[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 906-945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16]
[[Page Unknown]]
[Federal Register: January 6, 1994]
_______________________________________________________________________
Part IV
Department of Labor
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Employment and Training Administration
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20 CFR Part 617
Trade Adjustment Assistance for Workers; Amendment of Regulations;
Final Rule
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 617
RIN: 1205-AA72
Trade Adjustment Assistance for Workers; Amendment of Regulations
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule; request for comments.
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SUMMARY: This document contains a final rule amending the regulations
on trade adjustment assistance for workers which implement the 1988
Amendments to the Trade Act of 1974 as contained in the Omnibus Trade
and Competitiveness Act of 1988. This action will update the
regulations and will provide uniform instructions to State agencies in
carrying-out their responsibilities under the Trade Act. These State
agencies act as agents of the United States for the purpose of
providing adjustment assistance benefits and services to adversely
affected workers. Comments are requested on the several material
changes being made in this final rule, which differ from the September
1988 proposed rule, and on a number of other changes which were not
included in the proposed rule.
DATES: Effective date: February 7, 1994.
Comment date: Comments on the material changes, from the proposed
rule to this final regulation, are invited and must be received in the
Department on or before February 22, 1994.
ADDRESSES: Written comments on the changes in the regulations, on which
comments are invited, may be mailed or delivered to the Office of Trade
Adjustment Assistance, Employment and Training Administration, 200
Constitution Avenue NW., room C-4318, Washington, DC 20210.
All comments received will be available for public inspection
during normal business hours in Room C-4318 at the above address.
FOR FURTHER INFORMATION CONTACT: Marvin M. Fooks, Director, Office of
Trade Adjustment Assistance, 200 Constitution Avenue NW., Washington,
DC 20210. Telephone: (202) 219-5555 (this is not a toll free number).
SUPPLEMENTARY INFORMATION:
In General
The Trade Act of 1974 made major changes to the trade adjustment
assistance program (hereafter ``TAA program'') for workers displaced
because of increased imports of articles like or directly competitive
with articles produced by the workers' firm. On receiving a petition
for trade adjustment assistance (hereafter ``TAA'') from a group of
workers or its authorized representative, the Department conducts a
factfinding investigation in response to the petition. If the findings
substantiate that the workers of a firm or subdivision of a firm have
been adversely affected by import competition, a certification is
issued stating that the workers are eligible to apply at a local office
of a State employment security agency for TAA benefits.
The 1981 Amendments to the Trade Act of 1974 (Title XXV of Pub. L.
97-35) made extensive changes in the TAA program. Further changes were
made in the 1984 Amendments (Sections 2671 and 2672, of Pub. L. 98-369)
and in the 1986 Amendments (Part 1 of Subtitle A of Title XIII of Pub.
L. 99-272). Final regulations implementing the 1986 Amendments were
published in the Federal Register on August 24, 1988, at 53 FR 32344,
and on May 23, 1989, at 54 FR 22277.
The 1988 Amendments to the TAA program are contained in Part 3,
Trade Adjustment Assistance, of subtitle D of title I of the ``Omnibus
Trade and Competitiveness Act of 1988'' (Pub. L. 100-418) (hereafter
the ``OTCA''). The 1988 Amendments expand eligibility for TAA to
workers in the oil and natural gas industry engaged in exploration and
drilling; require detailed information about TAA program benefits to be
given to every individual who files an initial claim for unemployment
benefits, and further require an individualized notice to every worker
believed to be covered by a certification issued by the Department;
require publication of a notice of the certification in a newspaper of
general circulation; require a worker to participate in training as a
condition for receiving basic trade readjustment allowances (hereafter
``TRA''); authorize the waiver of the training requirement for a worker
when training is not feasible or appropriate; authorize the payment of
basic and additional TRA to a worker during breaks in training that do
not exceed 14 days; reinstate the movable eligibility period for basic
TRA, based on the worker's most recent qualifying (total) separation
rather than the first qualifying separation as was previously required;
extend the expiration date of the TAA program to September 30, 1993;
emphasize coordination with programs and services to dislocated workers
provided under title III of the Job Training Partnership Act; and make
other changes.
While most of the provisions of Part 3 affecting the TAA program
are in the form of amendments to Chapter 2 of Title II of the Trade Act
of 1974, some provisions of Part 3 affecting workers do not amend
existing law. Examples are the provision which permits workers in the
oil and natural gas industry engaged in exploration or drilling,
separated after September 30, 1985, to file petitions under new
eligibility rules, and the provision concerning the eligibility of
workers totally separated from adversely affected employment during the
period beginning August 13, 1981, and ending April 7, 1986. The
provisions of the 1988 Amendments became effective, in general, on
August 23, 1988, except that the amendments to sections 231(a)(5), (b)
and (c) took effect on November 21, 1988, and the amendment to Section
225 took effect on September 22, 1988.
Because many of the 1988 Amendments were effective on the date of
their enactment into law, August 23, 1988, most notably the new
``movable'' eligibility period for basic TRA, the Department issued
interim Operating Instructions in General Administration Letter
(hereafter ``GAL'') No. 7-88, dated September 12, 1988, which was
published in the Federal Register on September 16, 1988, at 53 FR
36180-36213, together with Training and Employment Information Notice
(hereafter ``TEIN'') 6-88. GAL 7-88 and the two changes thereto were
subsequently rescinded and replaced by GAL 15-90, dated August 21,
1990. These GALs disseminated controlling guidance to the States on the
administration of the TAA program as amended by the OTCA, pending the
issuance of final amendments to the regulations. GAL 15-90 was
published in the Federal Register on November 21, 1990, at 55 FR 48774-
48800, together with TEIN 13-90.
Following the issuance of GAL 7-88, amendments to the regulations
at 20 CFR part 617, implementing the 1988 Amendments, were proposed in
a document published in the Federal Register on November 30, 1988, at
53 FR 48474, with a comment period ending on December 30, 1988.
Preparation of a final rule document, addressing the comments received,
began after the end of the comment period. The need for other changes
in the regulations was identified in light of the comments received,
further reflection on the 1988 Amendments, and experience with the
interim Operating Instructions. The most significant changes, resulting
in the issuance of GAL 15-90 and in delaying the publication of this
final rule document, were the changes in the interpretations of
subsections (a) and (g) of Section 1430 of the OTCA, relating to the
new ``movable'' eligibility period for basic TRA. This significant
change, and other related changes, were announced in GAL 15-90.
This final rule therefore includes substantive changes in the
amendments to part 617 that were included in the proposed rule
published on November 30, 1988. The most significant of these changes
are the new interpretations of the effective dates of the 1988
Amendments relating to the ``movable'' eligibility period for basic
trade readjustment allowances (Secs. 617.3 and 617.11(a) (1) and (2)).
This document also includes substantive changes to Part 617 that were
not included in the published proposed rule, including sub-stantive
changes that were announced in Changes 2 and 3 to GAL 15-90, relating
to a complete revision of Sec. 617.26 and a change in Sec. 617.22(a).
Many of these substantive changes resulted from a consideration of
comments received on the proposed rule. Nonetheless, in the interests
of keeping its rulemaking processes as open as possible, the Department
is inviting public comments on these changes. Further changes are made
in Secs. 617.3, 617.11(a), 617.15(b) and (d), 617.16, 617.19(b),
617.21, 617.22(f), 617.33, 617.44, 617.50(d), 617.55, 617.60 and
617.64, which are related to the revision of Sec. 617.26 or for other
reasons as explained below. Conforming changes are also made in
Sec. 617.67.
The effective date of all of the substantive changes in the statute
and the regulations that are announced in any GAL (or change thereto)
is the same as the effective date of the amendment(s) to which the GAL
pertains, but any substantive change in GAL operating instructions
applies, unless stated otherwise, in the case of all decisions made
after the date of issuance of the GAL (or change thereto) by the
Department. However, all of the substantive changes noted below in
items A through R are subject to an opportunity for comment after
publication of this final rule. After the end of the comment period,
and consideration of any comments received, another final rule document
will be published relating to these substantive changes.
Substantive changes in the interpretations of the 1988 Amendments
which are addressed below relate primarily to the effective date and
application of the new eligibility period for basic TRA, but also
relate to other provisions of the OTCA, the Trade Act of 1974 and
section 106(a) of Public Law 102-318 which amends section 231(a)(2) of
the Trade Act, as discussed below.
The Department's new interpretations center on the effective date
provisions of subsections (a) and (g) of Section 1430 of the OTCA.
These new interpretations are discussed in detail in paragraph A,
below.
Good Cause Exception
The Department has determined, pursuant to 5 U.S.C. 553 (b)(B),
that good cause exists for publication in final of the substantive
changes in this document, because all of such changes are essential to
the proper administration of the TAA program by the States, and such
changes either relieve a restriction, and have been previously
announced in controlling operating instructions issued to the States,
or relate primarily to procedural relationships between and among the
States. In addition, because of the delays encountered in issuing this
final rule, any further delay in putting these substantive changes into
effect would be impractical and contrary to the public interest. As
explained above, comments are invited and will be considered, after
which a final rule will be published. In the meantime, public
implementation of these substantive changes as final regulations will
not be delayed further.
In the following text, therefore, substantive changes, on which
comments are requested, are addressed first. These changes are followed
by a discussion of the comments received on the proposed rule published
on November 30, 1988.
Substantive Changes from November 30, 1988 Proposed Rule
The substantive changes noted under this heading are either changes
in the amendments to part 617, as published on November 30, 1988, or
changes in other sections of Part 617 that were not included in the
proposed rule. These substantive changes also include conforming
changes in the transition provisions of Sec. 617.67.
Comments are requested on all of these substantive changes, after
which a final rule document on such changes will be published.
A. New Eligibility Period for Basic TRA
Section 1425 (a) of the OTCA amended section 233(a)(2) of the Trade
Act of 1974 to reinstate the ``movable'' eligibility period for basic
TRA. Section 1430(a) of the OTCA made this amendment effective on the
date of enactment, August 23, 1988, and section 1430(g) of the OTCA
provided that amended section 233(a)(2) would not be applied in certain
circumstances if it would result in an earlier expiration date of a
worker's eligibility period established on the basis of the prior law.
In the proposed rule published on November 30, 1988 (53 FR 48474)
(as well as in Section 4.F.1. of GAL 7-88), Section 1430(a) was
interpreted as making this amendment applicable to any total qualifying
separation which occurred on or after August 23, 1988. The limitation
in section 1430 (g) was interpreted as applying with respect to any
such total qualifying separation if it would result in an earlier
expiration date of the eligibility period of a worker based on the
prior law and a first qualifying separation which occurred before
August 23, 1988.
In GAL 15-90, issued on August 21, 1990, the Department announced
that, in conjunction with the development of final regulations
implementing the 1988 Amendments, the Department determined that the
previously published interpretations of the effective date provisions
in the proposed rule published on November 30, 1988, were in error. The
same erroneous interpretations were contained in GAL 7-88, and this
fact necessitated the issuance of revised operating instructions in GAL
15-90, which was published in the Federal Register on November 21,
1990, at 55 FR 48774.
Subsection (a) of section 1430 of the OTCA provides that: ``Except
as otherwise provided by this section, the amendments made by this part
shall take effect on the date of enactment of this Act.'' Subsection
(a) thus applied to, among others, the amendment to section 233(a)(2)
of the Trade Act of 1974, which prescribes the eligibility period for
basic TRA. In the proposed rule and in GAL 7-88, the amendment to
section 233(a)(2) was interpreted as being applicable to separations
which occurred on or after the date of enactment of the OTCA, August
23, 1988.
In the new interpretations announced in GAL 15-90, section 1430(a)
was interpreted as applying to all decisions (i.e., all determinations,
redeterminations, and decisions on appeals) made on and after August
23, 1988.
The Department concluded, and announced in GAL 15-90, that amended
section 233(a)(2) should be applied to all decisions rendered on or
after August 23, 1988, regardless of whether they involved initial
determinations of TRA eligibility, redeterminations, or decisions on
appeal.
The Department also stated in GAL 15-90 that the new interpretation
of section 1430(a) is supported by the analysis and construction placed
on subsection (g) of section 1430, and by the general principle of law
known as the law-in-effect rule. Under the law-in-effect rule, the law
to be applied in making any decision is the law in effect at the time
the decision is made. In GAL 15-90, this law-in-effect rule was
determined to be applicable to the new interpretations and the 1988
Amendments.
Subsection (g) of section 1430 provides that the amendment to
section 233(a)(2) ``shall not apply with respect to any total
separation of a worker * * * that occurs before the date of enactment
of this Act if the application of such amendment with respect to such
total separation would reduce the period for which such worker would
(but for such amendment) be allowed to receive'' basic TRA. In the
proposed rule and in GAL 7-88, section 1430(g) was interpreted as
limiting the application of amended section 233(a)(2) to total
separations which occurred on or after August 23, 1988, where the
result otherwise achieved would be an earlier expiration date of the
eligibility period of a worker established on the basis of the prior
law and a first qualifying separation which occurred before August 23,
1988.
In the new interpretations announced in GAL 15-90, section 1430(g)
was interpreted literally as applying only to total separations that
occurred before August 23, 1988, and the limitation in section 1430(g)
thus applies only to such prior separations.
A consequence of this new interpretation of section 1430(g) is
that, if the application of amended section 233(a)(2) to a total
separation prior to August 23, 1988, would result in extending the
worker's eligibility period, the amended section 233(a)(2) shall be
applied. Conversely, amended section 233(a)(2) shall be applied to
total separations which occur on and after August 23, 1988, regardless
of whether it would result in an earlier expiration date of the
worker's eligibility period based upon a first qualifying separation
which occurred before August 23, 1988.
Section 1430(g) is not applicable, however, to a ``first qualifying
separation'' which occurs before August 23, 1988. It is on the basis of
such a first qualifying separation that a worker would have a longer
eligibility period ``but for'' the amendment to section 233(a)(2). To
preserve a longer eligibility period, and thereby give effect to the
limitation in section 1430(g), therefore, such limitation could not
logically be made applicable to such a first qualifying separation.
A more extensive explanation and justification for the new
interpretations affecting amended section 233(a)(2) was set forth in
GAL 15-90, and in Attachment A and Section F.1. of GAL 15-90. That
explanation and justification was published in the Federal Register, at
55 FR 48774, 48778, 48782, and 48789 (November 21, 1990).
The new interpretations require substantive changes in the final
rule, particularly in the definitions of ``eligibility period'' and the
various types of ``separation'' defined in Secs. 617.3(m) and 617.3(t),
as well as in the transition provisions in Sec. 617.67. Other
conforming changes are made throughout the document, including the
deletion of clause (D) in Sec. 617.11(a)(2)(iii).
B. Other Applications of New Interpretations
The new interpretation of section 1430(a) and the law-in-effect
rule also affect other amendments to which section 1430(a) applies.
These include--
OTCA Section 1421(a)(1)(B)--Sec. 617.11(a)(4) Special
rules for oil and gas workers--retroactive. (Section A.2. of Attachment
A to GAL 15-90);
Trade Act Section 233(b)--Sec. 617.15 (Section E.4. of
Attachment A to GAL 15-90);
OTCA Section 1425(b)--Sec. 617.11(a)(3) Special rules for
workers separated in 1981 to 1986 period. (Section F.2. of Attachment A
to GAL 15-90).
A more extensive explanation and justification for the application
of the new interpretations to these provisions was set forth in GAL 15-
90 and Attachment A thereto.
The Department also has decided that the 1988 Amendments relating
to sections 231(a)(5), 231(b), and 231(c) of the Trade Act, which,
under section 1430(f) of the OTCA, took effect 90 days after the date
of enactment (i.e., on November 21, 1988), are not affected by the new
interpretation of section 1430(a). Although the effective date language
of section 1430(f) is the same as the effective date language of
section 1430(a), the Department has determined that the application of
the new interpretation to these provisions would cause manifest
injustice to affected workers and also would appear to be contrary to
the intent of the Congress and the logic of the 90-day delay in the
effective date of these amendments. This is more fully explained in GAL
15-90 and Attachment A.
C. Changes to Sec. 617.11(a)(2)(iii)(B) (1) and (2)
Section 106(a) of Public Law 102-318 amended section 231(a)(2) of
the Trade Act of 1974 by adding a new paragraph (D) to the categories
which are considered a week of adversely affected employment at wages
of $30 or more a week in order to qualify for TRA. The new subparagraph
(D) provides that any week a worker is on call-up for active duty in a
reserve status in the armed forces, provided such active duty is
``Federal service'' as defined in 5 U.S.C. 8521(a)(1), shall constitute
a week in meeting the TRA qualifying requirements of section 231(a)(2)
of the Trade Act of 1974. Section 106(a) also clarifies that not more
than 26 weeks described in subparagraphs (B) or (D) of section
231(a)(2) of the Trade Act may be used for TRA qualifying purposes.
This means that all of the required employment and wages necessary
to qualify for TRA may be attained during a reservist's call-up to
active duty. This amendment only affects the TRA qualifying requirement
in section 231(a)(2); all other TRA qualifying requirements in section
231 are unchanged. Therefore, State agencies must also determine if a
reservist meets the remaining TRA qualifying requirements contained in
section 231 of the Trade Act before awarding TRA entitlement to the
reservist.
In determining the worker's qualifying weeks at wages of $30 or
more a week for TRA qualifying purposes, the amendment to section
231(a)(2) of the Trade Act applies to weeks beginning after August 1,
1990. The effective date of this amendment results in a retroactive
application to TRA claims filed (or which would have been filed) by
reservists who took part in Operations Desert Storm and Desert Shield.
This means that State agencies must redetermine the TRA initial claims
of all reservists called-up for active duty whose claims were denied
solely because they did not meet the requirements of section 231(a)(2)
of the Trade Act as in effect prior to the enactment of this amendment.
State agencies must also take TRA initial claims of reservists who did
not previously file a TRA initial claim because they did not meet the
requirements of section 231(a)(2) as in effect prior to the enactment
of this amendment.
Operating instructions issued to State agencies in GAL No. 10-92,
Operating Instructions to section 231(a)(2) of the Trade Act of 1974
Contained in H.R. 5260, dated July 6, 1992, explained the changes to
section 231(a)(2) of the Trade Act and instructed State agencies and
cooperating agencies to take the appropriate actions to identify and
inform reservists of their rights to redetermination or the opportunity
to file TRA initial claims. Actions by State agencies include a search
of claimant files and publication of information on this new provision
in newspapers of general circulation and other appropriate media.
Accordingly, a new clause (iv) is added to
Sec. 617.11(a)(2)(iii)(B)(1) and clause (ii) in
Sec. 617.11(a)(2)(iii)(B)(2) is changed to implement these amendments
to section 231 (a)(2) of the Trade Act.
D. Change to Sec. 617.11(a)(3)(i)(E)
Section 1425(b) of OTCA provides eligibility for TRA to certain
workers who were continuously unemployed since separation from
adversely affected employment during the period from August 13, 1981 to
April 7, 1986, not taking into account seasonal employment, odd jobs,
or part-time, temporary employment. This provision opened up
eligibility to workers who could not qualify for additional weeks of
TRA because they did not meet the 210-day time limit for filing for
training and to workers who did not receive all of their TRA
entitlement because their eligibility period was based on their first
rather than their most recent separation. In the proposed rule, general
guidance was provided to State agencies on ``continuously unemployed''
but State agencies were allowed to apply the provisions using their
expertise in determining eligibility relating to employment. However,
the Department decided that it was essential to provide State agencies
with guiding instructions for implementing section 1425(b)(2)(A) (ii)
of the OTCA so that the Department, rather than States, defines the
limits of the Federal liability. Accordingly, definitions to be used in
applying the terms ``seasonal employment'', ``odd jobs'' and ``part-
time, temporary employment'' are added in a new clause (2) in
Sec. 617.11(a)(3)(i)(E). Because precise definitions were not available
for each of these terms, definitions were developed for purposes of
this final rule from various sources and other program applications.
The seasonal provision of applicable State law is used in applying the
``seasonal employment'' provision. A definition for ``odd jobs'' was
developed in which the established period of employment occurs within 5
days or less. The definition for ``part-time'' is taken from the ETA
Glossary of Program Terms and Definitions (ETA Handbook No. 373), which
provides for less than 30 hours per week of regularly scheduled work.
However, that definition has to be applied along with ``temporary
employment.'' The definition for ``temporary employment'' is based on
ETA reporting requirements for the public employment service in which
an established employment period of 150 days or less is used.
E. Change to Sec. 617.15(b)
Amendments to Sec. 617.15 were included in the proposed rule
published for comment on November 30, 1988. A further change in
Sec. 617.15 was considered as a result of the reinstatement of the
movable eligibility period for basic TRA. This change was to base the
210-day period for filing an application for training, in order to
qualify for up to 26 weeks of additional TRA, on the worker's most
recent partial or total separation from employment under the
certification, rather than within 210 days after the date of the first
qualifying separation. This change reinstates the rule that was
applicable prior to the 1981 Amendments, when the eligibility period
was movable, and was adopted with the issuance of Change 2 to GAL 7-88,
dated May 22, 1989. In view of the new interpretation of section
1430(a), and the law-in-effect rule, a further change was made in the
interpretation and application of the 210-day rule, which was announced
in GAL 15-90. The new interpretation applies to all decisions (i.e.,
determinations, redeterminations, and decisions on appeals) which are
made after the date of issuance of GAL 15-90, on August 21, 1990. (See
GAL 15-90 and section E.4 of Attachment A). These changes are
incorporated in Sec. 617.15(b) of this final rule.
F. Change to Sec. 617.15(d)
The proposed rule was published for comment on November 30, 1988.
At that time, the Department had concluded that days ``in which
training would not normally be scheduled'' should not be counted as
part of a scheduled break in training. Initially, the Department
limited the exclusion to Saturdays and Sundays, if training in the
applicable training program would not normally be conducted on those
days. In GAL 7-88, and Change 1 to GAL 7-88, the Department interpreted
section 233(f) of the Trade Act as excluding certain weekend days and
holidays in counting the days of a break in training. GAL 7-88 and
Change 1 were unclear, however, whether the exclusion of holidays
included both National and State holidays. On further consideration,
the Department agreed that all officially recognized National and State
holidays should be excluded in counting the days of a break in
training, to the extent that training in the applicable training
program would not normally be scheduled on those days if they did not
occur during the break. This change was adopted with the issuance of
GAL 15-90 and is applicable to all decisions (i.e., all determinations,
redeterminations, and decisions on appeals) which are 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 decisions under
Sec. 617.15(d), the law to be applied is the law as in effect on the
date the decision is made, and this rule has applied since the issuance
of GAL 15-90 on August 21, 1990. Decisions previously made under prior
operating instructions are subject to redetermination in accordance
with State law, as set forth in section 4.b. of GAL 15-90.
