618.110) under the
Employee Retirement Income Security Act of 1974 (ERISA), the Internal
Revenue Code of 1986, and the Public Health Service Act. Information
provided to workers about the second COBRA election period must include
guidance on how to contact the appropriate division of the Internal
Revenue Service for more detailed eligibility and benefit information
about the second COBRA election period.
Sec. 618.825 Determinations of eligibility; notices to individuals.
(a) Determinations of initial applications. The cooperating State
agency whose State law is the applicable State law under Sec. 618.110
must, upon the filing of an initial application, promptly determine the
individual's eligibility to TAA or ATAA under this part 618, and may
accept for such purposes information and findings supplied by another
cooperating State agency.
(b) Determinations of subsequent applications. The cooperating
State agency must, upon the filing of an application for payment of
TRA, ATAA, or subsistence and transportation, promptly determine
whether the individual is eligible for such payment, and, if eligible,
the amount of such payment, for which the worker is eligible. In
addition, the cooperating State agency must, upon the filing of a
subsequent application for a job search allowance (where the total of
previous job search allowances paid the worker was less than the
statutory dollar limit), promptly determine whether the worker is
eligible for a job search allowance, and, if eligible, the amount of
the job search allowance for which the worker is eligible.
(c) Redeterminations. The provisions of the applicable State law
concerning the right to request, or authority to undertake,
reconsideration of a determination on a claim for UI applies to
determinations on all forms of TAA and on ATAA under this part 618.
(d) Use of State law. In making determinations or redeterminations
under this section, or in reviewing such determinations or
redeterminations under Sec. 618.835, a cooperating State agency must
apply the regulations in this part 618. As to matters committed by this
part 618 to be decided under the applicable State law, a cooperating
State agency, a hearing officer, or a State court must apply the
applicable State law and regulations thereunder, including the
procedural requirements of the applicable State law or regulations:
Provided, that, no provision of State law or regulations on good cause
for waiver of any time limit, or for late filing of any claim, will
apply to any time limitation referred to or specified in this part 618,
unless such State law or regulation is made applicable by a specific
provision of this part 618.
(e) Notices to individuals. The cooperating State agency must
notify the individual in writing of any determination or
redetermination of eligibility to TAA or ATAA. Each determination or
redetermination must inform the individual of the reason for
[[Page 50826]]
the determination or redetermination and of the right to
reconsideration or appeal in the same manner as determinations of
entitlement to UI are subject to redetermination or appeal under the
applicable State law.
(f) Promptness. Cooperating State agencies must make full payment
of TAA and ATAA when due with the greatest promptness that is
administratively feasible.
(g) Procedure. The procedures for making and furnishing
determinations and written notices of determinations to individuals,
must be consistent with the Secretary's ``Standard for Claim
Determinations--Separation Information,'' Employment Security Manual,
Part V, sections 6010-6015 (appendix B of part 617 of this chapter).
Sec. 618.830 Liable State and agent State responsibilities.
(a) Liable State. The liable State is responsible for:
(1) Making all determinations, redeterminations, and decisions on
appeals on all claims for program benefits under this part 618,
including job search allowances under subpart D; relocation allowances
under subpart E; training under subpart F; subsistence and
transportation payments under Sec. 618.640; basic, additional, and
remedial TRA under subpart G; waivers and revocations of waivers under
Sec. 618.725; and ATAA;
(2) Providing workers with general program information and advice
under Sec. 618.820(a) and petition filing assistance under Sec.
618.820(d);
(3) Providing rapid response assistance under Sec. 618.320 upon
receiving a copy of a petition filed on behalf of a group of workers at
a firm or appropriate subdivision in the State;
(4) Providing information and assistance to adversely affected
workers under paragraphs (c) (reemployment services), (e) (information
after a certification is issued), and (f) (specific benefit assistance
to workers) of Sec. 618.820 upon receiving a certification issued by
the Department with respect to affected workers at a firm or
appropriate subdivision in the State;
(5) Providing reemployment services as provided under this part 618
to adversely affected workers covered by a certification issued by the
Department under this part;
(6) Providing a list of eligible TAA recipients and eligible ATAA
recipients (as defined in Sec. 618.110) to the Internal Revenue
Service under Sec. 618.770; and
(7) Assisting in other activities and functions required by the
State's Agreement with the Secretary under Sec. 618.805.
