Trade Adjustment Assistance for Workers, 51896-52024 [2020-13802]
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Federal Register / Vol. 85, No. 163 / Friday, August 21, 2020 / Rules and Regulations
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Parts 617 and 618
29 CFR Part 90
[Docket No. ETA–2019–0009]
RIN 1205–AB78
Trade Adjustment Assistance for
Workers
Employment and Training
Administration, Labor.
ACTION: Final rule.
AGENCY:
The Employment and
Training Administration (ETA) of the
Department of Labor (Department) is
expanding 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. This final rule will, among
other improvements, make it easier for
workers to qualify for job search and
relocation allowances, increase those
allowances in line with the 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: This final rule is effective
September 21, 2020.
FOR FURTHER INFORMATION CONTACT:
Norris Tyler, Administrator, Office of
Trade Adjustment Assistance, U.S.
Department of Labor, Employment and
Training Administration, 200
Constitution Avenue NW, Room N–
5428, Washington, DC 20210,
Telephone: 202–693–3560 (voice) (this
is not a toll-free number), 1–888–365–
6822, or 1–877–889–5627
(Telecommunications Device for the
Deaf).
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Preamble Table of Contents
I. Acronyms and Abbreviations
II. Background
A. Introduction to the Trade Adjustment
Assistance Program
B. Statutory and Regulatory History of the
Trade Adjustment Assistance Program
C. Need for This Regulation
D. Public Comments Received on the
Notice of Proposed Rulemaking
III. Section-by-Section Analysis of This Final
Rule
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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
IV. 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)
ATAA Alternative Trade Adjustment
Assistance
EB Extended Benefits
ECI Employment Cost Indices
ETP(s) eligible training provider(s)
FEIN(s) Federal Employment Identification
Number(s)
FTR Federal Travel Regulation
HCTC Health Coverage Tax Credit
IC(s) information collection(s)
ICR(s) information collection request(s)
IEP(s) individual employment plan(s)
ITA(s) Individual Training Account(s)
ITC International Trade Commission
JSP job search program
JTPA Job Training Partnership Act
local area(s) local workforce development
area(s)
LWDB(s) local workforce development
board(s)
MIS management information system
NAA National Apprenticeship Act
OES Occupational Employment Statistics
OJT on-the-job training
OTAA Office of Trade Adjustment
Assistance
PIRL Participant Individual Record Layout
RTAA Reemployment Trade Adjustment
Assistance
SNAP Supplemental Nutrition Assistance
Program
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
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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
UMRA Unfunded Mandates Reform Act of
1995
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. Background
A. Introduction to the Trade Adjustment
Assistance Program
On November 7, 2019, the Department
published a Notice of Proposed
Rulemaking (NPRM) in the Federal
Register (84 FR 60150), proposing to
amend 20 CFR parts 617 (Trade
Adjustment Assistance for Workers
under the Trade Act of 1974) and 618
(Trade Adjustment Assistance under the
Trade Act of 1974, as Amended) to
expand protection and support for U.S.
workers adversely impacted by foreign
trade.
The Department is streamlining and
consolidating 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 revisions will codify into
regulation elements of the most recent
TAA Program amendments, the Trade
Adjustment Assistance Reauthorization
Act of 2015 (Pub. L. 114–27, title IV)
(TAARA 2015). This final rule also
incorporates operating instructions
issued via administrative guidance into
the TAA Program regulations, with
some refinements. Further, the 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.
This final rule increases efficiency
and flexibility for States and tradeaffected workers. Because subpart B
(Petitions, Investigations, and
Determinations) of this final rule
expressly permits 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
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Department anticipates a substantial
reduction in the number of requests to
amend certifications. The Department
also is increasing 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) clarifies
that work-based training includes
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 foreign trade,
thereby enabling such workers to retrain
and seek new employment before job
separation occurs. In subpart H
(Administration by Applicable State
Agencies), the Department is extending
flexibility by removing the requirement
that only State merit staff can provide
employment and case management
services using TAA Program funding,
granting States more flexibility with
program operations and creating better
alignment with WIOA.
This final rule seeks to improve
service delivery, and thereby serve
trade-affected workers more effectively,
by including service-delivery
requirements that align with data-tested
methods. Subpart A (General) better
defines 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 is helping
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).
In subpart E, this final rule
implements statutory provisions for
Reemployment Trade Adjustment
Assistance (RTAA) and incorporates
administrative guidance previously
issued by the Department, since no
regulations covering the RTAA program
existed. Subpart G implements several
statutory changes to Trade Readjustment
Allowances (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 (WBA) without
penalty. In addition, subpart I
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(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.
This final rule provides a
consolidated, authoritative set of rules
to guide Federal and State officials in
implementing the Trade Act of 1974
(Pub. L. 93–618), as amended (the Act).
This streamlining will also clarify the
Department’s interpretation of law for
courts.
Subpart B (Petitions, Investigations,
and Determinations) will produce cost
savings by eliminating the two-step
process for reconsiderations, which will
reduce the processing time involved for
all reconsiderations, and by clarifying
‘‘final determinations’’ for judicial
appeals, which will reduce the number
of those appeals. Subpart H
(Administration by Applicable State
Agencies) will also 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. This final rule is
considered to be an Executive Order
(E.O.) 13771 deregulatory action. Details
on the estimated cost savings of this
final rule can be found in the rule’s
economic analysis.
The purpose of this final rule is to
ensure that the TAA Program
regulations are modernized to reflect the
program’s current operation and make
needed improvements. The revisions
also will 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.
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
bolsters America’s competitiveness by
helping American workers retrain and
reenter the workforce.
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B. Statutory and Regulatory History of
the Trade Adjustment Assistance
Program
The Act (codified at 19 U.S.C. 2271 et
seq.), title II, chapter 2, established the
TAA for Workers program and the
RTAA program, as well as the
predecessor to RTAA, the Alternative
Trade Adjustment Assistance (ATAA)
program.1 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 the
TAARA 2015 amendments 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).
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 its behalf, 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
section 222 of the Act. Second, if the
Department finds the group eligible and
certifies the petition, trade-affected
workers in the worker group may
individually 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
purpose. 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 2 million trade-affected U.S.
workers. In Fiscal Year (FY) 2018, an
estimated 76,920 workers became
eligible for TAA Program benefits and
services. Nearly 77 percent of tradeaffected workers obtained employment
within 6 months of completing the TAA
Program.
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
1 ATAA is largely unaddressed in the final rule
because it was replaced by RTAA.
2 The HCTC was due to expire on January 1, 2020,
but has recently been extended to January 1, 2021.
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trade-affected workers who enter the
program, however, face similar
challenges in obtaining reemployment.
Trade-affected workers have no
postsecondary degree typically, a
median age of 52, and have a median
tenure of 8.3 years of experience in
adversely affected employment.3 The
TAA Program is designed to serve the
needs of this unique population.
Congress has 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,
sections 2671, 2672, 2673), 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,
section 501 through 507). In 1987, the
Department issued a final rule
significantly revising the certification
process in 29 CFR part 90 (52 FR 23403,
June 19, 1987). 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 the
ATAA program 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. 18, 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 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.
3 U.S. Department of Labor, Employment and
Training Administration. (2019). ‘‘Trade
Adjustment Assistance for Workers Program: Fiscal
Year 2018.’’ Retrieved from: https://
www.doleta.gov/tradeact/docs/
AnnualReport18.pdf.
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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, provided a balance
between the expanded certification
criteria and benefits and services
provided under TGAAA, and the more
limited provisions in TAARA 2002.
TAARA 2015 reauthorized the TAA
Program through June 30, 2021. It
primarily followed TAAEA, the 2011
law, with two exceptions. The
amendments included capping funding
for TaOA at $450 million per fiscal year
and establishing new performance
indicators to align with WIOA. TAARA
2015 reauthorized the RTAA and HCTC
benefit programs. TAARA 2015
continued to grandfather earlier
versions of the TAA Program for tradeaffected workers who had been certified
under TAARA 2002, TGAAA, and
TAAEA. That is, a trade-affected worker
who was a member of a worker group
covered by a certification that was
issued under TAARA 2002, TGAAA, or
TAAEA continued to receive benefits
and services available under the
respective program eligibility criteria
applicable to those earlier amendments.
C. Need for This Regulation
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 legislative amendments have
required various changes to the
program, which the Department has
addressed through administrative
guidance. This final rule codifies in
regulation program operations under the
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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most recent amendments (TAARA
2015), including significant elements of
TAA Program administrative guidance.
This final rule was drafted to reflect
how the TAA Program is currently
operating and includes some
adjustments that will improve the
program. Once this final rule is
effective, the Department will rescind
redundant administrative guidance, as
appropriate.
This final rule will help States and
the public better understand the proper
operation of the TAA Program. It will
promote transparency by setting out, in
binding regulation, the major principles
by which the TAA Program operates,
and it also will provide the public and
courts with the Department’s
authoritative interpretation of the Act.
In addition, this final rule includes
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 have needed
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
improvements to the provisions in this
final rule.
This final rule also includes changes
that 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. This final rule aligns
with and references the WIOA
regulations where appropriate. This
final rule also removes outdated
references to the Job Training
Partnership Act (JTPA) and the
Workforce Investment Act of 1998
(WIA).
D. General Comments Received on the
Notice of Proposed Rulemaking
On November 7, 2019, the Department
published an NPRM in the Federal
Register (84 FR 60150), proposing to
amend 20 CFR parts 617 (Trade
Adjustment Assistance for Workers
under the Trade Act of 1974) and 618
(Trade Adjustment Assistance under the
Trade Act of 1974, as Amended) and 29
CFR part 90 to expand protection and
support for U.S. workers adversely
impacted by foreign trade. The NPRM
invited written comments from the
public concerning this proposed
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rulemaking through December 9, 2019.
This 30-day comment period was later
extended by 2 days (84 FR 67681),
through December 11, 2019, because of
a regulations.gov website outage that
occurred on December 9, 2019. No
commenters requested an extension of
the comment period or otherwise
expressed concern about the public’s
ability to participate in the rulemaking
process. The comments received on the
NPRM may be viewed at https://
www.regulations.gov by entering docket
number ETA–2019–0009.
The Department received comment
submissions from 54 commenters, of
which 45 submissions were unique and
9 were duplicates or not related to the
subject of this rule. The commenters
represented a range of stakeholders from
the public and nonprofit sectors. Public
sector commenters included State and
local government agencies, local
workforce development boards
(LWDBs), and one-stop operators.
Nonprofit sector commenters included
public policy organizations, advocacy
groups, national and local labor unions,
and a trade association. Of the unique
comments, nearly one third came from
State government workforce agencies.
The Department also received several
comments from private citizens.
These comments are addressed in
Section III (Section-by-Section Analysis)
of this final rule. About half of the
unique comments supported parts of the
proposal but opposed others, while a
smaller number conditioned their
support for the proposal on the
Department adopting certain changes in
this final rule.
The NPRM notified the public that an
additional docket (ETA–2019–0010) for
comments related to the information
collection (IC) discussed in Section V.D
of the NPRM preamble (Paperwork
Reduction Act) would remain open
until January 6, 2020. The Department
did not receive comments related to this
IC in this docket. For further
information on the IC, please see the
Paperwork Reduction Act (PRA) section
of this final rule (Section IV.D).
General Comments on the Proposed
Rule
One commenter agreed with the
anticipated improvements and benefits
of the proposed rule that the
Department set forth in the NPRM. One
commenter stated that several of the
proposed changes would positively
strengthen local control of program
development. Another commenter
agreed that the proposal would help
workers but expressed curiosity about
how the rule would affect the economy
if adopted. Several commenters sought
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guidance, unrelated to the proposal, on
very specific programmatic scenarios
related to their current workforce
programs. One commenter expressed
general concern that the proposed rule
could disproportionately reduce
benefits and services for rural AAWs. In
contrast, another commenter said the
proposed rule would help rural
communities and areas with ‘‘a strong
presence of the blue-collar work force.’’
None of these commenters provided
specific, substantive comments on any
particular part of the proposed rule or
proposed regulatory text; therefore,
these comments are not addressed in the
Section-by-Section Analysis below.
One State workforce agency
commented that the TAA Program
needs updates to keep serving tradeaffected workers most effectively.
Another State workforce agency
commenter supported efforts to
incorporate existing law, administrative
guidance, and practice into a single set
of regulations, saying the changes would
improve program operations and reduce
the burden of referencing numerous
amendments and issuances of
administrative guidance. The
Department has, wherever possible,
incorporated administrative guidance
into this rule.
The Department received one
comment of general opposition to the
timing of the proposed rule in relation
to the upcoming Presidential election
and the status of the economy. The
commenter provided insufficient
information on why it recommended
delaying until after the election, so the
Department is unable to address any
specific concerns.
results in stable, family-sustaining
employment. The commenter, however,
suggested additional changes to increase
the program’s effectiveness: Extending
eligibility to workers affected by
automation and other large-scale
economic disruptions, allowing workers
to use TRA for services other than
training, and making extra support
available to communities hit hardest by
foreign trade impacts. The Department
appreciates this feedback, but these
suggestions are beyond the scope of its
statutory authority and are not
addressed in this final rule.
While one commenter agreed with the
overall argument for why a rulemaking
is needed (e.g., to modernize the
program regulations), it requested
clarification about the intended effect of
consolidating the regulations: Whether
it will result in a ‘‘universal’’ program
under which all trade-affected workers
may access the same benefits regardless
of the statutory basis for their
certification, or whether the final rule
will provide different requirements and
benefits according to the individual
statutory basis of eligibility. The
commenter said it preferred the
‘‘universal’’ approach because it would
provide a consistent level of support to
all workers and help avoid
‘‘misunderstandings.’’ While the
Department appreciates the
commenter’s interest in the provision of
a consistent level of support, the
Department does not have the authority
to apply this final rule to all tradeaffected workers without regard to the
version of the Act under which the
worker group was certified.
Comments on the Department’s
Approach to Rulemaking
A commenter from an LWDB strongly
agreed with the Department’s rationale
concerning the need for a rulemaking,
including that the proposed rule would
increase stakeholder and public
understanding of how the TAA Program
works, would streamline State
administration of the program, would
strengthen transparency through
codification of current practice, and
would provide courts with the
Department’s definitive interpretation of
the TAA Program’s authorizing statutes.
Citing its own research about the need
for TAA Program reform, a nonprofit
public policy organization said that the
proposed rule covers several issues
raised in that research, namely the need
to increase the proportion of dislocated
workers covered; the need to strengthen
the TAA Program across the board
(rather than focus on training only); and
the need to ensure the training offered
Integrated Service Strategies To Align
WIOA and TAA Programs
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A worker advocacy group strongly
supported efforts to codify into the
program regulations improved
alignment with WIOA, such as through
the replacement of core indicators of
performance based on TAAEA with
primary indicators of performance based
on WIOA, and the addition of more
robust reporting and data collection
requirements. Citing WIOA’s approach
to promoting industry or sector
partnerships among stakeholders at the
State and local workforce development
area (local area) levels, the group also
encouraged the Department to
emphasize the importance of aligning
training and other services to industry
needs. Further, the commenter said that
bringing this focus to the TAA Program
would help ensure that public
investments both lift up affected
workers and respond to industry
demands.
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The Department aligned this final rule
with WIOA requirements and has long
promoted integrated service delivery for
the TAA Program within the nation’s
public workforce system. These efforts
began as early as the passage of the 1988
amendments to the TAA Program and
the subsequent passage of the Economic
Dislocation and Worker Adjustment
Assistance Program. Integrated service
delivery became a requirement,
enforced via the Governor-Secretary
Agreement, following the passage of the
WIA. The Department has provided
significant administrative guidance and
dedicated substantial technical
assistance resources to assist States and
local areas in developing integrated
service models focused on reducing
barriers to participation and eliminating
duplication of effort. After more than 20
years of promoting an integrated service
delivery model and encouraging coenrollment in WIOA (WIA, JTPA, etc.),
the Department, based on detailed
analysis of participant outcomes, is now
mandating co-enrollment between the
TAA Program and the WIOA dislocated
worker program. Additionally, as the
commenter recommended, the
Department has aligned this final rule
with the WIOA regulations wherever
possible, unless a particular statutory
limitation required otherwise or data
analysis supported an alternative
approach.
One commenter supported the
Department’s acknowledgment that
WIOA and TAA Program alignment is
important for workers, businesses, and
communities, but it expressed concerns
about the level of Federal funding and
infrastructure limitations in the public
workforce system. The commenter
provided data supporting stated
concerns about the levels of Federal
funding of the public workforce system.
The Department recognizes these
concerns, but appropriated funding
levels are beyond the scope of this
rulemaking.
This commenter also made several
recommendations to facilitate better
alignment of the programs without
overburdening workers or program
administrators, including clarifying the
meaning of WIOA-related terms, such as
‘‘customized training,’’ ‘‘on-the-job
training’’ (OJT), and ‘‘individual
employment plan,’’ and their
application to the TAA Program. To the
extent possible and consistent with
statutory differences, the Department
has aligned these definitions in the final
rule. For further discussion regarding
how these various terms have been
defined, please refer to the preamble
discussion for § 618.110 below.
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III. Section-by-Section Analysis of This
Final Rule
If a section of the NPRM is not
addressed in the section-by-section
analysis below, there were no public
comments received and, unless
otherwise noted, the Department has
adopted the section as proposed. The
Department has made some
nonsubstantive changes to the
regulatory text to correct grammatical
and typographical errors, or to improve
readability.
A. Subpart A—General
Subpart A sets forth the purpose and
scope of the TAA Program and defines
relevant terms used throughout the rule.
Subpart A as proposed in the NPRM
modified and simplified several
definitions for greater clarity, eliminated
definitions in response to statutory
changes to the Act, and added
definitions of new terms based on
statutory changes. The definitions used
in this final rule are intended to reflect
the modernized TAA Program, which
has evolved since TAARA 2002, and
ensure maximum alignment with
WIOA. Where the Department received
comments on specific paragraphs within
a section, details of those paragraphs as
proposed in the NPRM are included to
provide context for the discussion of
comments that follows.
Section 618.100
Purpose and Scope
Section 618.100 of the final rule sets
forth the purpose and scope of the
regulations governing the TAA program
in one location. Prior to this final rule,
this provision existed at 20 CFR 617.1
and 617.2. The NPRM proposed setting
forth these provisions in one section,
addressing the purpose in paragraph (a)
and the scope in paragraph (b). The
NPRM also proposed revising them by
broadening the purpose to reflect that
the TAA Program’s purpose is more
than just returning trade-affected
workers to suitable employment and by
expanding the scope beyond what was
reflected in 20 CFR 617.2 in light of the
fact that part 618 of the final rule
combines what had been parts 617 and
618 of title 20 and part 90 of title 29.
With regard to the scope of this rule
at paragraph (b), two commenters asked
whether eligible trade-affected workers
who are members of a worker group
certified under previous amendments
(versions) of the Act would be provided
the benefits and services described in
the proposed rule or whether
administrative guidance would still
apply. The TAA Program regulations
were last updated in 1994, with only
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minor changes made in 2006,7 2007,8
and 2010.9 Since that time, multiple
TAA Program reauthorizations and
amendments have required various
changes to the TAA Program, which the
Department has addressed through
administrative guidance. Upon review,
the Department concludes that some
administrative guidance must remain
active in order to serve continuing or
new workers enrolling under the
TAARA 2002 and TGAAA versions of
the TAA Program. The Department will
rescind administrative guidance that is
either obsolete or superseded.
In short, this rule will apply except
where it does not apply to older
versions of the TAA Program because of
a statutory conflict. Specifically, certain
sections will not apply to members of
worker groups certified under petition
numbers TA–W–80,999 and below.
Members of worker groups certified
under petition series TA–W–43,000
through TA–W–69,999 and some under
the petition series TA–W–80,000
through TA–W–80,999 are served by
TAARA 2002,10 and where this final
rule does not apply to a since-amended
version of the statute governing the
relevant version of the program,
administrative guidance will continue
to apply for current members of worker
groups and any new members of worker
groups determined eligible for training
services as well as job search and
relocation allowances under that
version of the program. The same
applies for members of worker groups
certified under petition series TA–W–
70,000 through TA–W–79,999 served by
TGAAA. Members of worker groups
certified under petition series TA–W–
81,000 through TA–W–84,999, and
some certified under petition series TA–
W–80,000 through TA–W–80,999, are
served by TAAEA and this final rule
will apply in full. Members of worker
groups certified under petition series
TA–W–90,000 and above, and some
certified under petition series TA–W–
85,000 through TA–W–89,999, are
served by TAARA 2015, and this final
rule will apply in full. The Department
has added a clarification to § 618.100(b)
of the final rule to explain the
limitations of this part 618 and will
7 71 FR 35511 (June 21, 2006) (making technical
amendments to update obsolete, nonsubstantive, or
nomenclature references).
8 72 FR 37097 (July 9, 2007) (making minor
changes to 29 CFR part 90).
9 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).
10 States serving workers certified under petition
series TA–W–42,999 and below should contact
their regional office for guidance.
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provide technical assistance on this
topic.
One commenter generally supported
facilitating State TAA Program
administration. Another commenter
wrote that it is difficult to administer
separate TAA programs based on the
many previous amendments. The
Department explored whether it was
possible to unite all previous versions of
the TAA Program under a single rule to
reduce the administrative burden on the
States. Unfortunately, this is not
possible through regulation and the
final rule adopts the regulatory text as
proposed.
Section 618.110 Definitions
Section 618.110 sets forth definitions
used throughout the TAA regulations,
consolidating definitions from several
places in the old regulations and
guidance, as well as adding some new
defined terms. If the Department did not
receive public comments on a definition
or inclusion of a specific term, the term
is not listed below and the definition
was adopted as proposed, unless stated
otherwise.
Some necessary technical changes
were made to several definitions;
specifically, the plural pronoun ‘‘their’’
was changed to a singular ‘‘his or her’’
in the definitions of ‘‘Administrator,’’
‘‘eligible TAA recipient,’’ and
‘‘individual employment plan.’’ A
similar pronoun change was made in
the definition of ‘‘qualifying
separation,’’ being replaced with the
acronym ‘‘AAW’s.’’
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Agent State
The Department clarifies that there is
only an agent State, other than the liable
State, if the AAW has accessed services
outside of the worker’s liable State.
Until such time as the worker seeks
services in another State, the liable State
is both the liable and agent State. If the
worker is simply seeking to travel to
another State under a job search
allowance, or is relocating to another
State, that is not considered to be
seeking services in that State. The
Department has added this clarification
to the definition.
Exhaustion of UI
The NPRM removed this defined term
from 20 CFR 617.3(p) and included it in
proposed subpart G rather than in
proposed subpart A.
Several commenters raised concerns
with the elimination of the term
‘‘exhaustion of UI.’’ The Department
noted in the proposal that it intended to
remove this term and address this via
the language contained in proposed
§ 618.720(e). Upon further review, the
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Department concurs with the
commenters and has added to subpart A
the original term and its definition into
this final rule from 20 CFR 617.3(p),
changing only the phrase ‘‘an
individual’’ to ‘‘a worker.’’
Family
The NPRM modified the definition of
this term from 20 CFR 617.3(q), which
was based on the Internal Revenue Code
definition. The definition used in the
NPRM was the definition of ‘‘immediate
family’’ used in the Federal Travel
Regulation (FTR) at 41 CFR 300–3.1.
Numerous commenters recommended
the Department use the WIOA definition
of ‘‘family’’ from 20 CFR 675.300, rather
than the proposed definition. The
commenters asserted that this approach
would increase flexibility and better
align the TAA Program with WIOA. The
Department proposed the FTR
definition of ‘‘family’’ because the term
is used only in subpart D, which
governs Job Search and Relocation
Allowances. The definition of ‘‘family’’
used under other programs, such as
WIOA, is inconsistent with subpart D
and the requirements of the FTR and is,
therefore, not used in this final rule. The
Department adopts the term and
definition as proposed. However, a
technical correction was made to
remove an erroneous letter ‘‘s’’ before
the apostrophe. The rest of the
definition of the term is adopted as
proposed.
Full-Time Training
The NPRM added ‘‘full-time training’’
and defined it for the first time. The
definition was derived from 20 CFR
617.22(f)(4) and defined 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 also added an
interpretation, originally published in
TAAEA administrative guidance, that
provided 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.
A commenter agreed with the
proposed definition of ‘‘full-time
training,’’ saying it would help States
assess TRA eligibility for students who
are in their last semester of training. The
Department has adopted this term and
definition as proposed.
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Group of Workers
The NPRM added ‘‘group of workers’’
and defined it for the first time in
regulations. This term relates to the
workers who file a petition or for whom
a petition is filed. The NPRM defined it
to mean at least two workers employed
or formerly employed by the same firm,
or an appropriate subdivision. The
proposed definition included
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 were included in the
definition because they, too, may be
trade-affected workers.
Two commenters supported
redefining ‘‘group of workers’’ as
meaning two or more (not three or more)
workers. One commenter was concerned
that the change would result in a higher
volume of petitions filed and certified.
The Act does not define ‘‘group of
workers’’ and does not otherwise
indicate how many workers must be in
a group. According to a plain and
ordinary meaning of the term ‘‘group,’’
the word means more than one. Thus,
the Department has reduced the number
of workers required to two, allowing for
the broadest interpretation of ‘‘group.’’
The Department acknowledges that this
change may result in a higher volume of
petitions; nevertheless, it concludes that
this definition is consistent with the
statutory framework. The Department
adopts this term and definition into the
final rule as proposed.
Individual Employment Plan or IEP
The NPRM added ‘‘individual
employment plan or IEP’’ and defined it
for the first time. 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.
A commenter recommended a small
edit to the definition of ‘‘individual
employment plan’’ (replacing the word
‘‘State’’ with the phrase ‘‘career
planner’’) for better alignment with both
20 CFR 680.170 of the WIOA regulations
(definition of IEP) and the proposed
changes to permit staffing flexibility in
the TAA Program regulations.
Throughout the rule, the Department
uses the term ‘‘State’’ because the
obligation for providing these services
under the Governor-Secretary
Agreement is on the State. Some
commenters were concerned that this
was not the appropriate term to use,
considering that the additional
flexibility provided in the area of merit
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staff requirements will result in many of
the services under the TAA Program
being delivered by local area WIOA staff
that are not State employees.
The TAA Program is operated under
an agreement between the Secretary and
the Governor of each State. Although
some services may be performed or
administered by non-State staff, it is the
State, via the cooperating State agency,
that is ultimately responsible to ensure
that those services are provided, so
‘‘State’’ will be retained throughout the
final rule as the appropriate term.
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Lack of Work
The NPRM added ‘‘lack of work’’ and
defined it for the first time. The
proposed definition was based on
administrative guidance related to
‘‘strikes’’ and ‘‘lockouts’’ and their effect
on eligibility for TAA Program benefits
and services since 1987. 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.
One commenter agreed with the
definition of ‘‘lack of work’’ to include
workers involuntarily barred from work
because of an employer-imposed
lockout and maintained that this would
reach workers who may not be covered
by State UI laws. The Department
adopts this term and definition into the
final rule as proposed.
Layoff
The NPRM modified the definition of
this term, by adding the words ‘‘of time’’
to the 20 CFR 617.3(z) phrase ‘‘expected
to be for a definite or indefinite period.’’
In addition, the language at 20 CFR
617.3(z) and 29 CFR 90.2 that required
that the layoff be expected to last for
‘‘not less than seven consecutive days’’
and ‘‘no less than seven (7) consecutive
calendar days,’’ respectively, was not
included in the proposed definition,
because that restriction was not
supported by the Act.
One commenter requested
clarification regarding the Department’s
decision not to retain from the previous
definition of ‘‘layoff’’ in 29 CFR 90.2 the
requirement that the employer’s
suspension of a worker from pay status
for lack of work be expected to last ‘‘no
less than seven (7) consecutive calendar
days.’’ The commenter asked, as an
example, whether a worker who is ‘‘laid
off’’ for 1 day and then starts
employment with the same employer at
a different facility would qualify for
relocation allowance, or whether that
would be treated as a ‘‘transfer.’’ More
broadly, the commenter sought
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clarification about whether there are
specific instances in which a State must
consider the length of the layoff to
determine a worker’s eligibility for some
TAA Program benefits.
The NPRM proposed removing the
language regarding 7 consecutive days.
The language removal affirmed that,
consistent with the commenter’s
example, an AAW can be laid off from
trade-affected employment for 1 day and
begin employment for the same
employer at another facility that is not
the same subdivision or firm of the
certified worker group. Also, if all other
eligibility requirements are met, the
worker may qualify for a relocation
allowance. The Department has
determined that, generally, States may
consider the length of a layoff to help
determine if a qualifying separation is
either a first separation or the most
recent separation. The Department
adopts this term and definition into the
final rule as proposed.
Liable State
The Department clarifies that a liable
State is the State whose State UI law is
the applicable law for the claim. Until
such time as the worker seeks services
in another State, the liable State is both
the liable and agent State. The
Department has added this clarification
to the definition by indicating that a
State can be both the liable and agent
State.
On-the-Job Training or OJT
The NPRM modified the definition of
‘‘on-the-job training or OJT’’ from
section 247(15) of the Act and 20 CFR
617.3(bb). It added that such training is
work-based and performed under
contract with an employer.
A commenter suggested aligning the
definition of ‘‘on-the-job training’’ more
closely with the WIOA definition
(WIOA section 3(44)) to clarify when
and how such training is provided and
to describe a limit on the duration of
such training. While many of the
requirements align, there are statutory
differences between the Act and WIOA
as it relates to OJT, including differing
criteria and labor protections. The
Department has aligned this final rule
wherever operationally and statutorily
possible with the WIOA Final Rule, but
the statutory differences prevent
complete alignment here. The
Department adopts this term and
definition into the final rule as
proposed.
Prerequisite Education or Prerequisite
Coursework or Prerequisite Training
The NPRM added the terms
prerequisite education or prerequisite
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coursework or prerequisite training and
defined them for the first time. They
refer to approvable training under
section 236(a)(5)(E) of the Act.
A commenter expressed concern that
the proposed definition of the terms
prerequisite education or prerequisite
coursework or prerequisite training was
overbroad and could result in all but a
student’s last courses being treated as
prerequisite. The commenter
recommended that the Department
adopt an alternative definition, based on
language regarding classroom training
currently found in 20 CFR 617.21(g):
‘‘any coursework or training required by
a training provider before entering an
occupational training program designed
to impart the skills and information
required to perform a specific job or
group of jobs.’’ Another commenter
requested clarification about the
proposed definition, stating that it
appeared inconsistent with
administrative guidance.
The Department concurs with these
comments. Though the Department
intended to codify the administrative
guidance, the Department’s definition
failed to recognize that, throughout a
training program, every course that
precedes another one can be considered
a prerequisite. The final rule revises the
proposed definition of these terms and
defines prerequisite education as those
courses or training required by a
training provider before entering an
occupational training program designed
to impart the skills and information
required to perform a specific job or
group of jobs, consistent with
administrative guidance.
Program of Remedial Education or
Remedial Education or Remedial
Training
The NPRM added ‘‘program of
remedial education or remedial
education or remedial training’’ and
defined them for the first time. The
terms relate to approvable training
under section 236(a)(5)(D) of the Act
and are used to refer to education
designed to improve trade-affected
workers’ basic knowledge.
A commenter asked for clarification
on the Department’s proposed definition
of the terms program of remedial
education or remedial education or
remedial training, stating that it seemed
inconsistent with administrative
guidance. The commenter did not
provide any specifics regarding its
concern.
The definition as provided, when read
in concert with the allowable services
under the employment and case
management provisions of subpart C
and the training provisions in subpart F,
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is consistent with the previously issued
administrative guidance. The
Department adopts this term and the
definition into the final rule as
proposed.
Successor-in-Interest
The NPRM added ‘‘successor-ininterest’’ and defined 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 trade-affected
worker’s wages are reported to the State
or by whom a termination notice or
threatened status letter is issued. Under
the proposed definition, in determining
whether or not there is a successor-ininterest, 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.
A State workforce agency commented
that the Department’s clarification in the
proposed rule of which actions establish
a ‘‘successor-in-interest’’ relationship
will help States by reducing their need
to file petitions seeking to amend a
certification. A different commenter
requested further clarity as to how to
determine whether a successor-ininterest exists. Another commenter
requested clarification about the
inclusion of wages paid to a worker by
a successor-in-interest for purposes of
proposed subpart G. Specifically, the
commenter stated that States are not
able to determine whether a successorin-interest is ‘‘a valid entity tied to the
trade-affected wage’’ and it asked what
documentation a State would need to
reach such a determination.
Under the TAA Program, the
Department certifies a worker group, not
a firm. Members of the worker group
consist of those employed by the firm
named in the certification, those
employed by a staffing agency, those
who telework at remote locations, and
those employed by a successor-ininterest. In many circumstances, not all
of these categories of trade-affected
workers will be specifically referenced
in the certification, but those workers
will nevertheless be included in the
worker group. States can more easily
use the factors found in the definition
at § 618.110 to determine whether a
successor firm is a successor-in-interest
and this is further discussed in
§§ 618.225(k), 618.505(b), and
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618.820(h). When a State determines
that a firm is a successor-in-interest to
the firm named in an active
certification, the State benefits by being
able to serve those workers without the
delay of having to file a petition to
amend the certification.
In regards to RTAA, as stated in
§ 618.505(b), if the State determines that
the AAW 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.
This requirement is a protection against
firms purposefully separating workers
and then rehiring them under a
successor-in-interest at lower wages,
and shifting those costs to the taxpayer
via the RTAA benefit. Applying the
certification to the successor-in-interest
reflects that the firm may continue to be
affected by a trade impact. 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).
The Department recognizes this may
be a shift in how some States have
administered the TAA Program.
Specifically, TRA staff will need to
work closely with TAA staff and can no
longer rely on employing firms’ names
being listed in the certification. This
reliance on the certification as the sole
source for employer information creates
delays in serving trade-affected workers.
The Department regularly receives
petitions requesting to amend a
certification solely to add the name of
a successor-in-interest whose workers
have already been identified to the State
in a worker list as part of identifying the
worker group. These requests arise
simply because the TRA staff believes
that the firm must be listed in the
determination in order for the tradeaffected worker to be eligible to apply
for TAA Program benefits and services.
The delays caused by waiting for a
subsequent petition investigation to
conclude prior to serving these workers
creates longer periods of unemployment
for workers in need of training or other
reemployment services. The Department
will provide technical assistance to
States for handling successor-in-interest
issues, as well as for their identification
of and provision of benefits and services
for members of certified worker groups.
The Department adopts the term and
definition into the final rule as
proposed, except for two nonsubstantive
spelling corrections.
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51903
Suitable Employment
The NPRM modified the definition of
‘‘suitable employment’’ from 20 CFR
617.22(a)(1)(i) and section 236(e) of the
Act. The Department proposed that
suitable employment exclude part-time,
temporary, or threatened employment.
A State workforce agency commented
that the proposed definition of ‘‘suitable
employment’’ excluded ‘‘temporary
employment’’ and asked the Department
to clarify that temporary employment
means work lasting 6 months or less.
Two additional commenters requested
clarification about the intended
meaning of ‘‘threatened employment,’’
another category of work that would not
count as ‘‘suitable employment.’’
Specifically, one of the commenters
stated that it would support its
interpretation as being ‘‘unlikely to lead
to a long-term employment
opportunity,’’ because of its concern
that work meeting that definition, even
if not explicitly temporary, would be
susceptible to future elimination. The
commenter maintained that this could
trap workers in a ‘‘cycle’’ of needing
continuous TAA Program benefits or
result in their losing eligibility for
retraining (and, therefore, having to
assume training costs themselves), and
should not be considered ‘‘suitable
employment.’’
The Department shares these concerns
and agrees they should be considered.
For this reason, the proposed definition
of ‘‘suitable employment’’ in § 618.110
included language that part-time,
temporary, short-term, or threatened
employment is not suitable
employment.
A State workforce agency
recommended ‘‘streamlining’’ the
definition of ‘‘suitable employment,’’
saying that the proposed definition
would lead to unnecessary frustration
and confusion among workers.
The Department concludes that the
proposed definition of this term will
reduce confusion by explicitly
providing additional guidance to States
and trade-affected workers for when
employment is not suitable employment
for purposes of the TAA Program.
Similarly, another State workforce
agency raised the following concerns
about the proposed definition of
‘‘suitable employment’’: (1) The phrase
‘‘substantially equal or higher skill
level’’ is unclear and open to
interpretation and, if maintained in the
final rule, will require administrative
guidance for States to operationalize it
as a criterion uniformly and objectively;
(2) it is not sufficiently flexible and
could bar workers at higher incomes
from eligibility for some benefits, such
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as job search and relocation allowances,
because of inability to find new work at
a high enough wage; (3) the lack of
clarity as to whether and how it should
be interpreted relative to other defined
terms (i.e., ‘‘average weekly wage’’ and
‘‘wages’’) muddles the proper approach
to issues like noncash compensation,
commissions, and bonuses; and (4) the
‘‘blanket exclusion’’ for part-time work
does not account for situations in which
the new work is otherwise suitable in
terms of skills required and wages paid
‘‘(e.g., a production worker ret[r]ains to
be a [Registered Nurse]).’’
The phrase ‘‘substantially equal or
higher skill level’’ is contained in the
statute. In operational terms, States
assess the trade-affected worker’s
preexisting skill levels, abilities, and
education, and compare them with the
requirements of available employment
in the current and projected labor
market to determine suitability. The
Occupational Information Network
(O*NET) provides skill level
information for hundreds of
occupations. To address the example
provided by the State, work scheduled
for a Registered Nurse may only be 3 or
4 days a week, but the job is unlikely
to be considered part-time under State
law based on the hours worked. The
Department further explains that the
determination of the availability of
suitable employment is used for the
approval of benefits, not for projecting
employment following the completion
of training.
Several comments were received
about the definition of ‘‘suitable
employment,’’ requesting clarification of
its relationship to the definition of
‘‘wages.’’ Proposed § 618.100(a)
established that the purpose of the TAA
Program is to return trade-affected
workers to suitable employment as
quickly as possible, which is unchanged
from 20 CFR 617.2. 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 and earns at least 80
percent of his or her 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 may occur because (1)
few, if any, jobs are available at the
workers’ former wages with 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
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workers’ employment opportunities.
Offering appropriate training, especially
in a stagnant labor market, may
significantly increase a trade-affected
worker’s prospects of obtaining suitable
employment. Trade-affected workers
must have access to training and
services that will allow them the best
possible outcomes and ability to
compete for work at the highest skill
levels and highest wages achievable, 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; given the tradeaffected workers’ preexisting skill
levels, abilities, and education, and the
current and projected needs of
employers. States must ensure they
administer their programs equitably and
reasonably. The Department adopts this
term and definition in the final rule as
proposed.
Wages
The Act does not provide a definition
of ‘‘wages,’’ so the Department proposed
to retain the definition of ‘‘wages’’ from
existing regulations at 20 CFR 617.3(pp).
One commenter was concerned with
the ability of staff to calculate noncash
compensation. Another commenter
stated that the proposed definition of
wages would complicate calculations
needed under the RTAA benefit.
In response to these comments, the
Department has reconsidered the
proposed definition of ‘‘wages.’’ The
final rule yields to applicable State
laws, contains a new reference to a
State’s definition of remuneration under
State UI law, and revises the proposed
definition in § 618.110 accordingly.
There is no practical or operational
change with this revision, including no
change for calculating TRA, or for
determining whether reemployment is
suitable employment. Before a State can
approve a training program, the State
must ensure that there is not suitable
employment available to the AAW.
While calculating the wage component
of suitable employment is statutory, it is
80 percent of the average weekly wage
as defined by the Act. When exploring
the local labor market, the worker and
the State will be limited to the
information contained in job postings in
calculating the reemployment wage.
These postings will likely contain an
hourly wage rate, annual salary amount,
or range. Although the posting may
contain reference to other benefits,
commissions, or bonuses, these are not
usually listed with a known value and
are often not guaranteed. Where there is
no known value of these benefits,
bonuses, or commissions, the State
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would simply use the wage rate or
annual salary amount in the posting to
determine whether the wage portion of
the definition of suitable employment
has been met. Where there are definite
benefits, commissions, or bonuses, the
State would include those amounts if it
would be included in determining
remuneration under State UI law. Based
on oversight and technical assistance
provided on this issue, the Department
is confident that this reflects what is
being done in most States under the
previous regulations in 20 CFR part 617.
Other Terminology Applicable Across
Part 618
A few commenters requested that the
Department define the term
‘‘teleworker.’’ A State workforce agency
added that, while § 618.225(j) offers
some guidance as to its meaning, a fuller
definition in § 618.110, like the
definition of ‘‘staffed worker’’ found
there, would be helpful. The
Department has not included a
definition of the term in this final rule
because there is no singular, agreedupon definition for the term
‘‘teleworker’’ across Federal programs.
In general, teleworkers are workers who
are members of a worker group who
work remotely, but take direction from
and report to the location listed for a
firm on a certification. The remote
location can vary, and may include the
worker’s own residence, a shared office
space, public location, etc. Teleworkers
may need to provide information or
documentation showing their
connection to the worker group if they
are not already listed on the worker list
provided to the State by the firm.
The same commenter offered several
further suggestions of definitions the
Department should consider adding to
this section of the rule:
• ‘‘Adjustment assistance’’ (used in
§ 618.205);
• ‘‘Annualized reemployment wages’’
and ‘‘annualized separation wages’’ (to
replace the term ‘‘wages,’’ which the
commenter said is defined in a manner
inconsistent with how it is used in
§ 618.520(a)(2)(i) and (ii), with more
‘‘technical’’ terms);
• ‘‘Distance learning’’ (in lieu of
defining it in § 618.620(b)(2));
• ‘‘Foreign trade,’’ ‘‘foreign trade
impacts,’’ or both; and
• ‘‘Remedial education.’’
The commenter also requested
clarification about whether the terms
‘‘training’’ and ‘‘skills training’’ are
meant to be interchangeable and
suggested that these terms, which (along
with the term ‘‘remedial education’’) are
used in § 618.610(b)(1), might warrant
definition in this section.
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The requested additional wage-related
terms are unnecessary based on the
modification made to the definition of
‘‘wages’’ in the final rule. Many of these
terms are discussed elsewhere in this
preamble and the Department concludes
that the remaining terms are clear
without further definition. The
Department declines commenters’
suggestions for additional definitions.
Section 618.120
Severability
The Department has decided to
include a severability provision as part
of the final rule. To the extent that any
provision of the final rule is declared
invalid by a court of competent
jurisdiction, the Department intends for
all other provisions that are capable of
operating in the absence of the specific
provision that has been invalidated to
remain in effect.
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B. Subpart B—Petitions, Investigations,
and Determinations
The purpose of subpart B is to
implement the provisions for
determining group eligibility to apply
for adjustment assistance for tradeaffected workers. This subpart provides
the process for the investigation of
petitions for certification of eligibility to
apply for adjustment assistance.
Subpart B addresses sections 221,
222, 223, and 224 of the Act, modifying
29 CFR part 90 and incorporating it into
part 618. Proposed subpart B made
several changes to update the
regulations, including updates to reflect
statutory changes and current
procedures for filing petitions,
conducting investigations, and issuing
determinations of TAA Program
eligibility, and added a requirement for
exhaustion of administrative remedies,
specifically, use of the reconsideration
process, prior to judicial review. In the
NPRM, the Department relocated most
of the definitions in 29 CFR 90.2 to
subpart A of 20 CFR part 618 for clarity
and consistency. The Department did
not receive any comments on proposed
§§ 618.200, 618.220, 618.230, and
618.260. The final rule adopts these
sections as proposed, with the exception
of a change at § 618.220(d) to the use of
a pronoun. Where the Department
received comments on specific
paragraphs within a section, details of
those paragraphs as proposed in the
NPRM are included to provide context
for the discussion of comments that
follows.
Section 618.205
Petitions
Proposed § 618.205 updated the
section related to petitions at 29 CFR
90.11. The Department is finalizing this
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section as proposed, except for the
changes noted below.
Paragraph (a)
Proposed paragraph (a) of this section
updated who may file a petition, based
on changes to section 221(a) of the Act.
This paragraph identified four entities
who may file a petition: (1) A group of
workers; (2) a union or other duly
authorized representative; (3) the
employer of the group of workers; or (4)
one-stop center operators or partners,
including State workforce officials,
employment security agencies, or
dislocated worker unit and rapid
response team members. It also changed
the language from 20 CFR 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.’’
A commenter generally supported the
proposed changes to the petition
process, writing that they would reduce
barriers for diverse AAW populations.
Another commenter wrote that the
proposal would clarify the petition
process and remove overly technical
language. A few commenters agreed that
petitions should be filed through the
Department’s website, but some also
requested that the feature for uploading
attachments be made more userfriendly. The Department will take these
requests into consideration as it works
to modify the online system for
submitting petitions and uploading
attachments, and appreciates the
commenters’ input and support.
A few commenters supported the
proposed change at § 618.205(a), writing
that reducing the required number of
workers on a petition from three to two
would benefit workers and the petition
process. The Department appreciates
this support.
Another commenter stated that the
introduction to paragraph (a) of this
section is unclear and a State workforce
agency provided recommended edits to
§ 618.205(a) to clarify which workers
may file a petition. The State workforce
agency said that the language in
paragraph (a) of the proposed rule said
that a group of workers may file a
petition, yet paragraphs (a)(2) through
(4) identified a list of additional entities
that could also file a petition. The
Department agrees that, while a group of
workers may file a petition, there are
also others who may file petitions on its
behalf. The Department has revised the
regulatory text to remove the use of the
term ‘‘worker group’’ in this paragraph
(a).
One commenter recommended
removing language at § 618.205(a) that
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would require petitioners to file
simultaneously with their State, writing
that a better approach would be for the
Department to share petitions with
States. The commenter also asked for
clarification of the consequences if
petitioners failed to file simultaneously
under the proposed rule. Another
commenter, however, recommended
retaining the requirement that
petitioners file simultaneously with the
State, stating that this is a statutory
requirement intended to ensure States
provide rapid response services to
petitioners. The commenter added that
paragraph (j) of this section also should
be changed to reflect the statutory
requirement that the State and the
Department receive petitions
simultaneously. The Department agrees
that simultaneous filing is not optional.
The ‘‘may’’ that section 221(a)(1) refers
to is the party that is authorized to file
a petition, not to the requirement for
simultaneous filing of a petition. The
proposed rule required that petitions be
filed simultaneously with the
Department and the State. The
Department, therefore, adopts the
proposed language into the final rule,
with the exception of § 618.205(j),
which has been revised to require States
to verify that the Department also has
received the petition.
A State workforce agency
recommended adding the words
‘‘certified or recognized’’ before ‘‘union’’
at paragraph (a)(2) of this section. The
commenter maintained that doing so
would be consistent with the regulatory
text at §§ 618.205(b)(9)(i) and
618.210(c)(6). The Department agrees
and acknowledges that this proposed
revision would align the regulatory text
more closely with the statutory
requirement, and has revised the
regulatory text accordingly.
The same State workforce agency also
recommended replacing ‘‘employer’’ at
§ 618.205(a)(3) with ‘‘an authorized
representative of the firm where the
group of workers is employed.’’ It
maintained that this language would
better fit with the regulations’ definition
of the term ‘‘firm,’’ which excludes
government entities. The State
workforce agency also said that
§ 618.205(b)(2) likewise uses the term
‘‘firm’’ instead of ‘‘employer.’’ The
Department agrees that public sector
workers do not meet the group
eligibility requirements for a worker
group under TAARA 2015. The use of
the term ‘‘employer,’’ however, long
predated the temporary addition of
those workers in 2009, and changing the
term from ‘‘employer’’ to ‘‘firm’’ may
unintentionally limit the universe of
petition filers, because the term ‘‘firm’’
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is specifically defined to include the
‘‘firm or appropriate subdivision.’’ The
Department has adopted the language
into the final rule as proposed.
The same State workforce agency
requested clarification of ‘‘employment
security agencies’’ at § 618.205(a)(4).
The Department explains that
‘‘employment security agencies’’ is a
legacy term that refers to the State
agency responsible for administering UI.
Section 618.205(a)(4) is adopted without
change.
Paragraph (b)
Proposed paragraph (b) combined and
modified 29 CFR 90.11(b) and (c)
regarding the form and content of
petitions. It required petitioners to
provide information the Department
needs to begin its investigation. Absent
this required information, a petition
would not be valid.
A commenter recommended
rewording § 618.205(b) to reflect the
possibility that a petition may be filed
by persons other than the workers
named in the petition. Another
commenter generally supported the
changes in paragraphs (b)(1) through (9)
of this section. The Department agrees
with the commenter that proposed
paragraph (b) did not accurately reflect
the universe of entities who may file a
petition and has revised the regulatory
text at § 618.205(b) by deleting the first
sentence, which specifically referred to
the worker group.
Two commenters asked whether
§ 618.205(b)(4), which required that a
petition include 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, meant that only a single
point of contact need be provided for a
petition for certification. Another
commenter recommended that the
provision for ‘‘an individual authorized
to provide information regarding the
operation of the group of workers’ firm’’
be removed, as it is unclear who such
an individual would be. The regulatory
text as proposed means that at least one
official within the firm employing the
group of workers or an individual
authorized to provide information
regarding the operation of the business
is required on the petition form; this
regulatory text does not, however,
preclude a petitioner from including
more than one contact, if known.
One commenter wrote that proposed
§ 618.205(b)(6), which required that a
petition include the actual or
approximate date on which total or
partial separations are threated to occur
or did occur, did not explain clearly
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how a petitioner would address
multiple separation dates. The
commenter stated that worker
separations in mass layoffs often come
in waves, and it recommended that the
‘‘hover text’’ available in the online
system for submitting petitions (asking
that petitioners provide the ‘‘most
recent date on which the separation
occurred or is threatened to occur’’) be
adopted in the final rule. The
Department has addressed these issues
separately through revisions to the
instructions provided through the
online petition process and on the print
versions of the forms.
One commenter wrote that proposed
§ 618.205(b)(8), which required that the
petitioner provide a reason why he or
she believes that worker separations
have occurred or may occur at the firm
due to foreign trade impacts or why an
amendment to an existing certification
should be granted, provides only a
cursory mention of using petitions to
amend active certifications. This
commenter suggested that petitions to
amend active certifications should be
addressed in a separate paragraph.
Another commenter also recommended
that § 618.205(b)(8) and other sections of
the regulatory text more clearly address
requests to amend petitions. The
Department specifically addresses
amendments to active certifications in
§ 618.250, and has made no change in
the final rule to § 618.205(b)(8) in
response to these comments. The only
change to § 618.205(b)(8) is the removal
of the word ‘‘employer’s’’ before ‘‘firm’’
for consistency throughout this subpart.
One commenter recommended editing
§ 618.205(b)(9)(i), which identified who
must sign the petition, by adding the
words ‘‘of workers’’ after ‘‘petitioning
group,’’ and adding the words ‘‘of the
group of workers, or an official of the
firm employing the group of workers’’
after ‘‘duly authorized representative.’’
The commenter wrote that the
requirement in § 618.205(b)(9)(ii) that
petitioners attest to their authorization
to file a petition is problematic for
petitioners under paragraph (a)(1) of this
section, who often file because of their
firm’s refusal to do so. The requirement
that the workers attest to being
authorized to file means only that the
workers believe that they are included
in the group of workers. This attestation
is not related to the firm’s support of, or
opposition to, the application. The
Department has modified the language
in the final rule at § 618.205(b)(9)(i)
consistent with the comments received.
These revisions provide important
clarity, while not substantively
changing the requirement.
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Paragraph (d)
Proposed paragraph (d) of this section
updated 29 CFR 90.11(c) and
maintained the methods of filing,
allowing petition submissions by fax,
email, and mail, but strongly
encouraged that all petitions be filed
electronically with the Department
through the Department’s website.
Another commenter recommended
that paragraph (d) of this section be
changed to direct workers to State TAA
or TRA coordinators instead of a onestop center, arguing that the former
would provide more accurate
information. WIOA designates the TAA
Program as a required partner of the
one-stop delivery system. Additionally,
this final rule requires that the TAA
Program be delivered primarily through
the one-stop delivery system. Thus, the
one-stop centers or rapid response units
are the appropriate place for tradeaffected workers to be directed to access
additional information about the TAA
Program. After considering this
comment, the Department declines this
suggestion, and adopts § 618.205(d) into
the final rule as proposed, with a
nonsubstantive edit to the hyperlink to
the website for the TAA Program.
Paragraph (e)
Proposed paragraph (e) implemented
section 224 of the Act, requiring the
Department to take specific actions
when the ITC issues an affirmative
determination on the investigation
under section 202 or 421 of the Act, or
issues an affirmative final determination
under section 705 or 735 of the Tariff
Act of 1930.
Two commenters wrote that the
changes for International Trade
Commission (ITC) notifications at
§ 618.205(e) would better serve the
public if States were notified in addition
to industries. The Department explains
that the notification to the States was
already included in proposed
§ 618.205(e)(3); therefore, there is no
need to revise paragraph (e) and the
final rule adopts the paragraph as
proposed.
One commenter requested that the
Department allow petitions filed on
behalf of companies with affirmative
ITC determinations to omit information
that otherwise would be required in a
petition, writing that it is burdensome
for States to provide that information.
The Department will continue to
explore options for the investigation
process for petitions filed based on an
ITC finding. Any changes made to the
petition process must be made under an
information collection request (ICR)
separate from the final rule.
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Accordingly, the Department declines to
revise the regulatory text at this time,
and this final rule adopts the provision
as proposed.