In order to clarify what constitutes a ``break in training'' for
purposes of section 233(f), a new clause (2) is added to Sec. 617.15(d)
defining a break in training as including all periods within or between
courses, terms, quarters, semesters and academic years, whether or not
such breaks are scheduled by the training provider.
Clauses (2) through (5) of Sec. 617.15(d) are renumbered (3)
through (6).
G. Revision of Sec. 617.16
Section 234 of the Trade Act of 1974 specifies the State law
provisions that shall be applicable to claimants for TRA purposes, and
Sec. 617.16 distills the provisions of section 234 in a definition of
``applicable State law.'' Section 617.16 is now being revised for two
essential reasons. The first reason is to include in the definition the
situation of the worker who is not entitled to UI after separation from
adversely affected employment, as is provided for in Section 234. This
had not seemed relevant after the 1981 Amendments, because of the
addition in section 231(a)(3) of the eligibility requirement that the
worker must be entitled to and have exhausted all UI. The 1988
Amendments, however, have prompted rethinking of the roles and
responsibilities of the States in the administration of the TAA
program, and particularly of the role of the ``applicable State''
(i.e., the State whose law is the applicable State law) in the case of
TAA program benefits other than TRA. Accordingly, the definition of
``applicable State law'' is broadened so that it is a useful reference
point for all TAA program benefits. While providing a useful reference
point, there is no intent in revising Sec. 617.16 to suggest that an
individual who is not entitled to UI after a qualifying separation from
adversely affected employment may be entitled to TRA.
The second reason for revising Sec. 617.16 is to conform
Sec. 617.16 to the revision of Sec. 617.26, relating to the roles and
responsibilities of the States as liable States and agent States in the
administration of the TAA program. As discussed below, Sec. 617.26 is
revised to incorporate the Department's thinking as set out in Change 2
to GAL 15-90. In this connection, consideration was given to including
in Sec. 617.16 the definition of ``applicable State'' which is set
forth in Change 2. Upon further consideration, however, it was decided
that the definition of ``applicable State law'' furnished the most
useful reference point for all purposes of the TAA program, and that a
special definition of ``applicable State'' is neither necessary nor
useful.
Accordingly, Sec. 617.16 is revised to track more closely Section
234, and to serve as a useful reference point for all of the purposes
of the TAA program. The section also is modified to make it clear that
the UI entitlement referred to is that which immediately follows a
qualifying separation from adversely affected employment, and not UI
entitlement in some past period, however recent or remote it may have
been.
H. Revision of Sec. 617.19(b)(1)(i)(B) and (b)(2)(ii)(A)
Clause (A) of Sec. 617.19(b)(2)(ii) explains that training is not
appropriate when the firm from which the individual was separated plans
to recall the individual within the ``reasonably foreseeable future''.
Also, Sec. 617.19(b)(1)(i)(B) defines ``appropriate'' as including
whether there is a reasonable prospect which is reasonably foreseeable
that the individual will be reemployed by the separating firm. These
provisions are consistent with Sec. 617.22(a)(1)(ii) on conditions for
approval of training when there is reasonable prospect of suitable work
within the foreseeable future. (See item 43 below.)
While it is reasonable to deny training under Sec. 617.22 (a) to a
worker who is scheduled for recall, there is an identified need to
provide additional guidance in the regulations on the application of
the term ``recall that will occur in the reasonably foreseeable
future'', for purposes of administering Secs. 617.19(b)(1)(i)(B) and
(b)(2)(ii)(A). These regulations are consistent with the
Administration's position to tighten waivers. Publication of these
regulations will improve efficiency in utilizing waivers. This moves
the current TAA program in to closer alignment with the Transitional
Adjustment Assistance provisions of NAFTA. Therefore, this section is
being amended by adding a new clause (2) to Secs. 617.19(b)(2)(ii)(A),
for use in approving training and granting waivers. Clause (2) provides
guidance on two types of planned recalls. The first type is a specific
recall where an individual or group of individuals who was separated
from employment is identified and notified by the employer to return to
work within a specified time period. In this situation an individual
would not be approved for training and a waiver of the training
requirement would be granted for purposes of receiving basic TRA.
The second type is a general recall where the employer announces an
intention to recall an individual or group of individuals, or by other
action reasonably signals an intent to recall, but does not specify a
certain time period in which the recall will occur. In this situation,
if the recall in each individual case is reasonably expected to occur
after the individual would exhaust his or her eligibility for regular
UI associated with the most recent total separation that is within the
TAA certification period, the individual would be treated as any other
individual who was separated from adversely affected employment and the
participation in training requirement would be applied.
I. Revision of Sec. 617.21
Section 617.21 describes the activities that are included as
reemployment services and allowances. Paragraph (e) of this section is
revised to add child care as a support service. This revision is made
to eliminate any uncertainty that child care is a support service and
that the costs for such service may not be charged as a related cost of
training and paid with TAA program funds. See also the Department's
response to item 47 below.
Paragraph (g) of this section is also revised to reflect the 1988
Amendment to section 236 of the Act which added remedial education as
being approvable as classroom training. Training designed to enhance
the employability of individuals by upgrading basic skills, through
remedial education or English-as-second-language courses, are
considered as remedial education approvable under Sec. 617.22(a) if all
the approval criteria in that section are met. A training program of
remedial education only may now be approved for an individual if he or
she possesses occupational skills and needs only remedial education to
obtain employment. Ordinarily, remedial education is made part of a
broader skills training program as defined in Sec. 617.22(f) (3).
J. Revision of Sec. 617.22(a)(5)
Section 617.22(a) lists six criteria that must be met for approval
of training. These are intended to assure that training will lead to a
specific occupational goal. Clause (5) of Sec. 617.22(a) deals with a
worker's personal qualifications to undertake and complete such
training. The Department's interpretation of this clause has been
changed to add ``financial resources'' to those personal
qualifications, and this change is included in amended
Sec. 617.22(a)(5).
Change 3 to GAL 15-90, dated July 17, 1991, (56 FR 46331, 46333),
announced a change in the definition of the criterion for approval of
training in Section 236(a)(1) (E) of the Act, by adding ``financial
resources'' to the existing physical and mental qualifications which
must be reviewed in making a determination that a worker is able to
undertake and complete training, as set out for criterion (E) in
Section G.1. of Attachment A to GAL 15-90 and incorporated in this
final rule. This change was made to enhance the worker's ability to
complete training by stressing that the duration of approved training
should be commensurate with the worker's financial resources.
Training may be approved for a duration not to exceed 104 weeks
under a single certification, as limited in amended Sec. 617.22(f)(2).
However, combined UI and TRA entitlement is available to workers for a
maximum of 78 weeks. When the duration of training exceeds the
remaining weeks of UI and TRA payments, a worker's income support may
end or be substantially reduced before completing the approved training
program. This situation often results in workers dropping out of
training.
The amended Sec. 617.22(a)(5) will require State agency staff to
explain to workers seeking approval of training in which the duration
of training exceeds their remaining weeks of UI and TRA payments, that
in the absence of other financial resources such training may not be
appropriate. When the worker's financial resources are not commensurate
with a training program suitable to the worker, the training
requirement may be waived under Sec. 617.19(b)(2)(ii)(B).
K. Revision of Sec. 617.22(f)
An individual who satisfies the six criteria for approval of
training in Sec. 617.22(a) may be enrolled in a training program that
does not exceed 104 weeks in length. (See Sec. 617.22(f)(2).) Inquiries
were received on whether an individual may pursue more than one
training program under a single certification or whether training under
a certification is limited by the 104-weeks time provision. To
eliminate any uncertainty on this matter, clause (2) on length of
training has been revised to state more clearly that the maximum
duration for any approvable training program is 104 weeks and no
individual shall be entitled to more than one training program under a
single certification.
For purposes of part 617, a new clause (3) is added to
Sec. 617.22(f), which provides a definition for a ``training program''.
Subclause (i) of clause (3) provides that a training program may
consist of a single course or a group of courses designed and approved
by the State agency for an individual to meet a specific occupational
goal. Subclause (ii) of clause (3) authorizes State agencies to amend
an individual's approved training program, when the duration of
training is less than 104 weeks, to add a course or courses designed to
satisfy unforeseen needs, such as the need for remedial education or
specific occupational skills. However, the amended training program may
not exceed the 104-week time limitation in clause (2).
Clause (4), previously clause (3), is amended to clarify that the
hours in a day and the days in a week an individual attends an approved
training program must be full time commensurate with the standards of
the training facility. The purpose of this amendment is to ensure that
hours of training per week and length of the training program are
scheduled in a manner that the individual will develop the skills
needed to achieve a specific occupational goal in a reasonable time
period and at a reasonable cost. Any week in which training is less
than full time will still count as a full week for the purposes of the
104-week limitation.
L. Revision of Sec. 617.26
Section 617.26, entitled ``Approval of other training including
interstate,'' was not among the sections of regulations proposed to be
amended in the proposed rule published on November 30, 1988. However,
rethinking occasioned by the 1988 Amendments led to the conclusion that
there is a need to clarify, and in some respects alter, the roles and
responsibilities of liable States and agent States in the
administration of the TAA program. Among the OTCA amendments that
caused such rethinking were those making training an entitlement and an
eligibility requirement for basic TRA, and the provisions of amended
section 231(c) on training waivers. In addition, comments received on
related sections of the proposed regulations were considered in
reaching this conclusion. The redescription of liable State and agent
State roles and responsibilities was announced in Change 2 to GAL 15-
90, which was published at 56 FR 46331, 46332.
The present Sec. 617.26, written in 1975, provides that the agent
State shall be responsible for the selection and approval of training,
and will pay any training related costs, and that the liable State is
responsible for determining eligibility for TRA, job search and
relocation allowances, and may approve and purchase training provided
that certain conditions are met. Although the respective roles of the
liable and agent States were spelled out, the section was silent on the
legal relationships and the appellate authority in the case of
determinations made by the agent State. In addition, there were some
overlapping responsibilities relative to training approval and payment
of training costs. The regulations as revised in this document address
these issues and, in general, deal more comprehensively with the roles
and responsibilities of liable and agent States in administering the
TAA program. Accordingly, Sec. 617.26 is retitled ``Liable and agent
State responsibilities'' and the roles of liable and agent States are
delineated.
After examining State practices, as affected by the OTCA
amendments, the Department has concluded that, as a general rule, the
agent State should continue to be responsible for procuring and paying
for TAA approved training and related costs, including subsistence and
transportation, as appropriate. In addition, the agent State shall
assist the liable State in fulfilling its responsibilities for making
determinations of entitlement to all TAA program benefits. These
changes are reflected in revised Sec. 617.26.
Another significant change in Sec. 617.26 is in making the liable
State responsible for all determinations, redeterminations, and
decisions on appeals pertaining to any worker's eligibility for or
entitlement to any TAA program benefit under Part 617. This includes
determinations relating to training approval, disapproval, waivers and
revocation of waivers for training, and training related costs
including subsistence and transportation. This requirement will
preclude due process objections which could be raised if workers were
required to appeal some issues under the agent State law and other
issues under the liable State law. Responsibility for selection and
approval of training no longer resides in the agent State, as is
provided in the present rule.
However, a liable State and an agent State may jointly agree to
modify this rule with respect to their TAA administrative functions,
but any such change must comply with the legal requirement that all
determinations will be under the authority of the liable State, and all
appeals by individuals will be under the law of the liable State.
Further, prior approval for any such modification must be obtained
under Sec. 617.54. (See also Secs. 617.33 and 617.44, below.)
Additionally, in those situations where two or more States share a
common labor market area and workers commute across State lines for
work, those States may wish to develop cooperative arrangements,
consistent with revised Sec. 617.26, and approved under Sec. 617.54, to
provide TAA ser-vices to adversely affected workers in the area.
The definition of ``liable State'' at Sec. 617.3(aa) is also
revised to conform with changes in Secs. 617.16, 617.26, 617.33 and
617.44, and a definition is added for ``agent State''. (The term
``applicable State,'' which is defined and used in Change 2 to GAL 15-
90, is not used in this final rule. It was decided that the terms
``liable State'' and ``agent State,'' and the definition of
``applicable State law'' in Sec. 617.16 were adequate to cover the
rules associated with interstate responsibilities without adding a
further definition of ``applicable State.'')
As revised in this final rule, Sec. 617.26 comprehensively
addresses the roles and responsibilities of liable States and agent
States in interstate cases, clarifies the legal and appellate
relationships among the States, and assures due process for workers and
conformance with section 239(d) of the Act. With this revision, and
other changes in the rules, there is consistency among the regulations
in addressing State responsibilities: Sec. 617.16 covers applicable
State law; Sec. 617.20 addresses State responsibilities for the
delivery of reemployment services, in general; Sec. 617.33 addresses
findings required before final payment of a job search allowance is
made by the liable State; Sec. 617.44 addresses findings required
before final payment of a relocation allowance is made by the liable
State; and Secs. 617.50 and 617.51 speak to determinations of
entitlement, and appeals and hearings under the applicable State law,
respectively.
A conforming change is made in Sec. 617.50(a) by striking the
clause ``, or the State agency as provided in Sec. 617.26(d),''.
M. Revision of Sec. 617.33
Section 617.33 prescribes the findings required before final
payment of a job search allowance is made to an eligible worker by the
liable State. It describes the responsibilities of liable and agent
States in regard to those findings. This section is revised to
delineate more clearly the responsibilities of liable and agent States
for determinations (and appeal rights) regarding job search allowances.
N. Revision of Sec. 617.44
Section 617.44 prescribes the findings required before final
payment of a relocation allowance is made to an eligible worker by the
liable State. It describes the responsibilities of liable and agent
States in regard to those findings. This section is revised to
delineate more clearly the responsibilities of liable and agent States
for determinations (and appeal rights) regarding relocation allowances.
O. Revision of Sec. 617.50(d)
Section 617.50(d) contains the rules on the use of State law and
regulations in making and reviewing determinations and redeterminations
under part 617. Questions have arisen in at least two States whether
the 210-day time limit in Sec. 617.15(b) (and section 233(b) of the
Act) may be waived for good cause, or whether State law provisions on
good cause for late filing of UI claims may be applied. The Department
has consistently taken the position that such good cause provisions may
not be applied, in view of the lack of authority for doing so in any
provision of the Act or the regulations. Nevertheless, State
authorities in one State have ruled a number of times that there can be
good cause for late filing. And more recently, in a matter arising in
another State, the Sixth Circuit Court of Appeals issued a decision
adverse to the position of the Department. Because the Department
believes that conclusions inconsistent with its longstanding position
do not comport with the Act, it has decided to address the issue in a
broad manner and state as clearly as possible in the regulations the
precise situations in which State laws may be applicable in addressing
issues arising under the regulations.
The Sixth Circuit's decision started with the proposition that the
Trade Act of 1974 was passed by the Congress ``during a mood of
congressional largesse,'' and that the 210-day rule in section 233(b)
of the Act ``was not intended to act as a jurisdictional prerequisite
to additional TRA benefits.'' From this premise it reasoned that ``the
purpose of the rule is to discourage dilatory'' conduct by applicants,
and that absent a finding of dilatory conduct ``the application of the
210-day rule does nothing to further the Act's remedial purpose and
everything to frustrate it''. Citing another holding in the District of
Columbia Circuit, the Sixth Circuit held that the Department's
``interpretation makes sense only if there was a congressional policy
in favor of limiting TRA benefits.'' The Sixth Circuit concluded that:
``That court found no evidence of such a policy. Nor do we.'' From this
line of reasoning the Sixth Circuit held that the State's ``waiver for
good cause rule [is applicable] in this context''.
The Department believes the Sixth Circuit erred in relying upon the
``mood of congressional largesse'' in passing the 1974 Act, without
taking into account the critical redirection in the 1981 amendments
away from TRA and towards greater emphasis upon training (including
changing the 233(b) rule from 180 days to 210 days), and the direct
linkage in the 1988 Amendments of training and eligibility for basic
TRA (as well as additional TRA). In this context, there is a sound
reason for upholding the ``jurisdictional'' nature of the 210-day rule,
and less reason for reaching out to State law for a good cause
exception, as distinguished from fashioning an exception from the
language of Section 233(b). For these reasons, the Department believes
the Sixth Circuit's decision was incorrect. The Department is therefore
moving to clarify the regulations to make its interpretation of the Act
clearer.
In considering where in the regulations the clarification of the
Department's position should be made, the Department took into account
the fact that there are other time limits expressed in the regulations,
such as in Secs. 617.10(b), 617.31(c), 617.41(c), and 617.43(b). Since
all such time limits may be vulnerable to the same deviations that
occurred with respect to the 210-day time limit, it was decided that a
general rule was needed that is applicable to all of part 617. The
placement of this general rule thus fell logically in paragraph (d) of
Sec. 617.50.
Accordingly, paragraph (d) of Sec. 617.50 is amended to add the
general rule that no provision of State law or regulations as to good
cause for waiver of any time limit or for late filing of any claim
shall apply in the case of any time limitation stated in part 617,
unless such State law or regulation is made applicable by a specific
provision of part 617. This change eliminates any uncertainty about the
Department's position, and places a clear obligation on the States to
adhere to the time limitations in all of part 617.
P. Revision of Sec. 617.55
Section 243 of the Act, on Fraud and Recovery of Overpayments, is
interpreted as being drawn in broad terms so as to impose liability for
repayment of all improper payments under the Act, and to impose
penalties for all false statements or representations resulting in
improper payments. Subsection (a) imposes repayment liability upon any
``person'' receiving an improper payment, whereas subsections (b) and
(c) use the term ``individual'' in the fraud and recovery provisions.
In Sec. 617.55, in contrast, the term ``individual'' is used throughout
the liability, fraud, and waiver provisions of the regulations.
Recent experience in the administration of the TAA program has
highlighted the difference between ``person'' and ``individual'' as
such terms are commonly understood in other areas of law. The term
``person'' is more comprehensive, and may include an employer or other
entity or organization as well as an individual, whereas the term
``individual'' as used throughout part 617 typically means the
individual workers who are the beneficiaries of the program. The
question that arose was whether Sec. 617.55(a) was sufficiently broad
in wording to impose repayment liability upon an employer who had
received improper payments for the on-the-job training. In examining
this issue it became apparent that the same issue existed with respect
to payments for training of individuals that are made directly to
training providers. Although the payments in both cases may be said to
be made on behalf of the individual workers, it is evident that, in
many cases (particularly in the case of on-the-job training), liability
for repayment as well as responsibility for fraud is more properly
assignable primarily to the employer and possibly the training
provider.
To clarify the regulations, and to reflect the broad interpretation
given to section 243 of the Act, Sec. 617.55 is revised throughout to
make it specifically applicable to any person or individual, and
paragraph (i) is added to define person as any employer or other entity
or organization as well as the officers and officials thereof who may
bear individual responsibility.
Q. Revision of Sec. 617.60
A new Sec. 617.60, on Administrative requirements, was included in
the proposed rule published on November 30, 1988, for comment. Although
no comments were received, the substance of several of the provisions
are affected by other administrative regulations. Since further work is
required to bring the TAA administrative requirements into full
conformity with those other regulations, the decision was made to
reserve Sec. 617.60 for use when the revised TAA administrative
requirements are completed and published.
R. Revision of Sec. 617.64
In the 1986 Amendments to the Trade Act, section 285 was amended
by, among other things, adding a subsection (b), to provide that ``no
assistance, allowance, or other payments may be provided under chapter
2 * * * after September 30, 1991.'' This new subsection (b) superseded
the current provisions in Sec. 617.64, which were consistent with the
amendments made by section 2512 of the Omnibus Budget Reconciliation
Act of 1981. Section 1426(a) of the OTCA extended the termination of
the program to September 30, 1993. While the 1986 and 1988 amendments
to the TAA program changed the termination dates to September 30, 1991
and 1993, respectively, appropriate changes were not made to
Sec. 617.64 concerning the payment of TAA program benefits after the
termination date in the Act. Therefore, Sec. 617.64 is amended to bring
it into accord with the amended language in section 285 of the Act.
A strict construction of the law, prohibiting the actual payment of
TAA program benefits to individuals after the termination date in the
Act, would have a profound effect on those persons who completed
approved TAA program services, but, because of State processing
requirements, payment for such services cannot be made by the State
agency until after the termination date in the Act. This strict
construction would unnecessarily make the orderly termination of the
program impossible. It would deny payment of benefits to individuals
for the period prior to the termination date of the program simply
because it was administratively infeasible to make the payment before
the termination date. Therefore, in order to avoid these untoward
results stemming from a strict construction, a more liberal
construction of section 285(b) is necessary to effectuate the
Congressional intent. A ``payment,'' within the meaning of section
285(b), will be deemed to have been made before the termination date of
the program, if a final determination on the amount payable to, or on
behalf of, the individual for TAA program services was made on or
before the termination date of the program, for which payment was due.
This means that State agency approved job search and relocation,
and training related transportation and subsistence, must be completed
on or before the termination date in the Act and that the State make a
final determination on the amount of TAA program funds payable to the
individual on or before such termination date. This places the
requirement on the State agency to inform all individuals presently
approved for such benefits of the statutory time provision that the
service must be completed and a final determination on the amount
payable made on or before the termination date of the program. It also
places a requirement on individuals to complete the approved services
and to submit all claims for such activities to the State agency in
time to receive a final determination on the amount payable on or
before the termination date.
Individuals approved for training who began approved training on or
before the termination date in the Act must have a final determination
by the State agency on or before the termination date on the amount due
and payable for the training costs to cover previously incurred tuition
and related expenses. Determinations on tuition shall be limited to the
current training term, quarter, semester, or other scheduled period,
and be in accord with normal billing practices of the training provider
and payment practices of the State agency. In order to conform with the
intent of the law, the State agency may make a final determination on
the amount payable only for the training term, quarter, semester or
other time period for which payment is due and payable on or before the
termination date of the program.
Individuals entering training, and those currently in training
programs which extend beyond the termination date of the program,
should be informed that no payments will be authorized or made for any
costs or expenses which become due and payable after the termination
date of the program, nor will any such costs or expenses be paid prior
to the expiration date of the program.
Moreover, only the last full TRA benefit week, for which a final
determination has been made according to normal State UI processing
procedures on or before the termination date of the program, will be
paid to any individual.
When a claim for TRA is submitted to the State agency subsequent to
the termination date in the Act, or for which a final determination on
the amount payable has not been made on or prior to the termination
date of the program, the State agency is required to issue a ``no-
payment'' determination on the claim because the State may not refuse
to take and process the claim even though it is prohibited by statute
from paying the claim. These provisions apply also to claims for job
search allowances under Sec. 617.33 and for relocation allowances under
Sec. 617.44.
Discussion of Comments and Changes
In response to the proposed rule, the Department received written
comments from two State Governors, fourteen State employment security
agencies, three labor unions, and one public interest group.
