Trade Adjustment Assistance for Workers, Workforce Investment Act;
Amendment of Regulations
[08/25/2006]
Volume 71, Number 165, Page 50759-50832
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Part IV
Department of Labor
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Employment and Training Administration
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20 CFR Parts 617, 618, 665, and 671
Trade Adjustment Assistance for Workers, Workforce Investment Act;
Amendment of Regulations; Proposed Rule
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Department OF Labor
Employment and Training Administration
20 CFR Parts 617, 618, 665, 671
RIN 1205-AB32
Trade Adjustment Assistance for Workers, Workforce Investment
Act; Amendment of Regulations
AGENCY: Employment and Training Administration, Labor.
ACTION: Notice of Proposed Rule Making (NPRM).
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SUMMARY: On August 6, 2002, President Bush signed into law the Trade
Adjustment Assistance Reform Act of 2002 (the Reform Act), which
amended the Trade Act of 1974, as amended (Act or Trade Act). The
Reform Act reauthorized the Trade Adjustment Assistance (TAA) program
through fiscal year 2007 and made significant amendments to the TAA
program, which generally took effect on November 4, 2002. The
Employment and Training Administration (ETA) of the United States
Department of Labor (Department or DOL) is publishing this proposed
rule to implement the amended TAA program.
DATES: The Department invites written comments on this proposal.
Comments must be submitted by October 24, 2006.
ADDRESSES: You may submit written comments, identified by the proposed
rule's Regulatory Identification Number (RIN) 1205-AB32, on the
proposed rules by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: regulations.TAA@dol.gov. Include RIN 1205-AB32 in
the subject line of the message. Your comment must be in the body of
the e-mail message; do not send attached files.
Fax: (202) 693-3584 (this is not a toll-free number). Only
comments of ten or fewer pages (including a Fax cover sheet and
attachments, if any) will be accepted by Fax.
Mail: Submit comments (preferably with three copies) to
Erica Cantor, Director, Division of Trade Adjustment Assistance, ETA,
U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW.,
Washington, DC 20210. Because of security-related concerns, there may
be a significant delay in the receipt of submissions by United States
Mail. You must take this into consideration when preparing to meet the
deadline for submitting comments.
Instructions: All submissions received must include the agency name
and the RIN for this rulemaking: RIN 1205-AB32. If commenters transmit
comments by Fax or through the Internet and also submit a hard copy by
mail, please indicate that it is a duplicate copy of the Fax or
Internet transmission.
All comments will be available for public inspection and copying
during normal business hours at the Division of Trade Adjustment
Assistance, ETA, U.S. Department of Labor, 200 Constitution Avenue,
NW., Room C-5311, Washington, DC 20210. Copies of the proposed rule are
available in alternative formats of large print and electronic file on
computer disk, which may be obtained at the above-stated address. The
proposed rule is available on the Internet at the Web address http://www.doleta.gov
.
FOR FURTHER INFORMATION CONTACT: Erica Cantor, Director, Division of
Trade Adjustment Assistance, ETA, U.S. Department of Labor, 200
Constitution Avenue, NW., Room C-5311, Washington, DC 20210. Telephone:
(202) 693-3560 (voice) (this is not a toll-free number); 1-800-326-2577
(TDD); facsimile: (202) 693-3584; e-mail: regulations.TAA@dol.gov.
SUPPLEMENTARY INFORMATION: The Reform Act expanded the scope of the TAA
program and increased benefit amounts available under that program,
repealed the North American Free Trade Agreement Transitional
Adjustment Assistance (NAFTA-TAA) program, provided a health coverage
tax credit (HCTC) administered by the Internal Revenue Service (IRS) to
subsidize private health insurance costs for qualified workers, and
enacted a pilot program for Alternative Trade Adjustment Assistance for
older workers (ATAA). These amendments were designed to augment and
improve the delivery of benefits and services to certain workers
adversely affected by foreign trade.
To incorporate into regulations the substantial changes to the TAA
program, including the introduction of ATAA, the Department proposes
creating a new 20 CFR Part 618. The proposed Part 618 consists of nine
subparts: subpart A--General; subpart B--Petitions and Determinations
of Eligibility to Apply for Trade Adjustment Assistance [Reserved];
subpart C--Delivery of Services through the One-Stop Delivery System;
subpart D--Job Search Allowances; subpart E-Relocation Allowances;
subpart F--Training Services; subpart G--Trade Readjustment Allowances
(TRA); subpart H--Administration by Applicable State Agencies; and
subpart I--Alternative Trade Adjustment Assistance for Older Workers
[Reserved]. Because of the complexity of the subject matter and the
States' need for definitive instructions on providing TAA benefits, the
rulemaking for Part 618 is divided into three parts. This Notice of
Proposed Rulemaking covers the general provisions (subpart A) and TAA
benefits portions (subpart C through subpart H) of the regulations.
Separate notices of proposed rulemaking (RIN 1205-AB40 covering subpart
I and RIN 1205-AB44 covering Subpart B) will be published at a later
date.
Consistent with the Reform Act, the Department proposes that the
TAA regulations codified at 20 CFR Part 617 be amended to apply only to
adversely affected workers whose certifications of eligibility to apply
for TAA are based on petitions filed before the effective date of the
amendments, whether the certifications were issued before or after that
date. However, eligible workers covered by Part 617 will be able to use
the HCTC, and the Department proposes to amend Part 617 to require the
States to advise adversely affected workers covered by that Part of the
qualifying requirements for the HCTC and related health insurance
assistance. The Department also proposes revising the regulations
governing Statewide Workforce Investment Activities, and National
Emergency Grants, 20 CFR Parts 665 and 671, respectively. These
revisions will incorporate into the Workforce Investment Act of 1998
(WIA) regulations the new statutory requirement that States provide
rapid response assistance to workers as soon as they have filed
petitions, or petitions have been filed on their behalf, for
certification of eligibility to apply for TAA. A new section will be
added to Part 671 to incorporate the new statutory authority for the
use of funds made available under WIA to make grants to provide health
insurance coverage assistance to certain adversely affected workers
under the Trade Act and others.
This preamble is divided into five sections. Section I provides
general background information on the TAA program. Section II describes
the changes that the Reform Act made to the TAA program. Section III
discusses the Department's guiding principles for implementing reform
of the TAA program through the proposed rule. Section IV discusses the
proposed rule. Section V discusses administrative requirements for this
proposed rulemaking, as mandated by statute and executive order.
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I. Background
The Reform Act amended chapter 2 of title II of the Trade Act of
1974 (Pub. L. 93-618), as amended. The TAA program, established by the
Act in 1974 to provide improved assistance for workers injured or
threatened with injury from increased imports, was changed extensively
by amendments in 1981 (title XXV of Pub. L. 97-35), 1984 (sections 2671
and 2672 of Pub. L. 98-369), 1986 (Part 1 of subtitle A of title XIII
of Pub. L. 99-272), 1988 (Part 3 of subtitle D of title I of Pub. L.
100-418), and 1993 (section 506 of Pub. L. 103-182).
Before the TAA program's most recent amendment in August 2002, the
Department conducted a fact-finding investigation in response to its
receipt of a petition for TAA from a group of workers (or their
representative). If the investigation resulted in the finding that a
group of workers of a firm (or subdivision) had been adversely affected
by import competition, then an ETA certifying officer issued a
certification stating that workers in the identified worker group were
eligible to apply for TAA benefits with the Cooperating State Agency
(CSA).
Then, as now, State agencies administered the TAA program as agents
of the federal government through agreements signed by the Secretary
and Governors of the States. State agencies notified certified workers
of potential TAA benefits and services, made eligibility determinations
for individuals, and delivered benefits and services. Individual
workers who were members of the certified worker group applied for
benefits and services at a local office of the State's One-Stop
delivery system.
Individual workers who met the qualifying criteria could receive up
to 104 weeks of job training, generally up to 52 weeks of income
support in the form of Trade Readjustment Allowances (TRA), job search
allowances, and relocation allowances. In addition, all workers covered
by a certification were eligible for basic reemployment services,
including assistance in writing resumes, job referrals, and
participation in job clubs.
On December 8, 1993, the President signed into law the NAFTA
Implementation Act of 1993, which created the NAFTA-TAA program
(section 250 of subchapter D of chapter 2 of title II of the 1974 Act).
Certifications of worker groups under the NAFTA-TAA program were made
only if imports from Canada and/or Mexico caused the import impact, or
if the workers' firm shifted production of an article to either Canada
or Mexico. Workers (or their representatives) filed petitions with the
Governor of the State in which they were employed, not directly with
the Department. The State performed a preliminary investigation upon
receipt of a NAFTA-TAA petition. If the workers appeared to be impacted
by imports from Canada or Mexico or a shift of production to Canada or
Mexico and the firm's (or subdivision's) sales or production decreased
absolutely, then the State undertook rapid response activities under
WIA. The State transmitted all information gathered in its preliminary
investigation to DOL, which issued the final determination on whether
to certify the group of workers as eligible to apply for NAFTA-TAA
benefits. In order to qualify for TRA, a worker certified under the
NAFTA-TAA program had to be enrolled in approved training within
specific time limits; no waivers from this requirement were allowed.
However, the TAA program allowed waivers of ``basic'' TRA (i.e., the
first 26 weeks of TRA) if training was ``not feasible or appropriate''
for the worker.
As part of its passage of the NAFTA Implementation Act, Congress
approved the Administration's Statement of Administrative Action (SAA).
NAFTA, H.R. Doc. No. 103-159, vol. 1, at 10 (1993). The SAA committed
the Department to provide assistance under the Job Training Partnership
Act (and, after the repeal of that act, under WIA) to ``secondary''
workers who lost their jobs as a result of the loss of business with a
primary firm that was directly affected by imports, but who were not
directly impacted by trade with Canada or Mexico. See id. at 450
(1993). Workers would receive assistance if their firm supplied
components to, or performed finishing operations for, a firm that was
directly impacted by trade with Canada or Mexico. These ``secondary
workers'' either filed a petition for certification under both the TAA
program and the NAFTA-TAA program or filed a petition just under the
NAFTA-TAA program. The Department initiated an investigation into their
eligibility under the SAA if their certification was denied following
the investigation of a NAFTA-TAA petition. The Department determined
whether the worker group was impacted indirectly or ``secondarily'' by
imports from Canada and/or Mexico or a shift of production to Canada or
Mexico. If the Department made an affirmative determination, then
workers in the group were eligible to apply for benefits and services
delivered through the dislocated worker program, even though they did
not qualify for assistance under the NAFTA-TAA program.
II. How the Reform Act Changed the TAA Program
The TAA program has been a required partner in the workforce
investment system since the enactment of WIA in 1998. The Reform Act
expressly directed the Secretary and the States to coordinate the TAA
program with the workforce investment system created under WIA to help
adversely affected workers return to the workforce as quickly as
possible.
The Reform Act expanded the coverage of the TAA program and
increased the benefits provided to adversely affected workers, in part
by consolidating the TAA program and the NAFTA-TAA program. As a
result, there is a uniform set of requirements that replaces the often
different and confusing sets of rules and procedures that applied to
the two programs when they were separate. Before the enactment of the
Reform Act, only workers whose firms (or subdivisions) were directly
affected by increased imports could be certified as eligible to apply
for TAA. Eligibility requirements for the NAFTA-TAA program were more
inclusive. Workers whose firms (or subdivision) were directly affected
by either increased imports from or a shift in production to Mexico or
Canada of an article that is like or directly competitive with the
article their firm (or subdivision) produced could be certified as
eligible to apply for NAFTA-TAA benefits. The Reform Act expanded
eligibility even further by retaining the TAA program's eligibility for
workers who were directly affected by increased imports from any
country and adding provisions to include workers who lose their jobs
when their firms (or subdivisions) shifted production to: a country
that is a party to a free trade agreement with the United States (such
as, but not limited to, NAFTA); a country that is a beneficiary under
certain specified legislation enacted by Congress involving trade
relations; or to any other foreign country when there has been or there
is likely to be an increase in imports of articles that are like or
directly competitive with the articles produced by their firm (or
subdivision).
