Operating Instructions for Implementing the Amendments to the Trade Act of 1974 Enacted by the Trade and Globalization Adjustment Assistance Act of 2009, 50874-50900 [E9-23660]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 74, Number 189 (Thursday, October 1, 2009)]
[Notices]
[Pages 50874-50900]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-23660]



[[Page 50873]]

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Part II





Department of Labor





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Employment and Training Administration



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Operating Instructions for Implementing the Amendments to the Trade Act 
of 1974 Enacted by the Trade and Globalization Adjustment Assistance 
Act of 2009; Notice

Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / 
Notices

[[Page 50874]]


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DEPARTMENT OF LABOR

Employment and Training Administration


Operating Instructions for Implementing the Amendments to the 
Trade Act of 1974 Enacted by the Trade and Globalization Adjustment 
Assistance Act of 2009

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice, Training and Employment Guidance Letter (TEGL).

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SUMMARY: The Employment and Training Administration of the U.S. 
Department of Labor is publishing, for public information, notice of 
the issuance and availability of Training and Employment Guidance 
Letter (TEGL) number 22-08 entitled, Operating Instructions for 
Implementing the Amendments to the Trade Act of 1974 Enacted by the 
Trade and Globalization Adjustment Assistance Act of 2009, signed on 
May 15, 2009 by Douglas F. Small Deputy Assistant Secretary for 
Employment and Training.

FOR FURTHER INFORMATION CONTACT: Terry Clark, 202-693-3707.

SUPPLEMENTARY INFORMATION: The complete text of this guidance document 
is provided in this notice. In addition, it is available on the ETA 
Advisory Web site at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=2756.
    Subject: Operating Instructions for Implementing the Amendments to 
the Trade Act of 1974 Enacted by the Trade and Globalization Adjustment 
Assistance Act of 2009 (TEGL 22-08).
    Purpose: To assist the State Workforce Agencies designated by the 
Governor as ``cooperating state agencies'' in implementing the 
provisions of the Trade and Globalization Adjustment Assistance Act of 
2009 that amend the Trade Adjustment Assistance program, and creates or 
expands programs for Workers, Firms, Communities, and Farmers.
    References: The Trade and Globalization Adjustment Assistance Act 
of 2009 (Division B, Title I, Subtitle I of the American Recovery and 
Reinvestment Act of 2009, Public Law (Pub. L.) 111-5 (enacted on 
February 17, 2009); Trade Adjustment Assistance Reform Act of 2002 
(Pub. L. 107-210); the Trade Act of 1974, as amended (Pub. L. 93-618, 
as amended); 20 CFR part 617; 29 CFR part 90; Training and Employment 
Guidance Letter (TEGL) No. 11-02 with Changes 1, 2, and 3; TEGL No. 2-
03; Unemployment Insurance Program Letter (UIPL) No. 02-03, and Change 
1 and Change 3; UIPL No. 05-03; UIPL No. 33-03.
    Definitions: For purposes of these operating instructions, the 
following definitions will apply:
    1. 2002 Act means the Trade Act of 1974, Public Law 93-618, as 
amended through the Trade Adjustment Assistance Reform Act of 2002, 
Public Law 107-210.
    2. 2002 Amendments means the amendments made to the Trade Act of 
1974 by the Trade Adjustment Assistance Reform Act of 2002, Public Law 
107-210.
    3. 2009 Act means the Trade Act as it stands in 2009, including the 
Trade and Globalization Adjustment Assistance Act of 2009 (TGAAA) 
amendments.
    4. 2009 Amendments means the TGAAA, Division B, Title I, Subtitle I 
of the American Recovery and Reinvestment Act of 2009, Public Law 111-
5.
    5. Trade Act of 1974, means the Trade Act of 1974, Public Law 93-
618, as amended (through Pub. L. 106-113).
    6. Recovery Act means the American Recovery and Reinvestment Act of 
2009, Public Law 111-5.
    7. ATAA means the Demonstration Project for Alternative Trade 
Adjustment Assistance for Older Workers, under section 246 of the 2002 
Act, as in effect on May 17, 2009, the day before the effective date of 
the 2009 Act.
    8. CSA means Cooperating State Agency.
    9. Department or DOL means the U.S. Department of Labor.
    10. DOC means U.S. Department of Commerce.
    11. Secretary means the Secretary of Labor.
    12. TAA program means the Trade Adjustment Assistance for Workers 
program.
    13. TRA means Trade Readjustment Allowances.
    14. RTAA means Reemployment Trade Adjustment Assistance, under 
Section 246 of the 2009 Act.
    15. HCTC means Health Coverage Tax Credit. (Section 35, Internal 
Revenue Code (I.R.C.) of 1986) (26 U.S.C. 35)
    16. WIA means the Workforce Investment Act of 1998, Public Law 105-
220, as amended. (29 U.S.C. 2801 et seq.)
    17. Trade Affected Worker means workers who are members of a 
certified worker group and have been separated or threatened with 
separation.
    Background: The TAA program for workers was first established at 
the DOL by the Trade Act of 1974, and has been amended several times 
over the past thirty-five years. The latest amendments are contained in 
the 2009 Act, which is part of the Recovery Act. The 2009 Act overhauls 
the TAA program and expands TAA coverage to more workers and firms, 
including workers and firms in the service sector, and improves 
workers' opportunities for training, health insurance coverage, and 
reemployment.
    Section 1856 of the 2009 Amendments contains the sense of Congress 
as it applies the TAA programs: ``the Secretaries of Labor, Commerce, 
and Agriculture should apply the provisions of [their respective trade 
adjustment assistance programs] with the utmost regard for the 
interests of workers, firms, communities, and farmers petitioning for 
benefits.'' These operating instructions reflect this intent. DOL 
expects the CSAs to implement these instructions in accordance with 
that intent.
    Many aspects of the process for determining group and individual 
eligibility for TAA have been reformed by the 2009 Amendments. These 
amendments, as addressed in these operating instructions, apply to 
workers covered by petitions for adjustment assistance filed on or 
after May 18, 2009. Workers covered by petitions filed on or before May 
17, 2009, are subject to the provisions of the 2002 Act as described in 
the Operating Instructions provided in TEGL No. 11-02 and its changes, 
and TEGL No. 2-03 and its changes. These provisions remain in full 
force and effect as participants who are certified under the 2002 Act 
continue to seek and receive services and benefits under those 
provisions. This is true for all workers separated from adversely 
affected employment before the expiration of a certification based on a 
petition filed on or before May 17, 2009.
    Under the provisions of the 2002 Act, DOL receives petitions for 
TAA filed by an employer, a one-stop operator or one-stop partner (as 
defined in section 101 of the WIA), 29 U.S.C. 2801, a State dislocated 
worker unit established under title I of WIA, a group of workers, or 
their authorized representative. DOL conducts fact-finding 
investigations of these petitions to determine whether increased 
imports have contributed importantly to the workers' displacement, or 
if the workers have been affected by certain shifts in production. 
States make available rapid response and appropriate core and intensive 
services under WIA and assist DOL in reviewing the petitions. If the 
findings of an investigation show that the workers have been adversely 
affected by increased imports or a shift in production of articles, the 
Secretary

