Trade Adjustment Assistance for Workers, 60150-60275 [2019-20788]
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60150
Federal Register / Vol. 84, No. 216 / Thursday, November 7, 2019 / Proposed Rules
DEPARTMENT OF LABOR
29 CFR Part 90
Employment and Training
Administration
20 CFR Parts 617 and 618
[Docket No. ETA–2019–0009]
RIN 1205–AB78
Trade Adjustment Assistance for
Workers
Employment and Training
Administration, Labor.
ACTION: Proposed rule.
AGENCY:
The Employment and
Training Administration (ETA) of the
Department of Labor (Department)
proposes to expand protection and
support for U.S. workers adversely
impacted by foreign trade by revising its
Trade Adjustment Assistance (TAA) for
Workers program (TAA Program)
regulations. The proposed rule (NPRM)
would, among other improvements,
make it easier for workers to qualify for
job search and relocation allowances,
increase those allowances in line with
statute, expand training to include more
flexibility for apprenticeships, ensure
workers have access to individualized
assessments, make it easier for groups of
workers to apply for benefits, and offer
assistance to additional categories of
workers, including by helping workers
in jobs threatened by foreign trade to
receive training and support to
transition to new employment.
DATES: Send comments on or before
December 9, 2019. Comments on the
information collection determination
described in Section V. D of the
preamble (Paperwork Reduction Act)
may be submitted (postmarked, sent, or
received) by January 6, 2020 in Docket
Number ETA–2019–0010.
ADDRESSES: You may send comments,
identified by Docket No. ETA–2019–
0009 and Regulatory Identification
Number (RIN) 1205–AB78, by any of the
following methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Instructions for
how to submit public comments
electronically on the Federal
eRulemaking Portal can be found on the
http://www.regulations.gov website
under ‘‘Help’’ > ‘‘How to use
Regulations.gov’’ > ‘‘Submit a
Comment.’’
• Mail: Heidi Casta, Deputy
Administrator, Office of Policy
Development and Research, U.S.
Department of Labor, Employment and
Training Administration, 200
SUMMARY:
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Constitution Avenue NW, Room N–
5641, Washington, DC 20210.
• Hand Delivery/Courier: Heidi Casta,
Deputy Administrator, Office of Policy
Development and Research, U.S.
Department of Labor, Employment and
Training Administration, 200
Constitution Avenue NW, Room N–
5641, Washington, DC 20210.
Instructions: All submissions received
must include the agency name and
docket number for this rulemaking or
‘‘RIN 1205–AB78.’’
Please submit your comments by only
one method. Please be advised that the
Department will post all comments
received that relate to this NPRM
without changes to http://
www.regulations.gov, including any
personal information provided. The
http://www.regulations.gov website is
the Federal e-Rulemaking Portal and all
comments posted there are available
and accessible to the public. Therefore,
the Department recommends that
commenters remove personal
information (either about themselves or
others) such as Social Security numbers,
personal addresses, telephone numbers,
and email addresses included in their
comments, as such information may
become easily available to the public via
the http://www.regulations.gov website.
It is the responsibility of the commenter
to safeguard personal information.
Also, please note that due to security
concerns, postal mail delivery in
Washington, DC may be delayed.
Therefore, the Department encourages
the public to submit comments on
http://www.regulations.gov.
Docket: For access to the docket to
read background documents or
comments received, go to http://
www.regulations.gov (search using RIN
1205–AB78 or Docket No. ETA–2019–
0009). The Department also will make
all the comments it receives available
for public inspection by appointment
during normal business hours at the
Office of Policy Development and
Research (OPDR), U.S. Department of
Labor, Employment and Training
Administration, 200 Constitution
Avenue NW, Room N–5641,
Washington, DC 20210. If you need
assistance to review the comments, the
Department will provide appropriate
aids such as readers or print magnifiers.
The Department will make copies of this
NPRM available, upon request, in large
print and electronic file. To schedule an
appointment to review the comments or
obtain the NPRM in an alternative
format or both, contact OPDR at (202)
693–3700 (this is not a toll-free
number). You may also contact this
office at the address listed above.
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Comments under the Paperwork
Reduction Act (PRA): Send a copy of
any comments that concern the
information collection (IC) aspects of
this NPRM to: Office of Information and
Regulatory Affairs, Attn: OMB Desk
Officer for DOL–ETA, Office of
Management and Budget, 725 17th
Street NW, Washington, DC 20503, Fax:
(202) 395–6881 (this is not a toll-free
number), email: OIRA_submission@
omb.eop.gov.
Comments on the information
collection determination described in
Section V. D of the preamble
(Paperwork Reduction Act) also may be
submitted (postmarked, sent, or
received) by January 6, 2020 in Docket
Number ETA–2019–0010. The
Department will consider comments on
the information collection
determination submitted in either
docket, but is providing additional time
for commenters to submit relevant
information collection comments to
Docket Number ETA–2019–0010. See
section V.D of this NPRM (‘‘Paperwork
Reduction Act’’) for particular areas of
interest.
FOR FURTHER INFORMATION CONTACT:
Heidi Casta, Deputy Administrator,
Office of Policy Development and
Research, U.S. Department of Labor,
Employment and Training
Administration, 200 Constitution
Avenue NW, Room N–5641,
Washington, DC 20210, Telephone:
(202) 693–3700 (voice) (this is not a tollfree number) or 1–800–326–2577
(Telecommunications Device for the
Deaf).
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Acronyms and Abbreviations
II. Executive Summary
III. Background
A. Introduction to the Trade Adjustment
Assistance Program
B. Statutory and Regulatory History of the
Trade Adjustment Assistance Program
C. Need for the Notice of Proposed
Rulemaking
IV. Section-by-Section Discussion of the
Proposed Changes
A. Subpart A—General
B. Subpart B—Petitions, Investigations,
and Determinations
C. Subpart C—Employment and Case
Management Services
D. Subpart D—Job Search and Relocation
Allowances
E. Subpart E—Reemployment Trade
Adjustment Assistance
F. Subpart F—Training Services
G. Subpart G—Trade Readjustment
Allowances
H. Subpart H—Administration by
Applicable State Agencies
I. Subpart I—Allocation of Funds to States
for Training and Other Activities
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V. Agency Determinations
A. Legal Authority
B. Executive Orders 12866 (Regulatory
Planning and Review), 13563 (Improving
Regulation and Regulatory Review), and
13771 (Reducing Regulation and
Controlling Regulatory Costs)
C. Regulatory Flexibility Act, Small
Business Regulatory Enforcement
Fairness Act of 1996, and Executive
Order 13272 (Proper Consideration of
Small Entities in Agency Rulemaking)
D. Paperwork Reduction Act
E. Executive Order 13132 (Federalism)
F. Unfunded Mandates Reform Act of 1995
G. Executive Order 13175 (Indian Tribal
Governments)
I. Acronyms and Abbreviations
AAIW(s) adversely affected incumbent
worker(s)
AAW(s) adversely affected worker(s)
ABE adult basic education
ATAA Alternative Trade Adjustment
Assistance
BLS Bureau of Labor Statistics
CFR Code of Federal Regulations
CSA(s) cooperating State agency(/ies)
Department Department of Labor
EB Extended Benefits
ECI Employment Cost Indices
ELA English language acquisition
E.O. Executive Order
ETA Employment and Training
Administration
ETP(s) eligible training provider
EUCA Federal-State Extended
Unemployment Compensation Act of 1970
FOIA Freedom of Information Act
FR Federal Register
FTR Federal Travel Regulation
FUTA Federal Unemployment Tax Act
FY Fiscal Year
GPA grade point average
GPRA Government Performance Results Act
of 1993
HCTC Health Coverage Tax Credit
HEA Higher Education Act of 1965, as
amended
HSE high school equivalency
IC information collection
IEP(s) individual employment plan(s)
IRS Internal Revenue Service
IT information technology
ITC International Trade Commission
JSP job search program
JTPA Job Training Partnership Act
LEP limited English proficient
local area local workforce development area
LWDB local workforce development board
MIS management information systems
NPRM Notice of Proposed Rulemaking
OECD Organisation for Economic Cooperation and Development
OJT on-the-job training
OMB Office of Management and Budget
OPDR Office of Policy Development and
Research
OPM Office of Personnel Management
OTAA Office of Trade Adjustment
Assistance
PCE Personal Consumption Expenditures
PII personally identifiable information
PIRL Participant Individual Record Layout
PRA Paperwork Reduction Act
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PRWORA Personal Responsibility and
Work Opportunity Reform Act
Pub. L. Public Law
RFA Regulatory Flexibility Act
RIN Regulatory Identification Number
RRUI Railroad Unemployment Insurance
Act
RTAA Reemployment Trade Adjustment
Assistance
Secretary Secretary of Labor
SSA Social Security Act
Stat. U.S. Statutes at Large
TAA Trade Adjustment Assistance
TAA Program
collective reference to the following three
programs: TAA for Workers Program,
ATAA, and RTAA
TAAEA Trade Adjustment Assistance
Extension Act of 2011
TAARA 2002 Trade Adjustment Assistance
Reform Act of 2002
TAARA 2015 Trade Adjustment Assistance
Reauthorization Act of 2015
TaOA Training and Other Activities
TEGL(s) Training and Employment
Guidance Letter(s)
TGAAA Trade and Globalization
Adjustment Assistance Act of 2009
The Act chapter 2 of title II of the Trade Act
of 1974, as amended
TRA Trade Readjustment Allowances
UI Unemployment Insurance
UIPL Unemployment Insurance Program
Letter
UMRA Unfunded Mandates Reform Act of
1995
U.S.C. United States Code
USCIT United States Court of International
Trade
WARN Worker Adjustment and Retraining
Notice
WBA(s) weekly benefit amount(s)
WIA Workforce Investment Act of 1998
WIOA Workforce Innovation and
Opportunity Act
II. Executive Summary
The Department proposes to
streamline and consolidate three
separate parts of the CFR that contain
TAA Program regulations (20 CFR parts
617 and 618, 29 CFR part 90) into a
single part (20 CFR part 618) with nine
subparts. In addition, the proposed
revisions would codify into regulation
elements of the most recent TAA
Program reauthorization and
amendment, the Trade Adjustment
Assistance Reauthorization Act of 2015
(Pub. L. 114–27, title IV) (TAARA 2015).
This NPRM also incorporates existing
operating instructions issued via
administrative guidance into the TAA
Program regulations, with some
refinements. Further, the proposed
revisions align the TAA Program
regulations with the Workforce
Innovation and Opportunity Act
(WIOA) (Pub. L. 113–128), the 2014
comprehensive legislation that
reauthorized the public workforce
system.
The NPRM would increase efficiency
and flexibility for States and trade-
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affected workers. Because subpart B
(Petitions, Investigations, and
Determinations) of this NPRM expressly
proposes to permit workers employed
by a leasing or staffing agency (termed
‘‘staffed workers’’) to be members of a
worker group, even if they are not
mentioned specifically within the
determination document, the
Department anticipates a substantial
reduction in the number of requests to
amend certifications. The Department
also proposes to increase flexibility in
subpart D (Job Search and Relocation
Allowances) by making it easier for
adversely affected workers (AAWs) to
qualify for a job search allowance and
ensuring that workers who qualify for
relocation allowances are finding
comparable or better paying jobs.
Subpart F (Training Services) would
expand work-based training to include
apprenticeships for all or part of a tradeaffected worker’s training program. It
also establishes a regulatory framework
to provide assistance to workers who are
currently employed but threatened with
job loss resulting from trade, thereby
enabling such workers to retrain and
seek new employment before job
separation occurs. And in subpart H
(Administration by Applicable State
Agencies), the Department would
extend flexibility by removing the
requirement that only State merit staff
can be funded through employment and
case management funding available
under the TAA Program, allowing States
more flexibility with program
operations and creating better alignment
with WIOA.
The NPRM seeks to improve service
delivery, and thereby serve more tradeaffected workers more effectively, by
including service-delivery requirements
that align with data-tested methods. The
proposed subpart A (General)
regulations better define certain
investigations-based terms to add
consistency at both the State and
Federal level and improve program
operations, including reducing burden
and workload for TAA Program
investigative reconsiderations and
appeals related to these terms. In
addition, the Department proposes to
help provide positive outcomes for each
trade-affected worker by including new
data-driven requirements for
assessments and individual
employment plans (IEPs) in subpart C
(Employment and Case Management
Services).
Lastly, the NPRM would implement
statutory provisions for Reemployment
Trade Adjustment Assistance (RTAA)
and would incorporate administrative
guidance previously issued by the
Department in subpart E since no
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regulations covering the RTAA program
exist. Proposed subpart G (Trade
Readjustment Allowances (TRA)) would
implement several statutory changes to
TRA, including establishing deadlines
to enroll in training, reducing the types
of available waivers, allowing an
election between Unemployment
Insurance (UI) and TRA, and allowing
AAWs to earn up to their weekly benefit
amount without penalty. In addition,
proposed subpart I (Allocation of Funds
to States for Training and Other
Activities) replaces the term ‘‘training’’
with ‘‘Training and Other Activities’’
(TaOA) to reflect the additional benefits
and services covered by such funding.
The NPRM would reduce costs and
legal burden from court proceedings by
providing the public and courts with the
Department’s authoritative
interpretation of the Act. Proposed
subpart B (Petitions, Investigations, and
Determinations) also would produce
other cost savings by eliminating the
two-step process for reconsiderations,
which would reduce the processing
time involved for all reconsiderations,
and by clarifying ‘‘final determinations’’
for judicial appeals, which would
reduce the number of those appeals.
Lastly, proposed subpart H
(Administration by Applicable State
Agencies) would produce cost savings
by revising the merit staff requirements
to allow States to charge time for nonmerit staff to TAA Program funds for the
provision of employment and case
management services.
The purposes of the proposed
revisions are to ensure that the TAA
Program regulations are modernized to
reflect the program’s current operation
and make needed improvements. The
proposed revisions also would provide
clarity by eliminating confusing and
overly technical language and update
the TAA Program regulations by
encouraging the use of paperless
electronic mechanisms over paper-based
methods.
The Department’s preliminary
regulatory impact analysis determines
that this NPRM is a deregulatory action
under E.O. 13771 because the cost
savings associated with the rule would
be larger than the anticipated costs of
the rule. Cost savings associated with
the rule are from revisions to the
definition of ‘‘final determination’’
related to judicial appeals and from
streamlining the reconsideration
process. The costs of the NPRM are
those associated with State staff needing
to familiarize themselves with the new
regulations, the development of IEPs for
trade-affected workers seeking training
or job search allowances, and the
implementation of two IC forms (ETA
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Forms 8561, Study of Domestic
Industry, and 9185, Application for
Reconsideration). The Department
expects the NPRM to have an average
annual cost of $6,604 and a total 10-year
cost of $46,383 (with 7-percent
discounting). The Department estimates
that the NPRM would have an annual
cost savings of $79,654 and a total 10year cost savings of $559,456 (with 7percent discounting). In addition, the
NPRM is estimated to result in annual
transfer payments (i.e., redistribution of
resources from one group to another that
do not affect total resources available to
society) of $564,257 and total 10-year
transfer payments of $3,963,105 (with 7percent discounting). The Department
estimates that the NPRM would result in
net cost savings of $626,333 discounted
at 3 percent and $513,073 discounted at
7 percent, both expressed in 2018
dollars. See section V.B, the economic
analysis, for a detailed discussion of the
Department’s preliminary regulatory
impact analysis.
services. First, a group of workers must
file a petition or have a petition filed on
their behalf with the Department to
determine worker-group eligibility.
Upon receiving a petition, the
Department initiates an investigation to
determine whether the circumstances of
the layoff meet the group-eligibility
criteria established by sec. 222 of the
Act. Second, if the Department finds the
group eligible and certifies the petition,
individual trade-affected workers in the
worker group may apply to their State
for TAA Program benefits and services.
Under agreements between the
Secretary of Labor (Secretary) and each
Governor, the States determine
individual eligibility based on the
statutory criteria and provide the TAA
Program benefits and services to tradeaffected workers with Federal funds
allocated by the Department for that
purposes. The TAA Program is a
required one-stop partner under WIOA.
One-stop centers—branded as American
Job Centers under WIOA—deliver
workforce development services to job
III. Background
seekers and businesses nationwide.
A. Introduction to the Trade Adjustment
Since 1975, the TAA Program has
Assistance Program
served over two million trade-affected
The Trade Act of 1974 (Pub. L. 93–
U.S. workers. In Fiscal Year (FY) 2017,
619), as amended (the Act) (codified at
an estimated 94,017 workers became
19 U.S.C. 2271 et seq.), title II, chapter
eligible for TAA Program benefits and
2, established TAA for Workers
services. Nearly 75 percent of tradeprogram, Alternative Trade Adjustment
affected workers obtained employment
Assistance (ATAA),1 and RTAA
within 6 months of completing the TAA
programs. These programs, collectively
Program, and over 90 percent of those
referred to as the TAA Program, assist
who found work retained their jobs 6
U.S. workers who have lost or may lose
months later.3
their jobs as a result of foreign trade (i.e.,
Trade-affected workers come from a
trade-affected workers). The TAA
variety of backgrounds and industries,
Program provides AAWs and adversely
so they enter the program with a wide
affected incumbent workers (AAIWs)
array of skills and experience. Most
with opportunities to obtain skills,
trade-affected workers who enter the
credentials, resources, and support to
program, however, face similar
help them become reemployed. TAA
challenges in obtaining reemployment.
Program benefits and services under
Trade-affected workers have no
TAARA 2015 include employment and
postsecondary degree typically, an
case management services; training; out- average age of 49, and an average of 12
of-area job search and relocation
years of experience in a specific job that
allowances; income support through
may no longer exist.3 The TAA Program
TRA; the RTAA wage supplement
is designed to serve the needs of this
benefit for AAWs aged 50 or older who
unique population.
find qualifying reemployment; and, if
An ever-changing global marketplace
available, eligibility for assistance with
drives the 21st-century economy. For
health care premium costs under the
America to compete in the global
Health Coverage Tax Credit (HCTC),2
economy, its workers need to have the
which is administered by the Internal
skills and support to take advantage of
Revenue Service (IRS).
new opportunities. The TAA Program
There are two steps for trade-affected
aims to do that by helping American
workers to obtain program benefits and
workers retrain and reenter the
workforce.
1
ATAA is largely unaddressed in this NPRM
because this NPRM codifies the TAARA 2015
Program and ATAA was replaced by RTAA. RTAA
is newly codified in this NPRM.
2 Because under TAARA 2015, the HCTC expires
by January 1, 2020, references to the HCTC
throughout this NPRM are coupled with ‘‘if
available’’ or similar phrasing.
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3 U.S. Department of Labor, Employment and
Training Administration. (2018). ‘‘Trade
Adjustment Assistance for Workers Program: Fiscal
Year 2017.’’ Retrieved from: https://
www.doleta.gov/tradeact/docs/
AnnualReport17.pdf.
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B. Statutory and Regulatory History of
the Trade Adjustment Assistance
Program
The foundation of the current TAA
Program was established by chapter 2 of
title II of the Trade Act of 1974 (Pub. L.
93–618).
Congress has since reauthorized and
amended chapter 2, and thus the TAA
Program, multiple times. The TAA
Program was changed extensively by
amendments in 1981 (Pub. L. 97–35,
title XXV), 1984 (Pub. L. 98–369, secs.
2671 and 2672), 1986 (Pub. L. 99–272,
title XIII, subtitle A, part 1), 1988 (Pub.
L. 100–418, title I, subtitle D, part 3),
and 1993 (Pub. L. 103–182, sec. 506). In
1987, the Department issued a final rule
significantly revising the certification
process in 29 CFR part 90 (52 FR 23403,
June 19, 1987) and in 1994, the
Department issued a final rule
significantly revising the TAA Program
regulations in 20 CFR part 617 to
implement the 1988 amendments (59 FR
906, Jan. 6, 1994).
In 2002, Congress reauthorized and
amended the TAA Program in the Trade
Adjustment Assistance Reform Act of
2002 (TAARA 2002) (Pub. L. 107–210).
TAARA 2002 expanded the scope of the
TAA Program, increased its benefit
amounts, repealed the North American
Free Trade Agreement Transitional
Adjustment Assistance (or NAFTA–
TAA) program, established the HCTC to
subsidize private health-insurance costs
for qualified workers, and created
ATAA as a demonstration program.
The Department published two
NPRMs in 2006, to implement the
TAARA 2002 amendments (71 FR
50760, Aug. 25, 2006 and 71 FR 61618,
Oct. 19, 2006). However, Congress in
2007 (Pub. L. 110–5), 2008 (Pub. L. 110–
161), and 2009 (Pub. L. 111–8)
prohibited the Department from further
action until Congress reauthorized the
TAA Program. The next reauthorization,
the Trade and Globalization Adjustment
Assistance Act of 2009 (TGAAA) (Pub.
L. 111–5, div. B, title I, subtitle I), made
such substantial amendments to the
TAA Program that it rendered the two
2006 NPRMs obsolete. The Department
withdrew the NPRMs in 2009 (74 FR
27262, June 9, 2009).
TGAAA, part of the American
Recovery and Reinvestment Act (Pub. L.
111–5), reauthorized and substantially
amended the TAA Program. It expanded
the program’s benefits and the types of
trade-affected workers the Department
could certify. Section 1893 of TGAAA
provided that most of the TGAAA
amendments would expire on December
31, 2010. Congress later extended that
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expiration date by 6 weeks (Pub. L. 111–
344).
The Department revised the TAA
Program regulations in 2010, by adding
a new 20 CFR part 618 (75 FR 16988,
Apr. 2, 2010). The revisions addressed
the allocation of TAA Program training
funds to the States. The revisions also
required for the first time by regulation
that State administration of the TAA
Program be performed by merit staff.
The Trade Adjustment Assistance
Extension Act of 2011 (TAAEA),
enacted in 2011, for the most part
restored the expanded certification
criteria and benefits and services
provided under TGAAA, but changed
some provisions.
TAARA 2015 reauthorized the TAA
Program through 2021. It primarily
followed TAAEA, the 2011 law, but
amended a few key provisions. The
amendments included capped funding
for TaOA at $450 million per fiscal year
and establishment of new performance
indicators to align with WIOA. TAARA
2015 reauthorized the RTAA and HCTC
benefit programs. TAARA 2015 also
continued to grandfather earlier
versions of the TAA Program for tradeaffected workers who had been certified
under TAARA 2002, TGAAA, and
TAAEA.
C. Need for the Notice of Proposed
Rulemaking
The TAA Program regulations were
last updated in 1994, with only minor
changes made in 2006,4 2007,5 and
2010.6 Since that time, multiple TAA
Program reauthorizations and
amendments have required various
changes to the program, which the
Department has addressed through
administrative guidance. This NPRM
proposes to codify in regulation the
most recent reauthorization and
amendment (TAARA 2015) as well as
significant elements of TAA Program
administrative guidance. The NPRM is
drafted to reflect how the TAA Program
is currently operating under TAARA
2015, with some proposed adjustments
that would improve the program. Once
finalized, the Department will rescind
redundant administrative guidance, as
appropriate, based on the final rule.
The NPRM, if finalized, would help
States and the public better understand
the proper operation of the TAA
4 71 FR 35511 (June 21, 2006) (making technical
amendments to update obsolete, nonsubstantive, or
nomenclature references).
5 72 FR 37097 (July 9, 2007) (making minor
changes to 29 CFR part 90).
6 75 FR 16988 (Apr. 2, 2010) (adding 20 CFR part
618 to include only subparts H and I relating to
merit staffing of State administration and allocation
of TAA Program training funds to States).
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60153
Program. States would no longer have to
use a combination of regulations and
administrative guidance to guide the
worker-group certification process at the
Federal level and the administration of
individual benefits and services at the
State level. The NPRM would promote
transparency by setting out, in binding
regulation, the major principles by
which the TAA Program operates. In
addition, it provides the public and
courts with the Department’s
authoritative interpretation of the Act.
In addition, the NPRM proposes
clarifications that draw upon the
Department’s expertise gained from
decades of experience operating the
TAA Program. For example, the
Department’s litigation experience has
provided insight into parts of the TAA
Program regulations that need
clarification to ensure more effective,
efficient, and consistent operations of
the TAA Program throughout the United
States. In addition, since 2009, the
Department has had the benefit of realtime data on trade-affected workers
participating in the TAA Program, the
analysis of which has driven some
improvements to regulatory provisions
included in this NPRM.
The NPRM also includes changes that
would align the TAA Program
regulations with WIOA. For example,
WIOA further integrated the TAA
Program with the public workforce and
education systems by affirming the TAA
Program as a required partner in the
one-stop delivery system. The NPRM
also would remove outdated references
to the Job Training Partnership Act
(JTPA) and the Workforce Investment
Act of 1998 (WIA). The proposed TAA
Program regulations would align with
and reference the WIOA regulations
where appropriate.
IV. Section-by-Section Discussion of the
Proposed Changes
A. Subpart A—General
Proposed subpart A sets forth the
purpose and scope of the TAA Program
and defines relevant terms used
throughout the rule. Proposed subpart A
modifies and simplifies several
definitions for greater clarity, eliminates
definitions in response to statutory
changes to the Act, and adds definitions
of new terms based on statutory
changes. The definitions used in this
NPRM are intended to describe a
modernized TAA Program, which has
evolved since TAARA 2002, and ensure
the TAA Program aligns with WIOA.
Section 618.100
Purpose and Scope
Proposed § 618.100 describes the
purpose and scope of the TAA Program.
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The Department proposes updates to the
scope and purpose based on
programmatic experience to reflect more
realistically the achievable outcomes for
trade-affected workers.
Proposed § 618.100(a) establishes the
purpose of the TAA Program. Under the
existing statement of purpose at 20 CFR
617.2, the stated goal of the TAA
Program is to return trade-affected
workers to ‘‘suitable employment’’ as
quickly as possible. In this context,
suitable employment means that after
the trade-affected worker receives
services under the TAA Program, the
worker is reemployed at an equal or
higher skill level, earning at least 80
percent of their former wages. This goal
of attaining suitable employment has
not changed.
Unfortunately, there are situations in
which trade-affected workers may be
unable to obtain suitable employment.
Such difficulties in obtaining suitable
employment may occur because (1) few,
if any, jobs are available at the workers’
former wages that require the tradeaffected workers’ experience; (2) the
local labor market has few available
jobs; or (3) the trade-affected workers
have substantial barriers to
reemployment. These factors can
significantly limit trade-affected
workers’ employment opportunities. Yet
offering appropriate training, especially
in a stagnant labor market, may
significantly increase a trade-affected
worker’s prospects of obtaining suitable
employment.
The Department is committed to
ensuring trade-affected workers have
access to training that will allow them
the best possible outcomes and ability to
compete for work at the highest skill
levels and highest wages achievable,
given the trade-affected workers’
preexisting skill levels, abilities, and
education, and the current and
projected labor market, and to do so as
quickly as possible. This must be
accomplished with prudence, careful
management of limited TAA Program
funds, and a practical understanding of
labor market realities. States must
ensure that they administer their
programs equitably and reasonably.
Proposed § 618.100(b) expands the
scope of the TAA Program beyond the
scope in 20 CFR 617.1 and lists the
types of TAA Program benefits and
services that will be addressed in this
proposed part 618. Proposed
§ 618.100(c) carries forth a statement in
20 CFR 617.2 specifying that the
regulations in this part are issued to
implement the Act.
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Section 618.110
Definitions
Proposed § 618.110 defines terms
applicable to all other sections of the
NPRM unless otherwise stated. The
terms defined in the proposed rule are
derived from the Act; 20 CFR part 617;
29 CFR part 90; and the WIOA Final
Rule (81 FR 56072 (Aug. 19, 2016); 81
FR 55792 (Aug. 19, 2016)). Some
definitions are taken from the Act,
others interpret or expound upon terms
in the Act, and others are terms that the
Department will use in implementing
the Act. The defined terms in the rule
apply solely for purposes of this part
618.
The following section lists and
explains proposed new terms and their
definitions, revisions to definitions, and
removal of defined terms.
Act—This NPRM modifies the
definition of this term from 20 CFR
617.3(a) and 29 CFR 90.2, and updates
the U.S. Code citation to 19 U.S.C.
2271–2323 and 2395. At the issuance of
this NPRM, the most recent amendment,
Public Law 114–27, applies.
Administrator—This NPRM adds this
term and defines it for the first time to
reflect the statutory change in sec.
249A(a) and (b) of the Act, which
requires that the Division of Trade
Adjustment Assistance be designated as
the Office of Trade Adjustment
Assistance (OTAA), and that the head of
the OTAA be designated an
Administrator rather than a Director.
Also, this NPRM removes the defined
term ‘‘Director’’ from 29 CFR 90.2.
Adversely affected employment—This
NPRM modifies the definition of this
term from 20 CFR 617.3(b) and is based
on the statutory definition in sec. 247(1)
of the Act. No substantive changes from
those definitions are intended. This
NPRM omits the explicit reference to
agricultural firms from the definition in
20 CFR 617.3(b). Although agricultural
firms may be identified as adversely
affected employment, there were no
other references to agricultural firms in
20 CFR part 617, and, other than in the
definition of ‘‘firm,’’ which specifies
that agricultural firms are included,
there are no references to agricultural
firms in the NPRM.
Adversely affected worker or AAW—
This NPRM modifies the definition of
this term from 20 CFR 617.3(c) to clarify
the Department’s interpretation of this
term defined in sec. 247(2) of the Act.
Specifically, an employer may be
considered an AAW when the employer
is also an employee of a business that
closes or experiences a reduction in
operation. For example, the president of
the firm lays off everyone at the firm,
including herself. In this circumstance,
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if the employer becomes totally or
partially separated from their adversely
affected employment, the employer is
an AAW. Additionally, this NPRM
omits the reference in the definition of
this term from 20 CFR 617.3 to a
subdivision of a firm since employment
in an appropriate subdivision of a firm
is part of the definition of the term
‘‘adversely affected employment’’ and
including it in the definition of the term
‘‘adversely affected worker’’ is
redundant. The combined terms
‘‘adversely affected worker’’ and
‘‘adversely affected incumbent worker’’
are also referred to as a trade-affected
worker throughout the NPRM.
Adversely affected incumbent worker
or AAIW—This NPRM adds this term
and defines it for the first time. The
proposed new definition is from sec.
247(18) of the Act. Under this proposed
definition, workers who are part of a
worker group that has been certified
under subpart B as eligible to apply for
the TAA Program, and are individually
threatened to be, but who have not yet
been, totally or partially separated from
their adversely affected employment,
may be eligible to receive certain
benefits under the program. An AAIW,
in combination with an AAW, is
referred to as a trade-affected worker
throughout this NPRM.
Agent State—This NPRM modifies the
definition of this term from 20 CFR
617.3(aa)(2) and 617.16(e) by including
the phrase ‘‘trade-affected worker’’
instead of the term ‘‘individual.’’ The
term ‘‘Liable State’’ is now separately
defined in this proposed subpart A.
Applicable State law—This NPRM
adds this term and defines it for the first
time to clarify that this term, which
appears in secs. 232(a)(2), 239(e), and
247 of the Act, refers to State UI law.
The definition is modified from 20 CFR
617.16(a) for clarity and procedures for
determining applicable State law are
provided in proposed § 618.898.
Appropriate subdivision—This NPRM
adds this term and modifies the
definition of this term from 29 CFR 90.2
(included as part of the definition of the
term ‘‘firm’’). The phrase ‘‘appropriate
subdivision’’ is also part of the
definition of the term ‘‘firm’’ under sec.
247(3) of the Act. The terms ‘‘physical
facility,’’ ‘‘organizational department,’’
‘‘product line,’’ ‘‘project team,’’
‘‘operational unit,’’ or ‘‘part or
combination thereof’’ have been added
to the terms ‘‘establishment’’ and
‘‘auxiliary facilities operated in
conjunction with (whether or not
physically separate from) production
facilities’’ from 29 CFR 90.2. This
proposed definition reflects that service
workers are now eligible for benefits
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and explains that the term is defined
flexibly. Included are all workers at the
location(s) who have been totally or
partially separated or threatened with
separation, including teleworkers who
identify as reporting to that location(s),
and may include workers at a satellite
office or shared space who function as
if they were at that location(s),
identified in the petition, or
subsequently identified during the
course of the investigation, whose
employment is dependent upon the
production of the specific article or
supply of the specific service identified
in the petition, or identified during the
course of the investigation. The
proposed definition also clarifies that
colocation is neither a requirement nor
a presumption in determining an
appropriate subdivision. Thus, an
appropriate subdivision of a firm could
include operational units that produce
the article or provide the service in
question, even if the units are not at the
same physical location. Teleworkers,
and staffed workers, may be part of the
appropriate subdivision. In contrast, the
fact that all of the workers are located
at the same physical location does not
necessarily mean that they are part of
the appropriate subdivision.
Additionally, when worker separations
and trade effects are limited to a
discrete, individually distinct
organizational unit, it may be that only
a particular subset of workers in the
specific organizational unit meets the
sec. 222 group-eligibility requirements.
In these cases, and as described in the
example below, a narrower
interpretation focusing on where the
trade effects are concentrated, informs
the definition of ‘‘appropriate
subdivision.’’ Identifying a discrete
subset of workers makes for a clearer
causal nexus between a trade effect and
the worker separations, especially when
an organization provides multiple
services, produces multiple articles, or
consists of multiple units.
Consequently, a determination may
consist of several appropriate
subdivisions when each subdivision is
impacted by a different trade effect, or
it may consist of a certification of an
appropriate subdivision and a denial of
the remaining group(s) of workers.
Here is an example. The appliances
division of a company produces both
ovens and refrigerators. The division’s
200 workers are separately identifiable,
with 150 who produce refrigerators and
50 who produce ovens. The company
shifts abroad some of its oven
production and lays off eight ovenproducing workers. The ‘‘appropriate
subdivision’’ would be the oven product
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line, not the entire appliances division.
If, however, the company’s sales fell due
to foreign imports of ovens and
refrigerators, and it laid off 25 workers
from both product lines, the appropriate
subdivision would be the entire
appliances division.
Here is another example. A petition is
filed on behalf of a group of workers in
the accounting division of a carmanufacturing facility. If the workers
were being separated due to the
manufacturer’s decision to acquire the
same accounting services abroad instead
of performing them in-house, the
appropriate subdivision would be the
accounting division. If the workers were
being separated as part of a larger set of
layoffs across every unit in the
manufacturing facility because of
increased imports of foreign-made cars,
the appropriate subdivision would be
the entire facility.
The Department’s experience in
implementing the provisions covering
workers in the service sector has
demonstrated that the organizational
structures that companies use to supply
services may differ significantly from
those used to manufacture a product.
Service sector workers are more likely to
be spread out geographically or to work
remotely than are workers in a
manufacturing environment. The
proposed definition makes it clear that
flexibility is needed to ensure that the
Department can address new and varied
organizational structures.
Appropriate week—This NPRM
modifies the definition of this term from
20 CFR 617.3(d) by replacing
‘‘individual’’ with ‘‘AAW.’’ This term is
used in the proposed definitions of the
terms ‘‘average weekly hours’’ and
‘‘average weekly wage.’’
Approved training or TAA approved
training—This NPRM adds this term
and defines it for the first time. For
training to be approved, the tradeaffected worker must apply for training
with the State and receive approval of
the training program from the State after
meeting the requirements of sec.
236(a)(1) of the Act, as described in
proposed § 618.610. The other
requirements and limitations of subpart
F must also be met.
Article—This NPRM adds this term
and defines it for the first time. The
proposed term is in secs. 222 and 224
of the Act and the proposed definition
is based on case law and current
practice. An article may be tangible
(including manufactured items,
livestock, and commodities) or
intangible (including software code and
digital media). There is a distinction
between an object produced for the
purpose of sale (such as a book) and one
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produced incidental to the provision of
a service (such as a ticket). While both
objects may be tangible (paperback
novel and paper ticket, respectively) or
intangible (e-book and e-ticket,
respectively), the paperback book and
the e-book are articles because they
were produced by a firm and moved
from one party to another at the contract
of sale and for which ownership rights
are transferred from one party to another
under the contract of sale. The ticket is
not an article but is a token that
represents the intent or completion of a
service. Where the revenue of the firm
or appropriate subdivision is generated
from the sale or production of an article,
the firm or appropriate subdivision is
deemed to be engaged in activity related
to the sale or production of an article.
Average weekly hours—This NPRM
modifies the definition of this term from
20 CFR 617.3(e), and has been combined
with the statutory definition in sec.
247(5) of the Act. The phrase
‘‘consecutive calendar’’ has been added
to the word ‘‘weeks’’ to clarify that the
52 weeks that comprise the average are
the 52 consecutive calendar weeks
before the worker’s first qualifying
separation. Additionally, for
consistency purposes, the word
‘‘individual’’ has been replaced with
‘‘AAW.’’
Average weekly wage—This NPRM
modifies the definition of this term from
20 CFR 617.3(f) by incorporating the
statutory definition provided in sec.
247(4) of the Act. For consistency
purposes, the word ‘‘individual’’ has
been replaced with ‘‘AAW.’’
Average weekly wage in adversely
affected employment—This NPRM
removes this defined term from 20 CFR
617.3(g) because it is unnecessary, as
both terms ‘‘average weekly wage’’ and
‘‘adversely affected employment’’ are
already defined.
Benefit period—This NPRM
incorporates this defined term from 20
CFR 617.3(h) without change.
Certification or affirmative
determination or petition certification–
This NPRM modifies the definition of
these terms from 20 CFR 617.3(j)(1) to
clarify that the Department intends
‘‘group of workers,’’ the term used in 20
CFR 617.3(j)(1), to refer to workers pre
certification, and the term ‘‘worker
group’’ to refer to a group that has been
certified as eligible to apply for TAA
Program benefits and services. (The
terms ‘‘group of workers’’ and ‘‘worker
group’’ are defined in this proposed
subpart A.) Otherwise, the definition is
unchanged. This definition does not
apply for purposes of the term
‘‘certification’’ in sec. 222(d)(3) (firm or
customer must certify specific
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information), 236(a)(5)(H) (training
involving obtaining or completing a
degree or certification), 239(a)(3)
(certifications for training waivers under
231(c)(2)), or 247(19) (definition of
‘‘recognized postsecondary credential’’)
of the Act. It also does not apply with
respect to the term ‘‘affirmative
determination’’ in sec. 222(e) (firms
identified by the International Trade
Commission (ITC)) or 224 (ITC
notifications and investigations) of the
Act.
Certification date or date of
certification—This NPRM adds these
terms and defines them for the first
time. This NPRM removes the defined
term ‘‘date of issuance’’ from 29 CFR
90.2. The change is intended to make
clear that the date the Certifying Officer
signs a certification is the date on which
the certification takes effect.
Certification period—This NPRM
modifies the definition of this term from
20 CFR 617.3(j)(2) to provide additional
details to help clarify this specific time
period. However, the meaning remains
unchanged and is the period of time
during which a worker group is covered
by a certification.
Certifying Officer—This NPRM
modifies the definition of this term from
29 CFR 90.2 to reflect the statutory
change in sec. 249A of the Act, which
changes the ‘‘Division of Trade
Adjustment Assistance’’ to the ‘‘Office
of Trade Adjustment Assistance’’ and
the title of the head of that office from
‘‘Director’’ to ‘‘Administrator.’’
Co-enrollment—This NPRM adds this
term and defines it for the first time. It
refers to enrolling a trade-affected
worker both in the TAA Program and
also in another program administered
through a State’s one-stop delivery
system.
Commission or International Trade
Commission or ITC—This NPRM
incorporates these defined terms from
29 CFR 90.2 without change.
Commuting area—This NPRM
modifies the definition of this term from
20 CFR 617.3(k) by replacing the word
‘‘individual’’ with ‘‘trade-affected
worker.’’
Completion of training or complete
training or completed training—This
NPRM adds these terms and defines
them for the first time. It clarifies the
Department’s interpretation of when a
trade-affected worker completes TAA
approved training.
Component part—This NPRM adds
this term and defines it for the first time.
The proposed definition is based on the
statutory text, case law, and current
practice. The Act consistently uses the
term ‘‘component part’’ in the context of
articles and does not use it in the
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context of service. Consequently, the
Department determines that there is no
component part of a service. A
component part is a tangible or
intangible input that is directly
incorporated into another article and
that becomes a subunit of that other
article, although it need not retain its
original form or characteristics.
Examples of a component part of an
article include a button on a shirt,
lacquer on a table, preservatives in
processed food, and code embedded in
a microchip. Examples of inputs that are
not component parts include production
equipment, molds and castings, energy
to power the production facility, code in
software to operate machinery,
blueprints, and designs. A component
part is neither like nor directly
competitive with the article into which
it is directly incorporated.
Confidential business information—
This NPRM modifies the definition of
this term from 29 CFR 90.33(a) by
including a reference to the Trade
Secrets Act, 18 U.S.C. 1905, and by
omitting the phrase ‘‘obtained from a
person’’ since the confidentiality
exception applies regardless of its
source. Title 29 CFR 90.33(a) identifies
the Freedom of Information Act (FOIA),
5 U.S.C. 552, and the Department’s
regulations implementing FOIA, 29 CFR
part 70, as the bases for designating
confidential business information as
‘‘privileged or confidential.’’ FOIA
exemption (b)(4) exempts from
mandatory disclosure under FOIA trade
secrets and certain commercial or
financial information. The Trade Secrets
Act prohibits the disclosure of trade
secrets and confidential business
information without legal authority. The
proposed definition also adds that
confidential business information could
be received by the Department, or by the
States on the Department’s behalf.
The proposed definition also reflects
TGAAA’s addition of paragraph (e)(3) to
sec. 222 of the Act (now sec. 222(d)(3)),
which in part requires the Department
to protect the confidentiality of
information obtained during an
investigation ‘‘that the Secretary
considers to be confidential business
information,’’ unless the firm or
customer submitting the information
had notice, at the time of submitting the
information, that the information would
be released by the Department, or
subsequently agrees to its disclosure.
Finally, the proposed definition is
used in conjunction with investigations
under proposed subpart B. The NPRM
relocates the information provided by
29 CFR 90.33(b) and (c) to proposed
subpart B.
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Contributed importantly—This NPRM
adds this term and defines it for the first
time. The proposed definition adopts
the statutory definition in sec. 222(c) of
the Act and is used in the petition
investigation process described in
proposed subpart B.
Cooperating State agency or CSA—
This NPRM adds these terms and
defines them for the first time to
accurately identify the agency at the
State level that will act as an agent of
the Department in receiving
applications from and providing
benefits and services to trade-affected
workers. The proposed definition
incorporates language that is used in
Governor-Secretary Agreements, as
further described in proposed subpart
H.
Customized training—This NPRM
adds this term and defines it for the first
time to identify a type of training
approvable under the Act and proposed
subpart F. The proposed definition of
‘‘customized training’’ is taken from sec.
236(f) of the Act. Proposed subpart F
addresses exclusions specific to AAIWs
from sec. 236(a)(10)(B) of the Act.
Date of issuance—This NPRM
removes this defined term from 29 CFR
90.2 because it is not used in the Act or
in the NPRM and is therefore
unnecessary.
Date of the petition—This NPRM
removes this defined term from 29 CFR
90.2. In its place, the NPRM proposes a
new term, ‘‘petition date.’’
Date of separation—This NPRM
removes this defined term from 20 CFR
617.3(k)(1). In its place, the NPRM
proposes a new term, ‘‘separation date.’’
Denial or negative determination or
petition denial—This NPRM adds these
terms and defines them for the first
time. The proposed definition is derived
from 29 CFR 90.16(f) and describes the
result when a group of workers has not
met the requirements for certification
and so is not eligible for TAA Program
benefits.
Department of Labor or Department—
This NPRM adds this term and defines
it for the first time. It is used to identify
references to the U.S. Department of
Labor.
Downstream producer—This NPRM
adds this term and defines it for the first
time. It incorporates the statutory
definition at sec. 222(c)(3) of the Act. A
downstream producer is a firm that
performs additional value-added
production processes or services
directly for another firm for articles or
services with respect to which a worker
group in such other firm has been
certified as eligible to apply for TAA
Program benefits and services. Valueadded production processes or services
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include final assembly, finishing,
testing, packaging, or maintenance or
transportation services. Production
processes are services provided directly
for the primary firm even if ownership
of the primary firm changes.
Additionally, a firm can be a
downstream producer even if the article
for which the value-added production
processes or services are carried out will
become a component part of the article
received from the primary firm, or if
further value-added finishing or
assembly of the article occurs
downstream by another firm.
Additionally, a downstream producer
may be a firm that provides services to
a primary firm that produces physical
products. For example, a shipping
company will be a downstream
producer if a significant portion of its
business is lost from a TAA certified
primary firm.
Eligible RTAA recipient and eligible
TAA recipient—This NPRM adds these
terms and defines them for the first time
to describe categories of persons who
may be eligible to qualify for the HCTC
(see proposed definition of ‘‘HCTC’’), if
that benefit is available. These terms are
defined in HCTC administrative
guidance.
Employer—This NPRM incorporates
this defined term from 20 CFR 617.3(n)
without change.
Employment—This NPRM
incorporates this defined term from 20
CFR 617.3(o) without change.
Enrolled in training—This NPRM
modifies the definition of this term from
20 CFR 617.11(a)(2)(vii)(D)(1). This term
is found at sec. 231(a)(5)(A) of the Act.
The proposed definition is reworded
from 20 CFR 617.11(a)(2)(vii)(D)(1). The
proposed definition omits the
instruction that a waiver is not required
for a worker who is enrolled in training.
That instruction is more clearly
provided in proposed subpart G. The
definition of this term is not the same
definition used for the performance
reporting under subpart H. Separate
guidance, outside of this rule, is
published on reporting requirements.
Exhaustion of UI—This NPRM
removes this defined term from 20 CFR
617.3(p) and it is to be included in
proposed subpart G rather than in this
proposed subpart A.
Family—This NPRM modifies the
definition of this term from 20 CFR
617.3(q), which was based on the
Internal Revenue Code definition. The
definition used in this NPRM is the
definition of ‘‘immediate family’’ used
in the Federal Travel Regulation (FTR)
at 41 CFR 300–3.1.
Filing date—This NPRM modifies the
definition of the term ‘‘date of filing’’
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from 29 CFR 90.2. This term refers to
the date on which petitions are deemed
to be filed. OTAA, the office currently
handling petitions under the TAA
Program, is substituted for ‘‘Division of
Trade Adjustment Assistance.’’ The
phrase ‘‘other documents’’ has been
replaced with the phrase ‘‘attachments
to the petition form’’ to clarify that the
definition applies to attachments to a
petition, and not to other documents
submitted to the Department. The
phrase ‘‘and determined to be valid’’ has
also been added. The Department would
review a petition, including
attachments, to determine if it is valid,
in accordance with proposed § 618.205,
within 2 business days of receipt of the
petition to the Department. The date on
which the petition is determined to be
valid is the filing date. The Department
would not initiate the investigation
until the petition is deemed valid, in
accordance with proposed § 618.205(f).
Accordingly, this interpretation applies
to sec. 221(a)(3) of the Act, which states
that ‘‘[u]pon receipt of the petition, [the
Department] shall promptly publish
notice in the Federal Register and on
the website of the Department of Labor
that the Secretary has received the
petition and initiated an investigation.’’
Firm—This NPRM modifies the
definition of this term from 29 CFR 90.2
and adds some new language derived
from sec. 247(3) of the Act, including
‘‘[w]here the term ‘firm’ appears in this
part, it means ‘firm or appropriate
subdivision.’ ’’ This has been added to
clarify that the term ‘‘firm,’’ as defined
in sec. 247(3) of the Act, includes an
appropriate subdivision thereof. Also
included in the proposed definition is
that ‘‘firm’’ includes ‘‘an agricultural
firm or service sector firm or an
appropriate subdivision thereof.’’ The
Department also added a clarification
that for purposes of determining group
eligibility only, as described in subpart
B, a firm does not include a public
agency or any subdivision of a public
agency. TAAEA modified sec. 247 of the
Act (19 U.S.C. 2319) by striking ‘‘public
agency’’ from the definition of a ‘‘firm.’’
Accordingly, individuals employed by a
public agency, which the Department
defines by reference to 29 U.S.C. 203(x),
are not eligible for a certification of
eligibility to apply for the TAA Program.
This proposed definition of a ‘‘firm’’ is
intended to encompass diverse
organizations and to include closely
related or affiliated organizations. The
definition, however, follows basic rules
of corporate and organizational law by
limiting it to entities under common
ownership or control.
First benefit period—This NPRM
modifies the definition of this term from
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20 CFR 617.3(r) by replacing
‘‘individual’’ with ‘‘AAW’’ to achieve
consistency throughout the NPRM.
First exhaustion of UI—This
definition is proposed for removal, as it
is included in 20 CFR 617.3(s) and has
been included in proposed subpart G,
rather than in proposed subpart A.
First qualifying separation—This
NPRM removes this defined term from
20 CFR 617.3(t)(3). The term is not
necessary because the plain meaning of
the term first qualifying separation is
sufficient for use in the NPRM and
additional clarifying language was
added to the term ‘‘qualifying
separation.’’
First separation—This NPRM removes
this defined term from 20 CFR
617.3(t)(1). It was written to address preTAARA statutory provisions that are
outdated due to subsequent statutory
amendments. The proposed definitions
for the terms ‘‘partial separation,’’
‘‘qualifying separation,’’ and ‘‘total
separation’’ make this term and
definition unnecessary.
Full-time training—This NPRM adds
this term and defines it for the first time.
It is derived from 20 CFR 617.22(f)(4)
and defines full-time training as
attendance in training in accordance
with the training provider’s established
full-time hours in a day (or credit hours)
and days in a week. The Department has
added an interpretation, originally
published in TAAEA administrative
guidance, that provides that in the last
semester of training, if the remaining
required courses to complete the
approved training will not meet the
training provider’s normal definition of
full-time training, the State must
consider the AAW to be in full-time
training, and otherwise eligible to apply
for TRA benefits.
Group of workers—This NPRM adds
this term and defines it for the first time.
It relates to the workers who file a
petition or for whom a petition is filed
and means at least two workers
employed or formerly employed by the
same firm, or an appropriate
subdivision. The proposed definition
includes teleworkers and staffed
workers because they are frequently
performing the same work as other
trade-affected workers in the subject
firm and are under the subject firm’s
operational control. Separated workers
are included in the definition because
they, too, may be trade-affected workers.
This term is different from the term
‘‘worker group.’’ This NPRM also
removes the defined term ‘‘group,’’ from
29 CFR 90.2, because it defines ‘‘group’’
as three or more workers in a firm. The
Act does not define this term and
‘‘group’’ can be interpreted as two or
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more. The Department is interested in
comments related to this change.
Head of family—This NPRM removes
this defined term from 20 CFR 617.3(u)
because it is not used in this NPRM.
Health Coverage Tax Credit or
HCTC—This NPRM adds these terms
and defines them for the first time to
describe the tax credit under sec. 35 of
the Internal Revenue Code of 1986 (26
U.S.C. 35), which is available to eligible
TAA recipients, eligible RTAA
recipients, and other eligible recipients,
including qualifying family members.
The HCTC benefit is available under
TAARA 2015 and was available under
TAARA 2002, TGAAA, and TAAEA for
a limited time.
Impact date—This NPRM modifies
the definition of this term from 20 CFR
617.3(v) for clarity. Section 223(a) of the
Act requires that each certification
specify the date on which the total or
partial separation began or threatened to
begin. Section 223(b) requires that the
impact date may not be more than 1
year before the petition date, with
exceptions for certifications based in
sec. 222(e) of the Act and those
specified in proposed subpart B.
Increased imports—This NPRM
incorporates this defined term from 29
CFR 90.2 without change.
Individual employment plan or IEP—
This NPRM adds these terms and
defines them for the first time. It
describes an employment and case
management service required by sec.
235(2) of the Act. The IEP is a dynamic
document that may be changed based on
comprehensive and specialized
assessments, training program
modifications, or other factors that
emerge during program participation.
Proposed subpart C describes
development of an IEP in more detail.
Job finding club—This NPRM
incorporates this defined term from 20
CFR 617.3(y) and sec. 247(16)(C) of the
Act without change.
Job search program or JSP—This
NPRM incorporates this defined term
from 20 CFR 617.3(w) and sec.
247(16)(A) of the Act without change.
Job search workshop—This NPRM
modifies the definition of this term from
20 CFR 617.3(x) to conform to the
definition provided in sec. 247(16)(B) of
the Act.
Lack of work—This NPRM adds this
term and defines it for the first time.
The proposed term is in sec. 247(2) of
the Act and is also in the definitions of
the terms ‘‘adversely affected worker’’
and ‘‘layoff’’ in this NPRM. The
proposed definition incorporates the
administrative guidance in TEGL No.
12–16 on ‘‘strikes’’ and ‘‘lockouts’’ and
their effect on eligibility for TAA
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Program benefits and services.
Specifically, a ‘‘lack of work’’ separation
occurs when the employer initiates the
unavailability of work—the employer
either does not have work for the worker
to perform or does not make that work
available to the worker. A lack of work
separation can be based on a lockout,
because a lockout is initiated by the
employer. Another example is when an
employer provides a retirement package
incentive or other bonus to reduce the
workforce through voluntary
separations. Some AAWs will meet this
definition of a ‘‘lack of work’’ separation
but may still be disqualified for UI in
some States under their voluntary quit
provisions. Although the UI
disqualification will make these workers
ineligible for TRA, they may qualify for
other benefits and services under the
TAA Program.
Layoff—This NPRM modifies the
definition of this term from 20 CFR
617.3(z) and 29 CFR 90.2. The phrase
‘‘suspension or separation from
employment’’ used in 20 CFR 617.3(z) is
adopted instead of the phrase
‘‘suspension from pay status’’ used in 29
CFR 90.2 because the Department
intends for ‘‘layoff’’ to include persons
separated from employment who
receive severance pay and, therefore,
may be deemed in a pay status. Some
of these workers may be eligible for
TAA Program benefits and services,
whether or not State law prevents them
from qualifying for TRA. The words ‘‘of
time’’ have been added to the 20 CFR
617.3(z) phrase ‘‘expected to be for a
definite or indefinite period,’’ and this
is a change from the 29 CFR 90.2
definition, which does not include the
latter phrase. In addition, the language
at 20 CFR 617.3(z) and 29 CFR 90.2 that
requires that the layoff be expected to
last for ‘‘not less than seven consecutive
days’’ and ‘‘no less than seven (7)
consecutive calendar days,’’
respectively, has not been included in
the proposed definition, because that
restriction is not supported by the Act.
These changes 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 Program
purposes.
Liable State—This NPRM modifies
the definition of this term from 20 CFR
617.3(aa)(1) and 617.16(e) to provide
more specific directions about
identifying the liable State. It also
includes the phrase ‘‘trade-affected
worker’’ instead of ‘‘individual’’ and
updates references to this NPRM. The
term ‘‘Agent State’’ is now separately
defined in this proposed subpart A.
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Like or directly competitive—This
NPRM modifies the definition of this
term from 29 CFR 90.2 in order to
accommodate the statutory changes to
group eligibility, which now includes
worker groups performing services, to
address intangible articles and services,
and to remove the second paragraph,
which states, ‘‘An imported article is
directly competitive with a domestic
article at an earlier or later stage of
processing, and a domestic article is
directly competitive with an imported
article at an earlier or later stage of
processing, if the importation of the
article has an economic effect on
producers of the domestic article
comparable to the effect of importation
of articles in the same stage of
processing as the domestic article.’’ The
Department proposes the removal of the
second paragraph of the definition
because it was seldom used and the
proposed changes to the definition
maintain the Department’s ability to
determine whether an article at an
earlier or later stage of production or a
service at an earlier or later stage of
supply are commercially
interchangeable. In addition, the
proposed definition clarifies that like
and directly competitive articles and
services can be tangible or intangible.
Examples of ‘‘like’’ tangible articles
could include jackets and coats;
examples of ‘‘like’’ intangible articles
could include programming software
code and operating software code.
Examples of ‘‘like’’ services could
include payroll services and billing
services. Examples of ‘‘directly
competitive’’ articles could include
corrective eyeglasses and corrective
contact lens. Examples of ‘‘directly
competitive’’ services could include
physical fitness personal trainer services
and virtual fitness training programs
available online. A component part is
neither like nor directly competitive
with the article into which it is
incorporated because the component
part is a subunit of the article.
Office of Trade Adjustment
Assistance or OTAA—This NPRM adds
this term and defines it for the first time
as authorized by sec. 249A of the Act.
It refers to the name of the organization
within the U.S. Department of Labor,
Employment Training Administration
with responsibility for administering the
TAA Program, or OTAA’s successor
organization.
One-stop delivery system—This
NPRM adds this term and defines it for
the first time. It refers to the American
Job Center network, which brings
together workforce development,
education, and other human resource
services in a seamless, customer-focused
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service delivery network that enhances
access to partner programs’ services and
improves long-term employment
outcomes for individuals receiving
assistance. This includes coordination
of services to eligible dislocated workers
as defined under sec. 3(15) of WIOA.
States operate the one-stop delivery
system consistent with the requirements
of WIOA and its implementing
regulations. WIOA sec. 121(b)(1)(B)(vii)
requires the TAA Program to be a
partner in the one-stop delivery system.
On-the-job training or OJT—This
NPRM modifies the definition of this
term from sec. 247(15) of the Act and 20
CFR 617.3(bb). It adds that the training
is work-based and performed under
contract with an employer. The term
‘‘AAW’’ replaces ‘‘individual.’’
Partial separation or partially
separated—This NPRM modifies the
definition of this term from 20 CFR
617.3(cc), 29 CFR 90.2, and sec. 247(6)
of the Act. The definition of this term
in 29 CFR 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 the TAA Program. After being
determined eligible to apply for the
TAA Program, the AAW’s ‘‘partial
separation’’ is referred to in 20 CFR
617.3(cc) as being ‘‘in adversely affected
employment,’’ the term used in sec.
247(6)(A) and (B) of the Act. The
proposed definition retains the statutory
criteria of ‘‘partial separation’’ for both
workers on whose behalf a petition has
been filed and workers who are covered
by a certification, and offers different
definitions for usage under proposed
subpart B and the other proposed
subparts of this NPRM. The proposed
definition also retains the provision in
20 CFR 617.3(cc) that, in order for the
AAW to be counted as partially
separated from adversely affected
employment, the requisite reduction of
hours and wages must have occurred.
However, the proposed definition
simplifies the language about when the
separation must occur by substituting
the phrase ‘‘during the certification
period’’ for ‘‘during a week ending on or
after the impact date specified in the
certification under which an adversely
affected worker is covered’’ (see
proposed definition of ‘‘certification
period’’).
Period of duty—This NPRM adds this
term and defines it for the first time. It
is from sec. 233(i)(2) of the Act, added
by TGAAA, and relates to service
performed in the reserve components of
the Armed Services of the United States.
Petition date—This NPRM adds the
term and defines it for the first time. It
means the date a petition form is signed
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by the petitioner(s). This change reflects
the common, everyday usage of this
phrase. When petitioners sign on
different dates, the petition date is the
latest of those dates. This NPRM also
removes the defined term ‘‘date of
petition’’ from 29 CFR 90.2.
Prerequisite education or prerequisite
coursework or prerequisite training—
This NPRM adds these terms and
defines them for the first time. They
refer to approvable training under sec.
236(a)(5)(E) of the Act. For example, a
trainee enrolled in an engineering
program might have to complete courses
in mathematics before registering for
engineering courses. Similarly, some
nursing programs may require
additional math coursework beyond the
trainee’s high school classes before
starting the nursing program
curriculum.
Program of remedial education or
remedial education or remedial
training—This NPRM adds these terms
and defines them for the first time. They
refer to approvable training under sec.
236(a)(5)(D) of the Act and are used to
refer to education designed to improve
trade-affected workers’ basic knowledge.
Qualifying separation—This NPRM
modifies the definition of this term from
20 CFR 617.3(t)(2). The Department is
proposing to amend the definition of
‘‘qualifying separation’’ to include
partially separated workers. The
definition at 20 CFR 617.3(t)(2) excludes
partially separated workers and is based
on an August 23, 1988, amendment to
sec. 233(a)(2) of the Act, which added
a 104-week limitation period for the
receipt of Basic TRA with respect to
totally separated workers. See Public
Law 100–418, sec. 1425(a). The
Department has reviewed the Act for
this NPRM and has concluded that
under a plain reading of the Act,
partially separated workers are
otherwise eligible for TRA benefits if the
eligibility requirements in sec. 231 of
the Act are met. The proposed
definition covers qualifying separation
for the purposes of assisting States in
determining an AAW’s eligibility to
receive Basic TRA; the 26-week period
for enrollment in approved training; and
the Basic TRA eligibility period. The
first qualifying separation is used for
purposes of determining a worker’s
eligibility for Basic TRA and the weekly
and maximum amounts of Basic TRA.
This is discussed further in proposed
subpart G.
Reemployment Trade Adjustment
Assistance or RTAA—This NPRM adds
these terms and defines them for the
first time to refer to the employmentbased benefit described in sec. 246 of
the Act. RTAA was established with
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TGAAA and continued under TAAEA
and TAARA 2015.
Regional Administrator—This NPRM
modifies the definition of this term from
20 CFR 617.3(dd), by reversing the order
of the terms ‘‘U.S. Department of Labor’’
and ‘‘Employment and Training
Administration.’’
Remuneration—This NPRM removes
this defined term from 20 CFR 617.3(ee)
because it does not appear in this
NPRM.
Secretary—This NPRM incorporates
this defined term from 20 CFR 617.3(ff)
and 29 CFR 90.2 without change.
Separation date—This NPRM adds
this term and defines it for the first time.
It replaces the term ‘‘date of separation’’
and is substantially the same as in 20
CFR 617.3(l), but rephrases the
employer-authorized leave language
slightly for clarity, adds a reference to
leave for military service as provided in
sec. 231(a)(2)(D) of the Act, and uses the
word ‘‘worker’’ instead of ‘‘individual.’’
This NPRM also removes the defined
term ‘‘date of separation’’ from 20 CFR
617.3(l).
Service—This NPRM adds this term
and defines it for the first time to
explain how the term is used in sec. 222
of the Act as part of group eligibility
requirements. This proposed definition
has been developed from case law and
current practice. A service is the work
performed by a worker for a service firm
or appropriate subdivision. The work of
a service firm is measured in units of
time, labor, and tasks completed.
Services may include the incidental
production of an article, such as a
license, ticket, certificate, permit,
model, drawing, or prototype. For
example, a travel agent provides travelplanning services, but may send
customers a ticket or voucher. An online
education company provides education
services, but may send students a
textbook. Where the revenue of the firm
or its appropriate subdivision is
generated from the sale of a service, the
firm or subdivision is engaged in the
supply of a service.
Significant number or proportion of
the workers—This NPRM modifies the
definition of this term from 29 CFR 90.2
to reflect that both partially and totally
separated workers, as well as workers
threatened with total or partial
separation, are counted towards the
number and proportion of workers
affected, as established in sec. 222(a)(1)
and (b)(1) of the Act. The phrases ‘‘[i]n
most cases’’ and ‘‘would ordinarily have
to be affected’’ have also been omitted
from the definition.
Staffed worker—This NPRM adds this
term and defines it for the first time
under the authority of sec. 223(e) of the
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Act, which allows the Department to
establish standards for investigations of
petitions filed under sec. 221 of the Act
and to develop criteria for making
determinations under sec. 223(a) of the
Act. Previously referred to as leased
workers, staffed workers are more fully
addressed in proposed subpart B.
State—This NPRM modifies the
definition of this term from 20 CFR
617.3(hh), by replacing the phrase ‘‘such
Commonwealth’’ to ‘‘the
Commonwealth of Puerto Rico’’ for
clarity.
State agency—This NPRM removes
this defined term from 20 CFR 617.3(ii).
This is a commonly understood term.
The term is defined at sec. 247(8) of the
Act.
State law—This NPRM modifies the
definition of this term from 20 CFR
617.3(jj) and sec. 247(9) of the Act. The
reference to the Internal Revenue Code
has been updated and additional
language is added to include other State
laws that may be explicitly mentioned
in this proposed part 618.
Successor-in-interest—This NPRM
adds this term and defines it for the first
time to provide clarity to States when
there are mergers and acquisitions,
name changes, bankruptcy proceedings,
and other actions that may change the
name of the firm under which a
worker’s wages are reported to the State
or by whom a termination notice or
threatened status letter is issued. There
is a test used by the Department in
determining whether there is a
successor-in-interest when the question
arises as part of a determination as to
the scope of the worker group under a
certification. In determining whether or
not there is a successor-in-interest, the
State must determine whether most or
all of the following conditions are met:
There is continuity in business
operations; there is continuity in
location; there is continuity in the
workforce; there is continuity in
supervisory personnel; the same jobs
exist under similar conditions; there is
continuity in machinery, equipment,
and process; there is continuity in
product/service. If the State’s
investigation finds a successor-ininterest relationship exists and that
could result in a denial of any TAA
benefits, except RTAA, the State should
file a new petition requesting an
amendment to a certification in
accordance with proposed § 618.250.
The Department specifically encourages
comments on this topic.
Suitable employment—This NPRM
modifies the definition of this term from
20 CFR 617.22(a)(1)(i) and sec. 236(e) of
the Act. Specifically, the Act uses the
term suitable employment in sec.
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236(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
Department has concluded that suitable
employment, to be considered such,
excludes part-time, temporary, or
threatened employment. Thus, the
proposed definition adds this caveat.
Additionally, unlike 20 CFR
617.22(a)(1)(i), the NPRM does not
restrict applicability of the definition to
sec. 236(a)(1)(A) of the Act.
Suitable work—This NPRM removes
this defined term from 20 CFR
617.3(kk)(1) and (2) and defines it
within proposed subpart G, rather than
in this proposed subpart A.
Supplier—This NPRM adds this term
and defines it for the first time. It is
derived from sec. 222(c)(4) of the Act.
The Department proposes to add this
term and definition in response to
statutory changes to group eligibility
requirements. The Department has
supplemented the statutory definition
with a statement explaining that there is
no direct supply where an intervening
entity receives the component parts for
articles, aside from a delivery or
bailment situation, or in the case of a
service supplier, if an intervening entity
performs the service. The Department’s
interpretation is based on case law and
current practice.
Supportive services—This NPRM
adds this term and defines it for the first
time. It is derived from sec. 235(8) of the
Act and is used to refer to such services
as are needed to enable a trade-affected
worker to participate in activities
authorized under the Act. Additional
information on supportive services is in
the WIOA regulations at 20 CFR
680.900.
Threatened to become totally or
partially separated—This NPRM adds
this term and defines it for the first time.
It is similar to the term ‘‘threatened to
begin’’ in 29 CFR 90.2 and is used in the
context of petition investigations. The
proposed definition describes that
workers in a firm or appropriate
subdivision can be threatened to
become totally or partially separated
when there is evidence of intent to
separate workers. Evidence may include
a Worker Adjustment and Retraining
Notice (WARN) Act notification, a letter
to a union official from the company, a
memo to the employees from the
company, or other forms of notice.
Similar to 29 CFR 90.2, the phrase
applies when it is reasonable to
anticipate that separations are
imminent.
Threatened to begin—This NPRM
incorporates this defined term from 29
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CFR 90.2 without change. It is used in
conjunction with the proposed defined
term ‘‘threatened to become totally or
partially separated,’’ and is the date(s)
on which the applicable event(s)
occurred.
Total separation or totally
separated—This NPRM modifies the
definition of these terms from 20 CFR
617.3(ll) and 29 CFR 90.2 and specifies
the difference between how the terms
are applied to a worker for purposes of
investigating a petition and determining
group eligibility, in accordance with
proposed subpart B, and how they are
applied to an AAW otherwise.
Trade Adjustment Assistance for
Workers or Trade Adjustment
Assistance or TAA Program—This
NPRM modifies these defined terms
from 20 CFR 617.3(mm) to state that the
programs included as part of the TAA
Program include RTAA and also to refer
generally to the provision of benefits
and services to trade-affected workers as
described in this NPRM.
Trade-affected worker—This NPRM
adds this term and defines it for the first
time to simplify the reference when the
NPRM applies to both categories of
workers: ‘‘adversely affected workers’’
and ‘‘adversely affected incumbent
workers.’’
Trade Readjustment Allowance or
TRA—This NPRM modifies the
definition of these terms from 20 CFR
617.3(nn) and (m)(1) and (2) to reference
the administration of the TRA benefit in
proposed subpart G and includes the
three categories of TRA available under
TAARA 2015: Basic, Additional, and
Completion. This revised definition
does not define the three categories of
TRA, but provides a cross-reference to
their definitions in proposed subpart G.
Unemployment Insurance or UI—This
NPRM modifies the definition of these
terms from 20 CFR 617.3(oo), to use the
word ‘‘worker’’ instead of ‘‘individual.’’
The terms ‘‘regular compensation,’’
‘‘additional compensation,’’ and
‘‘extended compensation’’ are the same
as the definitions in the Federal-State
Extended Unemployment Compensation
Act of 1970 (EUCA) (26. U.S.C. 3304
note), except that the word ‘‘worker’’
has been substituted for the word
‘‘individual,’’ and the term ‘‘Federal
supplemental compensation’’ has been
updated and moved within the
definition of ‘‘extended compensation.’’
Value-added production processes or
services—This NPRM adds this term
and defines it for the first time. It is
derived from sec. 222(c)(3)(B) of the Act
and used in reference to the petition
investigation process and identifying
adversely affected secondary workers
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who perform work for a firm that is a
downstream producer.
Wages—This NPRM incorporates this
defined term from 20 CFR 617.3(pp)
without change. For purposes of
proposed subpart G, this includes wages
paid to a worker by a successor-ininterest.
Wagner-Peyser Act—This NPRM adds
this term and defines it for the first time
to refer to the Wagner-Peyser Act, as
amended (29 U.S.C. 49 et seq.). It
references a program that is a required
WIOA partner and may provide
assistance to TAA Program participants.
Week—This NPRM incorporates this
defined term from 20 CFR 617.3(qq) and
sec. 247(12) of the Act without change.
Week of unemployment—This NPRM
modifies the definition of this term from
20 CFR 617.3(rr). The phrase ‘‘Federal
unemployment compensation law’’ has
been changed to ‘‘Federal
Unemployment Insurance law’’ to
mirror the definition in sec. 247(13) of
the Act.
Worker group—This NPRM adds this
term and defines it for the first time. It
defines who may comprise a group of
workers certified under proposed
subpart B as eligible to apply for TAA
Program benefits and services. The
proposed definition includes
teleworkers and staffed workers. The
proposed definition is derived from sec.
223(a) of the Act, which refers to a
certification of eligibility to apply for
assistance as ‘‘covering workers in any
group.’’ The term is differentiated in
this NPRM from the term ‘‘group of
workers’’ (defined in this proposed
subpart A), which refers to workers who
file a petition for certification under sec.
221(a)(1)(A) of the Act.
Workforce Innovation and
Opportunity Act or WIOA—This NPRM
adds this term and defines it for the first
time to refer to the Workforce
Innovation and Opportunity Act (Pub.
L. 113–128), as amended, under which
the Department provides funding for
States to carry out employment and
training activities for adult, dislocated
worker, and for youth activities in
conjunction with local workforce
development areas. The TAA Program is
a mandatory one-stop partner under
WIOA.
B. Subpart B—Petitions, Investigations,
and Determinations
The purpose of subpart B is to set
forth regulations required by sec. 248 of
the Act, directing the Department to
prescribe regulations to implement the
provisions for rendering group
determinations on adjustment assistance
for trade-affected workers. This subpart
will provide for the prompt and
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effective investigation of petitions for
certification of eligibility to apply for
adjustment assistance.
Proposed subpart B addresses secs.
221, 222, 223, and 224 of the Act and
codifies and relocates 29 CFR part 90 by
incorporating it into part 618. The
proposed subpart makes several changes
to update those regulations to reflect
statutory changes; current procedures
for filing petitions, conducting
investigations, and issuing
determinations of TAA Program
eligibility; and requires exhaustion of
administrative remedies, specifically
use of the reconsideration process, prior
to judicial review. The Department
proposes to relocate most of the
definitions in 29 CFR 90.2 to subpart A
of part 618 for clarity and consistency.
Section 618.200 Scope
Proposed § 618.200 provides the same
general scope for subpart B as 29 CFR
part 90 but expounds upon the
description of the scope given in 29 CFR
90.1.
Section 618.205 Petitions
Proposed § 618.205 updates the
provision related to petitions at 29 CFR
90.11 and also makes the following
changes. Proposed paragraph (a)
updates who may file a petition, based
on changes to sec. 221(a) of the Act. It
also changes § 90.11(a) to reduce the
number of workers who must sign the
petition from three to two. The Act does
not specify a minimum number of
workers that make up a ‘‘group of
workers.’’ Therefore, the Department
interprets this to require that a group of
workers be a minimum of two workers,
instead of the current requirement of
three workers. Proposed paragraph (b)
combines and modifies 29 CFR 90.11(b)
and (c) regarding the form and content
of petitions. It requires petitioners to
provide information the Department
needs to begin its investigation. Absent
this required information, a petition will
not be valid. The required information
remains substantially the same with the
exception of proposing to remove the
requirements in § 90.11(c)(6) and (7).
The requirements in § 90.11(c)(6) and
(7) are not worded in such a way to
elicit information in keeping with all of
the statutory requirements for group
eligibility. Primarily, the requirements
in 29 CFR 90.11(c)(6) and (7) do not
apply to a petition filed identifying a
shift. Therefore, the Department
proposes to remove and replace them
with proposed paragraph (b)(8), which
requires that the petitioner explain why
it is believed that worker separations
that have occurred or may occur at the
worker’s firm are due to foreign trade
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impacts, or provide a reason that an
amendment to an existing and active
certification is being requested.
Proposed paragraph (b)(3) also adds a
requirement to provide the address of
the location(s) where the group of
workers who have been totally or
partially separated or threatened with
separation report to work (for a
teleworker, the address of the location
to which they report) to assist the
investigator in identifying the group of
workers.
Proposed paragraph (c) is new and
provides that supplemental information,
while not required when the petition is
filed, may be provided with the initial
filing to assist the Department in
rendering a timely decision.
Proposed paragraph (d) updates 29
CFR 90.11(c) and maintains the methods
of filing, allowing petition submissions
by fax, email, and mail, but strongly
encourages that all petitions be filed
electronically with the Department
through the Department’s website. Due
to built-in quality control measures,
online filing ensures that petitions are
complete when filed, which improves
the overall processing time of all
petitions by minimizing the need for the
Department to return incomplete
petitions. Individuals requiring
assistance with online filing may
contact their nearest one-stop center or
their State’s rapid response unit.
Proposed paragraph (e) is a new
provision that implements sec. 224 of
the Act, requiring the Department to
take specific actions when the ITC
issues an affirmative determination on
the investigation under sec. 202 or 421
of the Act, or issues an affirmative final
determination under sec. 705 or 735 of
the Tariff Act of 1930. This language
follows the statutory requirements.
Proposed paragraph (f) revises 29 CFR
90.12 and provides the Department’s
procedures for acceptance of a petition.
Upon receipt of a petition, the
Department will make an initial
determination of validity, which will be
limited to checking whether all required
petition elements are included. Once a
petition has been determined to be
valid, the Department will begin an
investigation.
Proposed paragraph (g) is new and
provides that if the Department receives
multiple petitions for the same group of
workers, the petition date from the first
petition filed will be used. This reflects
current practice and ensures fairness to
workers.
Proposed paragraph (h) was
previously part of 29 CFR 90.12 and
provides that the Department will
publish a notice of the petition in the
Federal Register and on the
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Department’s website announcing the
initiation of an investigation into all
valid petitions filed.
Proposed paragraph (i) modifies 29
CFR 90.32 and reinforces that petitions
and any attachments included are
public documents. As such, the
Department will publish redacted
versions of petitions on the
Department’s website. This will remove
the need for individuals to file a FOIA
request for copies of posted petitions.
Lastly, proposed paragraph (j) is a new
provision and is part of the States’
responsibilities under sec. 239 of the
Act to ensure that petitions that have
not been filed with the Department, as
required under the Act, are identified
and filed with the Department. The
proposed language requires that if a
petition is filed with the State, upon
receipt of that petition, the State must
ensure the Department has received a
copy of the petition or the State must
forward the petition to the Department.
Section 618.210
Investigation
Proposed § 618.210 describes the
investigation process, authorized under
secs. 221 and 222 of the Act, and
updates the language from 29 CFR part
90 to reflect current procedures and
practices in the areas of timing; period
of investigation; investigative processes;
protection of confidential business
information; termination of an
investigation; the investigative record;
and site visits. Proposed paragraph (a)
reiterates the requirement in proposed
§ 618.205(f) that before an investigation
can begin, the Department must
determine that the petition is valid.
Proposed paragraph (b) expands on 29
CFR 90.12 and defines the period of
investigation to be used during
investigations under this subpart B. The
statutory timeframe for completing the
investigation begins once a petition is
filed with the Department and
determined to be valid. Proposed
paragraph (c) is new and explains the
steps the investigator may take in order
to render a determination regarding
whether to certify a petition. It also
identifies commonly used sources of
information, providing added detail,
structure, and transparency to
stakeholders about the investigation
process.
Proposed paragraph (d) derives from
sec. 222(d)(3)(C) of the Act and updates
the language from 29 CFR 90.32 to
reflect the availability of information
and protection of confidential business
information received during the
investigation process. This provision
reiterates that the Department will not
disclose confidential business
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information without the consent of the
submitting firm or a court order.
Paragraph (e) is new and describes the
conditions under which the Department
may terminate an investigation. If an
investigation is terminated, the
Department will inform the petitioner
and publish a notice in the Federal
Register and on the Department’s
website. This proposed paragraph also
provides that the Department may retain
the original impact date for terminated
petitions if the petition is later
reinstated or a valid petition is filed for
the same group of workers. A
terminated investigation is subject to
reconsideration and judicial review (see
proposed § 618.245).
Proposed paragraph (f) is new and
describes the contents of the
investigative record of a determination.
The investigative record will not
include documents covered by attorney
work-product protection, such as
documents prepared in anticipation of
litigation; documents covered by the
attorney-client privilege, such as
confidential communications with
counsel seeking legal advice; documents
covered by the deliberative process
privilege, such as early drafts of
determination documents; and other
information otherwise exempt from
disclosure. Proposed paragraph (g)
expounds upon 29 CFR 90.12 and
authorizes the use of site visits,
previously called field visits, during the
investigation to collect or validate
information furnished by petitioners or
to gather other relevant information.
Section 618.215 Public Hearings
Proposed § 618.215 discusses the
provision governing public hearings
and, other than updating regulatory
citations, there are only a few changes
from 29 CFR 90.13. These changes are
as follows: Proposed paragraph (a)(3) is
new and has been added to assist the
parties in clearly communicating the
issues to be heard; proposed paragraph
(c) substitutes that a notice of public
hearings will be published in the
Federal Register within ‘‘a reasonable
period of time’’ rather than at least 7
calendar days before the scheduled
hearing, because the 7-day requirement
may delay hearings; and proposed
paragraph (j) revises 29 CFR 90.13(j) to
allow for transcripts and recordings of
hearings in place of being
stenographically recorded.
Section 618.220 Use of Subpoena
Proposed § 618.220 explains the use
of subpoena authority available to the
Administrator under sec. 222(d)(3)(B) of
the Act. It modifies 29 CFR 90.14 by
providing factors the Department will
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use in determining the need for issuance
of a subpoena during the investigation
process. States are also provided
subpoena authority in this NPRM, as
discussed in subpart H. Proposed
paragraph (a) is unchanged from 29 CFR
90.14(a). Proposed paragraph (b) is new
and describes five factors the
Department will consider when
determining whether to issue a
subpoena. Proposed paragraph (c) is
unchanged from 29 CFR 90.14(c).
Proposed paragraph (d) is substantially
the same as 29 CFR 90.14(d), but
includes a new reference to Rule 5(b) of
the Federal Rules of Civil Procedure,
which describes service and filing
procedures of court pleadings and other
papers. Proposed paragraph (e) is
substantially the same as 29 CFR
90.14(b).
Section 618.225 Criteria for
Certification of a Group of Workers
Proposed § 618.225 substantially
updates 29 CFR 90.16(b) to describe the
criteria the Department uses to certify a
group of workers, which has expanded
significantly under sec. 222 of the Act.
It also identifies factors under
consideration in determining whether a
criterion is met. The revised language
provides transparency on how
investigations are conducted, the
importance of information collected,
and how the information is used. The
proposed new provisions, listed below,
reflect Congressional intent, existing
Departmental practices and, in some
instances, thresholds for select criteria.
Proposed paragraph (a) covers
increased imports and provides the
criteria for certification of a group of
workers under sec. 222(a) of the Act.
While 29 CFR 90.16(b) covered
certifications based on increased
imports, the modifications to the
provision are significant enough to
deem this a new provision. Proposed
paragraph (a)(1) describes five possible
bases for an increased imports
certification. Proposed paragraph (a)(2)
describes the four criteria that must be
met in order to issue a certification
under increased imports.
Proposed paragraph (b) covers shift in
production of articles and supply of
services by the group of workers’ firm to
another country and provides the
criteria for certification of a group of
workers under sec. 222(a) of the Act.
Proposed paragraph (b)(1) describes the
two possible bases of a shift in
production certification. Proposed
paragraph (b)(2) describes the three
criteria that must be met in order to
issue a certification under a shift.
Proposed paragraph (c) covers foreign
acquisition and also provides the
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criteria for certification of a group of
workers under sec. 222(a) of the Act.
The introductory text to proposed
paragraph (c) describes the two possible
bases for a foreign acquisition
certification. Proposed paragraphs (c)(1)
through (3) describe the three criteria
that must be met in order to issue a
certification under foreign acquisition.
Proposed paragraph (d) covers the
certification of a group of workers as a
supplier under sec. 222(a) of the Act.
Proposed paragraphs (d)(1) through (5)
describe the five criteria that must be
met in order to issue a certification for
a supplier.
Proposed paragraph (e) covers the
certification of a group of workers as a
downstream producer under sec. 222(b)
of the Act. Proposed paragraphs (e)(1)
through (5) describe the five criteria that
must be met in order to issue a
certification as a downstream producer.
Proposed Paragraph (f) implements
sec. 222(e) of the Act related to a group
of workers in a firm or firms named as
a member of a domestic industry for an
affirmative determination issued by the
ITC. Proposed paragraphs (f)(1) through
(3) describe the three criteria that must
be met in order to issue a certification
based on an affirmative determination
issued by the ITC.
Proposed paragraph (g) is new and
describes the Department’s longstanding
interpretation of the 1-year period prior
to the petition date for production and
sales declines.
Proposed paragraph (h) is new. The
Department is making explicit an
eligibility requirement contained in sec.
222(c)(2) of the Act, which states that
firms, or appropriate subdivisions
thereof, that engage in exploration or
drilling for oil and natural gas must be
considered to be engaged in the
production of oil or natural gas.
However, the Department will not
interpret this provision to prevent
workers from meeting criteria set forth
in other portions of the Act. A petition
covering a group of workers providing
oil and gas services may be investigated
as both a firm engaged in the supply of
exploration or drilling services and a
firm engaged in the production of oil or
natural gas. This means the Department
may conduct a parallel investigation to
determine whether the petitioning
group of workers meets any criteria for
certification of worker groups set forth
in proposed § 618.225.
Proposed paragraph (i) is new and
provides that staffed workers, working
on or off-site, will be classified as part
of the worker group of the firm. The
Department will specify in the
determination document that all
members of the affected worker group
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include teleworkers and staffed workers,
but will not list specific leasing
companies or temporary staffing
entities. The Department will continue
to collect information from the subject
firm in order to establish the leasing or
temporary staffing entity or entities over
which the workers’ firm has operational
control. The Department will provide
contact information to States for the
aforementioned leasing or temporary
staffing entities to assist them in
notifying workers. States that discover
additional leasing or temporary staffing
entities employing staffed workers who
are members of a certified worker group
may serve those workers without the
delay of filing a new petition or
requesting an amendment to the
certification. This change in procedure
will enhance service delivery to
workers. Although every case is decided
on its own merits, proposed paragraphs
(i)(1) through (9) list the control
questions used to evaluate operational
control and have been added to ensure
uniformity in the Department’s
decisions. The Department is also
considering an alternative approach to
this provision, changing its previous
interpretation and not including staffed
workers as part of the worker group of
the firm. It would instead require staffed
workers to file a separate petition to
seek certification as their own worker
group. The Department seeks comments
on both proposed paragraph (i) and the
alternative approach the Department is
considering.
Proposed paragraph (j) codifies
administrative guidance issued as part
of the TAAEA operating instructions.
This section explains that teleworkers,
also known as remote workers, may be
part of a certified worker group without
being specifically referenced in a
certification document, insofar as their
position is affected by the same trade
effects as other workers in the worker
group. Teleworkers should not be
excluded simply because they are
teleworkers. Rather, they should be
considered part of the worker group
when they otherwise fit the description.
Proposed paragraph (k) is new and
provides that workers employed by a
firm that is a successor-in-interest are
members of a worker group even if they
are not specifically mentioned within
the determination document issued
under proposed § 618.235.
Section 618.230 Evidence
Proposed § 618.230 is new and
provides a description of the types of
evidence to be gathered and used in
evaluating the criteria for certification
during the investigation process under
§ 618.210. Section 223(e) of the Act
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requires the Department to establish
standards, including data requirements,
for investigations under sec. 221 and for
making determinations under sec.
223(a). Section 222(d) of the Act
authorizes the Department to collect
such information as necessary to make
a determination. There is no similar
provision in 29 CFR part 90 as this
provision originated with TGAAA.
Proposed paragraph (a) provides that
the Department will seek to verify all
information provided in support of a
criteria as accurate, complete, and
current as part of considering the
evidence. Proposed paragraph (b)
provides that evidence may be accepted
from sources including, but not limited
to, petitioners, company officials,
current and former workers of the firm,
customers of the firm, trade
associations, union representatives,
Federal agencies, and reliable public
sources such as State agencies and
academic institutions. Another example
of a party who may produce evidence is
a party who submits information in
response to the publication of the
petition in the Federal Register or the
Department’s website. Proposed
paragraph (c) provides that the
Department may share information
submitted in support of a petition, for
verification purposes, with any entity as
deemed appropriate for completing the
investigation. For example, the
Department may share a media article
submitted by the petitioner in support
of the petition with the company official
to verify its accuracy.
Section 618.235 Determinations
Proposed § 618.235 clarifies the
process the certifying officer will use for
issuing a determination based on the
findings of the investigation as set forth
in proposed § 618.230. This is similar to
29 CFR 90.16, but reorders it, condenses
the description of types of
determinations into four categories, and
adds a discussion of the oil and gas
provision at sec. 222(c)(2) of the Act.
The NPRM removes the reference in 29
CFR 90.16(a) to the issuance of a
determination within 60 days. The
statutory period is 40 days, as provided
in sec. 223(a) of the Act. Proposed
paragraph (a) describes the affirmative
determination or certification category
of determinations. It contains
predominantly the same information
provided in 29 CFR 90.16, but adds a
discussion of the impact date and
coverage of workers under the petition.
Proposed paragraph (b) covers a
negative determination or denial and
derives from 29 CFR 90.16(f) but also
incorporates additional language to
explain the Department’s process more
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fully and to align it with proposed
paragraph (a). Proposed paragraph (c)
covers determinations and derives from
29 CFR 90.16(d). Excluded is language
that has been incorporated from 29 CFR
90.16 into proposed paragraphs (a) and
(b).
Proposed paragraph (d) covers
amended determinations and codifies
the practice of amending a certification
to limit or expand a worker group or
other elements of a certification, which
aligns with longstanding practice and
administrative guidance. Proposed
paragraph (d) also states the
Department’s position that it reserves
the right to begin reconsideration
proceedings of a denial without a
request for reconsideration being filed.
Proposed § 618.250 of this subpart B
also discusses this issue. In addition,
this paragraph states that a termination
will not take effect until the period in
which to request reconsideration has
elapsed.
Section 618.240 Termination of
Certification
Proposed § 618.240 discusses the
termination of certifications under sec.
223(d) of the Act, updating the
regulations to reflect current practice
and procedures through minor revisions
to 29 CFR 90.17. Any party eligible
under proposed § 618.225 to submit a
petition may file for a reconsideration of
a terminated or partially terminated
certification. A decision to uphold the
termination of a certification after
reconsideration is a final determination
by the Department and subject to
judicial appeal.
Proposed paragraph (a) restates sec.
222(d) of the Act and is unchanged from
29 CFR 90.17(a). Proposed paragraph
(a)(1) is new and describes that unless
a termination is issued under proposed
§ 618.240, all certifications under
proposed § 618.235(a)(1)(ii) are
considered terminated the day following
the expiration date of the certification.
And as provided in the definition of the
term ‘‘certification period’’ in proposed
subpart A, a certification expires 2 years
after the certification date. Proposed
paragraph (a)(2) is new and provides
that all ITC certifications, described at
§ 618.225(f), are considered terminated
the day following the expiration date of
the certification, which is 1 year
following the date of publication of the
determination in the Federal Register.
Proposed paragraphs (a)(1) and (2) have
been added to make clear that the
expiration date of a certification serves
the same purpose as a notice of
termination as described further in
proposed paragraph (e) of this section.
The expiration date cannot be extended,
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however, so if it is known that further
separations or threat of separations will
continue to exist after that date, a new
petition must be filed.
Proposed paragraph (b) includes the
notice language from 29 CFR 90.17(a)
and updates it to include to whom the
notices will be made. It also requires the
State to notify the workers in the worker
group of the initiation of the
investigation. Proposed paragraph (c)
updates 29 CFR 90.17(b) and describes
how interested parties may comment on
a notice of the initiation of an
investigation to terminate a certification.
Proposed paragraph (d) is new and
describes the information that will be
considered in determining whether to
terminate a certification. It also provides
that the period of investigation will
remain the same as the period of
investigation for the original
certification.
Proposed paragraph (e) combines 29
CFR 90.17(d) and (e) to provide details
on the process of issuing a notice of
termination or notice of partial
termination, as well as detailing to
whom the notices will be issued. It
requires States to notify the worker
group of the termination or partial
termination. It also states that a
termination will not take effect until the
period in which a party may request
reconsideration has elapsed. Proposed
paragraph (f) updates 29 CFR 90.17(f)
and provides detail on the process of
issuing a notice of continuation of
certification, as well as detailing to
whom the notice will be issued. It
requires States to notify the worker
group of the continuation of
certification. Proposed paragraph (g) is
new and allows for reconsideration of a
determination of termination or partial
termination of a certification. It refers
parties to § 618.245.
Section 618.245 Reconsideration of
Termination of an Investigation, Denial,
or Termination or Partial Termination of
Certification
Proposed § 618.245 contains the
process for reconsiderations of
determinations on petitions. There are
several changes from 29 CFR 90.18,
enumerated below, to provide
additional clarifications and to enhance
efficiency of investigations. The
Department encourages comments
addressing the impact of this revised
process. Proposed paragraph (a) updates
29 CFR 90.18(a) and (b) to clarify that
the reconsideration process allows for a
party to apply to the Department to
reconsider the termination of an
investigation, as described in proposed
§ 618.210(e); a negative determination
issued under proposed § 618.235(b); or
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a termination or partial termination of
certification issued under proposed
§ 618.240. It also lists the information
required as part of the application in
order for it to be complete and valid.
Proposed paragraph (b) aligns with the
last sentence in 29 CFR 90.18 (a) and
maintains the requirement that all
applications must be in writing and
must be filed no later than 30 days after
the notice of the termination of the
investigation, negative determination, or
termination or partial termination of a
certification has been published in the
Federal Register. Proposed paragraph
(c) is new and addresses the process for
reviewing and returning an incomplete
application for reconsideration. The
refiling of the complete application
must occur within the 30-day period
identified in proposed paragraph (b) or
within 5 days of receipt if the
application is returned less than 5 days
prior to the end of that period.
Proposed paragraph (d) addresses the
publication of a notice in the Federal
Register and on the Department’s
website of the application and the
initiation of an investigation on
reconsideration. The Department
proposes to eliminate 29 CFR 90.18(c),
which required a determination to
accept the application for
reconsideration before conducting an
investigation. The Department
concluded that eliminating the step
requiring the certifying officer to make
and issue a determination on whether or
not to initiate a reconsideration will
decrease time and burden and simplify
the process. The Department will
initiate an investigation on all complete
reconsideration applications. Proposed
paragraph (e) is substantially the same
as 29 CFR 90.18(f). Proposed paragraph
(f) is new and describes the procedures
for investigation on reconsideration. It
also provides that the period of
investigation will remain the same as
the period of investigation for the
original certification. Proposed
paragraph (g) combines and updates 29
CFR 90.18(h) and (i). It also includes the
requirement of the State to notify a
worker group of a certification in
accordance with proposed § 618.820 in
subpart H. Proposed paragraph (g) also
states that should a reconsideration
investigation extend past 60 days, the
Department will contact the applicant
for a directive to continue or terminate
the investigation. If the applicant directs
the Department to continue its
investigation, the Department will issue
a notice of determination on
reconsideration, which will be the
Department’s final determination. If the
applicant directs the Department to
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terminate the investigation, the
Department will issue a notice of
termination of investigation, which will
render the initial determination the
Department’s final determination.
Section 618.250 Amendments of
Certifications
Proposed § 618.250 provides the
process for seeking amendments to
certifications. This proposed section is
new, though in practice the Department
has been issuing amendments for many
years. Section 223 of the Act establishes
that a determination be issued for ‘‘any
group’’ that meets the eligibility criteria
of sec. 222 of the Act. The Department
interprets that provision to mean that,
should new or supplemental
information support a clarification of
the certified worker group, the
Department may issue an amended
certification under the same petition
number and publish the amendment in
the Federal Register and post it on the
Department’s website. Proposed
paragraph (a) describes the types of
amendments and explains that
amendments must not extend the
impact date as that would go beyond the
period covered by the certification itself.
Common reasons for amendments
include changes to the ownership of a
successor firm, correcting any technical
errors made, and clarifying the worker
group. Clarifying the worker group does
not include adding teleworkers or
staffed workers, as they are considered
part of the worker group.
Proposed paragraph (b) includes a
new requirement that amendments be
requested through the regular petition
process, which is a change to current
practice. This change will help
formalize the amendment process and
ensure that all individuals are aware of
and able to use the process. Proposed
paragraph (c) requires the Department to
publish a notice of the amendment in
the Federal Register and requires the
States to notify any additional certified
trade-affected workers impacted by the
amendment.
Section 618.255 Judicial Review of
Determinations
Proposed § 618.255 explains the
process for judicial review of
determinations issued under proposed
§§ 618.240(g) and 618.245. This is a
significant update to 29 CFR 90.19.
Section 284 of the Act allows for
judicial review of only ‘‘final
determinations.’’ Under existing
regulations, all determinations rendered
by the Department are final
determinations subject to judicial
review. In the NPRM, the Department is
defining only determinations on
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reconsideration issued under proposed
§§ 618.240(g) and 618.245 as final
determinations and, therefore, only
these determinations are subject to
judicial review through the United
States Court of International Trade
(USCIT). Proposed paragraph (a) is
substantially the same as 29 CFR
90.19(a), but eliminates the citations
within part 90. Proposed paragraph (b)
is new and defines only determinations
on reconsideration issued under
proposed §§ 618.240(g) and 618.245 as
final determinations subject to judicial
review through the USCIT. Proposed
paragraphs (c) and (d) are substantially
the same as 29 CFR 90.19(b) and (c),
with only minor language changes to
reflect modernization. Proposed
paragraph (e) contains an updated
reference and title from 29 CFR
90.19(d). Proposed paragraphs (f) and (g)
are new and provide clarity on the
determinations subject to judicial
review under sec. 284 of the Act and
specify that USCIT rules apply to filings
with the court.
Section 618.260 Study Regarding
Certain Affirmative Determinations by
the Commission
Proposed § 618.260 provides for a
study and report to be undertaken by
the Department in response to certain
ITC affirmative determinations under
sec. 224 of the Act. This is an update to
the requirements at 29 CFR 90.21. There
are no substantial changes, but the
additional detail provided explains
what information the study will
include.
Section 618.265 Availability of
Information to the Public
Proposed § 618.265 discusses the
availability of information under this
part 618 and is largely unchanged from
29 CFR 90.32, except to indicate that
copies of petitions, in redacted form,
will be available on the Department’s
website.
29 CFR 90.36, related to the
computation of time for purposes of
subpart B, is proposed for deletion as it
does not apply to calculations for
petitions or reconsiderations. Individual
sections of this proposed subpart B
address time periods as appropriate.
C. Subpart C—Employment and Case
Management Services
Proposed subpart C sets forth
requirements under sec. 235 of the Act
for States to provide employment and
case management services to tradeaffected workers. Proposed subpart C
makes significant changes to the
employment and case management
services provisions in 20 CFR part 617
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60165
because the enactment of TGAAA
altered these requirements. However, 20
CFR 617.20 and 617.21 contain many of
the same elements now contained in
sec. 235 of the Act in proposed subpart
C. TAARA 2002 required States to
‘‘make every reasonable effort’’ to
provide case management services to
trade-affected workers through programs
other than the TAA Program. TGAAA
enacted and funded a requirement to
offer case management services to tradeaffected workers. TAARA 2015
continues these provisions and requires
States to provide employment and case
management services, either through
TAA Program funding, through
programs other than the TAA Program,
or through a combination of both.
Proposed subpart C also updates 20
CFR part 617 to reflect changes to the
TAA Program and related workforce
development programs due to the
authorization and implementation of
WIOA. Proposed subpart C emphasizes
the integration of the TAA Program into
the one-stop delivery system established
under WIA and continued under WIOA.
Some key additions within proposed
subpart C include requiring initial
assessments for trade-affected workers;
clarifying the provision of required case
management services; and prescribing
requirements for IEPs.
Section 618.300 Scope
Proposed § 618.300 discusses the
scope of this subpart and does not have
a directly comparable section in 20 CFR
part 617. This proposed section
describes the TAA Program benefits that
States must make available and their
required integration with the
reemployment and career services
provided through the one-stop delivery
system established under WIOA. States
must provide trade-affected workers
with seamless delivery of services and
benefits described in subpart C to help
them return to employment as quickly
as possible. Providing timely
employment and case management
services is important for improving the
efficiency and effectiveness of the TAA
Program. Immediately conducting an
assessment improves participation rates,
gives trade-affected workers more time
to consider their options, and leads to
better employment, retention, and postprogram earnings outcomes.