In addition, the Reform Act expanded TAA program eligibility to
include two categories of secondary workers in the stream of commerce:
those who perform work upstream in the production of a trade-impacted
article and those who perform work downstream in that production. The
first category covers workers who perform activities for a
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firm (or subdivision of a firm) that supplies component parts for the
article produced by a ``primary firm'' (i.e., a firm that employed a
certified group of workers). The Act requires that, if a significant
number or proportion of such secondary workers have been separated (or
threatened with separation), then they will be certified as eligible to
apply for TAA if either the component parts sold to the primary firm
constituted at least 20 percent of the sales of the supplier, or the
loss of business with the primary firm contributed importantly to the
loss of jobs at the supplying firm.
The second category of secondary workers includes workers employed
by ``downstream producers,'' defined as firms (or subdivisions)
providing additional, value-added production processes, such as
finishers or final assemblers of articles produced by a primary firm.
These workers will be certified as eligible to apply for TAA when:
workers of the primary firm were TAA-certified due to increased imports
from or shifts in production to Mexico or Canada of the articles that
were the basis for the TAA certification; a significant number or
proportion of the workers in the secondary workers' firm (or applicable
subdivision) were separated or threatened with separation; and the
secondary workers' firm's (or subdivision's) loss of business from the
primary firm (or appropriate subdivision) contributed importantly to
their separation (or threatened separation). Both the upstream
``supplier'' and the ``downstream producer'' categories of secondary
workers, although not covered by the NAFTA-TAA program, may have been
eligible under the SAA to receive adjustment assistance initially
through the Job Training Partnership Act and later through WIA.
The Reform Act made a number of changes in administrative
requirements under the TAA program. One-Stop operators, One-Stop
partners, including certain State agencies as well as employers of
workers, are specifically added to the categories of entities who may
file a petition, though previously these entities could have filed
petitions only if they were duly authorized representatives of a group
of workers. To inform workers more quickly of the availability of
assistance and to facilitate reemployment, rapid response assistance
under WIA is now triggered by the concurrent submission of a petition
to the Governor and the Secretary. The Department must now make a
determination on whether a petition for certification meets the
approval criteria within 40 days instead of 60 days from the date of
filing of the petition.
To promote adjustment and accelerate reemployment, the Reform Act
provides that eligibility for TRA, which is additional income support
after unemployment insurance (UI) is exhausted, will be contingent on a
worker's enrollment in training not later than 16 weeks after
separation from employment or 8 weeks after the petition for
eligibility has been approved, whichever date is later. In extenuating
circumstances, these deadlines for enrollment in training may be
extended up to 45 days; and a waiver of the enrollment in training
requirement to receive basic TRA may be issued only under limited and
specified conditions. The Reform Act also increased the length of time
that TRA is available to an adversely affected worker who is in
training by increasing the availability of ``additional'' TRA from 26
to 52 weeks and by further adding up to 26 additional weeks of TRA if a
worker is enrolled in a course of remedial education. The primary
purpose of this extended income support is to minimize workers'
financial hardship until they complete training. By requiring that
workers expeditiously enroll in training as a condition of receiving
TRA, the Reform Act amendments provide that workers will be more likely
to complete the training within the duration of that income support.
The Reform Act also established ATAA, a pilot program designed to
encourage the rapid reemployment of workers aged 50 or older.
Petitioners seeking ATAA certification for a group of workers on whose
behalf TAA certification is sought should make their request on the TAA
petition form they submit to the Department. In determining whether to
certify a group of workers as eligible to apply for ATAA, the following
criteria must be considered: (1) Whether a significant number of
workers in the workers' firm are 50 years of age or older; (2) whether
the workers in the workers' firm possess skills that are not easily
transferable; and (3) the competitive conditions within the workers'
industry.
A qualified worker in a group certified as eligible to apply for
ATAA may choose to receive payments of 50 percent of the difference
between their pre-layoff wages and their reemployment wages in lieu of
all other benefits available under the TAA program except the HCTC. A
worker may receive payments for up to a two-year period, but the
maximum amount paid may not exceed $10,000. In order to qualify, a
worker must be at least 50 years of age, become reemployed within 26
weeks of separation, and be reemployed at annual wages of less than
$50,000 in a full-time job that is not the job from which he or she was
laid off. The termination date for ATAA is August 6, 2008, five years
after the date of its implementation. However, participants may
continue to receive the balance of the payments for which they were
eligible after the termination date.
The Reform Act amended the Internal Revenue Code (IRC) to authorize
the HCTC for certain eligible individuals in the new and old TAA
programs and in the NAFTA-TAA program. The Reform Act added a new
section 35 to the IRC, establishing the HCTC which is a tax credit
covering 65 percent of the cost paid by the individual for coverage of
the individual and the individual's qualified family members under
qualified health insurance. Potentially eligible individuals fall into
three groups: (1) ``eligible TAA recipients,'' meaning individuals who
are receiving TRA or who would be eligible to receive TRA if they had
exhausted their UI; (2) ``eligible alternative TAA recipients,''
meaning individuals who are receiving a benefit under the ATAA program;
and (3) ``eligible PBGC pension recipients,'' meaning individuals who
are at least age 55 and receiving pension benefits paid, at least in
part, by the Pension Benefit Guaranty Corporation (PBGC). The credit
has been available on an advance basis since August 1, 2003. With
respect to advance payments of the credit, the Reform Act requires the
Secretary of Labor to certify an individual as an eligible TAA
recipient, eligible ATAA recipient, or eligible PBGC pension recipient
to enable potentially eligible recipients to seek the credit from the
IRS. The IRS then determines whether the other HCTC eligibility
criteria have been met. The Department is coordinating administration
of this responsibility and other aspects of the HCTC with the
Department of the Treasury, the Department of Health and Human
Services, the PBGC, and the CSAs administering the TAA program.
The Reform Act also added two new aspects to the National Emergency
Grant (NEG) program administered by the DOL under WIA to assist the
States in providing health insurance coverage assistance to eligible
individuals. One type of NEG is available primarily to provide health
insurance coverage assistance to eligible individuals and to pay the
administrative and startup costs of enrolling such individuals, which
includes the processing of the eligibility certificates necessary for
the tax credit. The other type of NEG is available
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primarily to provide interim health insurance coverage assistance and
supportive services (such as transportation, child and dependent care,
and income assistance) to individuals eligible for the tax credit,
including eligible TAA recipients under the old TAA and NAFTA-TAA
programs.
The Reform Act also amended the Employee Retirement Income Security
Act, the Public Health Service Act, and the IRC to allow a temporary
60-day extension of the period during which individuals who are ``TAA-
eligible recipients'' may elect Consolidated Omnibus Budget
Reconciliation Act (COBRA) continuation coverage under the layoff
employer's health insurance plan. The temporary extension provided
under the Reform Act begins on the day the individual first meets the
TAA eligibility requirements. The TAA-eligible worker must elect to
receive the temporary extension within six months after the date of the
TAA-related loss of coverage, which the statute defines as the loss of
health benefits coverage associated with the separation of the TAA-
eligible individual from employment. If a worker elects to receive the
extension, then either the tax credit or the NEG would be available to
assist the worker to make the payments for the continuation coverage.
Aspects of the tax credit that are administered by the Internal
Revenue Service and the Department of the Treasury are not addressed in
the proposed regulations. However, the Department proposes amendments
to WIA regulations at 20 CFR Part 671 to reflect the new tax credit-
related changes to the NEG programs. Funds made available to States
under WIA section 174 will be used to provide health insurance coverage
assistance to eligible TAA recipients, eligible ATAA recipients and
eligible PBGC pension recipients under WIA section 173(f) and (g).
The Reform Act also created a separate TAA for Farmers program.
Eligibility determinations for that program are the responsibility of
the Secretary of Agriculture. Agricultural commodity producers entitled
to cash benefits under that program are entitled to the same basic
reemployment services and training as other workers covered by the TAA
program, but they may not receive TRA, job search or relocation
allowances, or the HCTC. The Department of Labor provides funding for
the employment services and the Secretary of Agriculture oversees the
payment of cash assistance (up to $10,000 per year) provided to
eligible agricultural commodity producers under the Department of
Agriculture's certification. The Secretary of Agriculture issued
regulations implementing the Department of Agriculture's function in
the TAA for Farmers program on August 20, 2003 (68 FR 50048) and
November 1, 2004 (69 FR 63317-01).
III. Guiding Principles for the TAA Program Under Proposed 20 CFR Part
618
The Secretary seeks to ensure that States use effective strategies
to assist adversely affected workers in rapidly obtaining sustainable
employment through the operation of the TAA program and the
demonstration ATAA program for older workers. State agencies must
increase their focus on early intervention, upfront assessment and
reemployment services for adversely affected workers. The initiation of
rapid response activities upon the filing of a petition for
certification of eligibility to apply for TAA allows State agencies the
opportunity to provide workers with early assessment and identification
of their marketable skills. A CSA's first priority should be to provide
job search assistance and other reemployment services to improve the
likelihood of these workers obtaining sustainable employment quickly.
Where training is appropriate, it should be designed to return the
worker to employment as quickly as is consistent with the worker's
training goals.
Career centers in the One-Stop delivery system will become the main
point of participant intake and delivery of benefits and services by
the States. This approach encourages coordination among workforce
investment and other One-Stop partner programs including the TAA
program, which will better serve workers and promote efficiencies in
the workforce investment system.
Fiscal integrity and performance accountability will be monitored
to ensure that the money allocated for TAA and ATAA is used to assist
workers and thereby strengthen the economy. Improved participant
outcome measures for the program will assist the Department and the
States in reaching these goals.
IV. Summary and Discussion of Regulatory Provisions
The rules proposed in this NPRM, covering TAA program benefits and
administration, are based largely on the current regulations codified
at 20 CFR Part 617 (Trade Adjustment Assistance for Workers under the
Trade Act of 1974). The proposed Part 618 regulations also incorporate
amendments to the TAA program effectuated by the Reform Act, and
simplify the language adopted from the current regulations in
compliance with the Presidential directive that Federal agencies write
new regulations in plain language (63 FR 31885, June 10, 1998). In
accordance with the Reform Act, the claims of workers covered by
petitions filed before November 4, 2002 continue to be governed by the
rules of the TAA and NAFTA-TAA programs prior to that date. These rules
will continue to be codified at 20 CFR Part 617. In addition, the
NAFTA-TAA operating instructions previously issued by DOL, General
Administrative Letter No. 7-94 (59 FR 3871, January 27, 1994) and
changes 1, 2, and 3 (69 FR 60898, October 13, 2004; 69 FR 67963-03,
November 22, 2004) will continue to apply to eligible participants of
the TAA and NAFTA-TAA programs until superseded by these regulations.
The proposed amendments to 20 CFR Part 617 and to the WIA
regulations, codified at 20 CFR Parts 665 and 671, respectively,
reflect both the Reform Act requirements for coordination between the
workforce investment system and the TAA program and changes to the NEG
program relating to the HCTC.
Part 617--Trade Adjustment Assistance Under the Trade Act of 1974 for
Workers Certified Under Petitions Filed Before November 4, 2002
The proposed revisions to Part 617 include changing the title to
clearly identify that this Part applies only to workers certified as
eligible to apply for trade adjustment assistance under petitions filed
before the Reform Act changed the TAA program. Proposed Sec. 617.1
amends this section to provide further clarification that the
provisions for TAA assistance under this Part 617 will continue to
apply after the effective date of Part 618 only to adjustment
assistance, TRA, and other allowances available to adversely affected
workers covered by certifications issued under petitions filed with the
Secretary before November 4, 2002, the effective date of the Reform Act
amendments to the TAA programs. Proposed Sec. 617.10 adds a new
paragraph (e) to that section to require CSAs to advise adversely
affected workers subject to the requirements of the TAA program in
effect before November 4, 2002 of the qualifying requirements for the
health coverage tax credit (HCTC) and related health insurance
assistance established by the Reform Act.
[[Page 50764]]
Part 618--Trade Adjustment Assistance Under the Trade Act of 1974 for
Workers Certified Under Petitions Filed After November 3, 2002.