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Paragraph (j)
Proposed paragraph (j) of this section
set forth the States’ responsibilities
under section 239 of the Act to verify
that the Department has also received
any petition filed with the State. No
comments were received regarding this
paragraph, but the Department has made
a technical correction to § 618.205(j) to
correct two incomplete conditional
statements. There is no change to the
intent of the proposed rule or its
operational impact as a result of this
edit.
Section 618.210 Investigation
Section 618.210 of the proposed rule
described the investigation process,
authorized under sections 221 and 222
of the Act, and updated 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.
Several commenters stated that it
would be helpful if the Department
would share a list of impacted workers
with States, saying that doing so would
expedite their outreach to members of
worker groups. The Department does
not collect worker lists due to the
personally identifiable information
contained therein, nor is this
information needed for a determination
to be made. To assist States in collecting
worker lists, the Department has
explicitly authorized States to use
subpoenas to collect this information
from firms that fail to provide the
information upon request. Although the
use of subpoenas for this purpose has
always been authorized under the TAA
Program, it has, until now, been implied
rather than specified.
Proposed paragraph (c) explained the
steps the investigator may take in order
to render a determination on a petition.
It also identified commonly used
sources of information, and provided
added detail, structure, and
transparency to stakeholders about the
investigation process.
A commenter stated that the
transparency of the investigative process
provided at § 618.210(c) helps ensure
that petitions are submitted correctly.
The Department’s intent of including
this additional information is to provide
the public with a better understanding
of the investigation process and the
information reviewed by the
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Department. The final rule adopts this
section as proposed, with the addition
of a comma in paragraph (f).
Section 618.215 Public Hearings
Section 618.215 of the proposed rule
set forth when a public hearing in
connection with an investigation is to be
held and, as was explained in the
preamble to the NPRM, there were only
a few proposed changes from 29 CFR
90.13.
Proposed paragraph (b) established
the method for requesting a public
hearing and expanded on the
requirements related to hearings that
existed at 29 CFR 90.13.
A commenter identified a
nonsubstantive typo in § 618.215 at
proposed paragraph (b)(3). The
Department corrects the error by
replacing ‘‘is’’ with ‘‘of’’ and also makes
a change to the use of a pronoun in
paragraph (d). The remainder of the
section is adopted as proposed.
Section 618.225 Criteria for
Certification of a Group of Workers
Proposed § 618.225 substantially
updated language from 29 CFR 90.16(b)
to describe the criteria the Department
uses to certify a group of workers, which
have expanded significantly under
section 222 of the Act. It also identified
factors under consideration in
determining whether a criterion is met.
The revised language provided
transparency on how investigations are
conducted, the importance of
information collected, and how the
information is used. The proposed
provisions reflected Congressional
intent and existing Departmental
practices. The Department is finalizing
this section as proposed, except for the
changes noted below.
One commenter stated that
transparency of certification criteria is
helpful for the efficient operation of the
petition process.
Staffed Workers § 618.225(i)
Proposed paragraph (i) of this section
provided that staffed workers, working
on or off site, would be classified as part
of the worker group of the firm. The
Department would specify in the
determination document that all
members of the affected worker group
include teleworkers and staffed workers,
but would not list specific leasing
companies or temporary staffing
entities. The Department would
continue to collect information from the
subject firm in order to establish the
leasing or temporary staffing entity or
entities over which the trade-affected
workers’ firm has operational control.
Proposed paragraphs (i)(1) through (9) of
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this section then listed the factors to be
considered in evaluating operation
control.
The Department specifically sought
comments from the public on whether
or not to include, by default, staffed
workers as part of a certified worker
group. The primary benefit to including
staffed workers as part of the worker
group is that staffed workers are
members of a worker group even if they
are not specifically mentioned within
the determination document. States may
serve those workers without the delay of
petitioning to amend an active
certification. The Department is
finalizing this section as proposed,
except for the changes noted below.
One commenter requested guidance
for determining whether a staffing entity
should be included in a certified worker
group. Two commenters requested
additional guidance for how States
should provide services to staffed
workers that were not included in the
original certification, especially when
more than one agency administers the
TAA Program. Another commenter also
requested further guidance on the
treatment of staffed workers, explaining
that there is tension between (1) the
Department’s determination whether a
certification will cover a staffing entity,
and (2) the allowance for staffed
workers to belong to a certified worker
group even if the determination
document does not name the workers’
staffing entity. A few commenters
recommended that the Department
continue to list all employers of staffed
workers within its determination
document, commenting that this
practice better provides benefits to
eligible workers and is less labor
intensive for States. One commenter
maintained that naming staffing entities
in petitions would help States because
the staffing entities, not the certified
employers, would have workers’ wage
data. Conversely, a commenter wrote
that requiring States to petition to
amend certifications in order to provide
benefits to unnamed staffed workers
would be needlessly burdensome.
Another commenter agreed, writing that
such a requirement would lead to longer
investigations and, thus, harm the entire
worker group. A different commenter
agreed that it would be easier for
workers to be included on a single
petition, but it said that doing so would
complicate States’ recordkeeping
procedures. A commenter stated that the
provision for staffed workers would
impose an undue hardship on States
with limited TAA Program staff. The
commenter also pointed out that the
TAA Program might be administered by
two agencies within a State, which
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could lead to inconsistent
determinations regarding staffing
entities.
The Department appreciates the time
and effort taken by commenters to
respond to this specific request. The
Governor-Secretary Agreement binds
the entire executive branch of a State to
compliance with these regulations and
all determinations made by the
Department. Upon publication and
implementation of this final rule, State
workforce agencies, including those that
administer UI, will be bound to
implement them.
Once a certification is issued, the
States are charged with determining
individual eligibility. These regulations
provide sufficient guidelines for State
agencies to determine whether or not a
trade-affected worker is included in the
worker group, subject to the
determination document issued by the
Department. Further, these regulations
require States to notify the Department
when there are appeals to denials of
benefits under the TAA Program.
Through this process, the Department
will ensure that States are fully
compliant with the provisions of these
rules related to staffed workers,
teleworkers, and successor-in-interest
issues.
The Department recognizes this may
be a shift in how some States have
administered the TAA Program.
Specifically, TRA staff will need to
work closely with TAA Program staff
and can no longer rely on the names of
employing firms being separately listed
in the certification. This reliance on the
certification as the sole source for
employer information creates delays in
serving trade-affected workers. The
Department regularly receives requests
to amend a certification solely to add
the name of a staffing company whose
workers have already been identified to
the State in a worker list as part of
identifying the worker group. These
requests arise simply because the TRA
staff believes that the firm must be
specifically listed in the determination
in order for the trade-affected worker to
be eligible to apply for TAA Program
benefits and services. The delays caused
by waiting for a subsequent petition
investigation to conclude, or for an
amendment to be issued, prior to
serving these workers creates longer
periods of unemployment for workers in
need of training and other
reemployment services. The Department
will be providing technical assistance to
assist States in handling staffed worker
issues as well as to assist in this
transition to further empower States in
their identification of and provision of
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benefits and services for members of
certified worker groups.
A commenter asked how the
Department will treat workers it
determines are ineligible after a State
has already begun providing services to
those workers. If a trade-affected worker
is determined ineligible after a State has
already begun providing services to the
worker, he or she should be treated the
same way as the State treats any other
worker in similar circumstances. If
necessary, the State would issue a
benefit denial determination and afford
the worker the opportunity to appeal the
determination.
Additionally, since trade-affected
workers, if eligible, are mandated to be
co-enrolled with the WIOA dislocated
worker program, the worker may
continue to be served by that program
or other partner programs. The
commenter also questioned when and
how often the Department would
provide States with the names of
staffing entities. The Department will
provide States with information on
staffing firms.
A different commenter asked how the
Department would handle workers of a
staffing entity that no longer contracts
with a certified worker group firm.
When a firm is queried about staffed
workers, it will be asked to provide
information on all staffing firms utilized
during the certification period, even if
the contract is no longer in place at the
time of the investigation. In accordance
with provisions in § 618.225(i), the
Department will provide States with the
names of staffing entities (if they are
provided during the investigation
process) at the time the certification is
announced to assist States in notifying
members of the worker group. States
that discover additional leasing or
temporary staffing entities employing
staffed workers who are members of a
certified worker group may serve those
trade-affected workers without the delay
of filing a new petition requesting an
amendment to the certification. This
change in procedure will enhance
service delivery to workers. The list of
staffing entities provided to the States
by the Department should not be seen
as limiting. There may be workers
employed by other staffing entities not
listed that are also members of the
worker group. States should make clear
to the firm that, when requesting the
worker list, the list should include all
on-site and off-site workers, as well as
staffing agencies and successor-ininterest information, if known. The
Department encourages States in need of
technical assistance on individual
scenarios that arise under this final rule
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to contact their regional office for
assistance.
One commenter requested that the
Department share Federal Employment
Identification Numbers (FEINs) with
States to help identify impacted
workers, especially teleworkers. The
Department certifies a worker group, not
a firm, and members of that worker
group may be employed by the firm, a
subdivision of the firm, a successor-ininterest, or a staffing agency under the
direction of the firm. Although a FEIN
may be collected during a petition
investigation, the Department does not
systematically collect all of the FEINs
associated with a firm, subdivision of a
firm, or all employers of a worker group.
Therefore, though an FEIN may be
provided, it is insufficient to identify all
teleworkers.
The Department recognizes States’
challenges in determining individual
eligibility for TRA benefits and
reviewing wage records to determine if
an AAW has worked long enough at a
location to qualify for TAA Program
benefits. Additionally, challenges also
can arise with regard to staffed workers
and those who are perceived to be
staffed workers.
Scenarios often arise where a firm that
employs or employed a certified worker
group outsources its payroll and
benefits functions to a third party.
Trade-affected workers named by the
company as being part of the eligible
worker group may have their wages paid
by the third party and not the company
named by the certified petition. For
example, Company A has been named
in a certification. Trade-affected workers
named as part of the worker list
associated with this certification have
their wages paid to them by Company
B, a third party that Company A has
outsourced its payroll and benefits
functions to, and their wage records do
not align with being employed by
Company A. The outsourcing of those
workers’ payroll and benefits processing
by Company A to Company B does not
render those workers ineligible to
individually apply for TAA Program
benefits and services. Often, States have
filed a petition to request an amendment
to a certification to offer clarification.
Even though it may appear that the
workers named are being paid by a third
party, an amendment to add the payroll
company before serving these workers is
unnecessary. It also may be helpful for
States, as part of initial requests to a
firm for its worker list, to inquire
whether the firm contracts its payroll
out to a different company, and to ask
for pertinent information about that
payroll company.
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The Department has adopted
paragraph (i) into the final rule as
proposed.
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Teleworkers § 618.225(j)
Proposed paragraph (j) of this section
codified administrative guidance issued
as part of the TAAEA operating
instructions. This section explained 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 tradeaffected workers in the worker group.
One commenter supported including
teleworkers in a certified worker group.
Another commenter supported the
proposal and stated that it would allow
States to share lists of teleworkers with
other States.
A State workforce agency
recommended clarifying whether
teleworkers based in other countries
could be considered part of a worker
group. A teleworker, living abroad,
would not be eligible for services or
benefits under the Act while abroad.
Upon the teleworker’s return to the
United States, he or she would be able
to apply for benefits and services and a
determination would be made at that
time. The Department adopts
§ 618.225(j) into the final rule as
proposed.
References to Worker Adjustment and
Retraining Notice (WARN) Letters
One commenter requested that, where
WARN letters are referenced, the
Department add ‘‘or a similar letter
under [S]tate statute.’’ Several States
have State laws modeled after the
Federal WARN Act requirements. The
Department has modified the regulatory
text in five instances at
§ 618.225(a)(2)(i)(C)(1), (b)(2)(i)(C)(1),
(c)(1)(iii)(A), (d)(1)(iii)(A), and
(e)(1)(iii)(A) to include language that
references State-level WARN laws.
The same commenter also
recommended replacing the term
‘‘displaced worker’’ with ‘‘dislocated
worker’’ throughout the proposal in
order to match WIOA terminology.
Upon review, the Department has
concluded that neither term is ideal.
The Department has changed the six
instances of the term ‘‘displaced
workers’’ at § 618.225(a)(2)(i)(A)(4),
(b)(2)(i)(A)(4), (c)(1)(i)(D), (c)(2)(i)(D),
(d)(1)(i)(D), and (e)(1)(i) to ‘‘workers in
the group of workers.’’ Since ‘‘displaced
workers’’ is not a defined term,
‘‘workers in the group of workers’’ is
more appropriate and this clarification
does not change the meaning of the
regulatory provision.
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Finally, the Department made
nonsubstantive technical corrections to
capitalize the term ‘‘Certifying Officers’’
in this section. Aside from the
modifications discussed above, the final
rule adopts § 618.225 as proposed.
Section 618.235 Determinations
Section 618.235 of the proposed rule
clarified the process the Certifying
Officer would use for issuing a
determination based on the findings of
the investigation as set forth in
§ 618.230. The final rule adopts this
section as proposed, except for the
changes noted below.
Proposed paragraph (c) covered
determinations and was derived from 29
CFR 90.16(d). Proposed paragraph (d)
covered amended determinations and
codified the practice of amending a
certification.
One commenter recommended a
technical correction to the opening part
of paragraph (c) of this section to clarify
that the correct title is Certifying Officer
and not Certifying Official. The same
commenter also recommended revising
paragraph (d) of this section to allow the
Department to amend certifications with
or without a petition. The commenter
requested clarity about the provision in
paragraph (d) allowing the Department
to reconsider a denial on its own
initiative, commenting that there is an
absence of references to other, related
provisions in § 618.245. Based on these
comments, the Department revised the
regulatory text at § 618.235(c) to refer to
a Certifying Officer instead of a
Certifying Official, at § 618.235(d) to
provide that a determination may be
amended in accordance with
§ 618.250(a), and has also added a new
provision § 618.235(e) explicitly stating
the Department’s preexisting, intrinsic
authority to modify its determinations.
The Department has included a similar
statement in the final rule at
§ 618.250(d) to address the comment
about the Department’s ability to amend
determinations on its own authority.
Section 618.240 Termination of
Certification
Proposed § 618.240 discussed the
termination of certifications under
section 223(d) of the Act and updated
the previous regulations to reflect
current practice and procedures through
minor revisions to 29 CFR 90.17. The
Department clarified that 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
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and subject to judicial appeal. The
Department is finalizing this section as
proposed, except for the changes noted
below.
Paragraph (a)
Proposed paragraph (a) restated
section 222(d) of the Act and is
unchanged from 29 CFR 90.17(a).
Proposed paragraph (a)(1) described that
unless a termination is issued under
proposed § 618.240, all certifications
made under proposed § 618.235(a)(1)(ii)
are considered terminated the day
following the expiration date of the
certification. Proposed paragraph (a)(2)
provided 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.
The Department received comments
on proposed paragraph (d), discussed
below, which resulted in the final rule
not carrying forward proposed
paragraphs (a)(1) and (2) of this section.
One commenter asked how a
termination would affect program
participants. In response to this
comment, if a certification is
terminated, no additional trade-affected
workers would be eligible to enroll in
the TAA Program as of the effective date
of the termination. AAWs already
receiving TAA Program benefits and
services would be allowed to continue
in the TAA Program. The Department
made no changes in response to this
comment.
Paragraph (b)
Proposed paragraph (b) included the
notice language from 29 CFR 90.17(a)
and updated it to include to whom the
notices will be made. It also required
the State to notify the trade-affected
workers in the worker group of the
initiation of the investigation to
terminate a certification.
Two commenters asked how States
may notify a worker group of a
terminated certification. Similarly, a
State workforce agency commented that
States should be required to notify only
those trade-affected workers who would
face separations after a certification
termination, because a broader
requirement would burden States and
confuse workers. The Department does
not concur with the commenter that
such a notice would cause burden or
confusion. The notification should
clearly state that workers fully or
partially separated prior to the
termination date remain eligible for
benefits. The regulatory text in the final
rule has not been revised.
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Paragraph (d)
Proposed paragraph (d) described the
information that will be considered in
determining whether to terminate a
certification and provided that the
period of investigation would remain
the same as the period of investigation
for the original certification.
One commenter asked how
terminations issued because worker
separations fail to result from conditions
set out in section 222 of the Act could
be consistent with paragraph (d) of this
section, if the period of a certification
will remain the same as the original
period of investigation. The commenter
asked if the issue is whether those
conditions, which existed at the time of
the certification, have changed in the
period since the certification and before
the standard date of termination. The
termination provisions, as proposed,
were based on the statutory language at
section 223(d) of the Act and previous
regulations at 29 CFR 90.17. The actions
taken under the termination provision
do not establish a new period of
certification. A change in circumstances
may occur to change the conditions
under which the worker group was
initially certified. In most scenarios, a
termination is a result of the removal of
a threat of separation and often there
have been no actual separations and the
conditions that resulted in the threat are
no longer present. The Department
sought to provide additional
transparency and clarity on the internal
operations of the investigation process
related to terminations. In doing so, the
Department now recognizes that the
proposed language needs clarification.
As a result, the Department has revised
the regulatory text to reflect more
closely the language included in 29 CFR
90.17 by deleting proposed
§ 618.240(a)(1) and (2), deleting the last
sentence of proposed § 618.240(d)
(which would have required the period
of investigation of a termination of
certification to remain the same as the
period of investigation for the original
certification), and making minor
technical edits to proposed
§ 618.240(e)(1) and (f).
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Paragraph (e)
Proposed paragraph (e) combined 29
CFR 90.17(d) and (e) to provide details
on the process of issuing a notice of
termination or notice of partial
termination, and detailed to whom the
notices would be issued. It required
States to notify the worker group of the
termination or partial termination. It
also stated that a termination would not
take effect until the period in which a
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party may request reconsideration has
elapsed.
A State workforce agency requested
additional guidance on paragraph (e) of
this section, asking how the final rule
would impact workers who receive
services prior to a termination date. The
Department clarifies that there would be
no change in benefits to AAWs who
have been separated or partially
separated prior to the termination.
AAIWs who are receiving benefits
would be impacted by a termination or
partial termination of a certification, as
they would not have been separated or
partially separated. Aside from the
technical edit to § 618.240(e)(1)
discussed above, the final rule adopts
paragraph (e) as proposed.
Paragraph (f)
Proposed paragraph (f) updated 29
CFR 90.17(f) and provided detail on the
process of issuing a notice of
continuation of certification, and
detailed to whom the notice will be
issued. It required States to notify the
worker group of the continuation of
certification.
One commenter recommended that
the Department be required to provide
notification to workers in a worker
group for which certification has been
terminated, instead of the State, writing
that States could share their information
with the Department or the Department
could provide States with a letter to
send on its behalf. The commenter also
recommended deleting the third
sentence of paragraph (f) of this section,
as notice to the worker group is already
addressed in the last sentence of
paragraph (f). Another commenter
supported notifying workers that a
petition is under investigation, but
requested that the regulation contain
information as to what must be included
in a notification and who would need to
receive it. The Department will provide
training and technical assistance on
how States can provide notice to
impacted trade-affected workers should
a termination occur, but States should
plan to contact workers using available
contact information and to notify
eligible workers who are
nonparticipants in a similar manner in
which States first notified the impacted
workers of their eligibility to apply for
benefits and services.
One commenter asked for an example
of why a certification would be
terminated. One example would be if
the Department receives notice from a
company official that the firm just
received a new contract and have
canceled the imminent layoffs of the
certified worker group. Another
example is where the company has
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canceled the outsourcing of its
manufacturing line to a foreign country.
In these cases, the Department would
investigate and determine whether
separations are still attributable to the
reasons stated in the worker group
certification. The Department points out
this provision also was in 29 CFR 90.17.
Aside from the technical edit to
§ 618.240(f)(1) discussed above, the final
rule adopts paragraph (f) as proposed.
Paragraph (g)
Proposed paragraph (g) allowed for
reconsideration of a termination or
partial termination of a certification and
referred parties to § 618.245.
The same commenter discussed
immediately above also wrote that
paragraph (g) of this section should refer
to § 618.205, not § 618.225. The
Department has corrected the
typographical error.
Section 618.245 Reconsideration of
Termination of an Investigation, Denial,
or Termination or Partial Termination of
Certification
Proposed § 618.245 contained the
process for reconsiderations of
determinations on petitions. The
proposed rule contained several changes
from the previous language in 29 CFR
90.18 to provide additional
clarifications and to enhance efficiency
of investigations.
A State workforce agency stated that
the Department should notify States
when it is reconsidering a termination.
The State workforce agency said that the
proposed change would expedite
reconsideration requests. Another
commenter, a private citizen, agreed and
said the rule would make
reconsiderations mandatory prior to a
final adverse determination. The
Department concurs with the
commenters and will provide
notification of any intent to reconsider.
This is an operational process that does
not require a change to the regulatory
text. As such, no changes were made to
the regulatory text in the final rule in
response to these comments.
Section 618.250 Amendments of
Certifications
Proposed § 618.250 provided the
process for seeking amendments to
certifications. Although the proposed
process was not previously included in
regulation, 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
section 222 of the Act. The Department
interprets that provision to mean that,
should new or supplemental
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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. The Department
is adopting this section in the final rule
as proposed, except for the changes
noted below.
Proposed paragraph (a) described the
reasons for amendments and explained
that amendments must not extend the
impact date as that would go beyond the
period covered by the certification itself.
A commenter requested that the
Department further specify that the
Department may undertake to amend a
certification on its own initiative,
without a § 618.205 petition. The
Department has modified the regulatory
text in §§ 618.235(d) and 618.250(a) to
clarify that the Department retains the
authority to amend a certification
without a petition where it has
determined that an amendment is
appropriate. The Department has further
modified the paragraph heading in
§ 618.250(a) in the final rule from Types
of amendments to Reasons for
amendments to accurately reflect the
contents of paragraph (a).
A commenter asked whether the
reference in § 618.250(a) to
§ 618.235(a)(1)(iii)(A) should cite
§ 618.235(a)(1)(ii) instead. The correct
reference is § 618.235(a)(1)(ii), and the
citation in the regulatory text has been
corrected accordingly.
Section 618.255 Judicial Review of
Determinations
Section 618.255 in the NPRM
proposed the process for judicial review
of determinations issued under
proposed § 618.245(g). This is a
significant revision to the language
previously at 29 CFR 90.19. Section 284
of the Act allows for judicial review of
only ‘‘final determinations.’’ Under
previous regulations, all determinations
the Department rendered were final
determinations subject to judicial
review. The Department is adopting the
section in the final rule as proposed,
except for the change noted below.
Proposed paragraph (b) defined only
determinations on reconsideration
issued under proposed §§ 618.240(g)
and 618.245 as final determinations
subject to judicial review through the
United States Court of International
Trade (USCIT).
A commenter wrote that § 618.255(b)
should be amended to reference only
§ 618.245(g) rather than §§ 618.240(g)
and 618.245. The commenter stated that
the latter sections are not correct
citations with respect to final
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determinations. The Department
concurs, has corrected the citation in
the regulatory text, and otherwise
adopts § 618.255(b) as proposed.
Section 618.265 Availability of
Information to the Public
Section 618.265 of the NPRM
proposed at paragraph (a) that the
Department would post all
determinations and redacted petitions
on the Department’s website. This
paragraph also provided that members
of the public may inspect petitions and
other related documents filed with the
Administrator. Proposed paragraph (b)
stated that confidential business
information would not be made
available to the public. Section 618.265
as proposed was largely unchanged
from the previous language at 29 CFR
90.32, except to indicate that copies of
petitions, in redacted form, would be
available on the Department’s website.
A commenter recommended adding a
reference to the TAA Program website to
§ 618.265(a). The Department concurs
with the suggestion to include the
website for the TAA Program in
§ 618.265(a). The website reference has
been added to paragraph (a) of this
provision in the final rule, and the
Department otherwise adopts § 618.265
as proposed.
C. Subpart C—Employment and Case
Management Services
Subpart C describes the employment
and case management services that
States must make available to tradeaffected workers as required by section
235 of the Act. These services were
previously set forth in 20 CFR part 617.
The proposed regulation proposed
significant changes to the part 617
provisions to reflect the changes enacted
by TGAAA, TAAEA, and TAARA 2015.
However, not all of the requirements
included here are new. Previously, 20
CFR 617.20 and 617.21 contained many
of the same elements now contained in
section 235 of the Act and in this final
rule.
Subpart C of the NPRM also proposed
language to update 20 CFR part 617 to
reflect changes to the TAA Program and
related workforce development
programs due to the authorization and
implementation of WIOA. This subpart
emphasizes the integration of the TAA
Program into the one-stop delivery
system established under WIA and
continued under WIOA. It also
implements the requirements of section
221(a)(2)(A) of the Act for the provision
of rapid response assistance and
appropriate career services for workers
upon receipt of a petition filed covering
a group of workers.
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Some key proposals within subpart C
included requiring initial assessments
for trade-affected workers, clarifying the
provision of required case management
services, and prescribing requirements
for IEPs.
The Department is finalizing this
subpart as proposed, except for the
changes noted below. Where the
Department received comments on
specific paragraphs within a section,
details of those paragraphs as proposed
in the NPRM are included to provide
context for the discussion of comments
that follows. No comments were
received on proposed §§ 618.300 and
618.305, and the final rule implements
these sections as proposed.
Section 618.310 Responsibilities for
the Delivery of Employment and Case
Management Services
Proposed § 618.310 of the NPRM set
forth the State’s responsibilities for
delivering and making available
employment and case management
services. These responsibilities are from
section 235 of the Act. The Department
is making a technical correction to
§ 618.310(a) to edit the citation from
§ 618.820 to § 618.816. The Department
is finalizing this section as proposed,
except for the changes to § 618.310(b)
and (c) noted below.
Paragraph (b)
Proposed paragraph (b) listed the
State’s specific responsibilities for
delivering employment and case
management services. The proposed
regulatory text modified 20 CFR
617.20(b). The language in 20 CFR
617.20 was based on workforce
programs that have been replaced by
WIOA and used outdated language to
describe reemployment services, now
known under the TAA Program as
employment and case management
services. Proposed paragraph (b) did not
significantly change the activities and
services that States must provide or
make available to trade-affected
workers. It required that States (1)
interview and review training
opportunities for each trade-affected
worker, (2) inform trade-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 trainingwaiver 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) also
reorganized 20 CFR 617.20(b). All the
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provisions of 20 CFR 617.20(b), if not
contained in this section, are subsumed
elsewhere in the rule.
One commenter expressed concern
about the requirement at § 618.310(b)(1)
mandating States subject ‘‘every’’ tradeaffected worker to an intake process that
includes an interview and a review of
appropriate training opportunities. The
commenter said many trade-affected
workers will choose not to participate in
the TAA Program, and States cannot be
expected to force all workers eligible for
the program to undergo the intake
process. The commenter recommended
changing the provision to require only
that States ‘‘offer’’ to provide the intake
process to trade-affected workers to
account for the fact that some workers
may in fact choose not to participate in
the TAA Program. The Department
emphasizes that intake requires an
application of enrollment; therefore, the
intake requirement is applicable only to
those trade-affected workers who apply
to the TAA Program for receipt of TAA
Program benefits and services. As such,
there is no need to change the regulatory
text related to this requirement and it is
adopted in the final rule as proposed.
A State workforce agency
recommended adding language to
§ 618.310(b)(5) about States’ eligible
training provider (ETP) list under WIOA
to facilitate more effective
communication about available training
opportunities. Section 236(a)(5) of the
Act, however, specifically prohibits
limiting approved training under the
TAA Program to the ETP and the
Department is concerned that adding
the commenter’s proposed language
would potentially mislead those
administering the program.
Accordingly, the Department is
adopting paragraph (b)(5) in the final
rule as proposed.
Paragraph (c)
Proposed paragraph (c) implemented
section 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) required
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) required
States to inform trade-affected workers
of the availability of the development of
an IEP to identify employment goals and
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objectives and appropriate training and
services needed by the trade-affected
worker to achieve those goals and
objectives. An IEP is a combination of
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) was carried forward as a
requirement for an IEP under the NPRM.
For workers seeking training or job
search allowances, § 618.350(a) required
States to provide workers with an IEP,
though this is not a requirement for
eligibility for benefits.
Proposed paragraph (c)(3) required
the State to provide information to
trade-affected 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 section 235(4) of the
Act. There was no corresponding
requirement in the previous rule.
Proposed paragraph (c)(4) required
States to provide, if appropriate, certain
services to trade-affected workers,
including short-term prevocational
services such as 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 section
235(5) of the Act. There was no
corresponding provision in the previous
rule.
Proposed paragraph (c)(5) required
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 were referenced
indirectly in 20 CFR 617.20 and 617.21
and are required by section 235(6) of the
Act. The NPRM proposed the use of
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) required
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
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their employment goals and training
needs. Part 617 of title 20 of the CFR
referenced the provision of labor market
information to trade-affected workers in
relation to job search activities,
relocation, and training programs.
Section 235(7) of the Act requires States
to provide this information.
Lastly, proposed paragraph (c)(7)
required States to inform trade-affected
workers about supportive services
available through partner programs, as
required by section 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.
A State workforce agency
recommended eliminating
‘‘duplicative’’ language in § 618.310(c)
by deleting ‘‘under a certification of
eligibility’’ because trade-affected
workers, as defined in § 618.110,
include only those the State determined
to be in ‘‘adversely affected
employment’’ and adding ‘‘ensure’’ to
§ 618.310(c) to clarify that the State
must make employment and case
management services available to tradeaffected workers. The Department
concurs and has revised the regulatory
text in the final rule based on this
comment.
One commenter expressed concern
that RTAA is not on the list of services
about which States must notify workers
at § 618.310(c), despite its low usage
among TAA Program recipients. The
same commenter stated that most
displaced workers return to work at
reduced wages and that wage insurance
is valuable for AAWs seeking
reemployment on their own without
much contact with the State. The
commenter recommended that States
‘‘aggressively market’’ RTAA and
suggested that information about the
benefits of the RTAA program should be
communicated to workers. The
Department explains that States are
required to notify workers about RTAA
under § 618.816 and for that reason the
Department is not adopting the
recommendation to include RTAA on
the list of services mentioned here. The
Department does, however, strongly
encourage that information about the
benefits of RTAA be relayed to
potentially eligible workers, including
information on the flexibility of
receiving training and RTAA
concurrently.
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One commenter asked whether States
can meet the requirements at both
§ 618.310(c)(1) and (2) by combining the
initial assessment with an IEP to
identify barriers to employment. The
Department is not establishing a
sequence of services. Intake, assessment,
and the development of an IEP can all
occur in the same session with a career
counselor. No changes have been made
to the regulatory text in response to this
comment.
Section 618.325 Integrated Service
Strategies and Workforce Innovation
and Opportunity Act Co-Enrollment
Section 618.325 proposed coenrollment between the TAA Program,
WIOA dislocated worker program, 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 previously
concluded that co-enrollment of tradeaffected workers in the dislocated
worker program under WIOA, WIA, and
title III of JTPA before that, was the best
way to integrate services and ensure
successful reemployment of tradeaffected workers. States have, generally,
been co-enrolling trade-affected workers
in accordance with administrative
guidance. This integration of service
strategies arises from the requirement in
section 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.
Proposed paragraph (a)(1) required 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) required
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
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
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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) emphasized
that most trade-affected workers are
dislocated workers as defined at WIOA
section 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) recognized 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) described 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
a trade-affected worker knowingly and
willfully fails to register, he or she
cannot co-enroll in WIOA and,
therefore, the co-enrollment
requirement does not apply.
Multiple commenters favored the coenrollment requirement. A State
workforce agency supported the
mandated co-enrollment proposal and
argued that trade-affected workers also
eligible for WIOA’s dislocated worker
program would receive better ‘‘wraparound’’ and follow-up services that the
TAA Program cannot cover on its own,
ultimately facilitating improved
experiences and outcomes for workers.
Other commenters agreed with the
proposal to mandate co-enrollment of
trade-affected workers also eligible for
the dislocated worker program, with
some stating the proposal also would
improve workers’ outcomes and
experiences. A different State workforce
agency expressed support for the
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51913
proposal, saying it would increase
access to a broad array of services and
promote greater cooperation between
TAA Program administrators and their
partners.
Multiple commenters suggested that if
the Department seeks to mandate
dislocated worker co-enrollment in TAA
Program regulations, it also should
mandate such co-enrollment in the
WIOA regulations to ensure equivalent
expectations across the two programs.
The States, under the GovernorSecretary Agreement, are bound to the
implementation of the final rule. The
Agreement binds the entire executive
branch of the State governments to the
terms and conditions of the Agreement
and the implementation of the TAA
Program. This includes the
implementation of the co-enrollment
requirement. The Governor, through the
State workforce development board, has
the authority to enforce the coenrollment requirement at the State and
local area levels. In addition, WIOA
itself requires a State to enroll an
eligible individual who applies for the
dislocated worker program, though
receipt of services will be contingent on
funding availability. The Department
will provide additional technical
assistance and training on co-enrollment
to the workforce system.
Other commenters opposed
mandating co-enrollment, stating that
co-enrollment ‘‘does not make sense’’
and ‘‘undermines’’ the WIOA dislocated
worker program. These commenters
suggested co-enrollment should only
apply when another program can offer
complementary services (or funding to
support such services) to trade-affected
workers. One commenter said that,
while co-enrollment would benefit
workers in certain situations, it would
not offer any benefits to workers who do
not have a need for any services offered
under WIOA. The same commenter
suggested the rule should provide
additional guidance to States beyond
simply allowing workers to opt out,
including informing workers about
services that would be best delivered
through WIOA co-enrollment and
describing any additional reporting or
other requirements that could impact a
worker’s decision to co-enroll.
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 States reported
between FYs 2009 and 2017, TAA
Program participants who were coenrolled in the dislocated worker
program under WIA/WIOA have
superior post-program employment
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results, by a consistent margin, in
comparison to TAA Program
participants who were not co-enrolled
in a WIA/WIOA dislocated worker
program. Moreover, these data showed
no adverse impact on outcomes under
the dislocated worker program as a
result of co-enrolling TAA Program
participants.
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 the differences in
performance are statistically significant.
Accordingly, the Department declines to
revise this section, and this final rule
adopts this section as proposed.
A State workforce agency said that
while it appreciates the ‘‘philosophy’’ of
co-enrollment in WIOA, it has concerns
about the impact on resources available
to support non-TAA-eligible workers
who already have a less desirable suite
of benefits. The State workforce agency
stated that most of the dislocated
workers it works with could not access
TAA Program benefits, and while it
would be beneficial to offer a full suite
of benefits to trade-affected workers
through WIOA co-enrollment, doing so
might deplete resources available for
non-TAA-eligible dislocated workers.
The State workforce agency suggested
that Congress should consider this
resource limitation when reauthorizing
the Act. The Department appreciates the
commenter’s concerns but reminds
States that TAA Program funds are to be
the primary source of funds used to
serve trade-affected workers. The coenrollment requirement does not change
this, and WIOA funding should be used
to provide services only where TAA
Program funding may not be used for
the service. No changes have been made
to the regulatory text as a result of this
comment.
One commenter suggested the
Department should clarify that States
can use TAA Program funds to cover
costs associated with workforce system
alignment to reduce administrative
burdens, and it requested that the
Department provide more guidance to
States about the information workers
will need before deciding to opt out of
co-enrollment. Two different
commenters asked if the Department
would issue subsequent administrative
guidance about co-enrollment for the
WIOA program. The Department agrees
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with these comments. Technical
assistance is available on the TAA
Program website, and additional
training and technical assistance will be
provided to address co-enrollment and
the use of TAA Program funds to
support co-enrollment.
One commenter requested that the
proposed language be revised to include
co-enrollment in WIOA’s adult and
youth programs also, and stated that
there is a Trade Adjustment Assistance
Data Integrity measure that currently
allows for adult co-enrollment and
asked whether that practice would
continue. A different commenter, as part
of a request for the addition of WIOA’s
adult program to the co-enrollment
mandate, requested guidance allowing
States and local areas to shift funding to
the adult program and argued that
failing to include this option would
reduce supportive and integrated
services for TAA Program participants
in areas with less funding for WIOA’s
dislocated worker program. The
Department is limiting the regulatory
requirement to the WIOA dislocated
worker program because those eligibility
requirements most closely align with
the TAA Program; however, nothing
prohibits a State or local area from also
co-enrolling the worker in the adult or
youth program if he or she is otherwise
eligible. No changes have been made to
the regulatory text.
One commenter expressed concern
about the mandated co-enrollment
provision because WIOA staff do not
currently meet merit staff criteria under
the TAA Program, and TAA Program
funds cannot support the delivery of
TAA Program services by such staff. The
commenter urged that TAA Program
funds be opened to all staff who will
support TAA Program activities if coenrollment is maintained, and it also
suggested WIOA’s dislocated worker
program should remove its merit
staffing requirements. The Department’s
revision to the merit staffing
requirements in § 618.890 will address
the commenters’ concerns by allowing
non-merit staff to be funded under the
TAA Program for the provision of
employment and case management
services. No changes have been made to
the regulatory text.
One commenter expressed concerns
with provisions contained in
§ 618.325(a) and (b). The commenter
suggested that the first sentence of
§ 618.325(a)(1) and the corresponding
language in (b)(1) be revised to restrict
trade-affected workers to those
‘‘participating in the TAA Program’’ in
order to distinguish between TAA
Program participants and workers who
may meet the definition of ‘‘trade-
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affected worker,’’ but choose to not
apply or participate in the program. The
commenter also suggested the first
sentence should not describe the coenrollment requirement as an absolute,
since the second sentence clarifies that
workers can decline co-enrollment in
WIOA. The Department reiterates that a
trade-affected worker has already been
determined individually eligible for the
TAA Program and, thus, already has a
connection to the workforce system. The
definition of the term ‘‘trade-affected
worker’’ means both ‘‘adversely affected
workers’’ and ‘‘adversely affected
incumbent workers.’’ A member of a
worker group only becomes an AAW or
AAIW once the worker individually
applies and is determined eligible for
TAA Program benefits and services. The
Department further maintains that the
second and third sentences of
§ 618.325(a)(1) provide sufficient
clarification on the absolute nature of
the co-enrollment requirement and must
be read together to understand that the
requirement is on the State, not the
worker. No change has been made to the
regulatory text in the final rule in
response to this comment.
A State workforce agency suggested
changing the beginning of the first
sentence of paragraphs (a)(1) and (2) to
‘‘The State must ensure’’ to account for
the fact that the act of co-enrolling
workers may occur by non-State staff at
the local area level. The Department
clarifies that the use of the word ‘‘State’’
is related to the Agreement that
provides the formal relationship
between the States and the Department.
Due to the unique nature of the
workforce systems in each State, while
removing the word for one State might
be beneficial, in another it may
complicate the issue. For the reasons
discussed above and elsewhere in this
subpart, the Department maintains the
regulatory text as proposed.
One State workforce agency expressed
support for the alignment of
employment and case management
services with established TAA Program
goals and practices. Another commenter
agreed with co-enrollment between the
WIOA and TAA programs but
questioned whether the WIOA
regulations would be amended to
include requirements associated with
the TAA Program and how States would
enforce cooperation, arguing that TAA
Program staff do not control WIOA staff.
The Department clarifies that WIOA
section 512(hh)(1)(B) amended section
221(a)(2)(A) of the Act to require rapid
response and appropriate career services
at the time a petition is filed. These
requirements are already in the WIOA
Final Rule at §§ 682.302(d) and
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682.330(i) of this chapter. With regard to
the co-enrollment requirement, the
Department concludes that no
additional regulatory language is needed
in the WIOA rules to compel
compliance with this new requirement,
since AAWs are eligible to be enrolled
in the WIOA dislocated worker program
upon request. The States, under the
Governor-Secretary Agreement, are
bound to the implementation of these
rules. The Governor-Secretary
Agreement binds the entire executive
branch of the State government to the
terms and conditions of the Agreement
and the implementation of the TAA
Program. This includes the
implementation of the co-enrollment
requirement. The Governor, through the
State Workforce Development Board,
has the authority to enforce the coenrollment requirement at the State and
local area levels.
Some commenters recommended that
additional clarity was needed on the
permissible usage of TAA Program
funding for non-merit staff carrying out
activities under subpart C and said that
this lack of clarity provided a reason to
match the staffing flexibility described
in the proposed regulations for the
Wagner-Peyser Act Employment
Service, that have since been finalized.
The commenters cited language from
the preamble of the Wagner-Peyser
NPRM (84 FR 29433, 29434 (June 24,
2019)) describing the Department’s
proposal in that context to allow States
the flexibility to use different types of
personnel and staffing models according
to their needs. This final rule does not
specifically address the Wagner-Peyser
Act Employment Service; rather, these
rules focus specifically on the
application of merit staffing provisions
as they pertain to the TAA Program.
One commenter requested clarity on
the types of documentation required to
demonstrate proof that a rapid response
event occurred. In many States, the
provision of rapid response is recorded
during the intake process, through a
cross-match within the State’s
management information system (MIS),
or through another record-keeping
database. This rule does not provide a
specific documentation requirement.
The Department considered the
comments received and has finalized
the section in this final rule as
proposed.
Section 618.330 Assessment of TradeAffected Workers
Section 618.330 of the proposed rule
required States to design an assessment
process. Section 239(g)(4) of the Act
permits the Department to require initial
assessments for all trade-affected
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workers as part of the TAA Program
intake process. States must provide all
trade-affected workers an initial
assessment after determining that they
are individually eligible for the TAA
Program as part of the intake process.
This meets a necessary component of
the requirement at section 239(g)(4) of
the Act 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.
Paragraph (b)
Proposed paragraph (b) required that
States 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 statutory 26-week deadline for
enrollment in training.
One commenter suggested revising
the language of § 618.330(b) on the
scheduling of an initial assessment to
avoid a conflict with the Department’s
proposed changes for staffing flexibility
at § 618.890 which would allow for the
assessment to be scheduled and
provided by parties other than the State.
The final rule uses the term ‘‘State’’
because it is the State, bound by the
Governor-Secretary Agreement, that is
ultimately responsible for the provision
of services and benefits under the TAA
Program. That does not mean, however,
that the services cannot be provided by
other non-State entities acting on its
behalf. The Department has not made
any changes to the regulatory text in
response to this comment.
The same commenter suggested a
language change to help clarify that this
requirement only applies to tradeaffected workers found eligible for the
TAA program under § 618.820(a). As
provided in § 618.110, a trade-affected
worker is a member of a worker group
found individually eligible for the TAA
Program. Therefore, no change to the
regulatory text is needed to meet the
commenter’s concern.
However, the Department has made a
minor edit to the regulatory text to
change the use of a pronoun.
Paragraph (e)
Proposed paragraph (e) discussed
what to do if a partner program
conducts the assessment(s). The use of
partner programs’ assessments can
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51915
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.
The same commenter who
recommended revising proposed
paragraph (a) similarly recommended
changing part of § 618.330(e) to remove
the reference to the State, again saying
this change would account for the
increased flexibility around staffing. For
the reason discussed above, the
Department declines to make any
changes to the regulatory text in
response to this comment.
One commenter stated that an initial
assessment will already have been
completed as part of the intake process
prior to the establishment of an IEP and
argued that, as long as the worker’s
interests, skills, and capabilities are
sufficiently documented, this should
suffice, thus avoiding the need for
additional forms and paperwork that
would burden case managers unduly. A
different commenter said that the
increased focus on data-driven AAW
assessments would require
administrators to allocate more
resources to technical staff and systems.
Analysis of State expenditure levels
over the past several years shows that
there are sufficient financial resources
available to the States to meet these
requirements. Also, the development
and enhancement of an integrated
service model within the one-stop
delivery system reduces duplication of
effort. As stated earlier, it is possible for
intake, initial assessment, and
establishment of an IEP to be developed
at the same time. These efforts must be
documented in a worker’s case file, but
the Department has not prescribed
standard forms or formats of those
documentation requirements.
The Department considered the
comments received and adopts the
section in this final rule as proposed.
Section 618.335 Initial Assessment of
Trade-Affected Workers
Section 618.335 of the proposed rule
implemented section 239(g)(4) of the
Act. The WIOA implementing
regulations at 20 CFR 678.430(a)(3)
mirror the statutory language in WIOA
section 134(c)(2)(A)(iii) on initial
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assessments. Section 618.335 aligned
the TAA Program with WIOA and
provides the requirements for an initial
assessment of trade-affected 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 § 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.
The Department received support for
this provision from several commenters.
An LWDB stated that ensuring workers
have access to individualized
assessments was an improvement and
commented that the language at
§ 618.335 mirrors language in the WIOA
regulations. A different commenter said
the requirement to provide a
comprehensive IEP for TAA-eligible
workers would help workers navigate
complex decisions and choices related
to reemployment planning.
Multiple commenters argued that
requiring an initial assessment for all
trade-affected workers would increase
overall costs and may not be needed or
valued by workers in all cases. The
explicit requirement for assessment is
not a change from current operations.
The statute requires the provision of
employment and case management
services to all trade-affected workers,
and these requirements include intake
and orientation activities.
The same group of multiple
commenters requested clarity on
whether the initial assessment
requirement would apply only to tradeaffected workers interested in training
or to all trade-affected workers. The
Department clarifies that an initial
assessment is required for all tradeaffected workers, not just those
interested in training. Initial
assessments are also valuable to those
workers who only will receive
employment and case management
services.
A State workforce agency
recommended that RTAA customers be
exempted from a skill level assessment,
since they are already employed fulltime and may have to miss work to
participate in literacy and numeracy
assessments. The Department has
considered the proposal to exempt
RTAA from the initial assessment
requirement; however, since RTAA also
allows workers to participate in TAA
approved training while reemployed
and because assessments are generally
conducted at intake, before RTAA
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eligibility has been established, this
provision is adopted in the final rule as
proposed. In accordance with
§ 618.330(f), a worker may refuse an
assessment.
One commenter recommended the
Department refrain from creating
unintended barriers to occupational
training as it develops standards for
assessments and referrals to
employment services. The same
commenter offered several suggestions
to improve procedures around the
comprehensive and specialized
assessment afforded to workers who
disagree with their initial assessment,
including respecting trade-affected
workers’ right to training, considering
the duration and depth of a worker’s job
search, assessing employment
suitability, establishing timeliness
standards, giving workers the
opportunity to decline diagnostic
testing, and explicitly stating that
aligning the process with WIOA’s initial
assessment process is meant to increase
coordination and decrease duplicative
work rather than limit access to training.
The Department reiterates that this final
rule has aligned the regulatory text with
WIOA regulations wherever possible. In
addition, the Department continues to
encourage service integration between
all partner programs. This final rule
does not establish duplicative
requirements or barriers to training.
One commenter raised concerns about
the potential for the Department’s new
standards for assessments and referral to
employment services to erect barriers to
occupational training. The same
commenter stated that the proposal does
not require that the initial and
comprehensive and specialized
assessments occur ‘‘within a reasonable
amount of time,’’ which, if required,
would help facilitate workers’
participation in training programs. The
commenter expressed concern that the
‘‘two-prong approach’’ enshrines the
idea that workers need to ‘‘qualify’’ for
training rather than it being an
entitlement accessible to them
immediately upon certification. The
purpose of assessments is not to create
barriers to training, but to ensure that
training programs are appropriate for
the worker and otherwise meet the
criteria for approval of training in
§ 618.610. The criteria for the approval
of training in § 618.610 are largely
unchanged from the previous rules. The
proposal described the requirement for
assessments to be conducted and for
determinations on enrollment in
training to be based on those
assessments. This is not a barrier to
enrollment in training, but an assurance
that the selected training is appropriate
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for the worker and likely to lead to
employment.
The same commenter stated that the
proposed assessments could place
excessive administrative burden on
workers seeking training, who, the
commenter said, currently face an
already complex system. The
commenter also asserted that, while
greater alignment with WIOA is
praiseworthy, ‘‘complete adoption’’ of
WIOA’s assessment process would not
be appropriate for the TAA Program and
could lead to the ‘‘rationing’’ of training.
To address these concerns, the
commenter recommended that the
Department merge §§ 618.335 and
618.345 into one section that does the
following:
• Affirms the purpose of the
assessment process as matching a
worker with the best training
opportunity;
• Prevents delays in workers’ access
to benefits for which they are eligible;
• Avoids prolonging unemployment
(i.e., because of ‘‘lag time’’ between
different steps in the process);
• Requires States to provide initial
and comprehensive and specialized
assessments at the same time (e.g.,
within 10 days);
• Ensures that IEPs are completed
reasonably soon after assessments occur;
and
• Makes clear that alignment with
WIOA’s approach is not meant to create
barriers to accessing training.
The Department is not establishing a
sequence of services or specific
timelines. The initial assessment,
comprehensive and specialized
assessment, and IEP, could be
accomplished in the same case
management session. In fact, some of
these elements may have already been
performed by partner programs. As
these services are already being
provided by States, these explicit
requirements provide clarity to the
States, not additional processes.
Appropriately administered, these
services will potentially shorten
durations of unemployment and result
in better outcomes for trade-affected
workers. The Department has
determined the goals outlined in the
comment are already met in the
regulations, so the provision is adopted
in the final rule as proposed, with the
exception of an edit related to the use
of a pronoun in paragraph (b)(2).
Paragraph (c)
Proposed paragraph (c) explained the
State’s options for service strategies
based on the information gathered from
the initial assessment. This involves
first making a determination of whether
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or not there is suitable employment
available to the trade-affected worker
and then identifying the options for
moving forward.
A State workforce agency
recommended changing part of
§ 618.335(c)(1) by editing the language
related to providing employment and
case management services to account for
the proposed increase in staffing
flexibility provided at § 618.890. The
same commenter suggested making
similar changes to § 618.335(c)(2),
which discusses making comprehensive
and specialized assessments available,
to account for such flexibility. The
commenter said the language at
§ 618.335(c)(1) and (2) was confusing
because it seems to indicate that making
certain services available depends on
determinations regarding suitable
employment. The commenter said that,
since § 618.345 requires comprehensive
and specialized assessments for all
trade-affected workers, § 618.335(c)(1) is
inconsistent in stating such assessments
will be made available ‘‘[i]f the worker
disagrees with the determination.’’
Subpart C defines ‘‘make available’’ to
mean that the service must be provided
if appropriate for the worker or if
requested by the worker.
The language in 618.335(c)(1)
proposed that after conducting the
initial assessment, a State may already
have sufficient information to determine
whether suitable employment exists. If
it does, training cannot be approved and
the State should ensure that additional
employment and case management
services are provided to assist the
worker to obtain the suitable
employment. The provision of (c)(2)
would apply where the determination is
made that there is no suitable
employment available to the worker. An
initial assessment is required as part of
intake of AAWs and AAIWs (tradeaffected workers) applying to enroll in
TAA Program benefits and services. If a
partner program has already conducted
an assessment, it should not be
duplicated. If a worker does not seek
enrollment in the TAA Program, then
neither intake nor an initial assessment
is required. With respect to staffing
flexibility, these rules use the term
‘‘State’’ because it is the State, bound by
the Governor-Secretary Agreement, that
is ultimately responsible for the
provision of services and benefits under
the TAA Program. That does not mean,
however, that the services cannot be
provided by other non-State entities.
The Department considered the
comments received and adopts this
section in the final rule as proposed.
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Section 618.345 Comprehensive and
Specialized Assessment of TradeAffected Workers
Section 618.345 of the proposed rule
implemented section 235 of the Act.
WIOA section 134(c)(2)(A)(xii) and its
implementing regulation at 20 CFR
678.430(b)(1) require States to provide
comprehensive and specialized
assessments. 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. Section
618.345 aligned the TAA Program with
WIOA.
Proposed paragraph (a) required
States to make available comprehensive
and specialized assessments to all tradeaffected workers. Proposed paragraph
(b) provided requirements for the
content of the comprehensive and
specialized assessments. Proposed
paragraph (c) reiterated WIOA’s
regulations and was 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. Proposed
paragraph (d) allowed States to use
information from the comprehensive
and specialized assessment to determine
whether training can be approved under
the criteria listed in subpart F.
One commenter recommended
changing § 618.345(a) by qualifying the
term ‘‘all trade-affected workers’’ with
‘‘determined eligible for TAA Program
benefits under § 618.820(a).’’ The same
commenter also maintained that the
language at § 618.345(c) discussing
training opportunities and requirements
for training participation was more
appropriate for § 618.330(b), because an
initial assessment is required to access
the training benefit, but a
comprehensive and specialized
assessment is optional. The commenter
further suggested that, to remain
consistent with the language at
§ 618.330(e), the Department should
require the use of comprehensive and
specialized assessments to determine
whether workers meet the six criteria for
training approval. The Department
reiterates that in accordance with
§§ 618.335 and 618.345, States are
required to ensure that every tradeaffected worker has an initial
assessment and that a comprehensive
and specialized assessment has been
made available to him or her. As
discussed in subpart F, a State may have
sufficient information available to
approve training under subpart F
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without a comprehensive and
specialized assessment or development
of a full IEP. The Department
considered requiring a comprehensive
and specialized assessment, as well as
requiring an IEP, prior to the State
approving training under subpart F;
alignment with WIOA, however, took
precedence as it is a primary goal of
these regulations. The Department is
finalizing this section in the final rule
as proposed, except for a technical
correction in § 618.345(b), replacing the
plural possessive pronoun ‘‘their’’ with
the singular possessive noun
‘‘worker’s.’’.
Section 618.350 Individual
Employment Plans for Trade-Affected
Workers
Section 618.350 requires that States
make IEPs available to trade-affected
workers and details what must be
included in an IEP and States’
responsibilities with regard to
monitoring and updating IEPs.
Requirements related to IEPs were
previously located in 20 CFR part 617.