The Act requires States to provide
services to two groups of workers: (1)
Members of a group of workers covered
by a petition for TAA filed by, or on
behalf of, such group of workers; and (2)
members of a worker group covered by
a petition that the Department has
certified. Under sec. 221(a)(2)(A) of the
Act, the Governor must provide rapid
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response services and appropriate
WIOA career services to groups of
workers for whom a petition has been
filed under subpart B. States must
provide these services at the time of
filing, whether or not the petition has
been, or eventually will be, certified or
denied. Once covered by a certification,
States must offer trade-affected workers
employment and case management
services, including counseling, testing
and placement services, and
information on supportive and other
services. This requirement is based on
new language in secs. 235 and 239(a),
(e), and (g) of the Act, and the
Congressional Declaration of Policy in
sec. 125(a) of TAARA 2002, which
states that trade-affected workers ‘‘are
eligible for transportation, childcare,
and healthcare assistance, as well as
other related assistance under programs
administered by the Department of
Labor.’’ Section 239(f) of the Act
requires that these services be
coordinated with workforce activities
and services under title I of WIOA and
provides the Department with the
authority to establish the
responsibilities and requirements for
such coordination. These requirements
are not new. Many of the employment
and case management services
discussed in this subpart are contained
in 20 CFR 617.20 and 617.21.
Section 618.305 The Trade
Adjustment Assistance Program as a
One-Stop Partner
Proposed § 618.305 is new and
requires States to ensure that their TAA
Program, as a required partner in the
one-stop delivery system, complies with
one-stop partnership requirements such
as sharing staff, materials, and financial
resources. Coordination with the
broader public workforce system
established under WIA, now WIOA, is
required at 20 CFR 617.59(h). This
section expands upon the existing rules
and updates them to reflect the
requirements established under WIOA.
The partnership activities help ensure
the seamless delivery of necessary
services, including a comprehensive
array of appropriate services not funded
under the TAA Program, to groups of
workers covered by filed petitions and
to members of worker groups for whom
a certification has been issued. Services
provided before the certification of a
petition for TAA cannot be charged to
the TAA Program. Services provided by
partner programs must not be
duplicated using TAA Program funds.
However, there may be a need to
supplement the previous services if they
do not meet the requirements of the
TAA Program. Proposed paragraph (a)
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reiterates that the TAA Program is a
required partner under WIOA. Proposed
paragraph (b) requires that the TAA
Program meet the WIOA one-stop
partner requirements, including paying
infrastructure costs in areas where the
TAA Program is being carried out.
Proposed paragraph (c) provides that,
for locations where the TAA Program is
being carried out, States must ensure
that their administration of the TAA
Program complies with the one-stop
partnership requirements, including
appropriate cost allocation for
infrastructure and operating costs of
one-stop centers, and the terms and
conditions of the memorandum of
understanding established under the
WIOA Final Rule at 20 CFR 678.500.
If the TAA Program is carried out in
a local workforce development area (or
local area), the State must provide
access to the TAA Program services in
at least one of the local area’s
comprehensive one-stop centers in
accordance with 20 CFR 678.305(d) and
WIOA sec. 121(b)(1)(A)(i). Access to the
TAA Program occurs in one of three
ways:
• Option 1. Having a program staff
member physically present at the onestop center;
• Option 2. Having a staff member
from a different partner program
physically present at the one-stop center
and appropriately trained to provide
information to customers about the
programs, services, and activities
available through all partner programs;
or
• Option 3. Making available a direct
linkage through technology to a program
staff member who can provide
meaningful information or services.
The options above offer a wide range
of possibilities to partners. Option 2
could require varying levels of
assistance depending on the tradeaffected worker’s needs. For example,
this could be as simple as having an
adequately trained WIOA staff member
providing basic program information to
a one-stop customer regarding group
and individual eligibility requirements
of the TAA Program. In this example,
the one-stop center staff has been
trained on TAA Program eligibility
requirements as well as how to search
for and file a TAA Program petition.
Once the Department renders a
determination on a petition, the onestop center staff will then connect the
worker to appropriately trained one-stop
center staff who can further assist them.
If the petition is certified, the tradeaffected worker is eligible to apply for
individual benefits and the
appropriately trained one-stop center
staff must guide them through the
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application and enrollment process.
This option allows the trade-affected
worker to receive high-quality service
through the one-stop center, in a timely
manner. In this example, it would be
essential that the Wagner-Peyser Act
Employment Service staff person
document their time and effort to ensure
that the charges to the appropriate
program, namely the TAA Program, for
salaries and wages are based on records
that accurately reflect the work
performed, consistent with Federal cost
principles in the Office of Management
and Budget’s (OMB’s) Uniform
Guidance at 2 CFR 200.430.
Option 3, a direct linkage, can take
many forms as well. As described in 20
CFR 678.305(d)(3), a ‘‘direct linkage’’
means providing a direct connection at
the one-stop center within a reasonable
time, by phone or through a real-time
web-based communication, to a program
staff member who can provide program
information or services, including career
services, to the customer. Solely
providing a phone number, website,
information, pamphlets, or materials
does not constitute a ‘‘direct linkage.’’
The flexibility provided through the
three optional methods for assuring
customer access to required one-stop
partner services and activities at the
comprehensive centers ensures that the
TAA Program remains accessible
through the one-stop center network.
Section 618.310 Responsibilities for
the Delivery of Employment and Case
Management Services
Proposed § 618.310 explains the
State’s responsibilities for delivering
and making available employment and
case management services. These
responsibilities are from sec. 235 of the
Act. Proposed paragraph (a) addresses
the information that States must provide
to trade-affected workers. The
information requirements are detailed in
subpart H.
Proposed paragraph (b) lists the
State’s specific responsibilities for
delivering employment and case
management services. The proposed
regulatory text would modify 20 CFR
617.20(b). The language in 20 CFR
617.20 was based on workforce
programs that have been replaced by
WIOA; it also uses outdated language to
describe reemployment services, now
known under the TAA Program as
employment and case management
services. Proposed paragraph (b) does
not significantly change the activities
and services that States must provide or
make available to trade-affected
workers. States must: (1) Interview and
review training opportunities for each
trade-affected worker; (2) inform trade-
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affected workers of the services and
allowances available; (3) help them
secure suitable employment; (4) accept
applications for training; (5) help them
secure appropriate training; (6) monitor
their training progress; (7) devise a
training-waiver process; (8) provide
access to workshops and other
employment resources; and (9)
coordinate other employment benefits
that workers may be eligible for.
Proposed paragraph (b) reorganizes 20
CFR 617.20(b). Paragraph (b)(1) is
included in proposed § 618.310(b).
Paragraph (b)(2), registering AAWs for
work, is omitted from the NPRM.
Registering AAWs for work is a function
of the Wagner-Peyser and UI programs.
Although TAA Program staff may assist
with this process, it is not an
employment and case management
service listed under sec. 235 of the Act.
Paragraph (b)(3) is covered in both
proposed § 618.310(b)(2) and proposed
§ 618.816 of subpart H. Paragraphs (b)(4)
and (6) are retained as proposed
§ 618.310(b)(3). Paragraph (b)(7) is
covered in subparts F (training) and D
(job search and relocation allowances).
Paragraph (b)(8) is covered through the
comprehensive and specialized
assessment and IEP discussed in this
subpart. Paragraphs (b)(9) through (12),
regarding the selection of, referral to,
and determinations on training, are
covered in proposed § 618.310(b)(5) and
(6) and in more detail in subpart F of
this NPRM. Paragraph (b)(13), regarding
the periodic review of reemployment
plans, is covered in proposed § 618.350.
Paragraph (b)(14), regarding periodic
review of waivers, is included as
proposed § 618.310(b)(7). Paragraph
(b)(15), regarding the coordination of
services with WIOA, is divided into
proposed § 618.310(b)(8) and (9).
Proposed paragraph (c) implements
sec. 235 of the Act by requiring States
to provide, if appropriate, specific
employment and case management
services to trade-affected workers.
Proposed paragraph (c)(1) requires
States to assess workers’ skills and
service needs through assessments and
by identifying appropriate employment
goals and barriers to employment. These
goals should be based on a realistic
assessment of available training; the
worker’s knowledge, skills, and
abilities; and the gap between them and
those required for the worker’s
identified employment goal.
Proposed paragraph (c)(2) requires
States to inform trade-affected workers
of the availability of an IEP to identify
employment goals and objectives, and
appropriate training and services
needed to achieve those goals and
objectives. An IEP is a combination of
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the ‘‘training plan’’ contained in 20 CFR
617.20(b)(8) and the ‘‘reemployment
plan’’ in 20 CFR 617.20(b)(13). The
requirement to periodically review the
reemployment plan in 20 CFR
617.20(b)(13) is carried forward as a
requirement for an IEP under this
NPRM. For workers seeking training or
job search allowances, § 618.350(a)
requires States to provide workers with
an IEP, though this is not a requirement
for eligibility for benefits.
Proposed paragraph (c)(3) requires the
State to provide information to tradeaffected workers on how to apply for
financial aid, including referring
workers to educational opportunity
centers under the Higher Education Act
of 1965, as amended (HEA). In addition,
States must notify workers that they
may request financial aid administrators
to use current year income data, rather
than preceding year income data, to
determine the workers’ financial need.
This is required by sec. 235(4) of the
Act. There is no corresponding
requirement in the existing rule.
Proposed paragraph (c)(4) requires
States to provide, if appropriate, certain
services to trade-affected workers,
including short-term, prevocational
services, including development of
learning skills, communications skills,
interviewing skills, punctuality,
personal maintenance skills, and
professional conduct to prepare workers
for employment or training. These are
referred to commonly as ‘‘soft skills’’
within the public workforce system.
These services are required by sec.
235(5) of the Act. There is no
corresponding provision in the existing
rule.
Proposed paragraph (c)(5) requires
States to provide, if appropriate,
individual and group counseling,
including job search and placement
counseling. These services can be
provided in one-on-one counseling
sessions or in workshops at a one-stop
center. These services are referenced
indirectly in 20 CFR 617.20 and 617.21
and are required by sec. 235(6) of the
Act. This NPRM uses more modern
terminology that reflects the changes to
the public workforce system that have
occurred through the transition from
JTPA, to WIA, and now to WIOA.
Proposed paragraph (c)(6) requires
States to provide various kinds of
employment statistics, including local,
regional, and national labor market
information, to ensure trade-affected
workers make informed decisions about
their employment goals and training
needs. Part 617 of title 20 of the CFR
references the provision of labor market
information to trade-affected workers in
relation to job search activities,
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60167
relocation, and training programs.
Section 235(7) of the Act requires States
to provide this information.
Lastly, proposed paragraph (c)(7)
requires States to inform trade-affected
workers about supportive services
available through partner programs, as
required by sec. 235(8) of the Act. This
requirement also was contained in 20
CFR 617.20(b)(5) and 617.21(e). The
TAA Program reimburses limited travel
and subsistence costs for training
outside the worker’s commuting area
and provides for all training-related
expenses (see subpart F). However, the
TAA Program does not pay for vehicle
repairs, local travel costs, childcare, or
other similar supportive services
traditionally paid for under WIOA.
Proposed paragraph (d) further
defines what it means to ‘‘make
available’’ the employment and case
management services described in this
subpart. TEGL No. 16–16, ‘‘One-Stop
Operations Guidance for the American
Job Center Network,’’ discussed the
requirement that career services under
WIOA be ‘‘made available.’’ The
Department there concluded that this
phrase had the same meaning as
‘‘provided.’’ The Department reaches
the same conclusion under the Act.
While not all employment and case
management services will be
appropriate for all trade-affected
workers, they must be made available to
them. This requires informing tradeaffected workers of the available
services; providing those services if
requested or if the services are deemed
appropriate for the worker; and
documenting the services that they
offered, any that were not offered, and
why those services were not offered.
Section 618.325 Integrated Service
Strategies and Workforce Innovation
and Opportunity Act Co-Enrollment
Proposed § 618.325 does not have a
comparable section in 20 CFR part 617.
Proposed § 618.325 discusses coenrollment between the TAA Program
and WIOA and other programs to ensure
the availability of a comprehensive
array of services for trade-affected
workers and the integration of
workforce development programs. The
Department long ago concluded that coenrollment of trade-affected workers in
the dislocated worker program under
WIOA, WIA, and title III of JTPA before
that, is the best way to integrate services
and ensure successful reemployment of
trade-affected workers, and States have
been co-enrolling in accordance with
administrative guidance. The State also
should explore partnerships with
community and faith-based
organizations, including organizations
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not affiliated with the broader WIOA
system, to ensure the provision of
appropriate, holistic services to tradeaffected workers, their families, and
their trade-affected communities. This
integration of service strategies arises
from the requirement in sec. 239 of the
Act to make available employment and
case management services, such as
counseling, testing, placement services,
and supportive and other services for
trade-affected workers.
Co-enrollment of TAA Program
participants in the WIOA dislocated
worker program drastically improves
the quality of service to trade-affected
workers and improves participant
outcomes. Based on data reported by the
States between FYs 2009 and 2017, TAA
participants who are co-enrolled in the
dislocated worker program under WIA/
WIOA have superior post-program
employment results, by a consistent
margin, in comparison to TAA
participants who were not co-enrolled
in a WIA/WIOA dislocated worker
program. Moreover, these data show no
adverse impact on outcomes under the
dislocated worker program as a result of
co-enrolling TAA Program participants.
Additionally, TAA Program participants
co-enrolled in the dislocated worker
program have:
(1) Higher training participation (75
percent versus 51 percent for those not
co-enrolled);
(2) Higher training completion rates
(78 percent versus 71 percent for those
not co-enrolled); and
(3) Higher credential attainment (73
percent versus 62 percent for those not
co-enrolled).
All of these outcomes are correlated
with higher performance outcomes and
are statistically significant.
Proposed paragraph (a)(1) requires coenrollment of trade-affected workers in
WIOA’s dislocated worker program. Coenrollment allows for more efficient use
of public workforce system resources
and reduces barriers to program
integration. A trade-affected worker may
decline co-enrollment, which has no
effect on eligibility for benefits and
services under the TAA Program. In
implementing the co-enrollment
requirement, States must make tradeaffected workers aware that they are
being co-enrolled in the WIOA program.
Proposed paragraph (a)(2) requires
that States make available to eligible
trade-affected workers co-enrollment in
Wagner-Peyser Act Employment Service
activities, vocational rehabilitation
services, and veterans’ programs, such
as the Jobs for Veterans State Grants
program, and other one-stop partner
programs, if appropriate. When tradeaffected workers are co-enrolled
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properly in other one-stop programs,
provided timely rapid response services,
and given appropriate career services,
they return to work as quickly as
possible. Co-enrolled trade-affected
workers also can receive supportive
services that may help them complete
TAA approved training and then return
to employment. The Department expects
the TAA Program, in general, to pay for
all training and related costs and the
majority of employment and case
management services. However, tradeaffected workers often also benefit from
WIOA’s supportive services and postemployment follow-up services, which
cannot be funded through the TAA
Program.
Proposed paragraph (b)(1) emphasizes
that most trade-affected workers are
dislocated workers as defined at WIOA
sec. 3(15). Most trade-affected workers
have been laid off, are likely to be
eligible for unemployment
compensation or are otherwise attached
to the workforce, and are unlikely to
return to a previous industry or
occupation, which are the primary
eligibility criteria for the dislocated
worker program. There are only a few
barriers to WIOA eligibility. Proposed
paragraph (b)(2) recognizes that AAIWs
will generally not be eligible for the
WIOA dislocated worker program, but
in certain circumstances, such as a
general announcement of a closure, they
may meet those eligibility criteria and
must also be co-enrolled. Similarly,
some partially separated workers’ wages
and time on the job will have decreased,
but they remain employed and do not
meet any other eligibility requirements
of the WIOA dislocated worker program.
Proposed paragraph (b)(3) describes that
the broader requirement under WIOA
that certain males be registered under
the Selective Service provisions can be
a barrier to co-enrollment. There is no
Selective Service registration
requirement under the TAA Program. If
an individual knowingly and willfully
fails to register, he cannot co-enroll in
WIOA and, therefore the co-enrollment
requirement does not apply.
Section 618.330 Assessment of TradeAffected Workers
Proposed § 618.330 is new and
requires States to design an assessment
process. Section 239(g)(4) of the Act
permits the Department to require initial
assessments for all trade-affected
workers and requires the State to
‘‘perform outreach to, intake of, and
orientation for [AAWs] and [AAIWs]
covered by a certification under [the
Act].’’ States must provide all tradeaffected workers an initial assessment
after determining that they are
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individually eligible for the TAA
Program as part of the intake process.
This meets a necessary component of
the requirement at TAARA 2015 sec.
239(g)(4) that each State perform ‘‘intake
of’’ trade-affected workers covered by a
petition. Intake includes these
assessments but also the collection of
demographic information for reporting
purposes. The initial assessment must
include an evaluation of a trade-affected
worker’s skill levels (including literacy,
numeracy, and English language
proficiency), abilities (including skills
gaps), and supportive service needs.
Proposed paragraph (a) provides an
overview of assessments. Proposed
paragraph (b) provides that the States
must ensure the scheduling of the
assessment gives trade-affected 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 26-week deadlines for enrollment
in training provided under sec.
231(a)(5)(A) of the Act. Proposed
paragraph (c) provides that assessments
are created in cooperation with the
trade-affected worker with their
interests, skills, aptitudes, and abilities
discussed. Proposed paragraph (d)
requires that the results be documented
in the worker’s case file. An assessment
requires more than a review of
information available about the tradeaffected worker, their education, and
previous employment. An assessment is
an interactive process that includes the
involvement of the trade-affected
worker. Proposed paragraph (e)
discusses what to do if a partner
program conducts the assessment(s).
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 and specialized
assessment of their skills. The
Department recognizes that the lack of
uniform requirements for assessments
means that some assessments conducted
by partner programs may not meet all
TAA Program requirements for an initial
assessment. If so, the State must
supplement those partner program
assessments with additional information
to comply with § 618.335. Proposed
paragraph (f) requires that States must
explain the advantages of receiving an
assessment to trade-affected workers
and also confirms that a worker may
refuse an assessment. However, the
worker must provide any information
necessary (outside the assessment
process) that enables States to determine
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eligibility for any benefit under this part
618.
Section 618.335 Initial Assessment of
Trade-Affected Workers
Proposed § 618.335 is new and
implements sec. 239(g)(4) of the Act.
WIOA sec. 134(c)(2)(A)(iii) requires
individuals be provided with an ‘‘initial
assessment of skill levels (including
literacy, numeracy, and English
language proficiency), aptitudes,
abilities (including skills gaps), and
supportive service needs’’ as a career
service through the one-stop center. The
WIOA regulations mirror this language
at 20 CFR 678.430(a)(3). Proposed
§ 618.335 aligns the TAA Program with
WIOA and it provides the requirements
for an initial assessment of tradeaffected workers. The first step in the
process is to determine whether the
worker will need employment and case
management services and training. The
State must provide TAA Program
benefit information to trade-affected
workers no later than at the time of the
initial assessment, as discussed in
proposed § 618.816(f). However, the
State may provide this information to a
worker even earlier, upon receiving a
notice of a certified petition covering
that worker.
Proposed paragraph (a) requires that
States conduct an initial assessment for
each trade-affected worker, as
authorized by sec. 239(g)(4) of the Act.
If an initial assessment has been
completed before the trade-affected
worker enrolls in the TAA Program, the
State must use the previous assessment
and not conduct a duplicate assessment
in accordance with proposed
§ 618.330(e). Proposed paragraph (b)
lists factors that States must consider to
find the best approach to reemployment
for each particular worker. A review of
local labor market conditions will help
the State determine if any jobs are
available in the local area for which the
worker could apply. A review of the
worker’s knowledge, skills, and abilities
gained from their education and
previous employment helps the State
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 transferred to other
available employment. A review of all
barriers to the worker’s employment
will help the State identify training that
may overcome those barriers, such as
English language training or remedial
training to get a high school equivalency
degree. Any feedback from the tradeaffected worker, including disagreement
with the assessment’s conclusions, must
be documented in the case file.
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Proposed paragraph (c) explains the
State’s options for service strategies
based on the information gathered from
the initial assessment. This involves
first making a determination of whether
or not there is suitable employment
available to the trade-affected worker
and the options for moving forward.
Proposed paragraph (d) explains that if
suitable employment is not available,
the State must advise the worker to
explore available training under subpart
F.
Section 618.345 Comprehensive and
Specialized Assessment of TradeAffected Workers
Proposed § 618.345 is new and
implements sec. 235 of the Act. WIOA
sec. 134(c)(2)(A)(xii) and its
implementing regulation at 20 CFR
678.430(b)(1) require States to provide
‘‘[c]omprehensive and specialized
assessments of the skill levels and
service needs of adults and dislocated
workers, which may include . . .
[d]iagnostic testing and use of other
assessment tools; and [i]n-depth
interviewing and evaluation to identify
employment barriers and appropriate
employment goals’’ as an individualized
career service ‘‘if determined to be
appropriate in order for an individual to
obtain or retain employment.’’ WIOA
draws a distinction between basic career
services and individualized career
services as individualized career
services only are required to be
provided if it is determined appropriate.
Proposed § 618.345 aligns the TAA
Program with WIOA. Proposed
paragraph (a) requires the
comprehensive and specialized
assessment to be made available to all
trade-affected workers. Proposed
paragraph (b) explains that the tradeaffected workers’ goals and interests
must be taken into account, as well as
their location as it relates to available
local employment and whether or not it
is inside their current commuting area.
Proposed paragraph (c) reiterates
WIOA’s regulations and is meant to
ensure that States have the information
needed to help workers select
appropriate training and a viable future
career, thus increasing their chances of
successfully completing training and
finding sustainable employment.
Finally, proposed paragraph (d)
provides that States can design their
comprehensive and specialized
assessments to gather the information
necessary for determining whether the
six criteria for training approval can be
met under subpart F.
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60169
Section 618.350 Individual
Employment Plans for Trade-Affected
Workers
Proposed § 618.350 revises and
combines two separate sections of 20
CFR part 617: a ‘‘training plan’’ at 20
CFR 617.20(b)(8) and a ‘‘reemployment
plan’’ at 20 CFR 617.20(b)(13), and
implements a new process for making
available IEPs for trade-affected
workers.
Proposed paragraph (a) requires the
State to make available an IEP to all
trade-affected workers and requires the
establishment of an IEP for workers who
apply for training under subpart F or a
job search allowance under subpart D.
Proposed paragraph (b) requires that the
IEP must document both the results of
the assessment and a service strategy to
provide the trade-affected worker with
needed services for reemployment.
Proposed paragraph (c) provides the
required elements of an IEP. The IEP
must be developed jointly between the
State and the trade-affected worker.
These elements are required because
they cover most aspects of the training
and reemployment process. Proposed
paragraph (d) explains that the IEP can
be developed by a partner program, but
it must be supplemented to include the
elements required in proposed
paragraph (c) if the IEP does not already
include them. This reduces duplication
of services, while still meeting programspecific needs. Proposed paragraph (e)
requires the State to monitor the
worker’s progress toward meeting the
IEP’s elements. Proposed paragraph (f)
requires the State to modify the IEP as
necessary, and with the worker’s input.
The State also must modify the IEP
when there is a change to the tradeaffected worker’s approved training
program or revisions to receipt of
subsistence and transportation
payments. Proposed paragraph (g)
explains that a trade-affected worker
seeking a job-search allowance under
subpart D or training under subpart F
may refuse to participate in the IEP
process. However, the trade-affected
worker must provide sufficient
information, either through a partial IEP
or outside of the IEP process, for the
State to make a determination on the six
required training approval criteria or the
job-search allowance application
criteria. Failure to do so will result in
denial of the training program or
allowance. A trade-affected worker so
denied can appeal the training denial, in
accordance with provisions in subparts
D, F, and H.
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D. Subpart D—Job Search and
Relocation Allowances
Section 618.355 Knowledge, Skills,
and Abilities of Staff Performing
Assessments
Proposed § 618.355 is new and has no
comparable counterpart in existing
regulations or in administrative
guidance. The Department is proposing
this section for the first time in order to
assist States to ensure that requirements
under sec. 235 of the Act are fully
realized. TAA Program funds described
in sec. 235A of the Act may assist in
ensuring that States are able to obtain
adequate staff to perform these services.
Proposed paragraph (a) describes the
qualifications that staff performing
assessments should possess. In essence,
staff should understand what jobs in the
area are available to whom, and how
trade-affected workers may be able to
fill those jobs, either immediately or
after receiving additional training. Staff
with these qualifications can perform
assessments quickly and properly,
which helps the TAA Program run
efficiently.
Proposed paragraph (b) confirms that
the staff performing the assessments
may be from any partner program and
need not be limited to those funded
under this Act. This flexibility better
integrates the services of the TAA
Program and partner programs.
Proposed paragraph (c) references funds
available under sec. 235A(2) of the Act
to assist in training staff to meet these
recommendations.
Section 618.360 Employment and Case
Management Services for TradeAffected Workers in Training
Proposed § 618.360 is a new
clarification that is added as a result of
TAA Program oversight and monitoring
conducted by the Department. Proposed
§ 618.360 requires States to continue to
make employment and case
management services available to all
trade-affected workers considering
training (on a waiver from training in
accordance with subpart G), taking TAA
approved training, or who have
completed training. Keeping these
services available will help workers as
they move from training to
reemployment, and increases the
chances of a good return on that training
investment. Those services include
placement and referrals to appropriate
supportive services to trade-affected
workers upon their completion of
training and until they find
reemployment. Post-employment
follow-up services cannot be funded by
the TAA Program, but must be provided
through co-enrollment in WIOA.
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Proposed subpart D governs job
search and relocation allowances, which
are authorized, respectively, under secs.
237 and 238 of the Act. Proposed
subpart D consolidates provisions
contained in subparts D, E, and F of 20
CFR part 617, which implement these
allowances. Proposed subpart D largely
preserves the 20 CFR part 617
requirements for job search and
relocation allowances, with a few
substantive changes regarding a
statutory increase to the limit for job
search allowance reimbursement per
AAW and per certification to $1,250
from $800 previously; an increase in the
maximum lump-sum payment for
relocation to $1,250 from $800
previously; and the definition of
‘‘suitable employment’’ used in the
eligibility requirement for both job
search and relocation allowances,
explained below. Proposed subpart D
also contains procedural changes from
20 CFR part 617.
Finally, proposed subpart D continues
to require the use of the FTR at 41 CFR
chapters 300 through 304, in
determining amounts for use by States
to provide travel, subsistence, and
transportation benefits, and establishing
specified other requirements, to eligible
AAWs. This is not a new requirement;
the Department already requires use of
the FTR for specified purposes in 20
CFR 617.34, 617.42, and 617.45 through
617.47. However, there has been
confusion in some States as to what
travel requirements apply to the TAA
Program. Proposed subpart D, in
expanding references to the FTR,
clarifies that workers using job search
and relocation allowances are subject to
the same Federal travel rules as
employees of the Department.
Section 618.400
Scope
Proposed § 618.400 explains the scope
of this subpart D. This provision is new.
It explains that the purpose of job search
and relocation allowances is to help
AAWs secure suitable employment and
relocate outside their commuting area.
Section 618.405
General
Proposed § 618.405 contains general
provisions and revises and consolidates
20 CFR 617.30 and 617.40. Proposed
paragraph (a) retains the content in 20
CFR 617.30, except that it replaces the
reference to ‘‘securing a job’’ with
‘‘suitable employment.’’ Proposed
paragraph (b) retains the content of 20
CFR 617.40, except that it eliminates the
reference to the ‘‘head of the family.’’
Instead, it authorizes payment to the
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AAW in the family who first applies for
the relocation allowance, if otherwise
eligible. The Department has concluded
that this minor change makes it easier
for States to administer these benefits by
eliminating the need to identify the
head of the family.
Section 618.410 Applying for a Job
Search Allowance
Proposed § 618.410 describes the
same application process in 20 CFR
617.31, but changes instructions on
when to file an application. Under 20
CFR 617.31(b), an AAW who is covered
under a petition and who is totally or
partially separated may apply for a job
search allowance before or after the
Department issues a certification.
Proposed § 618.410 changes these
procedures to require that a State accept
applications for job search allowance
only after the Department has issued a
certification. Further, the Department
proposes to eliminate precertification
applications for job search allowances to
avoid unrealistic expectations for
reimbursement. 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 AAWs may
receive job search allowances. This
approach is similar to that of many
assistance programs that do not
reimburse individuals for activities
conducted with their own funds before
the individual becomes eligible for
assistance. Related to the change in
when applications may be accepted, this
proposed subpart includes a change that
all references to ‘‘individuals’’ in 20
CFR part 617 will instead be ‘‘adversely
affected workers.’’ This change is
consistent with sec. 237(a)(1) of the Act,
which provides that ‘‘an [AAW] covered
by a certification’’ may file an
application for a job search allowance.
Section 618.415 Eligibility for a Job
Search Allowance
Proposed § 618.415 sets forth the
eligibility requirements for job search
allowances. Section 237(a)(2)(B) of the
Act requires, as a condition for receipt
of a job search allowance, that ‘‘the
worker cannot reasonably be expected
to secure suitable employment in the
commuting area in which the worker
resides.’’ In implementing this
provision, the Department proposes to
use the same definition of the term
‘‘suitable employment’’ as is used in
proposed subpart F and defined in
proposed § 618.110. This departs from
20 CFR 617.32(a)(4) and 617.42(a)(6),
which use ‘‘suitable work,’’ applying the
State UI law definition of suitable work,
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as the threshold for approval of job
search and relocation allowances.
Proposed paragraph (a) has several
changes from 20 CFR 617.32(a).
Proposed paragraph (a) excludes
language on registration with the State
agency (a requirement in 20 CFR
617.32(a)(3)) because proposed
§ 618.310 already requires States to
provide employment and case
management services, and the Act does
not contain this particular registration
requirement for job search allowance
eligibility. Proposed paragraph (a)(1)
provides the time limits within which
an AAW must request a job search
allowance. It contains minor rewording
for readability, but the requirements are
unchanged from 20 CFR 617.31(c).
Proposed paragraph (a)(3) substitutes
the term ‘‘suitable employment’’ for
‘‘suitable work’’ and eliminates the
reference to long-term duration. Suitable
employment may exclude some work—
i.e., some lower-skilled and lowerpaying work—that would qualify as
suitable work under a State law.
Suitable employment is work at a
substantially equal or higher skill level
paying at least 80 percent of the AAW’s
previous wage. Suitable employment
differs from suitable work because, in
most States, suitable work includes jobs
with wages, skills requirements, or both,
that are lower than those in jobs that
would qualify as suitable employment
under the Act. Proposed paragraph
(a)(3) also adds ‘‘employment that pays
a wage of at least the 75th percentile of
national wages, as determined by the
National Occupational Employment
Wage Estimates.’’ This alternative
ensures that AAWs who can reasonably
expect to find a job that otherwise meets
the suitable employment definition
except that it pays a wage of at least the
75th percentile of national wages, rather
than paying at least 80 percent of the
AAW’s previous wage, would still be
eligible for job search allowances.
The proposed changes would make it
easier for workers to qualify for a job
search allowance, because fewer local
jobs would qualify as suitable
employment. The proposed change,
however, might make it harder for
workers to qualify for a relocation
allowance, because, similarly, fewer
jobs requiring relocation would qualify
as suitable employment. This difficulty
should be mitigated by the fact that
workers who find suitable employment
with the help of a job search allowance
would also be eligible for a moving
allowance to relocate to that same
suitable employment. The Department
proposes this change because of the
unique economic circumstances of
workers adversely affected by
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international trade. The Organisation for
Economic Co-operation and
Development (OECD) notes that changes
brought on by technology and trade can
cause local labor market shocks; such
shocks cause some workers to move
elsewhere, but often not in large enough
numbers to mitigate fully the shock in
the affected locality.7 Compounding the
problem for trade-affected workers,
worker migration has slowed over the
last several decades.8 Together these
trends have caused the Department to
respond by proposing this change from
suitable work to suitable employment.
This change also would provide
administrative consistency and
uniformity of interpretation and
application of Federal law, a policy goal
described in 20 CFR 617.52(b), and in
this NPRM, in proposed § 618.840.
Proposed paragraph (a)(4) is new and
has no comparable counterpart in
existing regulations or in administrative
guidance. It establishes for the first time
that the State determines whether an
AAW could reasonably expect to find
suitable employment through
alternatives to a job search allowance,
such as by having an AAW search and
interview for jobs through electronic
means. The Department added this
provision to reflect the cost-saving
technological advances of the modern
era. There are now countless websites,
apps, and online services that connect
employers with workers, and many
communication technologies make faceto-face discussion via video
conferencing simple and inexpensive.
By this proposed change, the
Department is encouraging States and
AAWs to use these cost-saving, and
possibly equally effective, measures.
Proposed paragraph (a)(5) is new and
has no comparable counterpart in
existing regulations or in administrative
guidance. It clarifies for the first time
that a State may not approve job search
allowances if the AAW received a
relocation allowance under the same
certification since an AAW must have
already obtained work to qualify for the
relocation allowance.
Proposed paragraph (a)(6) gives an
AAW 30 calendar days to complete a job
search, clarifying 20 CFR 617.32(a)(5),
which provides ‘‘a reasonable period
not exceeding 30 days after the day on
7 OECD. (2018). ‘‘OECD Economic Surveys:
United States at 81.’’ Retrieved from: https://
read.oecd-ilibrary.org/economics/oecd-economicsurveys-united-states-2018_eco_surveys-usa-2018en.
8 See id.; see, e.g., David Ihrke, U.S. Census
Bureau. (2017). ‘‘United States Mover Rate at a New
Record Low.’’ Retrieved from: https://
www.census.gov/newsroom/blogs/randomsamplings/2017/01/mover-rate.html.
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60171
which the job search began’’ within
which to conduct a job search outside
the commuting area.
Proposed paragraph (b) describes
when a job search is complete and
mirrors 20 CFR 617.32(b), with
organizational changes for clarity and
one change. A job search is not
complete until the AAW has received a
bona fide (i.e., good faith) offer of
employment, or has contacted each
employer the AAW either planned to
contact or to whom the AAW was
referred by the State agency or other
one-stop partner. The language in 20
CFR 617.32(b) refers only to State
agency-referred employment, but the
proposed addition of employers that the
AAW ‘‘planned to contact’’ broadens the
scope and satisfies this requirement.
Section 618.420 Findings Required
Proposed § 618.420 explains what a
State must find before approving a job
search allowance, and further delineates
the responsibilities between a liable
State and an agent State, when a job
search occurs in a different State from
the liable State. Proposed subpart H,
Administration by Applicable State
Agencies, establishes the
responsibilities of the liable State and
an agent State. Specifically, proposed
§ 618.824 establishes that the liable
State makes all determinations on each
claim for program benefits, and the
agent State pays the costs for job search
and relocation allowances.
Proposed paragraph (a) mirrors 20
CFR 617.33(a), except that it removes
paragraph (a)(2) as redundant and adds
the employer contact verification
requirement that is in the eligibility
requirements in 20 CFR 617.32(c). The
Department has determined that this
requirement, which requires a liable
State to verify the AAW’s contacts with
employers certified by the AAW in the
worker’s own job search plan or through
referrals, more logically fits under the
section on required findings.
Proposed paragraph (b) in its first
sentence mirrors 20 CFR 617.33(b), but
adds a new requirement that the agent
State, when requested by the liable
State, must verify with the employer
and report to the liable State whether
the AAW has obtained suitable
employment, or a bona fide offer of
suitable employment, and pay the job
search allowance.
Section 618.425 Amount of a Job
Search Allowance
Proposed § 618.425 explains how to
calculate the amount of a job search
allowance. It follows 20 CFR 617.34, but
updates the maximum amount available
for allowances to the statutory limit of
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$1,250, instead of $800. It also
simplifies requirements by basing
allowable travel, lodging, and meal costs
on the FTR, which in the Department’s
judgment are reasonable and necessary
in amount. The lodging and meal
allowance is set, by statute, at 90
percent of the lower of actual meal and
lodging costs or one-half the applicable
prevailing per diem rates in the FTR.
Proposed § 618.425 reflects the statutory
limit. Proposed § 618.425 inserts the
FTR citation and a hyperlink to the FTR.
Proposed § 618.425 also replaces the
term ‘‘public transportation’’ with the
term ‘‘mode of transportation.’’ The
reference to public transportation has
been unduly limiting, so the Department
proposes this more expansive term.
Section 618.430 Determination and
Payment of a Job Search Allowance
Proposed § 618.430 requires an AAW
to provide supporting documentation
upon completion of a job search in order
for the State to make payment and
requires the State to reimburse the AAW
promptly. Proposed paragraph (a)
departs from 20 CFR 617.35(a) by
eliminating the reference to the State
making determinations ‘‘before or after’’
the Department issues a certification
covering a worker. This aligns with the
rationale for proposed § 618.410(b),
which provides that the State may
accept applications for job search
allowances only after the Department
issues a certification. Consistent with
this change, all references in proposed
subpart D are to AAWs, not to
‘‘individuals’’ as in 20 CFR part 617.
Further, proposed § 618.410(a) clarifies
that job search allowance
determinations are subject to the
requirements of proposed §§ 618.820
(determinations and notice) and 618.828
(appeals and hearings), and requires
States to include copies of job search
allowance applications and
determinations in the AAW’s case file.
These are changes from 20 CFR
617.35(a) to ensure proper
administration of job search allowances.
Proposed paragraph (b) revises its
counterpart provision in 20 CFR
617.35(b) to clarify, without changing,
the conditions for payment of a job
search allowance, and adding that
payment is conditioned on the
availability of funds.
Proposed paragraph (c), like 20 CFR
617.35(c), permits the State to advance
up to 60 percent of the cost of an
expected job search allowance, but
increases the maximum amount of an
advance from $360 to $750, which is 60
percent of the statutory dollar limit of
$1,250. Inflation in the years since this
limit was initially established reduced
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the value of the previous amount, and
this NPRM ameliorates that reduced
value.
Proposed paragraph (d) specifies the
evidence an AAW must provide to
receive a job search allowance. The
Department proposes to align the
requirements for documentation with
the FTR and the Uniform Guidance at 2
CFR part 200. At the time of this
proposed publication, receipts are
required for all lodging and purchased
transportation expenses. A receipt is
also required for any expense of $75.00
or greater.
Section 618.435 Job Search Program
Participation
Proposed § 618.435 replaces 20 CFR
617.49 and implements sec. 237(c) of
the Act. Proposed paragraph (a)
provides the requirements for an AAW
participating in a job search program
(JSP) to receive reimbursement for the
necessary expenses of subsistence and
transportation related to participation in
an approved JSP. Proposed paragraph
(b) allows a State to approve a JSP if it
is provided through WIOA, the public
employment service, or any other
Federal- or State-funded program, and
meets the definition provided in
§ 618.110, or is sponsored by the firm
from which the AAW has been
separated. Proposed paragraph (c)
requires that subsistence and
transportation costs must be approved,
as appropriate, for workers participating
in a JSP and the JSP may be within or
outside the AAW’s commuting area.
Section 618.440 Applying for a
Relocation Allowance
Proposed § 618.440 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 an AAW to apply for a relocation
allowance only after the Department
issues a certification covering that
worker. This is consistent with sec.
238(a)(1) of the Act, which permits ‘‘an
[AAW] covered by a certification . . . to
file an application for a relocation
allowance.’’ This mirrors the change for
job search allowances reflected in
proposed § 618.410, which also does not
permit applications until after the
Department issues a certification. A
State may not issue a relocation
allowance or a reimbursement to anyone
not covered by a certified petition for
any reason. As previously noted in the
preamble discussion of proposed
§ 618.410 regarding job search
allowances, the Department proposes
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this change because permitting
precertification applications can raise
workers’ expectations of payments that
may not become available.
Proposed paragraph (b) also contains
the requirement that the State may
approve the relocation only after an
AAW files an application and before
such worker undertakes the relocation.
Section 618.445 Eligibility for a
Relocation Allowance
Proposed § 618.445 on eligibility for a
relocation allowance combines the
requirements in 20 CFR 617.42
(Eligibility) and 617.43 (Time of
relocation), edits them for clarity, and
makes several significant changes.
First, proposed § 618.445 removes the
requirement in 20 CFR 617.42(a)(5)
regarding registration with the State
agency from the job search eligibility
requirements because the Act does not
contain a registration requirement for
relocation allowance eligibility and
because proposed § 618.310 of subpart
C, absent from 20 CFR part 617, already
requires that States make available
employment and case management
services to all trade-affected workers.
Further, proposed paragraph (a)(5)
departs from 20 CFR 617.42(a)(6) in
three respects. Proposed paragraph
(a)(5) substitutes a Federal law
definition of ‘‘suitable employment’’ for
‘‘suitable work’’ under State law and
eliminates the reference to ‘‘affording a
reasonable expectation of employment
of long-term duration’’ because the
concept of long-term employment is
substantially included in the definition
of ‘‘suitable employment.’’ Proposed
paragraph (a)(5) also adds ‘‘employment
that pays a wage of at least the 75th
percentile for national wages, as
determined by the National
Occupational Employment Wage
Estimates.’’ This alternative ensures that
AAWs who obtain or receive a bona fide
offer of a job that otherwise meets the
suitable employment definition except
that it pays a wage of at least the 75th
percentile of national wages, rather than
paying at least 80 percent of the AAW’s
previous wage, would still be eligible
for relocation allowances.
Therefore, before granting a relocation
allowance, the State must determine
that an AAW has no reasonable
expectation of securing suitable
employment in the commuting area.
This is consistent with the treatment of
job search allowances, and, as explained
earlier, is in many States likely to be a
higher standard than the suitable work
standard used in 20 CFR part 617. Using
suitable employment in the eligibility
criteria for relocation allowances limits
the jobs for which a State may pay a
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relocation allowance. However, the
Department has concluded this
proposed change would increase
workers’ options. The change would
permit more AAWs to use a relocation
allowance to secure suitable
employment or other high-paying
employment outside the commuting
area, rather than settle for suitable work
within the commuting area. And AAWs
who are eligible for the job search
allowance, and thereby find suitable
employment or other high-paying
employment, will similarly be eligible
to relocate to that same suitable
employment by using a relocation
allowance.
Two other significant differences
between proposed § 618.445 and 20 CFR
part 617 involve the timing of
relocations. First, proposed paragraph
(a)(6) integrates 20 CFR 617.42(a)(7) and
617.43 and simply states the two
statutory 182-day time limits for
beginning a relocation, instead of stating
that an AAW must begin a relocation
‘‘within a reasonable period’’ and later
elaborating on what is a reasonable
period merely by providing the same
deadlines as in this proposed paragraph
(a)(6). Proposed § 618.445 omits
references to reasonable period to begin
a relocation because the firm deadlines
provided for an AAW beginning a
relocation are sufficient, and render
moot the references to a reasonable
period. Proposed paragraph (a)(7)
requires an AAW to complete the
relocation within a ‘‘reasonable time’’
under the FTR, while retaining the
required factors in 20 CFR 617.43(a) that
a State 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. TAARA 2002 amended sec.
238(c)(2) of the Act, which requires the
AAW’s relocation to occur within 182
days after the conclusion of an approved
training program, by adding at the end
of the provision the alternative
condition ‘‘if the worker entered a
training program approved by the
Secretary under [sec.] 236(b)(1) and (2)’’
(which govern supplemental assistance
for workers in training outside the
commuting area). All workers who
conclude TAA approved training must
apply for a relocation allowance no later
than the 182nd day after concluding
such training, in accordance with sec.
238(a)(2)(E)(ii) the Act and proposed
§ 618.445(a)(1)(ii). However, the
Department interprets sec. 238(c)(2) of
the Act to mean that an AAW approved
by the State, under proposed
§ 618.640(c) and (d), to receive
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subsistence and transportation
payments (supplemental assistance) for
training at facilities outside the worker’s
commuting area, must also begin the
relocation within 182 days after
completing training, the same as the
relocation allowance application
deadline. In contrast, AAWs who are
not approved by the State to receive
subsistence and transportation
payments, because they receive training
within their commuting area, may begin
relocation within 182 days after
applying for a relocation allowance,
which effectively permits these workers
to begin relocation much later than
workers who receive supplemental
assistance in training.
Proposed § 618.445 also makes one
minor change. Proposed paragraph (a)(1)
provides the time limits within which
an AAW must apply for a relocation
allowance. It contains the same
requirements as 20 CFR 617.31(c), but is
proposed to be moved here for better
organization.
Section 618.450 Findings Required
Proposed § 618.450 regarding
‘‘findings required’’ is the counterpart to
20 CFR 617.44 and further delineates
the responsibilities between a liable
State and an agent State with respect to
relocation allowances when a relocation
occurs in a different State than the liable
State. Proposed subpart H establishes
the responsibilities of the liable State
and the agent State. Specifically,
proposed § 618.824 establishes that the
liable State makes all determinations on
each claim for program benefits, and the
agent State pays the costs for job search
and relocation allowances.
Proposed § 618.450 mirrors 20 CFR
617.44(a), with a change. Proposed
paragraph (a)(1) adds a new requirement
that, as a condition of approving final
payment of a relocation allowance, the
AAW is not simultaneously receiving a
job search allowance. This is the same
prohibition contained in the eligibility
requirements in proposed § 618.445(b).
This provision is proposed for the first
time and has no comparable counterpart
in existing regulations or in
administrative guidance.
Section 618.455 Determining the
Amount of a Relocation Allowance
Proposed § 618.455, on determining
the amount of a relocation allowance,
consolidates, reorganizes, and updates
the requirements in 20 CFR 617.45
(Amount), 617.46 (Travel allowance),
and 617.47 (Moving allowance). A
relocation allowance includes, with
specified qualifications, 90 percent of
the travel and subsistence costs of the
AAW and their family to reach their
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60173
new home, 90 percent of the cost of
moving household effects, and a lump
sum equal to three times the worker’s
average weekly wage, not to exceed
$1,250. The lump sum maximum
reflects the statutory limit and is an
increase from the $800 maximum
provided in 20 CFR 617.45(a)(3).
Proposed § 618.455 requires States to
follow the FTR but eliminates the
specific citation to FTR sections.
Proposed paragraph (a)(1) refers to 41
CFR chapter 301 (travel) and proposed
paragraph (a)(3) refers to 41 CFR chapter
302 (movement of household goods).
Proposed paragraph (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 using the ‘‘per diem
rates’’ hyperlink at: https://
www.gsa.gov. Proposed paragraph
(a)(3)(ii) increases the allowable amount
of insurance coverage of such household
goods and effects to $40,000 from
$10,000, found in 20 CFR 617.47(a)(1).
The Department first introduced the
allowable amount of insurance coverage
of $10,000 in § 635.47(a)(1) of
regulations proposed by the Department
on March 4, 1983 (48 FR 9444), and
finalized on December 22, 1986 (51 FR
45840), with an effective date of January
21, 1987. The Department has
determined that $10,000 is no longer an
appropriate level of insurance coverage
as households’ accumulated goods and
effects have increased in value due to
inflation and rising household incomes
since 1987. While no measure tracks the
value of accumulated household goods
and effects, a proxy is the core Personal
Consumption Expenditures (PCE). Core
PCE measures, for all households,
personal expenditures on goods and
services, excluding food and energy. It
follows that the accumulated value of
goods a household owns, and would
move and require to be insured, is
correlated with the annual amount
spent on goods and services by
households. According to the Bureau of
Economic Analysis, the core PCE
increased from $2,443 billion in January
1987 to $11,626 billion in January
2018.9 This increase in PCE by a
multiple of 4.76 is a proxy for the
increase in the value of goods a
household would need to have insured.
Therefore, proposed paragraph (a)(3)(ii)
9 Federal Reserve Bank of St. Louis. (2018).
‘‘Personal consumption expenditures excluding
food and energy [DPCCRC1M027SBEA].’’ Retrieved
from: https://fred.stlouisfed.org/series/DPCCRC1M
027SBEA.
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conservatively increases the allowable
insurance coverage by a multiple of 4,
from $10,000 as established in 1987, to
$40,000.
Proposed § 618.455 omits the more
detailed provisions for trailers, rental
trucks, house trailers, and temporary
storage contained in 20 CFR 617.47.
These detailed requirements are
unnecessary and better addressed by the
FTR. The Department notes that moving
a house trailer or mobile home, as
permitted under proposed paragraph
(a)(3)(i), has special requirements under
the FTR, at 41 CFR part 302–10, of
which the worker must be notified
before planning such a move.
Section 618.460 Determinations and
Payment of a Relocation Allowance
Proposed § 618.460 regarding
determinations and payment of a
relocation allowance serves the same
purpose as 20 CFR 617.48 (Time and
method of payment), with some changes
and reorganization. Nothing in proposed
§ 618.460 departs in substance from 20
CFR 617.48 except for the requirements
that an AAW be covered by a
certification as a condition of the State
accepting an application, and that
workers submit documentation
supporting all lodging, transportation,
and meal expenses to be reimbursed by
the State. This documentation
requirement is proposed for the same
reasons it has been proposed for
workers seeking reimbursement of
expenses from a job search allowance.
Proposed § 618.460 otherwise
reorganizes the provisions of 20 CFR
617.48 and revises them for greater
clarity.
Proposed paragraphs (a) and (b)
contain and somewhat revise the
requirements in 20 CFR 617.48(a).
Proposed paragraph (a) departs from 20
CFR 617.48(a) by omitting any reference
to determinations before a worker
becomes an AAW; this reflects that
proposed subpart D does not provide for
applications before the Department
issues a certification. Proposed
paragraph (a) also newly requires States
to promptly make and record
determinations as well as include copies
of job search allowance applications and
determinations in the AAW’s case file.
This provision has no comparable
counterpart in existing regulations or in
administrative guidance. This is to
ensure proper administration of job
search allowances and mirrors the
requirement for job search allowances in
proposed § 618.430(a). Proposed
paragraph (b) includes provisions from
20 CFR 617.48(a).
Proposed paragraph (c) specifies what
the AAW must provide for expenses to
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be reimbursed by a State under a
relocation allowance. This would clarify
20 CFR 617.48(b)(1)(ii) by requiring
workers to provide documentation in
accordance with the FTR and the
Uniform Guidance. At the time of this
proposed publication, this includes
receipts for all lodging, purchased
transportation, and any expense equal to
or greater than $75.00. Proposed
paragraphs (d), (e), and (f) incorporate
the provisions from 20 CFR 617.48(b),
(c), and (d).
E. Subpart E—Reemployment Trade
Adjustment Assistance
Proposed subpart E governs RTAA.
TGAAA established the RTAA program
to replace the demonstration project
known as ATAA, established by
TAARA 2002. This proposed subpart
prescribes regulations implementing
provisions in sec. 246 of the Act and
incorporates administrative guidance.
There are no existing regulations
covering the RTAA program.
RTAA provides wage supplements to
eligible AAWs, aged 50 and older, who
return to work earning less than their
adversely affected employment and
$50,000 or less per year. AAWs
receiving RTAA may also be eligible to
receive employment and casemanagement services, job search and
relocation allowances, and TAA
approved training. If the HCTC benefit
is available, RTAA recipients are
eligible to apply for or claim the HCTC.
The goal of RTAA is to encourage
reemployment for older workers who
may find it difficult to secure a new job
that pays as much as their old job.
Section 246(a)(3) of the Act sets forth
the eligibility criteria for RTAA. An
AAW is eligible for RTAA after
beginning a new, full-time job at a firm
other than the one from which the AAW
was separated (or combination of jobs at
firms that equate to full-time
employment) that pays less (or
collectively pays less if a combination of
jobs) than the AAW’s adversely affected
employment, or after beginning TAA
approved training while reemployed at
least 20 hours per week at a new job
with a firm other than the one from
which the AAW was separated.
Compared to ATAA, RTAA expands
the range of benefits available by
permitting training while receiving
RTAA, and by allowing receipt of RTAA
after such training is completed, if the
AAW otherwise meets eligibility
requirements. This proposed subpart
permits eligible AAWs to remain
eligible for RTAA when employed parttime, provided that the AAW is enrolled
in TAA approved training. Some AAWs
may receive a TRA, the income support
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component of TAA, before receiving
their first RTAA benefit payment. For
such workers, sec. 246(a)(4) of the Act
requires reduction in the RTAA
eligibility period by the number of
weeks of TRA received as well as a
reduction in the maximum RTAA
amount payable.
Section 618.500 Scope
Proposed § 618.500 provides the
scope of this subpart and addresses the
governance of RTAA. An AAW may
combine wage supplements with other
benefits and services, including
employment and case management
services, TAA approved training, job
search and relocation allowances, and,
if available, the HCTC.
Section 618.505 Individual Eligibility
Proposed § 618.505 enumerates the
eligibility criteria for RTAA, as set forth
in sec. 246 of the Act. Proposed
paragraph (a) outlines the general age,
wage, and reemployment requirements
to be eligible for RTAA. An AAW, aged
50 or older, is eligible for RTAA if the
following criteria are met:
(1) The AAW must have a full-time
job (or combination of jobs that equate
to full-time employment as defined by
State UI law) or a job of at least 20 hours
per week while enrolled in TAA
approved training;
(2) The qualifying job in criterion 1
must pay less (or collectively pays less
if a combination of jobs) than the
AAW’s adversely affected employment;
(3) The AAW must be earning wages
that do not exceed $50,000 over a 12month period; and
(4) The qualifying job in criterion 1
above is not at the firm from which the
AAW was separated.
Proposed paragraph (b) explains terms
specifically for the purposes of RTAA.
As explained in more detail in the
preamble to subpart A, the proposed
definition of ‘‘firm’’ revises the term at
29 CFR 90.2. Of note, the proposed
definition of ‘‘firm’’ incorporates the
definition set forth at sec. 247(3) of the
Act. Pursuant to the Act, the term
‘‘firm’’ means ‘‘a firm, including an
agricultural firm or service sector firm;
[or] an appropriate subdivision thereof.’’
Therefore, the term ‘‘firm’’ in the RTAA
context means ‘‘firm or appropriate
subdivision.’’
This definition of ‘‘firm’’ is used by
the Department to identify the ‘‘firm’’ in
the certification. To determine that an
AAW is eligible for RTAA, the State
must make a finding that the new
employment obtained by the worker is
not at the ‘‘firm’’ from which the worker
was separated and that forms the basis
for the worker’s applicable certification.
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A State must determine what constitutes
the ‘‘firm’’ for purposes of determining
RTAA eligibility on a case-by-case basis,
depending on the certification. A
certification may cover one or more
worker groups at either an entire firm or
one or more subdivisions of a firm
located in one or several States.
Proposed paragraph (b)(1) provides
instructions to States on how to make
decisions relative to determining RTAA
eligibility based on whether or not the
Department issued a certification for a
subdivision of a firm or the entire firm.
Proposed paragraph (b)(2) explains that
the term ‘‘firm’’ includes predecessors
and successors-in-interest, affiliated
firms, and continuity of operations at
the same location. The proposed
regulatory text establishes several
criteria in descending order that the
State should apply to determine
whether one firm is a successor-ininterest to another, including a list of
conditions at paragraphs (b)(3)(i)
through (vii) that a State may need to
consider when rendering a
determination. The intent of this
provision is to assist States in
determining whether the worker has
become employed by a ‘‘firm’’ that is
different from the ‘‘firm’’ from which
the worker was separated in accordance
with sec. 246(a)(3)(B)(iv) of the Act.
Proposed paragraph (c) explains that,
for purposes of RTAA, full-time
employment is defined by the law
applicable to the State in which the
reemployment occurs. The Department
proposes to define State law in
§ 618.110 as the State UI law. Following
longstanding practice, State UI law
means State statutory provisions and
their implementing regulations. In the
absence of State statutory provisions
and regulations, State law may be
determined via State court decisions,
program letters, manuals, and any other
State documents interpreting State UI
law. Thus, even if a State did not define
full-time employment in the State code,
a definition contained in another Stateissued document would apply.
Proposed paragraph (c)(1) explains that
if State law does not contain a definition
of full-time employment, the State is
required to define full-time employment
for RTAA purposes. Proposed paragraph
(c)(2) requires the State to verify
reemployment in accordance with State
policies. Verification of the firm can
occur by such communication methods
as email, phone call, certified letter, or
other means determined by the State.
Proposed paragraph (c)(3) establishes
that if an AAW has multiple jobs, the
State must combine hours of all
employment to determine whether the
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worker meets the definition of full-time
employment. Proposed paragraph (c)(4)
provides that if the worker is employed
in more than one State, the State must
apply the State law with the lowest
threshold of hours required for full-time
employment.
Proposed paragraph (d) provides that
an application or eligibility for UI is not
needed for RTAA purposes. There is no
direct relationship between UI and
RTAA. Eligibility for RTAA is not
dependent on eligibility for UI.
Lastly, proposed paragraph (e)
explains the types of employment that
are considered qualifying reemployment
for RTAA. Proposed paragraph (e)(1)
establishes that qualifying
reemployment under RTAA is the same
as covered employment for UI purposes.
This provides uniformity in
administration. It also provides
efficiency, since the rules for covered
employment for UI are well defined and
familiar to State administrators.
However, this paragraph requires that
the employment be legal under Federal,
State, and local laws. The Department
recognizes that there are situations
where certain employment may be legal
under local or State law but illegal
under Federal law. The Department is
establishing a requirement that to be
qualifying reemployment, the
employment must be legal at all levels
of government. Proposed paragraph
(e)(2) explicitly allows a State to
consider employment that provides
wages plus commission, and pieceworkbased employment to be reemployment
when determining RTAA eligibility. The
Department proposes to authorize these
specific types of employment to ensure
that States are not limiting
reemployment opportunities. Proposed
paragraph (e)(3) provides that qualifying
reemployment may include multiple
jobs. In some instances, an AAW may
have multiple part-time jobs instead of
a single full-time job. This flexibility
will allow AAWs to combine multiple
part-time jobs to be considered full-time
employment. Proposed paragraph (e)(4)
provides that the State must count hours
in which an RTAA-eligible worker is on
employer-authorized leave as hours of
work for purposes of meeting the fullor part-time employment definitions of
this section, provided that doing so is
consistent with State law. The
Department found that States were not
counting holidays or leave as hours of
employment. This resulted in States
disqualifying AAWs when there was a
paid, observed holiday because the
AAW did not ‘‘work’’ those hours, or in
instances where the worker may have
used a sick day.
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60175
Section 618.510 Eligibility Period for
Payments of Reemployment Trade
Adjustment Assistance and Application
Deadline
Proposed § 618.510 sets forth the
eligibility period for payments of RTAA
as provided by sec. 246(a)(4) of the Act.
Proposed paragraphs (a) and (b) of this
section explain the differences in
eligibility periods for AAWs that have
not received TRA and those that have
received TRA, respectively. Proposed
paragraph (a) provides that for an AAW
who has not received TRA, the worker
may receive RTAA benefits for a period
not to exceed 104 weeks (2 years)
beginning on the earlier of: The date on
which the worker exhausts all rights to
UI based on the separation of the worker
from the adversely affected employment
that is the basis of the certification; or,
the date on which the worker first
begins qualifying reemployment as
described in § 618.505(e). Proposed
paragraph (b) provides that for a worker
who has received TRA under a
certification, the worker may also
receive RTAA benefits for a period of
104 weeks (2 years) beginning on the
date on which the worker first begins
qualifying reemployment, reduced by
the total number of weeks for which the
worker received TRA. Proposed
paragraph (c) describes that the State
will need to know certain applicable
dates before making an RTAA
determination.
Proposed paragraph (d) establishes an
exception to the general rule that all
events to establish RTAA eligibility
occur when the individual turns 50
years old. Proposed paragraph (d)
provides that the AAW may obtain
reemployment before the age of 50,
which later may be deemed as RTAAqualifying reemployment when the
AAW turns 50. It is at this time (after
turning 50) that the AAW may be
potentially RTAA-eligible, if all other
eligibility requirements are met. This is
because upon obtaining the
reemployment, which is a date certain,
the State can establish the RTAA
eligibility period (104 weeks or 2 years,
as the case may be) and when the AAW
turns 50, they may be eligible during the
remaining RTAA eligibility period. The
AAW potentially is eligible if the
eligibility period is established
sometime after turning 48 and
consequently such period expires after
turning 50. If the RTAA eligibility
period has expired by the time the AAW
turns 50, the AAW will not be eligible
for RTAA. This would foreclose the
opportunity for an AAW whose RTAAeligibility period is established before
turning 48 and consequently expires
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before turning 50. Furthermore, if the
AAW obtains employment before age
48, and is not eligible for RTAA at 50,
because the 104-week eligibility has
expired, the worker cannot obtain other
employment to establish RTAA
eligibility based on an eligibility period
established with subsequent
employment after turning 48, and
thereafter. RTAA is for workers 50 or
older and the Department concludes
this worker readjusted.
Proposed paragraph (e) allows for
exceptions to the eligibility periods set
forth in paragraphs (a) and (b) as well
as to the overall filing deadline in
instances of judicial appeals, where the
Department later grants a certification of
the worker group covered by that
petition and the ITC has not indicated
that a delay in the certification was
attributed to either the petitioner or the
AAW.
Section 618.515 Continuing Eligibility
and Timing of Payments
Proposed § 618.515 explains the
requirements for an AAW’s continued
eligibility under RTAA and the timing
of payments. Proposed paragraph (a)(1)
allows workers to change jobs without
loss of access to RTAA so long as the
worker continues to meet other
eligibility criteria. Proposed paragraph
(a)(2) prohibits the payment of RTAA
during a period of unemployment and
provides that the AAW may resume
receipt of RTAA payments upon
obtaining qualifying reemployment for
the remaining portion of the eligibility
period. Section 246(a)(7) of the Act
prohibits payment of TRA and RTAA
for the same week.
Proposed paragraph (a)(3) establishes
a requirement that if the computed
annualized reemployment wages exceed
$50,000, no additional RTAA payments
may be made unless conditions change
again, resulting in recomputed
annualized reemployment wages of
$50,000 or less. This provision is
established to reduce the likelihood and
number of overpayments that would
otherwise occur.
Proposed paragraph (b) addresses the
timing of RTAA payments and
continues a longstanding practice
allowing States to pay RTAA on a
weekly, biweekly, or monthly basis, for
not more than a 104-week period (2
years) under any one certification,
beginning no earlier than the date of
qualifying reemployment under
§ 618.505. This proposed regulatory text
also allows for retroactive payments,
including a lump sum payment, for
which an AAW may have been eligible
but who may not have known such
benefit was available at the time. The
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Department has established this
provision to require regular payments to
RTAA-eligible workers. This allows
workers to anticipate regular payments,
as this may have been one of the factors
in their decision to seek qualifying
reemployment and the RTAA benefit.
Proposed paragraph (c) requires the
State to verify, on at least a monthly
basis, that the AAW continues to meet
the eligibility requirements for RTAA.
The proposed regulatory text requires
the State to determine whether any
changes have occurred to the worker’s
reemployment wages. The NPRM also
requires the State to determine whether
any changes have occurred to the
participant’s annualized reemployment
wages. This is established to reduce the
likelihood and number of overpayments
that would otherwise occur.
Proposed paragraph (d) establishes
procedures for States to recompute the
appropriate RTAA payment based on a
change in annualized reemployment
wages. These two provisions are added
to reduce the likelihood and number of
overpayments that would otherwise
occur. Proposed paragraph (d)(1)
requires States to cease additional
payments and issue a determination to
a participant if the annualized
reemployment wages exceed $50,000 or
if the annualized reemployment wages
equal or exceed the annualized
separation wages. Proposed paragraph
(d)(2) requires States to adjust the RTAA
payment if the annualized
reemployment wages change but do not
exceed $50,000 or the annualized
separation wages.
Section 618.520 Benefits Available to
Eligible Adversely Affected Workers
Proposed § 618.520 details the
benefits available under RTAA as
provided by sec. 246 of the Act. Benefits
available include wage subsidies,
training, job search and relocation
allowances, and, if available, the HCTC.
Proposed paragraph (a) explains that
eligible RTAA AAWs may receive a
total payment of up to $10,000 over a
period of not more than 104 weeks.
Proposed paragraph (a)(1) provides that
the total amount of RTAA benefit
available to an eligible AAW is an
amount equal to the annualized wage
differential as computed under
proposed paragraph (a)(2) or (3) of this
section. Proposed paragraph (a)(2)
provides, for initial eligibility, the
computation of the annualized wage
differential for an AAW employed fulltime, while proposed paragraph (a)(3)
provides the computation of the
annualized wage differential, for initial
eligibility, for an AAW employed at
least 20 hours per week, and enrolled in
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TAA approved training. The annualized
wage differential in either instance is a
percentage of the difference between the
wages received by the AAW at the time
of separation and the wages received by
the AAW from reemployment. RTAA
benefits are not available if the AAW’s
annualized separation wages do not
exceed the AAW’s annualized
reemployment wages. This is because
sec. 246(a)(2)(A) of the Act establishes
the RTAA benefit as 50 percent of the
difference between the wages received
by the worker at the time of separation
and the wages at reemployment. If the
wages at reemployment are equal to or
greater than the wages at separation, the
result would be zero or a negative
number.
Proposed paragraph (a)(2) provides
that for an eligible AAW employed fulltime, the annualized wage differential is
an amount equal to 50 percent of the
result of the AAW’s annualized wages at
separation minus the AAW’s annualized
wages from reemployment.
Proposed paragraphs (a)(2)(i) and (ii)
provide the computations for
annualized wages at separation and
annualized wages from reemployment,
respectively. A State would compute
annualized wages at separation by
multiplying the AAW’s hourly rate
during the last full week of the AAW’s
regular schedule in adversely affected
employment by the number of hours the
AAW worked during the last full week
of such employment, multiplied by 52
(i.e., the number of weeks in a year).
Proposed paragraph (a)(2)(i) refers to the
AAW’s ‘‘regular schedule’’ and also
excludes certain types of compensation
from the meaning of ‘‘wages,’’ because
certain types of work hours and
compensation are too speculative and
cannot be anticipated in computing
annualized wages from reemployment
under paragraph (a)(2)(ii) of this section.
Thus, a State would exclude overtime
wages and hours from the computation
of annualized wages at separation, along
with employer-paid health insurance
premiums, employer pension
contributions, bonuses, severance
payments, buyouts, and similar
payments too variable to properly be
included in the AAW’s regular weekly
pay computation. Finally, the
computation of annualized wages at
separation uses wages earned only in
the last full week of the AAW’s regular
schedule in adversely affected
employment, rather than, for example,
the AAW’s wages during the preceding
12-month period. This is because the
Act describes the formula as using the
wages received by the AAW ‘‘at the time
of separation.’’ The Department
concludes that this language requires
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reliance on regular wages toward the
end of an AAW’s adversely affected
employment, rather than during a longer
period of time. In the case of an AAW
who had a partial separation that
resulted in a reduction of the AAW’s
wage or hours, the computation of
annualized wages at separation is based
on the wages or hours immediately
before the partial separation went into
effect. Proposed paragraph (a)(2)(i) does
not explicitly address computation of
annualized wages at separation for
AAWs experiencing partial separations
because the computation as provided
already is sufficient to address partial
separations. So long as an AAW
experiences reductions in both hours
and wages to 80 percent of their
previous amounts, the AAW’s
computations are the same as those for
an AAW who experiences a total
separation from adversely affected
employment.
Proposed paragraph (a)(2)(ii)
computes the annualized wages from
reemployment. The Department
proposes here the same criteria for work
hours and compensation used for
annualized wages at separation, in order
to ensure a fair and logical comparison.
Proposed paragraph (a)(2)(ii) computes
these annualized wages by multiplying
the AAW’s hourly rate during the first
full week of reemployment by the
number of hours the AAW worked
during the first full week of such
reemployment, multiplied by 52 (i.e.,
the number of weeks in a year). This
computation requires combining wages
or hours from all jobs, because proposed
§ 618.505(c)(3) provides that full-time
employment may include any
combination of part-time jobs. However,
as is the case for the computation of
annualized wages at separation, the
computation of annualized wages from
reemployment excludes overtime hours
and wages; employer-paid health
insurance premiums; employer pension
contributions; bonuses; severance
payments; buyouts; and similar
payments not reflective of weekly pay.
For an AAW’s initial RTAA
determination, the computation of
annualized wages from reemployment
uses wages earned in the first full week
of reemployment because that amount is
the only available at the outset of an
AAW’s reemployment. Tips are not
included in the proposed computation
of annualized wages, either at
separation or from reemployment. The
Department recognizes that tips are, in
fact, an expected form of income
supplementing regular wages for
restaurant servers and perhaps for
workers in other occupations. However,
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the Department proposes excluding
them from the computations in
paragraphs (a)(2)(i) and (ii) because, like
other forms of irregular compensation
excluded in RTAA computations, they
vary in amounts and are unpredictable.
Proposed paragraph (a)(3) governs the
computation of the annualized wage
differential for initial eligibility of an
AAW working at least 20 hours per
week and enrolled in TAA approved
training. This computation is required
by sec. 246(a)(6) of the Act and is the
same as under proposed paragraph (a)(2)
for an AAW reemployed full-time
except for the percentage reduction
applied to the difference between the
wages received by the AAW at the time
of separation and the wages received by
the AAW from reemployment. As is the
case with an AAW reemployed fulltime, proposed paragraph (a)(3)
provides that, as part of the RTAA
benefit amount computation for an
AAW reemployed part-time, the amount
of annualized wages from
reemployment is multiplied by the ratio
of the AAW’s number of weekly hours
of reemployment to the AAW’s number
of weekly hours of employment at the
time of separation, not to exceed 50
percent.
Proposed paragraph (b) incorporates
the provision of the Act at sec.
246(a)(2)(C) that allows RTAA
recipients to receive training and other
services, including employment and
case management services. The
Department addresses these services in
proposed subparts F (training) and C
(employment and case management).
Proposed paragraph (c) explains that
RTAA recipients are otherwise eligible
for job search and relocation
allowances, subject to the provisions of
subpart D.
Proposed paragraph (d) incorporates
sec. 246(a)(2)(B) of the Act that permits
eligible RTAA recipients to apply for
the HCTC, if available, to assist in
paying their health coverage premiums.
Lastly, proposed paragraph (e)
establishes the restriction that once an
AAW has received a payment under
RTAA, they are no longer eligible to
receive TRA. Section 246(a)(4)(B) of the
Act provides that an AAW may receive
RTAA after receipt of TRA and also
provides that a State must reduce RTAA
payments as a result of receipt of TRA.
The Act does not provide that recipients
of RTAA may receive TRA at a later
date. In order to limit the administrative
complexity of allowing eligible AAWs
to move back and forth between RTAA
and TRA, this NPRM prohibits receipt
of TRA after RTAA. This has been the
operating policy of the Department
since TAARA 2002.
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Section 618.525 Determinations,
Redeterminations, and Appeals
Proposed § 618.525 explains the
requirements related to determinations,
redeterminations, and appeals under
RTAA. Proposed paragraph (a) provides
that specified provisions in proposed
subpart H concerning determinations,
redeterminations, notice, and appeals
and hearings apply to RTAA. Proposed
paragraphs (a)(1) through (3) provide
further procedural requirements specific
to RTAA. Specifically, proposed
paragraph (a)(1) provides that in
reviewing the application, the State
must verify and document the AAW’s
age, reemployment, and wages in
determining whether the worker meets
the individual eligibility criteria in
proposed § 618.505(a).
Proposed paragraph (a)(2) provides
that a determination of eligibility issued
to an AAW must include a notice that
the State will recompute regularly the
benefit amount and may change it if the
eligible AAW’s wages in reemployment
vary. RTAA payments frequently
change; therefore, this requirement
would prevent confusion as AAWs see
their benefit amounts change.
Proposed paragraph (a)(3) allows an
AAW to file a new application each
time the AAW is reemployed and obtain
RTAA if the AAW meets the criteria of
proposed § 618.505(a) at the time of
filing of the new application, even if the
State has denied a prior application.
Proposed paragraph (a)(4) provides
that a State may approve a RTAA
payment and pay it retroactively to an
AAW who is covered by a TAA
certification but who becomes
reemployed before the Department
issues the certification, provided the
AAW otherwise meets eligibility
requirements of § 618.505(a). This is
explained above in the discussion of
proposed § 618.505.
Proposed paragraph (b) provides that
the recordkeeping and disclosure of
information requirements of proposed
§ 618.852 apply to the State’s
administration of RTAA. The language
of proposed § 618.852 already states that
it applies to the administration of the
Act, which includes RTAA; however,
proposed § 618.525(b) ensures there is
no confusion concerning the
applicability of proposed § 618.852 to
RTAA.
Section 618.530 Reductions of RTAA
Payments; Priority of Payments
Proposed § 618.530 explains the
requirements related to the reduction of
payments and the priority of payments
under RTAA. Proposed paragraph (a)
explains when a State can deduct court-
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ordered child support payments from
RTAA payments. A State must treat
RTAA payments in the same manner as
TRA. State laws regarding deductions of
payments from UI and TRA must follow
the Social Security Act (SSA). SSA sec.
303(e)(1) defines ‘‘child support
obligations’’ as ‘‘only includ[ing]
obligations which are being enforced
pursuant to a plan described in [sec. 454
of SSA] which has been approved by the
Secretary of Health and Human Services
under part D of title IV of [SSA].’’ SSA
therefore does not permit deductions for
alimony or for child support in general,
but only for child support obligations of
the type specified. Unemployment
Insurance Program Letter (UIPL) No. 45–
89 (55 FR 1886, Jan. 19, 1990) explained
in detail the deductions permitted
under SSA sec. 303(e)(2). Proposed
paragraph (b) provides that RTAA does
not fit into the priority of payments
under UI because this benefit is related
to employment, not unemployment.
F. Subpart F—Training Services
Proposed subpart F governs the
training portion of the TAA Program.
Training is an opportunity to gain skills
and reenter the workforce after a total or
partial separation or threat of separation
from adversely affected employment.
The TAA Program’s goal is to help each
trade-affected worker participating in
the program obtain suitable employment
when possible and nonsuitable
employment otherwise. Training under
the TAA Program should assist a tradeaffected worker in obtaining the skills
necessary for employment as quickly as
possible and at a reasonable cost. With
those principles in mind, training
should allow workers to compete for the
highest paying employment achievable
given their preexisting skills, abilities,
and education and the current and
projected job market.
Proposed subpart F sets out the
regulations for administering the
training benefit under the TAA Program.
TAA approval of a training program
entitles a trade-affected worker to the
payment of the costs of that training and
related costs, subject to a number of
limitations described in this subpart.
Participation in a TAA approved
training program is an eligibility
requirement for TRA, with certain
exceptions, as explained in subpart G.
Under sec. 236(a)(6) of the Act,
however, workers may still be entitled
to TRA and other TAA Program benefits
if other funding sources pay all or part
of the costs of a TAA approved training
program.
Subpart F applies the FTR at 41 CFR
chapters 300 through 304 for use by
States in providing TAA Program
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training participants with supplemental
assistance in the form of subsistence
and transportation benefits. This is not
a new policy. The Department already
enforces this requirement under several
provisions in the existing regulations,
including 20 CFR 617.27 and 617.28,
which reference the use of the FTR. This
ensures uniform interpretation of the
FTR and access to subsistence and
transportation benefits. TAA Program
training participants travel under the
same rules as employees of the
Department. Some key changes covered
in this proposed subpart include
expansion of apprenticeship training;
approvable part-time training;
parameters for serving AAIWs;
benchmark requirements to meet
Completion TRA eligibility; and
procedures for amending approved
training programs.
Section 618.600 Scope
Proposed § 618.600 is new and
provides the scope of proposed subpart
F. This section has been added to give
the reader a helpful overview of subpart
F. This section explains that the goal of
training is to help trade-affected workers
obtain the skills necessary to get back to
work as quickly as possible at a
reasonable training cost. The type of
reemployment aimed for is suitable
employment. Obtaining suitable
employment is an aspirational goal, but
not a requirement. Training that leads to
reemployment that pays as much or
more than the trade-affected worker’s
adversely affected employment is
another aspirational goal.
Section 618.605 General Procedures
Proposed § 618.605 is new and is
derived, in part, from 20 CFR 617.20.
The proposed section discusses general
procedures for trade-affected workers to
apply for training, as well as other
procedures States must follow in
making determinations on applications
for training. Proposed paragraph (a) is
new and was developed in conjunction
with proposed subpart C in accordance
with sec. 235 of the Act. It requires
States to ensure that every trade-affected
worker has an initial assessment and
that a comprehensive and specialized
assessment has been made available to
them, as required in proposed subpart
C. Assessments assist in the
development of an IEP, as described in
proposed subpart C, and must be in
place before approving an application
for training, or if not in place, the
information necessary to determine
eligibility for training must be collected
and documented in the trade-affected
worker’s case file. The use of
assessments in the development of a
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worker’s IEP is essential to ensure
proper coordination with WIOA.
Assessments are the foundation of the
worker’s IEP and they ensure that the
appropriate reemployment services,
which may include training, are added
to the IEP.
Proposed paragraph (b) replaces 20
CFR 617.22(d) and addresses
applications for training, as well as for
transportation and subsistence
payments. It reflects more accurately
that applications must be made to the
States in accordance with their policies
and procedures. Because the use of
forms will vary from State to State, the
Department is not establishing specific
requirements for their use or content
and has instead referenced compliance
with State policies and procedures.
Proposed paragraph (c) expands upon
20 CFR 617.22(e) by adding that liable
and agent State responsibilities apply to
various types of decisions, and that
decisions on whether to provide TAA
Program-funded transportation and
subsistence payments are
determinations to which apply the
sections on determinations and notice,
liable and agent State responsibilities,
and appeals and hearings. In order to
comply with OMB’s Uniform Guidance
and documentation requirements to
ensure access to due process, copies of
such applications and all
determinations by the State on whether
to approve or deny the training,
including whether to approve TAA
Program-funded transportation and
subsistence payments, must be included
in the trade-affected worker’s case file.
The documentation may be made
through paper or electronic records or a
combination thereof.
Proposed paragraph (d) revises 20
CFR 617.23(a) but retains its intent.
Proposed paragraph (d)(1) requires the
State to explore, identify, and secure
training opportunities to ensure tradeaffected workers return to employment
as soon as possible. States must use all
necessary and reasonable means to find
appropriate training where no
appropriate training opportunities
exists. States, in collaboration with local
workforce development boards
(LWDBs), one-stop partners, and other
partners, must 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
work-based training (e.g., OJT,
apprenticeships) and other types of
training programs could be adapted to
accommodate workers in disciplines
that lack training opportunities.
Proposed paragraph (d)(2) provides that
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TAA Program funds may be used to
create customized, group training
opportunities. Funds may be used to
create trainings including, but not
limited to, remedial education classes,
English language training, or
contextualized occupational training, in
order to serve a particular dislocation
event where available education and
training programs are not sufficient.
Contextualized learning is training that
combines academic and occupational
training. The Department, through its
oversight efforts, has observed that a
large-scale dislocation can overburden a
local area’s resources for adult basic
education or English language
education. TAA Program funds can be
used to add additional capacity when
that occurs. Proposed paragraph (d)(3)
requires States to coordinate with other
public and private agencies, in
cooperation with LWDBs established
under WIOA to ensure a wide-range of
training opportunities are available to
trade-affected workers in demand
occupations.
Proposed paragraph (e) is a new
provision, added for the first time, and
has no comparable counterpart in
existing regulations or in administrative
guidance. It is authorized under sec. 225
of the Act. Proposed paragraph (e)
allows training for trade-affected
workers any time after their certification
date without regard to whether such
worker has applied for or exhausted UI.
This new provision was added because
the Department has discovered through
monitoring and oversight activities that
many States use the application for or
filing of a UI claim to be the sole trigger
for providing trade-affected workers
with access to TAA Program benefits
and services. Relying on this as the sole
outreach strategy to assist trade-affected
workers in applying for training may
cause a delay in services. Section 225 of
the Act makes clear that outreach to
trade-affected workers should begin as
soon as a certification is issued and that
States must provide whatever assistance
is necessary to enable trade-affected
workers to prepare applications for
program benefits, including training, in
as timely a fashion as possible. States
should use multiple strategies for
providing trade-affected workers with
access to TAA Program benefits and
services.
Section 618.610 Criteria for Approval
of Training
Proposed § 618.610, which
corresponds to 20 CFR 617.22(a)(1)
through (6), implements all six statutory
criteria for training approval from sec.
236(a)(1)(A) through (F). The
introductory language adds a new
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requirement that a State must refer to a
trade-affected worker’s initial or
comprehensive and specialized
assessments and IEP, if available, before
approving training.
Criterion 1, implemented by proposed
paragraph (a), is modified from 20 CFR
617.22(a)(1). Section 236(e) of the Act
provides the definition of ‘‘suitable
employment,’’ which appears at
proposed § 618.110. This is a change
from 20 CFR 617.22(a)(1) where suitable
employment is defined within the
paragraph rather than in 20 CFR 617.3
with the other definitions. A second
change is the elimination of the
requirement that no suitable
employment is available outside the
commuting area in an area in which the
worker desires to relocate ‘‘with the
assistance of a relocation allowance.’’
The Department determined that the
language in 20 CFR 617.22(a)(1)(i)
created confusion as to whether an
application for a relocation allowance is
required before determining whether
suitable employment is available
outside the commuting area. The
proposed change clarifies that only a
trade-affected worker’s stated intent to
relocate to a different area is necessary,
and this change is intended to eliminate
undue delay in the training approval
process. Proposed paragraph (a)(2)
reflects minor changes to the phrasing of
this criterion versus the language used
in 20 CFR 617.22(a)(1). However, there
is no change to the intent.
Criterion 2, implemented by proposed
paragraph (b), contains similar
requirements to 20 CFR 617.22(a)(2)(i)
but rephrases and reorganizes them.
Proposed paragraph (b)(1) emphasizes
that for the trade-affected worker to
benefit from appropriate training, the
training must improve the worker’s
chances of obtaining employment than
would occur without training. The
training should also improve the
worker’s chances of either earning
higher wages than would otherwise be
the case or that the training will place
the worker on a career pathway to do so.
The change emphasizes that approved
training can provide the worker with
access to a career pathway that will lead
to higher earnings, even if the initial
placement does not. The Department
concludes that the 20 CFR
617.22(a)(2)(i) criterion that the worker
be job ready on completion of the
training program is too vague and does
not reflect the most effective or prudent
course of action in workforce
development programs on career
pathways. These changes help ensure
that the targeted employment is to be
stable and long-term, with the potential
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60179
for higher wages and growth
opportunities for the worker.
This change is also the result of
evidence gathered from studies and
evaluations of career pathways
programs. The Department has recently
published the results 10 of a survey of
evaluations of career pathways models.
Of nine completed studies examining
earnings, three found positive results,
five found mixed results, and one found
mostly negative results. Of 10
completed studies that examined
educational outcomes, 7 found positive
results, 1 found mixed results, and 2
found mostly negative results. Earnings
impacts ranged from an increase of 17
percent to 32 percent in the random
assignment studies.
Proposed paragraph (b)(2) follows 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 substituting
‘‘knowledge, skills, and abilities’’ for
‘‘mental and physical capabilities’’ as
the test for determining whether a
worker can go through the training. This
change is proposed to comply with laws
that forbid the denial of training to an
otherwise qualified trade-affected
worker because of a disability. See sec.
504 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 794) and its
implementing regulations at 29 CFR part
32, and WIOA sec. 188 (29 U.S.C. 3248)
and its implementing regulations at 29
CFR part 38. Under both secs. 504 and
188, a qualified trade-affected worker in
this context is one who satisfies the
requisite skill, experience, education,
and other training-related requirements,
and who with or without a reasonable
accommodation can perform the
essential functions of such training. See
also the definition of ‘‘qualified
handicapped individual’’ in 29 CFR
32.3 and ‘‘qualified individual with a
disability’’ in 29 CFR 38.4. For similar
reasons, the NPRM also proposes
replacing ‘‘physical and mental
capabilities’’ in 20 CFR 617.22(a)(5) and
‘‘capabilities’’ in 20 CFR 617.22(a)(6)
with ‘‘knowledge, skills, and abilities’’
in § 618.610(e)(1) and (f)(1),
respectively.
Criterion 3 is implemented by
proposed paragraph (c). It retains and
expands on the provisions in 20 CFR
617.22(a)(3). This criterion requires
States to assess, based on labor market
information, whether trade-affected
10 Abt Associates. (2018). ‘‘Career Pathways
Research and Evaluation Synthesis.’’ Retrieved
from: https://www.dol.gov/asp/evaluation/
completed-studies/Career-Pathways-Design-Study/
2-Career-Pathways-Research-and-EvaluationSynthesis.pdf.
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workers who complete an approved
training program are likely to find
employment using the skills and
education acquired while in the
training. This criterion does not limit
approval only to training programs that
result in suitable employment (except
for training programs that include OJT,
which must lead to suitable
employment with the employer offering
the OJT). It is not always feasible to
train trade-affected workers for suitable
employment. Obtaining suitable
employment is a goal, not an inflexible
requirement, for the approval of
training—except for OJT. However, the
expectation is that all training leads to
employment and is an inflexible
requirement.
Proposed paragraph (c)(1) is derived
from 20 CFR 617.22(a)(3) and
implements sec. 236(a)(3) of the Act,
which states that ‘‘a reasonable
expectation of employment does not
require that employment opportunities
for a [trade-affected] worker be
available, or offered, immediately upon
the completion of approved training.’’ In
addition, paragraph (c)(1) requires that
when initially approving such training,
there must be a projection based on
labor market information of
employment opportunities expected to
exist at the time of completion of the
training program. This criterion requires
the State to review current local labor
market data and trends. As such, States
should use real-time sources of State
labor market information.
Proposed paragraphs (c)(2) through (6)
are new and based on established
administrative guidance. They are
proposed after consideration of
Department monitoring and oversight
findings and technical assistance
requests. Paragraph (c)(2) requires States
to measure expected job market
conditions using pertinent labor market
data, including job order activity, shortterm projections data, job vacancy
surveys, business visitation programs,
and local and regional strategic plans.
Paragraph (c)(2) also indicates that labor
market information should be
documented in the trade-affected
worker’s case file, and that the State
should work with the LWDBs and its
one-stop partners to understand current
labor market conditions and
opportunities for work-based learning.
Proposed paragraph (c)(3) places a
new obligation on the State when
determining whether Criterion 3 is met,
as part of the process of approving
training for a trade-affected worker who
desires to relocate upon completion of
training. Under proposed paragraph
(c)(3), the State must document the
labor market information in the area to
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which the worker intends to relocate.
This is because that is the area where
the worker will be seeking employment
upon completion of training and is the
relevant labor market.
Proposed paragraph (c)(4) recognizes
that a demand for a single trade-affected
worker trained in a specific occupation
can exist in the local labor market and
permits the State to determine that a
reasonable expectation of employment
exists in occupations where there are
limited job openings. States must verify
with businesses in the commuting area
or in the area of intended relocation that
such demand exists for a worker with
such training, and these efforts must be
documented in the trade-affected
worker’s case file. This situation may
exist in smaller labor market areas or in
larger areas where only a few skilled
specialists are needed to meet the
current demand (e.g., taxidermy or boat
repair). However, States must ensure
that they do not create an excess supply
of trained workers where there is
limited opportunity. In occupations
with limited demand, the State must
consider the number of workers
currently enrolled in training that are
likely to meet that demand prior to
enrolling additional workers in training
for that occupation.
Proposed paragraph (c)(5) recognizes
that self-employment may be a viable
employment goal. States must review
the labor market conditions to
determine that the skills to be obtained
in the training will lead to selfemployment that will provide the tradeaffected worker with wages or earnings
at or near their wages in adversely
affected employment.
Proposed paragraph (c)(6) codifies the
requirement in sec. 236(c)(B)(i) of the
Act that an OJT can only be approved
that can reasonably be expected to lead
to suitable employment with the
employer offering the OJT.
Criterion 4 is implemented by
proposed paragraph (d) and corresponds
to 20 CFR 617.22(a)(4), but is simpler,
better organized, and free of outdated
references. References to approval of
training outside the trade-affected
worker’s commuting area for cost
reasons have been moved to proposed
paragraph (f), Criterion 6.
Criterion 5, implemented by proposed
paragraph (e), follows the requirements
in 20 CFR 617.22(a)(5), but has been
reorganized and some minor provisions
have been added. Proposed paragraph
(e)(1) modernizes the criterion’s
personal qualification language.
Proposed paragraph (e)(2) adds a new
requirement directing the State to
review the trade-affected worker’s initial
assessment, and the comprehensive and
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specialized assessment and IEP, if
available, to determine if the proposed
training is appropriate based on the
worker’s current skills. Proposed
paragraph (e)(3) 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. Proposed
paragraph (e)(3) also provides
considerations for determining whether
the worker has sufficient financial
resources when the worker’s remaining
available weeks of UI and TRA
payments will not equal or exceed the
duration of the training. Proposed
paragraph (e)(4) requires information to
be documented by the State. Proposed
paragraph (e)(5) reiterates 20 CFR
617.22(a)(5)(iii) with minor word
changes.
Criterion 6 is implemented by
proposed paragraph (f) and generally
follows and expands on 20 CFR
617.22(a)(6). Proposed paragraph (f)(1)
provides that the determination must be
appropriate given the trade-affected
worker’s knowledge, skills, abilities,
background, and experience as
identified in proposed paragraph (e).
States should compare the trade-affected
worker’s ability to undertake the
training program against the worker’s
employment goals as identified through
the criteria used in proposed paragraph
(c) and determine if the training
program is suitable based on that
comparison. States should also examine
the trade-affected worker’s IEP, if
available, but at minimum, must have
the worker’s stated employment goal.
For example, if a trade-affected worker’s
stated employment goal is to be a
welder and their assessment results,
education, past work history, and skills
are all compatible with welding, and
there is a demand for welders in the
local labor market, and the training
program will result in the worker being
able to meet any certification standards
required for a welding position, then the
training program for this worker can be
considered suitable.
Proposed paragraph (f)(2) discusses
reasonable cost. Reasonable cost is a
critical determinant in approving
training programs. The amount of
training funds available to the States is
limited by sec. 236(a)(2)(A) of the Act
and discussed in more detail in
proposed subpart I. When training is
approved, a trade-affected worker is
entitled to payment of all the costs of
the approved training. Due to these
conditions, States must control training
costs and approve only that training
‘‘available at a reasonable cost.’’
Proposed paragraph (f)(2)(i)
corresponds to 20 CFR
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617.22(a)(6)(iii)(A) and provides
examples of training-related costs that
must be considered in the approval of
training. The Department has expanded
the list of examples from the list in 20
CFR 617.22(a)(6)(iii)(A) to reflect
common costs associated with training
programs and to ensure that States fully
understand the costs of a training
program before they approve it. The list
is not all-inclusive. States must ensure
that training funds are expended wisely,
are available for the maximum number
of trade-affected workers, and will
support workers to ensure that they will
complete their selected training
program. Proposed paragraph (f)(2)(i)
also requires the State to ensure and
document that the training program
costs are reasonable by researching costs
for similar training programs. States
must exhaust alternatives before
purchasing equipment or related
materials for workers, to ensure that
those purchases are truly necessary.
Proposed paragraph (f)(2)(ii), based on
20 CFR 617.22(a)(6)(ii), generally
prohibits the State from approving
training when the costs of the training
are unreasonably high in comparison
with the average costs of training other
workers in similar occupations at other
providers. However, there may be
instances where a higher cost training
program is the better investment of
funds, so the NPRM would allow a State
to approve higher cost training if it is
expected to achieve a higher likelihood
of employment, employment retention,
or wage replacement, or achieve
comparable results in a significantly
shorter duration, resulting in reduced
weeks of TRA or a more rapid return to
employment. Based on this standard,
higher cost training must not be
approved unless there is a clear
difference in the quality and results of
the training or unless comparable
results can be achieved in a significantly
shorter period of time. The latter
standards are consistent with the Act’s
intent to get trade-affected workers back
into employment as rapidly as possible.
States should have well-defined policies
and procedures addressing this topic to
ensure consistency and clear
explanations to workers. The definition
of ‘‘reasonable cost’’ is further addressed
in proposed § 618.650.
Proposed paragraph (f)(2)(iii) follows
20 CFR 617.22(a)(6)(iii)(C) in
prohibiting approval where
transportation or subsistence payments
for training outside the trade-affected
worker’s commuting area adds
substantially to the total cost of training,
if other appropriate training in the
commuting area is available at a lower
cost. In addition, the Department
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relocated a portion of 20 CFR
617.22(a)(4)(ii) to proposed paragraph
(f)(2)(iii) because it is more related to
determining reasonable cost. Proposed
paragraph (f)(2)(iv) is new and explains
that approval of training under Criterion
6 is also subject to the provisions of
§ 618.650.
Section 618.615 Limitations on
Training Approval
Proposed § 618.615 discusses the
various limitations on a State’s approval
of a training program. The NPRM
relocates some of the limitations on
approval of training provisions from 20
CFR 617.25 to sections other than
proposed § 618.615, where they more
logically fit.
Proposed paragraph (a)(1) retains the
single training program rule of 20 CFR
617.22(f)(2). A training program may
evolve over the trade-affected worker’s
period of participation in the TAA
Program. For example, during the
training, the State may learn that the
worker’s program needs an OJT
component, additional coursework, or
remedial training to ensure
employment. Changes to an ongoing
training program are considered to be
part of one training program. The only
exception is discussed in proposed
paragraph (d)(4) for certain workers who
perform a period of military service.
Proposed paragraph (a)(2) retains the
State’s ability to amend training
programs, as explained in proposed
§ 618.665. This provision is in 20 CFR
617.22(f)(3)(ii). Proposed paragraph
(a)(3) codifies existing policy and
operation that allows for a training
program to consist of multiple types of
training. For example, a single training
program could consist of remedial
training, occupational training, and an
OJT.
Proposed paragraph (b) corresponds
to 20 CFR 617.22(f)(4) with respect to
full-time training but differs
significantly by permitting States to
approve part-time training, as allowed
under sec. 236(g) of the Act. Part-time
training may be appropriate when tradeaffected workers cannot undertake fulltime training and the part-time training
is reasonably expected to help them
increase their earnings, ideally by
helping them secure suitable
employment. States must not approve
part-time training that does not meet
these requirements.
Proposed paragraph (b)(1) retains the
provision in 20 CFR 617.22(f)(4) that
training is full-time if it is in accordance
with the established hours and days (or
credit hours) of the training provider.
Proposed paragraph (b)(2) is new and
discusses part-time training under the
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TAA Program. There is no
corresponding language in part 617,
because the Act did not allow part-time
training when the regulations were last
promulgated. Paragraph (b)(2)(i)
provides that a State may approve parttime training. Proposed paragraph
(b)(2)(i) also provides that the maximum
duration for part-time approved training
is the same as that for other approved
training, as set out in proposed
paragraph (d)(3)(i). Proposed paragraph
(b)(2)(ii) implements sec. 236(g)(2) of
the Act’s restriction on payment of TRA
to AAWs in part-time training. It also
establishes that the training-approval
requirements of this section apply to
part-time training. Proposed paragraph
(b)(2)(iii) clarifies that a trade-affected
worker may participate in part-time
training while employed either parttime or full-time. Proposed paragraph
(b)(2)(iv) requires the State to inform an
AAW who chooses part-time training
that the worker will not be eligible for
TRA and may lose HCTC eligibility, if
available, while engaged in part-time
training. AAIWs also should be
informed of this in the event they are
separated and become an AAW.
However, AAIWs are not eligible for
either TRA or the HCTC. Proposed
paragraph (b)(2)(v) cross-references
proposed § 618.780(b)(1)(i), which
provides that a State law cannot
disqualify an AAW from receiving UI or
TRA because such worker is enrolled in
or participating in a training program
approved under subpart F. However, an
AAW enrolled in part-time training is
not eligible for TRA and AAIWs are
ineligible for TRA. Therefore, proposed
paragraph (b)(2)(v) only specifies that
State law cannot disqualify an AAW for
UI because of part-time training.
Proposed paragraph (b)(2)(vi) crossreferences proposed § 618.780(b)(1)(ii),
which allows a trade-affected worker to
refuse work to which the State agency
referred the AAW because such work
would either stop or interfere with
participation in TAA approved training.
Because AAWs enrolled in part-time
training are not eligible for TRA and
AAIWs are not eligible for TRA,
proposed paragraph (b)(2)(vi) specifies
that this applies to UI or other program
benefits.
Proposed paragraph (c) generally
follows 20 CFR 617.22(c), but adds
language to clarify the process by which
(pre-TAA Program) workers who are
part of a group of workers that has not
yet received a certification under
proposed subpart B can transition to
training under the TAA Program from
training originally approved under
another program, such as WIOA.
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Proposed paragraph (d)(1) provides a
general statement of appropriate
duration, requiring that the duration be
appropriate to the skill level needed to
facilitate reemployment. The training
must be of suitable duration to achieve
the desired skill level in the shortest
possible time. Proposed paragraph (d)(2)
describes factors that may impact the
length of training, including a tradeaffected worker’s full- or part-time
employment status, the need for
supportive services from partner
programs, and scheduled breaks in
training.
Proposed paragraph (d)(3)
corresponds to 20 CFR 617.22(f)(2) and
explains the maximum duration of
approvable training. For most workers,
the availability of income support is
critical to their ability to engage in
training. The Department interprets the
Act to mean that the maximum number
of weeks of training are intended to
align with the maximum number of
available weeks of income support.
There is a maximum of 130 weeks of
income support available to an AAW
that is totally separated. This includes
regular State funded UI, plus basic,
additional, and Completion TRA.
Therefore, paragraph (d)(3)(i) changes
the 104-week regulatory limit on weeks
of training to a total of up to 130 weeks,
except as otherwise provided for OJT
and apprenticeship at proposed
§ 618.635(a)(3) and (c)(1), respectively,
and as provided for certain workers who
perform a period of duty in the
Uniformed Services in proposed
§ 618.615(d)(4). Proposed paragraph
(d)(3)(ii) updates 20 CFR 617.22(f)(3)(ii)
by specifically stating the requirement
of counting actual weeks of training
when measuring the duration of
training. Scheduled breaks in training
are not counted as weeks in training.
Proposed paragraph (d)(3)(iii),
provides a pathway for approving a
training program that exceeds the period
during which TRA is available, as
allowed under sec. 236(a)(9) of the Act,
but is still within the maximum
duration of training. It cross-references
proposed § 618.610(e)(3), which
provides the requirements for
determining whether the trade-affected
worker has sufficient financial resources
available to support the worker through
the completion of the training. Many
training participants fail to complete
training because they run out of income
support. Notably, while AAWs are
eligible for TRA, AAIWs are not.
However, AAIWs will become AAWs if
they are separated from adversely
affected employment. Thus, both AAWs
and AAIWs should be made aware of
these limitations, and attention must
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also be paid to ensuring an AAIW has
adequate financial resources to
complete training. A State can approve
a training program for longer than the
duration of income support available if
the State determines that the tradeaffected worker has sufficient personal
resources to support themselves while
completing the training program. This
does not mean that a trade-affected
worker is expected to obtain personal
loans or other such funds that they do
not already possess. The worker must
attest to the State that they have
sufficient resources to sustain
themselves while in training. The
Department encourages comments on
the implementation of this requirement
and this issue in general.