1. Eligibility period. The Pennsylvania Department of Labor and
Industry (PDLI) recommended that clause (i) of Sec. 617.3(m)(1)
(defining ``eligibility period'' for basic TRA) be amended by removing
the word ``first'' after the word ``individual'' in the seventh line,
and by removing all language after the parenthetical clause ``(as
defined in paragraph (oo)(1) of this section).'' The PDLI stated that
these deletions are necessary for the regulation to conform to the
eligibility requirement of Section 233(a)(2) prior to its amendment by
the OTCA. The International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW) commented that the
proposed rule incorrectly ties the eligibility period for basic TRA to
the date on which the first qualifying separation occurs, and the
reference to eligibility period, therefore, should be omitted.
Department's response. The Department believes that these comments
reflect an incorrect view of the 1981 Amendments and the effect of the
1988 Amendments in the OTCA. The Department construes the 1981
Amendments as setting the beginning of the eligibility period as the
week immediately following the week in which regular benefits are
exhausted following the worker's first qualifying separation. This is
explicitly provided for in section 233(a)(2), as amended in 1981, and
is set forth in the Department's regulations implementing the 1981
Amendments. The only change in this provision of the law was the
extension of the eligibility period from 52 weeks to 104 weeks in the
1986 Amendments. No change was made in the fixed eligibility period
until the 1988 Amendments, which restored the movable eligibility
period based on the most recent qualifying total separation. Therefore,
in Sec. 617.3(m)(1), the fixed eligibility period is retained for first
qualifying separations that occurred before August 23, 1988. The new
movable eligibility period is also implemented, in accordance with the
1988 Amendments, for decisions made on or after August 23, 1988, for
other qualifying total separations which occurred before, on, or after
August 23, 1988.
Section 1430(g) of the OTCA provides for the retention of the pre-
OTCA eligibility period which was established by the first qualifying
separation occurring before August 23, 1988, even if the decision is
made on or after August 23, 1988. Amended section 233(a)(2) may not be
applied in a decision made on or after August 23, 1988, in the case of
a more recent total separation occurring before August 23, 1988, if the
effect of applying such amended section would result in an earlier
expiration date of the eligibility period established on the basis of
an earlier first qualifying separation.
It is essential to retain the definition of eligibility period for
the application of prior law with respect to first qualifying
separations which occurred before August 23, 1988, while adding a
definition of the new eligibility period for qualifying separations to
which amended section 233(a)(2) is applicable. If, however, the
adversely affected worker is totally separated on or after August 23,
1988, following a first qualifying separation which occurred prior to
August 23, 1988, amended section 233(a)(2) must be applied even though
it results in an earlier expiration date of the eligibility period
established under pre-OTCA law.
Therefore, no substantive change is made in paragraph (m)(1)(i) of
Sec. 617.3, but as noted below substantive changes are made in
paragraphs (m) and (t) as a result of the new interpretations of
sections 1430 (a) and (g) of the OTCA, and to correct technical errors.
2. Application of new eligibility period. The UAW commented that in
Sec. 617.3(m)(1) the Department set up two standards for the 104-week
eligibility period during which TRA is payable. The UAW argues that the
proposed two standards differ according to whether the date of
separation occurred before or after August 23, 1988. The UAW commented
that Congress explicitly provided in section 1430(g) of the OTCA that
the revised definition of the 104-week eligibility period in section
1425(a) (amending section 233(a)(2)) was effective upon enactment
unless the application of the amended eligibility period would reduce
the period for which a worker would have been eligible for TRA.
Therefore, the two standards should not turn on the date of the
worker's separation, but on whether or not the worker's period of
eligibility is reduced through the application of the amended
eligibility period. The UAW commented further that Congress intended
the amendment to be fully effective upon enactment, permitting the
amendment to increase the eligibility period for basic TRA or establish
a TRA eligibility period for some workers, and noted that the
Conference agreement statements in House Conference Report 100-576 on
sections 1425 and 1430 of the OTCA strongly support this application of
the amendments. The UAW also commented that under OTCA sections 1425(a)
and 1430(g) the most recent total separation which is qualifying must
be used to determine the eligibility period, unless the eligibility
period would be shortened through the application of the amendment to
workers separated prior to enactment.
The PDLI, commenting on the transition guidelines in
Sec. 617.67(e)(3), noted that section 1430(g), in specifically
referring to total separations prior to the enactment of the OTCA,
raised the unavoidable implication that amended section 233(a)(2) shall
be applied to total separations prior to August 23, 1988, if such
application would provide the worker with a longer or later eligibility
period than the worker would have had under the pre-OTCA law. The
Unemployment Council of Southwestern Pennsylvania made the same point
in its comments.
Department's response. The Department agrees with the commenters'
understanding that the amendment to the basic TRA eligibility period is
not to operate to the disadvantage of workers whose eligibility period
would expire at a later date with respect to a qualifying separation
which occurred before the date of enactment of the amendment to section
233(a)(2). These comments were also a factor in the Department's
reconsideration of GAL 7-88 and the resulting new interpretations of
sections 1430(a) and 1430(g) announced in GAL 15-90 (see discussion in
item A. above).
If workers are to retain the advantage of a later expiration date
for the eligibility period based on the prior law, then the prior law
must continue to be applied to first qualifying separations which occur
before the date of enactment of the OTCA (August 23, 1988).
Accordingly, in general the comments have merit, and substantial
changes are made in the final regulations regarding the definition of
``eligibility period'' in Sec. 617.3(m)(1) and the definitions of
``separations'' in Sec. 617.3(t). Furthermore, the transition
provisions at Sec. 617.67(e) also have been revised to reflect the
Department's new interpretations of sections 1430(a) and 1430(g). For
further clarification, a proviso directly implementing section 1430(g)
of the OTCA is added to Sec. 617.3(m)(1).
3. Retroactive approval. The PDLI stated that Sec. 617.3(m)(2)(iii)
does not clearly point out why weeks of training prior to approval
cannot be paid. The PDLI asked ``What if the trainee, for example, was
in JTPA funded training that would be, after approval, either paid for
by TAA or continued under JTPA?''
Department's response. This comment suggests a misunderstanding of
the TAA program and the effects of the 1988 Amendments and earlier
changes. Since the addition of section 236(a)(3) (now 236(a)(4)) in the
1986 Amendments, the switching of training costs from other funds to
TAA funds has to be subject to the controls set out in that section. In
the 1988 Amendments those controls were retained, and authority was
added to mix TAA funding with funding from other public and private
sources and to use funding solely from other sources for TAA training.
That is why, in GAL 15-90 (and earlier in GAL 7-88) and in amended
Sec. 617.25, greater emphasis is given to entering into prearrangements
for sharing the costs of training with other funding sources. With
training becoming an eligibility requirement for basic TRA in the 1988
Amendments, the same emphasis upon prospective treatment must now be
given to basic TRA as has been given to additional TRA and, to a
somewhat lesser extent, TAA funds for training. Additional TRA has not
been paid for retroactive weeks, nor, under Sec. 617.22(c), have
previously incurred training costs been payable from TAA funds. This
same rule must now be applied to basic TRA, as well as additional TRA
and TAA training funds, and it is this rule that is reflected in
amended Sec. 617.3(m)(2)(iii) as well as in amended Sec. 617.22(c).
Under the 1988 Amendments, therefore, TAA funding will not follow
automatically from approval of training under Sec. 617.22(a), nor will
approval of training that commenced before approval under
Sec. 617.22(a) imply or justify payment of previously incurred training
costs from TAA funds, or payment of any TRA for any week that ended
before such approval was documented.
For the foregoing reasons, no substantive change is made in the
final regulations to accord with PDLI's comment. Changes are made in
Sec. 617.3(m)(2)(iii), as well as in Sec. 617.22(c), however, for
purposes of stating the prospective rule as clearly as possible and to
furnish a regulatory response to the PDLI's multi-faceted question.
4. Retroactive payments. The Ohio Bureau of Employment Services
(OBES) commented that Sec. 617.3(m)(2)(iii) specifies that the
eligibility period, during which additional weeks of TRA are payable to
a worker in approved training, if such training is approved after the
training commences, begins with the first week such training is
approved. Approval of such training after the training has commenced
shall not be deemed to authorize the payment of TRA for any week which
ended before such approval was documented. The OBES explained that, at
the present time, many individuals are enrolled in training programs
which were not TAA approvable prior to the 1988 Amendments because the
costs of training were paid with non-appropriated funds. While these
individuals are being made aware of the change in the law that now
authorizes the use of non-appropriated funds to pay the costs of
training, there are unavoidable delays in documenting sources of
training funds and approving the training under part 617. These delays
result in lost worker eligibility for weeks of additional TRA. OBES
recommends that the final rule provide for retroactive payment of the
additional weeks of TRA in such cases, at least to the date of
application for approval of such training. Sections 617.22(c) and
617.67(f) would also need to be modified for this purpose.
Department's response. The OBES presented the problem as one that
existed at the time the letter was written; that is, when the OBES's
comments were made in December 1988. Although the Department
understands that such a problem may have existed in late August and in
September 1988, the operating instructions in GAL 7-88 were issued to
State agencies some three months before the OBES comments were made.
Accordingly, the Department has decided not to relax its long-standing
rule against retroactive payments expressed in Sec. 617.22(c). See
discussion under the preceding item. It was not expected that the new
authorization for sharing costs of training would furnish a viable
solution to all existing cases. One of the safeguards built into the
new system was to require that sharing of costs be under conditions
arranged before the training was approved under Sec. 617.22 and
undertaken by the worker. There is no intent to approve the payment of
additional TRA for weeks a worker is not actually participating in
training nor to approve retroactive payments that are not allowable
under Sec. 617.22 (c). The expectation is that cooperating agencies
will enter into shared cost prearrangements for training not funded
wholly from TAA funds.
Therefore, the Department has decided to make no change in the
regulations in response to this comment, but notes under item 3 that
clarifying technical changes are being made in Secs. 617.3(m)(2)(iii)
and 617.22(c).
5. Qualifying separations. The Missouri Department of Labor and
Industrial Relations (MDLIR) commented on paragraphs (t)(1), (t)(2)(ii)
and (t)(3)(ii) of Sec. 617.3 in the proposed rule, which define ``first
separation'', ``qualifying separation'', and ``first qualifying
separation''. Since a worker must have a total separation on or after
August 23, 1988 to qualify for TRA, the MDLIR asked why the definition
of ``partial separation'' should not be eliminated if it takes a total
separation to establish eligibility for TRA?
Department's response. The Department retained the definition of
``partial separation'' because the qualifying requirements in section
231(a)(1) and (2) continue to permit workers to have a total or partial
separation from employment to qualify for TRA prior to August 23, 1988,
and for TAA services other than TRA whether a separation occurs before
or after August 23, 1988. The amended law does not require that a
worker have a total qualifying separation on or after August 23, 1988,
in order to qualify for basic or additional TRA for weeks beginning
after August 23, 1988. Workers will continue to be eligible for basic
and additional TRA after August 23, 1988, based on a partial or total
qualifying separation that occurred before August 23 under the prior
law. Although the amended law requires that a qualifying separation
must be a total separation to qualify initially for basic TRA (or to
move the eligibility period based on a prior qualifying separation
under the same certification), a partial qualifying separation will be
used for purposes other than the basic TRA eligibility period. For
example, under Sec. 617.15(b) an application for training must be filed
within 210 days after the date of the worker's total or partial
separation referred to in Section 231(a) (1). (See item E. above, and
item 25, below, concerning changes to Sec. 617.15(b) on the application
of the 210-day rule.) Further, the weekly and maximum amounts of TRA
payable to an individual are based on the first total or partial
separation. However, with respect to qualifying separations to which
amended section 233(a)(2) applies, a worker's eligibility period for
basic TRA is based on total separations only.
In considering this comment, however, an error was discovered in
paragraph (t)(3) of Sec. 617.3, which did not give proper effect to a
partial separation on or after August 23, 1988. Therefore, in addition
to other changes as discussed above, paragraph (t)(3) is amended in
this final rule to accord with the above response to this comment. For
the same reason a parallel change is made in Sec. 617.67(e)(4).
6. TRA weekly and maximum. In commenting on the application of
amended section 233(a)(2) to the most recent total qualifying
separation, in determining the eligibility period of a worker, the UAW
argued that this contrasts with the determination of weekly and maximum
amounts of TRA, which does require the use of ``first qualifying
separation.'' The proper use of ``first qualifying separation'' is
restricted to the determination of the weekly and maximum amounts of
TRA.
Department's response. The Department agrees that determinations of
TRA weekly benefit amounts and maximum benefit amounts, under sections
232(a) and 233(a)(1), will continue to be based on the first total or
partial separation, and that this was not changed by the 1988
Amendments. What this means is that monetary determinations of TRA
entitlement may have to be based upon two separations which occurred in
different years. For example, for a period of up to three years or more
after August 23, 1988 (the impact date to termination date of a
certification plus the time between petition and certification dates
can be a period of up to or in excess of three years), it is possible
that a worker will have had a first qualifying separation before August
23, 1988, and computations under sections 232(a) and 233(a)(1) will be
based upon UI entitlement in the first benefit period following such
first separation, whereas the worker's most recent total qualifying
separation will be used to determine the basic TRA eligibility period.
This is simply illustrative, however, because in all cases decided on
or after August 23, 1988, the eligibility period under amended section
233(a)(2) will be based upon the most recent ``total qualifying
separation,'' whereas computations of weekly and maximum TRA amounts
under sections 232(a) and 233(a)(1) will continue to be based on the
first separation with respect to which the worker is entitled to UI,
whether such separation occurred before or after August 23, 1988. This
is an additional reason why, for any worker who is determined to have
had a ``total qualifying separation,'' it will be necessary to
establish whether the worker had an earlier first separation under the
same certification.
The definition of ``first qualifying separation'' in paragraph
(t)(3) of Sec. 617.3 incorrectly relates determinations of weekly and
maximum TRA amounts only to first qualifying separations with respect
to which the worker also qualifies for TRA. This is corrected in the
final regulations, and other technical corrections are made to
distinguish between ``first separation'' and the meaning of ``first
qualifying separation'' for its two purposes; that is, (a) eligibility
period for TRA, and (b) computation of weekly and maximum TRA amounts.
7. Partial separations. The Indiana Department of Employment and
Training Services (IDETS) commented that, based on its understanding of
Sec. 617.3(t)(3)(ii) of the proposed rule, and sections 233(a)(1) and
231(a)(3)(A) of the Act, there appears to be a conflict over whether a
partial separation after August 23, 1988, may be used to determine
benefit amounts.
Department's response. The IDETS is correct in noting this error in
paragraph (t)(3) of Sec. 617.3. See the discussion under the preceding
two items. The first separation under a single certification, with
respect to which the worker is entitled to UI, must be used to
determine the worker's weekly and maximum amounts of basic TRA, whether
such first separation occurs before or after August 23, 1988. As noted
in the preceding two items, Sec. 617.3(t) is modified to clarify this
and other points.
8. Advice to workers. The Vermont Department of Employment and
Training (VDET) commented on Sec. 617.4 concerning what constitutes
proper advice and assistance to workers. The VDET stated that the
requirement to inform each worker applying for unemployment insurance
``of the procedures and deadlines for applying for such benefits''
taken literally includes a large number of applicants who are applying
for short term UI benefits and who in no way are likely to be eligible
for benefits under the TAA program. The VDET argues that while it is
important that the State agency take the initiative to inform workers
who may be eligible for the benefits, the current language is too
rigid, and will only cause confusion among short term unemployed. The
Vermont agency recommended that the requirement be rephrased to require
States to develop the means to identify trade eligible workers who
apply for UI and then provide the necessary information to those
workers.
Department's response. The Department agrees that State agencies
should identify potential trade eligible workers as early as possible
in their benefit period. However, section 239(f) of the Act provides,
among other things, that each worker who applies for unemployment
insurance shall be advised of the benefits under the TAA provisions of
the Trade Act and the procedures and deadlines to apply for such
benefits. There is no language which would support the limitation
suggested by the VDET. Often temporary layoffs by a firm adversely
affected by import competition or other economic conditions become
permanent. The intent of Congress is to ensure that such workers are
made aware early in their unemployment experience of the TAA program,
how to apply for benefits, and the services available to them. Many
State UI agencies furnish an information bulletin or brochure to every
worker who files a claim for UI. These bulletins or brochures should
include full and correct information on the amended TAA program, and on
the benefits and services available to unemployed workers. The
Department is encouraging all State agencies to publish a brochure for
handout to workers filing initial claims for UI. State agencies should
revise their previously used brochures to accurately reflect all the
changes made in this final rule, and furnish a copy to each worker who
files an initial claim for UI as required by section 239(f) since
August 23, 1988.
While no change is made in the final regulations regarding the
requirement of advising all UI claimants of the TAA program,
Sec. 617.4(e) is modified by eliminating the unnumbered paragraph at
the end of this section and by adding the provisions of that paragraph
in clause (2).
9. Notice to workers. The Michigan Employment Security Commission
(MESC) explained that Sec. 617.4(d)(1)(ii)(A) states that notices to
workers must include information as to the article(s) produced. The
MESC commented that unless the article(s) produced is part of the
certification statement, e.g. ``all workers producing shock
absorbers,'' referring to it will often confuse rather than clarify
worker coverage. For example, if the certification covers ``all workers
of XYZ Company,'' to state in the worker notice that the company
``produces shock absorbers,'' will confuse workers of the XYZ Company
who may have produced brakes. Unless a specific article is identified
in the published certification document, it should not be required
information in the notice to workers.
Department's response. The Department concurs with the comment. The
articles produced are to be specified in a notice to the workers only
when there is a specific reference in the published certification
document to an article or articles. When all workers in the firm are
covered by the certification it is not necessary to identify the
article(s) produced. The regulation is modified at
Sec. 617.4(d)(1)(ii)(A) to reflect this change, and the same change is
made in Sec. 617.4(d)(2)(ii)(A) regarding newspaper notices.
10. Identifying workers. The New York Department of Labor (NYDL)
commented that Sec. 617.4(d)(1) expands the intent of the Trade Act by
specifying the sources that the State agency should utilize in
identifying adversely affected workers. The NYDL stated that it is
inappropriate to specify such sources in a regulation and suggested
that the Department adhere to the language of the Act. It also
suggested the following substitute language: ``The state agency shall
provide written notice, through the mail, of benefits available under
this chapter to each worker whom the State agency has reason to believe
is covered by a certification made under subchapter A of this chapter.
The notice must include the following information: * * *.''
Department's response. The proposed rule merely refers to any other
reliable sources of information other than the workers' firm. When a
firm closes, information from the firm's records may be difficult to
obtain. In this case, as well as others, the State agency should obtain
the best information available to it. This level of specificity seems
appropriate for the regulations. Similarly, in implementing the
provision on the scope of the notice to be given, the Department has
concluded that amended Section 225 requires that all workers who can be
identified shall receive such notice. Therefore, no change is made in
the final regulations.
11. Newspaper notices. The OBES commented that Sec. 617.4(d)(2)
requires State agencies to publish a notice of each certification
issued in its State in a newspaper of general circulation in the areas
in which the affected workers reside. OBES further commented that it is
not uncommon that prior to the State agency being informed of a
certification by the Department of Labor all affected workers have
already learned of the certification and have reported to the State
agency to file for TAA benefits. Therefore, OBES recommended that the
final rule provide for a waiver of the public notice requirement when
it can be verified by the State agency that all the affected workers
have filed for TAA benefits. The OBES also recommended that the funding
source for such newspaper notices be identified formally. The
California Employment Development Department (CEDD) provided similar
comments on Sec. 617.4(d)(2). CEDD pointed out that there is no useful
purpose in placing an expensive newspaper ad when all affected workers
are notified by letter, or when the ad will very likely not be seen by
any of the former workers.
Department's response. The Department agrees that a newspaper
notice is not needed in some situations because all the workers are
identified by the State agency and notified by mail. This situation
occurs frequently when the certified worker group is small. Therefore,
the Department is amending the final rule at Sec. 617.4(d)(2) to
authorize State agencies to dispense with the newspaper notice when it
can be substantiated and is documented in the agency's records that all
adversely affected workers covered by a certification have been
identified and have been sent written notice by mail as required by
Sec. 617.4(d)(1)(i).
12. Notices of waivers. The UAW, commenting on Sec. 617.4(e),
stated that workers should be provided with a notice of their right to
seek a waiver of the training requirement and the procedure for doing
so.
Department's response. The Department believes that the regulations
as proposed establish the right of workers to waivers of the training
requirement in appropriate cases, and provide for appeal and review of
determinations on such waivers. State agencies will initiate waivers
where training is not feasible or appropriate. Information that waivers
will be issued to workers when training is not appropriate or feasible
must be furnished to the workers or be included in the bulletin or
brochure furnished to each worker under paragraph (e)(1) of Sec. 617.4.
The Department does not believe that more specificity is required in
paragraph (e)(1). Therefore, no change is made in the final
regulations.
13. Information to workers. The CEDD, commenting on Sec. 617.4(e),
stated that there is some confusion between this section and
Sec. 617.67(c)(2). The CEDD commented that it is not clear whether TAA
information must be provided to every individual who applies for
unemployment insurance, as stated in Sec. 617.67(c)(2), or just to
those certified as adversely affected as implied by use of the word
``worker'' in Sec. 617.4(e). The CEDD recommended, if States are to
provide TAA information to all individuals filing for UI, this
requirement should be clearly identified in the final rule.
Department's response. The Department does not believe that the
regulations are ambiguous on this issue. The 1988 Amendments to section
239(f) state that every worker filing for UI is to be informed of the
TAA program and the benefits available, even though the worker may not
qualify for TAA. The regulations at Secs. 617.4(e)(1) and 617.67(c)(2)
clearly state that each worker who applies for UI shall be advised of
the benefits available under the TAA program and does not confine such
advice to workers who have been identified as adversely affected by
imports. Therefore, no change is made in the regulations.
14. Advice to UI claimants. The OBES commented that
Sec. 617.4(e)(1) requires State agencies to advise each worker who
files for unemployment insurance of TAA benefits available and the
deadlines for applying for such benefits. The OBES requested that the
final rule replace the term ``deadlines'' with ``time limits''. The
final rule should also establish the administrative funding mechanism
for the substantial costs associated with implementing this
requirement. CEDD also commented on a funding issue.
Department's response. The regulations at Sec. 617.4(e)(1) track
the language of section 239(f)(1) of the Trade Act, which provides that
workers shall be informed of the ``deadlines'' for applying for TAA
benefits. Matters of administrative funding are addressed in program
letters and other issuances of the Department and will be addressed
further in Sec. 617.60 when it is published. (See explanation on the
publication of Sec. 617.60 in item Q. above.) No special funding
category is contemplated for furnishing information and assistance to
applicants and potential applicants. Therefore, no change is made in
the final regulations.