[[Page 50875]]

of Labor issues a certification of eligibility to apply for adjustment 
assistance. Once a certification is issued, notice of the 
certification, including the reason for certification, is transmitted 
to the State and the petitioner, published in the Federal Register, and 
posted on the DOL Web site.
    Under an agreement executed by the Secretary of Labor and the 
State, the CSA acts as the agent of the Secretary to notify certified 
workers of potential TAA benefits and services, make eligibility 
determinations for individuals, and deliver benefits and services. 
Individual workers who are members of the certified worker group apply 
for benefits and services at a One-Stop Career Center or other local 
office of the CSA. Individual workers who meet the qualifying criteria 
may receive job training, income support in the form of TRA, job search 
allowances, HCTC, a wage supplement in the form of ATAA (now RTAA), and 
relocation allowances. In addition, all workers covered by a 
certification are eligible for reemployment services including job 
referrals, job clubs, and resume-writing assistance.
    The 2009 Amendments amend the provisions of the 2002 Act in several 
substantial ways:

Group Eligibility Extended to Include

     Workers in firms that supply services;
     Workers whose firm has shifted production to any foreign 
country;
     Workers in public agencies;
     Workers whose firm produces component parts based on 
increased imports of finished products;
     Workers in firms that supply testing, packaging, 
maintenance and transportation services to companies with TAA-certified 
workers; and
     Workers whose firm is identified in an International Trade 
Commission ``injury'' determination listed in the Act.

Program Administration and Service Delivery

     Provides workers with a new entitlement to employment and 
case management services, and designates funds for that purpose;
     Permits CSAs to waive requirements as necessary to ensure 
the eligibility for program benefits of returning service members in 
the same manner and to the same extent as if the service member had not 
served a period of duty;
     Provides protections for workers covered under 
certifications delayed by judicial and administrative appeals;
     Applies State UI ``good cause'' waiver provisions to all 
TAA time limitations; and
     Provides minimum requirements for CSA reviews of waivers 
of the training requirement.

Training

     Raises the statutory cap on funds that may be allocated to 
the States for training from $220 million to $575 million per year, and 
amends how DOL apportions those funds;
     Allows TAA-funded training prior to separation from 
employment;
     Allows for part-time training, but without TRA; and
     Extends the deadline for enrolling in training in order to 
qualify for TRA to 26 weeks from the later of the worker's most recent 
total qualifying separation, or 26 weeks from the issuance of the 
certification. States may grant an extension of the training deadline 
for up to 45 days for extenuating circumstances. Workers may also 
receive a waiver of the training requirement within the same 26-week 
plus 45-day periods.

Income Support

     Increases the maximum amount of additional TRA from 52 to 
78 weeks for workers in long-term training;
     Permits the payment of 78 weeks of additional TRA over a 
period of 91 weeks, thereby allowing breaks in training and temporary 
periods of employment where additional TRA is not paid;
     Allows payment of up to 26 more consecutive weeks of 
additional TRA if the worker must undertake prerequisite education or 
remedial education in order to complete a program of TAA training;
     Allows trade-affected workers to elect to receive TRA 
instead of Unemployment Insurance (UI) based upon a second UI benefit 
year resulting from part-time or short-term work with a lower weekly 
benefit amount (WBA);
     Creates a new standard for the waiver of recovery of TAA 
overpayments; and
     Eliminates the 210-day requirement for making an 
application for training as a condition for the receipt of additional 
TRA.

Wage Supplement (RTAA)

     Eliminates the requirement for a group certification 
specifically for RTAA;
     Eliminates the requirement under ATAA that a worker must 
find reemployment within 26 weeks of layoff;
     Workers who choose and are eligible to receive RTAA may 
also receive regular TAA benefits and services: Employment and case 
management services, training, TRA (with limitations), relocation, 
HCTC, and job search allowances;
     Increases the limit on wages in eligible reemployment to 
$55,000 a year;
     Increases the individual's benefit cap to $12,000; and
     Allows a worker to qualify for RTAA when working part-
time.

Health Coverage Tax Credit

     Expands the HCTC program, which is available to ``eligible 
TAA recipients.''
     Modifies the definition of an ``eligible TAA recipient'' 
to permit a worker to receive the HCTC even though s/he is in a break 
in training of a duration that renders the worker ineligible for TRA.
     Modifies the definition of an ``eligible TAA recipient'' 
to not apply the training enrollment requirements to an individual who 
is receiving unemployment insurance compensation.
     Increases the HCTC tax credit from 65 percent to 80 
percent of the amount a worker paid for coverage under qualifying 
health insurance; and
     Provides for the continuation of HCTC eligibility for 
family members after receipt of Medicare, Death, or Divorce of the 
principle recipient.

Job Search and Relocation

     Amends the percentage of job search expenses that may be 
paid on behalf of a qualified participant to 100 percent of the total 
expenses, capped at $1,500; and
     Amends the percentage of relocation expenses that may be 
paid on behalf of a qualified participant to 100 percent of the total 
expenses, plus a payment up to $1,500.
    Operating Instructions: The operating instructions contained in the 
attachment are issued to the States and the CSAs as guidance provided 
by DOL in its role as the principal in the TAA program. As agents of 
the Secretary of Labor, the States and CSAs may not vary from the 
operating instructions in this document without prior approval from 
DOL.
    Pending the issuance of regulations implementing the provisions of 
the 2009 Act, the operating instructions in this document constitute 
the controlling guidance for the States and the CSAs in implementing 
and administering the 2009 Act, as provided in the agreements between 
the States and the Secretary of Labor under Section 239 of the 2009 
Act.
    These Operating Instructions only address changes to the TAA 
program