Subpart A--General
Subpart A describes the TAA program and the contents of all the
subparts. In addition, it defines all relevant terms used in other
subparts. (Several definitions related to subpart B (Petitions and
Determinations of Eligibility to Apply for Trade Adjustment Assistance)
are held in reserve for publication with subpart B.) Several
definitions have been modified and simplified to clarify their
meanings, or eliminated in response to statutory changes in the TAA
program. In addition, definitions of new terms have been added to
describe the amended TAA programs, including the new ATAA program. Use
of these definitions in the NPRM is intended to facilitate the
integration of the TAA programs into the One-Stop system under the WIA
and to describe and implement new concepts introduced into the TAA
programs by the Reform Act, such as the HCTC. Major changes include:
The goal of the program has been defined as providing
workers, so as quickly as possible, with assistance to return them to
work that will use the highest skill levels and pay the highest wages
given the workers' preexisting skill levels and education and the
condition of the Labor market.
The definition of adversely affected worker has been
clarified to include the owner of a small business adversely affected
by foreign trade.
A new definition of customized training has been added.
Definitions necessary for HCTC processing have been added.
Proposed Sec. 618.100 describes the purpose of the program, which
the Department, based on past experience, has modified to reflect
achievable outcomes for a worker. Under the current statement of
purpose at 20 CFR 617.2, the stated goal of the TAA program is to
return workers to suitable employment as quickly as possible. In this
context, ``suitable employment'' means that after the worker received
services under the TAA program, the worker would be re-employed at 80
percent of his or her former salary. While that goal has not changed,
the Department has revised the wording of the goal to make it clear
that finding ``suitable employment'' is a goal, not a requirement of
the Act.
Although the ``suitable employment'' standard is a worthy goal, and
one that the Department intends to continue to pursue, it is merely a
goal and not a program requirement. Unfortunately, there are situations
in which workers may be unable to obtain ``suitable employment'' either
in the local Labor market or as a result of training. This may occur
because the workers are experienced workers for whom few jobs at their
former wages are available, because of a depressed local Labor market
in which there are few available jobs, or because the workers have
substantial barriers to reemployment. These factors significantly
constrain the training opportunities that are available for these
workers, and therefore, their employment prospects as well. Yet
providing training, especially in a stagnant Labor market, may
significantly increase a worker's chances for obtaining a decent job
with career advancement prospects or of succeeding in the Labor market.
The Department's goal is to provide the best possible outcome for
each worker participating in the program. Therefore, the Department is
committed to providing training that will allow a worker to compete for
the highest paying employment achievable given the worker's pre-
existing skills, abilities, and education, and the current job market.
The proposed purpose section accurately reflects the Department's goal.
Proposed Sec. 618.105 sets forth the effective dates for various
aspects of the TAA program, the ATAA program, and HCTC, as provided by
the Reform Act. Until these regulations at Part 618 take effect,
Training and Employment Guidance Letter (TEGL) No. 11-02 and its
changes will continue to govern determinations on certifications and
benefits for workers covered under petitions filed after November 3,
2002. Similarly, TEGL No. 2-03, and its changes, continue to govern
determinations on ATAA certifications and benefits made before the
effective date of this Part 618. Part 617 will continue to apply to the
operational and benefit provisions of the TAA program for petitions
filed before November 4, 2002 and certifications granted under those
petitions. General Administrative Letter (GAL) No. 7-94 (59 FR 3871,
January 27, 1994) and its changes (69 FR 60898-60903, October 13, 2004)
continue to apply to NAFTA-TAA petitions filed before November 4, 2002,
even when determinations on those petitions are issued after that date.
The terms defined in proposed Sec. 618.110 apply to both the
petition process and the benefit provisions of the TAA program. They
derive from six basic sources: the Act prior to the Reform Act
amendments, the Reform Act, 20 CFR Part 617, 29 CFR Part 90, the WIA
and its implementing regulations at 29 CFR Part 652, et seq. Several
definitions used in 20 CFR Part 617 and 29 CFR Part 90 have been
modified and simplified to clarify their meanings, amended to reflect
current TAA statutory language or eliminated in response to TAA
statutory changes.
The particular definitions are explained as they appear in this
section, in alphabetical order, as follows.
Act--The citation for the Trade Act in the proposed definition is
updated from the citations in 29 CFR Part 90 and 20 CFR 617.3(a) to
include all amendments to the Act through the date of publication of
this notice.
Additional compensation--This proposed term was included in the
description of unemployment compensation in 20 CFR 617.3(oo). The
proposed definition of this term is the same as Sec. 617.3(oo)(2).
Adversely affected employment--This proposed definition is based on
the statutory definition, which was codified in 20 CFR 617.3(a), and,
although the definition has been revised for clarity, no substantive
change from that definition is intended.
Adversely affected worker--This proposed definition modifies the
definition in 20 CFR 617.3(c) to clarify the Department's
interpretation of this statutory term. Under this proposed definition,
an employer may be considered an adversely affected worker when the
employer is also an employee of a business that closes or experiences a
reduction in operation. In this circumstance, if the employer becomes
totally or partially separated from his or her employment, the employer
is an ``adversely affected worker.'' The proposed definition also
changes the definition in 20 CFR 617.3(c) to include the applicable
periods during which the worker's separation must occur in order for
that worker to be eligible to apply for TAA, or TAA and ATAA: the
period from the impact date to two years after the date on which the
certification is signed or earlier if the certification is terminated
before it expires after two years.
Agent State--This proposed definition is substantively unchanged
from the definition and description of agent State codified in 20 CFR
617.3(aa)(2) and 617.16(e).
Alternative Trade Adjustment Assistance, Alternative TAA or ATAA--
This proposed term refers to the assistance provided under the
demonstration program introduced by the Reform Act to provide an
alternate path for adversely affected workers over the age of 50 years
to elect to receive benefits under the Act, as discussed in
[[Page 50765]]
subpart I (reserved for publication at a later date).
Applicable State law--This proposed definition is substantially the
same as in 20 CFR 617.16. The wording has been changed slightly to make
the definition more easily understood, and the separate paragraph
addressing adversely affected workers entitled to UI under the Railroad
Unemployment Insurance Act (RRUI) has been dropped because it is
duplicative of paragraph (a)(2) of this definition in 20 CFR 617.16,
which also applies to adversely affected workers entitled to UI under
the RRUI.
Average weekly hours--This proposed definition is the same as in 20
CFR 617.3(e).
Average weekly wage--This proposed definition is substantively the
same as in 20 CFR 617.3(f). However, it replaces the phrase ``the
individual's appropriate week'' with the phrase ``the week in which the
individual's first separation occurred.'' This change eliminates the
definition of ``appropriate week,'' which was referenced only one time
in the definition of ``average weekly wage'' at 20 CFR 617.3(f).
Therefore, the Department proposes to remove the term ``appropriate
week,'' as defined at 20 CFR 617.3(d), from this proposed Part 618.
This definition otherwise did not change substantively.
Benefit period--This proposed definition is the same as in 20 CFR
617.3(h).
Bona fide application for training--This proposed definition is the
same as the definition in 20 CFR 617.3(i), except that it no longer
includes the direction to the CSA that the form must be signed and
dated upon receipt and the form used is not required to contain the
local office number of the CSA. Instead, proposed Sec. 618.605(b)(2)
directs a representative of the CSA to sign and date the application
upon receipt. Access to CSAs and their contact information via
telephone directories and information assistance and the Internet
obviates the need for a bona fide application for training to contain
the local office telephone number, which may soon be outdated.
Certification--This proposed definition modifies the definition in
Sec. 617.3(j)(1) to include a reference to ATAA. The procedures for
obtaining a certification will be described in the proposed subpart B
[reserved].
Certification period--This proposed definition is the same as in 20
CFR 617.3(j)(2).
Certifying officer--This proposed definition is updated from the
definition in 20 CFR Part 617 by changing ``Office'' to ``Division''
and ``Part 90'' to ``Part 618.''
Co-enrollment--This proposed term refers to an individual who is
participating in a TAA program and is also enrolled in another program
administered through a State's WIA One-Stop delivery system.
Commuting area--This proposed definition is the same as in 20 CFR
617.3(k).
Confidential business information--This proposed definition
replaces the definition at 29 CFR 90.33(a), and provides a more precise
statutory basis, under the Trade Secrets Act, 18 U.S.C. 1905, for
withholding from disclosure commercial and financial data received by
the Department during its investigation of petitions for certification
of worker eligibility to apply for TAA, or TAA and ATAA. Section
90.33(a) identifies the Freedom of Information Act, 5 U.S.C. 552
(FOIA), and the Department's regulations implementing FOIA, 29 CFR Part
70, as the bases for designating confidential commercial information as
``privileged or confidential.'' FOIA exemption (b)(4) exempts from
mandatory disclosure under FOIA certain commercial or financial
information that is the subject of a FOIA request. The Trade Secrets
Act affirmatively prohibits the disclosure of confidential business or
commercial information, in the absence of legal authority. The term
``confidential business information'' is used in connection with
disclosure of information by the Department and by the States, as in
proposed Sec. 618.865(b).
Cooperating State agency or CSA--This proposed term is added to
accurately identify the agency or agencies at the State level that
carry out provisions of the Act because of the new emphasis on
coordination between the TAA programs and the One-Stop delivery system.
While the proposed definition includes the ``State agency,'' as that
term was defined in 20 CFR 617.3(ii), it also includes the State
Workforce Agency and other State or local agencies that cooperate in
the administration of the TAA programs under an agreement between the
Governor and the Secretary.
Customized training--This proposed term is newly defined to
identify a type of training previously not referenced in the Act. While
the Reform Act generally did not amend the job retraining provisions of
the Act, it changed the reference to ``on-the-job training'' to
``employer-based training, including (i) on-the-job training and (ii)
customized training.'' The proposed definition of customized training
refers to Sec. 618.635(b) which describes customized training
similarly to the definition for such training under WIA.
Date of certification--This proposed term means the same as the
term ``date of issuance'' in 29 CFR 90.2, but has been expanded and
renamed to avoid any suggestion that the date on which the
certification is signed may be different from the date on which the
certification is issued. The phrase ``for a group of adversely affected
workers at a firm or subdivision'' is added to the proposed definition
to indicate that the certification will identify the group of workers
to whom it applies.
Date of filing--This proposed definition is modified from the
definition in 29 CFR 90.2. The current office handling petitions under
the TAA programs, DTAA, is substituted. The definition also makes clear
that a petition is only considered filed on the date on which DTAA
receives a complete petition.
Date of separation--This proposed definition is intended to have
the same meaning as 20 CFR 617.3(l), but is rephrased slightly for
clarity and is stated in the disjunctive to make it clear that the
three situations listed are alternatives.
Department of Labor or Department or DOL--This proposed term
identifies the Department of Labor. The abbreviations are added to
simplify references to the agency.
Director--This proposed definition differs from the definition in
29 CFR 90.2 by using the term Division rather than Office to reflect
the current ETA organizational structure, and by including any person
who is designated to act in the place of the Director.
Division of Trade Adjustment Assistance or DTAA--This proposed
definition refers to the name of the organization within the Employment
Training Administration of the Department with responsibility for
administering the TAA programs. CSAs work under the direction of DTAA
to provide services and benefits under the TAA programs.
Eligible ATAA recipient, Eligible PBGC pension recipient and
Eligible TAA recipient--These proposed definitions incorporate the
definitions the categories of persons who may be eligible to qualify
for the health coverage tax credit under section 35 of the Internal
Revenue Code and health insurance coverage assistance under section
173(g) of the WIA, 29 U.S.C. 2918, as amended by the Reform Act. These
categories are defined in sections 35(c)(3), 35(c)(4) and 35(c)(2) of
the Internal Revenue Code, 26 U.S.C. 35(c)(3), (c)(4) and (c)(2). The
CSA must send a list of eligible ATAA and TAA recipients to the
Internal Revenue Service (IRS). However, only the IRS
[[Page 50766]]
can make a determination that an individual who is on that list is
eligible to receive the HCTC.
Employer--This proposed definition is the same as in 20 CFR
617.3(n).
Employment--This proposed definition is the same as in 20 CFR
617.3(o).
Extended compensation or Extended Benefits or EB--This proposed
term was included in the description of unemployment compensation in 20
CFR 617.3(oo). The proposed definition of this term has been revised to
simplify and update Sec. 617.3(oo)(3).