15. All UI claimants. The CEDD, commenting on Sec. 617.10(d),
stated that this section contains a statement about providing
``workers'' with TAA information at the time the UI claim is filed. The
CEDD argues that, if the rule means every individual who files a UI
claim, States will have problems meeting this requirement because often
a TAA certification has not been issued when the worker files an
initial UI claim.
Department's response. The 1988 Amendments require the State agency
to inform every worker filing an initial UI claim about the TAA program
and the benefits available under it. There are no exceptions to this
rule. One of the purposes of the amendment is to ensure that workers
are informed of the program at that time so they can file a petition
for TAA if they wish, whether or not a petition has been filed or a
certification issued covering that worker or others. See Sec. 617.4(e).
The Department believes this requirement can be met easily by
furnishing an information bulletin or brochure on the TAA program to
every worker who files an initial UI claim. See discussion in item 8,
above. Therefore, no change is made in the final regulations.
16. Legal work requirement. The UAW commented that the proposed
rules at Sec. 617.11(a)(1)(iii)(C) and (a)(2)(iii)(C) are not reflected
in any provision of the Trade Act of 1974, as amended, nor in the 1988
Amendments. The UAW stated that the Department is trying to enforce the
Immigration Reform and Control Act (IRCA) with this provision. The UAW
argued that if Congress wished to enact such a provision it could have,
but it did not do so. IRCA did not implicitly amend other federal laws.
The Department should not amend the TAA program to enforce IRCA in the
absence of statutory authority and therefore the referenced
subparagraphs should be deleted entirely.
Department's response. The content of Secs. 617.11(a)(1)(iii)(C)
and (a)(2)(iii)(C) is not changed by reason of the 1988 Amendments.
These sections of the regulations merely restate a requirement which
has been in the TAA regulations since they were issued in 1975 in a
different place within the regulations. No substantive change has been
made in this regulatory requirement. These provisions do not implement
the IRCA. Therefore, no change is made to the regulations.
17. Certification period. The NYDL recommended that paragraphs (B)
and (C) of Sec. 617.11(a)(1)(ii) and (a)(2)(ii) be combined to read as
follows: ``(B) Before the expiration of the two-year period beginning
on the date of such certification, or, if earlier, before the
termination date, if any, of such certification.''
Department's response. The Department agrees that this change would
clarify an ambiguity in the statutory language. Therefore, the
regulations are changed along the lines suggested by the NYDL.
18. Job search program. The NYDL recommended that
Sec. 617.11(a)(1)(vii) on the job search program (JSP) be deleted from
the regulations since retroactive TRA claims approved for weeks prior
to November 21, 1988, will no longer require participation in a JSP.
After November 21, 1988, individuals involved will not know about the
requirement. The UAW made a similar comment on the JSP requirement.
However, the UAW commented further that this proposed rule creates a
likelihood that workers will not be informed by State agencies of the
deletion of this requirement in the 1988 Amendments since the
Department is ``encouraging'' States to continue the program.
Department's response. Various provisions of the 1988 Amendments
became effective on different dates. The proposed rule was structured
to address those statutory requirements that applied prior to, and
apply on and after November 21, 1988. The JSP requirement was
applicable through November 20, 1988. The training requirement became
applicable on November 21, 1988. Therefore, it is essential to
delineate the statutory requirements for each time period, and set them
forth clearly in these regulations. Also, appeal actions may be pending
on workers who were denied TRA eligibility because they failed to begin
participation in or failed to complete a JSP. Some of these cases could
eventually be resolved in the courts. The retention of the regulations
on the JSP will continue to provide the basis for supporting
determinations made by State agencies during the period the JSP
requirement was applicable. In the proposed rule, a new paragraph was
added to Sec. 617.49, specifically providing that JSP is not a
requirement for any week which begins after November 20, 1988, and this
provision is included in the final regulations. In addition, the
Department believes that a JSP is a very useful employability service
for adversely affected workers and should be encouraged. Therefore, no
change is made in the final regulations.
19. Temporary work. The OBES commented that Sec. 617.11(a)(3)(iii)
specifies that State agencies are to take into account local labor
market characteristics in giving effect to the terms seasonal
employment and part-time, temporary work. The OBES recommended that the
final rule should provide a definition of temporary work to ensure
uniformity among and between States.
Department's response. As noted in item D. above, the Department
decided to add to the regulations definitions of the terms ``seasonal
employment'', ``odd jobs'', and ``part-time, temporary employment'', to
provide State agencies with guiding instructions for implementing
section 1426(b)(2)(A)(ii) of the OTCA, so that the Department, rather
than the States, defines the limits of Federal liability under
Sec. 617.11(a)(3) as under other aspects of the TAA program. The
explanation for each of these definitions is noted in item D. In more
specific response to the commenter, notice that the definitions go
beyond simply defining temporary work separate and apart from ``part-
time, temporary employment'' as used in the statute. To fit into this
category, as is made clear in the amended regulation, such work must be
both part-time and temporary.
20. Enrolled in training. The Governor of North Dakota and the Job
Service of North Dakota, commenting on Sec. 617.11(a)(2)(vii), point
out that the definition for ``enrolled into training'' is when the
worker has been accepted to an approved training program that will
begin within 30 calendar days. Both recommended that the definition
provide that a worker be considered as enrolled in training upon
acceptance into an approved training program and scheduled to commence
training on the next regularly scheduled program starting date. Rural
States have a limited number of training facilities offering open entry
and open exit options. Virtually all training programs offered by both
public and private facilities have designated enrollment dates. The 30-
day limitation would cause States to invoke the waiver provision
unnecessarily.
Department's response. The Department included the 30-day provision
in the definition for ``Enrolled in training'' to help reduce the
number of waivers of the training requirement that would have to be
issued by State administering agencies because approved training would
not begin immediately. The Department recognizes that schedules for
some training institutions may involve periods longer than 30 days for
training to begin. In such situations, a waiver may and should be
granted. States must search for training programs for individuals which
will begin within 30 days, or as soon as possible thereafter. To allow
fewer days in the definition for ``Enrolled in training'' would
generate more waivers of the training requirement and increase
administrative costs. The Department believes that extending this
period in regulations would be difficult to justify. Under the statute,
the objective of the training requirement is to get workers actively
engaged in training as soon as possible, as a condition of entitlement
to TRA. The 30-day requirement eliminates the need for a waiver where
the training program is to begin within 30 days, but does not subject
the worker to the EB work test while awaiting the start of training.
Accordingly, no change is made in the final regulations.
21. Apparent contradiction with EB work test. The MDLIR commented
that Sec. 617.11(a)(2)(vi)(B) and (vii)(B) and (C), which refer to the
EB work test and the training requirement, appear to be contradictory.
The regulations state that the EB work test and the training
requirement shall not apply to an individual with respect to a claim
for TRA for weeks of unemployment prior to the filing of an initial
claim for TRA, nor for any week which begins before the certification
is issued and the individual is fully informed of the requirement. The
MDLIR points out that the language of these paragraphs appears to
permit retroactive payments of TRA.
Department's response. The Department does not agree with the
commenter. The cited paragraphs of the regulations do not authorize
retroactive payments of TRA. These paragraphs specifically provide that
the requirements for eligibility in clauses (vi) and (vii) may not be
applied retroactively, to workers otherwise eligible for basic TRA,
because workers cannot comply retroactively with those requirements.
This is a ``due process'' issue only. Therefore, no change is made in
the regulations.
22. Completed training. The Unemployed Council of Southwestern
Pennsylvania (UCSP), commenting on Sec. 617.11(a)(2)(vii)(D)(2), stated
that the requirement ``the training occurred subsequent to the
individual's total or partial separation'' goes beyond Congressional
intent. The UCSP argues that in amended Section 231(a)(5)(B) Congress
allowed TRA payments to workers who have ``* * * after the date on
which the worker became totally separated, or partially separated, from
adversely affected employment, completed a training program approved by
the Secretary. * * *'' The UAW also commented along the same lines.
Department's response. The Department agrees with the comments, and
the regulations have been changed accordingly to delete the word
``occurred'' and insert in place thereof ``was completed'' in
Sec. 617.11(a)(2)(vii)(D)(2).
23. Enrolled in training. The Washington Employment Security
Department (WESD), commenting on Sec. 617.11(a)(2)(vii)(D)(1),
recommended that the definition for ``enrolled in training'' be amended
by adding after ``within 30 calendar days'' the words ``or the next
available time the training could begin at the training institution.''
The WESD explained that in the cases where training is not available
within 30 days of approval that to subject the worker to the EB work
test, which means a worker must accept any work the worker is
physically capable of performing, would be to the detriment of the
worker when training is approved and planned for in the foreseeable
future.
Department's response. During the period the EB work test is
applied under Sec. 617.19(b)(3), when the training requirement is
waived, the worker may find suitable employment which would eliminate
the need for additional training. If the State agency determines the
job is not suitable (as defined in Sec. 617.22(a)(1)(ii)), and it is
reasonable and necessary for the worker to quit work in order to enter
training, as provided in Sec. 617.18(b)(1)(iii), the individual may
enter training when the training program begins. Also, see the
Department's response in item 20, above. Therefore, no change is made
in the final regulations.
24. Certain waivers. The PDLI commented that
Sec. 617.11(a)(3)(i)(C) appears to require that a worker must meet all
the requirements applicable to eligibility for basic TRA in the
preceding sections, including the wage and employment qualifying
requirements, with respect to the total separation in
Sec. 617.11(a)(3)(i)(B), to qualify for the waiver of the basic TRA
eligibility period and the 210-day filing requirement under Section
1425(b) of the OTCA. The PDLI commented further that the reference in
Section 1425(b) is to total separations from adversely affected
employment within the meaning of Section 247 of the Act. Section 247
defines both separation and adversely affected employment. The
definitions do not include references to wage and employment qualifying
requirements. Requiring workers to meet these additional conditions
with respect to the total separation noted in section 1425(b) seems to
be beyond the intent of the law. Further, to the extent previous
Federal operating instructions (GAL 7-88) direct the wage requirements,
including equivalent qualifying weeks, be met as provided under the law
prior to the 1986 Amendments, the PDLI believes those instructions are
incorrect and should be revised.
Department's response. The Department does not concur in these
comments. Section 1425(b) does not remove the wage and employment
qualifying requirements of the Trade Act. This section, by specific
reference to sections 233(a)(2) and 233(b), only eliminates the time
limit on the eligibility period for receiving basic TRA and the 210-day
time limit for filing for training to qualify for additional weeks of
TRA. No waiver of any of the other basic eligibility requirements is
implied in removing these two time constraints. Therefore, no change is
made in the regulations.
25. 210-day period. The WESD, commenting on Sec. 617.15(b)(2),
argues that it would be a contradiction for the Department to retain
the present 210-day requirement for requesting training in order to
qualify for additional weeks of TRA rather than applying a movable
eligibility period as used for TRA payments. The NJDL and the MESC also
commented that the 210-day period should begin with the individual's
most recent qualifying separation.
Department's response. The Department agrees with these comments,
and Sec. 617.15(b) is revised accordingly in the final rule. This
change has already been implemented through Change 2 to GAL 7-88 and
reiterated in GAL 15-90, both of which were also previously published
as notices in the Federal Register. This change is effective for
decisions made on or after August 23, 1988, when the movable
eligibility period took effect. However, as this change was not
included in the proposed rule, a 30-day comment period is provided in
this final rule. (See the explanation above in item C.)
26. Scheduled breaks in training. The UAW, commenting on
Sec. 617.15(d)(1), pointed out that amended section 233(f) provides
that a worker shall be treated as participating in training during a
week which falls in a break of 14 days or less, if the worker was
participating in training before the break and ``the break is provided
under such training program.''
The UAW points out that the proposed rule adds the requirement that
the break be ``provided in the published schedule of the training
program.'' While ``publication'' might ease administration, there are
some individualized training programs which do not have published
schedules. Therefore, the UAW recommended that ``previously
established'' schedule as an alternative formulation which would permit
workers in less academic settings to continue to receive TRA as
Congress intended, but prevent nonparticipating workers from arguing
they were merely ``on break.''
Department's response. The Department does not believe such a
narrow reading need be given to the word ``published,'' but has
clarified the regulations by modifying Sec. 617.15(d)(1) to add after
the ``published schedule'' the words ``or previously established
schedule'' and by adding that the break may be indicated in the
training program approved for the individual. The intent is to ensure
that ``breaks'' in training during which TRA payments may continue are
not limited to regularly scheduled breaks established by the training
provider before the program begins but also include all other periods
of time elapsing between courses or phases of the approved training
program. Therefore, the changes made in this final rule with respect to
this matter go beyond the comments received, and, as explained in item
F. above, a new clause (2) is added to Sec. 617.15(d) to define a
scheduled break in training as including scheduled breaks within or
between courses, terms, quarters, semesters, and academic years,
whether or not such breaks are scheduled by the training provider.
27. Before and after break. The PDLI commented that
Sec. 617.15(d)(1)(i) requires, in addition to other requirements, that
the worker be participating in training immediately prior to the break
and resume participation immediately after the break ends. The PDLI
recommends that this provision might be stated better by changing the
final regulation to participating in training for the week claimed
prior to the beginning of the break and resuming participation for the
week claimed at the end of the break.
Department's response. The Department believes the commenter's
suggestion would introduce some ambiguity in the wording of the
regulations. However, Sec. 617.15(d)(1) is revised to reflect the
change announced in GAL 15-90, and set forth in Section E.3., Payments
of TRA During Breaks in Training, in Attachment A to GAL 15-90. Section
233(f) provides for the payment of basic and additional TRA ``during
any week which is part of a break in training'' provided certain
conditions are met. The conditions are spelled out in
Sec. 617.15(d)(1), clauses (i) through (iii). In addition, as a
condition of TRA eligibility during the break, Sec. 617.15(d)(1) is
amended to restate the requirement that the worker shall be required to
participate in training after the break ends. This will assure that the
purpose of Section 233(f) is carried out. Section 617.15(d)(1)
accordingly is modified by removing the ``resume participation''
condition from clause (i) and restating it in clause (iii), with
emphasis upon ``immediate'' resumption of participation.
28. Break delay. The ODHR, commenting on Sec. 617.15(d)(1)(i),
explains that by including the phrase ``and resumes participation'' as
a condition for payment means that no payment for the break can be paid
until the break is over and this is verified. The ODHR states that this
contradicts the intent of the rule that ``An individual will continue
to receive basic and additional weeks of TRA during scheduled breaks in
training'' and would create problems if the break fell within the
individual's scheduled reporting period. The NYDL provided similar
comments on Sec. 617.15(d)(1)(i).
Department's response. The Department agrees that it is not the
intent of this regulation to delay TRA payments during scheduled breaks
in training that do not exceed 14 days. However, if a worker fails to
resume participation in the training immediately after the break ends,
any payments made during the scheduled break shall be established as
overpayments, subject to repayment under the provisions of Sec. 617.55.
Therefore, no change in the regulations is necessary to reflect this
intent.
29. Inconsistency. The MESC, commenting on Sec. 617.15(d)(2),
stated that no basic TRA may be paid if the individual is on a
scheduled training break of 15 days or more. The MESC stated that
denial of TRA to a claimant during a break which exceeds 14 days, but
less than 30 days, is inconsistent with the definition of ``enrolled in
training'' in Sec. 617.11(a)(2)(vii)(D)(1), which allows payment of TRA
to a claimant who will enter training within 30 days. A claimant during
a break in training of less than 30 days should be considered enrolled
in training and eligible for basic TRA.
Department's response. The purpose of these two provisions is not
similar, nor is there a basis in the statute for altering the specific
14-day provision of section 233(f). The 14-day break in training
provision is a statutory requirement and not subject to change in
regulations. On the 30-day provision, see the discussion in item 20
above. Therefore, no change is made in the final regulations.
30. Holidays during breaks. The West Virginia Department of
Employment Security (WVDES) commented that, in counting days of breaks
under Sec. 617.15(d)(3), Saturdays and Sundays are not counted but
holidays are counted. The WVDES recommends that for purposes of
counting the days in a break, holidays not be counted along with
Saturdays and Sundays. The MESC, NYDL and the Oregon Department of
Human Resources (ODHR) provided similar comments.
Department's response. The Department agrees that recognized legal
holidays should not be counted, and has already acknowledged this
change in section E.3. of Attachment A to GAL 15-90 (also see page 3 of
the GAL). Ordinarily, breaks in training are oriented to National and
State holidays, and to periods within terms or semesters of the
training institution. The one long holiday oriented break each year is
the holiday beginning around the second or third week in December and
ending after New Year's Day. Since these holidays are the reason for
the break, the Department agrees that such holidays should not be
included in counting the number of days of the break. The critical
point is whether a particular day would ordinarily be a scheduled
training day in the particular training program. Therefore, official
State and National holidays are added to the days not counted in
counting the days of a break, if training in the program concerned
would not normally be scheduled on such days. (See the explanation in
item F. above.)
31. EB work test. The MESC, commenting on Sec. 617.17(b)(2), stated
that this section indicates that on or after November 21, 1988,
claimants in training which is State approved (but not TAA approved)
must satisfy the EB work test. The MESC further states that before
November 21, 1988, the EB work test was not applied to claimants in
State approved training. The MESC argues that there should be no change
in the exception to the EB work test on or after November 21, 1988.
Section 231(a)(4) of the Trade Act, unchanged by the 1988 Amendments,
requires that to be eligible for TRA, a worker would not be
disqualified for EB due to the work test. An EB claimant in State
approved training would not be disqualified.
Department's response. The commenter incorrectly reads section
231(a)(4) and the effect of the substantive amendment to section
231(a)(5), which was effective on November 21, 1988. Prior to November
21, 1988, for the purposes of basic TRA, participation in training
approved under the State law or under Sec. 617.22(a) was sufficient to
make the able and available requirement, including the EB work test,
inapplicable. The amendment to section 231(a)(5) makes training
approved under section 236 an eligibility requirement for basic TRA,
effective on November 21, 1988. After November 20, therefore, claimants
for basic TRA may not satisfy the requirement of section 231(a)(5), or
avoid the EB work test, by participating in training which is not
approved under section 236. The Department's position was clearly set
forth in section 4.C. of GAL 7-88, and was reiterated without change in
section C. of Attachment A to GAL 15-90; it also is correctly stated in
Secs. 617.11(a) (2), (3), and (4) and 617.17(b) of the proposed rule
and is retained in this final rule.
To give full effect to the 1988 Amendments, moreover, the EB work
test must apply even after the TRA claimant has satisfied the
requirement of Section 231(a)(5) by completing a training program
approved under amended Sec. 617.22(a), (see Section C. of Attachment A
to GAL 15-90). Having completed such training, the individual should be
job ready, and should be actively seeking work so as to return to
employment as soon as possible. It is particularly appropriate in these
circumstances, therefore, that the EB work test of section 231(a)(4)
should apply in regard to any further claims for basic TRA. It would
not accord with these purposes to permit the claimant to avoid the EB
work test by engaging in any other training that is not approved under
amended Sec. 617.22(a). The Department has concluded, and the final
regulations provide, therefore, that the EB work test must be met by
every claimant for basic TRA, unless the claimant actually is enrolled
in or participating in TAA approved training as specified in the Trade
Act and in these final regulations. This requirement applies as well to
claimants who have completed TAA approved training, with respect to any
claim for basic TRA for any week beginning after completing the
training program. For the foregoing reasons, no change is made in the
final regulations.
(Note: section 202(b) of the Unemployment Compensation
Amendments of 1992 added paragraph (7) to section 202(a) of the
Federal-State Extended Unemployment Compensation Act of 1970, which
suspends the eligibility and requalification requirements of
paragraphs (3) and (4) of section 202(a) for the weeks beginning
after March 6, 1993, until January 1, 1995. GAL No. 7-93, 58 F.R.
21477, makes this change applicable to the TAA Program and should be
used for guidance with respect to this issue. This change is not
incorporated into the final regulations because it is a temporary
suspension.)
32. Justifiable cause. The American Federation of Labor and
Congress of Industrial Organizations (AFL-CIO), commented on
Sec. 617.18(b)(2)(i), regarding an individual who ``* * * fails to make
satisfactory progress in training,'' and on Sec. 617.18(b)(2)(ii)(C),
Justifiable cause, including reasons related to the individual's
capability to participate in or complete approved training. The AFL-CIO
recommends that, since educational limitations are a common reason for
failure to profit from job training, such individuals should be
promptly evaluated as to the need for remedial education, as authorized
under the 1988 Amendments.
Department's response. The Department agrees that training must be
suitable for the worker. The fifth criterion in section 236(a)(1)
requires a supported determination that a worker is qualified to
undertake and complete the training being approved. See section G.1. of
Attachment A to GAL 15-90 and section 4.G.1. of GAL 7-88, and
Sec. 617.22(a)(5). This provision emphasizes the worker's personal
qualifications; that is, that the worker's own physical and mental
capabilities and background and experience are appropriate to the
training. It states further that the worker must be evaluated before
approving training as being qualified to undertake the specific
training program being considered and to complete that training program
successfully. If the worker needs remedial education, this should be
identified and included as a part of the approved training program. If,
during the training program, the need for remedial education becomes
apparent, appropriate arrangements should be made to accommodate those
needs as part of the same training program. Therefore, while the
Department agrees with the comment, no change is needed in the
regulations to accomplish this intent. However, the worker's personal
qualifications in Sec. 617.22(a)(5) are amended by adding financial
resources to the existing qualifications to undertake and complete the
training being approved. Item J., above, explains the change and the
Department's reasons for the change.
33. Satisfactory progress in training. The PDLI commented that
several paragraphs in the proposed rule refer to ``making satisfactory
progress'' in training. This language was amended in section 233(a) of
the Trade Act effec- tive on November 21, 1988, to ``participating'' in
training, and section 236(c) was repealed. The PDLI recommends that
unless these sections refer to the law prior to November 21, 1988, this
language only serves to confuse and should be revised or deleted. The
UCSP and UAW made similar comments on the requirement in the proposed
rule that the worker must have ``successfully'' completed an approved
training program to meet the training completion requirement of amended
Section 231(a)(5).
Department's response. The Department has reconsidered these
matters and agrees that the comments on ``satisfactory progress'' have
merit. References to ``satisfactory progress'' have therefore been
removed from Secs. 617.11(a)(3)(i)(D), 617.15(b)(3), 617.18(b)(1)(ii)
and (iii), and 617.18(b)(2)(i). The references to ``successfully''
completed and ``satisfactory'' completion of training are also removed
from Secs. 617.11(a)(2)(vii) (A)(2) and (D)(2). However, the conditions
for ``completed training'' in Sec. 617.11(a)(2)(vii)(D)(2) are
retained. To meet the requirements of section 231(a)(5) of the Act, it
is reasonable to expect an individual who completed a training program
to have satisfied the standards or conditions for the training program
and, therefore, to have ``successfully'' completed such training in
order to be job ready. Further, in connection with making this
correction in Sec. 617.11(a)(3)(i)(D), the language is modified to make
it clearer that an individual must actually be enrolled in or
participating in approved training in each week that TRA is claimed,
and that, while the break in training provisions of Sec. 617.15(d)
apply, the waiver of participation provisions of Sec. 617.19 shall not
be applicable under paragraph (a)(3).