The NPRM proposed to revise and
combine two separate paragraphs of 20
CFR part 617, regulations covering
training programs at 20 CFR 617.20(b)(8)
and reemployment plans at 20 CFR
617.20(b)(13), and to implement a new
process for making IEPs available for
trade-affected workers.
Proposed paragraph (a) required
States to make available an IEP to all
trade-affected workers and required 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) required that the
IEP use the results of the initial
assessment and, if available,
comprehensive and specialized
assessments to inform and document a
service strategy that provides the tradeaffected worker with needed services for
reemployment. Proposed paragraph (c)
provided 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) explained 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 program-specific needs.
Proposed paragraph (e) required
States to monitor the worker’s progress
toward meeting the IEP’s elements.
Proposed paragraph (f) required States
to modify the IEP as necessary, and with
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the worker’s input. States also must
modify the IEP when there is a change
to the trade-affected worker’s approved
training program or revisions to receipt
of subsistence and transportation
payments. Proposed paragraph (g)
explained 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 States
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.
One commenter stated that the
proposed rule’s discussion of
employment plans does not mention
‘‘measurable skill gains.’’ The
Department clarifies that measurable
skill gains is not one of the statutory
primary indicators of performance for
the TAA Program, and thus is not
covered in the regulatory text.
The same commenter also stated that
there was no mention of the use of
O*NET for the development of
employment plans. Although O*NET is
not specifically included in the
regulatory text of § 618.350, it is
mentioned in § 618.635, the provision
related to work-based training, and the
Department maintains that O*NET is a
valuable source of information and tools
for States and workers to use in
developing IEPs, conducting
assessments, and providing other
employment and case management
services to workers.
One commenter said the new
requirement in § 618.350(a)(1) that
trade-affected workers receive an IEP
would lead to improvements in case
management services for such workers.
The commenter stated that some tradeaffected workers might not need training
to secure suitable employment and said
the TAA Program should not be a ‘‘onesize-fits-all’’ program. The Department
concurs and appreciates the support.
One commenter requested clarity on
the meaning of the Department’s
proposal at § 618.350(f)(1) that States
must modify an IEP as necessary to
facilitate a successful outcome for the
trade-affected worker, because
§ 618.350(c)(2) indicates that an IEP
documents the training program
‘‘proposed.’’ The commenter claimed
that the Department later switches to
refer to ‘‘pursued’’ training. This
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commenter asked whether this change
in language was intended to indicate
that new targeted occupations or
training programs could be identified at
a later date even after a worker has
already begun training for a different
occupation. The Department explains
that the term ‘‘pursued training’’ does
not appear in the regulatory text as
proposed or in the final rule. In
response to the commenter’s question
regarding whether a worker could
change his or her training program to
pursue a change in occupational goals,
under the right circumstances such a
change could be appropriate. Section
618.665 of the final rule addresses the
circumstances under which an
approved training program may be
amended. Any change, of course, must
be documented in the worker’s IEP. The
Department anticipates a high demand
for technical assistance related to
amending training programs and the
relationship to IEPs. Technical
assistance will be provided on these
topics.
One commenter suggested several
revisions to the language found within
§ 618.350 to promote consistency with
other changes proposed related to the
increased flexibility associated with the
use of non-merit staffing. This
commenter recommended changing the
language in § 618.350(a) from ‘‘A State
must’’ to ‘‘A State must ensure’’ an IEP
is made available to workers to account
for the added flexibility of using nonmerit staffing. The commenter also
recommended revising the second
sentence of § 618.350(d) by removing
the words ‘‘by the State’’ to allow for the
added flexibility to use non-merit
staffing. The sentence would state, ‘‘If
the IEP does not contain the
components, the IEP must be
supplemented, in conjunction with the
worker, to ensure it is fully compliant
with the TAA Program requirements in
this part.’’ Similarly, the commenter
recommended changing the language at
§ 618.350(e), (f)(1), and (g) to provide
that States, rather than carry out directly
certain activities described therein,
must ‘‘ensure’’ the activities occur,
again to account for the added flexibility
to use non-merit staffing. With respect
to staffing flexibility, the Department
explains that this final rule uses the
term ‘‘State’’ because it is the State,
bound by the Governor-Secretary
Agreement, that is ultimately
responsible for the provision of services
and benefits under the TAA Program.
That does not mean, however, that other
non-State entities cannot provide the
services. No changes to the regulatory
text were made.
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The same commenter recommended
removing ‘‘and industry’’ from proposed
§ 618.350(c)(1), which required that the
IEP include the trade-affected worker’s
employment goal, including the targeted
occupation and industry, since many
occupations intersect with several
different industries. More broadly, the
commenter suggested the main thrust of
this provision should be ‘‘identifying
the targeted occupation’’ for purposes of
the IEP. After considering this comment,
the Department is retaining the
reference to industry. While the
occupational goal is the determining
factor to be used in assessments and
approval of training, the identification
of an industry is also helpful in assisting
a trade-affected worker in seeking
employment and selecting appropriate
training, if needed.
The same commenter stated that there
was a disconnect between the proposed
language at § 618.350(e) and (c), because
the former requires the State to monitor
workers’ progress in meeting
responsibilities, but the latter does not
require that worker responsibilities be
documented in the IEP. The same
commenter also said that the
requirement at § 618.350(c)(2) to include
‘‘The type of training proposed, if any,’’
in an IEP was too generic and suggested
revising it to state, ‘‘The specific
training program proposed, if any,’’
because identifying the specific training
program would aid the State in
identifying suitable services and
supplemental assistance needs. The
Department agrees and has modified the
regulatory text at § 618.350(c)(2) in the
final rule to require the State to
document the training program
proposed in the IEP and has added a
new paragraph (c)(5) to this section to
require that the IEP document the tradeaffected worker’s responsibilities under
the plan. The addition of paragraph
(c)(5) is an acknowledgment that the
trade-affected worker has an active role
and responsibilities in the IEP process.
The same commenter sought
clarification as to why an IEP was
required for the job search allowance,
but not for the relocation allowance.
This distinction, however, is based on
language in the Act. For a relocation
allowance to be payable, a worker must
have already secured new employment.
When applying for a job search
allowance, the worker is still seeking
employment, which gives rise to the
requirement for an IEP. The final rule
adopts this section as proposed, with
the exception of the minor updates to
IEP documentation requirements in
§ 618.350(c)(2) and (5).
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The Department is finalizing the
section in the final rule as proposed,
except for the changes noted above.
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Section 618.355 Knowledge, Skills,
and Abilities of Staff Performing
Assessments
Section 618.355 is a new provision
that has no comparable counterpart in
previous regulations or in
administrative guidance. It requires that
the staff performing assessments of
trade-affected workers possess certain
knowledge, skills, and abilities in order
to effectively provide employment and
case management services to tradeaffected workers. This provision is
essential to ensuring that requirements
under section 235 of the Act are fully
implemented and that States provide
high-level services. The NPRM
proposed at paragraph (c) of this section
that funds available under section
235A(1) of the Act may be used to
improve and maintain the knowledge
and ability of staff conducting
assessments.
An LWDB asked whether TAA
Program funds could be used to train
employees at partner agencies (citing
WIOA’s dislocated worker program staff
as an example) that perform assessments
for trade-affected workers. The use of
TAA Program funds in this manner is
already an allowable cost under the
TAA Program and will continue to be so
under this final rule. The Department
adopts this new provision into the final
rule as proposed.
Section 618.360 Employment and Case
Management Services for TradeAffected Workers in Training
Section 618.360 of the proposed rule
was a new provision that had no
comparable counterpart in previous
regulations and was added as a result of
TAA Program oversight and monitoring
the Department conducted. This section
required States to continue to make
employment and case management
services available to all trade-affected
workers considering training (and for
AAWs on a waiver from training in
accordance with subpart G), taking TAA
approved training, or who have
completed training.
A nonprofit public policy
organization expressed support for the
Department’s clarification in the
proposed rule that States must make
employment and case management
services available to workers who are in
or have completed training, or are
considering training, because continued
employment and case management
services will help workers overcome
barriers to completing training
programs. The Department has made
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two nonsubstantive edits to this section
of the final rule to remove the use of
parentheses, remove some repetitive
language, and replace the word ‘‘upon’’
with ‘‘after,’’ and otherwise adopts
§ 618.360 as proposed.
D. Subpart D—Job Search and
Relocation Allowances
Subpart D governs job search and
relocation allowances, which are
authorized, respectively, under sections
237 and 238 of the Act. Subpart D
proposed to consolidate provisions
contained in subparts D, E, and F of 20
CFR part 617, which implement these
allowances. Subpart D proposed to
largely preserve the 20 CFR part 617
requirements for job search and
relocation allowances, with a few
substantive changes to reflect a statutory
increase to the limit for job search
allowance reimbursement per AAW and
per certification to $1,250 from $800; an
increase in the maximum lump-sum
payment for relocation to $1,250 from
$800; and the definition of ‘‘suitable
employment’’ as used in the eligibility
requirement for both job search and
relocation allowances, explained below.
Subpart D also proposed procedural
changes from 20 CFR part 617.
Finally, subpart D proposed to
continue to require the use of the FTR
at 41 CFR chapters 300 through 304, in
determining amounts to be paid to or on
behalf of workers by States for travel,
subsistence, and transportation benefits
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. Nevertheless,
there has been confusion in some States
as to what travel requirements apply to
the TAA Program. Subpart D, in
expanding references to the FTR,
proposed clarifications that workers
using job search and relocation
allowances are subject to the same
Federal travel rules as employees of the
Department.
The Department is finalizing this
subpart in the final rule as proposed,
except as noted below. Where the
Department received comments on
specific paragraphs within a section,
details of those paragraphs as proposed
in the NPRM are included to provide
context for the discussion of comments
that follows. No comments were
received on proposed § 618.400, and the
final rule implements this section as
proposed.
Section 618.405 General
A commenter suggested adding
examples of allowable activities that
could be funded under a job search
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allowance. The Department has added a
non-limiting list of examples of
allowable activities to the rule text,
though which activities are allowable
may vary depending on the needs of the
individual. Some examples of activities
that may be funded with a job search
allowance are: travel to and attendance
at job fairs and interviews; travel to and
attendance at prevocational workshops;
making an in-person visit with a
potential employer who may reasonably
be expected to have openings for
suitable employment; completing a job
application in person with a potential
employer who may reasonably be
expected to have openings for suitable
employment; going to a local one-stop,
copy shop, Post Office, or similar entity
to print, copy, mail, email, or fax a job
application, cover letter, and/or a
resume; going to a local one-stop, public
library, community center, or similar
entity to use online job matching
systems, to search for job matches,
request referrals, submit applications/
resumes, attend workshops, and/or
apply for jobs; and, attending a
professional association meeting for
networking purposes.
Section 618.410 Applying for a Job
Search Allowance
Section 618.410 proposed the same
application process that is described in
20 CFR 617.31, but proposed changes to
the 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
changed these procedures to require that
a State accept applications for job search
allowance only after the Department has
issued a certification.
A State workforce agency questioned
whether the phrase ‘‘who has a total or
partial separation’’ is required in
paragraph (b) of this section, since the
definition of AAW contains that
concept.
The Department agrees that this
language is unnecessary and has
modified the regulatory text of the final
rule to remove that phrase and has made
other conforming edits in paragraph (b)
of this section. This is a nonsubstantive
change.
The same State workforce agency also
asked whether it was the case that an
AAW would need to first apply under
§ 618.820(a) (determinations on initial
applications under applicable State law)
before receiving a job search allowance
under this section. The Department
affirms that the worker would have to
submit an initial application to establish
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eligibility because § 618.410(b) requires
that the worker apply for the job search
allowance in advance of conducting the
actual job search activity.
A different State workforce agency
opposed the proposed elimination in
§ 618.410(b) of precertification
applications for job search allowances,
which it understood to impact
relocation allowances as well. The State
workforce agency said that the change
would be unhelpful to workers, because
they might not realize that they must
apply for allowances before initiating
job searches or relocations, and the
certification process can last for months.
The State workforce agency suggested
the Department should amend the
provision to allow workers who moved
between the impact date and the
certification date to remain eligible for
relocations allowances to defray costs
already incurred.
Workers are not eligible for job search
or relocation allowances under the TAA
Program until after a certification is
issued and they are determined to be
AAWs. The Department maintains that
it is necessary for States to be made
aware of the worker’s planned job
search and relocation activities, at the
outset, to ensure expenditures will be
appropriate. The requirement that the
FTR apply to AAWs also prohibits
eligibility to impacted workers who are
not yet covered by a certification.
Workers needing job search assistance
prior to a petition determination should
be referred to WIOA or other partner
programs.
No change has been made to the
regulatory text in response to these
comments. The Department made a
nonsubstantive change in paragraph (b)
of this section, as discussed above, and
otherwise adopts § 618.410 in the final
rule as proposed.
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Section 618.415 Eligibility for a Job
Search Allowance
Section 618.415 proposed 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 an AAW cannot
reasonably be expected to secure
suitable employment in his or her
commuting area. The Department has
made two edits to the use of pronouns
in paragraph (a)(1)(i).
Section 618.415(a)(3)
Proposed paragraph (a)(3) of this
section substituted the term ‘‘suitable
employment’’ for ‘‘suitable work’’ and
eliminated the reference to long-term
duration. As proposed, suitable
employment may exclude some work—
i.e., some lower skilled and lower
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paying 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 added ‘‘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.
Numerous commenters expressed
support for the new provision allowing
employment that pays at least the 75th
percentile of national wages (and meets
other requirements) as an alternative to
suitable employment as long as its effect
is to increase the number of tradeaffected workers eligible for job search
allowances. One commenter stated that
the change would enable more workers
to access the benefit, because it lowers
the threshold for eligibility, and asked
whether the Department planned to
clarify further how to use the National
Occupational Employment Wage
Estimates, saying that its State
‘‘typically has lower wages.’’
One commenter said the provision is
confusing and stated that it would need
training itself before training one-stop
center staff in its State on its
implementation and also expressed
concern about the complexity of the
website containing the National
Occupational Employment Wage
Estimates referenced in the provision,
saying it would require training to use
it correctly. Another commenter
requested clarification about whether
the percentile standard is based on all
occupations or only the occupation in
which the worker is searching for jobs.
The Department explains that, when
applying the 75th percentile, the State
would use the percentile for the
occupation of the job in question. If
there are multiple jobs available that
might be suitable, the percentile for that
specific occupation would apply. The
Department will provide training on this
provision.
A State workforce agency sought
clarification on the purpose of the
phrase ‘‘in the area of the job search,’’
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saying that the definition of ‘‘suitable
employment’’ does not mention such a
restriction. The State workforce agency
recommended deleting the phrase from
this section.
States are required to review the
availability of suitable employment
within the area of the job search. As
expressed in the NPRM preamble, the
Department largely expects this benefit
to be used for workers to travel to inperson interviews or job fairs outside of
their commuting area. A State must
determine that no suitable employment
is available to the worker in the
commuting area before approving a job
search allowance. The Department has
made no change to the regulatory text in
response to this comment.
Multiple commenters sought
clarification on the 75th percentile of
national wages via the National
Occupational Employment Wage
Estimates.
To find the 75th percentile of national
wages, as determined by the National
Occupational Employment Wage
Estimates, visit the U.S. Bureau of Labor
Statistics (BLS) web page, select the
appropriate State and occupation for the
worker, view percentile wage estimates,
and locate the 75th percentile. Similar
comments were received for the same
provision in the relocation allowance
section. The Department will provide
training on this topic.
A State workforce agency sought an
edit to § 618.415(a)(3) that would clarify
the requirements regarding the
applicability of the definition of suitable
employment. The Department has
modified the regulatory text by
restructuring (a)(3) from a single
paragraph into a list for clarity.
Section 618.415(a)(4)
Proposed paragraph (a)(4) of this
section established 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.
One commenter requested
clarification about the ‘‘alternatives to
being physically present’’ part of this
provision.
Examples of such alternatives would
be telephone or video interviews, but
this is not an exhaustive list and the
Department encourages States to
innovate in serving workers.
The same commenter said its State
permits many job search activities to
serve as the basis for a job search
allowance, including attendance at
prevocational workshops or job fairs,
‘‘job matching’’ through the State’s
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system, and ‘‘traditional’’ job
interviews. The commenter added that
the State based these permissible
activities on a Department-sponsored
webinar. The commenter asked whether
the proposed language meant that the
State could approve allowances for
interviews only.
The Department confirms that all of
the examples above could be allowable
activities under the job search
allowance benefit. In response to this
comment, the Department has included
a nonexhaustive list of allowable
activities in the regulatory text at
§ 618.405(a).
Section 618.420 Findings Required for
a Job Search Allowance
Section 618.420 proposed 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, would establish the
responsibilities of the liable State and
the agent State. Specifically, § 618.824
proposed that the liable State would
make all determinations on each claim
for program benefits, and the agent State
would pay the costs for job search and
relocation allowances.
Proposed paragraph (b) of this section
added 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.
One commenter expressed concern
that involving the agent State in job
search allowances would complicate the
process and ‘‘frustrate a potentially
already frustrated affected worker.’’ The
commenter recommended keeping the
liable State as the party responsible for
paying these allowances, asserting it
would be more efficient than the
Department’s proposal. To be clear, if a
worker is traveling outside of the liable
State for a job search allowance, but is
not accessing or receiving any services
in the State he or she is traveling to,
then the State to which the worker
travels is not an agent State. In that
scenario, the liable State is also the
agent State.
As liable and agent State
responsibilities apply to various types of
decisions, the Department has aligned
the responsibilities in this final rule
based on years of feedback and requests
for technical assistance as well as
reviewing requests for reserve funds.
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The Department is aligning the agent
State’s provision of services with
funding for those services and is
assuring the retention of the policies of
the liable State to give strength to a
seamless transition for the worker.
Further explanation is provided in
§ 618.824. The Department has made no
changes to § 618.420 regulatory text in
the final rule as a result of these
comments, but edited the section
heading for § 618.420 to specifically
refer to a job search allowance.
Section 618.425 Amount of a Job
Search Allowance
Section 618.425 proposed how to
calculate the amount of a job search
allowance.
One commenter requested
clarification about the meaning of the
phrase ‘‘by the usual route’’ with respect
to the calculation of allowable travel
expenses under proposed
§ 618.425(a)(1).
The Department has determined that
the phrase ‘‘by the usual route’’ means
a route by which most commuters
would typically travel. The route is
usual if it is a reasonable one and not
unduly out of the way. The Department
has made no changes to the regulatory
text in the final rule in response to this
comment.
The same commenter also
recommended adding the words
‘‘payment or’’ to § 618.425(b), regarding
the total limit for a job search
allowance, so that it reads, in part, ‘‘the
State must reduce the job search
allowance by the amount of the
payment or reimbursement.’’ This
suggested language considers that some
job search allowance costs may be paid
directly to a provider or vendor. In those
instances, those costs are not a
reimbursement. Upon consideration, the
Department has added the
recommended language to the
regulatory text in the final rule at
§ 618.425(b). The Department has also
made two edits to the use of a pronoun
and related subject-verb agreement.
Section 618.430 Determination and
Payment of a Job Search Allowance
Section 618.430 proposed to require
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 (d) of this section
specified the evidence an AAW must
provide to receive a job search
allowance. The Department proposed
aligning the requirements for
documentation with the FTR and the
Uniform Administrative Requirements,
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Cost Principles, and Audit
Requirements for Federal Awards
(Uniform Guidance) at 2 CFR part 200.
At the time of the proposed rule’s
publication, receipts were required for
all lodging and purchased
transportation expenses. A receipt was
also required for any expense of $75.00
or greater.
A State workforce agency requested
more specificity in paragraph (d) of this
section about which sections of the FTR
and the Uniform Guidance provide the
applicable requirements for
documentation of expenses. The State
workforce agency also recommended
revising the last sentence of this
provision to clarify that an
‘‘adjustment’’ in cases where the State
has advanced the worker more than the
allowable amount means the worker
must reimburse the State for the
difference. The State workforce agency
suggested modeling this recommended
revision on the language used in
§ 618.460(c)(2) (e.g., ‘‘the worker must
repay any excess received’’).
The FTR is maintained by the General
Services Administration (GSA) and can
be accessed at https://www.gsa.gov/
policy-regulations/regulations/federaltravel-regulation/federal-travelregulation-and-related-files. The
Uniform Guidance is maintained by the
Office of Management and Budget
(OMB) and is available at https://
www.ecfr.gov/cgi-bin/text-idx?tpl=/
ecfrbrowse/Title02/2chapterII.tpl. After
reviewing the suggestion to clarify
language in § 618.430(d), the
Department concurs with the suggestion
to use the same language from
§ 618.460(c)(2). The Department has
made nonsubstantive edits to this
section in the final rule, including
correction of a cross-reference to the
section heading of a different section,
edits to the use of a pronoun, and a
clarification of the term ‘‘adjustment.’’
Section 618.435
Participation
Job Search Program
In the NPRM, the Department
proposed § 618.435 as a replacement for
20 CFR 617.49 and to implement section
237(c) of the Act which provides that a
State may reimburse any AAW for
necessary expenses incurred by the
worker in participating in an approved
job search program (JSP).
Proposed paragraph (c) of this section
required 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.
One commenter said it was not clear
why transportation and subsistence
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payments would be provided for travel
within the worker’s commuting area.
A JSP is different than the job search
allowance and is governed by a separate
statutory provision. Section 237(c) of
the Act provides an exception to the
restrictions provided in section 237
governing job search allowances. Thus,
the statutory prohibition on paying for
transportation and subsistence within
the commuting area does not apply to a
JSP. The Department has made no
change to the regulatory text in the final
rule in response to these comments.
Section 618.440 Applying for a
Relocation Allowance
Section 618.440 of the proposed rule
described the application process for a
relocation allowance but differed from
20 CFR 617.41 on when to file an
application.
Proposed paragraph (b) allowed an
AAW to apply for a relocation
allowance only after the Department
issues a certification covering that
worker. This is consistent with section
238(a)(1) of the Act, which permits ‘‘an
[AAW] covered by a certification . . . to
file an application for a relocation
allowance.’’ This mirrored 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 proposed
this change because permitting
precertification applications can raise
workers’ expectations of payments that
may not become available.
Proposed paragraph (b) of this section
also contained the requirement that the
State may approve the relocation only
after an AAW files an application and
before such worker undertakes the
relocation.
A State workforce agency questioned
whether the phrase ‘‘who has a total or
partial separation’’ is required in
paragraph (b) of this section since the
definition of AAW contains that
concept. The State workforce agency
also asked whether it was the case that
an AAW would need to first apply
under § 618.820(a) (determinations on
initial applications under applicable
State law) before receiving a relocation
allowance under this section.
The Department explains that this
question is the same as the one raised
under the job search allowances section
(§ 618.410) and reiterates that a worker
must first be determined to be an AAW
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prior to submitting an application for a
relocation allowance. Furthermore, an
application for relocation allowance
must be approved by the State prior to
the beginning of the relocation. The
Department has modified the regulatory
text in the final rule to remove the
language regarding separations since an
AAW has already experienced a
separation.
Section 618.445 Eligibility for a
Relocation Allowance
Proposed § 618.445 on eligibility for a
relocation allowance combined the
requirements in 20 CFR 617.42
(Eligibility) and 617.43 (Time of
relocation), edited them for clarity, and
made several significant changes.
Section 618.445(a)(5)
Proposed § 618.445(a) removed 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
required that States make available
employment and case management
services to all trade-affected workers.
Further, proposed paragraph (a)(5) of
this section departed from 20 CFR
617.42(a)(6) in three respects. Proposed
paragraph (a)(5) of this section
substituted a Federal law definition of
‘‘suitable employment’’ for ‘‘suitable
work’’ under State law and eliminated
the reference to ‘‘affording a reasonable
expectation of employment of long-term
duration,’’ because the concept of longterm employment is substantially
included in the definition of ‘‘suitable
employment.’’ Proposed paragraph
(a)(5) of this section also added
‘‘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.
Numerous commenters expressed
support for the new provision allowing
employment that pays at least the 75th
percentile of national wages (and meets
other requirements) as an alternative to
suitable employment as long as its effect
is to increase the number of tradeaffected workers eligible for relocation
allowances. One commenter said the
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provision is confusing and stated that it
would need training themselves before
training one-stop center staff in its State
on its implementation. The commenter
also expressed concern about the
complexity of the website containing
the National Occupational Employment
Wage Estimates referenced in the
provision, saying it would require
training to use it correctly.
Similar comments to the above were
received for § 618.415 under the job
search allowance provisions. Section
618.415 proposed the same use of the
75th percentile of national wages as an
additional option for determining
suitable employment for eligibility of a
job search allowance. The comments
received on that proposed rule were
nearly identical to those in this section.
The Department did not revise
§ 618.445(a)(5) and the final rule adopts
paragraph (a)(5) of this section as
proposed.
Section 618.445(a)(6)
Proposed paragraph (a)(6) of this
section integrated 20 CFR 617.42(a)(7)
and 617.43 and simply stated 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 omitted
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.
Two State workforce agencies
requested additional guidance on the
language in § 618.445(a)(6)(ii), regarding
workers who have completed an
approved training program, that
conditions the time limit on the workers
having received supplemental
assistance under § 618.640(c) and (d),
because the training occurred outside
their commuting area. One of the State
workforce agencies asked whether this
provision would allow only workers
who completed training with
supplemental assistance extra time in
which to begin relocation, thus
excluding workers who did not receive
supplemental assistance. The same State
workforce agency said that such an
approach would be ‘‘manifestly unfair’’
to workers with employment prospects
outside their commuting area. A
different commenter asked the
Department to keep the time limit for a
worker to begin relocation and receive
an allowance the same to preserve
AAWs’ access to services.
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While the Department appreciates the
commenters’ input, the 182-day period
after the conclusion of an approved
training if the worker received
supplemental assistance and
transportation assistance is a statutory
requirement found in sections
237(a)(2)(C)(ii) and 238(a)(2)(E)(ii) of the
Act. The Department does not have the
authority to establish a different
deadline. Accordingly, the Department
declines to revise this section and this
final rule adopts this section as
proposed, with an edit to the use of a
pronoun in paragraph (b).
Section 618.450 Findings Required for
a Relocation Allowance
The Department proposed § 618.450
in the NPRM as the counterpart to 20
CFR 617.44 and delineated in this
section the responsibilities between a
liable State and an agent State with
respect to relocation allowances when a
relocation occurs to a different State
from the liable State. Proposed subpart
H established the responsibilities of the
liable State and the agent State.
Specifically, proposed § 618.824
established 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.
One State workforce agency expressed
concern that involving the agent State in
relocation allowances would complicate
the process unnecessarily and could
confuse workers by introducing a party
they might otherwise have no need of
knowing. Two different commenters
requested clarification about the
provisions regarding assistance for
which an agent State is responsible. One
of those commenters expressed
confusion about what the proposed
language means and asked to which of
the following situations it applies: (1) A
worker moves to the agent State and
then requests a relocation allowance for
another move within the agent State; or
(2) a worker requests a relocation
allowance to move from the liable State
to the agent State. Similarly, a different
State workforce agency asked the
Department to confirm its reading of the
provision as meaning that, when an
AAW relocates from a liable State, the
State to which the AAW moves is the
agent State, and the agent State is
responsible for the relocation allowance.
The same State workforce agency said it
would make more sense, in that case, for
the liable State to remain responsible for
relocation allowance applications and
payments. Conversely, the State
workforce agency suggested that in
cases where the AAW already lives
outside the liable State and wants to
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relocate, whether to a different State or
within that same State, then the State of
residence should be considered the
agent State, thus assuming
responsibility for the relocation
allowance. Several other commenters
were concerned with some of the
language regarding agent and liable
States.
If a worker is relocating to a State
other than the liable State, but not
receiving any services in the State he or
she is relocating to, then the State to
which the worker travels is not an agent
State. In that scenario, the liable State is
both the liable and agent State and
would be responsible for making the
payments.
As liable and agent State
responsibilities apply to various types of
decisions, the Department has aligned
the responsibilities in this final rule
based on years of feedback and requests
for technical assistance as well as
reviewing requests for reserve funds.
The Department is aligning the agent
State’s provision of services with
funding for those services and is
assuring the retention of the policies of
the liable State to give strength to a
seamless transition for the worker.
Further explanation is provided in
§ 618.824 and the regulatory text is
unchanged. The Department has
determined that the previous rules in 20
CFR part 617 on this topic were
incomplete and, by making agent and
liable State activities more consistent in
this final rule, there will be less
confusion in the States and reduced
requests for technical assistance around
these areas.
Similar comments were received
under the job search allowance
provisions regarding which State is
responsible for making payments. The
Department modified the section
heading for this section to reference a
relocation allowance and corrected the
citation in paragraph (a)(2) to reference
§ 618.445(a)(1); otherwise, the final rule
adopts this section as proposed.
Section 618.455 Determining the
Amount of a Relocation Allowance
Section 618.455 in the proposed rule
consolidated, reorganized, and updated
the previous requirements for
determining the amount of a relocation
allowance in 20 CFR 617.45 (Amount),
617.46 (Travel allowance), and 617.47
(Moving allowance).
Proposed paragraph (a)(3)(ii)
increased the allowable amount of
insurance coverage of household goods
and effects to $40,000 from $10,000,
found in 20 CFR 617.47(a)(1). Proposed
paragraph (a)(3)(iii) provided that, if
more economical, the State may directly
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51923
arrange for a carrier and insurer selected
by the AAW to move and insure a
worker’s household goods and personal
effects. Proposed paragraph (a)(3)(iii)
also provided that the State may make
payment of 90 percent of moving and
insurance costs directly to the carrier
and insurer. Under proposed paragraph
(a)(4), a relocation allowance is paid as
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).
A State workforce agency asked
whether relocation allowances pay for
moving equipment, such as boxes and
tape, dollies, and car trailers. This is a
very fact-intensive inquiry and difficult
to answer without additional specific
information. The Department refers the
State to the FTR and advises it to direct
any additional questions to its
appropriate regional office who can
assist with answering what is a very
fact-dependent question.
One commenter supported the
proposed increase in the amount of
insurance coverage for a worker’s
household goods from $10,000 to
$40,000, arguing that the costs of such
goods have gone up considerably since
the amount was last revised. A State
workforce agency requested clarification
about whether a State must follow
procurement rules in carrying out
proposed § 618.455(a)(3)(iii), under
which the State may make direct
arrangements to relocate a worker’s
belongings.
The Department affirms that States are
subject to the Uniform Guidance, which
requires States to use their non-Federal
procurement standards.
Two commenters supported the full
amount of a relocation allowance being
paid as a lump sum. One of the
commenters stated that the amounts
available to workers for relocation are
still ‘‘minimal,’’ but said paying the
total allowance in one installment
would be more effective than
distributing it over time. Similarly citing
research showing the importance of
income and reemployment supports to
displaced workers, the other commenter
stated that the financial effects of job
loss can be substantial and stated that
enhancing access to such supports can
help these workers search for jobs more
effectively.
The Department concludes that this
practice will limit the financial strain
experienced by workers as they
transition to new employment. The
Department has made six minor edits in
paragraph (a) related to the use of
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Section 618.460 Determinations and
Payment of a Relocation Allowance
Proposed § 618.460 regarding
determinations and payment of a
relocation allowance served the same
purpose as 20 CFR 617.48 (Time and
method of payment), with some changes
and reorganization. Nothing in
§ 618.460 as proposed departed 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 is
required for the same reasons it is
required for workers seeking
reimbursement of expenses through the
job search allowance. Section 618.460 as
proposed also reorganized the
provisions of 20 CFR 617.48 and revised
them for greater clarity.
Proposed Paragraph (c)
Proposed paragraph (c) specified what
the AAW must provide for expenses to
be reimbursed by a State under a
relocation allowance. This specification
served to 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 the proposed rule’s publication,
this included receipts for all lodging,
purchased transportation, and any
expense equal to or greater than $75.00.
Several commenters expressed
concerns about advance payments for
relocation allowances. Some of these
commenters argued that collecting
overpayments would be challenging.
Those commenters said receipts and
evidence of completion should be
required for payment and they argued
that sometimes the only approach that
will guarantee a worker follows the
rules and remains in contact with staff
is the ‘‘promise’’ of future payment,
especially if the worker has moved
across State lines. Two commenters said
compliance with the proposal would
require changes to laws, policies and
procedures, or systems in States that
currently do not allow advance
payments. A different commenter said
that sometimes moves occur so rapidly
that the fiscal department does not have
enough time to process the payment in
advance. A State workforce agency said
that mandating advance payments by
States could weaken accountability and
encourage fraud. The State workforce
agency also stated that tracking receipts
after payment has already been received
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could be burdensome for workers and
suggested reimbursement based on
known costs as a more streamlined
approach. Two commenters said that, if
paid in advance of a relocation, workers
and their families would be less likely
to ‘‘cooperate’’ when it came time to
submit documentation of the actual
costs incurred. One of the commenters
suggested instead paying 50 to 60
percent up front with the remainder
payable upon completion of the move.
A commenter recommended making
advance payment optional by replacing
the word ‘‘must’’ with ‘‘may.’’
With respect to the commenters’
concerns about the practice of
advancing funds to AAWs related to
relocation expenses, the Department
advises that this is not a new
requirement. The goal of this subpart D
is to convey the importance of reducing
the financial stress placed on workers as
they transition to new employment by
reducing their out-of-pocket expenses at
a time when they may still be
unemployed and by minimizing delays
caused by reimbursement procedures.
The requirement to advance funds is not
optional and States may not apply a
percentage limit that is not authorized
in this final rule. These payments are
subject to the overpayment provisions
contained in subpart H at § 618.832 and
workers should be advised of that at the
time the advances are paid.
Another commenter raised similar
concerns regarding advance payment of
the lump sum benefit. The lump sum
benefit, however, does not require
repayment as it may assist AAWs with
out-of-pocket and incidental moving
expenses not directly reimbursed
through the relocation benefit.
The Department is finalizing this
provision in the final rule as proposed,
with the exception of an edit to the use
of a pronoun.
Other Comments on Determinations and
Payment of a Relocation Allowance
A State workforce agency requested
clarification about how to calculate and
administer relocation allowances. A
different State workforce agency asked
for more specificity in paragraph (c)(2)
as to which sections of the FTR and the
Uniform Guidance contain the
applicable requirements for
documentation of expenses. The
Department refers the States to 41 CFR
part 302, which provides the applicable
regulations for relocation costs.
Paragraphs (d) and (f)
Proposed paragraphs (d) and (f)
incorporated the provisions from 20
CFR 617.48(b) and (d).
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One commenter expressed confusion
about the intent of paragraph (d)(1) of
this section, regarding the use of
commercial carriers to move a worker’s
belongings, and stated its interpretation
of the provision as follows: If the AAW
is the one paying the carrier and insurer,
then the State must advance payment to
the AAW, but if the State is paying, then
it must pay the carrier and insurer
directly before the scheduled shipment.
The Department also made a similar
change in § 618.460(c) to make the same
clarification for payment of travel
allowances. The same commenter said
that if this interpretation is correct, then
the Department should rewrite the
provision to make that meaning clearer.
After considering this comment, the
Department concludes that the
regulatory text in § 618.460(d)(1) could
be clearer and has moved the provision
proposed as § 618.460(d)(1)(iii) to
§ 618.460(d)(1) and rephrased it to
clarify that, if the State is paying for the
commercial carrier, that payment must
be made in advance. The Department
also made two edits to the use of
pronouns in paragraph (d).
The same commenter also said it was
‘‘unsure about the logic’’ of the final
sentence in paragraph (d)(1) of this
section. Specifically, the commenter
asked whether it means that payment
must be made either exactly 10 days
before shipment or at the time of
shipment, but cannot be made at any
point in between. Finally, the
commenter questioned whether the
purpose of the provision was to bar
payment more than 10 days before
shipment or to require payment within
10 days before shipment, and it said the
latter framing would correspond to
language in paragraph (d)(2) of this
section. The Department agrees that this
section could be clearer. A 10-day
advanced payment window was
established in order to limit the
financial impact on workers during a
time of transition to new employment.
The Department has moved the
provision proposed in § 618.460(d)
(1)(iii) to § 618.460(d)(1) and rephrased
it to clarify that the payment must be
made no earlier than 10 days in advance
and no later than at the time of the
scheduled shipment.
The same commenter also requested
clarification about paragraph (f),
concerning when relocation is
considered complete, asking whether it
is the case that delivery of belongings to
temporary storage completes relocation,
but only if the storage is within the area
of relocation (as opposed to the area
from which the worker moved). The
commenter suggested that the first
sentence could be clarified by reversing
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the order of the ‘‘area of relocation’’ and
‘‘temporary storage’’ clauses so that it
reads as follows: ‘‘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 or to a temporary
storage within the area of relocation.’’
While in most cases the commenter is
correct that the relocation is completed
when the last of the household goods
are delivered to the new residence, to
maintain the flexibility to fit all
applicable workers, the Department did
not further define the completion of a
relocation because this will vary from
worker to worker. The Department made
a minor edit to the use of a pronoun in
paragraph (e).
E. Subpart E—Reemployment Trade
Adjustment Assistance
Subpart E governs RTAA. TGAAA
established the RTAA program to
replace the demonstration project
known as ATAA, established by
TAARA 2002. This subpart prescribes
regulations implementing provisions in
section 246 of the Act and incorporates
administrative guidance. Before subpart
E, there were no 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 also may be eligible to
receive employment and case
management 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
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requirements. This subpart E permits
eligible AAWs to remain eligible for
RTAA when employed part-time,
provided that the AAW is enrolled in
TAA approved training. Some AAWs
may receive a TRA, the income support
component of the TAA Program, before
receiving their first RTAA benefit
payment. For such workers, section
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.
Where the Department received
comments on specific paragraphs within
a section, details of those paragraphs as
proposed in the NPRM are included to
provide context for the discussion of
comments that follows. No comments
were received on proposed §§ 618.500
and 618.530, and the final rule
implements these sections as proposed.
Section 618.500 Scope
Proposed § 618.500 set forth the scope
of this subpart. It included an
explanation of what RTAA is, and
explained that this subpart identifies the
eligibility criteria and the benefits
available to AAWs who are eligible for
RTAA.
The Department received no
substantive comments on this section.
Accordingly, it is adopted into the final
rule as proposed.
Section 618.505 Individual Eligibility
Section 618.505 as proposed
enumerated the eligibility criteria for
RTAA, as set forth in section 246 of the
Act.
Paragraph (a)
Proposed paragraph (a) outlined the
general age, wage, and reemployment
requirements to be eligible for RTAA.
Proposed paragraph (a)(4)(i) codified
that the determination of whether an
AAW is employed full-time is based on
the definition of full-time employment
in the State in which he or she is
employed.
One commenter wrote that the wage
cutoff of not more than $50,000 in
§ 618.505(a) should be reconsidered,
recommending that it either be set to the
75th percentile of national wages
according to National Occupational
Employment Wage Estimates or based
on workers’ ‘‘customary job
classification.’’ The same commenter
maintained that RTAA should protect
workers who accept lower paying jobs
rather than partial separation. Another
commenter wrote that the salary cap
and compensation available to RTAA
recipients should be raised in light of
wage increases since 2002. The
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Department reiterates that the limit on
earnings for RTAA recipients is set by
statute at section 246(a)(3)(B)(ii) of the
Act, as is the total amount of the benefit,
which is set by section 246(a)(5)(A)(i) of
the Act. The Department does not have
the authority to increase either of these
limits. However, the Department has
revised the regulatory text in
§ 618.505(a)(2) to remove the word
‘‘calendar’’ and to add language
regarding the projection of earnings. The
language regarding projected earnings
has also been added to § 618.505(a)(3).
One commenter wrote that proposed
§ 618.505(a)(4)(i) appeared to conflict
with TAARA 2015, which it said
allowed full-time RTAA participants to
participate in the TAA Program as well.
There is a statement contained in
§ 618.505(a)(4) that it is either full-time
employment or a combination of
employment and training that provides
eligibility.
The same commenter added that the
provision also appears to be
contradicted by proposed § 618.520(b),
which provided that RTAA recipients
are eligible for TAA Program
employment and case management
services and training. The Department
reiterates that RTAA participants are
eligible for employment and case
management services and training. The
regulatory text at § 618.505(a)(4)(i) does
not exclude workers who are employed
full-time and also enrolled in training;
it is intended only to make clear that
workers employed full-time that
otherwise meet the RTAA requirements
need not be in training to receive the
benefit.
A nonprofit public policy
organization supported providing wage
insurance to part-time workers receiving
TAA approved training, writing that
doing so will help workers balance work
and education. The Department
appreciates the commenter’s support.
Paragraph (b)
Proposed paragraph (b) explained
terms specifically for the purposes of
RTAA. As explained in more detail in
the preamble to subpart A in the NPRM,
the proposed definition of ‘‘firm’’
revised the term at 29 CFR 90.2. Of note,
the proposed definition of ‘‘firm’’
incorporated the definition set forth at
section 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.’’
Proposed paragraph (b)(1) provided
instructions to States on how to make
decisions relative to determining RTAA
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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) explained
that the term ‘‘firm’’ includes
predecessors and successors-in-interest,
affiliated firms, and continuity of
operations at the same location. The
proposed regulatory text established
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 was to assist States in
determining whether the AAW has
become employed by a ‘‘firm’’ that is
different from the ‘‘firm’’ from which
the worker was separated in accordance
with section 246(a)(3)(B)(iv) of the Act.
A commenter wrote that proposed
§ 618.505(b)(2)(iii) has two seemingly
contradictory statements on the RTAA
eligibility of workers reemployed with a
successor-in-interest to their former
firm. The same commenter also
questioned why these statements are
located in § 618.505 and suggested
relocating them to ‘‘another section’’
without specifying which one. The
Department found no contradiction in
the regulatory text. The intent of the
regulation is to prohibit a situation
where a firm is sold to a successor-ininterest and the AAWs’ wages are then
cut, resulting in the payment of RTAA
to continue to provide workers with
similar wages and shifting the burden
from the employer to the government.
One commenter asked for further
guidance on the term ‘‘continuity,’’ as
used in proposed § 618.505(b)(3). The
commenter also asked if the term
‘‘majority’’ should be interpreted to
mean that at least four of seven criteria
apply. The Department is choosing not
to define either of these terms in
regulatory text to allow flexibility for
States to interpret the test. With regard
to continuity, there may be a short gap
in operations from the firm to the
successor.
The Department has added, for
purposes of RTAA, a definition of the
term ‘‘year.’’ For purposes of RTAA, a
year represents the 12-month period
beginning with the first full week of
qualifying reemployment. This
definition was added to resolve the
issues with earnings projections for
eligibility and continued eligibility in
§ 618.515(a)(3).
Paragraph (c)
Proposed paragraph (c) explained
that, for purposes of RTAA, full-time
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employment is defined by the law
applicable to the State in which the
reemployment occurs. The Department
proposed to define State law in
§ 618.110 as the State UI law. Proposed
paragraph (c)(1) explained that if State
law does not contain a definition of fulltime employment, the State is required
to define full-time employment for
RTAA purposes. Proposed paragraph
(c)(2) required 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) established
that if an AAW has multiple jobs, the
State must combine hours of all
employment to determine whether the
worker meets the definition of full-time
employment. Proposed paragraph (c)(4)
provided 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.
A State workforce agency
recommended altering § 618.505(c)(4)(i)
(the Department believes the commenter
is referring to § 618.505(a)(4)(i)) to make
the applicable definition for ‘‘full-time
employment’’ correspond with that of
the liable State, rather than the State in
which the AAW is employed. The
Department explains that the liable
State must still make the determination
based on the definition of full-time
employment of the State in which the
AAW is reemployed. The Department is
making no change to this practice.
A State workforce agency
recommended that workers at successorin-interest firms be eligible for RTAA
when they work for reduced wages,
arguing that they should be able to
accept suitable employment without
risking their UI benefits. The State
workforce agency said that this practice
could help older workers especially find
reemployment while receiving modest
RTAA subsidies. The Department
declines to adopt this suggestion and is
making no change to regulatory text as
proposed because section
246(a)(3)(A)(iv) of the Act expressly
prohibits payment of RTAA to an AAW
who is employed at the firm from which
he or she was separated, and a
successor-in-interest, as defined in this
final rule, is considered to be the same
firm.
One commenter wrote that, regarding
the requirement in proposed paragraph
(c)(1) that States define full-time
employment, the commenter was
currently using a definition from
adjudicatory decisions rather than from
a State statute, as no such statute had
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yet been passed. The Department
advises that if there is no definition of
full-time employment in applicable
State law, use of adjudicatory decisions
or similar determinations would be
appropriate. The State also is permitted,
under § 618.808 to establish a definition
for TAA Program purposes.
Paragraph (d)
Proposed paragraph (d) provided 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. No
comments were received on this
paragraph.
Paragraph (e)
Lastly, proposed paragraph (e)
explained the types of employment that
are considered qualifying reemployment
for RTAA. Proposed paragraph (e)(1)
established that qualifying
reemployment under RTAA is the same
as covered employment for UI purposes.
Proposed paragraph (e)(2) explicitly
allowed a State to consider employment
that provides wages plus commission,
and piecework-based 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)
provided that qualifying reemployment
may include multiple jobs. In some
instances, an AAW may have multiple
part-time jobs instead of a single fulltime job. This flexibility will allow
AAWs to combine multiple part-time
jobs to be considered full-time
employment. Proposed paragraph (e)(4)
provided 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 full- or 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.
A State workforce agency requested
that the Department reconcile an
apparent conflict between proposed
paragraphs (c)(4) and (e)(3). The State
workforce agency provided an example
scenario of a worker employed in two
States, one of which does not allow for
the consideration of multiple jobs in
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determining full-time employment. The
Department refers the State to the
appropriate regional office for these type
of hypothetical scenarios. In general,
when there is disagreement between
agent and liable States, it is vital that the
regional office be involved in resolving
any potential conflicts as there are likely
multiple factors to consider.
No changes were made to the
regulatory text and the proposed
language was adopted in the final rule.
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Section 618.510 Eligibility Period for
Payments of Reemployment Trade
Adjustment Assistance and Application
Deadline
Section 618.510 of the NPRM set forth
the eligibility period for payments of
RTAA as provided by section 246(a)(4)
of the Act.
Proposed paragraph (a) provided 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).
One commenter recommended
eliminating the words ‘‘the earlier of’’ at
the beginning of § 618.510(a), writing
that the requirement complicates
finding the effective date for RTAA
claims. The commenter instead
proposed that an eligibility period of 2
years from the date on which a worker
begins qualifying employment be
applicable for workers who have not
received TRA. The eligibility period is
defined in the statute at section
246(a)(4) and includes the ‘‘earlier of’’
language. The Department does not have
the authority to change this via
regulations. Accordingly, the
Department is finalizing this section in
the final rule as proposed.
Section 618.515 Continuing Eligibility
and Timing of Payments
Section 618.515 of the proposed rule
explained the requirements for an
AAW’s continued eligibility under
RTAA and the timing of payments.
Proposed paragraph (a)(1) allowed
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)
prohibited the payment of RTAA during
a period of unemployment and provided
that the AAW may resume receipt of
RTAA payments upon obtaining
qualifying reemployment for the
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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) established
a requirement that if the computed
annualized reemployment wages exceed
$50,000, no additional RTAA payments
could be made unless conditions were
to change again, resulting in
recomputed annualized reemployment
wages of $50,000 or less. This provision
was proposed to reduce the likelihood
and number of overpayments that
would otherwise occur.
One commenter wrote that the
proposal would unfairly impact workers
in fields with variable income streams,
such as commission-based workers for
whom a single high earning month
could result in them losing a year of
eligibility. The same commenter
recommended aligning the proposal
with how overtime is handled, where
overtime does not count toward
payments that could disqualify a
worker. Another commenter expressed
similar concerns, likewise stating that
workers being paid by commission
could be heavily impacted by the
proposal and that § 618.515(a)(3) would
impose administrative burdens on
States. The Department concludes that
the statute does not allow the
Department to exclude overtime. The
Department has made revisions to the
regulatory text to address these
concerns.
A State workforce agency stated that
§§ 618.505(a)(2) and 618.515(a)(3)
seemed to conflict as to whether
overtime pay should be included in the
calculation of wages and asked if the
latter would allow workers to receive
RTAA until their cumulative wages
exceeded the annual limit. The
Department agrees with the State that
there is a conflict in the proposed rule.
Upon further review, the Department
has concluded that it has no legal basis
to exclude overtime in calculating
RTAA payments. Section 618.505(a)(2)
has been modified in the final rule to
remove the exclusion of overtime pay.
Section 618.515(a)(3) has also been
modified to delete the reference to a
calendar year and add the requirement
that States must calculate projected
earnings for the year to determine
continued eligibility.
With respect to the State’s suggestion
that there is some confusion regarding
the language involving the $50,000 wage
limit and calendar years and its query
whether workers would be allowed to
receive RTAA until their cumulative
wages exceed $50,000, this final rule
deletes all references to the word
‘‘calendar’’ from subpart E and defines
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51927
‘‘year’’ for RTAA purposes at
§ 618.505(b)(4). Further, under existing
administrative guidance, at the point a
worker’s annualized reemployment
wages are projected to be above $50,000,
RTAA is stopped until such time as a
recalculation shows an annualized
reemployment wage of $50,000 or less.
Workers remain otherwise eligible for
RTAA until they actually earn, or are
projected to earn, $50,000 in a year—as
now defined in § 618.505(b)(4) for
purposes of RTAA. Section
618.515(a)(3) and (d)(1) have been
modified in the final rule to codify this
requirement.
An AAW who is approved for RTAA
and who continues to meet the
eligibility criteria will be paid RTAA
benefits until the end of the eligibility
period or the payment of $10,000,
whichever occurs first. The State will
need to assess each RTAA recipient’s
continuing eligibility for RTAA.
Whether RTAA entitlement is based
upon part-time (at least 20 hours) or
full-time employment, the State must
verify the worker’s employment and
wage status on at least a monthly basis.
If the worker is employed part-time (at
least 20 hours per week) and receiving
RTAA while in TAA approved training,
the State must, on a monthly basis,
verify participation in the training. The
determination of annualized
reemployment wages is made
prospectively. An AAW meets the
‘‘earns not more than $50,000 a year in
wages from reemployment’’ requirement
in section 246 of the Act for a given
month if the monthly determination of
annualized reemployment wages that
results in wages of less than $50,000 is
accurate and complete at the time it is
made.
RTAA payments stop in the event of
any one of the following: (1) The AAW’s
annualized wages from reemployment
exceed $50,000 in a year; (2) the AAW
no longer meets the reemployment
requirement through either full-time
work or a combination of TAA approved
training and at least 20 hours of work;
(3) the AAW has received the maximum
amount of RTAA; or (4) the AAW has
reached the end of the RTAA eligibility
period. The final rule adopts the same
practice.
One commenter wrote that workers
who separate from employment that
would put them above the $50,000 limit
should be eligible for RTAA if they find
reemployment with wages below the
limit. A worker can change jobs or
obtain multiple jobs, but the earnings
limit remains $50,000. If the worker’s
wages for the year are below $50,000,
they will be otherwise eligible for
RTAA.
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One commenter wrote that monthly
verification for RTAA could be
administratively burdensome, as such a
schedule would not line up with UI or
wage record reporting cycles, and
recommended shifting to a quarterly
cycle. The Department clarifies that
current practice is that RTAA must be
paid no less than monthly. Payment of
RTAA is not related to UI wage record
reporting. Monthly verification also
reduces the possibility of overpayments.
A State workforce agency said that the
proposed rule appeared to drop a
requirement set forth in administrative
guidance for States to verify the training
enrollment status of RTAA participants
every 30 days. This was an oversight by
the Department. There was no intention
to eliminate this requirement. The
Department has modified the regulatory
text in the final rule at § 618.515(a)(4) to
retain this provision. If an RTAA
recipient is employed on less than a
full-time basis, he or she also must be
participating in approved training to
remain eligible for RTAA. This
requirement is intended to reduce
improper payments and to ensure that
participants are still participating in
training since there are potential
financial ramifications if a participant
does not complete training.
The Department has revised
§ 618.515(d)(1) and (2) to remove the
word ‘‘calendar’’ before year. The
Department has also added language
regarding projected earnings in
paragraph (d)(1). These changes were
made based on comments received on
proposed §§ 618.505 and 618.515
seeking clarification of calendar year
and more definitive guidance on the
$50,000 earnings limit and to ensure
that determinations of eligibility for
RTAA are as accurate as possible.
Section 618.520 Benefits Available to
Eligible Adversely Affected Workers
Section 618.520 of the proposed rule
detailed the benefits available under
RTAA as provided by section 246(a)(2)
of the Act. Benefits available include
wage subsidies, training, job search and
relocation allowances, and, if available,
the HCTC.
Proposed paragraphs (a)(2)(i) and (ii)
provided 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).
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Proposed paragraph (a)(2)(i) referred to
the AAW’s ‘‘regular schedule’’ and also
excluded 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.
Proposed paragraph (e) established
the restriction that once an AAW has
received a payment under RTAA, he or
she is no longer eligible to receive TRA.
A State workforce agency requested
clarification as to whether RTAA
requires a full week of reemployment or
whether States may prorate partial
weeks. The comparison of wages for
RTAA eligibility must be from the last
actual full week of employment prior to
separation and a full week of qualifying
reemployment, whether actual or
projected. This allows for a fair
comparison of the wages.
One commenter asked whether
commissions are included in the
annualized wages calculation. For
purposes of RTAA, the Department
affirms that commissions are included
in this calculation as well as overtime,
bonuses, etc. In the discussion of
§ 618.515, above, the Department
clarified that the statute does not allow
for the exclusion of overtime. The
section of this final rule has been
modified in paragraphs (2)(i) and (ii) to
remove the exclusion of overtime pay.