Family--This proposed definition is the same as the definition of
this term in 20 CFR 617.3(q), which is based on the Internal Revenue
Code definition, except for updating the date of the Internal Revenue
Code from ``1954'' to ``1986.''
Federal student financial assistance--This proposed term is added
to describe the various types of student financial assistance
authorized by title IV of the Higher Education Act of 1965, as amended
(20 U.S.C. 1070 et seq.) and Bureau of Indian Affairs student
assistance programs which may be available to adversely affected
workers.
Federal supplemental compensation--This proposed term was included
in the description of unemployment compensation in 20 CFR 617.3(oo).
The proposed definition of this term has been revised to simplify and
update the language used in Sec. 617.3(oo)(4).
Firm--This proposed definition is substantially the same as in 29
CFR 90.2. The definition is intended to be broad enough to encompass
all kinds of organizations and to include closely related or affiliated
organizations. The definition is, however, limited by basic rules of
corporate and organizational law to entities that share the indicia of
common ownership or control.
First benefit period--This proposed definition is substantively the
same as in 20 CFR 617.3(r). To achieve consistency in proposed Part
618, the term ``worker'' is used instead of ``individual,'' which is
used in this definition in Part 617.
First qualifying separation--This proposed definition is
substantially changed from 20 CFR 617.3(t)(3), which defines this term
one way for purposes of determining the weekly and maximum amounts of
basic TRA, and another way for all the other purposes of Part 617. For
simplification, the proposed definition of this term applies solely for
the purpose of determining the weekly and maximum amounts of basic TRA
and is substantively the same as at 20 CFR 617.3(t)(3)(ii). The other
purpose for which this term is used in 20 CFR 617.3(t)(3)(i) is now
covered in the proposed definition of ``qualifying separation'' at
proposed Sec. 618.110.
First separation--This proposed definition is the same as in 20 CFR
617.3(t)(1), except that the cross reference has been deleted as
unnecessary.
Health Coverage Tax Credit or HCTC--This proposed term is added to
describe the tax benefit under section 35 of the Internal Revenue Code
of 1986 (26 U.S.C. 35) that the Reform Act makes available to qualified
TAA and ATAA recipients.
Impact date--This proposed definition slightly revises the
definition of this term at 20 CFR 617.3(v) for simplicity. The impact
date is stated in the certification for eligibility of covered workers
to apply for TAA. As required by section 223(b)(1) of the Act, the
impact date may not be more than one year before the date of the
petition on which such certification was granted.
Individual employment plan (IEP)--This is a new definition.
Generally, an IEP is prepared after conducting a comprehensive
assessment of the worker's employment goals and strategies to achieve
those goals. An IEP means an ongoing strategy jointly developed by the
participant and the case manager that identifies the participant's
employment goals, the appropriate achievement objectives, and the
appropriate combination of services for the participant to achieve the
employment goals.
Job finding club--This proposed definition is the same as the
definition of this term in 20 CFR 617.3(y).
Job search program or JSP--This proposed definition is the same as
the definition of this term in 20 CFR 617.3(w).
Job search workshop--The proposed wording of this term varies
slightly from 20 CFR 617.3(x) to provide a clearer description, but the
meaning is intended to be the same.
Lack of work--This term is used in the definitions of ``adversely
affected worker'' in section 247(2) of the Act, as well as in the
definitions of ``adversely affected worker'' and ``layoff'' in these
proposed regulations. Thus, the term is defined here to clarify its
meaning. The definition includes situations where the employer is
downsizing the workforce by attrition or offering severance benefits to
encourage workers to leave the workforce voluntarily, and where a
worker's hours of employment have been reduced because sufficient work
to maintain that worker's customary hours of work is not available. A
worker who is separated from employment under these circumstances may
be covered as an ``adversely affected worker'' and be eligible to
receive TAA, or TAA and ATAA. It should be noted that some workers will
meet this definition of a ``lack of work'' separation, but will be
disqualified for UI under State voluntary quit provisions. The UI
disqualification will make these workers ineligible for TRA, although
they may qualify for other forms of TAA.
Layoff--This proposed definition follows the definition in 20 CFR
617.3(z) and contains two minor changes to the definition of this same
term in 29 CFR 90.2. The phrase ``suspension or separation from
employment'' used in Sec. 617.3(z) is adopted instead of the phrase
``suspension from pay status'' used in the definition of this term in
Sec. 90.2 because the Department intends for ``layoff'' to include
persons separated from employment who receive severance pay and
therefore may be considered to be in a pay status. This definition may
be an issue for some States, and some workers will be able to get TAA
services other than TRA, for which they may be disqualified based upon
the receipt of severance pay. The Department proposes using the phrase
``expected to be for a definite or indefinite period of not less than
seven (7) consecutive days'' from 20 CFR 617.3(z) rather than the
phrase ``expected to last for no less than seven (7) consecutive
calendar days,'' which is used in the definition of this term in 29 CFR
90.2. Use of the Part 617 language will remove any ambiguity about
whether a suspension or separation from employment may be for a
definite or indefinite period and still be a ``layoff'' for TAA
purposes. Additionally, use of the Part 617 language will notify CSAs
that they must continue to measure the duration of a suspension or
separation from employment as they have been under Part 617.
Liable State--This proposed definition follows 20 CFR 617.3(aa) but
is revised for simplicity. The term ``Agent State'' is now separately
defined at proposed Sec. 618.110.
One-Stop delivery system--This proposed term refers to the system
of entities within a State operating under WIA and its implementing
regulations to provide employment and training activities, including
coordination of services to eligible dislocated workers as defined
under section 101(9) of WIA. WIA section 121(b)(1)(B)(viii) requires
the TAA program to be a partner in the One-Stop delivery system.
On-the-job training (OJT)--This proposed definition, unlike the
[[Page 50767]]
definition in 20 CFR 617.3(bb), defines this term by reference to the
on-the-job training provision at proposed Sec. 618.635(a)(1)
(enrollment in on-the-job and customized training).
Partial separation--This proposed definition combines the slightly
different definitions of this term in 20 CFR 617.3(cc) and 29 CFR 90.2.
The definition of this term in Sec. 90.2 applies to separations ``at
the firm or appropriate subdivision thereof,'' referring to workers who
have not yet been certified as eligible to apply for TAA. After they
have been determined to be eligible to apply for TAA, the workers'
``partial separation'' is referred to in Sec. 617.3(cc) as being ``in
adversely affected employment,'' the term that the Trade Act uses in
section 247(6) of the Act to describe the two measures of ``partial
separation.'' The proposed combined definition retains the statutory
criteria of ``partial separation'' to refer to both workers on whose
behalf a petition has been filed and workers who are covered by a
certification. The proposed definition also clarifies the meaning of
the term by specifying that, in order for the worker to be counted as
partially separated from adversely affected employment, the reduction
of hours must have occurred during a week ending on or after the impact
date specified in a certification.
Program of remedial education--This new proposed term is used to
refer, as the Reform Act does, to education designed to upgrade the
basic knowledge of adversely affected workers through such courses as
adult basic education, basic math and literacy, English-as-a-second-
language, and high school equivalency.
Qualifying separation--This term, as defined at 20 CFR 617.3(t)(2),
is used to determine whether an individual qualifies as an adversely
affected worker and for basic TRA. Under the proposed definition of
this term, it applies for both those purposes as well as for
determining the 16-week period for enrollment in approved training and
the basic TRA eligibility period.
For the purpose of determining the basic TRA eligibility period
under proposed Sec. 618.745(a), an adversely affected worker's
eligibility for basic TRA ends at ``the close of the 104-week [or,
under the Reform Act amendments, if necessary to complete an approved
training program that includes remedial education, the 130-week] period
beginning with the first week following the week in which the adversely
affected worker's most recent qualifying separation (defined in
proposed Sec. 618.110) occurred.'' Thus, every time an adversely
affected worker has a ``qualifying separation,'' he or she begins a new
basic TRA eligibility period, as provided in section 233(a)(2) of the
Act.
This ``movable basic TRA eligibility period'' is the same under
proposed Part 618 as it is under Part 617 because the Reform Act did
not amend it. However, the Part 618 regulations achieve the same result
in a simpler fashion. Section 617.15(a) of 20 CFR provided a 104-week
``eligibility period.'' This term is defined at 20 CFR 617.3(m)(1)(ii)
in reference to the ``first total qualifying separation,'' which is a
``first qualifying separation'' under 20 CFR 617.3(t)(3)(i)(B).
However, the definition of ``eligibility period'' in Part 617 provides
that if an individual has a ``subsequent total qualifying separation
within the certification period of the same certification,'' that
individual would have a new 104-week eligibility period. Thus, the Part
617 regulations provide for a movable basic TRA eligibility period,
through several steps by running the eligibility period from the
``first total qualifying separation,'' and then restarting it where the
adversely affected worker had a ``subsequent total qualifying
separation.'' The Part 618 regulations achieve the same result, but
more simply, by running the eligibility period from the most recent
``qualifying separation'' (defined as, among other things, a total
separation).
The definition of ``qualifying separation'' is used also for the
purpose of determining the 16-week period for enrollment in approved
training as a condition of TRA, a deadline added by the Reform Act.
Proposed Sec. 618.720(b)(2) establishes this deadline as the ``last
day of the 16th week after the adversely affected worker's most recent
qualifying separation as defined in Sec. 618.110,'' thus establishing
a ``movable'' 16-week period for enrollment in approved training, as
provided in section 231(a)(5)(A)(ii)(I) of the Act.
As noted in the preamble explanation of the definition of ``first
qualifying separation'' at proposed Sec. 618.110, that definition
applies only for the purposes of determining the weekly and maximum
amount of basic TRA. The proposed definition of ``qualifying
separation'' also modifies the 20 CFR 617.3(t)(2) definition by
eliminating outdated provisions.
Regional Administrator--This proposed definition is substantively
unchanged from 20 CFR 617.3(dd).
Regular compensation--This proposed term was included in the
description of unemployment compensation in 20 CFR 617.3(oo). The
proposed definition of this term is the same as Sec. 617.3(oo)(1).
Secretary--This proposed term, used to refer to the Secretary of
Labor, United States Department of Labor, is the same as in 20 CFR
617.3(ff).
State--This proposed definition is the same as the definition of
this term in 20 CFR 617.3(hh).
State agency--This proposed definition revises the definition of
this term used in Part 617 by incorporating the statutory definition of
``the agency of the State which administers the State law.'' The
proposed definition of ``CSA'' in proposed Sec. 618.110 is the same as
the 20 CFR 617.3(ii) definition of ``State agency,'' except that
current terminology is used instead of ``State Employment Security
Agency.''
State law--This proposed definition is the same as in 20 CFR
617.3(jj), except that the reference to the Internal Revenue Code has
been updated.
Suitable employment--The proposed definition of ``suitable
employment'' comes from section 236(e) of the Act, defining it as
``work of a substantially equal or higher skill level than the worker's
past adversely affected employment, and wages for such work at not less
than 80 percent of the worker's average weekly wage.'' That section
expressly states that its definition of this term applies for purposes
of section 236. Section 236 uses the term ``suitable employment'' only
in section (a)(1)(A) (the first criterion for the approval of
training), providing for approval where ``there is no suitable
employment * * * available for an adversely affected worker.''
The term ``suitable employment'' also is used in section
231(c)(1)(B) of the Act to permit waiver of the training requirement
for receiving TRA where an adversely affected worker has marketable
skills for ``suitable employment'' and there is a reasonable
expectation of employment at equivalent wages in the foreseeable
future. Section 231 of the Act neither incorporates the definition of
``suitable employment'' in section 236(e) of the Act nor provides a
different definition of the same term. The Department has determined
that it is appropriate to apply the section 236(e) definition of the
term in implementing section 231 of the Act because these provisions
are interrelated. Where ``suitable employment'' is available for an
adversely affected worker, approval of training will be denied under
section 236(a)(1)(A) of the Act. However, the worker may need income
support while looking for that ``suitable employment,'' which may
depend upon a waiver of the training requirement. Using the same
[[Page 50768]]
definition of ``suitable employment'' for purposes of section
231(c)(1)(B) of the Act allows CSAs to decide whether to deny training
and to grant waivers on the same basis.