Proposed paragraph (d)(4) implements
sec. 233(i) of the Act, which creates an
exception to the duration-of-training
requirements for trade-affected workers
who are also U.S. Armed Forces
reservists ordered to active duty. There
is no similar provision in 20 CFR part
617. As Congress has made clear, these
workers should not be penalized for
serving their country. The exception
tolls the duration-of-training
requirement so that workers returning
from an involuntary call to active duty
can reenroll in a training program upon
their return, begin a new training
program, or repeat parts of the training,
as necessary.
Proposed paragraph (e) retains the
provision in 20 CFR 617.22(i) that
training must be within the United
States. Proposed paragraph (e) clarifies
this provision, explaining that both the
trade-affected worker and the training
provider (including providers of
distance training) cannot be physically
located outside the United States.
Certain criteria for training approval,
such as suitable employment, cannot be
met if the worker is physically located
outside of the United States. This
provision is also consistent with
Congress’s intent in sec. 2 of the Act ‘‘to
foster the economic growth of and full
employment in the United States’’ and
‘‘to safeguard American industry and
labor.’’
Section 618.620 Selection of Training
Program
Proposed § 618.620, authorized by
sec. 236(a)(5) of the Act, provides for the
selection of training programs and has
substantially changed from 20 CFR
617.23 due to statutory changes.
Proposed paragraph (a) represents a
change from the language at 20 CFR
617.23, which outlined the selection
criteria for training programs and
specified evaluation of a training
provider’s success by placement rates.
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The State must document the standards
and procedures used to select training
providers and training(s) in which the
training program under this subpart will
be approved. Proposed paragraph (a)(1)
is similar to 20 CFR 617.23(a) and (b)
but updates the language to align with
WIOA provisions. The Department
suggests that the State work with
partners and partner programs to
identify jointly appropriate training
programs in their communities that will
assist trade-affected workers in
obtaining work or place them on a
career pathway towards suitable
employment leading to higher wages.
Proposed paragraph (a)(2) is new and
allows a State to choose a training
provider from the eligible training
provider (ETP) list, established under
WIOA, without establishing additional
standards or procedures. Section
236(a)(5) of the Act prohibits States
from limiting training available under
the TAA Program to only those training
providers on the ETP list.
Proposed paragraph (b) addresses
types of training. This replaces 20 CFR
617.23(b) and (c)(1) and (2). The
regulation at 20 CFR 617.23(b) is not
carried forward into this NPRM in any
manner. The regulation at 20 CFR
617.23(c)(1) is replaced because the Act
no longer establishes OJT as the
preferred training method. Proposed
paragraph (b)(1) describes work-based
training and provisions for both AAWs
and AAIWs. Although the Act no longer
mandates work-based learning as the
preferred training method, the
Department maintains that work-based
training options like apprenticeship,
OJT, and customized training are
excellent training options for
establishing a career pathway and
rapidly returning trade-affected workers
to employment. Successful work-based
training requires implementing the
business engagement strategies
developed under WIOA sec. 107(d)(4) in
cooperation with the LWDBs.
Proposed paragraph (b)(2), which
describes institutional training, is
derived from 20 CFR 617.23(c)(2), but
does not contain the requirement
establishing priority to public area
vocational-technical schools. The
Department has added the reference to
community colleges in recognition of
their importance to the nation’s overall
training efforts.
Proposed paragraphs (b)(2)(i) through
(iv) are new and based on established
administrative guidance. These
proposed paragraphs establish criteria
for the approval of distance learning.
Proposed paragraph (b)(2)(i) requires
that the provider and trade-affected
worker be located within the United
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States. Paragraph (b)(2)(ii) requires the
distance learning program to meet the
criteria established under subpart F.
Proposed paragraph (b)(2)(iii) requires
the State to establish and monitor
milestones of a distance learning
program. This ensures that a tradeaffected worker continues to make
progress towards completing the
training. Paragraph (b)(2)(iv) establishes
that a trade-affected worker that fails to
meet the milestones established in
paragraph (b)(2)(iii) may be deemed to
have ceased participation in training
under subpart G (although AAIWs are
ineligible for TRA, this may be helpful
for States to use as a guideline).
Proposed paragraph (b)(3) is new and
defines the term ‘‘higher education’’ in
accordance with sec. 236(a)(5)(H) of the
Act.
Proposed paragraph (c), which
provides a nonexclusive list of other
specific types of approvable training
programs, generally follows 20 CFR
617.24(b) through (f). OJT, from 20 CFR
617.24(a), is discussed under
§ 618.635(a). The Department is not
retaining the heading of ‘‘Preferred
Training,’’ as there is no longer a
preference requirement in the Act. The
selection of training, as discussed in this
subpart, must be based on the need of
the trade-affected worker to return to
employment. This paragraph adds
career and technical education to the
list of approvable types of training
because they are included in the
Strengthening Career and Technical
Education for the 21st Century Act (Pub.
L. 115–224 (2018)), which supersedes
the Carl D. Perkins Career and Technical
Education Act of 2006, which
superseded the Vocational Education
Act of 1963, to which sec. 236(a)(1)(D)
of the Act refers.
Proposed paragraph (d) is new and
builds on proposed paragraph (b)(3) of
this section and administrative
guidance. It reflects the Department’s
conclusion that TAA Program funds can
be used to provide training to tradeaffected workers seeking to obtain an
advanced degree or to complete
coursework towards obtaining an
unfinished advanced degree. It clarifies
that workers who already possess an
advanced degree or credential must not
be denied further training for that
reason alone. Approved training for
advanced degrees is expected to be rare,
and States must exercise special care to
ensure that the costs are reasonable
under the criteria in proposed
§ 618.610(f)(2)(ii).
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Section 618.625 Payment Restrictions
for Training Programs
Proposed § 618.625 makes plain a
series of restrictions on payments for
training programs. It follows 20 CFR
617.25(b), but has been rewritten,
simplified, and condensed. Proposed
paragraphs (a)(1) through (3) are
unchanged from 20 CFR 617.25(b)(1)(i)
through (iii).
Proposed paragraph (b)(1) replaces the
last paragraph of 20 CFR 617.25(b)(1).
States must ensure that TAA Program
funds are not used to duplicate payment
of training costs by another source of
funds. Proposed paragraph (b)(2) is
unchanged from 20 CFR
617.25(b)(4)(i)(A)(2). Proposed
paragraph (b)(3) follows 20 CFR
617.25(b)(4)(ii)(B) with only minor word
changes and addresses State
establishments of nonduplication
procedures.
Proposed paragraph (c) permits the
State to share training costs. It is based
on sec. 236(a)(5)(F) and (6) of the Act,
allowing for the sharing of program
costs, and is derived from 20 CFR
617.25(b)(2) and (3).
Proposed paragraph (c)(1) contains
new provisions. It codifies that TAA
Program funds are the primary source of
Federal assistance to trade-affected
workers. It also implements sec.
236(a)(4)(A) of the Act, which forbids all
other funding under Federal law when
the TAA Program pays the training costs
for a trade-affected worker. However, if
the costs of training exceed State TaOA
funds, and if the Department has
notified the States that there are no
remaining TaOA funds to allocate,
including reserve funds, then States
may use other sources to continue
funding training, as provided in
proposed paragraph (d)(2)(ii) of this
section.
Proposed paragraph (c)(2) is a new
provision, added for the first time, and
has no comparable counterpart in
existing regulations or in administrative
guidance. Proposed paragraph (c)(2)
allows States to share training costs
with authorities administering nonFederal, State, and private funding
sources provided that there are
insufficient TAA Program funds to
cover the total cost of training. This was
added to give States more flexibility to
enter into cost-sharing arrangements
with non-Federal entities.
Proposed paragraph (c)(3) retains
language from 20 CFR 617.25(b)(3)(ii)(A)
prohibiting reimbursement from TAA
Program funds of any training costs that
were accrued before the approval of the
training program under the TAA
Program. Proposed paragraph (c)(4)
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60183
corresponds to 20 CFR 617.25(b)(2)(ii)
and (b)(3)(ii)(A), describing
prearrangements and what is required in
prearrangement agreements. Proposed
paragraph (c)(4)(i) explains that these
agreements may be entered into on a
case-by-case basis to address specific
training situations of trade-affected
workers or they may be part of a
statewide strategy. Prearrangements
help prevent duplication of the payment
of training costs. They also help ensure
that training costs that are reimbursable
are not paid from TAA Program funds,
which would violate sec. 236(a)(4)(B) of
the Act. In addition to describing that
prearrangements must be specific,
binding agreements entered into before
TAA Program funds are obligated,
proposed paragraph (c)(4)(ii) provides
new flexibility to States to determine
that after a training program has been
approved and TAA Program funds have
been committed if funds become
available under another source, the
State may decide to continue to pay for
the training under the TAA Program or
share those costs. If the decision is made
to share the costs, then the State must
enter into a prearrangement with the
other funding source to specify how the
worker’s training program will be
funded. The Department has added this
provision for clarity because it
specifically covers a situation not
previously addressed in the regulations.
Many States have adopted tuition-free
community-college programs for
residents, and States will need to
determine which program best meets
the needs of trade-affected workers. If a
cost-sharing agreement is put in place
after the training program has been
approved, then the worker’s approved
training program must be amended to
reflect the prearrangement. Proposed
paragraph (c)(4)(iii) follows 20 CFR
617.25(b)(3)(ii)(B) and is derived from
sec. 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 State providing that
TAA Program 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 paragraph (c)(5) follows 20
CFR 617.25(b)(4)(ii)(C) but clarifies it.
As required by sec. 236(a)(4)(C) of the
Act, in determining the amount of
training costs payable from TAA
Program funds, the State must not
consider payments to the trade-affected
worker under other Federal laws that do
not directly cover the costs of training.
Significantly, subchapter IV of the
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Higher Education Act of 1965, codified
at 20 U.S.C. 1087uu, provides that,
‘‘[n]otwithstanding any other provision
of law, student financial assistance
received under [subchapter IV of the
Higher Education Act] . . . shall not be
taken into account in determining the
need or eligibility of any person for
benefits or assistance, or the amount of
such benefits or assistance, under any
Federal . . . program.’’ This includes,
but is not limited to Pell Grants, benefits
under Supplemental Educational
Opportunity Grants, Federal educational
loan programs, Presidential Access
Scholarships, Federal student workstudy programs, and Bureau of Indian
Affairs Student Assistance. Therefore, a
State may not consider Federal student
financial assistance in determining
whether to approve training under the
Act and may not require the worker to
use such funds to pay the costs of
approved training. Federal student
financial assistance paid directly to a
worker is not deducted from the
worker’s TAA Program benefits. This
differs from 20 CFR
617.25(b)(4)(ii)(C)(1). The relationship
between Federal student financial
assistance and TRA is discussed in
subpart G. Proposed paragraph (c)(5)
also addresses the transition of Federal
student financial assistance recipients
from WIOA and other programs to the
TAA Program. Specifically, WIOA sec.
134(c)(3)(B)(i) (29 U.S.C.
3174(c)(3)(B)(i)) overrides 20 U.S.C.
1087uu and limits WIOA-funded
training services to individuals who are
unable to obtain other grant assistance
for training services, including through
Pell Grants, or who require assistance
beyond the assistance made available
under other grant assistance programs,
including Pell Grants. Federal student
financial assistance must cease to be
applied to tuition and other training
related costs that are covered by TAA
Program funds upon transition to the
TAA Program.
Proposed paragraph (c)(6) has no
existing reference in 20 CFR part 617
and has been added as a result of States’
technical assistance questions to the
Department. It addresses the situation
where a trade-affected worker’s firm
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, the 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,
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this proposed provision would require
the State to contract with an adversely
affected employer 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 State to assume the
cost of training and not require the
AAW to reimburse the employer. This
provides the State with greater
flexibility to leverage the use of
nongovernmental funds made available
by employers to AAWs. Workers funded
under this provision are, like all others,
still required to attend all classes and
participate fully in training to avoid the
establishment of an overpayment in the
event of a failure.
Proposed paragraph (d)(1) is new and
combines requirements at sec.
236(a)(7)(A) through (C) of the Act into
a single statement. Section 236(a)(7)(A)
through (C) states that the Secretary
shall not approve a training program
if—
• All or a portion of the costs of such
training program are paid under any
nongovernmental plan or program;
• the [trade-affected worker] has a
right to obtain training or funds for
training under such plan or program;
and
• such plan or program requires the
worker to reimburse the plan or program
from funds provided under this chapter,
or from wages paid under such training
program, for any portion of the costs of
such training program paid under the
plan or program.
Proposed paragraph (d)(1) simplifies
these statements by prohibiting the use
of TAA Program funds or wages paid
under the training program to reimburse
all or any portion of training costs from
any source, regardless of whether it is
from a Federal, State, nongovernmental
plan or program, or another source. The
authority for this is provided by
combining secs. 236(a)(4)(B), (6)(A), and
(7)(A) through (C). This is also partially
addressed in proposed paragraph (c)(6)
of this section. Proposed paragraph
(d)(2)(i), modifying 20 CFR
617.25(b)(5)(ii), prohibits the approval
of a training program if the tradeaffected worker is required to obtain
funds or pay training costs from TAA
Program funds or any funds belonging
to the worker from any source. This
prohibition follows sec. 236(a)(1) of the
Act, subject to the annual training cap
limitation under sec. 236(a)(2)(A).
Proposed paragraph (d)(2)(ii) requires
that if no TAA Program training funds
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are available, the States must seek other
funding, including the use of WIOA
national dislocated worker grant funds,
to provide training.
Section 618.630 Training of
Reemployed Trade-Affected Workers
Not in Suitable Employment
Proposed § 618.630, which follows 20
CFR 617.22(g), derives from sec. 236(d)
of the Act. This provision addresses
AAWs who cannot find suitable
employment but who obtain nonsuitable
employment. These AAWs, while
employed, continue to be eligible for
TAA Program training. 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 fullor part-time employment while a
participant in training (as discussed in
proposed § 618.615(b)). As provided in
sec. 236(d) of the Act, the AAWs may
not be determined ineligible or
disqualified for UI or TAA Program
benefits, including TRA, because they
left work that is not suitable
employment. However, choosing to
continue in such employment, either
part- or full-time, may have negative
effects on UI and TAA Program benefits,
including TRA and the possible loss of
the HCTC, if available. The wages
earned in such employment may impact
the weekly benefits payable under UI or
TRA.
Section 618.635 Work-Based Training
Proposed § 618.635 modifies 20 CFR
617.25(a) to set forth detailed
requirements for OJT, customized
training, and apprenticeship. The
requirements in proposed paragraph (a)
were not fully implemented in 20 CFR
part 617, so several new provisions have
been proposed to implement statutory
requirements from sec. 236(c) of the Act.
Proposed paragraph (a)(1) provides
the description of OJT that follows the
statutory definition at sec. 247(15) of the
Act. OJT must be provided under a
contract between the State and an
employer, which may be in either the
public or private sector, including
nonprofits. Proposed paragraphs (a)(1)(i)
through (iv) are derived from sec.
236(c)(1)(B) of the Act.
Proposed paragraph (a)(2) describes
components of related education.
Classroom training sponsored by the
employer and as part of the contract
may be part of OJT and may be provided
for part of the day with the balance of
the training day in a productive setting,
or in some other described schedule.
Proposed paragraph (a)(3) implements
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sec. 236(c)(3)(A) of the Act and requires
that that the OJT contract specify the
duration of the OJT, and be limited in
duration as appropriate. Although
statutorily limited to a maximum of 104
weeks under sec. 236(c)(3)(B) of the Act,
the length of an OJT contract must also
be limited to the specific vocational
preparation required for the occupation,
as listed on O*NET
(www.onetonline.org). Proposed
paragraph (a)(4) implements the
statutory language in sec. 236(c)(4) of
the Act, which excludes certain
employers from receiving OJT contracts.
Proposed paragraph (a)(5) sets out the
reimbursement provisions for the OJT
contract at a rate of up to 50 percent of
the wage rate for the OJT participant,
limited to the duration of the contract,
as provided in sec. 236(c)(5)(H) of the
Act. Proposed paragraph (a)(6) contains
the labor standards required by sec.
236(c)(5) of the Act for approval of the
costs of OJT. Proposed paragraphs
(a)(5)(i) through (ix) are essentially
unchanged from 20 CFR 617.25(a)(1)
through (7), (9), and (10), except for
minor language changes for
clarification. Paragraph (a)(8) of 20 CFR
617.25(a) has been dropped because of
the repeal of the previous language of
sec. 236(c)(8) of the Act, which required
the employer to certify that they will
continue to employ such AAW 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.
Proposed paragraph (a)(7) follows sec.
236(c)(2) of the Act, which requires
payments for OJT to be made to
employers in monthly installments.
This is a change from 20 CFR 617.25(a),
which requires payment in equal
monthly installments. The dollar
amounts of the monthly payments may
fluctuate because, though paid at the
same rate of pay, the payments may be
based on different numbers of hours
worked.
Proposed paragraph (a)(8), largely
adopted from sec. 233(d) of the Act and
20 CFR 617.18(c), is a reminder that
proposed § 618.780(c) provides that
AAWs engaged in OJT are not eligible
for TRA. It also explains that the AAW
may be considered ineligible for the
HCTC, if available. Proposed paragraph
(a)(9) allows for participants enrolled in
OJT to also enroll in RTAA, if they are
found eligible and all the requirements
are met, as described in subpart E.
Proposed paragraph (a)(10) conveys that
TAA Program funds may be leveraged
with WIOA funds to reach the
maximum reimbursement level
established under WIOA. Proposed
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paragraph (a)(11) states that the State
must not approve OJT, under sec.
236(a)(5)(i) of the Act, for AAIWs.
Proposed paragraph (b) implements
provisions related to customized
training, defined by sec. 236(f) of the
Act, and sets forth specific
requirements. Customized training is a
type of work-based training authorized
under sec. 236(a)(5)(A) of the Act.
Customized training was not addressed
in 20 CFR part 617 and is a source of
many technical assistance questions.
Implementing rules related to
customized training will provide
clarification about this type of workbased training. Proposed paragraph
(b)(1) describes that customized training
meets the special requirements of a
single employer or a group of employers
and may be provided by the same, or a
training provider, which could include
State or local staff. An example would
be a single machine shop or group of
small machine shops that require
employees with training on a specific
tool, software package, or process.
Proposed paragraph (b)(2) codifies that
for the purposes of customized training,
employer(s) must commit to employ a
trade-affected worker upon successful
completion of the training. The
employer(s) must enter into an
agreement with the State that describes
the conditions that must be met and
reiterates the expectation of
employment after training is completed.
Proposed paragraph (b)(3) requires the
employer(s) to pay for at least 50
percent of the costs for the training.
Proposed paragraph (b)(4) explains the
limitation from sec. 236(a)(10)(B) of the
Act that AAIWs are eligible for
customized training if the position is for
a position other than their adversely
affected position.
Proposed paragraph (c) is new and
establishes apprenticeship provisions
that specifically provide that both
registered apprenticeships under the
National Apprenticeship Act, as well as
other training programs that include a
paid work-based learning component
and required educational or
instructional component that results in
the issuance of an industry-recognized
credential, are approvable TAA Program
training activities. The Department
encourages comments on implementing
these new provisions. These provisions
are based on sec. 236(a)(5)(A) of the Act.
The requirement that an apprenticeship
lead to a recognized postsecondary
credential, which includes an industryrecognized credential, differentiates an
apprenticeship from a regular OJT.
Proposed paragraph (c)(1) limits the
duration of the paid work-based
learning component of an
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60185
apprenticeship to a maximum of 130
weeks, in line with the general
limitation on training duration in
§ 618.615(d)(3). However, the length of
the educational or instructional training
component is limited only by the
scheduled completion date of the
apprenticeship. In setting these time
periods for apprenticeship training, the
Department considered that the average
total program duration (from FY 2009 to
FY 2017) of an apprenticeship
participant in the TAA Program was 66
weeks. Only 38 weeks of this time was
spent in training (related instruction
component). The average duration for
TAA Program participants in an OJT
was 80 weeks, with 45 weeks of OJT
instruction. The TAA Program has been
criticized in the past for keeping tradeaffected workers out of the workforce
while they are receiving benefits. Such
criticism does not apply to OJT or
apprenticeship because these are workbased trainings and participants are
employed while participating in the
TAA Program. The Department
concludes that sec. 236(a)(5)(G) of the
Act allows the Department to establish
apprenticeships as a type of approvable
training under the TAA Program and to
establish regulations governing them.
Apprenticeship is not the same as a
regular OJT and is therefore not subject
to the duration limit at sec. 236(c)(3)(B)
of the Act.
Proposed paragraph (c)(2) describes
the expenses related to apprenticeship
that can be covered using TAA Program
funds. These costs include expenses for
the educational or instructional
component of an apprenticeship
(tuition, fees, tools, uniforms,
equipment, books, etc.). In addition, the
sponsor may be reimbursed not more
than 50 percent of the apprentice’s
regular wage rate for the cost of
providing the work-based training and
additional supervision related to the
work-based training provided by the
sponsor.
Proposed paragraph (c)(3) prohibits
States from entering into contracts with
sponsors that exhibit a pattern of failing
to provide apprentices with the
successful attainment of an industryrecognized credential or the
apprenticeship completion certificate if
a registered apprenticeship under the
National Apprenticeship Act.
Proposed paragraph (c)(4) is divided
into paragraphs (c)(4)(i) and (ii).
Paragraph (c)(4)(i) addresses compliance
with registered apprenticeships under
the National Apprenticeship Act.
Specifically, the costs for the registered
apprenticeship program, discussed in
proposed paragraphs (c)(2) and (3), may
only be approved by the State if the
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requirements of 29 CFR parts 29 and 30,
and Departmental administrative
guidance are met. Paragraph (c)(4)(ii)
addresses other apprenticeships. It
explains that costs for an apprenticeship
program will be approved if certain
labor standards are met.11 These are
based on the labor standards that apply
to OJT under sec. 236(c)(5) of the Act
and are applied to apprenticeships other
than registered apprenticeships,
although the labor standards at sec.
236(c)(5)(H) of the Act is incorporated
in proposed paragraph (c)(2)(ii), rather
than in proposed paragraph (c)(4)(ii).
Proposed paragraph (c)(5) instructs the
State to make individual benefit
determinations on TRA benefits to
AAWs and to inform the AAWs
considering apprenticeship of the
possible loss of eligibility for TRA and
the HCTC, if available. Proposed
paragraph (c)(6) allows for the
combination of apprenticeship and
RTAA, if all eligibility requirements
under subpart E are met. Proposed
paragraph (c)(7) defines the term
‘‘sponsor’’ as it relates to
apprenticeships. Proposed paragraph
(c)(8) requires the State to enter into a
contract with the sponsor that
establishes the terms and conditions of
the apprenticeship.
The Department will be monitoring
all participant outcomes achieved
through apprenticeships approved
under the Act via coordination between
OTAA and the Office of Apprenticeship
to ensure that AAWs who complete
apprenticeships continue to
successfully retain employment.
Section 618.640
Assistance
Supplemental
Proposed § 618.640 discusses the
requirements for TAA Program-funded
supplemental assistance in the form of
subsistence and transportation
payments. Proposed paragraphs (a) and
(b) describe general information and
application instructions and are derived
in part from 20 CFR 617.27(a) and (c)
and 20 CFR 617.28(a) and (d). It
eliminates outdated references to
expired workforce programs. Proposed
paragraph (a) also requires the need for
such payments to be documented in the
trade-affected worker’s IEP, if available,
or case file. Proposed paragraph (b)
requires the trade-affected worker to
submit an application for supplemental
assistance in accordance with subpart H
and the processes established by the
State.
11 The six criteria for the approval of training at
sec. 236(a)(1)(A)–(F) of the Act also apply to
apprenticeships.
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Proposed paragraphs (c) and (d)
correspond to, condense, and clarify 20
CFR 617.27 and 20 CFR 617.28,
respectively, regarding payments for
subsistence and transportation. They
codify the statutory provisions at sec.
236(b) of the Act. Proposed paragraph
(c)(1) clarifies that subsistence payments
include the costs of temporary living
quarters (separate maintenance), meals,
and incidental expenses, which was
previously inferred by the use of the
term ‘‘per diem’’ in 20 CFR 617.27.
Proposed paragraph (c)(2) establishes
the requirements for subsistence
payments. Proposed paragraph (c)(3)
limits the amount of subsistence
payments to the lesser of the worker’s
actual per diem expenses for
subsistence, or 50 percent of the
prevailing per diem allowance rate
authorized under the FTR (see 41 CFR
chapters 300 through 304) for the
location of the training facility.
Proposed paragraph (c)(4) requires
States to make subsistence payments
upon a worker’s completion of a week
of training, but allows States to advance
a subsistence payment for a week if the
State determines that doing so is
necessary to enable the worker to
participate in the approved training.
Proposed paragraph (d) provides that
a trade-affected worker must be
reimbursed for transportation expenses
when commuting to and from a training
facility located outside the worker’s
commuting area. Transportation
payments are solely for those miles
beyond the worker’s 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. Proposed paragraph (d)
establishes a maximum limit for
transportation payments of 90 percent of
the cost per mile at the prevailing
personal vehicle mileage rate authorized
under the FTR.
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 not within
commuting distance of a worker’s
residence. The Department proposes
limiting TAA Program-funded
transportation allowances to those miles
beyond the regular commuting area for
several reasons. The proposed change is
fairer to trade-affected workers who
travel to training within the commuting
area, who receive no allowance. It
encourages trade-affected workers to
attend training closer to home, which
avoids the costs and disruption of a
temporary relocation. And it preserves
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funds for actual training. Moreover,
trade-affected workers may still be able
to receive transportation reimbursement
within their commuting area if they
qualify under WIOA or a national
dislocated worker grant. See 20 CFR
part 680, subpart G.
Proposed paragraph (d)(2) is new and
has no comparable counterpart in
existing regulations or in administrative
guidance. It addresses transportation
payments for trade-affected workers
who are residing temporarily in the area
of training. It clarifies for the first time
that the per diem transportation
payment may not exceed the amount of
the per diem subsistence payment that
would be payable under proposed
paragraph (c)(3). Proposed paragraph
(d)(3)(i), which addresses transportation
payments, is derived from 20 CFR
617.28(b)(1), except that paragraph
(d)(3)(i) does not state that the travel
cost begins at the worker’s home, as
discussed above. Proposed paragraph
(d)(3)(ii) updates the reference to the
FTR and provides a U.S. General
Services Administration reference.
Proposed paragraph (d)(4) adds a new
provision that a trade-affected worker
must receive transportation payments
promptly after completion of a week of
approved training, and that payments
must be made at a minimum on a
monthly basis. This was added to make
sure that trade-affected workers are not
in a situation where they do not have
the resources to take transportation to
training because they have not been
reimbursed within a reasonable period.
Proposed paragraph (e) is new, added
for the first time, and has no comparable
counterpart in existing regulations or in
administrative guidance. It is intended
to assist States in understanding how
subsistence and transportation work
together. It explains that payment can be
made for both subsistence and
transportation, and proposed paragraph
(e)(1) newly clarifies that for the first
and last day of arriving and departing a
training, a trade-affected worker
receiving subsistence may receive
reimbursement transportation. This
means, for example, that workers no
longer have to choose between receiving
mileage reimbursement for driving to a
distant training and receiving
reimbursement for the cost of a hotel the
night before their training begins. An
example of proposed paragraph (e)(1)
would be where a worker travels outside
of the worker’s commuting area for a 1month training session. The TAA
Program would pay for travel on the
first day out to the new location,
subsistence during the training, and
then for the travel back home. On the
first and last day, there could
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potentially be payments for both travel
and subsistence. This exception is also
available, as described in proposed
paragraph (e)(2) in the event a tradeaffected worker fails to complete the
training for a justifiable cause, as
described in proposed
§ 618.780(b)(3)(iii).
Proposed paragraph (f) is derived in
part from 20 CFR 617.28(d), and
requires the State to adjust the payments
for transportation and subsistence for
any advance payments made to a tradeaffected worker in order to take into
account the amount of the advance that
is more or less than the amount that the
worker is entitled to receive. Proposed
paragraph (g) is new and has no
comparable counterpart in existing
regulations or in administrative
guidance. It clarifies for the first time
that trade-affected workers must submit
expense receipts. This will help to
ensure proper accounting and
management of Federal funds and is
consistent with proposed subpart D
regarding expenses for job search and
relocation allowances available to
AAWs.
Section 618.645 Voluntary Withdrawal
From a Training Program
Proposed § 618.645 establishes a new
requirement, added for the first time, for
a trade-affected worker’s voluntary
withdrawal from a training program.
This provision has no comparable
counterpart in existing regulations or in
administrative guidance. During its
oversight of the TAA Program, the
Department has encountered numerous
situations where a worker has
withdrawn from training. States have
also requested technical assistance and
interpretations of the Act and
regulations related to this topic. This
proposed section seeks to provide
direction to the States on this topic.
Proposed paragraph (a) provides that the
State must advise a trade-affected
worker who chooses to withdraw from
a TAA approved training program that
the withdrawal may, subject to the
requirements in subpart H, be
established as an overpayment and may,
subject to proposed subpart G, result in
ineligibility for TRA for AAWs.
Proposed paragraph (b) provides an
exception for service in the Uniformed
Services under the criteria set out in
§ 618.615(d)(4). Proposed paragraph (c)
allows for a trade-affected worker who
ceases participation in training for
justifiable cause as described in
§ 618.780(b)(3)(iii) to resume the
approved training program. Proposed
paragraph (d) recognizes that AAWs
who withdraw from training still may
receive job search and relocation
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allowances if they meet all the
eligibility requirements for these
benefits as set forth in proposed
§§ 618.410 and 618.440 of subpart D.
Proposed paragraph (e) is not a new
requirement but was clarified in
previously issued administrative
guidance. The goal of TAA approved
training is to help trade-affected workers
obtain suitable employment. The
acquisition of an apprenticeship
completion certificate or industryrecognized credentials forms an
important part of that long-term
reemployment strategy. Therefore,
States must provide training for TAA
Program training participants as
approved by the State in the training
program, even if the AAW becomes
employed in suitable employment
during that training. The State must
evaluate, with input from the AAW,
how the employment impacts the
AAW’s training program (and whether
the training program needs to be
amended); determine that training
completion serves the long-term
employment goals of the worker; and
the AAW must continue to meet
benchmarks that were established as
part of the approved training program,
even though the employed AAW is not
likely to be eligible for TRA payments.
Section 618.650 State Standards and
Procedures for Establishing Reasonable
Cost of Training
Proposed § 618.650 is new and does
not have a counterpart in 20 CFR part
617. It describes limitations on States
that establish a policy defining a ceiling
on the amount of training costs payable
for trade-affected workers. Section
236(a)(1)(F) of the Act requires States to
approve training suitable for the worker
and available at a reasonable cost.
‘‘Reasonable cost’’ in proposed
§ 618.610(f)(2) incorporates § 200.404 of
OMB’s Uniform Guidance (2 CFR
200.404) and its interpretive guidance.
The expenditure must be prudent under
those standards. Section 200.404
provides that ‘‘[a] cost is reasonable if,
in its nature and amount, it does not
exceed that which would be incurred by
a prudent person under the
circumstances prevailing at the time the
decision was made to incur the cost.’’
States must follow the prudent person
test to determine if the training costs are
reasonable and necessary for the tradeaffected worker to achieve the goals of
the TAA Program. Additionally, States
must also comply with the standards for
reasonableness in proposed
§ 618.610(f)(2), including those
permitting States to allow training other
than the least-cost option if the extra
cost is justified by better worker
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60187
outcomes or a faster return to the
workforce.
To achieve the goal of expanding
training opportunities for the largest
number of trade-affected workers, the
Department determined that States are
not prohibited from setting specific
training limit amounts, such as
matching the training limit amount to
the WIOA individual training account
limit in each local area, as a tool to
ensure they approve training for tradeaffected workers at a reasonable cost
that will lead to employment. Proposed
paragraph (a) informs States that
training limits may be established, and,
if limits are established, they must
reasonably take into account the varying
costs for training throughout the State.
The Department is concerned that a
statewide training cost ceiling could
result in unnecessary barriers to training
for trade-affected workers. In addition,
the State must have a method to
approve training exceeding the training
cap, and it must include a requirement
that a local area secure State approval to
exceed the statewide training cost
ceiling prior to approving the training.
Proposed paragraph (b) requires the
State to develop a policy that allows for
consideration and approval of training
costs that exceed the established
training cost limits set by the State. If
used, this exception will prevent the
denial of a training program solely
based on a cost limitation. While the
Department expects States will be
judicious in granting exceptions, the
Department recognizes that there will
likely be cases in which relief is
appropriate. The policy must include
transparent standards and procedures
that provide for prompt consideration of
any request to exceed the training cost
limit.
Proposed paragraph (c) requires the
State to propose an alternative training
program, when training is not
approvable due to exceeding the State’s
maximum amount established in policy
and the State policy to exceed,
described in proposed paragraph (b),
has not been met.
Proposed paragraph (d) requires
States to review their established policy
on a reasonable cost limit annually and
to change or remove the limits when
warranted. Proposed paragraph (e)
requires that whenever a State
establishes, modifies, or rescinds its
policy, the State must notify the
Department and provide full
documentation supporting its action to
the Department for review.
Proposed paragraph (f) explicitly
provides that there is no requirement
that a State establish a limit on training
costs.
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The Department also is considering an
alternative approach to establishing a
definition of available at a reasonable
cost. Under this alternative approach,
the Department would establish via
regulation that the soft cap would be
initially established as the local area’s
established limit for ITAs under WIOA.
Under this alternative approach, the
local area would be able to request to
exceed this cap to meet the needs of the
trade affected worker. The Department
seeks comments on both proposed
paragraph (a) and the alternative
approach the Department is considering.
Section 618.655 Training for
Adversely Affected Incumbent Workers
Proposed § 618.655 is new and
addresses the approval of training for
AAIWs. Section 236(a)(1) of the Act
includes the phrase ‘‘or an [AAIW]’’
after ‘‘[AAW]’’ in the provision for the
approval of training. The Act thus
extends to AAIWs the same training
benefits provided to AAWs under the
Act, except as provided in sec.
236(a)(10) and proposed
§ 618.635(a)(10) and (b)(4). Section
236(a)(1) of the Act allows workers
threatened with total or partial
separation from adversely affected
employment, AAIWs, to begin TAA
approved training before their
separation. TAA Program-funded
training for AAIWs is intended to allow
earlier intervention where layoffs are
planned in advance and the employer
can specifically identify which workers
will be affected, or where the threat of
separations are possible. AAIWs may
begin training before a layoff, thereby
reducing the time needed to complete
the training program after the separation
occurs and reducing the duration of the
worker’s weeks of unemployment.
Training options for an AAIW should be
designed to meet the long-term needs of
the AAIW based on the expectation that
the AAIW will be laid off. Training
programs may also be amended in
accordance with proposed § 618.665.
The criteria and limitations for approval
of training for AAIWs are the same as
they are for AAWs, except for certain
exclusions. AAIWs, like AAWs, are
entitled to supplemental assistance
(transportation and subsistence
payments), and employment and case
management services. Proposed
paragraph (a) clarifies that AAIWs are
eligible for approved training before
separation, and further clarifies that
AAIWs may apply for training and
States may approve training for any
AAIW at any time after the date on
which they are determined to be
individually threatened with separation
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regardless of filing for, receiving, or
exhausting UI.
Proposed paragraph (b) clarifies how
a State will verify that an AAIW is
threatened with total or partial
separation. This paragraph explains that
an AAIW is threatened with total or
partial separation when the AAIW has
received a notice of termination or
layoff from employment. Verification of
a threat of total or partial separation
may be obtained from the firm that is
trade impacted or another reliable
source that the State determines to be
appropriate.
Proposed paragraph (c) states that the
provisions of subpart F extend to
AAIWs, unless otherwise noted. It also
lists exceptions that apply to AAIW
training. Proposed paragraph (c)(1)
explains that training may not be
approved for an AAIW if such training
includes an OJT component consistent
with sec. 236(a)(10)(A) of the Act.
Proposed paragraph (c)(2) implements
the statutory requirement in sec.
236(a)(10)(B) of the Act that customized
training may not be approved for an
AAIW unless the training is for a
position other than the AAIW’s
adversely affected employment.
Proposed paragraph (d) implements
sec. 236(a)(11) of the Act, and provides
conditions for terminating the approval
of training for AAIWs, under certain
conditions. Paragraph (d)(1) requires the
State to continue to monitor that the
threat of total or partial separation
continues to exist for the AAIW during
the course of training approved under
the Act. The State must periodically
verify, with the AAIW’s employer, that
the threat of separation still exists before
funding each subsequent portion of the
training. Proposed paragraph (d)(2)
provides that if the threat of separation
is removed, TAA Program funding of
the AAIW’s training program must cease
at the conclusion of the most recently
funded portion, or semester or quarter.
The AAIW will be allowed to complete
any portion of the training program for
which the TAA Program has already
recognized an accrued expenditure;
however, no additional funding will be
available while the threat of separation
is removed. Funding may resume for the
original training program that had been
previously approved upon a
determination by the State that the
threat of separation has been
reestablished, or upon total or partial
separation from adversely affected
employment, if the requirements under
§ 618.610 are still met. The approved
training program must be amended in
compliance with proposed
§ 618.665(a)(1)(ix). Proposed paragraph
(d)(3) clarifies that, as with all training
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approvals under the Act, the AAIW is
only eligible for one training program
per certification; thus, a training
program begun prior to separation and
while under a threat of layoff continues
to constitute the one allowed training
program available to that AAIW.
Proposed paragraph (d)(4) provides that
the training duration limitations
addressed in proposed § 618.615 are
applicable to training program approval
for AAIWs. Proposed paragraph (d)(5)
further emphasizes that an AAIW will
not be eligible for a new or different
training program when a total or partial
separation occurs; however, the existing
training program may be amended
under the provisions of proposed
§ 618.665. Lastly, proposed paragraph
(d)(6) provides that the State must not
consider the AAIW’s threatened
employment suitable employment
under proposed § 618.610(a). Without
this interpretation, training for AAIW
would otherwise never be approvable.
Proposed paragraph (e) explains that
an AAIW may transition to an AAW.
Proposed paragraph (e)(1) provides that
the separation must occur prior to the
expiration of the petition under which
the AAIW was determined to be
threatened and the total or partial
separation must be for lack of work.
Proposed paragraph (e)(2) specifies that
once an AAIW has become an AAW
under the conditions specified in
paragraph (e)(1), the worker’s approved
training program must be amended, as
described in § 618.665, and the State
must determine what other benefits
under the TAA Program the worker may
now be eligible for, including TRA. Any
time spent in training as an AAIW
applies to the duration limits contained
in § 618.615.
The Department specifically
encourages comment relating to
proposed § 618.655, particularly on
potential strategies States may use to
encourage employers to inform their
workers of planned layoffs so that the
workers may apply for training as
AAIWs as early as possible. The
Department also encourages comment
on creative solutions for these workers
so that they can seamlessly transition
from threatened employment into new,
good-paying jobs.
Section 618.660 Training Benchmarks
Proposed § 618.660 is new and
provides the process for establishing
and monitoring compliance with
training benchmarks. Benchmarks are
required by sec. 233(f)(3)(A) of the Act
when the trade-affected worker enrolls
in an approved training program that
will extend beyond the duration of
payable weeks of Basic TRA and
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Additional TRA, for the purposes of
eligibility for Completion TRA, in
accordance with subpart G. Although
AAIWs are ineligible for TRA,
establishing training benchmarks is
recommended, as an AAIW may become
an AAW. The purpose of training
benchmarks is to allow early and
ongoing assessment of the performance
of a training participant to determine
whether the original training program is
a good fit. Benchmarks also function as
a protection of the appropriate
expenditure of TAA Program funds.
This section implements existing
operations of the TAA Program.
Proposed paragraph (a) requires States
to establish and document training
benchmarks for AAWs (and it is
recommended to do so for AAIWs) so
that they can meet Completion TRA
eligibility requirements described at
proposed § 618.765. The benchmarks
must be established when the tradeaffected worker enrolls in an approved
training program so that the State can
monitor the worker’s progress toward
completing the approved training
duration limits at proposed § 618.615.
Inclusion of benchmarks should occur
when the training program is initially
established and approved, and, in the
unusual event that benchmarks are not
included in the initial training program,
at such time the training program is
amended. Proposed paragraph (b)
requires training benchmarks to be
established for all but short-term
training programs, such as a 3-month
certificate program. The establishment
of benchmarks is a useful practice and
may be required later in the AAW’s
training if unanticipated circumstances
arise that extend the training beyond the
duration of payable weeks of Basic TRA
and Additional TRA. Proposed
paragraph (c) provides that to review the
trade-affected worker’s progress against
the benchmarks, States may request that
the training provider provide
documentation of the worker’s
satisfactory progress, including
instructor attestations, progress reports,
etc. The case manager may attest to the
worker’s progress after consultation
with the vendor and the worker.
Proposed paragraph (d) requires the
benchmarks to be described in the tradeaffected worker’s IEP, if available, or
otherwise documented in the worker’s
case file. Proposed paragraph (e)
requires that benchmarks be flexible
enough to allow for some variability
(e.g., a single course failure or missed
week of attendance may contribute to a
failed benchmark but should not, on its
own, make the AAW ineligible for
Completion TRA), and both practical
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and measurable enough to allow
administration across a broad spectrum
of training scenarios and State
environments. These benchmarks are
related to, but differ from, the
requirement that an AAW ‘‘participate
in training’’ as a condition of eligibility
for TRA. ‘‘Participation in training’’
merely requires that an AAW must
attend scheduled classes and required
events or otherwise follow the rules of
the training program in accordance with
the requirements documented by the
training provider, while training
benchmarks measure satisfactory
progress of the trade-affected worker
during their training. Training
benchmarks may be used to provide
early intervention that will provide the
opportunity to determine whether the
training program in place is appropriate
for the trade-affected worker or whether
it would be prudent to amend the
training program to meet the needs of
the worker better.
Section 233(f)(3) of the Act requires
an AAW to substantially meet
performance benchmarks to remain
eligible for Completion TRA. There are
two benchmarks that must be met. The
first is that the AAW is expected to
continue to make progress toward the
completion of the training. The second
is that they are on schedule to complete
the training during that period of
eligibility. In § 618.660(f), the
Department interprets these benchmarks
to mean that the AAW is maintaining
satisfactory academic standing (e.g., not
on probation or determined to be ‘‘at
risk’’ by the instructor or training
provider) and is on schedule to
complete training within the timeframe
identified in the approved training
program. Paragraph (f) requires these
benchmarks to be evaluated and
documented at least every 60 days,
beginning with the start of the approved
training program.
Under paragraph (g)(1), upon failure
to meet either or both of the benchmarks
for the first time during the same
evaluation period, the State must
provide a warning to the AAW that their
eligibility for Completion TRA is in
jeopardy. The warning may be provided
verbally, in writing, or both, and must
be documented in the worker’s case file.
An AAWs approved training program
may be amended after they fail to satisfy
one or both training benchmarks for the
first time. There is no requirement to
wait for a second substandard review. If
the first-time benchmark failure is of a
magnitude as to make a failure at a later
benchmark review likely, then the State
should reevaluate the training program,
if necessary, to improve the likelihood
that the AAW will complete the training
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program. Similarly, if an AAW is failing
two courses in one benchmark
assessment period, this will result in
only one substandard review; however,
if the failure of two courses makes
timely completion of training under the
approved training program unlikely,
then the training program should be
amended. Paragraph (g)(2) provides that
if an AAW who has previously failed to
meet a benchmark under paragraph
(g)(1) fails to meet a benchmark during
a subsequent benchmark review under
paragraph (f), the State must notify the
worker of their ineligibility for
Completion TRA. An AAW may elect to
continue in the approved training but
will not receive any Completion TRA
payments; or, the training program must
be amended according to proposed
§ 618.665, and Completion TRA
payments may resume. In cases where a
State denies payment of Completion
TRA because the AAW has not made
satisfactory progress toward training
benchmarks, the AAW may appeal the
determination through the appeal
process described in subpart H at
§ 618.552. An AAW may refuse an
amendment to the training program but
will not be eligible for Completion TRA.
Section 618.665 Amending Approved
Training
Proposed § 618.665 provides
conditions for amending an approved
training program. Proposed § 618.665
greatly expands upon the regulatory
provision 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, such as
remedial education or specific
occupational skills.’’ Proposed § 618.665
recognizes that more substantial
amendments may be necessary to
provide trade-affected workers with
skills necessary to obtain employment
and sets forth the circumstances, and
conditions, under which amendments
must be made. The ability to amend a
training program is not new but does
require some additional structure to
ensure consistent treatment of tradeaffected workers.
Proposed paragraph (a) requires the
State to work in cooperation with the
trade-affected worker in amending a
training program where the need for
such amendment was not foreseeable
and where the customer demonstrates
good cause for the need to amend.
Proposed paragraphs (a)(1)(i) through (x)
provide the list of conditions to be met
for an amendment to be appropriate.
One or more of the conditions must be
met. Proposed paragraph (a)(2) provides
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that the training duration limits at
proposed § 618.615(d)(3) apply to
amended programs. Proposed paragraph
(a)(3) requires an amendment to be
made before completion of the original
training program. Proposed paragraph
(b) sets forth the criteria that must be
met in order for a training program to
be amended. The Department concludes
that since the State is amending an
existing approved training program, not
all of the training approval criteria
described in proposed § 618.610 apply
to an amendment. For example, since
the State already determined that there
was no suitable employment available
when the training program was
originally approved, it is not reasonable
to conduct a subsequent review of
available suitable employment in order
to amend a training program. As a
result, proposed paragraphs (b)(1)
through (4) apply only Criteria 3
through 6, from proposed § 618.610 of
this subpart F, to amended training
programs.
G. Subpart G—Trade Readjustment
Allowances
Proposed subpart G covers the
eligibility requirements for, and the
amounts and duration of, TRA.
Proposed subpart G reorganizes and
simplifies some of the provisions of 20
CFR part 617 to make them easier to
follow and modifies or excludes
provisions of part 617 to reflect
statutory amendments and policy
determinations found in administrative
guidance.
Section 618.700 Scope
Proposed § 618.700 is new and does
not have a comparable section in 20
CFR part 617. It describes the scope of
this proposed subpart G.
Section 618.705 Definitions
Proposed § 618.705 is new and has no
comparable counterpart in existing
regulations or in administrative
guidance. It establishes for the first time
definitions of the terms ‘‘participating in
approved training’’ and ‘‘training
allowance’’ as used in this proposed
subpart G. It also addresses the issue of
wages as it relates to successor-ininterest. Proposed paragraph (a)
redresses the numerous references in 20
CFR part 617 that refer to ‘‘participation
in training’’ and replaces the term with
‘‘participation in approved training’’
throughout this subpart G. Part 617 does
not interpret or define this term, despite
using the phrase ‘‘participating in a
training program approved under [20
CFR] 617.22(a)’’ throughout. The term
‘‘approved training’’ takes the place of
‘‘training program approved under [20
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CFR] 617.22(a).’’ Proposed paragraph
(a)(1) describes ‘‘participating in
approved training’’ generally, relative to
attendance and taking part in on-site
classes, activities, and events as well as
covering excused absences. Proposed
paragraph (a)(2) describes the term
specifically for distance learning but is
otherwise the same as proposed
paragraph (a)(1) in this section.
Proposed paragraph (b) is new and
has no comparable counterpart in
existing regulations or in administrative
guidance. It establishes, for the first
time, a definition of the term ‘‘training
allowance,’’ which is used throughout
sec. 232 of the Act and in 20 CFR
617.13. The term ‘‘training allowance’’
has been used to describe such Federal
programs as Veterans Educational
Assistance and Supplemental
Educational Opportunity Grants
whereas payments would go directly to
the AAW, as opposed to payments
provided directly to a training provider.
Federal student financial assistance is
excluded from being a ‘‘training
allowance’’ and reasons for the
exclusion are discussed in more detail
in proposed § 618.745(c)(4).
Proposed paragraph (c) is new, added
for the first time, and has no comparable
counterpart in existing regulations or in
administrative guidance. It is not a new
interpretation or new concept. Instead,
it is an explicit clarification of existing
policy. This proposed paragraph is
derived from the definition of the term
‘‘firm’’ contained in 29 CFR 90.2 and in
proposed § 618.110, which provides that
any predecessors or a successor-ininterest are considered part of the same
firm for purposes of proposed subpart B.
Proposed paragraph (c) extends that
logic to the wages earned by a worker
that may be reported under the subject
firm named on a petition, a predecessor,
or a successor-in-interest. For purposes
of TRA, wages reported to a State or
paid to an AAW by a successor-ininterest are to be treated as weeks and
wages in adversely affected employment
for purposes of establishing TRA
eligibility.
Section 618.710 Categories of Trade
Readjustment Allowances
Proposed § 618.710 is new and
explains that there are three categories
of TRA: Basic, Additional, and
Completion. These three categories of
TRA are used throughout subpart G, so
the basic explanation here should make
the rest of proposed subpart G easier to
follow. This proposed section has no
parallel in part 617 but is part of
administrative guidance.
Proposed paragraphs (a), (b), and (c)
identify, respectively, Basic TRA,
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Additional TRA, and Completion TRA,
and reference their respective qualifying
requirements contained in later sections
in subpart G. Proposed paragraph (a)
describes Basic TRA, which is payable
to an AAW who meets the requirements
of proposed § 618.720. Proposed
paragraph (b) describes Additional TRA,
which is payable to an AAW who meets
the requirements of proposed § 618.760.
Additional TRA begins the first week
after exhaustion of Basic TRA.
Proposed paragraph (c), describes
Completion TRA, which is payable to an
AAW who meets the requirements of
proposed § 618.765. Completion TRA is
payable after exhaustion of Basic and
Additional TRA and only if the AAW is
pursuing a program leading to a
certificate or industry-recognized
credential, participates satisfactorily,
and the program is completed by the
established eligibility period. The
eligibility period will begin once the
individual files an initial claim for
Completion TRA, files for compensation
for a given week while participating in
TAA training, and is expected to
complete such training in the
established 20-week period during
which to receive Completion TRA. The
State must assist the AAW to meet these
strict requirements. The State must
work with the AAW to determine the
best timing for the start of the 20-week
period to ensure that the training will be
completed within the established
period. The first week of Completion
TRA cannot automatically be
established as the first week after
exhaustion of Additional TRA as doing
so could result in an AAW receiving no
Completion TRA at all. For example, if
a training program required 21 weeks
beyond the end of Additional TRA and
the first week of Completion TRA were
automatically started at the conclusion
of Additional TRA, no Completion TRA
would be payable as the AAW would
not complete the training within the 20week period.
Section 618.715 Applications for
Trade Readjustment Allowances and
Payment
Proposed § 618.715 covers
applications for TRA and payment.
Proposed paragraph (a) modifies 20 CFR
617.10(b) and changes the phrase ‘‘may
be filed within a reasonable period of
time after publication of the
determination certifying the appropriate
group of workers’’ to ‘‘must be filed after
publication of the certification of the
appropriate worker group’’ to clarify
that filing before a certification is issued
is not optional. It also omits all
references to applications for TRA that
appeared in 20 CFR 617.10(b) for weeks
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of unemployment beginning before the
initial application for TRA is filed
because it needlessly confuses the
requirement that TRA cannot be paid
until an AAW is covered by a
certification as described in proposed
paragraph (d) of this section. Proposed
paragraph (a)(2) provides that an
application for TRA must be filed
within the time limit applicable to
claims for regular compensation under
the applicable State law.
Proposed paragraph (b) is nearly the
same as 20 CFR 617.10(c) in providing
the procedures for filing TRA
applications, except that it updates
references to this subpart G and newly
provides for the filing and processing of
applications by any means allowed for
UI claims in the State, as reiterated in
proposed paragraph (e)(2) of this
section. This new provision allows
States flexibility in application
processing. In addition, proposed
paragraph (b) has been edited for clarity.
Proposed paragraph (c) is new and
has no comparable counterpart in
existing regulations or in administrative
guidance. It establishes for the first time
that TRA determinations are subject to
specified requirements in proposed
subpart H concerning determinations,
appeals, and hearings. It also requires
that an AAW’s case file include the
worker’s TRA applications and the
determinations on the applications.
These have been added for clarity, as a
result of State monitoring and oversight
findings.
Proposed paragraph (d) is new, added
for the first time, and has no comparable
counterpart in existing regulations or in
administrative guidance. It explains
when TRA is payable. Proposed
paragraph (d)(1) states that TRA
payments must not be made until a
certification is issued and the State
determines that the AAW is a member
of a worker group covered under the
certification, in accordance with sec.
231(a) of the Act. Proposed paragraph
(d)(2) also implements sec. 231(a) of the
Act and provides that the first week of
TRA entitlement is the week that begins
on or after the certification. This is a
change, which eliminates the provision
at 20 CFR 617.11(b) establishing the first
week of TRA entitlement as the later of:
(1) The week that begins more than 60
days after the date of the filing of the
petition that resulted in the
certification; or (2) the first week
beginning after the exhaustion of UI
entitlement. The 60-day waiting period
was removed from the Act and is no
longer applicable. Proposed paragraph
(d)(3) is new and specifies that an AAW
may receive only one form of TRA
(Basic, Additional, or Completion) for
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any given week. This has been added for
clarity.
Proposed paragraph (e) is new and
has been added to make clear that an
application is required for each TRA
benefit type available to the AAW.
States must ensure that workers are
provided timely information regarding
the specific requirements of the benefit
for which they are making application,
so that AAWs can file applications on
time. Proposed paragraph (e)(2) is new
and reiterates proposed paragraph (b) of
this section, which provides States the
flexibility for the filing and processing
of applications by any means allowed
for UI claims in the State.
Section 618.720 Qualifying
Requirements for Basic Trade
Readjustment Allowances
Proposed § 618.720 sets forth the
requirements for Basic TRA eligibility
and is largely taken from 20 CFR
617.11(a)(2) but contains some changes.
It replaces the term ‘‘individual’’ with
‘‘AAW’’ or ‘‘worker.’’ It also updates the
language about petitions and
certifications in subpart B and
references the terms ‘‘worker group’’
and ‘‘group of workers’’ in order to be
consistent with this part 618. Proposed
paragraph (a) updates 20 CFR
617.11(a)(2)(i) to conform to language
specific to part 618. Proposed paragraph
(b) replaces 20 CFR 617.11(a)(2)(ii) by
replacing paragraphs (a)(2)(ii)(A) and (B)
with the term ‘‘certification period.’’
Proposed paragraph (b) also proposes a
significant change in eligibility for TRA
by incorporating the amended definition
of ‘‘qualifying separation’’ that includes
partially separated workers. A
qualifying separation was previously
construed as requiring a total
separation, an interpretation provided
in 20 CFR 617.3(t)(2), based on sec.
233(a)(2) of the Act. The Department’s
exclusion of partially separated workers
from the definition of ‘‘qualifying
separation’’ has been based on 1988
amendments to the Act, codified in sec.
232(a)(2). The 1988 amendments added
a 104-week limitation period on the
receipt of Basic TRA that begins ‘‘with
the first week following the week in
which the [AAW] was most recently
totally separated from adversely affected
employment.’’ Public Law 100–418 sec.
1425(a). The Department’s prior
interpretation of sec. 233(a)(2) was that
it created a moveable 104-week
eligibility period for Basic TRA that
only could be initiated based on a total
separation. See 59 FR 906 (Jan. 6, 1994);
20 CFR 617.3(m)(1) (basing the
‘‘eligibility period’’ for Basic TRA
‘‘upon the most recent such total
qualifying separation’’).
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60191
The Department proposes that under
a plain reading of the Act, partially
separated workers are eligible for TRA
benefits if the requirements in sec. 231
of the Act are otherwise met. The
Department’s revised interpretation is
based on sec. 231(a) of the Act directing
that TRA payments ‘‘shall be made to an
[AAW]’’ who meets the requirements for
statutory eligibility contained in sec.
231(a)(1) through (5). The term AAW in
turn is defined in sec. 247(2) of the Act
as an individual who ‘‘has been totally
or partially separated’’ from adversely
affected employment because of lack of
work.
Section 231 of the Act prescribes the
qualifying requirements for receipt of
TRA. Section 231(a)(1) explicitly
references a partial separation. Further
support for this revised interpretation is
provided by sec. 231(a)(2) of the Act
that refers to partial separations with
respect to the earnings requirements to
establish TRA eligibility, and sec.
231(a)(3)(A) of the Act that refers to
partial separations in the context of the
eligibility requirement of UI
entitlement. Lastly, sec. 234(a)(2) of the
Act explains which State law applies
with respect to filing a claim for TRA
and references partially separated
workers.
The Department’s proposal to revise
the definition of the term ‘‘qualifying
separation’’ to include partial
separations raises the question of how to
interpret sec. 231(a)(5)(A)(ii) of the Act
that establishes the 26-week training
enrollment deadline, as well as sec.
233(a)(2) of the Act that establishes a
104-week eligibility period for Basic
TRA, because both sections of the Act
reference only total separations. Section
618.725 proposes to use the same 26week training enrollment deadline for
all qualifying separations, regardless of
whether the AAW experienced a total or
a partial separation. Similarly, § 618.755
limits the receipt of Basic TRA to 104
weeks, regardless of whether the
qualifying separation was total or
partial.
Proposed paragraph (c)(1) is much the
same as 20 CFR 617.11(a)(2)(iii)(A) but
has been revised for clarity in
accordance with the general changes
described in the preamble introduction
of proposed § 618.720. The phrase ‘‘first
qualifying separation, or any subsequent
total qualifying separation under the
same certification’’ has been replaced
with ‘‘total or partial separation from
adversely affected employment during
the certification period,’’ to explain the
requirements more specifically that
must be met for there to be a ‘‘qualifying
separation.’’ The phrase ‘‘where there is
more than one subdivision, the
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appropriate subdivision of that firm’’
has been added to address
circumstances where an AAW may have
been a member of a certified worker
group of an appropriate subdivision.
Proposed paragraph (c)(2) updates 20
CFR 617.11(a)(2)(iii)(B) by including
references to this part 618, rephrases
paragraphs (c)(2)(i) through (iv), and
reverses the order of paragraphs (c)(2)(ii)
and (iii).
Proposed paragraph (d) is
substantially the same as 20 CFR
617.11(a)(2)(iv).
Proposed paragraph (e) requires
exhaustion of UI prior to receipt of TRA
and sets forth two requirements.
Proposed paragraph (e)(1) requires
exhaustion of UI entitlement and is
based on 20 CFR 617.11(a)(2)(v)(A) and
(B), with three changes. First, proposed
paragraph (e) contains an exception to
the exhaustion requirement in 20 CFR
617.11(a)(2)(v)(B), under sec.
231(a)(3)(B) of the Act, that exhaustion
of additional compensation that is
funded by a State and not reimbursed
from any Federal funds, is not required.
This was from an amendment to the Act
included in TAARA 2002 and retained
by TAARA 2015. Second, it explains
that whenever an AAW becomes
entitled (or would become entitled if the
worker had applied therefore) 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 (e)(2) codifies
sec. 232(d) of the Act. This provision
allows an AAW to elect to receive TRA
instead of UI under certain
circumstances. The new entitlement
must be based on employment that
occurs after establishing the first UI
benefit period. In such scenarios, an
AAW may elect to receive TRA instead
of UI, provided that the initial UI claim
was exhausted, and the worker is
otherwise eligible for TRA.
In adopting this statutory amendment
to the WBA payable to an AAW,
Congress addressed a longstanding
problem resulting from AAWs working
after initially establishing TAA
Program/TRA eligibility. For example,
AAWs may have worked in part-time or
short-term employment during summer
breaks resulting in earning some wage
and thereby establishing a new and/or
subsequent UI benefit period with a
lower WBA. Previously, TRA eligibility
ceased if an AAW established a
subsequent UI claim, which in some
cases resulted in the AAW dropping out
of TAA approved training because the
WBA was substantially reduced once
the AAW became entitled to UI benefits
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while continuing or resuming training
after a break. This unwarranted outcome
discouraged workers from completing
training and from seeking employment
between training periods. The
Department’s interpretation is that
subsequent employment that forms the
basis of the subsequent UI benefit
period can be any employment,
including recalls to the adversely
affected employment.
Proposed paragraph (e)(3) details the
requirement that States provide the
AAW with a summary of their potential
UI and TRA benefits in writing and
document the AAW’s choice in the case
management file.
Proposed paragraph (e)(4) provides
that if the worker exercises the election
to receive TRA, State law governs what
happens to the valid UI claim filed. For
States where claims may be withdrawn
if no benefits are paid, the worker might
subsequently file a claim in a later
quarter, and the worker might
potentially exercise the TRA option a
second time. Furthermore, the election
made will be in effect until the election
is available once again or the benefit
chosen is exhausted.
Finally, it is important to recognize
that in most cases, the main driver for
the election is the possibility of a lower
WBA in the subsequent UI benefit
period, but other factors are also
relevant. For example, if the break in
TAA approved training is longer than
allowed for TRA to be payable, the
AAW may not be an eligible TAA
recipient for purposes of the HCTC, if
available. In the latter scenario, it may
be more advantageous to opt for the UI
eligibility because, during an extended
break in TAA approved training in
which TRA is not payable, the UI
benefit may allow the AAW to be an
eligible TAA recipient and potentially
be eligible for the HCTC.
Proposed paragraph (e)(5) provides
that the AAW must have no unexpired
waiting period applicable for such
worker for any UI, except when
collecting TRA.
Proposed paragraph (f) combines the
requirements in 20 CFR 617.11(a)(2)(vi)
and 20 CFR 617.17. Proposed paragraph
(f) also reorganizes and rephrases the
paragraphs containing the specified
means for meeting the Extended
Benefits (EB) work test requirements in
an easier to follow format. Proposed
paragraph (f) provides that the AAW
must be able and available for work and
must meet the EB work test
requirements set forth in proposed
paragraph (f)(1) for each week TRA is
claimed, except while enrolled in, or
participating in, approved training, as
explained in proposed paragraph
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(f)(2)(i). In addition, proposed paragraph
(f)(2)(ii) provides that the EB work test
requirements do not apply during a
break in training that does not exceed 30
days. Lastly, proposed paragraph
(f)(2)(iii) provides the weeks that the
worker is not subject to the EB work
test.
Proposed paragraph (f)(3) contains the
definition of ‘‘suitable work.’’
Specifically, the term ‘‘suitable work’’ is
either 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 sec. 202(a)(3)
of the EUCA. The applicable definition
depends on an AAW’s job prospects as
discussed in 20 CFR 615.8(d). For an
AAW with job prospects determined to
be ‘‘good,’’ the applicable definition is
that of claimants for regular
compensation. Conversely, where a
worker’s job prospects are ‘‘not good,’’
the EUCA definition applies, and it
considers any work within the worker’s
capabilities to be suitable. Lastly, the
proposed definition, as well as the part
617 definition, excludes selfemployment or employment as an
independent contractor from the
definition of ‘‘suitable work.’’
Proposed paragraph (g) follows the
‘‘participation in training’’ requirement
of 20 CFR 617.11(a)(2)(vii) with a few
significant differences. Proposed
paragraph (g) no longer contains the
definitions for ‘‘enrolled in training’’
and ‘‘completed training’’ in 20 CFR
617.11(a)(2)(vii)(D) because those
definitions have been incorporated into
subpart A of part 618. Proposed
paragraph (g)(1) provides the general
requirement that an AAW be enrolled or
participating in approved training or
have a training waiver approved under
proposed § 618.735, of this proposed
subpart G, in place in order to receive
Basic TRA. Proposed paragraph (g)
specifically references Basic TRA
because the participation in training
requirements differ from Additional
TRA and Completion TRA.
Proposed paragraphs (g)(2) through (4)
explain the circumstances in which an
AAW may receive Basic TRA for weeks
in which the general requirement in
proposed paragraph (g)(1) has not been
met. Proposed paragraph (g)(2) provides
the Department’s position that the
participation in training requirement
does not apply to a worker before what
is commonly referred to as the ‘‘26/26week deadline’’ for enrollment in
training found in sec. 231(a)(5)(A)(ii) of
the Act and incorporated into proposed
§ 618.725. Thus, an AAW may receive
Basic TRA up to the applicable training
enrollment deadline in proposed
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§ 618.725 without meeting the
participation in training requirement.
Applying the participation in approved
training requirement before the training
enrollment deadline would undermine
one purpose of the deadlines: to provide
sufficient time to identify and make
arrangements for an appropriate training
program. Further, applying the
participation in approved training
requirement before the deadlines would
cause some AAWs who do not
participate in approved training before
the training enrollment deadline to be
denied eligibility for the HCTC (if
available) because, by not meeting a
requirement for TRA eligibility, they
would not be an ‘‘eligible TAA
recipient’’ as is required to receive the
HCTC.
Proposed paragraph (g)(3), is
substantially similar to 20 CFR
617.11(a)(2)(vii)(B). This proposed
provision represents the interpretation
announced in administrative guidance
(TEGL No. 11–02, Change 3). It waives
the training requirement for claims for
Basic TRA for weeks of unemployment
beginning before the filing of an initial
claim for TRA (after publication of the
certification of the appropriate worker
group, as provided in proposed
§ 618.715(a) of this subpart G), and for
weeks before notification that an AAW
is covered by a certification and is fully
informed of the requirements for
enrollment in training.
Proposed paragraph (g)(4) codifies the
long-standing Departmental
interpretation that an AAW may receive
Basic TRA after completing approved
training even though the AAW will no
longer be participating in approved
training. To continue to receive TRA
upon completion of training, the AAW
must otherwise be eligible for Basic
TRA and must have met the
participation in approved training
requirements in proposed paragraph
(g)(1) of this section in a timely fashion.
Furthermore, an AAW whose
participation in a TAA approved
training program occurred on a parttime basis, in part or in its entirety, may
receive Basic TRA after completing such
training, even though no TRA eligibility
was established or received at the time.
This accommodates the statutory
requirement that part-time TAA training
is permissible and that after completion
of the training, Basic TRA may be
payable if the remaining eligibility
requirements of the Act are met.
Section 618.725 Training Enrollment
Deadlines
Proposed § 618.725 does not have a
counterpart in 20 CFR part 617 but is
administered by States based on
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administrative guidance. Proposed
§ 618.725 establishes the deadlines by
which an AAW must be enrolled or
participating in approved training, or
have a training waiver in effect as a
condition for receiving TRA. These
deadlines are commonly referred to as
the training enrollment deadlines or the
‘‘26/26-week deadlines.’’ There are five
possible deadlines outlined in sec.
231(a)(5)(A)(ii) of the Act and in
proposed § 618.725(a). The training
enrollment deadlines are: (1) The last
day of the 26th week after the worker’s
most recent qualifying separation; (2)
the last day of the 26th 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;
(4) the last day of a period where there
was a failure by the State to provide the
worker with timely information related
to the applicable deadlines; or (5) the
last day of a period to be approved for
enrollment after the termination of a
waiver. These training enrollment
deadlines are implemented in proposed
§ 618.725(a)(1) through (5) and are
discussed below in the preamble
discussion of those paragraphs.
Although the Act does not provide a
deadline for the issuance of a training
waiver, the Department’s position is that
the deadlines in proposed § 618.725(a)
are also applicable to the issuance of a
training waiver. If the training is
approved but not available at the time,
a waiver of such training is appropriate.
Proposed paragraphs (a)(1) and (2)
implement the training enrollment
deadlines that require an AAW to be
enrolled in training or have a waiver
granted no later than the last day of the
26th week after either the worker’s most
recent qualifying separation or the last
day of the 26th week in which the
certification was issued to receive Basic
TRA. This is also what is known as the
‘‘26/26-week deadlines.’’ The training
enrollment deadlines are established by
sec. 231(a)(5)(A)(ii)(I) and (II) of the Act.
Proposed paragraph (a)(3) implements
the deadline in sec. 231(a)(5)(A)(ii)(III)
of the Act that allows an AAW 45
additional days after the later of the
training enrollment deadlines described
above, if there are extenuating
circumstances that justify the extension.
The Act does not elaborate on what are
extenuating circumstances. Proposed
paragraph (a)(3) explains that
extenuating circumstances are those that
constitute good cause—unusual
situations that are beyond the control of
the AAW and that make enrollment
within the otherwise applicable
deadline impossible or unreasonable.
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Additional discussion of extenuating
circumstances and good cause is found
in the preamble for proposed § 618.730.
Proposed paragraph (a)(4) implements
sec. 231(a)(5)(A)(ii)(V) of the Act. The
Department determined the ‘‘last day of
a period determined by the Secretary’’
to enroll in training to be the Monday
of the first week occurring 60
consecutive calendar days following the
date of the AAW’s proper notification.
Proposed paragraph (a)(5) implements
sec. 231(a)(5)(A)(ii)(V) of the Act, added
by TAARA 2002, which directs the
Department to determine the deadline
by which an AAW must enroll in
approved training after the termination
of a waiver. The Department provides a
deadline of the Monday of the first week
occurring 30 consecutive calendar days
following the day of termination. The
Department has determined that 30
calendar days is sufficient time for a
worker whose waiver was terminated or
revoked to be advised of, and consider,
training options, select an option, and
enroll in training.
Proposed paragraph (b) provides three
exceptions to the training enrollment
deadlines listed in proposed paragraph
(a) of this section. Proposed paragraph
(b)(1) extends the training enrollment
deadline in specific circumstances
when a denial of a TRA application is
later overturned on appeal or
reconsideration. Proposed paragraph
(b)(2) is the Department’s interpretation
of the Special Rule with Respect to
Military Service established in sec.
233(i) of the Act for purposes of the
training enrollment deadline. If an AAW
who is a member of a reserve
component of the Armed Forces and has
served a period of duty during the
AAW’s Basic TRA eligibility period, but
before enrolling in training, the AAW’s
training enrollment deadline will be the
last day of the 26th week following the
last day of the AAW’s period of duty.
Additional rules regarding sec. 233(i) of
the Act are contained in proposed
§ 618.884.
Section 618.730 Good Cause
Proposed § 618.730 does not have a
counterpart in 20 CFR part 617 but is
administered by States based on
administrative guidance that
implements sec. 234(b) of the Act. The
Act uses three different concepts where
exceptions to certain deadlines are
appropriate: Extenuating circumstances,
justifiable cause, and good cause.
However, the Act does not explicitly
define these terms. Upon review of the
Act, the Department proposes that for
purposes of the TAA Program,
extenuating circumstance, justifiable
cause, and good cause will have the
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same meaning and application. In
determining whether to apply the
exceptions allowed under these
provisions, States should consider the
following: Whether the State failed to
provide timely notice of the need to act
before the deadline passed; whether
factors outside the control of the worker
prevented the worker from taking timely
action to meet the deadline; whether the
worker attempted to seek an extension
of time by promptly notifying the State;
whether the worker was physically
unable to take timely action to meet the
deadline; whether the employer warned,
instructed, threatened, or coerced the
worker in any way that prevented the
worker’s timely filing of an application
for TRA or enrolling in training;
whether the State failed to perform its
affirmative duty to provide advice
reasonably necessary for the protection
of the worker’s entitlement to TRA; or
whether there are other compelling
reasons or circumstances that would
prevent a reasonable person from
meeting a deadline.
Proposed § 618.730 simplifies
previously issued administrative
guidance. Proposed paragraph (a)
provides that States must apply the
good cause exception for waiving the
time limitations with respect to an
application for TRA, the training
enrollment deadline, and the receipt of
a training waiver, if the AAW makes a
showing of good cause. Proposed
paragraph (b) provides that for good
cause to exist, the AAW must have
acted diligently yet been unable to
complete the task described in proposed
paragraph (a) of this section because of
exigent circumstances. Finally,
proposed paragraph (c) provides that
good cause must always be determined
on a worker-by-worker basis.
The following factors should be
considered when determining whether
good cause exists:
(1) Whether the State failed to provide
timely notice of the need to act before
the deadline passed;
(2) Whether factors outside the
control of the worker prevented the
worker from taking timely action to
meet the deadline;
(3) Whether the worker attempted to
seek an extension of time by promptly
notifying the State;
(4) Whether the worker was
physically unable to take timely action
to meet the deadline;
(5) Whether the employer warned,
instructed, threatened, or coerced the
worker in any way that prevented the
worker’s timely filing of an application
for TRA or enrolling in training;
(6) Whether the State failed to
perform its affirmative duty to provide
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advice reasonably necessary for the
protection of the worker’s entitlement to
TRA; and
(7) Other compelling reasons or
circumstances that would prevent a
reasonable person from meeting a
deadline.
Section 618.735 Waiver of Training
Requirement for Basic Trade
Readjustment Allowances
Proposed § 618.735 addresses waivers
of the training requirement as a
condition for receiving Basic TRA. This
proposed section differs substantially
from the waiver provisions in 20 CFR
617.19(a)(2) and (b) through (d) because
there are fewer statutory bases for
waiver now. The Act, at sec. 231(c), has
three conditions for waivers of the
training requirement and the statutory
language for these conditions is used in
the proposed regulatory text. The
Department requests comments offering
more descriptive language about the
bases of these remaining three waiver
criteria.
Proposed paragraph (a) reorganizes
and rephrases 20 CFR 617.19(a)(2) and
implements the requirement of sec.
231(c) of the Act that a State may issue
a waiver of the training requirement to
an AAW if it finds that training is not
feasible or appropriate for one or more
of the reasons listed in proposed
paragraph (b) of this section. Proposed
paragraph (a) also explains that the
waiver must contain the information
required in proposed paragraph (c) of
this section, and newly specifies for the
sake of clarity that no waiver of the
training requirement is permitted for
Additional TRA or Completion TRA
eligibility. Finally, proposed paragraph
(a) requires, as discussed in the
preamble of proposed § 618.720(g) of
this subpart G that a waiver must be
issued no later than the latest of the
applicable training enrollment
deadlines described in proposed
§ 618.725 of this subpart G.
Proposed paragraph (b) replaces most
of 20 CFR 617.19(b)(2)(i) and (ii)
implements sec. 231(c) of the Act and
sets forth the permissible bases for
waiving the training requirement. Before
TAAEA, TAARA 2002 permitted a
waiver of the training requirement
where one of six conditions for finding
that the training requirement is not
feasible or appropriate was met. Prior to
TAARA 2002, the Department was not
limited to prescribed conditions for
determining whether training is not
feasible or appropriate. TAAEA reduced
the waiver conditions to the three that
are detailed in proposed § 618.735(b).
This reduction in the types of waivers
available was to place an additional
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emphasis on the training component of
the TAA Program rather than an
emphasis on income support. At least
one of these conditions must be cited in
any determination that training is not
feasible or appropriate for an AAW.
Proposed paragraphs (b)(1) through
(b)(3) of this section identify the three
conditions, 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 the
AAW is unable to participate in training
for health reasons. Proposed paragraph
(b)(2) implements the statutory waiver
criterion that the first available
enrollment date for the approved
training of the worker is within 60
consecutive calendar days after the date
of the waiver determination or, if later,
there are extenuating circumstances for
the delay in enrollment. Proposed
paragraph (b)(2) also repeats the 60
consecutive calendar day deadline
almost verbatim from the statutory
language and, for consistency, interprets
the phrase ‘‘extenuating circumstances’’
by applying the good cause provisions
at proposed § 618.730 for determining if
there are extenuating circumstances.
Proposed paragraph (b)(3) implements
the statutory waiver criterion that a
waiver of the training requirement may
be issued if training is unavailable.
Proposed paragraph (c) governs the
contents of a waiver and 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 (vii) to account
for the statutory change concerning
allowable conditions for issuing a
waiver, and is 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 and to
permit evidence of the AAW’s receipt
and acknowledgement of the waiver by
means other than the worker’s signature.
Electronic signatures are also permitted.
States may use paper-based or electronic
files (or a combination thereof) for
documentation purposes. Records in
either format must be made available to
the Department upon request or access
to those systems must be provided to
the Department upon request for
oversight purposes, in accordance with
proposed subpart H, and further
discussed in proposed paragraph (h) of
this section.
Proposed paragraph (d) has no
corollary in part 617 and was added to
clarify the parameters for requesting a
waiver. Proposed paragraph (d) advises
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that as a best practice, States may find
it helpful to determine if an AAW’s
initial assessment indicates the need for
a waiver. Proposed paragraph (d) also
allows an AAW to request a waiver from
the State before the applicable deadline
in § 618.725.
Proposed paragraph (e) slightly
modifies 20 CFR 617.19(a)(3) by
simplifying the language in order to
clarify the required contents of a waiver
determination denial. It requires that
whenever a waiver determination is a
denial, the AAW to whom the denial
pertains must be furnished with notice
of the denial, and that the notice must
contain certain specified information,
including the right to appeal consistent
with the procedures in proposed
§ 618.828 of subpart H.
Proposed paragraph (f) replaces 20
CFR 617.19(c)(1) due to statutory
revisions. Proposed paragraph (f)
implements the provisions of sec.
231(c)(2)(A) and (3)(B) of the Act.
Proposed paragraph (f)(1) implements
sec. 231(c)(2)(A) of the Act, which
requires that a waiver be in effect for not
more than 6 months after the date on
which it is issued ‘‘unless the Secretary
determines otherwise.’’
Proposed paragraph (f)(2) implements
the statutory authority to extend a
waiver beyond 6 months by providing
two criteria that must be met in order
for a State to extend a waiver. The first
criterion is that training continues not to
be feasible or appropriate for the AAW
for one or more of the reasons described
in proposed paragraph (b) of this
section, even if the original conditions
for issuing the waiver no longer apply,
and the second criterion is that the
worker has not yet exhausted their Basic
TRA entitlement. The first criterion
maintains the statutory requirement that
a waiver be in effect only if one or more
of the specified conditions for the
waiver are met. The Department is
proposing the second criterion because
a waiver of the training requirement
cannot be extended if the worker has
exhausted Basic TRA eligibility. The
Department has concluded that these
criteria provide the maximum flexibility
to extend a waiver within the spirit of
the statutory requirements for such
waivers.
Paragraph (f)(3) implements sec.
231(c)(3) of the Act by requiring regular
review of the waivers. States are
required first to review the waiver 3
months after it is issued to determine if
one or more of the criteria in paragraph
(b) of this section apply, but they are
encouraged to review the waiver every
30 consecutive calendar days during
this period. After the first 3 months,
States are required to review the waivers
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on a monthly basis. The Department has
concluded this requirement will be an
effective means of ensuring that the
waiver criteria continue to be met for
the duration of the waiver. A failure to
review waivers regularly would
undermine the statutory requirement
that waivers remain in effect only as
long as the basis for a waiver continues
to apply.
Proposed paragraph (g) revises 20 CFR
617.19(c) and implements sec.
231(c)(2)(B) of the Act, by requiring that
a waiver be revoked if the waiver
criteria are no longer met and that the
AAW be notified in writing of the
revocation. The notice to the worker
must contain the same information as
what would be required in a denial of
waiver issued under proposed
paragraph (e) of this section. The
revocation must contain appeal rights.
Omitted from the regulation in proposed
paragraph (g) are two suggestions from
20 CFR 617.19(c)(2) and (3) that have
been removed because they do not
impose substantive requirements. The
first states, ‘‘For example, a written
notice of revocation shall be issued to
the [AAW] concurrent with the approval
of the training in which the [AAW] has
enrolled (if such training is scheduled to
commence within 30 days), and shall
not be issued prior to such approval.’’
The second reads, ‘‘State agencies may
incorporate a revocation section in the
waiver form or on a separate revocation
form.’’
Proposed paragraph (h) revises 20
CFR 617.19(d) and implements the
statutory requirement in sec.
231(c)(3)(C) of the Act. Proposed
paragraph (h) implements this
requirement by requiring States to
transmit, upon request only, a copy to
the Department of any or all waivers or
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.
Information on waivers, at the
individual level, is also submitted to the
Department via the performance and
service reports submitted by the State
under sec. 249B of the Act. Electronic
copies are acceptable.
Section 618.740 Evidence of
Qualification for Basic, Additional, and
Completion Trade Readjustment
Allowances
Proposed § 618.740 is modeled after
20 CFR 617.12 and provides the
requirements for evidence of
qualification for Basic, Additional, and
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60195
Completion TRA. If the firm provides a
worker list to the State with enough
information to assist an AAW to apply
for TAA Program benefits and services,
the State should make every effort to use
the information provided to expedite
the application process and not delay
the application process by asking the
worker for duplicate information.
Proposed paragraph (a) is
substantially the same as 20 CFR
617.12(a) and contains the requirement
that States obtain the basic information
necessary to establish whether a TRA
applicant is eligible to receive TRA.
However, proposed paragraph (a)
excludes the requirement in 20 CFR
617.12(a)(2) that a State must obtain a
TRA applicant’s average weekly wage
for all AAWs. This information is not
administratively necessary in the case of
a TRA applicant who is totally
separated from adversely affected
employment, but is needed for partially
separated AAWs.
Proposed paragraphs (b) and (c)
include only one change from 20 CFR
617.12(b) and (c) and address obtaining
alternative information where records
are unavailable. Whereas 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 State must base a
determination on TRA entitlement and
benefit amounts, is substantively similar
to 20 CFR 617.12(d), but, rather than
requiring the State to make adjustments
to the suspect data and make its
determinations on the basis of the
adjusted data, requires the State to make
its determinations from the best
available information. This change
provides States with more flexibility.
Proposed paragraph (e) is new, added
for the first time, and has no comparable
counterpart in existing regulations or in
administrative guidance. It is included
as a clarification in response to
technical assistance provided to States
by the Department. Proposed paragraph
(e) instructs States to follow established
methods used for processing regular UI
claims. If, for example, the employer is
provided 10 days to respond to a request
for information under regular UI, then
the same process should be used for
TRA. If an employer does not respond
within the established timeframe, the
State must act on the best available
information.
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Section 618.745 Weekly Amounts of
Basic, Additional, and Completion
Trade Readjustment Allowances
Proposed § 618.745, governing the
determination of an AAW’s weekly
amount of TRA, whether Basic,
Additional, or Completion, is modeled
after 20 CFR 617.13. Proposed
paragraph (a) is similar to 20 CFR
617.13(a) except that it reformats the
section, simplifies the language, and
incorporates the eligibility of partially
separated workers for TRA. It specifies
that partially separated workers’ weekly
benefit amount must be calculated
under applicable State law. The NPRM
removes the language in 20 CFR
617.13(a) that discusses ‘‘varying
amounts related to wages with separate
employers’’ because this was an
exception used only by one State at the
time of the last promulgation of these
rules. That State no longer uses that
exception, so this language is not
needed. Proposed paragraph (b) has
been changed from 20 CFR 617.13(b),
and replaced with language from sec.
232(b) of the Act, except some language
has been simplified and it crossreferences proposed § 618.705 of this
subpart G, as the term ‘‘training
allowance’’ is not defined in the Act.
Proposed paragraph (c), requiring
specified reductions to the TRA weekly
amount, follows 20 CFR 617.13(c) in
some respects. Specifically, proposed
paragraph (c)(1) explains that the
weekly amount of TRA payable under
the section will be reduced (but not
below zero) by income that is deductible
from UI under the disqualifying income
provisions of the applicable State or
Federal UI law. The NPRM implements
the earnings disregard in sec. 232(a)(2)
that allows TRA recipients participating
in approved training to earn up to their
most recent weekly UI benefit amount
without a reduction in their TRA
payment. Proposed paragraph (c)(2),
which requires a deduction of the
training allowance (including a training
allowance referred to in proposed
paragraph (b) of this section) is modified
from 20 CFR 617.13(c)(2). Proposed
paragraph (c)(3) is taken directly from
sec. 232(c) of the Act but some language
is simplified, and again, a crossreference is provided to § 618.705 to
define the term ‘‘training allowance.’’
Proposed paragraph (c)(4) is intended
to resolve a conflict between sec. 232(c)
of the Act and a provision in subchapter
IV of the Higher Education Act (20
U.S.C. chapter 28, subchapter IV).
Specifically, sec. 232(c) of the Act
requires that an AAW’s TRA weekly
benefit amount be reduced by the
amount of a training allowance (note the
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term ‘‘training allowance’’ is defined in
proposed § 618.705) to which the
worker was entitled for that week under
any other Federal law. The Higher
Education Act, at 20 U.S.C. 1087uu,
prohibits taking into account Federal
student financial assistance received
under subchapter IV of the Higher
Education Act, or under Bureau of
Indian Affairs student assistance
programs, in determining the need or
eligibility of any person for benefits or
assistance, or the amount of such
benefits or assistance, under any Federal
program financed in whole or in part
with Federal funds. The provision at 20
CFR 617.13(c)(2) interprets training
allowances referred to in sec. 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)(4) resolves this conflict by excluding
the receipt of Federal student financial
assistance from the definition of
‘‘training allowance’’ in paragraphs
(c)(2) and (3) of this section. As a result,
the receipt of Federal student financial
assistance is not excluded from the
weekly amount of TRA payments, nor
are weeks in which Federal student
financial assistance is paid to be
deducted from the maximum number of
weeks for which TRA can be paid.
Proposed paragraph (c)(5) is
substantially the same as 20 CFR
617.13(c)(3) and requires that TRA
payments be reduced by any amount
that would be deductible from UI for
days of absence from training under the
provisions of the applicable State law
that apply to AAWs in training.
Section 618.750 Maximum Amount of
Basic Trade Readjustment Allowances
Proposed § 618.750 explains how to
calculate the maximum amount of Basic
TRA. It is derived from 20 CFR 617.14,
with a few substantive and
organizational differences. The
calculation in proposed paragraph (a) is
largely the same as 20 CFR 617.14(a),
except for two changes. The first change
is that additional compensation is not
included in the total sum of UI
entitlement that must be subtracted as
part of the calculation of the maximum
amount of Basic TRA. This results from
an amendment by TAARA 2002, and
retained by TAARA 2015, at sec.
231(a)(3)(B), that an AAW need not
exhaust additional compensation
funded by a State and not reimbursed
from Federal funds and, accordingly,
this entitlement is not reduced from the
maximum amount of TRA payable in
the first benefit period. This allows a
State to pay TRA either before or after
additional compensation.
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The second change concerns the
reduction for the total sum of the
AAW’s UI entitlement. Paragraph (a)(2)
of 20 CFR 617.14 provides that a
worker’s UI reduction must include, in
addition to any UI to which the worker
was entitled, 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 of 20 CFR
617.14(a)(2) created an unintended
result for AAWs who, during the first UI
benefit period exhausted regular
compensation, became eligible for EB
under 20 CFR part 615 and, while
continuously unemployed, could not
receive the full EB entitlement because
prior to EB exhaustion, the EB period
triggered ‘‘off’’ such that no further EB
benefits were payable in the State. This
proposition created a ‘‘manifest
injustice’’ because, while the statutory
and regulatory language implies that the
full entitlement must be reduced, the
AAW could not have filed and received
such benefits. The Department has
determined that the reduction of
benefits is mandated in the event the
AAW could have filed but did not
because such AAW was not eligible for
many reasons such as returned to work
or chose not to file. In this case, the
AAW would have been able to receive
the benefit had the worker filed and met
all other eligibility requirements. A
similar situation occurs when a worker
becomes eligible for a supplemental
compensation benefit amount, collects a
few weeks but forgoes the full
entitlement because the worker’s benefit
year ends and such worker is now
entitled to regular compensation in a
second benefit year. Reducing the entire
supplemental compensation entitlement
amounts to another example of a
‘‘manifest injustice’’ if the AAW is not
eligible for the remaining entitlement in
the future. Accordingly, the
Department’s revised position is that if,
and only if, the benefit was available to
the AAW, it must be reduced.
There is another situation to consider
and clarify such as when an AAW,
during the first UI benefit period, has
exhausted regular compensation,
became entitled and received TRA, and
subsequently becomes eligible for EB or
the supplemental compensation (in
such first benefit period). The EB and/
or supplemental compensation arising
from the first UI benefit period must be
exhausted prior to resuming TRA.
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Consequently, TRA must be suspended.
The AAW will receive the full
entitlement to EB and/or the
supplemental compensation until
exhaustion or until the worker is
eligible for a subsequent UI benefit
period. The amount of EB and/or
supplemental compensation payable
subsequent to the TRA paid during the
first UI benefit period reduces the
maximum amount of TRA payable such
that the AAW will receive the balance,
if any. The amount of TRA already paid
in the first benefit period also reduces
the maximum TRA benefit amount
payable. The initial amount of TRA paid
is not to be construed as an
overpayment, as the AAW was entitled
to such benefit at the time and properly
paid.
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 20 CFR
617.14(b)(3) that references additional
weeks and provides that nothing in that
paragraph will affect an AAW’s
eligibility for supplemental, increased,
or additional allowances. The
Department has concluded that this
language is unnecessary.
Finally, another difference between
proposed § 618.750(b) and 20 CFR
617.14(b) is that the heading for
proposed § 618.750 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
has determined it can accomplish the
same result simply by modifying the
section heading.
Section 618.755 Eligibility Period for
Basic Trade Readjustment Allowances
Proposed § 618.755, establishing the
Basic TRA eligibility period, differs
from 20 CFR 617.15. Proposed
paragraph (a) uses different phrasing to
state that AAWs are 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 AAW’s most recent
qualifying separation occurred except as
provided in paragraphs (b) and (c). As
provided in the revised definitions on
separations, this change is needed to
track the plain English meaning and
language of the Act. Additional
exceptions established under sec. 233(h)
of the Act are discussed in proposed
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§ 618.770. Deadlines and eligibility
periods may also be impacted by
periods of military service, as discussed
in proposed § 618.884, and by equitable
tolling, discussed in proposed
§ 618.888. Use of the word ‘‘qualifying
separation’’ in proposed § 618.755(a) in
place of ‘‘total qualifying separation’’ as
used in 20 CFR 617.15(a) incorporates
the same maximum eligibility period in
the case of partially separated AAWs.
Section 233(a)(2) of the Act provides
that no Basic TRA may be paid after the
close of the 104-week period after an
AAW was most recently ‘‘totally
separated from adversely affected
employment.’’ The Act does not address
when the receipt of Basic TRA must end
for partially separated workers, though
theirs count as qualifying separations
for TRA as proposed in § 618.720(b).
The Department proposes to limit the
receipt of Basic TRA to 104 weeks for
both partially and totally separated
workers, and use of the term ‘‘qualifying
separation’’ in proposed paragraph (a)
effects this result.
Proposed paragraph (b) is new and
has no comparable counterpart in
existing regulations or in administrative
guidance. This is a longstanding
practice that is proposed for
codification. It addresses situations
where certifications issued after delays
associated with litigation following
denials of petitions resulted in covered
worker groups with a limited eligibility
period or expired eligibility periods in
which to receive Basic TRA. Proposed
paragraph (b) tolls the eligibility period
during the pendency of any judicial or
administrative appeal of the
Department’s denial and establishes the
104-week eligibility period with the
week that begins after the certification.
Section 618.760 Qualifying
Requirements for, and Timing and
Duration of, Additional Trade
Readjustment Allowances
Proposed § 618.760, 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 § 618.760 are contained in
various sections of 20 CFR part 617 and
have been updated through
administrative guidance in the form of
Operating Instructions. These
requirements should be codified.
Proposed paragraph (a) contains
Additional TRA qualifying requirements
and is largely unchanged from 20 CFR
617.11(a)(2) (TRA qualifying
requirements), 20 CFR 617.15(b)(2)
(training application filing deadlines),
and 20 CFR 617.15(b)(3) (requirement of
participation in training except during
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breaks in training). Proposed paragraph
(a)(2) specifies that the AAW must have
exhausted Basic TRA before establishing
eligibility for Additional TRA. This
addition is intended to clarify that
Additional TRA is not a permissible
alternative to Basic TRA for an AAW
who missed the training enrollment
deadlines in § 618.725 and who lacks
good cause for failure to meet such
deadlines.
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 AAW may receive
up to 65 weeks of Additional TRA
during a 78-week period, as required by
sec. 233(a)(3) of the Act.
Proposed paragraph (b)(1) addresses
the first potential start date for the
receipt of Additional TRA, which is the
period immediately following the last
week of entitlement to Basic TRA.
Proposed paragraph (b)(2) provides the
second potential start date for the
receipt of Additional TRA, which is the
period beginning with the first week of
approved training, if the training starts
after the last week of Basic TRA.
Proposed paragraph (b)(3) provides the
third possible start date for Additional
TRA, which is the first week in which
training already in progress is approved
under subpart F. Proposed paragraph
(b)(3) is similar to 20 CFR
617.3(m)(2)(iii).
Section 618.765 Qualifying
Requirements for, and Timing and
Duration of, Completion Trade
Readjustment Allowances
Proposed § 618.765, providing the
qualifying requirements for, and
duration of, Completion TRA, is a new
section because Completion TRA was
added by TAAEA and administrative
guidance was issued to States. Proposed
§ 618.765 codifies sec. 233(f) of the Act
as well as provisions in administrative
guidance implementing the provision
and resolving policy issues arising from
the implementation.
Proposed paragraph (a) describes the
qualifying requirements and proposed
paragraphs (a)(1) through (3) contain the
eligibility criteria to receive Completion
TRA. Completion TRA can be paid only
if the AAW meets the qualifying
requirements for, and has subsequently
exhausted, Basic and Additional TRA.
Proposed paragraph (a)(4) requires that,
during the period in which the AAW is
eligible to receive Completion TRA, if at
any time the AAW fails to meet the
eligibility criteria in proposed
paragraphs (a)(1) through (3), the State
must make no further payments to the
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AAW. For example, if a worker has been
meeting training benchmarks as
required in proposed paragraph (a)(3)(i)
and was expected to complete approved
training within the established period,
but at the point of payment of week five,
there is an indication that approved
training will not be completed within
the established period, Completion TRA
payments must cease. However, weeks
of Completion TRA previously paid
based on information that was correct at
the time of payment is properly paid,
and therefore States must not treat them
as overpayments.
Proposed paragraph (b) describes that
sec. 233(f) of the Act gives the
Department discretion to establish the
eligibility period within which the 13
weeks of Completion TRA are payable
and training must be completed in order
to meet the Completion TRA eligibility
requirements. Proposed paragraph (c)
explains that the Department
determined that the eligibility period for
Completion TRA will be the 20-week
consecutive calendar period beginning
with the first week in which an AAW
files a claim for Completion TRA and
seeks compensation for such week,
regardless of when the first payment is
received. The eligibility period may be
extended for justifiable cause in
accordance with proposed § 618.770(a).
Proposed paragraph (d) requires that
States have a process for taking
Completion TRA applications and goes
on to say that although the 20-week
period may begin at the end of
Additional TRA, a State must not
automatically begin Completion TRA
the week following the end of
Additional TRA. States may not amend
the AAWs approved training program to
provide for a later 20-week eligibility
period for Completion TRA if: (1)
Training is interrupted after the AAW
has filed a claim for Completion TRA;
and (2) that interruption leads to a
training completion date that occurs
after the 20-week eligibility period in
the approved training program. The 20week eligibility period to receive up to
13 weeks of Completion TRA allows for
the flexibility of a break in training of
up to 7 weeks, but no more. In this
scenario, since the amended training
completion date is after the 20-week
eligibility period in the approved
training program, the worker will no
longer be eligible for Completion TRA.
In the same scenario, if a worker has not
yet filed a claim for Completion TRA,
the eligibility period for Completion
TRA has not begun. In that case, the
State may amend the AAWs approved
training program to provide for a later
training completion date and
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correspondingly later 20-week eligibility
period for Completion TRA.
Section 618.770 Special Rule for
Justifiable Cause
Proposed § 618.770 addresses the
Special Rule for Justifiable Cause
contained in sec. 233(h) of the Act.
There is no similar provision in 20 CFR
part 617. Proposed paragraph (a) allows
for an extension of the Basic,
Additional, and Completion TRA
eligibility periods for good cause
according to the same good-cause
standard found in proposed § 618.730,
as discussed in the preamble for that
section. Proposed paragraph (b)
specifies that while the eligibility period
for Basic, Additional, and Completion
TRA may be extended for justifiable
cause as determined by the State, the
maximum benefit amount and number
of weeks this benefit may be received
must not change.
Section 618.775 Payment of Trade
Readjustment Allowances During
Breaks in Training
Proposed § 618.775, governing
payment of TRA, whether Basic or
Additional, during breaks in training, is
substantially the same as 20 CFR
617.15(d) except that, as the result of a
statutory change to sec. 233(e) 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 paragraph (a)
eliminates the provisions in 20 CFR
617.15(d)(5) and (6), concerning the
effect of breaks in training on Basic and
Additional TRA payments and
eligibility periods, because the
maximum eligibility periods for Basic
and Additional are covered in detail in
§§ 618.750, 618.755, and 618.760.
Proposed paragraph (b) provides a basis
for counting days similar to 20 CFR
617.15(d). Proposed paragraph (c)
addresses breaks in training for
Completion TRA and references the
eligibility period for Completion TRA in
proposed § 618.765. No payments for
breaks in training are allowed, and the
worker only can be paid Completion
TRA for each week of approved training,
and then only if all of the Completion
TRA eligibility criteria are met. The 20week consecutive calendar period
within which an AAW may receive up
to 13 weeks of Completion TRA, in
accordance with § 618.765 of this
subpart G, allows the further flexibility
of continuing eligibility to accommodate
any break in training (scheduled or
unscheduled) of up to but no longer
than 7 weeks, so long as the worker
completes the approved training by the
end of the 20-week eligibility period.
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Section 618.780 Disqualifications
Proposed § 618.780, governing
disqualifications from receiving TRA, is
structured the same as 20 CFR 617.18.
Proposed paragraph (a) is as the same as
20 CFR 617.18(a) but is titled ‘‘General
rule’’ instead of ‘‘State law applies.’’
Proposed paragraph (b)(1)(i) is
unchanged from 20 CFR 617.18(b)(2)(i).
Proposed paragraph (b)(1)(ii) removes
the specific language in 20 CFR
617.18(b)(2)(ii) requiring training
combined with work to be more than 8
hours a day or 40 days in a week.
Instead, an AAW may refuse work
because such work either would require
discontinuation of approved training or
interfere with successful participation
in TAA approved training.
Proposed paragraph (b)(2)(i) follows
20 CFR 617.18(b)(2)(i), except that it
adds clarifications. 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 determined this language is
both inaccurate and unnecessary. It is
inaccurate because participation in
training is not an eligibility requirement
for job search or relocation allowances,
so that a TRA disqualification under
proposed paragraph (b)(2)(i) would not
affect the AAW’s entitlement to those
payments. It is 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,
would not receive benefits for which
participation in training is required as a
condition of receiving such benefits.
Specifically, proposed §§ 618.760 and
618.765 prohibit payment of,
respectively, Additional TRA and
Completion TRA for any week in which
the worker did not participate in
training.
Secondly, proposed paragraph
(b)(2)(i) includes two clarifications not
contained in 20 CFR 617.18(b)(2)(i). The
first is that an AAW who has justifiable
cause (as described in paragraph
(b)(3)(iii)) for a failure to begin
participation in approved training, or
for ceasing participation in such
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 concludes that if an AAW 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. In these situations, a waiver
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of the training requirement is not
needed. The second clarification is that
failure to begin participation in training,
cessation of participation in training, or
revocation of a waiver normally does
not change the eligibility periods in
proposed §§ 618.755, 618.760(b), and
618.765(b).