One commenter asked whether the
Department would consider raising the
maximum RTAA compensation in order
to reflect better the economic climate.
The income limits and benefit amounts
under RTAA are established by section
246 of the Act. The Department does not
have the authority to adjust these limits.
A State workforce agency
recommended clarifying that States
must instruct AAWs on their waiver of
TRA benefits and the maximum value of
RTAA benefits they may receive. The
Department concurs this is a good
practice, but has concluded it is
unnecessary to regulate this activity.
The statute does not explicitly require a
notice of this type, as the AAW is not
waiving TRA benefits. Rather, by
receiving RTAA benefits, he or she is
losing access to TRA benefits. The
Department concludes that the decision
on whether to provide this type of
notice should be left to the individual
States.
The Department is finalizing this
section in the final rule by removing the
exclusion of overtime pay under
paragraphs (a)(2)(i) and (ii) and editing
the use of a pronoun in paragraph (e).
The rest of this section is adopted in
this final rule as proposed.
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Section 618.525 Determinations,
Redeterminations, and Appeals
Section 618.525 explained the
requirements related to determinations,
redeterminations, and appeals under
RTAA.
Proposed paragraph (a)(3) allowed 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 previously denied a prior
application.
Proposed paragraph (a)(4) provided
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).
Retroactive payments are explained in
the discussion of proposed § 618.505.
One commenter pointed out an error
in § 618.525(a)(3), which stated that the
denial of eligibility based on a ‘‘first’’
reemployment was subject to appeal.
The Department was referring to an
initial application for eligibility, but
concurs that this should be made
clearer. Therefore, the Department has
removed the word ‘‘first’’ from
§ 618.525(a)(3) and replaced it with
‘‘nonqualifying’’ to clarify that an AAW
who is denied eligibility based on
nonqualifying employment may file a
new application for a subsequent
reemployment. Any denial of RTAA
benefits is subject to appeal subject to
the provisions of § 618.828. The final
rule adopts this section as proposed,
with the update to the filing
requirements in § 618.525(a)(3).
One commenter asked whether States
could process retroactive RTAA
payments and whether retroactive
payments under proposed paragraph
(a)(4) would be available only to fulltime reemployed RTAA participants. In
response, the Department affirms that
RTAA payments can be made
retroactively if an AAW was otherwise
eligible, experienced a total separation
from adversely affected employment,
but was reemployed prior to
certification. Retroactive payments may
be made whether the worker was
employed on a full- or part-time basis.
Retroactive payments are also allowable
in situations where an AAW was denied
RTAA based on the projection of annual
reemployment earnings over $50,000
but where the AAW did not actually
end up earning over $50,000 in that
year. However, the Department made
nonsubstantive edits to correct two
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cross-references in paragraph (a) of this
section, including correcting the section
headings of the sections cited;
otherwise, the final rule adopts this
section as proposed.
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F. Subpart F—Training Services
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.
TAA Program 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 section 236(a)(6) of the
Act 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, to States
providing TAA Program 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 previous regulations,
including 20 CFR 617.27 and 617.28,
which reference the use of the FTR. This
measure ensures uniform 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 subpart F
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.
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Section 618.600
Scope
Proposed § 618.600 provided the
scope of proposed subpart F. This
section explained 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 goal for
reemployment is suitable employment,
or reemployment that pays as much or
more than the trade-affected worker’s
adversely affected employment, but
obtaining suitable employment is not a
requirement to approve training.
One commenter recommended
changing the third sentence of
§ 618.600, which states that States
should prefer training that replaces 100
percent or more of a trade-affected
worker’s wages in adversely affected
employment by substituting the words
‘‘is expected to replace’’ for the word
‘‘replaces.’’ The Department has not
changed the regulatory text in the final
rule, as the suggested revision has the
same meaning as the proposed
regulatory text.
Section 618.605
General Procedures
Proposed § 618.605 was derived, in
part, from 20 CFR 617.20. This section
discussed general procedures for tradeaffected workers to apply for training, as
well as other procedures States must
follow in making determinations on
applications for training.
Proposed paragraph (a) required
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. Proposed paragraph (b) addressed
applications for training, as well as for
transportation and subsistence
payments. It reflected more accurately
that applications must be made to the
States in accordance with their policies
and procedures. Proposed paragraph (c)
specified that decisions on selection of,
approval for, or referral of a tradeaffected worker to training, including
whether to provide TAA Programfunded transportation and subsistence
payments, are determinations to which
apply § 618.820 (determinations of
eligibility; notices to individuals),
§ 618.824 (liable State and agent State
responsibilities), and § 618.828 (appeals
and hearings).
Proposed paragraph (d)(1) required
States 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 exist.
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Proposed paragraph (d)(2) provided that
TAA Program funds may be used to
create customized, group training
opportunities in order to serve a
particular dislocation event where
available education and training
programs are not sufficient. Proposed
paragraph (d)(3) required States to
coordinate with other public and private
agencies, in cooperation with LWDBs, to
ensure a wide range of training
opportunities are available to tradeaffected workers in high-demand
occupations. Proposed paragraph (e)
allowed training for trade-affected
workers any time after their certification
date without regard to whether such
worker has applied for or exhausted UI.
One commenter expressed concern
that the provision at § 618.605(a) did not
distinguish between all trade-affected
workers and those that choose to
participate in the TAA Program. The
same commenter recommended
qualifying the term ‘‘trade-affected
workers’’ with ‘‘who are participating in
the TAA Program’’ to account for the
fact that some trade-affected workers
may not initiate or complete
applications to participate. The
definition of the term ‘‘trade-affected
worker’’ in § 618.110 means both
‘‘adversely affected workers’’ and
‘‘adversely affected incumbent
workers.’’ When a member of a worker
group individually applies for TAA
Program benefits and services, that is
when the State determines if he or she
is an AAW or AAIW (trade-affected
worker).
The same commenter also
recommended changing the third
sentence of § 618.605(a) by adding the
words ‘‘that includes training’’ after ‘‘an
IEP.’’ The Department affirms that the
rule provides that a trade-affected
worker might not have an IEP, as
discussed under subpart C. However, if
an IEP does not contain a proposed
training program, this would not apply.
No changes have been made to the
regulatory text at § 618.605(a) as a result
of these comments.
The same commenter recommended
changing some of the language at
§ 618.605(b) by adding the words
‘‘under this subpart’’ after ‘‘subsistence
payments.’’ Proposed paragraph (b)
states, in relevant part, that applications
for training, including requests for TAA
Program-funded transportation and
subsistence payments, must be made to
the State in accordance with procedures
the States established. There are no
other subsistence payments available
other than under subpart F, so no such
language is needed. Therefore, no
change has been made to the regulatory
text at § 618.605(b) in the final rule.
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The Department made nonsubstantive
edits in paragraph (c) of this section to
correct two cross-references to the
section heading of a different section;
otherwise, the final rule adopts this
section as proposed.
A workforce advocacy group stated
that access to training in sought-after
fields was vital for TAA recipients
because these workers have generally
lost high-paying jobs requiring specific
skills that may not be replaced in the
evolving economy. The group also
stated that communities of workers with
similar skills are sometimes subject to
mass layoffs and that such workers may
need to be retrained for entirely new
occupations. As this can happen,
especially in more rural areas, the
Department encourages States to work
with LWDBs in addressing these
dislocations at the community or
regional level and not just from the
viewpoint of an individual worker. This
is also a situation in which customized
group trainings could be an efficient
method of training trade-affected
workers.
The same workforce advocacy group
expressed support for the provision at
§ 618.605(d) that allows States to use
TAA Program funds to support basic
skills training and English language
learning programs. The group requested
that the Department change references
to ‘‘remedial education’’ to ‘‘basic skills
instruction and remedial education,’’
because the proposed language is
outdated and omitting ‘‘basic skills
instruction’’ would restrict the types of
eligible practitioners in the field. The
Department does not view the
regulatory text language as limiting.
Basic skills training and English
language learning programs would be
considered ‘‘remedial education’’ under
this final rule.
The same workforce advocacy group
also requested that the Department
include a reference to Integrated
Education and Training (IET) at
§ 618.605(d)(2) in order to align better
with WIOA practices and increase
participation in IET programs. The
Department does not conclude that such
a specific reference is needed in the
regulatory text. This type of training is
already allowed under the TAA
Program. Where this rule uses the term
‘‘contextualized occupational training,’’
that term includes the concept of IET.
No changes have been made to the
regulatory text at § 618.605(d) in
response to these comments.
One commenter supported allowing
communities to use TAA Program funds
to create new training programs and
said this element of the proposed rule
was a ‘‘welcome change.’’
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One commenter recommended
eliminating, in proposed § 618.605(e),
what the commenter viewed as an
entitlement to a ‘‘lifetime training
benefit’’ and, instead, limiting
participation in training under a specific
certification to 5 or 10 years. The
commenter said there should not be an
entitlement to TAA approved training
for workers who are displaced from jobs
for reasons not related to trade. A
different commenter asked if an
expiration date for the lifetime training
benefit would be included in the final
rule. The Department considered
imposing a deadline by which a tradeaffected worker would have to begin
training to retain access to the benefit;
however, it has determined that there is
no legal basis to do so. States must
ensure that trade-affected workers who
apply for training past the expiration of
their certification meet the six criteria
for the approval of training at § 618.610.
No changes have been made to the
regulatory text at § 618.605(e) in
response to these comments. However,
a minor edit was made to the use of a
pronoun.
The Department will use this
opportunity to remind States that, for
purposes of determining suitable
employment, States must look at the
wages and skill level of the adversely
affected employment. This means that
States would need to look at the wages
paid at the time of separation from
adversely affected employment and not,
in many cases, the AAW’s most recent
separation, which might not be from
adversely affected employment.
The Department declines revising
§ 618.605, for the reasons discussed
above, and implements this section in
the final rule as proposed.
Section 618.610 Criteria for Approval
of Training
Proposed § 618.610, which
corresponded to 20 CFR 617.22(a)(1)
through (6), implemented all six
statutory criteria for training approval
from section 236(a)(1)(A) through (F).
Under proposed § 618.610, training
must be approved for a trade-affected
worker if the State determines that all
six criteria are met. The statutory
criteria are as follows:
• There is not suitable employment
available (section 236(a)(1)(A),
corresponding to proposed § 618.610(a),
Criterion 1).
• The worker would benefit from
appropriate training (section
236(a)(1)(B), corresponding to proposed
§ 618.610(b), Criterion 2).
• There is a reasonable expectation of
employment following completion of
such training (section 236(a)(1)(C),
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corresponding to proposed § 618.610(c),
Criterion 3).
• Training approved is reasonably
available to the worker (section
236(a)(1)(D), corresponding to proposed
§ 618.610(d), Criterion 4).
• The worker is qualified to
undertake and complete such training
(section 236(a)(1)(E), corresponding to
proposed § 618.610(e), Criterion 5).
• Such training is suitable for the
worker and available at a reasonable
cost (section 236(a)(1)(F), corresponding
to proposed § 618.610(f), Criterion 6).
The Department is finalizing this
section as proposed, except for the
changes noted below.
Under proposed § 618.610, States
must consult the trade-affected worker’s
assessment results and IEP, if available,
before approving an application for
training. One commenter asserted that
the introductory paragraph of § 618.610
requiring States to consult a worker’s
IEP before approving training
applications was in conflict with the
language at § 618.350(a)(2) requiring
that an IEP must be documented before
a trade-affected worker receives training
under subpart F. An IEP should be
established prior to the approval of a
training program, but it is expected to be
a dynamic document, subject to
additions and revisions, so States must
continue to consult the document. No
changes have been made to the
proposed introductory paragraph of
§ 618.610 in the final rule as a result of
this comment.
Another commenter asked how the
Department intended to define
‘‘foreseeable’’ as it appears in
§ 618.610(a)(1), which proposed a
finding of no reasonable prospect of
suitable employment becoming
available for the worker in the
foreseeable future as a part of Criterion
1. The Department considered further
clarification of the term ‘‘foreseeable’’ in
this context but has determined that the
use of this term is unchanged from
previous regulations, as is this criterion
for training approval. There is no intent
to change how States have historically
interpreted this term; therefore, any new
clarification may serve only to limit
States’ flexibility. States should have a
procedure or policy in place for
consistently determining the availability
of suitable employment for workers
applying for training. The Department
encourages States to contact their
regional office to review their existing
policies if further questions remain. No
changes have been made to the
proposed regulatory text at
§ 618.610(a)(1) in the final rule as a
result of this comment.
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A State workforce agency supported
the ‘‘career pathway’’ option under
§ 618.610(b)(1) and maintained that
many workers changing careers will
need to take lower paying jobs initially
in order to develop their skills in a new
field. In contrast, a different State
workforce agency recommended that the
Department reconsider the use of
‘‘career pathway’’ at § 618.610(b)(1)
since this is a technical term defined in
the WIOA regulations. The State
workforce agency recommended
deleting the word ‘‘career’’ from the
sentence containing the term ‘‘career
pathway.’’ The Department concurs
with the recommendation and has made
that change to § 618.610(b)(1) in the
final rule to distinguish this term from
the WIOA term. The Department has
also made a minor edit to the use of a
pronoun.
One commenter asked why the
Department limited the consideration of
labor market conditions to a worker’s
intended commuting area (introductory
paragraph of § 618.610(c)) since some
workers might be inclined to travel
longer distances for the right job. The
Department clarifies that the intent of
this language is to limit the geographical
area in which a trade-affected worker
must seek suitable employment before
training can be approved. It does not
limit the suitable employment that a
worker may accept. One commenter
expressed concern about the provision
at § 618.610(c)(4) requiring States to
assess whether the number of workers
enrolled in a given training will cover
demand in the local labor market,
because States’ implementation of this
provision would be difficult and
burdensome. The same commenter
asked whether States would have to
contact all providers who offer the type
of training under consideration and
what geographic parameters should be
used to determine which providers must
be contacted. The Department clarifies
that § 618.610(c)(4) does not apply to
most proposed training programs and it
is specific to proposed training
programs for limited demand
occupations. The Department
encourages the State, during the training
approval process, to use any available
means to evaluate the likelihood of the
worker to successfully compete for and
obtain a position after completing
proposed training in the limited
demand occupation. No changes to
proposed § 618.610(c) were made in the
final rule as a result of these comments.
The Department did, however, make
two edits for use of pronouns in
paragraphs (c)(4) and (5) and subjectverb agreement in paragraph (c)(4).
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Self-Employment as a Viable
Employment Goal
Proposed § 618.610(c)(5) recognized
that self-employment may be a viable
employment goal. Under proposed
§ 618.610(c)(5), States must review the
labor market conditions to determine
that the skills to be obtained in the
training will lead to self-employment
that will provide trade-affected workers
with wages or earnings at or near their
wages in adversely affected
employment.
Two commenters supported the
provision to approve training programs
that would lead to self-employment.
Another commenter supported the
Department’s proposal to consider selfemployment as a viable employment
goal and asked whether Criterion 6 for
training approval (training is suitable for
the worker and available at a reasonable
cost) would be met if self-employment
were to provide workers with earnings
equivalent to or near their previous
earnings. States should compare the
trade-affected worker’s ability to
undertake the training program against
the worker’s self-employment goal and
determine if the training program is
suitable based on that comparison. The
Department affirms that the
commenter’s example would meet the
‘‘suitable for the worker’’ part of
Criterion 6 (§ 618.610(f)(1)), if the
training program being considered
meets the conditions for a trade-affected
worker to be qualified to undertake and
complete a training (Criterion 5,
§ 618.610(e)(1) and (2)); and if the selfemployment will satisfy § 618.610(c)
(Criterion 3, reasonable expectation of
employment) and provide the tradeaffected worker with work of a
substantially equal or higher skill level
than the worker’s past adversely
affected employment, and selfemployment wages are projected to
result in earnings equivalent to 80
percent of the worker’s adversely
affected wages.
Multiple commenters asked about
methods for tracking and reporting selfemployment earnings. The final rule
does not prescribe a specific method for
the tracking of wages for self-employed
trade-affected workers. Consistent with
administrative guidance, the TAA
Program allows for the collection and
reporting of supplemental wage
information consistent with WIOA. The
State should contact its regional office if
additional technical assistance is
needed on this topic.
One commenter said that the language
discussing self-employment is ‘‘vague’’
and asked whether self-employment is
an approvable employment goal. The
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same commenter said the language
about self-employment as a viable
employment goal should clarify that
‘‘entrepreneurial training’’ is not an
approvable type of training even if
entrepreneurship is a viable
employment goal. While a trade-affected
worker’s employment goal may be selfemployment, the Department does not
consider a training program consisting
of only entrepreneurial training as an
approvable training program under the
TAA Program. Occupational training is
a required component. The Department
maintains that allowing a training
program consisting of only
entrepreneurial training conflicts with
the goal of TAA approved training in
§ 618.600, which is that training
provided must, at a reasonable cost and
as quickly as possible, assist a tradeaffected worker in obtaining the
necessary skills to have a reasonable
expectation of employment.
One commenter asked how the
Department would overcome the
suitability of training requirements with
respect to self-employment since BLS
states that self-employment initially
presents some challenges for workers,
including reduced income stability and
difficulty securing business loans. The
Department encourages States to refer
trade-affected workers to selfemployment assistance programs to
assist workers in estimating or
calculating future wages or earnings and
other aspects of self-employment that
are outside the purview of the TAA
Program.
Criterion 4 (Training Reasonably
Available) and Criterion 5 (TradeAffected Worker Qualified To
Undertake and Complete Training)
Proposed paragraph (d) implemented
Criterion 4 and corresponded to 20 CFR
617.22(a)(4), but was simpler, better
organized, and free of outdated
references. References to approval of
training outside the trade-affected
worker’s commuting area for cost
reasons were moved to proposed
paragraph (f), Criterion 6.
One commenter viewed the language
at § 618.610(d) requiring States to first
consider training opportunities
available within the worker’s
commuting area as overly limiting
because workers may be willing to
travel longer distances to attend a
training program of perceived higher
quality. The Department has determined
this is appropriately addressed at
§ 618.610(f)(2)(ii), which allows a State
to approve a higher cost training if the
training is reasonably expected to result
in a higher likelihood of employment,
employment retention, or greater
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earnings, or to return the trade-affected
worker to employment in a significantly
shorter duration. The Department has
made no change to the regulatory text in
the final rule as a result of these
comments.
Proposed § 618.610(e)(3) (Criterion 5)
consisted of five parts, paragraphs (i)
through (v), which explained the State
must consider (1) the worker’s
remaining weeks of UI and TRA
payments (for AAWs) in relation to the
duration of the proposed training
program; (2) other sources of income
support available to the worker,
including severance earnings of other
family members, and other family
resources; (3) other fixed financial
obligations and expenses of the worker
and family; (4) the availability of
Federal student financial assistance or
any State-funded student financial
assistance or any private funding
designated for student financial
assistance or any private funding
designated for student financial
assistance, including, but not limited to,
nongovernmental scholarships, awards,
or grants; and (5) whether or not the
worker is employed while attending
training. The criteria are used only after
the period of TRA eligibility because the
purpose of TRA is to provide sufficient
financial support to complete training.
Finally, documentation is addressed in
§ 618.852 (Recordkeeping and
disclosure of information requirements).
A nonprofit public policy
organization said States should consider
factors beyond just financial aid and
Federal work-study programs when
determining whether workers have
alternative means to support themselves
financially if a TAA approved training
program lasts longer than a worker’s
TRA benefits. The organization
suggested States should consider
whether TAA Program recipients have
access to supports like Supplemental
Nutrition Assistance Program (SNAP) or
Temporary Assistance for Needy
Families benefits, or if recipients are
equipped to attain part-time
employment. The organization
maintained that considering a wider
range of factors would allow States to
approve 4-year college programs for
trade-affected workers. The Department
agrees that this approach may be of
interest to States and refers the
commenter to § 618.610(e)(3)(ii), which
discusses the need for States to consider
other income.
One commenter said that if the intent
of the provision at § 618.610(e)(3) is to
prevent workers from failing to
complete trainings because of a lack of
financial support, then the relevant
criterion should be whether a worker
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has sufficient financial resources to
support completion of a training
program. The same commenter said it
would be ‘‘odd’’ for this criterion to
come into play only if a worker’s
remaining weeks of UI or TRA do not
equal or exceed the length of a training
program. The Department affirms that
the relevant inquiry is whether someone
has sufficient financial resources to
complete training, but the statutory
requirement is limited to the availability
of TRA. States are encouraged to review
trade-affected workers’ financial
situations as part of the case
management services provided under
subpart C.
A different commenter requested
clarification on the types of documents
needed to verify sufficient financial
resources for workers whose UI or TRA
runs out prior to the completion of a
training program. Neither the proposed
rule, nor the final rule, provides explicit
documentation requirements for
verification of financial resources. States
are, however, required to retain or
describe the documents they used to
render a determination in the tradeaffected worker’s case file, in
compliance with the final rule at
§ 618.610(e)(4).
One commenter asked whether
assessments or IEPs completed by
partner programs would satisfy
requirements in § 618.610(e)(3). The
Department addressed this subject
under the responses to subpart C.
Partner program assessments and IEPs
may be used if they meet the
requirements established in the final
rule. Assessments and IEPs from partner
programs that do not meet the
requirements of the final rule may be
supplemented by additional information
in order to meet those missing
requirements. Duplication of effort
should be avoided wherever possible.
No changes have been made to the
regulatory text at § 618.610(e) in
response to these comments.
Comments and Requested Clarifications
on States’ Coverage of Training Costs
Proposed § 618.610(f)(2), one
component of Criterion 6 for training
approval, requires that suitable training
be available at a reasonable cost.
Reasonable cost is a critical determinant
in approving training programs.
One commenter requested
clarification on ‘‘open-ended’’ and
‘‘potentially burdensome’’ guidance
about training costs and asked the
Department to restore the definition of
‘‘suitable work’’ to the version
established in the previous regulation to
ensure timely approval of training
programs. The Department is unclear as
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to the commenter’s request for
clarification on the provision of
‘‘suitable work,’’ which is defined, and
used, in subpart G. Subpart F uses the
term ‘‘suitable employment.’’ ‘‘Suitable
work’’ is a term used in UI when
claimants are conducting job search
activities to remain eligible for receipt of
benefits. Under previous regulations,
‘‘suitable work’’ was used as the
standard for approval of job search
allowances and relocation allowances.
For further assistance on coverage of
training costs, States are encouraged to
contact their regional office.
One commenter requested
clarification for States on whether they
are permitted to pay travel allowances
when travel would be required for
workers to take certification tests.
Another commenter questioned the
propriety of using TAA Program funds
to cover licensing costs or fees
associated with certification tests, when
licenses or certifications are required
elements of an approved training
program. When tests or exams, such as
mid-terms, finals, or licensure exams,
are part of an approved training
program, transportation costs are
allowable costs. These tests, especially
those that might occur after the
classroom training portion of the
training has completed, should be
documented as part of the training
program. Otherwise, the TAA Program
may cover the costs of any fees
associated with the test as an
employment and case management
expense, but not transportation.
Transportation costs outside of an
approved training program would be
considered a supportive service, which
is not payable using TAA Program
funds.
Multiple commenters requested
clarification of training-related costs,
specifically purchasing laptops, tablets,
software, etc. for workers in TAA
approved trainings. The Department
clarifies that the proposed provision of
training-related costs is unchanged from
current practice and policy. If materials
or supplies are required of all students
enrolled in the training, States are
required to provide those items for the
trade-affected worker to use. Proposed
§ 618.610(f) does not prohibit a State
from reimbursing a worker. As provided
in the regulatory text at paragraph (f)(2),
training costs may include tuition and
related expenses, including 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.
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One commenter stated that the
reference in the preamble to the
proposed rule that States must exhaust
alternatives before purchasing training
equipment was ‘‘vague’’ and requested
that the Department provide examples
or further guidance. A different
commenter suggested that, to improve
clarity, the Department should
explicitly require in the training
approval criteria section itself that
States must ‘‘exhaust alternatives’’
before purchasing equipment or other
materials for workers. Section
618.610(f)(2)(B) of the final rule
recommends that States explore other
options before purchasing equipment or
related materials needed for training.
Alternatives could include, for example,
an equipment lease agreement. The
Department advises States to follow
their regular procurement process and
comply with 2 CFR part 200 and 2 CFR
part 2900, as appropriate, paying close
attention to the distinction between
equipment and supplies. The regulatory
text at § 618.610(f)(2) has been adopted
in the final rule as proposed.
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Section 618.615 Limitations on
Training Approval
Proposed § 618.615 discussed the
various limitations on a State’s approval
of a training program. The proposed rule
relocated 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. The Department is
finalizing this section as proposed,
except for the changes described below.
Paragraphs (a) and (b)
Proposed paragraph (a)(1) retained the
single training program rule of 20 CFR
617.22(f)(2). Changes to an ongoing
training program are considered to be
part of one training program.
Proposed paragraph (b) corresponded
to 20 CFR 617.22(f)(4) with respect to
full-time training but differed
significantly by permitting States to
approve part-time training as well.
Proposed paragraph (b)(1) retained 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) discussed
requirements related to part-time
training under the TAA Program.
One commenter suggested revising
part of § 618.615(a)(1) by adding the
words ‘‘unless one of the conditions in
[§]618.665 allows approval of a training
program that is different from the
originally approved training program’’
after ‘‘under a single certification.’’ The
commenter did not provide a
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justification for the recommended
addition of language. The same
commenter also said that several of the
words in § 618.615(b)(2) were missing
hyphens. Proposed § 618.615 provided
the criteria that must be met at the
initial approval of a training program.
Proposed § 618.665 provided the criteria
to be considered when amending a
training program. Not all of the criteria
from § 618.615 are included in § 618.665
because they are not all appropriate
when considering an amendment. An
amended training program is not a
second training program; it is an
amendment to the existing (approved)
training program. With regard to the
hyphens, the Department has corrected
the regulatory text in the final rule to
include the noted hyphens without
substantive change. The Department has
also made an edit to the use of a
pronoun in paragraph (b).
Two commenters raised concerns
with the regulatory language related to
participants in training who find
employment. One commenter asked
whether this section was in conflict
with proposed § 618.645 (voluntary
withdrawal from a training program).
The commenter asked whether this was
a change from current interpretations.
Another commenter raised concern with
the language in § 618.615(b)(1) about an
AAW in training who obtains
employment that is not suitable
employment being able to continue in
training while employed. The
Department affirms that AAWs are
allowed to continue in approved
training, regardless of their employment
status, after their initial approval of a
training program, as long as they
continue to successfully follow their
approved training program and the
requirements to amend their training
program. Determining whether suitable
employment exists is the requirement
for the approval of training and not a
factor in determining whether approved
training can continue. Regarding the
identification of an apparent conflict
between the language in proposed
§§ 618.615 and 618.645 with regard to
suitable versus nonsuitable
employment, the Department has
revised the regulatory text for the final
rule at paragraph (b)(1) of this section to
remove the conflicting language and to
indicate that the term ‘‘full-time
training’’ has already been defined in
§ 618.110 and that it applies here.
A commenter stated that when AAWs
need to drop classes and assume parttime status for a semester, their State’s
program will discontinue TRA benefits
for the part-time period and reinstate
TRA benefits once the worker returns to
full-time status the following semester.
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States must temporarily discontinue
TRA payments when an AAW reduces
full-time training to part-time training.
Part-time training is approvable, but,
before approving, States must consider
the worker’s approved training program
as a whole and the worker’s reasons for
utilizing only part-time training.
A different commenter suggested the
Department provide a clearer definition
of situations when a trade-affected
worker ‘‘cannot undertake’’ full-time
training because some workers claim
they have been out of school for a long
period of time and they cannot
undertake full-time training. Success
stories included on the TAA Program’s
website have repeatedly highlighted that
trade-affected workers who return to
training usually excel as students.
Trade-affected workers tend to apply the
same work ethic to their studies as they
had during their tenure in adversely
affected employment. The Department
is cautious about providing a definitive
answer to such general scenarios
without additional background
information. States should seek
assistance from their appropriate
regional office on individual cases as
there are often very specific
circumstances that must be considered
before a determination can be made.
When trade-affected workers indicate
they need to drop a class, which will
change their status from full-time to
part-time, it is appropriate to inquire
about why they need to drop the class.
If it is due to a barrier to training, a
referral to a partner program may be
needed. If a worker drops from full-time
training to part-time training to meet a
financial need, such as to help them
increase immediate earnings, they may
also gain work experience that helps
them secure higher paying employment
post-training. The intent of the language
in the preamble to the proposed rule
was to ensure that, whenever possible,
workers are enrolled in training that
will ensure the fastest possible return to
suitable employment. No change has
been made to the regulatory text in
response to these comments.
Another commenter expressed
support for workers in training being
allowed to continue their training fulltime even if they find employment. The
commenter was under the impression
that under the previous rules and
administrative guidance, workers may
continue only in part-time training. The
Department affirms that this is not a
change from current policy as tradeaffected workers may participate in
either full-time or part-time training, or
a combination of the two.
One commenter argued that since the
criteria for approved trainings under
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WIOA are generally stricter than those
for the TAA Program, workers approved
for WIOA trainings should
automatically be approved for TAA
approved trainings. While the
Department supports State and local
area efforts to make services as seamless
as possible for trade-affected workers,
the six criteria for approval of training,
promulgated at § 618.610, are based on
statutory requirements of the Act and
must be met in order for training to be
approved under the TAA Program. The
Department explains that training
eligibility under WIOA for dislocated
workers found at WIOA section
134(c)(3) includes some of the six
criteria for approval for a worker to meet
training eligibility. The Department
encourages States or local areas to
incorporate elements of the six criteria
under the TAA Program as part of
determining the appropriateness of
training for workers. By aligning the six
TAA Program criteria process with the
WIOA training eligibility, States and
local areas can ensure a seamless
transition from WIOA-funded training
to TAA-funded training for the worker.
In that scenario, there would be no extra
step required. Without such a policy in
place, the State must be able to
document that the criteria at § 618.610
have been met. This does not mean that
the WIOA-approved training must stop
while TAA Program eligibility and
training approval are addressed, but
rather that the WIOA training cannot be
considered TAA approved training until
the State determines that the criteria in
§ 618.610 have been met.
Paragraph (d)
Proposed paragraph (d)(3)(iii)
provided a pathway for approving a
training program that exceeds the period
during which TRA is available, as
allowed under section 236(a)(9) of the
Act, but is still within the maximum
duration of training. One commenter
supported the provision at
§ 618.615(d)(3)(iii) because it would
help workers who were not notified of
their eligibility for a training program in
time to start training soon after losing
their previous job, and because it would
expand the types of trainings available
to eligible workers.
One commenter described its
organization’s experiences with workers
who may attest to having enough
financial resources to support
themselves during a training period
based on ‘‘an unrealistic expectation’’ of
their financial needs and expected
future income. The commenter stated
that career counseling and case
management services could help
workers create, and stick to, more
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realistic financial plans. The
Department agrees that financial
planning is a key component of
successful case management.
One commenter supported the
exception for workers who have
performed a period of duty in the
Uniformed Services discussed at
§ 618.615(d)(4)(i) through (iii).
Accordingly, the final rule adopts the
limitations on training approval as
proposed in § 618.615, with grammar
and nonsubstantive edits in
§ 618.615(b)(2) and (d)(2), and a
substantive edit to § 618.615(b)(1) to
remove the language regarding not
suitable employment. The Department
has also made four edits to the use of
pronouns in paragraph (d).
Section 618.620 Selection of Training
Program
Proposed § 618.620, authorized by
section 236(a)(5) of the Act, set forth
requirements related to a State’s
obligation to document the standards
and procedures for the selection of
training programs and the methods of
training permissible.
Paragraph (a)
Proposed paragraph (a) provided for
the standards required for the selection
of training programs. This paragraph
represented 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.
Some commenters sought clarification
on the language in § 618.620 about
establishing and documenting the
standards and procedures used to select
providers and training under the TAA
Program. The Department emphasizes
that the regulatory requirement is for
documentation, which may be met by
listing the State’s requirements, whether
new or preexisting. For example, many
States require trade-affected workers to
provide two or three different training
options or training providers for the
training program for which they are
seeking approval and States may simply
list this requirement, or similar
requirements, as the standard. The
Department reiterates that the statute
prohibits limiting training under the
TAA Program to only those options on
the ETP list under WIOA. All training
approved under the TAA Program must
meet the criteria for training approval at
§ 618.610.
One commenter questioned how
States should treat new training
providers or programs that have not
previously been utilized. The WIOA
implementing regulations, at § 680.450,
established the requirements for training
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providers not previously approved
under WIA to submit applications to be
considered eligible providers under
WIOA. This process may be helpful to
States seeking to establish standards for
the approval of training providers and
programs. The Department advises
States that are seeking to establish
standards to explore the process used
for initial eligibility under WIOA and to
contact their appropriate regional office
for assistance on this issue.
Proposed paragraph (a)(2) allowed a
State to choose a training provider from
the 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.
Several commenters supported the
provision allowing States to choose an
ETP recognized under WIOA section
122 without needing to create additional
standards or procedures applicable to
TAA. One commenter requested
clarification about the meaning of the
phrase ‘‘without establishing additional
standards or procedures’’ and whether
this applied to the criteria of training
programs being selected or States’
processes for procuring training
providers. The Department affirms that
when States enroll a trade-affected
worker in a training program that is not
on the ETP, they must follow a
procedure that establishes standards for
the approval of training providers and
courses, as required by
§ 618.620(a)(2)(i).
Two commenters stated they already
had a ‘‘process’’ for the ETP list. One of
these commenters asserted that the
provision at § 618.620 would be
challenging for non-ETPs and would
limit choices for trade-affected workers.
Another commenter said that if a
training provider or program is not on
the ETP list, WIOA’s dislocated worker
program could still offer supportive
services, but not an Individual Training
Account (ITA). The Department affirms
that if a training provider (or course) is
already on the ETP list, no additional
standards or selection process is
required under the TAA Program.
Section 618.620 allows the inclusion of
providers that are not on the ETP list.
States are required, in those cases, to
establish standards to ensure that tradeaffected workers are provided access to
quality training programs. The
Department clarifies that, with regard to
ITAs, States are expected to utilize TAA
Program funds to pay for the costs of
training, while using WIOA funds to
provide appropriate supportive services
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that cannot be funded by the TAA
Program.
Paragraph (b)
The Department made an edit to the
use of a pronoun in paragraph (b)(1).
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Paragraph (c)
Proposed paragraph (c) provided a
nonexhaustive list of other specific
types of approvable training programs,
which generally followed 20 CFR
617.24(b) through (f).
One commenter requested
clarification about whether, for workers
who need ‘‘other training’’ under
paragraph (c), that training is considered
a ‘‘training opportunity,’’ or if it can be
coupled with later ‘‘primary/core
training.’’ The Department reiterates
that a training program under the TAA
Program can include any or all of the
types of training described in subpart F.
A worker could be enrolled in, for
example, remedial training,
occupational training, and an OJT, as
part of a single approved training
program.
Paragraph (d)
Proposed paragraph (d) provided that
TAA Program funds can be used to
provide training to trade-affected
workers seeking to obtain an advanced
degree or to complete coursework
toward obtaining an unfinished
advanced degree.
One commenter supported the option
to receive remedial education before or
during a requested training program, as
well as the inclusion of different
remedial education programs, such as
Adult Basic Education and English
Language Arts courses and high school
equivalency preparation classes.
A State workforce agency, which
described its position on the advanceddegrees provision found in proposed
§ 618.620 as ‘‘neutral,’’ questioned
whether an advanced degree would
impact WIOA performance measures
given the proposed mandatory coenrollment for WIOA and the TAA
Program. The Department is aware of
the exclusion of advanced degrees from
the measurable skills gain measure.
However, this exclusion is not a factor
in the training approval criteria in
§ 618.610 and cannot be used by a State
to deny training for an advanced degree
under the TAA Program. The
Department explains that services
strategies and historical service data are
now used in setting performance goals
under WIOA. Further, although the
enrollment of trade-affected workers in
advanced degrees may impact the
measurable skills gain indicator, those
same workers are likely to have higher
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employment rates and higher median
earnings.
The Department made a
nonsubstantive edit to modify a citation
to correctly reference § 618.615(d)(3) in
paragraph (d) of this section; otherwise,
the final rule adopts this section as
proposed.
Section 618.625 Payment Restrictions
for Training Programs
Proposed § 618.625 listed a series of
restrictions on payments for training
programs. The Department received
several comments related to proposed
paragraph (c) of this section. Proposed
paragraph (c)(2) allowed States to share
training costs with authorities
administering non-Federal, State, and
private funding sources provided that
there are insufficient TAA Program
funds to cover the total cost of training.
One commenter supported the new
provision at § 618.625(c)(2) allowing
States to enter into cost-sharing
arrangements with non-Federal entities
as an improvement that added
flexibility.
Another commenter stated that, in the
proposed regulation, § 618.625(c)(2)
cites to paragraph (d)(2)(ii) ‘‘of this
section’’ despite § 618.625 not having a
paragraph (d)(2)(ii). The commenter was
concerned that there was no
§ 618.625(d)(2)(ii) to refer to. Section
618.625(d)(2)(ii) exists and crossreferences § 618.940 (a provision related
to insufficient funds), along with other
regulatory provisions that would apply
if the Department determines that there
are insufficient funds available for
TaOA to meet demand.
Proposed paragraph (c)(5) followed 20
CFR 617.25(b)(4)(ii)(C) but clarified it.
As required by section 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.
Proposed paragraph (c)(5) also
addressed the transition of Federal
student financial assistance recipients
from WIOA and other programs to the
TAA Program.
A commenter suggested the
Department should insert citations to
applicable rules for Federal student
financial assistance at
§ 618.625(c)(5)(iv). The Department, in
drafting the final rule, sought to limit
references to other regulations outside
of this part 618. The Department,
therefore, has elected not to add the
requested reference, as this helps ensure
that these regulations are not made
obsolete by changes to other rules.
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The Department adopts the section in
the final rule as proposed.
Section 618.630 Training of
Reemployed Trade-Affected Workers
Proposed § 618.630, which followed
20 CFR 617.22(g), derived from section
236(d) of the Act. The Department
received no direct comments on this
section. Nevertheless, comments
received in response to §§ 618.615 and
618.645 have resulted in a change to the
section heading of this section and to
the regulatory text as described below.
In response to comments received in
§§ 618.615 and 618.645, the Department
is removing both uses of the phrase
‘‘that is not suitable employment’’ from
§ 618.630(a) and removing the phrase
‘‘not in suitable employment’’ from the
section heading since this provision is
not contingent on the employment
obtained not being suitable.
Section 618.635
Work-Based Training
Paragraph (a)
Proposed § 618.635 modified 20 CFR
617.25(a) to establish detailed
requirements for OJT, customized
training, and apprenticeship. The
Department is finalizing this section as
proposed, except for the changes
described below.
Proposed paragraph (a)(3)
implemented section 236(c)(3)(A) of the
Act and required 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 section
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).
One commenter asked why proposed
§ 618.635(a)(3) states that the worker’s
academic and occupational skills must
be considered, ‘‘as documented in the
worker’s IEP, if available,’’ while the
language at § 618.350 requires that an
IEP be documented before workers may
receive training under the TAA
Program. The Department reiterates that
not all trade-affected workers may have
an IEP. If, instead, the State has
sufficient information that would
otherwise be included in an IEP,
training may still be approved, even if
the worker refuses 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.
Failure to do so will result in denial of
the training program. A trade-affected
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worker so denied can appeal the
training denial. The final rule adopts the
regulatory text in § 618.635(a)(3) as
proposed.
Proposed paragraph (a)(4)
implemented the statutory language in
section 236(c)(4) of the Act, which
excludes certain employers from
receiving OJT contracts. One commenter
asked for further clarification on the
term ‘‘long-term’’ found in
§ 618.635(a)(4)(i). The Department
explains that this is a statutory
requirement at section 236(c)(4)(A), and
applies to employers who exhibit a
pattern of failing to provide AAWs in
OJTs with continued, long-term
employment as regular employees.
States should apply a reasonableness
standard. For technical assistance with
a specific case, the Department
recommends contacting the appropriate
regional office. The final rule adopts the
regulatory text in § 618.635(a)(4) as
proposed.
Proposed paragraph (a)(5) set 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 section 236(c)(5)(H) of
the Act. One commenter asked whether
the ‘‘wage rate’’ described at
§ 618.635(a)(5) includes all
compensation, consistent with the
definition of ‘‘wages’’ at § 618.110. The
commenter said it was important to
clarify this point because OJT
reimbursement would be greater if all
compensation, including benefits, were
taken into consideration. The
Department explains that, for purposes
of reimbursing employers for the cost of
training under OJT and apprenticeships,
the term ‘‘wage rate’’ limits
reimbursement to the hourly rate of pay
for the worker and does not include any
other compensation that may be
included in the worker’s wages. The
final rule adopts the regulatory text in
§ 618.635(a)(5) as proposed.
Paragraph (b)
Proposed paragraph (b)(4) explained
the limitation from section 236(a)(10)(B)
of the Act that AAIWs are eligible for
customized training only if the position
is for a position other than their
adversely affected position. One
commenter suggested clarifying
§ 618.635(b)(4), which provided that
‘‘[f]or AAIWs, approval is limited to
customized training for other than their
current position in adversely affected
employment,’’ by adding the words ‘‘a
position’’ so that the regulatory
provision would read, in part, ‘‘approval
is limited to customized training for a
position other than their current
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position in adversely affected
employment.’’ The Department agrees
that this phrase was inadvertently
omitted and has inserted it into the final
rule at § 618.635(b)(4).
Paragraph (c)
Specific Provision for Expanding the
Term ‘‘Apprenticeship’’
Proposed paragraph (c) provided that
both registered apprenticeships under
the National Apprenticeship Act (NAA),
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.
A few commenters generally
supported the proposed rule’s
expansion of training options for
workers, particularly the increased
flexibility for apprenticeships.
A nonprofit public policy
organization stated that placing more
trade-affected workers in
apprenticeships is a laudable goal and
said that very few TAA Program
recipients have participated in
apprenticeships historically, including
just 0.1 percent in 2018. The
organization stated that the amount of
financial support for apprenticeship
expansion in the proposed rule went far
beyond financial incentives offered
through other State and Federal
programs, and it suggested limiting
support for apprenticeship expansion to
smaller amounts, such as 25 percent of
wages, in order to align better with other
policies and to allocate more support to
workers who are traditionally excluded
from apprenticeships, such as women or
older workers. The work-based learning
portion of an apprenticeship is similar
to that of OJT; thus, the Department has
established the same reimbursement
rate for that portion of an
apprenticeship as exists for OJT. In
addition, training programs under the
TAA Program have always been allowed
to contain both work-based and
traditional classroom instruction. The
apprenticeships newly covered by the
expanded definition have long been
approvable as OJT; this is not a change
from current practice, but rather a shift
in the benefits available.
One commenter asked whether the
language at proposed § 618.635(c) meant
that States could require TAA Program
funding be used for registered
apprenticeships only. The Department
reiterates that, consistent with section
236(a) of the Act and § 618.610, States
must approve a training if the State
determines that there is no suitable
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employment for the trade-affected
worker, the worker would benefit from
appropriate training, there is a
reasonable expectation of employment
following completion of such training,
the training is reasonably available to
the worker, the worker is qualified to
undertake and complete the training,
and the training is suitable for the
worker and available at a reasonable
cost. Among other requirements, this
determination necessitates careful
review of a trade-affected worker’s skills
and experience, the knowledge the
training would provide, and labor
market conditions. Therefore, States
may not, as a hard-and-fast rule, limit
apprenticeships under the TAA Program
to registered apprenticeships, for that
would exclude other apprenticeship
programs before determining whether
they meet the criteria that should result
in approval. However, if the State
determines that a nonregistered
apprenticeship under consideration
does not meet the criteria to approve the
training, the State must deny the
training. For example, in evaluating a
nonregistered apprenticeship under
these criteria, a State may gather
information that leads it to conclude the
nonregistered apprenticeship would not
increase the trade-affected worker’s
likelihood of obtaining employment. If
so, then the State may not approve that
training. If the State denies training on
these grounds, the State must consider
other trainings for the trade-affected
worker that would meet the criteria for
approving training.
One commenter asked how the
Department intended to define
‘‘industry-recognized credential’’ in
proposed § 618.635(c). The term
‘‘industry-recognized credential’’ is not
defined in the Act. However, the term
‘‘recognized postsecondary credential’’
is defined in section 247(19) of the Act,
and that term also is used in section
239(j)(2)(A)(i)(IV) of the Act to identify
a factor in one of the primary indicators
of performance that the State must
report to the Secretary. Section 3(52) of
WIOA contains the same term and
definition for similar reporting
purposes. See 29 U.S.C. 3102. Industryrecognized credentials are a subset of
recognized postsecondary credentials.
The Department has determined that no
further definition is needed in this final
rule. The Department adopts this
section as proposed.
Comments on Length of Training and
Apprenticeships
Proposed § 618.635(c)(1) limited the
duration of the paid work-based
learning component of an
apprenticeship to a maximum of 130
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weeks, in line with the general
limitation on training duration in
proposed § 618.615(d)(3). The length of
the educational or instructional training
component, however, was limited only
by the scheduled completion date of the
apprenticeship.
Two commenters requested
clarification on whether TAA Program
funds could cover educational or
instructional aspects of apprenticeship
programs for up to 5 years under the
proposed rule. One of the commenters
also requested that the Department
provide a more detailed description of
any intended limitations on coverage of
educational or instructional aspects of
apprenticeship programs under the
proposed rule. The other commenter
said that educational or instructional
aspects of apprenticeship programs take
many forms, and it suggested the
Department should provide clarification
on a series of issues related to the 130week limitation, including whether
apprenticeships featuring a work-based
learning model would be approved and
whether apprenticeships longer than
130 weeks that do not offer industryrecognized credentials would be
approved. Another commenter
requested clarification on the proposed
rule’s revisions of the TAA Program’s
length of training requirements
applicable to apprenticeships because,
in their reading of the proposed rule,
apprenticeship programs are covered for
up to 5 years or for up to 130 weeks at
50-percent employer reimbursement.
The same commenter asked what States
should do after reimbursing
apprenticeship costs for up to 130
weeks, specifically whether they should
cease funding at that point or continue
until the 5-year limit is reached.
Another commenter asked whether
§ 618.635(c)(1) was intended to refer to
the ‘‘full duration’’ of an apprenticeship
and requested that the Department
provide clarifying examples. With
respect to the request that the
Department provide an example of
apprenticeship to elaborate on the
information provided in the preamble,
an apprenticeship lasting 5 years is an
example, not a limit. Some
apprenticeships will be shorter; a small
number may be longer. There is no limit
on the length of a training program that
consists of an apprenticeship under
these rules.
TAA Program funds may be used to
pay for the entire length of the
educational and instructional
component of the apprenticeship even if
it exceeds 5 years; however, the length
of the paid work-based learning may not
exceed 130 weeks. As for the request to
provide additional clarification on
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apprenticeships under the TAA
Program, the Department will provide
technical assistance on this topic after
the issuance of this final rule and will
issue further administrative guidance, if
necessary. The final rule adopts
§ 618.635(c)(1) as proposed.
The same commenter sought guidance
on how to report the training in required
quarterly reporting. If the participant is
still enrolled in an apprenticeship and
the educational/instructional
component has not ended, the training
is still ongoing and would continue to
be reported quarterly. The Department
recognizes that under this policy, a State
will report on the same individual for
the entire duration of the
apprenticeship. The final rule adopts
§ 618.635(c)(1) as proposed.
One commenter said that prior
administrative guidance established that
workers remain enrolled in the TAA
Program until they achieve 80 percent of
their former wages. The commenter
suggested this threshold could be
increased to 100 percent of former
wages to ensure workers achieve their
prior level of financial stability and
continue in their careers with new
skills. The proposed rule did not retain
the previous administrative guidance on
this topic because, as proposed, an
apprenticeship no longer ends when a
worker reaches suitable employment.
The Department declines the suggestion
for a wage threshold and this final rule
adopts § 618.635 as proposed.
Proposed paragraph (c)(2) described
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
employer 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
employer.
One commenter said the definition of
‘‘available at a reasonable cost’’ found at
§ 618.610(f)(2)(ii), which describes what
reasonable costs are for trainings,
contains important safeguards ensuring
States evaluate training program quality
adequately and make funding decisions
carefully, and it recommended that the
Department restate this provision as an
introductory paragraph to
§ 618.635(c)(2). The Department has
concluded there is no need to restate
this and the final rule adopts
§ 618.635(c)(2) as proposed.
Another commenter discussed various
provisions related to apprenticeship in
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the proposed rule and provided
feedback based on their depth of
experience with registered
apprenticeships. The commenter said
jointly trusteed, labor-management
registered apprenticeships do not charge
tuition, and apprentices in such
programs incur little to no out-of-pocket
expenses. The commenter
recommended the Department clarify
that reimbursable expenses associated
with the educational or instructional
facets of a training program include
costs incurred by participants and the
program itself. The commenter also said
that in joint labor-management trust
apprenticeship programs, the
participating employer is the entity that
either pays wages or covers costs
associated with the program. The
commenter recommended the
Department clarify that the entity
paying wages or covering ‘‘costs of
additional supervision’’ should be
reimbursed, whether that entity is the
program sponsor or the participating
employer. Additionally, the commenter
said it was paramount that States send
workers to ‘‘bona fide’’ programs that
are committed to apprentices’ success,
and it expressed concerns about States’
ability to evaluate new, ‘‘untested’’
industry-recognized apprenticeship
programs. The commenter
recommended revising the provision
about the exclusion of certain sponsors
(§ 618.635(c)(3)) to separate it into two
paragraphs providing that States (1) may
not enter into contracts with registered
apprenticeship sponsors that exhibit a
pattern of failing to provide apprentices
with completion certificates, and (2)
may enter into contracts with
nonregistered apprenticeship sponsors
only if they demonstrate a pattern of
providing apprentices with industryrecognized credentials. The Department
has reviewed § 618.635(c) in light of
these comments and has made
appropriate corrections to the regulatory
text in the final rule by removing all
references to sponsors in § 618.635(c),
since ‘‘sponsor’’ is a term specific to
registered apprenticeship, and replacing
that term with ‘‘employer.’’ With respect
to the same commenter’s statement that
under many registered apprenticeship
programs, participants are not charged
any out-of-pocket costs, it would not be
appropriate to charge a TAA Program
participant either. Under
apprenticeships, an employer is
reimbursed for the extraordinary costs
for supervision related to the workbased learning component of an
apprenticeship. The removal of the term
‘‘sponsor’’ from the section should
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provide additional clarity on costs of
apprenticeships.
A State workforce agency generally
supported apprenticeship and said that
it looked forward to learning best
practices from other States. The
Department appreciates the State’s
willingness to adopt best practices from
other States related to expanding
apprenticeship opportunities under the
TAA Program.
Apprenticeships Other Than Registered
Apprenticeships
Several commenters expressed
concern about the provision in proposed
§ 618.635(c)(4)(ii) to allow TAA Program
funds to support apprenticeships that
are not registered under the
Department’s Registered Apprenticeship
program. They stated that, in their view,
these programs lack important
guarantees, requirements, and
protections associated with the
registered apprenticeship system.
Another commenter requested clarity on
the acceptable types of apprenticeship
opportunities. One commenter
expressed concern about the proposed
rule’s promotion of apprenticeships not
registered and described this aspect as
a ‘‘deregulatory’’ change. The
commenter stated that, in its
perspective, the proposed rule’s
description of permissible work-based
learning programs as programs that
result in a recognized post-secondary
credential, which includes an industryrecognized credential, was overly broad
and suggested that the provision
encouraging TAA Program recipients to
pursue apprenticeship opportunities
should be limited to registered
apprenticeships. Another commenter
opposed a definition of apprenticeship
in the proposed rule and any definition
that would include programs outside of
registered apprenticeship. The
commenter stated it was imperative to
distinguish between registered
apprenticeship programs and other
work-based learning programs, even if
the latter offer industry-recognized
credentials. One commenter, while
supporting the Department’s
acknowledgment of work-based training
programs as valuable opportunities for
AAWs to obtain support under the TAA
Program, expressed concerns about TAA
Program benefits supporting programs
that may not offer pathways to careers
in the trades. The commenter
recommended revising the proposed
rule to either limit all TAA-eligible
apprenticeships to the registered
apprenticeship system or limit TAAeligible apprenticeships in the
construction industry specifically to
that system. Some commenters
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supported expanding job training
opportunities to include
apprenticeships as defined by the NAA
but did not support including programs
that simply result in ‘‘the issuance of a
recognized postsecondary credential.’’
The commenters expressed concern that
allowing programs other than registered
apprenticeships would, in their opinion,
undermine registered apprenticeships’
high standards for work safety and
quality. The commenters suggested that
other training programs could be
included under OJT instead. One
commenter stated that the current TAA
Program law already contains an OJT
program that employers may use if they
want to provide paid job training but do
not wish to sponsor registered
apprenticeships. Another commenter
suggested that the Department should
prioritize increasing participation in the
existing OJT program, and argued that
expanding the allowable use of TAA
Program funds to include all
apprenticeships could undermine the
existing options for training under the
TAA Program. One commenter said it
was crucial that TAA Program funds are
spent only on proven programs with
demonstrable benefits to workers, and it
urged the Department to ensure that its
funds support new opportunities for
workers and do not subsidize employers
for training offered in the ordinary
course of employment. Some
commenters said it made sense to
encourage participation in
apprenticeship programs by allowing
States to reimburse program sponsors
for up to 50 percent of apprentices’
wages using TAA Program funds, and
they argued that TAA Program
involvement with apprenticeship has
previously been minimal due to a lack
of incentives for workers to pursue
apprenticeships through the program.