(b) Agent State. The agent States is responsible for:
(1) Cooperating fully with and assisting the liable State in
carrying out its responsibilities, activities, and functions;
(2) Cooperating with the liable State in taking applications and
claims for TAA and ATAA;
(3) Providing interstate claimants with general program information
and advice under Sec. 618.820(a) and petition filing assistance under
Sec. 618.820(d);
(4) Providing employment services under subparts C, D, E, F, G, and
I of this part to adversely affected workers covered by a certification
issued by the Department;
(5) Cooperating with the liable State by providing information that
the liable State needs for it to issue determinations,
redeterminations, and decisions on appeals on all claims for program
benefits under this part 618, as described in paragraph (a)(1) of this
section;
(6) Procuring and paying the cost of any approved training under
subpart F, and subsistence and transportation payments under Sec.
618.640, according to determinations issued by the liable State; and
(7) Assisting in other activities and functions required by the
State's Agreement with the Secretary under Sec. 618.805.
Sec. 618.835 Appeals and hearings.
(a) Applicable State law. Except as provided below in paragraph
(b), a determination or redetermination under this part 618 is subject
to review in the same manner and to the same extent as UI
determinations and redeterminations under the applicable State law, and
only in that manner and to that extent. Proceedings for review of a
determination or redetermination may be consolidated or joined with
proceedings for review of other determinations or redeterminations
under the applicable State law where convenient or necessary.
Procedures as to the right of appeal and opportunity for fair hearing
must be consistent with sections 303(a)(1) and (3) of the Social
Security Act (42 U.S.C. 503(a)(1) and (3)).
(b) Allegations of discrimination. Complaints alleging that a
determination or redetermination under this part 618 violates
applicable Federal nondiscrimination laws administered by the U.S.
Department of Labor must be filed in accordance with the procedures of
29 CFR parts 31, 32, 35, 36, and/or 37, as provided in Sec. 618.875(i)
(nondiscrimination and equal opportunity requirements).
(c) Appeals promptness. Appeals under paragraph (a) of this section
must be decided with a degree of promptness meeting the Secretary's
``Standard on Appeals Promptness--Unemployment Compensation'' (Part 650
of this chapter). Any provisions of the applicable State law for
advancement or priority of UI cases on judicial calendars, or otherwise
intended to provide for prompt payment of UI when due, must apply
equally to proceedings involving eligibility to TAA under this part
618.
Sec. 618.840 Overpayments; penalties for fraud.
(a) Determination and repayment. If a cooperating State agency or a
court of competent jurisdiction determines that any person has received
any payment under this part 618 to which the person was not entitled,
including a payment referred to in paragraph (f) or paragraph (g) of
this section, such person will be liable to repay such amount to the
cooperating State agency, and the cooperating State agency must recover
any such overpayment in accordance with the provisions of this section
except that the cooperating State agency may, in accordance with
paragraphs (b) through (e) of this section, waive the recovery of any
such overpayment.
(b) Waiver of overpayment recovery; State option. Each cooperating
State agency has the option to decide whether to permit waiver of
recovery of overpayments determined under paragraph (a) of this
section. However, a cooperating State agency that decides to permit
such waiver must apply the waiver provisions of this section and
document that its waiver rules meet the requirements of this section. A
cooperating State agency's decision whether to permit waiver of TAA
overpayment recovery will not be controlled by whether it waives UI
overpayment recovery. The State's decision whether to permit waiver of
TAA overpayment recovery must be published for the information of the
public and must be provided to the Department.
(c) Waiver of overpayment recovery; requests for waiver. In States
which permit waivers of overpayments, notices of a determination of
overpayments must include an accurate description of the waiver
provisions of this section. Determinations granting or denying waivers
of overpayment recovery under this section must be made only on a
request for a waiver determination by the affected person. The request
must be made on a form furnished to the person by the cooperating State
agency.
[[Page 50827]]
(d) Waiver of overpayment recovery; general waiver criteria. The
cooperating State agency may waive the recovery of any overpayment
determined under paragraph (a) of this section if the agency
determines:
(1) The payment was made without fault on the part of such person,
in accordance with paragraphs (e)(1) and (e)(2) of this section; and
(2) Requiring repayment would be contrary to equity and good
conscience, in accordance with paragraphs (e)(3) through (e)(5) of this
section.