Proposed paragraph (b)(2)(ii) is a new
provision but is helpful if a person
reading proposed § 618.780 in isolation
overlooks the exception to the
participation in training requirement
contained in proposed § 618.720(g)(2).
Proposed paragraph (b)(2)(ii) provides
that the disqualification in proposed
paragraph (b)(2)(i) does not apply to an
AAW 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 they are covered by a TAA Program
certification and is fully informed of the
disqualification rules.
Proposed paragraph (b)(3) provides
the interpretation of three terms used in
proposed paragraph (b)(2). Proposed
paragraphs (b)(3)(i) and (ii) interpret,
respectively, ‘‘failed to begin
participation’’ and ‘‘ceased
participation’’ in training the same as in
20 CFR 617.18(b)(2)(ii)(A) and (B). Both
interpretations require that an AAW
participate in all classes and activities
in the training program, and the
Department thereby 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 justifiable cause.
TAA approved training is meant to
provide AAWs with the opportunity to
find new employment as quickly and
efficiently as possible. The Department
has determined that the best way to
carry out this intent, ensure that TAA
Program funds are effectively spent, and
improve program performance, is to
require that the AAWs who receive
those funds participate in every class
and activity in their approved training
program unless there is justifiable cause.
Proposed paragraph (b)(3)(iii)
interprets ‘‘justifiable cause’’ to mean
‘‘good cause’’ under proposed § 618.730
and as discussed in the preamble for
that section. Specifically excepted,
however, are excused absences, whether
or not those would otherwise meet the
stringent standard of good cause. This
exception is proposed so that workers in
training are held to the same standard
as other students.
Proposed paragraph (c), prohibiting
payment of TRA to an AAW for any
week during which the worker is
receiving OJT, is substantively similar to
20 CFR 617.18(c).
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Proposed paragraph (d), prohibiting
payment of TRA to an AAW for any
week during which the worker is
receiving part-time training, does not
have a comparable section in 20 CFR
part 617, as it is a new statutory
requirement in sec. 236(g) of the Act,
which has been implemented
provisionally via administrative
guidance in the form of Operating
Instructions.
H. Subpart H—Administration by
Applicable State Agencies
Proposed subpart H governs the
administrative requirements and rules
that States must follow in delivering
TAA Program benefits and services.
Proposed subpart H mirrors subpart G of
20 CFR part 617 with a few exceptions.
These exceptions include organizing
sections differently for improved clarity;
revising provisions to reflect recent
statutory amendments and policy
determinations; and adding new
sections to address requirements for
veterans’ priority of service, general
fiscal and administrative requirements,
and TAA Program performance.
Proposed subpart H also excludes some
provisions that are contained in subpart
G of 20 CFR part 617 because they are
based on expired laws. Other major
changes cover topics such as merit staff
requirements; actions the Department
may take in the absence of an executed
Governor-Secretary Agreement; State
submissions of administrative rulings
and waivers of training; veterans’
priority of service requirements;
program performance requirements; and
overpayment requirements and
instructions.
Section 618.800 Scope
Proposed § 618.800 sets out the scope
for subpart H. This provision states that
subpart H covers the administrative
requirements governing the TAA
Program. No similar provision exists in
subpart G of 20 CFR part 617. However,
OMB’s Uniform Guidance at 2 CFR part
200 and the Department’s exceptions at
2 CFR part 2900 also apply to the TAA
Program.
Section 618.804 Agreements With the
Secretary of Labor
Proposed § 618.804 addresses the
agreements between the States and the
Secretary (known as Governor-Secretary
Agreements) that are required under sec.
239 of the Act before a State may deliver
TAA Program benefits and services. It
follows 20 CFR 617.59, but reorders the
provisions and edits them for clarity.
Proposed § 618.804 omits the provision
at 20 CFR 617.59(d) requiring a newly
executed agreement following
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amendments to the Act. The Department
concludes that requiring this could
delay services to trade-affected workers
and cause unnecessary interruptions in
program operations. Although the
Department will require amended
Governor-Secretary Agreements in
certain circumstances, including for
significant statutory changes, services
will not be suspended while that
process is completed. This section also
lists the contents of the GovernorSecretary Agreements, which derive
from the requirements of the Act.
Proposed paragraph (a) is the same as
20 CFR 617.59(a) and requires States to
execute a Governor-Secretary
Agreement. Proposed paragraph (b),
which provides the requirements for
executing a Governor-Secretary
Agreement, is significantly rephrased
but remains substantively unchanged
from 20 CFR 617.59(b). Proposed
paragraph (b) recognizes the current
practice of executing agreements. A new
sentence, indicating the statutorily
mandated consequences to a State of not
entering into a Governor-Secretary
Agreement, has been added to proposed
paragraph (b). Should a State not
execute a Governor-Secretary
Agreement, sec. 3302(c)(3) of the
Federal Unemployment Tax Act (FUTA)
requires that credits provided to
employers under FUTA will be
suspended in that State until a
Governor-Secretary Agreement is
executed. Paragraph (b)(2) also requires
the State to execute an amended
Governor-Secretary Agreement, upon
the Secretary’s request, in response to
legislative, regulatory, or operational
changes. This is a change from 20 CFR
617.59(d), which required the States to
execute an amended agreement with the
Secretary prior to administering
amendments to the TAA provisions of
the Act. This revised provision gives the
Secretary the authority to require States
to execute a new Governor-Secretary
Agreement when there are amendments
to the Act or other changes to the
program that require amending the
Governor-Secretary Agreement. This
provision does not require a new
Governor-Secretary Agreement before
the State can continue to implement the
program. Proposed paragraph (a)(3)
contains the same requirement as 20
CFR 617.59(b), that an agreement will be
executed on behalf of the United States
by the Secretary.
Proposed paragraph (c) requires that
the executed Governor-Secretary
Agreement be available for public
review to individuals and organizations,
upon request. This was previously
required in 20 CFR 617.59(c).
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Proposed paragraph (d) establishes
the CSA as an agent of the United States
for purposes of receiving applications
and providing payments in accordance
with the Act. A similar provision
appears in 20 CFR 617.59(e). The
changes here act to conform the
regulation more closely to secs. 239 and
241 of the Act, which expressly identify
CSAs as agents of the United States only
for these particular purposes.
Proposed paragraph (e) discusses
breach of the Governor-Secretary
Agreement, the impact on certain
employer tax credits in a State deemed
in breach, and requires the Department
to provide reasonable notice and an
opportunity for a hearing before
determining that a State has breached
the Governor-Secretary Agreement. This
rephrases 20 CFR 617.59(f), but is not a
new provision.
Proposed paragraph (f) provides that
the Department is responsible for
monitoring and reviewing State
compliance with the Governor-Secretary
Agreement. It modifies 20 CFR 617.59(g)
by removing language assigning this
responsibility to the ETA Regional
Administrators. Although the ETA
Regional Administrators retain primary
responsibility for oversight of the grants
provided to States under this part, the
Department’s methods of oversight have
changed over time. There are now
multiple units within the Department
involved in components of grants
management and oversight in addition
to the regional offices. It also omits the
reference in 20 CFR 617.59(g) to
‘‘periodic’’ monitoring and review
because Departmental review is now an
ongoing process.
Proposed paragraph (g) requires States
to comply with the staffing flexibility
requirements proposed in § 618.890.
There is no similar provision in 20 CFR
617.20.
Proposed paragraph (h) provides a
nonexhaustive list of mandatory terms
for Governor-Secretary Agreements
between the Secretary and States. The
terms include the following:
• Provisions consistent with the
requirements of sec. 239 of the Act (19
U.S.C. 2311) providing for these
Governor-Secretary Agreements
(proposed paragraph (h)(1)). This
reminds States of, and ensures
compliance with, sec. 239 of the Act
without listing all its requirements.
• Authorization for the States to issue
waivers under proposed § 618.725
(waiver of the training requirement for
Basic TRA) and the requirement that the
State submit, upon request, to the
Department a copy of each such waiver
and, if not already contained within
each waiver, a statement of the reasons
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for such waiver (proposed paragraph
(h)(2)).
• The requirement that the State
supply data to the Department 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
(proposed paragraph (h)(3)). This is a
new requirement designed to implement
guidance from OMB on the Government
Performance and Results Act of 1993
(GPRA). GPRA requires, among other
things, that Federal agencies take steps
to improve the performance outcomes of
federally funded programs. While
proposed § 618.864 also requires States
to report specified data on TAA Program
performance outcomes to the
Department, the Department has
concluded that including a specific
provision in the Governor-Secretary
Agreements requiring reporting of
performance data would emphasize to
States the importance of pursuing
improved performance outcomes in the
TAA Program.
• Provisions establishing TAA
Program funds as the primary source of
Federal assistance to trade-affected
workers (proposed paragraph (h)(4)).
There are numerous workforce
development programs aimed at serving
dislocated workers, but the TAA
Program is the only program that
specifically serves trade-affected
workers. Thus, to ensure the most
efficient and effective use of Federal
funds, the Department is establishing
the TAA Program as the primary source
of funds for trade-affected workers. This
is not a new requirement. It has been
included in Governor-Secretary
Agreements. Operationally, this means
that while groups of workers covered
under a filed petition are to be served
with WIOA rapid response and other
funds, once a petition is certified under
subpart B, the source of funding must
shift to the TAA Program. The
Department’s regional offices will
continue to provide technical assistance
related to this matter.
Proposed paragraph (i) is revised from
20 CFR 617.59(i) and provides for the
operation of the TAA Program absent a
Governor-Secretary Agreement with a
State. Proposed paragraph (i) provides
that, should the need arise to operate
the program in a State without a
Governor-Secretary Agreement, the
Department will issue administrative
guidance informing trade-affected
workers within that State, and the other
States, about how the program will
operate. This paragraph also sets out a
list of options the Department may
pursue should a State fail to execute a
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Governor-Secretary Agreement or be
found in violation of the GovernorSecretary Agreement. The Department
may execute an agreement with another
State to operate the TAA Program;
execute an agreement with a qualified
organization that meets all requirements
of the TAA regulations within the State
to operate the TAA Program; or may
operate the TAA Program directly. In
the only instance this has ever occurred
since the establishment of the TAA
Program, the Department operated the
program directly, but each situation is
unique and the NPRM maintains the
Department’s flexibility to choose the
option best suited to the circumstances.
The Department encourages comments
regarding this topic. Proposed paragraph
(j) updates 20 CFR 617.59(h) to replace
references to programs and services
under the Workforce Investment Act
with a reference to WIOA and adds a
clarification of what constitutes a CSA.
Section 618.808 State Rulemaking
Proposed § 618.808 modifies 20 CFR
617.54 and breaks the section into
paragraphs. This section provides States
the authority and some flexibility to
establish laws, regulations, procedures,
or other policies related to the
administration of the TAA Program
while ensuring the Department can still
administer the uniform interpretation of
the program throughout the United
States. Proposed paragraph (a) rewords
20 CFR 617.54 and replaces the generic
term ‘‘supplemental procedures’’ with
specific references to the establishment
of laws, regulations, procedures, or
other policies not inconsistent with the
Act, this part 618, or administrative
guidance issued by the Department.
Proposed paragraph (b) retains the
requirement in 20 CFR 617.54 that
certified copies of the proposed law,
regulation, procedure, or other policy be
provided to the Department, but
removes the requirement for them to be
submitted on a form supplied by the
Department to accommodate the
improvements in technology that make
this process much easier. Proposed
paragraph (c) is unchanged from 20 CFR
617.54 and requires that all laws,
regulations, procedures, or policies by
the States be reviewed and approved by
the Department before taking effect. It
also authorizes temporary approval by
the Department, in cases of
administrative necessity, for a period
not to exceed 90 days. Proposed
paragraph (d) allows the Department,
after providing the State notice of at
least 30 days, to withdraw a previous
approval. This modifies 20 CFR 617.54,
which does not have a specific
minimum period for reasonable notice.
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Proposed paragraph (e) differs from 20
CFR 617.54 and requires States to follow
State UI law requirements for public
notice and opportunity for hearings on
rulemaking. Proposed paragraph (e)
more broadly also requires the State to
follow 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 notice of
changes to State plans or procedures,
such as WIOA, could apply.
Section 618.812 Subpoenas
Proposed § 618.812, authorizing
States to issue and enforce subpoenas, is
substantially the same as 20 CFR 617.53,
with one significant clarification.
Proposed paragraph (a) changes 20 CFR
617.53 to identify the purposes for
which subpoenas may be issued. These
provisions align with the Department’s
longstanding interpretation of the
provision. Proposed paragraph (b) is
new and has no comparable counterpart
in existing regulations or in
administrative guidance. It establishes
for the first time that States may use
subpoenas to gather information on
individual members of a certified
worker group. This addition clarifies the
Department’s position and addresses the
challenges that States face in obtaining
timely information from employers in
order best to serve trade-affected
workers. Lastly, proposed paragraph (c)
is the same as 20 CFR 617.53 with only
minor rewording.
Section 618.816 Trade Adjustment
Assistance Program Benefit Information
and Provision of Services to Workers
Proposed § 618.816 contains
requirements the States must meet in
providing TAA Program benefit
information and services to tradeaffected workers. It is significantly
modified from 20 CFR 617.4 and has
been moved from its previous location
to this subpart; however, the purpose of
20 CFR 617.4, to instruct what benefit
information must be provided, is
unchanged. Proposed § 618.816 omits
some provisions in 20 CFR 617.4 that
the Department concludes are
unnecessary or redundant. It updates
other provisions and adds new
provisions to reflect the various
amendments to the Act that have
occurred since the last rulemaking
occurred. It also includes some of the
requirements historically contained in
the agreements with the States, for
purposes of formal codification in
regulation and allowing for public
comment.
Proposed paragraph (a), requiring
States to provide general program
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information and advice to trade-affected
workers, is very similar to 20 CFR
617.4(a) and contains only minor
language changes. This requirement
derives from the obligation in sec.
225(a) of the Act to provide information
to trade-affected workers about the
benefits and services available to
workers and their associated
applications and timelines. The
information provided to workers must
cover all benefits and services available
under the TAA Program, including the
HCTC, if available.
Proposed paragraph (b) is a new
provision mandated by the Act that
requires States to provide rapid
response assistance and appropriate
career services, consistent with sec. 134
of WIOA, to all groups of workers
covered by a petition filed under
subpart B. The Governor, upon receipt
of a petition for TAA, must ensure the
availability of WIOA rapid response
assistance (described as ‘‘rapid response
activities’’ in 20 CFR 682.300, et seq.)
and appropriate career services to the
groups of workers covered by the
petition. These services are to be
provided as soon as possible after the
petition is filed. The Department
strongly encourages States to make the
full suite of career services available
under title I of WIOA available to
groups of workers using rapid response
funding to maximize layoff aversion.
These services must be made available
regardless of whether the petition is
ultimately certified.
Proposed paragraph (c) implements
sec. 235 of the Act and requires States
to provide specified employment and
case management services to tradeaffected workers. This is a new
provision that replaces 20 CFR 617.21.
Proposed paragraph (c)(2) requires that,
should there be insufficient TaOA funds
available under the TAA Program to
provide these services, States must
make arrangements to make available
these services through other Federal
programs, such as WIOA.
Proposed paragraph (d)(1) requires
States to provide assistance to groups of
workers to file petitions for TAA. It
combines requirements contained in 20
CFR 617.4(b) and (e)(2), simplifies the
language of those provisions, and adds
the authorization for States to file a
petition on behalf of a group of workers.
Section 239(g)(2) of the Act requires a
State to facilitate the early filing of
petitions for any group of workers that
the State considers ‘‘likely’’ to be
determined eligible. Proposed paragraph
(d)(2) provides guidance on a
determination of ‘‘likely to be eligible.’’
This means that the State has a
reasonable belief that a group of workers
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may be impacted by foreign trade.
Likelihood can be determined, for
example, by the existence of
certifications in the same industry,
sector, supply chain, or for another
location of the same firm. It may also be
based on observations of the State,
information provided by impacted
workers, the employer, a union, press
coverage, industry reports, or other
similar sources. Proposed paragraph
(d)(3) is reworded from 20 CFR 617.4(b)
to remove the specific reference to
‘‘unorganized’’ workers. Proposed
paragraph (d)(4) is not addressed in 20
CFR 617.4 but is authorized by sec.
225(a) of the Act, and it establishes that
the State shall provide whatever
assistance is necessary to enable groups
of workers to prepare petitions or
applications for program benefits. The
State must assist in the filing of the
petition where there is a likelihood of
eligibility, despite any objections from
other entities. Entities that may object,
such as firms, should be reminded that
a certification under the TAA Program
does not have an additional financial
cost to the firm.
Proposed paragraph (e) requires States
to provide certain information and
assistance to trade-affected workers after
issuance of a certification covering their
worker group. The provisions in
proposed paragraph (e) are substantively
similar to 20 CFR 617.4, but this
paragraph rephrases and reorganizes
them for clarity and simplicity. This
section continues to implement sec.
225(b) of the Act, which requires
written notices to each trade-affected
worker, via the mail, and a general
notice through newspaper
advertisements. Proposed paragraph
(e)(1), which was previously in 20 CFR
617.4(c), implements sec. 225(a) of the
Act and requires States to inform the
State board on vocational and technical
education or equivalent agency, and
other public or private agencies,
institutions, and employers, as
appropriate, of each certification issued
under subpart B and of projections, if
available, of the needs for training under
subpart F as a result of such
certification. These efforts should be
coordinated with State and local
workforce development boards (LWDBs)
established under WIOA. Proposed
paragraph (e)(2) is similar 20 CFR
617.4(d)(1) but adds to the information
that must be included in the written
notice mailed to each worker covered by
a certification, including information
regarding the training enrollment
deadlines (set forth in proposed
§ 618.720(c)) that are a condition of TRA
eligibility. Proposed paragraph
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(e)(2)(viii) specifically requires the State
to include a Babel notice. A Babel notice
is a short statement in multiple
languages informing the reader that the
communication contains vital
information and explaining how to
access language services to have the
contents of the communication
provided in other languages. Although
this is the first explicit reference to this
requirement in TAA Program
regulations, this is not a new
requirement for workforce development
or UI programs. The Department already
addressed this practice in
administrative guidance, specifically
UIPL No. 30–11, ‘‘State Responsibilities
Regarding Limited English Proficient
(LEP) Individuals,’’ and TEGL No. 26–
02, ‘‘Publication of Revised Guidance
Regarding the Title VI Prohibition
Against National Origin Discrimination
Affecting Limited English Proficient
(LEP) Persons,’’ which both seek to
ensure full implementation of title VI of
the Civil Rights Act. Proposed
paragraph (e)(3) provides that it is
permissible to obtain a list of workers
that are partially or totally separated
from adversely affected employment or
threatened with separation via subpoena
pursuant to proposed § 618.812.
Proposed paragraph (e)(4) maintains the
requirement that notice of certification
be published in a newspaper of general
circulation. In particular, the
Department is interested in learning
what the States believe to be the most
effective and least burdensome ways of
ensuring that workers covered by a
certification receive notice and a
meaningful opportunity to receive TAA
benefits should they so choose.
This NPRM eliminates the provision
in 20 CFR 617.4(d)(2) that exempts the
State from publishing a newspaper
notice if the State can substantiate that
all workers have received written notice
about the certification. Upon further
review of this regulation, the
Department has concluded that this is
not consistent with the notification
requirements contained in sec. 225(b)(2)
of the Act. The Department welcomes
comments related to the definition of
‘‘newspaper of general circulation’’ and
the interpretation of that term as it
relates to the significant expansion in
digital media since the original
promulgation of 20 CFR part 617.
Proposed paragraph (e)(5) codifies
sec. 239(f) of the Act and requires that
upon receipt of a copy of a certification
issued by the Department, the State
must perform outreach to, intake of, and
orientation for trade-affected workers
covered by the certification with respect
to assistance and benefits available
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under this part 618. There is no direct
similar provision in the existing rule.
Proposed paragraphs (e)(6) and (7) are
new provisions, added for the first time,
and have no comparable counterparts in
existing regulations or in administrative
guidance. Proposed paragraph (e)(6)
requires, in addition to the written
notices sent by mail, that the State also
use one method of modern electronic
communication, such as email, to
inform workers of the certification. The
Department has concluded that the use
of modern communication methods will
better give notice to workers of their
entitlement to TAA benefits and, if
applicable, other program opportunities
available under the public workforce
system. Proposed paragraph (e)(7)
allows States the flexibility to use social
media and other means to reach
workers.
Proposed paragraph (f) requires States
to provide specific benefit assistance to
workers. In addition to all of the
benefits described in detail in this part
618, States must also include
information on the HCTC, if available as
described in subparagraph (B) of sec.
35(b)(1) of the Internal Revenue Code of
1986. 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
sec. 225(b)(1) of the Act to require that
the State provide notice to each member
of a worker group that it can reasonably
identify as being covered by a
certification whether or not that worker
has applied for UI. This is especially
important for AAIWs who are still
employed and, thus, will not file a UI
claim but are still potentially eligible for
TAA approved training and
employment and case management
services. Where a petition has already
been certified, the State must provide
TAA Program information to all tradeaffected workers covered by the
certification. Where a petition is still
pending, the State must provide the
TAA Program information to the tradeaffected workers covered by the petition
following issuance of the certification.
Proposed paragraph (f)(2) combines
the requirements of 20 CFR 617.4(e)(3)
and (4) into a single paragraph because
they are closely related. The language
has been changed to emphasize the need
for the State to provide in a timely
manner the information and
employment and case management
services that trade-affected workers are
entitled to receive to preserve eligibility
for TAA Program benefits.
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Section 618.820 Determinations of
Eligibility; Notices to Individuals
Proposed § 618.820 contains
procedural requirements that apply to
State benefit determination and
redetermination processes. There are
three substantive changes from 20 CFR
617.50. 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 decided under
State law. The second difference is in
proposed paragraphs (f) and (g).
Proposed paragraph (f) requires the
prompt payment of benefits when due,
a requirement adopted from standard
procedures under UI. Proposed
paragraph (g) is unchanged from 20 CFR
617.50(g). Lastly, the language from 20
CFR 617.50(b) has been simplified and
incorporated into the NPRM. There is
no operational impact as a result of the
revised language. The Department has
also made other nonsubstantive changes
to simplify the language in this section.
Section 618.824 Liable State and
Agent State Responsibilities
Proposed § 618.824, concerning the
respective responsibilities of a liable
State and agent States, updates 20 CFR
617.26 to reflect secs. 235, 237, 238, and
245 of the Act and reorganizes the
requirements. In addition, the
definitions for agent State and liable
State are now found in subpart A of part
618. The changes are discussed below.
Proposed paragraph (a) is largely
unchanged from 20 CFR 617.26(a) but
reorders information and breaks it up
into subordinate paragraphs. Proposed
paragraph (a)(3)(i) adds the requirement
for liable States to provide rapid
response and appropriate career services
(as described in sec. 134 of WIOA) to a
group of workers for whom a petition is
filed as required by sec. 221(a)(2)(A) of
the Act. Proposed paragraph (a)(3)(ii) is
new and provides that career services
established under other Federal laws
must also be made available to the
group of workers, to the extent
authorized by those laws. This NPRM
does not attempt to identify all Federal
laws that may be applicable. It is
included to ensure that trade-affected
workers are fully integrated into the
public workforce system and are not
excluded from any career services
available to other dislocated workers.
Proposed paragraph (a)(3)(iii) is new
and has no comparable counterpart in
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existing regulations or in administrative
guidance. It clarifies for the first time
that, in some instances, the liable State
may seek assistance from one or more
agent States in the provision of rapid
response and appropriate career
services, especially in situations where
residency of the group of workers is
divided into two or more States.
Proposed paragraph (a)(4) updates
language from 20 CFR 617.26(a) but has
the same meaning. Proposed paragraph
(a)(5) is new but codifies administrative
guidance. It requires a liable State to
provide lists of eligible TAA recipients
and eligible RTAA recipients to the IRS.
These lists are necessary for the IRS to
determine who is potentially eligible to
receive the HCTC and must be provided
if HCTC is available, as States have been
doing in accordance with administrative
guidance. 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 § 618.816(e)(4).
Proposed § 618.824(b) is largely
unchanged from 20 CFR 617.26(b) but
reorders information and breaks it up
into subordinate paragraphs. Proposed
paragraph (b)(4) contains new language
requiring the provision of employment
and case management services, as
described in subpart C. Proposed
paragraph (b)(6) contains new language
referencing subpart F and requires agent
States to secure and pay the cost of any
approved training and subsistence and
transportation payments, according to
determinations issued by the liable
State. Whether the agent or liable State
was responsible for payment of job
search and relocation allowances was
omitted from 20 CFR 617.26. Proposed
paragraph (b)(7) is new and establishes
that the agent State is responsible for the
payment of job search and relocation
benefits. Lastly, proposed paragraph
(b)(8) adds language that requires agent
States to assist in other activities and
functions required by the GovernorSecretary Agreement, and is modified to
specify that this includes assisting in
the review of petitions by verifying such
information and providing such other
assistance as the Department may
request. In certain circumstances,
especially when layoffs occur near a
border between States, there may be
multiple agent States. Workers may
choose to access services at a one-stop
center closer to their residence rather
than near their place of adversely
affected employment. This may result in
there being multiple agent States
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involved in serving the same group of
workers.
Proposed § 618.824(c) is new and
clarifies that in most instances, the
liable State and agent State are the same
State, and that, when this occurs, the
State is responsible for all activities
listed in proposed § 618.824(a) and (b).
Section 618.828 Appeals and Hearings
Proposed § 618.828 provides
requirements governing appeals and
hearings of TAA Program
determinations and redeterminations. It
reiterates the requirements in 20 CFR
617.51, but slightly rephrases the
language for clarity and also adds two
new paragraphs. Proposed paragraph (a)
largely follows 20 CFR 617.51(a), but
notes that there are exceptions to the
general rule that the applicable State
law applies to appeals of TAA
determinations or redeterminations.
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 Department, must be handled in
accordance with the procedures of 29
CFR parts 31, 32, 35, 36, and/or 38, as
provided in proposed § 618.894
(Nondiscrimination and equal
opportunity requirements). This
clarification helps ensure that proper
procedures are followed where a
claimant alleges discrimination.
Proposed paragraph (c) follows 20 CFR
617.51(b) requiring appeals to be
decided with a degree of promptness.
Proposed paragraph (d) is new and
has no comparable counterpart in
existing regulations or in administrative
guidance. It addresses for the first time
the impact of a reversal of a denial of
a training program. In the case of a
redetermination or decision reversing a
training denial, the redetermination or
decision must be given effect
retroactively to the date of issuance of
the determination that was subsequently
reversed. No costs of training may be
paid unless such costs actually were
incurred for training in which the
individual participated, and no TRA
may be paid with respect to any week
during which the individual was not
actually participating in the training.
Section 618.832 Overpayments;
Penalties for Fraud
Proposed § 618.832, concerning
overpayments, fraud, and penalties for
fraud, generally repeats 20 CFR 617.55,
but reorganizes the section for clarity.
Proposed § 618.832 slightly rephrases
some of the provisions in 20 CFR 617.55
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60203
and also contains a few substantive
differences from 20 CFR 617.55.
Proposed § 618.832 omits provisions in
20 CFR 617.55(h) on use of TAA
Program funds to offset other debts.
Because of the importance the
Department places upon these
provisions, proposed subpart H devotes
a separate proposed section to this
issue, § 618.836.
Proposed paragraph (a)(1) updates the
requirements in 20 CFR 617.55(a) based
on the amended statute. The most
significant change is that the decision to
waive overpayments under certain
conditions is now mandatory rather
than optional. While the no-fault
requirement remains, as described in
proposed § 618.832(a)(1)(i) and (ii),
instead of an ‘‘equity and good
conscience’’ standard described in 20
CFR 617.55(a)(1)(ii), States must look to
whether repayment would constitute a
financial hardship. Proposed paragraph
(a)(2) provides rules for the
administration and interpretation of
financial hardship for overpayment
waiver purposes.
Proposed paragraph (a)(3) requires
that workers be provided a reasonable
opportunity to demonstrate that they
were without fault and are unable to
repay their TAA Program overpayments
and, therefore, are eligible for waivers of
overpayments. As a result of
Congressional action, see Public Law
111–5, sec. 1855(2), 123 Stat. 115, 394
(2009), the Department is also changing
the language related to financial
hardship. A financial hardship exists
where the funds would otherwise be
needed to pay for ordinary and
necessary living expenses after taking
into account the income and other
resources reasonably available to the
individual and their household. This is
a significant change in operations and
the Department is seeking to establish a
national standard. Comments on this
topic are encouraged and appreciated.
Proposed paragraph (b) is
substantially the same as 20 CFR
617.55(b), but reorders and slightly
rewords the language. It provides the
statutory requirement for a lifetime
disqualification from receipt of benefits
under the Act for anyone found to have
knowingly provided a false
representation or nondisclosure of
material fact.
Proposed paragraph (c) follows 20
CFR 617.55 in that, prior to requiring
repayment, a State or the Department, as
appropriate, must provide notice of the
determination to the individual and an
opportunity for a fair hearing. Only
then, can a decision become final and
repayment be required, unless a ruling
has already been made by a court, in
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which case, that requirement has been
met and repayment can be required.
Proposed paragraph (d) provides
instructions related to overpayments
under training, job search and relocation
allowances, and RTAA, primarily
following the existing provisions in 20
CFR 617.55(c). Proposed paragraph
(d)(2) adds some further clarification
providing that if an AAW or AAIW
(although AAIWs are ineligible for job
search or relocation allowances) fails to
complete a training, job search, or
relocation without good cause, the
portion not completed is an
overpayment, but that costs for the
completed portions are not
overpayments. If, for example, a tradeaffected worker completed 3 out of 4
semesters of an approved training
program, and then did not complete the
last semester without good cause, any
payments made for the fourth semester
would become overpayments under this
part 618. Proposed paragraph (d)(3) is
new and has no comparable counterpart
in existing regulations or in
administrative guidance. It establishes
for the first time that for purposes of
proposed § 618.832(d), a trade-affected
worker has good cause if the worker
acted diligently yet was unable to
complete the training, job search, or
relocation because of an exigent
circumstance. The State must determine
whether good cause exists on a workerby-worker basis. Proposed paragraph
(d)(5) has no corresponding provision in
20 CFR part 617. It provides the rules
for addressing overpayments under
RTAA. If a State has verified continued
eligibility, as required by proposed
§ 618.515(c), then payments made after
an AAW’s wages have changed that
were correct and accurate at the time
they were made (based on all the
information available at that time) are
considered payments to which the AAW
was entitled under sec. 243 of the Act.
Such payments are not overpayments
subject to proposed § 618.832. The
Department encourages comments
related to proposed paragraph (d),
specifically with respect to how to treat
failure to complete as it relates to
overpayments.
Proposed paragraph (e) carries
forward the provisions from 20 CFR
617.55(a)(2)(ii)(C)(5), with changes
concerning recovering an overpayment
from the affected person’s State UI
entitlement and also adds some new
provisions. Because 20 CFR 617
contains no provision for cross-program
offsets, proposed paragraph (e)(2) adds
language requiring overpayment
recovery from State UI, as required by
the Middle Class Tax Relief and Job
Creations Act, subject to the limitation
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on the amount that may be recovered
from any single payment in proposed
paragraph (e)(3). Proposed paragraph
(e)(3) is new and limits recoveries from
all types of UI described in proposed
paragraph (e) to no more than 50
percent of each of the affected person’s
State or Federal UI payments. This
limitation would implement the
limitation in sec. 243(a)(2) of the Act.
However, since the Act sets the 50
percent deduction as a ceiling, proposed
paragraph (e)(3) requires each State to
follow its own law if its law provides for
a lower limit.
Proposed paragraph (f) 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 Program overpayments be
‘‘commensurate with’’ those for UI to a
requirement that State procedures to be
‘‘the same as’’ those for UI. This
language change clarifies that States
must apply processes used for the
detection and prevention of
overpayments under UI to TAA Program
benefits as well. The Department
concluded from oversight activities that
most States’ processes did not meet the
‘‘commensurate with’’ standard. Based
on oversight reviews conducted by the
Department, States have not sufficiently
or equitably enforced the detection and
prevention of overpayments under the
TAA Program. The Department
proposes to further clarify that States
must apply the same detection and
prevention measures to the TAA
Program to increase and simplify
compliance
Proposed paragraph (g) follows 20
CFR 617.55(i) in explaining who is a
‘‘person’’ for purposes of proposed
§§ 618.832 and 618.836, except for two
modifications. The modifications are
that proposed paragraph (g) explicitly
includes a ‘‘training provider as well as
the officers and officials thereof’’ and ‘‘a
trade-affected worker or other
individual.’’ The first of these changes
closes a loophole that may have allowed
officers and officials of training
providers to avoid culpability and
liability in instances of fraud and
recovery of debts to the United States.
The second change makes it clear that
TAA Program participants (tradeaffected workers) and nonparticipants
(other individuals) may also be found
culpable and liable under the fraud and
debt recovery portions of this rule.
Proposed paragraph (h) is new and
implements sec. 244 of the Act
establishing penalties for knowingly
making a false statement, not disclosing
a material fact, or causing others to do
so. The penalties established by the Act
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are imprisonment for not more than 1
year, a fine under title 18 of the United
States Code, or both. Because these
penalties are imprisonment or a fine
under the Federal criminal code, the
Department views the penalties as
criminal sanctions rather than
administrative penalties, which cannot
be imposed absent the safeguards and
higher standards of proof afforded
criminal defendants. Suspected
violations must be reported to the U.S.
Department of Labor Office of the
Inspector General.
Section 618.836 Recovery of Debts Due
the United States or to Others by Trade
Adjustment Assistance Offset
Proposed § 618.836 governs the use of
TAA Program 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 RTAA. 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), which prohibits using
TAA Program funds to pay debts owed
to any State or other person or entity
except that it permits offset for debts
owed for child support and alimony
required to be collected under State and
Federal law. Proposed paragraph (b)
changes this to provide that TAA
Program benefits may only be used to
recover debts owed to others to the same
extent allowed under Federal UI law.
The Department proposes this change
because the exception in 20 CFR
617.55(h)(2) goes beyond Federal law
and singles out one specific instance in
which SSA requires or permits
collection of debts but ignores others.
For example, SSA sec. 303(e)(2) requires
a State to deduct ‘‘child support
obligations’’ from ‘‘any unemployment
compensation otherwise payable to an
individual.’’ Under SSA sec.
303(e)(2)(B), this deduction is
applicable to TRA. However, SSA sec.
303(e)(1) defines ‘‘child support
obligations’’ as ‘‘only includ[ing]
obligations which are being enforced
pursuant to a plan described in [sec. 454
of SSA] which has been approved by the
Secretary of Health and Human Services
under part D of title IV of [SSA].’’ 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. UIPL No. 45–89 (55 FR
1886, Jan. 19, 1990) explained in detail
the deductions permitted under SSA
sec. 303(e)(2). Other SSA provisions
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permit deductions from State UI for
other purposes. These SSA provisions,
like sec. 303(e)(2), apply to TRA. For
example, sec. 303(d)(2)(A) of SSA
permits offset of UI to recover
uncollected over-issuances of food
stamps under sec. 303(e)(2)(B)(iii). The
Department concludes that all TAA
Program benefits, which relate closely to
TRA and RTAA, should follow the same
rules for the offset of benefits as Federal
UI law, except as provided under
proposed paragraph (a).
Section 618.840 Uniform
Interpretation and Application of the
Act and Regulations
Proposed § 618.840 repeats the
requirements in 20 CFR 617.52, but with
some reorganization and a few
substantive changes.
Proposed paragraphs (a) and (b) repeat
the requirements in 20 CFR 617.52(a)
and (b), except that they replace the
references to 20 CFR part 617 with
references to part 618. The Department
has also revised the rules of
construction to remove two references
to ‘‘the Act.’’ The Department has
reconsidered this language and
acknowledges Congress’s statement in
sec. 288 of the Act that ‘‘[i]t is the sense
of Congress that’’ the Department
should apply the provisions of the Act
‘‘with the utmost regard for the interests
of workers, firms, communities, and
farmers petitioning for benefits.’’ The
Department agrees with this goal and
this NPRM gives the utmost regard to
those petitioning for benefits.
Proposed paragraph (c)(1)(i) modifies
the requirement in 20 CFR 617.52(c)(1)
that States automatically forward to the
Department a copy of each
administrative decision rendered under
the TAA Program. Instead, States must
submit administrative decisions only
upon request by the Department. The
Department has determined that this
requirement is unduly burdensome.
There is one exception to this rule,
expressed in paragraph (c)(1)(ii). The
Department will require States to submit
to the Department all decisions
appealed to the State’s highest UI
administrative appeals authority, which
is the highest level of administrative
appeal. In some States, this body is
known as the Board of Review, Board of
Appeals, or Unemployment Insurance
Commission. For States without such an
agency, this provision does not apply.
This process provides the Department
an opportunity to resolve issues before
they become judicial actions. States are
also encouraged to send to the
Department any other administrative
decision that it determines is erroneous
or contrary to the Act, regulations, or
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administrative guidance. Proposed
paragraph (c)(1)(iii) applies to all State
or Federal court decisions and notices of
pending State or Federal court actions
and requires all State and Federal court
decisions and notices to be sent to the
Department. This includes notices by a
State or Federal court of a hearing date
or court date as well as all rulings
related to the action.
Proposed § 618.840(c)(2) through (6)
retains the provisions in 20 CFR
617.52(c)(2) through (6). These
provisions set out the relationship
between the Department and the State
with regard to determinations,
redeterminations, and judicial
proceedings under the Act. Proposed
paragraph (d) retains the remaining
provisions from 20 CFR 617.52(c)(3).
Section 618.844 Inviolate Rights to
Trade Adjustment Assistance or
Reemployment Trade Adjustment
Assistance
Proposed § 618.844 repeats the
requirements in 20 CFR 617.56
concerning inviolate rights to TAA with
no substantive change.
Section 618.848 Veterans’ Priority of
Service
Proposed § 618.848, a new section,
establishes priority of service
requirements for the TAA Program.
Under 38 U.S.C. 4215, eligible veterans
and specified covered persons are
entitled to priority of service in
Department-funded workforce
development programs, if the individual
otherwise meets the eligibility
requirements for the program. 38 U.S.C.
4215(b). This proposed section requires
States to give priority for approval and
funding of TAA Program benefits and
services to trade-affected workers
meeting the requirements for veterans’
priority of service. In particular, this
priority would become effective if the
TAA Program has already allocated the
full fiscal year funds for TaOA, and
States have exhausted a significant
proportion of their available funds. In
that case, each State must give priority
to veterans and to the specified
categories of covered persons, over other
trade-affected workers’ applications for
services, in approving and funding
TaOA.
Section 618.852 Recordkeeping and
Disclosure of Information Requirements
Proposed § 618.852 repeats the
requirements in 20 CFR 617.57
concerning recordkeeping and
disclosure of information but makes a
few changes. Proposed paragraph (a) is
very similar to 20 CFR 617.57(a), with
two changes. First, proposed paragraph
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(a) omits reference to reporting form
ETA–563. This particular report is no
longer required. Rather, required
reporting will be governed by proposed
§ 618.864. Second, proposed paragraph
(a) adds that States are required to
maintain records that contain any
information the Department determines
to be appropriate in support of any
reports the Department may require,
including the reports specified in
proposed §§ 618.860(f) and 618.864(e).
Paragraph (a) also contains a crossreference to the record retention
requirements of the Uniform Guidance
at 2 CFR 200.333. Per the Uniform
Guidance, States are required to retain
records, in general, for 3 years after the
last action taken on that record
(determination, appeal, payment,
inclusion in a performance or financial
report, etc.). Proposed paragraph (a)(4)
requires States to document that
employment and case management
services described in subpart C were
provided or offered to a participant.
This is not a new requirement; however,
this was not previously explicitly stated
in regulation. This NPRM allows for
paper-based or electronic case
management systems, or a combination
thereof. All records must be available
for review by the Department.
Proposed paragraph (b) retains the
requirements in 20 CFR 617.57(b) with
regard to confidentiality requirements
but reformats the section and adds a
subordinate paragraph addressing
information a State obtains in support of
the Department’s investigation of a
petition for certification of the eligibility
of a group of workers. Proposed
paragraph (b)(1) addresses
confidentiality and the disclosure of
personally identifiable information (PII).
The language in proposed paragraph (b)
is consistent with the language in the
Governor-Secretary Agreements with
the States, which more broadly
encompasses any State and Federal
confidentiality and disclosure
requirements that might apply to TAA
Program information. To facilitate the
provision of services, States should have
workers sign a release of information
document. Proposed paragraph (b)(2)
notes that information obtained by the
State for the Department in support of
an investigation under subpart B must
comply with the requirements in
subpart B of this regulation.
Proposed paragraph (c) is new, added
for the first time, and has no comparable
counterpart in existing regulations or in
administrative guidance. It explicitly
allows for the use of paper and
electronic records or a combination
thereof. This paragraph requires that
regardless of the medium used, the
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records must be available for review for
oversight purposes. This addition
addresses the improvements in
technology and means of transmitting,
storing, and maintaining documents that
have occurred since the publication of
20 CFR part 617.
Proposed paragraph (d) is new, added
for the first time, and has no comparable
counterpart in existing regulations or in
administrative guidance. It addresses
the use of electronic signatures. The
Electronic Signatures in Global and
National Commerce Act (Pub. L. 106–
229) establishes that electronic contracts
and electronic signatures have the same
legal standing and enforcement as
traditional paper contracts signed in
ink.
Section 618.856
and Studies
Information, Reports,
Proposed § 618.856 retains the
language in 20 CFR 617.61 requiring
States to submit such information and
reports and conduct such studies as the
Department requires for TAA Program
purposes.
Section 618.860 General Fiscal and
Administrative Requirements and Cost
Classification
Proposed § 618.860 is a new section
that contains general fiscal and
administrative requirements applicable
to State administration of the TAA
Program. It is modeled on WIOA
regulations, but with significant
differences. Proposed § 618.860 contains
no requirements that States are not
already required to meet. These
requirements come from the Act, OMB
guidance at 2 CFR part 200, the
Department-specific regulations at 2
CFR 2900, and the Department’s
administrative guidance and
regulations. The Department is
including this section in subpart H to
highlight these requirements and
improve compliance by States and other
entities receiving TAA Program funds.
States should consult the appropriate
regional office for additional technical
assistance related to classification of
costs under the TAA Program or other
requirements in this section.
Proposed paragraph (a)(1) requires
compliance with the Uniform Guidance
at 2 CFR part 200 and the Department’s
specific requirements at 2 CFR part
2900.
Proposed paragraph (a)(2) provides
that the period of expenditure for TAA
Program funds granted for employment
services, training, and job search and
relocation allowances is 3 years. This
provision follows sec. 245(b) of the Act.
Funds to pay TRA and RTAA benefits
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are available for expenditure only in the
fiscal year for which they are awarded.
Proposed paragraph (a)(3) provides
that equipment, as described in 2 CFR
200.33, and computing devices, as
described in 2 CFR 200.20, includes
equipment acquired with TAA Program
funds under TAA Program Annual
Funding Agreements. This provision
restates existing Federal requirements
and responds specifically to two
situations observed in the States. First,
in the case of a State’s internal
reorganization, any equipment
purchased in prior years with TAA
Program funds must continue to be used
for the TAA Program. Second, proposed
paragraph (a)(3) makes clear that the
provisions of 2 CFR 200.313 apply to
equipment purchased under the TAA
Program.
Proposed paragraph (a)(4) requires,
(see 2 CFR 200.307(e)(2)), that TAA
Program grant recipients apply the
addition method to all program income
earned under TAA Program grants. The
instructions for the quarterly financial
report for the TAA Program also contain
this requirement.
Proposed paragraph (b) provides
guidance on cost classification as
administrative costs under the TAA
Program, as authorized by sec. 235A of
the Act and described in each TAA
Program Annual Funding Agreement,
which States are required to submit
annually. Paragraph (b)(1) provides that
the Department will include each fiscal
year’s administrative cost limitation in
grant documents or annual funding
agreements. Paragraph (b)(2) provides a
definition of ‘‘administrative costs’’
under the TAA Program. Although the
language in this section is similar to
WIOA, there is one significant
difference. Under the TAA Program,
administrative costs do not
automatically become program costs
when expended at the subrecipient
level. Proposed paragraph (b)(2)(i)
through (xviii) lists costs deemed
administrative costs, following WIOA
except as described above. Proposed
paragraph (b)(3) addresses when awards
to subrecipients or contractors are
administrative costs. Proposed
paragraph (b)(4) provides that, in
compliance with the Uniform Guidance,
costs for personnel and nonpersonnel
must be properly allocated between
program and administrative costs based
on time worked or another equitable
measure. Proposed paragraph (b)(5)
indicates that costs for developing
systems and procedures, including
management information systems (MIS),
required for administrative functions are
to be charged as administrative costs.
An MIS may include multiple
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components and while some of those
components, or modules, will relate to
services to individuals, others will be
purely administrative, such as reporting.
Where that is the case, States must
appropriately allocate costs between the
employment and case management and
the administrative costs categories.
Maintenance and enhancement of
electronic case management systems to
allow for improved case management
services can be charged to employment
and case management funds, rather than
to related State administration funds. In
addition, if multiple programs use an
integrated MIS, States must also ensure
that costs are properly allocated
between those programs. Proposed
paragraph (b)(6) reiterates the
requirement to minimize duplication of
efforts.
Proposed paragraph (c) addresses the
requirement in 2 CFR 200.407 that grant
recipients obtain the grantor’s prior
written approval before purchasing
equipment, as defined in 2 CFR 200.33,
using grant funds. No prior approval is
required for the purchase of equipment
with TAA Program funds. As provided
in 2 CFR 200.439(b)(1), the Department
retains the prior approval requirement
for capital expenditures (2 CFR 200.13)
and for capital assets (2 CFR 200.12),
other than equipment.
Proposed paragraph (d) provides the
audit requirements applicable to States
and other entities administering the
TAA Program under the Uniform
Guidance.
Proposed paragraph (e) ensures
compliance with the government-wide
debarment and suspension requirements
and drug-free workplace requirements.
Proposed paragraph (f) contains fiscal
reporting requirements for States. This
paragraph establishes, in accordance
with 2 CFR 200.327 and 2 CFR 2900.14,
that States are required to report
financial results on an accrual basis.
States must submit financial data on
program activities as specified in
reporting instructions. Paragraph (f)(4)
requires States to maintain sufficient
records to obligate participant funds on
at least a quarterly, but no less than on
a fiscal year basis, and periodically
review obligations and de-obligate funds
when a participant drops, completes, or
is no longer eligible for training. States
are encouraged to obligate and deobligate funds on a semester-bysemester basis, when possible, to
maximize the availability of funds.
Proposed paragraph (g) provides the
statutory limit and minimum for
administrative and employment and
case management costs, respectively.
Administrative costs under the TAA
Program are limited to 10 percent of
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allotted funds under sec. 235A of the
Act. The Act also requires States to
spend a minimum of 5 percent of funds
allotted to them for employment and
case management services described in
subpart C. There is no corresponding
regulation in 20 CFR part 617, but sec.
235A of the Act specifically authorizes
this requirement. Compliance with the
10 percent maximum and 5 percent
minimum will be monitored throughout
the grant life cycle and enforced during
the closeout process.
Paragraph (h) is a new requirement.
This paragraph requires States to
maintain sufficient and effective
technology solutions required for
reporting and the provision of services
to participants. This requirement
derives from several provisions of the
Uniform Guidance at 2 CFR part 200.
Under 2 CFR 200.205, for example, the
Department is required to consider a
grantee’s quality of management
systems, compliance with reporting
requirements, and expenditure of funds.
Specifically, 2 CFR 200.400(a) states
that grantees are ‘‘responsible for the
efficient and effective administration of
the Federal award through the
application of sound management
practices.’’ The Department, based on its
historical oversight of grantees, has
found some MIS and information
technology (IT) systems insufficient to
allow the State to meet the requirement
for ‘‘efficient and effective
administration.’’ This requirement
ensures a grantee’s ability to serve
participants, provide required
performance and service reports, and
meet financial management and
reporting obligations.
Finally, paragraph (i) requires the
States to dedicate an appropriate
portion of funds (administrative and
employment and case management) for
the development, maintenance, and
upgrading of MIS. An appropriate
portion must be allocated to maintain
and continuously improve the State’s
MIS. This portion will vary by State
based on MIS deployment and usage.
The Department has concluded, based
on our oversight of the TAA Program,
that States have historically failed to
adequately budget for MIS activity. This
has resulted in outdated systems that
present a risk to the ability of States to
provide TAA Program benefits to tradeaffected workers and to provide the
required performance and financial
reports to the Department.
Section 618.864 Trade Adjustment
Assistance Program Performance
Proposed § 618.864 is a new section
that contains TAA Program performance
requirements, as established by sec.
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239(j) of the Act. The NPRM uses the
term ‘‘worker.’’ This is taken directly
from the Act. For purposes of proposed
§ 618.864, the term worker means a
trade-affected worker. Proposed
paragraph (a) requires States to report
specified data on TAA Program
performance outcomes to the
Department and requires a description
of the efforts made to improve outcomes
for workers under the TAA Program.
Specifically, States must report the
primary indicators of performance
identified in paragraph (b) of this
section, which are very similar to those
reported under WIOA.
Proposed paragraph (b)(1) identifies
the primary indicators of performance.
These are from the Act and are very
similar to those established under
WIOA. The Act uses the term ‘‘workers’’
and in this section the term ‘‘workers’’
refer to AAWs and AAIWs (tradeaffected workers) as appropriate. AAIWs
are eligible for training and employment
and case management services only.
However, in addition to reporting on the
percentage of workers as WIOA does,
the indicators also include a
requirement to report on the number of
workers who have achieved the
indicator. In addition, unlike the WIOA
programs, the TAA Program is not
subject to the measure on effectiveness
of serving employers. The primary
indicators of performance under the
TAA Program are:
• The percentage and number of
workers who received benefits under
the TAA Program who are in
unsubsidized employment during the
second calendar quarter after exit from
the program;
• The percentage and number of
workers who received benefits under
the TAA Program and who are in
unsubsidized employment during the
fourth calendar quarter after exit from
the program;
• The median earnings of workers
who are in unsubsidized employment
during the second calendar quarter after
exit from the program;
• The percentage and number of
workers who received benefits under
the TAA Program (excluding those in
OJT and customized training) who
obtain a recognized postsecondary
credential or a secondary school
diploma or its recognized equivalent,
during participation in the program or
within 1 year after exit from the
program; and
• The percentage and number of
workers who received benefits under
the TAA Program who, during a year
while receiving such benefits, are in an
education or training program that leads
to a recognized postsecondary
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credential or employment and who are
achieving measurable gains in skills
toward such a credential or
employment.
Paragraph (b)(2) relates to the
credential attainment indicator in
paragraph (b)(1)(iv) and provides that,
under the Act, workers who received
benefits under the TAA Program and
obtained a secondary school diploma or
its recognized equivalent are only
included in this indicator if they also
obtained employment, or are in an
education or training program leading to
a recognized postsecondary credential
within 1 year after exit from the
program.
Consistent with sec. 239(j)(2)(B) of the
Act, proposed paragraph (c) provides
that the Department and a State may
agree upon and establish additional
indicators of performance. The
Department is not proposing any
additional measures at this time.
Proposed paragraph (d) requires
States, under sec. 239(j)(3) of the Act, to
use quarterly wage record information,
as that term is defined in WIOA
regulations at 20 CFR 677.175, in
measuring progress on the primary
indicators of performance and any
additional measures established by the
Department. The use of wage record
information helps ensure the reporting
of more complete and accurate
performance outcomes. Per 20 CFR
667.175, quarterly wage record
information means intrastate and
interstate wages paid to an individual,
the Social Security number (or numbers,
if more than one) of the individual, and
the name, address, State, and the
Federal employer identification number
of the employer paying the wages to the
individual. Proposed paragraph (d)
authorizes States to use Social Security
numbers to measure the progress of
TAA Program participants using
quarterly wage information. Proposed
paragraph (d) permits States to use
supplemental information to obtain
pertinent wage and employment data in
accordance with TEGL No. 26–16,
‘‘Guidance on the use of Supplemental
Wage Information to implement the
Performance Accountability
Requirements under the Workforce
Innovation and Opportunity Act.’’ The
Department encourages States to
participate in data sharing agreements to
access wage records. The Department
will continue to develop administrative
guidance to facilitate this process.
Further, the Department, in tandem
with the Department of Education, is
developing a new State data sharing
agreement to aid in the interstate
exchange of wage record information to
ensure States meet the performance
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reporting requirements outlined in the
NPRM.
Proposed paragraph (e) establishes
performance reporting requirements for
States. The Department plans initially to
require the use of only the Participant
Individual Record Layout (PIRL), as part
of the DOL-Only Performance
Accountability, Information, and
Reporting System (OMB Control No.
1205–0521). States use the PIRL to
submit required reporting elements.
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 the
verification or validation of reports as
accurate.
Proposed paragraph (f) provides that
the Department will publish the States’
TAA Program performance annually in
the form of a TAA Annual Report, as
required by sec. 239(j)(4) of the Act,
including on the Department’s website.
This program performance information
will be provided at the State level. Due
to restrictions on the release of PII, files
containing the individual records will
not be published or made available.
Proposed paragraph (g) implements
the control measures required by sec.
239(i) of the Act. States are required to
have a formal monitoring program in
place that includes the review of
participant case files on a regular basis.
Section 239(i)(2) of the Act defines
control measures as measures that are
internal to a system used by a State to
collect data and are designed to ensure
accuracy and verifiability of such data.
A number of administrative guidance
documents provided additional
information, in addition to the TAA
Program and UI Annual Funding
Agreements, the Trade Adjustment
Assistance Data Integrity review process
as described in proposed paragraph
(g)(3), grant agreements, and Regional
monitoring requirements are all part of
effective control measures.
Proposed paragraph (g)(1) implements
the control measures. Proposed
paragraph (g)(2) describes that systems
must be internal to the State. Proposed
paragraph (g)(3) explains the purpose of
the control measures and sets out a
number of requirements. It codifies the
Trade Adjustment Assistance Data
Integrity review process used by the
Department to verify and validate the
data reported by the States in
accordance with TEGL No. 04–14 (and
any subsequent changes), ‘‘Trade
Adjustment Assistance Data Integrity.’’
Proposed paragraph (g)(4) requires
States to implement a formal monitoring
program in compliance with the
Uniform Guidance at 2 CFR part 200
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and the Department’s exceptions at 2
CFR part 2900. The requirement to
conduct program monitoring is not new.
In addition to the requirement in the
Uniform Guidance to conduct
monitoring, administrative guidance
established such a requirement, but the
explicit inclusion of monitoring in the
TAA Program regulations is new. The
monitoring program must be designed to
identify and share promising State
practices, identify and correct
deficiencies, and identify and address
staff training needs. A minimum
quarterly random sample of 20 cases
must be audited and must include at
least 2 certifications issued under
subpart B. The four quarterly samples
within a calendar year should also cover
at least four different geographic areas of
the State administering the program.
The Department recognizes that in some
States, it may be difficult to meet these
requirements based on enrollment levels
and the geographic distribution of
certifications. If circumstances preclude
a State from meeting these criteria, the
State must contact the appropriate ETA
regional office to design a monitoring
program that better suits the TAA
Program in that State, and make sure it
is sufficient to ensure the accuracy and
verifiability of such data.
Proposed paragraph (h) implements
sec. 249B(b) of the Act, which requires
collection and reporting of specific
information, and the proposed
paragraph is taken from sec. 249B(b)(2)
through (6) of the Act. Proposed
paragraph (h) does not include
references to sec. 249B(b)(1) of the Act
(data on petitions filed, certified, and
denied) as these data are collected
internally by the Department and
included in TAA Annual Report.
Changes from statutory language
include only the removal of additional
statutory citations; proposed paragraph
(h)(2), which replaces the phrase credits
for health insurance costs under sec. 35
of the Internal Revenue Code with the
HCTC; and proposed paragraph (h)(19)
consolidates sec. 249B(b)(6) of the Act
into one requirement to report on the
total amount of the TaOA payments to
the States in the aggregate and for each
State. TaOA refers to funds to provide
employment and case management
services; training; and job search and
relocation allowances, to trade-affected
workers, and for related State
administration. Subpart I discusses
TaOA more broadly.
Section 618.868 Unemployment
Insurance
Proposed § 618.868 retains the
language of 20 CFR 617.58, but changes
the reference from part 617 to part 618.
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This provision ensures that UI benefits
are not denied or reduced by receipt of
payment TAA benefits.
Section 618.872 Travel Under the
Trade Adjustment Assistance Program
Proposed § 618.872 carries forward
the FTR at 41 CFR chapters 300 through
304, and the policies of the Department,
as the standard for State-provided
travel, subsistence, and transportation
benefits to TAA Program participants.
This is not a new policy. The
Department already enforces this
requirement under 20 CFR 617.52 by
ensuring the uniform interpretation of
the rule—in this particular instance as
it relates to payment of benefits related
to travel costs. There has been some
confusion over the years as to which
travel policies apply to TAA Program
participants. This NPRM makes it clear
that TAA Program participants travel
under the same rules as employees of
the Department—allowing for consistent
treatment of participants regardless of
their location within the United States.
Section 618.876 Verification of
Eligibility for Program Benefits
Proposed § 618.876 implements the
requirements at sec. 239(k) of the Act for
States to verify a participant is in
satisfactory immigration status. Section
239(k) of the Act directs States to use
the immigration status verification
system in 42 U.S.C. 1320b–7(d) for
purposes of reestablishing a worker’s
eligibility for unemployment
compensation The Department has
historically interpreted this verification
requirement, for the TAA Program, to
require participants to meet the
requirements for eligibility under UI,
including the requirement that the
participant be authorized to work in the
United States. This is because UI
eligibility is a requirement of TRA and
RTAA, and training can be approved
only where there is ‘‘a reasonable
expectation of employment following
completion of . . . training’’ (sec.
236(a)(1)(C) of the Act). Without
authorization to work in the United
States, there can be no reasonable
expectation of employment following
completion of training.
While the Personal Responsibility and
Work Opportunity Reform Act
(PRWORA) ordinarily prescribes the
categories of aliens eligible for Federal
public benefits, which includes many of
the benefits offered under the TAA
Program, as a required one-stop partner
under WIOA the TAA Program is
governed by WIOA sec. 188 and the
corresponding regulations, which limit
the scope of PRWORA’s application.
WIOA sec. 188(a)(5) specifically
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requires that participation in programs
and activities and receipt of funds under
WIOA title I be available to ‘‘citizens
and nationals of the United States,
lawfully admitted permanent resident
aliens, refugees, asylees, and parolees,
and other immigrants authorized by the
Attorney General to work in the United
States.’’ 29 U.S.C. 3248(a)(5). Thus, for
immigration status verification under
the TAA Program, ‘‘satisfactory
immigration status’’ is not defined by
PRWORA, but by WIOA and the
eligibility requirements of the TAA
Program itself.
As proposed paragraph (b) explains,
for participants who obtained UI, the
Act considers the initial verification
required by sec. 239(k) of the Act to
have been completed through use of the
Systematic Alien Verification for
Entitlement (or SAVE) program
maintained by the United States
Customs and Immigration Service (or
USCIS) at the time eligibility for UI
benefits was determined. The State is
not required to reverify the participant’s
immigration status unless the
documentation used during the initial
verification is set to expire during the
period the participant is eligible to
receive TAA benefits.
Proposed paragraph (c) requires the
State to redetermine periodically the
eligibility of a noncitizen or national to
ensure their continued satisfactory
immigration status. The timing of the
redetermination is based on the
expiration date of materials used during
the initial verification process and
reverification must be done before the
individual’s status expires.
Section 618.884 Special Rule With
Respect to Military Service
Proposed § 618.884 codifies the
special rule with regard to military
service established in sec. 233(i) of the
Act. Proposed paragraph (a) provides
that a State may waive any requirement
of this part that the State determines is
necessary to ensure that an AAW who
is a member of a reserve component of
the Armed Forces and serves a period of
duty described in proposed paragraph
(a)(2) is eligible to receive TRA, training,
and other benefits under this part in the
same manner and to the same extent as
if the worker had not served the period
of duty. Proposed paragraph (b) defines
period of duty for various classes of
military service. Although the Act uses
the phrase ‘‘may waive,’’ the
Department strongly encourages States
to apply this rule broadly to provide
service members the most flexible
access to the TAA Program allowed by
law.
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Section 618.888 Equitable Tolling
Proposed § 618.888 originates from
administrative guidance. It clarifies that
TAA Program deadlines may be
equitably tolled and provides the
limited circumstances under which
equitable tolling may be available.
Proposed paragraph (a) sets out a
uniform test for determining when
equitable tolling is available. It adopts
the exacting standards for equitable
tolling applied by the U.S. Supreme
Court in a variety of contexts. See, e.g.,
Menominee Indian Tribe of Wisc. v.
United States, 136 S. Ct. 750, 755
(2016); Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005).
Proposed paragraph (b) sets out a
burden-shifting framework for equitable
tolling in one unique circumstance—
when the State fails to give required
notice to a worker of a particular benefit
(or potential benefit) and so the
deadline for that benefit (or potential
benefit) runs without the worker’s
knowledge. This circumstance only
applies when the particular notice is
one expressly required by this part 618.
If a worker alleges (or claims) that the
State failed to give such required notice,
the State can rebut that evidence
definitively by showing that the worker
received actual notice by other means.
Proposed paragraph (b) acts to
emphasize to States the importance of
complying with the notice requirements
in this part 618. It should not be
construed to otherwise lessen or lighten
a worker’s burden to show entitlement
to equitable tolling in other
circumstances.
Proposed paragraph (c) explains that
a deadline equitably tolled is tolled for
as long as the extraordinary
circumstance preventing timely filing
exists. Once the extraordinary
circumstance is removed, then the
deadline clock begins ticking again.
Finally, proposed paragraph (d) sets a
limit on how long a deadline may be
equitably tolled: 36 months. For
example, if a deadline were to require
the submission of an application by
September 15, 2020, but extraordinary
circumstances prevented timely
submission, the latest the application
could possibly be submitted, even with
the benefit of equitable tolling, is
September 15, 2023. The 36-month limit
strikes a balance between, on the one
hand, fairness and equity for individual
workers and, on the other, the need for
clarity and efficiency in the operation of
the program as a whole. If equitable
tolling were permitted to extend
deadlines longer, or indefinitely, at least
two adverse consequences would result.
First, financial planning for the TAA
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Program would be more difficult
because of potentially large numbers of
dormant claims. Second, administration
of the program would become more
costly as State-level employees and
reviewers applied the equitable-tolling
test rather than simply accepting or
denying claims; the fact-finding
difficulties associated with older, stale
evidence would compound this
problem. All this work would leave
fewer resources for workers themselves.
The Department seeks comments on the
establishment of this limit.
Section 618.890 Staffing Flexibility
Proposed § 618.890 on staffing
flexibility amends the current rule at
this same section (§ 618.890) to clarify
that only certain activities under the
TAA Program need to be performed by
staff covered by a system meeting
Federal merit personnel criteria
regardless of whether they are funded
by the TAA Program. This is a
significant change. The Department has
received inquiries in recent years about
the applicability of the Federal merit
system standards, promulgated by the
U.S. Office of Personnel Management
(OPM) 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.
The changes give States the freedom
to staff employment case management
services in the most effective and
efficient way, using a combination of
State employees, local government
employees, contracted services, and
other staffing models in the way that
makes the most sense for them. This
allows States to provide these services
in a more seamless manner along with
other programs co-located at the
American Job Centers. One-size-fits-all
merit-personnel-system staffing
requirements have been part of the TAA
regulations only since 2010, see 75 FR
16988 (Apr. 2, 2010), though they were
part of the Governor-Secretary
Agreements from 1975 to 2005. Based
on program oversight activity and
observations of operations at the State
and local level, the Department now
concludes that States should have the
flexibility to use the staffing solutions
that are most appropriate for their
unique situations. In imposing the
staffing requirements in 2010 by
regulation, the Department stated that
its purpose was promoting consistency,
efficiency, accountability, and
transparency. See id. at 16994–95. The
Department values these goals but
recognizes that they can be met by
approaches other than a requirement
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mandating one-size-fits-all merit
staffing. This proposed rule fulfills other
valuable policy objectives as well.
Allowing States flexibility in their
administration of the TAA Program
gives them the opportunity to innovate,
better integrates WIOA services, and
may improve efficiency by focusing
States on serving employers, workers,
and training programs rather than
complying with one-size-fits-all staffing
requirements. Under the proposed rule,
the Department would continue to hold
States accountable for complying with
their Governor-Secretary Agreements,
consistent with the Act and its
implementing regulations.
The Act requires States to provide the
benefits and services authorized under
the Act for trade-affected workers and to
secure appropriate services provided
through the one-stop delivery system
established under WIOA. To avoid
imposing barriers to integration of
services among the one-stop partner
programs, the regulations proposed here
allow such services to be provided by
State staff, local staff, or other local onestop center employees. WIOA envisions
an integrated workforce development
system that provides streamlined
service delivery of the WIOA partner
programs, including the TAA Program.
For services under WIOA’s adult,
dislocated worker, and youth programs,
Congress did not require, nor does the
Department require, that they be
provided with personnel that meet
Federal merit personnel system criteria.
States and local areas have discretion in
how to staff the provision of WIOA
programs and services, and they have
adopted a variety of staffing
approaches—local-area staff,
contractors, and State employees. The
specific staffing requirements in the
current TAA Program regulations may
inhibit full integration of the TAA
Program with WIOA’s other services.
This proposal, if finalized, would allow
States to use the same service-delivery
model for both the TAA Program and
WIOA.
Some staffing requirements remain.
Proposed paragraph (a) provides that the
merit staff provisions of SSA apply to
the appeals process under applicable
State law. This is required by the Act at
sec. 239(e) (19 U.S.C. 2311(e)) and also
comports with the staffing requirements
for State unemployment insurance
offices.
Proposed paragraph (b) requires that
all determinations on eligibility must be
made by State staff, with the exception
of the functions in paragraph (a) of this
section, which must be carried out by
merit staff. This aligns with sec. 239(e)
of the Act as well as the staffing
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requirements for State unemployment
insurance offices and ensures access to
the appeals process under applicable
State law.
Proposed paragraph (c) explains that
all other functions under the TAA
Program may be carried out using a
variety of staffing models. Those models
could include State staff under a meritpersonnel system, other State staff, local
providers, one-stop partners, or a
combination of these solutions.
The Department has concluded that it
is authorized to provide States this
flexibility. When imposing the staffing
requirements in 2010, the Department
stated that ‘‘promulgation of the merit
staffing rule is within the discretionary
authority delegated to it to interpret the
Trade Act and administer the TAA
program.’’ 75 FR 16988, 16990. The
Department also noted that ‘‘the Trade
Act does not directly address merit
staffing; the legislative history is
ambiguous, and for 30 years Congress
did not expressly repudiate the
Department’s longstanding
interpretation of the Trade Act as
requiring merit staffing.’’ Id. The
Department also relied on the Federal
district court decision in Michigan v.
Herman, 81 F. Supp. 2d 840 (W.D.
Mich. 1998), a case construing the
staffing requirements under the WagnerPeyser Act. There, the court held that
the Department’s interpretation of the
Wagner-Peyser Act as requiring meritpersonnel staffing was ‘‘reasonable and
permissible,’’ but also observed that
‘‘there is ample basis for a conflicting
interpretation of the Wagner-Peyser
Act’s requirements.’’ Id. at 848.
The Department recognized then that
it had discretion to impose staffing
requirements in the absence of a clear
congressional mandate in one direction
or the other. By the same token, the
Department has discretion to remove
those staffing requirements. It proposes
to do so here for the reasons described
above.
This means that TAA Program
funding may be used to pay for
employment and case management
services rendered by State merit staff,
State staff, and non-State staff, such as
local providers, one-stop partners, and
so on. The NPRM would require all
determinations on eligibility for
program benefits be approved by State
staff.
Section 618.894 Nondiscrimination
and Equal Opportunity Requirements
Proposed § 618.894 has no
corresponding section in 20 CFR part
617 and addresses the applicability of
the nondiscrimination and equal
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opportunity requirements contained in
29 CFR parts 31, 32, 35, 36, and 38.
Proposed paragraph (a) notifies States
and subrecipients of financial assistance
under the TAA Program that, as
recipients of Federal financial
assistance, they are subject to the
requirements of 29 CFR parts 31, 32, 35,
and 36, which set forth prohibitions
relating to discrimination.
Proposed paragraph (b) notifies States
and subrecipients of financial assistance
under the TAA Program of the
circumstances under which they are
subject to 29 CFR part 38, which
implements the nondiscrimination and
equal opportunity provisions in sec. 188
of WIOA. It states that WIOA
nondiscrimination regulations apply to
States and subrecipients that operate
their TAA programs and activities ‘‘as
part of the one-stop delivery system’’ as
provided in 29 CFR 38.2(a)(2). Since
States and entities that carry out
‘‘activities authorized under chapter 2 of
title II of the Trade Act of 1974’’ (29
U.S.C. 3151(b)(1)(B)(vii)) are required
one-stop partners, WIOA
nondiscrimination regulations apply to
them ‘‘to the extent that the programs
and activities are being conducted as
part of the one-stop delivery system’’
(29 CFR 38.2(a)(2)). Coverage under this
provision is not limited to States or
subrecipients that colocate their
operations in a one-stop center.
Proposed paragraph (b)(2) notifies States
and subrecipients they are also subject
to 29 CFR part 38 if they otherwise meet
the definition of ‘‘recipient’’ in that part.
Proposed paragraph (c) directs those
with questions about the cited
nondiscrimination provisions to the
Department’s Civil Rights Center.
Proposed paragraph (d) explains how
the cited nondiscrimination provisions
affect the applicability of any other
Federal nondiscrimination laws, or any
relevant State or local laws, to the TAA
Program. Proposed paragraph (d)(1)
provides that proposed § 618.894 does
not affect any rights regarding, or
protections against, discrimination
provided by other Federal laws.
Proposed paragraph (d)(2) likewise
provides that proposed § 618.894 does
not affect any rights regarding, or
protections against, discrimination
provided by other State and local laws,
except as described in paragraph (d)(3).
Finally, paragraph (d)(3) prohibits States
from engaging in discrimination that is
prohibited by 29 CFR parts 31, 32, 35,
36, and 38 (as applicable) in the areas
pertaining to the TAA Program: The
reception of aid, benefits, services,
training or employment; participation in
TAA programs and activities;
employment at a State; and practice in
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any occupation or profession. A State or
local antidiscrimination law is
incompatible if it, among other
examples, provides less protection to an
individual than that provided by 29 CFR
part 31, 32, 35, 36, or 38; if it permits
favoritism prohibited by those parts; or
if it does not provide an exception to
antidiscrimination law provided by
those parts.
Section 618.898 Applicable State Law
Proposed § 618.898 is substantially
the same as 20 CFR 617.16 and
eliminates only minor outdated
citations and 20 CFR 617.16(e)
describing liable State, which has been
incorporated into proposed § 618.824.
The term ‘‘applicable State law’’ has
been defined in proposed subpart A
rather than in this proposed section.
The separate paragraph addressing
workers entitled to UI under the
Railroad Unemployment Insurance Act
in 20 CFR 617.16(d) is also proposed for
removal because it has been
incorporated into the proposed
definition of ‘‘applicable State law’’ in
§ 618.110.
I. Subpart I—Allocation of Funds to
States for Training and Other Activities
Proposed subpart I revises the
regulations currently found at 20 CFR
618.900 through 618.940. The
Department first published these
regulations on April 2, 2010 (75 FR
16988); they became effective May 3,
2010. The proposed updates in this
NPRM reflect subsequent statutory
revisions and policy updates. Subpart I
addresses the Act’s provisions at secs.
236(a)(2) and 245 and establishes how
funds appropriated for TaOA are
allocated by the Department to the
States. Some highlights of changes to
the regulation include introduction of a
new term, TaOA; a statutory update of
the annual funding limit; and an update
to the reserve fund request process. This
proposed subpart also addresses the
recapture and reallocation provisions
established by sec. 245(c) of the Act.
Section 618.900 Annual Cap on Funds
Available for Training and Other
Activities
Proposed § 618.900 is revised to
remove the introductory sentence and
include additional revisions to the
existing rule at 20 CFR 618.900, as
discussed below. Proposed § 618.900(a)
summarizes what services may be paid
under the funding, and introduces a
new term, ‘‘Training and Other
Activities,’’ and its acronym, TaOA,
both of which refer to the benefits and
services described in secs. 235 through
238 of the Act. TaOA benefits and
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services are: Employment and case
management services, training, job
search and relocation allowances, and
related State administration. Since sec.
236(a)(2)(A) of the Act was amended by
TAAEA, and retained in TAARA 2015,
to provide that the annual cap applies
to funding for TaOA, not just to training
under sec. 236, this new term is adopted
to include these additional benefits and
services. The phrase ‘‘payments that
may be made’’ in the existing rule at 20
CFR 618.900 is replaced by ‘‘funds
made available,’’ to accord with the
language of sec. 236(a)(2)(A) of the Act.
This section is also updated to reflect
TAARA 2015’s annual funding limit of
$450,000,000 for FYs 2015 through
2021.
Proposed § 618.900(b) is new and
explains the statutory period of
availability of funds set out at sec.
245(b) of the Act. Funds allocated to
States under the TAA Program for TaOA
can be spent in the fiscal year awarded
and the next 2 fiscal years, for a
maximum altogether of 3 fiscal years.
Section 618.920 Reserve Fund
Distributions
Proposed § 618.920 describes the
reserve fund request process established
by sec. 236(a)(2)(D). Proposed
§ 618.920(a) updates the existing rule at
20 CFR 618.920(a) by removing the
language that restricts a State from
receiving additional funds for
administrative costs or employment and
case management costs without also
requesting additional funds for training.
Funds are not awarded by the
Department against these specific line
items, so there is no way for the
Department to award funds in this
manner. Furthermore, the statutory
limitation on administrative cost,
established by sec. 235A(1) of the Act,
always applies.
The existing rule at 20 CFR 618.920(b)
is divided into proposed § 618.920(b)
and (c) for organizational purposes.
There are minor edits in the NPRM, as
well as a reference to TaOA instead of
training funds. There are no substantive
changes to the existing rule at 20 CFR
618.920(b).
Section 618.910
Funds
Section 618.930 Second Distribution
Proposed § 618.930 updates the
existing rule at 20 CFR 618.930
regarding the second distribution of
TaOA funds, by changing the reference
from training funds to TaOA funds, and
makes other minor language
clarifications and organizational
changes.
Initial Allocation of
Proposed § 618.910 updates the
language in the existing rule at 20 CFR
618.910 to reflect statutory changes and
minor grammatical corrections and
other clarifications. These changes
primarily relate to indicating, consistent
with proposed § 618.900(a), that the
annual funding cap in sec. 236(a)(2)(A)
of the Act applies to TaOA, not only to
the training services described in sec.
236. Proposed § 618.910(a) through (f)(1)
contain nonsubstantive changes to
enhance the readability of the section.
Proposed § 618.910(f)(2) moves into a
separate paragraph the first sentence of
the existing rule at 20 CFR 618.910(f)(3)
giving each of the four factors listed in
proposed paragraphs (f)(1)(i) through
(iv) equal weight. Proposed
§ 618.910(f)(3) retains the rest of the
existing rule at 20 CFR 618.910(f)(3) but
removes the word ‘‘weighted’’ in
referring to the factors.
The existing rules at 20 CFR
618.910(f)(2) and (4) are both removed.
However, under its authority at sec.
236(a)(2)(C)(ii)(V) of the Act, the
Department may, through promulgation
of changes to the rule, adjust the
weights provided in proposed paragraph
(f)(2), or add additional factors. Any
needed changes to the formula in the
future can be done through rulemaking,
which will benefit from the views of the
public and the procedural safeguards of
the notice-and-comment process.
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Section 618.940 Insufficient Funds
Proposed § 618.940 modifies the
existing rule at 20 CFR 618.940 to
include the expanded list of benefits
and services in addition to training for
which funds may be expended. The
Department will communicate by
administrative guidance to States as
necessary regarding the continued
operation of the TAA Program if the
Department determines that there are
insufficient funds available for the
remainder of a fiscal year. The intent of
the existing rule at 20 CFR 618.940 is
unchanged.
Section 618.950 Recapture and
Reallocation of Training and Other
Activities Funds
Proposed § 618.950 is new and
provides the description of recapture
and reallocation procedures that the
Department may use to implement the
recapture and reallocation provisions of
sec. 245(c) of the Act. Although the
Department is including this provision
in the NPRM, this is an extreme action
that will only be taken in the event of
a catastrophic event. This will not be an
annual process.
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Consistent with sec. 245(c) of the Act,
proposed § 618.950(a)(1) provides that
funds remaining unobligated at the end
of the second or third fiscal year after
the funds were provided to the State
may be recaptured. Proposed
§ 618.950(a)(2) provides that those
recaptured funds may be reallocated in
accordance with the procedures
established in this section of the NPRM.
Proposed § 618.950(b) sets out the
circumstances under which the
Department may recapture and
reallocate funds. The Department may
recapture and reallocate unobligated
funds when it is determined there are,
or are projected to be, insufficient funds
in a State or States to carry out TaOA
for a fiscal year, or when the recapture
and reallocation of funds would likely
promote the more efficient and effective
use of funds among the States. The
Department concludes these procedures
provide the necessary flexibility to
promote sound financial practices, and
use the limited available funds most
effectively, by directing unobligated
funds that are not likely to be spent to
those States that are more in need of
such funds in order to continue to
provide program services.
Proposed § 618.950(c) and (d) provide
the methodology that will be used
during the recapture and reallocation
process. If the Department determines
that there are, or are projected to be,
insufficient funds in a State or States to
carry out TaOA for a fiscal year,
proposed § 618.950(c) allows the
Department to recapture unobligated
funds from the State or States with the
highest percentage of unobligated or
unexpended funds from the second or
third fiscal year after the year in which
the funds were awarded, and reallocate
them to the States with, or projected to
have, insufficient funds.
Proposed § 618.950(d) allows the
Department to recapture funds from the
State or States with the highest
percentage of unobligated or
unexpended funds from the second or
third fiscal year after the year in which
the funds were awarded, and reallocate
them to the States with the lowest
percentage of unobligated or
unexpended funds or to all States from
which funds are not being recaptured.
Proposed § 618.950(e) provides that if
the Department determines to recapture
and reallocate funds under this section,
an administrative notice must be sent to
the States describing the methodology
used and the amounts to be recaptured
from and reallocated to each affected
State not less than 15 business days in
advance of the recapture of funds.
Lastly, proposed § 618.950(f) makes
clear that the reallocation of funds
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under this section does not extend the
period of availability for those funds.
Neither 20 CFR part 617 nor 20 CFR
part 618 discuss funding for TRA or
RTAA. This NPRM does not provide
regulatory text for TRA or RTAA
funding since those allocations are
made through the Department’s
administration of the UI Program. The
one exception, as provided by sec.
235A(1)(C) of the Act, and addressed in
proposed subpart H, involves the use of
TAA Program funds for the
administration of RTAA.
V. Agency Determinations
A. Legal Authority
The Trade Act of 1974 (Pub. L. 93–
618), title II, chapter 2, established the
programs collectively known as the
Trade Adjustment Assistance Program
(TAA Program) (codified at 19 U.S.C.
2271 et seq.). This statute has been
amended many times since its
enactment, including multiple
amendments since 2002 that have
substantially affected the TAA Program
(e.g., Pub. L. 107–210 (2002); Pub. L.
111–5 (2009); Pub. L. 112–40 (2011);
Pub. L. 114–27 (2015)). The
Department’s existing regulations under
the Act, codified at 20 CFR parts 617
and 618, and 29 CFR part 90, have not
been fully updated in response to the
various statutory amendments to the
Act. As a result, some portions of the
existing regulations may not reflect
current law. Section 248(a) of the Act
(19 U.S.C. 2320(a)) requires that the
Department prescribe such regulations
as are necessary to carry out the
provisions of the Act. Therefore, the
Department seeks to develop and issue
an NPRM that proposes to update and
consolidate the existing regulations in
order to fully implement all statutory
amendments to the TAA Program.
B. Executive Orders 12866 (Regulatory
Planning and Review), 13563
(Improving Regulation and Regulatory
Review), and 13771 (Reducing
Regulation and Controlling Regulatory
Costs)
Under E.O. 12866, OMB’s Office of
Information and Regulatory Affairs
(OIRA) determines whether a regulatory
action is significant and, therefore,
subject to the requirements of the E.O.
and review by OMB. See 58 FR 51735
(Oct. 4, 1993). Section 3(f) of E.O. 12866
defines a ‘‘significant regulatory action’’
as an action that is likely to result in a
rule that: (1) Has an annual effect on the
economy of $100 million or more, or
adversely affects in a material way a
sector of the economy, productivity,
competition, jobs, the environment,
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public health or safety, or State, local,
or tribal governments or communities
(also referred to as economically
significant); (2) creates serious
inconsistency or otherwise interferes
with an action taken or planned by
another agency; (3) materially alters the
budgetary impacts of entitlement grants,
user fees, or loan programs, or the rights
and obligations of recipients thereof; or
(4) raises novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the E.O. Id. Based on the
analysis below, this NPRM is not an
economically significant regulatory
action under sec. 3(f) of E.O. 12866.
E.O. 13563 directs agencies to propose
or adopt a regulation only upon a
reasoned determination that its benefits
justify its costs; the regulation is tailored
to impose the least burden on society,
consistent with achieving the regulatory
objectives; and in choosing among
alternative regulatory approaches, the
agency has selected those approaches
that maximize net benefits. E.O. 13563
recognizes that some benefits are
difficult to quantify and provides that,
where appropriate and permitted by
law, agencies may consider and discuss
qualitatively values that are difficult or
impossible to quantify, including
equity, human dignity, fairness, and
distributive impacts.
E.O. 13771, titled Reducing
Regulation and Controlling Regulatory
Costs, was issued on January 30, 2017.
This NPRM is expected to be an E.O.
13771 deregulatory action, because the
cost savings associated with the rule are
larger than the anticipated costs of the
rule. Costs associated with the rule are
from rule familiarization, the
development of IEPs for trade-affected
workers seeking training or job search
allowances, and the implementation of
two IC forms. Cost savings associated
with the rule are from revisions to the
definition of ‘‘final determination’’
related to judicial appeals and from
streamlining the reconsideration
process.
Outline of the Analysis
Section V.B.1 describes the need for
the NPRM, and section V.B.2 describes
the process used to estimate the costs of
the NPRM and the general inputs used
such as wages and number of affected
entities. Section V.B.3 explains how the
provisions of the NPRM would result in
quantifiable costs, cost savings, and
transfer payments, and presents the
calculations the Department used to
estimate them. In addition, section
V.B.3 describes the qualitative costs,
transfer payments, and benefits of the
NPRM. Finally, section V.B.4
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summarizes the estimated first-year and
10-year total costs, cost savings, net cost
savings, and transfer payments of the
NPRM. Section V.B.5 describes the
regulatory alternatives that were
considered during the development of
the NPRM.
Summary of the Analysis
The Department estimates that the
NPRM would result in costs, cost
savings, and transfer payments. As
shown in Exhibit 1, the NPRM is
expected to have an average annual cost
of $5,952 and a total 10-year cost of
$46,383 (with 7-percent discounting).
The NPRM is estimated to have annual
cost savings of $79,654 and total 10-year
cost savings of $559,456 (with 7-percent
discounting). Cost savings associated
with the rule are from revisions to the
definition of ‘‘final determination’’
related to judicial appeals and from
streamlining the reconsideration
process. In addition, the NPRM is
60213
estimated to result in annual transfer
payments of $564,257 and total 10-year
transfer payments of $3,963,105 (with 7percent discounting). The Department
estimates that the NPRM would result in
net cost savings of $626,333 discounted
at 3 percent and $513,073 discounted at
7 percent, both expressed in 2018
dollars. For the purpose of E.O. 13771,
the annualized net cost savings in 2016
dollars, when perpetuated, is $71,434
discounted at 7 percent.12
EXHIBIT 1—ESTIMATED MONETIZED COSTS, COST SAVINGS, NET COST SAVINGS, AND TRANSFER PAYMENTS OF THE
NPRM
[2018 dollars]
Costs
Cost savings
Net cost
savings a
Transfer
payments
Undiscounted 10-Year Total ............................................................................
10-Year Total with 3% Discounting .................................................................
10-Year Total with 7% Discounting .................................................................
.
10-Year Average ..............................................................................................
Annualized with 3% Discounting .....................................................................
Annualized with 7% Discounting .....................................................................
$59,523
53,132
46,383
$796,540
679,465
559,456
$737,017
626,333
513,073
$5,642,570
4,813,227
3,963,105
5,952
6,229
6,604
79,654
79,654
79,654
73,702
73,425
73,050
564,257
564,257
564,257
Perpetuated Net Cost Savings a with 7% Discounting (2016 dollars) .............
........................
........................
71,434
........................
a Net
Cost Savings = [Total Cost Savings] ¥ [Total Costs].
On June 29, 2015, the Trade
Preferences Extension Act of 2015 (Pub.
L. 114–27) was signed into law. Title IV
reauthorizes the TAA for Workers
program through 2021; it is known as
TAARA 2015.
The regulations governing the current
TAA Program were last updated in
1994, with only minor changes made in
2007 13 and 2010. Since that time,
multiple TAA Program reauthorizations
and amendments have occurred. In
addition, a recent reauthorization and
reform of the public workforce system,
WIOA (Pub. L. 113–128), reaffirms the
TAA Program as a mandatory partner
program in the one-stop delivery
system.
The Department has addressed all
TAA Program reauthorizations and
amendments through administrative
guidance. As a result, a combination of
regulations and a patchwork of
administrative guidance guides the
worker-group certification process at the
Federal level and the administration of
individual benefits and services at the
State level.
The NPRM would promote
transparency by setting out in binding
regulation the major principles by
which the TAA Program operates, and
they would provide the public and
courts with the Department’s
authoritative interpretation of the Act.
The NPRM would also include changes
that increase States’ flexibility to
administer the program, improve service
delivery, and reduce costs. In addition,
the NPRM would incorporate
clarifications that draw upon the
Department’s expertise gained from
decades of experience operating the
TAA Program.
Through the NPRM, the Department
seeks to modernize its TAA Program
regulations to reflect changes to the
workforce, technology, and the
administration of the program that have
occurred since the Department’s last
comprehensive update to the
regulations in 1994. The Department
also seeks to consolidate all applicable
program regulations into a single section
of the CFR.
The goal of the TAA Program is to
help each participating worker obtain,
as quickly as possible, suitable
employment when possible and
nonsuitable employment otherwise.
This goal will be accomplished by
providing trade-affected workers access
to training that will allow workers to
compete for work at the highest skill
levels and highest wages achievable,
given the workers’ preexisting skill
levels, abilities, and education, and the
12 Based on OMB’s E.O. 13771 guidance memo,
M–17–21, perpetuated net cost savings for the
purposes of E.O. 13771 are presented in 2016
dollars. Net cost savings in 2018 dollars are
converted to 2016 dollars using the GDP deflator
from the Bureau of Economic Analysis. BEA.
(2019). ‘‘Table 1.1.9. Implicit Price Deflators for
Gross Domestic Product.’’ Retrieved from: https://
apps.bea.gov/iTable/iTable.cfm?reqid=19&
step=3&isuri=1&select_all_years=0&nipa_table_
list=13&series=a&first_year=2000&scale=-99&last_
year=2019&categories=survey&thetable=x.
13 Minor changes were made to 29 CFR part 90.
The costs of the NPRM are those
associated with State staff needing to
familiarize themselves with the new
regulations, the development of IEPs for
trade-affected workers, and the
implementation of two IC forms (i.e.,
ETA Form 8561, Study of Domestic
Industry, and ETA Form 9185,
Application for Reconsideration). The
largest contributors to the cost savings
of the NPRM are from revisions to the
definition of ‘‘final determination’’
related to judicial appeals and from
streamlining the reconsideration
process. See the cost and cost savings
subsections of section V.A.3 (Subjectby-Subject Analysis) below for a
detailed explanation.
The Department was unable to
quantify one cost, three transfer
payments, and the benefits of the
NPRM. We describe these costs and
transfer payments, along with the rule
benefits, qualitatively in section V.A.3
(Subject-by-Subject Analysis).
1. Need for Regulation
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current and projected labor market, and
do so as quickly as possible. The TAA
Program includes the RTAA benefit,
which may be available to workers 50
years of age or older. The TAARA 2015
reauthorization and amendment of the
TAA Program restored the major
expansions in TAA worker group
eligibility to service sector workers and
workers who are affected by trade from
any country, including countries that do
not have Free Trade Agreements with
the United States, including China and
India.
2. Analysis Considerations
The Department estimated the costs,
cost savings, and transfer payments of
the NPRM relative to the existing
baseline, that is, the current practices
for complying with, at a minimum, the
TAA Program as currently codified at 20
CFR parts 617 and 618, and 29 CFR part
90, as well as in administrative
guidance.14 The Department explains
how the required actions of States,
government agencies, and other related
entities were linked to the expected
costs, cost savings, transfer payments,
and benefits.
In accordance with the regulatory
analysis guidance articulated in OMB
Circular A–4 and consistent with the
Department’s practices in previous
rulemakings, this regulatory analysis
focuses on the likely consequences of
the NPRM (i.e., costs, cost savings,
transfer payments, and benefits that
accrue to entities affected). The analysis
covers 10 years (2019 through 2028) to
ensure it captures major costs, cost
savings, and transfer payments that
accrue over time. The Department
expresses all quantifiable impacts in
2018 dollars and uses 3-percent and 7percent discounting following OMB
Circular A–4.
Exhibit 2 presents the number of
entities that would be affected by the
requirements of the NPRM. The
Department provides these estimates
and uses them throughout this analysis
to estimate the costs, cost savings, and
transfer payments of the NPRM.
EXHIBIT 2—NUMBER OF AFFECTED ENTITIES BY TYPE a
Entity type
Number
States (total) b ......................................................................................................................................................................................
Additional trade-affected workers that will require an IEP due to a comprehensive and specialized assessment (annual) c ...........
Number of firms that will participate in domestic industry study each year (annual) d .......................................................................
Number of applications for reconsideration submitted each year (annual) ........................................................................................
52
23
12
25
a Unless otherwise noted, the number of affected entities was obtained from Trade Act Participant Report (TAPR)—State quarterly reporting
and record keeping information; Management Information System (MIS)—OTAA’s petition database. Data as of December 5, 2017.
b The 52 States used for purposes of this analysis consist of the 50 States, the District of Columbia, and Puerto Rico.
c The Department derived this number by taking the average of the annual number of individuals who received training, job search, or relocation allowances (i.e., program exiters) in FY 2013 through FY 2017.
d Since 1998, the Department has conducted three domestic industry studies. However, for purposes of this analysis, the Department estimates that it will conduct one study per year.
Estimated Number of Workers and Level
of Effort 15
The Department presents the
estimated average number of tradeaffected workers and the estimated
average level of effort required per
worker for each activity in the subjectby-subject analysis. To derive these
estimates, Department TAA Program
experts estimated the average levels of
effort and the average number of
workers needed for each activity to meet
14 Current TEGLs related to the TAA Program can
be found at https://www.doleta.gov/tradeact/law/
directives-guidance/.
15 Trade Act Participant Report (TAPR)—State
quarterly reporting and record keeping information;
Management Information System (MIS)—OTAA’s
petition database. (2017). Unpublished data.
16 BLS. (2019). ‘‘May 2018 National IndustrySpecific Occupational Employment and Wage
Estimates: NAICS 999200—State government,
excluding schools and hospitals (OES
designation).’’ Retrieved from: http://www.bls.gov/
oes/current/naics4_999200.htm. The May 2018
mean hourly wages were adjusted to December
2018 values using Employment Cost Indices (ECI)
for State and local government workers. ECI data
were obtained from ‘‘Table 7. Employment Cost
Index for total compensation, for State and local
government workers, by occupation and industry
(not seasonally adjusted).’’ BLS. (2019).
‘‘Employment Cost Index Historical Listing—
Volume V, Continuous Occupational and Industry
Series, September 1975-March 2019 (December
2005=100).’’ Retrieved from: https://www.bls.gov/
web/eci/ecicois.pdf.
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the requirements relative to the baseline
(i.e., the current practice under the TAA
Program). These estimates are the
national averages for all States; thus,
some States could experience higher
actual costs, cost savings, or transfer
payments, while these impacts could be
lower for other States.
In the subject-by-subject analysis, the
Department presents the labor and other
costs associated with the
implementation of the provisions of the
NPRM. Exhibit 3 presents the
compensation rates for the occupational
categories expected to experience a
change in the level of effort (workload)
due to the NPRM. We use Bureau of
Labor Statistics (BLS) mean hourly wage
rates for State government and private
sector employees.16 17 18 We use OPM
and U.S. courts wage rates for Federal
employees.19 20 We adjust the wage rates
17 BLS. (2019). ‘‘May 2018 National Occupational
Employment and Wage Estimates by Ownership:
Cross-industry, private ownership only: SOC Major
Groups in Cross-industry, private ownership only
(OES designation).’’ Retrieved from: https://
www.bls.gov/oes/current/000001.htm. The May
2018 mean hourly wages were adjusted to
December 2018 values using Employment Cost
Indices (ECI) for private industry workers. ECI data
were obtained from ‘‘Table 5. Employment Cost
Index for total compensation, for private industry
workers, by occupation and industry, Continuous
occupational and industry series (not seasonally
adjusted).’’ BLS. (2019). ‘‘Employment Cost Index
Historical Listing—Volume V—Continuous
Occupational and Industry Series, September 1975–
March 2019 (December 2005=100.’’ Retrieved from:
https://www.bls.gov/web/eci/ecicois.pdf.
18 ETA Form 9185 (Application for
Reconsideration) may be filed by a company
official, a union representative, two workers, or a
State. To estimate the average hourly wage rate for
the person completing ETA Form 9185, the
Department used a weighted-average based on the
percent of petitioners by type (in FY 2017) and the
corresponding hourly rate: (1) Company/union
officials account for 21% of petitioners at an hourly
labor wage rate of $60.60 per hour; (2) workers
account for 17% of petitioners at an hourly labor
wage rate of $24.71 per hour; (3) States account for
62% of petitioners at an hourly labor wage rate of
$24.96 per hour. This calculation results in a
weighted average resulted of $32.40 ([0.21 × $60.60]
+ [0.17 × $24.71] + [0.62 × $24.96]).
19 Office of Personnel Management (OPM). (2018).
‘‘Salary Table 2018–DCB Incorporating the 1.4%
General Schedule Increase and a Locality Payment
of 28.22% for the Locality Pay Area of WashingtonBaltimore-Arlington, DC–MD–VA–WV–PA.’’
Retrieved from: https://www.opm.gov/policy-dataoversight/pay-leave/alaries-wages/salary-tables/
pdf/2018/DCB_h.pdf. Federal employee wage rates
are used to estimate cost savings associated with
reconsiderations and judicial appeals. Because
these two processes are conducted by Headquarter
staff, the Department uses DC–MD–VA–WV–PA
wage rates to estimate labor costs.
20 U.S. Courts. (2019). ‘‘Judicial Compensation.’’
Retrieved from: http://www.uscourts.gov/judgesjudgeships/judicial-compensation.
Compensation Rates
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to reflect total compensation, which
includes nonwage factors such as
overhead 21 and fringe benefits (e.g.,
health and retirement benefits). For the
State government employees, we use an
overhead rate of 41 percent and a fringe
benefits rate of 59 percent. The fringe
benefits rate is derived from the ratio of
average total compensation 22 to average
wages and salaries in 2018.23 For the
private sector employees, we use an
overhead rate of 57 percent and a fringe
benefits rate of 43 percent.24 The fringe
benefits rate is derived from the ratio of
average total compensation 25 to average
wages and salaries in 2018 for the
private sector.26 For the Federal
Government, we use an overhead rate of
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37 percent 27 and a fringe benefits rate
of 63 percent.28 We then multiply the
loaded wage factor by the corresponding
occupational category wage rate to
calculate an hourly compensation rate.
The Department uses the hourly
compensation rates presented in Exhibit
3 throughout this analysis to estimate
the labor costs for each provision.
EXHIBIT 3—COMPENSATION RATES
[2018 dollars]
Position
Grade level
Average
hourly rate
a
Private Sector Employees:
Employment Counselor ................................................
Attorney .........................................................................
Individual Completing ETA Form 8561, Domestic Industry Study ..............................................................
Individual Completing ETA Form 9185, Application for
Reconsideration ........................................................
State Government Employees:
Employment Counselor ................................................
Attorney .........................................................................
Federal Government Employees:
Investigator ...................................................................
Certifying Officer ...........................................................
Attorney .........................................................................
District Court Clerk .......................................................
District Court Judge ......................................................
Transfer Payments
The Department provides an
assessment of transfer payments
associated with the NPRM. In
accordance with OMB Circular A–4, we
consider transfer payments as payments
from one group to another that do not
affect total resources available to
society.
3. Subject-by-Subject Analysis
The Department’s analysis below
covers the expected costs, cost savings,
and transfer payments of the NPRM.
The Department emphasizes that
many of the provisions in the NPRM are
21 The Department derived these overhead factors
based on Department administrative guidance,
developed with OIRA, on how to include overhead
costs in regulatory impact analyses.
22 BLS. (2019). ‘‘2018 Employer Costs for
Employee Compensation.’’ Retrieved from: https://
www.bls.gov/ncs/ect/data.htm. Total compensation
for all workers. Average Series ID
CMU3010000000000D, CMU3010000000000P. To
calculate the average total compensation in 2018,
we averaged the total compensation for all workers
for Quarters 1 through 4.
23 BLS. (2019). ‘‘2018 Employer Costs for
Employee Compensation.’’ Retrieved from: https://
www.bls.gov/ncs/ect/data.htm. Wages and salaries
for all workers. Average Series ID
CMU3020000000000D, CMU3020000000000P. To
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N/A
Overhead
factor
Fringe benefits
factor
b
c
$21.79
74.49
0.57
Hourly
compensation
rate
d = a + (a × b)
+ (a × c)
0.43
$43.58
148.98
60.60
121.20
32.40
64.80
N/A
24.96
45.20
0.40
0.60
49.92
90.40
GS–11, Step 5
GS–14, Step 5
GS–14, Step 7
GS–13, Step
N/A 1
36.95
62.23
65.89
36.36
100.00
0.37
0.63
73.90
124.46
131.78
72.72
200.00
existing requirements in regulation,
statute, or administrative guidance. The
NPRM would codify these practices
under one set of regulations and,
therefore, they are not considered
‘‘new’’ burdens resulting from the
NPRM. Accordingly, the regulatory
analysis focuses on new costs, cost
savings, and transfer payments that can
be attributed exclusively to the NPRM.