The commenters stated that the subsidy
proposed in the rule, however, was
substantial and would require close
scrutiny because more than 730,000
programs in the United States offer
industry-recognized credentials, but, in
their view, many fall short of the
apprenticeship standards outlined in
the NAA. One commenter generally
supportive of apprenticeship expansion
efforts nevertheless recommended that
the Department reserve the significant
financial support proposed in the rule
for registered apprenticeships only. The
commenter stated that registered
apprenticeships must comply with
reporting requirements and meet certain
criteria around job quality, and it
suggested the Department should use
TAA Program funds to support
registered apprenticeships rather than
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promote apprenticeships with weaker
protections and lower quality standards.
Many of these comments stated that
training approved under the TAA
Program must, or at least should, meet
the Registered Apprenticeship program
standards established by the Department
pursuant to its authority under the NAA
and set forth at 29 CFR parts 29 and 30.
But the TAA Program is not governed by
the regulations implementing the
Registered Apprenticeship program, and
a broad range of employer-based
training is allowed under the Act. The
Act’s standards for the benefit of
workers and its criteria for approving
training continue to be met under this
final rule, as they have in the past.
With respect to commenters’ concerns
about proposed § 618.635(c) allowing
apprenticeships under the TAA Program
that are not registered apprenticeships
under the NAA, section 236(a)(5)(G) of
the Act provides the Secretary
significant latitude in determining
which types of training States may
approve under the TAA Program.
Section 236(a)(5)(A) of the Act also
provides that employer-based training is
allowable under the TAA Program and
provides a nonexhaustive list of the
types of allowable employer-based
training. Using these two provisions,
both registered apprenticeships and
nonregistered apprenticeships have
always been allowable types of training
under the TAA Program. The proposed
rule changed the benefits available for
these training programs. In addition,
proposed § 618.635(c) adopted the labor
protections established in the Act for
OJT as requirements for apprenticeships
to provide additional protections.
Lastly, proposed § 618.635(c) required
any nonregistered apprenticeship to
lead to the issuance of a recognized
post-secondary credential, which
includes an industry-recognized
credential. TAA Program data have
shown that participants who complete
training and receive a credential have
better outcomes than those that do not
complete training or those that complete
training but do not receive a credential.
This requirement for a recognized postsecondary credential, when combined
with employer-based training, promotes
better outcomes for TAA Program
participants. Accordingly, no changes
were made to the regulatory text in
response to these comments.
Proposed paragraph (c)(7) defined the
term ‘‘sponsor’’ as it relates to
apprenticeships. Proposed paragraph
(c)(8) required the State to enter into a
contract with the sponsor that
establishes the terms and conditions of
the apprenticeship. As explained in the
above discussion of § 618.635(c)(2), the
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Department has removed all references
to sponsors in § 618.635(c).
Accordingly, the Department has also
removed proposed § 618.635(c)(7) from
the final rule, since ‘‘sponsor’’ is no
longer a term used in the rule, and
redesignated proposed § 618.635(c)(8) as
§ 618.635(c)(7). Aside from the changes
discussed above, the final rule adopts
§ 618.635 as proposed.
Section 618.640
Assistance
Supplemental
Proposed § 618.640 discussed
supplemental assistance that must be
provided to trade-affected workers to
defray reasonable subsistence and
transportation expenses while a worker
attends training at a facility outside of
his or her commuting area.
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Paragraphs (c) and (d)
Proposed § 618.640(c) and (d)
discussed the requirements for
supplemental assistance in the form of
subsistence and transportation
payments for TAA approved training
participants.
The proposed requirements for
subsistence payments were that tradeaffected workers 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; that subsistence payments must
not be made for any day when a worker
receives a daily commuting
transportation payment from TAA
Program funds or any other source
(except under certain circumstances,
outlined at § 618.640(e)); and that
subsistence payments must not be made
for any day of unexcused absence from
the training program.
The Department received comments
on this section and responds to them
below. The Department is finalizing this
section as proposed, with the exception
of the insertion of the phrase ‘‘tradeaffected’’ in front of ‘‘worker’’ in
paragraph (c)(2) and the correction of
the use of a pronoun. One commenter
questioned whether the proposed
language at § 618.640(c)(2)(iii), which
generally prohibited subsistence
payments for any day a trade-affected
worker receives a daily commuting
transportation payment from TAA
Program funds or another source, would
allow subsistence payments for days
when an absence is excused. The
Department has specifically disallowed
subsistence payments on days where an
absence is unexcused and the State
would be required to determine if a
subsistence payment is necessary in the
event of an excused absence.
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One commenter said that the
provision at proposed § 618.445(a)(1)(i)
and (ii) allowing for different relocation
completion deadlines for training
participants inside and outside of a
commuting area would necessitate
programming adjustments to case and
data management systems in order to
achieve compliance. The Department
explains that § 618.640(c) and (d) refer
to subsistence and transportation
assistance as part of an approved
training program, not relocation
allowances.
The same commenter also questioned
whether the ‘‘maximum limit’’ on
reimbursement of mileage outside the
defined commuting area referred to a
daily or overall limit. The Department
confirms that it is a daily limit, as
provided in § 618.640(d)(2) and (3). The
State must determine whether it is more
cost effective to provide subsistence
payment in lieu of daily transportation
costs. If the State determines that
subsistence would be more cost
effective, the trade-affected worker may
choose to commute each day, but will
be reimbursed only the costs
determined under the subsistence
benefit.
One commenter questioned whether
mileage reimbursements would begin
‘‘at the mile beyond the definition’’
rather than ‘‘mile one’’ for trade-affected
workers traveling beyond the normal
commuting area. Another commenter
questioned whether the provision at
paragraph (d) indicating transportation
payments are only available for miles
outside of a worker’s commuting area
was meant to indicate that all workers
attending training would receive
transportation reimbursements. As
proposed in § 618.640(d),
reimbursement is for mileage beyond
the commuting area. Thus, ‘‘mile one’’
is the first mile outside of the regular
commuting area. Trade-affected workers
may receive supplemental assistance,
including transportation, only if it is
part of a TAA approved training
program.
One commenter expressed concern
that the decrease of mileage
reimbursement in proposed § 618.640(d)
and alignment of TAA approved
training caps with lower local area
WIOA caps, as described in the
preamble to the proposed rule in
§ 618.650, would result in reduced
AAW benefits, and it recommended
eliminating these changes. The
Department addresses training caps in
proposed § 618.650 in that section of the
final rule preamble below. The statute
provides that the Secretary can
authorize payments of supplemental
assistance where appropriate. The final
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rule codifies (as proposed) that
supplemental assistance is allowable
only if the trade-affected worker is
accessing training outside of the
worker’s commuting area, in accordance
with section 236(b) of the Act, and that
the reimbursement is limited to the
mileage outside of that area. For workers
co-enrolled with WIOA, that program
could cover the transportation costs
within the commuting area as a
supportive service.
One commenter questioned whether
States would be permitted to set
definitions of commuting distance. The
Department has determined that States
may set new definitions or look to
applicable State law. If no such law
exists, States will need to establish a
definition for purposes of this part 618.
One commenter said the provision at
proposed paragraph (d) to restrict
transportation payments to miles
beyond a trade-affected worker’s
commuting area would cause issues in
its State because each WIOA region only
covers specific commuting areas and
pays different rates for transportation.
The commenter also said this provision
contradicts the principle of making TAA
Program funds the primary source of
Federal assistance for workers. A few
commenters said that in their States,
WIOA currently covers travel in the
commuting area, and they argued that
limiting TAA-funded reimbursement to
miles outside of a commuting area
would needlessly ‘‘shift’’ TAA Program
supportive services onto WIOA. The
commenters said this would be
especially burdensome in States with
large rural areas, such as the
commenters’ States. These commenters
also stated that limiting reimbursement
to miles outside of the commuting area
would force local areas to process
multiple mileage reimbursements for
the same trip, and since local areas set
different reimbursement rates, the same
worker could receive different WIOA
mileage rate reimbursements across the
State. Section 236(b) of the Act provides
that when trade-affected workers are
outside of their commuting area,
supplemental assistance may be
provided where appropriate. The
proposed rule established conditions for
such assistance and reflected the
Department’s determination for when
supplemental assistance is appropriate.
As for the same commenter’s concern
that there is a contradiction among the
proposed rule and support services
under WIOA, the language in proposed
§ 618.640, and the requirement that
TAA Program funds be the primary
source of funding for TAA Program
workers, the Department disagrees that
there is a contradiction. Under the TAA
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Program, the Department considers
reimbursing mileage within a defined
commuting area a supportive service
that would be allowed under a partner
program, such as WIOA. The definition
of commuting area (or commuting
distance) is left to the States. This
definition may already exist in State UI
law, regulations, or program policy. If
no such definition exists, the State must
establish one for purposes of the TAA
Program.
Some commenters also questioned
whether transportation payments were
meant to be limited to 90 percent of the
prevailing personal vehicle mileage rate,
and they asserted that such a limitation
would mean less TAA Program funding
would be used, workers might not
receive sufficient reimbursement to
cover their travel costs, and additional
calculations at the time of approval and
payment would be required. One
commenter said the revision
establishing a maximum limit of 90
percent of the cost per mile at the
prevailing personal vehicle mileage rate
was inconsistent with prior
administrative guidance, which requires
that transportation payments must cover
the entirety of a worker’s commuting
distance. The Department clarifies that
although the preamble to the proposed
rule in § 618.640(d) included a
discussion of the establishment of a 90percent limit on the cost per mile, the
Department did not intend to establish
such a limit, as reflected in the
proposed regulatory text, which did not
include such language, and such
limitation is not included in the final
regulatory text.
One commenter requested additional
clarification on whether States could
determine if payments will occur on a
weekly or monthly basis, stating that
reimbursements could be less than $10
in some instances and requiring weekly
reimbursements for such small amounts
would create administrative strain and
unduly burden workers who must travel
to recoup their reimbursements. The
proposed rule, as adopted in the final
rule, provided at § 618.640(c)(4) and
(d)(4) that payments for supplemental
assistance must be paid at the
completion of a week of training. With
the availability of electronic payment
processing, the Department does not
conclude that this is an undue burden
on States, and many trade-affected
workers are already under financial
strain. The TAA Program provides
sufficient funding to the States to meet
this requirement and ease the additional
financial burden placed on workers that
need to travel to participate in training.
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Paragraph (e)
The Department made two edits to the
use of pronouns in paragraph (e).
Paragraph (g)
Proposed § 618.640(g) provided that
trade-affected workers must provide
receipts for all lodging, purchased
transportation expenses, and meals as
evidence of incurred expenses. Some
commenters requested more clarity on
what is meant by ‘‘purchased
transportation expenses’’ and
questioned whether the provision will
require workers to submit receipts for
gas and oil changes and other similar
transportation expenses. One
commenter questioned whether training
participants who travel on a weekly
basis would have to submit receipts for
gas, and it argued that such a situation
would preclude cost savings and place
undue burden on the training
participant. The proposed rule, as
adopted by the final rule, provided that
trade-affected workers travel in
accordance with the FTR. If a worker is
traveling by privately owned vehicle,
the program reimburses at the rate
established by the rate per mile
established by GSA. The GSA rate per
mile takes into account wear and tear as
well as regular maintenance costs, as
well as the cost of fuel. So, the receipts
in question would be for purchased
transportation, such as rental cars,
buses, trains, airfare, ride-share services,
and tolls. Receipts are required for these
other types of transportation costs but
are not needed for fuel unless a worker
is utilizing a rental car. A State may use
an online mapping tool to determine the
mileage traveled. If the training location
does not change, the mileage would
need to be documented only once.
No changes have been made to
§ 618.640 as a result of these comments.
The Department made a nonsubstantive
edit in paragraph (b) of this section to
correct a cross-reference to the section
heading of a different section;
otherwise, the final rule adopts this
section as proposed.
Section 618.645 Voluntary Withdrawal
From a Training Program
Proposed § 618.645 established a new
requirement regarding a trade-affected
worker’s voluntary withdrawal from a
training program. This provision had no
comparable counterpart in previous
regulations or in administrative
guidance.
During its oversight of the TAA
Program, the Department has
encountered numerous situations where
a trade-affected worker has withdrawn
from training. States have also requested
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technical assistance and interpretations
of the Act and regulations related to this
topic. This section provides direction to
the States on this topic. The Department
is finalizing this section as proposed,
except for the changes described herein,
and an edit to the use of a pronoun in
paragraph (e).
One commenter supported the
proposed provisions at § 618.645 and
specifically § 618.645(a), which
provided that States must advise tradeaffected workers that withdrawal from a
TAA approved training may result in an
overpayment and ineligibility for TRA.
One commenter said in response to
proposed paragraph (a) that its State
does not currently have a mechanism to
collect overpayments and asked
whether having such a mechanism in
place was mandatory for every State.
The same commenter expressed concern
that the provision could discourage
some workers from engaging in TAA
approved training. While the proposed
provision requiring States to notify
trade-affected workers that voluntary
withdrawal from a training may be
established as an overpayment and may
result in ineligibility for TRA is new,
the requirement to establish and collect
overpayments related to training is not
new and was included in the previous
regulations at 20 CFR 617.55.
One commenter supported the
provision at § 618.645(d) permitting
workers to continue to receive job
search and relocation assistance if they
withdraw from training for good cause.
The Department appreciates the
commenter’s support of this provision.
One commenter asked why the
provision at proposed § 618.645(e)(1)(ii),
which provided that States must
continue funding an approved training
program as long as training benchmarks
at proposed § 618.660 continue to be
satisfactorily met, refers to training
benchmarks since these are only
required for workers who need
Completion TRA. The commenter
suggested the regulation should specify
that States need to have ‘‘a similar
process’’ in place for workers not
eligible for TRA. Although the statute
only explicitly requires benchmarks for
payment of Completion TRA, the
Department has previously addressed
the issue of training benchmarks in
administrative guidance. This final rule
requires, in § 618.660(b), that training
benchmarks be established for all but
short-term training. This ensures that
States are remaining in contact with
trade-affected workers enrolled in
training and allows for any issues that
arise during the training to be addressed
in a timely manner in order to ensure
a positive outcome for the worker. The
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Department has revised the proposed
regulatory text, by removing proposed
§ 618.645(e)(1)(i) and (ii) and
incorporating the substance of proposed
§ 618.645(e)(ii) into the final regulatory
text at § 618.645(e), in order to clarify
that if a trade-affected worker wishes to
withdraw from training, he or she may
do so, subject to the provisions of this
section. A State cannot subsequently
deny training, after initially approving a
training program, based on a later
availability of suitable employment.
This edit also conforms to the changes
made to §§ 618.615 (limitations on
training approval) and 618.630 (training
of reemployed trade-affected workers).
Section 618.650 State Standards and
Procedures for Establishing Reasonable
Cost of Training
Section 236(a)(1)(F) of the Act
requires States to approve training
suitable for the trade-affected worker
and available at a reasonable cost.
Proposed § 618.650 set forth State
standards and procedures for
establishing reasonable cost of training.
Proposed § 618.650 did not have a
counterpart in the previous regulations
at 20 CFR part 617. The Department is
finalizing this section with a minor
revision described below.
Proposed § 618.650(a) provided that
while 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 limits the State
establishes must reasonably take into
account the cost of training available in
local workforce development areas
throughout the State (and any statewide
limit must recognize that costs may vary
significantly between urban and rural
areas). Proposed § 618.650(a) also
provided that expenditures must be
prudent under the standards of the
OMB’s Uniform Guidance (2 CFR
200.404) and its attendant interpretive
guidance, and that States must 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 tradeaffected worker outcomes or a faster
return to the workforce.
In the NPRM, the Department also
solicited public comments regarding an
alternative approach to establishing a
definition of ‘‘available at a reasonable
cost’’ wherein the Department would
promulgate a regulation providing that a
soft cap would be initially established
as the local area’s established limit for
ITAs under WIOA. Under this
alternative approach, the local area
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would be able to request to exceed this
cap to meet the needs of the tradeaffected worker.
Two commenters maintained that
their States would not support a soft cap
establishing a local area’s limit for ITAs
under WIOA and opposed coupling the
limit on training costs because of the
many differences between the WIOA
and TAA programs. One of these
commenters said that in its State, caps
on WIOA training funds are very low
and almost all TAA approved training
programs would need to include
requests to exceed the cap. Another
commenter similarly claimed that, in its
State, local areas’ ITA caps are below
the State TAA approved training cap
and the soft cap alternative would mean
most training approval requests would
seek to exceed the cap. The commenter
stated that the approach proposed at
§ 618.650(a) would be less burdensome
than the alternative approach. One
commenter said its State has a training
cost ceiling but evaluates training
requests individually and will approve
reasonable trainings with costs above
the soft cap. The commenter argued
that, since its State’s training locations
are limited, a soft cap should be
regulated at the State level. One
commenter recommended revising the
last sentence of § 618.650(a) by
replacing ‘‘local area’’ with ‘‘tradeaffected worker.’’ Comments, including
those above, opposed the alternative
using the ITA limit as a soft cap and
coupling the limit on training with
WIOA. The Department appreciates the
feedback and will not be adopting the
alternative proposal into the final rule.
The demographic differences between
TAA Program participants and WIOA
participants is significant enough that
the training and service needs of tradeaffected workers often require
additional resources beyond what
WIOA would traditionally provide.
Accordingly, no changes have been
made to the regulatory text in response
to these comments. The final rule
adopts the proposed limitations for
States that choose to implement one.
Paragraph (b) of proposed § 618.650
provided that States must develop
transparent standards and procedures
that provide for prompt consideration of
any request for approval of training
costs that exceed an established training
cost limit. This paragraph required that
the review standards developed by the
State must allow for approval of costs
that exceed the applicable training cost
limit when a training program will
provide the most reasonable way of
returning a trade-affected worker to
employment at higher wages or place
the worker on a pathway to do so.
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A commenter recommended that the
Department reconsider the use of the
term ‘‘career pathway’’ in proposed
paragraph (b) since this is a technical
term defined in the WIOA regulations,
and it recommended deleting the word
‘‘career’’ from the second sentence of
this paragraph. The Department concurs
with the commenter and has made this
change to the regulatory text at
§ 618.650(b) of the final rule.
Section 618.655 Training for
Adversely Affected Incumbent Workers
Proposed § 618.655 addressed the
approval of training for AAIWs.
Proposed paragraph (a) clarified that
AAIWs are eligible for approved
training before separation, and further
clarified that AAIWs may apply for
training and States may approve
training for any AAIW at any time after
the date on which he or she is
determined to be individually
threatened with separation regardless of
filing for, receiving, or exhausting UI.
Proposed paragraph (b) clarified how a
State will verify that an AAIW is
threatened with total or partial
separation.
One commenter expressed general
support for serving AAIWs through
partnerships between the TAA Program
and rapid response and also provided a
neutral response regarding serving
AAIWs because of the low number of
certified firms in its State.
The Department is adopting this
section in the final rule as proposed,
with the exception of edits to the use of
pronouns in paragraphs (a) and (e).
Section 618.660 Training Benchmarks
Proposed § 618.660 provided the
process for establishing and monitoring
compliance with training benchmarks.
Benchmarks are required by section
233(f)(3)(A) of the Act when the tradeaffected worker enrolls in an approved
training program that will extend
beyond the duration of payable weeks of
Basic TRA and Additional TRA, for the
purposes of eligibility for Completion
TRA, in accordance with subpart G.
Proposed § 618.660 implemented
existing operations of the TAA Program.
The Department is finalizing § 618.660
as proposed, except for the one change
in § 618.660(c) discussed below.
Paragraph (a)
Paragraph (a) proposed to codify the
requirement for 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
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established when the trade-affected
worker enrolls in an approved training
program so that the State can monitor
the worker’s progress toward
completing the approved training
duration limits set forth at proposed
§ 618.615.
A State workforce agency asked
whether the training benchmarks apply
to AAIWs in training and, if not,
whether the State may require
benchmarks for all trade-affected
workers in training in order to monitor
adequately their progression through
trainings. The Department encourages
States to utilize training benchmarks for
all workers, including AAIWs. AAIWs
are ineligible for Completion TRA, but
as the AAIW may become an AAW
upon separation, it is highly
recommended that training benchmarks
be put in place at the start of the AAIW’s
approved training program.
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Paragraphs (b) and (c)
Proposed paragraph (b) required
training benchmarks to be established
for all but short-term training programs,
such as a 3-month certificate program,
and proposed paragraph (c) provided
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.
One State workforce agency asked
whether the Department intended to use
the term ‘‘training provider’’ instead of
‘‘vendor’’ at § 618.660(c), and it
expressed confusion over the use of
different terms. The Department concurs
with the commenter that the use of the
different terms is confusing and has
changed the proposed regulatory text
from ‘‘vendor’’ to ‘‘training provider’’ in
the final rule at § 618.660(c).
Paragraph (f)
Proposed paragraph (f) required a
State to evaluate and document
satisfactory progress against two
benchmarks: (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.
One State workforce agency said that
AAWs might be disadvantaged in States
that require benchmark reviews more
frequently than every 60 days since
workers would have less time to
demonstrate their progression within a
training program and would be more
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likely to fail subsequent reviews. The
60-day period was established in prior
administrative guidance and the
Department recognizes that many States
have implemented case management
processes that require a check-in with
workers at least once every 30 days,
which can inform a benchmark review
but not take the place of one. The
Department has determined that the
proposed time period is sufficient and
meets the requirement at § 618.660(e)
that training benchmarks be flexible
enough to allow for some variability and
both practical and measurable enough to
allow administration across a broad
spectrum of training scenarios and State
environments. The Department,
therefore, is adopting § 618.660(f) in the
final rule as proposed.
One commenter requested
clarification on what the Department
meant in the preamble to the proposed
rule when it stated that inclusion of
benchmarks should occur when the
training program is ‘‘initially
established and approved’’ because
contracts are sometimes placed months
in advance of the start of a training
program. Proposed § 618.660(f) required
that benchmarks are to be evaluated and
documented every 60 days beginning
with the start of the approved training
program. This may or may not align
with when the contract is executed or
an enrollment occurs. The 60-day
period starts on the first day of actual
training. The Department has retained
the regulatory text at § 618.660(f) in the
final rule as proposed.
Paragraph (g)
Under proposed 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 his or her eligibility for Completion
TRA is in jeopardy.
One commenter said the provision at
§ 618.660(g)(1) regarding ineligibility for
previous benchmark failures appeared
punitive. The commenter asked if there
was a good cause exception to such
ineligibility. The Department reiterates
that the ineligibility for Completion
TRA as a result of benchmark failures is
statutory as provided in section
233(f)(3)(A) of the Act. Furthermore,
this is not a change from current
practice. Two unresolved benchmark
failures will result in a loss of eligibility.
However, as is also current practice, a
training program can be amended to
assist a worker to successfully complete
training.
Proposed paragraph (g)(2) provided
that, if an AAW who has previously
failed to meet a benchmark under
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paragraph (g)(1) fails to meet a
benchmark during a subsequent
benchmark review under paragraph (f),
the State must notify the worker of his
or her 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.
Some commenters requested
clarification under proposed
§ 618.660(g)(2) on whether a worker’s
failure to meet a different benchmark
during a ‘‘subsequent benchmark
review’’ will result in the loss of
Completion TRA. These same
commenters asked if under proposed
§ 618.660(g)(2) a client would lose
Completion TRA if they were found to
have resolved the original issue, but
failed to meet a second benchmark, in
the subsequent review. One commenter
asked how this ineligibility clause
would be applied to instances when a
worker’s failed benchmarks relate to
different classes. The Department has
determined that, after the first failure, if
a warning and training program
modification corrects the issue, then the
failure ‘‘resets’’ and the AAW is
considered to have no failed
benchmarks. If, however, a first failure
is not resolved and a second benchmark
is failed with the first benchmark failure
still outstanding, then a training
program modification is required. If the
worker fails to comply with the
requirement to amend his or her
training program, the worker must be
notified of his or her ineligibility for
Completion TRA. If the training
program is amended, the worker can
resume training and remain eligible for
Completion TRA.
One commenter asked whether a State
may take corrective action and provide
assistance to an AAW if the State learns
that the AAW is struggling with his or
her training because of failing or
withdrawing from classes. The State can
provide assistance to the worker in a
proactive manner in order to ensure a
timely and successful completion of the
training. The Department affirms that
any corrective action taken should be
documented on the worker’s IEP and
could include amending the training
program. The Department made two
edits to the use of pronouns in
paragraph (g). No other changes were
made to the proposed regulatory text at
§ 618.660(g) in the final rule.
Section 618.665 Amending Approved
Training
Proposed § 618.665 provided
conditions for amending an approved
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training program. Proposed § 618.665
recognized 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.
Paragraph (a)
Proposed paragraph (a) required 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 worker demonstrates
good cause for the need to amend.
Proposed paragraphs (a)(1)(i) through (x)
provided the list of conditions to be met
for an amendment to be appropriate.
Proposed paragraph (a)(2) provided that
the training duration limits at proposed
§ 618.615(d)(3) apply to amended
programs. Proposed paragraph (a)(3)
required an amendment to be made
before completion of the original
training program.
One commenter said the process for
modifying training programs set forth in
proposed § 618.665(a) would allow for
the creation of more customized training
programs that align with AAWs’ needs
and would encourage ‘‘creative mixes’’
of classroom and work-based trainings.
Another commenter expressed support
for the added flexibility with respect to
approved training programs because
such flexibility would improve
employment outcomes and result in
higher wages. The Department
appreciates the commenters’ support of
these provisions.
One commenter asked how the
Department intended to define
‘‘industry-recognized credential’’ as it
appears in proposed § 618.665(a)(1)(ii).
The Department addressed this in
response to a similar comment in
§ 618.635. The term ‘‘industryrecognized credential’’ is not defined in
the Act; however, the term ‘‘recognized
postsecondary credential’’ is defined in
section 247(19) and that term also is
used in section 239(j)(2)(A)(i)(IV) to
identify a factor in one of the primary
indicators of performance that the State
must report to the Secretary. Section
3(52) of WIOA contains the same term
and definition for similar reporting
purposes. Industry-recognized
credentials are a subset of recognized
postsecondary credentials. The
Department has determined that no
further definition is needed in this final
rule.
One commenter expressed support for
the proposed provision to amend a
worker’s approved training program in
§ 618.665. The commenter asked if
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§ 618.665(a)(1)(iv) applies if approval of
a short-term training would improve
employment prospects. The commenter
also asked whether the Department had
considered a time limit on trade-affected
workers’ ability to amend their training
program with a different occupational
goal. Under the proposed rule, and as
adopted in the final rule, a training
program can be amended to shorten it
if the shorter training will improve the
likelihood of employment. The
Department considered establishing a
time limit on when a trade-affected
worker can amend his or her training
program to another occupational goal,
but decided not to in order to allow
States flexibility to serve the varying
needs of trade-affected workers.
The same commenter also asked if the
provision at proposed § 618.665(a)(1)(v),
which explains that an amendment to
an approved training program is
appropriate if the worker cannot
successfully complete the originally
approved training program, extended to
‘‘any reason.’’ The Department asserts
that the concept of reasonableness
always applies to Federal regulations.
This is not, and should not be viewed
as, an allowance to amend for any
reason.
With respect to the limit of one
training program per certification set
forth in proposed § 618.655(d)(3), a
State workforce agency asked what
circumstances would transform a
training amended under the provisions
at proposed § 618.665(a)(1)(v), (vi), and
(vii) (listing conditions that may allow
an amendment) to an entirely new
training program. A training program
may be amended up until the time the
trade-affected worker has completed the
entire training program as originally
approved. Only if a worker had
completed his or her approved training
program, and then sought additional
components to add to the training
program, would there be a second
training program. The Department
affirms that the provisions established
in § 618.665 are sufficient to prevent
workers from receiving more than one
training program per certification and
do not establish entitlement to a second
training program.
One commenter stated its
interpretation of the language at
proposed § 618.665(a)(1)(i) through (x)
was that the TAA Program would no
longer limit each worker to one training
as long as at least one of the conditions
in paragraphs (i) through (x) is satisfied,
and it asked the Department to confirm
this interpretation. The Department
reiterates that allowing amendments is
not the same as providing a second
training. Amendments are merely
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modifications to the trade-affected
worker’s one training program. The one
training program policy is still in place.
A worker could not, for example,
complete an entire training program and
then apply for another training program.
The Department has made an edit to the
use of a pronoun in paragraph (a)(1)(iii).
Paragraph (b)
Proposed paragraph (b) sets forth the
criteria that must be met in order for a
training program to be amended.
One commenter asked why the
assessment of labor market conditions at
proposed § 618.665(b)(1) is limited to
the trade-affected worker’s commuting
area or the area of the worker’s intended
relocation. The same commenter stated
that this provision was ‘‘unnecessarily
limiting’’ and argued that workers may
be willing to commute longer distances
for suitable employment. The
commenter also said proposed
§ 618.665(a)(2), providing that the
training duration limits at proposed
§ 618.615(d)(3) apply to amended
programs, was ‘‘overly limiting’’ since
workers may seek to travel a longer
distance to attend a higher quality
training even if there is a suitable
training program that aligns with their
occupational goals within their
commuting area. The commenter’s
statement that workers may be willing
to commute farther for what they
perceive to be higher quality programs
was also directed at the language in
proposed § 618.665(b)(1)(iv), which
explains that amendment is appropriate
if the worker has a reasonable
expectation of employment in a limited
demand occupation in their commuting
area. The Department has determined
that without this limiting language, a
State could require an unreasonable
work search across a broad geographic
area. Although workers may choose to
seek and accept employment outside of
their commuting area without relocating
to that area, they need not do so to be
eligible for training. Thus, the
requirements are limited to the
commuting area or to where the worker
intends to relocate.
The same commenter said many of its
comments concerning the language in
proposed § 618.610, which addresses
criteria for initial approval of training,
also applied to proposed § 618.665 and
asked why the Department determined
it was necessary to repeat these
provisions in both places. Not all of the
provisions in § 618.610 are repeated in
this section because they do not all
apply when amending a training
program. Therefore, the Department
chose to list those requirements that do
apply in proposed § 618.665.
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The Department made a
nonsubstantive edit in paragraph
(b)(3)(iii) of this section to correct a
cross-reference to the section heading of
a different section, two edits to the use
of pronouns in paragraph (b)(1), and an
edit to subject-verb agreement;
otherwise, the final rule adopts this
section as proposed.
One commenter argued that it would
make more sense to consider general
labor market information, rather than
just the information in the worker’s case
file, when seeking to amend an
approved training. The Department
affirms that the regulatory text at
proposed § 618.665(b)(1) requires an
examination of the labor market
conditions at the completion of the
training program. If the end date of the
training program has been modified, or
will be modified as a result of the
amendment, the State would need labor
market information beyond that which
is likely to already be included in the
trade-affected worker’s case file.
One commenter said that while
proposed § 618.665(b)(1)(ii) states, in
part, ‘‘as identified on the worker’s IEP,
if available,’’ the provision at § 618.350
indicates that an IEP must be
documented before a worker can receive
training under the TAA Program. The
documentation requirement was
addressed previously in the final rule
preamble under subpart C.
The same commenter also asserted
that proposed § 618.665(b)(1)(ii)
indicates that the original occupational
goals cannot be amended, a provision
that may conflict with the language at
proposed § 618.665(a)(1)(vii), which
included ‘‘[t]raining in another
occupation will lead to a greater
likelihood of training completion or a
better employment outcome’’ as a basis
for amending approved training. The
cited provision does not prohibit a
change in occupational goals. The IEP is
dynamic and can and should be
revisited throughout a trade-affected
worker’s enrollment in the TAA
Program. If a change in occupational
goal is determined to be appropriate, the
IEP will need to be updated.
The final rule adopts the regulatory
text in § 618.665 in the final rule as
proposed.
G. Subpart G—Trade Readjustment
Allowances
Subpart G covers the eligibility
requirements for, and the amounts and
duration of, TRA. Subpart G reorganizes
and simplifies some of the provisions of
20 CFR part 617 to make them easier to
follow and modifies or excludes some
provisions of part 617 to reflect
statutory amendments and policy
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determinations found in administrative
guidance. Where the Department
received comments on specific
paragraphs within a section, details of
those paragraphs as proposed in the
NPRM are included to provide context
for the discussion of comments that
follows. No comments were received on
proposed §§ 618.700 and 618.770. Those
sections are adopted in the final rule as
proposed.
Section 618.705 Definitions
Proposed § 618.705 had no
comparable counterpart in previous
regulations or in administrative
guidance. It established for the first time
definitions of the terms ‘‘participating in
approved training’’ and ‘‘training
allowance’’ as used in this proposed
subpart G. It also addressed the issue of
wages as it relates to a successor-ininterest.
Proposed paragraph (a)(1) of this
section defined the phrase
‘‘participating in approved training’’
generally, relative to attendance and
taking part in on-site classes, activities,
and events as well as covering excused
absences.
A State workforce agency asked for
more information about what
documentation is needed to show,
under paragraph (a)(1) of this section,
that a worker’s absence from or failure
to take part in training was excused by
the training provider in accordance with
the provider’s written policies. The
Department has determined that
documentation may be varied and
includes, but is not limited to, a written
or electronic note or a documented
phone call. Specific questions about this
issue should be discussed with the
appropriate regional office.
Proposed paragraph (c) of this section
defined the term ‘‘adversely affected
employment’’ and was derived from the
definition of the term ‘‘firm’’ contained
in 29 CFR 90.2 and in proposed
§ 618.110, which provided that any
predecessors or a successor-in-interest
are considered part of the same firm for
purposes of proposed subpart B.
Proposed paragraph (c) extended that
logic to the wages earned by an AAW
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.
One commenter said that paragraph
(c) was a ‘‘welcome addition’’ because it
removes the ‘‘inconvenience’’ of having
to track down the names under which
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an employer’s predecessors or
successors, or both, operated in order to
include them in certification
documents. The Department appreciates
this feedback.
The Department has made no changes
to this section in response to these
comments and adopts it into the final
rule as proposed.
Section 618.710 Categories of Trade
Readjustment Allowances
Proposed § 618.710 explained that
there are three categories of TRA: Basic,
Additional, and Completion, which
were discussed in proposed paragraphs
(a), (b), and (c), respectively. This
proposed section had no parallel in 20
CFR part 617 but was part of
administrative guidance.
Proposed paragraph (b) described
Additional TRA as payable to an AAW
who meets the requirements of
proposed § 618.760, which set forth
qualifying requirements for, and the
timing and duration of, Additional TRA,
and stated that Additional TRA begins
the first week after exhaustion of Basic
TRA.
The Department received no
comments on proposed § 618.710.
However, upon review of the proposed
regulatory text, the Department has
determined that the statute does not
explicitly require the exhaustion of
Basic TRA as an eligibility criteria for
Additional TRA. As a result, the
Department has edited the second
sentence of paragraph (b) of this section
to remove this requirement, and has
otherwise adopted the section as
proposed.
Section 618.715 Applications for
Trade Readjustment Allowances and
Payment
Proposed § 618.715 pertained to
applications for TRA and payment.
Paragraph (a) addressed the timing of
TRA applications; paragraph (b) set
forth the procedures for filing
applications; paragraph (c) addressed
how determinations of the applications
should be treated; paragraph (d)
discussed matters related to payment of
TRA; and paragraph (e) pertained to the
taking of applications for TRA benefits.
The Department is finalizing this
section as proposed, except for the
changes described herein.
Paragraph (a)
Proposed paragraph (a) of this section
modified 20 CFR 617.10(b) to specify
that an application for TRA must be
filed after a certification is issued. It also
omitted all references to applications for
TRA that appeared in 20 CFR 617.10(b)
for weeks of unemployment beginning
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before the initial application for TRA is
filed because doing so would needlessly
confused 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) of this section
provided that an application for TRA
must be filed within the time limit
applicable to claims for regular
compensation under the applicable
State law.
One commenter requested
clarification about the requirement in
paragraph (a)(1) of this section that TRA
applications be filed after publication of
the certification of the appropriate
worker group, asking whether this
meant publication by the Department in
the Federal Register or by the State
itself. The same commenter said that
waiting for Federal Register publication
could be ‘‘problematic’’ in its State,
because local area one-stop center staff
collect TRA applications at TAA
Program orientation meetings, which
require ‘‘multiple steps’’ to be
scheduled, and then transmit the
applications to State-level
administrators for processing, and
‘‘[n]one of this activity is tied to’’ a
notice appearing in the Federal
Register. The commenter added that the
only ‘‘timeliness issue’’ it could
anticipate under the present approach
would be if the one-stop center
provided proper notice of an upcoming
orientation and the trade-affected
worker neither attended nor made plans
to attend on an alternative date. The
certification date on the determination
document would govern for this
purpose, not the publication in the
Federal Register. The Department has
revised the rule in paragraph (a)(1) to
remove the reference to publication of
the certification to remove any
confusion over when an application
may be filed. The revision makes it clear
that the application may be submitted as
of the certification date of a petition.
The same commenter also asked how
States should implement this provision
for AAWs who are separated later in the
certification period. States must work
with firms to continually update worker
lists of those workers that have
separations and threats of separations
throughout the duration of the
certification period.
Paragraph (c)
Proposed paragraph (c) of this section
established that TRA determinations are
subject to specified requirements in
proposed subpart H concerning
determinations, appeals, and hearings. It
also required that an AAW’s case file
include the worker’s TRA application(s)
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and the determinations on those
applications.
Two commenters provided feedback
on the requirement in paragraph (c) that
States maintain copies of TRA
applications and determinations in
AAWs’ case files. One commenter,
saying that in its State separate agencies
administer the TAA Program and TRA,
asked whether the Department intends
in such cases for the TAA Program
agency to keep the applications in its
files or for the TRA agency to maintain
them. The Department has considered
this comment and has determined that
it is the State’s prerogative to determine
where the TRA application is kept. TRA
records must be stored according to
Federal and State records retention
requirements and made available to the
Department for review, as appropriate.
One commenter described a similar
division of responsibilities between
State agencies, with TRA
determinations maintained
electronically, and asked whether this
requirement meant needing to keep
paper copies as well, which it said
would be ‘‘a waste of paper.’’ The
Department maintains that participant
records may be electronic or paper, but
must be accessible to case managers and
other State and Federal officials who
require access to a trade-affected
worker’s case file. State files and
recordkeeping procedures are at the
discretion of the State but if there is a
lack of file integration between agencies
who administer the TAA Program and
TRA, then States may use TAA Program
funds to improve their case file
integration and accessibility. States may
have to examine and modify policies
and procedures to ensure that
appropriate individuals have access to a
trade-affected worker’s complete file,
including TRA. The Department made a
nonsubstantive edit in paragraph (c) of
this section to correct two crossreferences to the section headings of
different sections; otherwise, this final
rule adopts this section as proposed. No
changes to the regulatory text have been
made in response to this comment.
Paragraph (d)
The Department has made an edit to
the use of a pronoun and subject-verb
agreement in paragraph (d).
Paragraph (e)
Proposed paragraph (e) of this section
provided that an application is required
for each TRA benefit type available to
the AAW, however, as discussed below,
paragraph (e) of this section has been
modified in this final rule.
Multiple commenters addressed the
requirement in paragraph (e)(1) of this
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section that States collect separate
applications for Additional TRA, where
an application for Additional TRA was
not previously required. Many of the
commenters expressed concern that this
change would delay the payment of
TRA benefits to workers, with one of the
commenters saying the provision would
lead to ‘‘unnecessary paperwork’’ and
another commenter maintaining that it
could present ‘‘financial hardship’’ for
AAWs. A few commenters said that in
their States, workers can move from
Basic TRA to Additional TRA
automatically, with no separate
application needed, as long as certain
requirements are met, and they
suggested this approach be maintained.
The commenters argued that separate
applications would increase
administrative burdens on States or
would entail ‘‘substantial changes’’ to
their systems. One commenter
questioned whether requiring separate
applications for Additional TRA was
intended to provide accountability
around workers’ participation in
training. Another commenter requested
clarification about the correct
implementation of this provision, asking
whether States should supply workers
nearing the end of Basic TRA eligibility
with an application for Additional TRA
and a deadline by which to return it.
The Department recognizes these
concerns and has modified the
regulatory text at § 618.715(e)(1) to
require an initial application (which is
typically for Basic TRA, but could be for
Additional TRA if the AAW receives UI
for a duration that exceeds Basic TRA)
and a separate application for
Completion TRA.
It is important for AAWs to be aware
that the conditions for receipt of each
type of TRA are unique. Therefore, in
response to these comments, the
Department has established a
requirement at § 618.715(e)(3) that
AAWs be notified when they move from
Basic TRA to Additional TRA so that
they are aware of the eligibility
conditions they must continue to meet
to remain eligible. Providing a notice to
AAWs informing them of eligibility
criteria at each benefit entitlement stage
fulfills due process requirements and
reinforces program integrity. This also
serves as the record that the State
advised AAWs properly, and the State
will be better able to sustain a denial of
benefits at the appellate level since it
will document that benefit information
was provided with specificity to all
AAWs proximate to the benefit
payments.
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Section 618.720 Qualifying
Requirements for Basic Trade
Readjustment Allowances
Proposed § 618.720 set forth the
requirements for Basic TRA eligibility
and was largely taken from the previous
regulations at 20 CFR 617.11(a)(2), but
contained some changes.
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Paragraph (e)
Proposed paragraph (e) of this section
required exhaustion of UI prior to
receipt of TRA and sets forth two
requirements. First, proposed paragraph
(e) makes an exception that exhaustion
of additional compensation that is
funded by a State, and not reimbursed
from any Federal funds, is not required.
Second, it explains that whenever an
AAW becomes entitled (or would
become entitled if the worker had
applied) 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)(1) required
exhaustion of UI entitlement and was
based on 20 CFR 617.11(a)(2)(v)(A) and
(B).
One commenter expressed concern
about how paragraph (e)(1) of this
section defines ‘‘exhaustion of UI,’’
saying it is unclear because the
definition contains a circular reference
to the term being defined. The
commenter then quoted the previous
definition of this term in 20 CFR
617.3(p) and suggested that the
Department adopt this more clear
definition of the term from part 617. The
Department explains that § 618.720(e)
provides that UI entitlement must be
exhausted under the conditions at
paragraph (e)(1) of this section and not
under the conditions at paragraph (e)(2)
of this section. The Department has
simplified paragraph (e)(1) of this
section by adding the words ‘‘except as
provided at § 618.720(e)(2)’’ to the end
of the first sentence and deleting the
second and third sentences. The
substantive requirement is unchanged.
The previous definition of exhaustion of
UI at 20 CFR 617.3(p) also is retained in
its entirety because unlike the TRA
requirement presented by § 618.720(e),
it explains a different concept that
applies to UI and any Federal
unemployment such as TRA.
Exhaustion of all UI entitlement occurs
by either: (1) The receipt of all
entitlement (monetary benefits) in a
benefit period; or (2) the end or
expiration of the benefit period (benefit
year ending date), whichever occurs
first.
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Proposed paragraph (e)(2) of this
section codified section 232(d) of the
Act. This provision allowed an AAW to
elect to receive TRA instead of UI under
certain circumstances.
One commenter supported the
language in paragraph (e)(2) of this
section that provides workers the option
of receiving TRA rather than UI, saying
that access to TRA would help workers
in work-based training who are
‘‘connected to employment’’ but still
require income supports to bring their
initial earnings closer to their former
wages. The final rule adopts the
regulatory text in paragraph (e)(2) of this
section into the final rule as proposed.
Proposed paragraph (e)(3) of this
section detailed 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.
One commenter, citing the
requirement in paragraph (e)(3) of this
section that States provide AAWs a
written summary of their potential TRA
and UI benefits and document the
AAW’s choice in his or her case file,
asked whether, in States where separate
agencies handle the TAA Program and
TRA/UI, the TAA Program agency
would need to document the AAW’s
choice in its files or if it would suffice
for the TRA/UI agency to document the
choice in its files. A different
commenter said that the provision
would require changes to the UI system
in its State to ensure proper
documentation. It is important that a
record of actions taken and the choices
selected by the AAW be documented
and readily available for review by the
Department. Whether this
documentation is maintained at the
local area or State level or with one
State agency or another is up to the
State.
The Department has determined that
for an AAW to exercise the option
between UI and TRA, the worker is
required to file for UI benefits, establish
a valid claim, and be found eligible to
receive UI benefits, if such election is
made. It is not enough only to consider
potential monetary eligibility. A
claimant can be found monetarily
eligible, but still not be eligible to
receive such UI entitlement consistent
with 26 U.S.C. 3304(a)(7). This is a
requirement of the Federal
Unemployment Tax Act, which requires
a worker who has received
compensation during a benefit year to
have had work since the beginning of
such year in order to qualify for
compensation in the next benefit year.
Accordingly, documentation of this
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choice is required to eliminate
ambiguity and maintain program
integrity. The final rule adopts the
regulatory language in paragraph (e)(3)
of this section into the final rule as
proposed, with the exception of a
change to the use of a pronoun.
Proposed paragraph (e)(4) of this
section provided that if the AAW
exercises the election to receive TRA,
State law governs what happens to the
valid UI claim filed. Proposed paragraph
(e)(5) provided that the AAW must have
no unexpired waiting period applicable
for such worker for any UI, except when
collecting TRA.
As a result of the comments received
above regarding proposed paragraph (e)
of this section and the exhaustion of UI,
the Department has edited the
regulatory text in proposed paragraph
(e)(4) through (e)(6) of this section to
simplify the provisions related to UI
claims in the second benefit year, the
exhaustion of UI, and waiting periods,
respectively. Paragraph (e)(5) of this
section was newly inserted in this final
rule and this resulted in the
renumbering of proposed paragraph
(e)(5) as paragraph (e)(6) in this section.
Paragraph (f)
Proposed paragraph (f) of this section
combined the requirements in 20 CFR
617.11(a)(2)(vi) and 20 CFR 617.17 and
reorganized and rephrased the
paragraphs containing the specified
means for meeting the Extended
Benefits (EB) work test requirements in
an easier to follow format. In addition,
proposed paragraph (f)(2)(ii) of this
section provided that the EB work test
requirements do not apply during a
break in training that does not exceed 30
days. The Department made an edit to
the use of a pronoun in paragraph (f).
One commenter asked whether
proposed paragraph (f)(2)(ii), which
provides an exception to both the ‘‘able
and available’’ requirement and the EB
work test requirement for workers
during breaks in training not lasting
more than 30 days (per the counting
method in § 618.775(b)), means that
these requirements do apply if the
worker’s break lasts longer than 30 days.
The comment relates to the application
of the EB Work Test.
The EB Work Test is an eligibility
requirement for all TRA as provided at
§ 618.720(f)(1), except as provided at
paragraph (f)(2) of this section. An AAW
enrolled in TAA approved training, or
participating in such training, or on a
break from training, does not need to
continue meeting the EB Work Test. As
provided at § 618.775 (payment of TRA
during breaks of training), Basic and
Additional TRA are payable during
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TAA approved training breaks, not
exceeding 30 days. However, Basic and
Additional TRA are not payable if the
break in such TAA approved training
exceeds 30 days.
The AAW can elect to seek
employment at all times, consistent
with the EB Work Test, but it would
have no effect on the payment of TRA
during the enrollment or participation
in TAA approved training nor during
breaks in TAA approved training,
whether or not they exceed 30 days. The
Department has edited the regulatory
text in the final rule at § 618.720(f)(2)(ii)
by removing the reference to breaks in
training lasting longer than 30 days in
order to clarify the relationship between
the EB Work Test and breaks in training.
Proposed paragraph (f)(3) of this
section contained the definition of
‘‘suitable work.’’ 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 Federal-State Extended
Unemployment Compensation Act of
1970 definition applies, and it considers
any work within the worker’s
capabilities to be suitable.
A State workforce agency agreed with
the Department’s rationale, expressed in
the NPRM, for paragraph (f)(3) applying
different job search requirements to
AAWs with ‘‘good’’ job prospects versus
those with ‘‘not good’’ job prospects (a
determination the State makes under 20
CFR 615.8(d)) but asked for definitions
of ‘‘good’’ and ‘‘not good.’’ The State
workforce agency also argued that the
differentiation of job search
requirements would mean
‘‘considerable changes’’ to its State’s UI
system. The language in the proposed
regulatory text is revised in the final
rule based on the EB Work Test
provisions found at 20 CFR
617.11(a)(2)(vi). A portion of this
language was omitted in the proposed
rule in error, specifically the reference
that registration for work be made
consistent with the EB regulations
found at 20 CFR part 615. The
applicable reference is 20 CFR 615.8(d),
which provides an extensive
explanation on the classification and
determination of job prospects to
establish whether they are ‘‘good’’ or
‘‘not good.’’ The Department revises
paragraph (f) in the final rule to include
the language that was omitted in error
and to provide the proper reference to
20 CFR 615.8(d).
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Paragraph (g)
Proposed paragraph (g) of this section
followed the participation in training
requirement of 20 CFR 617.11(a)(2)(vii).
Proposed paragraph (g)(2) provided the
Department’s position that the
participation in training requirement
does not apply to an AAW before what
is commonly referred to as the 26/26week deadline for enrollment in training
found in section 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
§ 618.725 without meeting the
participation in training requirement.
One commenter said new paragraph
(g)(2) of this section, addressing receipt
of TRA prior to the training enrollment
deadline, makes the requirements
clearly understood. The Department has
incorporated the above-mentioned
changes to the regulatory text for
§ 618.725 and otherwise adopts this
section into the final rule as proposed.
The Department made an edit to the
use of a pronoun in paragraph (g)(3).
Section 618.725
Deadlines
Training Enrollment
Proposed § 618.725 did not have a
counterpart in the previous regulations
at 20 CFR 617, but was administered by
States based on administrative
guidance. This § 618.725 in the
proposed rule set forth the statutory
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.’’
Proposed paragraphs (a)(1) and (2) of
this section implemented 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 section
231(a)(5)(A)(ii)(I) and (II) of the Act.
One commenter opposed the
establishment of a 26-week deadline to
enroll in training in cases of partial
separation, saying it would penalize
partially separated workers who have
not enrolled. The Department reiterates
that the deadline in the regulation is a
statutory deadline and may not be
modified. However, the deadline for a
partially separated worker may actually
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change as a worker with a partial
separation under an existing active
certification would have 26 weeks from
the week in which he or she became
partially separated to enroll in (or be
waived from) training and, if he or she
later experiences a total separation, the
enrollment deadline would restart based
on the date of the total separation.
Proposed paragraph (a)(3) of this
section implemented the deadline in
section 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) of this section explained 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.
Additional discussion of extenuating
circumstances and good cause is found
in the preamble for proposed § 618.730.
One commenter supported the
‘‘extenuating circumstances’’ provision
in proposed § 618.725(a)(3) that would
extend a worker’s eligibility for TRA
income supports by extending the
training enrollment deadline for 45 days
if there is ‘‘good cause.’’ The
Department appreciates this support
and the final rule adopts the regulatory
language of this section as proposed.
Section 618.730 Good Cause
Proposed § 618.730 did not have a
counterpart in prior regulations at 20
CFR part 617 but was administered by
States based on administrative guidance
that implements section 234(b) of the
Act. In determining whether to apply
the good cause exception, 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 AAW 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
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reasons or circumstances that would
prevent a reasonable person from
meeting a deadline.
A State workforce agency supported
the Department’s clarification of the
‘‘good cause’’ exception and suggested
the flexibility it provides should be
expanded to allow for waiver of ‘‘any of
time limitations or other requirements’’
if the AAW can demonstrate ‘‘good
cause’’ exists. Through these
regulations, the Department codifies
four different concepts where
exceptions to certain deadlines are
appropriate: extenuating circumstances,
justifiable cause, good cause, and
equitable tolling (§ 618.888). Though
similar, they are not interchangeable.
States may apply these, as appropriate,
for a worker’s unique circumstances.
Proposed paragraph (b) of this section
provided that for good cause to exist,
the AAW must have acted diligently yet
been unable to apply for, enroll in, or
receive a training waiver within the
required time limitations because of
exigent circumstances.
Citing a Rutgers University study
about the negative effects of prolonged
unemployment, a different commenter
recommended that the Department
revise proposed § 618.730(b) to state
explicitly that ‘‘good cause’’
encompasses the difficulties workers
face that are ‘‘exacerbated by the trauma
and stress of unemployment,’’ such as
financial straits, depleted savings, and
emotional strain. The same commenter
expressed concern that, without explicit
encouragement from the Department to
interpret the standard liberally, States
would hesitate to apply it in a way that
provided workers the most opportunity
to access training. The Department is
well aware of the difficulties that
workers face when unemployed. States
are aware of these difficulties as well.
However, the Department has decided
not to include any specific examples in
the regulatory text as there are often too
many variables to consider such that
providing a definitive opinion in this
final rule would be difficult. For
technical assistance on the application
of these provisions to specific
circumstances, States should consult
with the appropriate regional office.
The final rule adopts the regulatory
language as proposed.
Section 618.735 Waiver of Training
Requirement for Basic Trade
Readjustment Allowances
Proposed § 618.735 addressed waivers
of the training requirement as a
condition for receiving Basic TRA. This
section permitted States to issue waivers
if an AAW was unable to meet the
training required and identified the
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circumstances under which a waiver
could be granted.
Paragraph (b)
Proposed paragraph (b) of this section
set forth the permissible bases for
waiving the training requirement.