Sections 237(a)(2)(B) and 238(a)(2)(B) of the Act require, as
conditions for receipt of job search and relocation allowances, that
``the worker cannot reasonably be expected to secure suitable
employment in the commuting area in which the worker resides.'' In
implementing these provisions, the Department proposes in subparts D
and E to use the same definition of the term ``suitable employment.''
This is a departure from the current regulations at 20 CFR 617.32(a)(4)
(on job search allowances) and 617.42(a)(6) (on relocation allowances)
which interpret ``suitable employment'' to mean ``suitable work'' as
defined in 20 CFR 617.3(kk)(1) and (2), whichever is applicable to the
individual. ``Suitable employment'' is generally work at higher skill
levels and wage rates than is ``suitable work.'' By changing the
interpretation of ``suitable employment'' to have the same meaning for
purposes of eligibility for relocation and job search allowances that
it has in proposed subpart F of Part 618 on training, the Department
intends to encourage workers to use these benefits in a manner
consistent with the purpose of the program to encourage workers to seek
new jobs with compensation levels near the levels of those jobs from
which they were separated. This proposed regulatory change may increase
the number of workers who qualify for job search allowances in areas
where ``suitable employment'' opportunities are limited. On the other
hand, using ``suitable employment'' in the eligibility criteria for
relocation allowances could restrict the jobs for which relocation
allowances may be paid.
The Department invites comment on whether it should instead define
``suitable employment'' for purposes of job search and relocation
allowance eligibility as a job at lower wages than ``suitable
employment'' as defined in section 236(e) of the Act for job training
approval. A lower standard for ``suitable employment'' would have the
beneficial effect of increasing the number of jobs for which a worker
might obtain a job search or relocation allowance. On the other hand,
approval for either of these allowances requires that there be no
reasonable expectation of securing ``suitable employment'' in the
commuting area. Therefore, a lower standard would make it more likely
that a disqualifying ``suitable employment'' would be available
locally. The Department also invites comment on what level would be
appropriate, and why.
The proposed definition of ``suitable employment'' differs slightly
from the definition in 20 CFR 617.22(a)(1)(i) by expressly requiring
the CSA to take into consideration the value of fringe benefits,
including health insurance, in determining whether the level of wages
for work is at least 80 percent of the adversely affected worker's
average weekly wage in the adverse employment from which the worker was
separated. The broad definition of the term ``wages'' in 20 CFR
617.3(pp) and proposed paragraph 618.110, which includes ``all
compensation for employment for an employer, including commissions,
bonuses, and the cash value of all compensation in a medium other than
cash,'' is the basis for emphasizing to the CSAs that they must
consider fringe benefits as part of the total wage package factor in
making determinations as to whether ``suitable employment'' is
available to an adversely affected worker. Comments on this change in
definition are specifically requested.
Suitable work--The definition proposed for Part 618 is the same as
the definition of this term in 20 CFR 617.3(kk)(1) and (2), that is,
either as suitable work as defined in the applicable State law for
claimants for regular compensation, or suitable work as defined in
applicable State law provisions consistent with section 202(a)(3) of
the Federal-State Extended Unemployment Compensation Act (EUCA) of
1970. State unemployment insurance laws define ``suitable work'' in
terms of a worker's job prospects. The better the job prospects, the
higher the level of work considered suitable. Further, where a worker's
job prospects are not good, the EUCA considers any work within the
worker's capabilities to be suitable. Lastly, the proposed definition,
as well as the Part 617 definition, excludes self-employment or
employment as an independent contractor. Thus, if self-employment or
employment as an independent contractor is the only available
employment in the worker's commuting area, the worker may be eligible
for a job search or relocation allowance as he or she will not be
disqualified for this reason.
Supportive services--This proposed new term is used to refer to
such services as transportation, childcare, dependent care, and housing
that are needed to enable an individual to participate in activities
authorized under the Act.
Total separation--This proposed definition combines the definitions
currently codified in 20 CFR 617.3(ll) and 29 CFR 90.2. The definition
of ``total separation'' in 29 CFR Part 90 refers to an individual's
layoff or severance ``from a firm or an appropriate subdivision
thereof;'' the 20 CFR Part 617 definition refers to an individual's
layoff or severance from ``employment with a firm in which, or in a
subdivision of which, adversely affected employment exists,'' and
therefore refers to a determination that the individual is covered by a
certification of eligibility to apply for TAA. The proposed definition
recognizes that a ``total separation'' is the same whether or not the
worker group involved is covered by a certification.
Trade adjustment assistance or TAA--The proposed definition of TAA
has been revised to refer to the services and allowances to help
adversely affected workers become reemployed. They include TRA,
training and other reemployment services, job search allowances and
relocation allowances, and HCTC.
Trade adjustment assistance for Farmers program or TAA for Farmers
program--This term is added to refer to the program of adjustment
assistance added to the Act by subtitle C of the Reform Act to provide
benefits and services to agricultural commodity producers through a
certification process administered by the United States Department of
Agriculture under regulations codified at Part 1580 of title 7 of the
Code of Federal Regulations. Employment services and training under the
TAA program are available to agricultural commodity producers
determined by the Department of Agriculture to be eligible to receive a
cash benefit under that program.
Trade readjustment allowance or TRA--This proposed definition is
substantively unchanged from 20 CFR 617.3(nn).
Unemployment insurance or UI--This proposed definition has been
revised to simplify, update and clarify the language in 20 CFR
617.3(oo). The four types of UI defined in 20 CFR 617.3(oo) (regular
compensation, additional compensation, extended compensation or
extended benefits or EB, and Federal supplemental compensation) are
separately defined in this section.
Wages--This proposed definition is the same as the definition of
this term in 20 CFR 617.3(pp).
Wagner-Peyser Act--This new proposed term refers to the Wagner-
Peyser Act, as amended (29 U.S.C. 49 et seq.).
[[Page 50769]]
Week--This proposed definition is the same as the definition of
this term in 20 CFR 617.3(qq).
Week of unemployment--The proposed definition follows the
definition of this term in the Act, and differs from the definition but
not the meaning of this term in 20 CFR 617.3(rr) by using the phrase
``Federal unemployment insurance law'' instead of ``Federal
unemployment compensation law'' to accord with the proposed definition
of UI in paragraph (b)(80) of Sec. 618.110.
Workforce Investment Act or WIA--This proposed term refers to the
Workforce Investment Act of 1998, under which the Department provides
States and local Workforce Investment Areas with funds for employment
and training activities for adults and dislocated workers and for youth
activities.
Subpart C--Delivery of Services Through the One-Stop Delivery System
Proposed subpart C is an entirely new subpart that sets forth
requirements for CSAs to assist individuals who are covered by a
petition but not yet certified, as well as adversely affected workers.
This subpart provides a road map for CSAs of their responsibility for
providing reemployment services, whether they are provided through the
TAA program, through the WIA One-Stop delivery system, or through any
other federal law. It covers rapid response assistance and access to
WIA core and intensive services, as well as supportive and other
services. It emphasizes the integration of the TAA program into the WIA
One-Stop delivery system. Subpart C is added in response to amendments
made by the Reform Act, so it does not have an exact counterpart in
Part 617 of the DOL regulations. Major points include:
CSAs must ensure that their TAA program administration
complies with the One-Stop partnership requirements.
Individuals covered by a petition must be offered rapid
response assistance and WIA core and intensive services.
A needs assessment is required for each TAA applicant and
a comprehensive assessment for any recipient entering training.
CSAs must make every reasonable effort to secure for
adversely affected workers counseling, testing, and placement services
as well as supportive and other services provided for under any other
Federal law.
Co-enrollment is encouraged as a strategy for delivering
services.
CSAs are required to prepare an individual employment plan
(IEP).
Worker benefit eligibility is protected by requiring CSAs
to take timely action on training waivers when appropriate.
CSAs are required to provide employment services to
individuals entitled to cash benefits under the TAA for Farmers program
administered by the U.S. Department of Agriculture.
Proposed Sec. 618.300 discusses the scope of this new subpart,
which focuses on the requirement that TAA program benefits and services
be integrated to the extent possible with the reemployment services
provided through the WIA-funded One-Stop delivery system. Consistent
with the Reform Act, Subpart C is intended to provide individuals with
a seamless delivery of services necessary for each to return to
employment as quickly as possible by requiring and promoting the
integration activities and services described below.
The Act requires cooperating State agencies to provide reemployment
services to two classes of participants: (1) Individuals covered by a
petition for TAA filed by, or on behalf of, a group of workers and, (2)
adversely affected workers who are covered by a petition that has
already been certified. Under section 221(a)(2)(A) of the Act, the
Governor must offer individuals covered by a petition rapid response
assistance and WIA core and intensive services. Adversely affected
workers must be offered core and intensive services, including
counseling, testing and placement services and supportive and other
services provided for under any other Federal law, including the
Wagner-Peyser Act and the WIA. This requirement is based on new
language in section 235, 239(a), (e) and (g) of the Act and the
Congressional Declaration of Policy in section 125(a) of the Reform
Act. These services must be coordinated with workforce activities and
services under Title I of WIA. Section 239(e) and (g) provides the
Secretary with the authority to establish the responsibilities and
requirements for such coordination.
Proposed Sec. 618.305 requires CSAs to ensure that the TAA
program, as a required partner in the One-Stop delivery system,
complies with One-Stop partnership requirements such as sharing staff,
materials, and/or financial resources. The partnership activities help
ensure the seamless delivery of necessary services, including a
comprehensive array of appropriate services not funded under the Trade
Act, to both individuals covered by petitions and adversely affected
workers.
Proposed Sec. 618.310 explains the CSAs' responsibilities for
delivering employment services not funded by the Act. Proposed
paragraph (a) addresses such employment services that CSAs must make
available to workers covered by a petition. It implements section
221(a)(2)(A) of the Act, which requires that, upon the filing of a
petition for TAA, the Governor ensure that covered workers have
available to them WIA rapid response activities (as described in 20 CFR
665.300 and 665.310) and WIA core and applicable intensive services not
funded under the Act. The timely provision of core and intensive
services is an important step toward improving both the efficiency and
the effectiveness of TAA. Further, immediately beginning the process of
employment needs assessment improves participation rates and allows
workers covered by a petition, whether or not the petition is
certified, more time to consider all of the options available to them.
Early intervention services that will benefit covered workers and
adversely affected workers may include orientation; initial assessment
of skill levels, aptitudes, and abilities; provision of Labor market
information; job search assistance; financial management workshops; and
other services.
Proposed Sec. 618.310(b) lists services that CSAs must make every
reasonable effort to provide to workers after TAA certification, as
required under section 235 of the Act. Because the TAA program does not
fund a comprehensive program of reemployment services, it must be
supplemented by services provided through the One-Stop delivery system:
(1) Wagner-Peyser Act Labor exchange system services described at 20
CFR 651.3 to facilitate the matching of workers seeking jobs and
employers seeking to fill jobs; and (2) WIA core and intensive services
such as assessment, vocational testing, employment counseling, case
management, placement and follow-up services, and development of
individual employment plans (IEPs), as well as supportive services such
as transportation and child care assistance.
Proposed Sec. 618.310(c) implements section 235 of the Act by
requiring CSAs to make every reasonable effort to ensure the provision
of services for adversely affected workers under other Federal laws.
This provision comports with Congress' statutory design not to
duplicate efforts by requiring the Secretary and CSAs to seek other
available funding streams for the provision of reemployment services to
adversely affected workers.
Proposed Sec. 618.310(d) permits adversely affected workers to
receive
[[Page 50770]]
employment services from another program if they meet the eligibility
requirements of that program, even if that program is funded under the
Wagner-Peyser Act or WIA, or the program is not exclusively federally-
funded, in accordance with the descriptions of One-Stop partners in 20
CFR 662.200 and 20 CFR 662.210. CSAs should explore the wide variety of
services available through such One-Stop partners as economic
development agencies, and community-based and faith-based organizations
in developing a comprehensive service strategy for workers.