Costs
The following sections describe the
costs of the NPRM.
calculate the average wage and salary in 2018, we
averaged the wages and salaries for all workers for
Quarters 1 through 4
24 The Department derived this overhead factor
based on Department administrative guidance,
developed with OIRA, on how to include overhead
costs in regulatory impact analyses.
25 BLS. (2019). ‘‘2018 Employer Costs for
Employee Compensation.’’ Retrieved from: https://
www.bls.gov/ncs/ect/data.htm. Total compensation
for all workers. Average Series ID
CMU2010000000000D, CMU2010000000000P. To
calculate the average total compensation in 2018,
we averaged the total compensation for all workers
for Quarters 1 through 4.
26 BLS. (2019). ‘‘2018 Employer Costs for
Employee Compensation.’’ Retrieved from: https://
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Quantifiable Costs
a. Rule Familiarization
When the NPRM takes effect, State
staff will need to read and interpret the
regulations. Through this review, State
staff will familiarize themselves with
the structure of the new regulation.
Based on previous experience on similar
rulemaking efforts, the Department
anticipates that non-legal (program) staff
will review the new regulations during
the first year to identify any new
provisions relevant to their operations.
The Department also anticipates that
legal staff will review the new
www.bls.gov/ncs/ect/data.htm. Wages and salaries
for all workers. Average Series ID
CMU2020000000000D, CMU2020000000000P. To
calculate the average wage and salary in 2018, we
averaged the wages and salaries for all workers for
Quarters 1 through 4.
27 The Department derived this overhead factor
based on Department administrative guidance,
developed with OIRA, on how to include overhead
costs in regulatory impact analyses.
28 Department of Labor. (2018). ‘‘DOL-Only
Performance Accountability, Information, and
Reporting System; OMB Control No. 1205–0521.’’
Retrieved from: https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201802-1205-003.
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regulations during the second year, as
denials and other legal issues need to be
resolved. As a result, reviewing the new
regulation will impose an initial onetime cost in each of the first 2 years.
To estimate the first year cost of rule
familiarization, the Department
multiplied the number of States (52) by
the estimated number of non-legal staff
that will conduct the activity (2 State
employment counselors). The
Department then multiplied this
product by the amount of time required
to review the rule (2 hours) and by the
hourly compensation rate ($49.92 per
hour). This calculation results in a onetime undiscounted cost of $10,383 in
the first year of the NPRM.
In the second year, the Department
estimates that two-thirds of the States
will have legal staff review the rule.
Therefore, to calculate the one-time cost
of rule familiarization in the second
year, the Department multiplied the
number of States (52) by two-thirds (2⁄3
or 0.67) and by the estimated number of
legal staff conducting the activity (2
State attorneys). The Department then
multiplied this product by the amount
of time required to review the rule (2
hours), and by the hourly compensation
rate ($90.40 per hour). This calculation
results in a one-time undiscounted cost
of $12,656 in the second year of the
NPRM.
The sum of these first- and secondyear one-time costs yields a total
average annual undiscounted cost of
$2,304. The total costs over the 10-year
period are estimated at $23,039
undiscounted, or $22,010 and $20,758
at 3- and 7-percent discount rates,
respectively. The annualized cost over
the 10-year period is $2,580 and $2,956
at 3- and 7-percent discount rates,
respectively.
b. Development of IEPs for TradeAffected Workers Seeking Training or
Job Search Allowances
Under proposed § 618.350(a), States
must make available an IEP to all tradeaffected workers and establish an IEP for
trade-affected workers who apply for
training under subpart F, or AAWs who
apply for a job search allowance under
subpart D, prior to the worker receiving
those benefits and services. An IEP is an
individualized career service under
WIOA sec. 134(c)(2)(A)(xii)(II) and is
developed jointly by the WIOA program
participant and career planner when
determined appropriate by the one-stop
center or one-stop partner. The IEP is an
ongoing strategy to identify employment
goals, achievement objectives, and an
appropriate combination of service for
the participant to achieve their
employment goals. To ensure efficient
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use of time and resources, the
Department is proposing that, if an IEP
has been developed under WIOA, or
other partner program, it will be
reviewed once the participant becomes
a trade-affected worker to ensure it has
certain components required by the
TAA Program, as listed in proposed
§ 618.350(c). If the IEP does not contain
all required components, the IEP must
be supplemented by the State in
conjunction with the trade-affected
worker to ensure it is fully compliant
with the TAA Program requirements.
Based on program data, the
Department estimates that, each year,
States will need to develop or
supplement IEPs for 23 trade-affected
workers 29 that apply for training and
job search allowances and do not yet
have an IEP or whose IEP does not
contain all of the required components.
To estimate the costs associated with
developing or supplementing IEPs, as a
result of requiring IEPs for training and
job search allowance applicants, the
Department multiplied the estimated
number of affected trade-affected
workers (23) by the cost per IEP
($24.96).30 This calculation results in an
annual undiscounted cost of $574. The
total cost over the 10-year period is
estimated at $5,740 undiscounted, or
$4,896 and $4,032 at 3- and 7-percent
discount rates, respectively. The
annualized cost over the 10-year period
is $574 at both 3- and 7-percent
discount rates.
c. Other Quantifiable Costs
Other quantifiable costs of the NPRM
stem from the implementation of two IC
forms: (1) ETA Form 8561, Study of
Domestic Industry; and (2) ETA Form
9185, Application for Reconsideration.
The Department is reactivating ETA
Form 8561 A/B/C, Standard
Questionnaire for Manufacturing Firms,
by revising it as ETA Form 8561, Study
of Domestic Industry. The Department
will use ETA Form 8561 to collect
information from firms within an
industry subject to an investigation by
the International Trade Commission
under sec. 202 of the Act. The
Department then will use the
information collected to produce a
report for the President, as required
under sec. 224 of the Act. The report
will contain information on the number
29 The Department derived this number by
calculating the average of the annual number of
individuals who received training, job search, or
relocation allowances (i.e., program exiters) in FY
2013 through FY 2017.
30 The cost per IEP is estimated by multiplying
the hourly compensation rate of a State
employment counselor ($49.92 per hour) by the
time spent developing the IEP (0.50 hours),
resulting in a cost estimate of $24.96.
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of workers in the domestic industry
producing the like, or directly
competitive, article who have been, or
are likely to be, certified as eligible for
adjustment assistance, and the extent to
which the adjustment of such workers
to the import competition may be
facilitated using existing programs. The
Department anticipates conducting one
industry study per year, and that each
firm will submit one response. To
estimate the costs associated with the
implementaion of ETA Form 8561, the
Department multiplied the number of
firms that will participate in each
industry study (12) by the amount of
time required to complete the form (1
hour) and by the hourly compensation
rate ($121.20 per hour). This calculation
results in an annual undiscounted cost
of $1,454.
The Department is also implementing
a new form: ETA Form 9185,
Application for Reconsideration. ETA
Form 9185 standardizes the information
required by regulations for an aggrieved
party to seek administrative
reconsideration of a termination of
investigation, termination or partial
termination of a certification, or a
negative determination of a petition. To
estimate the costs associated with this
form, the Department multiplied the
estimated number of applications that
will be submitted each year (25) by the
amount of time required to complete the
application (1 hour) and by the hourly
compensation rate ($64.80 per hour).
This calculation results in an annual
undiscounted cost of $1,620.
The sum of these costs yields a total
annual undiscounted cost of $3,074.
The total cost over the 10-year period is
estimated at $30,744 undiscounted, or
$26,225 and $21,593 at 3- and 7-percent
discount rates, respectively. The
annualized cost over the 10-year period
is $3,074 at both 3-and 7-percent
discount rates.
Nonquantifiable Costs
a. Criteria for Certification of Worker
Groups
Proposed § 618.225 substantially
updates 29 CFR 90.16(b) to describe the
criteria the Department uses to certify
worker groups, which has expanded
significantly under sec. 222 of the Act.
It also identifies factors under
consideration in determining whether a
criterion has been met. The revised
language provides transparency on how
investigations are conducted, the
importance of information collected,
and how the information is used. The
proposed new provisions reflect the
requirements of the Act, existing
Departmental practices, and, in some
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instances, thresholds for select criteria.
The proposed provision also includes
teleworkers and staffed workers because
they are frequently performing the same
work as other trade-affected workers in
the subject firm or subdivision and are
under the subject firm’s control.
As a result of this proposed change,
the Department will need to spend de
minimis time to update forms. The
Department has no data to determine if
the number of applications that will be
submitted would change and, therefore,
cannot quantify any potential cost
related to a change in the number of
applications due to this proposed
change.
Cost Savings
The following sections describe the
cost savings of the NPRM.
Quantifiable Cost Savings
a. Reconsideration
Currently, the process for
reconsiderations (29 CFR 90.18) has two
steps. Applicants request a
reconsideration, and the Department
either accepts or denies the request.
Acceptance or denial results in a
posting to the Federal Register and a
notification to the applicant. If accepted,
the reconsideration process begins, and
a decision is reached. If denied, the
petitioner likely will appeal to the
USCIT.
The Department proposes to eliminate
the step requiring the certifying officer
to make and issue a determination on
whether or not a reconsideration will be
initiated (29 CFR 90.18(c)). The
Department concluded that eliminating
this step would decrease time and
burden, and simplify the process.
Under the new process in proposed
§ 618.245, the Department will initiate
an investigation on all valid
reconsideration applications, conduct
the required review, and post the results
via the Federal Register and the
Department’s website. Although this
new process will not eliminate
reconsiderations, the Department
estimates that it will reduce the
processing time involved for all
reconsiderations by approximately 33
percent, as there will be no initial
review of the request or related
notification. Thus, under the new
process, the cost per reconsideration
will be 67 percent of the cost under the
current process. The Department
estimates that the cost per
reconsideration under the current
process is $1,857.31 Under the new
31 The Department estimates the cost to process
a reconsideration based on the cost to process a full
petition due to data availability. The Department
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process, the Department estimates that
the cost per reconsideration will be
$1,244 (0.67 × $1,857 per
reconsideration). Under the current and
revised processes, approximately 25
reconsiderations are filed per year, and
the Department concludes that will not
change. To estimate the cost savings
associated with this proposed change,
the Department subtracted the cost per
reconsideration under the new process
($1,244) from the cost per
reconsideration under the current
process ($1,857) and then multiplied by
the number of reconsiderations filed per
year (25). This yields an average annual
undiscounted cost savings of $15,325.
The total cost savings from the new
reconsideration process over the 10-year
period is estimated at $153,250
undiscounted, or $130,725 and
$107,636 at 3- and 7-percent discount
rates, respectively. The annualized cost
savings over the 10-year period is
$15,325 at both 3- percent and 7-percent
discount rates.
b. Judicial Appeals
Under existing regulations, all
determinations rendered by the
Department are final determinations
subject to judicial review. As a result,
nearly any determination rendered by
estimates that the cost to process a reconsideration
under the current process is 86 percent of the cost
to process a full petition. This estimate is based on
an average of 60 days to process a reconsideration
compared to a median of 70 days to process a full
petition (60/70 = 86 percent).
The Department estimates an investigator spends
100 percent of their time, or 2,080 hours, processing
petitions. The investigator processes 100 petitions
per year. Therefore, the cost per petition for an
investigator to process is estimated by multiplying
the hourly compensation rate ($73.90 per hour) by
the hours they work per year (2,080 hours) and
dividing by the number of petitions processed per
year (100 petitions per year). This results in a cost
per petition for an investigator of $1,537. The
Department estimates a certifying officer manager
spends 75 percent of their time (1,560 hours) and
a nonmanager certifying officer spends 100 percent
of their time (2,080 hours) processing petitions.
Certifying officers process an estimated 376 full
petitions per year. Based on this data, a manager
certifying officer spends 4 hours per petition (1,560/
376) and a nonmanager certifying officer spends 6
hours per petition (2,080/376). The Department
uses an average of nonmanager and manager hours
per petition to estimate the average certifying
officer’s time to process a petition (5 hours). To
estimate the cost per petition for a certifying officer,
the Department multiplied the hourly
compensation rate ($124.46 per hour) by the
number of hours spent processing a full petition (5
hours). This results in a cost per petition for a
certifying officer of $622.
The Department, therefore, estimates the full cost
of processing a full petition as the sum of the cost
for an investigator to process a petition and the cost
for a certifying officer to process a petition.
Summing these costs results in an estimated cost of
$2,159 to process a petition. The cost per
reconsideration is, therefore, estimated as $1,857
based on the cost per reconsideration being 86
percent of the cost of processing a full petition.
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the Department can be appealed to the
USCIT (29 CFR 90.19).
In the NPRM, the Department would
define only determinations on
reconsideration issued under
§§ 618.240(g) and 618.245 as final
determinations and, therefore, only
these determinations are subject to
judicial review through the USCIT. This
will reduce the time and effort spent by
Department employees, petitioners, and
the USCIT on appeals that have not yet
been subject to the reconsideration
process. These appeals require legal
counsel for the Department and for the
appellant, and associated fees are
involved with the proceedings. By
revising the definition of ‘‘final
determinations’’ and through the
revisions to the reconsideration process,
the Department concludes that the
number of judicial appeals will be
reduced to one per year.
The Department estimates the cost
savings from reducing the number of
judicial appeals by subtracting the
estimated number of judicial appeals
under the NPRM (one per year) from the
current number of judicial appeals per
year (five per year) and multiplying by
the cost per appeal ($21,443).32 This
32 The cost per appeal is estimated from the cost
to the appellant, the Department, and the USCIT to
process an appeal. Based on USCIT court fees
(https://www.cit.uscourts.gov/sites/cit/files/
Schedule%20of%20Fees.pdf), the appellant must
pay fees for attorney admission ($81), a filing fee
($400), and a charge for each type of fee ($304) for
a total of $785 in fees to appeal. The appellant also
must have a private sector attorney prepare for the
appeal and appear in court. The Department
estimates this cost by multiplying the hourly
compensation rate ($148.98 per hour) by the sum
of time the private sector attorney must spend to
prepare (40 hours) and the time spent in court (12
hours). These estimates include time spent
responding to filings and other actions outside of
court proceedings. The result is a cost per appeal
for the appellant of $8,532.
The Department has a cost per appeal for a DOL
and DOJ attorney to prepare and attend court and
a remand cost. The Department estimates the
remand cost by multiplying the current cost per
reconsideration ($1,857) by 1.5, resulting in a
remand cost of $2,785. To estimate the cost of a
DOL and DOJ attorney, the Department multiplied
the hourly compensation rate ($131.78 per hour) by
the sum of time the DOL and DOJ attorney must
spend to prepare (40 hours) and the time spent in
court (12 hours). The result is a cost per appeal for
the Department of $9,638.
The cost to the USCIT is the court time for a
district court judge and district court clerk. The
Department estimates the cost of court time for a
judge by multiplying the hourly compensation rate
($200.00 per hour) by the time spent in court and
the time spent reviewing the filings related to the
appeal (12 hours), resulting in a cost estimate of
$2,400. The Department estimates the cost of court
time for a clerk by multiplying the hourly
compensation rate ($72.72 per hour) by the time
spent in court (12 hours), resulting in a cost
estimate of $873. The cost to the USCIT for an
appeal is therefore estimated as $3,273.
The cost per appeal is therefore estimated as the
sum of the cost to the appellant ($8,532), the cost
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yields average annual undiscounted cost
savings of $64,329. The total cost
savings from the reduction in judicial
appeals over the 10-year period is
estimated at $643,290 undiscounted, or
$548,739 and $451,820 at 3- and 7percent discount rates, respectively. The
annualized cost savings over the 10-year
period is $64,329 at both 3- and 7percent discount rates.
Relative to the baseline (i.e., current
practice under the TAA Program), the
two issues described above are expected
to result in average annual
undiscounted cost savings of $79,654.
The total cost savings over the 10-year
period is estimated at $796,540
undiscounted, or $679,465 and
$559,456 at 3- and 7-percent discount
rates, respectively. The annualized cost
savings over the 10-year period is
estimated at $79,654 at both 3- and 7percent discount rates.
is $8,885,710 annually.33 The
Department estimates the cost of
providing employment and case
management services by non-merit staff
is $7,757,196 annually, due to the lower
hourly wage for the typical non-merit
staff employee.34 The Department,
therefore, estimates transfer payments
associated with removing the restriction
to allow States to charge time for nonmerit staff to TAA Program funds by
subtracting the cost of non-merit staff
($7,757,196) from the cost of State merit
staff ($8,885,710) and multiplying by 0.5
to account for the Department’s estimate
that half the States will use the
flexibility provided by the NPRM. This
yields average annual undiscounted
transfer payments of $564,257. The total
transfer payments from removing the
restriction to allow States to charge time
for non-merit staff to TAA Program
funds over the 10-year period is
Transfer Payments
33 To estimate the cost of State merit staff
providing employment and case management
services, the Department first estimated the amount
of time spent providing the services. Of the 16,375
total exiters in 2017, 9,803 received training and
6,572 received only case management services. The
average duration of training is 413 days, and the
average duration of case management services is
195 days. Staff have a minimum contact
requirement of 30 days, and contact is estimated to
take 1 hour. Therefore, the Department estimated
the time spent by staff providing training services
to an exiter by dividing the average duration of
training (413 days) by the minimum contact
requirement (30 days) and multiplying by the time
of contact (1 hour), resulting in an estimate of 13.8
hours. The Department, therefore, estimates the
hours required for training services to all exiters
that received training by multiplying the number of
exiters receiving training (9,803) by the time spent
by staff providing them services (13.8 hours),
resulting in an estimate of 135,281 hours. The
Department estimated the time spent by staff
providing case management services only to an
exiter by dividing the average duration of case
management (195 days) by the minimum contact
requirement (30 days) and multiplying by the time
of contact (1 hour), resulting in an estimate of 6.5
hours per exiter receiving case management
services. The Department, therefore, estimates the
hours required for case management services to all
exiters that received case management services only
by multiplying the number of exiters receiving only
case management services (6,572) by the time spent
by staff providing them services (6.5 hours),
resulting in an estimate of 42,718 hours.
To estimate the cost of State merit staff providing
employment and case management services, the
Department summed the time required to provide
training services (135,281 hours) and the time
required to provide case management services only
(42,718 hours), which results in a total of 177,999
hours. The Department then multiplied the total
hours by the hourly compensation rate of a State
employment counselor ($49.92 per hour) resulting
in a cost estimate of $8,885,710.
34 To estimate the cost of non-merit staff in
providing employment and case management
services, the Department summed the time required
to provide training services (134,955 hours) and the
time required to provide case management services
only (42,718 hours), which results in a total of
177,999 hours. The Department then multiplied the
total hours by the hourly compensation rate of a
private sector employment counselor ($43.58 per
hour), resulting in a cost estimate of $7,757,196.
The following sections describe the
transfer payments of the NPRM.
Quantifiable Transfer Payments
a. Merit Versus Non-Merit Staff
Currently, States must engage only
State merit staff to perform TAA-funded
functions undertaken to carry out the
State’s responsibilities under the Act (20
CFR 618.890). Non-merit staff that
provide employment and case
management services to trade-affected
workers cannot charge their time to
TAA Program funds.
Proposed § 618.890 on staffing
flexibility amends the current regulation
to clarify that only certain activities
under the TAA Program need to be
performed by personnel covered by a
system meeting the criteria of the
Federal merit personnel system
regardless of whether they are funded
by the TAA Program. This results in a
transfer payment because non-merit
staff will be performing the same work
at a lower wage than the currently used
merit staff. As a result, providing
employment and case management
services by non-merit staff will result in
transfer payments from employees to
the States because there are no laborhours freed and only a decline in wages.
The Department estimates that half
the States, and therefore half the
participants, will take advantage of the
flexibility provided by the NPRM.
The Department estimates that the
cost of providing employment and case
management services by State merit staff
to the Department ($9,638), and the cost to the
USCIT ($3,273). This cost is $21,443.
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estimated at $5,642,570 undiscounted,
or $4,813,227 and $3,963,105 at 3- and
7-percent discount rates, respectively.
The annualized cost savings over the 10year period is $564,257 at both 3- and
7-percent discount rates.
Nonquantifiable Transfer Payments
a. Change in the Definition of ‘‘Group’’
Under proposed § 618.110 (definition
of ‘‘group of workers’’), the Department
updates the definition of ‘‘group’’ to
mean at least two workers employed or
formerly employed by the same firm, or
an appropriate subdivision. The
proposed definition also includes
teleworkers and staffed workers,
because they are frequently performing
the same work as other trade-affected
workers in the subject firm or
subdivision and are under the subject
firm’s control. Separated workers are
included in the definition because they,
too, may be trade-affected workers.
Because of a lack of data on the
additional number of beneficiaries, the
Department is unable to quantify the
transfer. The Department expects the
change to be small.
b. Suitable Work Versus Suitable
Employment
Proposed § 618.400 explains the scope
of the subpart, and is a provision not
contained in current regulations.
Proposed § 618.400 contains one
substantive departure from current
regulations in that it identifies the goal
of providing job search and relocation
allowances to help AAWs secure and, if
necessary, relocate to ‘‘suitable
employment’’ as defined in sec. 236 of
the Act, instead of merely assisting
AAWs in finding ‘‘suitable work’’ as
current regulations have provided.
Proposed § 618.405 contains general
provisions and revises and consolidates
current 20 CFR 617.30 and 617.40.
Proposed § 618.405(a) retains the
content in 20 CFR 617.30, except that it
replaces the reference to ‘‘securing a
job’’ with ‘‘suitable employment’’ to
align with the change to the goal of the
subpart.
This proposed change would modify
the eligibility requirement, for both job
search and relocation allowances, that
there be no ‘‘suitable work’’ available in
the local area to the requirement that
there be no ‘‘suitable employment’’
available in the local area. ‘‘Suitable
employment’’ is generally work at
higher skill levels and wage rates than
is ‘‘suitable work’’ (i.e., a job is less
likely to meet the higher ‘‘suitable
employment’’ standard and such jobs
will, therefore, be less likely to be
available). Thus, this proposed change
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would simplify the operation of the
TAA Program by using the same
standard—suitable employment—as the
factor for approval of training, job
search allowances, and relocation
allowances. Program performance data
shows that AAWs who relocate have a
wage replacement rate exceeding 100
percent, which means that this
proposed change should have little or
no impact on the number of AAWs and
is not quantifiable.
c. Length of Training and
Apprenticeships
Proposed § 618.635(c) is new and
establishes apprenticeship provisions
that specifically provide that both
registered apprenticeships under the
National Apprenticeship Act, as well as
other training programs that include a
paid work-based learning component
and required educational or
instructional component that results in
the issuance of a recognized
postsecondary credential, are
approvable TAA Program training
activities. These provisions are based on
a combination of secs. 236(a)(5)(A)(iii)
and 236(a)(5)(G) of the Act. The
requirement that an apprenticeship lead
to an industry-recognized credential
differentiates an apprenticeship from
regular OJT.
The NPRM would revise TAA length
of training requirements applicable to
apprenticeships. In addition, under the
NPRM, TAA Program funds could be
used to pay for the educational and
instructional component of the
apprenticeship until completion of the
apprenticeship, which, in some cases,
could be up to 5 years. In particular, the
TAA Program would provide for
reimbursement to the employer for the
paid-work component of the
apprenticeship for up to 130 weeks.
Reimbursement would be up to 50
percent of the employer’s training costs
based on the wage rate of the tradeaffected worker.
The increased flexibility in the use of
TAA Program funds may result in an
increase in apprenticeships; however,
the Department is unable to quantify
this and seeks public comment. The
Department expects that funding
adjustments would need to be made for
trade-affected workers requiring
additional funding due to participation
in a registered apprenticeship. The
proposed provision would result in
transfers of funds between States and
the Federal Government. The total
amount of expenditures that may be
accrued at the national level, however,
will not change and is therefore not
quantified.
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Other Key Changes With No Economic
Impact
TGAAA and TAAEA introduced
statutory program changes, and the
TAARA 2015 amendments restored
these improvements. The NPRM
proposes to codify the provisions
associated with these improvements,
currently implemented via
administrative guidance, into the TAA
Program regulations. The Department
analyzed these proposed provisions to
determine if they have any additional
cost or result in transfer payments when
compared to the baseline. Based on this
analysis, the Department determined
that no costs or transfer payments are
associated with the program
improvement provisions.
a. A set of provisions requiring services
to all trade-affected workers,
including AAIWs who have not yet
separated from adversely affected
employment but are threatened
with separation (subpart A,
§ 618.110; subpart C, § 618.310; and
subpart F, § 618.655)
Under this set of provisions, AAIWs
must be provided TAA Program
services, as appropriate, before the
worker’s separation from employment,
ideally allowing these workers to
transition to new employment without
experiencing a gap in employment or by
reducing the amount of time needed to
complete the training program after the
separation, or both, and reducing the
worker’s overall period of
unemployment. Under the current
regulations, the Department could not
begin providing services to serve AAIWs
until they are laid off. No costs or
transfer payments are associated with
these provisions, as they are codifying
current administrative guidance.
b. Provisions that expand trade-affected
worker eligibility to include those
workers in firms that supply
service-sector workers, expanding
coverage to the largest growing
sector of the economy (subpart B,
§ 618.225(a) and (b))
No costs or transfer payments are
associated with these provisions, as they
are codifying current administrative
guidance.
c. Provision that makes workers in firms
identified in International Trade
Commission ‘‘injury’’
determinations ‘‘automatically’’
certified (subpart B, § 618.225(c))
No costs or transfer payments are
associated with this provision, as it is
codifying current administrative
guidance.
d. Provisions providing funding for
individualized case management
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60219
services (subpart C, §§ 618.310,
618.330, 618.335, 618.345, 618.350,
and 618.360)
Employment counseling and
reemployment services have been
required under the TAA Program since
implementation of chapter 2 of title II of
the Trade Act of 1974. The current
requirements are found at 20 CFR
617.20 and 617.21. This set of
provisions includes the development of
a reemployment plan and assessments.
The language in the existing regulation,
however, uses outdated terminology.
The NPRM would update this language.
Case managers are to ensure tradeaffected workers receive job placement
services, develop individual
assessment-based employment and
training programs, and provide career
counseling. Under the current
regulations, funds for individualized
case management services are not
authorized, requiring these services to
be made available through partner
programs such as Wagner-Peyser or
WIOA. No costs or transfer payments
are associated with these provisions, as
they are codifying current
administrative guidance.
e. Provisions that eliminate the
requirement for AAWs to apply for
and wait to attain a separate group
certification to be eligible for the
RTAA program (subpart E,
§§ 618.500 and 618.505)
AAWs receiving RTAA can work full
time or part time and receive training,
which would allow this population to
regain skills to stay competitive. RTAA
replaces ATAA, a program piloted in
the TAA Program under TAARA 2002.
Neither RTAA nor ATAA are included
in current regulations. No costs or
transfer payments are associated with
these provisions, as they are codifying
current administrative guidance.
f. Provisions that introduce Completion
TRA and require trade-affected
worker training benchmarks to
monitor training progress regularly
and allow for amendments of a
training program to help ensure
successful training outcomes
(subpart F, § 618.660; and subpart
G, § 618.755)
No costs or transfer payments are
associated with these provisions, as they
are codifying current administrative
guidance.
g. A provision that eliminates training
waivers based on recall, marketable
skills, and retirement (subpart G,
§ 618.725(b))
No costs or transfer payments are
associated with this provision, as it is
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codifying current administrative
guidance.
h. A set of provisions that expands the
deadline for enrolling in training to
qualify for TRA, providing tradeaffected workers more time to
consider their training options
(subpart G, § 618.720(c)(1), (2), and
(4))
No costs or transfer payments are
associated with these provisions, as they
are codifying current administrative
guidance.
i. A provision that allows States to
apply Federal ‘‘good cause’’ waiver
provisions to TAA Program
deadlines allowing for tradeaffected workers to retain benefits
due to extenuating circumstances
(subpart G, § 618.720(c)(5))
This provision allows States to apply
Federal ‘‘good cause’’ waiver provisions
to TAA Program deadlines allowing for
trade-affected workers to retain benefits
due to extenuating circumstances. No
costs or transfer payments are associated
with this provision, as it is codifying
current administrative guidance.
j. Subpart G, § 618.775
This provision enables AAWs to elect
TRA over UI based on a second UI claim
in circumstances that result in lower
weekly benefit amounts from part-time
or short-term work. No costs or transfer
payments are associated with this
provision, as it is codifying current
administrative guidance.
Qualitative Benefits Discussion
The TAA Program includes the RTAA
benefit, which may be available to
AAWs 50 years of age or older.
Reauthorization of the program restored
the major expansions in TAA worker
group eligibility to service sector
workers and to workers affected by trade
from any country, including countries
that do not have Free Trade Agreements
with the United States including China
and India.
A 2012 evaluation of the TAA
Program showed that TAA Program
participants who undertook training
recorded better employment outcomes
than those who received only income
support and that TAA Program
participants almost entirely closed the
gap between their wages in the previous
employment and their wages in the new
employment within 4 years, and, by one
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measure, had pulled slightly ahead.35
The evaluation also found that TAA
Program participants were engaged in
some form of productive activity at
about the same rate as the comparison
group.
a. Streamlining and Consolidation of
TAA Program Regulations
As stated above, the regulations
governing the TAA Program have not
been updated since 1994. Since that
time, multiple reauthorizations and
amendments have occurred. All TAA
Program reauthorizations and
amendments were implemented through
administrative guidance. As a result, the
States must use a combination of
regulations and a patchwork of
administrative guidance to operate the
program.
The NPRM would provide a legally
binding set of rules to guide the workergroup certification process at the
Federal level and the individual benefit
and training authorization process at the
State level, and provide Federal and
State courts with the Department’s
authoritative interpretation of TAARA
2015. The NPRM also would update the
TAA Program and consolidate all
applicable program regulations into a
single section of the CFR.
b. Support to American Workers That
Have Lost Their Jobs as a Result of
Foreign Trade
The objective of the TAA Program is
to provide trade-affected workers with
opportunities to obtain the skills,
credentials, resources, and support
necessary to (re)build skills for future
jobs. For over 40 years, the TAA
Program has assisted U.S. workers who
have lost or may lose their jobs as a
result of foreign trade. Benefits and
services include: employment and case
management services (e.g., career
counseling); training; job search and
relocation allowances; TRA; RTAA for
AAWs aged 50 and older; and, if
available, the HCTC.
Since 1975, the TAA Program has
served over two million U.S. tradeaffected workers. In FY 2017, an
estimated 94,017 trade-affected workers
became eligible for TAA Program
benefits and services. Nearly 75 percent
35 Social Policy Associates and Mathematica
Policy Research. (2012). ‘‘The Evaluation of the
Trade Adjustment Assistance Program: A Synthesis
of Major Findings.’’ Retrieved from: https://
wdr.doleta.gov/research/FullText_Documents/
ETAOP_2013_08.pdf.
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of trade-affected workers obtained
employment within 6 months of
completing the TAA Program, and over
90 percent of those who found work
retained their jobs 6 months later.
Trade-affected workers come from a
variety of backgrounds and industries,
and therefore, many enter the program
with a wide array of skills and
experience. Most trade-affected workers
who enter the program, however, face
similar challenges in obtaining
reemployment. Trade-affected workers
have no postsecondary degree typically,
an average age of 49, and an average of
12 years of experience in a specific job
that may no longer exist.36 The TAA
Program is designed to serve the needs
of this unique population best, which it
continues to do.
An ever-changing global marketplace
drives the 21st-century economy. For
America to outcompete other countries,
its workers need to have the skills and
support to take advantage of new
opportunities the 21st-century economy
presents. The TAA Program sets out to
do that by providing the best
opportunities for American workers to
reenter the workforce.
4. Summary of the Analysis
Exhibit 4 summarizes the estimated
total costs, cost savings, and transfer
payments of the NPRM over the 10-year
analysis period. The annual costs, cost
savings, and transfer payments do not
reach $100 million in any given year.
Thus, the NPRM is not economically
significant.
The Department estimates the
annualized costs of the NPRM at $6,604,
the annualized cost savings at $79,654,
and the annualized transfer payments at
$564,257, at the 7-percent discount rate.
When the Department uses a perpetual
time horizon to allow for cost
comparisons under E.O. 13771, the
annualized costs of the rule are $5,101,
the annualized cost savings are $79,654,
and the annualized transfer payments
are $564,257, all at 7-percent
discounting.
The Department estimates the net cost
savings of the NPRM at $513,073 at a
discount rate of 7 percent.
36 U.S. Department of Labor, Employment and
Training Administration. (2018). ‘‘Trade
Adjustment Assistance for Workers Program: Fiscal
Year 2017.’’ Retrieved from: https://
www.doleta.gov/tradeact/docs/
AnnualReport17.pdf.
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EXHIBIT 4—ESTIMATED MONETIZED COSTS, COST SAVINGS, NET COST SAVINGS, AND TRANSFER PAYMENTS OF THE
NPRM
[2018 dollars]
Costs
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
Cost savings
Net cost
savings a
Transfer
payments
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
$14,032
16,304
3,648
3,648
3,648
3,648
3,648
3,648
3,648
3,648
$79,654
79,654
79,654
79,654
79,654
79,654
79,654
79,654
79,654
79,654
$65,622
63,350
76,006
76,006
76,006
76,006
76,006
76,006
76,006
76,006
$564,257
564,257
564,257
564,257
564,257
564,257
564,257
564,257
564,257
564,257
Undiscounted 10-Year Total ............................................................................
59,523
796,540
737,017
5,642,570
10-Year Total with 3% Discounting .................................................................
53,132
679,465
626,333
4,813,227
10-Year Total with 7% Discounting .................................................................
46,383
559,456
513,073
3,963,105
10-Year Average ..............................................................................................
5,952
79,654
73,702
564,257
Annualized with 3% Discounting .....................................................................
6,229
79,654
73,425
564,257
Annualized with 7% Discounting .....................................................................
6,604
79,654
73,050
564,257
Perpetuated Net Cost Savings a with 7% Discounting (2016 dollars) .............
........................
........................
71,434
........................
a Net
Cost Savings = [Total Cost Savings] ¥ [Total Costs].
5. Regulatory Alternatives
OMB Circular A–4, which outlines
best practices in regulatory analysis,
directs agencies to analyze alternatives
if such alternatives best satisfy the
philosophy and principles of E.O.
12866. The Department has considered
three alternatives as part of determining
whether to issue this NPRM. These
alternatives include: (1) To take no
action, that is, make no regulatory
changes; (2) to reduce the number and
types of provisions in the regulations;
and (3) to propose more stringent, less
flexible regulations and provide
clarification in administrative guidance.
Each alternative is discussed in more
detail below.
The Department considered the ‘‘no
action’’ alternative, thereby, leaving the
regulations in three separate parts in the
CFR (i.e., 20 CFR parts 617 and 618, and
29 CFR part 90) and continuing to use
administrative guidance to operate the
TAA Program. This alternative has the
disadvantage of forcing States to use a
combination of outdated regulations and
a patchwork of administrative guidance
to operate the program. The TAA
Program requirements have changed
substantially since 1994. As a result, the
implementation of new regulations is
necessary to achieve program
compliance, integrate the TAA Program
with the workforce development and
education systems, and reduce the
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Department’s and States’ legal burden
concerning petition issues raised in
court cases and appeals.
The Department also considered
scaling back the number and types of
provisions in the regulations, except for
those areas where there are statutory
requirements for the Department to
promulgate regulations. Examples of
provisions that could be excluded are:
(1) The primary indicators of
performance; (2) the expansion of State
responsibility for providing
employment and case management
services; (3) the integration of the TAA
Program into the one-stop delivery
system under WIOA and alignment with
the WIOA Final Rule; (4) the increase in
the maximum limit for job search and
relocation allowances; (5) the addition
of the RTAA, which was established
under the 2009 Program amendments;
(6) the addition of Completion TRA; and
(7) the study and notifications regarding
certain affirmative determinations. This
regulatory alternative has the
disadvantage of forcing the regulated
community to follow statutory language
for implementation. Considering many
of these provisions are new, the
statutory language would not provide
sufficient detailed guidance to
implement the provisions effectively,
thereby, increasing the risk of
noncompliance.
Finally, the Department considered
proposing more stringent, less flexible
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regulations and relying on
administrative guidance to provide
clarification. Examples of provisions
where the Department could be more
prescriptive are: (1) Worker group
eligibility requirements (2) employment
and case management services; (3)
training (e.g., approval, cost, and type);
(4) job search and relocation allowances;
(5) Completion TRA and training
benchmarks; and (6) RTAA. This
alternative has the disadvantage of not
providing enough flexibility to mold the
TAA Program to the evolving needs of
displaced workers and the changing
economic landscape. Not only could
this negatively affect participants, it
could cost States and the Department
more through decreases in efficiency
from having to adhere to more
restrictive and complex regulations.
This would ultimately lead to
participants being underserved due to
the time and budgetary burdens that
more stringent regulations would
impose. Also, administrative guidance
is not legally binding, and, therefore,
not as an effective tool as flexible
regulations.
The Department considered the three
options above in accordance with the
provisions of E.O. 12866 and chose to
publish the NPRM to increase flexibility
to States and trade-affected workers,
improve participant outcomes, clarify
overly technical or confusing language,
update references and procedures, and
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codify elements from administrative
guidance.
The Department invites comments on
these or other possible alternatives with
the goal of ensuring a thorough
consideration and discussion at the final
rule stage.
C. Regulatory Flexibility Act, Small
Business Regulatory Enforcement
Fairness Act of 1996, and Executive
Order 13272 (Proper Consideration of
Small Entities in Agency Rulemaking)
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601 et seq., as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996,
Public Law 104–121 (Mar. 29, 1996),
requires Federal agencies engaged in
rulemaking to consider the impact of
their proposals on small entities,
consider alternatives to minimize that
impact, and solicit public comment on
their analyses. The RFA requires the
assessment of the impact of a regulation
on a wide range of small entities,
including small businesses, not-forprofit organizations, and small
governmental jurisdictions. Agencies
must perform a review to determine
whether a proposed or final rule would
have a significant economic impact on
a substantial number of small entities. 5
U.S.C. 603 and 604.
Because the entities impacted by the
NPRM are the States, which do not
qualify as small entities, the Department
has determined that the NPRM would
impact no small entities. Based on this
determination, the Department certifies
that the NPRM would not have a
significant economic impact on a
substantial number of small entities.
D. Paperwork Reduction Act
The purposes of the PRA, 44 U.S.C.
3501 et seq., include minimizing the
paperwork burden on affected entities.
The PRA requires certain actions before
an agency can adopt or revise a
collection of information, including
publishing for public comment a
summary of the collection of
information and a brief description of
the need for and proposed use of the
information.
As part of its continuing effort to
reduce paperwork and respondent
burden, the Department conducts a
preclearance consultation program to
provide the general public and Federal
agencies with an opportunity to
comment on proposed and continuing
collections of information in accordance
with the PRA. See 44 U.S.C.
3506(c)(2)(A). This activity helps to
ensure that the public understands the
Department’s collection instructions,
respondents can provide the requested
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data in the desired format, reporting
burden (time and financial resources) is
minimized, collection instruments are
clearly understood, and the Department
can properly assess the impact of
collection requirements on respondents.
Furthermore, the PRA requires all
Federal agencies to analyze proposed
regulations for potential time burdens
on the regulated community created by
provisions in the proposed regulations
that require any party to obtain,
maintain, retain, report, or disclose
information. The IC requirements must
also be submitted to OMB for approval.
A Federal agency may not conduct or
sponsor a collection of information
unless it is approved by OMB under the
PRA and displays a currently valid
OMB control number. The public is also
not required to respond to a collection
of information unless it displays a
currently valid OMB control number. In
addition, notwithstanding any other
provisions of law, no person will be
subject to penalty for failing to comply
with a collection of information if the
collection of information does not
display a currently valid OMB control
number (44 U.S.C. 3512).
The following information collections
are part of the States’ administration of
the TAA Program. They have been
previously reviewed and approved.
They have not been impacted by this
rule:
OMB Control Number 1205–0275—
Trade Adjustment Assistance Program
Reserve Funding Request
OMB Control Number 1205–0222—
Unemployment Insurance Materials
Transmittal
OMB Control Number 1205–0521—
DOL-Only Performance Accountability,
Information, and Reporting System
OMB Control Number 1205–0461—
Employment and Training
Administration Financial Report Form
ETA–9130
The Department has determined that
there is a new information collection
contained in this rule. This collection is
related to an aggrieved party seeking
administrative reconsideration of a
negative determination under sec. 222
of the Act, and the domestic industry
study required by sec. 202 of the Act.
Petition Requirements; Investigations;
Domestic Industry Study; Application
for Reconsideration
Agency: DOL–ETA.
Title of Collection: Petition
Requirements; Investigations; Domestic
Industry Study; Application for
Reconsideration.
Type of Review: New.
OMB Control Number: 1205–0NEW.
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Description: The information
contained in this collection is submitted
by various parties, including
individuals, company officials, unions,
and State agencies. This information is
collected in paper, by fax, via online
forms, and by email. The information
provided by these groups is used as part
of an investigation by the Department to
determine whether or not a group of
workers has been adversely affected by
foreign trade under the conditions and
criteria established in sec. 222 of the
Act. The Department is taking this
opportunity to make changes to the
forms in OMB Control Number 1205–
0342 used in the petition and
investigation process. These changes are
designed to reduce burden, provide
better instructions, and simplify the
forms for use by the public. Form ETA–
9185 is a new form used by aggrieved
parties to seek administrative
reconsideration of a negative
determination. As part of this collection,
the Department is reactivating Form
ETA–8561 A/B/C, Standard, by
renaming as Form ETA–8561, Study of
Domestic Industry, and revising the
content of the form. This was previously
approved under OMB Control Number
1205–0194, and was in use until 1990
when it was discontinued. Form ETA–
8561 is submitted by a firm within an
industry subject to an investigation by
the ITC under sec. 202 of the Act. This
collection will eventually be included
in OMB Control Number 1205–0342,
however, the Department is not
submitting this ICR under that control
number because the reginfo.gov
database, which is OMB’s system for
processing requests, allows only one
ICR per control number to be pending
at OMB during any given time, and the
Department expects the unrelated ICR
under control number 1205–0342 will
be pending at OMB at the same time as
this rule-related ICR; thus the existing
control number will be encumbered.
Requesting approval for a new
information collection is a workaround
used for administrative convenience.
Once all of the outstanding actions are
complete, the Department intends to
submit a non-material change request to
merge the collections so that the new
requirements will be added to OMB
Control Number 1205–0342.
Affected Public: State, Local, and
Tribal Governments.
Obligation to Respond: Required to
Obtain or Retain Benefits.
Estimated Total Annual Respondents:
5,317.
Estimated Total Annual Responses:
5,497.
Estimated Total Annual Burden
Hours: 12,977.
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Estimated Total Annual Other Burden
Costs: $1,545,779.76.
Regulations sections: 20 CFR 618.205,
618.210, 618.215, 618.220, 618.225,
618.230, 618.235, 618.240, 618.245,
618.250, 618.260.
Interested parties may obtain a copy
free of charge of one or more of the IC
requests submitted to OMB on the
reginfo.gov website at http://
www.reginfo.gov/public/do/PRAMain.
From this web page select Department
of Labor from the ‘‘Currently under
Review’’ dropdown menu and look up
the collection. You may also request a
free copy of the IC by contacting the
person named in the ADDRESSES section
of this NPRM.
In addition to the 30 days provided
for public comment on this proposal,
the Department is providing an
additional 30 days—for a total of 60
days from the date this notice is
published in the Federal Register—for
public comment on the information
collection requirements contained in the
proposed rule as required by 5 CFR
1320.11(c).
Members of the public who wish to
comment on the revisions to the
paperwork requirements should direct
comments to the Office of Information
and Regulatory Affairs, Attn: OMB Desk
Officer for DOL–ETA, Office of
Management and Budget, 725 17th
Street NW, Washington, DC 20503, Fax:
(202) 395–6881 (this is not a toll-free
number), email: OIRA_submission@
omb.eop.gov.
The Department encourages
commenters also to submit their
comments on these paperwork
requirements to the rulemaking docket,
Docket Number ETA–2019–0009, along
with their comments on other parts of
the proposed rule. After the 30 day
comment period for Docket Number
ETA–2019–0009 expires, commenters
may submit IC-related comments on
Docket Number ETA–2019–0010 for an
additional 30 days.
The Department and OMB are
particularly interested in comments
that:
• Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
• Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
• Enhance the quality, utility, and
clarity of the information to be
collected; and
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Minimize the burden of the collection
of information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms of
IT (e.g., permitting electronic
submission of responses).
E. Executive Order 13132 (Federalism)
E.O. 13132 requires Federal agencies
to ensure that the principles of
federalism established by the Framers of
our Constitution guide the executive
departments and agencies in the
formulation and implementation of
policies and to further the policies of
the Unfunded Mandates Reform Act.
Further, agencies must strictly adhere to
constitutional principles. Agencies must
closely examine the constitutional and
statutory authority supporting any
action that would limit the policymaking discretion of the States and they
must carefully assess the necessity for
any such action. To the extent
practicable, State and local officials
must be consulted before any such
action is implemented. Section 3(b) of
the E.O. further provides that Federal
agencies must implement regulations
that have a substantial direct effect only
if statutory authority permits the
regulation and it is of national
significance.
The Department has reviewed this
NPRM revising the operation of a
Federal benefit program in accordance
with Executive Order 13132 and found
that this rulemaking has no federalism
implications. The TAA Program is a
nationwide program funded with
Federal funds in which the States
voluntarily participate. Thus, the NPRM
would not have substantial direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government, within the
meaning of the Executive Order.
F. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA) (Pub. L. 104–4,
codified at 2 U.S.C. 1501 et seq.)
requires agencies to assess the effects of
Federal regulatory actions on State,
local, and tribal governments and on
private industry, except to the extent the
regulations incorporate requirements
specifically set forth in law. Title II of
the UMRA directs agencies to prepare a
written statement assessing the effects of
any Federal mandate in a proposed or
final agency rule that may result in $100
million or more expenditure (adjusted
annually for inflation) in any 1 year by
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60223
State, local, and tribal governments, in
the aggregate, or by the private sector. A
Federal mandate is any provision in a
regulation that imposes an enforceable
duty upon State, local, or tribal
governments, or imposes a duty on the
private sector that is not voluntary.
As explained in section V.B above,
this NPRM does not include any Federal
mandate that could result in increased
expenditure by State, local, and tribal
governments in the aggregate of more
than $100 million, or increased
expenditures by the private sector of
more than $100 million. State
governments administer the TAA
Program as agents of the United States
and are provided appropriated Federal
funds for all TAA Program expenses.
G. Executive Order 13175 (Indian Tribal
Governments)
E.O. 13175 addresses the unique
relationship between the Federal
Government and Indian tribal
governments. It requires Federal
agencies to take certain actions when
regulations have tribal implications.
Required actions include consulting
with tribal governments prior to
promulgating a regulation with tribal
implications and preparing a tribal
impact statement. E.O. 13175 defines
regulations as having ‘‘tribal
implications’’ when they have
substantial direct effects on one or more
Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes.
Because this NPRM addresses the
worker-certification process at the
Federal level, the individual benefit and
training authorization process at the
State level, State administration of the
TAA Program, and the Department’s
distribution of TAA Program funds to
the States, the Department concludes
that it does not have tribal implications.
List of Subjects
20 CFR Part 617
Administrative practice and
procedure, Employment, Fraud, Grant
programs—Labor, Manpower training
programs, Relocation assistance,
Reporting and recordkeeping
requirements.
20 CFR Part 618
Administrative practice and
procedure, Employment, Fraud, Grant
programs—Labor, Manpower training
programs, Relocation assistance,
Reporting and recordkeeping
requirements, Trade adjustment
assistance.
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29 CFR Part 90
Administrative practice and
procedure, Grant programs—labor,
Reporting and recordkeeping
requirements, Trade adjustment
assistance.
Under the authority of 19 U.S.C.
2320(a) and for the reasons discussed in
the preamble, the Department of Labor
proposes to amend 20 CFR parts 617
and 618 and 29 CFR part 90 as follows:
PART 617—TRADE ADJUSTMENT
ASSISTANCE FOR WORKERS UNDER
THE TRADE ACT OF 1974
1. The authority citation for 20 CFR
part 617 continues to read as follows:
■
Authority: 19 U.S.C. 2320; Secretary’s
Order No. 3–81, 46 FR 31117.
Appendices A, B, and C to Part 617—
[Transferred to Part 618 and
Redesignated]
■ 2. Transfer appendices A, B, and C of
part 617 to part 618 and redesignate the
appendices as appendices to part 618.
PART 617—[REMOVED AND
RESERVED]
3. Remove and reserve part 617.
4. Revise 20 CFR part 618 to read as
follows:
■
■
PART 618—TRADE ADJUSTMENT
ASSISTANCE UNDER THE TRADE ACT
OF 1974, AS AMENDED
Subpart A—General
Sec.
618.100 Purpose and scope.
618.110 Definitions.
Subpart B—Petitions, Investigations, and
Determinations
Sec.
618.200 Scope.
618.205 Petitions.
618.210 Investigation.
618.215 Public hearings.
618.220 Use of subpoena.
618.225 Criteria for certification of a group
of workers.
618.230 Evidence.
618.235 Determinations.
618.240 Termination of certification.
618.245 Reconsideration of termination of
an investigation, denial, or termination
or partial termination of certification.
618.250 Amendments of certifications.
618.255 Judicial review of determinations.
618.260 Study regarding certain affirmative
determinations by the Commission.
618.265 Availability of information to the
public.
Subpart C—Employment and Case
Management Services
Sec.
618.300 Scope.
618.305 The Trade Adjustment Assistance
Program as a one-stop partner.
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618.310 Responsibilities for the delivery of
employment and case management
services.
618.325 Integrated service strategies and
Workforce Innovation and Opportunity
Act co-enrollment.
618.330 Assessment of trade-affected
workers.
618.335 Initial assessment of trade-affected
workers.
618.345 Comprehensive and specialized
assessment of trade-affected workers.
618.350 Individual employment plans for
trade-affected workers.
618.355 Knowledge, skills, and abilities of
staff performing assessments.
618.360 Employment and case management
services for trade-affected workers in
training.
Subpart D—Job Search and Relocation
Allowances
Sec.
618.400 Scope.
618.405 General.
618.410 Applying for a job search
allowance.
618.415 Eligibility for a job search
allowance.
618.420 Findings required.
618.425 Amount of a job search allowance.
618.430 Determination and payment of a
job search allowance.
618.435 Job search program participation.
618.440 Applying for a relocation
allowance.
618.445 Eligibility for a relocation
allowance.
618.450 Findings required.
618.455 Determining the amount of a
relocation allowance.
618.460 Determinations and payment of a
relocation allowance.
Subpart E—Reemployment Trade
Adjustment Assistance
Sec.
618.500 Scope.
618.505 Individual eligibility.
618.510 Eligibility period for payments of
Reemployment Trade Adjustment
Assistance and application deadline.
618.515 Continuing eligibility and timing of
payments.
618.520 Benefits available to eligible
adversely affected workers.
618.525 Determinations, redeterminations,
and appeals.
618.530 Reductions of Reemployment
Trade Adjustment Assistance payments;
priority of payments.
Subpart F—Training Services
Sec.
618.600 Scope.
618.605 General procedures.
618.610 Criteria for approval of training.
618.615 Limitations on training approval.
618.620 Selection of training program.
618.625 Payment restrictions for training
programs.
618.630 Training of reemployed tradeaffected workers not in suitable
employment.
618.635 Work-based training.
618.640 Supplemental assistance.
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618.645 Voluntary withdrawal from a
training program.
618.650 State standards and procedures for
establishing reasonable cost of training.
618.655 Training for adversely affected
incumbent workers.
618.660 Training benchmarks.
618.665 Amending approved training.
Subpart G—Trade Readjustment
Allowances
Sec.
618.700 Scope.
618.705 Definitions.
618.710 Categories of Trade Readjustment
Allowances.
618.715 Applications for Trade
Readjustment Allowances and payment.
618.720 Qualifying requirements for Basic
Trade Readjustment Allowances.
618.725 Training enrollment deadlines.
618.730 Good cause.
618.735 Waiver of training requirement for
Basic Trade Readjustment Allowances.
618.740 Evidence of qualification for Basic,
Additional, and Completion Trade
Readjustment Allowances.
618.745 Weekly amounts of Basic,
Additional, and Completion Trade
Readjustment Allowances.
618.750 Maximum amount of Basic Trade
Readjustment Allowances.
618.755 Eligibility period for Basic Trade
Readjustment Allowances.
618.760 Qualifying requirements for, and
timing and duration of, Additional Trade
Readjustment Allowances.
618.765 Qualifying requirements for, and
timing and duration of, Completion
Trade Readjustment Allowances.
618.770 Special rule for justifiable cause.
618.775 Payment of Trade Readjustment
Allowances during breaks in training.
618.780 Disqualifications.
Subpart H—Administration by Applicable
State Agencies
Sec.
618.800 Scope.
618.804 Agreements with the Secretary of
Labor.
618.808 State rulemaking.
618.812 Subpoenas.
618.816 Trade Adjustment Assistance
Program benefit information and
provision of services to workers.
618.820 Determinations of eligibility;
notices to individuals.
618.824 Liable State and agent State
responsibilities.
618.828 Appeals and hearings.
618.832 Overpayments; penalties for fraud.
618.836 Recovery of debts due the United
States or to others by Trade Adjustment
Assistance offset.
618.840 Uniform interpretation and
application of this part.
618.844 Inviolate rights to Trade
Adjustment Assistance or Reemployment
Trade Adjustment Assistance.
618.848 Veterans’ priority of service.
618.852 Recordkeeping and disclosure of
information requirements.
618.856 Information, reports, and studies.
618.860 General fiscal and administrative
requirements and cost classification.
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618.864 Trade Adjustment Assistance
Program performance.
618.868 Unemployment Insurance.
618.872 Travel under the Trade Adjustment
Assistance Program.
618.876 Verification of eligibility for
program benefits.
618.884 Special rule with respect to
military service.
618.888 Equitable tolling.
618.890 Staffing flexibility.
618.894 Nondiscrimination and equal
opportunity requirements.
618.898 Applicable State law.
Subpart I—Allocation of Funds to States for
Training and Other Activities
Sec.
618.900 Annual cap on funds available for
Training and Other Activities.
618.910 Initial allocation of funds.
618.920 Reserve fund distributions.
618.930 Second distribution.
618.940 Insufficient funds.
618.950 Recapture and reallocation of
Training and Other Activities funds.
Authority: 19 U.S.C. 2320; Secretary’s
Order No. 03–2009, 74 FR 2279 (Jan. 14,
2009).
Subpart A—General
§ 618.100
Purpose and scope.
(a) Purpose. The Act establishes a
Trade Adjustment Assistance for
Workers (TAA) Program. The goal of the
TAA Program is to help each worker
participating in the program obtain
suitable employment whenever
possible, and to return to employment
as quickly as possible.
(b) Scope. Global trade impacts
thousands of workers each year across
the United States. The TAA Program
provides trade-affected workers with
opportunities to obtain the skills,
credentials, resources, and support
necessary to become reemployed in a
good job. The TAA Program’s benefits
and services include: Employment and
case management services, training, outof-area job search and relocation
allowances, income support through
Trade Readjustment Allowances (TRA),
the Reemployment Trade Adjustment
Assistance (RTAA) benefit for workers
aged 50 or older who find qualifying
reemployment, and, if available, the
Health Coverage Tax Credit (HCTC).
Together with its workforce
development partners in the one-stop
delivery system authorized under the
Workforce Innovation and Opportunity
Act (WIOA), the TAA Program helps
retrain, retool, and rebuild the American
workforce.
(c) Effect. The regulations in this part
are issued to implement the Act.
§ 618.110
Definitions.
The following definitions apply solely
in this part.
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Act means chapter 2 of title II of the
Trade Act of 1974, Public Law 93–618,
88 Stat. 1978 (19 U.S.C. 2271–2323 and
2395), as amended.
Administrator means the
Administrator, Office of Trade
Adjustment Assistance, Employment
and Training Administration, U.S.
Department of Labor, Washington, DC,
who has responsibility for administering
the TAA Program, or their designee.
Adversely affected employment
means employment in a firm or
appropriate subdivision, if workers of
the firm or appropriate subdivision are
certified as eligible to apply for the TAA
Program under subpart B of this part.
Adversely affected worker or AAW
(also referred to, in combination with an
AAIW, as a trade-affected worker)
means an individual, including an
employer, who, because of lack of work
in adversely affected employment, has
been totally or partially separated from
such employment.
Adversely affected incumbent worker
or AAIW (also referred to, in
combination with an AAW, as a tradeaffected worker) means a worker who:
(1) Is a member of a worker group
certified as eligible to apply for the TAA
Program under subpart B of this part;
(2) Has not been totally or partially
separated from adversely affected
employment; and
(3) The Department determines, on an
individual basis, is threatened with total
or partial separation.
Agent State means, with respect to
any trade-affected worker, any State that
provides services or benefits for such
trade-affected worker other than the
State that is the liable State. (See also
definition for liable State in this
section.)
Applicable State law means, for any
worker, the State law of the State:
(1) In which such worker is entitled
to Unemployment Insurance (UI)
(whether or not such worker has filed a
UI claim) immediately following such
worker’s first separation; or
(2) If the 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.
Appropriate subdivision means an
establishment, facility or facilities, an
organizational department, a product
line, a project team, an operational unit,
or part or combination thereof. The
appropriate subdivision is determined
on a case-by-case basis and includes all
workers or a subset of workers working
at, or reporting to, the location(s)
identified in the petition, or
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subsequently identified during the
course of the investigation, whose
employment is dependent upon the
production of the specific article or
supply of the specific service identified
in the petition, or identified during the
course of the investigation.
Appropriate week means the week in
which the AAW’s first separation
occurred.
Approved training or TAA approved
training means a training program
approved under subpart F of this part
(§ 618.610).
Article means a tangible good or an
intangible good sold or produced by a
firm. The good must be the subject of
the sale or production, and not an object
that is produced incidentally to the sale
or production. An article can be
measured in individual production
units or commercial production units,
such as with commodities. Sale of an
article is the means by which revenue
is generated, accumulated, or
calculated.
Average weekly hours means the
average hours worked by an AAW
(excluding overtime) in the employment
from which the worker has been or
claims to have been separated in the 52
consecutive calendar weeks (excluding
weeks during which the worker was
sick or on vacation) immediately
preceding the worker’s total separation
or, for a partially separated worker, the
week before the appropriate week. The
average is obtained by dividing:
(1) Total hours worked (excluding
overtime) in the 52 consecutive calendar
weeks (excluding weeks in such period
during which the worker was sick or on
vacation); by
(2) The number of weeks in such 52
consecutive calendar weeks (excluding
weeks in such period during which the
worker was sick or on vacation).
Average weekly wage means onethirteenth of the total wages paid to an
AAW in the high quarter. For purposes
of this computation, the high quarter is
the quarter in which the worker’s total
wages were highest among the first 4 of
the last 5 completed calendar quarters
immediately preceding the week in
which total separation occurred or, in
cases where partial separation is
claimed, the appropriate week.
Benefit period means, with respect to
an AAW:
(1) The benefit year and any ensuing
period, as determined under the
applicable State law, during which the
worker is eligible for regular
compensation, additional
compensation, or extended
compensation; or
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(2) The equivalent to such a benefit
year or ensuing period provided for
under Federal UI law.
Certification or affirmative
determination or petition certification
means a determination issued under
§ 618.235(a), or an amendment under
§ 618.250, of eligibility to apply for the
TAA Program, with respect to a
specified worker group of a firm or
appropriate subdivision. Excluded from
this definition are ‘‘certifications’’ in
secs. 223(d), 236(a)(5)(H), 239(a)(3), and
247(19) of the Act, and ‘‘affirmative
determinations’’ in secs. 222(e) and 224
of the Act.
Certification date or date of
certification means the date on which
the certifying officer signs the
certification. This is the date that the
certification takes effect.
Certification period means the period
of time during which total, partial, or
threat of separations from adversely
affected employment within a firm or
appropriate subdivision of a firm are
covered by a certification for worker
groups eligible to apply for assistance
under sec. 222(a) and (b) of the Act. It
also means the period of time during
which total or partial separations from
adversely affected employment within a
firm are covered by a certification for
worker groups eligible to apply for
assistance under sec. 222(e) of the Act.
The certification period begins on the
impact date and, unless stated otherwise
in the certification, ends 2 years after
the certification date. A certification
may expire sooner than 2 years after the
certification date as a result of a
termination under § 618.240, an
amendment under § 618.250, or if a
certification is based on a determination
issued by the International Trade
Commission (ITC) under sec. 222(e) of
the Act.
Certifying Officer means an official,
including the Administrator of the
Office of Trade Adjustment Assistance,
Employment and Training
Administration, Department of Labor,
who has been delegated responsibility
to make determinations and issue
certifications of eligibility to apply for
the TAA Program, and to perform such
further duties as may be required.
Co-enrollment means enrollment in
the TAA Program and at least one other
program that operates as part of the onestop delivery system, such as the
dislocated worker program under title I
of WIOA.
Commission or International Trade
Commission or ITC means the U.S.
International Trade Commission.
Commuting area means the area in
which a trade-affected worker would be
expected to travel to and from work on
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a daily basis as determined under the
applicable State law.
Completion of training or complete
training or completed training means
that the trade-affected worker has
finished all required coursework
(including required externships or
internships), testing, and professional
licensing exams related to TAA
approved training.
Component part means an input
(tangible or intangible article) that is
directly incorporated into the
production of another article, although
it need not retain its original form or
characteristics.
Confidential business information
means trade secrets and commercial or
financial information received by the
Department, or by the States on the
Department’s behalf, during an
investigation under subpart B of this
part, which the Department considers to
be privileged or confidential as set forth
in the Trade Secrets Act (18 U.S.C.
1905), 5 U.S.C. 552(b)(4), or 29 CFR part
70. It does not include publicly
available business information, or
business information with respect to
which the firm or customer submitting
the information had notice, at the time
of submitting the information, that the
information would be released by the
Department or the States, or if the firm
or customer subsequently consents to
the release of the information.
Contributed importantly means a
cause that is important but not
necessarily more important than any
other cause.
Cooperating State agency or CSA
means the agency at the State level that
will act as agent of the Department in
receiving applications from and
providing benefits and services to tradeaffected workers in coordination with
the State agency that administers the UI
law, if applicable, and such other
agency or agencies of the State as the
Governor of the State may designate to
cooperate with such CSA for
performance accountability reporting
and other purposes.
Customized training means workbased training that is:
(1) Designed to meet the special
requirements of a single employer or
group of employers;
(2) Conducted with a commitment by
the employer or group of employers to
employ a trade-affected worker upon
successful completion of the training;
and
(3) For which the employer pays for
a significant portion (but in no case less
than 50 percent) of the cost of such
training.
Denial or negative determination or
petition denial means a determination
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issued under § 618.235(b) that a group
of workers is not eligible for TAA
Program benefits.
Department of Labor or Department
means the U.S. Department of Labor.
Downstream producer means a firm
that performs additional, value-added
production processes or services, such
as final assembly, finishing, testing,
packaging, or maintenance or
transportation services. The valueadded production processes or services
must be performed directly for another
firm that has a worker group certified to
apply for the TAA Program under
§ 618.225, and the production processes
or services must be carried out with
respect to the article or service on which
the certification under § 618.225 was
based.
Eligible RTAA recipient means, for
HCTC purposes (see definition of
HCTC), an AAW eligible for RTAA and
who is participating in RTAA for a
month and is receiving an RTAA benefit
for that month.
Eligible TAA recipient means, for
HCTC purposes (see definition of
HCTC), an AAW who receives TRA for
any day of the month or who would be
eligible to receive TRA but for the fact
that the worker has not exhausted their
UI entitlement.
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.
Enrolled in training means that a
worker’s application for training is
approved by the State under subpart F
of this part, and the training provider
has furnished written notice to the State
that the worker has been accepted in the
approved training program, which is to
begin within 30 calendar days of the
date of such approval.
Family means the following members
of an adversely affected workers’s
household whose principal place of
abode is with the individual in a home
the individual maintains or would
maintain but for unemployment:
(1) Spouse;
(2) Domestic partner;
(3) Children of the adversely affected
worker, of the worker’s spouse, or of the
worker’s domestic partner, who are
unmarried and under 21 years of age or
who, regardless of age, are physically or
mentally incapable of self-support. (The
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term ‘‘children’’ shall include natural
offspring; stepchildren; adopted
children; grandchildren, legal minor
wards or other dependent children who
are under legal guardianship of the
worker, of the worker’s spouse, or of the
domestic partner; and an unborn
child(ren) born and moved after the
worker’s effective date of transfer.);
(4) Dependent parents (including step
and legally adoptive parents) of the
worker, of the worker’s spouse, or of the
worker’s domestic partner; and
(5) Dependent brothers and sisters
(including step and legally adoptive
brothers and sisters) of the worker, of
the worker’s spouse, or of the worker’s
domestic partner, who are unmarried
and under 21 years of age or who,
regardless of age, are physically or
mentally incapable of self-support.
Filing date means the date on which
the petition and attachments to the
petition form are determined to be valid
by the Department’s Office of Trade
Adjustment Assistance, in accordance
with § 618.205.
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. Where the term ‘‘firm’’ appears in
this part, it means ‘‘firm or appropriate
subdivision.’’ Firm also means an
agricultural firm or service sector firm
or an appropriate subdivision thereof.
For purposes of subpart B of this part
only, firm does not include a public
agency or any subdivision of a public
agency, as defined in 29 U.S.C. 203(x).
First benefit period means the benefit
period established after the AAW’s first
qualifying separation or in which such
separation occurs.
Full-time training means:
(1) Attendance in training in
accordance with the training provider’s
established full-time hours in a day (or
credit hours) and days in a week; and
(2) In the last semester of training, if
the remaining course(s) to complete the
training approved under subpart F of
this part do not meet the training
provider’s usual definition of full-time,
States must consider the participation in
training as full-time training, if no
additional training or coursework will
be required to complete the training
program.
Group of workers means at least two
workers employed or formerly
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employed by the same firm, or an
appropriate subdivision thereof,
including teleworkers and staffed
workers, who file a petition for
certification under subpart B of this
part, or for whom a petition is filed.
Health Coverage Tax Credit or HCTC
means the tax credit equal to a specific
percentage of the costs of qualified
health insurance premiums, which is
administered by the Internal Revenue
Service under sec. 35 of the Internal
Revenue Code of 1986, as amended (26
U.S.C. 35). When the tax credit is
available, eligible TAA and RTAA
recipients (see definitions of eligible
TAA recipient and eligible RTAA
recipient) and qualifying family
members may apply for advance
payment of the credit or claim the credit
on their income tax return.
Impact date means the date stated in
a certification of eligibility to apply for
the TAA Program, on which the total or
partial separations of the workers
covered by the certification began or
threatened to begin, but in most cases,
is not more than 1 year before the
petition date.
Increased imports means that imports
have increased either absolutely or
relative to domestic production
compared to a representative base
period. The representative base period
will be 1 year consisting of the 4
quarters immediately preceding the date
that is 12 months prior to the date of the
petition.
Individual employment plan or IEP
means a revisable document containing
an ongoing strategy, jointly developed
by the trade-affected worker and the
State, identifying the worker’s
employment goals, appropriate
achievement objectives, and appropriate
services for the worker to achieve their
employment goals, objectives, and
benchmarks while in training or
receiving employment and case
management services.
Job finding club means a job search
workshop that includes a period of 1 to
2 weeks of structured, supervised
activity in which trade-affected workers
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
workers with knowledge that will
enable the workers to find jobs. Subjects
are not limited to, but should 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 or does not make that work
available to the worker, and includes,
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but is not limited to, circumstances
when:
(1) Work is unavailable because the
employer suspends or ceases operations
or institutes a lockout; or
(2) Work is unavailable because the
employer downsizes the workforce by
means of attrition or layoff.
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 time.
Liable State means, with respect to a
trade-affected worker making claims for
TAA Program benefits, the State whose
State UI law is the applicable State law.
Like or directly competitive means, for
articles, that articles have characteristics
that are substantially identical in
inherent or intrinsic characteristics (i.e.,
material from which the articles are
made, appearance, quality) or are used
for substantially equivalent purposes
and achieve comparable results and are,
therefore, commercially
interchangeable; and for services,
services that have characteristics that
are substantially identical in inherent or
intrinsic characteristics (i.e., processes
and procedures that comprise the
activity, sequence of steps or component
elements required in the provision of
the service or both) or are used for
substantially equivalent purposes and
achieve comparable results and are,
therefore, commercially
interchangeable.
Office of Trade Adjustment
Assistance or OTAA means the
organization within the U.S. Department
of Labor, Employment and Training
Administration that administers the
TAA Program, or OTAA’s successor
organization.
One-stop delivery system means the
nationwide system of one-stop career
centers, known as American Job
Centers, which administer and deliver
workforce development, educational,
and training activities, as well as
supportive services to workers and job
seekers, in accordance with title I of
WIOA.
On-the-job training or OJT means
work-based training, provided—under
contract with an employer in the public,
nonprofit, or private sector—to an AAW
who is employed by the employer.
Partial separation or partially
separated means, with respect to an
AAW who has not been totally
separated, that:
(1) For purposes of subpart B of this
part:
(i) The worker’s hours of work have
been reduced to 80 percent or less of the
worker’s average weekly hours at the
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firm, or appropriate subdivision thereof
during the period of investigation; and
(ii) The worker’s wages have been
reduced to 80 percent or less of the
worker’s average weekly wage at the
firm, or appropriate subdivision thereof
during the period of investigation.
(2) For this subpart and subparts C
through I of this part:
(i) The worker’s hours of work have
been reduced to 80 percent or less of the
worker’s average weekly hours in
adversely affected employment during
the certification period; and
(ii) The worker’s wages have been
reduced to 80 percent or less of the
worker’s average weekly wage in
adversely affected employment during
the certification period.
Period of duty means active duty
served by an AAW before completing
training under subpart F of this part for
a period of more than 30 days under a
call or order to active duty of more than
30 days or, in the case of a member of
the Army National Guard of the United
States or Air National Guard of the
United States, full-time National Guard
duty under sec. 502(f) of title 32, U.S.
Code, for 30 consecutive days or more
when authorized by the President or the
Secretary of Defense for the purpose of
responding to a national emergency
declared by the President and supported
by Federal funds.
Petition date means the date a petition
form is signed by the petitioner(s).
When petitioners sign on different
dates, the petition date is the latest of
those dates.
Prerequisite education or prerequisite
coursework or prerequisite training
means any coursework or training
required by a training provider before
advancing to further training.
Program of remedial education or
remedial education or remedial training
means coursework or training that is
designed to enhance the employability
of a trade-affected worker by upgrading
basic academic knowledge through such
courses as adult basic education (ABE),
basic math and literacy, English
language acquisition (ELA) for
nonnative speakers, and high school
equivalency (HSE) courses, among
others.
Qualifying separation means any total
or partial separation of an AAW from
adversely affected employment within
the certification period for the purposes
of determining their eligibility to receive
Basic TRA; 26-week period for
enrollment in approved training; and
Basic TRA eligibility period. The first
qualifying separation is used to
determine the weekly and maximum
amounts of Basic TRA payable to an
AAW.
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Reemployment Trade Adjustment
Assistance or RTAA means the TAA
Program benefit available to certain
AAWs 50 years of age and older who
obtain qualifying reemployment.
Regional Administrator means the
appropriate Regional Administrator of
the U.S. Department of Labor’s
Employment and Training
Administration.
Secretary means the Secretary of
Labor, U.S. Department of Labor, or his
or her designee.
Separation date means:
(1) For a total separation:
(i) For a worker in employment status
and not on employer-authorized leave,
the last day worked; or
(ii) For a worker on employerauthorized leave, including leave for
military service, the last day the worker
would have worked had the worker not
been on the employer-authorized leave.
(2) For a partial separation, the last
day of the week in which the partial
separation occurred.
Service means the work performed by
a worker for a service firm or
appropriate subdivision. The work of a
service firm is measured in units of
time, labor, and tasks completed.
Services may include the incidental
production of an article, such as a
license, ticket, certificate, permit,
model, drawing, or prototype. Services
are intangible but may involve the use
of tangible objects during the supply of
the service (such as textbooks in the
supply of educational services). Where
the revenue of the firm, or appropriate
subdivision, is generated from the sale
of a service, the firm, or appropriate
subdivision, is deemed to be engaged in
activity related to the supply of a
service.
Significant number or proportion of
the workers means:
(1) The lesser of 50 workers or 5
percent of the workers within a firm, or
appropriate subdivision, have been
totally or partially separated, or both, or
are threatened with total or partial
separation; or
(2) 2 or more workers within a firm,
or appropriate subdivision, with a
workforce of fewer than 50 workers,
have been totally or partially separated,
or both, or are threatened with total or
partial separation.
Staffed worker means a worker
directly employed by one firm to
perform work under the operational
control of another firm that is the
subject of a petition investigation. These
workers were previously referred to as
‘‘leased workers.’’ The term excludes
independent contractors.
State means the States of the United
States, the District of Columbia, and the
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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 at the
State level that administers the State
law.
State law means the UI law of a State
under sec. 3304 of the Internal Revenue
Code of 1986, as amended (26 U.S.C.
3304).
Successor-in-interest means a firm,
whether or not named on a certification
issued under subpart B of this part, from
which trade-affected workers are
separated, or threatened with
separation, and where most or all of the
factors in paragraphs (1) thorugh (7) of
this defintion are present, relative to a
firm named on a determination issued
under subpart B:
(1) There is continuity in business
operations.
(2) There is continuity in location.
(3) There is continuity in the
workforce.
(4) There is continuity in supervisory
personnel.
(5) The same jobs exist under similar
conditions.
(6) There is continuity in machinery,
equipment, and process.
(7) There is continuity in product/
service.
Suitable employment means, with
respect to a worker, work of a
substantially equal or higher skill level
than the worker’s past adversely
affected employment, and wages for
such work that are not less than 80
percent of the worker’s average weekly
wage. Part-time, temporary, short-term,
or threatened employment is not
suitable employment.
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 § 618.225 of a worker
group employed by such other firm.
There is no direct supply where an
intervening customer, supplier, or
another entity receives the component
parts, aside from in a delivery or
bailment capacity, or in the case of a
service supplier, if an intervening entity
performs the service.
Supportive services means services
such as local transportation, child care,
dependent care, and housing, provided
through WIOA or other programs, that
are needed to enable an individual to
participate in activities authorized
under the Act.
Threatened to become totally or
partially separated means that there is
evidence of intent to separate workers or
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that imminent separations are
reasonably anticipated.
Threatened to begin means, in the
context of reasonably anticipated total
or partial separations, the date(s) on
which imminent separations will begin.
Total separation or totally separated
means:
(1) For purposes of subpart B of this
part, the layoff or severance of an AAW
from a firm or appropriate subdivision
thereof; or
(2) For all other purposes under this
part, the layoff or severance of a worker
from adversely affected employment
with a firm, or appropriate subdivision
thereof.
Trade Adjustment Assistance for
Workers or Trade Adjustment
Assistance or TAA Program means
chapter 2 of title II of the Act, Public
Law 93–618, 88 Stat. 1978 (19 U.S.C.
2271–2323 and 2395), as amended,
which establishes the Trade Adjustment
Assistance for Workers (TAA) Program.
The benefits and services established
under the Act, including RTAA, are
collectively referred to as the Trade
Adjustment Assistance Program (TAA
Program) and provide assistance to
workers adversely affected by foreign
trade, as described in this part.
Trade-affected worker means both
‘‘adversely affected workers’’ and
‘‘adversely affected incumbent
workers.’’
Trade Readjustment Allowances or
TRA means a weekly allowance payable
to an AAW who meets the requirements
of subpart G of this part. There are three
types of TRA: Basic, Additional, and
Completion, as described in § 618.710.
Unemployment Insurance or UI
means the unemployment compensation
payable to a worker under any State law
or Federal UI law, including chapter 85
of title 5 of the U.S. Code and the RRUI.
UI includes:
(1) Regular compensation means
compensation payable to a worker
under any State unemployment
compensation law (including
compensation payable pursuant to 5
U.S.C. chapter 85), other than extended
compensation and additional
compensation.
(2) Additional compensation means
compensation payable to exhaustees by
reason of conditions of high
unemployment or by reason of other
special factors.
(3) Extended compensation means
compensation (including additional
compensation and compensation
payable pursuant to 5 U.S.C. chapter 85)
payable for weeks of unemployment
beginning in an extended benefit period
to a worker under those provisions of
the State law that satisfy the
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requirements of the Federal-State
Extended Unemployment Compensation
Act of 1970 (EUCA) (26 U.S.C. 3304
(note)) with respect to the payment of
extended compensation, including onehundred percent federally funded
unemployment compensation
extensions.
Value-added production processes or
services means such processes or
services similar to and including final
assembly, finishing, testing, packaging,
or maintenance or transportation
services.
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 UI law.
Worker group means two or more
workers of the same firm, or appropriate
subdivision thereof, named in a
certification rendered under subpart B
of this part as eligible to apply for TAA
Program benefits and services, inclusive
of teleworkers and staffed workers.
Workforce Innovation and
Opportunity Act or WIOA means the
Workforce Innovation and Opportunity
Act (Pub. L. 113–128, as amended).
Subpart B—Petitions, Investigations,
and Determinations
§ 618.200
Scope.
This subpart relates to petitions,
investigations, and determinations of
eligibility for a group of workers to
apply for adjustment assistance under
the Act. This subpart specifically
applies to the initiation, conduct, and
effective processing of petitions for
certification of eligibility to apply for
adjustment assistance. This subpart also
contains general provisions with respect
to filing of documents, public
availability of documents, and the
appeals process.
§ 618.205
Petitions.
(a) Who may file a petition. A group
of workers must file its petition for
certification of eligibility to apply for
adjustment assistance simultaneously
with the Department and with the
Governor of the State in which such
workers’ firm is located, by any of the
following:
(1) A group of two or more workers
from the same firm, on whose behalf the
petition is filed;
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(2) A union, or other duly authorized
representative of the group of workers;
(3) The employer(s) of the group of
workers; or
(4) One-stop center operators or onestop partners, including State workforce
officials, employment security agencies,
or dislocated worker unit and rapid
response team members.
(b) Form and contents. A group of
workers must file its petition for
certification of eligibility to apply for
adjustment assistance with the
Department. Petitioners may obtain a
petition form and instructions online at:
http://www.doleta.gov/tradeact, at a
one-stop center (also known as an
American Job Center), or by writing to:
U.S. Department of Labor, Employment
and Training Administration, Office of
Trade Adjustment Assistance, 200
Constitution Avenue NW, Washington,
DC 20210. A petition, which may
include attachments, must provide the
following information to be considered
valid and for an investigation to
commence:
(1) The name and contact information
for each petitioner;
(2) The name of the firm employing
the group of workers;
(3) The address of the location(s)
where the group of workers who have
been totally or partially separated or
threatened with separation report to
work (for a teleworker, the address of
the location to which they report);
(4) The name and contact information
of an official within the employer firm
or an individual authorized to provide
information regarding the operation of
the group of workers’ firm;
(5) The article produced or service
supplied by the firm;
(6) The actual or approximate date on
which total or partial separations are
threatened to occur or did occur;
(7) The actual or estimated total
number of workers who have been or
may be separated;
(8) A reason why the petitioner
believes that worker separations have
occurred or may occur at the employer’s
firm due to foreign trade impacts, or a
reason why a request to amend an
existing and active certification should
be granted; and
(9)(i) Every petition must be signed
and dated by at least two members of
the petitioning group, or by an official
of a certified or recognized union or
other duly authorized representative, or
by a representative of one of the
organizations listed in paragraph (a)(4)
of this section.
(ii) Signing of a petition must
constitute acknowledgement that the
information provided on the petition
form will be used for the purposes of
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determining worker group eligibility
and providing notice to petitioners,
workers, and the general public that the
petition has been filed, and whether the
worker group is eligible to apply for
TAA Program benefits and services.
Knowingly falsifying any information
on the petition form is a Federal offense
(18 U.S.C. 1001) and a violation of the
Act (19 U.S.C. 2316). For the petition to
be valid, the petitioner(s) listed on the
form must sign and date the form,
attesting to the fact that they are
authorized to file a petition.
(c) Supplemental information.
Providing supplemental information,
while not required, may assist the
investigation. Attachments to the
petition form are part of the petition.
(d) Filing. (1) Petitions should be filed
electronically with the Office of Trade
Adjustment Assistance, via
www.doleta.gov/tradeact. Individuals
requiring assistance in filing online
should contact their nearest one-stop
center or the State’s rapid response unit.
(2) Alternatively, petitions may be
filed via email to taa.petition@dol.gov,
via fax at (202) 693–3584 or (202) 693–
3585, or by mail to: U.S. Department of
Labor, Employment and Training
Administration, Office of Trade
Adjustment Assistance, 200
Constitution Avenue NW, Washington,
DC 20210.
(e) Industry notification of ITC
determinations. Upon receiving
notification from the ITC that it has
issued an affirmative determination of
injury or threat of injury under sec. 202
or 421 of the Act, under an applicable
safeguard provision enacted to
implement a trade agreement to which
the United States is a party, or an
affirmative final determination of
material injury of threat thereof in
investigation under sec. 705 or 735 of
the Tariff Act of 1930, the Department
will notify the affected parties listed in
paragraph (e)(1) of this section. To the
extent practicable, the Department may
also notify other duly authorized
representatives of the industry to which
the ITC determination applies.
(1) Parties the Department will notify
under paragraph (e) of this section
include:
(i) Representatives of the domestic
industry affected by the determination;
(ii) Firms publicly identified by name
during the proceeding related to the ITC
determination; and
(iii) Unions representing workers in
firms covered by the determination.
(2) The notice provided by the
Department under paragraph (e) of this
section will include:
(i) A summary of the ITC
determination;
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(ii) Information about the workers’
potential eligibility for TAA Program
benefits;
(iii) The benefits and services
available under the TAA Program;
(iv) Information regarding the process
for filing of petitions; and
(v) The availability of assistance from
the State for filing petitions.
(3) The Department will also notify
the Governor of each State in which one
or more firms covered by an ITC
determination are located and will
identify those firms to the State.
(f) Acceptance of petitions. The
Department will review a petition,
including attachments, to determine if it
is valid within 2 business days of
receipt of the petition by the
Department. The date on which the
petition is determined to be valid under
paragraph (b) of this section is the filing
date. The Department will not initiate
the investigation until it has determined
that the petition is valid.
(g) Multiple petitions for same group
of workers. If the Department receives
multiple petitions regarding the same
group of workers, it will base the filing
date upon the first petition received.
(h) Publication of notice in the
Federal Register. The Department will
publish a notice in the Federal Register
and on the Department’s website
announcing the initiation of an
investigation into all valid petitions
filed.
(i) Public access to petitions. A
petition, including attachments, is a
record that is available, in redacted
form, in accordance with the Freedom
of Information Act (FOIA), as amended
(5 U.S.C. 552), Executive Order 12600,
and 29 CFR part 70. The Department
will post all petitions, in redacted form,
to the Department’s website and make
them available for review at the Office
of Trade Adjustment Assistance,
Washington, DC.
(j) Receipt of petition by the State. If
the State receives a petition, the State
must verify that the Department has also
received the petition. If the petition has
not been posted to the Department’s
website within 10 calendar days of
receipt by the State, the State must
forward the petition to the Department.
§ 618.210
Investigation.
(a) Timing. The Department will
initiate an investigation once it has
deemed the petition valid in accordance
with § 618.205(f).
(b) Period of investigation. For
purposes of this subpart, the period of
investigation is the time period it takes
to investigate each of the criteria that are
part of the Department’s determination.
The period of investigation varies for
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some eligibility criteria; § 618.225
describes the period of investigation for
each criterion.
(c) Investigative process. To determine
whether the petitioning group of
workers’ eligibility criteria for
certification have been met, the
Department may take as many of the
steps in paragraphs (c)(1) through (8) of
this section during the investigation as
it deems necessary to identify the group
of workers and to reach a determination
of eligibility to apply for TAA Program
benefits for the identified worker group:
(1) Verify information on the petition
form by contacting the petitioner(s);
(2) Provide the petitioner(s) the
opportunity to submit additional
evidence in support of the petition;
(3) Obtain publicly available
information about the workers’ firm and
industry;
(4) Request information from the
workers’ firm;
(5) Request information from the
customers of the workers’ firm;
(6) Request information from the
officials of certified or recognized
unions or other duly authorized
representatives of the group of workers;
(7) Request information from one-stop
center operators or one-stop partners; or
(8) Use other available sources of
information as necessary.
(d) Protection of confidential business
information. (1) The Department will
determine whether information
submitted by a firm or customer is
confidential business information in
accordance with FOIA, as amended (5
U.S.C. 552), Executive Order 12600, the
Trade Secrets Act (18 U.S.C. 1905), and
29 CFR part 70.
(2) The Department will not disclose
confidential business information
without the consent of the submitting
firm or customer, unless under a court
order to do so or as otherwise required
by law.
(e) Termination of investigation. (1)
The Department will notify the
petitioner of the termination of an
investigation, publish a Notice of
Termination of Investigation in the
Federal Register, and post on the
Department’s website. The Department
may terminate an investigation if the
investigation establishes one of the
following:
(i) The petition is invalid, which
includes petitions identifying a
nonexistent group of workers, filed
under false pretenses, or perpetuating
fraud;
(ii) The petitioner has withdrawn the
petition in writing;
(iii) The group of workers identified
in the investigation is the same as a
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group of workers identified in another
pending investigation;
(iv) The group of workers identified in
the investigation already has been
issued a denial, and the period of
investigation applicable to the current
investigation and the previous denial is
the same; or
(v) The group of workers identified in
the investigation is already covered by
a certification that does not expire
within 90 calendar days of the
determination.
(2) If appropriate to protect the
interests of the group of workers
covered by a petition filed and
terminated under paragraph (e)(1)(i) or
(ii) of this section, the Department may
use the original impact date of the
terminated petition for the identical
group of workers covered under a later,
valid, petition covering the identical
group of workers, provided that it is
filed within 30 calendar days of the
filing date of the first petition. Under no
circumstances will the Department use
the impact date of an earlier petition
when that petition was terminated for
being invalid under paragraph (e)(1)(i)
of this section because it was filed
under false pretenses or to perpetuate a
fraud.
(3) Section 618.245 describes
reconsideration of a termination of
investigation.
(f) Investigative record. The
investigative record of a determination
will include the petition that initiated
the investigation, the documents and
other materials provided to the
Department in connection with the
determination on the petition, research
conducted by the Department, and
records of investigation activities
(including but not limited to telephone
logs and email correspondence, and any
determination under § 618.225(a), (b) or
(c)). The investigative record excludes
information that is privileged or
otherwise exempt from disclosure.
Personally identifiable information and
confidential business information will
be protected consistent with all Federal
authorities and Departmental
administrative guidance.
(g) Site visits. The investigation may
include one or more site visits to
confirm information furnished by the
petitioner(s) and to elicit other relevant
information, where other methods to
obtain or confirm information or both,
are unsuccessful.
§ 618.215
Public hearings.
(a) When held. (1) A public hearing
must be held in connection with an
investigation initiated under § 618.210
whenever, but not later than 10 days
after the date of publication in the
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Federal Register of the notice of receipt
of the petition, such a hearing is
requested in writing by:
(i) The petitioner; or
(ii) Any other person found by the
Administrator to have a substantial
interest in the proceedings.
(2) Such petitioner and other
interested persons must be afforded an
opportunity to be present, to produce
evidence, and to be heard.
(3) An explanation of why the
requestor is requesting the hearing must
be provided to the Department.
(b) Form of request. A request for
public hearing must be filed, in letter
format, in the same manner as provided
for other documents under
§ 618.205(d)(2). The request must
contain:
(1) The name, address, and telephone
number of the person, organization, or
group requesting the hearing;
(2) A complete statement of the
relationship of the person, organization,
or group requesting the hearing to the
petitioner or the petition’s subject
matter; and
(3) An explanation of why the person,
organization, or requestor is the hearing
is interested in the matter.
(c) Time, place, and scope. The time,
place, and scope of a public hearing will
be set by the presiding officers and
published in the Federal Register a
reasonable period of time before the
scheduled hearing.
(d) Presiding officer. The
Administrator, or their designee, must
conduct and preside over public
hearings.
(e) Order of testimony. Witnesses will
testify in the order designated by the
presiding officer. Each witness, after
being duly sworn, will proceed with
testimony. After testifying, the presiding
officer or an agent designated by the
presiding officer may question the
witness. Any person who has entered an
appearance in accordance with
paragraph (k) of this section may direct
questions to the witness, but only for
the purpose of assisting the presiding
officer in obtaining relevant and
material facts with respect to the subject
matter of the hearing.
(f) Evidence. Witnesses may produce
evidence of a relevant and material
nature to the subject matter of the
hearing.
(g) Briefs. Parties who have entered an
appearance may file briefs regarding the
evidence produced at the hearing. The
briefs must be filed with the presiding
officer within 10 days of the completion
of the hearing.
(h) Oral argument. The presiding
officer must provide opportunity for
oral argument by parties listed in
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60231
paragraphs (a)(1)(i) and (ii) of this
section after conclusion of the testimony
in a hearing. The presiding officer will
determine in each instance the time to
be allowed for argument and the
allocation thereof.
(i) Authentication of evidence.
Evidence, oral or written, submitted at
hearings, will, upon order of the
presiding officer, be subject to
verification from books, papers, and
records of the parties submitting such
evidence and from any other available
sources.
(j) Transcripts. All hearings will be
transcribed or recorded in compliance
with the standards of the Department.
Persons interested in records of the
hearings may inspect them at the U.S.
Department of Labor in Washington, DC.
(k) Appearances. Any person showing
a substantial interest in the proceedings
may enter an appearance at a hearing,
either in person or by a duly authorized
representative.
§ 618.220
Use of subpoena.
(a) The Administrator may require, by
subpoena, in connection with any
investigation or hearing, the attendance
and testimony of witnesses and the
production of evidence the issuing
official deems necessary to make a
determination under this subpart.
(b) The Department will issue a
subpoena to secure evidence from a
firm, customer, petitioner, or other
person who fails to provide requested
information within 20 days of the
request, unless the recipient of the
subpoena demonstrates to the
satisfaction of the Department that the
information will be provided within a
reasonable time. In making this
determination, the Department will
consider the following factors:
(1) Submission of a portion of the
required information;
(2) Prompt cooperation with inquiries
about the information;
(3) Cooperation in previous responses
to information requests;
(4) Evidence of effort to obtain the
required information; and
(5) Other information the Department
determines to be relevant.
(c) Witnesses subpoenaed under this
section to appear in person must be paid
the same fees and mileage as are paid
for like services in the District Court of
the United States within the jurisdiction
of which the proceeding is taking place.
The Department must pay the witness
fees and mileage.
(d) Subpoenas issued under paragraph
(a) of this section must be signed by the
Administrator, or their designee, and
must be served consistent with Rule 5(b)
of the Federal Rules of Civil Procedure.
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The date for compliance must be 7
calendar days following service of the
subpoena, unless otherwise indicated.
(e) If the recipient of the subpoena
refuses to provide the requested
information, the Department may
petition the appropriate District Court of
the United States to seek enforcement of
the subpoena.
§ 618.225 Criteria for certification of a
group of workers.
(a) Increased imports. (1) This
paragraph (a) includes criteria for
certification of a group of workers based
upon increased imports of:
(i) Articles like or directly competitive
with the articles produced by the
workers’ firm;
(ii) Services like or directly
competitive with the services supplied
by the workers’ firm;
(iii) Articles like or directly
competitive with articles into which one
or more component parts produced by
the workers’ firm are directly
incorporated;
(iv) Articles like or directly
competitive with articles that are
produced directly using services
supplied by the workers’ firm; or
(v) 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 the
workers’ firm.
(2) After review of the relevant
information necessary to make a
determination, the certifying officer
must certify a worker group as eligible
to apply for TAA Program benefits and
services as impacted by increased
imports if all four of the criteria in
paragraphs (a)(2)(i) through (iv) of this
section are met.
(i) Criterion 1. A significant number or
proportion of the workers’ firm, or
appropriate subdivision thereof, have
been totally or partially separated, or
threatened with such separation, during
the 1-year period prior to the petition
date.
(A) Information regarding separations
may be obtained from:
(1) A questionnaire;
(2) State workforce agencies;
(3) Unions;
(4) Displaced workers;
(5) Public records; and
(6) Other reliable sources.
(B) Analysis of separation data must
generally consist of a:
(1) Comparison of employment on the
petition date to employment on the date
that is 1 year prior to the petition date;
(2) Review of employment activity
during the 1-year period prior to the
petition date; and
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(3) Review of evidence provided by
the workers’ firm regarding actual and
threatened separations that occur, or are
scheduled to occur, after the petition
date.
(C) Evidence of threat of separation
includes, but is not limited to:
(1) A Worker Adjustment and
Retraining Notice (WARN) letter;
(2) A separation schedule;
(3) Information provided to the
public, such as a news release or notice
on the workers’ firm website;
(4) Information provided to the
worker group; or
(5) Internal firm documents, including
memoranda or a firm newsletter.
(ii) Criterion 2. Sales or production, or
both, of the workers’ firm has decreased
during the 1-year period prior to the
petition date.
(A) Information regarding sales or
production may be collected from:
(1) Questionnaires;
(2) Public records; and
(3) Other reliable sources.
(B) Analysis of sales or production
data must generally consist of a
comparison of sales or production data
on the petition date to sales or
production data on the date that is 1
year prior to the petition date.
(iii) Criterion 3. Imports of the article
or service have increased during the 1year period prior to the petition date.
(A) Information regarding imports
may be collected from:
(1) Questionnaires issued to the
workers’ firm or customer(s);
(2) Public records; and
(3) Other reliable sources.
(B) Analysis of the workers’ firm
import activity must generally consist of
a comparison of the workers’ firm
import data on the petition date to the
workers’ firm import data on the date
that is 1 year prior to the petition date.
(C) Analysis of customer import
activity must generally consist of a
comparison of the aggregate of customer
import data on the petition date to the
aggregate of customer import data on the
date that is 1 year prior to the petition
date.
(iv) Criterion 4. Increased imports
have contributed importantly to worker
separations, or threat of separation, and
the decline in sales or production at the
workers’ firm.
(A) Analysis of the impact of
increased imports on worker separations
and declines in sales or production at
the workers’ firm must generally consist
of determining:
(1) Whether there are one or more
events, or factors, that lessen or sever
the causal nexus between the increase
in imports and worker separations or
threat of separation, and the decline in
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sales and production at the workers’
firm;
(2) What percentage of the workers’
firm sales or production declines was
attributable to the firm’s increased
imports;
(3) What percentage of the workers’
firm customer(s) sales or production
declines was attributable to the firm’s
increased imports; and
(4) Whether there are other events or
factors that mitigate or amplify the
impact of increased imports on the
workers’ firm.
(B) The impact may be determined
using a quantitative or qualitative
analysis.
(b) Shift. (1) This paragraph (b)
includes criteria for certification of a
worker group based on a shift:
(i) In production of like or directly
competitive articles by the workers’ firm
to another country; or
(ii) In the supply of like or directly
competitive services by the workers’
firm to another country.
(2) After a review of relevant
information necessary to make a
determination, the certifying officer
must certify a group of workers as
eligible to apply for TAA Program
benefits and services as impacted by a
shift in production or supply of service
if all of the criteria in paragraphs
(b)(2)(i) through (iii) of this section of
are met.
(i) Criterion 1. A significant number or
proportion of the workers’ firm, or
appropriate subdivision thereof, have
been totally or partially separated, or
threatened with separation, during the
1-year period prior to the petition date.
(A) Information regarding separations
may be obtained from:
(1) A questionnaire;
(2) State workforce agencies;
(3) Unions;
(4) Displaced workers;
(5) Public records; and
(6) Other reliable sources.
(B) Analysis of separation data must
generally consist of a:
(1) Comparison of employment on the
petition date to employment on the date
that is 1 year prior to the petition date;
(2) Review of employment activity
during the 1-year period prior to the
petition date; and
(3) Review of evidence provided by
the workers’ firm regarding actual and
threatened separations that occur, or are
scheduled to occur, after the petition
date.
(C) Evidence of threat of separation
includes, but is not limited to:
(1) A WARN letter;
(2) A separation schedule;
(3) Information provided to the
public, such as a news release or notice
on the workers’ firm website;
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(4) Information provided to the
worker group; or
(5) Internal firm documents, including
memoranda or a firm newsletter.
(ii) Criterion 2. There has been a shift
in the production or supply of services
by the workers’ firm to a foreign
country.
(A) Information regarding shift
activity may be collected from:
(1) A questionnaire;
(2) Public records; and
(3) Other reliable sources.
(B) Analysis of shift activity must
generally consist of a:
(1) Comparison of shift data on the
petition date to shift data on the date
that is 1 year prior to the petition date;
(2) Review of shift activity during the
1-year period prior to the petition date;
and
(3) Review of evidence provided by
the workers’ firm regarding shift activity
scheduled to occur after the petition
date.
(C) Evidence of future planned shift
activity must include more than a stated
intent to shift activity to a foreign
country and includes, but is not limited
to, a reassignment of production or
service supply; a reassignment of
discrete aspects or stages of production
or service supply; securing a facility in
a foreign country; shipping resources to
a foreign country; or acquiring
personnel in a foreign country.
(iii) Criterion 3. The shift to a foreign
country has contributed importantly to
worker separations or threat of
separation.
(A) Analysis of impact of shift activity
on worker separations must generally
consist of determining:
(1) Whether there are one or more
events or factors that sever or lessen the
causal nexus between the shift activity
and worker separations or threat of
separation;
(2) What percentage of the workers’
firm sales or production declines was
attributable to the firm’s shift activity;
(3) Whether operations at the workers’
firm domestic facility or facilities
decreased at the same or at a greater rate
than operations at the foreign facility or
facilities; and
(4) Whether there are other events or
factors that mitigate or amplify the
impact of shift activity on the workers’
firm.
(B) The impact may be determined
using a quantitative or qualitative
analysis.
(c) Foreign acquisition. This
paragraph (c) includes criteria for
certification of a worker group based on
a foreign acquisition of like or directly
competitive articles by the workers’ firm
from another country. After review of
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relevant information necessary to make
a determination, the certifying officer
must certify a group of workers as
eligible to apply for TAA Program
benefits and services as impacted by a
foreign acquisition of articles or services
if all of the criteria in paragraphs (c)(1)
through (3) of this section are met.
(1) Criterion 1. A significant number
or proportion of the workers’ firm, or
appropriate subdivision thereof, have
been totally or partially separated, or
threatened with separation, during the
1-year period prior to the petition date.
(i) Information regarding separations
may be obtained from:
(A) A questionnaire;
(B) State workforce agencies;
(C) Unions;
(D) Displaced workers;
(E) Public records; and
(F) Other reliable sources.