34. Waiver appeals. The PDLI commented that Sec. 617.19(a)(2)
provides the minimum information that shall be contained on the waiver
of training participation. (Sec. 617.19(c)(3) provides for equivalent
information on the waiver revocation form.) These minimum information
items do not include an appeal date, or instructions for appeal.
However, Sec. 617.19(c)(4) appears to state that waivers and waiver
revocations shall be appealable. The PDLI suggests that the issuance of
waivers and waiver revocations should not be appealable determinations;
rather, these documents are prerequisites to determinations of
entitlement to TRA payments, and these latter determinations should be
appealable. The PDLI recommends further evaluation of this regulation.
Department's response. The 1975 regulations required that all
determinations relating to TAA program benefits shall be subject to
appeal and review, as specifically required by section 239(d) of the
Trade Act of 1974. That requirement continues in effect and is
correctly implemented in the regulations in providing that Secs. 617.50
and 617.51 shall apply to all determinations regarding waivers, as well
as any determination pertaining to any other TAA program benefit.
Waivers have a direct relationship to basic TRA entitlement. The
Department does not believe it would be appropriate to provide that an
individual should be denied the right to appeal a determination issued
by the State agency that training is not feasible or appropriate, or
that written notice of such determinations (granting, denying, or
revoking a waiver) should not include notice of appeal rights.
Consideration of the comments, however, reveals that there appears
to be some lingering uncertainty about the scope of the waiver
provision and the appeal rights of individual workers, and the
reexamination of the language proposed for Sec. 617.19 underscores the
need for some clarification of the regulatory language so as to express
the scope of the waiver provision more accurately and to declare
unmistakably the appeal and review rights of individuals in regard to
all determinations relating to waivers.
Paragraph (a)(1) of Sec. 617.19 thus is revised to state more
accurately the scope of the waiver provision, and to state explicitly
that a waiver pertains solely to basic TRA and may never be made
applicable to additional TRA. Paragraph (a)(2) is revised so as to be
more explicit about the application of the waiver provision, and to
provide that waiver determinations shall include all of the information
required by Sec. 617.50(e), which thereby requires inclusion of notice
of appeal rights in any such determination. This is in addition to
other information specified in paragraph (a)(2) that is required to be
furnished in the determination.
Other important changes in paragraph (a) of Sec. 617.19 are the
addition of clauses (3) and (4). Clause (3) is added to make certain
that denial of a waiver also is a determination to which all of the
requirements for determinations apply. Clause (4) is a restatement of
the provision proposed in paragraph (c)(4), and is moved in paragraph
(a) and revised to make more explicit the application of Secs. 617.50
and 617.51 to all determinations under paragraph (a) and to provide
expressly that this means and includes notice of appeal rights.
Conforming changes are made in other paragraphs of Sec. 617.19,
most significantly including a combining of the provisions of clauses
(3) and (4) of paragraph (c) into a revised clause (3), and deleting
the proposed clause (4). This revision makes clear that waiver
revocations are determinations to which Secs. 617.50 and 617.51 apply,
and that such determinations shall include all of the information
required for determinations under paragraph (a), including notice of
appeal rights.
35. Waiver revocation. The NYDL commented on Sec. 617.19(a)(2)(iv),
which mandates inclusion of the statement that the ``waiver will be
revoked at any time suitable training becomes available.'' This
statement would be appropriate only for waivers issued because suitable
training is not currently available; however, there are numerous
situations in which training may become available and yet a revocation
of waiver would not be appropriate. Accordingly, the NYDL recommended
the following statement as more appropriate: ``This waiver is subject
to review at 30 day intervals.'' This would afford the states the
needed latitude to assess the continuing validity of a waiver should
training become available but remain inappropriate.
Department's response. The Department agrees that the qualifying
wording is too narrowly focused, but does not agree on affording States
the broad latitude suggested by the NYDL. Accordingly,
Sec. 617.19(a)(2)(iv) is revised by deleting the term ``suitable
training'' and inserting in place thereof ``appropriate and feasible
training'' as provided in amended section 231(c)(2) of the Act.
36. Waiver reasons. The UAW commented that Sec. 617.19(b)(2)(i) as
drafted should be of substantial assistance to State agencies in
administering this provision. The UAW suggested that, for clarity, the
Department repeat the criteria that ``the worker is so situated as to
be able to take full advantage of the training'' at this point in the
rule.
Department's response. The Department believes that
Sec. 617.19(b)(2) adequately covers the reasons for issuing a waiver
when training is not feasible or appropriate. The UAW's point is
covered under the criteria for approval of training. Therefore, no
change is made in the regulations.
37. Training limitation. The Nebraska Department of Labor (NDL)
commented that Sec. 617.19(b)(2)(ii)(B) indicates that a course of
training is not appropriate if the duration of training exceeds the
individual's maximum entitlement to TRA payments. This would seem to
limit appropriate training to a duration of 52 weeks when initial UI
eligibility is 26 weeks. If this is the actual effect, it ignores the
fact that an individual may enter training during the initial UI
benefit period. When the individual enters training during the UI
eligibility period, a training program of up to 78 weeks might be
completed before exhausting TRA benefits. It seems further to preclude
the possibility for an individual who enters training during the first
13 weeks of UI to be eligible for needs based payments under EDWAA
during the portion of a training period which might extend beyond the
end of TRA eligibility. If this section in fact has these effects, they
may be unintended, and should perhaps be reconsidered.
Department's response. The TAA provisions of the Trade Act
authorize the State to approve training for a worker for up to 104
weeks; however, the maximum combined duration of UI and TRA payments
generally is 78 weeks. If a training program longer than the worker's
remaining eligibility for UI and TRA payments is being considered, the
State administering agency should ensure that the individual has the
financial resources to complete the training program after TRA payments
expire. If such an assurance cannot be made, a training program of
shorter duration should be considered for approval. The Department
therefore agrees that the regulation is too strictly worded, and
Sec. 617.19(b)(2)(ii)(B) is clarified in these final regulations. (See
discussion in item J. above, on Revision of Sec. 617.22(a)(5).)
38. Reasons for waiver. The VDET, commenting on
Sec. 617.19(b)(2)(ii)(C), concerning reasons for issuing a waiver,
asked why, after 26 weeks of UI, a person with skills for suitable
employment has not become reemployed already. Simply allowing a waiver
to be granted at this point in a person's unemployment seems to be at
odds with the intent of all of the recently enacted Federal retraining
legislation, and may actually exacerbate a situation where the worker
has not been receiving the proper services which would result in new
employment. The VDET recognized that there may be some circumstances
where it would be unfair to the worker not to receive a waiver based on
this condition. However, the VDET recommended making this condition an
extreme one, by not specifically identifying it as a reason to grant a
waiver.
Department's response. The Department agrees that waivers should
only be issued on a limited basis. As reflected in the VDET comment,
however, there may be situations where such waivers are properly
warranted. For example, when a firm agrees to employ a worker in the
foreseeable future, no purpose would be served by having the worker
enter training to learn other occupational skills. Therefore, the
Department sees no need to make any change in the regulations.
39. Every 30 days. The PDLI recommended that the parenthetical
phrase ``(i.e., every 30 days or less)'' in Sec. 617.19(c)(1) be
deleted as an unnecessary guideline with which compliance could be
impossible. The OBES presented similar comments that the final rule
should reflect administrative and logistical realities by specifying
such period for waiver review to be 60 days. Basic TRA payments should
be made once a waiver has been issued until such time as the waiver is
revoked, and not require documentation of such waiver reviews on an
ongoing or routine basis. The CEDD also recommended that the frequency
of waiver reviews be changed to 60 days. The MESC recommended that
waivers be reviewed every 90 days, while the ODHR recommended that the
State have more flexibility in the frequency for reviewing waivers. The
NJDL recommended that States be given authority to establish procedures
for reviewing appropriate waivers.
Department's response. A major objective of the 1988 Amendments is
to enroll adversely affected workers in training programs to help
facilitate their return to employment as quickly as possible. The
Department believes that, when the training requirement is waived for
an individual, proper program administration necessitates regular
reviews of waivers issued by the State agencies. The frequency of such
reviews at 30-day intervals is reasonable to carry out the provision
requiring adversely affected workers to be enrolled in training for
purposes of receiving TRA, particularly in light of the fact that TRA
is a weekly benefit program and the 30-day rule only requires review
approximately every four weeks. Section 231(c)(2)(B) provides that
``If, after submitting to a worker a written statement * * * a State or
State agency finds that it is feasible or appropriate to approve a
training program for such worker pursuant to the requirements of
section 236(a), the State or State agency shall submit to such worker *
* * a written statement that revokes the certification * * *.'' To
review waivers less frequently than every 30 days would not give the
sense of urgency reflected in the law on placing adversely affected
workers into training programs as soon as possible.
However, the comments highlight an omission in the regulations, in
that, in individual cases, when circumstances change, the need to
revoke a waiver may arise earlier than the next periodic review, and,
accordingly, necessitate action to revoke the certification before the
next review date. Therefore, Sec. 617.19(c)(2) is amended to require
revocation in individual cases at any time a change in circumstances
occurs.
40. Waiver determinations appealable. The MESC, commenting on
Sec. 617.19(c)(4), stated that waiver actions should not be appealable
determinations. If training is being denied, the denial and any appeal
should come on the training determination, not on the waiver.
Otherwise, duplicative appeals and confusion of issues will result. The
waiver form should contain an explanatory statement, such as: ``If you
disagree with this waiver action, you have the right to appeal any
denial of training or trade readjustment allowances (TRA) that results
from this action.''
Department's response. See discussion under item 34, above. A
determination on the feasibility and appropriateness of training, and
the reason(s) therefor, constitutes the critical determination on
whether a worker is subject to the EB work test regarding claims for
basic TRA. Equally important is the relevance of a waiver in some
cases. For example, a waiver is not appropriate concerning entitlement
to additional TRA, because additional TRA is payable only while the
worker is actually participating in training, and, in that case, the EB
work test is not applicable. Similarly, a waiver is not appropriate
during breaks in training. It is not needed if the break is not more
than 14 days. A waiver is not appropriate if the break is more than 14
days, since payment of basic or additional TRA in this case would be
inconsistent with sections 231(a)(5), 233(a)(3), and 233(f). It is
clear, therefore, that the determination resulting in the issuance,
denial or revocation of a waiver presents justiciable issues, and,
accordingly, determinations relating to waivers must be subject to the
right of appeal and review. To deny the right of appeal and review on
justiciable issues cannot be justified. Paragraph (c)(4) of
Sec. 617.19, therefore, has a sound basis in law, and is unchanged in
the final rule.
41. Recording waivers. The NYDL, commenting on Sec. 617.19(d)(1),
stated that recordkeeping and reporting of waivers issued and revoked
by reason constitutes a very real problem in that the agency relies on
time consuming manual systems. Any requirement in this regard must be
accompanied by appropriate levels of administrative funding,
specifically for this purpose, in order to yield reliable data.
Department's response. The regulations at Sec. 617.19(d) (1) track
the language of section 231(c)(3) of the Trade Act, which provides that
the Secretary shall submit an annual report to Congress on the number
of waivers issued and the number revoked. As explained in item 14
above, matters concerning the administrative funding for all TAA
activities are addressed in program letters and other issuances of the
Department and will be addressed further in Sec. 617.60 when it is
published. No special funding category is contemplated for this item.
Therefore, no change is made in the final regulations.
42. Reemployment plans. The NYDL commented that to require monthly
reviews of individual reemployment plans, as implied in
Sec. 617.20(b)(13), would not serve the worker in a constructive way,
and to interview every adversely affected worker needlessly would place
an unreasonable burden on the agency when there is a minimum amount of
funds available for staff costs. The PDLI and the NJDL provided similar
comments.
Department's response. The Department concurs in the comments. It
is not the Department's intent to have State agency staffs review
individual reemployment plans every 30 days, as is required for waivers
of the training requirement. Therefore, the rule is modified to provide
for periodic review and updating of reemployment plans, as may be
appropriate, in individual cases. The review of waivers, which is
required no less frequently than every 30 days under Sec. 617.19(c)(1),
is addressed in a new clause (14) in Sec. 617.20(b).
43. Work in the ``foreseeable future''. The UAW, commenting on
Sec. 617.22(a)(1)(ii), stated the proposed rule provides that training
can be denied if there is a reasonable prospect of suitable work within
the ``foreseeable future.'' The statute does not include this element,
providing instead that there must be ``no suitable employment
available'' to the adversely affected worker. The UAW argues that under
the proposed rule, a worker could be denied TRA because training was
not approved due to foreseeable work, even though the worker had no job
to enter. The UCSP provided similar comments and recommended that the
last part of the rule be eliminated.
Department's response. This provision was incorporated in the
regulations to preclude the approval of training when the worker is
clearly scheduled to be employed or recalled. For that worker, suitable
employment is ``available'' if the employment may occur in the
foreseeable future. The purpose of including the provision in the rule
is to give meaning to the first criterion of section 236(a)(1) and help
preserve limited training funds for use by workers who need such
assistance to return to employment. Labor-management agreements
frequently provide for worker recall on a seniority basis. When recalls
are scheduled in the foreseeable future, workers clearly do not need
training in order to return to employment. In such situations, a waiver
of the training requirement is appropriate and shall be issued by the
State administering agency. Therefore, no change is made in
Sec. 617.22(a)(1)(ii) of the regulations. However, as explained in item
H. above, guidance is added in Secs. 617.19 (b)(1)(i)(B) and
(b)(2)(ii)(A) for use by State agencies on the application of recall
that will occur in the ``reasonably foreseeable future.''
44. Suitable employment. The AFL-CIO, commenting on
Sec. 617.22(a)(1)(ii), pointed out that the term ``suitable
employment'' means work at no less than 80 percent of the worker's
average weekly wage in such adversely affected employment. Since job
benefits such as health insurance and pension entitlement must be
coupled with wages to determine the total compensation of a position,
this definition should be expanded to include ``and benefits valued at
not less than 80 percent of those provided in the worker's adversely
affected employment.''
Department's response. The regulation uses the definition in
section 236(e), and any change such as that suggested would require a
change in the law. Therefore, no change is made in the regulations.
45. Adversely affected wage. The MDLIR, commenting on
Sec. 617.22(a)(1)(ii), explained that suitable employment is defined in
the proposed rule 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 in such adversely affected employment. The MDLIR asks why,
since there does not appear to be a change in the law, the regulation
was changed from average weekly wage to average weekly wage in
adversely affected employment? In addition, the definition of average
weekly wage in adversely affected employment makes reference to partial
separation which, for separations on August 23, 1988 or later, will no
longer establish TRA eligibility.
Department's response. The Department agrees that the definition of
``average weekly wage in adversely affected employment'' is used
appropriately only in the definition of ``partial separation,'' and the
definition of ``suitable work'' in section 236(e) does not include the
reference to adversely affected employment. Therefore, to fully accord
with the statute, the phrase ``in such adversely affected employment''
is removed from Sec. 617.22(a)(1)(ii).
46. Training cost limit. The UAW, commenting on Sec. 617.22(b),
pointed out that the Conference Committee rejected a proposed $4000 per
worker limit on training costs, stating that ``it is inappropriate to
establish a ceiling on training and related costs for individual
workers since such costs may vary significantly from one region of the
country to another and from one worker dislocation to another.'' The
Department cannot give the States the authority to do indirectly what
the Congress decided it would not let the Department do directly. The
UAW recommended that this proposal should be dropped. The UCSP provided
similar comments. The MESC also commented that it is contradictory to
require States to establish a single maximum amount and then indicate
that States should take into consideration the type of occupational
training, duration of training, etc. The different types of training
and varying durations render a single maximum cost meaningless. By
applying Sec. 617.22(a)(6)(iv)(B), there will be sufficient cost
control. Section 617.22(a)(6)(iv)(B) requires comparison of training
similar in quality, content and results at different training
facilities, and approval of the lowest cost training. Also, the ODHR
recommended that more guidelines are needed in order to define the
``maximum amount allowable for the total costs of training.''
Specifically, ODHR is concerned with overcoming inequities in setting
an amount both for individuals in a rural area without training
facilities and for individuals in an urban area with training
facilities. The ODHR asked if it is the intent for the maximum amount
allowable, because the cost of subsistence or mileage is part of the
cost of training, to limit the kinds or duration of training for
individuals in rural areas.
Department's response. The Department agrees with the comments and
is amending this section by eliminating the requirement that States
establish, annually, a maximum amount allowable for the total cost of
training for each worker. While the Congress did not establish a
national ceiling for the costs of training for individual workers, the
Conferees did state in the Conference Report that they expected the
Secretary of Labor to set forth guidelines for State administering
agencies to provide approved training at the lowest reasonable cost for
the particular type of training in that region consistent with the
objective of assisting import impacted workers to obtain suitable
skills to return to work as quickly as possible. The 1988 Amendments
clearly provide that State administering agencies shall approve
training for individual workers at the lowest reasonable cost which
will lead to employment and will result in training opportunities for
the largest number of adversely affected workers. This means that State
administering agencies should avoid approving training for occupations
that require an extraordinarily high skill level relative to the
worker's current skills level and for which total costs of training,
including transportation and subsistence, are excessively high. While
the final regulations eliminate the requirement for States to establish
a maximum amount allowable for the total costs of training, they
continue to provide that States approve training at the lowest
reasonable cost for the particular type of training in that region that
will lead to employment and will enable the worker to obtain employment
within a reasonable period of time.
47. Child care. The WESD, commenting on Sec. 617.22, stated it
believed that child care is equally important as transportation and
subsistence to include as a cost of training. The WESD recommended that
child care be included under the definition for supportive services, as
is transportation and subsistence. The WESD states that the 1981
Amendments do not permit self-financed training and require TAA or
other Federal, State, or private sources to ``pay the full costs of the
training.'' Washington contends that the lack of child care would, in
fact, require self payment of training costs and it should be included
as part of the reasonable costs of training.
Department's response. Section 236(b) authorizes transportation and
subsistence expenses applicable to training. Child care is a supportive
service to be obtained for individuals under section 235 of the Act
(and Sec. 617.21(e)), and is not a training cost in the TAA program.
Funds for the administration of sections 225, 231 through 235, 243 and
244 of the Trade Act are appropriated in the State Unemployment
Insurance and Employment Service Operations (SUIESO) account. The
SUIESO account includes funds for the administration of section 235
activities but not for the direct payment of supportive services for
certified individuals. Since child care is a supportive service
authorized by section 235 to be provided if available under ``any other
Federal law'', no TAA funds are appropriated for such services.
The Department's position is that the State administering agency,
in carrying out its responsibilities under section 235 and
Sec. 617.21(e), should make every reasonable effort to secure for
adversely affected workers covered by a certification any supportive
services, including child care, which are obtainable under any other
Federal law, to help individuals in training and to obtain employment.
No change is made in the regulations, but Sec. 617.21 is amended to
make clear that supportive services are to be provided under other
Federal law and may include child care.
48. Other source funds. The MESC, commenting on Sec. 617.24(e),
stated that this rule allows approval of training for which all, or any
portion, of the cost of training is paid ``from any other source''. The
MESC points out that the rule does not sufficiently define acceptable
funding sources. Some limits are necessary. Acceptable funding sources
should be limited to recognized employment and training programs,
including employer training funds. Such funding sources as friends,
relatives, and fraternal organizations should not be acceptable, but
Sec. 617.24(e) does not preclude them.
Department's response. The Department concurs in this comment and
has modified Secs. 617.24(e)(2) and 617.25(b)(1) to clarify that other
funding sources may not include sources personal to the individual,
such as self, relatives, or friends. This is consistent with the
Department's prior position on this matter.
49. Equal monthly installments. The MESC questioned the application
of the requirement in Sec. 617.25(a) that employers be paid in equal
monthly installments for on-the-job training (OJT) programs. The MESC
stated that problems are associated with trainees entering OJT programs
in the middle of the month, trainees receiving raises in wages during
the month, and trainees working different hours. The MESC explained
that it has attempted to satisfy the intent of the equal monthly
payment requirement by having the employer bill for the trainee's hours
in training during the month, which results in approximately equal
monthly payments. The Governor of Idaho and the WESD presented similar
comments on Sec. 617.25. The Governor stated that the proposed rule
will require Idaho and possibly many other States to incur additional
administrative costs to pay for tracking OJT reimbursements. The WESD
suggested that reimbursement to employers for actual hours worked by
the trainee, on a monthly basis, would eliminate overpayments.
Department's response. The Department recognizes that the statutory
provision requiring payments for OJT to be made to employers in equal
monthly installments is presenting problems in negotiating and
reimbursing employers for OJT contracts. In negotiating OJT contracts
with employers, reasonable costs should be based on the achievement of
a prescribed level of job skills, rather than being based solely on the
hourly wages of the worker. The hourly wages should serve only as a
guide for establishing OJT contract costs. A raise in the worker's
wages implies increased proficiency of the worker and higher
productivity, and may not form the basis for increasing training costs.
Once the cost of OJT for a worker is established, payments can be made
in equal monthly installments, with any required adjustment made in the
final payment to the employer.
What appears to be troubling to States in administering this
provision is thinking of equal monthly installments in terms of equal
``dollar'' amounts. Instead, it appears most reasonable to base the
``equal monthly installments'' on the number of hours of paid work
during the month, multiplied by the agreed upon rate of payment.
Although this would not assure the same dollar figure for each month,
it is nonetheless ``equal'' in the sense that the payment for each
month is computed at the same rate. This method would appear to ad-
dress the concerns expressed in the comments received, and may be
accomplished under the present reading of Sec. 617.25(a). For these
reasons, no change is made in the regulations.
50. Pell and similar grants. The ODHR, commenting on
Sec. 617.25(b)(4)(i)(A)(2), stated the rule is clear that when the
direct payment of the costs of training has been made under any other
Federal law, or the costs are reimbursable under any other Federal law
and a portion of the direct costs has already been paid under such
other Federal law, payment of such training costs may not be made from
TAA funds. The ODHR points out, however, that grants, such as Pell
Grants, are often paid directly to the institution to be applied toward
tuition. The ODHR feels this contingency should be addressed here and
that these funds should be allowed in these cases in determining costs
payable from TAA funds for training.
Department's response. The Department agrees that complications are
presented in considering appropriate TAA funding in the case of Pell
Grants and similar Federal educational assistance. Section
617.25(b)(4)(ii)(C) provides, in implementing section 236(a)(4)(C),
that such federal educational assistance paid to the individual may not
be taken into account in determining payment of the costs of training
from TAA or other funds, but such payments to the individual shall be
deducted from TRA under Sec. 617.13(c)(2). Conversely, when such
Federal educational assistance is paid to the training institution, to
the extent it is used for training costs otherwise payable from TAA
funds, it must be taken into account in determining the training costs
payable from TAA funds, either alone or in combination with other
funds. To clarify this matter, the regulations at
Sec. 617.25(b)(4)(ii)(C) are modified; combination funding is otherwise
addressed in more detail in the completely revised Sec. 617.25.