One commenter urged the Department
to reinstate the more numerous waivers
of the training requirement for Basic
TRA that existed before the enactment
of TGAAA in 2009 and the regulatory
changes that followed. A different
commenter specifically requested the
restoration of the ‘‘marketable skills’’
waiver, which allowed workers with indemand skills to receive extra weeks of
TRA beyond the standard UI
entitlement by waiving the training
requirement. The same commenter
expressed concern about what it called
the ‘‘underlying unfairness’’ of the
proposed approach of making TAAeligible workers with marketable skills
look for suitable employment, thereby
forfeiting TRA benefits. The categories
are statutory, as established in section
231(c)(1)(A) through (C), and the
Department does not have the authority
to add additional categories; therefore,
the final rule adopts the regulatory
language regarding the waiver categories
as proposed.
One commenter responded to the
Department’s request for comments by
asking that the Department include
more descriptive language about the
bases of waiver criteria into the
regulatory text by inserting the statutory
language. The Department has
determined this addition is not
necessary, and adopted the regulatory
descriptions of the waiver conditions as
proposed.
Paragraph (c)
Proposed paragraph (c) of this section
governed the contents of a waiver and
provided that a waiver does not take
effect unless it contains, at a minimum,
six specific items of information.
Proposed paragraph (c) modified the
requirements that existed at 20 CFR
617.19(a)(2)(i) through (vii) to account
for the statutory change concerning
allowable conditions for issuing a
waiver.
A State workforce agency questioned
the necessity of the requirement in
paragraph (c)(1)(vi) of this section that
a waiver cannot take effect unless it
contains a signature from ‘‘an official of
the State authorized to grant the waiver’’
and said that the State’s approval in the
electronic case management system
should suffice. The same commenter
also asked why such a signature would
be needed to waive the training
requirement but not to enroll a worker
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in training. As provided by the
Department in proposed subpart H, as
well as in this final rule, electronic
signatures are allowable, as are scanned
signed copies. This would be the same
for training approval or approval of
other benefits. The Department strongly
encourages States to move toward
electronic case files and electronic
benefit management wherever possible
to reduce operational costs and improve
efficiency of the provision of TAA
Program benefits and services. The final
rule adopts the regulatory text in
paragraph (c)(1)(vi) of this section as
proposed.
Paragraph (f)
The Department made an edit to the
use of a pronoun in paragraph (f).
Paragraph (g)
Proposed paragraph (g) of this section
revised 20 CFR 617.19(c) and
implemented section 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.
Omitted from the regulation in proposed
paragraph (g) of this section were two
provisions from 20 CFR 617.19(c)(2) and
(3) that did not impose substantive
requirements.
One commenter, citing the preamble
discussion about paragraph (g) and the
Department’s explanation that it
dropped two provisions from 20 CFR
617.19(c)(2) and (3), stated its
understanding of the removed
provisions as follows: if the waiver is
revoked because a worker enrolls in
training, then the State simply revokes
the waiver on the waiver form and does
not need to send the worker a written
notice of revocation outlining the
worker’s appeal rights, but if the waiver
is revoked for any other reason, then the
State sends the worker a notice of
appeal rights. The same commenter said
that if its understanding of these
provisions is correct, then it would
support taking that approach. Similarly,
another commenter said that changing
the status quo, in which revocation that
occurs because ‘‘training is feasible and
appropriate’’ does not result in written
notice since the AAW simply begins
training, could be confusing to workers
and disrupt service delivery. This
commenter asked for clarification about
whether, under the proposed approach,
all revocations must be issued as written
notices and treated as appealable
determinations. Waivers must be
revoked, in accordance with section
231(c)(2)(B), when the conditions that
led to the issuance of such waiver are
no longer in effect. If during the
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periodic review of the waiver, it is
discovered that reason(s) for such
waiver are no longer applicable, the
waiver must be revoked and the AAW
must meet the requirements of
§ 618.725(a)(5). This would include
when an AAW enrolls in approved
training. States must issue
determinations on revocations and
provide appeal rights consistent with
§§ 618.820 and 618.828. The final rule
adopts the regulatory language in
paragraph (g) of this section as
proposed.
The Department is finalizing this
section into the final rule as proposed.
Section 618.740 Evidence of
Qualification for Basic, Additional, and
Completion Trade Readjustment
Allowances
Proposed § 618.740 was modeled after
20 CFR 617.12 and provided the
requirements for evidence of
qualification for Basic, Additional, and
Completion TRA. Proposed paragraph
(a) of this section was substantially the
same as 20 CFR 617.12(a) and contained
the requirement that States obtain the
basic information necessary to establish
whether a TRA applicant is eligible to
receive TRA.
A State workforce agency interpreted
the Department’s overview of § 618.740
in the NPRM preamble as meaning that
a State does not need an application to
determine TAA Program eligibility if,
based on the worker list it receives from
the employer, it has enough information
to assess a worker’s eligibility for
benefits. The State workforce agency
asked the Department for confirmation
that the State does not need to require
workers to apply if the information from
the employer provides sufficient
grounds on which to base an eligibility
determination as to the TAA Program
and TRA. The Department explains that
if the worker list provides sufficient
information for the State to determine
that a trade-affected worker was
separated for lack of work as a member
of the worker group, then no additional
information is required to render a
general determination on overall TAA
Program eligibility, allowing a worker to
receive employment and case
management services. Benefits and
services such as training and TRA have
other eligibility requirements that must
be met, however.
Further, the worker list initiates the
process by which the State contacts the
trade-affected workers advising them of
the availability of benefits. All members
of the certified worker group must be
provided notification of their potential
eligibility. The State must request the
firm to provide a list of workers who
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have experienced a separation or are
threatened with separation from
employment from the certification’s
impact date through its expiration date,
as soon as the certification is issued and
throughout the certification period. The
information provided by the firm is then
used to advise workers of the potential
TAA Program eligibility. If there is a
conflict between the information
provided by the firm and information
provided by a worker, additional fact
finding is necessary from both parties.
It is important for States to ensure that
firms provide a list of all separations
regardless of the reason for the
separation. This avoids situations in
which the firm only submits to the State
workers who the firm believes had a
lack of work separation. Otherwise,
some workers considered by the firm as
not experiencing a lack of work
separation may be left off the list when
in fact they should have been included,
resulting in unnecessary delays for
receipt of benefits and services for such
workers. States also must work with the
firm to identify workers who are
individually threatened with separation.
The worker list provides valuable
information that is used by the State as
a basis for issuing determinations of
program entitlement. The State is the
responsible party and the final authority
issuing individual determinations as to
which workers had a lack of work. Once
this action occurs, the workers are
considered to be an AAW or an AAIW.
The Department made a nonsubstantive
edit in paragraph (a) of this section to
correct a cross-reference to the section
heading of a different section;
otherwise, the final rule adopts this
section as proposed.
Section 618.745 Weekly Amounts of
Basic, Additional, and Completion
Trade Readjustment Allowances
Proposed § 618.745 governed the
determination of an AAW’s weekly
amount of TRA, whether Basic,
Additional, or Completion. This
proposed section only impacts TRA
benefits, not UI. The Department
received no comments relating to
proposed § 618.745 and therefore the
final rule adopts the section as
proposed, with the exception of edits to
the use of pronouns in paragraphs (b)
and (c).
Section 618.750 Maximum Amount of
Basic Trade Readjustment Allowances
Proposed § 618.750 explained how to
calculate the maximum amount of Basic
TRA. It was derived from previous
regulations at 20 CFR 617.14, with a few
substantive and organizational
differences. The proposal defined the
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maximum amount of Basic TRA payable
to an AAW as the product of 52
multiplied by the TRA weekly amount
for a week of total unemployment,
calculated under proposed § 618.745(a)
(weekly amounts of TRA), reduced by
the total sum of UI (except State-funded
additional compensation) that the AAW
was entitled to or would have been
entitled to had the worker applied in
such worker’s first benefit period. As
proposed in paragraph (b), this does not
include any supplemental payments for
dependent allowances. One change from
previous regulations concerned the
reduction for the total sum of the
AAW’s UI entitlement. Paragraph (a)(2)
of 20 CFR 617.14 provided 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 added 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
provision 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.
While the statutory and regulatory
language implies that the full
entitlement must be reduced, the AAW
could not have filed and received such
benefits. Accordingly, the Department’s
revised position was that if, and only if,
the benefit was available to the AAW, it
must be reduced.
One commenter requested
clarification about the provision in
§ 618.750(a) concerning the reduction in
the maximum amount of Basic TRA
payable based on workers forgoing a UI
benefit to which they were entitled. The
same commenter asked whether a
worker who elects to wait until filing
would be ‘‘out those two weeks.’’ The
Department explains that the regulatory
citation tracks the statute at section
233(a)(1) of the Act. This requires that
the full UI entitlement during the first
benefit period is reduced, independent
of the actual receipt, to establish the
maximum Basic TRA payable. For
purposes of this calculation, UI includes
regular compensation, EB, and Federal
supplemental compensation.
Accordingly, if the AAW was entitled to
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compensation and had a balance in such
compensation, such compensation must
be reduced from the maximum Basic
TRA payable, independent of the
reasons the AAW could not receive such
compensation. The final rule adopts the
regulatory text as proposed.
regulations. Proposed § 618.760(a)(2),
therefore, has been removed from the
regulatory text in the final rule, and
proposed paragraph (a)(3) has been
redesignated as final paragraph (a)(2) to
reflect the deletion of proposed
paragraph (a)(2).
Section 618.755 Eligibility Period for
Basic Trade Readjustment Allowances
Proposed § 618.755 established the
Basic TRA eligibility period. The
Department did not receive any
comments on this section. The final rule
adopts the regulatory text as proposed,
with a technical correction that removes
an erroneous reference to § 618.755(c), a
nonexistent regulatory provision.
Section 618.765 Qualifying
Requirements for, and Timing and
Duration of, Completion Trade
Readjustment Allowances
Proposed § 618.765 provided the
qualifying requirements for, and
duration of, Completion TRA. This
section codified section 233(f) of the
Act, and provisions in administrative
guidance implementing the statute, and
resolved policy issues arising from the
implementation.
Proposed paragraph (c) of this section
explained 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).
A commenter asked whether
modification of a training contract
during the eligibility period, while there
is Completion TRA eligibility
remaining, resulting in training
continuing after the eligibility period,
would be deemed ‘‘justifiable cause’’ for
extending the eligibility period under
§ 618.765(c). Before any determination
can be made on whether or not to apply
justifiable cause, fact-finding must
occur. The Department encourages
States to work with their appropriate
regional office to address specific cases
as they arise. The final rule adopts the
regulatory text as proposed.
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, had no
specific counterpart in 20 CFR part 617;
however, most of the provisions in
§ 618.760 were contained in various
sections of the prior regulations at 20
CFR part 617 and had been updated
through administrative guidance over
time. The Department is finalizing this
section as proposed, except for the
changes described herein.
Proposed paragraph (a) of this section
contained Additional TRA qualifying
requirements and was 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 breaks in training).
Proposed paragraph (a)(2) of this section
specified that the AAW must have
exhausted Basic TRA before establishing
eligibility for Additional TRA.
One LWDB understood proposed
§ 618.760(a)(2) as meaning that a worker
who has reached 104 weeks of Basic
TRA eligibility without exhausting that
benefit is not eligible to receive
Additional TRA, even after receipt of EB
or supplemental compensation, and
asked the Department whether that was
the provision’s intent. The provision to
require exhaustion of Basic TRA was
included in the proposed rule 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. However, upon further
review of the Act as a result of this
comment, the Department concludes
that there is no statutory basis to
establish this provision in the
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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,
was substantially the same as 20 CFR
617.15(d) except that, as the result of a
statutory change to section 233(e) of the
Act, it extended the maximum number
of days a break may last without
interrupting TRA payments from 14
days to 30 days. Proposed paragraph (b)
of this section provided a basis for
counting days similar to 20 CFR
617.15(d).
One commenter recommended that
the Department add language to
paragraph (b) of this section, which
explains what days count toward the 30-
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day maximum, to account for workers
enrolled in training that mostly occurs
on weekends, which the commenter
said is true of some technical
certification courses. To illustrate this
point, the commenter provided an
example of two workers, where one has
classes that meet primarily on
weekends, while the other has classes
that meet only on weekdays. In the
commenter’s example, while the two
workers may experience a break at the
same time, because weekends do count
toward the weekend student’s total, but
do not count toward the weekday
student’s total, the break is treated as
shorter for the weekday student than it
is for the weekend student. The
commenter asked for clarification about
how many days following the worker’s
return to training must pass before the
worker can have another break and still
remain eligible for TRA benefits. The
commenter described an example in
which the worker takes a course lasting
1 or 2 days in between two breaks in
training and asked whether this would
‘‘reset’’ the count for the 30-day limit.
The commenter also requested
clarification about how this provision
applies to distance learning programs
with no set class schedule, namely
whether weekends and holidays would
be excluded for such programs. The
Department appreciates the
commenter’s concerns, but there are too
many unknowns and additional
information would be needed in order
to provide an informed response. The
commenter is encouraged to contact its
appropriate regional office for technical
assistance on individual case scenarios.
The Department is finalizing this
section in the final rule as proposed,
with the exception of a subject-verb
agreement edit in paragraph (c).
Section 618.780 Disqualifications
Proposed § 618.780, governing
disqualifications from receiving TRA,
was structured the same as 20 CFR
617.18. Proposed paragraph (d) of this
section, prohibiting payment of TRA to
an AAW for any week during which the
worker is receiving part-time training,
did not have a comparable section in 20
CFR part 617, as it was a new statutory
requirement in section 236(g) of the Act,
which had been implemented
provisionally via administrative
guidance.
One commenter requested
clarification about the correct
interpretation of paragraph (d) of
§ 618.780, concerning disqualification
from receiving TRA for any weeks in
which a worker participates in part-time
training, which states that part-time
training is any training not meeting the
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definition of ‘‘full-time training’’ in
§ 618.110. The same commenter quoted
the definition in § 618.110 of ‘‘full-time
training,’’ which provides in paragraph
(2) of the definition that students in
their last semester of training will be
considered in full-time training, even if
their courses do not meet the training
provider’s definition of full-time, if
those courses are the only training or
coursework required to finish the
training. The commenter asked the
Department to confirm that a State does
not need to obtain additional
documentation from a training provider
in order to pay TRA for a worker’s last
semester of training. A different
commenter said the proposed rule did
not include language extending
eligibility for TRA to workers in parttime training during their last semester
who are scheduled to graduate and only
need that semester’s courses to complete
their requirements. States should ensure
that courses taken in the last semester
of the AAW’s approved training
program are the only classes or
coursework needed to complete
training, and if they are less than fulltime, that should be documented in the
worker’s case file. The Department also
refers the commenters to the definition
of full-time training at § 618.110, where
the final semester of training is
specifically addressed. The Department
made a nonsubstantive edit in
paragraph (a) of this section to correct
a cross-reference to the section heading
of a different section; otherwise, the
final rule adopts this section as
proposed.
H. Subpart H—Administration by
Applicable State Agencies
Subpart H governs the administrative
requirements and rules that States must
follow in delivering TAA Program
benefits and services. 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. 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 staffing
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;
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program performance requirements; and
overpayment requirements and
instructions.
There were no comments received on
proposed §§ 618.800, 618.820, 618.828,
618.836, 618.840, 618.844, 618.848,
618.856, 618.868, 618.872, 618.884,
618.894, and 618.898. Accordingly, the
final rule implements these sections as
proposed, except for an edit to subjectverb agreement in § 618.820.
Section 618.804 Agreements With the
Secretary of Labor
Section 618.804 of the NPRM set forth
the statutory requirement at section 239
of the Act that agreements between the
States and the Secretary (known as
Governor-Secretary Agreements) are
required before a State may deliver TAA
Program benefits and services. Proposed
§ 618.804 followed 20 CFR 617.59, but
reordered the provisions and edited
them for clarity. The final rule adopts
§ 618.804 as proposed, except for a
nonsubstantive technical edit correcting
the capitalization of ‘‘agreement’’ to
‘‘Agreement.’’
A commenter supported continuing
services even while the Department is in
the process of amending GovernorSecretary Agreements. The Department
has never ordered States to cease
program operations while executing
updated Agreements.
Paragraph (h)
The Department received one
comment related to proposed paragraph
(h) of this section. Proposed NPRM
paragraph (h) provided a nonexhaustive
list of mandatory terms for GovernorSecretary Agreements between the
Secretary and States, including
provisions establishing TAA Program
funds as the primary source of Federal
assistance to trade-affected workers
(proposed paragraph (h)(4)).
A State workforce agency
recommended revising § 618.804(h)(4)
to state explicitly that the costs for
services post certification ‘‘must’’
(rather than ‘‘should’’) shift from WIOA
and other programs to the TAA Program
and to provide a reference to
§ 618.615(c) as the basis for this
requirement. The services required to be
provided to petitioners, prior to a
petition determination, are funded from
WIOA. These are the rapid response
services and appropriate career services
required by section 221(a)(2)(A) of the
Act. The Department recognizes that
there may be administrative reasons,
from time to time, where allowing
WIOA to continue providing these
services after a certification as been
issued utilizing WIOA funding is
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preferred. The final rule adopts
§ 618.804(h)(4) as proposed.
The Department made a
nonsubstantive edit to correct a crossreference in paragraph (h)(2) of this
section, including correcting the section
heading of the section cited; otherwise,
the final rule adopts this section as
proposed.
Section 618.808 State Rulemaking
Section 618.808 proposed a
modification from 20 CFR 617.54 and
divided the section into paragraphs.
This proposed section provided States
with the authority and flexibility to
establish laws, regulations, procedures,
or other policies related to the
administration of the TAA Program that
are not inconsistent with Federal law or
these regulations while ensuring the
Department can still administer the
uniform interpretation of the program
throughout the United States. Proposed
paragraph (a) reworded 20 CFR 617.54
and replaced 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) retained 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
removed 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) was unchanged from 20
CFR 617.54 and required that all laws,
regulations, procedures, or policies by
the States be reviewed and approved by
the Department before taking effect. It
also authorized temporary approval by
the Department, in cases of
administrative necessity, for a period
not to exceed 90 days. Proposed
paragraph (d) allowed the Department,
after providing the State notice of at
least 30 days, to withdraw a previous
approval. Proposed paragraph (e)
differed from 20 CFR 617.54 and
required States to follow State UI law
requirements for public notice and
opportunity for hearings on rulemaking.
Proposed paragraph (e) more broadly
also required the State to follow any
other State or Federal law that may
require such public notice and
opportunity for hearing.
Two State workforce agencies asked
how the Department would approve
State rulemakings and asked for more
clarity as to whether revisions to State
regulations would require Departmental
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approval, expressing concern that
Departmental review could hinder TAA
Program operations. The Department
would like to reiterate that this
provision regarding State rulemaking is
in the previous regulations at 20 CFR
part 617. This process is not as formal
as grant modifications and the process
should not be overly complicated or
formal. States are directed to submit the
information to their TAA Program
contact at the regional office. The
regional office will work with the Office
of Trade Adjustment Assistance (OTAA)
to review the information and provide a
response to the States. This process can
occur entirely by email. Only in rare
circumstances have State rules required
significant discussion within the
Department. In general, the regional
office and OTAA are able to provide a
response to the majority of submissions
made by States in a very reasonable
amount of time. Stand-alone forms are
not required to be submitted to the
Department, although States are
encouraged to follow the same process
to receive feedback on any TAA
Program-specific forms to ensure that
they do not contain policy issues. The
final rule adopts this section as
proposed.
Section 618.812
Subpoenas
Section 618.812 of the proposed rule,
authorizing States to issue and enforce
subpoenas, was substantially the same
as 20 CFR 617.53.
One commenter wrote that States
might benefit from using subpoenas to
obtain lists of workers from employers.
The Department clarifies that States
have always had this authority,
although, until this final rule, it has
been implied rather than express. The
Department agrees that the explicit
inclusion of this authority at paragraph
(b) will improve the timeliness with
which this information is provided by
firms to the States. The final rule adopts
this section as proposed.
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Section 618.816 Trade Adjustment
Assistance Program Benefit Information
and Provision of Services to Workers
Proposed § 618.816 contained
requirements the States must meet in
providing TAA Program benefit
information and services to tradeaffected workers. The Department has
revised the regulatory text in paragraph
(e)(4) as discussed below and has made
a nonsubstantive edit to correct a crossreference to § 618.725 in paragraph
(e)(2)(vi) of this section; otherwise, the
final rule adopts the section as
proposed.
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Section 618.816(a)
Proposed paragraph (a) required
States to provide general program
information and advice to trade-affected
workers, which was very similar to 20
CFR 617.4(a), and contained only minor
language changes. This requirement
derives from the obligation in section
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.
Two State workforce agencies
requested clarification regarding the
requirement that States must provide
information about TAA Program
benefits, application procedures, and
filing dates to workers applying for UI.
Specifically, the State workforce
agencies asked about timing (i.e., pre- or
post-certification), arguing that
providing such workers with too much
information pre-certification could
confuse them because the petition for
certification may fail or the certification
may not cover all of the workers (e.g.,
because they quit or were terminated).
One of the States added that this
requirement also could increase the risk
of services being approved for those
workers who were ineligible to receive
such benefits. The Department clarifies
that this is not a new requirement. It is
also a statutory requirement, established
at section 239(g)(1) of the Act. Most
States meet this requirement with a
statement on the web-based system used
for UI claims or in the initial meeting or
initial correspondence to new UI
claimants. No changes have been made
to proposed paragraph (a) and the final
rule adopts the regulatory text as
proposed.
Section 618.816(b)
In the NPRM, the Department
proposed § 618.816(b) based on section
221(a)(2)(A) of the Act, which required
States to ensure rapid response
assistance and appropriate career
services are made available, consistent
with section 134 of WIOA, to all groups
of workers covered by a petition filed
under subpart B.
One commenter expressed several
concerns about the new requirement for
States to provide rapid response
assistance and appropriate career
services, consistent with WIOA section
134, to all groups of workers covered by
a petition filed under subpart B. The
commenter’s concerns included the
potential for the provision of services to
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workers whose petitions do not result in
certification or to workers incorrectly
identified in a petition (e.g., providing
services to the entire company where
only one subdivision of the company is
the ‘‘firm’’ covered by the certification),
as well as the potential for employers to
become ‘‘disenchanted’’ with States that
alarm and serve workers whose
employment is not actually threatened.
The same commenter suggested that the
Department should amend the provision
to require that States first investigate
whether layoffs of workers in the group
of workers are likely or have happened
and, if they can reasonably determine
that the petition is likely to be certified,
then reach out to the impacted workers.
The Department points out that this is
not a new requirement. It is also a
longstanding statutory requirement,
found at section 221(a)(2)(A) of the Act.
The requirement to provide rapid
response and appropriate WIOA career
services is statutory. The Department
cannot reduce or qualify this
requirement via regulations.
One commenter expressed concern
that, without corresponding updates to
the WIOA regulations, these proposed
regulations will not be implemented
correctly by WIOA Program staff. The
States, under the Governor-Secretary
Agreement, are bound to the
implementation of these rules. The
Governor-Secretary Agreement binds
the entire executive branch of State
governments to the terms and
conditions of the Agreement and the
implementation of the TAA Program.
This includes the implementation of the
rapid response requirement.
Section 618.816(e)(1) Through (3) and
(5)
Proposed paragraph (e) required
States to provide certain information
and assistance to trade-affected workers
after issuance of a certification covering
their worker group. Proposed paragraph
(e)(1), which was previously in 20 CFR
617.4(c), implemented section 225(a) of
the Act and required 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. Proposed paragraph (e)(3)
provided 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)(5) codified section 239(f) of the Act
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and required 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 under
this part 618. There is no direct similar
provision in the previous rule.
Two State workforce agencies
expressed concern about the practicality
of the requirement in paragraph (e)(1)
regarding the provision of benefit
information post-certification to a
variety of potentially interested parties.
Specifically, one of the State workforce
agencies said it would be
administratively burdensome to effect
such notice and maintained that States
have ‘‘no way’’ to forecast a worker
group’s training needs. The Department
maintains that this requirement is best
met through regular contact with State,
local, and regional workforce
development boards. Coordination with
rapid response also will help in
determining the training needs of
worker groups and the demand in the
local labor market. States also can use
their own data to produce projections
based on similar trade-affected workers
already enrolled in the program or
previously enrolled in the program.
States are encouraged to contact the
regional office for additional assistance
in meeting this requirement. The final
rule adopts the regulatory text as
proposed.
One commenter expressed its
understanding that the requirement in
paragraph (e)(2) concerning notice to
potential AAIWs means written notice,
as required earlier in the same
paragraph concerning notice to covered
workers. The Department affirms that
AAIWs must be provided a written
notice.
With respect to paragraph (e)(2)(i), the
same commenter recommended that the
contents of the notice should include
background information about the TAA
Program in plain language to provide
recipients with context for why they are
receiving the notice. The Department
agrees that plain language is always
preferred whenever possible but has
elected to allow States the flexibility to
customize the overall content of the
notice.
An LWDB suggested revising the
requirement in paragraph (e)(3) to
require firms to provide States with
workers’ contact information at the time
the petition is filed, rather than when a
certification has been issued. The LWDB
maintained that this revision would
align the requirement better with the
new requirement in paragraph (b)
regarding rapid response activities and
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appropriate career services, which
applies at the petition stage. A different
commenter recommended that if the
Department obtains workers’ contact
information in the course of its
investigations, then it could share that
information with the States, and the
States could confirm with the firms that
the information is still current. The
same commenter said this approach
would show the partnership between
the Department and States when it
comes to program administration. The
Department does not request a worker
list as part of its investigation because
it is not needed for a determination to
be made. The Department will, in its
communication with firms during
investigations, make them aware that
such a list will need to be provided to
the State if the petition is certified.
One commenter requested
clarification of the terms ‘‘intake’’ and
‘‘orientation’’ as used in paragraph
(e)(5). The same commenter said that
different States interpret these terms
differently. The Department concludes
that the language in the preamble to the
proposed rule, this preamble, and
subpart C of this final rule is sufficient
to address this concern and establish a
standard to be met by all States.
Section 618.816(e)(4)
Proposed paragraph (e)(4) maintained
the requirement from 20 CFR
617.4(d)(2)(i) that notice of certification
be published in a newspaper of general
circulation.
Two State workforce agencies and a
State government employee called the
proposed requirement for States to
publish notice of certification via
newspaper ‘‘antiquated’’ and
recommended making it optional by
changing the word ‘‘must’’ to ‘‘may’’ in
the first sentence of paragraph (e)(4). A
different State workforce agency
suggested that the Department should
revert to the previous requirement in 20
CFR 617.4(d)(2), which mandated
newspaper notices only if the State
could not substantiate that all workers
covered by the certification have
received written notice through the
mail. The State workforce agency also
said that placing legal notices in
newspapers is ‘‘not cheap’’ and
expressed concern that requiring such
publication would waste both staff time
and program funds for a method of
communication that, in the commenter’s
words, is ‘‘undoubtedly ineffective’’ as a
way of reaching covered workers. A
different State workforce agency also
opposed the requirement, saying that
many parts of the country do not have
newspapers anymore and, where
available, subscriptions can be costly.
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The same State workforce agency added
that for States with a high number of
petitions, the requirement could impose
time and cost burdens. The State
recommended the Department give
States flexibility around how to provide
this notice, such as through public
service announcements or electronic
methods (e.g., LWDB websites), by
accepting alternative means of
notification in place of newspaper
notices. Another State workforce agency
asked the Department to keep the
exemption from 20 CFR 617.4(d)(2),
stating that it expected the proposed
approach to increase program costs. The
State workforce agency added that
newspapers are increasingly not the
most effective means of notification
because many people consume news
online, often from outlets not based in
their area, and selectively view the
content. One commenter responded to
the Department’s request for comments
related to the definition of ‘‘newspaper
of general circulation.’’ The same
commenter said that it defines a
newspaper of general circulation as a
combination of print and digital
newspapers and public service
announcements. The Department
specifically requested comments on the
requirement that notice of certifications
be provided in a newspaper of general
circulation and appreciates the
responses. Many commenters responded
that newspaper notices were an
‘‘antiquated’’ and costly method to
notify workers of certifications. The
requirement that a notice be published
in a newspaper of general circulation is
a statutory provision at section 225(b)(2)
of the Act, so the Department may not
change the requirement. However, after
review the Department has concluded
that notice may alternatively be placed
in the online or digital version of a
newspaper if it can be reasonably
expected to reach the interested parties.
The proposed regulatory text has been
revised in the final rule to include this
option.
Section 618.816(e)(6)
Proposed paragraph (e)(6) required, in
addition to the written notices sent by
mail, that States also use one method of
modern electronic communication, such
as email, to inform trade-affected
workers of the certification.
Multiple commenters expressed
concern about the practicality of the
requirement that States, in addition to
providing mailed written notice to
workers covered by a certification of the
benefits available to them, must provide
electronic notice (e.g., text or email) to
the workers. Several of the commenters
recommended making this extra step
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optional rather than required. One
commenter requested clarification on
whether the requirement could be met
through communications on social
media. Another commenter said that the
requirement does not appear to include
a mechanism for States to require that
firms provide workers’ mobile phone
numbers or email addresses to them,
such as the subpoena power in
proposed § 618.812 by which States may
obtain workers’ names and mailing
addresses. The same commenter also
said that firms may not collect this
information from their workers and
some workers may not use mobile
phones or email. Similarly, a different
commenter stated that use of electronic
communications is not universal among
workers, and it expressed concern that
the requirement would discriminate
against those workers, such as older or
lower skilled workers, who are not as
‘‘technology savvy’’ as others, such as
younger or higher skilled workers.
Another commenter said the
requirement could result in
‘‘burdensome cost’’ for workers who
have mobile phones but do not have
unlimited messaging or data plans. The
same commenter also raised the
potential for this requirement to result
in misdirected messages containing
personal information for those workers
who share electronic accounts. In
contrast, a State workforce agency
agreed with the requirement, saying it
supported efforts to improve
notification, promote experimentation
with potentially more effective methods
of engagement, and encourage a more
technological and data-driven approach
to program administration. The
Department clarifies that the rule, as
written, gives examples of alternative
contact methods, including through an
email or text message if the contact
information is known. If the State does
not have an email address or mobile
phone number of the trade-affected
worker, then other methods of
electronic communication, including
postings made to social media or a
website, would satisfy this requirement.
States must safeguard any personal data
and ensure costs are reasonable.
One commenter also questioned how
a State would document its electronic
communications in the worker’s file and
asked whether it would require printing
out all emails or texts sent to the
worker. The Department clarifies that
there is no requirement that a State print
out emails or texts; case notes are often
sufficient for documenting these
activities. The State must comply with
record retention requirements in the
Uniform Guidance at 2 CFR part 200.
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Section 618.816(f)(1)
Proposed paragraph (f) required States
to provide specific benefit assistance to
trade-affected 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 section 35(b)(1)(B) of the
Internal Revenue Code of 1986 (26
U.S.C. 35(b)(1)(B)). Proposed paragraph
(f)(1) was modeled on 20 CFR
617.4(e)(1) but was rephrased for clarity.
One minor change from 20 CFR
617.4(e)(1) is that proposed paragraph
(f)(1) omitted the reference to UI
claimants because it might be confusing.
One commenter argued that, because
not all trade-affected workers will want
to be advised of what benefits are
available and how to apply, it may be
more ‘‘realistic’’ to instead require
States to provide workers an
opportunity to receive this information,
similar to how proposed paragraph (f)(2)
of this section addressed the possibility
that a worker will decline an intake
interview. The statute requires not only
that all trade-affected workers be
notified of the benefits and services
available under the TAA Program, but
that all UI claimants in the State be
made aware of these benefits. Neither of
these is a new requirement established
by the final rule and both are required
by statute. The final rule adopts the
regulatory text as proposed, with edits
to the use of pronouns in paragraphs
(f)(1) and (2).
Section 618.824 Liable State and
Agent State Responsibilities
Proposed § 618.824, concerning the
respective responsibilities of a liable
State and agent States, updated 20 CFR
617.26 to reflect sections 235, 237, 238,
and 245 of the Act and reorganized the
requirements.
Proposed paragraph (a) was largely
unchanged from 20 CFR 617.26(a) but
reordered information and divided it up
into subordinate paragraphs. Proposed
paragraph (a)(3)(i) added the
requirement for liable States to provide
rapid response and appropriate career
services (as described in section 134 of
WIOA) to a group of workers for whom
a petition is filed as required by section
221(a)(2)(A) of the Act. Proposed
paragraph (a)(3)(ii) was new and
provided 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.
Proposed paragraph (a)(3)(iii) was new
and had no comparable counterpart in
existing regulations or in administrative
guidance. It clarified for the first time
that, in some instances, the liable State
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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) updated
language from 20 CFR 617.26(a) but has
the same meaning.
Proposed § 618.824(b) was largely
unchanged from 20 CFR 617.26(b) but
reordered information and divided it up
into subordinate paragraphs. Proposed
paragraph (b)(7) was new and
established that the agent State is
responsible for the payment of job
search and relocation benefits.
One commenter agreed with the
intent but questioned the enforceability
of paragraphs (a)(3)(i) and (ii) of this
section, which require a liable State to
provide workers covered by a petition
with rapid response assistance and
appropriate career services, including
career services authorized under nonTAA Program Federal laws (e.g., WIOA).
The requirement to provide rapid
response and appropriate career services
was established directly by WIOA
section 512(hh). This is also enforceable
under the Agreement executed between
the Governor and the Secretary.
A State workforce agency said that the
requirement in paragraph (a)(5) that a
liable State must provide the IRS a list
of eligible TAA Program recipients and
eligible RTAA recipients for HCTC
purposes would mean changing their
reporting or data systems to make such
information available. The State
workforce agency commented that at
present it provides the IRS a list of only
those workers eligible for the TAA
Program who have received RTAA,
TRA, or UI payments. The Department
explains that HCTC is a tax credit
managed by the IRS, the details of
which are not covered by this rule. The
Department directs States to
administrative guidance related to the
HCTC, which provides explicit processrelated reporting instructions. The
Department encourages the commenter
to contact the appropriate regional office
for additional technical assistance.
Two commenters raised concerns
about paragraph (b)(7) of this section,
which establishes responsibility for
payment of job search and relocation
allowances with the agent State. One of
the commenters asserted that involving
the agent State could unnecessarily
complicate the administration of these
benefits. The other commenter said that
sometimes workers request the
allowances before departing the liable
State. The commenter requested
clarification about how States should
respond in such cases. The Department
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clarifies that there is only an agent State,
other than the liable State, if the AAW
has accessed services outside of the
worker’s liable State. No agent State
exists if the worker is simply seeking to
travel to another State under a job
search allowance or is relocating to
another State. Until such time as the
worker seeks services in another State,
the liable State is both the liable and
agent State. The Department made
nonsubstantive edits in paragraph (a)(4)
of this section to correct two crossreferences to the section headings of
different sections; otherwise, the final
rule adopts the section as proposed.
Section 618.832 Overpayments;
Penalties for Fraud
Section 618.832 of the proposed rule,
concerning overpayments, fraud, and
penalties for fraud, generally repeated
20 CFR 617.55, but reorganized the
section for clarity.
Proposed § 618.832(a)(3) provided
that trade-affected workers be provided
a reasonable opportunity to demonstrate
that they were without fault and unable
to repay their TAA Program
overpayments and, therefore, a
‘‘financial hardship’’ exists if recovery
of an overpayment would result in a
person’s (or their household’s) loss of or
inability to pay for ordinary and
necessary living expenses.
Proposed § 618.832(e) discussed the
State’s responsibilities to recover
overpayments.
A commenter wrote that the
provisions on overpayments should
align with those found in State and
Federal UI laws. The same commenter
added that the proposed overpayment
rules could lead to more confusion and
appeals. A different commenter said
States should establish policies to
ensure that program participants receive
certificates from their training and
should define financial hardship
through their own policies. Another
commenter stated that imposing a
national standard for financial hardship
is problematic, but recommended using
standards for ‘‘hardship to repay,’’ such
as the IRS Collection Financial
Standards. One commenter wrote that
their State lacks a mechanism for
retrieving training overpayments.
Another commenter asked if States are
required to collect overpayments. The
Department explains that the
requirement for States to collect
overpayments is not a new one. The
language used in this rule is based on
the statute and previous regulations at
20 CFR 617.55(c). Overpayments for
training, RTAA, supplemental
assistance, etc. are subject to the same
requirements as TRA overpayments.
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The Department will provide training
and technical assistance on this topic,
but the final rule adopts the regulatory
text as proposed, except for edits to the
use of pronouns in paragraph (a).
Proposed paragraph (b) was
substantially the same as 20 CFR
617.55(b), but reordered and slightly
reworded the language. It provided 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.
A few commenters wrote that this
approach in paragraph (b) of permanent
ineligibility for benefits as a result of
fraudulent receipt of program benefits is
overly aggressive as it would exacerbate
the economic harm suffered by workers.
Another commenter agreed and
recommended that punishments for
fraud be incrementally more severe,
based on the number of violations
committed. The Department clarifies
that where fraud was committed in
relation to the TAA Program, section
243 of the Act is clear that the tradeaffected worker is no longer eligible for
payments under the TAA Program. The
Department explains that the lifetime
ban on TAA Program benefits in the
statute and in 20 CFR 618.832(b) is only
related to fraud committed under the
Act, not other instances of fraud under
other State or Federal statutes. This is a
statutory requirement, and the final rule
adopts the regulatory text as proposed.
Proposed § 618.832(d) provided that
when a trade-affected worker fails to
complete a TAA Program approved
training, job search, or relocation with
good cause, any TAA Program payment
or portion of a payment to such worker
is not an overpayment. One commenter
wrote that States should have policies in
place to define ‘‘good cause’’ for failure
to complete a training, job search, or
relocation. The same commenter
requested that the Department provide
examples of failed RTAA activities. The
Department explains that in most States,
the determination of good cause is
determined through case law and
previous adjudications under applicable
State law. With regard to failed RTAA
activities, the Department provides
examples such as the failure to provide
the State with pay stubs or other
required documentation to support
continued eligibility and to ensure
proper benefit payments. The
Department adopts the regulatory text in
this section in the final rule as
proposed, except for a technical change
to the language at § 618.832(h)(1)(i)
where the Department changed the
words ‘‘an agreement’’ to ‘‘a Governor-
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Secretary Agreement’’ for added
specificity.
Section 618.852 Recordkeeping and
Disclosure of Information Requirements
Proposed § 618.852 repeated the
requirements in 20 CFR 617.57
concerning recordkeeping and
disclosure of information but made a
few changes.
Proposed paragraph (a) was very
similar to 20 CFR 617.57(a), with two
changes. First, proposed paragraph (a)
omitted a reference to reporting form
ETA 563. This particular report is no
longer required. Rather, required
reporting will be governed by § 618.864
of the final rule. Second, proposed
paragraph (a) added 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 contained
a cross-reference 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)
required 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. One commenter wrote
that requiring program administrators to
retain files indefinitely would be
needlessly burdensome. The
Department clarifies that there is no
requirement for indefinite retention of
records. Section 618.852 provides
recordkeeping requirements to which
States must adhere and refers to the
Uniform Guidance at 2 CFR 200.333. If
a trade-affected worker applies for a
training benefit after records are no
longer available, the worker can be
asked to supply information that will
verify that he or she was part of a
certified worker group. The
documentation burden would shift from
the State to the worker. The Department
made a nonsubstantive edit in
paragraph (a)(2)(i) of this section to
correct a cross-reference to the section
heading of a different section;
otherwise, the final rule adopts the
section as proposed.
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Section 618.860 General Fiscal and
Administrative Requirements and Cost
Classification
Proposed § 618.860 was a new section
that contained general fiscal and
administrative requirements applicable
to State administration of the TAA
Program. It was modeled on WIOA
regulations, but with significant
differences. Proposed § 618.860
contained no requirements that States
were not already required to meet. The
final rule adopts the regulatory text as
proposed.
Proposed paragraph (b) provided
guidance on cost classification as
administrative costs under the TAA
Program, as authorized by section 235A
of the Act and described in each TAA
Program Annual Funding Agreement
that States are required to submit
annually. Paragraph (b)(1) provided that
the Department will include each fiscal
year’s administrative cost limitation in
grant documents or annual funding
agreements. Proposed paragraph (b)(2)
provided that the costs of
administration in the TAA Program are
the costs associated with performing the
overall general administrative functions
of the TAA Program, as described in
paragraphs (b)(2)(i) through (xviii) of
this section, and the coordination
thereof within the American Job Center
network established under WIOA.
One commenter requested examples
of items under § 618.860(b)(2) that could
be funded with employment and case
management funds. Without additional
context, the Department cannot provide
a specific list. Employment and case
management funds can be used for the
costs of provision of activities found in
§ 618.310, among other things. The
Department has technical assistance
available on its website and will be
providing training and additional
technical assistance on this topic. To
resolve individual case scenarios, we
encourage contacting the appropriate
regional office for additional assistance.
One commenter supported the
provision at paragraph (i) that requires
States to dedicate a portion of
administrative and employment and
case management funding to MIS
development, saying its State’s use of
MIS indicates that other States could
benefit from improving their MIS. The
Department appreciates this support
and the final rule adopts § 618.860 as
proposed, with the exception of a
spelling correction in paragraph
(d)(2)(ii)(C).
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Section 618.864 Trade Adjustment
Assistance Program Performance
Section 618.876 Verification of
Eligibility for Program Benefits
Section 618.864 of the proposed rule
contained TAA Program performance
requirements, as established by section
239(j) of the Act. This provision uses the
term ‘‘worker,’’ consistent with the
statute. For purposes of § 618.864, the
term ‘‘worker’’ means a trade-affected
worker. Proposed paragraph (a) required
States to report specified data on TAA
Program performance outcomes to the
Department and required 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. Paragraph (b)(2)
related to the credential attainment
indicator in paragraph (b)(1)(iv) and
provided 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.
An LWDB stated that the credential
attainment indicator in proposed
§ 618.864(b)(1)(iv) uses all TAA Program
workers in its denominator, contrasting
this calculation with the WIOA
approach of including only workers of
an education or training program in the
denominator. The commenter stated
that, based on the regulatory text, a
worker that received only employment
and case management services would be
included in the credential measure. The
Department clarifies that, under WIOA,
only workers enrolled in an education
or training program (excluding OJT and
customized training) are counted in the
denominator of this measure. The same
LWDB said that § 618.864(b)(1)(iv), as
drafted, does not align with 20 CFR
677.155(a)(1)(iv)(A) of the WIOA final
rule because WIOA limits the measure
to those in training. The Department has
reviewed both statutes, the WIOA Final
Rule, and the proposed regulatory text
and concurs with the commenter that
this should align with WIOA. Therefore,
the Department has revised the
regulatory text at § 618.864(b)(1)(iv) in
the final rule to align with WIOA by
limiting this measure to those in
training and eliminated an unnecessary
‘and’ in 618.864(b)(ii).
Section 618.876 of the proposed rule
implemented the requirements at
section 239(k) of the Act for States to
verify a trade-affected worker is in
satisfactory immigration status.
Proposed paragraph (a) provided that a
trade-affected worker must be
authorized to work in the United States
in order to be eligible to receive benefits
under the TAA Program. This provision
required States to verify the status of
participants who are not citizens or
nationals of the United States. Proposed
paragraph (b) required initial
verification by States of the immigration
status of self-reporting aliens who apply
for UI through the U.S. Customs and
Immigration Service’s Systematic Alien
Verification for Entitlement (SAVE)
program. Proposed paragraph (c)
required States to reverify a
participant’s eligibility if the
documentation upon which eligibility
was based expires during the period in
which TAA benefits are received.
One commenter asked whether
verification of eligibility for program
benefits is the responsibility of the
liable State or the agent State.
Verification is the responsibility of the
liable State, which is the State in which
the trade-affected worker establishes UI
eligibility until such worker establishes
eligibility in another State. If the worker
is receiving services in the agent State,
the agent State assists the liable State in
the verification. Agent States should
contact liable States (and vice versa) to
confirm that an initial verification was
conducted. The final rule adopts the
regulatory text as proposed.
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Section 618.888
Equitable Tolling
Section 618.888 of the proposed rule
originated from administrative
guidance. Proposed paragraph (a) of this
section provided that TAA Program
deadlines may be equitably tolled when
an extraordinary circumstance
prevented a trade-affected worker’s
timely action and the worker otherwise
acted with diligence.
Proposed paragraph (b) set out a
burden-shifting framework for equitable
tolling in one unique circumstance—
when the State fails to give required
notice to a trade-affected worker of a
particular benefit (or potential benefit),
thus permitting the deadline for that
benefit (or potential benefit) to run
without the worker’s knowledge. In
such an instance the failure to provide
notice would constitute prima facie
evidence of an extraordinary
circumstance. Proposed paragraph (b)
emphasized to States the importance of
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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) limited the
time period for tolling to the period
during which the extraordinary
circumstance existed.
Finally, proposed paragraph (d) set a
limit on how long a deadline may be
equitably tolled: 36 Months. The 36month limit strikes a balance between,
on the one hand, fairness and equity for
individual trade-affected workers and,
on the other, the need for clarity and
efficiency in the operation of the
program as a whole.
Multiple commenters supported the
inclusion of the equitable tolling
provision and its 36-month limit. The
Department appreciates this support.
One commenter asked under what
circumstances a State could toll a
deadline for 36 months. Other
commenters generally asked for
clarification on paragraph (d) of this
section, which establishes the 36-month
timeframe. One of the commenters
recommended that States be allowed to
exceed the 36-month deadline if funds
are available. In creating the maximum
extension period, the Department seeks
both to allow claimants who were
prevented from timely filing for TAA
Program benefits due to extraordinary
circumstances ample time to file and to
ensure that the information States
require to administer the TAA Program
is still attainable following the passage
of time. For example, where a tradeaffected worker has not received notice
of eligibility, the Department maintains
that 36 months is a more than sufficient
period of time for a reasonably diligent
worker to discover his or her eligibility
and apply for benefits. The Department
has determined that, where equitable
tolling of a deadline is applicable, a 36month maximum extension period is a
reasonable limit. The final rule adopts
the regulatory text as proposed.
One commenter requested that the
Department clarify the respective
meanings of ‘‘required notice’’ and
‘‘actual notice’’ in paragraph (b)(2). The
Department explains that in this
example, a required notice would be the
standard notice of benefits or eligibility
issued under various subparts of this
rule, versus actual notice, which could
be a case manager informing the tradeaffected worker of a deadline or other
requirement during the provision of
services. The final rule adopts the
regulatory text as proposed.
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Section 618.890 Staffing Flexibility
In 2010, the Department revised the
TAA Program regulations by requiring,
for the first time by regulation, that
States administer the TAA Program
strictly through staff meeting Federal
merit personnel criteria.11 As the
Department noted then, ‘‘the Trade Act
does not directly address merit staffing’’
and so the initial ‘‘promulgation of the
merit staffing rule [was] within the
discretionary authority delegated to’’ the
Department ‘‘to interpret the Trade Act
and administer the TAA program.’’ 75
FR 16988, 16990 (Apr. 2, 2010). In
§ 618.890 of the NPRM, the Department
proposed to exercise its discretion by
removing this mandate on States except
for certain positions. The NPRM gave
several reasons for this discretionary
policy change, chief among them that
staffing flexibility could help States
better integrate the TAA Program with
WIOA services.
Many commenters supported the
proposal. One commenter generally
supported the proposed staffing
flexibility. Another commenter stated
that the proposal would allow for better
integration of the TAA Program and
WIOA services. Other commenters
stated that the proposal would result in
cost savings or financial flexibility. One
commenter affirmed that staffing
flexibility is appropriate for its needs
and would provide cost savings to it
with respect to the delivery of case
management services. Another
commenter stated that it would allow
States to shift local area costs for case
management and employment services
from WIOA to the TAA Program.
Another commenter similarly stated that
the proposed flexibility would relieve
the financial burden imposed by the coenrollment requirement.
Several LWDBs commented that the
proposed staffing flexibility does not
provide enough flexibility and
recommended that the Department
follow the model of Michigan’s pilot
program. Under this pilot program, the
State allocated TAA Program funds to
LWDBs while requiring that merit staff
provide services. The commenters
advocated taking language from the
Department’s then-proposed WagnerPeyser staffing rule 12 on staffing
flexibility that emphasized the variety of
staffing options available to States,
including continued use of merit staff,
and identified a number of staffing
models that may fit States’ needs better,
such as the use of local area staff or
11 Merit staffing requirements had been part of the
Governor-Secretary Agreements from 1975 to 2005.
12 See 84 FR 29433 (June 24, 2019). The rule has
since been finalized. See 85 FR 592 (Jan. 6, 2020).
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51957
contractors. In developing these
regulations, the Department considered
all aspects related to merit staffing. The
Department appreciates these comments
and notes again that the flexibility
provided by this rule permits States to
use a wide variety of staffing models. No
changes to the regulatory text have been
made in response to these comments or
those below.
General Comments Regarding the New
Flexibilities
Other commenters had questions
about or were opposed to this aspect of
the Department’s proposal. Some
questioned the staffing flexibility
proposal generally. One commenter
characterized the proposal as aligning
the Department’s staffing policy with
the Department’s then-proposed
Wagner-Peyser staffing rule and
requested further analysis of TAA
Program service delivery models before
implementing the proposal. Another
commenter cited administrative
guidance as indicating that merit
staffing is an important, longstanding
element of the TAA Program. A
different commenter argued that there
were insufficient data to show that
eliminating merit staffing would make
the TAA Program more efficient. One
commenter contended that privatization
of government services has historically
harmed public services in Texas and no
evidence indicates the proposed
flexibility would be any different.
Likewise, other commenters cited
studies for the proposition that
privatization decreased efficiency in
administering SNAP, where programs in
Indiana and Texas provided fewer
benefits at excessive costs. Another
commenter provided what it viewed as
other examples of privatized services’
shortcomings, such as—according to the
commenter—endemic corruption,
failing to communicate with the served
population, and neglecting to protect
the privacy of records.
The offer of staffing flexibility to
States is intended to allow them, where
they see fit, to better integrate the TAA
Program when helping workers. This
integration includes allowing non-merit
staff to charge their time to the TAA
Program, including and especially at the
one-stop delivery service level. In States
that would like to do so, and where it
is otherwise appropriate for them to do
so, this better integration is expected to
help service delivery in several ways.
This change allows States to implement
a seamless service delivery model where
a trade-affected worker will not need to
move from case manager to case
manager depending on their merit staff
status. Cost allocation of employment
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and case management services costs will
also be simpler as the merit staff status
of case managers will be irrelevant for
time-charging.
While the Department appreciates
commenters’ concerns derived from
studies of two States’ SNAP experience,
SNAP is a different program with
different statutory and regulatory
requirements. States considering using
this final rule’s staffing flexibility are
encouraged to consider the range of
experiences other programs have had,
including those noted in relevant
research, or to conduct their own
evaluations or pilot projects. States can
also use lessons learned from other
efforts as they decide whether to use the
staffing flexibility in this final rule.
States are in the best position to
determine the staffing model that will
best control their costs and serve their
workers.
But regardless of how States choose to
provide services under the TAA
Program, they are still grantees of the
TAA Program subject to the
Department’s oversight. States must
oversee all operations of TAA Program
activities and are still subject to the
oversight and monitoring commitments
at § 618.860(d)(2). The Department will
continue to monitor States to ensure
they are complying with all
requirements of the TAA Program, this
part 618, and 2 CFR parts 200 and 2900.
The Department will hold States
responsible for violations of regulations,
the statute, and the Uniform Guidance.
Finally, the Department is not
mandating that States change their
staffing models, much less mandating
privatization. In fact, many of the local
area providers of WIOA services are
municipal and county employees, not
private-sector employees, and they
would presumably remain so if used
under the flexibilities provided by this
rule. Where States have found that
retaining Federal staffing criteria is the
best approach for service delivery, they
need not change that approach.
Staffing Models for Federal Entitlements
Multiple commenters argued that
TAA Program service provision is an
essential governmental function and
only merit staffing can effectively
deliver Federal entitlements such as
TAA Program services. The same
commenters quoted the 2010 rule that
imposed Federal staffing requirements
to argue that merit staff are unbiased,
nonpartisan public servants who
safeguard the interests of the population
served and the public at large. These
commenters further wrote that, in their
view, merit staffing removes incentives
for service providers to favor more
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readily employable candidates in order
to inflate their job placement numbers.
The commenters stated that the 2010
rule’s description of the TAA Program,
with its emphasis on accountability and
transparency, makes the program more
analogous to merit staffed UI and ES
programs than WIOA. Another
commenter cited a study for the
proposition that publicly administered
services better reduce inequality than do
privatized services, which incentivize
competitors to prioritize whom to serve
and how according to their contractual
incentive structure. The same
commenter also cited another study for
the proposition that privatizing
administrative services does not reduce
costs, as competition for administrative
services is subject to high barriers to
entry, including the complex nature of
administrative services work and the
necessity of long-term contracts.
The Department believes that
allowing non-merit staff to charge their
time to the TAA Program does not
reduce transparency or limit access to
the benefits available under the Act. In
many areas, this additional flexibility
will increase the level and timeliness of
services available to trade-affected
workers by allowing States to deploy
resources faster by accessing additional
providers that would not have been
previously available with TAA Program
funding. And while some States may
find that merit staff serve workers
admirably and fairly, that does not mean
that they are the only personnel who
can do so. States can structure their
staffing arrangements to avoid perverse
incentives and to ensure that TAA
Program staff perform their duties with
fairness, equality, and professionalism.
Any funds expended under the TAA
Program are subject to the same
oversight requirements regardless of
which type of entity expends those
funds and the States, as the recipients
of the grants, are ultimately responsible
for the expenditure of these funds.
