§ 617.67 - Transition guidelines for the 1988 Amendments.

The provisions of part 3 of subtitle D of title I of the Omnibus Trade and Competitiveness Act of 1988 (the “OTCA”), Public Law 100-418, approved on August 23, 1988, made material changes in the TAA Program for workers that are reflected in the amended regulations published with this new section on transition guidelines for the 1988 Amendments. States and cooperating State agencies shall be guided by the following paragraphs of this section in the transition to the TAA Program as modified by the 1988 Amendments and reflected in the preceding provisions of this part 617, as well as in the interim operating instructions issued by the Department which are superseded by these regulations. The operating instructions in GAL 15-90, and the Changes thereto, shall continue in effect as guidance on the proper application of the 1988 Amendments except as modified in these final regulations. (GAL 15-90 is available from the Office of Trade Adjustment Assistance, U.S. Department of Labor, 200 Constitution Ave., NW., room C-4318, Washington, DC 20210.)

(a) Oil and gas workers—prospective. Workers in firms or appropriate subdivisions of firms engaged in exploration or drilling for oil or natural gas are newly covered under the TAA Program by an amendment to section 222 of the Trade Act of 1974. This is a permanent change in the Act having prospective effect, and became effective on August 23, 1988. Oil and gas workers covered by a certification issued pursuant to section 223 of the Act and the regulations at 29 CFR part 90 shall be entitled to basic and additional TRA and other TAA Program benefits on precisely the same terms and conditions as apply to other workers covered by other certifications and which are specifically set forth in this part 617.

(b) Oil and gas workers—retroactive. Oil and gas workers referred to in paragraph (a) of this section, who were separated from adversely affected employment after September 30, 1985, are covered retroactively under section 1421(a)(1)(B) of the OTCA, if they are covered by a certification issued pursuant to section 223 of the Act which is in response to a petition filed in the Office of Trade Adjustment Assistance on or before November 18, 1988. Administration of TAA Program benefits to these workers shall be on precisely the same terms and conditions as apply to other workers covered by other certifications, except that the limitations of the impact date provision of section 223(b) and the 60-day preclusion in section 231(a) may not be applied to these workers.

(c) Benefit information to workers. (1) An amendment to section 225 of the Act requires individualized and published notices to workers covered by certifications issued pursuant to section 223 of the Act. This amendment became effective as a requirement on September 22, 1988, and is applicable to all certifications issued on and after that date. Individualized notices and published notices shall contain the information specifically set forth in this part 617.

(2) Section 239(f) of the Act requires cooperating State agencies to furnish four discrete items of information and advice to individuals about TAA Program benefits, commencing with such advice and information to every individual who applies for unemployment insurance under each State's unemployment compensation law. See § 617.4(e). This amendment became effective on August 23, 1988. Information and advice required by section 239(f) shall be provided in accordance with this part 617.

(d) Training and eligibility requirements for TRA. Effective on November 21, 1988, in general, enrollment and participation in, or completion of, a training program approved under subpart C is required as a condition of entitlement to basic TRA. Amendments to sections 231(a)(5), 231(b), and 231(c) of the Act incorporate this new requirement, replacing the job search program requirement which remains in effect through November 20, 1988. Continuation of the job search program requirement through November 20, 1988, and installation of the training program requirement on and after November 21, 1988, is required of all applicants for basic TRA.

(e) Eligibility period for basic TRA. (1) Effective on August 23, 1988, and with respect to all decisions (i.e., all determinations, redeterminations, and decisions on appeals) issued on or after that date, the eligibility period for basic TRA is changed from the prior law. Prior to the OTCA amendments, section 233(a)(2) provided that the eligibility period for an individual was a fixed 104-week period that immediately followed the week with respect to which the individual first exhausted all rights to regular benefits after the individual's first qualifying separation. Under section 233(a)(2) the new eligibility period is movable, and is the 104-week period that immediately follows the week in which the worker's most recent total qualifying separation occurs under the same, single certification. Under the effective date provisions of the OTCA, section 233(a)(2) applies to all decisions (i.e., determinations, redeterminations, and decisions on appeals) issued on and after August 23, 1988. Further, the law to be applied in making any such decision is the law as in effect on the date such a decision is made. These interpretative rules apply in all cases, regardless of whether the total qualifying separation occurred before, on, or after August 23, 1988, except as noted in paragraph (e)(3) of this section.

(2) The major significance of the change in section 233(a)(2) is that, effective for all decisions (i.e., determinations, redeterminations, and decisions on appeals) issued on or after August 23, 1988, it applies to the “most recent” total qualifying separation. This means that, after the first qualifying separation before August 23, 1988, or the first total qualifying separation on and after August 23, 1988, with each subsequent total qualifying separation of an individual under the same certification the individual's eligibility period must be redetermined as the 104-week period that immediately follows the week in which such subsequent separation occurred.

(3) Section 1430(g) of the OTCA requires that the new eligibility period not be applied with respect to any total qualifying separation occurring before August 23, 1988, if as a result of applying section 233(a)(2) the individual would have an eligibility period with an earlier expiration date than the expiration date of the eligibility period established under the prior law and based on a first qualifying separation which occurred under the same certification before August 23, 1988. Therefore, for decisions (i.e., determinations, redeterminations, and decisions on appeals) issued on or after August 23, 1988, for a worker who had a first qualifying separation under the same certification before August 23, 1988, it must be determined what the individual's eligibility period is based upon the prior law, and, if the individual also had a subsequent total qualifying separation, what the individual's eligibility period is based on the amended law. Only if the subsequent total qualifying separation occurred before August 23, 1988, and the expiration date of the new eligibility period ends on the same date or a later date than the expiration date of the old eligibility period may the new eligibility period be applied to the individual, and in that event it must be applied; if the new eligibility period would end on a date earlier than the ending date of the eligibility period based on the worker's first qualifying separation, section 1430(g) operates to preclude the application of amended section 233(a)(2).