51. OJT approval. The AFL-CIO recommended that additional standards
be added in Sec. 617.25(a) concerning the approval of on-the-job
training agreements. Further, the AFL-CIO recommended that since
employers available to provide OJT under TAA have offered such training
under JTPA, those who failed to meet JTPA requirements should be barred
from receiving TAA funds for such training. Such a requirement is
clearly in keeping with the emphasis on coordination of TAA program
activities with the JTPA Title III program.
Department's response. The requirements in Sec. 617.25(a) are based
on existing statutory language, and provide adequate protection to
workers from adverse effects under OJT training contracts. The
Department agrees that contracts under the TAA program for OJT should
not be entered into with employers who failed to meet JTPA
requirements. While Sec. 617.25 (a)(9) and (a)(10) are intended to
avoid such situations, the final rule is clarified to help ensure that
employers who violated a JTPA training contract will be denied TAA
training contracts. The words ``or under any other Federal law'' is
added after ``this Subpart C'' in paragraph (a)(9) of Sec. 617.25, with
another addition at the end of paragraph (a)(9) to make this point
clear.
52. Information on waivers. The UCSP, commenting on Sec. 617.67(c),
argues that workers should be furnished information on applying for a
waiver of the training requirement in order to receive TRA payments.
Department's response. The Department does not believe a specific
provision is needed for the reasons explained in the response to item
12, above.
53. Homework. The Amalgamated Clothing and Textile Workers Union
(ACTWU) commented that a major problem has recently arisen which
affects workers, when the Department lifted the restrictions
prohibiting homework in five of the six industries, and announced it
will shortly lift the re-straints on homework in the women's and
children's apparel industry. While this matter is not finally resolved
due to court challenges, the TAA regulations have to anticipate the
situation of potentially extensive homework in these industries.
Department's response. This issue is beyond the scope of the 1988
Amendments to the TAA program, and the final rule in this document.
Other changes. In addition to the changes discussed above in
responses to comments received, other changes are made in the final
rule in this document to correct printing errors, and to make technical
and conforming changes that either do not affect the substance of the
regulations, or, in the case of other provisions (including the
transition provisions of Sec. 617.67), are necessary to conform to
other changes in the final regulations. Further, references to
compliance with ``the Act and this Part'' are changed to eliminate
references to the Act so that it is clear that the regulations are
controlling and express the Department's interpretations of the Act.
Drafting Information
This document was prepared under the direction and control of the
Director, Office of Trade Adjustment Assistance, Employment and
Training Administration, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210: telephone: (202) 219-5555 (this is
not a toll free number).
Classification Executive Order 12866
The final rule in this document is not classified as a ``major
rule'' under Executive Order 12866 on Federal Regulations, because it
is not likely to result in (1) an annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic or export markets.
Paperwork Reduction Act
In accordance with the requirements of the Paperwork Reduction Act
of 1980, 44 U.S.C. Ch. 35, approval of the recordkeeping requirement
contained at Secs. 617.19(d) and 617.57 has been obtained from the
Office of Management and Budget (control number 12050016, for reporting
forms ETA 563 and ETA 9027). OMB control number 12050222 applies to
forms used by States to convey reports to the Department as required in
Secs. 617.52(c) and 617.54.
Regulatory Flexibility Act
No regulatory flexibility analysis is required where the rule
``will not . . . have a significant economic impact on a substantial
number of small entities.'' 5 U.S.C. 605(b). The definition of the term
``small entity'' under 5 U.S.C. 601 (6) does not include States. Since
these regulations involve an entitlement program administered by the
States, and are directed to the States, no regulatory flexibility
analysis is required. The Secretary has certified to the Chief Counsel
for Advocacy of the Small Business Administration to this effect.
Accordingly, no regulatory flexibility analysis is required.
Catalog of Federal Domestic Assistance Number
This program is listed in the Catalog of Federal Domestic
Assistance at No. 17.245, ``Trade Adjustment Assistance--Workers.''
List of Subjects in 20 CFR Part 617
Job search assistance, labor, reemployment services, relocation
assistance, trade readjustment allowances, unemployment compensation,
vocational education.
Words of Issuance
For the reasons set out in the preamble, part 617 of title 20, Code
of Federal Regulations, is amended as set forth below.
Signed at Washington, DC on December 21, 1993.
Doug Ross,
Assistant Secretary of Labor.
PART 617--TRADE ADJUSTMENT ASSISTANCE FOR WORKERS
1. The authority for part 617 continues to read as follows:
Authority: 19 U.S.C. 2320; Secretary's Order No. 3-81, 46 FR
31117.
2. Paragraphs (j), (m), (t), (aa), (ff), and (oo)(4) of Sec. 617.3
are revised to read as follows:
Sec. 617.3 Definitions.
* * * * *
(j)(1) Certification means a certification of eligibility to apply
for TAA issued under section 223 of the Act with respect to a specified
group of workers of a firm or appropriate subdivision of a firm.
(2) Certification period means the period of time during which
total and partial separations from adversely affected employment within
a firm or appropriate subdivision of a firm are covered by the
certification.
* * * * *
(m) Eligibility period means the period of consecutive calendar
weeks during which basic or additional TRA is payable to an otherwise
eligible individual, and for an individual such eligibility period is--
(1) Basic TRA. (i) With respect to a first qualifying separation
(as defined in paragraph (t)(3)(i)(A) of this section) that occurs on a
day that precedes August 23, 1988, the 104-week period beginning with
the first week following the week with respect to which the individual
first exhausts all rights to regular compensation (as defined in
paragraph (oo)(1) of this section) in such individual's first benefit
period (as described in Sec. 617.11(a)(1)(iv)) or
Sec. 617.11(a)(2)(iv), whichever is applicable), and
(ii) With respect to a total qualifying separation (as defined in
paragraph (t)(3)(i)(B) of this section) that occurs on or after August
23, 1988--or before August 23, 1988, if the individual also had a prior
first qualifying separation under the same certification--the 104-week
period beginning with the first week following the week in which such
total qualifying separation occurred;
Provided, that, an individual who has a second or subsequent total
qualifying separation within the certification period of the same
certification shall be determined to have a new 104-week eligibility
period based upon the most recent such total qualifying separation; but
the rule of this proviso shall not be applicable in the case of an
individual who had a total qualifying separation before August 23,
1988, and also had a prior first qualifying separation (as referred to
in paragraph (m)(1)(i) of this section) within the certification period
of the same certification, if the individual's 104-week eligibility
period based upon the total qualifying separation (as referred to in
paragraph (m)(1)(i) of this section) would end on a date earlier than
the ending date of the individual's eligibility period which is based
upon the prior first qualifying separation; and
(2) Additional TRA. With respect to additional weeks of TRA, and
any individual determined under this part 617 to be entitled to
additional TRA, the consecutive calendar weeks that occur in the 26-
week period that--
(i) Immediately follows the last week of entitlement to basic TRA
otherwise payable to the individual, or
(ii) Begins with the first week of training approved under this
part 617, if such training begins after the last week described in
paragraph (m)(2)(i) of this section, or
(iii) Begins with the first week in which such training is approved
under this part 617, if such training is so approved after the training
has commenced; but approval of training under this part 617 after the
training has commenced shall not imply or justify approval of a payment
of basic or additional TRA with respect to any week which ended before
the week in which such training was approved, nor approval of payment
of any costs of training or any costs or expenses associated with such
training (such as travel or subsistence) which were incurred prior to
the date of the approval of such training under this part 617.
* * * * *
(t)(1) First separation means, for an individual to qualify as an
adversely affected worker for the purposes of TAA program benefits
(without regard to whether the individual also qualifies for TRA), the
individual's first total or partial separation within the certification
period of a certification, irrespective of whether such first
separation also is a qualifying separation as defined in paragraph
(t)(2) of this section;
(2) Qualifying separation means, for an individual to qualify as an
adversely affected worker and for basic TRA--
(i) Prior to August 23, 1988, the individual's first (total or
partial) separation within the certification per-iod of a
certification, with respect to which the individual meets all of the
requirements of Sec. 617.11(a)(1) (i) through (iv), and which qualifies
as a first qualifying separation as defined in paragraph (t)(3)(i)(A)
of this section, and
(ii) At any time before, on, or after August 23, 1988, any total
separation of the individual within the certification period of a
certification (other than a first qualifying separation as defined in
paragraph (t)(3)(i)(A) of this section), with respect to which the
individual meets all of the requirements in Sec. 617.11(a)(2) (i)
through (iv), and which qualifies as a total qualifying separation as
defined in paragraph (B) of (t)(3)(i)(B) of this section;
(3) ``First qualifying separation'' means--
(i) For the purposes of determining an individual's eligibility
period for basic TRA--
(A) with respect to a separation that occurs before August 23,
1988, the individual's first (total or partial) separation within the
certification period of a certification, with respect to which the
individual meets all of the requirements of Sec. 617.11(a)(1) (i)
through (iv), and
(B) with respect to a separation that occurs before, on, or after
August 23, 1988 (other than a first qualifying separation as defined in
paragraph (t)(3)(i)(A) of this section), the first total separation of
the individual within the certification period of a certification, with
respect to which the individual meets all of the requirements in
Sec. 617.11(a)(2) (i) through (iv); and
(ii) For the purposes of determining the weekly and maximum amounts
of basic TRA payable to an individual, with respect to a separation
that occurs before, on, or after August 23, 1988, the individual's
first (total or partial) separation within the certification period of
a certification if, with respect to such separation, the individual
meets the requirements of Sec. 617.11(a)(1) (i), (ii) and (iv) or
Sec. 617.11(a)(2) (i), (ii) and (iv).
* * * * *
(aa) Liable State and Agent State are defined as follows:
(1) Liable State means, with respect to any individual, the State
whose State law is the applicable State law as determined under
Sec. 617.16 for all purposes of this Part 617.
(2) Agent State means, with respect to any individual, any State
other than the State which is the liable State for such individual.
* * * * *
(ff)(1) Secretary means the Secretary of Labor of the United States
of America.
(2) Department of Labor or Department means the United States
Department of Labor or the Employment and Training Administration
within the Department.
* * * * *
(oo) * * *
(4) Federal supplemental compensation means the supplemental
unemployment compensation payable to individuals who have exhausted
their rights to regular and extended compensation, and which is payable
under the Federal Supplemental Compensation Act of 1982 or any similar
Federal law enacted before or after the 1982 Act.
* * * * *
4. Sections 617.3(h)(1) and 617.3(kk) (1) and (2) are revised to
read as follows.
Sec. 617.3 Definitions.
* * * * *
(h) Benefit period * * *
(1) The benefit year and any ensuing period, as determined under
the applicable State law, during which the individual is eligible for
regular compensation, additional compensation, extended compensation,
or federal supplemental compensation, as these terms are defined by
paragraph (oo) of this section; or
* * * * *
(kk) Suitable work * * *
(1) Suitable work as defined in the applicable State law for
claimants for regular compensation (as defined in paragraph (oo)(1) of
this section); or
(2) Suitable work as defined in applicable State law provisions
consistent with section 202(a)(3) of the Federal-State Extended
Unemployment Compensation Act of 1970;
whichever is applicable, but does not in any case include self-
employment or employment as an independent contractor.
* * * * *
5. Section 617.4 is amended by revising the heading of paragraph
(c) and adding new paragraphs (d) and (e) to read as follows:
Sec. 617.4 Benefit information to workers.
* * * * *
(c) Providing information to State vocational education agencies
and others. * * *
(d) Written and newspaper notices. (1) Written notices to workers.
(i) Upon receipt of a certification issued by the Department of Labor,
the State agency shall provide a written notice through the mail of the
benefits available under subparts B through E of this part 617 to each
worker covered by a certification issued under section 223 of the Act
when the worker is partially or totally separated or as soon as
possible after the certification is issued if such workers are already
partially or totally separated from adversely affected employment.
(ii) The State agency will satisfy this requirement by obtaining
from the firm, or other reliable source, the names and addresses of all
workers who were partially or totally separated from adversely affected
employment before the certification was received by the agency, and
workers who are thereafter partially or totally separated within the
certification period. The State agency shall mail a written notice to
each such worker of the benefits available under the TAA Program. The
notice must include the following information:
(A) Worker group(s) covered by the certification, and the
article(s) produced as specified in the copy of the certification
furnished to the State agency.
(B) Name and the address or location of workers' firm.
(C) Impact, certification, and expiration dates in the
certification document.
(D) Benefits and reemployment services available to eligible
workers.
(E) Explanation of how workers apply for TAA benefits and services.
(F) Whom to call to get additional information on the
certification.
(G) When and where the workers should come to apply for benefits
and services.
(2) Newspaper notices. (i) Upon receipt of a copy of a
certification issued by the Department affecting workers in a State,
the State agency shall publish a notice of such certification in a
newspaper of general circulation in areas in which such workers reside.
Such a newspaper notice shall not be required to be published, however,
in the case of a certification with respect to which the State agency
can substantiate, and enters in its records evidence substantiating,
that all workers covered by the certification have received written
notice required by paragraph (d)(1) of this section.
(ii) A published notice must include the following kinds of
information:
(A) Worker group(s) covered by the certification, and the
article(s) produced as specified in the copy of the certification
furnished to the State agency.
(B) Name and the address or location of workers' firm.
(C) Impact, certification, and expiration dates in the
certification document.
(D) Benefits and reemployment services available to eligible
workers.
(E) Explanation of how and where workers should apply for TAA
benefits and services.
(e) Advice and assistance to workers. In addition to the
information and assistance to workers as required under paragraphs (a)
and (b) of this section, State agencies shall--
(1) Advise each worker who applies for unemployment insurance under
the State law of the benefits available under subparts B through E of
this part and the procedures and deadlines for applying for such
benefits.
(2) Facilitate the early filing of petitions under section 221 of
the Act and Sec. 617.4(b) for any workers that the agency considers are
likely to be eligible for benefits. State agencies shall utilize
information received by the State's dislocated worker unit to
facilitate the early filing of petitions under section 221 of the Act
by workers potentially adversely affected by imports.
(3) Advise each adversely affected worker to apply for training
under Sec. 617.22(a) before, or at the same time as, the worker applies
for trade readjustment allowances under subpart B of this part.
(4) Interview each adversely affected worker, as soon as
practicable, regarding suitable training opportunities available to the
worker under Sec. 617.22(a) and review such opportunities with the
worker.
6. Section 617.10 is amended by adding a new paragraph (d) to read
as follows:
Sec. 617.10 Applications for TRA.
* * * * *
(d) Advising workers to apply for training. State agencies shall
advise each worker of the qualifying requirements for entitlement to
TRA and other TAA benefits at the time the worker files an initial
claim for State UI, and shall advise each adversely affected worker to
apply for training under subpart C of this part before, or at the same
time, the worker applies for TRA, as required by Sec. 617.4(e)(1) and
(3).
7. Section 617.11 is revised to read as follows:
Sec. 617.11 Qualifying requirements for TRA.
(a) Basic qualifying requirements for entitlement--(1) Prior to
November 21, 1988. To qualify for TRA for any week of unemployment that
begins prior to November 21, 1988, an individual must meet each of the
following requirements of paragraphs (a)(1) (i) through (vii) of this
section:
(i) Certification. The individual must be an adversely affected
worker covered under a certification.
(ii) Separation. The individual's first qualifying separation (as
defined in paragraph (t)(3)(i) of Sec. 617.3) before application for
TRA must occur:
(A) On or after the impact date of such certification; and
(B) Before the expiration of the two-year period beginning on the
date of such certification, or, if earlier, before the termination
date, if any, of such certification.
(iii) Wages and employment. (A) In the 52-week period (i.e., 52
consecutive calendar weeks) ending with the week of the individual's
first qualifying separation, the individual must have had at least 26
weeks of employment at wages of $30 or more a week in adversely
affected employment with a single firm or subdivision of a firm.
Evidence that an individual meets this requirement shall be obtained as
provided in Sec. 617.12. Employment and wages covered under more than
one certification may not be combined to qualify for TRA.
(B)(1) For the purposes of paragraph (a)(1)(iii) of this section,
any week in which such individual--
(i) is on employer-authorized leave from such adversely affected
employment for purposes of vacation, sickness, injury, maternity, or
inactive duty or active duty military service for training, or
(ii) does not work in such adversely affected employment because of
a disability compensable under a workers' compensation law or plan of a
State or the United States, or
(iii) had adversely affected employment interrupted to serve as a
full-time representative of a labor organization in such firm or
subdivision,
shall be treated as a week of employment at wages of $30 or more;
(2) Provided, that--
(i) not more than 7 weeks in the case of weeks described in
paragraph (a)(1)(iii)(B)(1)(i) or paragraph (a)(1)(iii)(B)(1)(iii) of
this section, or both, and (ii) not more than 26 weeks described in
paragraph (a)(1)(iii)(B)(1)(ii) of this section,
may be treated as weeks of employment for purposes of paragraph
(a)(1)(iii) of this section.
(C) Wages and employment creditable under paragraph (a)(1)(iii) of
this section shall not include employment or wages earned or paid for
employment which is contrary to or prohibited by any Federal law.
(iv) Entitlement to UI. The individual must have been entitled to
(or would have been entitled to if the individual had applied therefor)
UI for a week within the benefit period--
(A) in which the individual's first qualifying separation occurred,
or
(B) which began (or would have begun) by reason of the filing of a
claim for UI by the individual after such first qualifying separation.
(v) Exhaustion of UI. The individual must:
(A) Have exhausted all rights to any UI to which the individual was
entitled (or would have been entitled to if the individual had applied
therefor); and
(B) Not have an unexpired waiting period applicable to the
individual for any such UI.
(vi) Extended Benefit work test. (A) The individual must--
(1) Accept any offer of suitable work, as defined in
Sec. 617.3(kk), and actually apply for any suitable work the individual
is referred to by the State agency, and
(2) Actively engage in seeking work and furnish the State agency
tangible evidence of such efforts each week, and
(3) Register for work and be referred by the State agency to
suitable work,
in accordance with those provisions of the applicable State law which
apply to claimants for Extended Benefits and which are consistent with
Part 615 of this Chapter.
(B) The Extended Benefit work test shall not apply to an individual
with respect to claims for TRA for weeks of unemployment beginning
prior to the filing of an initial claim for TRA, nor for any week which
begins before the individual is notified that the individual is covered
by a certification issued under the Act and is fully informed of the
Extended Benefit work test requirements of paragraph (a)(1)(vi) of this
section and Sec. 617.17. Prior to such notification and advice, the
individual shall not be subject to the Extended Benefit work test
requirements, nor to any State timely filing requirement, but shall be
required to be unemployed and able to work and available for work with
respect to any such week except as provided for workers in approved
training in Sec. 617.17(b)(1).
(vii) Job search program participation. (A) The individual is
enrolled in, participating in, or has successfully completed a job
search program which meets the requirements of Sec. 617.49(a); or the
State agency has determined that no acceptable job search program is
reasonably available under the criteria set forth in Sec. 617.49(c).
(B) The job search program requirement shall not apply to an
individual with respect to claims for TRA for weeks of unemployment
beginning prior to the filing of an initial claim for TRA, nor for any
week which begins before the individual is notified that the individual
is covered by a certification issued under the Act and is fully
informed of the job search program requirement of paragraph (a)(1)(vii)
of this section and Sec. 617.49.
(C) The job search program requirement shall not apply to an
individual, as a qualifying requirement for TRA, with respect to any
week ending after November 20, 1988, but cooperating State agencies are
encouraged to continue to utilize job search programs after November
20, 1988, as an effective tool to assist adversely affected workers in
finding suitable employment, particularly unemployed workers who have
completed training or for whom the training requirement has been waived
under Sec. 617.19.
(2) On and after November 21, 1988. To qualify for TRA for any week
of unemployment that begins on or after November 21, 1988, an
individual must meet each of the following requirements of paragraphs
(a)(2) (i) through (vii) of this section:
(i) Certification. The individual must be an adversely affected
worker covered under a certification.
(ii) Separation. The individual's first qualifying separation (as
defined in paragraph (t)(3)(i) of Sec. 617.3) before application for
TRA must occur:
(A) On or after the impact date of such certification; and
(B) Before the expiration of the two-year period beginning on the
date of such certification, or, if earlier, before the termination
date, if any, of such certification.
(iii) Wages and employment. (A) In the 52-week period (i.e., 52
consecutive calendar weeks) ending with the week of the individual's
first qualifying separation, or any subsequent total qualifying
separation under the same certification, the individual must have had
at least 26 weeks of employment at wages of $30 or more a week in
adversely affected employment with a single firm or subdivision of a
firm. Evidence that an individual meets this requirement shall be
obtained as provided in Sec. 617.12. Employment and wages covered under
more than one certification may not be combined to qualify for TRA.
(B)(1) For the purposes of paragraph (a)(2)(iii) of this section,
any week in which such individual--
(i) Is on employer-authorized leave from such adversely affected
employment for purposes of vacation, sickness, injury, maternity, or
inactive duty or active duty military service for training, or
(ii) Does not work in such adversely affected employment because of
a disability compensable under a workers' compensation law or plan of a
State or the United States, or
(iii) Had adversely affected employment interrupted to serve as a
full-time representative of a labor organization in such firm or
subdivision, or
(iv) Is on call-up for the purpose of active duty in a reserve
status in the Armed Forces of the United States (if such week began
after August 1, 1990), provided such active duty is ``Federal service''
as defined in part 614 of this chapter,
shall be treated as a week of employment at wages of $30 or more;
(2) Provided, that--
(i) Not more than 7 weeks in the case of weeks described in
paragraph (a)(2)(iii)(B)(1) (i) or (iii) of this section, or both, and
(ii) Not more than 26 weeks described in paragraph
(a)(2)(iii)(B)(1) (ii) or (iv) of this section,
may be treated as weeks of employment for purposes of paragraph
(a)(2)(iii) of this section.
(C) Wages and employment creditable under paragraph (a)(2)(iii) of
this section shall not include employment or wages earned or paid for
employment which is contrary to or prohibited by any Federal law.
(iv) Entitlement to UI. The individual must have been entitled to
(or would have been entitled to if the individual had applied therefor)
UI for a week within the benefit period--
(A) in which the individual's first qualifying separation occurred,
or
(B) which began (or would have begun) by reason of the filing of a
claim for UI by the individual after such first qualifying separation.
(v) Exhaustion of UI. The individual must:
(A) Have exhausted all rights to any UI to which the individual was
entitled (or would have been entitled if the individual had applied
therefor); and
(B) Not have an unexpired waiting period applicable to the
individual for any such UI.
