(a) In general--(1) Basic requirement. (i) All individuals otherwise
entitled to
basic TRA, for all weeks beginning on and after November 21, 1988, must
either be enrolled in or participating in a training program approved
under Sec. 617.22(a), or have completed a training program approved
under Sec. 617.22(a), as provided in Sec. 617.11(a)(2)(vii), in order to
be entitled to basic TRA payments for any such week (except for
continuation of payments during scheduled breaks in training of 14 days
or less under the conditions stated in Sec. 617.15(d)). The training
requirement of paragraph (a)(1)(i) of this section shall be waived in
writing on an individual basis, solely in regard to entitlement to basic
TRA, if approval of training for the individual is not feasible or is
not appropriate, as determined in accordance with paragraph (a)(2) of
this section.
(ii) As a principal condition of entitlement to additional TRA
payments, all individuals must actually be participating in a training
program approved under Sec. 617.22(a), for all weeks beginning before
November 21, 1988, and for all weeks beginning on and after November 21,
1988 (except for continuation of payments during breaks in training
under the conditions stated in Sec. 617.15(d)). Paragraph (a)(2) of this
section is not applicable in regard to additional TRA, and the
participation in training requirement of paragraph (a)(1)(ii) of this
section may not be waived under any circumstances.
(2) Waiver of participation requirement. When it is determined, in
accordance with paragraph (a)(2) of this section, that it is not
feasible or is not appropriate (as such terms are defined in paragraph
(b) of this section) to approve a training program for an individual
otherwise entitled to basic TRA, the individual shall be furnished a
formal written notice of waiver, with an explanation of the reason(s)
for the waiver and a statement of why training is not feasible or is not
appropriate in the case of such individual. At a minimum, the written
statement furnished to the individual shall contain information required
by Sec. 617.50(e) as well as the following information:
(i) Name and social security number of the individual;
(ii) Petition number under which the worker was certified;
(iii) A statement why the agency has determined that it is not
feasible or is not appropriate to approve training for the individual at
that time, and the reason(s) for the finding;
(iv) A statement that the waiver will be revoked at any time that
feasible and appropriate training becomes available;
(v) Any other advice or information the State agency deems
appropriate in informing the individual;
(vi) Signature block (with signature) for the appropriate State
official; and
(vii) Signature block (with signature) for the worker's
acknowledgement of receipt.
(3) Denial of a waiver. In any case in which a determination is made
to deny to any individual a waiver of the participation requirement, the
individual shall be furnished a formal written notice of denial of
waiver, which shall contain all of the information required of formal
written notices under paragraph (a)(2) of this section.
(4) Procedure. Any determination under paragraph (a)(2) or paragraph
(a)(3) of this section shall be a determination to which Secs. 617.50
and 617.51 apply, including the requirement that any written notice
furnished to an individual shall include notice of the individual's
appeal rights as is provided in Sec. 617.50(e).
(b) Reasons for issuing a waiver. (1) For the purposes of paragraphs
(a)(2) and (a)(3) of this section, a waiver of the participation in
training requirement shall be issued to an individual only upon a
supported finding that approval of a Sec. 617.22(a) training program for
that individual is not feasible or is not appropriate at that time.
(i) Feasible and appropriate. For the purposes of this section:
(A) Feasible. The term feasible means:
(1) training is available at that time which meets all the criteria
of Sec. 617.22(a);
(2) the individual is so situated as to be able to take full
advantage of the training opportunity and complete the training; and
(3) funding is available to pay the full costs of the training and
any transportation and subsistence expenses which are compensable.
The funding referred to in paragraph (b)(1)(i)(A)(3) of this section
includes not only TAA program funds but also all other funds available
under any of the provisions of the Job Training Partnership Act
(including Title III) or any other Federal, State or private source that
may be utilized for training approvable under Sec. 617.22(a). Further,
the individual's situation in respect to undertaking training (as
referred to in paragraph (b)(1)(i)(A)(2) of this section) shall include
taking into account personal circumstances that preclude the individual
from being able to participate in and complete the training program,
such as the availability of transportation, the ability to make
arrangements for necessary child care, and adequate financial resources
if the weeks of training exceeds the duration of UI and TRA payments.
(B) Appropriate. The term appropriate means being suitable or
compatible, fitting, or proper. Appropriate, therefore, refers to
suitability of the training for the worker (including whether there is a
reasonable prospect which is reasonably foreseeable that the individual
will be reemployed by the firm from which separated), and compatibility
of the training for the purposes of the TAA Program. In these respects,
suitability of training for the individual is encompassed within the
several criteria in Sec. 617.22 (a), and compatibility with the program
is covered by the various provisions of subpart C of this part which
describe the types of training approvable under Sec. 617.22(a) and the
limitations thereon.