Proposed Sec. 618.310(e) reminds CSAs of the availability of two
funding sources for reemployment services for adversely affected
workers: WIA Dislocated Worker funds for an adversely affected worker
who meets the dislocated worker definition at WIA section 101(9); and
WIA-funded Adult programs for adversely affected workers who remain
partially employed and therefore do not meet the WIA definition of a
dislocated worker. When providing services to partially employed
workers, the CSAs should assess the likelihood of restoring full
employment and any other of the workers' circumstances to develop
appropriate IEPs.
Proposed Sec. 618.315 describes reemployment services which may be
paid for with Trade Act funds. Proposed paragraph (a) implements
section 239(f) of the Act by requiring CSAs to provide information to
individuals about TAA, as detailed in proposed Sec. 618.820. Proposed
paragraph (b) follows 20 CFR 617.20(b) in describing the
responsibilities that a CSA has for the delivery of reemployment
services. However, since proposed paragraph (b) only lists those
responsibilities funded under the Act, paragraphs (b)(2), (b)(5), and
(b)(13) of 20 CFR 617.20 are inapplicable because TAA funds are not
used to provide those services. Paragraph (a) of 20 CFR 617.20 also is
inapplicable under the seamless system envisioned under the Act. The
paragraph is also updated to eliminate a reference to now-inapplicable
Title III of the Job Training Partnership Act by substituting a
reference to the Wagner-Peyser Act and the WIA at proposed Sec.
618.315(b)(12).
Proposed Sec. 618.320 implements the new requirement, at section
221(a)(2)(A) of the Act, that the Governor, upon receipt of a petition
for TAA certification, must ensure the availability of WIA rapid
response assistance (described as ``rapid response activities'' in 20
CFR 665.300 and 20 CFR 665.310) and appropriate core and intensive
services to workers covered by the petition. Under 20 CFR 665.300(a),
which the Department also proposes to amend to address the broadened
State responsibility to covered workers, regular rapid response
activities follow either a permanent closure or mass layoff, or a
natural or other disaster resulting in a mass job dislocation.
Proposed Sec. 618.320(a) provides some flexibility for the
Governor in providing rapid response activities to workers covered by a
TAA petition where rapid response activities were already provided to
those workers. In such cases, the Governor must review the rapid
response activities already provided and determine whether it is
necessary to provide additional information or assistance once the TAA
petition is filed. The Governor may establish protocols and procedures
for CSA and rapid response staff to ensure they use the most effective
methods to notify workers about any additional benefits available to
them under the TAA program. This advance collaboration becomes useful
when the State learns of the filing of a petition at some time after
the layoff has occurred.
Proposed Sec. 618.320(b) encourages Governors to ensure access to
appropriate core and intensive services (as described in WIA section
134(d)(2) and (3)) for workers covered by a TAA petition by using rapid
response activity funding. During rapid response activities, the State
rapid response staff, in coordination with the local One-Stop delivery
system, assesses the needs of the individuals in the petition group, as
well as the local and State resources available to support the workers.
Use of rapid response activity funding to help individuals access core
and intensive services can encourage a more rapid return to employment.
In addition, where there are insufficient partner and other resources
to provide the necessary complementary services to these individuals,
the rapid response activity staff may participate in analyzing the
information gathered through the needs assessment to help develop an
application and secure WIA national emergency grant (NEG) funding to
bring additional reemployment services into the area to support a more
rapid return to employment.
Proposed Sec. 618.325 discusses strategies to ensure the
availability of a comprehensive array of services for adversely
affected workers. Proposed paragraph (a) requires the CSA to
collaborate with local workforce investment boards and other One-Stop
partners, in accordance with the Reform Act, which requires the
Secretary to use services provided under any other Federal law,
``including the services provided through [O]ne-[S]top delivery systems
described in section 134(c)'' of the WIA. This regulation also
encourages collaboration with other available programs, such as local
faith- and community-based programs that may not be One-Stop partners,
to increase the availability of services to adversely affected workers.
This integration of service strategies arises from the requirement in
section 235 of the Act that every reasonable effort be made to secure
employment services, such as counseling, testing, placement services,
and supportive and other services for adversely affected workers.
Proposed Sec. 618.325(b) introduces the topic of co-enrollment of
workers in both TAA and WIA-funded programs. The Department believes
that co-enrollment is the best means to accomplish integration of
services, although the Department leaves the programmatic mechanism to
accomplish this requirement to State and local program design. CSAs may
enhance and expand co-enrollment to include multiple enrollments with a
broader range of service delivery partners and programs. Multiple
enrollment resources may include Wagner-Peyser activities, vocational
rehabilitation services, and veterans' programs such as those provided
by the Department's Veterans Employment and Training Service. Properly
implemented, co-enrollment or multiple-enrollment of trade-impacted
workers in the programs offered through the One-Stop delivery system,
as well as early provision of rapid response services, will further the
adjustment process and promote the most rapid possible return to
employment for all workers. Co-enrollment or multiple-enrollment also
allows covered individuals and adversely affected workers to receive
supportive services that may assist them in a quicker transition to
work.
Proposed Sec. 618.330 requires CSAs to design an assessment
process that affords workers enough time and information to consider,
request, and enroll in training or obtain a waiver of the training
requirement for TRA before expiration of the 8-week and 16-week
deadlines for enrollment in training provided under section
231(a)(5)(A) of the Act.
Proposed Sec. 618.335 discusses the requirements for an initial
assessment of adversely affected workers; the first step in the process
to determine whether the worker will need employment services and
training and may meet the requirements for HCTC and ATAA. It should be
noted that benefit information provided by the CSA to all adversely
[[Page 50771]]
affected workers as discussed in proposed Sec. 618.820(f), should be
no later than at the time of the initial assessment of the adversely
affected worker. However, the CSA may provide this information earlier,
to a worker covered by a petition upon its receipt by the Department
and the Governor.
Proposed Sec. 618.335(a) lists factors that must be considered to
find the best approaches to reemployment that are tailored to a
worker's particular circumstances. A review of the local Labor market
conditions will help the CSA determine if any jobs are available in the
local area for which the worker could apply. A review of the workers'
skills from previous jobs will help the CSA determine whether the
worker will be able to use those skills in new available jobs, or
whether the worker's skills are too specialized to be able to be
transferred to other available jobs. A review of any significant
barriers to employment that may prevent the worker from obtaining
employment will help the CSA identify available training, such as
remedial training to get a high school equivalency degree or to provide
English language training, to address barriers to employment.
Proposed Sec. 618.335(b) allows CSAs to use WIA initial
assessments and assessments performed under other WIA partner programs,
such as those performed under the UI profiling system to identify UI
claimants who are likely to exhaust their UI benefits, as tools for
providing an initial assessment, as long as these other assessments
meet the specific requirements of paragraph (a) of this section. The
use of partner programs' assessments can increase efficiency, ensure
that workers quickly receive appropriate reemployment services, and
quickly identify those workers requiring a more comprehensive
assessment of their skills. The Department recognizes that the lack of
uniform requirements for assessments means that some assessments may
not meet all of the TAA requirements for an initial assessment. In this
case the CSA may be required to supplement those assessments to acquire
sufficient information.
Proposed Sec. 618.335(c) explains the CSA's options for service
strategies based on the information it gathers from the initial
assessment. If a CSA determines there is suitable employment for the
worker, and the worker agrees with this determination, then it will
provide WIA core and intensive services. However, if the worker
disagrees with the determination, then the CSA must provide the worker
with a comprehensive assessment under proposed Sec. 618.345 to be
certain that the initial assessment is correct. If the CSA determines
that no suitable employment is available for the worker, the CSA must
perform a comprehensive assessment to develop a comprehensive service
strategy for the worker and provide reemployment services funded under
the Act, as described in proposed Sec. 618.315. The CSA may also
provide reemployment services not funded under the Act, as described in
proposed Sec. 618.310.
Proposed Sec. 618.340 discusses the CSAs obligations to adversely
affected workers not enrolled in training. Proposed paragraph (a)
focuses on workers who are determined through an initial assessment to
possess marketable skills for suitable employment and are reasonably
expected to find employment at equivalent wages in the foreseeable
future. This section recognizes that the ``suitable employment''
determination in the initial assessment took into account prevailing
local Labor market conditions, as required under proposed Sec.
618.335(a)(1). Also, the CSA must provide for the worker to obtain
referrals to suitable work, as defined in proposed Sec. 618.110,
whichever is applicable to the worker depending on whether the worker
is collecting regular UC or extended benefits (EB)/TRA. Actual
referrals to suitable work are necessary to enable the worker to meet
the EB work test, which is a condition of TRA eligibility under section
231(a)(4) of the Act. The EB regulations appear at 20 CFR Part 615.
Proposed Sec. 618.340(b) requires the CSA to develop a strategy to
review the assessments of workers who may not be successful in a job
search for suitable employment, bearing in mind the deadlines for other
TAA benefits and services, such as TRA and training, when a worker has
not received a training waiver. The review may result in the CSA
developing a strategy to provide the worker with additional services to
facilitate the search for suitable employment without TRA-approved
training. For those workers who received a training waiver for
marketable skills, as provided under proposed Sec. 618.725(b)(2), the
review should be part of the periodic review of waivers issued under
proposed Sec. 618.725(b) to determine whether the conditions for which
the CSA issued the waivers continue to exist, which is required under
paragraph (e) of that section. The review also may result in the CSA
revoking a training waiver and, or initiating a comprehensive
assessment in preparation for enrollment in training.
Workshops provided through WIA or Wagner-Peyser Act programs can
assist those workers with marketable skills to obtain the necessary job
search skills. The TAA program also provides important cash assistance
to help with this job search process, such as reimbursement for Job
Search Program (JSP) expenses, and job search allowances for out of
area job searches (described in subpart D, infra) and relocation
allowances (described in subpart E, infra). Nonetheless, in scheduling
services to be provided after their review of a worker's assessment and
progress in finding employment, CSAs must allow enough time to complete
a comprehensive assessment, as well as any career counseling necessary
for the worker to make an informed training decision and maintain
eligibility for TRA.
Proposed Sec. 618.345 discusses the comprehensive assessment that
the CSA must arrange for each worker seeking TAA approval of a training
program. The comprehensive assessment must update determinations in the
initial assessment regarding the worker's skills, aptitudes, and
abilities (including reading and math levels), and consider the
worker's interests as they relate to employment opportunities that are
in demand either in the worker's commuting area, as defined in proposed
Sec. 618.110, or, where there is no reasonable expectation of
employment in the commuting area, outside the commuting area if the
worker is interested in relocating. The purpose of requiring the
comprehensive assessment is to assure that cooperating State agencies
gather relevant information that will help the worker in selecting
appropriate training, thus increasing the worker's chances of
successfully completing training and finding sustainable employment
afterwards.
Proposed Sec. 618.350 requires the CSA to prepare an IEP, as
defined in proposed Sec. 618.110, for any worker who receives a
comprehensive assessment. The IEP must document the results of the
comprehensive assessment and document a service strategy to provide the
worker with needed services for reemployment, and it must also provide
specific documentation on four specific items. Those four items are:
(1) Whether the six criteria for training approval in Sec. 618.610(a)
through (f) or for issuing a training waiver in proposed Sec. 618.725
have been met; (2) the type of training proposed, if any; (3) any
additional services the worker needs to obtain employment, including
intensive services, supportive services, and post-
[[Page 50772]]
training and follow-up services, as required in proposed Sec.
618.360(b); and (4) any financial prearrangements for the payment of
approved training costs (as described in proposed Sec. 618.625(c)), as
well as any amendments to the training program and any subsistence or
transportation payments, with the basis for its calculation.
Proposed Sec. 618.355 describes the knowledge and abilities that
the staff performing the initial assessment should possess because the
initial assessment is critical to proper functioning of the TAA
program. These skills include: (1) An understanding of the local Labor
market; (2) knowledge of local employer skill demands and hiring
prerequisites, such as educational requirements and professional
certifications, and the sets of skills workers from various occupations
are likely to possess; (3) the ability to identify transferable skills
that a worker may possess that would be of interest to other local
employers outside of the individual's present occupational area; (4)
the ability to quickly evaluate a worker's knowledge of and ability to
implement job search strategies with little or no assistance; and (5)
the ability to identify a worker's apparent employment barriers that
will require additional training and counseling. Because of the
importance that the Department places on the assessment process and its
central role in providing effective and efficient services to adversely
affected workers, the Department believes that having qualified and
knowledgeable staff to perform the assessment function is critical to
the proper functioning of the TAA program.