(vi) Extended Benefit work test. (A) The individual must--
(1) Accept any offer of suitable work, as defined in
Sec. 617.3(kk), and actually apply for any suitable work the individual
is referred to by the State agency, and
(2) Actively engage in seeking work and furnish the State agency
tangible evidence of such efforts each week, and
(3) Register for work and be referred by the State agency to
suitable work,
in accordance with those provisions of the applicable State law which
apply to claimants for Extended Benefits and which are consistent with
part 615 of this chapter.
(B) The Extended Benefit work test shall not apply to an individual
with respect to claims for TRA for weeks of unemployment beginning
prior to the filing of an initial claim for TRA, nor for any week which
begins before the individual is notified that the individual is covered
by a certification issued under the Act and is fully informed of the
Extended Benefit work test requirements of paragraph (a)(2)(vi) of this
section and Sec. 617.17. Prior to such notification and advice, the
individual shall not be subject to the Extended Benefit work test
requirements, nor to any State timely filing requirement, but shall be
required to be unemployed and able to work and available for work with
respect to any such week except as provided in Sec. 617.17(b)(2) for
workers enrolled in, or participating in, a training program approved
under Sec. 617.22(a).
(vii) Participation in training. (A) The individual must--
(1) Be enrolled in or participating in a training program approved
pursuant to Sec. 617.22(a), or
(2) Have completed a training program approved under
Sec. 617.22(a), after a total or partial separation from adversely
affected employment within the certification period of a certification
issued under the Act, or
(3) Have received from the State agency a written statement under
Sec. 617.19 waiving the participation in training requirement for the
individual.
(B) The participation in training requirement of paragraph
(a)(2)(vii) of this section shall not apply to an individual with
respect to claims for TRA for weeks of unemployment beginning prior to
the filing of an initial claim for TRA, nor for any week which begins
before the individual is notified that the individual is covered by a
certification issued under the Act and is fully informed of the
participation in training requirement of paragraph (a)(2)(vii) of this
section and Sec. 617.19.
(C) The participation in training requirement of paragraph
(a)(2)(vii) of this section shall apply, as a qualifying requirement
for TRA, to an individual with respect to claims for TRA for weeks of
unemployment commencing on or after November 21, 1988, and beginning
with the first week following the week in which a certification
covering the individual is issued under the Act, unless the State
agency has issued a written statement to the individual under
Sec. 617.19 waiving the participation in training requirement for the
individual.
(D) For purposes of paragraph (a)(2)(vii) of this section, the
following definitions shall apply:
(1) Enrolled in Training. A worker shall be considered to be
enrolled in training when the worker's application for training is
approved by the State agency and the training institution has furnished
written notice to the State agency that the worker has been accepted in
the approved training program which is to begin within 30 calendar days
of the date of such approval. (A waiver under Sec. 617.19 shall not be
required for an individual who is enrolled in training as defined
herein.)
(2) Completed Training. A worker shall be considered to have
completed a training program if the training program was approved, or
was approvable and is approved, pursuant to Sec. 617.22, and the
training was completed subsequent to the individual's total or partial
separation from adversely affected employment within the certification
period of a certification issued under the Act, and the training
provider has certified that all the conditions for completion of the
training program have been satisfied.
(3) Special rules for workers separated in 1981 to 1986 period. (i)
Basic conditions. Under section 1425(b) of the Omnibus Trade and
Competitiveness Act of 1988 (the ``OTCA'') (Pub. L. 100-418) the time
limit on the eligibility period for basic TRA in section 233(a)(2) of
the Act (before and after the amendment by Public Law 100-418), and the
210-day time limit in section 233(b) of the Act on the filing of a bona
fide application for training in order to qualify for additional TRA,
are set aside and shall be disregarded for any individual separated
from adversely affected employment in the period which began on August
13, 1981, and ended on April 7, 1986: Provided, That, any such
individual must meet all of the following requirements of paragraphs
(a)(3)(i)(A) through (E) of this section to qualify for TRA for any
week.
(A) Period of separation. The separation of the individual must
have occurred on a date within the period which began on August 13,
1981 and ended on April 7, 1986.
(B) Total separation required. Such separation must be a ``total
separation'' as defined in Sec. 617.3(ll), and a ``total qualifying
separation'' as defined in Sec. 617.3(t)(3)(i)(B); and, for the
purposes of determining whether an individual has been continuously
unemployed, as defined in Sec. 617.3(t)(3)(i)(E), only the last such
total separation within the August 13, 1981 to April 7, 1986 period
shall be taken into account.
(C) Other standard requirements. The individual must, with respect
to such total separation, meet all of the requirements of paragraphs
(a)(2)(i) through (v) of this section.
(D) Participation in training. (1) The individual must meet the
requirements of paragraph (a)(2)(vii) of this section, with respect to
being enrolled in or participating in a training program approved
pursuant to Sec. 617.22(a), as to each week TRA is claimed, and not be
ineligible under Sec. 617.18(b)(2) for failure to begin participation
in such training or for ceasing to participate in such training.
(2) With respect to participation in training, as required under
paragraph (a)(3) of this section, the break in training provisions of
Sec. 617.15(d) shall be applicable, and the waiver of participation
provisions in Sec. 617.19 shall not be applicable.
(E) Continuously unemployed. (1) The individual must have been
continuously unemployed since the date of the individual's total
separation referred to in paragraph (a)(2)(vii)(B) of this section, not
taking into account for the purposes of this determination any work in
which the individual was employed in seasonal employment, odd jobs, or
part-time, temporary employment.
(2) For purposes of Sec. 617.11(a)(3)(i)(E)(1), continuously
unemployed shall mean the individual has not been engaged in any
employment, except for seasonal employment, odd-jobs, or part-time,
temporary employment. Employment shall be considered:
(i) Seasonal employment when seasonality provisions of the
applicable State law are applicable to such employment; or
(ii) An odd job when the established period of employment occurs
within five (5) consecutive days or less; or
(iii) Part-time, temporary employment when a termination date of
one hundred fifty (150) days or less was established at the time of
employment, and the average weekly hours for the job, over the period
of employment, was less than 30 hours per week.
(ii) TRA payments prospective only. The provisions of paragraph
(a)(3) of this section apply to payments of TRA only for weeks which
begin after August 23, 1988, and with respect to training in which the
individual becomes enrolled and begins participation before or after
such date, and which is approved under Sec. 617.22(a) before or after
such date. No payment of TRA may be authorized under paragraph (a)(3)
of this section for any week which ends before such training is
approved under Sec. 617.22(a).
(iii) Other special rules. (1) Although the last total qualifying
separation of an individual will be used for the purposes of the
determination under paragraph (a)(3)(i)(B) of this section, the
individual's first qualifying separation (as defined in paragraph
(t)(3)(ii) of Sec. 617.3) must be used to determine the weekly and
maximum amounts payable to the individual in accordance with
Secs. 617.13 and 617.14.
(2) No individual shall be determined to be eligible for TRA under
paragraph (a)(3) of this section if the individual has previously
received all of the basic and additional TRA to which the individual
was entitled.
(3) The 26-week eligibility period for additional TRA is applicable
under paragraph (a)(3) of this section, as such term is defined in
paragraph (m)(2) of Sec. 617.3.
(4) Special rules for oil and gas workers--retroactive. (i) Basic
conditions. Under section 1421(a)(1)(B) of the OTCA, individuals
employed by independent firms engaged in exploration or drilling for
oil and natural gas who were separated after September 30, 1985, may be
entitled, retroactively, to TAA program benefits, but only if, as to
any such individual, all of the conditions in the following provisions
of paragraph (a)(4) of this section are met.
(ii) Prior certification. Individuals covered by this paragraph
(a)(4) do not include any individual covered under a certification
(made with respect to the same firm or subdivision of a firm) that was
issued under section 223 of the Act without regard to the amendments to
section 222 of the Act (relating to oil and gas workers) made by
section 1421 (a)(1)(A) of the OTCA.
(iii) Petition. (A) To apply for a certification under section 223
covering workers referred to in section 1421 (a)(1)(B) of the OTCA, a
petition must have been filed in the Office of Trade Adjustment
Assistance after August 23, 1988, and on or before November 18, 1988,
by or on behalf of a group of workers of such a firm or subdivision of
a firm.
(B) A petition, to be valid, may not be signed by or on behalf of
an individual referred to in paragraph (a)(4)(ii) of this section.
(iv) Certification. (A) As provided in section 1421(a) (1)(B) of
the OTCA, a certification issued pursuant to section 223 of the Act
will not be subject to the one-year limitation on the impact date which
is specified in section 223(b) of the Act, but the impact date of any
such certification may not be a date earlier than October 1, 1985.
(B) A certification shall not be issued under the authority of
section 1421(a)(1)(B) of the OTCA if a certification could have been
issued under section 223 of the Act before or after the amendment made
by section 1421(a)(1)(A) of the OTCA.
(v) Coverage of certification. Individuals covered by a
certification issued under the authority of section 1421(a)(1)(B) of
the OTCA will be eligible to apply for TAA program benefits as follows:
(A) Basic and additional TRA, retroactively and prospectively,
subject to the conditions stated in paragraph (a)(4) of this section;
(B) Training, prospectively, subject to the conditions stated in
subpart C of this part;
(C) Job search allowances, prospectively, subject to the
conditions stated in subpart D of this part; and
(D) Relocation allowances, prospectively, subject to the conditions
stated in subpart E of this part.
(vi) TRA entitlement. To qualify for TRA for any week, an
individual must meet all of the following requirements of paragraphs
(a)(4)(vi)(A) through (D) of this section;
(A) Certification. The individual must be an adversely affected
worker covered under a certification issued pursuant to section 223 of
the Act and under the authority of section 1421(a)(1)(B) of the OTCA.
(B) Date of separation. The date of the individual's most recent
total separation (as defined in Sec. 617.3) must be a date after
September 30, 1985, and within the certification period of the
certification under which the worker is covered. Separations occurring
prior to October 1, 1985, shall be disregarded for the purposes of
determining whether an individual experienced a total separation after
September 30, 1985.
(C) Other standard requirements. (1) With respect to weeks of
unemployment that begin after September 30, 1985, but prior to November
21, 1988, the individual must, with respect to the separation referred
to in paragraph (a)(4)(vi)(B) of this section, meet all of the
requirements of paragraph (a)(1)(i) through (vii) of this section, and
(2) With respect to weeks of unemployment that begin on or after
November 21, 1988, the individual must meet all of the requirements of
paragraphs (a)(2)(i) through (vii) of this section.
(D) Other special rules. (1) Although an individual's most recent
total or partial separation after September 30, 1985 must be used for
the purposes of this paragraph (a)(4)(vi)(B) of this section, the
individual's first qualifying separation (as defined in paragraph
(t)(3)(ii) of Sec. 617.3) must be used to determine the weekly and
maximum amounts payable to the individual in accordance with
Secs. 617.13 and 617.14.
(2) The 60-day preclusion rule in paragraph (b)(1) of this section
shall not be applicable to an individual covered by a certification
referred to in paragraph (a)(4)(vi)(A) of this section, and who is
eligible for TRA under the provisions of paragraph (a)(4) of this
section.
(3) The 26-week eligibility period for additional TRA (as defined
in paragraph (m)(2) of Sec. 617.3) is applicable under paragraph (a)(4)
of this section.
(b) First week of entitlement. The first week any individual may be
entitled to a payment of basic TRA shall be the later of:
(1) The first week beginning more than 60 days after the date of
the filing of the petition which resulted in the certification under
which the individual is covered (except in the case of oil and gas
workers to whom paragraph (a)(4) of this section applies); or
(2) The first week beginning after the individual's exhaustion of
all rights to UI including waiting period credit, as determined under
Sec. 617.11(a)(1)(v) or Sec. 617.11(a)(2), as appropriate.
8. Section 617.14(a)(2) is revised to read as follows:
Sec. 617.14 Maximum amount of TRA.
(a) General rule. * * *
(2) Subtracting from the product derived under paragraph (a)(1) of
this section, the total sum of UI to which the individual was entitled
(or would have been entitled if the individual had applied therefor) in
the individual's first benefit period described in
Sec. 617.11(a)(1)(iv) or, as appropriate, Sec. 617.11(a)(2)(iv). The
individual's full entitlement shall be subtracted under this paragraph,
without regard to the amount, if any, that was actually paid to the
individual with respect to such benefit period.
9. Section 617.15 is revised to read as follows:
Sec. 617.15 Duration of TRA.
(a) Basic weeks. An individual shall not be paid basic TRA for any
week beginning after the close of the 104-week eligibility period (as
defined in Sec. 617.3(m)(1)), which is applicable to the individual as
determined under Secs. 617.3 (m)(1), 617.3(t), and 617.67(e).
(b) Additional weeks. (1) To assist an individual to complete
training approved under subpart C of this part, payments may be made as
TRA for up to 26 additional weeks in the 26-week eligibility period (as
defined in Sec. 617.3(m)(2)) which is applicable to the individual as
determined under Secs. 617.3(m)(2) and 617.67(f).
(2) To be eligible for TRA for additional weeks, an individual must
make a bona fide application for such training--
(i) within 210 days after the date of the first certification under
which the individual is covered, or
(ii) if later, within 210 days after the date of the individual's
most recent partial or total separation (as defined in Secs. 617.3(cc)
and 617.3(ll)) under such certification.
(3) Except as provided in paragraph (d) of this section, payments
of TRA for additional weeks may be made only for those weeks in the 26-
week eligibility period during which the individual is actually
participating fully in training approved under Sec. 617.22(a).
(c) Limit. The maximum TRA payable to any individual on the basis
of a single certification is limited to the maximum amount of basic TRA
as determined under Sec. 617.14 plus additional TRA for up to 26 weeks
as provided in paragraph (b) of this section.
(d) Scheduled breaks in training. (1) An individual who is
otherwise eligible will continue to be eligible for basic and
additional weeks of TRA during scheduled breaks in training, but only
if a scheduled break is not longer than 14 days, and the following
additional conditions are met:
(i) The individual was participating in the training approved under
Sec. 617.22(a) immediately before the beginning of the break; and
(ii) The break is provided for in the published schedule or the
previously established schedule of training issued by the training
provider or is indicated in the training program approved for the
worker; and, further
(iii) The individual resumes participation in the training
immediately after the break ends.
(2) A scheduled break in training shall include all periods within
or between courses, terms, quarters, semesters and academic years of
the approved training program.
(3) No basic or additional TRA will be paid to an individual for
any week which begins and ends within a scheduled break that is 15 days
or more.
(4) The days within a break in a training program that shall be
counted in determining the number of days of the break for the purposes
of paragraph (d) of this section shall include all calendar days
beginning with the first day of the break and ending with the last day
of the break, as provided for in the schedule of the training provider,
except that any Saturday, Sunday, or official State or National holiday
occurring during the scheduled break in training, on which training
would not normally be scheduled in the training program if there were
no break in training, shall not be counted in determining the number of
days of the break for the purposes of paragraph (d) of this section.
(5) When the worker is drawing basic TRA, the maximum amount of TRA
payable is not affected by the weeks the worker does not receive TRA
while in a break period, but the weeks will count against the 104-week
eligibility period.
(6) When the worker is drawing additional weeks of TRA to complete
training, any weeks for which TRA is not paid will count against the
continuous 26-week eligibility period and the number of weeks payable.
10. Section 617.16 is revised to read as follows:
Sec. 617.16 Applicable State law.
(a) What law governs. The applicable State law for any individual,
for all of the purposes of this part 617, is the State law of the
State--
(1) In which the individual is entitled to UI (whether or not the
individual has filed a claim therefor) immediately following the
individual's first separation (as defined in paragraph (t)(1) of
Sec. 617.3), or
(2) If the individual is not so entitled to UI under the State law
of any State immediately following such first separation, or is
entitled to UI under the Railroad Unemployment Insurance Act (RRUI),
the State law of the State in which such first separation occurred.
(b) Change of law. The State law determined under paragraph (a) of
this section to be the applicable State law for an individual shall
remain the applicable State law for the individual until the individual
becomes entitled to UI under the State law of another State (whether or
not the individual files a claim therefor).
(c) UI entitlement. (1) An individual shall be deemed to be
entitled to UI under a State law if the individual satisfies the base
period employment and wage qualifying requirements of such State law.
(2) In the case of a combined-wage claim (Part 616 of this
chapter), UI entitlement shall be determined under the law of the
paying State.
(3) In case of a Federal UI claim, or a joint State and Federal UI
claim (Parts 609 and 614 of this Chapter), UI entitlement shall be
determined under the law of the State which is the applicable State for
such claims.
(d) RRUI claimants. If an individual is entitled to UI under the
Railroad Unemployment Insurance Act, the applicable State law for
purposes of paragraphs (a) and (b) of this section is the law of the
State in which the individual's first qualifying separation occurs.
(e) Liable State. The State whose State law is determined under
this section to be the applicable State law for any individual shall be
the liable State for the individual for all purposes of this part 617.
Any State other than the liable State shall be an agent State.
11. Section 617.17 is revised to read as follows:
Sec. 617.17 Availability and active search for work.
(a) Extended Benefit work test applicable. Except as provided in
paragraph (b) of this section, an individual shall, as a basic
condition of entitlement to basic TRA for a week of unemployment--
(1) be unemployed, as defined in the applicable State law for UI
claimants, and
(2) be able to work and available for work, as defined in the
applicable State law for UI claimants, and
(3) satisfy the Extended Benefit work test in each week for which
TRA is claimed, as set forth in Secs. 617.11(a)(1) (vi) and
617.11(a)(2)(vi).
(b) Exceptions--(1) Prior to November 21, 1988. The conditions
stated in paragraphs (a) and (b) of this section shall not be
applicable to an individual actually participating in training approved
under the applicable State law or under Sec. 617.22(a), or during a
scheduled break in the training program if (as determined for the
purposes of Sec. 617.15 (d)) the individual participated in the
training immediately before the beginning of the break and resumes
participation in the training immediately after the break ends, unless
the individual is ineligible or subject to disqualification under the
applicable State law or Sec. 617.18 (b)(2).
(2) On and after November 21, 1988. The conditions stated in
paragraphs (a)(2) and (a)(3) of this section shall not be applicable to
an individual who is enrolled in or participating in a training program
approved under Sec. 617.22 (a), or during a break in the training
program if (as determined for the purposes of Sec. 617.15(d)) the
individual participated in the training immediately before the
beginning of the break and resumes participation in the training
immediately after the break ends.
12. Paragraph (b) of Sec. 617.18 is revised to read as follows:
Sec. 617.18 Disqualifications.
* * * * *
(b) Disqualification of trainees--(1) State law inapplicable. A
State law shall not be applied to disqualify an individual from
receiving either UI or TRA because the individual:
(i) Is enrolled in or is participating in a training program
approved under Sec. 617.22(a); or
(ii) Refuses work to which the individual has been referred by the
State agency, if such work would require the individual to discontinue
training, or if added to hours of training would occupy the individual
more than 8 hours a day or 40 hours a week, except that paragraph
(b)(1)(ii) of this section shall not apply to an individual who is
ineligible under paragraph (b)(2) of this section; or
(iii) Quits work, if the individual was employed in work which was
not suitable (as defined in Sec. 617.22(a)(1)), and it was reasonable
and necessary for the individual to quit work to begin or continue
training approved for the individual under Sec. 617.22(a).
(2) Trainees ineligible. (i) An individual who, without justifiable
cause, fails to begin participation in a training program which is
approved under Sec. 617.22(a), or ceases to participate in such
training, or for whom a waiver is revoked pursuant to Sec. 617.19(c),
shall not be eligible for basic TRA, or any other payment under this
part 617, for the week in which such failure, cessation, or revocation
occurred, or any succeeding week thereafter until the week in which the
individual begins or resumes participation in a training program that
is approved under Sec. 617.22(a).
(ii) For purposes of this section and other provisions of this Part
617, the following definitions shall be used:
(A) Failed to begin participation. A worker shall be determined to
have failed to begin participation in a training program when the
worker fails to attend all scheduled training classes and other
training activities in the first week of the training program, without
justifiable cause.
(B) Ceased participation. A worker shall be determined to have
ceased participation in a training program when the worker fails to
attend all scheduled training classes and other training activities
scheduled by the training institution in any week of the training
program, without justifiable cause.
(C) Justifiable cause. For the purposes of paragraph (b)(2) of this
section, the term ``justifiable cause'' means such reasons as would
justify an individual's conduct when measured by conduct expected of a
reasonable individual in like circumstances, including but not limited
to reasons beyond the individual's control and reasons related to the
individual's capability to participate in or complete an approved
training program.
* * * * *
13. A new Sec. 617.19 is added to read as follows:
Sec. 617.19 Requirement for participation in training.
(a) In general--(1) Basic requirement. (i) All individuals
otherwise entitled to basic TRA, for all weeks beginning on and after
November 21, 1988, must either be enrolled in or participating in a
training program approved under Sec. 617.22(a), or have completed a
training program approved under Sec. 617.22(a), as provided in
Sec. 617.11(a)(2)(vii), in order to be entitled to basic TRA payments
for any such week (except for continuation of payments during scheduled
breaks in training of 14 days or less under the conditions stated in
Sec. 617.15(d)). The training requirement of paragraph (a)(1)(i) of
this section shall be waived in writing on an individual basis, solely
in regard to entitlement to basic TRA, if approval of training for the
individual is not feasible or is not appropriate, as determined in
accordance with paragraph (a)(2) of this section.
(ii) As a principal condition of entitlement to additional TRA
payments, all individuals must actually be participating in a training
program approved under Sec. 617.22(a), for all weeks beginning before
November 21, 1988, and for all weeks beginning on and after November
21, 1988 (except for continuation of payments during breaks in training
under the conditions stated in Sec. 617.15(d)). Paragraph (a)(2) of
this section is not applicable in regard to additional TRA, and the
participation in training requirement of paragraph (a)(1)(ii) of this
section may not be waived under any circumstances.
(2) Waiver of participation requirement. When it is determined, in
accordance with paragraph (a)(2) of this section, that it is not
feasible or is not appropriate (as such terms are defined in paragraph
(b) of this section) to approve a training program for an individual
otherwise entitled to basic TRA, the individual shall be furnished a
formal written notice of waiver, with an explanation of the reason(s)
for the waiver and a statement of why training is not feasible or is
not appropriate in the case of such individual. At a minimum, the
written statement furnished to the individual shall contain information
required by Sec. 617.50(e) as well as the following information:
(i) Name and social security number of the individual;
(ii) Petition number under which the worker was certified;
(iii) A statement why the agency has determined that it is not
feasible or is not appropriate to approve training for the individual
at that time, and the reason(s) for the finding;
(iv) A statement that the waiver will be revoked at any time that
feasible and appropriate training becomes available;
(v) Any other advice or information the State agency deems
appropriate in informing the individual;
(vi) Signature block (with signature) for the appropriate State
official; and
(vii) Signature block (with signature) for the worker's
acknowledgement of receipt.