(e) Waiver of overpayment recovery; specific waiver criteria. (1)
In determining whether fault exists for purposes of paragraph (d)(1) of
this section, the following factors must be considered:
(i) Whether the person made a material statement or representation
in connection with the application for TAA that resulted in the
overpayment, and whether the person knew, or should have known, that
the statement or representation was inaccurate.
(ii) Whether the person failed, or caused another to fail, to
disclose a material fact in connection with an application for TAA that
resulted in the overpayment, and whether the person knew, or should
have known, that the fact was material.
(iii) Whether the person knew, or should have known, that the
person was not entitled to the TAA payment.
(iv) Whether, for any other reason, the overpayment resulted
directly or indirectly, and partially or totally, from any act or
omission of the person or of which the person had knowledge, and which
was erroneous or inaccurate or otherwise wrong.
(v) Whether there has been a determination of fraud under paragraph
(f) of this section or section 243 of the Act.
(2) An affirmative finding on any one of the factors in this
paragraph (e)(1) precludes waiver of overpayment recovery.
(3) In determining whether equity and good conscience exists for
purposes of paragraph (d)(2) of this section, the following factors
must be considered:
(i) If the overpayment was the result of a decision on appeal,
whether the cooperating State agency had given notice to the person
that the case had been appealed; that the person may be required to
repay the overpayment in the event of a reversal on appeal; and
recovery of the overpayment will not cause extraordinary and lasting
financial hardship to the person.
(ii) If the overpayment was not the result of an appeal, whether
recovery of the overpayment will not cause extraordinary financial
hardship to the person and whether the person was notified that he or
she was liable for repaying it.
(4) An affirmative finding on either of the factors in this
paragraph (e)(3) precludes waiver of overpayment recovery.
(5)(i) For the purpose of paragraph (e)(3) of this section, an
extraordinary financial hardship exists if recovery of the overpayment
would result directly in the person's loss of or inability to obtain
minimal necessities of food, medicine, and shelter for a substantial
period of time; and a lasting financial hardship is one that may be
expected to endure for the foreseeable future.
(ii) In applying this test in the case of attempted recovery by
repayment, a substantial period of time is 30 days, and the foreseeable
future is at least three months. In applying this test in the case of
proposed recoupment from other benefits, a substantial period of time
and the foreseeable future are the longest potential period of benefit
eligibility as measured at the time of the request for a waiver
determination. In making these determinations, the cooperating State
agency must take into account all potential income of the person and
the person's wholly or family-owned business, or family and all cash
resources available or potentially available to the person and the
person's wholly or family-owned, or family in the time period being
considered.
(f) Fraud. If a cooperating State agency or a court of competent
jurisdiction finds that any person:
(1) Knowingly has made, or caused another to make, a false
statement or representation of a material fact; or
(2) Knowingly has failed, or caused another to fail, to disclose a
material fact; and as a result of such false statement or
representation, or of such nondisclosure, such person has received any
payment under this part 618 to which the person was not entitled, such
person will, in addition to any other penalty provided by law, forever
more be ineligible for any further payments under this part 618.
(g) Training, job search and relocation allowances. (1) If an
adversely affected worker fails, with good cause, to complete training,
a job search, or a relocation, then the payments for such benefit are
not overpayments.
(2) If an adversely affected worker fails, without good cause, to
complete training, a job search, or a relocation, then any payments for
such benefits are overpayments.
(3) If an adversely affected worker fails, with good cause, to
complete part of the training, job search, or relocation and that
worker also fails, without good cause, to complete another part of the
training, job search, or relocation, then any payment for the benefit
accruing from the failure to complete training, job search, or
relocation without good cause are overpayments.
(4) For purposes of this paragraph (g), an adversely affected
worker has good cause if there exist such reasons that would cause a
reasonable person in like circumstances not to complete TAA program
benefits and services. The cooperating State agency must determine
whether good cause exists on a case-by-case basis.
(5) An overpayment established under this paragraph (g) may be
recovered or may be waived as provided in this section.
(h) Final determination. Except for overpayments determined by a
court of competent jurisdiction, no repayment may be required, and no
deduction may be made, under this section until the cooperating State
agency has made a determination under paragraph (a) of this section,
and has provided the person concerned a notice of the determination and
an opportunity for a fair hearing thereon, and the determination has
become final.