Proposed 618.360 requires CSAs to continue to provide all workers
enrolled in approved training programs access to the reemployment
services available under proposed Sec. 618.310 and proposed Sec.
618.315 to assist workers as they make the transition from trainee to
employee. The CSAs also must provide follow-up services, including
placement and other appropriate supportive services, to adversely
affected workers upon their completion of training. Such follow-up
services protect the large financial investment the program made in
training the worker by helping workers in need of such services make
the transition back into the workforce.
Proposed Sec. 618.365, which implements section 296(d) of the Act
(19 U.S.C. 2401e(d)), requires the CSA to provide employment services
to agricultural commodity producers who are entitled to cash benefits
under the TAA for Farmers program administered by the U.S. Department
of Agriculture. These individuals may receive training (including
subsistence and transportation allowances), but they are not entitled
to any other benefits under the TAA program.
Subpart D--Job Search Allowances
Subparts D and E address job search and relocation allowance
provisions. Proposed subpart D keeps the 20 CFR Part 617 requirements
intact concerning allowances for job searches outside the commuting
area. For purposes of clarity, these subparts also contain various
editorial and procedural changes, but most changes do not affect the
substantive requirements in the current program regulations. Proposed
subpart E covers relocation allowances available to individuals who
obtain suitable employment outside their commuting area. Major changes
in subparts D and E include:
Changes the eligibility requirement for both job search
and relocation allowances that there be no ``suitable work'' (a state
UI definition) available in the local area to the requirement that
there be no ``suitable employment'' (a national TAA definition)
available in the local area. Since ``suitable employment'' is generally
work at higher skill levels and wage rates than is ``suitable work,''--
meaning that a job is less likely to meet the higher ``suitable
employment'' standard and that such jobs will therefore less likely be
available--the proposed change would make it easier to qualify for a
job search allowance but possibly make it harder to qualify for a
relocation allowance.
Increases the limit for job search allowance reimbursement
per individual per certification from $800 to $1,250, as well as the
lump-sum payment for relocation from $800 to $1,250.
The first section of subpart D, proposed Sec. 618.400, revises 20
CFR 617.30 to reflect the goal of providing a job search allowance to
help the worker secure ``suitable employment,'' as defined in section
236 of the Act, instead of merely assisting the worker in finding a job
that is ``suitable work.'' As discussed earlier in this preamble, the
Department believes that this change will meet the intent of the Act by
encouraging workers to find better paying jobs.
Proposed Sec. 618.405 describes the application process but
differs from the existing regulations at 20 CFR 617.31 on when to file
an application. Under the current regulations, an individual who is
covered under a petition and who is totally or partially separated may
apply for a job search allowance before a certification is issued.
Proposed Sec. 618.405 changes these procedures to require that
applications for job search allowance be accepted only after a
certification has been issued. Thus, all references in proposed subpart
D are to ``adversely affected workers'' and not to ``individuals'' as
in 20 CFR part 617, subpart D. This change is consistent with paragraph
237(a)(1) of the Act, which provides that ``an adversely affected
worker covered by a certification'' may file an application for a job
search allowance. The Department proposes to eliminate pre-
certification applications for job search allowances to avoid
unrealistic expectations for reimbursement. Further, because the
Department has made great strides in reducing the time in which
determinations are made on petitions, the Department believes there is
less need to permit pre-certification applications. The Department has
reduced the average processing time for petitions from 103 days in 2002
to less than 28 days presently. Thus, for most workers, requiring
certification prior to filing a job search application will result in
only a short delay in filing and no delay in payment because only
adversely affected workers may receive a job search allowance. This
approach is similar to that of many assistance programs that generally
do not reimburse individuals for activities conducted with their own
resources prior to the individual becoming eligible for assistance.
Proposed Sec. 618.405(c) also incorporates the one change that the
Reform Act made to the time limits within which a worker must request a
job search allowance. Prior to its amendment, section 237(b)(3) of the
Act required that a worker apply for a job search allowance within 182
days after concluding training approved under the Act, and 20 CFR
617.31(c)(2) contains this time limit. However, the Reform Act amended
this time limit by adding the condition: ``unless the worker received a
training waiver under section 231(c).'' The Department interprets this
statutory amendment to mean that a worker who received a training
waiver before entering an approved training program is not entitled to
the 182-day period after the conclusion of approved training to apply
for a job search allowance. Rather, the worker must file a job search
allowance application within the same 365-day deadline applicable to
other workers under section 237(a)(2)(C) of the Act.
Proposed Sec. 618.410 sets forth the eligibility requirements for
job search allowances. The significant difference between this
provision and 20 CFR
[[Page 50773]]
617.32 is that 20 CFR 617.32(a)(4) requires a CSA to determine that
``suitable work'' is not available in the commuting area and that the
worker has a reasonable expectation of obtaining suitable work of a
long-term duration outside the commuting area. Proposed Sec.
618.410(a)(4) substitutes ``suitable employment'' (as defined in Sec.
618.110) for ``suitable work.'' ``Suitable employment'' is generally
work at higher skill levels and wage rates than is ``suitable work.''
The Department believes this change will increase the availability of
job search allowances to adversely affected workers so that these
workers will have the financial ability to conduct job searches outside
their commuting area. The requirement in 20 CFR 617.32(a)(3) is not
included because proposed Sec. 618.315(b) already requires CSAs to
provide reemployment services and the Act does not contain this
particular registration requirement for job search allowance
eligibility.
Proposed Sec. 618.410(a)(4) implements the new requirement that
the worker has not previously received a relocation allowance under
subpart E under the same certification to clarify that job search
allowances are inappropriate following receipt of a relocation
allowance since a worker has already obtained work to qualify for such
relocation allowance.
Proposed Sec. 618.410(a)(5) allows an individual 30 calendar days
within which to complete a job search, while 20 CFR 617.32(a)(5)
provides ``a reasonable period not exceeding 30 days after the day on
which the job search began'' within which to conduct a job search
outside the commuting area. This change is made to simplify and clarify
the rules for completing job searches. Proposed Sec. 618.410(a)(5)
also adds language that the job search must begin after the date of
certification, which corresponds to the change in proposed Sec.
618.405(b) regarding the application for job search allowances after
issuance of a certification.
Proposed Sec. 618.410(b) describes when a job search is complete
and comports with 20 CFR 617.32(b). A job search is not complete until
the worker has obtained a job or has contacted each employer the worker
planned to contact or to whom the worker was referred by the CSA or
other One-Stop partner.
Proposed Sec. 618.415 describes the CSA's responsibilities and
introduces the terms ``liable State'' and ``agent State'' for
delineating the responsibilities between CSAs with respect to job
search allowances when a job search occurs in a different State.
Because funding is limited, paragraph (a) requires that before
approving a job search payment, a CSA must determine that job search
funds are available for the fiscal year in which the job search
activity takes place. The only proposed change under paragraph (b) is
that it includes the employer contact verification requirement found at
20 CFR 617.32(c), and thereby requires a CSA to verify the worker's
contracts with employers identified in both the worker's own job search
plan and through referrals.
Proposed Sec. 618.420 follows the current regulations at 20 CFR
617.34, but increases the maximum amount available for allowances from
$800 to $1,250 based upon the 2002 Amendments. Proposed Sec.
618.420(b) limits reimbursement to the statutory dollar limit instead
of a particular dollar amount so that, if Congress later increases the
dollar amount, these regulations will not have to be amended.
Proposed Sec. 618.425, like 20 CFR 617.35, requires a worker to
provide supporting documentation in order for payment to be made upon
completion of a job search and require the CSA to reimburse the worker
promptly. Paragraph (a) of this proposed section changes the language
in 20 CFR 617.35(a) by eliminating temporal references because, under
the changes in proposed Sec. 618.405(b), the CSA will accept
applications for job search allowances only after a certification is
issued. Further, paragraph (a) clarifies that job search allowance
determinations are subject to the requirements of Sec. 618.825
(determinations and notice) and Sec. 618.830 (appeals and hearings)
and requires CSAs to include copies of job search allowance
applications and determinations in the worker's case file.
Proposed Sec. 618.425(c), like 20 CFR 617.35(c), permits the CSA
to advance up to 60 percent of the expected cost to be paid to the
worker.
Proposed Sec. 618.430 implements the Reform Act amendment to
section 237(c) of the Act to allow an adversely affected worker
participating in a job search program [JSP] approved by the Secretary
reimbursement for necessary expenses, including transportation and
subsistence allowances, related to their participation in an approved
JSP within or outside their commuting area, subject to available
funding.
Subpart E--Relocation Allowances
This proposed subpart covers relocation allowances available to
workers who obtain suitable employment outside their commuting area.
For purposes of clarity, this proposed subpart makes editorial and
minor procedural changes, most of which do not affect substantive
requirements. The proposed changes are discussed below.
Proposed Sec. 618.500 revises 20 CFR 617.40 to reflect the goal of
providing a relocation allowance to help the worker relocate to secure
``suitable employment,'' as defined in section 236 of the Act, instead
of merely assisting the worker in relocating to begin ``suitable work''
outside the worker's former commuting area (but inside the United
States). As discussed earlier in this preamble, the Department believes
that this change will meet the intent of the Act by encouraging workers
to find better paying jobs.
Proposed Sec. 618.505 retains the general discussion of relocation
allowances found in 20 CFR 617.40, but eliminates the reference to the
``head of the family.'' Instead, it authorizes payment to the adversely
affected worker in the family who first applies for the relocation
allowance, if otherwise eligible. The Department believes this minor
change makes the test easier to administer by eliminating the need
under the current regulations for the family to produce financial
records indicating which family member maintains a home for the family
by providing more than half the cost of maintenance.
Proposed Sec. 618.510 describes the application process for a
relocation allowance but differs from 20 CFR 617.41 on when to file an
application. While proposed paragraph (a) is essentially unchanged from
20 CFR 617.41(a), proposed paragraph (b) allows a worker to apply for a
relocation allowance only after a certification covering that worker is
issued. Thus, all references in proposed subpart E are to ``adversely
affected workers'' and not to ``individuals'' as in 20 CFR Part 617,
subpart E. This is consistent with section 238(a)(1) of the Act, which
provides for ``[a]n adversely affected worker covered by a
certification * * * [to] file an application for a relocation
allowance. * * *'' A worker who is not covered by a certified petition
may relocate using personal funds to take advantage of an opportunity
outside the commuting area, but the worker will not be reimbursed for
the costs of that relocation. As previously noted in the preamble
discussion of proposed Sec. 618.405 (on job search allowances), the
Department is concerned that permitting pre-certification applications
will raise false expectations. Also, because of the substantial
reduction in the average processing time for petitions noted in that
discussion, there will only
[[Page 50774]]
be a short delay in workers being able to file applications.
Proposed Sec. 618.510 also contains the basic requirement that the
relocation may only be approved after a worker files an application and
before the relocation is undertaken. The time limits for filing an
application in proposed Sec. 618.510(c) are the same as in 20 CFR
617.41(c), except that the Reform Act eliminated the second time limit
for filing an application for a relocation allowance (as it did for
filing an application for a job search allowance) for those workers who
receive a training waiver. Prior to its amendment, section 238(a)(2) of
the Act required that the individual must apply for the relocation
allowance within 182 days after concluding training, which is reflected
in 20 CFR 617.41(c)(2). The Reform Act amended this requirement by
adding the condition ``unless the worker received a waiver [of the
participation in training requirement] under section 231(c).'' The
Department interprets this statutory amendment to mean that a worker
who received a training waiver before entering an approved training
program is not entitled to the 182-day period after the completion of
approved training to apply for a relocation allowance. Thus, whenever
the CSA grants a training waiver to a worker under proposed Sec.
618.725, the worker must file for a relocation allowance within the
425-day time limit after the date of certification or the worker's last
total separation under Sec. 618.510(c)(1). Eliminating the 182-day
period whenever the CSA grants a training waiver is consistent with the
plain language of section 238(a) (2)(E)(ii) of the Act.