(4) Computation of the weekly and maximum amounts of basic TRA do not change under the 1988 Amendments in the OTCA. They must continue to be based upon the first benefit period which is related to the worker's first total or partial separation under the same certification regardless of whether such first separation occurs before, on, or after August 23, 1988. Upon the occurrence of a second or subsequent separation under the same certification which is a total qualifying separation under this part 617, the individual's eligibility period will be 104 weeks after the week of such second or subsequent (total qualifying) separation, but no change will be made in the weekly or maximum amounts of basic TRA as computed in relation to the first separation. Therefore, for any decision (i.e., determination, redetermination, or decision on appeal) issued on or after August 23, 1988, whenever an individual files a new TRA claim it will be necessary to determine whether the individual's most recent separation was a total qualifying separation, and, if so, whether the individual had a prior partial or total separation within the certification period of the same certification which was a first qualifying separation. If such most recent (total qualifying) separation occurred before August 23, 1988, and was not the individual's first qualifying separation, then:

(i) The eligibility period will be the 104 weeks beginning with the week following the week in which the most recent total qualifying separation occurred or 104 weeks after the first exhaustion of regular UI following the first qualifying separation, whichever is longer, and

(ii) The individual's weekly amount of basic TRA, as computed under § 617.13, and the individual's maximum amount of basic TRA, as computed under § 617.14, are established or remain fixed as determined with respect to the individual's first benefit period following the first separation which is within the certification period of the certification covering the individual.

(f) Eligibility period for additional TRA. One technical and one conforming change are made by the OTCA in section 233(a)(3) of the Act, but have no effect on the 26-week eligibility period for additional TRA as the statute has been interpreted and applied in the past. Therefore, the 26-week eligibility period begins with the first week of training if the training begins after exhaustion of basic TRA. Further, if the training begins before approval is obtained under this part 617, the 26-week eligibility period begins with the week in which the determination of approval is issued, if there is any scheduled training session in that week after the date of the determination.

(g) Eligibility for TRA during breaks in training. (1) Paragraph (f) of section 233 of the Act, added by the OTCA, provides for the payment, under specified conditions, of both basic and additional TRA during scheduled breaks in a training program, provided the conditions for such payments are met as expressed in this part 617. By making this provision applicable to basic TRA as well as additional TRA, paragraph (f) of section 233 of the Act changes the prior law for both. Previously, basic TRA was payable during training breaks, but additional TRA was payable solely with respect to weeks of training. Under new section 233(f), both basic and additional TRA are payable during training breaks, but only if the break does not exceed 14 days. Now, as under the prior law, weeks when TRA is not payable will still count against the eligibility periods for both basic and additional TRA, and in the case of additional TRA it will also count against the number of weeks payable.

(2) Paragraph (f) of section 233 of the Act is effective with regard to all decisions (i.e., all determinations, redeterminations, and decisions on appeals) made on or after August 23, 1988, regardless of when the training was approved under section 236 of the Trade Act, or whether the training was approved or is approvable under section 236 as amended by the 1988 Amendments, or when the break in training began or ended. In making any decision involving paragraph (f) of section 233 of the Act, the law to be applied is the law as in effect on the date the decision is made.

(h) Retroactive eligibility for TRA. (1) Effective on August 23, 1988, section 1425(b) of the OTCA provides for an open-ended waiver of the time limit in section 233(a)(2) on the eligibility period for basic TRA, and the 210-day time limit in section 233(b) on filing a bona fide application for training in order to qualify for additional TRA. This waiver provision applies solely to workers who experienced a total qualifying separation in the period which began on August 13, 1981 and ended on April 7, 1986. Other conditions must be met that are specified in section 1425(b) and in this part 617.

(2) Altogether, nine conditions must be met for workers to obtain TRA payments under this special provision. (See § 617.11(a)(3).) Further, this special provision applies solely to weeks which begin after August 23, 1988; no retroactive payments may be made under this special provision. Finally, only the two specific time limitations are waived, and all other requirements of the prior and amended law apply, including the first separation rule (relating to computation of the weekly and maximum amounts of basic TRA payable), the 26-week eligibility period for additional TRA, and the break provision of section 233(f).

(i) Training for adversely affected workers. Extensive amendments to section 236 are made in the OTCA which, except for some technical and conforming changes that take effect on November 21, 1988, all became effective on August 23, 1988. These changes must be effectuated in accordance with this part 617.

(j) Agreements with States. Section 239 also was amended by the OTCA, to require new terms and conditions in the section 239 agreements. This requires new agreements to be executed between the States and the Secretary of Labor, and gives new emphasis to the contractual nature of the obligations entered into by the States to administer the TAA Program in strict accordance with the Act and the regulations and operating instructions issued by the Department.

(k) Other. Other matters covered by the OTCA amendments, as well as the matters discussed in the preceding paragraphs of this section, shall, to the extent that the States may be involved in their implementation, be effectuated in strict accordance with the Act and the regulations and operating instructions issued by the Department, and as of the respective effective dates of the various provisions of the OTCA.