[[Page 50876]]

made by the 2009 Amendments. For issues that are not addressed by these 
operating instructions, States must continue to comply with Training 
and Employment Guidance Letter (TEGL) 11-02, Operating Instructions for 
Implementing the Amendments to the Trade Act of 1974 Enacted by the 
Trade Act of 2002, and Changes, 1, 2, and 3; and TEGL 2-03, Interim 
Operating Instructions for Implementing the Alternative Trade 
Adjustment Assistance (ATAA) for Older Workers Program Established by 
the Trade Adjustment Assistance Reform Act of 2002, and Change 1; and 
other such program letters issued by the Department applicable to the 
TAA benefits and assistance for adversely affected workers covered 
under TAA certifications resulting from petitions filed before May 18, 
2009.
    Unless otherwise noted, the 2009 Act takes effect for petitions 
filed on or after May 18, 2009, which is 90 days after the date the 
President signed the Recovery Act into law. This effective date 
includes amendments to the petitioning process and to the individual 
eligibility requirements and levels of TAA benefits and services. For 
convenience and emphasis, the effective date is repeated in several 
sections of these instructions. Petitions filed on and after May 18, 
2009, and certifications issued under those petitions, will be 
identified by a numbering sequence starting at 70,001.
    Action Required: CSAs are required to implement the 2009 amendments 
as set forth in these Operating Instructions for workers covered under 
petitions filed on or after May 18, 2009. Additionally, CSAs will 
continue to administer the 2002 Act for workers covered under petitions 
filed before the effective date of the 2009 Act until all of those 
workers have exited the program. CSAs will inform all appropriate staff 
of the contents of these instructions.
    Inquiries: CSAs should direct all inquiries to the appropriate ETA 
Regional office.
    Attachment A: Operating Instructions for Implementing the 
Amendments to the Trade Act of 1974 Enacted by the Trade and 
Globalization Adjustment Assistance Act of 2009.
    Attachment B: Trade Act of 1974, as amended, can be accessed at 
https://wdr.doleta.gov/directives/attach/tegl/TEGL22-08aB.pdf.

Attachment A

Table of Contents

Introduction

Definitions

A. Reauthorization and Termination
B. Group Eligibility Requirements
C. Trade Readjustment Allowances
D. Training
E. Job Search Allowances
F. Relocatioin Allowances
G. Employment and Case Management Services
H. Reemployment Trade Adjustment Assistance
I. State Operations
J. Health Coverage Tax Credit

Introduction

    These Operating Instructions only address changes to the TAA 
program made by the 2009 Amendments. For issues that are not addressed 
by these operating instructions, States must continue to comply with 
Training and Employment Guidance Letter (TEGL) 11-02, Operating 
Instructions for Implementing the Amendments to the Trade Act of 1974 
Enacted by the Trade Act of 2002, and Changes, 1, 2, and 3; and TEGL 2-
03, Interim Operating Instructions for Implementing the Alternative 
Trade Adjustment Assistance (ATAA) for Older Workers Program 
Established by the Trade Adjustment Assistance Reform Act of 2002, and 
Change 1; and other such program letters issued by the Department 
applicable to the TAA benefits and assistance for adversely affected 
workers covered under TAA certifications resulting from petitions filed 
before May 18, 2009.

Definitions

    For purposes of these operating instructions, the following 
definitions will apply:
     2002 Act means the Trade Act of 1974, Public Law 93-618, 
as amended through the Trade Adjustment Assistance Reform Act of 2002, 
Public Law 107-210.
     2002 Amendments means the amendments made to the Trade Act 
of 1974 by the Trade Adjustment Assistance Reform Act of 2002, Public 
Law 107-210.
     2009 Act means the Trade Act as it stands in 2009, 
including the Trade and Globalization Adjustment Assistance Act of 2009 
(TGAAA) amendments.
     2009 Amendments means the TGAAA, Division B, Title I, 
Subtitle I of the American Recovery and Reinvestment Act of 2009, 
Public Law 111-5.
     Trade Act of 1974, means the Trade Act of 1974, Public Law 
93-618, as amended (through Pub. L. 106-113).
     Recovery Act means the American Recovery and Reinvestment 
Act of 2009, Public Law 111-5.
     ATAA means the Demonstration Project for Alternative Trade 
Adjustment Assistance for Older Workers, under section 246 of the 2002 
Act, as in effect on May 17, 2009, the day before the effective date of 
the 2009 Act.
     CSA means Cooperating State Agency.
     Department or DOL means the U.S. Department of Labor.
     DOC means U.S. Department of Commerce.
     Secretary means the Secretary of Labor.
     TAA program means the Trade Adjustment Assistance for 
Workers program.
     TRA means Trade Readjustment Allowances.
     RTAA means Reemployment Trade Adjustment Assistance, under 
Section 246 of the 2009 Act.
     HCTC means Health Coverage Tax Credit. (Section 35, 
Internal Revenue Code (I.R.C.) of 1986) (26 U.S.C. 35).
     WIA means the Workforce Investment Act of 1998, Public Law 
105-220, as amended. (29 U.S.C. 2801 et seq.).
     Trade Affected Worker means workers who are members of a 
certified worker group and have been separated or threatened with 
separation.

A. Reauthorization and Termination

    Statutory Change: Sections 1891 through 1893 of the 2009 Amendments 
contain effective dates for the 2009 Act and amend section 245, 246 and 
285 relating to the authorization of appropriations and termination/
phase-out provisions applicable to the TAA program under the 2002 Act 
and the TAA program under the 2009 Act.
    Administration: Section 1891 of the 2009 Amendments provides that 
the effective date for the 2009 Act is 90 days after the date of 
enactment and the amendments apply to petitions filed on or after the 
effective date. Since the 2009 Amendments were signed into law on 
February 17, 2009, the effective date is May 18, 2009. Therefore, 
petitions filed on or after that date will be governed by the 2009 Act 
and the 2009 Act will apply to benefits available to workers covered 
under certifications issued in response to such petitions. Workers 
covered by certifications issued in response to petitions filed before 
May 18, 2009 will continue to be governed by the provisions of the 2002 
Act. This distinction means that CSAs will be providing benefits under 
two different sets of rules for workers covered by petitions filed 
before and on or after May 18, 2009. Workers covered by petitions filed 
before May 18, 2009, will be entitled to the benefits and services 
available under the TAA program under the 2002 Act, including the 
opportunity for ATAA-certified workers to elect to

[[Page 50877]]

participate in the ATAA program and receive the ATAA wage supplement 
benefit. Workers covered by petitions filed on or after May 18, 2009, 
will be entitled to benefits and services under the new TAA program 
under the 2009 Act, including the RTAA wage supplement benefit. The 
ATAA program will not terminate, as provided in the 2002 Act, five 
years after it was implemented by a State. Instead, workers covered by 
certifications for TAA and ATAA based on petitions filed before May 18, 
2009, will continue to be eligible to receive the ATAA wage supplement 
benefit available under the 2002 Act.
    Section 1892 amends section 245 of the 2002 Act to extend the 
authorization of appropriations through December 31, 2010. This section 
also amends section 285 of the 2002 Act to extend the termination/
phase-out provision to December 31, 2010. Under the termination phase-
out provision, no petitions filed after December 31, 2010, will be 
certified. Workers covered by certifications based on petitions filed 
on or before December 31, 2010, will be eligible to continue to receive 
services and benefits in accordance with the requirements in effect 
before the termination.
    Section 1893 contains other sunset provisions relating to the 2009 
Amendments. DOL does not believe this section needs to be addressed in 
these operating instructions but will issue additional instructions if 
actions relating to these provisions were to become necessary.
    The following operating instructions explain how the 2009 
Amendments changed the 2002 Act, and provide guidance on the operation 
of the new TAA program.