(i) Overpayment recovery by offset. Unless an overpayment is
otherwise recovered, or is waived under paragraphs (b) through (e) of
this section, the cooperating State agency--
(1) Must, subject to the limitation in paragraph (i)(4) of this
section, recover the overpayment by deduction from any sums payable to
such person under:
(i) This part 618;
(ii) Any Federal UI law administered by the State agency; or
(iii) Any other Federal law administered by the State agency that
provides for the payment of unemployment assistance or an allowance
with respect to unemployment.
(2) Must, if the State has a cross-program offset Agreement with
the Secretary in effect under authority of 42 U.S.C. 503(g)(2), and
subject to the limitation in paragraph (i)(4) of this section, recover
the overpayment from UI payable to such person under the applicable
State law.
(3) May, if the State does not have a cross-program offset
Agreement with the Secretary in effect under authority of 42 U.S.C.
503(g)(2), and subject to the limitation in paragraph (i)(4) of this
section, recover the overpayment from UI payable to such person under
the State law.
(4) Must not allow any single deduction under this paragraph (i) to
[[Page 50828]]
exceed 50 percent of the amount otherwise payable to the person; except
that if the applicable State law provides for an overpayment recovery
deduction that is less than 50 percent of the amount otherwise payable,
such recovery must be equal to that lesser percentage.
(j) Deposit. Any amount recovered by a cooperating State agency
under this section must be deposited into the Federal fund or account
from which payment was made.
(k) Procedural requirements. The provisions of paragraphs (c), (e),
and (g) of Sec. 618.830 and Sec. 618.835 apply to determinations and
redeterminations made under this section.
(l) Fraud detection and prevention. State procedures for the
detection and prevention of fraudulent overpayments of TAA and ATAA
must be, at a minimum, no less rigorous than those the State has
adopted with respect to State unemployment compensation, and consistent
with the Secretary's ``Standard for Fraud and Overpayment Detection,''
Employment Security Manual, Part V, sections 7510-7515 (Appendix C of
this Part).
(m) Person. For purposes of this section and Sec. 618.845
(recovery of debts due the United States or others by TAA offset), a
person includes, in addition to an adversely affected worker or other
individual, any employer or other entity or organization as well as the
officers and officials thereof, any training institution as well as the
officers and officials thereof, who may bear personal responsibility
for the overpayment.
Sec. 618.845 Recovery of debts due the United States or others by TAA
offset.
(a) Debt due the United States. Notwithstanding any other provision
of this part 618, the State agency must apply TAA and ATAA, payable
under this part to a person (as described in Sec. 618.840(m)), for the
recovery by offset of any debt due the United States from the person.
(b) Debt due to others. The State agency must not apply or use TAA
and ATAA, in any manner for the payment of any debt of any person to
any State or any other entity or person, except as provided by the
applicable State law for UI.
Sec. 618.850 Uniform interpretation and application of the Act and
regulations.
(a) First rule of construction. The Act and the implementing
regulations in this part 618 will be construed liberally to carry out
the purposes of the Act.
(b) Second rule of construction. The Act and the implementing
regulations in this part 618 will be construed to assure, insofar as
possible, the uniform interpretation and application of the Act and
this part 618 throughout the United States.
(c) Effectuating purposes and rules of construction. (1) To
effectuate the purposes of the Act and this part 618 and to assure
uniform interpretation and application of the Act and this part 618
throughout the United States, a cooperating State agency must, upon
request, forward to the Department a copy of any administrative or
judicial ruling on an individual's eligibility to TAA and ATAA under
this part 618.
(2)(i) If the Department believes that a determination,
redetermination, or decision is inconsistent with the Department's
interpretation of the Act or this part 618, the Department may at any
time notify the cooperating State agency of the Department's view. The
cooperating State agency must issue a redetermination or must appeal,
if possible. The cooperating State agency also must not follow such
determination, redetermination, or decision as a precedent. In any
subsequent proceedings which involve such determination,
redetermination, or decision, or in which such determination,
redetermination, or decision is cited as precedent or otherwise relied
upon, the cooperating State agency must inform the decision maker of
the Department's view and must make all reas