(ii) Basis for application. Whether training is feasible or
appropriate at any given time is determined by finding whether, at that
time, training suitable for the worker is available, the training is
approvable under subpart C of this part including the criteria in
Sec. 617.22(a), the worker is so situated as to be able to take full
advantage of the training and satisfactorily complete the training, full
funding for the training is available from one or more sources in
accordance with Secs. 617.24 and 617.25, the worker has the financial
resources to complete the training when the duration of the training
program exceeds the worker's eligibility for TRA, and the training will
commence within 30 days of approval.
(2) Particular applications. The reasons for any determination that
training is not feasible or is not appropriate shall be in accord with
the following:
(i) Not feasible because--
(A) The beginning date of approved training is beyond 30 days, as
required by the definition for ``Enrolled in training'' in
Sec. 617.11(a)(2)(vii)(D),
(B) Training is not reasonably available to the individual,
(C) Training is not available at a reasonable cost,
(D) Funds are not available to pay the total costs of training, or
(E) Personal circumstances such as health or financial resources,
preclude participation in training or satisfactory completion of
training,
(F) Other (explain).
(ii) Not appropriate because--
(A)(1) The firm from which the individual was separated plans to
recall the individual within the reasonably foreseeable future (State
agencies must verify planned recalls with the employer),
(2) Planned recall. For the purpose of determining whether the
recall or reemployment of an individual is reasonably foreseeable (for
the purposes of this section and Sec. 617.22), either a specific or
general type of recall (as set out) shall be deemed to be sufficient.
(i) Specific recall. A specific recall is where an individual or
group of individuals who was separated from employment is identified and
notified by the employer to return to work within a specified time
period.
(ii) General recall. A general recall is where the employer
announces an intention to recall an individual or group of individuals,
or by other action reasonably signals an intent to recall, without
specifying any certain date or specific time period.
(iii) Reasonably foreseeable. For purposes of determining whether
training should be denied and a training waiver granted, because of a
planned recall that is reasonably foreseeable, such a planned recall
includes a specific recall and also includes a general recall (as
defined in paragraph (b)(2)(ii)(A)(2) of this section) if the general
recall in
each individual's case is reasonably expected to occur before the
individual exhausts eligibility for any regular UI payments for which
the individual is or may become entitled. A general recall, in which the
timing of the recall is reasonably expected to occur after the
individual's exhaustion of any regular UI to which the individual is or
may become entitled, shall not be treated as precluding approval of
training, but shall be treated as any other worker separation for these
purposes.
(B) The duration of training suitable for the individual exceeds the
individual's maximum entitlement to basic and additional TRA payments
and the individual cannot assure financial responsibility for completing
the training program,
(C) The individual possesses skills for ``suitable employment'' and
there is a reasonable expectation of employment in the foreseeable
future, or
(D) Other (explain).
(3) Waivers and able and available. An individual who has been
furnished a written notice of waiver under paragraph (a)(2) of this
section (or denial of waiver under paragraph (a)(3) of this section)
shall be subject to all of the requirements of Sec. 617.17(a), which
shall continue until the individual is enrolled in a training program as
required by paragraph (a)(2)(vii) of Sec. 617.11.
(c) Waiver review and revocations. (1) State agencies must have a
procedure for reviewing regularly (i.e., every 30 days or less) all
waivers issued under this section to individuals, to ascertain that the
conditions upon which the waivers were granted continue to exist. In any
case in which the conditions have changed--i.e., training has become
feasible and appropriate--then the waiver must be revoked, and a written
notice of revocation shall be furnished to the individual involved.
(2) In addition to the periodic reviews required by paragraph (c)(1)
of this section, State agencies must have a procedure for revoking
waivers in individual cases promptly whenever a change in circumstances
occurs. For example, a written notice of revocation shall be issued to
the individual concurrent with the approval of the training in which the
individual has enrolled (if such training is scheduled to commence
within 30 days), and shall not be issued prior to such approval.
(3) State agencies may incorporate a revocation section in the
waiver form or on a separate revocation form. Any determination under
paragraph (c) of this section shall be a determination to which
Secs. 617.50 and 617.51 apply. The information included in a written
notice of revocation issued under this paragraph (c) shall include all
of the information required for written notices issued under paragraph
(a)(2) of this section.
(d) Recordkeeping and reporting. (1) State agencies must develop
procedures for compiling and reporting on the number of waivers issued
and revoked, by reason, as specified in paragraphs (b) and (c) of this
section, and report such data to the Department of Labor as requested by
the Department.
(2) State agencies are not required to forward copies of individual
waiver and revocation notices to the Department of Labor, unless
specifically requested by the Department. However, each State agency
shall retain a copy of every individual waiver and revocation notice
issued by the State, for such period of time as the Department requires.
(Approved by the Office of Management and Budget under control number
1205-0016)
[59 FR 932, Jan. 6, 1994]