Quality and Uniformity of Service
Some commenters contended that
Federal merit personnel requirements
foster uniform or quality service. One
commenter argued that case
management and employment functions
are so closely intertwined with merit
staffed eligibility and compliance
functions that they also should be
subject to Federal merit staffing
mandates. The commenter also wrote
that the complexity of the TAA
Program, especially in TRA
requirements, necessitates the use of
trained and experienced personnel such
as State merit staff. Another commenter
disagreed with the proposed rule’s
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characterization of State merit staffing
as ‘‘one-size fits-all,’’ arguing that State
merit staff provide professional services
with a close understanding of the needs
of their region. The commenter said that
its State’s individual staff and unit as a
whole has greater experience because of
merit staffing requirements, and that the
staff adhere to statewide performance
standards and provide consistent, highquality service crucial to the TAA
Program. Another commenter stated
that, for the TAA Program, merit staffing
delivers services more efficiently than
local area delivery models. This
commenter and others maintained that
because TAA Program services are
triggered by specific events and entail
services distinct from those of WIOA,
State merit staffing provides a timely
surge of workers trained to provide
services for TAA Program certifications.
These commenters contrasted this to
cross-training local area staff who would
only periodically use TAA-specific
rules. The commenters further argued
that because funding for case
management is very limited, splitting
the funding among local areas is
impractical.
This rule’s flexibility does not require
States to change their merit staffing
arrangements if they are working well,
as may be the case in these commenters’
States. But the flexibility of this rule
acknowledges that other staffing models
can also provide high-quality services.
States can make those decisions as they
know their programs best, provided they
continue to meet the Department’s
requirements for, among other things,
efficiency and quality service. The
Department expects all services
provided through Federal funds to be
consistent and high quality. This is a
key focus of the Department’s oversight
of all the grants it administers. And it
holds true regardless of the nature of the
entity—public or private, State or
local—that ultimately delivers services.
The Department’s high expectations
of staff provided under other models has
been borne out by experience. There are
already several States where nearly all
employment and case management
services are provided by non-merit staff.
This has been accomplished through coenrollment under WIOA. The
Department’s oversight of these States
has not uncovered any of the potential
problems raised by the commenters
here. The Department concludes there is
no additional appreciable risk of
compliance issues by allowing
employment and case management
services to be fully funded by the TAA
Program, regardless of which type of
entity provides these services. In
addition, this final rule requires that
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determinations be rendered by State or
State merit staff and all determinations
rendered under the TAA Program be
subject to review by the Department.
Finally, regarding the specific point
about the need for a timely surge of
staff, at times the Department has found
merit staffing requirements to impede
surge capacity. Beginning during the
Great Recession, many Governors
established hiring freezes at the State
level, even if the positions were
federally funded. This left many States
understaffed and unable to respond to
large dislocation events, especially in
rural areas. This final rule provides
States with additional flexibility to meet
the needs of trade-affected workers.
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Accountability
Multiple commenters stated that merit
staffing provides a better system of
accountability than other systems,
writing that trade-affected workers can
raise concerns to State officials who
have direct authority over merit staff.
Another commenter recommended that
the Department ensure that private
providers be accountable. One
commenter proposed requiring that
TAA Program service contracts name
workers as third-party beneficiaries,
giving them a private right of action to
enforce the terms of the contract.
The Department believes that this
final rule includes adequate safeguards
for accountability and transparency.
While employees are accountable to
their State employers, so are contractors
and others who implement State
requirements. In turn, States remain
responsible for monitoring service
providers to ensure that funds are
appropriately spent and services are
appropriately provided. The Uniform
Guidance at 2 CFR part 200 establishes
the foundation of accountability for all
entities that expend Federal funds and
will continue to be applied here. In
addition, the Governor-Secretary
Agreement and the grant agreements
executed by the States provide
accountability and transparency.
Merit Staff and WIOA Co-Enrollment
Several commenters wrote that the
current rules allow for integration
between the TAA Program and WIOA
services through co-enrollment and the
provision of both TAA Program and
WIOA services at one-stop centers. One
commenter added that TAA Program
services are already integrated with
WIOA services into one-stop operations,
with TAA Program funding providing
for case management by State merit ES
staff. The same commenter wrote that
the relationship between ES and the
TAA Program would make it easier for
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current TAA Program merit staff to
adapt to the proposed co-enrollment
requirement. The Department has found
that the combination of the changes to
the merit staffing provisions and the
requirement to co-enroll trade-affected
workers in WIOA represents one of the
most significant steps towards service
integration since the original
development of the one-stop service
delivery model.
Other Comments on Staffing Flexibility
Several commenters stated that WIOA
providers are not accustomed to
processing appeals regarding a
government service and WIOA
providers have greater discretion in
granting benefits. The Department
clarifies that this final rule makes no
changes to the handling of appeals. All
appeals under the TAA Program are
subject to the same process utilized for
appeals under the UI program, which
has a merit staffing requirement.
A different commenter asked if all
determinations regarding program
benefits would need to be approved by
State merit staff only or by any State
staff. Section 618.890(b) provides that
determinations under the TAA Program
can be made by either State merit staff
or State non-merit staff subject to the
restriction regarding redeterminations in
§ 618.890(a).
I. Subpart I—Allocation of Funds to
States for Training and Other Activities
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. Subpart I
addresses the Act’s provisions at
sections 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 subpart I also
addresses the recapture and reallocation
provisions established by section 245(c)
of the Act.
The Department received no
comments relating to proposed
§§ 618.900, 618.910, 618.920, 618.930
and 618.940. Accordingly, the
Department adopts these provisions into
the final rule as proposed. As discussed
further below, the Department received
only one comment in relation to subpart
I.
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Section 618.950 Recapture and
Reallocation of Training and Other
Activities Funds
Section 618.950 of the proposed rule
provided the description of recapture
and reallocation procedures that the
Department may use to implement the
recapture and reallocation provisions of
section 245(c) of the Act.
One commenter expressed concern
that recapture by the Department of
allocated funds that remain unobligated
after a certain period of time could leave
States ‘‘very vulnerable’’ if, following
recapture, a large petition is certified.
The same commenter asked whether
States could take back recaptured funds
and argued a better approach would be
to align the TAA Program recapture and
reallocation provisions with the WIOA
reallotment procedures found at 20 CFR
683.135. The Department clarifies that
for unforeseen situations, a State may
always request TAA Program reserve
funds using the Reserve Funds Process
set forth at § 618.920, TAA Program
Reserve Funds. Unlike WIOA, the TAA
Program is a mandatory entitlement
with ‘‘capped’’ funds for training;
however, 35 percent of FY training
funds are held in reserve for exactly this
reason (i.e., States experience
unexpected/unforeseen events that
require additional funds). Further, the
Department will only recapture funds
after having consulted with the State.
The final rule adopts the section as
proposed.
IV. Agency Determinations
A. Legal Authority
The Act established the programs
collectively known as the 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)). Until this final
rule, the Department’s regulations under
the Act, codified at 20 CFR parts 617
and 618, and 29 CFR part 90, had not
been fully updated in response to the
various statutory amendments to the
Act. As a result, some portions of the
regulations may not have reflected
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 is issuing this final rule to
update and consolidate the regulations
in order to fully implement all statutory
amendments to the TAA Program.
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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 OMB review (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,
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. OMB has
determined that this rule is significant
under section 3(f) of E.O. 12866.
Pursuant to the Congressional Review
Act (5 U.S.C. 801 et seq.), OIRA has
designated this rule as not a ‘‘major
rule,’’ as defined by 5 U.S.C. 804(2).
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.
Outline of the Analysis
Section IV.B.1 describes the need for
this final rule, and Section IV.B.2
describes the process used to estimate
the costs of this final rule and the
general inputs used, such as wages and
number of affected entities. Section
IV.B.3 discusses the public comments
received in response to the NPRM.
Section IV.B.4 explains how the
provisions of this final rule will result
in quantifiable costs, cost savings, and
transfer payments, and presents the
calculations the Department used to
estimate them. In addition, Section
IV.B.4 describes the qualitative costs,
transfer payments, and benefits of this
final rule. Section IV.B.5 summarizes
the estimated first-year and 10-year total
costs, cost savings, net cost savings, and
transfer payments of this final rule.
Finally, Section IV.B.6 describes the
regulatory alternatives that were
considered during the development of
this final rule.
Summary of the Analysis
The Department estimates that this
final rule will result in costs, cost
savings, and transfer payments. As
shown in Exhibit 1, this final rule is
expected to have an average annual cost
of $5,596 and a total 10-year cost of
$39,305 (with 7-percent discounting).
This final rule is estimated to have
annual cost savings of $75,316 and total
10-year cost savings of $528,988 (with 7percent 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,
this final rule is estimated to result in
annual transfer payments of $898,927
and total 10-year transfer payments of
$6,313,684 (with 7-percent discounting).
The Department estimates that this final
rule will result in net cost savings of
$597,559 discounted at 3 percent and
$489,683 discounted at 7 percent, both
expressed in 2019 dollars. For the
purpose of E.O. 13771, the annualized
net cost savings in 2016 dollars, over a
perpetual time horizon, is $50,902
discounted at 7 percent.13
EXHIBIT 1—ESTIMATED MONETIZED COSTS, COST SAVINGS, NET COST SAVINGS, AND TRANSFER PAYMENTS OF THE
NPRM
[2019 dollars]
Costs
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 .....................................................................
$50,192
44,902
39,305
5,019
5,264
5,596
Cost
savings
$753,160
642,461
528,988
75,316
75,316
75,316
Perpetuated Net Cost Savings a with 7% Discounting (2016 dollars) .............
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a Net
Net Cost
savings a
$702,968
597,559
489,683
70,297
70,052
69,720
Transfer
payments
$8,989,265
7,668,025
6,313,684
898,927
898,927
898,927
$50,902
Cost Savings = [Total Cost Savings] ¥ [Total Costs].
The costs of this final rule 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 this final rule 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 IV.B.4 (Subjectby-Subject Analysis) below for a
detailed explanation.
13 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 2019 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. The
savings are then discounted by 4 years at 7 percent
annually to reflect that the rule will not take effect
until 2020.
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The Department was unable to
quantify one cost, three transfer
payments, and the benefits of this final
rule. We describe these costs and
transfer payments, along with the rule
benefits, qualitatively in Section IV.B.4
(Subject-by-Subject Analysis).
1. Need for Regulation
On June 29, 2015, the Trade
Preferences Extension Act of 2015 (Pub.
L. 114–27) was signed into law. Title IV
reauthorizes the TAA Program for
Workers program through 2021; it is
known as TAARA 2015.
The regulations governing the TAA
Program were last updated in 1994, with
only minor changes made in 2007 14 and
2010. Since that time, multiple TAA
Program amendments have occurred. In
addition, a 2014 reform of the public
workforce system, WIOA, reaffirms the
TAA Program as a mandatory partner
program in the one-stop delivery
system.
Prior to this final rule, the Department
had addressed all TAA Program
amendments through administrative
guidance. As a result, a combination of
regulations and a patchwork of
administrative guidance guided the
worker-group certification process at the
Federal level and the administration of
individual benefits and services at the
State level.
This final rule will promote
transparency by setting out in binding
regulation the major principles by
which the TAA Program operates,
which will provide the public and
courts with the Department’s
authoritative interpretation of the Act.
This final rule also will include changes
that increase States’ flexibility to
administer the program, improve service
delivery, and reduce costs. In addition,
this final rule will incorporate
clarifications that draw upon the
Department’s expertise gained from
decades of experience operating the
TAA Program.
Through this final rule, 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
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
amendment of the TAA Program
restored the major expansions in TAA
Program worker group eligibility to
service sector workers and workers who
are affected by trade from any country,
including countries that do not have
51961
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
this final rule 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.15 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
this final rule (i.e., costs, cost savings,
transfer payments, and benefits that
accrue to entities affected). The analysis
covers 10 years (2020 through 2029) to
ensure it captures major costs, cost
savings, and transfer payments that
accrue over time. With the exception of
analyses required under E.O. 13771, the
Department expresses all quantifiable
impacts in 2019 dollars and uses 3- and
7-percent discounting following OMB
Circular A–4.
Exhibit 2 presents the number of
entities that will be affected by the
requirements of this final rule. The
Department provides these estimates
and uses them throughout this analysis
to estimate the costs, cost savings, and
transfer payments of this final rule.
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
24
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 January 23, 2020.
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 2019.
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.
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Estimated Number of Workers and Level
of Effort 16
The Department presents the
estimated average number of trade14 Minor
changes were made to 29 CFR part 90.
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affected 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
15 Current administrative guidance related to the
TAA Program can be found at https://
www.doleta.gov/tradeact/law/directives-guidance/.
16 Trade Act Participant Report (TAPR)—State
quarterly reporting and record keeping information;
Management Information System (MIS)—OTAA’s
petition database. (2020). Unpublished data.
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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.
Compensation Rates
In the subject-by-subject analysis, the
Department presents the labor and other
costs associated with the
implementation of the provisions of this
final rule. Exhibit 3 presents the
compensation rates for the occupational
categories expected to experience a
change in the level of effort (workload)
due to this final rule. We use BLS mean
hourly wage rates for State government
and private sector employees.17 18 19 We
use Office of Personnel Management
(OPM) and U.S. courts wage rates for
Federal employees.20 21 We adjust the
wage rates to reflect total compensation,
which includes nonwage factors, such
as overhead and fringe benefits (e.g.,
health and retirement benefits). For all
labor groups (i.e., State government,
private sector, and Federal
Government), we use an overhead rate
of 17 percent 22 and a fringe benefits rate
based on the ratio of average total
compensation to average wages and
salaries in 2019. For the State
government employees, we use a fringe
benefits rate of 61 percent.23 24 For the
private sector employees, we use a
fringe benefits rate of 43 percent.25 26 For
the Federal Government, we use a fringe
benefits rate of 63 percent.27 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
[2019 dollars]
Position
Average
hourly
wage rate
Grade level
Loaded wage factor components
Fringe benefits
factor
b
c
$21.70
74.20
60.36
0.17
..............................
..............................
0.43
..............................
..............................
$34.72
118.72
96.58
32.25
..............................
..............................
51.60
24.83
0.17
0.61
44.20
a
Private Sector Employees:
Employment Counselor .....................
Attorney .............................................
Individual Completing ETA Form
8561, Domestic Industry Study.
Individual Completing ETA Form
9185, Application for Reconsideration.
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State Government Employees:
Employment Counselor .....................
N/A ...........................................................
N/A ...........................................................
17 BLS. (2019). ‘‘May 2018 National IndustrySpecific Occupational Employment and Wage
Estimates: NAICS 999200—State government,
excluding schools and hospitals (OES
designation).’’ Retrieved from: https://www.bls.gov/
oes/current/naics4_999200.htm. The May 2018
mean hourly wages were adjusted to September
2019 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–September 2019 (December
2005=100).’’ Retrieved from: https://www.bls.gov/
web/eci/ecicois.pdf.
18 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
September 2019 values using 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–September 2019
(December 2005=100.’’ Retrieved from: https://
www.bls.gov/web/eci/ecicois.pdf.
19 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
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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 $60.36 per hour; (2) workers
account for 17% of petitioners at an hourly labor
wage rate of $24.61 per hour; (3) States account for
62% of petitioners at an hourly labor wage rate of
$24.83 per hour. This calculation results in a
weighted average of $32.25 ([0.21×$60.36] +
[0.17×$24.61] + [0.62×$24.83]).
20 OPM. (2019). ‘‘Salary Table 2019–DCB
Incorporating the 1.4% General Schedule Increase
and a Locality Payment of 29.32% for the Locality
Pay Area of Washington-Baltimore-Arlington, DC–
MD–VA–WV–PA.’’ Retrieved from: https://
www.opm.gov/policy-data-oversight/pay-leave/
salaries-wages/salary-tables/pdf/2019/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.
21 For District Court Judge: U.S. Courts. (2019).
‘‘Judicial Compensation.’’ Retrieved from: https://
www.uscourts.gov/judges-judgeships/judicialcompensation. For District Court Clerk: U.S. Courts.
(2019). ‘‘Judiciary Salary Plan, New York-Newark,
NY–NJ–CT–PA—Table NY, 33.06% Locality
Payment Included, Effective January 7, 2019.’’
Retrieved from: https://www.uscourts.gov/sites/
default/files/jsp_new_york_2019.pdf.
22 Cody Rice, U.S. Environmental Protection
Agency. (2002). ‘‘Wage Rates for Economic
Analyses of the Toxics Release Inventory Program.’’
Retrieved from: https://www.regulations.gov/
document?D=EPA-HQ-OPPT-2014-0650-0005.
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Hourly
compensation
rate
Overhead
factor
d = a + (a × b) +
(a × c)
23 BLS. (2019). ‘‘2019 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 2019,
we averaged the total compensation for all workers
for Quarters 1 through 3.
24 BLS. (2019). ‘‘2019 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
calculate the average wage and salary in 2019, we
averaged the wages and salaries for all workers for
Quarters 1 through 3.
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 2019,
we averaged the total compensation for all workers
for Quarters 1 through 3.
26 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
CMU2020000000000D, CMU2020000000000P. To
calculate the average wage and salary in 2019, we
averaged the wages and salaries for all workers for
Quarters 1 through 3.
27 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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51963
EXHIBIT 3—COMPENSATION RATES—Continued
[2019 dollars]
Position
Average
hourly
wage rate
Grade level
Loaded wage factor components
Fringe benefits
factor
b
c
44.98
..............................
..............................
80.06
37.79
63.64
74.20
49.06
101.39
0.17
..............................
..............................
..............................
..............................
0.63
..............................
..............................
..............................
..............................
68.02
114.55
121.28
88.31
182.50
a
Attorney .............................................
Federal Government Employees:
Investigator ........................................
Certifying Officer ...............................
Attorney .............................................
District Court Clerk ............................
District Court Judge ..........................
GS–11, Step 5 .........................................
GS–14, Step 5 .........................................
GS–14, Step 7 .........................................
GS–13, Step 1 .........................................
N/A ...........................................................
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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. Discussion of Comments
One State workforce agency expressed
concern about the ‘‘soundness’’ of the
Department’s analysis with respect to
the effect of the staffing flexibility
provisions. An advocacy group stated
that ‘‘[n]o experience, evidence, or
economic analysis’’ demonstrates that
workers will benefit from the
‘‘privatization’’ of TAA Program
services. The commenter said the
Department’s estimate that the proposal
would result in cost savings of ‘‘some
half-million dollars’’ does not outweigh
the risk that ‘‘tens of millions of dollars
will be misspent.’’ Another State
workforce agency expressed concern
that outsourcing TAA Program services
to non-merit staff would ‘‘double’’ the
administrative costs faced by States. The
agency said that State resources for
program administration are already
stretched thin and argued that the
proposal would worsen the situation
unless the Department provides States
more funding to offset the increased
costs.
The Department acknowledges these
views and concerns, but this final rule
does not privatize TAA Program
services; rather, it provides flexibility to
States to offer TAA Program services
using the best staffing models available
to them to provide these services, while
the Department maintains oversight and
long-established criteria for proper and
efficient delivery of those services.
States are encouraged to consider cost
effectiveness when determining whether
to use flexible staffing models for the
delivery of TAA Program activities.
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States also are encouraged to conduct
evaluations of various service delivery
models. The Department anticipates that
States will choose the service delivery
model that is the most cost effective in
their State.
One advocacy group stated that the
analysis may have underestimated the
extent to which staffing flexibility
would be adopted because it assumed
that half of States would use non-merit
staff and then took that assumption to
mean that half of program participants
would receive their services from nonmerit staff. This commenter said that
these assumptions do not account for
States that have large participant
populations. The commenter did not
suggest an alternative assumption. The
Department based its assumption on
experiences with similar programs and
has determined that with limited data
available, its assumption is reasonable.
Multiple unions and advocacy groups
said the analysis did not make clear
what methodology (beyond what the
commenters termed ‘‘an unspecified
Departmental administrative guidance’’)
was used to estimate the costs of
overhead for staff. The commenters
stated that, without additional
information about how the Department
determined the costs of overhead and
fringe benefits, it would be
‘‘impossible’’ to assess the costs
associated with wages and
compensation to compare salaries of
public- and private-sector workers.
In the proposed rule, the Department
doubled the base wage rate to account
for fringe benefits and overhead costs.
For State government employees,
doubling the base wage rate reflected a
fringe benefits rate of 59 percent and an
overhead rate of 41 percent. For private
sector employees, doubling the base
wage rate reflected a fringe benefits rate
of 43 percent and an overhead rate of 57
percent. For Federal Government
employees, doubling the base wage rate
reflected a fringe benefits rate of 63
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Hourly
compensation
rate
Overhead
factor
d = a + (a × b) +
(a × c)
percent and an overhead rate of 37
percent. In this final rule, the
Department used updated ECEC data to
calculate the fringe benefits rates and
the results were: 61 percent for State
government employees, 43 percent for
private sector employees, and 63
percent for Federal Government
employees. In response to public
comments, the Department reevaluated
the most appropriate overhead rate to
use in the analysis. For this final rule,
the Department lowered the overhead
rate for all workers to 17 percent 28 to
reflect the low marginal increase in
overhead costs for a rule that will have
minimal net impact on the number of
individuals employed to administer the
program. Using 17 percent for all
workers will create a consistent
benchmark between public- and privatesector workers and show that the
differences in cost between public- and
private-sector workers relate to
compensation (wages and fringe
benefits).
Multiple unions and advocacy groups
stated that the economic analysis used
inaccurately high wages for public
sector employees, an assumption that
they said goes against recent studies and
the ‘‘actual experiences’’ of several
States, a few examples of which they
cited. They also stated that
Occupational Employment Statistics
(OES) data should not be relied on to
compare the salaries of government and
private sector workers. However, the
commenters did not provide any
alternative sources for wage data and
the privatization examples provided
were anecdotal. The Department
continues to view OES as the best
source available for wage data by
occupation, industry, and State. No data
source is perfect, but OES data are the
28 Cody Rice, U.S. Environmental Protection
Agency. (2002). ‘‘Wage Rates for Economic
Analyses of the Toxics Release Inventory Program.’’
Retrieved from: https://www.regulations.gov/
document?D=EPA-HQ-OPPT-2014-0650-0005.
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most robust and reliable data available
for the Department’s analysis.
Multiple unions and advocacy groups
commented that the analysis relies on
‘‘other questionable underlying
assumptions,’’ such that contractors will
be able to comply with the requirements
for use of funds in § 618.860(g), which
specify that no less than 5 percent of
funds may be spent on employment and
case management services, while no
more than 10 percent of funds may be
spent on administration costs. The
commenters stated that this assumption
of compliance overlooks the ‘‘unique’’
and ‘‘distinct’’ monitoring and
administration requirements that
accompany contracted services and
serve to inflate their administration
costs. Citing data from the Government
Finance Officers Association and
Rutgers University, respectively, the
commenters said that ‘‘standard’’
administration costs for contractors run
from 10 to 20 percent and in some cases
can even exceed 20 percent. The
commenters expressed doubt that the
Department’s commitment to
monitoring compliance with the use of
funds requirements ‘‘throughout the
grant life cycle’’ and enforcing them
‘‘during the closeout process’’ will be
sufficient to maintain the high quality of
services currently delivered by
experienced merit staff, both in the TAA
Program and in other Federal workforce
development programs, if non-merit
staff are used instead.
The Department acknowledges these
data and recognizes that there would be
costs associated with monitoring and
administering a contract to deliver TAA
Program services. There also would be
a reduction in costs due to the
diminished need for management and
oversight of State employees. The
Department does not have a way to
reliably estimate the difference between
the new administrative costs and the
administrative cost savings, but
addressed commenters’ concerns to the
extent possible by adjusting the
overhead rate to a consistent benchmark
for all public- and private-sector
employees, as described above.
Additionally, the Department remains
committed to maintaining the high
quality of services provided by the TAA
Program, and, as described above,
anticipates that States only will choose
to contract with service providers when
such a service delivery model is the
most cost-effective in their State.
Furthermore, as the commenters
mentioned, the Department has many
tools to monitor States’ administration
of the TAA Program. Regardless of
whether and how States choose to use
these new flexibilities, they must
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continue to meet statutory and
regulatory spending requirements.
One State workforce agency expressed
disagreement with proposed alternative
1 (no action) and said proposed
alternative 3 (more stringent, less
flexible regulations with clarification
provided in administrative guidance)
would not provide enough flexibility for
its State. The commenter said that of the
three alternatives described, the second
proposed alternative (reduced number
and types of regulatory provisions)
would most benefit the people of its
State. The commenter does not provide
sufficient context for the Department to
determine whether the commenter
prefers the second proposed alternative
over the Department’s preferred
approach or just over the other two
proposed alternatives. The Department
has chosen not to pursue the second
proposed alternative because, as
described below, this regulatory
alternative has the disadvantage of
forcing the regulated community to
follow statutory language for
implementation, which comes with
increased risk of noncompliance.
4. Subject-by-Subject Analysis
The Department’s analysis below
covers the expected costs, cost savings,
and transfer payments of this final rule.
The Department emphasizes that
many of the provisions in this final rule
were already requirements in regulation,
statute, or administrative guidance. This
final rule will codify these practices
under one set of regulations and,
therefore, they are not considered
‘‘new’’ burdens resulting from this final
rule. Accordingly, the regulatory
analysis focuses on new costs, cost
savings, and transfer payments that can
be attributed exclusively to this final
rule.
Costs
The following sections describe the
costs of this final rule.
Quantifiable Costs
a. Rule Familiarization
When this final rule 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
regulations during the second year, as
denials and other legal issues need to be
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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 ($44.20 per
hour). This calculation results in a onetime undiscounted cost of $9,194 in the
first year of this final rule.
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 (two
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 ($80.06 per hour). This calculation
results in a one-time undiscounted cost
of $11,208 in the second year of this
final rule.
The sum of these first- and secondyear one-time costs yields a total
average annual undiscounted cost of
$2,040. The total costs over the 10-year
period are estimated at $20,402
undiscounted, or $19,491 and $18,382
at 3- and 7-percent discount rates,
respectively. The annualized cost over
the 10-year period is $2,285 and $2,617
at 3- and 7-percent discount rates,
respectively.
b. Development of IEPs for TradeAffected Workers Seeking Training or
Job Search Allowances
Under § 618.350(a), States must make
available an IEP to all trade-affected
workers and establish an IEP for tradeaffected 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 section 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 services for
workers to achieve their employment
goals. To ensure efficient use of time
and resources, this final rule provides
that, if an IEP has been developed under
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WIOA, or other partner program, it will
be reviewed once the worker becomes a
trade-affected worker to ensure it has
certain components required by the
TAA Program, as listed in § 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 24 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 (24) by the cost per IEP
($22.10).30 This calculation results in an
annual undiscounted cost of $530. The
total cost over the 10-year period is
estimated at $5,300 undiscounted, or
$4,521 and $3,722 at 3- and 7-percent
discount rates, respectively. The
annualized cost over the 10-year period
is $530 at both 3- and 7-percent
discount rates.
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c. Other Quantifiable Costs
Other quantifiable costs of this final
rule 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 ITC under section 202 of the Act.
The Department then will use the
information collected to produce a
report for the President, as required
under section 224 of the Act. The report
will contain information on 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
29 The Department derived this number by
calculating the average of the annual number of
workers who received training, job search, or
relocation allowances (i.e., program exiters) in FY
2013 through FY 2019.
30 The cost per IEP is estimated by multiplying
the hourly compensation rate of a State
employment counselor ($44.20 per hour) by the
time spent developing the IEP (0.50 hours),
resulting in a cost estimate of $22.10.
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adjustment assistance, and the extent to
which the adjustment of such workers
to the import competition may be
facilitated using available 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 ($96.58 per hour). This calculation
results in an annual undiscounted cost
of $1,159.
The Department also is 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 ($51.60 per hour).
This calculation results in an annual
undiscounted cost of $1,290.
The sum of these costs yields a total
annual undiscounted cost of $2,449.
The total cost over the 10-year period is
estimated at $24,490 undiscounted, or
$20,890 and $17,200 at 3- and 7-percent
discount rates, respectively. The
annualized cost over the 10-year period
is $2,449 at both 3- and 7-percent
discount rates.
Nonquantifiable Costs
a. Criteria for Certification of Worker
Groups
This final rule provision at § 618.225
substantially updates 29 CFR 90.16(b) to
describe the criteria the Department
uses to certify worker groups, which
have expanded significantly under
section 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
new provisions reflect the requirements
of the Act, Departmental practices, and,
in some instances, thresholds for select
criteria. The provision also includes
teleworkers and staffed workers because
they are frequently performing the same
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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 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 change.
Cost Savings
The following sections describe the
cost savings of this final rule.
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.
This final rule will 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 has
concluded that eliminating this step
would decrease time and burden, and
simplify the process.
Under the new process in § 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 $2,022.31 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
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).
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process, the Department estimates that
the cost per reconsideration will be
$1,355 (0.67 × $2,022 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 change, the
Department subtracted the cost per
reconsideration under the new process
($1,355) from the cost per
reconsideration under the current
process ($2,022) and then multiplied by
the number of reconsiderations filed per
year (25). This yields an average annual
undiscounted cost savings of $16,675.
The total cost savings from the new
reconsideration process over the 10-year
period is estimated at $166,750
undiscounted, or $142,241 and
$117,118 at 3- and 7-percent discount
rates, respectively. The annualized cost
savings over the 10-year period is
$16,675 at both 3- and 7-percent
discount rates.
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b. Judicial Appeals
Under previous regulations, all
determinations the Department
rendered are final determinations
subject to judicial review. As a result,
nearly any determination the
Department rendered can be appealed to
the USCIT (29 CFR 90.19).
In this final rule, the Department will
define only determinations on
The Department estimates an investigator spends
100 percent of his or her time, or 2,080 hours,
processing petitions. The investigator processes 85
petitions per year. Therefore, the cost per petition
for an investigator to process is estimated by
multiplying the hourly compensation rate ($68.02
per hour) by the hours the investigator works per
year (2,080 hours) and dividing by the number of
petitions processed per year (85 petitions per year).
This results in a cost per petition for an investigator
of $1,664. The Department estimates a Certifying
Officer manager spends 75 percent of his or her
time (1,560 hours) and a nonmanager Certifying
officer spends 100 percent of his or her time (2,080
hours) processing petitions. Certifying Officers
process an estimated 317 full petitions per year.
Based on these data, a manager Certifying Officer
spends 5 hours per petition (1,560/317) and a
nonmanager Certifying Officer spends 7 hours per
petition (2,080/317). The Department uses an
average of nonmanager and manager hours per
petition to estimate the average Certifying Officer’s
time to process a petition (6 hours). To estimate the
cost per petition for a Certifying Officer, the
Department multiplied the hourly compensation
rate ($114.55 per hour) by the number of hours
spent processing a full petition (6 hours). This
results in a cost per petition for a Certifying Officer
of $687.
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
$2,351 to process a petition. The cost per
reconsideration is, therefore, estimated as $2,022
based on the cost per reconsideration being 86
percent of the cost of processing a full petition.
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reconsideration issued under
§ 618.245(g) 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 two per year.
The Department estimates the cost
savings from reducing the number of
judicial appeals by subtracting the
estimated number of judicial appeals
under this final rule (two per year) from
the current number of judicial appeals
per year (five per year) and multiplying
by the cost per appeal ($19,547).32 This
yields average annual undiscounted cost
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 ($118.72 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 $6,958.
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 ($2,022) by 1.5, resulting in a
remand cost of $3,033. To estimate the cost of a
DOL and DOJ attorney, the Department multiplied
the hourly compensation rate ($121.28 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 of $6,306 for
a DOL and DOJ attorney. The sum of the remand
cost ($3,033) and the cost for a DOL and DOJ
attorney ($6,306) yields a cost per appeal for the
Department of $9,339.
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
($182.50 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
$2,190. The Department estimates the cost of court
time for a clerk by multiplying the hourly
compensation rate ($88.31 per hour) by the time
spent in court (12 hours), resulting in a cost
estimate of $1,060. The cost to the USCIT for an
appeal is therefore estimated as $3,250.
The cost per appeal is therefore estimated as the
sum of the cost to the appellant ($6,958), the cost
to the Department ($9,339), and the cost to the
USCIT ($3,250). This cost is $19,547.
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savings of $58,641. The total cost
savings from the reduction in judicial
appeals over the 10-year period is
estimated at $586,410 undiscounted, or
$500,220 and $411,870 at 3- and 7percent discount rates, respectively. The
annualized cost savings over the 10-year
period is $58,641 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 $75,316.
The total cost savings over the 10-year
period is estimated at $753,160
undiscounted, or $642,461 and
$528,988 at 3- and 7-percent discount
rates, respectively. The annualized cost
savings over the 10-year period is
estimated at $75,316 at both 3- and 7percent discount rates.
Transfer Payments
The following sections describe the
transfer payments of this final rule.
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.
In this final rule, the provision at
§ 618.890 on staffing flexibility amends
the previous 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 labor-hours freed and only
a decline in wages.
The Department estimates that half
the States, and therefore half the
participants in the TAA Program, will
take advantage of the flexibility
provided by this final rule.
The Department estimates that the
cost of providing employment and case
management services by State merit staff
is $8,382,397 annually.33 The
33 To estimate the cost of State merit staff
providing employment and case management
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Department estimates the cost of
providing employment and case
management services by non-merit staff
is $6,584,544 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
($6,584,544) from the cost of State merit
staff ($8,382,397) and multiplying by 0.5
to account for the Department’s estimate
that half the States will use the
flexibility provided by this final rule.
This yields average annual
undiscounted transfer payments of
$898,927. 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 estimated at $8,989,265
services, the Department first estimated the amount
of time spent providing the services. Of the 16,026
total exiters, on average, in FYs 2017–2019, 9,331
received training and 6,706 received only case
management services. The average duration of
training is 421 days, and the average duration of
case management services is 263 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 (421 days) by the
minimum contact requirement (30 days) and
multiplying by the time of contact (1 hour),
resulting in an estimate of 14 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 (9,331) by the time spent by staff
providing them services (14 hours), resulting in an
estimate of 130,634 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 (263 days)
by the minimum contact requirement (30 days) and
multiplying by the time of contact (1 hour),
resulting in an estimate of 8.8 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 (6,706) by the time spent
by staff providing them services (8.8 hours),
resulting in an estimate of 59,013 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 (130,634 hours) and the time
required to provide case management services only
(59,013 hours), which results in a total of 189,647
hours. The Department then multiplied the total
hours by the hourly compensation rate of a State
employment counselor ($44.20 per hour) resulting
in a cost estimate of $8,382,397.
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 (130,634 hours) and the
time required to provide case management services
only (59,013 hours), which results in a total of
189,647 hours. The Department then multiplied the
total hours by the hourly compensation rate of a
private sector employment counselor ($34.72 per
hour), resulting in a cost estimate of $6,584,544.
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undiscounted, or $7,668,025 and
$6,313,684 at 3- and 7-percent discount
rates, respectively. The annualized cost
savings over the 10-year period is
$898,927 at both 3- and 7-percent
discount rates.
Nonquantifiable Transfer Payments
a. Change in the Definition of ‘‘Group’’
Under § 618.110 (definition of ‘‘group
of workers’’) in this final rule, 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 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
In this final rule, the provision at
§ 618.400 explains the scope of the
subpart, and is a provision not
contained in current regulations. The
provision at § 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 section 236
of the Act, instead of merely assisting
AAWs in finding ‘‘suitable work’’ as
current regulations have provided. In
this final rule, the language at § 618.405
contains general provisions and revises
and consolidates current 20 CFR 617.30
and 617.40. The provision at
§ 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 change modifies 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 change will
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51967
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 show that
AAWs who relocate have a wage
replacement rate exceeding 100 percent,
which means that this change should
have little or no impact on the number
of AAWs and is not quantifiable.
c. Length of Training and
Apprenticeships
In this final rule, the language at
§ 618.635(c) is new and establishes
apprenticeship provisions that
specifically provide that both registered
apprenticeships under the NAA, 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 section
236(a)(5)(A)(iii) and (G) of the Act. The
requirement that an apprenticeship lead
to an industry-recognized credential
differentiates an apprenticeship from
regular OJT.
This final rule will revise TAA
Program length of training requirements
applicable to apprenticeships. In
addition, under this final rule, TAA
Program funds can 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
will provide for reimbursement to the
employer for the paid-work component
of the apprenticeship for up to 130
weeks. Reimbursement can 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 sought public comment. The
Department received no comments on
this issue. The Department expects that
funding adjustments will need to be
made for trade-affected workers
requiring additional funding due to
participation in a registered
apprenticeship. In this final rule, the
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. This final rule
codifies the provisions associated with
these improvements, currently
implemented via administrative
guidance, into the TAA Program
regulations. The Department analyzed
these 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 has 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 tradeaffected 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 ITC ‘‘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
services (subpart C, §§ 618.310, 618.330,
618.335, 618.345, 618.350, and
618.360).
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Employment counseling and
reemployment services have been
required under the TAA Program since
implementation of chapter 2 of title II of
the Act. The current requirements are
found at 20 CFR 617.20 and 617.21.
This set of provisions includes the
development of an IEP and assessments.
The language in the previous regulation,
however, uses outdated terminology and
this final rule updates it. Case managers
are to ensure trade-affected 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 will 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 tradeaffected 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
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)).
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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 trade-affected 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
WBAs 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 Program
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
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
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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time, multiple amendments have
occurred. All TAA Program
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.
This final rule provides 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 provides Federal and
State courts with the Department’s
authoritative interpretation of TAARA
2015. This final rule also updates the
TAA Program and consolidates 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; out-of-area job
search and relocation allowances;
income support through TRA; RTAA for
AAWs aged 50 and older; and, if
available, the HCTC.
Since 1975, the TAA Program has
served over 2 million U.S. trade-affected
workers. In FY 2017, an estimated
94,017 trade-affected workers became
eligible for TAA Program benefits and
services. Nearly 75 percent of tradeaffected 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
51969
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.
5. Summary of the Analysis
Exhibit 4 summarizes the estimated
total costs, cost savings, and transfer
payments of this final rule over the 10year analysis period. The annual costs,
cost savings, and transfer payments do
not reach $100 million in any given
year. Thus, this final rule is not
economically significant.
The Department estimates the
annualized costs of this final rule at
$5,596, the annualized cost savings at
$75,316, and the annualized transfer
payments at $898,927, at the 7-percent
discount rate.
The Department estimates the net cost
savings of this final rule at $597,559 at
a discount rate of 3 percent and
$489,683 at a discount rate of 7 percent.
EXHIBIT 4—ESTIMATED MONETIZED COSTS, COST SAVINGS, NET COST SAVINGS, AND TRANSFER PAYMENTS OF THE
NPRM
[2019 dollars]
Costs
2020 .................................................................................................................
2021 .................................................................................................................
2022 .................................................................................................................
2023 .................................................................................................................
2024 .................................................................................................................
2025 .................................................................................................................
2026 .................................................................................................................
2027 .................................................................................................................
2028 .................................................................................................................
2029 .................................................................................................................
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 .....................................................................
$12,173
14,187
2,979
2,979
2,979
2,979
2,979
2,979
2,979
2,979
50,192
44,902
39,305
5,019
5,264
5,596
Cost
savings
$75,316
75,316
75,316
75,316
75,316
75,316
75,316
75,316
75,316
75,316
753,160
642,461
528,988
75,316
75,316
75,316
Perpetuated Net Cost Savings a with 7% Discounting (2016 dollars) .............
a Net
$63,143
61,129
72,337
72,337
72,337
72,337
72,337
72,337
72,337
72,337
702,968
597,559
489,683
70,297
70,052
69,720
Transfer
payments
$898,927
898,927
898,927
898,927
898,927
898,927
898,927
898,927
898,927
898,927
8,989,265
7,668,025
6,313,684
898,927
898,927
898,927
$50,902
Cost Savings = [Total Cost Savings] ¥ [Total Costs]; discounted four years to reflect that the changes take effect in 2020.
6. Regulatory Alternatives
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Net cost
savings a
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.
36 U.S. Department of Labor, ETA. (2018). ‘‘Trade
Adjustment Assistance for Workers Program: Fiscal
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12866. The Department has considered
three alternatives as part of determining
whether to issue this final rule. 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.
Year 2017.’’ Retrieved from: https://
www.doleta.gov/tradeact/docs/
AnnualReport17.pdf.
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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
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
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
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displaced workers and the changing
economic landscape. Not only could
this negatively impact trade-affected
workers, 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 workers
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 this final rule to increase
flexibility to States and trade-affected
workers, improve outcomes, clarify
overly technical or confusing language,
update references and procedures, and
codify elements from administrative
guidance.
As discussed in Section IV.B.3 above,
the Department received one comment
on the regulatory alternatives. This
comment is addressed in that section
with the other discussions of public
comments.
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 this
final rule are the States, which do not
qualify as small entities, the Department
has determined that this final rule does
not impact small entities. Based on this
determination, the Department certifies
that this final rule does not have a
significant economic impact on a
substantial number of small entities.
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D. Paperwork Reduction Act (PRA)
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
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.
In accordance with the requirements
of PRA the proposed regulation solicited
comments on the ICs included therein.
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 also is
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(a)(1)).
The following ICs 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
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The Department has determined that
there is a new IC contained in this rule.
This collection is related to an aggrieved
party seeking administrative
reconsideration of a negative
determination under section 222 of the
Act, and the domestic industry study
required by section 202 of the Act.
In accordance with the requirements
of PRA the proposed regulation solicited
comments on this new IC. The Federal
Register Notice announcing the
proposed rule announced a 60-day
comment period for this new IC. The IC
comment period closed on January 6,
2020. The Department received two
timely comments but they did not
address the IC. The comments received
on the proposed IC may be viewed at
https://www.regulations.gov by entering
docket number ETA–2019–0009.
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.
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 section 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 section 202 of the Act.
This collection will eventually be
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included in OMB Control Number
1205–0342; specifically, once all of the
outstanding actions are complete, the
Department intends to submit a
nonmaterial change request to merge the
collections so that the new requirements
will be added to OMB Control Number
1205–0342. Once the nonmaterial
change request has been approved by
OMB, the new collection will be
discontinued.
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.
Estimated Total Annual Other Burden
Costs: $1,266,937.93.
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 ICRs
submitted to OMB on the reginfo.gov
website at https://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 also may request a free
copy of the IC by contacting the person
named in the ADDRESSES section of this
preamble.
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
(UMRA). Further, agencies must strictly
adhere to constitutional principles.
Agencies must closely examine the
constitutional and statutory authority
supporting any action that would limit
the policy-making 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
final rule revising the operation of a
Federal benefit program in accordance
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51971
with E.O. 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, this final
rule will 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
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
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 final rule 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
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power and responsibilities between the
Federal Government and Indian tribes.
Because this final rule 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.
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
amends 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. Revise the authority citation for 20
CFR part 617 to read as follows:
■
Authority: 19 U.S.C. 2320; Secretary’s
Order No. 6–2010, 75 FR 66267 (Oct. 27,
2010).
Appendices A, B, and C to Part 617—
[Transferred to Part 618 and
Redesignated]
2. Transfer appendices A, B, and C to
part 617 to part 618 and redesignate the
appendices as appendices A, B, and C
to part 618.
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■
PART 617—[REMOVED AND
RESERVED]
■
3. Remove and reserve part 617.
■
4. Revise part 618 to read as follows:
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PART 618—TRADE ADJUSTMENT
ASSISTANCE UNDER THE TRADE ACT
OF 1974, AS AMENDED
618.455 Determining the amount of a
relocation allowance.
618.460 Determinations and payment of a
relocation allowance.
Subpart A—General
Sec.
618.100 Purpose and scope.
618.110 Definitions.
618.120 Severability.
Subpart E—Reemployment Trade
Adjustment Assistance
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 B—Petitions, Investigations, and
Determinations
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
618.300 Scope.
618.305 The Trade Adjustment Assistance
Program as a one-stop partner.
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
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 for a job search
allowance.
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 for a relocation
allowance.
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Subpart F—Training Services
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.
618.635 Work-based training.
618.640 Supplemental assistance.
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
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.
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Subpart H—Administration by Applicable
State Agencies
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.
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
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. 6–2010, 75 FR 66267 (Oct. 27,
2010).
Subpart A–General
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§ 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
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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. This part 618 applies for all
workers determined eligible to apply for
TAA except for those covered under
certain provisions of the Trade
Adjustment Assistance Reform Act of
2002 and the Trade and Globalization
Adjustment Assistance Act of 2009, for
which administrative guidance will
continue to apply.
(c) Effect. The regulations in this part
are issued to implement the Act.
§ 618.110
Definitions.
The following definitions apply solely
in this part.
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 his or her
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;
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(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 a State, other than
a liable State, that provides benefits or
services to a trade-affected worker. A
State can be both an agent State and a
liable State.
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
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
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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
(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
sections 223(d), 236(a)(5)(H), 239(a)(3),
and 247(19) of the Act, and ‘‘affirmative
determinations’’ in sections 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 section 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 section 222(e) of the
Act. The certification period begins on
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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 section 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
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.
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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
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 his or
her UI entitlement.
Employer means any individual or
type of organization, including the
Federal Government, a State
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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.
Exhaustion of UI means exhaustion of
all rights to UI in a benefit period by
reason of:
(1) Having received all UI to which a
worker was entitled under the
applicable State law or Federal
unemployment compensation law with
respect to such benefit period; or
(2) The expiration of such benefit
period.
Family means the following members
of an adversely affected worker’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
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
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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
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 section 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
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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 his or
her 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,
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.
A State can be both an agent State and
a liable State.
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
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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
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
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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 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.
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
entering an occupational training
program designed to impart the skills
and information required to perform a
specific job or group of jobs.
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 the AAW’s 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.
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
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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
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 section 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) through (7) of
this definition are present, relative to a
firm named on a determination issued
under subpart B:
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(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, childcare,
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
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
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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
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:
(1) Remuneration as defined by State
law; or
(2) For purposes of calculating a
reemployment wage when determining
the availability of suitable employment,
the stated salary and—to the extent
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known—the value of any compensation
package that would be defined as
remuneration under State law, as
provided by an employer in a job
posting or job offer.
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).
§ 618.120
Severability.
Should a court of competent
jurisdiction hold any provision(s) of this
subpart to be invalid, such action will
not affect any other provision of this
subpart.
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 petition
for certification of eligibility to apply for
adjustment assistance for a group of
workers, or a request to amend an
existing certification under § 618.250,
must be filed simultaneously with the
Department and with 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;
(2) A certified or recognized union, or
other duly authorized representative of
the group of workers;
(3) The employer(s) of the group of
workers; or
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(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. Petitioners
may obtain a petition form and
instructions online at: https://
www.dol.gov/agencies/eta/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;
(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 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 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 of workers, or by
an official of a certified or recognized
union or other duly authorized
representative of the group of workers,
or by an official of the employer of the
group of workers, 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
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.
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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 https://
www.dol.gov/agencies/eta/tradeact.
Individuals requiring assistance in filing
online should contact their nearest onestop 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 section
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 section 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;
(ii) Information about the workers’
potential eligibility for TAA Program
benefits;
(iii) The benefits and services
available under the TAA Program;
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(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.
When 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
some eligibility criteria; § 618.225
describes the period of investigation for
each criterion.
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(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
group of workers identified in another
pending investigation;
(iv) The group of workers identified in
the investigation already has been
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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
Federal Register of the notice of receipt
of the petition, such a hearing is
requested in writing by:
(i) The petitioner; or
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(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 of 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 his or her 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
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
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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.
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§ 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 his or her designee,
and must be served consistent with Rule
5(b) of the Federal Rules of Civil
Procedure. The date for compliance
must be 7 calendar days following
service of the subpoena, unless
otherwise indicated.
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(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) Workers in the group of 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
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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, or a
notification issued under a similar State
law;
(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) Workers in the group of 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, or a notification
issued under a similar State law;
(2) A separation schedule;
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(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. 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
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51981
a foreign acquisition of like or directly
competitive articles by the workers’ firm
from another country. After 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
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) Workers in the group of 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, or a notification
issued under a similar State law;
(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) Workers in the group of 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;
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(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
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;
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(C) Unions;
(D) Workers in the group of 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, or a notification
issued under a similar State law;
(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
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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,
workers in the group of 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, or a notification
issued under a similar State law;
(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:
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(i) An affirmative determination of
serious injury or threat thereof under
section 202(b)(1) of the Act (19 U.S.C.
2252(b)(1));
(ii) An affirmative determination of
market disruption or threat thereof
under section 421(b)(1) of the Act (19
U.S.C. 2451(b)(1)); or
(iii) An affirmative final
determination of material injury or
threat thereof under section 705(b)(1)(A)
or 735(b)(1)(A) of the Tariff Act of 1930
(19 U.S.C. 1671d(b)(1)(A) and
1673d(b)(1)(A)).
(2) 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
section 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 section 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
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(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.
(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
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51983
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
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.
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(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:
(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 section 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
Officer issues 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
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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
for any of the purposes described in
§ 618.250(a), in response to a petition
filed under § 618.205, or without an
outside request for an amendment. 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.
(e) Administrative action. The
Department may, with or without an
outside request, reconsider actions
taken under § 618.210(e), 618.235(b),
618.240, 618.245, or 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 section 222 of
the Act and § 618.225, the
Administrator must promptly conduct
an investigation.
(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
website, whichever is later, a
determination must be issued once the
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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.
(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,
which will contain the reasons for
making such determination, 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 the determination 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
§ 618.205 to submit a petition may file
an application for reconsideration with
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§ 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
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
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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
paragraphs (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,
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51985
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) Reasons for amendments. A
Certifying Officer may amend a
certification. The Department retains the
authority to amend a certification
without a petition, where it has
determined that an amendment is
appropriate. 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)(ii). 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
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
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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 section 284 of the Act
(19 U.S.C. 2395).
(b) Final determination. Only
determinations issued under
§ 618.245(g) 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 section 284 of the Act
(19 U.S.C. 2395).
(f) Individual benefits denials.
Appeals of denials of individual
benefits are not determinations under
section 222 of the Act and are not
subject to review by the USCIT under
section 284 of the Act.
(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 section 202 of the
Act with respect to an industry, the
Department must immediately begin a
study of:
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(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
section 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 at https://www.dol.gov/
agencies/eta/tradeact. The Department
also posts redacted versions of all
petitions on the same 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 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.
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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
sections 235 and 239(a), (e), and (g) of
the Act. It also implements the
requirements of section 221(a)(2)(A) of
the Act for the provision of rapid
response assistance and 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 section
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 section 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
§ 618.816;
(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
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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
who apply for or are seeking receipt of
TAA Program benefits and services, and
ensure 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.
(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 section 402F of the
Higher Education Act of 1965, as
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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 section 102 of
HEA (20 U.S.C. 1002)) use the
administrators’ discretion under section
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
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
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51987
(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 section 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
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 the worker’s 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.
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(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.
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§ 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 section 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
unemployment rate, local employer skill
demands and hiring prerequisites;
(2) The worker’s knowledge, skills,
and abilities from his or her 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),
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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 section 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
there is no reasonable expectation of
securing employment in the worker’s
commuting area and the worker is
interested in relocation, the
employment opportunities and demand
in the area to which the worker
proposes to relocate.
(c) The comprehensive and
specialized assessment must expand
upon the initial assessment regarding
the trade-affected worker’s interests,
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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 training program 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;
(4) If applicable, any supplemental
assistance (subsistence or transportation
payments) required for participation in
training and the basis for their
calculation; and
(5) The worker’s responsibilities
under the plan.
(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
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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.
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§ 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.
(b) The staff performing these initial
and comprehensive and specialized
assessments may be from any partner
program.
(c) Funds under section 235A(1) of
the Act may be used to improve and
maintain the knowledge and abilities of
staff conducting assessments for tradeaffected workers.
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§ 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 referrals to
supportive services and follow-up
services available through partner
programs, to trade-affected workers
during training, and after 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.
A job search allowance for activities
outside of the worker’s commuting area
may be provided for costs including, but
not limited to:
(1) Travel to and attendance at job
fairs and interviews;
(2) Travel to and attendance at
prevocational workshops;
(3) Making an in-person visit with a
potential employer who may reasonably
be expected to have openings for
suitable employment;
(4) Completing a job application in
person with a potential employer who
may reasonably be expected to have
openings for suitable employment;
(5) Going to a local one-stop, copy
shop, Post Office, or similar entity to
print, copy, mail, email, or fax a job
application, cover letter, and/or a
resume;
(6) Going to a local one-stop, public
library, community center, or similar
entity to use online job matching
systems, to search for job matches,
request referrals, submit applications/
resumes, attend workshops, and/or
apply for jobs; and,
(7) Attending a professional
association meeting for networking
purposes.
(b) A State must grant a relocation
allowance to an AAW to help the
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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.
§ 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 must apply
for a job search allowance before
beginning a job search to be funded by
such an allowance.
§ 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 the AAW is covered, or the 365th
day after the AAW’s 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:
(i) Cannot reasonably expect to secure
suitable employment in the commuting
area; and
(ii) Can reasonably expect to obtain,
in the area of the job search, either:
(A) Suitable employment; or
(B) 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
definition of suitable employment;
(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.
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(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.
(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 for a job
search allowance.
(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.
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§ 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
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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.
(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 the worker undertakes. 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
payment or 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 of eligibility; notices to
individuals) 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
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of a job search. The State must deduct
the advance from any payment under
paragraph (b) of this section.
(d) Worker evidence. After the AAW
completes a job search, the AAW 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. 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, or the worker must
repay the excess received.
§ 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 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
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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;
(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, the
worker 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.
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§ 618.450 Findings required for a
relocation allowance.