(ii) Analysis of separation data must
generally consist of a:
(A) Comparison of employment on the
petition date to employment on the date
that is 1 year prior to the petition date;
(B) Review of employment activity
during the 1-year period prior to the
petition date; and
(C) Review of evidence provided by
the workers’ firm regarding actual and
threatened separations that occur, or are
scheduled to occur, after the petition
date.
(iii) Evidence of threat of separation
includes, but is not limited to:
(A) A WARN letter;
(B) A separation schedule;
(C) Information provided to the
public, such as a news release or notice
on the workers’ firm website;
(D) Information provided to the
worker group; or
(E) Internal firm documents,
including memoranda or a firm
newsletter.
(2) Criterion 2. There has been an
acquisition of articles or supply of
services by the workers’ firm from an
entity in a foreign country.
(i) Information regarding separations
may be obtained from:
(A) A questionnaire;
(B) State workforce agencies;
(C) Unions;
(D) Displaced workers;
(E) Public records; and
(F) Other reliable sources.
(ii) Analysis of acquisition data must
generally consist of a:
(A) Comparison of acquisition data on
the petition date to acquisition data on
the date that is 1 year prior to the
petition date;
(B) Review of acquisition data during
the 1-year period prior to the petition
date; and
(C) Review of evidence provided by
the workers’ firm regarding acquisition
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60233
activity scheduled to occur after the
petition date.
(iii) Evidence of future planned
acquisitions requires more than a stated
intent to procure production of an
article or supply of services from an
entity in a foreign country and may
include, but is not limited to, entering
into a contract with a licensee;
reassignment of production or service
supply to a contractor or licensee; and
a reassignment of discrete aspects or
stages of production or service supply to
a contractor or licensee.
(3) Criterion 3. The acquisition from a
foreign country has contributed
importantly to worker separations or
threat of separation.
(i) Analysis of impact of acquisition
data on worker separations must
generally consist of determining:
(A) Whether there are one or more
events or factors that lessen or sever the
causal nexus between the acquisition
activity and worker separations or threat
of separation;
(B) What percentage of the workers’
firm sales or production declines was
attributable to the firm’s acquisition
activity;
(C) Whether operations at the
workers’ firm domestic facility or
facilities decreased at the same or at a
greater rate than contractor or licensee
operations in the foreign country; and
(D) Whether there are other events or
factors that mitigate or amplify the
impact of acquisition activity on the
workers’ firm.
(ii) The impact may be determined
using a quantitative or qualitative
analysis.
(d) Supplier of component parts or
services. This paragraph (d) contains
criteria for certification of a worker
group as a supplier to a worker group.
After review of relevant information
necessary to make a determination, the
certifying officer must certify a worker
group as eligible to apply for TAA
Program benefits and services as a
supplier to a worker group if all of the
criteria in paragraphs (d)(1) through (5)
of this section are met.
(1) Criterion 1. A significant number
or proportion of the workers’ firm, or
appropriate subdivision thereof, have
been totally or partially separated, or
threatened with separation, during the
1-year period prior to the petition date.
(i) Information regarding separations
may be obtained from:
(A) A questionnaire;
(B) State workforce agencies;
(C) Unions;
(D) Displaced workers;
(E) Public records; and
(F) Other reliable sources.
(ii) Analysis of separation data must
generally consist of a:
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(A) Comparison of employment on the
petition date to employment on the date
that is 1 year prior to the petition date;
(B) Review of employment activity
during the 1-year period prior to the
petition date; and
(C) Review of evidence provided by
the workers’ firm regarding actual and
threatened separations that occur, or are
scheduled to occur, after the petition
date.
(iii) Evidence of threat of separation
includes, but is not limited to:
(A) A WARN letter;
(B) A separation schedule;
(C) Information provided to the
public, such as a news release or notice
on the workers’ firm website;
(D) Information provided to the
worker group; or
(E) Internal firm documents,
including memoranda or a firm
newsletter.
(2) Criterion 2. The certification of the
worker group employed by the firm to
which the workers’ firm supplied
component parts or services has not
expired by the petition date.
(3) Criterion 3. The workers’ firm
conducted business with the firm
identified in paragraph (d)(2) of this
section during the 1-year period prior to
the petition date.
(4) Criterion 4. The certification
identified in paragraph (d)(2) of this
section was based on an article or
service related to the component part
produced or service supplied by the
workers’ firm.
(5) Criterion 5. The component parts
supplied to the firm identified in
paragraph (d)(2) of this section,
represented at least 20 percent of the
supplier’s production or sales during
the 1-year period prior to the petition
date, or loss of business with the firm
identified in paragraph (d)(2) of this
section, during the 1-year period prior
to the petition date, contributed
importantly to separations or threat of
separation at the workers’ firm.
(e) Downstream producer. After
review of relevant information
necessary to make a determination, the
certifying officer must certify a worker
group as eligible to apply for TAA
Program benefits and services as a
downstream producer if all of the
criteria in paragraphs (e)(1) through (5)
of this section are met.
(1) Criterion 1. A significant number
or proportion of the workers’ firm, or
appropriate subdivision thereof, have
been totally or partially separated, or
threatened with separation, during the
1-year period prior to the petition date.
(i) Information regarding separations
may be obtained from a questionnaire,
State workforce agencies, unions,
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displaced workers, public records, and
other reliable sources.
(ii) Analysis of separation data must
generally consist of a:
(A) Comparison of employment on the
petition date to employment on the date
that is 1 year prior to the petition date;
(B) Review of employment activity
during the 1-year period prior to the
petition date; and
(C) Review of evidence provided by
the workers’ firm regarding actual and
threatened separations that occur, or are
scheduled to occur, after the petition
date.
(iii) Evidence of threat of separation
includes, but is not limited to:
(A) A WARN letter;
(B) A separation schedule;
(C) Information provided to the
public, such as a news release or notice
on the workers’ firm website;
(D) Information provided to the
worker group; or
(E) Internal firm documents,
including memoranda or a firm
newsletter.
(2) Criterion 2. The certification of the
worker group employed by the firm to
which the workers’ firm provided valueadded production processes or services
has not expired by the petition date.
(3) Criterion 3. The workers’ firm
conducted business with the firm
identified in paragraph (e)(2) of this
section during the 1-year period prior to
the petition date.
(4) Criterion 4. The certification
identified in paragraph (e)(2) of this
section was based on an article or
service related to the value-added
production processes or services
supplied by the workers’ firm.
(5) Criterion 5. Loss of business with
the firm identified in paragraph (e)(2) of
this section during the 1-year period
prior to the petition date contributed
importantly to separations or threat of
separation at the workers’ firm.
(f) ITC determinations. After review of
relevant information necessary to make
a determination, the certifying officer
must certify a worker group as eligible
to apply for TAA based on a
determination issued by the ITC if all of
the criteria in paragraphs (f)(1) through
(3) of this section are met.
(1) Criterion 1. The ITC has publicly
identified the workers’ firm, by name, as
a member of a domestic industry in an
investigation resulting in:
(i) An affirmative determination of
serious injury or threat thereof under
sec. 202(b)(1) of the Act (19 U.S.C.
2252(b)(1));
(ii) An affirmative determination of
market disruption or threat thereof
under sec. 421(b)(1) of the Act (19
U.S.C. 2451(b)(1)); or
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(iii) An affirmative final
determination of material injury or
threat thereof under sec. 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) Criterion 2. The petition is filed
during the 1-year period beginning on
the date on which:
(i) A summary of the report submitted
to the President by the ITC under sec.
202(f)(1) of the Act with respect to the
affirmative determination described in
paragraph (f)(1)(i) of this section is
published in the Federal Register under
sec. 202(f)(3) of the Act; or
(ii) Notice of an affirmative
determination described in paragraph
(f)(1)(ii) or (iii) of this section is
published in the Federal Register.
(3) Criterion 3. The workers have
become totally or partially separated
from the workers’ firm within:
(i) The 1-year period described in
paragraph (f)(2) of this section; or
(ii) The 1-year period preceding the 1year period described in paragraph (f)(2)
of this section.
(g) Sales or production decline
criteria. For paragraphs (a) through (c) of
this section, in assessing sales or
production decline for the period 1 year
prior to the petition date, the
Department will use a comparison of the
latest 2 full calendar year periods and
will use a comparison of the year to date
period (from the year the petition was
filed) to the same year to date period
from the prior year. This paragraph (g)
does not apply to determining whether
a significant number of workers have
been separated or threatened with
separation.
(h) Oil and gas. For workers employed
by firms engaged in exploration or
drilling for crude oil and natural gas:
(1) Any firm, or appropriate
subdivision of a firm, that engages in
exploration or drilling for oil or natural
gas must be considered to be a firm
producing oil or natural gas;
(2) Any firm, or appropriate
subdivision of a firm, that engages in
exploration or drilling for oil or natural
gas, or otherwise produces oil or natural
gas, must be considered to be producing
articles directly competitive with
imports of oil and with imports of
natural gas; and
(3) The Department may conduct a
parallel investigation to determine
whether the group of workers meets the
criteria for certification of worker
groups under this section for the
services provided by the group of
workers. The Department will render a
determination after all appropriate
avenues are considered.
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(i) Staffed workers. The Department
considers staffed workers to be members
of a worker group even if they are not
specifically mentioned within the
determination document issued under
§ 618.235. The Department will collect
information from the workers’ firm
during the investigation to establish
which leasing or staffing entity or
entities the firm used under a contract.
Once identified, an evaluation of
operational control will occur. If a
certification is rendered, the Department
will notify States regarding the
appropriate contact information of the
known leasing or staffing entity or
entities in order to expedite worker
notification of their eligibility to apply
individually for TAA Program benefits
and services. Factors to be considered in
evaluating operational control include:
(1) Whether the contract workers
perform only tasks that are independent,
discrete projects for the workers’ firm
(as opposed to performing tasks that are
part of the regular business operations
of the firm);
(2) Whether the workers’ firm has the
discretion to hire, fire, and discipline
the contract workers;
(3) Whether the workers’ firm has the
ability to terminate the contract
workers’ employment with such firm
through the staffing or leasing
contracted firm;
(4) Whether the workers’ firm
exercises the authority to supervise the
contract workers’ daily work activities,
including assigning and managing work,
and determining how, where, and when
the work of contract worker takes place
(e.g., factors such as the hours of work,
the selection of work, and the manner
in which the work is to be performed by
each contract worker are relevant);
(5) Whether the services of the
contract workers are offered on the open
market;
(6) Whether the contract workers
work exclusively for the workers’ firm;
(7) Whether the workers’ firm is
responsible for establishing wage rates
and the payment of salaries of the
contract workers;
(8) Whether the workers’ firm
provides skills training to the contract
workers; and
(9) Whether there are other facts
indicating that the workers’ firm
exercises control over the contract
workers.
(j) Teleworkers. The Department
considers teleworkers (also known as
remote, or home-based workers) to be
members of a worker group even if they
are not specifically mentioned within
the determination document issued
under § 618.235 when they would be a
part of the worker group if they worked
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on-site. Teleworkers do not have to be
physically based at the location of the
subject firm or in the same city or same
State of the location that is identified on
the determination document to be
members of the certified worker group.
(k) Successor-in-interest. The
Department considers workers
employed by a firm that is a successorin-interest to be members of a worker
group even if they are not mentioned
specifically within the determination
document issued under § 618.235.
§ 618.230
Evidence.
(a) The Department will verify
information obtained during an
investigation before considering such
information in support of a petition.
(b) Evidence may be accepted from
such sources including, but not limited
to, petitioners, company officials,
current and former workers of the firm,
customers of the firm, trade
associations, union representatives,
Federal agencies, and public sources
such as State agencies and academic
institutions.
(c) The Department may share
affidavits, testimonials, news articles,
and other types of information proffered
in support of a petition with appropriate
parties for verification.
§ 618.235
Determinations.
Based on the findings of the
investigation as set forth in § 618.230, a
certifying officer will make a
determination on a petition as provided
under paragraph (a) or (b) of this
section.
(a) Affirmative determination or
certification. When the investigation
establishes that a group of workers
meets the eligibility criteria of
§ 618.225, the certifying officer will
issue a certification of worker group
eligibility to apply for TAA Program
benefits and services. The certification
will include the name of the firm or
appropriate subdivision thereof at
which the trade-affected workers
covered by the certification have been
employed (which need not be limited to
the unit specified in the petition), and
may identify the worker group by name,
as described in § 618.225(i) and (j), the
certification period, and the certification
date.
(1) A certification covers any worker
in the worker group eligible to apply for
assistance under sec. 222(a) and (b) of
the Act, whose last total or partial
separation, or threat of a separation,
from a firm or appropriate subdivision
took place within the certification
period, which is the period:
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60235
(i) Following the impact date, which
is the date 1 year before the petition
date; and
(ii) On or before the day the
certification expires, which is 2 years
after the certification date, or an earlier
date on which the certifying officer
determines that separations from
adversely affected employment may no
longer be attributed to the conditions
underlying the certification, as
described in § 618.240, or the date
identified in an amendment described
in § 618.250.
(2) A certification covers any worker
in the worker group eligible to apply for
TAA Program benefits and services
under sec. 222(e) whose last total or
partial separation from a firm took place
within the certification period, which is
the period:
(i) Following the impact date, which
is the date 1 year before the ITC
publication in the Federal Register; and
(ii) On or before the day the
certification expires, which is the date
1 year from the ITC publication in the
Federal Register.
(3) A trade-affected worker who is a
member of the worker group covered by
the certification may apply to the State
for benefits and services under subparts
C through G of this part.
(b) Negative determination or denial.
When the investigation establishes that
the group of workers does not meet the
criteria for eligibility, as described in
§ 618.225, the certifying officer will
issue a denial. The denial will include
the name of the firm or appropriate
subdivision thereof at which the
workers covered by the denial have
been employed (which need not be
limited to the unit specified in the
petition), and may identify the worker
group by name, as described in
§ 618.225(i) and (j).
(c) Determination. The certifying
official prepares a determination
identifying the article(s) produced or
service(s) provided and describing the
worker group covered by the
certification or denial and stating the
reasons for the determination (excluding
information designated as confidential
business information). The Department
will provide a copy of the determination
to the petitioner(s) and to the State(s)
covered by the determination. The
Department will publish in the Federal
Register, and on the Department’s
website, a summary of the
determination issued under paragraph
(a) or (b) of this section, along with a
general statement of the reasons for the
determination (except for confidential
business information).
(d) Amended determination. The
Department may amend a certification
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to limit or expand the eligible worker
group or other elements of the
certification. The Department also may,
without an outside request for
redetermination, reconsider a denial. An
amended determination will not take
effect until the previous determination
becomes final, either after the period in
which to request reconsideration has
lapsed or after the Department makes a
determination on reconsideration.
Amended certifications are discussed in
more detail in § 618.250.
§ 618.240
Termination of certification.
(a) Initiation. Whenever the
Administrator of the Office of Trade
Adjustment Assistance has reason to
believe, with respect to any nonexpired
certification, that the total or partial
separations or threat of separation from
a firm, or appropriate subdivision
thereof, are no longer attributable to the
conditions specified in sec. 222 of the
Act and § 618.225, the Administrator
must promptly conduct an
investigation.
(1) Certifications, as described in
§ 618.235(a)(1)(ii), will include a
standard date of termination, also called
expiration date, which is 2 years from
the date of certification, unless
otherwise designated through an earlier
termination under this section.
(2) Certifications for firms identified
by the ITC, as described in § 618.225(f),
will include a standard date of
termination, also called expiration date,
which is 1 year from the date the
determination is published in the
Federal Register.
(b) Notice. A notice of the initiation of
an investigation to terminate a
certification must be published in the
Federal Register, and on the
Department’s website, and provided to
the petitioner(s) of the certification
under investigation, the firm official(s),
and State(s) that contain the location(s)
of the workers comprising the worker
group covered by the certification. The
State(s) must also promptly notify the
workers in the worker group.
(c) Opportunity for comment. Within
10 calendar days after publication of the
notice under paragraph (b) of this
section, members of the worker group or
any other person who has a substantial
interest in the matter may provide
evidence in writing supporting the
continuation of eligibility of
certification to show why the
certification should not be terminated. If
a hearing is requested, it will be
conducted in accordance with
§ 618.215. If no evidence is provided by
any interested party within 10 days
from the date of publication to the
Federal Register or on the Department’s
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website, whichever is later, a
determination must be issued once the
investigation is complete. Evidence
(except at a timely requested hearing)
and hearing requests submitted outside
the 10-day period will not be accepted.
(d) Investigation of termination of a
certification. The Department will
conduct a review of the record on which
the certification was based, any
evidence timely filed under paragraph
(c) of this section, and any data
submitted with the petition or provided
subsequent to the filing of the petition.
The period of investigation of
termination of a certification will
remain the same as the period of
investigation for the original
certification.
(e) Determination to terminate or
partially terminate a certification. A
determination to terminate a
certification may cover the entire
worker group specified in the
certification or a portion of that group.
Such termination or partial termination
must apply only with respect to total or
partial separations occurring after the
termination date specified in the
determination notice and must only take
effect after the determination becomes
final, either after the period in which to
request reconsideration has lapsed or
after a determination on reconsideration
is made.
(1) Upon making a determination that
the certification should be terminated
for all or part of the worker group
specified in the certification, the
Department will issue a determination,
either a Notice of Total Termination of
Certification or a Notice of Partial
Termination of Certification, which will
contain the reasons for making such
determination (redacting confidential
business information) and notify the
petitioner(s) of the original certification,
the firm official(s), and the State(s). The
Department will also publish the notice
in the Federal Register, and on the
Department’s website. The State will
notify the worker group of the
termination or partial termination.
(2) The termination date specified in
the determination notice must not be
earlier than the date of publication in
the Federal Register.
(f) Determination of continuation of
certification. After an investigation
resulting in a decision that the
certification should not be terminated,
the Department will notify the
petitioner(s) of the original certification,
firm official(s), and the State(s). The
State(s) will notify the worker group of
the determination of continuation of
certification. The Department will
publish (redacting confidential business
information) the determination as a
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Notice of Continuation of Certification
in the Federal Register and on the
Department’s website. After receiving
notice by the Department, the State(s)
must notify the worker group of the
continuation of certification.
(g) Reconsideration of termination or
partial termination of a certification.
Any party that is eligible under
§ 618.225 to submit a petition may file
an application for reconsideration with
the Department, following the
procedures described in § 618.245.
§ 618.245 Reconsideration of termination
of an investigation, denial, or termination or
partial termination of certification.
(a) Application for reconsideration;
contents. (1) Any party who is eligible
to file a petition under § 618.205, and
any worker in the group of workers, may
file a written application seeking
reconsideration of a termination of an
investigation under § 618.210(e); a
negative determination issued under
§ 618.235(b); or a termination or partial
termination of certification issued under
§ 618.240, via email:
reconsiderations.taa@dol.gov; fax: (202)
693–3584 or (202) 693–3585; or mail:
U.S. Department of Labor, Employment
and Training Administration, Office of
Trade Adjustment Assistance, 200
Constitution Avenue NW, Washington,
DC 20210.
(2) An application for reconsideration
must contain the following information
to be complete and valid:
(i) The name(s) and contact
information of the applicant(s);
(ii) The name or a description of the
group of workers on whose behalf the
application for reconsideration is filed
in the case of an application for
reconsideration of a termination of an
investigation or a negative
determination, or the name or a
description of the worker group on
whose behalf the application for
reconsideration of a termination or
partial termination of a certification is
filed;
(iii) The petition number identified on
the petition or determination that is the
subject of the application for
reconsideration;
(iv) The reasons for believing that the
termination of the investigation,
negative determination, or termination
or partial termination of a certification
identified in paragraph (a)(1) of this
section is erroneous, including any
issues that the applicant asserts require
further investigation;
(v) Any information that may support
the application for reconsideration,
including material not considered prior
to the termination of the investigation,
negative determination, or termination
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or partial termination of a certification;
and
(viii) The signature(s) of the party, or
representative thereof, requesting
reconsideration.
(b) Time for filing. An application for
reconsideration of the termination of the
investigation, negative determination, or
termination or partial termination of a
certification must be filed no later than
30 calendar days after the notice of the
termination of the investigation,
negative determination, or termination
or partial termination of a certification
has been published in the Federal
Register. If an application is filed after
that time, it will be returned as untimely
filed.
(c) Return of incomplete applications
for reconsideration. The Department
will review an application for
reconsideration within 2 business days
upon its receipt to determine if the
application contains all of the necessary
information required under paragraph
(a)(2) of this section. The Department
will not accept an incomplete
application for filing, but will return it
to the applicant with a brief statement
explaining why it is incomplete. Should
an applicant wish to refile an
application for reconsideration, the
refiling must occur no later than 30
calendar days after the notice of the
determination has been published in the
Federal Register, within the 30-day
period identified in paragraph (b) of this
section or, if the application is returned
less than 5 days before the end of that
period, within 5 days of receipt.
(d) Notice of an application for
reconsideration. After receipt of a
complete and timely application for
reconsideration, the Department will
notify the applicant and publish in the
Federal Register and on the
Department’s website the notice of the
application and the initiation of an
investigation on reconsideration of the
termination of the investigation,
negative determination, or termination
or partial termination of a certification.
(e) Opportunity for comment and
submission of data on reconsideration.
Within 10 calendar days after
publication of a notice under paragraph
(d) of this section, any party who is
eligible to file a petition under § 618.205
may make written submissions to show
why the determination under
reconsideration should or should not be
modified.
(f) Investigation on reconsideration.
The Department will conduct a review
of the record on which the termination
of the investigation, negative
determination, or termination or partial
termination of a certification was based,
any comments timely filed under
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paragraph (a)(2)(iv), (a)(2)(v), or (e) of
this section, and any data submitted
with the original petition or provided
subsequent to the filing of the petition.
The period of investigation under
reconsideration will remain the same as
the period of investigation for the
original petition.
(g) Determinations on
reconsideration. The Department will
issue a final determination affirming,
reversing, or modifying the termination
of the investigation, negative
determination, or termination or partial
termination of a certification within 60
days after the date of receiving a
complete and valid application for
reconsideration. The Department will
notify the applicant(s), the petitioner(s)
of the original petition, firm official(s),
and the State(s); and publish notice in
the Federal Register of the
determination on reconsideration and
the reasons for it (redacting confidential
business information). The State
continues to be responsible for notifying
trade-affected workers in a certified
worker group of their eligibility to apply
for TAA, in accordance with § 618.820.
If 60 days pass without a determination
on reconsideration, the Department will
contact the applicant to ascertain
whether the applicant wishes the
Department to continue the
reconsideration investigation and issue
a determination on reconsideration or
wishes the Department to terminate the
reconsideration investigation, which
renders the initial determination as the
Department’s final determination.
§ 618.250
Amendments of certifications.
(a) Types of amendments. A certifying
officer may amend a certification, as
appropriate, to include all workers of
the applicable firm who were identified
as adversely affected by foreign trade.
Amendments must not extend the
impact date more than 1 year prior to
the petition date unless there is a
statutory exception, as described in
§ 618.235(a)(1)(iii)(A). Reasons for
amendments include, but are not
limited to:
(1) Identifying an ownership change
affecting the applicable firm;
(2) Correcting technical errors; or
(3) Clarifying the identification of the
worker group.
(b) Petition filing. Amendments must
be requested through the regular
petition process described in § 618.205.
(c) Notification of amendment. The
Department will publish the amended
certification in the Federal Register and
on the Department’s website. The
Department will also notify the affected
States and the State must notify any
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additional certified trade-affected
workers, as required by § 618.820.
§ 618.255 Judicial review of
determinations.
(a) General. A worker, group of
workers, certified or recognized union,
or authorized representative of such
worker or group may commence a civil
action for review of the determination
by filing a complaint with the United
States Court of International Trade
(USCIT) within 60 days after the date of
publication of the notice of a final
determination in the Federal Register,
as provided under sec. 284 of the Act
(19 U.S.C. 2395).
(b) Final determination. Only
determinations issued under
§§ 618.240(g) and 618.245 are final
determinations for purposes of judicial
review.
(c) Certified record of the Department.
Upon receiving a copy of the summons
and complaint from the clerk of the
USCIT, the Department will file with
the court a certified record meeting the
requirements of the rules of the USCIT.
When the certified record contains
confidential business information, the
Department will file a public version of
the record redacting the confidential
business information, and a separate
version that includes the confidential
business information, in accordance
with the rules of the USCIT.
(d) Further proceedings. Upon remand
by the USCIT, the Department will
conduct an additional investigation and
the certifying officer will make new or
modified findings of fact and will
modify or affirm the previous
determination. Upon making this
subsequent determination, the certifying
officer will publish a summary of the
determination and the reasons for the
determination in the Federal Register,
redacting any confidential business
information from the published
summary. The certifying officer also
will file the determination upon remand
and the record on which the
determination is based with the USCIT,
in accordance with the rules of USCIT.
(e) Standard of review. The
determination and findings of fact by
the certifying officer are conclusive if
the USCIT determines that they are
supported by substantial evidence, as
provided under sec. 284 of the Act (19
U.S.C. 2395).
(f) Individual benefits denials.
Appeals of denials of individual
benefits are not determinations under
sec. 222 of the Act and are not subject
to review by the USCIT under sec. 284
of the Act.
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(g) Manner of filing. Requests for
judicial review must be filed in
accordance with the rules of the USCIT.
§ 618.260 Study regarding certain
affirmative determinations by the
Commission.
(a) Upon notification from the
Commission that it has begun an
investigation under sec. 202 of the Act
with respect to an industry, the
Department must immediately begin a
study of:
(1) The number of workers in the
domestic industry producing the like or
directly competitive article who have
been or are likely to be certified as
eligible for adjustment assistance, which
includes, but is not limited to, analysis
of:
(i) The estimated number of certified
workers within the domestic industry
named in the ITC affirmative
determination;
(ii) Information obtained during the
investigation of TAA Program
determinations;
(iii) Responses from Domestic
Industry Study;
(iv) Information obtained by
consultation with ITC Commission
industry experts; and
(v) Other pertinent workforce and
trade-impact data of companies who are
currently participating in the industry.
(2) The extent to which the
adjustment of such workers to the
import competition may be facilitated
through the use of the TAA Program,
other Departmental programs and
resources, and programs administered
by other Federal agencies.
(b) The report of the Department’s
study under paragraph (a) of this section
must be made to the President not later
than 15 days after the day on which the
Commission makes its report under sec.
202(f)(1) of the Act. The Department
will also publish the report in the
Federal Register and on the
Department’s website.
§ 618.265
public.
Availability of information to the
(a) Information available to the
public. The Department posts all
determinations on the Department’s
website. The Department also posts
redacted versions of all petitions on the
Department’s website. Upon request to
the Administrator of the Office of Trade
Adjustment Assistance, members of the
public may inspect petitions and other
documents filed with the Administrator,
transcripts of testimony taken and
exhibits submitted at public hearings
held under the provisions of this
subpart, public notices concerning
trade-affected worker assistance under
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the Act and other reports and
documents issued for general
distribution, in accordance with the
Department’s record retention schedule,
FOIA, and the Privacy Act.
(b) Information not available to the
public. Confidential business
information must not be made available
to the public.
Subpart C—Employment and Case
Management Services
§ 618.300
Scope.
This subpart describes the
employment and case management
services that the State must make
available to trade-affected workers,
either directly through the TAA
Program or through arrangements with
partner programs. This subpart requires
States, under the Governor-Secretary
Agreement at § 618.804, to integrate the
provision of benefits and services
available to trade-affected workers
under the TAA Program with the
delivery of employment services and
other assistance provided through the
one-stop delivery system (established
under title I of WIOA), as required by
secs. 235 and 239(a), (e), and (g) of the
Act. It also implements the
requirements of sec. 221(a)(2)(A) of the
Act for the provision of rapid response
assistance and appropriate career
services described in §§ 682.300 through
682.370, and 680.150 of this chapter,
respectively, for workers upon receipt of
a petition filed covering a group of
workers.
§ 618.305 The Trade Adjustment
Assistance Program as a one-stop partner.
(a) As provided by WIOA sec.
121(b)(1)(B)(vii), the TAA Program is a
required one-stop partner under WIOA.
(b) The State must ensure that the
TAA Program complies with WIOA’s
one-stop partnership requirements at
WIOA sec. 121(b)(1)(A)(i) through (v).
This includes, among the other
requirements, paying infrastructure
costs where the TAA Program is being
carried out.
(c) The TAA Program must also
comply with, and be a party to, the
memorandum of understanding
required under the regulations
implementing WIOA at § 678.500 of this
chapter, where the TAA Program is
being carried out.
§ 618.310 Responsibilities for the delivery
of employment and case management
services.
(a) The State is responsible for
providing information to workers about
the TAA Program, as required in
§ 618.820;
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(b) As part of the delivery of services,
the State must:
(1) Conduct intake, which includes
interviewing each trade-affected worker
and reviewing suitable training
opportunities reasonably available to
each worker under subpart F of this
part;
(2) Inform trade-affected workers of
the employment services and
allowances available under the Act and
this part, including the application
procedures, the filing requirements for
such services, and enrollment deadlines
for receiving TRA, as described in
subpart G of this part;
(3) Determine whether suitable
employment, as defined in § 618.110, is
available, and assist in job search
activities related to securing suitable
employment;
(4) Accept applications for training;
(5) Provide information on which
training providers offer training
programs at a reasonable cost and with
a reasonable expectation of employment
following the completion of such
training, and assist in acquiring such
training;
(6) Monitor the progress and
attendance of trade-affected workers in
approved training programs;
(7) Develop and implement a
procedure for determining whether to
issue a training waiver and to review
waivers to determine whether the
conditions under which they were
issued have changed, in compliance
with subpart G of this part;
(8) Provide access to workshops and
other resources related to job search
strategies, resume building,
interviewing, and other topics available
through the TAA Program or through
the one-stop delivery system; and
(9) Coordinate the administration and
delivery of additional appropriate
employment services, benefits, training,
supportive services, and supplemental
assistance for workers with partner
programs for which the trade-affected
worker may be eligible.
(c) The State must make available the
employment and case management
services in paragraphs (c)(1) through (7)
of this section to trade-affected workers
under a certification of eligibility to
apply for TAA Program benefits and
services, and that those workers are
informed of the availability of:
(1) Comprehensive and specialized
assessment of skill levels and service
needs, including through:
(i) Diagnostic testing and use of other
assessment tools; and
(ii) In-depth interviewing and
evaluation to identify employment
barriers and appropriate employment
goals.
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(2) Development of an individual
employment plan (IEP) to identify
employment goals and objectives, and
appropriate training to achieve those
goals and objectives.
(3) Information on how to apply for
financial aid, including referring
workers to educational opportunity
centers described in sec. 402F of the
Higher Education Act of 1965, as
amended (HEA) (20 U.S.C. 1070a–16),
where applicable, and notifying workers
that they may request that financial aid
administrators at institutions of higher
education (as defined in sec. 102 of HEA
(20 U.S.C. 1002)) use the administrators’
discretion under sec. 479A of HEA (20
U.S.C. 1087tt) to use current-year
income data, rather than preceding-year
income data, for determining the
amount of the workers’ need for Federal
financial assistance under title IV of
HEA (20 U.S.C. 1070 et seq.).
(4) Short-term prevocational services,
including development of learning
skills, communications skills,
interviewing skills, punctuality,
personal maintenance skills, and
professional conduct to prepare tradeaffected workers for employment or
training.
(5) Individual and group career
counseling, including job search and
placement counseling, during the period
in which the worker is receiving a trade
adjustment allowance or training under
this chapter, and after receiving such
training for purposes of job placement
and employment retention.
(6) Provision of employment statistics
information, including the provision of
accurate information relating to local,
regional, and national labor market
areas, including:
(i) Job-vacancy listings in such labor
market areas;
(ii) Information on the job skills
necessary to obtain the jobs identified in
the job-vacancy listings described in
paragraph (c)(6)(i) of this section;
(iii) Information relating to local
occupations that are in demand and the
earning potential of those occupations;
and
(iv) Skills requirements for local
occupations described in paragraph
(c)(6)(iii) of this section.
(7) Information relating to the
availability of supportive services,
available through partner programs,
including services relating to childcare,
transportation, dependent care, housing
assistance, and needs related payments
that are necessary to enable a tradeaffected worker to participate in
training.
(d) To make available, with respect to
the employment and case management
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services described in paragraph (c) of
this section, means:
(1) That the State must inform the
trade-affected worker of the full suite of
services available; and
(2) That the State must offer and
provide appropriate services to the
trade-affected worker, as requested by
the worker or deemed appropriate for
the worker; and
(3) That the State must document
each service provided to the tradeaffected worker and document the
reason any service listed in paragraph
(c) of this section was not provided. The
documentation must be included in the
worker’s case file, either through case
notes or as a stand-alone document.
§ 618.325 Integrated service strategies and
Workforce Innovation and Opportunity Act
co-enrollment.
(a)(1) A State must co-enroll tradeaffected workers who are eligible for
WIOA’s dislocated worker program.
Workers may choose to decline coenrollment in WIOA. A State cannot
deny such a worker benefits or services
under the TAA Program solely for
declining co-enrollment in WIOA.
(2) A State must also make coenrollment available to trade-affected
workers who are eligible for other onestop partner programs to ensure that all
necessary and appropriate services,
including supportive services, are
available to the worker.
(b)(1) Trade-affected worker
dislocated worker eligibility. Most tradeaffected workers meet the eligibility
criteria of a dislocated worker defined at
WIOA sec. 3(15).
(2) Partially separated worker and
AAIW dislocated worker eligibility. In
certain circumstances, such as a general
announcement of a closure, partially
separated workers and AAIWs may meet
the eligibility criteria as a dislocated
worker under WIOA and must also be
co-enrolled.
(3) Trade-affected worker dislocated
worker ineligibility. Some trade-affected
workers are ineligible for the WIOA
dislocated worker program, including
those that do not meet the Selective
Service registration requirement, and
will be exempt from the co-enrollment
requirement in this section.
§ 618.330
workers.
Assessment of trade-affected
(a) The assessment process forms the
basis for determining which TAA
Program benefits and services, including
training, are most appropriate to enable
trade-affected workers to successfully
become reemployed.
(b) The State must schedule an initial
assessment that provides sufficient time
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60239
and information for the trade-affected
worker to consider, request, and enroll
in training or obtain a waiver of the
training requirement in § 618.720(g) to
protect their eligibility to receive TRA
under subpart G of this part.
(c) Assessments are administered with
the cooperation of the trade-affected
worker and should include discussion
of the worker’s interests, skills,
aptitudes, and abilities.
(d) The results of assessments must be
documented in the case file, either
through case notes or as a stand-alone
document.
(e) If an assessment has already been
administered by a partner program, it
must be reviewed once a worker
becomes a trade-affected worker to
ensure it has the required components
as listed in § 618.335 for an initial
assessment and, if necessary, § 618.345
for a comprehensive and specialized
assessment. If the assessment(s) does
not contain the required components,
the assessment(s) must be supplemented
by the State, in conjunction with the
trade-affected worker, to ensure it is
fully compliant with TAA Program
requirements in this part.
(f) The State must make the tradeaffected worker aware of the advantages
of receiving an assessment(s). However,
a worker may refuse an assessment.
Since portions of the assessment(s) are
necessary to determine eligibility for
certain TAA Program benefits, a
worker’s refusal to provide necessary
information, either as part of the
assessment or outside of the assessment
process, may result in a denial of a those
benefits. This is detailed further in the
applicable benefit sections throughout
this part.
§ 618.335 Initial assessment of tradeaffected workers.
(a) A State must carry out an initial
assessment for each trade-affected
worker as part of the intake process
described in sec. 239(g) of the Act.
When applicable, a State must use the
results of an assessment developed by a
partner program, supplemented if
necessary, as described in § 618.330(e).
(b) The results of the initial
assessment will determine the best
service strategy to assist the tradeaffected worker in obtaining
reemployment and provide insight into
which benefits and services under the
TAA Program and partner programs
would be most beneficial to the worker.
The initial assessment of the availability
of suitable employment to the worker in
the local labor market must take into
consideration the following factors:
(1) Prevailing local labor market
conditions, including the
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unemployment rate, local employer skill
demands and hiring prerequisites;
(2) The worker’s knowledge, skills,
and abilities from their education and
previous employment;
(3) Transferable skills that the worker
may possess that would be of interest to
other local employers;
(4) Evaluation of a worker’s skill
levels (including literacy, numeracy,
and English language proficiency),
aptitudes, abilities (including skills
gaps), and supportive service needs; and
(5) Any barriers to the worker’s
reemployment, such as:
(i) Lack of applicability of skills from
the worker’s present occupation to other
occupations;
(ii) Skills that are in excess supply in
the labor market area; or
(iii) Other barriers as outlined in
WIOA sec. 3(24).
(c) Based upon the information
gathered in the initial assessment,
described in paragraph (a) of this
section, the State may:
(1) Determine that suitable
employment is available to the tradeaffected worker, and if so, the State
must make available employment and
case management services. If the worker
disagrees with the determination, the
State must make available to the worker
a comprehensive and specialized
assessment (under § 618.345) to obtain
additional information to determine
whether the initial assessment was
correct.
(2) Determine that no suitable
employment is available to the worker
and, if so, the State must make available
services as described in § 618.310
(responsibilities for the delivery of
employment and case management
services) and a comprehensive and
specialized assessment (as described in
§ 618.345) to develop a comprehensive
service strategy for the trade-affected
worker.
(d) If the State determines under
paragraph (c) of this section that
suitable employment is not available to
a trade-affected worker, even with
additional employment and case
management services, the State must
advise the worker to apply for training
under subpart F of this part.
§ 618.345 Comprehensive and specialized
assessment of trade-affected workers.
(a) The State must make available a
comprehensive and specialized
assessment to all trade-affected workers.
(b) The comprehensive and
specialized assessment must take into
account the trade-affected worker’s
goals and interests as they relate to
employment opportunities either in the
worker’s commuting area or, where
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there is no reasonable expectation of
securing employment in their
commuting area and the worker is
interested in relocation, the
employment opportunities and demand
in the area to which they propose to
relocate.
(c) The comprehensive and
specialized assessment must expand
upon the initial assessment regarding
the trade-affected worker’s interests,
skills, aptitudes, and abilities. This may
include use of diagnostic testing tools
and instruments and in-depth
interviewing and evaluation to identify
barriers to employment and appropriate
employment goals. The in-depth
interviewing of trade-affected workers
must include discussion of training
opportunities reasonably available to
each trade-affected worker, as described
in subpart F of this part; reviewing the
opportunities with each trade-affected
worker; and informing each tradeaffected worker of the requirements for
participating in training, including the
enrollment deadlines required for TRA
eligibility.
(d) The State may use information
from the comprehensive and specialized
assessment to determine whether the
trade-affected worker has met the six
criteria for approval of training listed in
subpart F of this part.
§ 618.350 Individual employment plans for
trade-affected workers.
(a) A State must:
(1) Make available an IEP; and
(2) Document an IEP for any tradeaffected worker seeking training under
subpart F of this part or a job search
allowance under subpart D of this part,
before the worker receives those benefits
and services.
(b) An IEP must use the results of the
initial and, if available, comprehensive
and specialized assessments to assist in
documenting a strategy to provide the
trade-affected worker with the services
needed to obtain employment,
including the items listed in paragraph
(c) of this section.
(c) An IEP must document:
(1) The trade-affected worker’s
employment goal, including the targeted
occupation and industry;
(2) The type of training proposed, if
any;
(3) Any services that will be needed
by the worker to obtain suitable
employment, including career services,
supportive services provided through
partner programs, and post-training case
management services; and
(4) If applicable, any supplemental
assistance (subsistence or transportation
payments) required for participation in
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training and the basis for their
calculation.
(d) If an IEP has been previously
developed with a trade-affected worker
by a partner program, it must be
reviewed once the worker becomes TAA
Program-eligible to ensure it has the
components required by paragraph (c) of
this section. If the IEP does not contain
the components, the IEP must be
supplemented by the State in
conjunction with the worker to ensure
it is fully compliant with the TAA
Program requirements in this part.
(e) The State must monitor the
progress of the trade-affected worker in
meeting the worker’s responsibilities as
listed in the IEP, including attendance
and achievement in approved training
programs.
(f)(1) The State must modify the IEP
as necessary to facilitate a successful
performance outcome for the tradeaffected worker.
(2) The modification must be done
with the worker’s input.
(3) At a minimum, the IEP must be
modified when there is a change in the
training program, receipt of
supplemental assistance, or both.
(g) The State must make the tradeaffected worker aware of the advantages
of receiving an IEP. However, a worker
may refuse to complete an IEP. Since
portions of the IEP are necessary to
determine eligibility for job search
allowances under subpart D of this part
and training under subpart F of this
part, a worker’s refusal to provide
necessary information, either as part of
the IEP or outside of the IEP process,
may result in a denial of a those benefits
and services. This is detailed further in
subparts D and F of this part.
§ 618.355 Knowledge, skills, and abilities
of staff performing assessments.
(a) Staff performing either the initial
or comprehensive and specialized
assessment must possess the following
knowledge and abilities:
(1) Knowledge of the local labor
market;
(2) Knowledge of local employer and
occupation skill demands and hiring
prerequisites, such as educational
requirements and professional
certifications;
(3) The ability to identify transferable
skills that a trade-affected worker may
possess that would be of interest to
other local employers outside of the
worker’s present occupational area;
(4) The ability to evaluate quickly a
worker’s ability to conduct a selfdirected job search; and
(5) The ability to identify barriers to
a worker’s employment that could be
overcome with training and case
management services.
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(b) The staff performing these initial
and comprehensive and specialized
assessments may be from any partner
program.
(c) Funds under sec. 235A(1) of the
Act may be used to improve and
maintain the knowledge and abilities of
staff conducting assessments for tradeaffected workers.
§ 618.360 Employment and case
management services for trade-affected
workers in training.
The State must make employment and
case management services available,
including placement and other
appropriate employment and case
management services (including
referrals to supportive services and
follow-up services available through
partner programs), to trade-affected
workers during training, and upon
completion of training, and for AAWs
on a waiver from training.
Subpart D—Job Search and Relocation
Allowances
§ 618.400
Scope.
This subpart sets forth the conditions
under which an AAW 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. This
subpart also sets forth the conditions
under which an AAW may apply for
and receive a relocation allowance to
help the worker relocate to suitable
employment secured outside the
commuting area but within the United
States.
§ 618.405
General.
(a) A State must grant a job search
allowance to an AAW to help the
worker secure suitable employment
within the United States if the AAW
meets the requirements in this subpart.
(b) A State must grant a relocation
allowance to an AAW to help the
worker and the worker’s family relocate
within the United States if the AAW
meets the requirements in this subpart.
A State may grant a relocation
allowance to a worker only once under
a certification. A State may grant a
relocation allowance to only one
member of a family for the same
relocation, even if there are multiple
AAWs in the same family. If more than
one member of a family applies for a
relocation allowance for the same
relocation, then the State must pay the
allowance to the AAW who files first, if
that AAW is otherwise eligible.
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§ 618.410 Applying for a job search
allowance.
(a) Forms. To receive a job search
allowance, an AAW must apply to the
State, using the State’s process.
(b) Submittal. An AAW who has a
total or partial separation may apply to
the State for a job search allowance after
the Department has issued a
certification covering the worker. The
worker must apply for a job search
allowance before beginning a job search
to be funded by such an allowance, and
the State must not approve the job
search allowance until the State has
determined that the worker is covered
by a certification.
§ 618.415 Eligibility for a job search
allowance.
(a) Conditions. To be eligible for a job
search allowance an AAW must:
(1) File an application before either:
(i) The later of the 365th day after
either the date of the certification under
which they are covered, or the 365th
day after their last total separation; or
(ii) The 182nd day after the date of
concluding approved training;
(2) Be an AAW totally separated from
the job covered under the certification
when beginning the job search;
(3) Receive a determination by the
State that the AAW cannot reasonably
expect to secure suitable employment in
the commuting area, can reasonably
expect to obtain either suitable
employment or employment that pays a
wage of at least the 75th percentile of
national wages, as determined by the
National Occupational Employment
Wage Estimates, and otherwise meets
the suitable employment requirements
in the area of the job search;
(4) Receive a determination by the
State that the worker cannot reasonably
expect to secure suitable employment
by alternatives to being physically
present in the area of the job search,
such as by searching and interviewing
for employment by means of the
internet and other technology;
(5) Not previously have received a
relocation allowance under the same
certification; and
(6) Complete a 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. (1) An
AAW has completed a job search when
the worker either:
(i) Obtains a bona fide offer of
employment; or
(ii) Has, with State verification, as
provided in § 618.420(a)(2), contacted
each employer the worker planned to
contact, or to whom the State or other
one-stop partner referred the worker as
part of the job search.
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60241
(2) The job search is complete when
one of the actions in paragraph (b)(1) of
this section occurs, whichever comes
first. For purposes of paragraph (b)(1)(i)
of this section, ‘‘bona fide’’ means the
offer of suitable employment is made in
good faith by a prospective employer.
§ 618.420
Findings required.
(a) Findings by liable State. Before a
liable State may approve final payment
of a job search allowance, the liable
State must:
(1) Find that the AAW meets the
eligibility requirements for a job search
allowance specified in § 618.415(a)(1)
through (6); and
(2) Verify that the worker contacted
each employer the State certified or to
whom the State or one-stop center
referred the worker as part of the job
search and must find that the worker
completed the job search, as described
in § 618.415(b) within the time limits
stated in § 618.415(a)(6).
(b) Assistance by agent State. (1)
When an AAW files an application for
a job search allowance to conduct a job
search in an agent State, the agent State
in which the worker conducts the job
search is responsible for assisting the
worker in conducting the job search, for
assisting the liable State by furnishing
any information required for the liable
State’s determination of the claim, and
for paying the job search allowance.
(2) The agent State must cooperate
fully with the liable State in carrying
out its activities and functions with
regard to such 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, or a bona fide offer of
suitable employment.
§ 618.425 Amount of a job search
allowance.
(a) Computation. The job search
allowance is 90 percent of the total costs
of an AAW’s travel (as defined in
paragraph (a)(1) of this section) and
lodging and meals (as defined in
paragraph (a)(2) of this section), up to
the limit in paragraph (b) of this section:
(1) Travel. The worker’s allowable
travel expenses may not exceed 90
percent of the prevailing cost per mile
by privately owned vehicle under 41
CFR chapters 300 through 304, the
Federal Travel Regulation (FTR), found
at https://www.gsa.gov/, for round trip
travel by the usual route from the
worker’s home to the job search area,
though other forms of transportation
may be utilized.
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(2) Lodging and meals. The worker’s
allowable lodging and meals costs
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 FTR, found at
https://www.gsa.gov/, for the worker’s
job search area.
(b) Limit. The AAW’s total job search
allowance under a certification may not
exceed $1,250, no matter how many job
searches they undertake. If the worker is
entitled to be paid or reimbursed by
another source for any of these travel,
lodging, and meals expenses, the State
must reduce the job search allowance by
the amount of the reimbursement.
(c) Choice of mode of transportation.
With respect to the limits established in
paragraph (a)(1) of this section, an AAW
may elect to use a different mode of
transportation than the one for which
the State calculated the applicable
reimbursement amount. However, the
State must limit the reimbursement to
the worker to the amount calculated
under paragraph (a)(1) of this section.
§ 618.430 Determination and payment of a
job search allowance.
(a) Determinations. The State must
promptly make and record
determinations necessary to assure an
AAW’s eligibility for a job search
allowance. Sections 618.820
(determinations and notice) and 618.828
(appeals and hearings) apply to these
determinations. States must include
copies of such applications and all
determinations by the State in the
AAW’s case file.
(b) Payment. If the AAW makes a
timely application, is covered under a
certification, and is otherwise eligible,
the State must make payment promptly
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 State
determines that the AAW is eligible for
a job search allowance, it may advance
the worker up to 60 percent of the
estimated amount of the job search
allowance subject to the limit in
§ 618.425(b), but not exceeding $750,
within 5 days before the commencement
of a job search. The State must deduct
the advance from any payment under
paragraph (b) of this section.
(d) Worker evidence. Once the AAW
has completed a job search, they must
certify to the State as to the employer
contacts made and must provide
documentation of expenses in
accordance with FTR and Uniform
Guidance at 2 CFR part 200, which may
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include receipts for all lodging,
purchased transportation, or other
expenses. The State must make an
adjustment if the amount advanced is
less or more than the amount to which
the worker is eligible under this section.
§ 618.435 Job search program
participation.
(a) Requirements. An AAW who
participates in an approved job search
program (JSP), may receive
reimbursement for necessary expenses
of subsistence and transportation
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 §§ 618.420 and
618.430.
(b) Approved JSP. A State may
approve a JSP if:
(1) The JSP is provided through
WIOA, the public employment service,
or any other Federal- or State-funded
program, and meets the definition
provided in § 618.110; or
(2) The JSP is sponsored by the firm
from which the AAW has been
separated.
(c) JSP allowances. Subsistence and
transportation costs, whether inside or
outside the AAW’s commuting area,
must be approved for workers
participating in JSPs in accordance with
§ 618.640(a) and within available State
funding levels.
§ 618.440 Applying for a relocation
allowance.
(a) Forms. To receive a relocation
allowance, an AAW must apply to the
State using the State’s process.
(b) Submittal. An AAW who has a
total or partial separation may apply for
a relocation allowance after the
Department has issued a certification
covering the worker. The worker must
apply for a relocation allowance and the
State must approve the worker for a
relocation allowance before the
relocation begins. The State must make
a timely determination on a relocation
application submitted to allow the
worker to promptly begin the relocation.
§ 618.445 Eligibility for a relocation
allowance.
(a) Conditions. To be eligible for a
relocation allowance, the AAW must:
(1) File an application before either:
(i) The later of the 425th day after the
date of the certification under which the
worker is covered, or the 425th day after
the date of the worker’s last total
separation; or
(ii) The 182nd day after the date the
worker concluded training;
(2) Be an AAW totally separated from
adversely affected employment when
the relocation begins;
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(3) Not have already received a
relocation allowance under the same
certification;
(4) Relocate within the United States
but outside the worker’s commuting
area;
(5) Receive a determination by the
State that the worker has no reasonable
expectation of securing suitable
employment in the commuting area, and
has obtained either suitable
employment or employment that pays a
wage of at least the 75th percentile of
national wages, as determined by the
National Occupational Employment
Wage Estimates, and otherwise meets
the suitable employment requirements,
or a bona fide offer of such employment,
in the area of intended relocation;
(6) Begin the relocation as promptly
as possible after the date of certification
but no later than:
(i) 182 days after the worker filed the
application for a relocation allowance;
or
(ii) 182 days after the conclusion of an
approved training program, if the
worker entered a training program that
received supplemental assistance
approved under § 618.640(c)
(subsistence payments) and (d)
(transportation payments), for training
outside the worker’s commuting area;
and
(7) Complete the relocation, as
described in § 618.460(f), within a
reasonable time as determined in
accordance with FTR with the State
giving consideration to, among other
factors, whether:
(i) Suitable housing is available in the
area of relocation;
(ii) The worker can dispose of the
worker’s residence;
(iii) The worker or a family member
is ill; and
(iv) A member of the family is
attending school, and when the family
can best transfer the member to a school
in the area of relocation.
(b) Job search allowances. The State
may not approve a relocation allowance
and a job search allowance for an AAW
at the same time. However, if the worker
has received a job search allowance,
they may receive a relocation allowance
at a later time or receive a relocation
allowance as a result of a successful job
search for which the worker received a
job search allowance.
§ 618.450
Findings required.
(a) Findings by liable State. Before the
liable State may approve final payment
of a relocation allowance, the liable
State must make the following findings:
(1) That the AAW meets the eligibility
requirements for a relocation allowance
specified in § 618.445(a)(1) through (7)
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and is not also simultaneously receiving
a job search allowance as specified in
§ 618.445(b);
(2) That the worker submitted the
application for a relocation allowance
within the time limits specified in
§ 618.440(c);
(3) That the worker began and
completed the relocation within the
time limitations specified in
§ 618.445(a)(6) and (7); and
(4) That the worker obtained suitable
employment, or a bona fide offer of such
suitable employment, in the area of
intended relocation, in accordance with
§ 618.445(a)(5). The liable State must
verify (directly or through the agent
State) the suitable employment, or the
bona fide offer, with the employer.
(b) Assistance by agent State. (1)
When an AAW relocates to an agent
State, the agent State is responsible for:
(i) Assisting the worker in relocating
to the State, completing an application
for a relocation allowance with the
liable State, and paying the relocation
allowance; and
(ii) Assisting the liable State by
furnishing 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, or a
bona fide offer of suitable employment.
§ 618.455 Determining the amount of a
relocation allowance.
The AAW’s relocation allowance
includes the information in paragraphs
(a) thorugh (c) of this section, as
applicable:
(a) Reimbursement—(1) Travel. (i)
The State may reimburse the AAW for
up to 90 percent of the prevailing cost
per mile by privately owned vehicle
under the FTR, found at https://
www.gsa.gov/, for travel from their old
home to their new home.
(ii) Separate travel of a family member
or members who, for good cause and
with the approval of the State, must
travel separately to their new home,
may also be reimbursed. 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, job, or economic
circumstances.
(2) Lodging and meals. The State may
reimburse the worker for 90 percent of
lodging and meal expenses for the
worker and their family while they are
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in transit, but such costs may not exceed
the lesser of:
(i) The actual lodging and meals cost
to the worker and their family while
they are traveling; or
(ii) 50 percent of the prevailing per
diem allowance under the FTR, found at
https://www.gsa.gov/, for the relocation
area for those days while the worker and
their family are traveling.
(3) Movement of household goods. (i)
The State may reimburse the worker for
90 percent of the allowable costs of
moving the workers and family’s
household goods and personal effects in
accordance with the FTR (41 CFR
chapter 302). This includes 90 percent
of the costs of moving by the most
economical commercial carrier the State
can reasonably expect the worker 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
State must follow the specific
requirements of the FTR, found at
https://www.gsa.gov.
(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 as delineated in the FTR,
whichever is less, against loss or
damage in transit.
(iii) If more economical, the State 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. Any contract
for moving and insuring an AAW’s
household goods must provide that 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 FTR.
(4) Lump sum. As part of the
relocation allowance, the worker will
receive a lump sum equivalent to three
times their average weekly wage, not to
exceed $1,250.
(b) Reduction. If the AAW is eligible
to receive or has received moving
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60243
expenses from any other source for the
same relocation, the State must deduct
the amount received from the amount of
the relocation allowance as determined
in paragraphs (a)(1) through (3) of this
section.
(c) Limitation. In no case may the
State pay a travel allowance for the
AAW or a family member more than
once for a single relocation.
§ 618.460 Determinations and payment of
a relocation allowance.
(a) Determinations. The State must
promptly make and record
determinations necessary to assure an
AAW’s eligibility for a relocation
allowance. Sections 618.820
(determinations and notice) and 618.828
(appeals and hearings) apply to these
determinations. The State must include
copies of such applications and all
determinations by the State in the
AAW’s case file.
(b) Payment. If the AAW makes a
timely application, is covered under a
certification, and is otherwise eligible,
the State must make payment as
promptly as possible.
(c) Travel allowances—(1) Payment.
The State must pay the allowances
computed under § 618.455 10 days in
advance of, or at the time of, the AAW’s
scheduled departure to begin relocation.
The State must make the payment for a
family member approved for separate
travel 10 days in advance of, or at the
time of that family member’s scheduled
departure.
(2) Worker evidence. After an AAW
completes the relocation, they must
certify to the State the expenses
associated with the relocation, in
accordance with the FTR and Uniform
Guidance in 2 CFR part 200. This may
include receipts for all lodging,
purchased transportation, or other
expenses. If an advance the worker
received was more or less than the
actual allowance, the State must make
an appropriate adjustment and pay the
balance entitled, if any, or the worker
must repay any excess received, if any.
(d) Movement of household goods.
The State must pay the amount equal to
90 percent of the estimate of the costs
of moving the AAW’s household goods
by the most economical commercial
carrier the State can reasonably expect
the worker to use (as described in
§ 618.455(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 State must provide the worker with
an advance equal to 90 percent of the
estimated cost of the move, including
any other charges that the State has
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approved, such as insurance. The State
must advance the funds to the carrier
and insurer and deliver payment to the
worker 10 days in advance of, or at the
time of, the scheduled shipment.
(i) On completion of the move, as
determined under paragraph (f) of this
section, the worker must promptly
submit to the State 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,
they must reimburse the State for the
difference. If the advance the worker
received is less than 90 percent of the
actual moving costs approved by the
State, the State must reimburse the
worker for the difference.
(iii) If more economical, the State 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 § 618.455(a)(3)(iii).
(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,
the State must advance 90 percent of the
estimated cost for the use of the private
vehicle within 10 days in advance of the
scheduled move.
(ii) Truck and trailer rental. If the
move is by rental truck or rental trailer,
the State must advance 90 percent of the
estimated rental cost within 10 days in
advance of the scheduled move. The
State may make payment to either the
worker or the rental company.
(iii) House trailer. If a house trailer or
mobile home is moved by commercial
carrier, the State must advance 90
percent of the approved estimated cost
to the worker within 10 days in advance
of the scheduled move. The State may
make payment to either the worker or
the carrier.
(iv) Itemized receipt. Upon
completion of the move, the worker
must promptly submit an itemized
receipt to the State for payment of the
rental charges and fuel costs. If the
amount the worker received as an
advance is greater than 90 percent of the
actual moving costs, they must
reimburse the State for the difference. If
the advance the worker received is less
than 90 percent of the actual moving
costs approved by the State, the State
must pay the worker for the difference.
(3) Temporary storage. If temporary
storage, not to exceed 60 days, of
household goods and personal effects is
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necessary for the relocation, then the
State must advance 90 percent of the
approved estimated cost within 10 days
in advance of the scheduled move. The
State may make payment to either the
worker or the rental agency.
(e) Lump sum allowance. The State
must pay the lump sum allowance
provided in § 618.455(a)(4) when
arrangements for the relocation are
finalized, but not more than 10 days
before the earlier of the AAW’s
anticipated departure from their old
home, or the anticipated date of
shipment of the worker’s household
goods and personal effects.
(f) Relocation completed. An AAW
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 the
worker moves no household goods and
personal effects, then a worker
completes 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 on which the State must
consider the relocation completed.
Subpart E—Reemployment Trade
Adjustment Assistance
§ 618.500
Scope.
This subpart provides the rules for
RTAA. RTAA, authorized under sec.
246 of the Act, provides 50 percent of
the difference between the wages
received by the AAW at the time of
separation from adversely affected
employment and the wages received by
the worker from reemployment for
workers aged 50 and older who meet the
eligibility criteria described in this
subpart. This subpart identifies the
eligibility criteria and the benefits
available to AAWs who are eligible for
RTAA.
§ 618.505
Individual eligibility.
(a) Eligibility criteria. An AAW from
a worker group certified under § 618.225
may elect to receive RTAA benefits if
the AAW:
(1) Is at least 50 years of age;
(2) Earns not more than $50,000 in
reemployment wages each calendar year
during the eligibility period, excluding
overtime pay, as further defined in
§ 618.520(a);
(3) Earns less than the AAW’s
annualized wages at separation, as
further defined in § 618.520(a);
(4)(i) Is employed on a full-time basis
as defined by the law of the State in
which the worker is employed and is
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not enrolled in any training program
approved under subpart F of this part;
or
(ii) Is employed at least 20 hours per
week and is enrolled in a TAA approved
training program; and
(5) Is not employed at the firm, as
further defined in paragraph (b) of this
section, from which the worker was
separated.
(b) Eligibility-relevant definitions. For
purposes of RTAA, the following
definitions apply:
(1) Firm. The State must determine on
a case-by-case basis what constitutes the
‘‘firm’’ for purposes of determining
RTAA eligibility based on the
certification. If the Department issues
the certification under subpart B of this
part for a worker group in an
appropriate subdivision of a firm, an
AAW in that group is not eligible for
RTAA upon a return to employment
within that subdivision, but may be
eligible for RTAA upon a return to
employment at another subdivision of
the firm. If, however, the Department
issues the certification for a worker
group composed of all workers from the
firm rather than from a subdivision,
then the worker is not eligible for RTAA
based on a return to employment in any
subdivision of that firm.
(2) Successor-in-interest. The State
must determine if the firm now
employing the AAW is the same firm as
the one from which the AAW was
separated.
(i) In making its determination, the
State should first review the
certification under which the worker
was covered, look for any amendments
to the certification, and compare the
name and address of the firm in the
certification to the name and address of
the firm in which the worker has found
reemployment. If they are the same, this
is, in most cases, dispositive: the firms
are the same and the worker is not
eligible for RTAA.
(ii) If, despite the information
gathered under paragraph (b)(2)(i) of
this section, it nonetheless remains
unclear whether the firms are the same,
the State may need to obtain further
information about the firm reemploying
the worker, from the employer and
otherwise, to make that determination.
To do so, the State should determine
whether the firm at which the worker
found reemployment is a ‘‘successor-ininterest’’ to the firm from which the
worker was separated. If the
reemploying firm merged with,
acquired, or purchased the assets of the
firm from which the worker was
separated, then the reemploying firm is
a successor-in-interest.
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(iii) If the reemploying firm does not
meet the criteria in paragraph (b)(2)(ii)
of this section, or if that information is
unavailable, then the State should
consider the factors identified in
paragraphs (b)(3)(i) through (vii) of this
section to determine whether the
reemploying firm is a successor-ininterest. If the State determines that the
worker returned to employment with a
successor-in-interest to the firm from
which the worker was separated, then
the worker is not eligible for RTAA. The
State must make the determination
based on the individual application of
the worker. A firm, together with any
predecessor or successor-in-interest, or
together with any affiliated firm
controlled or substantially owned by
substantially the same persons, is
considered a single firm. If the State
determines that the reemployment is
with a successor-in-interest the State
also must seek to identify any additional
members of the worker group and notify
them of their potential eligibility under
the TAA Program, as provided in
§ 618.816(e).
(3) Successor-in-interest factors. A
State may consider a firm a successorin-interest to another firm, if a majority
of the following factors are present:
(i) There is continuity in business
operations.
(ii) There is continuity in location.
(iii) There is continuity in the
workforce.
(iv) There is continuity in supervisory
personnel.
(v) The same jobs exist under similar
conditions.
(vi) There is continuity in machinery,
equipment, and process.
(vii) There is continuity in product/
service.
(c) Full-time employment. For
purposes of RTAA, full-time
employment is defined per State law in
which the reemployment occurs.
(1) If there is no State law addressing
the definition of full-time employment
referenced under paragraph (a)(4)(i) of
this section, the State must issue a
definition of full-time employment for
RTAA purposes.
(2) The State must verify
reemployment and do so in accordance
with State policies.
(3) Where an AAW seeks to establish
RTAA eligibility based upon more than
one job, the State must combine
employment hours in order to
determine whether the worker has the
number of hours needed to qualify for
RTAA.
(4) If the AAW is employed in more
than one State, the State must determine
full-time employment for the entire
duration of the AAW’s RTAA eligibility
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under a single certification under the
law of the State in which the AAW has
the lowest threshold of hours required
to meet the definition of full-time
employment.
(d) Relevance of UI eligibility. UI
eligibility is not a requirement for RTAA
eligibility.
(e) Eligible employment. (1)
Employment for purposes of paragraph
(a)(4) of this section must be covered
employment under State law; however,
employment may not include activity
that is unlawful under Federal, State, or
local law.
(2) Work involving wages plus
commission or piece work may be
considered qualifying employment for
the purpose of establishing RTAA
eligibility, if it otherwise meets the
criteria in paragraph (e)(1) of this
section.
(3) For purposes of meeting the
requirements of paragraphs (a)(4)(i) and
(ii) of this section, employment may
include one or more jobs unless, in the
case of paragraph (a)(4)(i) of this section,
the law of the State in which the AAW
is employed provides otherwise.
(4) A State must count hours in which
an AAW is on employer-authorized
leave as hours of work for purposes of
meeting the requirements of paragraphs
(a)(4)(i) and (ii) of this section unless, in
the case of paragraph (a)(4)(i) of this
section, the law of the State in which
the worker is employed provides
otherwise.
§ 618.510 Eligibility period for payments of
Reemployment Trade Adjustment
Assistance and application deadline.
(a) Adversely affected worker who has
not received TRA. (1) In the case of an
AAW who has not received TRA, the
worker may receive benefits as
described in § 618.520(a) for a period
not to exceed 104 weeks beginning on
the earlier of:
(i) The date on which the worker
exhausts all rights to UI based on the
separation of the worker from the
adversely affected employment that is
the basis of the certification; or
(ii) The date on which the worker first
begins qualifying reemployment as
described in § 618.505(e).
(2) Where a worker has more than one
separation from adversely affected
employment, the relevant separation for
determining the date on which the
‘‘worker exhausts all rights to UI’’
referenced in paragraph (a)(1)(i) of this
section is the worker’s last separation
from adversely affected employment
that qualifies the worker as an AAW.
The Department uses the last separation
because that separation is the one that
triggers the worker’s application for
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RTAA. Accordingly, the State must
determine the worker’s last separation
for lack of work from adversely affected
employment before the RTAA
application. This principle applies only
to the determination of the eligibility
period and does not apply to the
calculation of RTAA payments, where
wages at separation are defined as the
annualized hourly rate at the time of the
most recent separation, as explained in
§ 618.520(a).
(b) Adversely affected worker who has
received TRA. In the case of an AAW
who has received TRA, the worker may
also receive RTAA benefits based on the
same certification for a period of 104
weeks beginning on the date on which
the worker first begins qualifying
reemployment, reduced by the total
number of weeks for which the worker
received such TRA.
(c) Applicable dates. To make the
RTAA determination, the State will
need to know the applicable dates for
the AAW: The date of reemployment
and either the date the worker
exhausted all rights to UI, or the dates
the worker began and ended receipt of
TRA before the date of reemployment.
These dates must occur within the 104week eligibility period identified in the
Act.
(d) Age of AAW when obtaining
RTAA-qualifying employment. An AAW
may obtain employment before turning
50 years old and receive RTAA benefits
after turning 50 years old, if the
employment is determined to be RTAAqualifying reemployment, as provided at
§ 618.505(e), and the RTAA eligibility
period established after obtaining such
employment has not expired when the
individual turned 50 years old.
(e) Exception to filing deadline and
eligibility periods. The filing deadline
and eligibility periods in paragraphs (a)
and (b) of this section do not apply
where:
(1) A negative determination on a
petition filed under subpart B of this
part has been appealed to the USCIT;
(2) A certification of the worker group
covered by that petition is later made;
and
(3) The delay in the certification is not
attributable to the petitioner or the
AAW.
(f) Reasonable accommodation of
filing deadline and eligibility periods. In
the event the filing deadline and
eligibility periods in paragraphs (a) and
(b) of this section do not apply because
the certification meets the conditions in
paragraph (e) of this section, the filing
deadline and eligibility periods for
RTAA will be extended by the State for
the period necessary to make RTAA
reasonably available to AAWs.
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§ 618.515 Continuing eligibility and timing
of payments.
(a) Continuing eligibility for RTAA. (1)
Changing jobs during reemployment
does not disqualify an otherwise eligible
AAW from receiving subsequent RTAA
payments for the remainder of the 104week (2-year) eligibility period if the
new reemployment meets the
requirements of § 618.505.
(2) An AAW already receiving RTAA
payments who has a period of
unemployment will not be eligible to
receive RTAA for that period. Upon
reemployment, the AAW must notify
the State. If the new reemployment
meets the requirements of § 618.505 and
the worker meets all other eligibility
requirements in this part, the AAW will
be eligible to receive RTAA in
accordance with the requirements of
this section for the remaining portion of
the 104-week (2-year) eligibility period.
(3) If during a calendar year during
the 2-year eligibility period an AAW’s
cumulative wages exceed $50,000, the
AAW will no longer be eligible to
receive additional RTAA payments
within that calendar year. The AAW
will be eligible for RTAA benefits in the
next calendar year and RTAA payments
will resume until wages exceed $50,000
or until the $10,000 benefit limit is
reached.
(b) Timing of RTAA payments. The
State must make RTAA payments on a
regular basis, either weekly, biweekly,
or monthly, for no more than a 104week (2-year) period for an AAW under
any one certification, beginning no
earlier than the first day of
reemployment that satisfies the
requirements of § 618.505. An AAW
may receive retroactive payments, in a
lump sum, for payments for which the
AAW was eligible, but for which the
AAW had not yet applied.
(c) Periodic verification of
employment and reemployment wages.
No less than once a month, the State
must review whether an AAW receiving
RTAA payments continues to meet the
eligibility requirements of § 618.505 and
determine whether changes have
occurred in the AAW’s reemployment
wages, as described in § 618.520(a).
(d) Change in reemployment wages.
The State must recompute the
appropriate amount of the RTAA
payments if, during its review under
paragraph (c) of this section, it
determines that an AAW’s
reemployment wages have changed.
(1) If reemployment wages exceed
$50,000 in a calendar year during the
eligibility period, then the State must
immediately issue a determination that
the AAW is ineligible for further RTAA
payments, notify the AAW of this
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determination, and cease such RTAA
payments.
(2) If reemployment wages change but
do not exceed $50,000 in a calendar
year during the eligibility period then
the RTAA payment must be recomputed
every time such a change in
reemployment wages occurs. The State
must then continue periodic verification
in accordance with paragraph (c) of this
section, or recommence periodic
verification if RTAA payments resume
in the second calendar year after such
scenario as described in paragraph (a)(3)
of this section occurs.
§ 618.520 Benefits available to eligible
adversely affected workers.
(a) Payment. A RTAA-eligible AAW
may receive a maximum of $10,000 over
a period of not more than 104 weeks (2
years). If the AAW received TRA, each
week of TRA received reduces the total
weeks of RTAA available by 1 week and
reduces the total RTAA payment
amount available in proportion to the
reduction in the number of total weeks.
(1) Total amount of benefits. RTAA
supplements a worker’s wages for up to
104 weeks (2 years) (reduced by the
number of weeks of TRA received) or
$10,000 (reduced in proportion to the
reduction in the number of total weeks
of TRA received), whichever occurs
first, by an amount equal to the
annualized wage differential as
computed under paragraph (a)(2) of this
section for an AAW employed full-time
or paragraph (a)(3) of this section for an
AAW employed less than full-time.
(2) Annualized wage differential for
initial eligibility of an AAW employed
full-time. This amount is equal to 50
percent of: The AAW’s annualized
separation wages (as computed under
paragraph (a)(2)(i) of this section) minus
the amount of the AAW’s annualized
reemployment wages (as computed
under paragraph (a)(2)(ii) of this
section).
(i) Annualized separation wages are
the product of the AAW’s hourly rate
during the last full week of the AAW’s
regular schedule in adversely affected
employment, multiplied by the number
of hours the AAW worked during the
last full week of such employment,
multiplied by 52. The computation of
annualized wages at separation excludes
overtime, employer-paid health
insurance premiums, and employer
pension contributions, as well as
bonuses, severance payments, buyouts,
and similar payments not reflective of
the AAW’s weekly pay. [(hourly rate ×
hours worked) × 52]
(ii) Annualized reemployment wages
are the product of the AAW’s hourly
rate during the first full week of
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reemployment, multiplied by the
number of hours the AAW worked
during the first full week of such
reemployment, multiplied by 52
[(hourly rate × hours worked) × 52]. If
the AAW’s wages from reemployment
change during the eligibility period,
then the State must recompute the
AAW’s annualized wages from
reemployment at the new hourly wage
and must likewise recompute the
appropriate RTAA payment as required
by § 618.515(d). The computation of
annualized wages from reemployment
excludes overtime, employer-paid
health insurance premiums, and
employer pension contributions, as well
as bonuses, severance payments,
buyouts, and similar payments not
reflective of the AAW’s weekly pay.
(3) Annualized wage differential for
initial eligibility of an AAW employed
less than full-time. This amount, for an
AAW employed at least 20 hours per
week and enrolled in TAA approved
training, is the annualized wages as
computed under paragraph (a)(2) of this
section multiplied by the ratio of the
AAW’s number of weekly hours of
reemployment to the AAW’s number of
weekly hours of employment at the time
of separation, but in no case more than
50 percent.
(4) Adjustment to total amount of
RTAA benefits for AAWs who received
TRA. A State must adjust of the
maximum RTAA benefit for an RTAAeligible AAW who has received TRA.
The RTAA-eligible AAW may receive
up to the adjusted RTAA benefit as
described in this section within the
eligibility period as provided in
§ 618.510(b). RTAA eligibility is
terminated once the AAW reaches either
the number of weeks permitted
pursuant to § 618.510 or the adjusted
RTAA benefit. The adjusted RTAA
benefit is calculated by subtracting the
number of TRA paid weeks from the
104-week RTAA eligibility period to
determine the percentage of reduced
weeks that payments may be made. The
maximum payable benefit of $10,000 is
then reduced by the same percentage.
Once the reduction in RTAA payable
weeks and the reduction in the RTAA
total payable are reduced by the same
percentage, they become the new
maximum number of payable weeks and
maximum payable benefit.
(b) Training and related services.
Recipients of RTAA are eligible to
receive training approved under subpart
F of this part and employment and case
management services under subpart C of
this part.
(c) Job search and relocation
allowances. Recipients of RTAA are
eligible to receive job search and
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relocation allowances under subpart D
of this part, subject to the eligibility
requirements and rules of subpart D.
(d) HCTC. Recipients of RTAA are
eligible to apply for or claim the HCTC,
if available.
(e) TRA. Once an AAW has received
a payment under RTAA, they are no
longer eligible for TRA under the same
petition. Receipt of TRA prior to RTAA
will result in a reduction of RTAA
benefits as described at paragraph (a)(4)
of this section.
§ 618.525 Determinations,
redeterminations, and appeals.
(a) Determinations, redeterminations,
and appeals. States must apply the
requirements of §§ 618.825 (covering
determinations and notice) and 618.835
(covering hearings and appeals),
respectively, to all determinations,
redeterminations, and appeals under
this subpart.
(1) Before issuing a determination or
redetermination, the State must verify
and document the AAW’s age,
reemployment, and wages in
determining whether the worker has
met eligibility requirements of
§ 618.505(a).
(2) A determination of eligibility
issued to an AAW must include a notice
that the benefit amount will be regularly
recomputed (as required by
§ 618.515(d)) and will change if the
eligible AAW’s reemployment wages
change.
(3) An AAW denied individual
eligibility based on a first reemployment
may file a new application for a
subsequent reemployment.
(4) A State may approve an RTAA
payment retroactively if an AAW
becomes reemployed before the
Department issues a certification under
subpart B of this part, provided that the
AAW otherwise meets the eligibility
requirements of § 618.505(a).
(b) Recordkeeping requirements. The
recordkeeping and disclosure of
information requirements of § 618.852
apply to the State’s administration of
RTAA.
§ 618.530 Reductions of Reemployment
Trade Adjustment Assistance payments;
priority of payments.
(a) Ordered child support payments.
State laws regarding deductions of
payments from UI, TRA, and RTAA
must comply with the Social Security
Act (SSA). SSA sec. 303(e)(1) defines
child support obligations as only
including obligations which are being
enforced pursuant to a plan described in
sec. 454 of SSA which has been
approved by the Secretary of Health and
Human Services under part D of title IV
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of SSA. SSA does not otherwise permit
deductions for alimony or for child
support.
(b) Priority of UI payments. RTAA
does not fit into priority of payments
under UI because RTAA is related to
employment, not unemployment. UI
and RTAA are two separate programs
that operate independently of one
another.
Subpart F—Training Services
§ 618.600
Scope.
This subpart sets forth the conditions
and procedures under which a tradeaffected worker may apply for and
receive training to help secure
reemployment. Training provided under
this subpart must, at a reasonable cost
and as quickly as possible, assist a
trade-affected worker in obtaining the
necessary skills to have a reasonable
expectation of reemployment. All else
being equal, States should prefer
training that replaces 100 percent or
more of a trade-affected worker’s wages
in adversely affected employment or
that qualifies as suitable employment.
§ 618.605
General procedures.
(a) Assessments. The State must
ensure and document that every tradeaffected worker has an initial
assessment and that a comprehensive
and specialized assessment is made
available, as described in subpart C of
this part. If a worker refused to take an
assessment, the information necessary
to determine eligibility for training must
be documented. If a trade-affected
worker has an IEP, the assessment
results must support the training
program set out in the worker’s IEP, as
described in subpart C of this part,
before an application for training is
approved. As with assessments, if a
worker refused to develop an IEP, the
information necessary to determine
eligibility for training must be
documented.
(b) Applications. Applications for
training, including requests for TAA
Program-funded transportation and
subsistence payments, must be made to
the State in accordance with any
policies and procedures established by
the State.
(c) Determinations. Decisions on
selection for, approval of, or referral of
a trade-affected worker to training,
including whether to provide TAA
Program-funded transportation and
subsistence payments, under this
subpart, or a decision with respect to
any specific training or nonselection,
nonapproval, or nonreferral for any
reason is a determination to which
§§ 618.820 (determinations and notice),
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60247
618.824 (liable and agent State
responsibilities), and 618.828 (appeals
and hearings) apply.
(d) Training opportunities. (1) The
State must explore, identify, and secure
training opportunities to ensure tradeaffected workers return to employment
as soon as possible. States must use all
necessary and reasonable means to find
alternatives when local training
resources cannot adequately train tradeaffected workers for reemployment.
Training resources may be inadequate
when they cannot train workers quickly,
or at a reasonable cost, or equip workers
with skills that meet the demands of the
job market.
(2) When available training is
inadequate, TAA Program funds may be
used to create customized, group
training opportunities in response to a
particular dislocation event. Funds may
be used for trainings that provide
intensive remedial education classes,
English language training, or
contextualized occupational training,
which combines academic and
occupational training. These group
trainings must adhere to the principles
described in § 618.600.
(3) States are required to coordinate
with other public and private agencies,
in cooperation with local workforce
development boards (LWDBs)
established under WIOA, to ensure a
wide-range of training opportunities are
available to trade-affected workers in
demand occupations.
(e) Timing of application and
approval of training. A trade-affected
worker may apply for training and a
State may approve training at any time
after the certification date on which
their worker group is certified under
subpart B of this part, without regard to
whether such worker has applied for or
exhausted all rights to any UI to which
the worker is entitled.
§ 618.610
Criteria for approval of training.
The State must consult the tradeaffected worker’s assessment results and
IEP, if available, as described
respectively under §§ 618.345 and
618.350, before approving an
application for training. Training must
be approved for a trade-affected worker
if the State determines that all of the
criteria in paragraphs (a) through (f) of
this section are met:
(a) Criterion 1. There is no suitable
employment available for the tradeaffected worker.
(1) There is no suitable employment
available for a trade-affected worker in
either the commuting area or another
area outside the commuting area to
which the worker intends to relocate,
and there is no reasonable prospect of
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such suitable employment becoming
available for the worker in the
foreseeable future.
(2) If a training program, or an
application for training, is denied under
paragraph (a)(1) of this section, the State
must document the availability of
suitable employment through traditional
and real-time labor market information
including, but not limited to,
projections data, job postings, and job
vacancy surveys.
(b) Criterion 2. The trade-affected
worker would benefit from appropriate
training.
(1) The worker would benefit from
appropriate training when training,
skills training, or remedial education
would increase the likelihood of
obtaining employment. Appropriate
training should improve the worker’s
chances of obtaining employment at
higher wages than in the absence of
training or place them on a career
pathway to do so.
(2) The worker must have the
knowledge, skills, and abilities to
undertake, make satisfactory progress
in, and complete the training program.
(c) Criterion 3. There is a reasonable
expectation of employment following
completion of such training. Given the
labor 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 trade-affected
worker is likely to find employment,
using the skills and education acquired
while in training, upon completion of
approved training. The labor market
conditions considered must be limited
to those in the worker’s commuting
area, or in the area where the worker
intends to relocate.
(1) ‘‘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 program. When
initially approving such training, there
must be a projection, based on labor
market information, of employment
opportunities expected to exist at the
time of completion of the training
program.
(2) The State must measure expected
job market conditions using pertinent
labor market data, including but not
limited to job order activity, short-term
projections data, job vacancy surveys,
business visitation programs, and local
and regional strategic plans. This labor
market information should be
documented in the trade-affected
worker’s case file. The State should also
work with the LWDBs and their onestop partners, especially business team
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members, to understand current labor
market conditions and opportunities for
work-based learning.
(3) When a worker desires to relocate
within the United States, but outside the
worker’s present commuting area, upon
completion of training, the State must
document the labor market information,
described in paragraph (c)(2) of this
section, for 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 the worker’s commuting area
or in an area to which they desire to
relocate. A limited demand for such an
occupation does not preclude the
approval of training in an occupation
where the State has determined that
there is a reasonable expectation that
the worker can secure employment in
that occupation. States must verify with
businesses in the commuting area or in
the area of intended relocation that
demand exists for an individual with
such training. These efforts must be
documented in the trade-affected
workers case file. Before approving
training in occupations with limited
demand, the State must consider the
number of individuals currently
enrolled in training that are likely to
meet that demand before enrolling
additional workers in training for that
occupation.
(5) A State may approve a training
program in an occupation if it finds that
there is a reasonable expectation that
the training will lead to selfemployment in the occupation for
which the worker requests training and
that such self-employment will provide
the worker with wages or earnings at or
near their wages in adversely affected
employment.
(6) Training programs that consist
solely of OJT or contain an OJT
component are not approvable if they
are not expected to lead to suitable
employment, with the employer
providing the OJT, in compliance with
sec. 236(c)(1)(B)(i) of the Act.
(d) Criterion 4. Training is reasonably
available to the trade-affected worker. In
determining whether training is
reasonably available, States must first
consider training opportunities
available within the worker’s
commuting area. States may approve
training outside the commuting area if
none is available at the time in the
worker’s commuting area. Whether the
training is in or outside the commuting
area, the training program must be
available at a reasonable cost as
prescribed in paragraph (f) of this
section.
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(e) Criterion 5. The trade-affected
worker is qualified to undertake and
complete such training. States must
ensure the following:
(1) The worker’s knowledge, skills,
abilities, educational background, work
experience, and financial resources are
adequate to undertake and complete the
specific training program being
considered.
(2) Any initial assessment,
comprehensive and specialized
assessment, and IEP developed under
subpart C of this part must be consulted
to support the trade-affected worker’s
ability to undertake and complete the
training program.
(3) Where the worker’s remaining
available weeks of UI and TRA
payments will not equal or exceed the
duration of the training program, that
the worker will have sufficient financial
resources to support completion of the
training program within the time limits
noted in § 618.615(d). In making this
determination, the State must consider:
(i) The worker’s remaining weeks of
UI and TRA payments in relation to the
duration of the proposed training
program;
(ii) Other sources of income support
available to the worker, including
severance, earnings of other family
members, and other family resources;
(iii) Other fixed financial obligations
and expenses of the worker and family;
(iv) The availability of Federal student
financial assistance or any State-funded
student financial assistance or any
private funding designated for student
financial assistance including, but not
limited to, nongovernmental
scholarships, awards, or grants; and
(v) Whether or not the worker is
employed while attending training.
(4) The State must document whether
or not the trade-affected worker has
sufficient financial resources to
complete the training program that
exceeds the duration of UI and TRA
payments.
(5) If a worker has insufficient
financial resources to complete the
worker’s proposed training program that
exceeds the duration of UI and TRA
payments, then the State must not
approve that training program and must
instead consider other training
opportunities available to the worker.
(f) Criterion 6. Such training is
suitable for the trade-affected worker
and available at a reasonable cost.
(1) Suitable for the worker. The
training program being considered must
address the criteria set out in paragraphs
(e)(1) and (2) of this section and be
determined by the State to be
appropriate given the worker’s
knowledge, skills and abilities,
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background, and experience relative to
the worker’s employment goal, and
criteria set out in paragraph (c) of this
section.
(2) Available at a reasonable cost. (i)
Costs of a training program may include,
but are not limited to, tuition and
related expenses (e.g., books, tools,
computers and other electronic devices,
internet access, uniforms and other
training-related clothing such as goggles
and work boots, laboratory fees, and
other academic fees required as part of
the approved training program) as well
as supplemental assistance (subsistence
expenses and transportation expenses as
described in § 618.640(c) and (d)). States
must pay the costs of initial licensing
and certification tests and fees where a
license or certification is required for
employment.
(A) The State must ensure and
document that the training program
costs are reasonable by researching costs
for similar training programs, whether it
is classroom or work-based training.
(B) Related expenses must be
necessary for the worker to complete the
training program. Other options should
be explored before purchasing
equipment or related materials.
(ii) Available at a reasonable cost
means that training must not be
approved at one provider when, all
costs being considered, training better or
substantially similar in quality, content,
and results can be obtained from
another provider at a lower total cost
within a similar time frame. Training
must not be approved when the costs of
the training are unreasonably high in
comparison with the average costs of
training other workers in similar
occupations at other providers. The
State may approve a higher cost training
if that training is reasonably expected to
result in a higher likelihood of
employment, employment retention, or
greater earnings, or to return the worker
to employment in a significantly shorter
duration.
(iii) Training at facilities outside the
worker’s commuting area requiring
transportation or subsistence payments
that add substantially to the total cost of
the training program may not be
approved if other appropriate training is
available in the commuting area at a
lower cost, unless the exception
described in paragraph (f)(2)(ii) of this
section applies.
(iv) Approval of training under
paragraph (f) of this section (Criterion 6)
is also subject to the provisions of
§ 618.650.
§ 618.615
Limitations on training approval.
(a) One training program per
certification. (1) Except as provided
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under paragraph (d)(4) of this section,
no trade-affected worker may receive
more than one approved training
program under a single certification.
(2) A training program may be
amended, as needed, in compliance
with § 618.665.
(3) A training program may consist of
multiple forms of training, including
any or all of the types of training
identified in § 618.620, subject to any
restrictions or eligibility requirements
that may exist.
(b) Full-time or part-time training. A
State may approve a training program
on a full-time or part-time basis. A
trade-affected worker’s approved
training program may consist of either
part-time or full-time training, or a
combination of both. A worker may
switch from part-time to full-time
training or from full-time to part-time
training during the period of their
participation in the program. The
training program must be amended each
time this occurs, in accordance with
§ 618.665.
(1) Full-time. Full-time training means
that the training is in accordance with
the training provider’s established fulltime hours in a day (or credit hours) and
days in a week. If a worker in full-time
training has obtained employment that
is not suitable employment, then the
worker may choose to continue with
such employment while completing the
approved training program, provided
the worker is willing and able to
accommodate a full-time training
schedule under the training provider’s
standard for full-time training.
(2) Part-time. (i) A State may approve
part-time training. Part time training is
any training program that is not full
time in accordance with the established
standards of the training provider. The
maximum duration for approved
training provided in paragraph (d)(3)(i)
of this section also applies to part-time
training.
(ii) A worker enrolled in part-time
training is not eligible for TRA under
subpart G of this part, including a
worker who ceases full-time training to
engage in part-time training. The
training approval requirements found in
this section also apply to part-time
training.
(iii) A worker may participate in parttime training while employed in either
part-time or full-time employment.
(iv) The State must clearly inform the
worker, before the worker chooses parttime training, that TRA is not available
to workers in approved part-time
training and that the worker may lose
eligibility for the HCTC, if available,
while engaged in part-time training.
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60249
(v) As provided in § 618.780(b)(1)(i), a
worker may not be determined to be
ineligible or disqualified for UI, because
the worker is enrolled in training
approved under § 618.610, including
part-time training.
(vi) As further described at
§ 618.780(b)(1)(ii), State or Federal UI
statutes relating to the able, available, or
active work search requirements as well
as refusal to accept work will not
disqualify a worker for UI or other
program benefits, during any week of
training approved under § 618.610,
including part-time training.
(c) Previous approval of training
under other law. When a TAA Program
petition has been filed by or on behalf
of a group of workers but a
determination of group eligibility has
not been made, training may be
approved for a worker under another
State or Federal law or other authority.
Training approved for a worker under
another State or Federal law or other
authority is not training approved under
§ 618.610. After eligibility has been
determined, any such training may be
approved under § 618.610 (criteria for
approval of training), if it meets all of
the requirements and limitations of
§ 618.610 and the other provisions of
this subpart. Such approval must not be
retroactive for any of the purposes of
this part, including payment of the costs
of the training and payment of TRA to
the trade-affected worker participating
in the training, except in the case of a
redetermination or decision reversing a
training denial as addressed in
§ 618.828(d), in which case the approval
must be retroactive to the date of that
denial. Systems must be in place to
accommodate a change in funding
seamlessly, as appropriate, after TAA
Program training program approval is
obtained. The cost of training must shift
to the TAA Program at the next logical
break in training—such as the end of a
semester—for workers who become
eligible for the TAA Program and whose
training is approved under the TAA
Program. Training approved under other
programs may be amended by the TAA
Program to allow a worker additional
training in order to meet additional
retraining needs identified in the
worker’s IEP.
(d) Length of training. The State, in
determining whether to approve a
training program, must determine the
appropriateness of the length of
training, as follows:
(1) Time necessary to achieve desired
skill level. The training must be of
suitable duration to achieve the desired
skill level in the shortest possible time,
and not in excess of, the limits
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established in paragraph (d)(3) of this
section.
(2) Factors. Factors that may impact
the length of training include, but are
not limited to, the trade-affected
worker’s employment status (full- or
part-time) under § 618.630 (training of
reemployed workers not in suitable
employment), the need for supportive
services from partner programs, and
breaks in training due to class schedules
and availability.
(3) Duration. (i) Except as otherwise
provided for OJT, apprenticeship, and
the exception provided in paragraph
(d)(4) of this section, the maximum
duration for approvable training under
the TAA Program is 130 weeks.
(ii) Only weeks spent in actual
training are counted. Scheduled breaks
in training, as provided in § 618.760, are
not counted.
(iii) If a training program satisfies the
duration requirement of paragraph
(d)(3)(i) of this section but will extend
beyond the period during which TRA is
available, the State must determine,
under § 618.610(e)(3) (criteria for
approval of training), whether the
worker has sufficient personal resources
(i.e., funds for their living expenses) to
support themselves while completing
the training, while not requiring the
worker to obtain such funds as a
condition of training approval. The
worker must attest to the State that they
have sufficient resources to sustain
themselves while in training.
(4) Exception for certain workers who
perform a period of duty in the
Uniformed Services. A member of one of
the reserve components of the U.S.
Armed Forces who serves a period of
duty will have the period for training,
under paragraph (a)(3) of this section,
suspended upon being called up to
duty, provided the requirements
specified in paragraphs (a)(4)(i) through
(iii) of this section are met. Any such
reserve component member may either
resume training upon discharge from
active service for the training period
that remained at the time the reservist
left the training program to report 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 130-week period to
complete approved training. To be
eligible to resume, repeat, or begin a
new approved training program, the
reservist must meet the following
requirements:
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(i) Before completing training under
this subpart, the worker has given prior
oral or written notice of the active duty
service to the State, unless providing
such notice is precluded by military
necessity or is otherwise impossible or
unreasonable.
(ii) The returning service member
must apply to the State for training
within 90 days following release from
active duty service.
(iii) For purposes of the exception in
this paragraph (d)(4), period of duty
means:
(A) Serves on active duty for a period
of more than 30 days under a call or
order to active duty of more than 30
days; or
(B) In the case of a member of the
Army National Guard of the United
States or Air National Guard of the
United States, performs full-time
National Guard duty under 32 U.S.C.
502(f) for 30 consecutive days or more
when authorized by the President or the
Secretary of Defense for the purpose of
responding to a national emergency
declared by the President and supported
by Federal funds.
(e) Training outside the United States.
A trade-affected worker must not be
approved for training under this subpart
for any training that is conducted totally
or partially at a location outside the
United States or if the worker is
physically located outside the United
States while participating in training.
For distance training, this means both
the provider and participant must be
located within the United States.
§ 618.620
Selection of training program.
(a) Standards and procedures for
selection of training. The State must
document the standards and procedures
used to select training providers and
training(s) in which the training
program under this subpart will be
approved.
(1) In determining the types of
training to be approved and provided
under the standards, the State should
consult with partner agencies, including
State partner agencies (e.g., State
apprenticeship agencies or Federal
Offices of Apprenticeship located in the
States), WIOA one-stop partners, local
employers, appropriate labor
organizations, local educational
organizations, the LWDB, State and
local apprenticeship programs, local
advisory councils established under the
Strengthening Career and Technical
Education for the 21st Century Act (Pub.
L. 115–224 (2018), as codified at 20
U.S.C. 2301 et seq.), and postsecondary
institutions.
(2)(i) States may choose an eligible
training provider (ETP) established
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under WIOA sec. 122 without
establishing additional standards or
procedures under the TAA Program.
(ii) As provided in sec. 236 of the Act,
States must not limit training approved
under this section to only programs on
the ETP list under title I of WIOA.
(b) Training types. Eligible tradeaffected workers must be provided
training using either one, or a
combination of, the following methods:
(1) Work-based training, such as
apprenticeships, OJT, or customized
training, may be approved for AAWs.
Customized training with the worker’s
current employer may only be approved
for AAIWs if the training is for a
position other than their threatened
position. See § 618.655(c)(2). AAIWs
must not be approved for OJTs. See
§ 618.655(c)(1). The State must inform
the worker of the potential negative
effects of work-based training on TRA
and the HCTC, if available; or
(2) Institutional training, including
training at public area career and
technical education schools, as well as
community colleges, may be approved
alone or in combination with workbased training. This also includes
distance learning, including online
training, 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.
(i) A provider of the distance learning
must be based in the United States for
training provided to be approved. In
addition, the worker must be physically
within the United States when
participating in distance learning to
remain eligible for benefits under the
Act.
(ii) Distance learning is subject to all
training approval criteria described in
this subpart.
(iii) The State must establish and
monitor the milestones of a distancelearning program based on the worker’s
IEP, as described in subpart C of this
part, if available.
(iv) A worker who does not meet the
requirements or milestones of a
distance-learning program may be
determined to have ceased participation
in training, as described in
§ 618.780(b)(3)(ii).
(3) Higher education includes any
training or coursework at an accredited
institution, as described in sec. 102 of
the Higher Education Act of 1965, as
amended (20 U.S.C. 1002), including
training or coursework for the purpose
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of obtaining a degree or certification, or
for completing a degree or certification
that the worker had begun previously at
an accredited institution of higher
education. Higher education may be
approved alone or in combination with
work-based training. The distance
learning requirements in paragraph
(b)(2) of this section also apply to this
paragraph (b)(3).
(c) Other training. In addition to the
training programs discussed in
paragraph (b) of this section, training
programs that may be approved under
§ 618.610 (criteria for approval of
training) include, but are not limited to:
(1)(i) Any program of remedial
education, including ABE courses and
other remedial education courses, ELA
courses, and HSE preparation courses.
(ii) Remedial education may occur
before, or while participating in, the
requested training program;
(2) Career and technical education;
(3) Any training program approvable
under § 618.610 for which all, or any
portion, of the costs of training the
trade-affected worker are paid:
(i) Under any other Federal or State
program other than the TAA Program; or
(ii) From any source other than this
part;
(4) Any training program provided by
a State pursuant to title I of WIOA or
any training program approved by an
LWDB established under sec. 102 of
WIOA;
(5) Any program of prerequisite
education or coursework required by a
training provider before advancing to
further training; or
(6) Any other training program
approved by the State that complies
with this subpart.
(d) Advanced degrees. Training
programs that will lead to an advanced
degree may be approved; however, the
time limits described at § 618.615(a)(3)
must be met. States may not restrict
access to advanced degrees where the
other criteria of this subpart are met. All
training programs must be evaluated on
their individual merit.
§ 618.625 Payment restrictions for training
programs.
(a) Funding of training programs. The
costs of a training program approved
under the Act may be paid:
(1) Solely from TAA Program funds;
(2) Solely from other public or private
funds; or
(3) Partly from TAA Program funds
and partly from other public or private
funds.
(b) No duplication of costs allowed.
(1) Any use of TAA Program funds to
duplicate the payment of training costs
by another source is prohibited.
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(2) When the payment of the costs of
training has already been made under
any other Federal law, or the costs are
reimbursable under any other Federal
law and a portion of the costs has
already been paid under other such
Federal law, payment of such training
costs may not be made from TAA
Program funds.
(3) When the direct costs of a training
program approvable under § 618.610
(criteria for approval of training) are
payable from TAA Program funds and
are also wholly or partially payable from
any other source, the State must
establish procedures to ensure TAA
Program funds will not duplicate funds
available from the other source(s). This
preclusion of duplication does not
prohibit and should not discourage
sharing of costs under prearrangements
authorized under paragraph (c)(2) of this
section.
(c) Cost sharing permitted. (1) TAA
Program funds are the primary source of
Federal assistance to trade-affected
workers, as identified in § 618.804(h)(4).
If the costs of training a trade-affected
worker can be paid under the TAA
Program, no other payment for such
costs may be made under any other
provision of Federal law.
(2) States may share training costs
with authorities administering other
non-Federal, State, and private funding
sources. Sharing training costs with
other Federal sources may only occur if
TAA Program funds are not available to
cover the total cost of training, as
described in paragraph (d)(2)(ii) of this
section.
(3) Sharing the future costs of training
is authorized where prior costs were
paid from another source, but this
paragraph (c)(3) does not authorize
reimbursement from TAA Program
funds of any training costs that were
accrued before the date the training
program was approved under the TAA
Program.
(4) When a mix of TAA Program
funds and other funds are used for
paying the costs of a training program
approved under this subpart, the State
must enter into a prearrangement with
any entity providing the other source of
funds. Any such prearrangement must
contain specific commitments from the
other authorities to pay the costs they
agree to assume and must comply with
the nonduplication provisions
contained in this part.
(i) 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 the TAA
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60251
Program, workforce development, and
other programs.
(ii) Where training costs are shared
between the TAA Program and any
other funding source, the State must
enter into a prearrangement with the
other funding source to agree upon the
proportion of TAA Program funds and
other funds to be used to pay the costs
of a training program. A prearrangement
must be a specific, binding agreement
with the other source(s) to pay the costs
they agree to assume, and must be
entered into before any TAA Program
funds are obligated. If, after TAA
Program funds are already committed to
a training program, other funds become
available to pay for that training, the
State may decide to share the costs of
the remainder of training program or the
State may continue funding the training
program in full using TAA Program
funds. If the State decides to share the
costs, it must enter into a
prearrangement with respect to the
newly available funds. If the State
makes a change to how the training
program will be funded going forward,
the existing training program must be
amended in accordance with § 618.665.
(iii) Before approving any training
program under this subpart, which may
involve the sharing of training costs
under the authority of paragraph (a)(3)
of this section, the State must require
the worker to enter into a written
agreement with the State, under which
TAA Program 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.
(5)(i) A State may not take into
account Federal student financial
assistance, including Pell Grants, or any
funds provided under any other
provision of Federal law that are used
for purposes other than the direct
payment of training costs, even though
they may have the effect of indirectly
paying all or a portion of the training
costs.