B. Group Eligibility Requirements

B.1. Primary Worker Certification Criteria
    Statutory Change: Section 1801 of the 2009 Amendments amends 
Section 222(a) of the 2002 Act to read:

    (a) IN GENERAL. A group of workers shall be certified by the 
Secretary as eligible to apply for adjustment assistance under this 
chapter pursuant to a petition filed under section 221 if the 
Secretary determines that--
    (1) A significant number or proportion of the workers in such 
workers' firm have become totally or partially separated, or are 
threatened to become totally or partially separated; and
    (2)(A)(i) The sales or production, or both, of such firm have 
decreased absolutely;
    (ii)(I) Imports of articles or services like or directly 
competitive with articles produced or services supplied by such firm 
have increased;
    (II) Imports of articles like or directly competitive with 
articles--
    (aa) Into which one or more component parts produced by such 
firm are directly incorporated, or
    (bb) Which are produced directly using services supplied by such 
firm, have increased; or
    (III) Imports of articles directly incorporating one or more 
component parts produced outside the United States that are like or 
directly competitive with imports of articles incorporating one or 
more component parts produced by such firm have increased; and
    (iii) The increase in imports described in clause (ii) 
contributed importantly to such workers' separation or threat of 
separation and to the decline in the sales or production of such 
firm; or
    (B)(i)(I) There has been a shift by such workers' firm to a 
foreign country in the production of articles or the supply of 
services like or directly competitive with articles which are 
produced or services which are supplied by such firm; or
    (II) Such workers' firm has acquired from a foreign country 
articles or services that are like or directly competitive with 
articles which are produced or services which are supplied by such 
firm; and
    (ii) The shift described in clause (i)(I) or the acquisition of 
articles or services described in clause (i)(II) contributed 
importantly to such workers' separation or threat of separation.

    Administration: As explained in greater detail below, the 2009 
Amendments substantially expand program coverage by expanding the 
groups of worker that the Department must certify. The 2009 Amendments 
expand the coverage of workers for firms that produce articles. Under 
the 2002 Act, the Department could not certify workers for firms that 
produce a component part for a domestic article, where imports of 
articles like or directly competitive with that domestic article caused 
the separations of workers producing that component part. The 2009 Act 
now provides, in these circumstances, for certification of the workers 
making the component part. It also provides for certification where 
separations are caused by increased imports of articles directly 
incorporating one or more component parts produced outside the United 
States are like or directly competitive with imports of articles 
incorporating one or more component parts produced by the workers' 
firm.
    Significantly, the 2009 Amendments amend Section 222(a) of the 2002 
Act to expand coverage to workers for firms that supply services on the 
same terms as workers for firms that produce articles. In addition, the 
2002 Act covered workers only where production was shifted to certain 
foreign countries, unless there ``has been or is likely to be an 
increase in imports like or directly competitive with articles produced 
by'' the workers' firm. The 2009 Act covers workers where there was a 
shift in production or the supply of services to any foreign country, 
regardless of whether there is either an actual or likely increase in 
imports.
    The 2009 Act also codifies current practice of covering workers in 
a firm that acquires articles from a foreign country that are like or 
directly competitive with articles that are produced by those workers' 
firm. Similarly, the 2009 Act extends this practice to cover workers in 
a firm that acquires services from a foreign country that are like or 
directly competitive with services that are supplied by those workers' 
firm.
    In order for the Department to issue a certification, the petition 
must satisfy these three criteria:
    1. A significant number or proportion of the workers in the 
workers' firm, must have become totally or partially separated or be 
threatened with total or partial separation.
    The first criterion has not changed from the first worker group 
eligibility criterion applied to the TAA program since its inception. 
However, the 2009 Amendments amend the definition of a ``firm'' to 
include an ``appropriate subdivision,'' since those Amendments delete 
the latter term from the certification criteria. Accordingly, the term 
``firm,'' as used in these operating instructions, includes the 
``appropriate subdivision.''
    2. The second criterion is satisfied if either (2)(A)(i) or 
(2)(B)(i) is satisfied:
    (i) Sales or production, or both, at the workers' firm must have 
decreased absolutely, and
    (ii)(a) Imports of articles or services like or directly 
competitive with articles or services produced or supplied by the 
workers' firm have increased, or
    (b) Imports of articles like or directly competitive with articles 
into which the component part produced by the workers' firm was 
directly incorporated have increased; or
    (c) Imports of articles like or directly competitive with articles 
which are produced directly using the services supplied by the workers' 
firm have increased; or
    (d) Imports of articles directly incorporating component parts not 
produced in the U.S. that are like or directly competitive with the 
article into which the component part produced by the workers' firm was 
directly incorporated have increased.
    The first part of this requirement has not changed from the worker 
group

[[Page 50878]]

eligibility criterion applied to the TAA program since its inception.
    The second part of this requirement significantly expands the TAA 
program's coverage to include certification based on increased imports 
of services as well as increased imports of articles. It also expands 
coverage based on increased imports to include imports of articles that 
either incorporate component articles produced by the workers' firm or 
are produced directly using services supplied by the workers' firm. In 
addition, clause (ii) expands coverage by allowing certification in 
situations where there has been an increase in imports from articles 
incorporating component parts produced in the United States to articles 
incorporating component parts produced outside the United States.
    (B)(i)(I) There has been a shift by the workers' firm to a foreign 
country in the production of articles or supply of services like or 
directly competitive with those produced/supplied by the workers' firm; 
or
    (ii) There has been an acquisition from a foreign country by the 
workers' firm of articles/services that are like or directly 
competitive with those produced/supplied by the workers' firm.
    The first part of this requirement now includes workers for firms 
that supply services, thus significantly expanding coverage to include 
shifts in the supply of services by the workers' firm. It also now 
includes shifts of the production of articles or the supply of services 
to any foreign country by the workers' firm. The second part of this 
requirement (subclause ii) is new and provides for worker group 
eligibility based on foreign contracting by the workers' firm. 
Subclause (ii) is met if the workers' firm has acquired from a foreign 
source articles or services like or directly competitive with those 
produced/supplied by the workers' firm.
    3. The increase in imports or shift/acquisition must have 
contributed importantly to the workers' separation or threat of 
separation.
    The legislation codifies the Department's practice of interpreting 
the 2002 Act to require a causal nexus between the shift of production 
to a foreign country and the workers' separations. Previously, the 
contributed importantly criterion was explicit only in increased 
imports cases and was implicit in shift cases. The 2009 Amendments now 
make the requirement explicit for cases involving a shift in production 
or a shift in acquisition of a service.
B.2. Public Agency Worker Certification Criteria
    Statutory Change: Section 1801 of the 2009 Amendments adds a new 
provision at subsection (b) of Section 222 of the 2009 Act. Section 
222(b) now reads:

    (b) ADVERSELY AFFECTED WORKERS IN PUBLIC AGENCIES.--A group of 
workers in a public agency shall be certified by the Secretary as 
eligible to apply for adjustment assistance under this chapter 
pursuant to a petition filed under section 221 if the Secretary 
determines that--
    (1) A significant number or proportion of the workers in the 
public agency have become totally or partially separated, or are 
threatened to become totally or partially separated;
    (2) The public agency has acquired from a foreign country 
services like or directly competitive with services which are 
supplied by such agency; and
    (3) The acquisition of services described in paragraph (2) 
contributed importantly to such workers' separation or threat of 
separation.