Proposed Sec. 618.515 on eligibility for a relocation allowance
retains essentially the same requirements as 20 CFR 617.42
(Eligibility) and 20 CFR 617.43 (Time of relocation) but combines these
sections, edits them for clarity and makes three significant changes.
The requirement in 20 CFR 617.42(a)(5) is removed because proposed
Sec. 618.310 of subpart C now requires CSAs to provide reemployment
services and the Act does not contain this particular for relocation
allowance eligibility.
There is an important difference between proposed Sec.
618.515(a)(5) and 20 CFR 617.42(a)(6) in the definition of eligibility.
The proposed provision substitutes ``suitable employment'' (as defined
at proposed Sec. 618.110) for ``suitable work.'' Therefore, before
granting a relocation allowance, the CSA must determine that a worker
has no reasonable expectation of securing ``suitable employment'' in
the commuting area. This is consistent with the treatment of job search
allowances and is a higher standard than the ``suitable work'' standard
that is used in Part 617. Using ``suitable employment'' in the
eligibility criteria for relocation allowances restricts the jobs for
which a relocation allowance may be paid. Nevertheless, the change
furthers the purpose of the TAA program, and the use of relocation
allowances in particular, by improving the financial ability of workers
to obtain new jobs with compensation and skill levels at or near those
of the jobs from which they were separated.
Two other significant differences between Sec. 618.515 and current
regulations involve the timing of relocations. First, proposed Sec.
618.515(a)(6) integrates 20 CFR 617.42(a)(7) and 20 CFR 617.43 and
simply states the two statutory 182-day time limits for beginning a
relocation (instead of stating that a worker must begin a relocation
``within a reasonable period''). Paragraph (a)(6) continues to refer to
a ``reasonable period'' for the time period for completing the
relocation, while retaining the required factors found at 20 CFR
617.43(a) that a CSA must consider in determining whether a worker has
completed the relocation within a reasonable time.
The second significant difference involves the statutory 182-day
time limit in which the relocation must occur. The Reform Act amended
section 238(c)(2) of the Act, which requires the worker's relocation to
occur within 182 days after the conclusion of an approved training
program, by adding at the end of the sentence the condition ``if the
worker entered a training program approved by the Secretary under
section 2296 [section 236 of the Act] (b)(1) and (2) [providing
subsistence and transportation payments for workers in training outside
the commuting area].'' The Department interprets section 238(c)(2) of
the Act to mean that only a worker approved by the CSA, under proposed
Sec. 618.640(c) and (d), to receive subsistence and transportation
payments for training at facilities outside the worker's commuting
area, may use the 182-day time limit after the conclusion of training
within which to relocate. Workers not approved by the CSA to receive
such subsistence and transportation payments, that is, workers who take
their training within their commuting area, are ineligible for the
additional 182-day time limit after the conclusion of training.
Instead, their relocation must occur within the 182-day time limit
after filing the application for a relocation allowance under Sec.
618.515(a)(6)(i)(A).
Proposed Sec. 618.525 simplifies, edits and updates the
requirements for determining the amount of relocation allowances under
20 CFR 617.45, 617.46 and 617.47. In general, a relocation allowance
includes 90 percent of the travel and subsistence costs of the worker
and their family to reach their new home, 90 percent of the cost of
moving household effects, and a lump sum payment equal to three times
the worker's average wage, not to exceed $1,250. This lump sum payment
was raised from $800 by the Reform Act. Proposed Sec. 618.525(a)(4),
however, does not refer to a lump sum dollar amount. Instead, it simply
provides the citation to section 237(b)(2) of the Act so that, if
Congress later increases the amount, these regulations will not have to
be amended.
Proposed Sec. 618.525 requires CSAs to follow the Federal Travel
Regulations (FTR). Proposed Sec. 618.525(a)(2) sets reimbursement
amounts for the family's meals and lodging at 90 percent of the lower
of their actual meals and lodging costs or one-half the applicable
prevailing per diem rates in the FTR. The current per diem rates can be
found on the Internet at the following Web site: http://www.gsa.gov.
Proposed paragraph (a)(1) refers to 41 CFR Parts 301-311 (travel) and
proposed paragraph (a)(3) refers to 41 CFR Part 302 (movement of
household goods). Proposed Sec. 618.525(a)(3)(ii) increases the
allowable amount of insurance coverage of such household goods and
effects to $40,000 from the current $10,000 found in 20 CFR
617.47(a)(1). The Department notes that moving a house trailer or
mobile home, as permitted under proposed Sec. 618.525(a)(3)(i), has
special requirements under the FTR, at 41 CFR 302-10, of which the
worker should be made aware prior to planning such a move. The specific
sections of the FTR may be accessed on the Internet at the following
Web site: http://www.access.gpo.gov/nara/cfr/waisidx_02/41cfrv4_02.html#301-1
.
Proposed Sec. 618.530 on the time and method of payment of a
relocation allowance serves the same purpose as 20 CFR 617.48, although
the proposed rule is edited for clarity and simplified. No relocation
allowances may be paid until the worker is covered under a
certification, makes a timely application, and is otherwise eligible,
and the CSA must promptly make and record determinations, as well as
make prompt payment of, relocation allowances. Any advance payments of
relocation costs will be made at the time of the relocation or as close
to the time of the scheduled relocation as possible,
[[Page 50775]]
but no more than 10 days before scheduled departure. Upon completing
the relocation as described in paragraph (f) of proposed Sec. 618.530,
the worker and the cooperating State agency will reconcile the advances
and costs and the worker will either receive the balance of the
allowance or repay any advance amount that might be due.
Subpart F--Training Services
Proposed subpart F governs TAA training. TAA approval of a training
program entitles a worker to payment of the costs of the training,
subject to a number of limitations included in this subpart. Section
236(a)(6) of the Act does, however, permit other funding sources to pay
all or part of the costs of a TAA-approved training program.
Participation in a TAA-approved training program is an eligibility
requirement for TRA, as explained in subpart G. Major changes include:
CSAs would be required to ensure that every worker has a
comprehensive assessment leading to the development of an IEP to
facilitate appropriate training for the worker.
Clarifying language is added to the six criteria provided
in the law that will enable CSAs to better determine what constitutes
approvable training.
Up to 26 additional weeks of training is provided for
individuals who need remedial education as part of their training
program, for a total of up to 130 weeks of training.
Excludes the purchase of computers as part of the cost of
a training program.
Allows adversely affected workers who are military
reservists ordered to perform active duty that interrupts their
training program to resume, repeat, or begin a new training program
upon discharge.
Provides workers training flexibility by allowing CSAs to
permit individuals to amend their training programs.
Allows the approval of part-time training when combined
with employment, which gives workers the option to continue working
while participating in training.
Requires the use of eligible training providers approved
under WIA to facilitate quality training and co-enrollment for trade
affected workers.
Expands worker training options by permitting distance
learning for all or part of a worker's program where the final degree
or certificate is equivalent to what would have been received if the
training had been conducted on campus.
Allows the Department to use a formula to allocate TAA
training funds to enable states to maximize timely training
opportunities for workers.
Permits the worker to continue training at his or her own
expense when the appropriation for training funds has been exhausted.
This enables a worker to continue to receive TRA and HCTC.
Introduces customized training as an allowable activity
under the TAA program to meet the needs of an employer or group of
employers.
Makes it easier for the worker to attend employer-paid
training by allowing the state to assume any unfunded portion of
partially employer funded programs and by allowing the state to assume
any liability if the worker is unable to successfully complete the
training.
Makes transportation costs for travel to and from training
payable for miles outside the worker's commuting area.
Facilitates the largest number of workers served by
allowing a CSA to determine a maximum reasonable cost for training for
the state or each local area.
Provides training services to individuals entitled to cash
benefits under the TAA for Farmers program administered by the U.S.
Department of Agriculture.
Proposed Sec. 618.600 explains that the purpose of an approved
training program is to assist an adversely affected worker to obtain
skills leading to a new job as quickly and effectively as possible.
Proposed Sec. 618.605 discusses general procedures for adversely
affected workers to apply for training, as well as other procedures
CSAs must follow in making determinations on applications for training.
Proposed paragraph (a) requires CSAs to ensure that every worker has a
comprehensive assessment leading to the development of an IEP, as
described in proposed Sec. Sec. 618.345 and 618.350, before approving
an application for training. The use of a comprehensive assessment in
the development of a worker's IEP is essential to ensure the proper
coordination and use of reemployment services to develop a successful
training program.
Proposed Sec. 618.605(b)(1) follows 20 CFR 617.22(d) on the use of
forms when applying for training, but simplifies the current regulatory
language to describe more accurately the process by which the worker
chooses a training program and applies to the CSA for approval based on
statutory criteria. While a worker may seek assistance from a CSA in
selecting a training program, ultimately it is the worker and not the
CSA who decides whether to apply to a particular training program.
Proposed paragraph (c) differs from 20 CFR 617.22(e) by adding that the
CSA, in making determinations on training and TAA-funded subsistence
and transportation payments under proposed Sec. 618.640, must keep
copies of all applications and determinations in the adversely affected
worker's case file. The Department proposes adding this language to
ensure that a worker's case file is complete and that it contains
relevant information about a worker's request for training.
Proposed Sec. 618.605(d) slightly changes 20 CFR 617.23(a) by
clarifying that CSAs are not required to create new training programs
or develop new curricula where none currently exist. Nonetheless, the
Department strongly encourages CSAs to use all necessary means to find
appropriate training where a significant void in training opportunities
exists. CSAs, in collaboration with the local One-Stop delivery system
and other partners, should explore how to make new training
opportunities available either by approving out of area training or by
encouraging training providers to provide needed training in the local
area, as well as exploring ways in which on-the-job training (OJT),
customized training, and other training programs can be adapted to
accommodate workers in areas that lack training opportunities.
Proposed Sec. 618.610, which corresponds to 20 CFR 617.22(a)(1)
through (a)(6), implements all six statutory criteria for training
approval. The introductory language adds a new requirement that a CSA
must refer to a worker's comprehensive assessment and IEP before
approving training because they will be important tools for measuring
the proposed training against the approval criteria.
Criterion 1, implemented by proposed Sec. 618.610(a), requires
that there be no suitable employment available for the adversely
affected worker. Section 236(e) of the Act provides the definition of
``suitable employment, which appears at proposed Sec. 618.110.
Proposed paragraph (a) generally follows 20 CFR 617.22(a)(1)(i), but
includes the condition that a CSA must deny training approval if the
worker is notified of a specific recall to the firm in the same or
essentially the same job that is expected to be permanent. When recalls
are scheduled in the foreseeable future, workers clearly do not require
training because suitable employment is available to the worker. In
that case, it is appropriate for the CSA to grant a waiver of the
training requirement under the recall provision at proposed Sec.
618.725(b)(1) to allow the worker to qualify for TRA while awaiting the
recall. Proposed paragraph (a) also
[[Page 50776]]
explores more fully the concept of ``no reasonable prospect of such
suitable employment in the foreseeable future'' by requiring the CSA to
look at both the worker's skills and the local or appropriate out of
area Labor market indicators as well as the likelihood of recall.
Criterion 2 (the worker would benefit from the appropriate
training), implemented by proposed Sec. 618.610(b), contains similar
requirements to the current regulation at 20 CFR 617.22(a)(2)(i).
However, instead of referring to ``job readiness,'' criterion 2
emphasizes that the training is expected to improve the worker's
chances of obtaining and retaining ``sustainable employment at higher
wages for the worker than in the absence of training.'' This change
emphasizes the Department's belief that approved training should
provide the worker with the skills necessary to remain employed
throughout a career.
Proposed Sec. 618.610(b)(2) follows the current regulations at 20
CFR 617.22(a)(2)(i) in requiring that a worker be capable of
undertaking, making satisfactory progress in, and completing the
training. However, the Department proposes eliminating the phrase
``mental and physical capabilities'' that is currently contained in 20
CFR 617.22(a)(2)(i) and substituting the phrase ``knowledge, skills,
and abilities'' as the test for determining whether a worker can
undertake, |