(ii) States must ensure that upon the
approval of a training program under
this subpart, payments of Federal
student financial assistance cease to be
applied to the training participant’s
tuition or other training-related costs
covered by TAA Program funds.
(iii) If payments of Federal student
financial assistance or other training
allowances from other Federal funding
sources were made to the training
provider instead of the worker and were
applied towards the worker’s approved
training costs, the State must deduct the
amount of those other payments from
the amount of TAA Program funds
payable to the training provider in order
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to prevent duplication in the payment of
training costs.
(iv) A worker may use Federal student
financial assistance for other expenses,
as allowable under applicable rules for
such financial assistance.
(6) If the worker’s trade-affected firm
agrees to fund all or a portion of the
worker’s training costs, the State must,
if the training is otherwise approvable,
enter into a prearrangement with the
firm to assume any unfunded training
costs on the worker’s behalf.
(d) No training fees or costs to be paid
by trade-affected worker from TAA
Program funds. (1) A training program
must not be approved if the tradeaffected worker is required to reimburse
any portion of the costs of such training
program from TAA Program funds, or
from wages paid under such training
program.
(2)(i) A training program must not be
approved if the trade-affected worker is
required to pay any of the costs of the
training program from funds belonging
to the worker, including funds from
relatives or friends, or from personal or
educational loans that will require
repayment.
(ii) As required by § 618.940, if the
Department determines that the amount
of funds necessary to provide Training
and Other Activities (TaOA) will exceed
the annual cap under § 618.900 in a
fiscal year, the Department will
promptly inform the States. If a State
estimates that it will exceed all available
TAA Program training funds (including
TaOA funds remaining from current or
prior fiscal years) then the State must
seek funding from other sources (other
than from trade-affected workers),
including WIOA national dislocated
worker grants under part 687 of this
chapter to cover the costs of training
approved under § 618.610. To the extent
that a State is unable to fund training
costs from those other sources, the
agency may approve training where the
worker pays those unfunded costs.
Where the worker chooses to pay those
unfunded costs under this paragraph
(d)(2)(ii), the State is not liable for
paying those costs and must document
this prearrangement in the worker’s case
file. Where the worker chooses not to
pay the unfunded costs, the State must
waive the training requirement in
§ 618.720(g) on the basis that training is
not available, in order to preserve any
remaining Basic TRA eligibility under
§ 618.735(b)(3) (waiver of training
requirement for Basic TRA).
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§ 618.630 Training of reemployed tradeaffected workers not in suitable
employment.
(a) An AAW who obtains new
employment that is not suitable
employment and who has been
approved for a training program may
elect to terminate the employment,
reduce the hours worked in the
employment, or continue in full- or
part-time employment. Such a worker is
not 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 a participant in training is
considered to be in training under
§ 618.780(b) (disqualifications). If the
worker continues in full- or part-time
employment that is not suitable
employment while a participant in an
approved training program, the State
must inform the worker in writing that
such employment may have negative
effects on UI and TRA benefit amounts
and duration due to income earned from
the employment (and also because a
worker participating in part-time
training is not eligible for TRA), which
could also lead to the loss of the HCTC,
if available. The State must apply the
earnings disregard provisions in subpart
G of this part, as appropriate.
(b) An AAW who has been totally
separated as described in paragraph (a)
of this section may also be eligible for
job search and relocation allowances
under subpart D of this part.
§ 618.635
Work-based training.
(a) OJT—(1) Description. OJT is workbased training provided under contract
with an employer in the public,
nonprofit, or private sector to an AAW
who is employed by the employer. OJT
may be approved if the worker meets
the requirements under §§ 618.610,
618.615, and 618.665. The State must
determine that the OJT in question:
(i) Can reasonably be expected to lead
to suitable employment with the
employer offering the OJT;
(ii) Is compatible with the skills of the
worker;
(iii) Includes a curriculum through
which the worker will gain the
knowledge or skills to become proficient
in the job for which the worker is being
trained; and
(iv) Can be measured by standards or
targets that indicate the worker is
gaining such knowledge or skills.
(2) Related education. Related skills
training provided as part of the OJT
contract and sponsored by the employer
may be provided in conjunction with
the OJT. Such training may be provided
at the employment site, or at
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educational institutions, or other
locations. TAA Program funds can be
used to pay the OJT participant’s
expenses associated with the
educational or instructional component
(e.g., classroom and distance learning,
tools, uniforms, equipment, and books)
for an AAW’s participation in an OJT
program.
(3) Duration. 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 AAW is being
trained, taking into consideration the
skills requirements of the job for which
the AAW is being trained, the academic
and occupational skill level of the
AAW, and the work experience of the
AAW, as documented in the worker’s
IEP, if available. The duration of the
training must be long enough 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.
The OJT:
(i) Must not exceed the specific
vocational preparation required for the
occupation, as listed on O*NET
(www.onetonline.org); and
(ii) Must not exceed 104 weeks in any
case.
(4) Exclusion of certain employers.
The State may not enter into a contract
for OJT with an employer that exhibits
a pattern of failing to provide workers
receiving OJT from the employer with:
(i) Continued long-term employment
as regular employees; and
(ii) Wages, benefits, and working
conditions that are equivalent to the
wages, benefits and working conditions
provided to regular employees who
have worked a similar period of time
and are doing the same type of work as
workers receiving the OJT from the
employer.
(5) Reimbursement. (i) Pursuant to the
OJT contract, the employer is provided
reimbursement of not more than 50
percent of the wage rate of the OJT
participant, for the costs of providing
the training and additional supervision
related to the training.
(ii) The reimbursement for OJT must
be limited to the duration of approved
training as specified in the OJT contract.
(6) Approval of the costs of OJT. OJT
costs for an AAW may be approved by
a State 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 nonovertime work, wages, or
employment benefits) by the AAW;
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(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 AAW is
being trained;
(v) The employer has not terminated
the employment of any regular
employee or otherwise reduced the
workforce of the employer with the
intention of filling the vacancy by hiring
the AAW;
(vi) The job for which the AAW 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 AAW was
separated with respect to which the
AAW’s worker group is covered under
a certification rendered under subpart B
of this part;
(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
that failed to meet the requirements of
this section or the requirements of the
other Federal laws governing
employment practices; and
(ix) The employer has not taken, at
any time, any action that violated the
terms of this section with respect to any
other OJT provided by the employer for
which the State has made a payment
under the TAA Program.
(7) Payment of the costs of OJT. The
costs of OJT that are paid from TAA
Program funds must be paid in monthly
installments.
(8) TRA eligibility during OJT. Under
§ 618.780(c), an AAW may not be paid
TRA for any week during which the
worker is in OJT and, therefore, may be
ineligible for the HCTC, if available.
(9) RTAA eligibility during OJT.
Participants enrolled in OJT may be
eligible for RTAA. All the requirements
at subpart E of this part must be met.
(10) Use of WIOA funds for OJT. TAA
Program funds may be leveraged with
WIOA funds to provide a
reimbursement rate equal to that
allowable under WIOA. See WIOA sec.
134(c)(3)(H) (29 U.S.C. 3174(b)(3)(H)).
(11) No OJT for AAIWs. The State
must not approve OJT for AAIWs.
(b) Customized training. (1)
Customized training is designed to meet
the special requirements of a single
employer or a group of employers. The
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training may be conducted by a training
provider, a single employer, or group of
employers.
(2) Customized training must be
conducted with a commitment by the
employer or group of employers to
employ an AAW upon successful
completion of the training. For purposes
of customized training, a commitment
by the employer(s) to employ a worker
upon successful completion of the
training, as required by sec. 236(f)(2) of
the Act, means that the employer(s)
must enter into an agreement with the
State that describes the conditions that
must be met for successful completion
of the training and the expectation of
employment after the training is
completed.
(3) The employer must pay at least 50
percent for the cost of the training.
(4) For AAIWs, approval is limited to
customized training for other than their
current position in adversely affected
employment. See § 618.655(c)(2).
(c) Apprenticeship. Apprenticeship
includes registered apprenticeships
under the Act of August 16, 1937
(commonly known as the National
Apprenticeship Act; 50 Stat. 664,
chapter 663; 29 U.S.C. 50 et seq.), as
well as other training programs that
include a paid work-based learning
component and required educational or
instructional component that results in
the issuance of a recognized
postsecondary credential, which
includes an industry-recognized
credential.
(1) Duration. Apprenticeships are not
subject to the 104-week statutory
duration of OJT training limit. The
length of the paid work-based learning
component must not exceed 130 weeks.
However, the length of the educational
or instructional training component of
the apprenticeship may exceed 130
weeks and continue through the
scheduled completion of that specific
apprenticeship training.
(2) Eligible apprenticeship expenses.
TAA Program funds can be used to pay
for:
(i) The expenses associated with the
educational or instructional component
(e.g., classroom and distance learning,
tools, uniforms, equipment, and books)
for the apprentice; and
(ii) The sponsor may be reimbursed
not more than 50 percent of the
apprentice’s regular wage rate for the
cost of providing the training and
additional supervision related to the
work-based learning component
provided by the sponsor.
(3) Exclusion of certain sponsors. The
State may not enter into a contract for
apprenticeship with an employer and/or
apprenticeship sponsor that exhibits a
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pattern of failing to provide apprentices
with successful attainment of an
industry-recognized credential or the
apprenticeship completion certificate in
the case of registered apprenticeship, as
issued by the U.S. Department of Labor
or State apprenticeship agency.
(4) Approval of the costs of
apprenticeship—(i) Registered
apprenticeships under the National
Apprenticeship Act. Costs for an
apprenticeship program may be
approved by a State only if the
requirements of the National
Apprenticeship Act, 29 CFR parts 29
and 30, and Departmental
administrative guidance are met.
(ii) Other apprenticeships. Costs for
an apprenticeship program may be
approved by a State only if a
determination is made that:
(A) No currently employed worker is
displaced (including a partial
displacement, such as a reduction in the
hours of nonovertime work, wages, or
employment benefits) by the apprentice;
(B) Such training does not impair
existing contracts for services or
collective bargaining agreements;
(C) 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;
(D) No other worker is on layoff from
the same or any substantially equivalent
job for which the apprentice is being
trained;
(E) The sponsor has not terminated
the employment of any regular
employee or otherwise reduced the
workforce of the sponsor with the
intention of filling the vacancy so
created by hiring the apprentice;
(F) The job for which the apprentice
is being trained is not being created in
a promotional line that will infringe in
any way upon the promotional
opportunities of currently employed
workers;
(G) The training is not for the same
occupation as the apprentice’s adversely
affected employment;
(H) The sponsor has not received
payment under the TAA Program or
under any other Federal law for any
other apprenticeship provided by such
sponsor that failed to meet the
requirements of this section or the
requirements of the other Federal laws
governing employment practices; and
(I) The sponsor has not taken, at any
time, any action that violated the terms
of this section with respect to any other
apprenticeship provided by the sponsor
for which the State has made a payment
under the TAA Program.
(5) TRA and HCTC eligibility during
apprenticeships. Workers enrolled in an
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apprenticeship program, in most cases,
will not be able to access TRA income
support due to their income earned
through wages, but the State must still
make individual determinations on TRA
benefits. This could also impact HCTC
eligibility, if HCTC is available. States
must advise workers considering this
training option of these issues.
(6) RTAA eligibility during
apprenticeships. AAWs age 50 or older
enrolled in an apprenticeship program
may be eligible for RTAA under subpart
E of this part.
(7) Meaning of apprenticeship
sponsor. For purposes of paragraph (c)
of this section, a sponsor means any
person, association, committee, or
organization operating an
apprenticeship program and in whose
name the program is (or is to be)
registered or approved.
(8) State contract with apprenticeship
sponsor. The State must enter into a
contract with the sponsor that provides
the terms and conditions of the
apprenticeship.
§ 618.640
Supplemental assistance.
(a) General. Supplemental assistance
in the form of subsistence and
transportation payments must be
provided to a trade-affected worker
whose training program has been
approved under § 618.610 (Criteria for
approval of training), to defray
reasonable subsistence and
transportation expenses while the
worker attends training at a facility
outside the worker’s commuting area.
The need for such subsistence and
transportation payments must be
documented on the worker’s IEP, if
available, or in the worker’s case file.
Subsistence and transportation
payments may also be documented on a
training approval form, or other such
form as the State chooses, to ensure that
the supplemental assistance is
documented in the worker’s case file.
(b) Applications for supplemental
assistance. A trade-affected worker must
submit an application for subsistence or
transportation payments in accordance
with subpart H of this part and
processes established by the State. A
determination on an application
submitted under this section is subject
to §§ 618.820 (determinations and
notice) and 618.828 (appeals and
hearings).
(c) Subsistence payments—(1)
General. Subsistence payments must be
made for the reasonable costs of meals
and incidental expenses, and of separate
maintenance, which means maintaining
temporary living quarters, when the
training facility is located outside the
trade-affected worker’s commuting area.
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(2) Requirements for subsistence
payments. (i) A worker must be
reimbursed for subsistence only for the
period when they are not receiving or
authorized to receive reimbursement or
separate payments for such costs from
any other source.
(ii) Subsistence payments must not be
made for any day such worker receives
a daily commuting transportation
payment from TAA Program funds or
from any other source, except as
specified in paragraph (e) of this
section.
(iii) Subsistence payments must not
be made for any day of unexcused
absence from the training program, as
certified by the training provider.
(3) Amount of subsistence payments.
The State may make a subsistence
payment to a trade-affected worker only
for the lesser of:
(i) The worker’s actual per diem
expenses for subsistence; or
(ii) 50 percent of the prevailing per
diem allowance rate authorized under
the FTR (see 41 CFR chapters 300
through 304) for the location of the
training facility.
(4) Timing of subsistence payments.
The State must make subsistence
payments upon a worker’s completion
of a week of training, but may advance
a subsistence payment for a week if the
State determines that such advance is
necessary to enable the worker to
participate in the approved training.
(d) Transportation payments. A tradeaffected worker must be reimbursed for
transportation expenses when
commuting to and from a training
facility located outside the worker’s
commuting area. Transportation
expenses, funded by the TAA Program,
are payable only for the actual days
traveled. Mileage eligible for
reimbursement is, round-trip, from the
first mile outside the boundary of the
worker’s commuting area to the location
of the training facility.
(1) Transportation payments must not
be paid when:
(i) Transportation is arranged and
paid for by the State for one or more
workers;
(ii) Such payments are being provided
under any other law; or
(iii) The worker is authorized to be
paid or reimbursed for such expenses
from any other source.
(2) The daily transportation payment
may not exceed the amount of a daily
subsistence payment that would be
payable under paragraph (c)(3) of this
section if the worker resided
temporarily in the area of the training.
(3) In addition, while other forms of
transportation may be used,
transportation payments to a worker
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may not exceed the cost per mile at the
prevailing personal vehicle mileage rate
authorized under the FTR. See http://
www.gsa.gov.
(4) A worker must receive
transportation payments promptly after
completion of a week of approved
training, but at a minimum on a
monthly basis. These payments also
may be made in advance in order to
facilitate the worker’s attendance at the
training.
(e) When payment can be made for
both subsistence and transportation. A
trade-affected worker receiving
subsistence payments may also receive
transportation payments only:
(1) At the beginning of the training
that the worker is attending outside
their commuting area and at the end of
the training for travel back to the
worker’s commuting area; or
(2) When the worker fails, for
justifiable cause, as described in
§ 618.780(b)(3)(iii), to complete the
training outside their commuting area,
and must return home before the
scheduled end of the training.
(f) Adjustments to subsistence and
transportation payment advances. If the
State advances subsistence or
transportation funds, the State must
adjust subsequent subsistence and
transportation payments to take into
account the amount of the advance that
is more or less than the amount that the
trade-affected worker is entitled to
receive under paragraphs (c) and (d) of
this section.
(g) Worker evidence. The tradeaffected worker must provide receipts
for all lodging, purchased transportation
expenses, and meals.
§ 618.645 Voluntary withdrawal from a
training program.
(a)(1) The State must advise a tradeaffected worker who chooses to
withdraw from a TAA approved training
program that the withdrawal may,
subject to the requirements in subpart H
of this part, result in an overpayment.
(2) The State must advise a worker
who chooses to withdraw from a TAA
approved training program that the
withdrawal may, subject to the
requirements in subpart G of this part,
result in loss of eligibility for TRA.
(b) A trade-affected worker who
qualifies for an exception for service in
the Uniformed Services, under the
criteria set out in § 618.615(d)(4), may
voluntarily withdraw from a training
program.
(c) A trade-affected worker who
ceases participation in training for
justifiable cause, as described in
§ 618.780(b)(3)(iii) (disqualifications),
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may resume the approved training
program.
(d) The trade-affected 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 §§ 618.410 (job search
allowances) and 618.440 (relocation
allowances).
(e) If the trade-affected worker obtains
suitable employment before training is
completed yet remains in their training
program:
(1) The State must continue funding
the approved training program if:
(i) The State determines that training
completion serves the long-term
employment goals of the worker; and
(ii) Training benchmarks, described at
§ 618.660, continue to be satisfactorily
met.
(2) The State must consider whether
to amend the worker’s training program;
and
(3) The State must discuss with the
worker whether the training program
continues to serve a useful purpose.
§ 618.650 State standards and procedures
for establishing reasonable cost of training.
(a) A State is not prohibited from
setting a statewide limit or limits for
local workforce development areas on
the amount of training costs considered
reasonable and appropriate for training
programs. Any limit(s) must reasonably
take into account the costs of training
available in the local workforce
development areas throughout the State
and the expenditure must be prudent
under the standards of the Office of
Management and Budget’s (OMB’s)
Uniform Guidance (2 CFR 200.404) and
its attendant interpretive administrative
guidance. Additionally, States must
comply with the standards for
reasonableness in § 618.610(f)(2),
including those permitting States to
allow training other than the least-cost
option if the extra cost is justified by
better trade-affected worker outcomes or
a faster return to the workforce. If the
State chooses to implement a statewide
limit, it must arrive at a reasonable limit
based upon training costs throughout
the State, recognizing that costs may
vary significantly between urban areas
and rural areas. The State must also
develop and implement a method to
exceed the limit(s), which must require
the local area to secure State approval,
as described in paragraph (b) of this
section, before training is approved.
(b) The State must develop
transparent standards and procedures
that provide for prompt consideration of
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any request for approval of training
costs that exceed the established
training cost limit(s) set by the State
under paragraph (a) of this section. The
review standards developed by the State
under this paragraph (b) must allow for
approval of costs that exceed the
applicable training cost limit when a
training program that exceeds the cost
limit(s) will provide the most reasonable
way of returning a particular tradeaffected worker to employment at higher
wages—or on a career pathway to do
so—than in the absence of training.
(c) The State must propose an
alternative training program consistent
with the reasonable cost criteria, as
described at § 618.610, when a training
program is not approvable under the
established limits and does not meet the
requirements in paragraph (b) of this
section.
(d) The State must review any limits
established under paragraph (a) of this
section on an annual basis to determine
whether they are still appropriate, and
change or end such limits when they no
longer reasonably reflect the average
cost of training available in the local
workforce development areas
throughout the State.
(e) Whenever a State establishes,
changes, or ends State-established limits
on training costs payable under
paragraph (a) of this section, the State
must provide written notice and full
documentation supporting its action to
the Department for review.
(f) States are not required to establish
a limit on training costs.
§ 618.655 Training for adversely affected
incumbent workers.
(a) AAIW training. Pursuant to secs.
236(a)(1) and 247(18) of the Act, a State
may approve training for an AAIW, or
training for a worker before separation
occurs. An AAIW may apply for training
and a State may approve training at any
time after the date on which they are
determined to be individually
threatened with layoff without regard to
whether such worker has applied for or
exhausted all rights to any UI to which
the worker is entitled.
(b) Threat of layoff. A State may
determine that a worker has been
individually threatened with total or
partial separation when the worker has
received a notice of termination or
layoff from employment. Other
documentation of a threat of total or
partial separation from the firm or other
reliable source may be accepted.
(c) Approval of training. Except as
specified in this section, the provisions
of this subpart extend to AAIWs. The
following exceptions to the training
approval requirements apply to AAIWs:
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(1) The State may not approve OJT
under § 618.635(a) for AAIWs.
(2) Customized training for AAIWs
under § 618.635(b) may be approved
only if the training is for a position
other than the AAIW’s adversely
affected position.
(d) Disqualification and restrictions.
(1) The State must periodically verify
that the threat of total or partial
separation continues to exist for the
AAIW for the duration of the approved
training. This may be accomplished by
verifying with the AAIW’s employer
that the threat of separation still exists
before funding each subsequent portion
of the training.
(2) Funding of a training program
must cease upon the removal of the
threat. The AAIW must cease the
training upon the conclusion of the
most recently funded portion, semester
or quarter for which expenses have
already been accrued. No additional
funding will be available while the
threat of separation is removed. Funding
may resume for the original training
program that had been previously
approved upon a determination by the
State that the threat of separation has
been reestablished, or upon total or
partial separation from adversely
affected employment, if the
requirements under § 618.610 are still
met. The AAIW’s approved training
program must be amended, as
appropriate, in compliance with
§ 618.665.
(3) The one training program per
certification rule, as described under
§ 618.615, is applicable to AAIWs. Thus,
a training program begun prior to
separation and while under a threat of
layoff constitutes the one allowed
training program available to that
AAIW.
(4) The duration of training
limitations, at § 618.615(d)(3) are
applicable to AAIWs.
(5) An AAIW will not be eligible for
a new training program when total or
partial separation occurs; however, the
existing training may be amended under
the provisions of § 618.665.
(6) The State must not consider the
AAIW’s threatened employment to be
suitable employment under
§ 618.610(a).
(e) Separation from threatened
employment. (1) Upon a total or partial
separation from threatened
employment, an AAIW becomes an
AAW under the following conditions:
(i) The separation must occur prior to
the expiration of the certification period
under which they were determined to
be threatened; and
(ii) The total or partial separation
must be for lack of work.
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(2) When an AAIW becomes an AAW
under the conditions in paragraph (e)(1)
of this section:
(i) The State must amend the worker’s
approved training program, as described
in § 618.665; and
(ii) The State must determine what
other benefits under the TAA Program
the worker may now be eligible for,
including TRA. Any time spent in
training as an AAIW applies to the
duration limits contained in § 618.615.
§ 618.660
Training benchmarks.
(a) Requirement for training
benchmarks. A State must establish and
document training benchmarks, as
provided in paragraph (f) of this section,
for individual AAWs so that they can
meet Completion TRA eligibility
requirements, described at § 618.765.
The benchmarks must be established
when the worker enrolls in an approved
training program, so that the State can
monitor the worker’s progress toward
completing the approved training
duration limits established at § 618.615.
(b) Scope of requirement. Training
benchmarks must be established for all
but short-term training programs.
(c) Measurement against training
benchmark. To review the AAW’s
progress against the benchmarks, States
may request that the training provider
provide documentation of the worker’s
satisfactory progress, including
instructor attestations, progress reports,
etc. The case manager may attest to the
worker’s progress after consultation
with the vendor and the worker.
(d) Must be included in IEP. The
training benchmarks must be described
in the AAW’s IEP, if available, or
otherwise documented in the worker’s
case file.
(e) Benchmark qualities. Benchmarks
must be flexible enough to allow for
some variability, and both practical and
measurable enough to allow
administration across a broad spectrum
of training scenarios.
(f) Review of benchmarks. The State
must evaluate and document
satisfactory progress against the
benchmarks in paragraphs (f)(1) and (2)
of this section at intervals of not more
than 60 days, beginning with the start of
the approved training program:
(1) The AAW is maintaining
satisfactory academic standing (e.g., not
on probation or determined to be ‘‘at
risk’’ by the instructor or training
provider); and
(2) The AAW is on schedule to
complete training within the timeframe
identified in the approved training
program.
(g) Actions following failure to meet a
benchmark. (1) Upon failure to meet a
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benchmark, the State must provide a
warning to the AAW that their
eligibility for Completion TRA is in
jeopardy. The warning may be provided
verbally, in writing, or both, and must
be documented in the worker’s case file.
In consultation with the worker, the
State may amend a worker’s training
program as described in § 618.665.
(2) If a worker who has previously
failed to meet a benchmark under
paragraph (g)(1) of this section fails to
meet a benchmark during a subsequent
review under paragraph (f) of this
section, the State must notify the worker
of their ineligibility for Completion
TRA. The worker may elect to continue
in the approved training but will not
receive any Completion TRA payments;
or the training program must be
amended, according to § 618.665, and
Completion TRA may resume.
§ 618.665
Amending approved training.
(a) Conditions for amending approved
training. The State must, with the
cooperation of the trade-affected worker,
amend a worker’s approved training
program under the following conditions:
(1) The State determines that one or
more of these conditions are present:
(i) A course or courses designed to
satisfy unforeseen needs of the worker,
such as remedial education or new
employer skills requirements, are
necessary;
(ii) A course or courses added to the
training program will enhance and
complement the worker’s original
training program, such as preparatory
courses to obtain an industry-recognized
credential, certification, or license that
will improve the worker’s chance of
being hired;
(iii) Additional assistance such as
tutoring or the use of translators would
benefit the worker, keep the worker
qualified for the training in which they
are enrolled, and be sufficient for the
worker to complete the training
program;
(iv) Approval of a longer-term training
program that will improve the
likelihood of employment upon the
completion of such training;
(v) The originally approved training
program cannot be successfully
completed by the worker;
(vi) The originally approved training
program is determined to be of inferior
quality;
(vii) Training in another occupation
will lead to a greater likelihood of
training completion or a better
employment outcome, as a result of a
change in labor market conditions or the
worker’s experience in the originally
approved training program, or other
similar factor;
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(viii) The worker is moving from fulltime training to part-time training or
from part-time training to full-time
training;
(ix) An AAIW has been separated
from adversely affected employment
and has transitioned to become an
AAW, or an AAIW is continuing
training after a threat of separation was
first removed, then resumed; or
(x) An additional source of funding
becomes available for which a
prearrangement is required under
§ 618.625(c)(4).
(2) The combination of time spent in
the originally approved training
program and the time it will take to
complete the amended training program
will not exceed the duration of training
limit for the type of training included in
the training program, as provided at
§ 618.615(d)(3).
(3) Amending the approved training
program occurs before a worker finishes
the originally approved training
program and prior to the originally
scheduled date of completion.
(b) Criteria for amending a training
program. The State must determine that
the following criteria are met before
amending a training program:
(1) Criterion 1: A reasonable
expectation of employment following
completion of such training continues to
exist. Given the labor 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
trade-affected worker is likely to find
employment, using the skills and
education acquired while in training,
upon completion of approved training.
The labor market conditions considered
must be limited to those in the worker’s
commuting area, or in the area where
the worker intends to relocate.
(i) ‘‘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.
(ii) The State must review the
expected job market conditions using
pertinent labor market data in the
worker’s case file to ensure it continues
to apply to the amended training
program and the worker’s occupational
goal as identified on the worker’s IEP,
if available, and in the worker’s case
file.
(iii) When a worker desires to relocate
within the United States but outside the
worker’s present commuting area upon
completion of training, the State must
ensure the labor market information
(described in § 618.610(c)(2)) supports
the determination that a reasonable
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expectation of employment continues to
exist within the area of the planned
relocation. The labor market
information must be in the area of
planned relocation.
(iv) A reasonable expectation of
employment may exist in a limited
demand occupation for a single, trained
worker in the worker’s commuting area
or in the area to which they desire to
relocate. The State must determine that
there continues to be a reasonable
expectation that the worker can secure
employment in the limited demand
occupation.
(v) A State may approve an amended
training program in an occupation if it
finds that there is a reasonable
expectation that the additional training
will lead to self-employment in the
occupation for which the worker
requests training, and that such selfemployment will provide the worker
with wages or earnings at or near their
wages in adversely affected
employment.
(vi) Amended training programs that
consist of solely OJT or contain an OJT
component are not approvable if they
are not expected to lead to suitable
employment, with the employer
providing the OJT, in compliance with
sec. 236(c)(1)(B)(i) of the Act.
(2) Criterion 2: Training continues to
be reasonably available to the worker. In
determining whether training continues
to be reasonably available to the worker,
the State must first consider training
opportunities available in the worker’s
commuting area. States may approve
training outside the commuting area if
none is available at the time in the
worker’s commuting area. Whether the
training is in or outside the commuting
area, the amended training program
must be available at a reasonable cost as
prescribed in paragraph (b)(4) of this
section.
(3) Criterion 3: The worker continues
to be qualified to undertake and
complete such amended training. States
must ensure the following:
(i) The worker’s knowledge, skills,
and abilities, educational background,
work experience, and financial
resources remain sufficient to undertake
and complete the specific amendment to
the training program being considered.
(ii) The initial assessment or
comprehensive and specialized
assessment, and IEP, if available,
developed under subpart C of this part
are to be consulted in order to support
the trade-affected worker’s ability to
undertake and complete the proposed
amended training program.
(iii) Where the worker’s remaining
available weeks of UI and TRA
payments will not equal or exceed the
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duration of the amended training
program, that the worker will have
sufficient financial resources to support
completion of the training program
within the time limits noted in
§ 618.615(d) (limitations on approval of
training). In making this determination,
the State must consider:
(A) The worker’s remaining weeks of
UI and TRA payments in relation to the
duration of the proposed amended
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 or any State-funded
student financial assistance or any
private funding designated for student
financial assistance, including, but not
limited to, nongovernmental
scholarships, awards, or grants; and
(E) Whether or not the worker is
employed while attending training.
(iv) The State must document whether
or not the trade-affected worker has
sufficient financial resources to
complete the amended training program
that exceeds the duration of UI and TRA
payments.
(v) If a worker has insufficient
financial resources to complete the
proposed amended training program
that exceeds the duration of UI and TRA
payments, then the State must not
approve that amended training and
must instead consider resuming the
originally approved training program or
other training opportunities available to
the worker.
(4) Criterion 4: Such amended
training continues to be suitable for the
worker and available at a reasonable
cost—(i) Suitable for the worker. The
amended training being considered
must address the criteria set out in
paragraph (b)(3) of this section
(Criterion 3), this paragraph (b)(4), and
be determined by the State to be
appropriate given the worker’s
knowledge, skills, and abilities,
background, and experience relative to
the worker’s employment goal, and
criteria set out in paragraph (b)(1) of this
section (Criterion 1).
(ii) Available at a reasonable cost. (A)
Costs of an amended training program
may include, but are not limited to,
tuition and related expenses (e.g., books,
tools, computers and other electronic
devices, internet access, uniforms and
other training-related clothing such as
goggles and work boots, laboratory fees,
and other academic fees required as part
of the amended training program) as
well as supplemental assistance
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60257
(subsistence expenses and
transportation expenses as described in
§ 618.640(c) and (d)). States must pay
the costs of initial licensing and
certification tests and fees where a
license or certification is required for
employment.
(1) The State must ensure and
document that the amended training
program costs are reasonable by
researching costs for similar training
programs, whether it is classroom or
work-based training.
(2) Related expenses must be
necessary for the worker to complete the
amended training program. Other
options should be explored before
purchasing equipment or related
materials.
(B) Available at a reasonable cost
means that amended training must not
be approved at one provider when, all
costs being considered, training better or
substantially similar in quality, content
and results can be obtained from
another provider at a lower total cost
within a similar time frame. Amended
training must not be approved when the
costs of the training are unreasonably
high in comparison with the average
costs of training other workers in similar
occupations at other providers. The
State may approve a higher cost training
if that training is reasonably expected to
result in a higher likelihood of
employment, employment retention, or
greater earnings, or to return the worker
to employment in a significantly shorter
duration.
(C) Training at facilities outside the
worker’s commuting area requiring
transportation or subsistence payments
that add substantially to the total cost of
the amended training program may not
be approved if other appropriate
training is available in the commuting
area at a lower cost, unless the
exception described in paragraph
(b)(4)(ii)(B) of this section applies.
(D) Approval of amended training
under paragraph (b)(4) of this section
(Criterion 4) is also subject to the
provisions of § 618.650.
Subpart G—Trade Readjustment
Allowances
§ 618.700
Scope.
This subpart explains the
requirements for eligibility, amounts,
and duration of Basic TRA, Additional
TRA, and Completion TRA, all of which
are income support in the form of cash
payments for an AAW.
§ 618.705
Definitions.
(a) For purposes of TRA, an AAW is
‘‘participating in approved training’’ if:
(1) The worker is either attending and
taking part in all scheduled classes,
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required activities, and required events
in a given week, or the training provider
has excused the worker’s absence or
failure to take part in accordance with
its written policies.
(2) In the case of distance learning,
the worker is either meeting all the
requirements of the training provider in
a given week in accordance with its
rules, regulations, and standards, or the
training provider has excused the
worker’s failure to meet those
requirements in accordance with its
written policies.
(b) For purposes of TRA, the term
‘‘training allowance’’ means any
assistance or payment, excluding
Federal student financial assistance,
that can be used for the same purpose
as funds for the costs of training covered
by the TAA Program, and that is given
or paid directly to the AAW.
(c) For purposes of TRA, the term
‘‘adversely affected employment’’
includes employment at a successor-ininterest, and such wages reported to the
State or received by an AAW from a
successor-in-interest are included as
wages under § 618.720(c).
§ 618.710 Categories of Trade
Readjustment Allowances.
(a) Basic TRA. Basic TRA is payable
to an AAW who meets the requirements
of § 618.720. Basic TRA is payable for
weeks of unemployment after the
worker meets the criteria for exhaustion
of UI under § 618.720(e) and, consistent
with § 618.725, for weeks of
unemployment during which the
worker either is enrolled in, is
participating in, or has completed
approved training, or has received a
waiver of the training requirement
under § 618.735.
(b) Additional TRA. Additional TRA
is payable to an AAW who meets the
requirements of § 618.760. Additional
TRA is payable only for weeks of
unemployment during which the
worker is participating in approved
training and only after the worker has
exhausted all rights to Basic TRA.
(c) Completion TRA. Completion TRA
is payable to an AAW who meets the
requirements of § 618.765. Completion
TRA is payable only for weeks of
unemployment during which the
worker is participating in approved
training. Completion TRA is payable
only after the worker has exhausted all
rights to Basic and Additional TRA.
§ 618.715 Applications for Trade
Readjustment Allowances and payment.
(a) Timing of applications. (1) An
initial application for TRA must be filed
after publication of the certification of
the appropriate worker group.
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(2) An application for TRA must be
filed within the time limit applicable to
claims for regular compensation under
the applicable State law.
(b) Applicable procedures.
Applications must be filed in
accordance with this subpart and on
forms furnished to AAWs by the State.
The State’s procedures for filing
applications for TRA, and for reporting,
must be consistent with this part and
the Department’s ‘‘Standard for Claim
Filing, Claimant Reporting, Job Finding,
and Employment Services,’’
Employment Security Manual, part V,
secs. 5000 through 5004 (appendix A to
this part), except that such procedures
may allow for the filing and processing
of applications by paper, telephone, the
internet, or other similar methods as
provided for in paragraph (e)(2) of this
section.
(c) Treatment of determinations.
Determinations on TRA applications are
determinations to which §§ 618.820
(determinations and notice), 618.824
(liable and agent State responsibilities),
and 618.828 (appeals and hearings)
apply. Copies of such applications for
TRA and all determinations by the State
on such applications must be included
in the AAW’s case file.
(d) Payment of TRA. (1) A State must
not make any payment of TRA until a
certification is issued and the State
determines that the AAW is a member
of a worker group covered under the
specified certification.
(2) An AAW, if they otherwise meet
the eligibility requirements of this
subpart, including exhaustion of UI,
may be entitled to TRA for any week of
unemployment that begins on or after
the date of the applicable certification.
(3) An AAW may receive only one
form of TRA (Basic, Additional, or
Completion) for any given week.
(e) Taking of applications. (1) An
application is required for each TRA
benefit type available to the AAW. The
State must take an initial application for
each type of TRA (Basic, Additional,
and Completion).
(2) Applications may be filed and
processed by any means allowed for UI
claims in the State.
§ 618.720 Qualifying requirements for
Basic Trade Readjustment Allowances.
To qualify for Basic TRA for a week
of unemployment, an AAW must meet
each of the requirements in paragraphs
(a) through (g) of this section:
(a) Certification. The AAW must be a
member of a worker group certified
under subpart B of this part.
(b) Separation. The AAW must have
experienced a qualifying separation
during the certification period of the
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certification in paragraph (a) of this
section.
(c) Wages and employment. The AAW
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 AAW’s total or
partial separation from adversely
affected employment during the
certification period, 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, where there is
more than one subdivision, the
appropriate subdivision of that firm.
Evidence that the worker meets the
requirement in this paragraph (c)(1)
must be obtained as provided in
§ 618.740. Employment and wages
covered under more than one
certification may not be combined to
qualify for TRA.
(2) The categories of weeks in
paragraphs (c)(2)(i) through (iv) of this
section also must be treated as weeks of
employment at wages of $30 or more
(for purposes of paragraph (c)(1) of this
section), regardless of whether the AAW
actually receives any wages during such
weeks:
(i) All weeks, up to a maximum of 7
weeks, during which the AAW 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 AAW had
adversely affected employment
interrupted to serve as a full-time
representative of a labor organization in
the firm or subdivision referenced in
paragraph (c)(1) of this section;
(iii) All weeks, up to a maximum of
26 weeks, during which the AAW has
a disability compensable under a
workers’ compensation law or plan of a
State or the United States; and
(iv) All weeks, up to a maximum of
26 weeks, during which the AAW is on
call-up for the purpose of active duty in
a reserve status in the Armed Forces of
the United States, if such active duty is
‘‘Federal service’’ as defined in 5 U.S.C.
8521(a)(1), but not more than 7 weeks,
in the case of weeks described in
paragraph (c)(2)(i) or (ii) of this section
that occur during the active duty. States
may waive provisions of this paragraph
(c)(2)(iv) consistent with § 618.884.
(d) Entitlement to UI. The AAW 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.
(e) Exhaustion of UI. The AAW must
meet the following requirements:
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(1) The AAW must have exhausted all
rights to any UI, except additional
compensation that is funded by a State
and not reimbursed from any Federal
funds to which such worker was
entitled (or would have been entitled
had such worker applied therefor), and
not have any unexpired waiting period
applicable to the worker for any such
UI. Thus, except as provided by
paragraph (e)(2) of this section,
whenever an AAW becomes entitled (or
would become entitled if the worker
applied therefor) to any type of UI,
except additional compensation funded
by a State and not reimbursed from any
Federal funds, after the start of the
AAW’s receipt of TRA, the payment of
TRA must be suspended until such
worker exhausts entitlement to such UI.
After the AAW exhausts that
entitlement, payments of TRA to which
the worker is still entitled may resume.
(2) The AAW may elect to receive
TRA instead of UI during any week with
respect to which the worker:
(i) Is entitled and is able to receive UI
as a result of a new benefit year based
on employment in which the worker
engaged after establishing TRA
eligibility following a total separation
from adversely affected employment.
The entitlement must be after the first
UI benefit period. It must also be based
in whole or in part upon part-time or
short-term employment in which the
worker engaged after the worker’s most
recent total separation from adversely
affected employment that established
such first UI benefit period. This new
employment may include the same
adversely affected employment; and
(ii) Is otherwise entitled to TRA,
except that the AAW need not have
exhausted all rights to UI in the new
benefit year.
(3) For AAWs meeting the
requirements in paragraph (e)(2) of this
section, the State must provide the
AAW a summary of their potential UI
benefits and potential TRA benefits in
writing and document the AAW’s
choice in the case file.
(4) State law applies to the status of
the UI claim based upon the second
benefit year. For States where a claim
establishes a benefit year, no subsequent
claim may be established in a later
quarter during that benefit year, and any
available entitlement remains,
consistent with State law, once TRA is
exhausted.
(5) The AAW must have no unexpired
waiting period applicable to such
worker for any UI.
(f) Extended Benefits (EB) work test.
The AAW must be able to work and be
available for work, as defined in the
applicable State law for UI claimants,
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under the EB work test for each week by
the means described in this paragraph
(f), unless an exception in paragraph
(f)(2) of this section applies.
(1) Criteria. The EB work test
requirement must be met by:
(i) Registering for work with the State,
in accordance with the applicable
provisions of State law that apply to EB
claimants and that are consistent with
part 615 of this chapter;
(ii) Actively engaging in seeking work;
(iii) Furnishing the State with tangible
evidence of work search efforts each
week; and
(iv) Accepting any offer of suitable
work, including those referred by the
State.
(2) Exceptions. The able and available
requirement and the EB work test
requirement in this paragraph (f) do not
apply for purposes of TRA eligibility:
(i) When the AAW is enrolled in or
participating in approved training;
(ii) During a break in training that
does not exceed 30 days as counted in
accordance with § 618.775(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 that
begins before the AAW is notified of
coverage by a certification 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
under State law with respect to any
such week except as provided in
paragraphs (f)(2)(i) and (ii) of this
section for AAWs enrolled in or
participating in approved training.
(3) Suitable work. (i) For purposes of
this subpart, suitable work means, with
respect to a worker, whichever of the
following laws is applicable:
(A) Suitable work as defined in the
applicable State law for claimants for
regular compensation; or
(B) Suitable work as defined in
applicable State law provisions
consistent with sec. 202(a)(3) of EUCA.
(ii) Regardless of which of the laws in
paragraph (f)(3)(i)(A) or (B) of this
section apply, suitable work does not in
any case include self-employment or
employment as an independent
contractor.
(g) Participation in approved training.
(1) As a condition for receiving Basic
TRA, except as provided for in
§ 618.730, the AAW, after a total or
partial separation from the adversely
affected employment within the
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60259
certification period, and by the
applicable deadlines in § 618.725 must:
(i) Be enrolled in training, as defined
in subpart A of this part;
(ii) Be participating in approved
training (as defined in § 618.705); or
(iii) Have a waiver granted under
§ 618.735 in effect.
(2) An AAW who has not met the
requirements in paragraph (g)(1) of this
section may, if otherwise eligible,
receive Basic TRA before expiration of
the applicable training enrollment
deadline in § 618.725. Once the training
enrollment deadline is reached, the
training requirements in paragraph
(g)(1) of this section must be met. Basic
TRA payments must cease beginning the
first week for which the requirements in
paragraph (g)(1) of this section were
required but not met.
(3) The requirements in paragraph
(g)(1) of this section do not apply to an
AAW with respect to claims for Basic
TRA for weeks of unemployment
beginning before the filing of an initial
claim for TRA after publication of the
certification of the appropriate worker
group as provided in § 618.715(a), nor
for any week that begins before the
AAW is notified that they are covered
by a certification and is fully informed
of the requirements of this section.
(4) An AAW who meets the
participation in approved training
requirement in paragraph (g)(1) of this
section by the applicable deadlines in
§ 618.725 may continue to receive Basic
TRA after the AAW has completed
training, even if such participation in
training was on a part-time basis,
provided that the worker meets all other
eligibility requirements for Basic TRA.
§ 618.725
Training enrollment deadlines.
(a) Training enrollment deadlines. As
a condition for receiving Basic TRA, an
AAW must meet the participation in
approved training requirement in
§ 618.720(g)(1) no later than the latest
of:
(1) The last day of the 26th week after
the AAW’s most recent qualifying
separation;
(2) The last day of the 26th week after
the week in which the certification was
issued; or
(3) 45 days after the later of the dates
specified in paragraph (a)(1) or (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 circumstances that would
constitute good cause, as established by
§ 618.730; that is, circumstances under
which the AAW acted diligently yet was
unable to enroll because of exigent
circumstances.
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(4) In the case of an AAW who fails
to enroll by the date required by
paragraph (a)(1), (2), or (3) of this
section due to a failure by the State to
provide the AAW with timely
information regarding the applicable
training enrollment deadline, the AAW
must be enrolled in training or obtain a
waiver by the Monday of the first week
occurring 60 consecutive calendar days
following the date the worker was
properly notified; or
(5) The Monday of the first week
occurring 30 consecutive calendar days
(or, if the State is closed that last day
because that day falls on a weekend or
holiday or for any other reason, the next
business day) following the day of
termination, whether by revocation or
expiration or revocation of a waiver
under § 618.735.
(b) Exceptions—(1) Extended training
enrollment deadline for delayed
approval of application for TRA. (i) The
training enrollment deadlines of
paragraph (a) of this section do not
apply where:
(A) A State’s negative determination
on an initial application for TRA under
§ 618.715 has been reversed through
redetermination or appeal;
(B) The AAW is unable to meet the
training enrollment deadline because of
the delay in obtaining the reversal of the
negative determination; and
(C) The delay in obtaining the reversal
is not attributable to the AAW.
(ii) Where the conditions of paragraph
(b)(1)(i) of this section are met, the AAW
will have until the last day of the 26th
week following the date on which the
negative determination was reversed to
enroll in training or have a training
waiver in effect.
(2) Extended training enrollment
deadline for period of duty in military
service. If an AAW who is a member of
a reserve component of the Armed
Forces and has served a period of duty
during the AAW’s Basic TRA eligibility
period but before enrolling in training,
the AAW’s training enrollment deadline
will be the last day of the 26th week
following the last day of the AAW’s
period of duty.
(3) Good cause. The training
enrollment deadline may be extended
for good cause as provided for in
§ 618.730.
§ 618.730
Good cause.
(a) States must waive the time
limitations with respect to an
application for TRA, enrollment in
training, or receipt of a training waiver
in this subpart if the AAW shows good
cause.
(b) Good cause exists if the AAW
acted diligently yet was unable to
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complete in a timely manner the
relevant task at issue described in
paragraph (a) of this section because of
exigent circumstances.
(c) The State must determine good
cause on a worker-by-worker basis.
§ 618.735 Waiver of training requirement
for Basic Trade Readjustment Allowances.
(a) Waiver for Basic TRA. A State may
issue a waiver of the requirement in
§ 618.720(g) that an AAW be enrolled in
or participating in approved 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
Completion TRA eligibility. Waivers
must be issued no later than the latest
of the applicable deadlines described in
§ 618.725.
(b) Bases for a waiver. The State, in
order to issue a written waiver to an
AAW, must conclude after assessing the
worker that training is not feasible or
appropriate for one or more of the
reasons in paragraphs (b)(1) through (3)
of this section, which must be cited on
the waiver:
(1) Health. The worker is unable to
participate in training due to the health
of the worker. 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 unemployment compensation
laws.
(2) Enrollment unavailable. The first
available enrollment date for approved
training is within 60 consecutive
calendar days after the date on which a
waiver determination is made or, if
later, there are extenuating
circumstances, as determined under the
criteria in § 618.725(a)(3), that apply to
the delay in enrollment in training.
(3) Training not available. Approved
training is not reasonably available to
the worker from governmental agencies
or private sources (which may include
area vocational education schools, as
defined in sec. 3 of the Strengthening
Career and Technical Education for the
21st Century Act (20 U.S.C. 2302), and
employers), or suitable training is not
available at a reasonable cost, or no
training funds are available.
(c) Contents of a waiver. (1) A waiver
issued under this section may not take
effect unless it contains, at a minimum,
the following information:
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(i) The AAW’s name and a unique
identifying designation used by the
State;
(ii) The name and location of the
worker group and the petition number
under which the AAW’s group was
certified;
(iii) A statement of the reasons why
training is not feasible or appropriate for
the AAW, citing to one or more reasons
identified in paragraph (b) of this
section;
(iv) The effective date and expiration
date of the waiver;
(v) A statement that the waiver must
be revoked immediately upon a
determination that the basis or bases for
the waiver no longer apply; and
(vi) The signature of an official of the
State authorized to grant the waiver, and
the signature of the AAW or other
evidence of the worker’s
acknowledgement of receipt of the
waiver.
(2) Waivers and the required
signatures may be issued and
maintained electronically.
(d) Request for a waiver. States may
analyze whether an AAW may qualify
for a waiver as part of the AAW’s initial
assessment, as described in subpart C of
this part. An AAW may also request a
waiver from the State before the
applicable deadline in § 618.725.
(e) Denial of a waiver. In any case in
which a determination is made to deny
a waiver under this section, the AAW to
whom the denial pertains must be
furnished with a notice of the denial of
waiver. The notice of denial of waiver
must contain, at minimum, the
information in paragraphs (c)(1)(i), (ii),
and (vi) of this section; the specific
reason(s) for the denial; the date of the
denial; and notice of the AAW’s appeal
rights.
(f) Duration of a waiver. (1) A waiver
issued under this section may be for a
period not to exceed 6 months, or the
AAW’s period of Basic TRA entitlement,
whichever ends first;
(2) Notwithstanding the 6-month
limitation in paragraph (f)(1) of this
section, a State may extend an AAW’s
waiver beyond 6 months 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
their Basic TRA entitlement.
(3) Waivers must be reviewed 3
months after the date on which the State
issues the waiver to determine if one or
more of the bases in paragraph (b) of
this section continue to apply, and
every 30 consecutive calendar days
thereafter.
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(g) Revocation of a waiver. The State
must revoke a waiver issued under this
section if the waiver criteria are no
longer met. The State must notify the
AAW of the revocation. The notice of
revocation must be appealable and must
contain the same information as a denial
of waiver issued under paragraph (e) of
this section.
(h) Submission of waivers and
notices. The State must develop
procedures for compiling and reporting
on the number of waivers issued and
revoked, by reason, and must submit to
the Department, only upon specific
request, a record or copy of any or all
waivers issued under this section
together with a statement of reasons for
each such waiver, and a record or copy
of any or all notices of revocation of
waiver issued under this section
together with a statement of reasons for
each such revocation. The statements of
reason required under paragraphs
(c)(1)(iii) and (e) of this section, as
applicable, fulfill the requirement for a
statement of reasons under this
paragraph (h). Electronic records and
copies are acceptable.
§ 618.740 Evidence of qualification for
Basic, Additional, and Completion Trade
Readjustment Allowances.
(a) State action. When an AAW
applies for Basic, Additional, or
Completion TRA, the State having
jurisdiction under § 618.820
(determinations of eligibility) must
obtain information necessary to
establish:
(1) Whether the AAW meets the
qualifying requirements in § 618.720 for
Basic TRA, in § 618.760 for Additional
TRA, or in § 618.765 for Completion
TRA; and
(2) For a partially separated AAW, the
average weekly hours and average
weekly wage in adversely affected
employment.
(b) Insufficient data. If information
specified in paragraph (a) of this section
is not available from State records or
from any employer, the State must
require the AAW to submit a signed
statement setting forth such information
as may be required for the State 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 AAW to be true to the
best of the worker’s knowledge and
belief and must be supported by
evidence including W–2 forms,
paycheck stubs, union records, income
tax returns, or statements of fellow
workers, and must, whenever possible,
be verified by the employer.
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(d) Determinations. The State must
make the necessary determinations on
the basis of information obtained under
this section, except that if, after
reviewing information obtained under
paragraphs (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 the
basis of the best available information.
(e) Timing. The State must follow the
established method used for processing
regular UI claims. If an employer does
not respond within the timeframe
established for UI claims, then the State
must act on the best available
information.
§ 618.745 Weekly amounts of Basic,
Additional, and Completion Trade
Readjustment Allowances.
(a) TRA amount. The amount of Basic,
Additional, or Completion TRA payable
for a week of unemployment (including
a week of approved training) is an
amount equal to the most recent weekly
benefit amount of UI (including
dependents’ allowances) payable to the
AAW for a week of total unemployment
preceding the worker’s first exhaustion
of UI following the worker’s first
qualifying separation, except that:
(1) Where a State calculates a base
period 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.
(2) For partially separated workers,
the weekly amount of TRA must be
calculated as determined under the
applicable State law.
(b) Workers who are undergoing
training. Any AAW in approved training
who is thereby entitled for any week to
TRA and a training allowance (as
defined in § 618.705) under any other
Federal law for the training of workers,
will be paid for each week in which
they are undergoing approved training,
TRA in the amount (computed for each
week) equal to the amount computed
under paragraph (a) of this section or, if
greater, the amount of any weekly
allowance for such training to which the
AAW would be entitled under any other
Federal law for the training of workers,
if the AAW applied for such allowance.
TRA must be paid in lieu of any
payment for training made directly to
the AAW to which the AAW is entitled
under such other Federal law.
(c) Reductions to the TRA weekly
amount. The weekly amount of TRA
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60261
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, except that in the case
of an AAW who is participating in
approved training, such income must
not include earnings from work for such
week that are equal to or less than the
most recent weekly benefit amount of
the UI payable to the worker for a week
of total unemployment preceding the
worker’s first exhaustion of UI (as
determined for purposes of sec.
231(a)(3)(B) of the Act).
(2) If the amount of a training
allowance as defined in § 618.705
(including a training allowance referred
to in paragraph (b) of this section) under
any Federal law that the AAW receives
for such week is less than the amount
of TRA otherwise payable to the AAW
for a week, the AAW must, when
applying for TRA for the week, be paid
TRA in an amount not to exceed the
difference between the AAW’s regular
weekly TRA amount, as determined
under § 618.745(a) (regular allowance),
and the amount of the training
allowance paid to the AAW for the
week.
(3) Except as provided in paragraph
(c)(4) of this section, if a training
allowance under any Federal law other
than the Act, is paid to an AAW for any
week of unemployment with respect to
which the AAW would be entitled
(determined without regard to any
disqualification under paragraph (b) of
this section) to TRA, if they applied for
TRA, each such week must be deducted
from the total number of weeks of TRA
otherwise payable to the AAW when the
worker applies for and is determined to
be entitled to TRA. If such training
allowance paid directly to the worker
for any week of unemployment is less
than the amount of TRA to which the
AAW would be entitled if the worker
had applied for it, the AAW must
receive (when the worker applies for
and is determined to be entitled to TRA)
TRA for such week equal to such
difference.
(4) If the training allowance (as
defined in § 618.705) referred to in
paragraphs (c)(2) and (3) of this section
is Federal student financial assistance,
then the amount of TRA will not be
reduced. In the case of an AAW to
whom the Federal student financial
assistance is available, the State will
rely on prearrangements for the sharing
of training costs under § 618.625(c)(2)
(payment restrictions for training
programs) in order to harmonize the
provision of Federal student financial
assistance with the worker’s TRA.
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(5) 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
AAWs in approved training.
§ 618.750 Maximum amount of Basic Trade
Readjustment Allowances.
(a) General rule. Except as provided in
paragraph (b) of this section, the
maximum amount of Basic TRA payable
to an AAW is the product of 52
multiplied by the TRA weekly amount
for a week of total unemployment,
calculated under § 618.745(a) (weekly
amounts of TRA), reduced by the total
sum of UI (except State-funded
additional compensation) that the AAW
was entitled or would have been
entitled to had the worker applied in
such worker’s first benefit period.
(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
§ 618.745; or
(2) The amount of the difference
between the AAW’s weekly increased
allowances determined under
§ 618.745(b) and such worker’s weekly
amount determined under § 618.745(a).
§ 618.755 Eligibility period for Basic Trade
Readjustment Allowances.
(a) Except as provided in paragraphs
(b) and (c) of this section, an AAW 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 AAW’s most
recent qualifying separation occurred or
after certification, whichever is later.
(b) A State may not count any period
during which a judicial or
administrative appeal is pending with
respect to a denial of a petition filed
under subpart B of this part for the
purpose of calculating the period of
separation described in paragraph (a) of
this section. The separation will be
deemed as having occurred on the
certification date and the Basic TRA
eligibility period will begin on the week
that follows the certification date.
§ 618.760 Qualifying requirements for, and
timing and duration of, Additional Trade
Readjustment Allowances.
(a) Qualifying requirements for
Additional TRA. An AAW is eligible to
receive Additional TRA for any week
only if:
(1) The worker meets all qualifying
requirements for receipt of Basic TRA in
§ 618.720;
(2) The worker subsequently
exhausted Basic TRA; and
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(3) Except as provided in § 618.775 for
a break in training, the AAW is
participating in approved training.
(b) Timing and duration of Additional
TRA. Additional TRA is payable for up
to 65 weeks during the 78 consecutive
calendar week period that:
(1) Immediately follows the last week
of entitlement to Basic TRA otherwise
payable to the AAW;
(2) Begins with the first week of
approved training, 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, if such training is
approved after the training already has
commenced (although Additional TRA
or training costs may not be paid for any
week before the week in which the TAA
approved training was approved).
§ 618.765 Qualifying requirements for, and
timing and duration of, Completion Trade
Readjustment Allowances.
(a) Qualifying requirements for
Completion TRA. An AAW is eligible to
receive Completion TRA if such worker
meets all qualifying requirements for
receipt of Basic TRA in § 618.720 and
Additional TRA in § 618.760, and if the
eligibility criteria in paragraphs (a)(1)
through (3) of this section are met for
that week. The requirements in this
paragraph (a) are applied at the time the
State approves payment for a week of
Completion TRA. The eligibility criteria
are:
(1) Payment of Completion TRA is
necessary for an AAW to complete the
approved training described in
paragraph (a)(2) of this section.
(2) The AAW is participating in
approved training each week that leads
to the completion of a degree or
industry-recognized credential and the
worker’s training program will extend
for a period longer than the periods
during which Basic and Additional TRA
are payable under §§ 618.755 (eligibility
period for Basic TRA) and 618.760
(qualifying requirements for, timing and
duration of, Additional TRA), and the
requested weeks are necessary for the
worker to complete training.
(3) The worker—
(i) Has substantially met the
performance benchmarks in § 618.660
(training benchmarks) established as
part of the approved training under
subpart F of this part;
(ii) Is expected to continue to make
progress toward the completion of the
approved training; and
(iii) Will complete the approved
training during the period of eligibility
described in paragraph (c) of this
section.
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(4) If, during the period in which an
AAW is eligible to receive Completion
TRA, the worker ceases to meet any of
the eligibility criteria in paragraphs
(a)(1) through (3) of this section, no
further Completion TRA is payable to
such worker.
(b) Weeks payable. A total of up to 13
weeks of payments are allowable during
the period of eligibility described in
paragraph (c) of this section.
(c) Eligibility period. Completion TRA
may be payable during the period of 20week consecutive calendar period that
begins with the first week in which an
AAW files a claim for Completion TRA
and seeks compensation for such week,
regardless of when the first payment is
received. The eligibility period may be
extended if justifiable cause exists, in
accordance with § 618.770(a).
(d) Start date of Completion TRA. The
State must have a process to take
applications for Completion TRA. States
must not automatically establish the 20week period for Completion TRA as the
week following either expiration of the
eligibility period for Additional TRA, or
the exhaustion of Additional TRA; filing
a claim after either of those first weeks
is permitted. Since training that leads to
a degree or industry-recognized
credential must be completed during the
eligibility period described in paragraph
(c) of this section, the first week of
Completion TRA claimed should be
carefully considered in coordination
with case management while the AAW’s
training program is being developed.
§ 618.770
Special rule for justifiable cause.
(a) The eligibility period during
which Basic, Additional, and
Completion TRA are payable to an AAW
may be extended for justifiable cause,
which has the same meaning as good
cause in § 618.730.
(b) While the eligibility period for
Basic, Additional, and Completion TRA
may be extended for justifiable cause as
determined by the State, the maximum
benefit amount and number of weeks
this benefit may be received must not
change.
§ 618.775 Payment of Trade Readjustment
Allowances during breaks in training.
(a) Basic and Additional TRA are
payable to an otherwise eligible AAW
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 AAW participated in
approved training of this part
immediately before the beginning of the
break in training;
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(2) The break in training was provided
in the established schedule of the
training provider; and
(3) The AAW resumes participation in
the approved training immediately after
the break ends.
(b) 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.
(c) For Completion TRA, breaks in
training are permissible during the 20week eligibility period. However,
payment for breaks in training are not
allowed.
§ 618.780
Disqualifications.
(a) General rule. Except as stated in
paragraph (b)(1) or (c) of this section
and in § 618.832(b)(2) (concerning
disqualification due to fraud), an AAW
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
that apply to EB claimants and are
consistent with EUCA.
(b) Disqualification of trainees—(1)
State law inapplicable. A State law may
not be applied to disqualify an AAW
from receiving UI or TRA because:
(i) Such worker is enrolled in or
participating in an approved training
program;
(ii) Such worker refuses work to
which the State referred such worker
because such work either would require
discontinuation of approved training or
interfere with successful participation
in TAA approved training, except that
this paragraph (b)(1)(ii) does not apply
to an AAW who is ineligible under
paragraph (b)(2) of this section;
(iii) Such worker quits work that was
not suitable employment and it was
reasonable and necessary to quit in
order to begin or continue approved
training. This includes temporary
employment the worker may have
engaged in during a break in training;
(iv) Such worker continues full-time
or part-time employment while
participating in approved training; or
(v) Such worker leaves OJT within the
first 30 days because the OJT is not
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meeting requirements of sec.
236(c)(1)(B) of the Act.
(2) Disqualifications. An AAW 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
approved training, or ceases
participation (as described in paragraph
(b)(3)(ii) of this section) in such training,
or for whom a waiver is revoked under
§ 618.735(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 an approved
training program. A worker who has
justifiable cause (as described in
paragraph (b)(3)(iii) of this section) for
such failure to begin, or for 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. Such
failure, cessation, or revocation
normally does not change the eligibility
periods defined in §§ 618.755,
618.760(b), and 618.765(b) and (c).
(3) Disqualification conditions. For
determining the disqualification of
trainees for all TAA approved training,
the following provisions apply:
(i) Failed to begin participation. A
worker will be determined to have
failed to begin participation in an
approved training program when the
worker fails to attend one or more
scheduled training classes and other
training activities in the first week of the
approved training program, without
justifiable cause.
(ii) Ceased participation. A worker
will be determined to have ceased
participation in an approved training
program when the worker fails to attend
all scheduled training classes and other
training activities scheduled by the
training provider in any week of the
approved training program, without
justifiable cause.
(iii) Justifiable cause. For purposes of
this section, justifiable cause has the
same meaning as good cause under
§ 618.730, except that good cause for
absence also includes an absence
excused under a training provider’s
written policy.
(c) Disqualification while in OJT. An
AAW may not be paid any TRA for any
week during which such worker is
engaged in OJT, in accordance with
§ 618.635.
(d) Disqualification while in part-time
training. An AAW may not be paid any
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TRA for any week in which the worker
is participating in approved training
that is part-time. Part-time training is
any approved training that does not
meet the definition of ‘‘full-time
training’’ as defined in § 618.110.
Subpart H—Administration by
Applicable State Agencies
§ 618.800
Scope.
This subpart covers the general
administrative requirements a State
must follow in providing the benefits
and services available under the TAA
Program. The requirements in this
subpart include: The provision rapid
response and appropriate career services
to groups of workers for whom a
petition is filed, delivering TAA
Program benefits and services to tradeaffected workers, assisting in the filing
of petitions for those likely to be eligible
for benefits under this part, conducting
outreach to groups of workers covered
under a petition for TAA filed under
subpart B of this part, and notifying UI
claimants of the TAA Program.
§ 618.804
of Labor.
Agreements with the Secretary
(a) Authority. A State or CSA must,
before performing any function or
exercising any jurisdiction under the
Act and this part, execute an Agreement
meeting the requirements of the Act
with the Secretary.
(b) Execution. (1) An Agreement
under paragraph (a) of this section must
be signed and dated on behalf of the
State or the CSA by an authorized
official whose authority is certified by
the State Attorney General or counsel
for the CSA, unless the Agreement is
signed by the Governor or the chief
elected official of the State. In the event
that a State does not execute an
Agreement under paragraph (a) of this
section, then sec. 3302(c)(3) of the
Internal Revenue Code of 1986, as
amended (26 U.S.C. 3302 (c)(3)) (loss of
unemployment tax credits under sec.
3302(a) and (b)), applies.
(2) A State or CSA must execute an
amended Agreement with the Secretary,
upon the request of the Secretary, in
response to legislative or regulatory
changes to the TAA Program.
(3) The Secretary will execute an
agreement on behalf of the United
States.
(c) Public access to Agreements. The
CSA must make available for inspection
and copying, an accurate copy of its
Agreement under this section to any
individual or organization that requests
it. The CSA may furnish copies of the
Agreement upon payment of the same
charges, if any, as apply to the
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furnishing of copies of other records of
the CSA.
(d) 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 receiving
applications for and providing
payments on the basis provided in this
part and must carry out fully the
purposes of the Act and this part.
(e) Breach. If the Secretary determines
that the State or CSA has not fulfilled
its commitments under its Agreement
stated in this section, the Secretary may
terminate the Agreement. The Secretary
must provide the State or CSA
reasonable notice and an opportunity
for a hearing before the Secretary makes
a finding that the State has not fulfilled
its commitments under its Agreement.
In the event that the Secretary
determines the State or CSA has not
fulfilled its commitments under its
Agreement, sec. 3302(c)(3) of the
Internal Revenue Code of 1986, as
amended (regarding loss of
unemployment tax credits under sec.
3302(a) and (b)), applies.
(f) Review of State and CSA
compliance. The Department is
responsible for monitoring and
reviewing State and CSA compliance
with the Agreement entered into under
the Act and this section.
(g) Merit staffing. States must comply
with the staffing flexibility provisions
contained in § 618.890.
(h) Contents. Each Agreement under
this section must contain provisions
including, but not limited to, the
following:
(1) Provisions consistent with the
requirements of sec. 239 of the Act (19
U.S.C. 2311);
(2) Authorization for the State to issue
waivers under § 618.725 (waiver of the
training requirement for Basic TRA) and
the requirement that the State submit,
upon request, to the Department a copy
of each such waiver and, if not already
contained within each waiver, a
statement of the reasons for such
waiver;
(3) The requirement that the State
supply data to the Department 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; and
(4) Provisions establishing TAA
Program funds as the primary source of
Federal assistance to trade-affected
workers. This means that following
certification of a petition under subpart
B of this part, the costs for providing
services to a worker group should shift
from WIOA and other programs to the
TAA Program.
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(i) Administration absent State
Agreement. (1) In any State in which no
Agreement under this section is in
effect, the Secretary will administer the
Act and this part through appropriate
arrangements made by the Department.
(2) The Secretary will administer TAA
in accordance with this part and the
provisions of the applicable State law,
except to the extent that such State law
is inconsistent with this part, sec. 303
of SSA (42 U.S.C. 503), or sec. 3304(a)
of the Internal Revenue Code of 1986, as
amended (26 U.S.C. 3304(a)).
(3) The Secretary will provide for a
fair hearing for any individual whose
application for TAA is denied. A final
determination as to eligibility for TAA
will be subject to review as provided in
42 U.S.C. 405(g), as required by sec.
240(b) of the Act.
(4)(i) The Department will issue
administrative guidance providing
additional detail on the operation of the
TAA Program within that State.
(ii) Prior to providing administrative
guidance, the Department will consult
with the Governor, other State agencies,
neighboring States, and other
organizations to determine how best to
ensure access to the TAA Program
within that State. Options to administer
the program that the Department may
consider include, but are not limited to:
(A) Executing an agreement with
another State to operate the TAA
Program;
(B) Executing an agreement with a
qualified organization within the State
that adheres to all TAA Program
requirements in this part to operate the
TAA Program; and
(C) Directly administering the TAA
Program.
(j) Program coordination. State
agencies providing employment and
case management services under
subpart C of this part and training under
subpart F of this part must, in
accordance with their Agreements
under this section, coordinate such
services and payments with programs
and services provided by WIOA and
with the State agency administering the
State law. Any agency of the State
jointly administering such provisions
under this Agreement must be
considered to be a CSA for purposes of
this part.
§ 618.808
State rulemaking.
(a) A State may establish laws,
regulations, procedures, or policies, not
inconsistent with the Act or this part, or
administrative guidance issued by the
Department.
(b) The State must submit the exact
text of such proposed law, regulation,
procedure, or policy, certified as
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accurate by a responsible official,
employee, or counsel of the State, to the
Department.
(c) No law, regulation, procedure, or
policy proposed under paragraph (a) of
this section may become effective unless
and until approved by the Department.
The Department may grant approval on
a temporary basis, not to exceed 90
days, in cases of administrative
necessity.
(d) The Department may withdraw
approval at any time with reasonable
notice of no less than 30 days to a State.
(e) If public notice and opportunity
for hearing would be required under
State law for adoption of a similar law,
regulation, procedure, or policy
involving UI or other State or Federal
law, the State must provide such public
notice and opportunity for hearing.
§ 618.812
Subpoenas.
(a) A State may require by subpoena
the attendance of witnesses and
production of evidence necessary for
use in the determination of an
individual’s eligibility for TAA Program
services and benefits or to obtain
information needed to assist the
Department in the petition
determination process.
(b) This power includes the ability of
the State to subpoena an employer for
information necessary to determine
whether a certification covers a worker,
including the name, address, and Social
Security number of the worker.
(c) The State may enforce compliance
with subpoenas as provided under State
law and, if a State court declines to
enforce a subpoena issued under this
section, or the State does not attempt a
subpoena under State law, the State
must petition for an order requiring
compliance with such subpoena to the
District Court of the United States with
jurisdiction over the proceeding.
§ 618.816 Trade Adjustment Assistance
Program benefit information and provision
of services to workers.
(a) Providing information to workers.
State agencies must provide information
to each worker who applies for UI about
the benefit allowances, training, and
other services available under this part,
and about the application procedures,
and the appropriate filing dates, for
such allowances, training, and other
services.
(b) Rapid response and appropriate
career services. States must ensure that
rapid response assistance and
appropriate career services, as described
in sec. 134 of WIOA, are made available
to members of a group of workers for
whom a petition under subpart B of this
part has been filed.
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(c) Providing reemployment services.
(1) For trade-affected workers covered
by a certification, States must:
(i) Make available employment and
case management services described in
subpart C of this part, including testing,
counseling, assessment, and placement
services; and
(ii) Provide referrals to, assistance in
securing of, and approvals of training
under subpart F of this part.
(2) If funds provided to carry out this
part are insufficient to make such
services available, States must arrange
to make such services available through
other Federal programs.
(d) Petition filing assistance. (1) States
must facilitate the early filing of
petitions for a group of workers that the
State considers are likely to be eligible
for TAA Program benefits.
(2) For purposes of paragraph (d)(1) of
this section, ‘‘likely to be eligible’’
means the State has a reasonable belief
that a certification will be issued for the
group of workers based on observations
made by State staff; existence of
certifications within the same industry,
sector, or supply chain; or information
or statements from the firm, union,
workers, media coverage, or other
reports.
(3) States must provide assistance to
enable individuals and other entities
eligible to file to prepare petitions or
applications for program benefits.
(4) Petitions must be filed under
paragraph (d)(1) of this section even if
the firm, a union, elected officials, or
members of the group of workers oppose
the filing.
(e) Providing information after
issuance of a certification. (1) States
must inform the State’s board on
vocational and technical education (also
called the eligible agency, as defined in
20 U.S.C. 2302(12)) 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 and of projections, if available,
of the needs for training under subpart
F of this part as a result of such
certification.
(2) Upon receipt of a certification
issued under subpart B of this part by
the Department, the State must provide
a written notice through the mail, of the
benefits available under this part 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
issued if the worker is already partially
or totally separated from adversely
affected employment. The State must
also provide notice to all workers
threatened with separation who may be
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AAIWs. These notices must contain the
following information:
(i) The worker group(s) covered by the
TAA certification and the article(s)
produced or services rendered as
specified in the copy of the certification
furnished to the State;
(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
services available to the workers;
(v) An explanation of how, when, and
where the workers may apply for TAA
Program benefits and services;
(vi) The training enrollment deadlines
(set forth in § 618.720(c)) for TRA
qualification;
(vii) Whom to contact to get
additional information on the
certification; and
(viii) A Babel notice (a short notice in
multiple languages informing the reader
that the communication contains vital
information and explaining how to
access language services to have the
contents of the communication
provided in other languages).
(3) In order to identify these workers,
the State 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 or
threatened with separation within the
certification period. Provision of this
information may be compelled under
the subpoena provisions at § 618.812.
(4) Upon receipt of a copy of a
certification issued by the Department
affecting workers in a State, the State
must publish a notice of the certification
in a newspaper of general circulation in
areas in which such workers reside. The
published notice must include the same
information identified in paragraphs
(e)(2)(i) through (viii) of this section.
(5) Upon receipt of a copy of a
certification issued by the Department,
the State must perform outreach to,
intake of, and orientation for tradeaffected workers covered by the
certification with respect to assistance
and benefits available under this part.
(6) In addition to the mailed written
notice under paragraph (e)(2) of this
section, States must also give notice to
each worker by at least one method of
modern electronic communication
reasonably calculated to reach each
worker. For example, States may give
notice via email to a worker with a
known email address, or by text to a
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worker with a known mobile phone
number.
(7) States may also use other modern
methods of communication, such as
websites and social media, to reach
members of certified worker groups.
(f) Specific benefit assistance to
workers. States must:
(1) Advise each trade-affected worker,
as soon as practicable after the worker
is separated from adversely affected
employment or, if later, after a
certification is issued, or upon notice of
their threatened status, of the benefits
and services available under this part,
including the qualifying requirements,
procedures, and deadlines for applying
for such benefits and services.
(2) Perform an intake interview for
each trade-affected worker (unless the
worker declines the interview) as soon
as practicable after the worker is
separated from adversely affected
employment, after a certification is
issued, or upon notice of their
threatened status. The interview must
be scheduled in time for the worker to
meet the training enrollment deadline
set forth in proposed § 618.725(a).
During the interview, States must
provide information about all of the
benefits available under this part.
§ 618.820 Determinations of eligibility;
notices to individuals.
(a) Determinations on initial
applications. The State whose State law
is the applicable State law must, upon
the filing of an initial application by an
individual, promptly determine the
individual’s eligibility for TAA Program
benefits under this part and may accept
for such purposes information and
findings supplied by another State.
(b) Determinations on subsequent
applications. The State must, upon the
filing of an application for payment of
TRA, RTAA, subsistence and
transportation, job search allowance, or
relocation allowance, promptly
determine whether the individual is
eligible for such payment and, if
eligible, the amount of such payment.
(c) Redeterminations. The provisions
for redeterminations under the
applicable State law applies to
determinations of eligibility for any
benefit under this part.
(d) Use of State law. In making
determinations or redeterminations
under this section, or in reviewing such
determinations or redeterminations
under § 618.820, a State must apply the
regulations in this part. As to matters
committed by this part to be decided
under the applicable State law, a CSA,
a hearing officer, or a State court must
apply the applicable State law and
regulations thereunder, including the
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procedural requirements of the
applicable State law or regulations,
except that no provision of State law or
State 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, unless such State law or
regulation is made applicable by a
specific provision of this part. However,
States must follow the good cause
provision at § 618.730.
(e) Notices to individuals. The State
must notify individuals in writing of
any determination or redetermination of
eligibility to TAA Program benefits.
Each determination or redetermination
must inform the individual of the reason
for 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. States must make full
payment of TAA Program benefits when
due with the greatest promptness that is
administratively feasible.
(g) Procedure. Except where otherwise
required by the Act or this part, the
procedures for making and furnishing
determinations, the promptness
standards, and written notices of
determinations to individuals, must be
consistent with the Department’s
‘‘Standard for Claim Determinations—
Separation Information,’’ Employment
Security Manual, part V, secs. 6010
through 6015 (appendix B of this part).
(h) Successor-in-interest. (1) States are
authorized to determine whether a firm
is a successor-in-interest to a firm
named as the employer of a worker
group on a determination issued under
subpart B of this part.
(2) The factors to be used to determine
whether or not there is a successor-ininterest are established in § 618.110.
(3) If, after reviewing the successor-ininterest factors, the State believes that a
denial of benefits is warranted, the State
must file a new petition requesting an
amendment to the certification under
§ 618.250.
§ 618.824 Liable State and agent State
responsibilities.
(a) Liable State. The liable State, as
defined in § 618.110, is responsible for:
(1) Making all determinations,
redeterminations, and decisions on
appeals on all claims for program
benefits under this part, including job
search and relocation allowances under
subpart D of this part; RTAA under
subpart E of this part; training under
subpart F of this part; subsistence and
transportation payments under subpart
F of this part; Basic, Additional, and
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Completion TRA under subpart G of this
part; and waivers and revocations of
waivers under subpart G of this part;
(2) Providing workers with general
program information and assistance
under § 618.816;
(3)(i) Providing rapid response
assistance and appropriate career
services, as described under sec. 134 of
WIOA, to the group of workers in the
State covered by the petition upon
receiving notice of any such workers for
whom a petition is filed.
(ii) This includes making career
services authorized under other Federal
laws available to the workers covered by
the petition to the extent authorized
under such laws.
(iii) In certain situations, based on the
residency of the group of workers, it
may be appropriate for agent States to
also be involved in the provision of
these services, but in all instances the
liable State must be ultimately
responsible for ensuring the provision of
these services;
(4) Providing information and
assistance to trade-affected workers
under § 618.816(c) (reemployment
services), (e) (information after a
certification is issued), and (f) (specific
benefit assistance to workers) upon
receiving a certification issued by the
Department with respect to affected
workers at a firm or appropriate
subdivision in the State;
(5) Providing a list of eligible TAA
recipients and eligible RTAA recipients,
for HCTC purposes, to the Internal
Revenue Service if HCTC is available;
and
(6) Assisting in other activities and
functions required by the GovernorSecretary Agreement at § 618.804,
including assisting the Department in
the review of petitions by verifying such
information and providing such other
assistance as the Department may
request.
(b) Agent State. The agent State, as
defined in § 618.110, is responsible for:
(1) Providing interstate claimants with
general program information and
assistance under § 618.816(a) and
petition filing assistance under
§ 618.816(d);
(2) Cooperating fully with and
assisting the liable State in carrying out
its responsibilities, activities, and
functions, including the provision of
rapid response and appropriate career
services, as needed;
(3) Cooperating with the liable State
in taking applications and claims for
TAA Program benefits under this part;
(4) Providing employment and case
management services, as described in
subpart C of this part, to trade-affected
workers covered by a certification
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issued by the Department under this
part;
(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, as
described in paragraph (a)(1) of this
section;
(6) Securing, and paying the cost of,
any approved training under subpart F
of this part, and payment of subsistence
and transportation under subpart F of
this part, according to determinations
issued by the liable State;
(7) Paying costs under subpart D of
this part for job search and relocation
allowances; and
(8) Assisting in other activities and
functions required by the Agreement
under § 618.804, including assisting in
the review of petitions by verifying
information and providing such other
assistance as the Department may
request.
(c) Responsibilities under this section.
In most instances, the liable State and
agent State will be the same State and
is responsible for all of the activities and
functions described in paragraphs (a)
and (b) of this section.
§ 618.828
Appeals and hearings.
(a) Applicable State law. Except as
provided in paragraph (b) of this
section, a determination or
redetermination under this part (other
than a determination on the eligibility of
a group of workers under subpart B of
this part, which is subject to review by
the USCIT) is subject to review in the
same manner and to the same extent as
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. The right of
appeal and opportunity for fair hearing
for these proceedings must be consistent
with sec. 303(a)(1) and (3) of SSA (42
U.S.C. 503(a)(1) and (3)).
(b) Allegations of discrimination.
Complaints alleging that a
determination or redetermination under
this part violates applicable Federal
nondiscrimination laws administered by
the U.S. Department of Labor must be
handled in accordance with the
procedures of 29 CFR parts 31, 32, 35,
36, and 38, as applicable, and as
provided in § 618.894
(nondiscrimination and equal
opportunity requirements).
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(c) Appeals promptness. Appeals
under paragraph (a) of this section must
be decided with a degree of promptness
meeting the Department’s ‘‘Standard for
Appeals Promptness—Unemployment
Compensation’’ (20 CFR part 650). Any
provisions of the applicable State law
for advancement or priority of UI cases
on judicial calendars, or other
provisions intended to provide for
prompt payment of UI when due, must
apply equally to proceedings involving
eligibility for TAA Program benefits and
services under this part.
(d) Retroactivity. In the case of a
redetermination or decision reversing a
training denial, the redetermination or
decision must be given effect
retroactively to the date of issuance of
the determination that was subsequently
reversed. However, no costs of training
may be paid unless such costs actually
were incurred for training in which the
individual participated. In addition, if a
TRA application was filed and denied
as a result of the training denial, TRA
may only be paid with respect to any
week during which the individual was
actually participating in the training.
§ 618.832
fraud.
Overpayments; penalties for
(a) Determinations and repayment. (1)
If a State, the Department, or a court of
competent jurisdiction determines that
any person has received any payment
under this part to which the person was
not entitled, including a payment
referred to in paragraph (b) of this
section, such person is required to repay
such amount to the State or the
Department, as appropriate, except that
the State or the Department must waive
such repayment if such State or the
Department determines that:
(i) The payment was made without
fault on the part of such person; and
(ii) Requiring such repayment would
cause a financial hardship for the
person (or their household, if
applicable).
(2) States must provide persons
determined to have received TAA
overpayments a reasonable opportunity
to demonstrate their eligibility for
waiver under the criteria in paragraphs
(a)(1)(i) and (ii) of this section.
(3) A financial hardship exists if
recovery of the overpayment would
result in the person’s (or their
household’s) loss of or inability to pay
for ordinary and necessary living
expenses. This determination must take
into account the income and resources
(including liquid financial resources)
reasonably available to the person (and
their household).
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(4) Fault exists for purposes of
paragraph (a)(1)(i) of this section if any
of the following criteria are met:
(i) Whether a material statement or
representation was made by the person
or individual 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 or
individual 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 or individual had
knowledge, and that was erroneous or
inaccurate or otherwise wrong; or
(v) Whether there has been a
determination of fraud under paragraph
(b) of this section.
(b) False representation or
nondisclosure of material fact. In
addition to any other penalty provided
by law, a person will be permanently
ineligible for any further payments
under this part if a State, the
Department, or a court of competent
jurisdiction determines that:
(1) Such person:
(i) Knowingly made, or caused
another to make, a false statement or
representation of a material fact; or
(ii) Knowingly failed, or caused
another to fail, to disclose a material
fact; and
(2) As a result of such false statement
or representation, or of such
nondisclosure, such person has received
any payment under this part to which
the person was not entitled.
(c) Notice of determination, fair
hearing, and finality. 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 a
determination under paragraph (a)(1) of
this section by the State or the
Department, as appropriate, has been
made, notice of the determination and
an opportunity for a fair hearing thereon
has been given to the person concerned,
and the determination has become final.
(d) Training, job search and
relocation allowances, and RTAA. (1) If
a trade-affected worker fails, with good
cause, to complete training, a job search,
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60267
or a relocation, any payment or portion
of a payment made under this part to
such person or individual properly and
necessarily expended in attempting to
complete such training, job search, or
relocation is not an overpayment.
(2) If a trade-affected worker fails,
without good cause, to complete
training, a job search, or a relocation,
then the portion of a payment for the
noncompleted component of a benefit is
an overpayment. Costs for the
completed portions of the training
program, job search, or relocation are
not an overpayment.
(3) For purposes of this paragraph (d),
good cause exists if the worker acted
diligently yet was unable to complete
training, a job search, or relocation
because of exigent circumstances. The
State must determine good cause on a
worker-by-worker basis.
(4) An overpayment established under
this paragraph (d) must be recovered or
waived as provided in this section.
(5) For RTAA, an individual meets the
‘‘earns not more than $50,000 each year
in wages from reemployment’’
requirement in sec. 246 of the Act for a
given month if the monthly
determination of annualized wages is
accurate and complete at the time it is
made. Payments derived from the
annualized wage projection based on
complete and accurate information at
the time are valid payments that the
individual was entitled to and are not
overpayments.
(e) Overpayment recovery of TAA
Program funds by offset. Unless an
overpayment is otherwise recovered or
is waived, the State—
(1) Must, subject to the limitation in
paragraph (e)(3) of this section, recover
the overpayment by deduction from any
sums payable to such person under:
(i) This part;
(ii) Any Federal UI law administered
by the State; or
(iii) Any other Federal law
administered by the State that provides
for the payment of unemployment
assistance or an allowance with respect
to unemployment.
(2) Must recover the overpayment
from UI payable to such person under
the applicable State law.
(3) Must not allow any single
deduction under this paragraph (e) to
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.
(f) Fraud detection and prevention.
State procedures for the detection and
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prevention of fraudulent overpayments
of TAA benefits must be, at a minimum,
the same as the procedures adopted by
the State with respect to State
unemployment compensation, and
consistent with the Department’s
‘‘Standard for Fraud and Overpayment
Detection,’’ Employment Security
Manual, part V, secs. 7510 through 7515
(appendix C to this part).
(g) Person. For purposes of this
section and § 618.836 (recovery of debts
due the United States or others by TAA
offset), a person includes, in addition to
a trade-affected worker or other
individual, any employer or other entity
or organization as well as the officers
and officials thereof, including any
training provider as well as the officers
and officials thereof, who may bear
individual responsibility for the
overpayment.
(h) Criminal penalties. (1) Any person
who makes a false statement of a
material fact knowing it to be false, or
knowingly fails to disclose a material
fact under the circumstances described
in paragraph (h)(1)(i) or (ii) of this
section, must be imprisoned for not
more than 1 year, fined under title 18,
United States Code, or both.
(i) For the purpose of obtaining or
increasing for that person or for any
other person any payment authorized to
be furnished under the Act or pursuant
to an agreement under sec. 239 of the
Act; or
(ii) When providing information
during an investigation of a petition
under sec. 221 of the Act.
(2) Whenever a violation under
paragraph (h)(1) of this section is
suspected, the State or the Department
must refer the conduct to the U.S.
Department of Labor Office of the
Inspector General.
§ 618.836 Recovery of debts due the
United States or to others by Trade
Adjustment Assistance offset.
(a) Debt due the United States.
Notwithstanding any other provision of
this part, the State must apply TAA
benefits, payable under this part to a
person (as described in § 618.832(g)), for
the recovery by offset of any debt due
the United States from the person.
(b) Debt due to others. The State must
not apply TAA Program benefits for the
payment of any debt of any person to
any State or any other entity or person,
except for TRA and RTAA benefits as
required by Federal UI law.
§ 618.840 Uniform interpretation and
application of this part.
(a) First rule of construction. The
implementing regulations in this part
will be construed liberally to carry out
the purposes of the Act.
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(b) Second rule of construction. The
implementing regulations in this part
will be construed to assure, insofar as
possible, the uniform interpretation and
application of the Act and this part
throughout the United States.
(c) Effectuating purposes and rules of
construction. (1) To effectuate the
purposes of the Act and this part and to
assure uniform interpretation and
application of the Act and this part
throughout the United States:
(i) A State must, upon request,
forward to the Department, not later
than 10 days from the date of the
request, a copy of any administrative
ruling on an individual’s eligibility to
TAA benefits under this part.
(ii) Notwithstanding paragraph
(c)(1)(i) of this section, a State must
forward to the Department a copy of any
determination or redetermination on an
individual’s eligibility to TAA benefits
under this part appealed to the State’s
highest UI administrative appeals
authority.
(iii) A State must forward to the
Department a copy of notice of the
institution of a State or Federal court
proceeding and any State or Federal
court ruling on an individual’s
eligibility to TAA Program benefits
under this part, within 10 days of the
notice or ruling.
(2) If the Department concludes that a
determination, redetermination, or
decision is inconsistent with the
Department’s interpretation of the Act
or this part, the Department may at any
time notify the State of the Department’s
view. Thereafter, the State must issue a
redetermination or appeal if possible
and must not follow such
determination, redetermination, or
decision as a precedent; and, in any
subsequent proceedings that involve
such determination, redetermination, or
decision, or wherein such
determination, redetermination, or
decision is cited as precedent or
otherwise relied upon, the State must
inform the claims deputy or hearing
officer or court of the Department’s view
and must make all reasonable efforts,
including appeal or other proceedings
in an appropriate forum, to obtain
modification, limitation, or overruling
of the determination, redetermination,
or decision.
(3) If the Department concludes that a
determination, redetermination, or
decision is patently and flagrantly
violates of the Act or this part, the
Department may at any time notify the
State of the Department’s view. If the
determination, redetermination, or
decision in question denies TAA to an
individual, the State must follow the
steps outlined in paragraph (c)(2) of this
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section. If the determination,
redetermination, or decision in question
awards TAA to an individual, the
benefits are ‘‘due’’ within the meaning
of sec. 303(a)(1) of SSA (42 U.S.C.
503(a)(1)), and therefore must be paid
promptly to the individual. However,
the State must take the steps outlined in
paragraph (c)(2) of this section, and
payments to the individual may be
temporarily delayed if redetermination
or appeal action is taken not more than
1 business day following the day on
which the first payment otherwise
would be issued to the individual; and
the redetermination action is taken or
appeal is filed to obtain a reversal of the
award of TAA and a ruling consistent
with the Department’s view; and the
redetermination action or appeal seeks
an expedited redetermination or appeal
within not more than 2 weeks after the
redetermination action is taken. If
redetermination action is not taken or
appeal is not filed within the above time
limit, or a redetermination or decision is
not obtained within the 2-week limit, or
any redetermination or decision or order
is issued that affirms the determination,
redetermination, or decision awarding
TAA or allows it to stand in whole or
in part, the benefits awarded must be
paid promptly to the individual.
(4)(i) If any determination,
redetermination, or decision, referred to
in paragraph (c)(2) or (3) of this section,
is treated as a precedent for any future
application for TAA, the Secretary will
decide whether the Agreement with the
State entered into under the Act and
this part will be terminated and
§ 618.804(e) applied.
(ii) In the case of any determination,
redetermination, or decision that is not
legally warranted under the Act or this
part, including any determination,
redetermination, or decision referred to
in paragraph (c)(2) or (3) of this section,
the Secretary will decide whether the
State must restore the funds of the
United States for any sums paid under
such a determination, redetermination,
or decision, and whether, in the absence
of such restoration, the Agreement with
the State will be terminated and
§ 618.804(e) applied and whether other
action must be taken to recover such
sums for the United States.
(5) A State may request, in writing,
within 10 calendar days of receiving a
notice under paragraph (c)(2) or (3) of
this section, reconsideration of the
notice. The State will have an
opportunity to present its views and
arguments if desired. The State must
submit such a request to the Secretary
and may include views and arguments
on the matters the Secretary is to decide
under paragraph (c)(3) of this section.
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The Secretary must respond to the
State’s reconsideration request within
30 calendar days of receiving the
request.
(6) Concurrence of the Department
with a determination, redetermination,
or decision must not be presumed from
the absence of a notice issued pursuant
to this section.
(d) Payment when due. If the
determination, redetermination, or
decision in question awards TAA
Program benefits to an individual, the
benefits are ‘‘due’’ within the meaning
of sec. 303(a)(1) of SSA (42 U.S.C.
503(a)(1)), and therefore must be paid
promptly to the individual. Payments to
the individual may be temporarily
delayed if a redetermination is issued
not more than 1 business day following
the day on which the first payment
otherwise would be issued to the
individual; and the State seeks an
expedited appeal decision within not
more than 2 calendar weeks after the
appeal is filed. If the redetermination is
not issued or the appeal is not filed
within the time limit in the preceding
sentence, or the decision on appeal is
not obtained within the 2-calendar week
limit in the preceding sentence, or any
decision on appeal is issued that affirms
the determination, redetermination, or
decision awarding benefits under this
part or allows it to stand in whole or in
part, the benefits awarded must be paid
promptly to the individual.
§ 618.844 Inviolate rights to Trade
Adjustment Assistance or Reemployment
Trade Adjustment Assistance.
(a) Except as specifically provided in
this part, the rights of individuals to
TAA Program benefits will be protected
in the same manner and to the same
extent as the rights of persons to UI are
protected under the applicable State
law. Such measures must include
protection of applicants for TAA
Program benefits from waiver, release,
assignment, pledge, encumbrance, levy,
execution, attachment, and garnishment
of their rights to TAA Program benefits,
except as provided in §§ 618.832
(overpayments; penalties for fraud) and
618.836 (recovery of debts due the
United States or others by TAA offset).
(b) In the same manner and to the
same extent as the rights of persons to
UI are protected under the applicable
State law, individuals must be protected
from discrimination and obstruction in
regard to the right to seek, apply for, and
receive any TAA Program benefit.
§ 618.848
Veterans’ priority of service.
The State must give priority for
approval and funding of TAA Program
benefits (including training, where the
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approval of training criteria are met) to
a trade-affected worker meeting the
veterans’ priority of service criteria
established under 38 U.S.C. 4215.
§ 618.852 Recordkeeping and disclosure
of information requirements.
(a) Recordkeeping. (1) Each State must
make and maintain such records
pertaining to the administration of the
Act as the Department requires and
must make all such records available for
inspection, examination, and audit by
such Federal officials as the Department
may designate or as may be required by
law.
(2)(i) States must maintain records
that contain any information that the
Department determines to be
appropriate in support of any reports
that the Department may require,
including those reports specified in
§§ 618.860(f) (general fiscal and
administrative requirements) and
618.864(e) (TAA Program performance).
(ii) States must maintain records as
required by 2 CFR 200.333 for 3 years,
or as indicated at 2 CFR 200.333(a)
through (f).
(3) States must comply with the
records requirements established in the
Uniform Guidance at 2 CFR 200.333
through 200.337.
(4) States must document that they
provided or offered the employment and
case management services described in
subpart C of this part to all tradeaffected workers, either in a paper-based
or electronic case management system.
States must make these systems
available for review upon request by the
Department. Additionally, the case
management file of each participant
must demonstrate that the State notified
each worker of the training enrollment
deadlines set forth in proposed
§ 618.725(a).
(b) Disclosure of information. (1)
Information in records maintained by a
State in administering the Act must be
kept confidential, and information in
such records may be disclosed only in
the same manner and to the same extent
as information with respect to UI and
the entitlement of individuals thereto
may be disclosed under the applicable
State law. Such information must not,
however, be disclosed to an employer or
any other person except to the extent
necessary to obtain information from the
employer or other person for the
purposes of this part. The provision in
this paragraph (b)(1) on the
confidentiality of information
maintained in the administration of the
Act does not apply in the following
circumstances:
(i) Disclosures to the Department;
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(ii) For the purposes of § 618.832 or
paragraph (a) of this section;
(iii) For providing information,
reports, and studies required by
§ 618.856 (information, reports, and
studies); or
(iv) Where nondisclosure would be
inconsistent with the Freedom of
Information Act (5 U.S.C. 552) or the
Privacy Act of 1974 (5 U.S.C. 552a).
(2) Where a State obtains confidential
business information as part of assisting
in an investigation under subpart B of
this part, it must protect that
information as required under that
subpart.
(c) Format of records and forms.
Forms and records used and maintained
by States in the administration of this
part may exist in paper or electronic
form or a combination thereof.
Regardless of the medium, these records
must be available and accessible as
required under paragraph (a)(1) of this
section for oversight purposes.
(d) Electronic signatures. Electronic
signatures are allowed where such use
is in accordance with the Electronic
Signatures in Global and National
Commerce Act (Pub. L. 106–229).
§ 618.856
studies.
Information, reports, and
A State must furnish to the
Department such information and
reports and conduct such studies as the
Department determines are necessary or
appropriate for carrying out the
purposes of the Act and this part.
§ 618.860 General fiscal and administrative
requirements and cost classification.
(a) Uniform fiscal and administrative
requirements. (1) Each State receiving
funds allocated for the TAA Program
from the Department as an agent of the
United States, must administer the TAA
Program in accordance with the
Uniform Guidance at 2 CFR part 200
and 2 CFR part 2900 and with the
funding agreement.
(2) A State may expend funds
awarded to it during a Federal fiscal
year to carry out TAA Program activities
under secs. 235 through 238 of the Act
during that Federal fiscal year and the
succeeding 2 Federal fiscal years.
(3) Equipment, as described in 2 CFR
200.33 and computing devices, as
described in 2 CFR 200.20, includes
equipment acquired with TAA funds
under both current and prior
Agreements.
(4) The addition method, described at
2 CFR 200.307, must be used for all
program income earned under TAA
grants. When the cost of generating
program income has been charged to
such grant, the gross amount earned
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must be added to such grant. However,
when these costs have not been charged
to such grant, the cost of generating
program income must be subtracted
from the amount earned to establish the
net amount of program income available
for use under such grant.
(b) Administrative costs. (1) The
administrative cost limit for the fiscal
year program funding allocation for
training, job search assistance, and
relocation allowances is included in the
TAA Program Annual Funding
Agreement, with which States must
comply.
(2) For purposes of the TAA Program,
the costs of administration are the costs
associated with performing the overall
general administrative functions of the
TAA Program in paragraphs (b)(2)(i)
through (xviii) of this section and the
coordination thereof within the
American Job Center network
established under WIOA:
(i) Accounting, budgeting, financial
and cash management functions;
(ii) Procurement and purchasing
functions;
(iii) Property management functions;
(iv) Personnel management functions;
(v) Payroll functions;
(vi) Coordinating the resolution of
findings arising from audits, reviews,
investigations, and incident reports;
(vii) Audit functions;
(viii) General legal services functions;
(ix) Developing systems and
procedures, including information
systems, required for these
administrative functions;
(x) Processing applications for
benefits under the Act;
(xi) Rendering and issuing eligibility
determinations under the Act;
(xii) Performing oversight and
monitoring responsibilities related to
administrative functions;
(xiii) Costs of goods and services
required for administrative functions of
the program, including goods and
services such as rental or purchase of
equipment, utilities, office supplies,
postage, and rental and maintenance of
office space;
(xiv) Travel costs incurred for official
business in carrying out administrative
activities or the overall management of
the TAA Program;
(xv) Costs of information systems
related to administrative functions (i.e.,
personnel, procurement, purchasing,
property management, accounting, and
payroll systems), including the
purchase, systems development, and
operating costs of such systems;
(xvi) Processing waivers of training
requirements under subpart G of this
part;
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(xvii) Collecting, validating, and
reporting data required under the Act;
and
(xviii) Providing RTAA under subpart
E of this part.
(3) Awards to subrecipients or
contractors that are solely for the
performance of administrative functions
constitute administrative costs.
(4) Personnel and related
nonpersonnel costs of staff that perform
both administrative functions specified
in paragraph (b)(2) of this section and
programmatic services or activities must
be allocated as administrative or
program costs to the benefitting cost
objectives/categories based on
documented distributions of actual time
worked or other equitable cost
allocation methods.
(5) Costs of the information systems in
paragraphs (b)(5)(i) through (iii) of this
section, including the purchase, systems
development, and operational costs, are
charged to the program category:
(i) Tracking or monitoring of
participant and performance
information, including employment and
case management services and
activities;
(ii) Employment statistics
information, including job listing
information, job skills information, and
demand occupation information. States
must leverage existing resources
provided under other Federal programs;
and
(iii) Maintenance and enhancement of
the systems specified in paragraphs
(b)(5)(i) and (ii) of this section.
(6) Wherever possible, States must
make efforts to streamline the
administrative activities and services
listed in this section by minimizing
duplication and effectively using
information technology to improve
services and leveraging resources across
programs.
(c) Prior approval. (1) Equipment
purchases under the TAA Program are
subject to the provisions at 2 CFR
200.313. In compliance with 2 CFR
2900.16, prior approval is hereby
provided for equipment purchases
under the TAA Program.