    Administration: Workers of a public agency that has acquired from a 
foreign source services like or directly competitive with those 
supplied by the agency may now be certified as eligible to apply for 
TAA. Section 247(7) of the 2009 Act defines ``public agency'' as a 
``department or agency of a State or local government or of the Federal 
Government, or a subdivision thereof.''
    In order for a ``public agency worker'' certification to be issued, 
the petition must satisfy these three criteria:
    1. A significant number or proportion of the workers in the public 
agency have become totally or partially separated or be threatened with 
total or partial separation.
    2. The public agency has acquired from a foreign country services 
that are like or directly competitive with the services supplied by the 
public agency.
    3. The acquisition of services described in criterion 2 contributed 
importantly to the workers' separation or threat of separation.
    The new certification criteria treat similarly workers in firms in 
the private sector that perform services and workers in the public 
sector. The first criterion has been used for the certification of 
workers in firms that produce articles since the inception of the TAA 
program. The second criterion mirrors a certification criterion for 
workers in firms in the private sector. The third criterion similarly 
follows the certification criterion for workers in the private sector.
B.3. Secondarily-Affected Worker Certification Criteria
    Statutory Change: Section 1801 of the 2009 Amendments renumbers 
subsection (b) of Section 222 of the 2002 Act as subsection (c) and 
amends new Section 222(c) to read:

    (c) ADVERSELY AFFECTED SECONDARY WORKERS.--A group of workers 
shall be certified by the Secretary as eligible to apply for trade 
adjustment assistance benefits under this chapter pursuant to a 
petition filed under section 221 if the Secretary determines that--
    (1) A significant number or proportion of the workers in the 
workers' firm or an appropriate subdivision of the firm have become 
totally or partially separated, or are threatened to become totally 
or partially separated;
    (2) The workers' firm is a supplier or downstream producer to a 
firm that employed a group of workers who received a certification 
of eligibility under subsection (a), and such supply or production 
is related to the article or service that was the basis for such 
certification (as defined in subsection (d) (3)and (4)); and
    (3) Either
    (A) The workers firm is a supplier and the component parts it 
supplied to the firm described in paragraph (2) accounted for at 
least 20 percent of the production or sales of the workers' firm; or
    (B) A loss of business by the workers' firm with the firm 
described in paragraph (2) contributed importantly to the workers' 
separation or threat of separation determined under paragraph (I). 
Section 1801 of the 2009 Amendments amends Section 222 of the Act so 
that Section 222(d)(3)-(4) now reads:
    (3) DOWNSTREAM PRODUCER.--
    (A) IN GENERAL.--The term `downstream producer' means a firm 
that performs additional, value-added production processes or 
services directly for another firm for articles or services with 
respect to which a group of workers in such other firm has been 
certified under subsection (a).
    (B) VALUE-ADDED PRODUCTION PROCESSES OR SERVICES.--For purposes 
of subparagraph (A), value-added production processes or services 
include final assembly, finishing, testing, packaging, or 
maintenance or transportation services.
    (4) SUPPLIER--The term ``supplier'' means a firm that produces 
and supplies directly to another firm component parts for articles, 
or services, used in the production of articles or in the supply of 
services, as the case may be, that were the basis for a 
certification of eligibility under subsection (a) of a group of 
workers employed by such other firm.

    Administration: The 2002 Act covers workers of a firm that supplies 
component parts (a ``supplier'') a primary firm (a firm that employs a 
worker group certified as eligible to apply for TAA) and workers of a 
firm that provides additional, value-added production processes (a 
``downstream producer'') for a primary firm.
    The 2009 Act now covers suppliers and downstream producers where 
the

[[Page 50879]]

certification of workers for the primary firm was based upon the firm's 
supply of services. Further, workers for suppliers and downstream 
producers may now be certified on the basis of the services they supply 
to, or the additional, value-added services they provide for, the 
primary firm. However, the requirement under the 2002 Act that the 
supplier must directly supply the primary firm has not changed. The 
component parts from the supplier must be used in the production of 
articles or in the supply of services that were the basis for the 
certification of a group of workers in the primary firm. Further, the 
component parts or services that the supplier supplied to the primary 
firm must either account for at least 20 percent of the production or 
sales of the supplier, or the loss of business with the primary firm by 
the upstream firm must have contributed importantly to the upstream 
workers' separations or threat of separations.
    The ``direct'' requirement under the 2002 Act for downstream 
producers also remains unchanged: The downstream producer must perform 
additional, value-added production processes or services ``directly'' 
for a primary firm for articles or services with respect to which the 
group of workers in the primary firm was certified. However, the 2009 
Amendments have eliminated the requirement that downstream workers may 
only be certified as secondarily affected if the workers of the primary 
firm are certified based on increased imports from Canada or Mexico or 
a shift of production to Canada or Mexico.
    In order for a certification to be issued, the petition must 
satisfy these three criteria:
    1. A significant number or proportion of the workers in the 
workers' firm must have become totally or partially separated or be 
threatened with total or partial separation.
    2. The workers' firm (or subdivision) is a supplier or downstream 
producer to a primary firm and such supply or production is related to 
the article or service that was the basis for the primary firm's 
workers' certification.
    3. Either A or B below is satisfied:
    (A) The workers' firm is a supplier and the component parts it 
supplied to the primary firm (or subdivision) accounted for at least 20 
percent of the production or sales of the workers' firm, or
    (B) A loss of business by the workers' firm with the primary firm 
(or subdivision) contributed importantly to the workers' separation or 
threat of separation.''
    The new certification criteria permit a group of workers in a 
downstream producer to be eligible for TAA if the primary firm's 
certification is linked to trade with any country, not just Canada or 
Mexico. The first criterion has not changed from the worker group 
eligibility criteria applied to the TAA program since its inception. 
The second criterion reflects the elimination of the requirement in the 
2002 Act that the certification of eligibility of the downstream 
producer's customer must be based on increased imports or a shift in 
production to Canada or Mexico. The third criterion is similar to the 
language in the 2002 Act, but also allows for secondary worker coverage 
based on certifications of workers in service sector firms. In all 
cases, there must have been a loss of sales to the certified firm.
B.4. Verification of Information
    Statutory Change: Section 1801(b) of the 2009 Amendments adds a new 
subsection (e) to Section 222 of the 2009 Act, as follows:

    (e)(3) VERIFICATION OF INFORMATION.--
    (A) CERTIFICATION.-- The Secretary shall require a firm or 
customer to certify--
    (i) All information obtained under paragraph (1) from the firm 
or the customer (as the case may be) through questionnaires; and
    (ii) All other information obtained under paragraph (1) from the 
firm or the customer (as the case may be) on which the Secretary 
relies in certifying a group of workers under section 223, unless 
the Secretary has a reasonable basis for determining that such 
information is accurate and complete without being certified.
    (B) USE OF SUBPOENAS.--The Secretary shall require a workers' 
firm or a customer of the workers' firm to provide information 
requested by the Secretary under paragraph (1) by subpoena pursuant 
to section 249 if the firm or customer (as the case may be) fails to 
provide the information within 20 days of the Secretary's request, 
unless the firm or customer (as the case may be) demonstrates to the 
satisfaction of the Secretary that the firm or customer (as the case 
may be) will provide the information within a reasonable period of 
time.
    (C) PROTECTION OF CONFIDENTIAL INFORMATION.--The Secretary may 
not release information obtained under paragraph (1) that the 
Secretary considers to be confidential business information unless 
the firm or customer (as the case may be) submitting the 
confidential business information had notice at the time of 
submission, that the information would be released by the Secretary, 
or the firm or customer (as the case may be) subsequently consents 
to the release if the information. Nothing in this paragraph shall 
be construed to prohibit the Secretary from providing such 
confidential business information to a court in camera or to another 
party under a protective order issued by a court.

    Administration: The 2009 Amendments do not change the Department's 
obligation to make a determination on the petitioning workers' 
eligibility to apply for TAA based on substantive evidence, its 
authority to subpoena information necessary to make a determination on 
a petition, or its obligation to protect confidential information.
    The 2009 Act requires a firm or customer to verify the information 
it provides to the Department during the investigation of a TAA 
petition. Under the new program, the Department will require the firm 
or customer providing information through questionnaires or in other 
formats to certify that the information is accurate and complete, 
unless the Department has a reasonable basis for determining that such 
certification is not required. The various forms and communications 
used by the Department in collecting relevant information may include 
such an affirmation requirement.
    The 2009 Act codifies the Department's practice of issuing 
subpoenas when the Department is unable, through other means, to obtain 
information necessary for making a determination. Under current 
practice, the issuance of the subpoena does not follow any established 
timeframe. Under the 2009 Act, the Department is required to issue a 
subpoena if the firm or customer fails to provide the information 
within twenty (20) days of the Department's request, unless the firm or 
customer has demonstrated to the Department's satisfaction that the 
information sought will be provided within a reasonable period of time.
    The 20 day period begins once the Department issues an information 
request, not at the 20th day of the investigation. Thus, for example, 
if a petition is filed on June 5 and if a Confidential Data Request is 
issued on June 11, 2009, and the firm fails to provide the information, 
the Department may issue a subpoena on July 1, 2009.
    Section 222(e)(3)(C) of the 2009 Act contains slightly different 
confidentiality protections on confidential information than those 
applied under the 2002 Act. The 2009 Act expressly prohibits DOL from 
releasing information it gathers in the course of the investigation of 
a petition where DOL considers that information to be ``confidential 
business information.'' DOL currently defines that term in 29 CFR 
90.33.
    The 2009 Act provides two exceptions to this confidentiality 
requirement, the

[[Page 50880]]

first occurs where ``the firm or customer * * * submitting the 
confidential business information had notice, at the time of 
submission, that the information would be released by'' DOL. If DOL 
determines that a firm or customer submitted any information in 
confidence that is not entitled to confidentiality, then DOL, 
consistent with past practice, will notify the firm or customer of this 
finding and permit it to withdraw the information.
    The 2009 Act's second exception to confidentiality is the 
permission it affords DOL to provide ``confidential business 
information to a court in camera or to another party under a protective 
order issued by a court.'' This codifies past practice where DOL 
submits confidential business information under seal to the U.S. Court 
of International Trade on appeal of DOL's denial of certification of a 
petition. It also codifies DOL's practice of releasing, under a 
protective order issued by a court, confidential business information 
to plaintiffs' attorneys in these proceedings.
    In addition to the 2009 Act exceptions, DOL will release 
confidential business information with the permission of the entity 
submitting it, which is consistent with the intent of the 2009 
Amendments. DOL is committed to protecting business confidential 
information to the full extent of the law.
B.5. Firms Identified by the International Trade Commission
    Statutory Change: Section 1802 of the 2009 Amendments amends 
Section 222 of the 2002 Act by adding a new subsection (f):

    (f) FIRMS INDENTIFIED BY THE INTERNATIONAL TRADE COMMISSION.--
Notwithstanding any other provision of this chapter, a group of 
workers covered by a petition filed under section 221 shall be 
certified under subsection (a) as eligible to apply for adjustment 
assistance under this chapter if--
    (1) The workers' firm is publicly identified by name by the 
International Trade Commission as a member of a domestic industry in 
an investigation resulting in--
    (A) An affirmative determination of serious injury or threat 
thereof under section 202(b)(1);
    (B) An affirmative determination of market disruption or threat 
thereof under section 421(b)(1); or
    (C) An affirmative final determination of material injury or 
threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the 
Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
    (2) The petition is filed during the 1-year period beginning on 
the date on which--
    (A) A summary of the report submitted to the President by the 
International Trade Commission under section 202(f)(1) with respect 
to the affirmative determination described in paragraph (1)(A) is 
published in the Federal Register under section 202(f)(3); or
    (B) Notice of an affirmative determination described in 
subparagraph (B) or (C) of paragraph (1) is published in the Federal 
Register; and
    (3) The workers have become totally or partially separated from 
the workers' firm within--
    (A) The 1-year period described in paragraph (2); or
    (B) Notwithstanding section 223(b), the 1-year period preceding 
the 1-year period described in paragraph (2).