(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)
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
§ 618.445(a)(1);
(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) through (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 the
AAW’s old home to the AAW’s 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
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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 his or her family while they
are in transit, but such costs may not
exceed the lesser of:
(i) The actual lodging and meals cost
to the worker and his or her family
while they are traveling; or
(ii) 50 percent of the prevailing per
diem allowance under the FTR, found at
https://www.gsa.gov/, for the relocation
area for those days while the worker and
his or her 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
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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 the worker’s average weekly wage,
not to exceed $1,250.
(b) Reduction. If the AAW is eligible
to receive or has received moving
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.
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§ 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 of eligibility; notices to
individuals) 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 no earlier
than 10 days in advance of, and no later
than 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, the AAW 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
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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
approved, such as insurance. The State
must advance the funds to the worker
no earlier than 10 days in advance of,
and no later than at the time of, the
scheduled shipment. 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 conditions of
§ 618.455(a)(3)(iii). The State must
deliver payment to the carrier and
insurer no earlier than 10 days in
advance of, and no later than 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, the
worker 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.
(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
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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, the worker 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
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 his or her
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 section
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
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may elect to receive RTAA benefits if
the AAW:
(1) Is at least 50 years of age;
(2) Earns not more than, or is
projected to earn not more than, $50,000
in reemployment wages each year
during the eligibility period, as further
defined in § 618.520(a);
(3) Earns less than, or is projected to
earn 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
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,
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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.
(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.
(4) Year. For purposes of RTAA, a
year represents the 12-month period
beginning with the first full week of
qualifying reemployment.
(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
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51993
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
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
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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
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:
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(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.
§ 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 year during the 2-year
eligibility period an AAW’s cumulative
wages exceed, or are projected to
exceed, $50,000, the AAW will no
longer be eligible to receive additional
RTAA payments within that year. The
AAW will be eligible for RTAA benefits
in the next year and RTAA payments
will resume until wages exceed, or are
projected to exceed, $50,000, or until
the $10,000 benefit limit is reached.
(4) If the worker is employed parttime (at least 20 hours per week) and
receiving RTAA while in TAA approved
training, the State must verify
participation in training on a monthly
basis. Verification of participation in
TAA approved training will be
conducted in accordance with State
policies. States may use training
benchmarks, described at § 618.660, as a
method of verification of participation.
(b) Timing of RTAA payments. The
State must make RTAA payments on a
regular basis, either weekly, biweekly,
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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, or
are projected to exceed, $50,000 in a
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 determination,
and cease such RTAA payments.
(2) If reemployment wages change but
do not exceed $50,000 in a 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 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
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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
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
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 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 RTAA-
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eligible 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
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, the AAW is 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.
(a) Determinations, redeterminations,
and appeals. States must apply the
requirements of §§ 618.820
(determinations of eligibility; notices to
individuals) and 618.828 (appeals and
hearings), 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
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eligible AAW’s reemployment wages
change.
(3) An AAW denied individual
eligibility based on nonqualifying
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 section 303(e)(1) defines
child support obligations as only
including obligations which are being
enforced pursuant to a plan described in
section 454 of SSA which has been
approved by the Secretary of Health and
Human Services under part D of title IV
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
§ 618.525 Determinations,
redeterminations, and appeals.
51995
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
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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 of eligibility;
notices to individuals), 618.824 (liable
State 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
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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 his
or her 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
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 the worker on a
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
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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
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 the worker
desires 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
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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 the worker’s 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
section 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.
(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;
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(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,
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
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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
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 the
worker’s 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 definition of full-time training
provided in § 618.110.
(2) Part-time. (i) A State may approve
part-time training. Part-time training is
any training program that is not full-
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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.
(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
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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
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 trade-affected workers), 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 the worker’s living
expenses) to support himself or herself
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 he or she has sufficient
resources to sustain himself or herself
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
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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:
(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
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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
under WIOA section 122 without
establishing additional standards or
procedures under the TAA Program.
(ii) As provided in section 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 the AAIW’s
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
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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 section 102
of the Higher Education Act of 1965, as
amended (20 U.S.C. 1002), including
training or coursework for the purpose
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 section 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
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51999
degree may be approved; however, the
time limits described at § 618.615(d)(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.
(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
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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
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
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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
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
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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).
§ 618.630 Training of reemployed tradeaffected workers.
(a) An AAW who obtains new
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 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;
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(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
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
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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;
(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.
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(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
section 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
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 section 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 a position 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.
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(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 employer 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 employer.
(3) Exclusion of certain employers.
The State may not enter into a contract
for apprenticeship with an employer
that exhibits a 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 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 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;
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(G) The training is not for the same
occupation as the apprentice’s adversely
affected employment;
(H) The employer has not received
payment under the TAA Program or
under any other Federal law for any
other apprenticeship 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
(I) The employer has not taken, at any
time, any action that violated the terms
of this section with respect to any other
apprenticeship provided by the
employer for which the State has made
a payment under the TAA Program.
(5) TRA and HCTC eligibility during
apprenticeships. Workers enrolled in an
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) State contract with apprenticeship
employer. The State must enter into a
contract with the employer 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
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to §§ 618.820 (determinations of
eligibility; notices to individuals) 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.
(2) Requirements for subsistence
payments. (i) A trade-affected worker
must be reimbursed for subsistence only
for the period when the worker is 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
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(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
may not exceed the cost per mile at the
prevailing personal vehicle mileage rate
authorized under the FTR. See https://
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 the
worker’s 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 the worker’s
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.
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§ 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
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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),
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 his or her
training program:
(1) The State must continue funding
the approved training program if
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
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52003
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
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 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
sections 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 the AAIW is 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
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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:
(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).
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(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 the worker was
determined to be threatened; and
(ii) The total or partial separation
must be for lack of work.
(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 training provider 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
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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
benchmark, the State must provide a
warning to the AAW that his or her
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 his or her 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 he or
she is enrolled, and be sufficient for the
worker to complete the training
program;
(iv) Approval of a longerterm training
program that will improve the
likelihood of employment upon the
completion of such training;
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(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;
(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
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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
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 the worker
desires 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 the
worker’s 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
section 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
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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
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 training
approval). 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
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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
(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.
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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,
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.
(c) Completion TRA. Completion TRA
is payable to an AAW who meets the
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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 certification of the appropriate
worker group has been made.
(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,
sections 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 of eligibility; notices to
individuals), 618.824 (liable State 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 he or she otherwise
meets 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
initial application is required for TRA
and a separate application is required
for Completion TRA.
(2) Applications may be filed and
processed by any means allowed for UI
claims in the State.
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(3) States must provide notice to the
worker when a worker begins receipt of
Additional TRA. That notice must
include the eligibility requirements
under which Additional TRA is
payable.
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§ 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
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
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(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:
(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, except as provided at
§ 618.720(e)(2).
(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 his or her potential
UI benefits and potential TRA benefits
in writing and document the AAW’s
choice in the case file.
(4) State law governs the status of the
UI claim in the second benefit year
when the AAW elects to receive TRA
instead of UI.
(5) If the AAW elects to receive UI
benefits in the second benefit year or
any subsequent benefit period thereafter
in which the option is available, the
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AAW must exhaust all UI entitlement
before resuming TRA eligibility.
(6) 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 EB
work test in the applicable State law for
UI claimants, and must be furnished a
classification and a determination as to
his or her job prospects as required by
20 CFR 615.8(d). The EB work test must
be met 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; 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 section 202(a)(3) of
EUCA.
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(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
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 he or she is
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.
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§ 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;
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(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.
(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
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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
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
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the worker from governmental agencies
or private sources (which may include
area vocational education schools, as
defined in section 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:
(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:
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(i) Training continues not to be
feasible or appropriate for such worker
for one or more of the reasons described
in paragraph (b) of this section; and
(ii) Such worker has not yet exhausted
his or her Basic TRA entitlement.
(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.
(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; notices to
individuals) 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
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52009
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.
(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 the
AAW is undergoing approved training,
TRA in the amount (computed for each
week) equal to the amount computed
under paragraph (a) of this section or, if
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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
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 section
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 the AAW
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
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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.
(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 paragraph
(b) 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.
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§ 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; and
(2) 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
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(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.
(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.
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§ 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
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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;
(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,
payments during 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) (overpayments;
penalties for 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
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52011
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
meeting requirements of section
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
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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
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
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.
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 H—Administration by
Applicable State Agencies
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§ 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 of rapid
response and appropriate career services
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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 section 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 section
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
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
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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, section 3302(c)(3) of the
Internal Revenue Code of 1986, as
amended (regarding loss of
unemployment tax credits under section
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 section 239 of the Act
(19 U.S.C. 2311);
(2) Authorization for the State to issue
waivers under § 618.735 (waiver of
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.
(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, section
303 of SSA (42 U.S.C. 503), or section
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
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will be subject to review as provided in
42 U.S.C 405(g), as required by section
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.
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§ 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
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
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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 section 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.
(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
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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
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;
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(vi) The training enrollment deadlines
(set forth in § 618.725) 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.
The notice may be filed in a print
version of the newspaper, or in the
online or digital version of the
newspaper if it can be reasonably
expected to reach the interested parties.
(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
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
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the worker’s 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 the worker’s
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 provision
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
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.
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(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, sections 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
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 section 134
of WIOA, to the group of workers in the
State covered by the petition upon
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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) (providing
reemployment services), (e) (providing
information after issuance of a
certification), 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
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;
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(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 section 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).
(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
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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 the person’s 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 the person’s
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
the person’s household).
(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;
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(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,
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
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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 section 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
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, sections 7510 through
7515 (appendix C to this part).
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(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 a Governor-Secretary Agreement
under section 239 of the Act; or
(ii) When providing information
during an investigation of a petition
under section 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.
(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
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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
section. If the determination,
redetermination, or decision in question
awards TAA to an individual, the
benefits are ‘‘due’’ within the meaning
of section 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
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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.
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.
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52017
(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 section 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
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
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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 cost
classification) 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;
(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).
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(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).
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;
§ 618.856 Information, reports, and
(vi) Coordinating the resolution of
studies.
findings arising from audits, reviews,
A State must furnish to the
investigations, and incident reports;
Department such information and
(vii) Audit functions;
reports and conduct such studies as the
(viii) General legal services functions;
(ix) Developing systems and
Department determines are necessary or
procedures, including information
appropriate for carrying out the
systems, required for these
purposes of the Act and this part.
administrative functions;
§ 618.860 General fiscal and administrative
(x) Processing applications for
requirements and cost classification.
benefits under the Act;
(a) Uniform fiscal and administrative
(xi) Rendering and issuing eligibility
requirements. (1) Each State receiving
determinations under the Act;
funds allocated for the TAA Program
(xii) Performing oversight and
from the Department as an agent of the
monitoring responsibilities related to
United States, must administer the TAA administrative functions;
Program in accordance with the
(xiii) Costs of goods and services
Uniform Guidance at 2 CFR part 200
required for administrative functions of
and 2 CFR part 2900 and with the
the program, including goods and
funding agreement.
services such as rental or purchase of
(2) A State may expend funds
equipment, utilities, office supplies,
awarded to it during a Federal fiscal
postage, and rental and maintenance of
year to carry out TAA Program activities office space;
under sections 235 through 238 of the
(xiv) Travel costs incurred for official
Act during that Federal fiscal year and
business in carrying out administrative
the succeeding 2 Federal fiscal years.
activities or the overall management of
(3) Equipment, as described in 2 CFR
the TAA Program;
200.33 and computing devices, as
(xv) Costs of information systems
described in 2 CFR 200.20, includes
related to administrative functions (i.e.,
equipment acquired with TAA funds
personnel, procurement, purchasing,
under both current and prior
property management, accounting, and
Agreements.
payroll systems), including the
(4) The addition method, described at purchase, systems development, and
2 CFR 200.307, must be used for all
operating costs of such systems;
program income earned under TAA
(xvi) Processing waivers of training
grants. When the cost of generating
requirements under subpart G of this
program income has been charged to
part;
such grant, the gross amount earned
(xvii) Collecting, validating, and
must be added to such grant. However,
reporting data required under the Act;
when these costs have not been charged and
to such grant, the cost of generating
(xviii) Providing RTAA under subpart
program income must be subtracted
E of this part.
from the amount earned to establish the
(3) Awards to subrecipients or
net amount of program income available contractors that are solely for the
for use under such grant.
performance of administrative functions
(b) Administrative costs. (1) The
constitute administrative costs.
administrative cost limit for the fiscal
(4) Personnel and related
year program funding allocation for
nonpersonnel costs of staff that perform
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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.
(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 section
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:
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(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 section 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
paragraph (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
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
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52019
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
sections 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 section 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
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
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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 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 of those
participants enrolled in a training
program under subpart F (excluding
those in OJT and customized training)
who attained a recognized
postsecondary credential or a secondary
school diploma, or its recognized
equivalent, during participation in 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.
(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
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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;
(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
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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
section 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
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;
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(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.
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§ 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
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.
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§ 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 section 1137(d) of SSA
(42 U.S.C. 1320b–7(d)), to initially
verify the immigration status of selfreporting 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 section 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
completing training under section 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
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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 section
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.
§ 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
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Program are required to comply with the
nondiscrimination and equal
opportunity requirements of WIOA
section 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.
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§ 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;
(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.
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Subpart I—Allocation of Funds to
States for Training and Other Activities
§ 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
sections 235 through 238 of the Act,
referenced here as Training and Other
Activities (TaOA), will not exceed the
annual cap established under section
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
sections 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 section
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
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
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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.
(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
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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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§ 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
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§ 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
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
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52023
sections 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 sections 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
sections 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 sections 235 through 238 of
the Act for a fiscal year.
(c) If the Department makes a
determination described in paragraph
(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
sections 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
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
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(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
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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.
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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. 2020–13802 Filed 8–20–20; 8:45 am]
BILLING CODE 4510–FN–P
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Agencies
[Federal Register Volume 85, Number 163 (Friday, August 21, 2020)]
[Rules and Regulations]
[Pages 51896-52024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13802]
[[Page 51895]]
Vol. 85
Friday,
No. 163
August 21, 2020
Part III
Department of Labor
-----------------------------------------------------------------------
Employment and Training Administration
-----------------------------------------------------------------------
20 CFR Parts 617 and 618
29 CFR 90
Trade Adjustment Assistance for Workers; Final Rule
Federal Register / Vol. 85, No. 163 / Friday, August 21, 2020 / Rules
and Regulations
[[Page 51896]]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 617 and 618
29 CFR Part 90
[Docket No. ETA-2019-0009]
RIN 1205-AB78
Trade Adjustment Assistance for Workers
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (Department) is expanding 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. This final rule will, among other improvements, make it
easier for workers to qualify for job search and relocation allowances,
increase those allowances in line with the 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: This final rule is effective September 21, 2020.
FOR FURTHER INFORMATION CONTACT: Norris Tyler, Administrator, Office of
Trade Adjustment Assistance, U.S. Department of Labor, Employment and
Training Administration, 200 Constitution Avenue NW, Room N-5428,
Washington, DC 20210, Telephone: 202-693-3560 (voice) (this is not a
toll-free number), 1-888-365-6822, or 1-877-889-5627
(Telecommunications Device for the Deaf).
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Acronyms and Abbreviations
II. Background
A. Introduction to the Trade Adjustment Assistance Program
B. Statutory and Regulatory History of the Trade Adjustment
Assistance Program
C. Need for This Regulation
D. Public Comments Received on the Notice of Proposed Rulemaking
III. Section-by-Section Analysis of This Final Rule
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
IV. 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)
ATAA Alternative Trade Adjustment Assistance
EB Extended Benefits
ECI Employment Cost Indices
ETP(s) eligible training provider(s)
FEIN(s) Federal Employment Identification Number(s)
FTR Federal Travel Regulation
HCTC Health Coverage Tax Credit
IC(s) information collection(s)
ICR(s) information collection request(s)
IEP(s) individual employment plan(s)
ITA(s) Individual Training Account(s)
ITC International Trade Commission
JSP job search program
JTPA Job Training Partnership Act
local area(s) local workforce development area(s)
LWDB(s) local workforce development board(s)
MIS management information system
NAA National Apprenticeship Act
OES Occupational Employment Statistics
OJT on-the-job training
OTAA Office of Trade Adjustment Assistance
PIRL Participant Individual Record Layout
RTAA Reemployment Trade Adjustment Assistance
SNAP Supplemental Nutrition Assistance Program
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
UMRA Unfunded Mandates Reform Act of 1995
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. Background
A. Introduction to the Trade Adjustment Assistance Program
On November 7, 2019, the Department published a Notice of Proposed
Rulemaking (NPRM) in the Federal Register (84 FR 60150), proposing to
amend 20 CFR parts 617 (Trade Adjustment Assistance for Workers under
the Trade Act of 1974) and 618 (Trade Adjustment Assistance under the
Trade Act of 1974, as Amended) to expand protection and support for
U.S. workers adversely impacted by foreign trade.
The Department is streamlining and consolidating 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 revisions will codify into regulation
elements of the most recent TAA Program amendments, the Trade
Adjustment Assistance Reauthorization Act of 2015 (Pub. L. 114-27,
title IV) (TAARA 2015). This final rule also incorporates operating
instructions issued via administrative guidance into the TAA Program
regulations, with some refinements. Further, the 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.
This final rule increases efficiency and flexibility for States and
trade-affected workers. Because subpart B (Petitions, Investigations,
and Determinations) of this final rule expressly permits 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
[[Page 51897]]
Department anticipates a substantial reduction in the number of
requests to amend certifications. The Department also is increasing
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) clarifies that work-based training
includes 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 foreign trade, thereby enabling such workers to
retrain and seek new employment before job separation occurs. In
subpart H (Administration by Applicable State Agencies), the Department
is extending flexibility by removing the requirement that only State
merit staff can provide employment and case management services using
TAA Program funding, granting States more flexibility with program
operations and creating better alignment with WIOA.
This final rule seeks to improve service delivery, and thereby
serve trade-affected workers more effectively, by including service-
delivery requirements that align with data-tested methods. Subpart A
(General) better defines 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 is helping 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).
In subpart E, this final rule implements statutory provisions for
Reemployment Trade Adjustment Assistance (RTAA) and incorporates
administrative guidance previously issued by the Department, since no
regulations covering the RTAA program existed. Subpart G implements
several statutory changes to Trade Readjustment Allowances (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 (WBA) without penalty. In addition, 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.
This final rule provides a consolidated, authoritative set of rules
to guide Federal and State officials in implementing the Trade Act of
1974 (Pub. L. 93-618), as amended (the Act). This streamlining will
also clarify the Department's interpretation of law for courts.
Subpart B (Petitions, Investigations, and Determinations) will
produce cost savings by eliminating the two-step process for
reconsiderations, which will reduce the processing time involved for
all reconsiderations, and by clarifying ``final determinations'' for
judicial appeals, which will reduce the number of those appeals.
Subpart H (Administration by Applicable State Agencies) will also
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. This final rule
is considered to be an Executive Order (E.O.) 13771 deregulatory
action. Details on the estimated cost savings of this final rule can be
found in the rule's economic analysis.
The purpose of this final rule is to ensure that the TAA Program
regulations are modernized to reflect the program's current operation
and make needed improvements. The revisions also will 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.
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 bolsters America's competitiveness by helping American
workers retrain and reenter the workforce.
B. Statutory and Regulatory History of the Trade Adjustment Assistance
Program
The Act (codified at 19 U.S.C. 2271 et seq.), title II, chapter 2,
established the TAA for Workers program and the RTAA program, as well
as the predecessor to RTAA, the Alternative Trade Adjustment Assistance
(ATAA) program.\1\ 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
the TAARA 2015 amendments 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 the final rule because it was
replaced by RTAA.
\2\ The HCTC was due to expire on January 1, 2020, but has
recently been extended to January 1, 2021.
---------------------------------------------------------------------------
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 its behalf, 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 section 222 of the Act.
Second, if the Department finds the group eligible and certifies the
petition, trade-affected workers in the worker group may individually
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 purpose. 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 2 million trade-
affected U.S. workers. In Fiscal Year (FY) 2018, an estimated 76,920
workers became eligible for TAA Program benefits and services. Nearly
77 percent of trade-affected workers obtained employment within 6
months of completing the TAA Program.
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
[[Page 51898]]
trade-affected workers who enter the program, however, face similar
challenges in obtaining reemployment. Trade-affected workers have no
postsecondary degree typically, a median age of 52, and have a median
tenure of 8.3 years of experience in adversely affected employment.\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. (2019). ``Trade Adjustment Assistance for Workers
Program: Fiscal Year 2018.'' Retrieved from: https://www.doleta.gov/tradeact/docs/AnnualReport18.pdf.
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Congress has 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,
sections 2671, 2672, 2673), 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, section 501 through 507). In 1987, the
Department issued a final rule significantly revising the certification
process in 29 CFR part 90 (52 FR 23403, June 19, 1987). 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 the ATAA program 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. 18,
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 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, provided a balance between the expanded certification
criteria and benefits and services provided under TGAAA, and the more
limited provisions in TAARA 2002.
TAARA 2015 reauthorized the TAA Program through June 30, 2021. It
primarily followed TAAEA, the 2011 law, with two exceptions. The
amendments included capping funding for TaOA at $450 million per fiscal
year and establishing new performance indicators to align with WIOA.
TAARA 2015 reauthorized the RTAA and HCTC benefit programs. TAARA 2015
continued to grandfather earlier versions of the TAA Program for trade-
affected workers who had been certified under TAARA 2002, TGAAA, and
TAAEA. That is, a trade-affected worker who was a member of a worker
group covered by a certification that was issued under TAARA 2002,
TGAAA, or TAAEA continued to receive benefits and services available
under the respective program eligibility criteria applicable to those
earlier amendments.
C. Need for This Regulation
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 legislative amendments have required various
changes to the program, which the Department has addressed through
administrative guidance. This final rule codifies in regulation program
operations under the most recent amendments (TAARA 2015), including
significant elements of TAA Program administrative guidance. This final
rule was drafted to reflect how the TAA Program is currently operating
and includes some adjustments that will improve the program. Once this
final rule is effective, the Department will rescind redundant
administrative guidance, as appropriate.
---------------------------------------------------------------------------
\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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This final rule will help States and the public better understand
the proper operation of the TAA Program. It will promote transparency
by setting out, in binding regulation, the major principles by which
the TAA Program operates, and it also will provide the public and
courts with the Department's authoritative interpretation of the Act.
In addition, this final rule includes 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
have needed 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 improvements to the provisions in this
final rule.
This final rule also includes changes that 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.
This final rule aligns with and references the WIOA regulations where
appropriate. This final rule also removes outdated references to the
Job Training Partnership Act (JTPA) and the Workforce Investment Act of
1998 (WIA).
D. General Comments Received on the Notice of Proposed Rulemaking
On November 7, 2019, the Department published an NPRM in the
Federal Register (84 FR 60150), proposing to amend 20 CFR parts 617
(Trade Adjustment Assistance for Workers under the Trade Act of 1974)
and 618 (Trade Adjustment Assistance under the Trade Act of 1974, as
Amended) and 29 CFR part 90 to expand protection and support for U.S.
workers adversely impacted by foreign trade. The NPRM invited written
comments from the public concerning this proposed
[[Page 51899]]
rulemaking through December 9, 2019. This 30-day comment period was
later extended by 2 days (84 FR 67681), through December 11, 2019,
because of a regulations.gov website outage that occurred on December
9, 2019. No commenters requested an extension of the comment period or
otherwise expressed concern about the public's ability to participate
in the rulemaking process. The comments received on the NPRM may be
viewed at https://www.regulations.gov by entering docket number ETA-
2019-0009.
The Department received comment submissions from 54 commenters, of
which 45 submissions were unique and 9 were duplicates or not related
to the subject of this rule. The commenters represented a range of
stakeholders from the public and nonprofit sectors. Public sector
commenters included State and local government agencies, local
workforce development boards (LWDBs), and one-stop operators. Nonprofit
sector commenters included public policy organizations, advocacy
groups, national and local labor unions, and a trade association. Of
the unique comments, nearly one third came from State government
workforce agencies. The Department also received several comments from
private citizens.
These comments are addressed in Section III (Section-by-Section
Analysis) of this final rule. About half of the unique comments
supported parts of the proposal but opposed others, while a smaller
number conditioned their support for the proposal on the Department
adopting certain changes in this final rule.
The NPRM notified the public that an additional docket (ETA-2019-
0010) for comments related to the information collection (IC) discussed
in Section V.D of the NPRM preamble (Paperwork Reduction Act) would
remain open until January 6, 2020. The Department did not receive
comments related to this IC in this docket. For further information on
the IC, please see the Paperwork Reduction Act (PRA) section of this
final rule (Section IV.D).
General Comments on the Proposed Rule
One commenter agreed with the anticipated improvements and benefits
of the proposed rule that the Department set forth in the NPRM. One
commenter stated that several of the proposed changes would positively
strengthen local control of program development. Another commenter
agreed that the proposal would help workers but expressed curiosity
about how the rule would affect the economy if adopted. Several
commenters sought guidance, unrelated to the proposal, on very specific
programmatic scenarios related to their current workforce programs. One
commenter expressed general concern that the proposed rule could
disproportionately reduce benefits and services for rural AAWs. In
contrast, another commenter said the proposed rule would help rural
communities and areas with ``a strong presence of the blue-collar work
force.''
None of these commenters provided specific, substantive comments on
any particular part of the proposed rule or proposed regulatory text;
therefore, these comments are not addressed in the Section-by-Section
Analysis below.
One State workforce agency commented that the TAA Program needs
updates to keep serving trade-affected workers most effectively.
Another State workforce agency commenter supported efforts to
incorporate existing law, administrative guidance, and practice into a
single set of regulations, saying the changes would improve program
operations and reduce the burden of referencing numerous amendments and
issuances of administrative guidance. The Department has, wherever
possible, incorporated administrative guidance into this rule.
The Department received one comment of general opposition to the
timing of the proposed rule in relation to the upcoming Presidential
election and the status of the economy. The commenter provided
insufficient information on why it recommended delaying until after the
election, so the Department is unable to address any specific concerns.
Comments on the Department's Approach to Rulemaking
A commenter from an LWDB strongly agreed with the Department's
rationale concerning the need for a rulemaking, including that the
proposed rule would increase stakeholder and public understanding of
how the TAA Program works, would streamline State administration of the
program, would strengthen transparency through codification of current
practice, and would provide courts with the Department's definitive
interpretation of the TAA Program's authorizing statutes.
Citing its own research about the need for TAA Program reform, a
nonprofit public policy organization said that the proposed rule covers
several issues raised in that research, namely the need to increase the
proportion of dislocated workers covered; the need to strengthen the
TAA Program across the board (rather than focus on training only); and
the need to ensure the training offered results in stable, family-
sustaining employment. The commenter, however, suggested additional
changes to increase the program's effectiveness: Extending eligibility
to workers affected by automation and other large-scale economic
disruptions, allowing workers to use TRA for services other than
training, and making extra support available to communities hit hardest
by foreign trade impacts. The Department appreciates this feedback, but
these suggestions are beyond the scope of its statutory authority and
are not addressed in this final rule.
While one commenter agreed with the overall argument for why a
rulemaking is needed (e.g., to modernize the program regulations), it
requested clarification about the intended effect of consolidating the
regulations: Whether it will result in a ``universal'' program under
which all trade-affected workers may access the same benefits
regardless of the statutory basis for their certification, or whether
the final rule will provide different requirements and benefits
according to the individual statutory basis of eligibility. The
commenter said it preferred the ``universal'' approach because it would
provide a consistent level of support to all workers and help avoid
``misunderstandings.'' While the Department appreciates the commenter's
interest in the provision of a consistent level of support, the
Department does not have the authority to apply this final rule to all
trade-affected workers without regard to the version of the Act under
which the worker group was certified.
Integrated Service Strategies To Align WIOA and TAA Programs
A worker advocacy group strongly supported efforts to codify into
the program regulations improved alignment with WIOA, such as through
the replacement of core indicators of performance based on TAAEA with
primary indicators of performance based on WIOA, and the addition of
more robust reporting and data collection requirements. Citing WIOA's
approach to promoting industry or sector partnerships among
stakeholders at the State and local workforce development area (local
area) levels, the group also encouraged the Department to emphasize the
importance of aligning training and other services to industry needs.
Further, the commenter said that bringing this focus to the TAA Program
would help ensure that public investments both lift up affected workers
and respond to industry demands.
[[Page 51900]]
The Department aligned this final rule with WIOA requirements and
has long promoted integrated service delivery for the TAA Program
within the nation's public workforce system. These efforts began as
early as the passage of the 1988 amendments to the TAA Program and the
subsequent passage of the Economic Dislocation and Worker Adjustment
Assistance Program. Integrated service delivery became a requirement,
enforced via the Governor-Secretary Agreement, following the passage of
the WIA. The Department has provided significant administrative
guidance and dedicated substantial technical assistance resources to
assist States and local areas in developing integrated service models
focused on reducing barriers to participation and eliminating
duplication of effort. After more than 20 years of promoting an
integrated service delivery model and encouraging co-enrollment in WIOA
(WIA, JTPA, etc.), the Department, based on detailed analysis of
participant outcomes, is now mandating co-enrollment between the TAA
Program and the WIOA dislocated worker program. Additionally, as the
commenter recommended, the Department has aligned this final rule with
the WIOA regulations wherever possible, unless a particular statutory
limitation required otherwise or data analysis supported an alternative
approach.
One commenter supported the Department's acknowledgment that WIOA
and TAA Program alignment is important for workers, businesses, and
communities, but it expressed concerns about the level of Federal
funding and infrastructure limitations in the public workforce system.
The commenter provided data supporting stated concerns about the levels
of Federal funding of the public workforce system. The Department
recognizes these concerns, but appropriated funding levels are beyond
the scope of this rulemaking.
This commenter also made several recommendations to facilitate
better alignment of the programs without overburdening workers or
program administrators, including clarifying the meaning of WIOA-
related terms, such as ``customized training,'' ``on-the-job training''
(OJT), and ``individual employment plan,'' and their application to the
TAA Program. To the extent possible and consistent with statutory
differences, the Department has aligned these definitions in the final
rule. For further discussion regarding how these various terms have
been defined, please refer to the preamble discussion for Sec. 618.110
below.
III. Section-by-Section Analysis of This Final Rule
If a section of the NPRM is not addressed in the section-by-section
analysis below, there were no public comments received and, unless
otherwise noted, the Department has adopted the section as proposed.
The Department has made some nonsubstantive changes to the regulatory
text to correct grammatical and typographical errors, or to improve
readability.
A. Subpart A--General
Subpart A sets forth the purpose and scope of the TAA Program and
defines relevant terms used throughout the rule. Subpart A as proposed
in the NPRM modified and simplified several definitions for greater
clarity, eliminated definitions in response to statutory changes to the
Act, and added definitions of new terms based on statutory changes. The
definitions used in this final rule are intended to reflect the
modernized TAA Program, which has evolved since TAARA 2002, and ensure
maximum alignment with WIOA. Where the Department received comments on
specific paragraphs within a section, details of those paragraphs as
proposed in the NPRM are included to provide context for the discussion
of comments that follows.
Section 618.100 Purpose and Scope
Section 618.100 of the final rule sets forth the purpose and scope
of the regulations governing the TAA program in one location. Prior to
this final rule, this provision existed at 20 CFR 617.1 and 617.2. The
NPRM proposed setting forth these provisions in one section, addressing
the purpose in paragraph (a) and the scope in paragraph (b). The NPRM
also proposed revising them by broadening the purpose to reflect that
the TAA Program's purpose is more than just returning trade-affected
workers to suitable employment and by expanding the scope beyond what
was reflected in 20 CFR 617.2 in light of the fact that part 618 of the
final rule combines what had been parts 617 and 618 of title 20 and
part 90 of title 29.
With regard to the scope of this rule at paragraph (b), two
commenters asked whether eligible trade-affected workers who are
members of a worker group certified under previous amendments
(versions) of the Act would be provided the benefits and services
described in the proposed rule or whether administrative guidance would
still apply. The TAA Program regulations were last updated in 1994,
with only minor changes made in 2006,\7\ 2007,\8\ and 2010.\9\ Since
that time, multiple TAA Program reauthorizations and amendments have
required various changes to the TAA Program, which the Department has
addressed through administrative guidance. Upon review, the Department
concludes that some administrative guidance must remain active in order
to serve continuing or new workers enrolling under the TAARA 2002 and
TGAAA versions of the TAA Program. The Department will rescind
administrative guidance that is either obsolete or superseded.
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\7\ 71 FR 35511 (June 21, 2006) (making technical amendments to
update obsolete, nonsubstantive, or nomenclature references).
\8\ 72 FR 37097 (July 9, 2007) (making minor changes to 29 CFR
part 90).
\9\ 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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In short, this rule will apply except where it does not apply to
older versions of the TAA Program because of a statutory conflict.
Specifically, certain sections will not apply to members of worker
groups certified under petition numbers TA-W-80,999 and below. Members
of worker groups certified under petition series TA-W-43,000 through
TA-W-69,999 and some under the petition series TA-W-80,000 through TA-
W-80,999 are served by TAARA 2002,\10\ and where this final rule does
not apply to a since-amended version of the statute governing the
relevant version of the program, administrative guidance will continue
to apply for current members of worker groups and any new members of
worker groups determined eligible for training services as well as job
search and relocation allowances under that version of the program. The
same applies for members of worker groups certified under petition
series TA-W-70,000 through TA-W-79,999 served by TGAAA. Members of
worker groups certified under petition series TA-W-81,000 through TA-W-
84,999, and some certified under petition series TA-W-80,000 through
TA-W-80,999, are served by TAAEA and this final rule will apply in
full. Members of worker groups certified under petition series TA-W-
90,000 and above, and some certified under petition series TA-W-85,000
through TA-W-89,999, are served by TAARA 2015, and this final rule will
apply in full. The Department has added a clarification to Sec.
618.100(b) of the final rule to explain the limitations of this part
618 and will
[[Page 51901]]
provide technical assistance on this topic.
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\10\ States serving workers certified under petition series TA-
W-42,999 and below should contact their regional office for
guidance.
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One commenter generally supported facilitating State TAA Program
administration. Another commenter wrote that it is difficult to
administer separate TAA programs based on the many previous amendments.
The Department explored whether it was possible to unite all previous
versions of the TAA Program under a single rule to reduce the
administrative burden on the States. Unfortunately, this is not
possible through regulation and the final rule adopts the regulatory
text as proposed.
Section 618.110 Definitions
Section 618.110 sets forth definitions used throughout the TAA
regulations, consolidating definitions from several places in the old
regulations and guidance, as well as adding some new defined terms. If
the Department did not receive public comments on a definition or
inclusion of a specific term, the term is not listed below and the
definition was adopted as proposed, unless stated otherwise.
Some necessary technical changes were made to several definitions;
specifically, the plural pronoun ``their'' was changed to a singular
``his or her'' in the definitions of ``Administrator,'' ``eligible TAA
recipient,'' and ``individual employment plan.'' A similar pronoun
change was made in the definition of ``qualifying separation,'' being
replaced with the acronym ``AAW's.''
Agent State
The Department clarifies that there is only an agent State, other
than the liable State, if the AAW has accessed services outside of the
worker's liable State. Until such time as the worker seeks services in
another State, the liable State is both the liable and agent State. If
the worker is simply seeking to travel to another State under a job
search allowance, or is relocating to another State, that is not
considered to be seeking services in that State. The Department has
added this clarification to the definition.
Exhaustion of UI
The NPRM removed this defined term from 20 CFR 617.3(p) and
included it in proposed subpart G rather than in proposed subpart A.
Several commenters raised concerns with the elimination of the term
``exhaustion of UI.'' The Department noted in the proposal that it
intended to remove this term and address this via the language
contained in proposed Sec. 618.720(e). Upon further review, the
Department concurs with the commenters and has added to subpart A the
original term and its definition into this final rule from 20 CFR
617.3(p), changing only the phrase ``an individual'' to ``a worker.''
Family
The NPRM modified the definition of this term from 20 CFR 617.3(q),
which was based on the Internal Revenue Code definition. The definition
used in the NPRM was the definition of ``immediate family'' used in the
Federal Travel Regulation (FTR) at 41 CFR 300-3.1.
Numerous commenters recommended the Department use the WIOA
definition of ``family'' from 20 CFR 675.300, rather than the proposed
definition. The commenters asserted that this approach would increase
flexibility and better align the TAA Program with WIOA. The Department
proposed the FTR definition of ``family'' because the term is used only
in subpart D, which governs Job Search and Relocation Allowances. The
definition of ``family'' used under other programs, such as WIOA, is
inconsistent with subpart D and the requirements of the FTR and is,
therefore, not used in this final rule. The Department adopts the term
and definition as proposed. However, a technical correction was made to
remove an erroneous letter ``s'' before the apostrophe. The rest of the
definition of the term is adopted as proposed.
Full-Time Training
The NPRM added ``full-time training'' and defined it for the first
time. The definition was derived from 20 CFR 617.22(f)(4) and defined
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 also added an interpretation,
originally published in TAAEA administrative guidance, that provided
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.
A commenter agreed with the proposed definition of ``full-time
training,'' saying it would help States assess TRA eligibility for
students who are in their last semester of training. The Department has
adopted this term and definition as proposed.
Group of Workers
The NPRM added ``group of workers'' and defined it for the first
time in regulations. This term relates to the workers who file a
petition or for whom a petition is filed. The NPRM defined it to mean
at least two workers employed or formerly employed by the same firm, or
an appropriate subdivision. The proposed definition included
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
were included in the definition because they, too, may be trade-
affected workers.
Two commenters supported redefining ``group of workers'' as meaning
two or more (not three or more) workers. One commenter was concerned
that the change would result in a higher volume of petitions filed and
certified.
The Act does not define ``group of workers'' and does not otherwise
indicate how many workers must be in a group. According to a plain and
ordinary meaning of the term ``group,'' the word means more than one.
Thus, the Department has reduced the number of workers required to two,
allowing for the broadest interpretation of ``group.'' The Department
acknowledges that this change may result in a higher volume of
petitions; nevertheless, it concludes that this definition is
consistent with the statutory framework. The Department adopts this
term and definition into the final rule as proposed.
Individual Employment Plan or IEP
The NPRM added ``individual employment plan or IEP'' and defined it
for the first time. 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.
A commenter recommended a small edit to the definition of
``individual employment plan'' (replacing the word ``State'' with the
phrase ``career planner'') for better alignment with both 20 CFR
680.170 of the WIOA regulations (definition of IEP) and the proposed
changes to permit staffing flexibility in the TAA Program regulations.
Throughout the rule, the Department uses the term ``State'' because the
obligation for providing these services under the Governor-Secretary
Agreement is on the State. Some commenters were concerned that this was
not the appropriate term to use, considering that the additional
flexibility provided in the area of merit
[[Page 51902]]
staff requirements will result in many of the services under the TAA
Program being delivered by local area WIOA staff that are not State
employees.
The TAA Program is operated under an agreement between the
Secretary and the Governor of each State. Although some services may be
performed or administered by non-State staff, it is the State, via the
cooperating State agency, that is ultimately responsible to ensure that
those services are provided, so ``State'' will be retained throughout
the final rule as the appropriate term.
Lack of Work
The NPRM added ``lack of work'' and defined it for the first time.
The proposed definition was based on administrative guidance related to
``strikes'' and ``lockouts'' and their effect on eligibility for TAA
Program benefits and services since 1987. 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.
One commenter agreed with the definition of ``lack of work'' to
include workers involuntarily barred from work because of an employer-
imposed lockout and maintained that this would reach workers who may
not be covered by State UI laws. The Department adopts this term and
definition into the final rule as proposed.
Layoff
The NPRM modified the definition of this term, by adding the words
``of time'' to the 20 CFR 617.3(z) phrase ``expected to be for a
definite or indefinite period.'' In addition, the language at 20 CFR
617.3(z) and 29 CFR 90.2 that required that the layoff be expected to
last for ``not less than seven consecutive days'' and ``no less than
seven (7) consecutive calendar days,'' respectively, was not included
in the proposed definition, because that restriction was not supported
by the Act.
One commenter requested clarification regarding the Department's
decision not to retain from the previous definition of ``layoff'' in 29
CFR 90.2 the requirement that the employer's suspension of a worker
from pay status for lack of work be expected to last ``no less than
seven (7) consecutive calendar days.'' The commenter asked, as an
example, whether a worker who is ``laid off'' for 1 day and then starts
employment with the same employer at a different facility would qualify
for relocation allowance, or whether that would be treated as a
``transfer.'' More broadly, the commenter sought clarification about
whether there are specific instances in which a State must consider the
length of the layoff to determine a worker's eligibility for some TAA
Program benefits.
The NPRM proposed removing the language regarding 7 consecutive
days. The language removal affirmed that, consistent with the
commenter's example, an AAW can be laid off from trade-affected
employment for 1 day and begin employment for the same employer at
another facility that is not the same subdivision or firm of the
certified worker group. Also, if all other eligibility requirements are
met, the worker may qualify for a relocation allowance. The Department
has determined that, generally, States may consider the length of a
layoff to help determine if a qualifying separation is either a first
separation or the most recent separation. The Department adopts this
term and definition into the final rule as proposed.
Liable State
The Department clarifies that a liable State is the State whose
State UI law is the applicable law for the claim. Until such time as
the worker seeks services in another State, the liable State is both
the liable and agent State. The Department has added this clarification
to the definition by indicating that a State can be both the liable and
agent State.
On-the-Job Training or OJT
The NPRM modified the definition of ``on-the-job training or OJT''
from section 247(15) of the Act and 20 CFR 617.3(bb). It added that
such training is work-based and performed under contract with an
employer.
A commenter suggested aligning the definition of ``on-the-job
training'' more closely with the WIOA definition (WIOA section 3(44))
to clarify when and how such training is provided and to describe a
limit on the duration of such training. While many of the requirements
align, there are statutory differences between the Act and WIOA as it
relates to OJT, including differing criteria and labor protections. The
Department has aligned this final rule wherever operationally and
statutorily possible with the WIOA Final Rule, but the statutory
differences prevent complete alignment here. The Department adopts this
term and definition into the final rule as proposed.
Prerequisite Education or Prerequisite Coursework or Prerequisite
Training
The NPRM added the terms prerequisite education or prerequisite
coursework or prerequisite training and defined them for the first
time. They refer to approvable training under section 236(a)(5)(E) of
the Act.
A commenter expressed concern that the proposed definition of the
terms prerequisite education or prerequisite coursework or prerequisite
training was overbroad and could result in all but a student's last
courses being treated as prerequisite. The commenter recommended that
the Department adopt an alternative definition, based on language
regarding classroom training currently found in 20 CFR 617.21(g): ``any
coursework or training required by a training provider before entering
an occupational training program designed to impart the skills and
information required to perform a specific job or group of jobs.''
Another commenter requested clarification about the proposed
definition, stating that it appeared inconsistent with administrative
guidance.
The Department concurs with these comments. Though the Department
intended to codify the administrative guidance, the Department's
definition failed to recognize that, throughout a training program,
every course that precedes another one can be considered a
prerequisite. The final rule revises the proposed definition of these
terms and defines prerequisite education as those courses or training
required by a training provider before entering an occupational
training program designed to impart the skills and information required
to perform a specific job or group of jobs, consistent with
administrative guidance.
Program of Remedial Education or Remedial Education or Remedial
Training
The NPRM added ``program of remedial education or remedial
education or remedial training'' and defined them for the first time.
The terms relate to approvable training under section 236(a)(5)(D) of
the Act and are used to refer to education designed to improve trade-
affected workers' basic knowledge.
A commenter asked for clarification on the Department's proposed
definition of the terms program of remedial education or remedial
education or remedial training, stating that it seemed inconsistent
with administrative guidance. The commenter did not provide any
specifics regarding its concern.
The definition as provided, when read in concert with the allowable
services under the employment and case management provisions of subpart
C and the training provisions in subpart F,
[[Page 51903]]
is consistent with the previously issued administrative guidance. The
Department adopts this term and the definition into the final rule as
proposed.
Successor-in-Interest
The NPRM added ``successor-in-interest'' and defined 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 trade-affected
worker's wages are reported to the State or by whom a termination
notice or threatened status letter is issued. Under the proposed
definition, 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.
A State workforce agency commented that the Department's
clarification in the proposed rule of which actions establish a
``successor-in-interest'' relationship will help States by reducing
their need to file petitions seeking to amend a certification. A
different commenter requested further clarity as to how to determine
whether a successor-in-interest exists. Another commenter requested
clarification about the inclusion of wages paid to a worker by a
successor-in-interest for purposes of proposed subpart G. Specifically,
the commenter stated that States are not able to determine whether a
successor-in-interest is ``a valid entity tied to the trade-affected
wage'' and it asked what documentation a State would need to reach such
a determination.
Under the TAA Program, the Department certifies a worker group, not
a firm. Members of the worker group consist of those employed by the
firm named in the certification, those employed by a staffing agency,
those who telework at remote locations, and those employed by a
successor-in-interest. In many circumstances, not all of these
categories of trade-affected workers will be specifically referenced in
the certification, but those workers will nevertheless be included in
the worker group. States can more easily use the factors found in the
definition at Sec. 618.110 to determine whether a successor firm is a
successor-in-interest and this is further discussed in Sec. Sec.
618.225(k), 618.505(b), and 618.820(h). When a State determines that a
firm is a successor-in-interest to the firm named in an active
certification, the State benefits by being able to serve those workers
without the delay of having to file a petition to amend the
certification.
In regards to RTAA, as stated in Sec. 618.505(b), if the State
determines that the AAW 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. This requirement is a protection
against firms purposefully separating workers and then rehiring them
under a successor-in-interest at lower wages, and shifting those costs
to the taxpayer via the RTAA benefit. Applying the certification to the
successor-in-interest reflects that the firm may continue to be
affected by a trade impact. 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
Sec. 618.816(e).
The Department recognizes this may be a shift in how some States
have administered the TAA Program. Specifically, TRA staff will need to
work closely with TAA staff and can no longer rely on employing firms'
names being listed in the certification. This reliance on the
certification as the sole source for employer information creates
delays in serving trade-affected workers. The Department regularly
receives petitions requesting to amend a certification solely to add
the name of a successor-in-interest whose workers have already been
identified to the State in a worker list as part of identifying the
worker group. These requests arise simply because the TRA staff
believes that the firm must be listed in the determination in order for
the trade-affected worker to be eligible to apply for TAA Program
benefits and services. The delays caused by waiting for a subsequent
petition investigation to conclude prior to serving these workers
creates longer periods of unemployment for workers in need of training
or other reemployment services. The Department will provide technical
assistance to States for handling successor-in-interest issues, as well
as for their identification of and provision of benefits and services
for members of certified worker groups. The Department adopts the term
and definition into the final rule as proposed, except for two
nonsubstantive spelling corrections.
Suitable Employment
The NPRM modified the definition of ``suitable employment'' from 20
CFR 617.22(a)(1)(i) and section 236(e) of the Act. The Department
proposed that suitable employment exclude part-time, temporary, or
threatened employment.
A State workforce agency commented that the proposed definition of
``suitable employment'' excluded ``temporary employment'' and asked the
Department to clarify that temporary employment means work lasting 6
months or less. Two additional commenters requested clarification about
the intended meaning of ``threatened employment,'' another category of
work that would not count as ``suitable employment.'' Specifically, one
of the commenters stated that it would support its interpretation as
being ``unlikely to lead to a long-term employment opportunity,''
because of its concern that work meeting that definition, even if not
explicitly temporary, would be susceptible to future elimination. The
commenter maintained that this could trap workers in a ``cycle'' of
needing continuous TAA Program benefits or result in their losing
eligibility for retraining (and, therefore, having to assume training
costs themselves), and should not be considered ``suitable
employment.''
The Department shares these concerns and agrees they should be
considered. For this reason, the proposed definition of ``suitable
employment'' in Sec. 618.110 included language that part-time,
temporary, short-term, or threatened employment is not suitable
employment.
A State workforce agency recommended ``streamlining'' the
definition of ``suitable employment,'' saying that the proposed
definition would lead to unnecessary frustration and confusion among
workers.
The Department concludes that the proposed definition of this term
will reduce confusion by explicitly providing additional guidance to
States and trade-affected workers for when employment is not suitable
employment for purposes of the TAA Program.
Similarly, another State workforce agency raised the following
concerns about the proposed definition of ``suitable employment'': (1)
The phrase ``substantially equal or higher skill level'' is unclear and
open to interpretation and, if maintained in the final rule, will
require administrative guidance for States to operationalize it as a
criterion uniformly and objectively; (2) it is not sufficiently
flexible and could bar workers at higher incomes from eligibility for
some benefits, such
[[Page 51904]]
as job search and relocation allowances, because of inability to find
new work at a high enough wage; (3) the lack of clarity as to whether
and how it should be interpreted relative to other defined terms (i.e.,
``average weekly wage'' and ``wages'') muddles the proper approach to
issues like noncash compensation, commissions, and bonuses; and (4) the
``blanket exclusion'' for part-time work does not account for
situations in which the new work is otherwise suitable in terms of
skills required and wages paid ``(e.g., a production worker ret[r]ains
to be a [Registered Nurse]).''
The phrase ``substantially equal or higher skill level'' is
contained in the statute. In operational terms, States assess the
trade-affected worker's preexisting skill levels, abilities, and
education, and compare them with the requirements of available
employment in the current and projected labor market to determine
suitability. The Occupational Information Network (O*NET) provides
skill level information for hundreds of occupations. To address the
example provided by the State, work scheduled for a Registered Nurse
may only be 3 or 4 days a week, but the job is unlikely to be
considered part-time under State law based on the hours worked. The
Department further explains that the determination of the availability
of suitable employment is used for the approval of benefits, not for
projecting employment following the completion of training.
Several comments were received about the definition of ``suitable
employment,'' requesting clarification of its relationship to the
definition of ``wages.'' Proposed Sec. 618.100(a) established that the
purpose of the TAA Program is to return trade-affected workers to
suitable employment as quickly as possible, which is unchanged from 20
CFR 617.2. 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 and earns at
least 80 percent of his or her 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 may
occur because (1) few, if any, jobs are available at the workers'
former wages with 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.
Offering appropriate training, especially in a stagnant labor market,
may significantly increase a trade-affected worker's prospects of
obtaining suitable employment. Trade-affected workers must have access
to training and services that will allow them the best possible
outcomes and ability to compete for work at the highest skill levels
and highest wages achievable, 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; given
the trade-affected workers' preexisting skill levels, abilities, and
education, and the current and projected needs of employers. States
must ensure they administer their programs equitably and reasonably.
The Department adopts this term and definition in the final rule as
proposed.
Wages
The Act does not provide a definition of ``wages,'' so the
Department proposed to retain the definition of ``wages'' from existing
regulations at 20 CFR 617.3(pp).
One commenter was concerned with the ability of staff to calculate
noncash compensation. Another commenter stated that the proposed
definition of wages would complicate calculations needed under the RTAA
benefit.
In response to these comments, the Department has reconsidered the
proposed definition of ``wages.'' The final rule yields to applicable
State laws, contains a new reference to a State's definition of
remuneration under State UI law, and revises the proposed definition in
Sec. 618.110 accordingly.
There is no practical or operational change with this revision,
including no change for calculating TRA, or for determining whether
reemployment is suitable employment. Before a State can approve a
training program, the State must ensure that there is not suitable
employment available to the AAW. While calculating the wage component
of suitable employment is statutory, it is 80 percent of the average
weekly wage as defined by the Act. When exploring the local labor
market, the worker and the State will be limited to the information
contained in job postings in calculating the reemployment wage. These
postings will likely contain an hourly wage rate, annual salary amount,
or range. Although the posting may contain reference to other benefits,
commissions, or bonuses, these are not usually listed with a known
value and are often not guaranteed. Where there is no known value of
these benefits, bonuses, or commissions, the State would simply use the
wage rate or annual salary amount in the posting to determine whether
the wage portion of the definition of suitable employment has been met.
Where there are definite benefits, commissions, or bonuses, the State
would include those amounts if it would be included in determining
remuneration under State UI law. Based on oversight and technical
assistance provided on this issue, the Department is confident that
this reflects what is being done in most States under the previous
regulations in 20 CFR part 617.
Other Terminology Applicable Across Part 618
A few commenters requested that the Department define the term
``teleworker.'' A State workforce agency added that, while Sec.
618.225(j) offers some guidance as to its meaning, a fuller definition
in Sec. 618.110, like the definition of ``staffed worker'' found
there, would be helpful. The Department has not included a definition
of the term in this final rule because there is no singular, agreed-
upon definition for the term ``teleworker'' across Federal programs. In
general, teleworkers are workers who are members of a worker group who
work remotely, but take direction from and report to the location
listed for a firm on a certification. The remote location can vary, and
may include the worker's own residence, a shared office space, public
location, etc. Teleworkers may need to provide information or
documentation showing their connection to the worker group if they are
not already listed on the worker list provided to the State by the
firm.
The same commenter offered several further suggestions of
definitions the Department should consider adding to this section of
the rule:
``Adjustment assistance'' (used in Sec. 618.205);
``Annualized reemployment wages'' and ``annualized
separation wages'' (to replace the term ``wages,'' which the commenter
said is defined in a manner inconsistent with how it is used in Sec.
618.520(a)(2)(i) and (ii), with more ``technical'' terms);
``Distance learning'' (in lieu of defining it in Sec.
618.620(b)(2));
``Foreign trade,'' ``foreign trade impacts,'' or both; and
``Remedial education.''
The commenter also requested clarification about whether the terms
``training'' and ``skills training'' are meant to be interchangeable
and suggested that these terms, which (along with the term ``remedial
education'') are used in Sec. 618.610(b)(1), might warrant definition
in this section.
[[Page 51905]]
The requested additional wage-related terms are unnecessary