(2) As provided in 2 CFR
200.439(b)(1), the Department retains
the prior approval requirement related
to capital expenditures (2 CFR 200.13)
and for capital assets (2 CFR 200.12)
other than equipment.
(d) Audit and oversight requirements.
(1) All States, local governments,
nonprofit organizations, and for-profit
entities that are recipients or
subrecipients of TAA Program funds
must follow the audit requirements
under 2 CFR 200.500 through 200.521
and 2 CFR 2900.20.
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(2)(i) Oversight and monitoring. Each
recipient and subrecipient of funds
under the Act must conduct regular
oversight and monitoring of its program
and those of any subrecipients and
contractors, as required under sec.
239(i) of the Act, as well as under 2 CFR
part 200, including 2 CFR 200.328,
200.330, and 200.331, and Department
exceptions at 2 CFR part 2900, in order
to:
(A) Determine that expenditures have
been made against the proper cost
categories and within the cost
limitations specified in the Act, the
regulations in this part, and
administrative guidance;
(B) Determine whether there is
compliance with other provisions of the
Act, the regulations in this part, and
administrative guidance;
(C) Assure compliance with 2 CFR
part 200 and the Department’s
exceptions at 2 CFR part 2900; and
(D) Determine compliance with the
nondiscrimination, disability, and equal
opportunity requirements of sec. 188 of
WIOA, including the Assistive
Technology Act of 1998 (29 U.S.C.
3003).
(ii) Resolution of subrecipient-level
findings. (A) The Governor is
responsible for resolving findings that
arise from the monitoring reviews,
investigations, other Federal monitoring
reviews, and audits (including under 2
CFR part 200) of subrecipients awarded
funds through the Act.
(B) A State must use the written
monitoring and audit resolution, debt
collection and appeal procedures that it
uses for other Federal grant programs.
(C) If a State does not have such
written procedures as described in
paragaph (d)(2)(ii)(B) of this section, it
must prescribe standards and
procedures to govern this grant program.
(D) For subrecipients awarded funds
through a recipient of grant funds, the
direct recipient of the grant funds must
have written monitoring and resolution
procedures in place that are consistent
with 2 CFR part 200.
(iii) Resolution of State findings. (A)
The Secretary is responsible for
resolving findings that arise from
Federal audits, monitoring reviews,
investigations, incident reports, and
audits under 2 CFR part 200 for direct
recipients of Federal awards under the
Act.
(B) The Secretary will use the
Department’s audit resolution process,
consistent with 2 CFR part 2900,
subpart F.
(C) A final determination issued by a
Grant Officer under the process in this
paragraph (d)(2)(iii) may be appealed to
the DOL Office of Administrative Law
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Judges under the procedures in 2 CFR
2900.22.
(e) Government-wide debarment and
suspension, and government-wide drugfree workplace requirements. All TAA
Program fund recipients and
subrecipients must comply with the
Government-wide requirements for
debarment and suspension under
subparts G and H of 2 CFR part 180 and
the Government-wide requirements for a
drug-free workplace at 29 CFR part 98.
(f) Fiscal reporting requirements for
States. (1) In accordance with 2 CFR
200.327 and 2 CFR 2900.14, each State
must submit a quarterly financial report
to the Department as specified in the
reporting instructions approved by
OMB.
(2) States must report financial data
on an accrual basis, and cumulatively
by funding year of appropriation.
Financial data may also be required on
specific program activities as specified
in the reporting instructions as
approved by OMB.
(3) If the State’s accounting system is
not on the accrual basis of accounting,
the State must develop accrual
information through best estimates
based on an analysis of the
documentation on hand.
(4) The State must:
(i) Obligate funds on not less than a
quarterly basis; and
(ii) Periodically review obligations
and, in an appropriate and timely
manner, de-obligate funds when a
participant drops, completes, or is no
longer eligible for training.
(g) Use of funds. Of the funds
awarded to the States to carry out secs.
235 through 238 of the Act for a fiscal
year, the State must use:
(1) Not more than 10 percent for the
costs of administration, provided in
paragraph (b)(2)(i) of this section; and
(2) Not less than 5 percent for
employment and case management
services under sec. 235 of the Act.
(h) Technology. States must maintain
sufficient and effective technology for
the purpose of tracking and reporting
required participant data, and to
provide appropriate services under the
TAA Program.
(i) Designation of resources for
Management Information Systems (MIS)
development. States are required to
dedicate an appropriate portion of
administrative and employment and
case management funding under TAA
for management information systems
development, upgrades, and ongoing
maintenance.
§ 618.864 Trade Adjustment Assistance
Program performance.
(a) General rule. Each State must
report to the Department comprehensive
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performance accountability measures, to
consist of:
(1) The primary indicators of
performance described in paragraph (b)
of this section;
(2) The additional indicators of
performance established under
paragraph (c) of this section, if any; and
(3) A description of efforts made to
improve outcomes for workers under
the TAA Program that promote efficient
and effective program performance as
provided in this section.
(b) Primary indicators of
performance—(1) Primary indicators.
The primary indicators of performance
shall consist of:
(i) The percentage and number of
workers who received benefits under
the TAA Program who are in
unsubsidized employment during the
second calendar quarter after exit from
the program;
(ii) The percentage and number of
workers who received benefits under
the TAA Program and who are in
unsubsidized employment during the
fourth calendar quarter after exit from
the program;
(iii) The median earnings of workers
who are in unsubsidized employment
during the second quarter after exit from
the program;
(iv) The percentage and number of
workers who received benefits under
the TAA Program (excluding those in
OJT and customized training) who
obtain a recognized postsecondary
credential or a secondary school
diploma or its recognized equivalent,
during participation in the program or
within 1 year after exit from the
program; and
(v) The percentage and number of
workers who received benefits under
the TAA Program who, during a year
while receiving such benefits, are in an
education or training program that leads
to a recognized postsecondary
credential or employment and who are
achieving measurable gains in skills
toward such a credential or
employment.
(2) Indicator relating to credential
attainment. For purposes of paragraph
(b)(1)(iv) of this section, a worker who
received benefits under the TAA
Program who obtained a secondary
school diploma or its recognized
equivalent is included in the percentage
counted for purposes of paragraph
(b)(1)(iv) of this section only if the
worker, in addition to obtaining such a
diploma or its recognized equivalent,
has obtained or retained employment or
is in an education or training program
leading to a recognized postsecondary
credential within 1 year after exit from
the program.
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60271
(c) Additional indicators. The
Department and a State may agree upon
additional indicators of performance for
the TAA Program, as appropriate.
(d) Use of wage records. States must,
consistent with State law, use quarterly
wage record information, as defined in
20 CFR 677.175, in measuring the
progress on program performance
indicators in paragraphs (b) and (c) of
this section.
(1) The use of Social Security
numbers from participants and such
other information as is necessary to
measure the progress of those
participants through quarterly wage
record information is authorized.
(2) States that participate in data
sharing agreements for the purposes of
obtaining wage record information may
use such data sharing agreements to
obtain wage record information for
workers who received benefits under
the TAA Program.
(3) To the extent that quarterly wage
records are not available for a
participant, States may use other
information as is necessary to measure
the progress of the participant.
(e) Reporting requirements—(1) Data
required. States must report TAA
Program demographics, performance,
and services data, identified in
paragraphs (b) and (c) of this section, to
the Department on such forms and in
such manner as the Department may
prescribe.
(2) Data reliability and validity. States
are required to establish procedures that
are consistent with administrative
guidance the Department issues to
ensure the data States submit are valid
and reliable.
(f) Publication of performance results.
The Department will publish, annually,
through electronic means, including
posting on the Department’s website,
the TAA Program performance results of
the States.
(g) Control measures—(1) In general.
Each State must implement effective
control measures to effectively oversee
the operation and administration of the
TAA Program and ensure the accurate
collection of program data.
(2) Location. The control measures
must be internal to a system used by the
State to collect data.
(3) Purpose. States will implement
these control measures in order to:
(i) Oversee the operation and
administration of the TAA Program
under this part;
(ii) Improve the timeliness and
verifiability of reported data; and
(iii) Verify the accuracy of reported
data, and must require:
(A) Periodic staff training;
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(B) Participation in data validation
and integrity efforts, as directed by the
Department;
(C) Data analysis and monitoring on a
quarterly basis to identify inaccurate
data input;
(D) Data analysis and monitoring on a
quarterly basis to identify missing data;
and
(E) Resubmission of required reports
upon correcting data the State identifies
as a result of paragraphs (g)(3)(iii)(B)
through (D) of this section.
(4) Monitoring program. In order to
ensure the effective and efficient
operation of the TAA Program, States
must adopt a formal monitoring
program designed to review and audit
worker files.
(i) The monitoring program must be
designed to identify and share best
practices, identify and correct
deficiencies, and identify and address
staff training needs.
(ii) A minimum quarterly random
sample of 20 cases must be audited as
part of the monitoring program and
must include cases from at least 2
certifications issued under subpart B of
this part.
(iii) The four quarterly samples within
a calendar year must also cover at least
four different areas of the State
administering the program.
(iv) If circumstances preclude a State
from meeting the criteria in paragraphs
(g)(4)(ii) and (iii) of this section, the
State must contact the appropriate ETA
regional office to design a monitoring
program that better suits the TAA
Program in that State, and make sure it
is sufficient to ensure the accuracy and
verifiability of such data.
(h) Data on benefits received, training,
outcomes, rapid response activities, and
spending. Data submitted by the States
must be sufficient to provide, at a
minimum, the information required in
sec. 249B of the Act, including the
following information:
(1) The number of workers receiving
benefits under the TAA Program;
(2) The number of workers receiving
each type of benefit, including
employment and case management
services, training, job search and
relocation allowances, TRA (Basic,
Additional, and Completion) and RTAA
payments, and, to the extent feasible,
the HCTC, if available;
(3) The average time during which
such workers receive each type of
benefit;
(4) The average number of weeks TRA
were paid to workers;
(5) The number of workers who report
that they have received benefits under a
prior certification in any of the 10 fiscal
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years preceding the fiscal year for which
the data are collected under this section;
(6) The number of workers who
received TAA approved training,
classified by major types of training,
including but not limited to, classroom
training, training through distance
learning, training leading to an
associate’s degree, remedial education,
prerequisite education, OJT, and
customized training;
(7) The number of workers who exited
TAA approved training, including who
received prelayoff training or part-time
training at any time during that training;
(8) The average duration of training
and the average duration of training that
does not include remedial or
prerequisite education;
(9) The number of training waivers
granted, classified by type of waiver;
(10) The number of workers who
exited training and the average duration
of such training;
(11) The number of workers who do
not complete training and the average
duration of the training such workers
completed;
(12) The average cost per worker of
receiving TAA approved training;
(13) The percentage of workers who
received TAA approved training and
obtained unsubsidized employment in a
field related to that training;
(14) The age, preprogram educational
level, and post-program credential
attainment of the workers;
(15) The median earnings of workers
during the second calendar quarter after
exit from the program, expressed as a
percentage of the median earnings of
such workers before the calendar
quarter in which such workers began
receiving benefits under this part;
(16) The sectors in which workers are
employed after receiving benefits under
this part;
(17) Whether rapid response activities
were provided with respect to each
petition filed;
(18) The total amount of funds used
to pay for TRA by the State; and
(19) The total amount of the TaOA
payments to the State.
§ 618.868
Unemployment Insurance.
UI payable to an AAW shall not be
denied or reduced for any week by
reason of any right to a payment of TAA
under the Act and this part.
§ 618.872 Travel under the Trade
Adjustment Assistance Program.
(a) TAA Program participants are
subject to the FTR at 41 CFR chapters
300 through 304 for all travel paid for
with TAA Program funds.
(b) Except for the definition of
‘‘commuting area,’’ States may not apply
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State or local travel policies and
restrictions to TAA Program
participants receiving reimbursements
for travel under the Act.
(c) In instances where the FTR is
silent or defers to the Federal agency’s
travel policies, the State must apply the
relevant policies of the Department.
§ 618.876 Verification of eligibility for
program benefits.
(a) Overall program eligibility. In
addition to all other eligibility criteria
contained in this part, an individual
must also be authorized to work in the
United States to receive benefits under
the TAA Program. States are required to
verify the status of participants who are
not a citizen or national of the United
States.
(b) Initial verification. All States are
required, under sec. 1137(d) of SSA (42
U.S.C. 1320b–7(d)), to initially verify
the immigration status of self-reporting
aliens who apply for UI through the
system designated by the U.S. Customs
and Immigration Service (or USCIS),
currently the Systematic Alien
Verification for Entitlement (or SAVE)
program. No further verification is
required except as described in
paragraph (c) of this section.
(c) Reverification. (1) Once a State has
verified satisfactory immigration status
initially, the State must reverify the
worker’s immigration status if the
documentation provided during initial
verification will expire during the
period in which that worker is
potentially eligible to receive benefits
under this subchapter.
(2) The State must conduct such
redetermination in a timely manner,
using the immigration status verification
system described in sec. 1137(d) of SSA
(42 U.S.C. 1320b–7(d)) or by review of
other documentation, as described in
that provision.
§ 618.884 Special rule with respect to
military service.
(a) In general. Notwithstanding any
other provision of this part, a State may
waive any requirement of this part that
the States determines is necessary to
ensure that an AAW who is a member
of a reserve component of the Armed
Forces and serves a period of duty
described in paragraph (b) of this
section is eligible to receive a trade
readjustment allowance, training, and
other benefits under this part in the
same manner and to the same extent as
if the worker had not served the period
of duty.
(b) Period of duty described. An AAW
serves a period of duty described in
paragraph (a) of this section if, before
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completing training under sec. 236 of
the Act, the worker:
(1) Serves on active duty for a period
of more than 30 days under a call or
order to active duty of more than 30
days; or
(2) In the case of a member of the
Army National Guard of the United
States or Air National Guard of the
United States, performs full-time
National Guard duty under 32 U.S.C.
502(f) for 30 consecutive days or more
when authorized by the President or the
Secretary of Defense for the purpose of
responding to a national emergency
declared by the President and supported
by Federal funds.
§ 618.888
Equitable tolling.
(a) A TAA Program deadline must be
equitably tolled when:
(1) An extraordinary circumstance
prevented an individual’s timely action;
and
(2) The individual otherwise acted
with diligence.
(b)(1) When an individual fails to take
timely action because the State failed to
give notice required under this part, that
failure is prima facie evidence of an
extraordinary circumstance.
(2) If the individual did not receive
the required notice, but otherwise
received actual notice with sufficient
time to take timely action, the lack of
receipt of the required notice is not
evidence of an extraordinary
circumstance.
(c) A TAA Program deadline equitably
tolled under this section is tolled for the
time period during which the
extraordinary circumstance exists. Once
that circumstance is resolved, the time
period that was tolled begins to run
again.
(d) Equitable tolling may extend an
otherwise expired TAA Program
deadline by no more than 36 months.
§ 618.890
Staffing flexibility.
(a) Staff employed under a merit
personnel system as provided in sec.
303(a)(1) of the Social Security Act must
be used for all reviews of benefit
determinations under applicable State
law.
(b) All determinations on eligibility
for TAA Program benefits must be made
by State staff, with the exception of the
functions in paragraph (a) of this
section, which must be made by staff
meeting the criteria in paragraph (a) of
this section.
(c) All other functions under the TAA
Program, not subject to paragraphs (a)
and (b) of this section, may be provided
under a variety of staffing models.
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§ 618.894 Nondiscrimination and equal
opportunity requirements.
(a) States and subrecipients of
financial assistance under the TAA
Program are required to comply with the
nondiscrimination and equal
opportunity provisions codified in the
Department’s regulations at 29 CFR
parts 31, 32, 35, and 36.
(b) States and subrecipients of
financial assistance under the TAA
Program are required to comply with the
nondiscrimination and equal
opportunity requirements of WIOA sec.
188 and its implementing regulations at
29 CFR part 38 if the agency or
subrecipient:
(1) Operates its TAA programs and
activities as part of the one-stop delivery
system established under the WIOA; or
(2) Otherwise satisfies the definition
of ‘‘recipient’’ in 29 CFR 38.4(zz).
(c) Questions about the
nondiscrimination requirements cited in
this section may be directed to the
Director, Civil Rights Center, U.S.
Department of Labor, Room N–4123,
200 Constitution Avenue NW,
Washington, DC 20210.
(d)(1) This section does not affect the
rights and protections (and exceptions
thereto) available under any other
Federal law or regulation regarding
discrimination.
(2) This section does not affect the
rights and protections (and exceptions
thereto) available under any other State
or local law or regulation regarding
discrimination, except as provided in
paragraph (d)(3) of this section.
(3) No State may discriminate on any
basis protected by 29 CFR parts 31, 32,
35, 36, and 38 (and exceptions thereto),
as applicable, in determining an
individual’s eligibility for any of the
following:
(i) Receiving aid, benefits, services,
training, or employment;
(ii) Participating in any TAA program
or activity;
(iii) Being employed by any State; or
(iv) Practicing any occupation or
profession.
§ 618.898
Applicable State law.
(a) The applicable State law for an
AAW 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).
(b) For purposes of determining the
applicable State law for UI entitlement:
(1) A 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;
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(2) In the case of a combined-wage
claim, UI entitlement must be
determined under the law of the paying
State; and
(3) In case of a Federal UI claim, or
a joint State and Federal UI claim, UI
entitlement must be determined under
the law of the applicable State for such
claims.
Subpart I—Allocation of Funds to
States for Training and Other Activities
Authority: 19 U.S.C. 2320; Secretary’s
Order No. 6–2010, 75 FR 66267 (Oct. 27,
2010).
§ 618.900 Annual cap on funds available
for Training and Other Activities.
(a) The total amount of funds made
available for the costs of carrying out
secs. 235 through 238 of the Act,
referenced here as Training and Other
Activities (TaOA), will not exceed the
annual cap established under sec.
236(a)(2)(A) of the Act. For each of
Fiscal Years (FYs) 2015 through 2021,
this cap is $450,000,000.
(b) Funds obligated during a fiscal
year to carry out activities under secs.
235 through 238 of the Act may be
expended by the State receiving such
funds during that fiscal year and the
succeeding 2 fiscal years.
§ 618.910
Initial allocation of funds.
(a) Initial allocation. In the initial
allocation for a fiscal year, the
Department will allocate 65 percent of
the funds available under sec.
236(a)(2)(A) of the Act for that fiscal
year. The Department will announce the
amount of each State’s initial allocation
of funds, determined in accordance with
the requirements of this section, at the
beginning of each fiscal year. The
Department will determine this initial
allocation on the basis of the total funds
available under the annual cap for that
year, even if the full amount has not
been appropriated to the Department at
that time.
(b) Timing of the distribution of the
initial allocation. The Department will,
as soon as practical, distribute the initial
allocation announced under paragraph
(a) of this section. However, the
Department will not distribute the full
amount of the initial allocation until it
receives the entire fiscal year’s
appropriation of funds for TaOA. If the
full year’s appropriated amount for
TaOA is less than the annual cap on
funds available for TaOA, then the
Department will distribute 65 percent of
the amount appropriated.
(c) Hold harmless provision. Except as
provided in paragraph (d) of this
section, or required by the
appropriation, in no case will the
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amount of the initial allocation to a
State in a fiscal year be less than 25
percent of the initial allocation to that
State in the preceding fiscal year.
(d) Minimum initial allocation. If a
State has an adjusted initial allocation
of less than $100,000, as calculated in
accordance with paragraph (e)(2) of this
section, that State will not receive an
initial allocation, and the funds that
otherwise would have been allocated to
that State instead will be allocated
among the other States in accordance
with this section. A State that does not
receive an initial allocation may apply
to the Department under § 618.920(b) for
reserve funds to obtain funding for
TaOA.
(e) Process of determining initial
allocation. (1) The Department will first
apply the factors described in paragraph
(f) of this section to determine an
unadjusted initial allocation for each
State.
(2) The Department will then apply
the hold harmless provision of
paragraph (c) of this section to the
unadjusted initial allocation, as follows:
(i) A State whose unadjusted initial
allocation is less than its hold harmless
amount but is $100,000 or more, will
have its initial allocation adjusted up to
its hold harmless amount in accordance
with paragraph (c) of this section. If a
State’s unadjusted allocation is less than
$100,000, the State will receive no
initial allocation, in accordance with
paragraph (d) of this section, and those
funds will be distributed among the
other States as provided in paragraph
(e)(3) of this section.
(ii) A State whose unadjusted initial
allocation is no less than its hold
harmless threshold will receive its hold
harmless amount and, in addition, will
receive an adjustment equal to the
State’s share of the remaining initial
allocation funds, as provided in
paragraph (e)(3) of this section.
(3) Any initial allocation funds
remaining after the adjustments to
initial allocations are applied as
described in paragraph (e)(2)(i) of this
section will be distributed among the
States with unadjusted initial
allocations that were no less than their
respective hold harmless amounts, as
described in paragraph (e)(2)(ii) of this
section (the remaining States). The
distribution of the remaining initial
allocation funds among the remaining
States will be made by using the
formula in paragraph (f) of this section.
This recalculation will disregard States
receiving only their hold harmless
amount under paragraph (e)(2)(i) of this
section, so that the combined
percentages of the remaining States total
100 percent.
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19:05 Nov 06, 2019
Jkt 250001
(f) Initial allocation factors. (1) In
determining how to make the initial
allocation of funds, the Department will
apply, as provided in paragraph (f)(3) of
this section, the following factors with
respect to each State:
(i) Factor 1: The trend in the number
of trade-affected workers covered by
certifications during the most recent 4
consecutive calendar quarters for which
data are available. The trend will be
established by assigning a greater weight
to the most recent quarters, giving those
quarters a larger share of the factor;
(ii) Factor 2: The trend in the number
of workers participating in training
during the most recent 4 consecutive
calendar quarters for which data are
available. The trend will be established
by assigning a greater weight to the most
recent quarters, giving those quarters a
larger share of the factor;
(iii) Factor 3: The number of workers
estimated to be participating in training
during the fiscal year. The estimate will
be calculated by dividing the weighted
average number of workers in training
for the State determined in paragraph
(f)(1)(ii) of this section by the sum of the
weighted averages for all States and
multiplying the resulting ratio by the
projected national average of workers in
training for the fiscal year, using the
projection methodology underlying the
Department’s most recent budget
submission or update; and
(iv) Factor 4: The amount of funding
estimated to be necessary to provide
TAA approved training to such workers
during the fiscal year. The estimate will
be calculated by multiplying the
estimated number of training
participants in paragraph (f)(1)(iii) of
this section by the average training cost
for the State. The average training cost
will be calculated by dividing total
training expenditures for the most
recent 4 quarters by the average number
of training participants for the same
time period.
(2) The four factors listed in
paragraphs (f)(1)(i) through (iv) of this
section are given equal weight.
(3) For each of the factors in
paragraphs (f)(1)(i) through (iv) of this
section, the Department will determine
the national total and each State’s
percentage of the national total. Based
on a State’s percentage of each of these
factors, the Department will determine
the percentage that the State will receive
of the total amount available for initial
allocation for that fiscal year. The
percentages of the initial allocation
amount for all States combined will
total 100 percent of the total amount of
the initial allocation.
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Frm 00126
Fmt 4701
Sfmt 4702
§ 618.920
Reserve fund distributions.
(a) The 35 percent of the TaOA funds
for a fiscal year that remains after the
initial allocation will be held by the
Department as a reserve. Reserve funds
will be used, as needed, for additional
distributions to States during the
remainder of the fiscal year, including
distributions to those States that did not
receive an initial allocation. The amount
of any distributions of reserve funds
will be determined by the Department
within the time frame described in
§ 618.930, as appropriate, considering
the information provided in reserve
fund requests submitted by States as
described in paragraph (b) of this
section and the level of reserve funds
available.
(b) A State requesting reserve funds
must demonstrate that:
(1) At least 50 percent of its TaOA
funds from the current year (if any were
received) and previous fiscal years have
been expended; or
(2) The State needs additional TaOA
funds to meet demands for services due
to unusual and unexpected events,
which includes an unexpected increase
in the number of trade-affected workers
eligible for TaOA.
(c) A State requesting reserve funds
under paragraph (b) of this section also
must provide a documented estimate of
funding needs through the end of the
fiscal year. That estimate must be based
on an analysis that includes at least the
following:
(1) The average cost of training in the
State;
(2) The expected number of
participants in training through the end
of the fiscal year; and
(3) The remaining TaOA funds the
State has available.
§ 618.930
Second distribution.
The Department will distribute at
least 90 percent of the total TaOA funds
(including § 618.920 reserve funds) for a
fiscal year to the States no later than
July 15 of that fiscal year. The
Department will first fund all acceptable
requests for reserve funds filed before
June 1. After these requests are satisfied,
any funds remaining will be distributed
to those States that received an initial
allocation in an amount greater than
their hold harmless amount, using the
methodology described in § 618.910.
Any funds remaining after the second
distribution will be available for
allotment under § 618.920.
§ 618.940
Insufficient funds.
If, during a fiscal year, the Department
estimates that the amount of funds
necessary to provide TaOA will exceed
the annual cap under § 618.900, the
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Department will decide how the
available funds that have not been
distributed at the time of the estimate
will be allocated among the States for
the remainder of the fiscal year, and will
communicate this decision to States
through administrative guidance.
§ 618.950 Recapture and reallocation of
Training and Other Activities funds.
(a) The Department may:
(1) Recapture funds that were
allocated to any State to carry out secs.
235 through 238 of the Act and that
remain unobligated by the State during
the second or third fiscal year after the
fiscal year in which the funds were
provided to the State; and
(2) Reallocate recaptured funds to
States to carry out secs. 235 through 238
of the Act, in accordance with
procedures established in this section.
(b) The Department may recapture
and reallocate funds as authorized by
paragraph (a) of this section if the
Department determines:
(1) There are, or are projected to be,
insufficient funds in a State or States to
carry out the activities described in secs.
235 through 238 of the Act for a fiscal
year; or
(2) The recapture and reallocation of
funds would likely promote the more
efficient and effective use of funds
among States to carry out the activities
described in secs. 235 through 238 of
the Act for a fiscal year.
(c) If the Department makes a
determination described in paragraph
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19:05 Nov 06, 2019
Jkt 250001
(b)(1) of this section for a fiscal year, the
Department may recapture funds, to the
extent needed, from one or more of the
State or States that have the highest
percentage of unobligated or
unexpended funds from the second or
third fiscal year after the fiscal year in
which the funds initially were allocated
to such States, as determined by the
Department, and reallocate those funds
to the States with, or projected to have,
insufficient funds. In making the
determination that a State has or is
projected to have insufficient funds to
carry out the activities described in secs.
235 through 238 of the Act for a fiscal
year, the Department may consider a
request submitted by the State in
accordance with information required
under § 618.920(b) or base such
determination on other information the
Department determines is appropriate.
(d) If the Department makes a
determination described in paragraph
(b)(2) of this section for a fiscal year, the
Department may recapture funds from
the State or States that have the highest
percentage of unobligated or
unexpended funds from the second or
third fiscal year after the fiscal year in
which the funds were initially allocated
to such States, as determined by the
Department, and reallocate those funds
to:
(1) The States with the lowest
percentage of unobligated or
unexpended funds from the second or
third fiscal year after the fiscal year in
PO 00000
Frm 00127
Fmt 4701
Sfmt 9990
60275
which the funds initially were allocated
to such States as determined by the
Department, based on such additional
factor or factors as the Department
determines is or are appropriate; or
(2) All States from which funds are
not being recaptured, in accordance
with the formula factors described in
§ 618.910(f), relating to the initial
distribution of funds.
(e) If the Department determines to
recapture and reallocate funds pursuant
to this section, an administrative notice
must be issued to the States describing
the methodology used and the amounts
to be recaptured from and reallocated to
each affected State, not less than 15
business days in advance of the
recapture of funds.
(f) The reallocation of funds under
this section does not extend the period
of availability for the expenditure of
those funds, which expenditure period
remains 2 fiscal years after the fiscal
year in which the funds were initially
allocated by the Department to the State
from which the funds are recaptured.
PART 90—[REMOVED AND
RESERVED]
■
5. Remove and reserve 29 CFR part 90.
Signed at Washington, DC.
John P. Pallasch,
Assistant Secretary for Employment and
Training, Labor.
[FR Doc. 2019–20788 Filed 11–6–19; 8:45 am]
BILLING CODE 4510–FN–P
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Agencies
[Federal Register Volume 84, Number 216 (Thursday, November 7, 2019)]
[Proposed Rules]
[Pages 60150-60275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20788]
[[Page 60149]]
Vol. 84
Thursday,
No. 216
November 7, 2019
Part II
Department of Labor
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29 CFR Part 90
Employment and Training Administration
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20 CFR Parts 617 and 618
Trade Adjustment Assistance for Workers; Proposed Rule
Federal Register / Vol. 84 , No. 216 / Thursday, November 7, 2019 /
Proposed Rules
[[Page 60150]]
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DEPARTMENT OF LABOR
29 CFR Part 90
Employment and Training Administration
20 CFR Parts 617 and 618
[Docket No. ETA-2019-0009]
RIN 1205-AB78
Trade Adjustment Assistance for Workers
AGENCY: Employment and Training Administration, Labor.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (Department) proposes to expand protection and
support for U.S. workers adversely impacted by foreign trade by
revising its Trade Adjustment Assistance (TAA) for Workers program (TAA
Program) regulations. The proposed rule (NPRM) would, among other
improvements, make it easier for workers to qualify for job search and
relocation allowances, increase those allowances in line with statute,
expand training to include more flexibility for apprenticeships, ensure
workers have access to individualized assessments, make it easier for
groups of workers to apply for benefits, and offer assistance to
additional categories of workers, including by helping workers in jobs
threatened by foreign trade to receive training and support to
transition to new employment.
DATES: Send comments on or before December 9, 2019. Comments on the
information collection determination described in Section V. D of the
preamble (Paperwork Reduction Act) may be submitted (postmarked, sent,
or received) by January 6, 2020 in Docket Number ETA-2019-0010.
ADDRESSES: You may send comments, identified by Docket No. ETA-2019-
0009 and Regulatory Identification Number (RIN) 1205-AB78, by any of
the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Instructions for how to submit public comments electronically on the
Federal eRulemaking Portal can be found on the http://www.regulations.gov website under ``Help'' > ``How to use
Regulations.gov'' > ``Submit a Comment.''
Mail: Heidi Casta, Deputy Administrator, Office of Policy
Development and Research, U.S. Department of Labor, Employment and
Training Administration, 200 Constitution Avenue NW, Room N-5641,
Washington, DC 20210.
Hand Delivery/Courier: Heidi Casta, Deputy Administrator,
Office of Policy Development and Research, U.S. Department of Labor,
Employment and Training Administration, 200 Constitution Avenue NW,
Room N-5641, Washington, DC 20210.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking or ``RIN 1205-AB78.''
Please submit your comments by only one method. Please be advised
that the Department will post all comments received that relate to this
NPRM without changes to http://www.regulations.gov, including any
personal information provided. The http://www.regulations.gov website
is the Federal e-Rulemaking Portal and all comments posted there are
available and accessible to the public. Therefore, the Department
recommends that commenters remove personal information (either about
themselves or others) such as Social Security numbers, personal
addresses, telephone numbers, and email addresses included in their
comments, as such information may become easily available to the public
via the http://www.regulations.gov website. It is the responsibility of
the commenter to safeguard personal information.
Also, please note that due to security concerns, postal mail
delivery in Washington, DC may be delayed. Therefore, the Department
encourages the public to submit comments on http://www.regulations.gov.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov (search using RIN
1205-AB78 or Docket No. ETA-2019-0009). The Department also will make
all the comments it receives available for public inspection by
appointment during normal business hours at the Office of Policy
Development and Research (OPDR), U.S. Department of Labor, Employment
and Training Administration, 200 Constitution Avenue NW, Room N-5641,
Washington, DC 20210. If you need assistance to review the comments,
the Department will provide appropriate aids such as readers or print
magnifiers. The Department will make copies of this NPRM available,
upon request, in large print and electronic file. To schedule an
appointment to review the comments or obtain the NPRM in an alternative
format or both, contact OPDR at (202) 693-3700 (this is not a toll-free
number). You may also contact this office at the address listed above.
Comments under the Paperwork Reduction Act (PRA): Send a copy of
any comments that concern the information collection (IC) aspects of
this NPRM to: Office of Information and Regulatory Affairs, Attn: OMB
Desk Officer for DOL-ETA, Office of Management and Budget, 725 17th
Street NW, Washington, DC 20503, Fax: (202) 395-6881 (this is not a
toll-free number), email: [email protected].
Comments on the information collection determination described in
Section V. D of the preamble (Paperwork Reduction Act) also may be
submitted (postmarked, sent, or received) by January 6, 2020 in Docket
Number ETA-2019-0010. The Department will consider comments on the
information collection determination submitted in either docket, but is
providing additional time for commenters to submit relevant information
collection comments to Docket Number ETA-2019-0010. See section V.D of
this NPRM (``Paperwork Reduction Act'') for particular areas of
interest.
FOR FURTHER INFORMATION CONTACT: Heidi Casta, Deputy Administrator,
Office of Policy Development and Research, U.S. Department of Labor,
Employment and Training Administration, 200 Constitution Avenue NW,
Room N-5641, Washington, DC 20210, Telephone: (202) 693-3700 (voice)
(this is not a toll-free number) or 1-800-326-2577 (Telecommunications
Device for the Deaf).
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Acronyms and Abbreviations
II. Executive Summary
III. Background
A. Introduction to the Trade Adjustment Assistance Program
B. Statutory and Regulatory History of the Trade Adjustment
Assistance Program
C. Need for the Notice of Proposed Rulemaking
IV. Section-by-Section Discussion of the Proposed Changes
A. Subpart A--General
B. Subpart B--Petitions, Investigations, and Determinations
C. Subpart C--Employment and Case Management Services
D. Subpart D--Job Search and Relocation Allowances
E. Subpart E--Reemployment Trade Adjustment Assistance
F. Subpart F--Training Services
G. Subpart G--Trade Readjustment Allowances
H. Subpart H--Administration by Applicable State Agencies
I. Subpart I--Allocation of Funds to States for Training and
Other Activities
[[Page 60151]]
V. Agency Determinations
A. Legal Authority
B. Executive Orders 12866 (Regulatory Planning and Review),
13563 (Improving Regulation and Regulatory Review), and 13771
(Reducing Regulation and Controlling Regulatory Costs)
C. Regulatory Flexibility Act, Small Business Regulatory
Enforcement Fairness Act of 1996, and Executive Order 13272 (Proper
Consideration of Small Entities in Agency Rulemaking)
D. Paperwork Reduction Act
E. Executive Order 13132 (Federalism)
F. Unfunded Mandates Reform Act of 1995
G. Executive Order 13175 (Indian Tribal Governments)
I. Acronyms and Abbreviations
AAIW(s) adversely affected incumbent worker(s)
AAW(s) adversely affected worker(s)
ABE adult basic education
ATAA Alternative Trade Adjustment Assistance
BLS Bureau of Labor Statistics
CFR Code of Federal Regulations
CSA(s) cooperating State agency(/ies)
Department Department of Labor
EB Extended Benefits
ECI Employment Cost Indices
ELA English language acquisition
E.O. Executive Order
ETA Employment and Training Administration
ETP(s) eligible training provider
EUCA Federal-State Extended Unemployment Compensation Act of 1970
FOIA Freedom of Information Act
FR Federal Register
FTR Federal Travel Regulation
FUTA Federal Unemployment Tax Act
FY Fiscal Year
GPA grade point average
GPRA Government Performance Results Act of 1993
HCTC Health Coverage Tax Credit
HEA Higher Education Act of 1965, as amended
HSE high school equivalency
IC information collection
IEP(s) individual employment plan(s)
IRS Internal Revenue Service
IT information technology
ITC International Trade Commission
JSP job search program
JTPA Job Training Partnership Act
LEP limited English proficient
local area local workforce development area
LWDB local workforce development board
MIS management information systems
NPRM Notice of Proposed Rulemaking
OECD Organisation for Economic Co-operation and Development
OJT on-the-job training
OMB Office of Management and Budget
OPDR Office of Policy Development and Research
OPM Office of Personnel Management
OTAA Office of Trade Adjustment Assistance
PCE Personal Consumption Expenditures
PII personally identifiable information
PIRL Participant Individual Record Layout
PRA Paperwork Reduction Act
PRWORA Personal Responsibility and Work Opportunity Reform Act
Pub. L. Public Law
RFA Regulatory Flexibility Act
RIN Regulatory Identification Number
RRUI Railroad Unemployment Insurance Act
RTAA Reemployment Trade Adjustment Assistance
Secretary Secretary of Labor
SSA Social Security Act
Stat. U.S. Statutes at Large
TAA Trade Adjustment Assistance
TAA Program
collective reference to the following three programs: TAA for
Workers Program, ATAA, and RTAA
TAAEA Trade Adjustment Assistance Extension Act of 2011
TAARA 2002 Trade Adjustment Assistance Reform Act of 2002
TAARA 2015 Trade Adjustment Assistance Reauthorization Act of 2015
TaOA Training and Other Activities
TEGL(s) Training and Employment Guidance Letter(s)
TGAAA Trade and Globalization Adjustment Assistance Act of 2009
The Act chapter 2 of title II of the Trade Act of 1974, as amended
TRA Trade Readjustment Allowances
UI Unemployment Insurance
UIPL Unemployment Insurance Program Letter
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
USCIT United States Court of International Trade
WARN Worker Adjustment and Retraining Notice
WBA(s) weekly benefit amount(s)
WIA Workforce Investment Act of 1998
WIOA Workforce Innovation and Opportunity Act
II. Executive Summary
The Department proposes to streamline and consolidate three
separate parts of the CFR that contain TAA Program regulations (20 CFR
parts 617 and 618, 29 CFR part 90) into a single part (20 CFR part 618)
with nine subparts. In addition, the proposed revisions would codify
into regulation elements of the most recent TAA Program reauthorization
and amendment, the Trade Adjustment Assistance Reauthorization Act of
2015 (Pub. L. 114-27, title IV) (TAARA 2015). This NPRM also
incorporates existing operating instructions issued via administrative
guidance into the TAA Program regulations, with some refinements.
Further, the proposed revisions align the TAA Program regulations with
the Workforce Innovation and Opportunity Act (WIOA) (Pub. L. 113-128),
the 2014 comprehensive legislation that reauthorized the public
workforce system.
The NPRM would increase efficiency and flexibility for States and
trade-affected workers. Because subpart B (Petitions, Investigations,
and Determinations) of this NPRM expressly proposes to permit workers
employed by a leasing or staffing agency (termed ``staffed workers'')
to be members of a worker group, even if they are not mentioned
specifically within the determination document, the Department
anticipates a substantial reduction in the number of requests to amend
certifications. The Department also proposes to increase flexibility in
subpart D (Job Search and Relocation Allowances) by making it easier
for adversely affected workers (AAWs) to qualify for a job search
allowance and ensuring that workers who qualify for relocation
allowances are finding comparable or better paying jobs. Subpart F
(Training Services) would expand work-based training to include
apprenticeships for all or part of a trade-affected worker's training
program. It also establishes a regulatory framework to provide
assistance to workers who are currently employed but threatened with
job loss resulting from trade, thereby enabling such workers to retrain
and seek new employment before job separation occurs. And in subpart H
(Administration by Applicable State Agencies), the Department would
extend flexibility by removing the requirement that only State merit
staff can be funded through employment and case management funding
available under the TAA Program, allowing States more flexibility with
program operations and creating better alignment with WIOA.
The NPRM seeks to improve service delivery, and thereby serve more
trade-affected workers more effectively, by including service-delivery
requirements that align with data-tested methods. The proposed subpart
A (General) regulations better define certain investigations-based
terms to add consistency at both the State and Federal level and
improve program operations, including reducing burden and workload for
TAA Program investigative reconsiderations and appeals related to these
terms. In addition, the Department proposes to help provide positive
outcomes for each trade-affected worker by including new data-driven
requirements for assessments and individual employment plans (IEPs) in
subpart C (Employment and Case Management Services).
Lastly, the NPRM would implement statutory provisions for
Reemployment Trade Adjustment Assistance (RTAA) and would incorporate
administrative guidance previously issued by the Department in subpart
E since no
[[Page 60152]]
regulations covering the RTAA program exist. Proposed subpart G (Trade
Readjustment Allowances (TRA)) would implement several statutory
changes to TRA, including establishing deadlines to enroll in training,
reducing the types of available waivers, allowing an election between
Unemployment Insurance (UI) and TRA, and allowing AAWs to earn up to
their weekly benefit amount without penalty. In addition, proposed
subpart I (Allocation of Funds to States for Training and Other
Activities) replaces the term ``training'' with ``Training and Other
Activities'' (TaOA) to reflect the additional benefits and services
covered by such funding.
The NPRM would reduce costs and legal burden from court proceedings
by providing the public and courts with the Department's authoritative
interpretation of the Act. Proposed subpart B (Petitions,
Investigations, and Determinations) also would produce other cost
savings by eliminating the two-step process for reconsiderations, which
would reduce the processing time involved for all reconsiderations, and
by clarifying ``final determinations'' for judicial appeals, which
would reduce the number of those appeals. Lastly, proposed subpart H
(Administration by Applicable State Agencies) would produce cost
savings by revising the merit staff requirements to allow States to
charge time for non-merit staff to TAA Program funds for the provision
of employment and case management services.
The purposes of the proposed revisions are to ensure that the TAA
Program regulations are modernized to reflect the program's current
operation and make needed improvements. The proposed revisions also
would provide clarity by eliminating confusing and overly technical
language and update the TAA Program regulations by encouraging the use
of paperless electronic mechanisms over paper-based methods.
The Department's preliminary regulatory impact analysis determines
that this NPRM is a deregulatory action under E.O. 13771 because the
cost savings associated with the rule would be larger than the
anticipated costs of the rule. Cost savings associated with the rule
are from revisions to the definition of ``final determination'' related
to judicial appeals and from streamlining the reconsideration process.
The costs of the NPRM are those associated with State staff needing to
familiarize themselves with the new regulations, the development of
IEPs for trade-affected workers seeking training or job search
allowances, and the implementation of two IC forms (ETA Forms 8561,
Study of Domestic Industry, and 9185, Application for Reconsideration).
The Department expects the NPRM to have an average annual cost of
$6,604 and a total 10-year cost of $46,383 (with 7-percent
discounting). The Department estimates that the NPRM would have an
annual cost savings of $79,654 and a total 10-year cost savings of
$559,456 (with 7-percent discounting). In addition, the NPRM is
estimated to result in annual transfer payments (i.e., redistribution
of resources from one group to another that do not affect total
resources available to society) of $564,257 and total 10-year transfer
payments of $3,963,105 (with 7-percent discounting). The Department
estimates that the NPRM would result in net cost savings of $626,333
discounted at 3 percent and $513,073 discounted at 7 percent, both
expressed in 2018 dollars. See section V.B, the economic analysis, for
a detailed discussion of the Department's preliminary regulatory impact
analysis.
III. Background
A. Introduction to the Trade Adjustment Assistance Program
The Trade Act of 1974 (Pub. L. 93-619), as amended (the Act)
(codified at 19 U.S.C. 2271 et seq.), title II, chapter 2, established
TAA for Workers program, Alternative Trade Adjustment Assistance
(ATAA),\1\ and RTAA programs. These programs, collectively referred to
as the TAA Program, assist U.S. workers who have lost or may lose their
jobs as a result of foreign trade (i.e., trade-affected workers). The
TAA Program provides AAWs and adversely affected incumbent workers
(AAIWs) with opportunities to obtain skills, credentials, resources,
and support to help them become reemployed. TAA Program benefits and
services under TAARA 2015 include employment and case management
services; training; out-of-area job search and relocation allowances;
income support through TRA; the RTAA wage supplement benefit for AAWs
aged 50 or older who find qualifying reemployment; and, if available,
eligibility for assistance with health care premium costs under the
Health Coverage Tax Credit (HCTC),\2\ which is administered by the
Internal Revenue Service (IRS).
---------------------------------------------------------------------------
\1\ ATAA is largely unaddressed in this NPRM because this NPRM
codifies the TAARA 2015 Program and ATAA was replaced by RTAA. RTAA
is newly codified in this NPRM.
\2\ Because under TAARA 2015, the HCTC expires by January 1,
2020, references to the HCTC throughout this NPRM are coupled with
``if available'' or similar phrasing.
---------------------------------------------------------------------------
There are two steps for trade-affected workers to obtain program
benefits and services. First, a group of workers must file a petition
or have a petition filed on their behalf with the Department to
determine worker-group eligibility. Upon receiving a petition, the
Department initiates an investigation to determine whether the
circumstances of the layoff meet the group-eligibility criteria
established by sec. 222 of the Act. Second, if the Department finds the
group eligible and certifies the petition, individual trade-affected
workers in the worker group may apply to their State for TAA Program
benefits and services. Under agreements between the Secretary of Labor
(Secretary) and each Governor, the States determine individual
eligibility based on the statutory criteria and provide the TAA Program
benefits and services to trade-affected workers with Federal funds
allocated by the Department for that purposes. The TAA Program is a
required one-stop partner under WIOA. One-stop centers--branded as
American Job Centers under WIOA--deliver workforce development services
to job seekers and businesses nationwide.
Since 1975, the TAA Program has served over two million trade-
affected U.S. workers. In Fiscal Year (FY) 2017, an estimated 94,017
workers became eligible for TAA Program benefits and services. Nearly
75 percent of trade-affected workers obtained employment within 6
months of completing the TAA Program, and over 90 percent of those who
found work retained their jobs 6 months later.\3\
Trade-affected workers come from a variety of backgrounds and
industries, so they enter the program with a wide array of skills and
experience. Most trade-affected workers who enter the program, however,
face similar challenges in obtaining reemployment. Trade-affected
workers have no postsecondary degree typically, an average age of 49,
and an average of 12 years of experience in a specific job that may no
longer exist.\3\ The TAA Program is designed to serve the needs of this
unique population.
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\3\ U.S. Department of Labor, Employment and Training
Administration. (2018). ``Trade Adjustment Assistance for Workers
Program: Fiscal Year 2017.'' Retrieved from: https://www.doleta.gov/tradeact/docs/AnnualReport17.pdf.
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An ever-changing global marketplace drives the 21st-century
economy. For America to compete in the global economy, its workers need
to have the skills and support to take advantage of new opportunities.
The TAA Program aims to do that by helping American workers retrain and
reenter the workforce.
[[Page 60153]]
B. Statutory and Regulatory History of the Trade Adjustment Assistance
Program
The foundation of the current TAA Program was established by
chapter 2 of title II of the Trade Act of 1974 (Pub. L. 93-618).
Congress has since reauthorized and amended chapter 2, and thus the
TAA Program, multiple times. The TAA Program was changed extensively by
amendments in 1981 (Pub. L. 97-35, title XXV), 1984 (Pub. L. 98-369,
secs. 2671 and 2672), 1986 (Pub. L. 99-272, title XIII, subtitle A,
part 1), 1988 (Pub. L. 100-418, title I, subtitle D, part 3), and 1993
(Pub. L. 103-182, sec. 506). In 1987, the Department issued a final
rule significantly revising the certification process in 29 CFR part 90
(52 FR 23403, June 19, 1987) and in 1994, the Department issued a final
rule significantly revising the TAA Program regulations in 20 CFR part
617 to implement the 1988 amendments (59 FR 906, Jan. 6, 1994).
In 2002, Congress reauthorized and amended the TAA Program in the
Trade Adjustment Assistance Reform Act of 2002 (TAARA 2002) (Pub. L.
107-210). TAARA 2002 expanded the scope of the TAA Program, increased
its benefit amounts, repealed the North American Free Trade Agreement
Transitional Adjustment Assistance (or NAFTA-TAA) program, established
the HCTC to subsidize private health-insurance costs for qualified
workers, and created ATAA as a demonstration program.
The Department published two NPRMs in 2006, to implement the TAARA
2002 amendments (71 FR 50760, Aug. 25, 2006 and 71 FR 61618, Oct. 19,
2006). However, Congress in 2007 (Pub. L. 110-5), 2008 (Pub. L. 110-
161), and 2009 (Pub. L. 111-8) prohibited the Department from further
action until Congress reauthorized the TAA Program. The next
reauthorization, the Trade and Globalization Adjustment Assistance Act
of 2009 (TGAAA) (Pub. L. 111-5, div. B, title I, subtitle I), made such
substantial amendments to the TAA Program that it rendered the two 2006
NPRMs obsolete. The Department withdrew the NPRMs in 2009 (74 FR 27262,
June 9, 2009).
TGAAA, part of the American Recovery and Reinvestment Act (Pub. L.
111-5), reauthorized and substantially amended the TAA Program. It
expanded the program's benefits and the types of trade-affected workers
the Department could certify. Section 1893 of TGAAA provided that most
of the TGAAA amendments would expire on December 31, 2010. Congress
later extended that expiration date by 6 weeks (Pub. L. 111-344).
The Department revised the TAA Program regulations in 2010, by
adding a new 20 CFR part 618 (75 FR 16988, Apr. 2, 2010). The revisions
addressed the allocation of TAA Program training funds to the States.
The revisions also required for the first time by regulation that State
administration of the TAA Program be performed by merit staff.
The Trade Adjustment Assistance Extension Act of 2011 (TAAEA),
enacted in 2011, for the most part restored the expanded certification
criteria and benefits and services provided under TGAAA, but changed
some provisions.
TAARA 2015 reauthorized the TAA Program through 2021. It primarily
followed TAAEA, the 2011 law, but amended a few key provisions. The
amendments included capped funding for TaOA at $450 million per fiscal
year and establishment of new performance indicators to align with
WIOA. TAARA 2015 reauthorized the RTAA and HCTC benefit programs. TAARA
2015 also continued to grandfather earlier versions of the TAA Program
for trade-affected workers who had been certified under TAARA 2002,
TGAAA, and TAAEA.
C. Need for the Notice of Proposed Rulemaking
The TAA Program regulations were last updated in 1994, with only
minor changes made in 2006,\4\ 2007,\5\ and 2010.\6\ Since that time,
multiple TAA Program reauthorizations and amendments have required
various changes to the program, which the Department has addressed
through administrative guidance. This NPRM proposes to codify in
regulation the most recent reauthorization and amendment (TAARA 2015)
as well as significant elements of TAA Program administrative guidance.
The NPRM is drafted to reflect how the TAA Program is currently
operating under TAARA 2015, with some proposed adjustments that would
improve the program. Once finalized, the Department will rescind
redundant administrative guidance, as appropriate, based on the final
rule.
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\4\ 71 FR 35511 (June 21, 2006) (making technical amendments to
update obsolete, nonsubstantive, or nomenclature references).
\5\ 72 FR 37097 (July 9, 2007) (making minor changes to 29 CFR
part 90).
\6\ 75 FR 16988 (Apr. 2, 2010) (adding 20 CFR part 618 to
include only subparts H and I relating to merit staffing of State
administration and allocation of TAA Program training funds to
States).
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The NPRM, if finalized, would help States and the public better
understand the proper operation of the TAA Program. States would no
longer have to use a combination of regulations and administrative
guidance to guide the worker-group certification process at the Federal
level and the administration of individual benefits and services at the
State level. The NPRM would promote transparency by setting out, in
binding regulation, the major principles by which the TAA Program
operates. In addition, it provides the public and courts with the
Department's authoritative interpretation of the Act.
In addition, the NPRM proposes clarifications that draw upon the
Department's expertise gained from decades of experience operating the
TAA Program. For example, the Department's litigation experience has
provided insight into parts of the TAA Program regulations that need
clarification to ensure more effective, efficient, and consistent
operations of the TAA Program throughout the United States. In
addition, since 2009, the Department has had the benefit of real-time
data on trade-affected workers participating in the TAA Program, the
analysis of which has driven some improvements to regulatory provisions
included in this NPRM.
The NPRM also includes changes that would align the TAA Program
regulations with WIOA. For example, WIOA further integrated the TAA
Program with the public workforce and education systems by affirming
the TAA Program as a required partner in the one-stop delivery system.
The NPRM also would remove outdated references to the Job Training
Partnership Act (JTPA) and the Workforce Investment Act of 1998 (WIA).
The proposed TAA Program regulations would align with and reference the
WIOA regulations where appropriate.
IV. Section-by-Section Discussion of the Proposed Changes
A. Subpart A--General
Proposed subpart A sets forth the purpose and scope of the TAA
Program and defines relevant terms used throughout the rule. Proposed
subpart A modifies and simplifies several definitions for greater
clarity, eliminates definitions in response to statutory changes to the
Act, and adds definitions of new terms based on statutory changes. The
definitions used in this NPRM are intended to describe a modernized TAA
Program, which has evolved since TAARA 2002, and ensure the TAA Program
aligns with WIOA.
Section 618.100 Purpose and Scope
Proposed Sec. 618.100 describes the purpose and scope of the TAA
Program.
[[Page 60154]]
The Department proposes updates to the scope and purpose based on
programmatic experience to reflect more realistically the achievable
outcomes for trade-affected workers.
Proposed Sec. 618.100(a) establishes the purpose of the TAA
Program. Under the existing statement of purpose at 20 CFR 617.2, the
stated goal of the TAA Program is to return trade-affected workers to
``suitable employment'' as quickly as possible. In this context,
suitable employment means that after the trade-affected worker receives
services under the TAA Program, the worker is reemployed at an equal or
higher skill level, earning at least 80 percent of their former wages.
This goal of attaining suitable employment has not changed.
Unfortunately, there are situations in which trade-affected workers
may be unable to obtain suitable employment. Such difficulties in
obtaining suitable employment may occur because (1) few, if any, jobs
are available at the workers' former wages that require the trade-
affected workers' experience; (2) the local labor market has few
available jobs; or (3) the trade-affected workers have substantial
barriers to reemployment. These factors can significantly limit trade-
affected workers' employment opportunities. Yet offering appropriate
training, especially in a stagnant labor market, may significantly
increase a trade-affected worker's prospects of obtaining suitable
employment.
The Department is committed to ensuring trade-affected workers have
access to training that will allow them the best possible outcomes and
ability to compete for work at the highest skill levels and highest
wages achievable, given the trade-affected workers' preexisting skill
levels, abilities, and education, and the current and projected labor
market, and to do so as quickly as possible. This must be accomplished
with prudence, careful management of limited TAA Program funds, and a
practical understanding of labor market realities. States must ensure
that they administer their programs equitably and reasonably. Proposed
Sec. 618.100(b) expands the scope of the TAA Program beyond the scope
in 20 CFR 617.1 and lists the types of TAA Program benefits and
services that will be addressed in this proposed part 618. Proposed
Sec. 618.100(c) carries forth a statement in 20 CFR 617.2 specifying
that the regulations in this part are issued to implement the Act.
Section 618.110 Definitions
Proposed Sec. 618.110 defines terms applicable to all other
sections of the NPRM unless otherwise stated. The terms defined in the
proposed rule are derived from the Act; 20 CFR part 617; 29 CFR part
90; and the WIOA Final Rule (81 FR 56072 (Aug. 19, 2016); 81 FR 55792
(Aug. 19, 2016)). Some definitions are taken from the Act, others
interpret or expound upon terms in the Act, and others are terms that
the Department will use in implementing the Act. The defined terms in
the rule apply solely for purposes of this part 618.
The following section lists and explains proposed new terms and
their definitions, revisions to definitions, and removal of defined
terms.
Act--This NPRM modifies the definition of this term from 20 CFR
617.3(a) and 29 CFR 90.2, and updates the U.S. Code citation to 19
U.S.C. 2271-2323 and 2395. At the issuance of this NPRM, the most
recent amendment, Public Law 114-27, applies.
Administrator--This NPRM adds this term and defines it for the
first time to reflect the statutory change in sec. 249A(a) and (b) of
the Act, which requires that the Division of Trade Adjustment
Assistance be designated as the Office of Trade Adjustment Assistance
(OTAA), and that the head of the OTAA be designated an Administrator
rather than a Director. Also, this NPRM removes the defined term
``Director'' from 29 CFR 90.2.
Adversely affected employment--This NPRM modifies the definition of
this term from 20 CFR 617.3(b) and is based on the statutory definition
in sec. 247(1) of the Act. No substantive changes from those
definitions are intended. This NPRM omits the explicit reference to
agricultural firms from the definition in 20 CFR 617.3(b). Although
agricultural firms may be identified as adversely affected employment,
there were no other references to agricultural firms in 20 CFR part
617, and, other than in the definition of ``firm,'' which specifies
that agricultural firms are included, there are no references to
agricultural firms in the NPRM.
Adversely affected worker or AAW--This NPRM modifies the definition
of this term from 20 CFR 617.3(c) to clarify the Department's
interpretation of this term defined in sec. 247(2) of the Act.
Specifically, an employer may be considered an AAW when the employer is
also an employee of a business that closes or experiences a reduction
in operation. For example, the president of the firm lays off everyone
at the firm, including herself. In this circumstance, if the employer
becomes totally or partially separated from their adversely affected
employment, the employer is an AAW. Additionally, this NPRM omits the
reference in the definition of this term from 20 CFR 617.3 to a
subdivision of a firm since employment in an appropriate subdivision of
a firm is part of the definition of the term ``adversely affected
employment'' and including it in the definition of the term ``adversely
affected worker'' is redundant. The combined terms ``adversely affected
worker'' and ``adversely affected incumbent worker'' are also referred
to as a trade-affected worker throughout the NPRM.
Adversely affected incumbent worker or AAIW--This NPRM adds this
term and defines it for the first time. The proposed new definition is
from sec. 247(18) of the Act. Under this proposed definition, workers
who are part of a worker group that has been certified under subpart B
as eligible to apply for the TAA Program, and are individually
threatened to be, but who have not yet been, totally or partially
separated from their adversely affected employment, may be eligible to
receive certain benefits under the program. An AAIW, in combination
with an AAW, is referred to as a trade-affected worker throughout this
NPRM.
Agent State--This NPRM modifies the definition of this term from 20
CFR 617.3(aa)(2) and 617.16(e) by including the phrase ``trade-affected
worker'' instead of the term ``individual.'' The term ``Liable State''
is now separately defined in this proposed subpart A.
Applicable State law--This NPRM adds this term and defines it for
the first time to clarify that this term, which appears in secs.
232(a)(2), 239(e), and 247 of the Act, refers to State UI law. The
definition is modified from 20 CFR 617.16(a) for clarity and procedures
for determining applicable State law are provided in proposed Sec.
618.898.
Appropriate subdivision--This NPRM adds this term and modifies the
definition of this term from 29 CFR 90.2 (included as part of the
definition of the term ``firm''). The phrase ``appropriate
subdivision'' is also part of the definition of the term ``firm'' under
sec. 247(3) of the Act. The terms ``physical facility,''
``organizational department,'' ``product line,'' ``project team,''
``operational unit,'' or ``part or combination thereof'' have been
added to the terms ``establishment'' and ``auxiliary facilities
operated in conjunction with (whether or not physically separate from)
production facilities'' from 29 CFR 90.2. This proposed definition
reflects that service workers are now eligible for benefits
[[Page 60155]]
and explains that the term is defined flexibly. Included are all
workers at the location(s) who have been totally or partially separated
or threatened with separation, including teleworkers who identify as
reporting to that location(s), and may include workers at a satellite
office or shared space who function as if they were at that
location(s), identified in the petition, or subsequently identified
during the course of the investigation, whose employment is dependent
upon the production of the specific article or supply of the specific
service identified in the petition, or identified during the course of
the investigation. The proposed definition also clarifies that
colocation is neither a requirement nor a presumption in determining an
appropriate subdivision. Thus, an appropriate subdivision of a firm
could include operational units that produce the article or provide the
service in question, even if the units are not at the same physical
location. Teleworkers, and staffed workers, may be part of the
appropriate subdivision. In contrast, the fact that all of the workers
are located at the same physical location does not necessarily mean
that they are part of the appropriate subdivision. Additionally, when
worker separations and trade effects are limited to a discrete,
individually distinct organizational unit, it may be that only a
particular subset of workers in the specific organizational unit meets
the sec. 222 group-eligibility requirements. In these cases, and as
described in the example below, a narrower interpretation focusing on
where the trade effects are concentrated, informs the definition of
``appropriate subdivision.'' Identifying a discrete subset of workers
makes for a clearer causal nexus between a trade effect and the worker
separations, especially when an organization provides multiple
services, produces multiple articles, or consists of multiple units.
Consequently, a determination may consist of several appropriate
subdivisions when each subdivision is impacted by a different trade
effect, or it may consist of a certification of an appropriate
subdivision and a denial of the remaining group(s) of workers.
Here is an example. The appliances division of a company produces
both ovens and refrigerators. The division's 200 workers are separately
identifiable, with 150 who produce refrigerators and 50 who produce
ovens. The company shifts abroad some of its oven production and lays
off eight oven-producing workers. The ``appropriate subdivision'' would
be the oven product line, not the entire appliances division. If,
however, the company's sales fell due to foreign imports of ovens and
refrigerators, and it laid off 25 workers from both product lines, the
appropriate subdivision would be the entire appliances division.
Here is another example. A petition is filed on behalf of a group
of workers in the accounting division of a car-manufacturing facility.
If the workers were being separated due to the manufacturer's decision
to acquire the same accounting services abroad instead of performing
them in-house, the appropriate subdivision would be the accounting
division. If the workers were being separated as part of a larger set
of layoffs across every unit in the manufacturing facility because of
increased imports of foreign-made cars, the appropriate subdivision
would be the entire facility.
The Department's experience in implementing the provisions covering
workers in the service sector has demonstrated that the organizational
structures that companies use to supply services may differ
significantly from those used to manufacture a product. Service sector
workers are more likely to be spread out geographically or to work
remotely than are workers in a manufacturing environment. The proposed
definition makes it clear that flexibility is needed to ensure that the
Department can address new and varied organizational structures.
Appropriate week--This NPRM modifies the definition of this term
from 20 CFR 617.3(d) by replacing ``individual'' with ``AAW.'' This
term is used in the proposed definitions of the terms ``average weekly
hours'' and ``average weekly wage.''
Approved training or TAA approved training--This NPRM adds this
term and defines it for the first time. For training to be approved,
the trade-affected worker must apply for training with the State and
receive approval of the training program from the State after meeting
the requirements of sec. 236(a)(1) of the Act, as described in proposed
Sec. 618.610. The other requirements and limitations of subpart F must
also be met.
Article--This NPRM adds this term and defines it for the first
time. The proposed term is in secs. 222 and 224 of the Act and the
proposed definition is based on case law and current practice. An
article may be tangible (including manufactured items, livestock, and
commodities) or intangible (including software code and digital media).
There is a distinction between an object produced for the purpose of
sale (such as a book) and one produced incidental to the provision of a
service (such as a ticket). While both objects may be tangible
(paperback novel and paper ticket, respectively) or intangible (e-book
and e-ticket, respectively), the paperback book and the e-book are
articles because they were produced by a firm and moved from one party
to another at the contract of sale and for which ownership rights are
transferred from one party to another under the contract of sale. The
ticket is not an article but is a token that represents the intent or
completion of a service. Where the revenue of the firm or appropriate
subdivision is generated from the sale or production of an article, the
firm or appropriate subdivision is deemed to be engaged in activity
related to the sale or production of an article.
Average weekly hours--This NPRM modifies the definition of this
term from 20 CFR 617.3(e), and has been combined with the statutory
definition in sec. 247(5) of the Act. The phrase ``consecutive
calendar'' has been added to the word ``weeks'' to clarify that the 52
weeks that comprise the average are the 52 consecutive calendar weeks
before the worker's first qualifying separation. Additionally, for
consistency purposes, the word ``individual'' has been replaced with
``AAW.''
Average weekly wage--This NPRM modifies the definition of this term
from 20 CFR 617.3(f) by incorporating the statutory definition provided
in sec. 247(4) of the Act. For consistency purposes, the word
``individual'' has been replaced with ``AAW.''
Average weekly wage in adversely affected employment--This NPRM
removes this defined term from 20 CFR 617.3(g) because it is
unnecessary, as both terms ``average weekly wage'' and ``adversely
affected employment'' are already defined.
Benefit period--This NPRM incorporates this defined term from 20
CFR 617.3(h) without change.
Certification or affirmative determination or petition
certification-This NPRM modifies the definition of these terms from 20
CFR 617.3(j)(1) to clarify that the Department intends ``group of
workers,'' the term used in 20 CFR 617.3(j)(1), to refer to workers pre
certification, and the term ``worker group'' to refer to a group that
has been certified as eligible to apply for TAA Program benefits and
services. (The terms ``group of workers'' and ``worker group'' are
defined in this proposed subpart A.) Otherwise, the definition is
unchanged. This definition does not apply for purposes of the term
``certification'' in sec. 222(d)(3) (firm or customer must certify
specific
[[Page 60156]]
information), 236(a)(5)(H) (training involving obtaining or completing
a degree or certification), 239(a)(3) (certifications for training
waivers under 231(c)(2)), or 247(19) (definition of ``recognized
postsecondary credential'') of the Act. It also does not apply with
respect to the term ``affirmative determination'' in sec. 222(e) (firms
identified by the International Trade Commission (ITC)) or 224 (ITC
notifications and investigations) of the Act.
Certification date or date of certification--This NPRM adds these
terms and defines them for the first time. This NPRM removes the
defined term ``date of issuance'' from 29 CFR 90.2. The change is
intended to make clear that the date the Certifying Officer signs a
certification is the date on which the certification takes effect.
Certification period--This NPRM modifies the definition of this
term from 20 CFR 617.3(j)(2) to provide additional details to help
clarify this specific time period. However, the meaning remains
unchanged and is the period of time during which a worker group is
covered by a certification.
Certifying Officer--This NPRM modifies the definition of this term
from 29 CFR 90.2 to reflect the statutory change in sec. 249A of the
Act, which changes the ``Division of Trade Adjustment Assistance'' to
the ``Office of Trade Adjustment Assistance'' and the title of the head
of that office from ``Director'' to ``Administrator.''
Co-enrollment--This NPRM adds this term and defines it for the
first time. It refers to enrolling a trade-affected worker both in the
TAA Program and also in another program administered through a State's
one-stop delivery system.
Commission or International Trade Commission or ITC--This NPRM
incorporates these defined terms from 29 CFR 90.2 without change.
Commuting area--This NPRM modifies the definition of this term from
20 CFR 617.3(k) by replacing the word ``individual'' with ``trade-
affected worker.''
Completion of training or complete training or completed training--
This NPRM adds these terms and defines them for the first time. It
clarifies the Department's interpretation of when a trade-affected
worker completes TAA approved training.
Component part--This NPRM adds this term and defines it for the
first time. The proposed definition is based on the statutory text,
case law, and current practice. The Act consistently uses the term
``component part'' in the context of articles and does not use it in
the context of service. Consequently, the Department determines that
there is no component part of a service. A component part is a tangible
or intangible input that is directly incorporated into another article
and that becomes a subunit of that other article, although it need not
retain its original form or characteristics. Examples of a component
part of an article include a button on a shirt, lacquer on a table,
preservatives in processed food, and code embedded in a microchip.
Examples of inputs that are not component parts include production
equipment, molds and castings, energy to power the production facility,
code in software to operate machinery, blueprints, and designs. A
component part is neither like nor directly competitive with the
article into which it is directly incorporated.
Confidential business information--This NPRM modifies the
definition of this term from 29 CFR 90.33(a) by including a reference
to the Trade Secrets Act, 18 U.S.C. 1905, and by omitting the phrase
``obtained from a person'' since the confidentiality exception applies
regardless of its source. Title 29 CFR 90.33(a) identifies the Freedom
of Information Act (FOIA), 5 U.S.C. 552, and the Department's
regulations implementing FOIA, 29 CFR part 70, as the bases for
designating confidential business information as ``privileged or
confidential.'' FOIA exemption (b)(4) exempts from mandatory disclosure
under FOIA trade secrets and certain commercial or financial
information. The Trade Secrets Act prohibits the disclosure of trade
secrets and confidential business information without legal authority.
The proposed definition also adds that confidential business
information could be received by the Department, or by the States on
the Department's behalf.
The proposed definition also reflects TGAAA's addition of paragraph
(e)(3) to sec. 222 of the Act (now sec. 222(d)(3)), which in part
requires the Department to protect the confidentiality of information
obtained during an investigation ``that the Secretary considers to be
confidential business information,'' unless the firm or customer
submitting the information had notice, at the time of submitting the
information, that the information would be released by the Department,
or subsequently agrees to its disclosure.
Finally, the proposed definition is used in conjunction with
investigations under proposed subpart B. The NPRM relocates the
information provided by 29 CFR 90.33(b) and (c) to proposed subpart B.
Contributed importantly--This NPRM adds this term and defines it
for the first time. The proposed definition adopts the statutory
definition in sec. 222(c) of the Act and is used in the petition
investigation process described in proposed subpart B.
Cooperating State agency or CSA--This NPRM adds these terms and
defines them for the first time to accurately identify the agency at
the State level that will act as an agent of the Department in
receiving applications from and providing benefits and services to
trade-affected workers. The proposed definition incorporates language
that is used in Governor-Secretary Agreements, as further described in
proposed subpart H.
Customized training--This NPRM adds this term and defines it for
the first time to identify a type of training approvable under the Act
and proposed subpart F. The proposed definition of ``customized
training'' is taken from sec. 236(f) of the Act. Proposed subpart F
addresses exclusions specific to AAIWs from sec. 236(a)(10)(B) of the
Act.
Date of issuance--This NPRM removes this defined term from 29 CFR
90.2 because it is not used in the Act or in the NPRM and is therefore
unnecessary.
Date of the petition--This NPRM removes this defined term from 29
CFR 90.2. In its place, the NPRM proposes a new term, ``petition
date.''
Date of separation--This NPRM removes this defined term from 20 CFR
617.3(k)(1). In its place, the NPRM proposes a new term, ``separation
date.''
Denial or negative determination or petition denial--This NPRM adds
these terms and defines them for the first time. The proposed
definition is derived from 29 CFR 90.16(f) and describes the result
when a group of workers has not met the requirements for certification
and so is not eligible for TAA Program benefits.
Department of Labor or Department--This NPRM adds this term and
defines it for the first time. It is used to identify references to the
U.S. Department of Labor.
Downstream producer--This NPRM adds this term and defines it for
the first time. It incorporates the statutory definition at sec.
222(c)(3) of the Act. A downstream producer is a firm that performs
additional value-added production processes or services directly for
another firm for articles or services with respect to which a worker
group in such other firm has been certified as eligible to apply for
TAA Program benefits and services. Value-added production processes or
services
[[Page 60157]]
include final assembly, finishing, testing, packaging, or maintenance
or transportation services. Production processes are services provided
directly for the primary firm even if ownership of the primary firm
changes. Additionally, a firm can be a downstream producer even if the
article for which the value-added production processes or services are
carried out will become a component part of the article received from
the primary firm, or if further value-added finishing or assembly of
the article occurs downstream by another firm. Additionally, a
downstream producer may be a firm that provides services to a primary
firm that produces physical products. For example, a shipping company
will be a downstream producer if a significant portion of its business
is lost from a TAA certified primary firm.
Eligible RTAA recipient and eligible TAA recipient--This NPRM adds
these terms and defines them for the first time to describe categories
of persons who may be eligible to qualify for the HCTC (see proposed
definition of ``HCTC''), if that benefit is available. These terms are
defined in HCTC administrative guidance.
Employer--This NPRM incorporates this defined term from 20 CFR
617.3(n) without change.
Employment--This NPRM incorporates this defined term from 20 CFR
617.3(o) without change.
Enrolled in training--This NPRM modifies the definition of this
term from 20 CFR 617.11(a)(2)(vii)(D)(1). This term is found at sec.
231(a)(5)(A) of the Act. The proposed definition is reworded from 20
CFR 617.11(a)(2)(vii)(D)(1). The proposed definition omits the
instruction that a waiver is not required for a worker who is enrolled
in training. That instruction is more clearly provided in proposed
subpart G. The definition of this term is not the same definition used
for the performance reporting under subpart H. Separate guidance,
outside of this rule, is published on reporting requirements.
Exhaustion of UI--This NPRM removes this defined term from 20 CFR
617.3(p) and it is to be included in proposed subpart G rather than in
this proposed subpart A.
Family--This NPRM modifies the definition of this term from 20 CFR
617.3(q), which was based on the Internal Revenue Code definition. The
definition used in this NPRM is the definition of ``immediate family''
used in the Federal Travel Regulation (FTR) at 41 CFR 300-3.1.
Filing date--This NPRM modifies the definition of the term ``date
of filing'' from 29 CFR 90.2. This term refers to the date on which
petitions are deemed to be filed. OTAA, the office currently handling
petitions under the TAA Program, is substituted for ``Division of Trade
Adjustment Assistance.'' The phrase ``other documents'' has been
replaced with the phrase ``attachments to the petition form'' to
clarify that the definition applies to attachments to a petition, and
not to other documents submitted to the Department. The phrase ``and
determined to be valid'' has also been added. The Department would
review a petition, including attachments, to determine if it is valid,
in accordance with proposed Sec. 618.205, within 2 business days of
receipt of the petition to the Department. The date on which the
petition is determined to be valid is the filing date. The Department
would not initiate the investigation until the petition is deemed
valid, in accordance with proposed Sec. 618.205(f). Accordingly, this
interpretation applies to sec. 221(a)(3) of the Act, which states that
``[u]pon receipt of the petition, [the Department] shall promptly
publish notice in the Federal Register and on the website of the
Department of Labor that the Secretary has received the petition and
initiated an investigation.''
Firm--This NPRM modifies the definition of this term from 29 CFR
90.2 and adds some new language derived from sec. 247(3) of the Act,
including ``[w]here the term `firm' appears in this part, it means
`firm or appropriate subdivision.' '' This has been added to clarify
that the term ``firm,'' as defined in sec. 247(3) of the Act, includes
an appropriate subdivision thereof. Also included in the proposed
definition is that ``firm'' includes ``an agricultural firm or service
sector firm or an appropriate subdivision thereof.'' The Department
also added a clarification that for purposes of determining group
eligibility only, as described in subpart B, a firm does not include a
public agency or any subdivision of a public agency. TAAEA modified
sec. 247 of the Act (19 U.S.C. 2319) by striking ``public agency'' from
the definition of a ``firm.'' Accordingly, individuals employed by a
public agency, which the Department defines by reference to 29 U.S.C.
203(x), are not eligible for a certification of eligibility to apply
for the TAA Program. This proposed definition of a ``firm'' is intended
to encompass diverse organizations and to include closely related or
affiliated organizations. The definition, however, follows basic rules
of corporate and organizational law by limiting it to entities under
common ownership or control.
First benefit period--This NPRM modifies the definition of this
term from 20 CFR 617.3(r) by replacing ``individual'' with ``AAW'' to
achieve consistency throughout the NPRM.
First exhaustion of UI--This definition is proposed for removal, as
it is included in 20 CFR 617.3(s) and has been included in proposed
subpart G, rather than in proposed subpart A.
First qualifying separation--This NPRM removes this defined term
from 20 CFR 617.3(t)(3). The term is not necessary because the plain
meaning of the term first qualifying separation is sufficient for use
in the NPRM and additional clarifying language was added to the term
``qualifying separation.''
First separation--This NPRM removes this defined term from 20 CFR
617.3(t)(1). It was written to address pre-TAARA statutory provisions
that are outdated due to subsequent statutory amendments. The proposed
definitions for the terms ``partial separation,'' ``qualifying
separation,'' and ``total separation'' make this term and definition
unnecessary.
Full-time training--This NPRM adds this term and defines it for the
first time. It is derived from 20 CFR 617.22(f)(4) and defines full-
time training as attendance in training in accordance with the training
provider's established full-time hours in a day (or credit hours) and
days in a week. The Department has added an interpretation, originally
published in TAAEA administrative guidance, that provides that in the
last semester of training, if the remaining required courses to
complete the approved training will not meet the training provider's
normal definition of full-time training, the State must consider the
AAW to be in full-time training, and otherwise eligible to apply for
TRA benefits.
Group of workers--This NPRM adds this term and defines it for the
first time. It relates to the workers who file a petition or for whom a
petition is filed and means at least two workers employed or formerly
employed by the same firm, or an appropriate subdivision. The proposed
definition includes teleworkers and staffed workers because they are
frequently performing the same work as other trade-affected workers in
the subject firm and are under the subject firm's operational control.
Separated workers are included in the definition because they, too, may
be trade-affected workers. This term is different from the term
``worker group.'' This NPRM also removes the defined term ``group,''
from 29 CFR 90.2, because it defines ``group'' as three or more workers
in a firm. The Act does not define this term and ``group'' can be
interpreted as two or
[[Page 60158]]
more. The Department is interested in comments related to this change.
Head of family--This NPRM removes this defined term from 20 CFR
617.3(u) because it is not used in this NPRM.
Health Coverage Tax Credit or HCTC--This NPRM adds these terms and
defines them for the first time to describe the tax credit under sec.
35 of the Internal Revenue Code of 1986 (26 U.S.C. 35), which is
available to eligible TAA recipients, eligible RTAA recipients, and
other eligible recipients, including qualifying family members. The
HCTC benefit is available under TAARA 2015 and was available under
TAARA 2002, TGAAA, and TAAEA for a limited time.
Impact date--This NPRM modifies the definition of this term from 20
CFR 617.3(v) for clarity. Section 223(a) of the Act requires that each
certification specify the date on which the total or partial separation
began or threatened to begin. Section 223(b) requires that the impact
date may not be more than 1 year before the petition date, with
exceptions for certifications based in sec. 222(e) of the Act and those
specified in proposed subpart B.
Increased imports--This NPRM incorporates this defined term from 29
CFR 90.2 without change.
Individual employment plan or IEP--This NPRM adds these terms and
defines them for the first time. It describes an employment and case
management service required by sec. 235(2) of the Act. The IEP is a
dynamic document that may be changed based on comprehensive and
specialized assessments, training program modifications, or other
factors that emerge during program participation. Proposed subpart C
describes development of an IEP in more detail.
Job finding club--This NPRM incorporates this defined term from 20
CFR 617.3(y) and sec. 247(16)(C) of the Act without change.
Job search program or JSP--This NPRM incorporates this defined term
from 20 CFR 617.3(w) and sec. 247(16)(A) of the Act without change.
Job search workshop--This NPRM modifies the definition of this term
from 20 CFR 617.3(x) to conform to the definition provided in sec.
247(16)(B) of the Act.
Lack of work--This NPRM adds this term and defines it for the first
time. The proposed term is in sec. 247(2) of the Act and is also in the
definitions of the terms ``adversely affected worker'' and ``layoff''
in this NPRM. The proposed definition incorporates the administrative
guidance in TEGL No. 12-16 on ``strikes'' and ``lockouts'' and their
effect on eligibility for TAA Program benefits and services.
Specifically, a ``lack of work'' separation occurs when the employer
initiates the unavailability of work--the employer either does not have
work for the worker to perform or does not make that work available to
the worker. A lack of work separation can be based on a lockout,
because a lockout is initiated by the employer. Another example is when
an employer provides a retirement package incentive or other bonus to
reduce the workforce through voluntary separations. Some AAWs will meet
this definition of a ``lack of work'' separation but may still be
disqualified for UI in some States under their voluntary quit
provisions. Although the UI disqualification will make these workers
ineligible for TRA, they may qualify for other benefits and services
under the TAA Program.
Layoff--This NPRM modifies the definition of this term from 20 CFR
617.3(z) and 29 CFR 90.2. The phrase ``suspension or separation from
employment'' used in 20 CFR 617.3(z) is adopted instead of the phrase
``suspension from pay status'' used in 29 CFR 90.2 because the
Department intends for ``layoff'' to include persons separated from
employment who receive severance pay and, therefore, may be deemed in a
pay status. Some of these workers may be eligible for TAA Program
benefits and services, whether or not State law prevents them from
qualifying for TRA. The words ``of time'' have been added to the 20 CFR
617.3(z) phrase ``expected to be for a definite or indefinite period,''
and this is a change from the 29 CFR 90.2 definition, which does not
include the latter phrase. In addition, the language at 20 CFR 617.3(z)
and 29 CFR 90.2 that requires that the layoff be expected to last for
``not less than seven consecutive days'' and ``no less than seven (7)
consecutive calendar days,'' respectively, has not been included in the
proposed definition, because that restriction is not supported by the
Act. These changes 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 Program purposes.
Liable State--This NPRM modifies the definition of this term from
20 CFR 617.3(aa)(1) and 617.16(e) to provide more specific directions
about identifying the liable State. It also includes the phrase
``trade-affected worker'' instead of ``individual'' and updates
references to this NPRM. The term ``Agent State'' is now separately
defined in this proposed subpart A.
Like or directly competitive--This NPRM modifies the definition of
this term from 29 CFR 90.2 in order to accommodate the statutory
changes to group eligibility, which now includes worker groups
performing services, to address intangible articles and services, and
to remove the second paragraph, which states, ``An imported article is
directly competitive with a domestic article at an earlier or later
stage of processing, and a domestic article is directly competitive
with an imported article at an earlier or later stage of processing, if
the importation of the article has an economic effect on producers of
the domestic article comparable to the effect of importation of
articles in the same stage of processing as the domestic article.'' The
Department proposes the removal of the second paragraph of the
definition because it was seldom used and the proposed changes to the
definition maintain the Department's ability to determine whether an
article at an earlier or later stage of production or a service at an
earlier or later stage of supply are commercially interchangeable. In
addition, the proposed definition clarifies that like and directly
competitive articles and services can be tangible or intangible.
Examples of ``like'' tangible articles could include jackets and coats;
examples of ``like'' intangible articles could include programming
software code and operating software code. Examples of ``like''
services could include payroll services and billing services. Examples
of ``directly competitive'' articles could include corrective
eyeglasses and corrective contact lens. Examples of ``directly
competitive'' services could include physical fitness personal trainer
services and virtual fitness training programs available online. A
component part is neither like nor directly competitive with the
article into which it is incorporated because the component part is a
subunit of the article.
Office of Trade Adjustment Assistance or OTAA--This NPRM adds this
term and defines it for the first time as authorized by sec. 249A of
the Act. It refers to the name of the organization within the U.S.
Department of Labor, Employment Training Administration with
responsibility for administering the TAA Program, or OTAA's successor
organization.
One-stop delivery system--This NPRM adds this term and defines it
for the first time. It refers to the American Job Center network, which
brings together workforce development, education, and other human
resource services in a seamless, customer-focused
[[Page 60159]]
service delivery network that enhances access to partner programs'
services and improves long-term employment outcomes for individuals
receiving assistance. This includes coordination of services to
eligible dislocated workers as defined under sec. 3(15) of WIOA. States
operate the one-stop delivery system consistent with the requirements
of WIOA and its implementing regulations. WIOA sec. 121(b)(1)(B)(vii)
requires the TAA Program to be a partner in the one-stop delivery
system.
On-the-job training or OJT--This NPRM modifies the definition of
this term from sec. 247(15) of the Act and 20 CFR 617.3(bb). It adds
that the training is work-based and performed under contract with an
employer. The term ``AAW'' replaces ``individual.''
Partial separation or partially separated--This NPRM modifies the
definition of this term from 20 CFR 617.3(cc), 29 CFR 90.2, and sec.
247(6) of the Act. The definition of this term in 29 CFR 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 the TAA Program. After being determined eligible to apply for
the TAA Program, the AAW's ``partial separation'' is referred to in 20
CFR 617.3(cc) as being ``in adversely affected employment,'' the term
used in sec. 247(6)(A) and (B) of the Act. The proposed definition
retains the statutory criteria of ``partial separation'' for both
workers on whose behalf a petition has been filed and workers who are
covered by a certification, and offers different definitions for usage
under proposed subpart B and the other proposed subparts of this NPRM.
The proposed definition also retains the provision in 20 CFR 617.3(cc)
that, in order for the AAW to be counted as partially separated from
adversely affected employment, the requisite reduction of hours and
wages must have occurred. However, the proposed definition simplifies
the language about when the separation must occur by substituting the
phrase ``during the certification period'' for ``during a week ending
on or after the impact date specified in the certification under which
an adversely affected worker is covered'' (see proposed definition of
``certification period'').
Period of duty--This NPRM adds this term and defines it for the
first time. It is from sec. 233(i)(2) of the Act, added by TGAAA, and
relates to service performed in the reserve components of the Armed
Services of the United States.
Petition date--This NPRM adds the term and defines it for the first
time. It means the date a petition form is signed by the petitioner(s).
This change reflects the common, everyday usage of this phrase. When
petitioners sign on different dates, the petition date is the latest of
those dates. This NPRM also removes the defined term ``date of
petition'' from 29 CFR 90.2.
Prerequisite education or prerequisite coursework or prerequisite
training--This NPRM adds these terms and defines them for the first
time. They refer to approvable training under sec. 236(a)(5)(E) of the
Act. For example, a trainee enrolled in an engineering program might
have to complete courses in mathematics before registering for
engineering courses. Similarly, some nursing programs may require
additional math coursework beyond the trainee's high school classes
before starting the nursing program curriculum.
Program of remedial education or remedial education or remedial
training--This NPRM adds these terms and defines them for the first
time. They refer to approvable training under sec. 236(a)(5)(D) of the
Act and are used to refer to education designed to improve trade-
affected workers' basic knowledge.
Qualifying separation--This NPRM modifies the definition of this
term from 20 CFR 617.3(t)(2). The Department is proposing to amend the
definition of ``qualifying separation'' to include partially separated
workers. The definition at 20 CFR 617.3(t)(2) excludes partially
separated workers and is based on an August 23, 1988, amendment to sec.
233(a)(2) of the Act, which added a 104-week limitation period for the
receipt of Basic TRA with respect to totally separated workers. See
Public Law 100-418, sec. 1425(a). The Department has reviewed the Act
for this NPRM and has concluded that under a plain reading of the Act,
partially separated workers are otherwise eligible for TRA benefits if
the eligibility requirements in sec. 231 of the Act are met. The
proposed definition covers qualifying separation for the purposes of
assisting States in determining an AAW's eligibility to receive Basic
TRA; the 26-week period for enrollment in approved training; and the
Basic TRA eligibility period. The first qualifying separation is used
for purposes of determining a worker's eligibility for Basic TRA and
the weekly and maximum amounts of Basic TRA. This is discussed further
in proposed subpart G.
Reemployment Trade Adjustment Assistance or RTAA--This NPRM adds
these terms and defines them for the first time to refer to the
employment-based benefit described in sec. 246 of the Act. RTAA was
established with TGAAA and continued under TAAEA and TAARA 2015.
Regional Administrator--This NPRM modifies the definition of this
term from 20 CFR 617.3(dd), by reversing the order of the terms ``U.S.
Department of Labor'' and ``Employment and Training Administration.''
Remuneration--This NPRM removes this defined term from 20 CFR
617.3(ee) because it does not appear in this NPRM.
Secretary--This NPRM incorporates this defined term from 20 CFR
617.3(ff) and 29 CFR 90.2 without change.
Separation date--This NPRM adds this term and defines it for the
first time. It replaces the term ``date of separation'' and is
substantially the same as in 20 CFR 617.3(l), but rephrases the
employer-authorized leave language slightly for clarity, adds a
reference to leave for military service as provided in sec.
231(a)(2)(D) of the Act, and uses the word ``worker'' instead of
``individual.'' This NPRM also removes the defined term ``date of
separation'' from 20 CFR 617.3(l).
Service--This NPRM adds this term and defines it for the first time
to explain how the term is used in sec. 222 of the Act as part of group
eligibility requirements. This proposed definition has been developed
from case law and current practice. A service is the work performed by
a worker for a service firm or appropriate subdivision. The work of a
service firm is measured in units of time, labor, and tasks completed.
Services may include the incidental production of an article, such as a
license, ticket, certificate, permit, model, drawing, or prototype. For
example, a travel agent provides travel-planning services, but may send
customers a ticket or voucher. An online education company provides
education services, but may send students a textbook. Where the revenue
of the firm or its appropriate subdivision is generated from the sale
of a service, the firm or subdivision is engaged in the supply of a
service.
Significant number or proportion of the workers--This NPRM modifies
the definition of this term from 29 CFR 90.2 to reflect that both
partially and totally separated workers, as well as workers threatened
with total or partial separation, are counted towards the number and
proportion of workers affected, as established in sec. 222(a)(1) and
(b)(1) of the Act. The phrases ``[i]n most cases'' and ``would
ordinarily have to be affected'' have also been omitted from the
definition.
Staffed worker--This NPRM adds this term and defines it for the
first time under the authority of sec. 223(e) of the
[[Page 60160]]
Act, which allows the Department to establish standards for
investigations of petitions filed under sec. 221 of the Act and to
develop criteria for making determinations under sec. 223(a) of the
Act. Previously referred to as leased workers, staffed workers are more
fully addressed in proposed subpart B.
State--This NPRM modifies the definition of this term from 20 CFR
617.3(hh), by replacing the phrase ``such Commonwealth'' to ``the
Commonwealth of Puerto Rico'' for clarity.
State agency--This NPRM removes this defined term from 20 CFR
617.3(ii). This is a commonly understood term. The term is defined at
sec. 247(8) of the Act.
State law--This NPRM modifies the definition of this term from 20
CFR 617.3(jj) and sec. 247(9) of the Act. The reference to the Internal
Revenue Code has been updated and additional language is added to
include other State laws that may be explicitly mentioned in this
proposed part 618.
Successor-in-interest--This NPRM adds this term and defines it for
the first time to provide clarity to States when there are mergers and
acquisitions, name changes, bankruptcy proceedings, and other actions
that may change the name of the firm under which a worker's wages are
reported to the State or by whom a termination notice or threatened
status letter is issued. There is a test used by the Department in
determining whether there is a successor-in-interest when the question
arises as part of a determination as to the scope of the worker group
under a certification. In determining whether or not there is a
successor-in-interest, the State must determine whether most or all of
the following conditions are met: There is continuity in business
operations; there is continuity in location; there is continuity in the
workforce; there is continuity in supervisory personnel; the same jobs
exist under similar conditions; there is continuity in machinery,
equipment, and process; there is continuity in product/service. If the
State's investigation finds a successor-in-interest relationship exists
and that could result in a denial of any TAA benefits, except RTAA, the
State should file a new petition requesting an amendment to a
certification in accordance with proposed Sec. 618.250. The Department
specifically encourages comments on this topic.
Suitable employment--This NPRM modifies the definition of this term
from 20 CFR 617.22(a)(1)(i) and sec. 236(e) of the Act. Specifically,
the Act uses the term suitable employment in sec. 236(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 Department has concluded that suitable
employment, to be considered such, excludes part-time, temporary, or
threatened employment. Thus, the proposed definition adds this caveat.
Additionally, unlike 20 CFR 617.22(a)(1)(i), the NPRM does not restrict
applicability of the definition to sec. 236(a)(1)(A) of the Act.
Suitable work--This NPRM removes this defined term from 20 CFR
617.3(kk)(1) and (2) and defines it within proposed subpart G, rather
than in this proposed subpart A.
Supplier--This NPRM adds this term and defines it for the first
time. It is derived from sec. 222(c)(4) of the Act. The Department
proposes to add this term and definition in response to statutory
changes to group eligibility requirements. The Department has
supplemented the statutory definition with a statement explaining that
there is no direct supply where an intervening entity receives the
component parts for articles, aside from a delivery or bailment
situation, or in the case of a service supplier, if an intervening
entity performs the service. The Department's interpretation is based
on case law and current practice.
Supportive services--This NPRM adds this term and defines it for
the first time. It is derived from sec. 235(8) of the Act and is used
to refer to such services as are needed to enable a trade-affected
worker to participate in activities authorized under the Act.
Additional information on supportive services is in the WIOA
regulations at 20 CFR 680.900.
Threatened to become totally or partially separated--This NPRM adds
this term and defines it for the first time. It is similar to the term
``threatened to begin'' in 29 CFR 90.2 and is used in the context of
petition investigations. The proposed definition describes that workers
in a firm or appropriate subdivision can be threatened to become
totally or partially separated when there is evidence of intent to
separate workers. Evidence may include a Worker Adjustment and
Retraining Notice (WARN) Act notification, a letter to a union official
from the company, a memo to the employees from the company, or other
forms of notice. Similar to 29 CFR 90.2, the phrase applies when it is
reasonable to anticipate that separations are imminent.
Threatened to begin--This NPRM incorporates this defined term from
29 CFR 90.2 without change. It is used in conjunction with the proposed
defined term ``threatened to become totally or partially separated,''
and is the date(s) on which the applicable event(s) occurred.
Total separation or totally separated--This NPRM modifies the
definition of these terms from 20 CFR 617.3(ll) and 29 CFR 90.2 and
specifies the difference between how the terms are applied to a worker
for purposes of investigating a petition and determining group
eligibility, in accordance with proposed subpart B, and how they are
applied to an AAW otherwise.
Trade Adjustment Assistance for Workers or Trade Adjustment
Assistance or TAA Program--This NPRM modifies these defined terms from
20 CFR 617.3(mm) to state that the programs included as part of the TAA
Program include RTAA and also to refer generally to the provision of
benefits and services to trade-affected workers as described in this
NPRM.
Trade-affected worker--This NPRM adds this term and defines it for
the first time to simplify the reference when the NPRM applies to both
categories of workers: ``adversely affected workers'' and ``adversely
affected incumbent workers.''
Trade Readjustment Allowance or TRA--This NPRM modifies the
definition of these terms from 20 CFR 617.3(nn) and (m)(1) and (2) to
reference the administration of the TRA benefit in proposed subpart G
and includes the three categories of TRA available under TAARA 2015:
Basic, Additional, and Completion. This revised definition does not
define the three categories of TRA, but provides a cross-reference to
their definitions in proposed subpart G.
Unemployment Insurance or UI--This NPRM modifies the definition of
these terms from 20 CFR 617.3(oo), to use the word ``worker'' instead
of ``individual.'' The terms ``regular compensation,'' ``additional
compensation,'' and ``extended compensation'' are the same as the
definitions in the Federal-State Extended Unemployment Compensation Act
of 1970 (EUCA) (26. U.S.C. 3304 note), except that the word ``worker''
has been substituted for the word ``individual,'' and the term
``Federal supplemental compensation'' has been updated and moved within
the definition of ``extended compensation.''
Value-added production processes or services--This NPRM adds this
term and defines it for the first time. It is derived from sec.
222(c)(3)(B) of the Act and used in reference to the petition
investigation process and identifying adversely affected secondary
workers
[[Page 60161]]
who perform work for a firm that is a downstream producer.
Wages--This NPRM incorporates this defined term from 20 CFR
617.3(pp) without change. For purposes of proposed subpart G, this
includes wages paid to a worker by a successor-in-interest.
Wagner-Peyser Act--This NPRM adds this term and defines it for the
first time to refer to the Wagner-Peyser Act, as amended (29 U.S.C. 49
et seq.). It references a program that is a required WIOA partner and
may provide assistance to TAA Program participants.
Week--This NPRM incorporates this defined term from 20 CFR
617.3(qq) and sec. 247(12) of the Act without change.
Week of unemployment--This NPRM modifies the definition of this
term from 20 CFR 617.3(rr). The phrase ``Federal unemployment
compensation law'' has been changed to ``Federal Unemployment Insurance
law'' to mirror the definition in sec. 247(13) of the Act.
Worker group--This NPRM adds this term and defines it for the first
time. It defines who may comprise a group of workers certified under
proposed subpart B as eligible to apply for TAA Program benefits and
services. The proposed definition includes teleworkers and staffed
workers. The proposed definition is derived from sec. 223(a) of the
Act, which refers to a certification of eligibility to apply for
assistance as ``covering workers in any group.'' The term is
differentiated in this NPRM from the term ``group of workers'' (defined
in this proposed subpart A), which refers to workers who file a
petition for certification under sec. 221(a)(1)(A) of the Act.
Workforce Innovation and Opportunity Act or WIOA--This NPRM adds
this term and defines it for the first time to refer to the Workforce
Innovation and Opportunity Act (Pub. L. 113-128), as amended, under
which the Department provides funding for States to carry out
employment and training activities for adult, dislocated worker, and
for youth activities in conjunction with local workforce development
areas. The TAA Program is a mandatory one-stop partner under WIOA.
B. Subpart B--Petitions, Investigations, and Determinations
The purpose of subpart B is to set forth regulations required by
sec. 248 of the Act, directing the Department to prescribe regulations
to implement the provisions for rendering group determinations on
adjustment assistance for trade-affected workers. This subpart will
provide for the prompt and effective investigation of petitions for
certification of eligibility to apply for adjustment assistance.
Proposed subpart B addresses secs. 221, 222, 223, and 224 of the
Act and codifies and relocates 29 CFR part 90 by incorporating it into
part 618. The proposed subpart makes several changes to update those
regulations to reflect statutory changes; current procedures for filing
petitions, conducting investigations, and issuing determinations of TAA
Program eligibility; and requires exhaustion of administrative
remedies, specifically use of the reconsideration process, prior to
judicial review. The Department proposes to relocate most of the
definitions in 29 CFR 90.2 to subpart A of part 618 for clarity and
consistency.
Section 618.200 Scope
Proposed Sec. 618.200 provides the same general scope for subpart
B as 29 CFR part 90 but expounds upon the description of the scope
given in 29 CFR 90.1.
Section 618.205 Petitions
Proposed Sec. 618.205 updates the provision related to petitions
at 29 CFR 90.11 and also makes the following changes. Proposed
paragraph (a) updates who may file a petition, based on changes to sec.
221(a) of the Act. It also changes Sec. 90.11(a) to reduce the number
of workers who must sign the petition from three to two. The Act does
not specify a minimum number of workers that make up a ``group of
workers.'' Therefore, the Department interprets this to require that a
group of workers be a minimum of two workers, instead of the current
requirement of three workers. Proposed paragraph (b) combines and
modifies 29 CFR 90.11(b) and (c) regarding the form and content of
petitions. It requires petitioners to provide information the
Department needs to begin its investigation. Absent this required
information, a petition will not be valid. The required information
remains substantially the same with the exception of proposing to
remove the requirements in Sec. 90.11(c)(6) and (7). The requirements
in Sec. 90.11(c)(6) and (7) are not worded in such a way to elicit
information in keeping with all of the statutory requirements for group
eligibility. Primarily, the requirements in 29 CFR 90.11(c)(6) and (7)
do not apply to a petition filed identifying a shift. Therefore, the
Department proposes to remove and replace them with proposed paragraph
(b)(8), which requires that the petitioner explain why it is believed
that worker separations that have occurred or may occur at the worker's
firm are due to foreign trade impacts, or provide a reason that an
amendment to an existing and active certification is being requested.
Proposed paragraph (b)(3) also adds a requirement to provide the
address of the location(s) where the group of workers who have been
totally or partially separated or threatened with separation report to
work (for a teleworker, the address of the location to which they
report) to assist the investigator in identifying the group of workers.
Proposed paragraph (c) is new and provides that supplemental
information, while not required when the petition is filed, may be
provided with the initial filing to assist the Department in rendering
a timely decision.
Proposed paragraph (d) updates 29 CFR 90.11(c) and maintains the
methods of filing, allowing petition submissions by fax, email, and
mail, but strongly enco