    Administration: The 2009 Act provides, for the first time, for 
certification of a petition without a Departmental investigation upon 
certain findings by the International Trade Commission (ITC).
    In order for a certification to be issued, the petition must 
satisfy these three criteria:
    1. The workers' firm must be publicly identified by name by the ITC 
as a member of a domestic industry in an investigation resulting in a 
finding of injury or market disruption under section 202(b)(1), 
421(b)(1), 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930.
    2. The petition is filed within one year after the date on which a 
summary of the ITC's report to the President, or the ITC's affirmative 
finding, is published in the Federal Register.
    3. The workers of the firm identified in criterion 1 were totally 
or partially separated no more than one year before the publication 
date of the Federal Register notice described in criterion 2 and no 
later than one year after that date.
    Should the petition be filed more than one year after the date of 
the publication of the ITC's Federal Register notice, the Department 
will investigate whether the petition meets the other certification 
criteria. Further, although section 223(b) provides that a 
certification will not cover workers separated more than one year 
before the date of the petition on which that certification was 
granted, section 222(f)(3)(B) provides that a certification based upon 
an ITC finding covers workers separated up to a year before the date of 
the publication of the ITC's Federal Register notice.

C. Trade Readjustment Allowances (TRA)

C.1. TRA Eligibility
    Statutory Change: Sections 1801, 1821 and 1858 of the 2009 
Amendments amend Section 231(a)(1)-(4) of the 2002 Act to read:

    (a) Payment of a trade readjustment allowance shall be made to 
an adversely affected worker covered by a certification under 
subchapter A who files an application for such allowance for any 
week of unemployment which begins on or after the date of such 
certification, if the following conditions are met:
    (1) Such worker's total or partial separation before the 
worker's application under this chapter occurred--
    (A) On or after the date, as specified in the certification 
under which the worker is covered, on which total or partial 
separation began or threatened to begin in the adversely affected 
employment,
    (B) Before the expiration of the 2-year period beginning on the 
date on which the determination under section 223 was made, and
    (C) Before the termination date (if any) determined pursuant to 
section 223(d).
    (2) Such worker had, in the 52-week period ending with the week 
in which such total or partial separation occurred, at least 26 
weeks of employment at wages of $30 or more a week in adversely 
affected employment with a single firm, or, if data with respect to 
weeks of employment with a firm are not available, equivalent 
amounts of employment computed under regulations prescribed by the 
Secretary. For the purpose of this paragraph, any week in which such 
worker--
    (A) Is on the employer-authorized leave for purposes of 
vacation, sickness, injury, maternity, or inactive duty or active 
duty military service for training,
    (B) Does not work because of a disability that is compensable 
under a workmen's compensation law or plan of a State or the United 
States,
    (C) Had his employment interrupted in order to serve as a full-
time representative of a labor organization in such firm, or
    (D) Is on call-up for purposes of active duty in a reserve 
status in the Armed Forces of the United States, provided such 
active duty is ``Federal service'' as defined in section 8521(a)(1) 
of title 5, United States Code shall be treated as a week of 
employment at wages of $30 or more, but not more than 7 weeks, in 
case of weeks described in subparagraph (A) or (C), or both (and not 
more than 26 weeks, in the case of weeks described in subparagraph 
(B) or (D)), may be treated as weeks of employment under this 
sentence.
    (3) Such worker--
    (A) Was entitled to (or would be entitled to if the worker 
applied therefore) unemployment insurance for a week within the 
benefit period (i) in which such total or partial separation took 
place, or (ii) which began (or would have begun) by reason of the 
filing of a claim for unemployment insurance by such worker after 
such total or partial separation;
    (B) Has exhausted all rights to any unemployment insurance 
except additional compensation that is funded by a State and is not 
reimbursed from any Federal finds, to which the worker was entitled 
(or would be entitled if he applied therefore); and
    (C) Does not have an unexpired waiting period applicable to the 
worker for any such unemployment insurance.
    (4) Such worker, with respect to such week of unemployment, 
would not be disqualified for extended compensation payable under

[[Page 50881]]

the Federal-State Extended Unemployment Compensation Act of 1970 by 
reason of the work acceptance and job search requirements in section 
202(a)(3) of such Act.

    Administration: Section 1821 of the 2009 Amendments changes Section 
231(a) of the 2002 Act by eliminating the 60-day waiting period after a 
petition is filed to receive trade readjustment allowances (TRA) and 
allows receipt of those allowances for any week of unemployment that 
begins on or after the date of certification. This amendment allows 
workers to begin receiving TRA benefits immediately upon certification 
of a petition if UI entitlement (as defined in section 247(12)) has 
been exhausted. Unlike under the 2002 Act, this means that no payments 
may be made retroactively for weeks of unemployment that occur before 
the certification was issued, but after the date of the petition. 
Subparagraph C.5 of these Operating Instructions discusses two new 
provisions that address specific issues that may arise because of this 
amendment in determining the first payable week, such as the 
certification being delayed because of appeals or other situations 
where there is justifiable cause to extend the eligibility period for 
basic TRA.
    Section 231(a)(1) through Section 231(a)(4), establishing 
requirements for TRA eligibility, have not otherwise been substantively 
amended. They continue to require for eligibility that the worker be 
adversely affected; that the worker's total or partial separation 
occurred during the period covered by the certification; that the 
worker (with exceptions) had 26 weeks of employment at $30 or more per 
week in the 52-week period ending with the total or partial separation 
from adversely affected employment; that the worker was entitled to and 
exhausted all UI entitlement, except additional compensation that is 
funded by a State and is not reimbursed from any Federal funds; and 
that the worker would not be disqualified for extended compensation 
payable under the Federal-State Extended Compensation Act of 1970 by 
reason of its work search and job search requirements. Subparagraph 
C.4.1 of these Operating Instructions discusses the sole exception to 
the requirement that TRA eligibility depends upon the exhaustion all UI 
other than a certain type of additional compensation).
C.2. Enrollment in Training
    Statutory Change: Section 1821 of the 2009 Amendments amends 
Section 231(a)(5)(A) of the 2002 Act to read:

    (5) Such worker--
    (A)(i) Is enrolled in a training program approved by the 
Secretary under section 236(a), and
    (ii) The enrollment required under clause (i) occurs no later 
than the latest of--
    (I) In the case of a worker whose most recent total separation 
from adversely affected employment that meets the requirements of 
paragraphs (1) and (2) occurs after the date on which the Secretary 
issues a certification covering the worker, the last day of the 26th 
week after such total separation,
    (II) In the case of a worker whose most recent total separation 
from adversely affected employment that meets the requirements of 
paragraphs (1) and (2) occurs before the date on which the Secretary 
issues a certification covering the worker, the last day of the 26th 
week after the date of such certification,
    (III) 45 days after the date specified in subclause (I) or (II), 
as the case may be, if the Secretary determines there are 
extenuating circumstances that justify an extension in the 
enrollment period,
    (IV) In the case of a worker who fails to enroll by the date 
required by subclause (I), (II), or (III), as the case may be, due 
to the failure to provide the worker with timely information 
regarding the date specified in such subclause, the last day of a 
period determined by the Secretary, or
    (V) The last day of a period determined by the Secretary to be 
approved for enrollment after the termination of a waiver issued 
pursuant to subsection (c),
    (B) Has, after the date on which the worker became totally 
separated, or partially separated, from the adversely affected 
employment, completed a training program approved by the Secretary 
under section 236(a), or
    (C) Has received a written statement certified under subsection 
(c)(1) after the date described in subparagraph (13).

    Administration: The 2009 Amendments leave intact the basic 
structure of Section 231(a)(5). As before, Section 231(a)(5)(A) 
requires, as a condition for receiving TRA, that the worker be enrolled 
in training. As before, Section 231(a)(5)(C) allows a worker to receive 
a waiver of the training requirement in order to receive basic TRA. 
Section 231(a)(5)(A)(ii) sets deadlines by which the enrollment in 
training must occur. These deadlines apply for eligibility for any TRA 
payment--basic TRA, additional TRA, and additional weeks paid to 
adversely affected workers who undertake remedial or prerequisite 
education.
    The 2009 Amendments lengthen the enrollment deadlines from 8 weeks 
after certification or 16 weeks after separation to the later of 26 
weeks from the separation or certification date. This deadline 
extension allows a worker to actively engage in a longer job search 
before making a decision about training, and to make full use of the 
case management services provided under the 2009 Act to choose an 
appropriate training program. Additionally, in cases where large worker 
groups are dislocated all at once, it allows the CSA more time for 
counseling, assessment and other case management services which were 
difficult to perform in advance of the prior, shorter enrollment 
deadlines.
    The 2009 Act continues to allow for an extension of the enrollment 
deadlines for 45 days where the CSA determines that there are 
extenuating circumstances justifying the extension. ``Extenuating 
circumstances'' continue to be circumstances beyond the control of the 
worker. This includes situations where training programs are abruptly 
cancelled as well as where the worker suffers injury or illness 
preventing participation in training.
    The 2009 Act includes a new Section 231(a)(5)(A)(ii)(IV), providing 
an exception to the enrollment deadlines where the worker did not 
enroll by the deadlines because the CSA failed to provide the worker 
with timely information regarding the training enrollment deadlines. In 
that event, the worker must be enrolled by the last day of a period to 
be determined by the Secretary. Accordingly, the Secretary has 
determined that the worker must be enrolled in training or receive a 
waiver by the Monday of the first week occurring 60 days after the date 
on which the worker was properly notified of both his/her eligibility 
to apply for TAA and the requirement to enroll in training absent a 
waiver of the training requirement. The CSA must document its efforts 
to notify workers of the enrollment deadlines.
    A worker must be enrolled in training as a condition of basic TRA 
when the enrollment in training deadline is reached. Further, a CSA may 
not waive the enrollment in training requirement after the deadlines 
have passed.
    The 2009 Act continues to have an additional deadline for training 
enrollment that applies to workers who were granted a waiver of the 
training requirement, now in Section 231(a)(5)(A)(ii)(V). Workers who 
have received a training waiver must be enrolled in training prior to 
the last day of a period set by the Secretary after the termination of 
a waiver in order to maintain future eligibility for TRA. In its 
initial implementation of the 2002 Amendments, the Department set this 
time period to be the first Monday after the termination of the waiver. 
Subsequent experience operating the program has indicated that 
additional time is needed in some cases. Accordingly, the Secretary has 
determined that the worker must be

[[Page 50882]]

enrolled in training by the Monday of the first week occurring 30 days 
after the date on which the waiver terminated, whether by revocation or 
expiration.
    ``Enrolled in training'' continues to mean that the worker's 
application for training has been approved by the CSA and that the 
training institution has furnished written notice to the CSA that the 
worker has been accepted into the approved program which is to begin 
within 30 days of such approval.
C.3. Waiver of Training Requirement
    Statutory Change: Section 1821 of the 2009 Amendments amends 
Section 231(c) of the 2002 Act to read:

    (c) WAIVERS OF TRAINING REQUIREMENTS.--
    (1) ISSUANCE OF WAIVERS--The Secretary may issue a written 
statement to an adversely affected worker waiving the requirement to 
be enrolled in training described in subsection (a)(5)(A) if the 
Secretary determines that it is not feasible or appropriate for the 
worker, because of 1 or more of the following reasons:
    (A) RECALL--The worker has been notified that the worker will be 
recalled by the firm from which the separation occurred.
    (B) MARKETABLE SKILLS--
    (i) IN GENERAL.--The worker possesses marketable skills for 
suitable employment (as determined pursuant to an assessment of the 
worker, which may include the profiling system under section 303(j) 
of the Social Security Act (42 U.S.C. 503(j)), carried out in 
accordance with guidelines issued by the Secretary) and there is a 
reasonable expectation of employment at equivalent wages in the 
foreseeable future.
    (ii) MARKETABLE SKILLS DEFINED.--For purposes of clause (i), the 
term `marketable skills' may include the possession of a 
postgraduate degree from an institution of higher education (as 
defined in section 102 of the Higher Education Act of 1965 (20 
U.S.C. 1002)) or an equivalent institution, or the possession of an 
equivalent postgraduate certification in a specialized field.
    (C) RETIREMENT.--The worker is within 2 years of meeting all 
requirements for entitlement to either--
    (i) Old-age insurance benefits under title H of the Social 
Security Act (42 U.S.C. 401 et seq.) (except for application 
therefor); or
    (ii) A private pension sponsored by an employer or labor 
organization.
    (D) HEALTH--The worker is unable to participate in training due 
to the health of the worker, except that a waiver under this 
subparagraph shall not be construed to exempt a worker from 
requirements relating to the availability for work, active search 
for work, or refusal to accept work under Federal or State 
unemployment compensation laws.
    (E) ENROLLMENT UNAVAILABLE.--The first available enrollment date 
for the approved training of the worker is within 60 days after the 
date of the determination made under this paragraph, or, if later, 
there are extenuating circumstances for the delay in enrollment, as 
determined pursuant to guidelines issued by the Secretary.
    (F) TRAINING NOT AVAILABLE--Training approved by the Secretary 
is not reasonably available to the worker from either governmental 
agencies or private sources (which may include area vocational 
education schools, as defined in section 3 of the Carl D. Perkins 
Vocational and Technical Education Act of 1 998 (20 U.S.C. 2302), 
and employers), no training that is suitable for the worker is 
available at a reasonable cost, or no training finds are available.
    (2) DURATION OF WAIVERS.--
    (A) IN GENERAL--Except as provided in paragraph (3)(B), a waiver 
issued under paragraph (1) shall be effective for not more than 6 
months after the date on which the waiver is issued, unless the 
Secretary determines otherwise.
    (B) REVOCATION.----The Secretary shall revoke a waiver issued 
under paragraph (I) if the Secretary determines that the basis of a 
waiver is no longer applicable to the worker and shall notify,' the 
worker in writing of the revocation.
    (3) AGREEMENTS UNDER SECTION 239.--
    (A) ISSUANCE BY COOPERATING STATES.-- An agree