(3) Denial of a waiver. In any case in which a determination is
made to deny to any individual a waiver of the participation
requirement, the individual shall be furnished a formal written notice
of denial of waiver, which shall contain all of the information
required of formal written notices under paragraph (a)(2) of this
section.
(4) Procedure. Any determination under paragraph (a)(2) or
paragraph (a)(3) of this section shall be a determination to which
Secs. 617.50 and 617.51 apply, including the requirement that any
written notice furnished to an individual shall include notice of the
individual's appeal rights as is provided in Sec. 617.50(e).
(b) Reasons for issuing a waiver. (1) For the purposes of
paragraphs (a)(2) and (a)(3) of this section, a waiver of the
participation in training requirement shall be issued to an individual
only upon a supported finding that approval of a Sec. 617.22(a)
training program for that individual is not feasible or is not
appropriate at that time.
(i) Feasible and appropriate. For the purposes of this section:
(A) Feasible. The term feasible means:
(1) training is available at that time which meets all the criteria
of Sec. 617.22(a);
(2) the individual is so situated as to be able to take full
advantage of the training opportunity and complete the training; and
(3) funding is available to pay the full costs of the training and
any transportation and subsistence expenses which are compensable.
The funding referred to in paragraph (b)(1)(i)(A)(3) of this section
includes not only TAA program funds but also all other funds available
under any of the provisions of the Job Training Partnership Act
(including Title III) or any other Federal, State or private source
that may be utilized for training approvable under Sec. 617.22(a).
Further, the individual's situation in respect to undertaking training
(as referred to in paragraph (b)(1)(i)(A)(2) of this section) shall
include taking into account personal circumstances that preclude the
individual from being able to participate in and complete the training
program, such as the availability of transportation, the ability to
make arrangements for necessary child care, and adequate financial
resources if the weeks of training exceeds the duration of UI and TRA
payments.
(B) Appropriate. The term appropriate means being suitable or
compatible, fitting, or proper. Appropriate, therefore, refers to
suitability of the training for the worker (including whether there is
a reasonable prospect which is reasonably foreseeable that the
individual will be reemployed by the firm from which separated), and
compatibility of the training for the purposes of the TAA Program. In
these respects, suitability of training for the individual is
encompassed within the several criteria in Sec. 617.22 (a), and
compatibility with the program is covered by the various provisions of
subpart C of this part which describe the types of training approvable
under Sec. 617.22(a) and the limitations thereon.
(ii) Basis for application. Whether training is feasible or
appropriate at any given time is determined by finding whether, at that
time, training suitable for the worker is available, the training is
approvable under subpart C of this part including the criteria in
Sec. 617.22(a), the worker is so situated as to be able to take full
advantage of the training and satisfactorily complete the training,
full funding for the training is available from one or more sources in
accordance with Secs. 617.24 and 617.25, the worker has the financial
resources to complete the training when the duration of the training
program exceeds the worker's eligibility for TRA, and the training will
commence within 30 days of approval.
(2) Particular applications. The reasons for any determination that
training is not feasible or is not appropriate shall be in accord with
the following:
(i) Not feasible because--
(A) The beginning date of approved training is beyond 30 days, as
required by the definition for ``Enrolled in training'' in
Sec. 617.11(a)(2)(vii)(D),
(B) Training is not reasonably available to the individual,
(C) Training is not available at a reasonable cost,
(D) Funds are not available to pay the total costs of training, or
(E) Personal circumstances such as health or financial resources,
preclude participation in training or satisfactory completion of
training,
(F) Other (explain).
(ii) Not appropriate because--
(A)(1) The firm from which the individual was separated plans to
recall the individual within the reasonably foreseeable future (State
agencies must verify planned recalls with the employer),
(2) Planned recall. For the purpose of determining whether the
recall or reemployment of an individual is reasonably foreseeable (for
the purposes of this section and Sec. 617.22), either a specific or
general type of recall (as set out) shall be deemed to be sufficient.
(i) Specific recall. A specific recall is where an individual or
group of individuals who was separated from employment is identified
and notified by the employer to return to work within a specified time
period.
(ii) General recall. A general recall is where the employer
announces an intention to recall an individual or group of individuals,
or by other action reasonably signals an intent to recall, without
specifying any certain date or specific time period.
(iii) Reasonably foreseeable. For purposes of determining whether
training should be denied and a training waiver granted, because of a
planned recall that is reasonably foreseeable, such a planned recall
includes a specific recall and also includes a general recall (as
defined in paragraph (b)(2)(ii)(A)(2) of this section) if the general
recall in each individual's case is reasonably expected to occur before
the individual exhausts eligibility for any regular UI payments for
which the individual is or may become entitled. A general recall, in
which the timing of the recall is reasonably expected to occur after
the individual's exhaustion of any regular UI to which the individual
is or may become entitled, shall not be treated as precluding approval
of training, but shall be treated as any other worker separation for
these purposes.
(B) The duration of training suitable for the individual exceeds
the individual's maximum entitlement to basic and additional TRA
payments and the individual cannot assure financial responsibility for
completing the training program,
(C) The individual possesses skills for ``suitable employment'' and
there is a reasonable expectation of employment in the foreseeable
future, or
(D) Other (explain).
(3) Waivers and able and available. An individual who has been
furnished a written notice of waiver under paragraph (a)(2) of this
section (or denial of waiver under paragraph (a)(3) of this section)
shall be subject to all of the requirements of Sec. 617.17(a), which
shall continue until the individual is enrolled in a training program
as required by paragraph (a)(2)(vii) of Sec. 617.11.
(c) Waiver review and revocations. (1) State agencies must have a
procedure for reviewing regularly (i.e., every 30 days or less) all
waivers issued under this section to individuals, to ascertain that the
conditions upon which the waivers were granted continue to exist. In
any case in which the conditions have changed--i.e., training has
become feasible and appropriate--then the waiver must be revoked, and a
written notice of revocation shall be furnished to the individual
involved.
(2) In addition to the periodic reviews required by paragraph
(c)(1) of this section, State agencies must have a procedure for
revoking waivers in individual cases promptly whenever a change in
circumstances occurs. For example, a written notice of revocation shall
be issued to the individual concurrent with the approval of the
training in which the individual has enrolled (if such training is
scheduled to commence within 30 days), and shall not be issued prior to
such approval.
(3) State agencies may incorporate a revocation section in the
waiver form or on a separate revocation form. Any determination under
paragraph (c) of this section shall be a determination to which
Secs. 617.50 and 617.51 apply. The information included in a written
notice of revocation issued under this paragraph (c) shall include all
of the information required for written notices issued under paragraph
(a)(2) of this section.
(d) Recordkeeping and reporting. (1) State agencies must develop
procedures for compiling and reporting on the number of waivers issued
and revoked, by reason, as specified in paragraphs (b) and (c) of this
section, and report such data to the Department of Labor as requested
by the Department.
(2) State agencies are not required to forward copies of individual
waiver and revocation notices to the Department of Labor, unless
specifically requested by the Department. However, each State agency
shall retain a copy of every individual waiver and revocation notice
issued by the State, for such period of time as the Department
requires. (Approved by the Office of Management and Budget under
control number 1205-0016).
14. Section 617.20 is revised to read as follows:
Sec. 617.20 Responsibilities for the delivery of reemployment
services.
(a) State agency referral. Cooperating State agencies shall be
responsible for:
(1) Advising each adversely affected worker to apply for training
with the State agency responsible for reemployment services, while the
worker is receiving UI payments, and at the time the individual files
an initial claim for TRA; and
(2) Referring each adversely affected worker to the State agency
responsible for training and other reemployment services in a timely
manner.
(b) State agency responsibilities. The responsibilities of
cooperating State agencies under subpart C of this part include, but
are not limited to:
(1) Interviewing each adversely affected worker regarding suitable
training opportunities reasonably available to each individual under
subpart C of this part, reviewing such opportunities with each
individual, informing each individual of the requirement for
participation in training as a condition for receiving TRA, and
accepting each individual's application for training. Such training may
be approved for any adversely affected worker at any time after a
certification is issued and the worker is determined to be covered
without regard to whether the worker has exhausted all rights to
unemployment insurance;
(2) Registering adversely affected workers for work;
(3) Informing adversely affected workers of the reemployment
services and allowances available under the Act and this Part 617, the
application procedures, the filing date requirements for such
reemployment services and the training requirement for receiving TRA;
(4) Determining whether suitable employment, as defined in
Sec. 617.22(a)(1), is available;
(5) Providing counseling, testing, placement, and supportive
services;
(6) Providing or procuring self-directed job search training, when
necessary;
(7) Providing training, job search and relocation assistance;
(8) Developing a training plan with the individual;
(9) Determining which training institutions offer training programs
at a reasonable cost and with a reasonable expectation of employment
following the completion of such training, and procuring such training;
(10) Documenting the standards and procedures used to select
occupations and training institutions in which training is approved;
(11) Making referrals and approving training programs;
(12) Monitoring the progress of workers in approved training
programs;
(13) Developing, and periodically reviewing and updating
reemployment plans for adversely affected workers;
(14) Developing and implementing a procedure for reviewing training
waivers and revocations at least every 30 days to determine whether the
conditions under which they are issued have changed; and
(15) Coordinating the administration and delivery of employment
services, benefits, training, and supplemental assistance for adversely
affected workers with programs under the Act and under Title III of the
Job Training Partnership Act.
15. The introductory text and paragraphs (e) and (g) of Sec. 617.21
are revised to read as follows:
Sec. 617.21 Reemployment services and allowances.
Reemployment services and allowances shall include, as appropriate,
the services and allowances as set forth in this section, provided that
those services included within the scope of paragraphs (a) through (e)
of this section shall be provided for under any other Federal law other
than the Act.
* * * * *
(e) Supportive services. Supportive services shall be provided so
individuals can obtain or retain employment or participate in
employment and training programs leading to eventual placement in
permanent employment. Such services may include work orientation, basic
education, communication skills, child care, and any other services
necessary to prepare an individual for full employment in accordance
with the individual's capabilities and employment opportunities.
* * * * *
(g) Classroom training. This training activity is any training of
the type normally conducted in a classroom setting, including
vocational education, and may be provided to individuals when the
conditions for approval of training are met, as provided in
Sec. 617.22(a), to impart technical skills and information required to
perform a specific job or group of jobs. Training designed to enhance
the employability of individuals by upgrading basic skills, through the
provision of courses such as remedial education or English-as-a-second-
language, shall be considered as remedial education approvable under
Sec. 617.22(a) if the criteria for approval of training under
Sec. 617.22(a) are met.
* * * * *
16. Paragraphs (a), (b), (c), and (f) (2), (3), and (4) of
Sec. 617.22 are amended to read as follows:
Sec. 617.22 Approval of training.
(a) Conditions for approval. Training shall be approved for an
adversely affected worker if the State agency determines that:
(1) There is no suitable employment (which may include technical
and professional employment) available for an adversely affected
worker.
(i) This means that for the worker for whom approval of training is
being considered under this section, no suitable employment is
available at that time for that worker, either in the commuting area,
as defined in Sec. 617.3(k), or outside the commuting area in an area
in which the worker desires to relocate with the assistance of a
relocation allowance under subpart E of this part, and there is no
reasonable prospect of such suitable employment becoming available for
the worker in the foreseeable future. For the purposes of paragraph
(a)(1) of this section only, the term ``suitable employment'' means,
with respect to a worker, work of a substantially equal or higher skill
level than the worker's past adversely affected employment, and wages
for such work at not less that 80 percent of the worker's average
weekly wage.
(2) The worker would benefit from appropriate training. (i) This
means that there is a direct relationship between the needs of the
worker for skills training or remedial education and what would be
provided by the training program under consideration for the worker,
and that the worker has the mental and physical capabilities to
undertake, make satisfactory progress in, and complete the training.
This includes the further criterion that the individual will be job
ready on completion of the training program.
(3) There is a reasonable expectation of employment following
completion of such training. (i) This means that, for that worker,
given the job market conditions expected to exist at the time of the
completion of the training program, there is, fairly and objectively
considered, a reasonable expectation that the worker will find a job,
using the skills and education acquired while in training, after
completion of the training. Any determination under this criterion must
take into account that ``a reasonable expectation of employment'' does
not require that employment opportunities for the worker be available,
or offered, immediately upon the completion of the approved training.
This emphasizes, rather than negates, the point that there must be a
fair and objective projection of job market conditions expected to
exist at the time of completion of the training.
(4) Training approved by the Secretary is reasonably available to
the worker from either governmental agencies or private sources (which
may include area vocational education schools, as defined in section
195(2) of the Vocational Education Act of 1963, and employers). (i)
This means that training is reasonably accessible to the worker within
the worker's commuting area at any governmental or private training (or
education) provider, particularly including on-the-job training with an
employer, and it means training that is suitable for the worker and
meets the other criteria in paragraph (a) of this section. It also
means that emphasis must be given to finding accessible training for
the worker, although not precluding training outside the commuting area
if none is available at the time within the worker's commuting area.
Whether the training is within or outside the commuting area, the
training must be available at a reasonable cost as prescribed in
paragraph (a)(6) of this section.
(ii) In determining whether or not training is reasonably
available, first consideration shall be given to training opportunities
available within the worker's normal commuting area. Training at
facilities outside the worker's normal commuting area should be
approved only if such training is not available in the area or the
training to be provided outside the normal commuting area will involve
less charges to TAA funds.
(5) The worker is qualified to undertake and complete such
training. (i) This emphasizes the worker's personal qualifications to
undertake and complete approved training. Evaluation of the worker's
personal qualifications must include the worker's physical and mental
capabilities, educational background, work experience and financial
resources, as adequate to undertake and complete the specific training
program being considered.
(ii) Evaluation of the worker's financial ability shall include an
analysis of the worker's remaining weeks of UI and TRA payments in
relation to the duration of the training program. If the worker's UI
and TRA payments will be exhausted before the end of the training
program, it shall be ascertained whether personal or family resources
will be available to the worker to complete the training. It must be
noted on the worker's record that financial resources were discussed
with the worker before the training was approved.
(iii) When adequate financial resources will not be available to
the worker to complete a training program which exceeds the duration of
UI and TRA payments, the training shall not be approved and
consideration shall be given to other training opportunities available
to the worker.
(6) Such training is suitable for the worker and available at a
reasonable cost. (i) Such training means the training being considered
for the worker. Suitable for the worker means that paragraph (a)(5) of
this section is met and that the training is appropriate for the worker
given the worker's capabilities, background and experience.
(ii) Available at a reasonable cost means that training may not be
approved at one provider when, all costs being considered, training
substantially similar in quality, content and results can be obtained
from another provider at a lower total cost within a similar time
frame. It also means that training may not be approved when the costs
of the training are unreasonably high in comparison with the average
costs of training other workers in similar occupations at other
providers. This criterion also requires taking into consideration the
funding of training costs from sources other than TAA funds, and the
least cost to TAA funding of providing suitable training opportunities
to the worker. Greater emphasis will need to be given to these elements
in determining the reasonable costs of training, particularly in view
of the requirements in Sec. 617.11(a) (2) and (3) that TRA claimants be
enrolled in and participate in training.
(iii) For the purpose of determining reasonable costs of training,
the following elements shall be considered:
(A) Costs of a training program shall include tuition and related
expenses (books, tools, and academic fees), travel or transportation
expenses, and subsistence expenses;
(B) In determining whether the costs of a particular training
program are reasonable, first consideration must be given to the lowest
cost training which is available within the commuting area. When
training, substantially similar in quality, content and results, is
offered at more than one training provider, the lowest cost training
shall be approved; and
(C) Training at facilities outside the worker's normal commuting
area that involves transportation or subsistence costs which add
substantially to the total costs shall not be approved if other
appropriate training is available.
(b) Allowable amounts for training. In approving a worker's
application for training, the conditions for approval in paragraph (a)
of this section must be found to be satisfied, including assurance that
the training is suitable for the worker, is at the lowest reasonable
cost, and will enable the worker to obtain employment within a
reasonable period of time. An application for training shall be denied
if it is for training in an occupational area which requires an
extraordinarily high skill level and for which the total costs of the
training are substantially higher than the costs of other training
which is suitable for the worker.
(c) Previous approval of training under State law. Training
previously approved for a worker under State law or other authority is
not training approved under paragraph (a) of this section. Any such
training may be approved under paragraph (a) of this section, if all of
the requirements and limitations of paragraph (a) of this section and
other provisions of Subpart C of this part are met, but such approval
shall not be retroactive for any of the purposes of this Part 617,
including payment of the costs of the training and payment of TRA to
the worker participating in the training. However, in the case of a
redetermination or decision reversing a determination denying approval
of training, for the purposes of this Part 617 such redetermination or
decision shall be given effect retroactive to the issuance of the
determination that was reversed by such redetermination or decision;
but no costs of training may be paid unless such costs actually were
incurred for training in which the individual participated, and no
additional TRA may be paid with respect to any week the individual was
not actually participating in the training.
* * * * *
(f) Length of training and hours of attendance. * * *
(2) Length of training. The maximum duration for any approvable
training program is 104 weeks (during which training is conducted) and
no individual shall be entitled to more than one training program under
a single certification.
(3) Training program. (i) For purposes of this Part 617, a training
program may consist of a single course or group of courses which is
designed and approved by the State agency for an individual to meet a
specific occupational goal.
(ii) When an approved training program involves more than one
course and involves breaks in training (within or between courses, or
within or between terms, quarters, semesters and academic years), all
such breaks in training are subject to the ``14-day break in training''
provision in Sec. 617.15(d), for purposes of receiving TRA payments. An
individual's approved training program may be amended by the State
agency to add a course designed to satisfy unforeseen needs of the
individual, such as remedial education or specific occupational skills,
as long as the length of the amended training program does not exceed
the 104-week training limitation in paragraph (f)(2) of this section.
(4) Full-time training. Individuals in TAA approved training shall
attend training full time, and when other training is combined with OJT
attendance at both shall be not less than full-time. The hours in a day
and days in a week of attendance in training shall be full-time in
accordance with established hours and days of training of the training
provider.
* * * * *
17. Section 617.24 is revised to read as follows:
Sec. 617.24 Preferred training.
Training programs that may be approved under Sec. 617.22(a)
include, but are not limited to--
(a) On-the-job training,
(b) Any training program provided by a State pursuant to Title III
of the Job Training Partnership Act,
(c) Any training program approved by a private industry council
established under the Job Training Partnership Act,
(d) Any program of remedial education,
(e) Any training program (other than a training program described
in paragraph (c) of Sec. 617.25) for which all, or any portion, of the
costs of training the worker are paid--
(1) Under any other Federal or State program other than this
Subpart C, or
(2) From any other source other than this section, but not
including sources personal to the individual, such as self, relatives,
or friends, and
(f) Any other training program approved by the Department.
18. Section 617.25 is revised to read as follows:
Sec. 617.25 Limitations on training under Subpart C of this part.
The second sentence of amended section 236(a)(1) of the Act
provides that an adversely affected worker shall be entitled to have
payment of the costs of training approved under the Act paid on the
worker's behalf, subject, however, ``to the limitations imposed by''
section 236. The limitations in section 236 which are implemented in
this section concern the restrictions on approval of training which are
related directly or indirectly to the conditions on training which are
approvable or on the funding of training costs.
(a) On-the-job training. The costs of on-the-job training approved
Subpart C of this part for a worker, which are paid from TAA funds,
shall be paid in equal monthly installments. Such costs may be paid
from TAA funds, and such training may be approved under subpart C of
this part, however, only if the State agency determines that:
(1) No currently employed individual is displaced by such eligible
worker, including partial displacement such as a reduction in the hours
of non-overtime work, wages, or employment benefits;
(2) Such training does not impair existing contracts for services
or collective bargaining agreements;
(3) In the case of training which would be inconsistent with the
terms of a collective bargaining agreement, written concurrence has
been obtained from the concerned labor organization;
(4) No other individual is on layoff from the same or any
substantially equivalent job for which such eligible worker is being
trained;
(5) The employer has not terminated the employment of any regular
employee or otherwise reduced the work force with the intention of
filling the vacancy so created by hiring the eligible worker;
(6) The job for which the eligible worker is being trained is not
being created in a promotional line that will infringe in any way upon
the promotional opportunities of currently employed individuals;
(7) Such training is not for the same occupation from which the
worker was separated and with respect to which such worker's group was
certified pursuant to section 222 of the Act;
(8) The employer certifies to the State agency that the employer
will continue to employ the eligible worker for at least 26 weeks after
completing the training if the worker desires to continue such
employment and the employer does not have due cause to terminate such
employment;
(9) The employer has not received payment under this Subpart C or
under any other Federal law for any other on-the-job training provided
by such employer which failed to meet the requirements of paragraphs
(a)(1) through (a)(6) of this section or such other Federal law; and
(10) The employer has not taken, at any time, any action which
violated the terms of any certification described in paragraph (a)(8)
of this section made by the employer with respect to any other on-the-
job training provided by the employer for which the employer has
received a payment under Subpart C of this part (or the prior
provisions of Subpart C of this part).
(b) Other authority and restrictions on funding--
(1) In general. Section 236(a) contains several provisions which
allow the costs of a training program approved under the Act to be
paid--
(i) Solely from TAA funds,
(ii) Solely from other public or private funds, or
(iii) Partly from TAA funds and partly from other public or private
funds,
but also precludes the use of TAA funds or funds under another Federal
law where such use of funds would result in duplication of payment of
training costs. Those authorities and restrictions are spelled out in
paragraph (b) of this section: Provided, that, private funds may not
include funds from sources personal to the individual, such as self,
relatives, or friends.
(2) Section 236(a)(5)(E) of the Act. (i) In general. Paragraph
(5)(E) of section 236(a) of the Act specifies one of the types of
training programs approvable under the Act, as including a program
(other than a training program described in section 236(a)(7)
(paragraph (b)(5) of this section)) for which all, or any portion, of
the costs of the training program are paid--
(A) Under any Federal or State program other than the Act, or
(B) From any source other than TAA funds.
(ii) Application. Paragraph (E) of section 236(a)(5) of the Act
thus authorizes prearrangements between cooperating State agencies
administering the TAA program and the authorities administering any
other Federal, State, or private funding source, to agree upon any mix
of TAA funds and other funds for paying the costs of a training program
approved under Subpart C of this part. Any such prearrangement must
contain specific commitments from the other authorities to pay the
costs they agree to assume.
(3) Section 236(a)(6) of the Act. (i) In general. Paragraph (6) of
section 236(a) of the Act is related to section 236(a)(5)(E) in
providing that the costs of a training program approved under the Act
are not required to be paid from TAA funds to the extent that such
costs are paid under any Federal or State program other than the Act or
from any source other than the Act.
(ii) Application. (A) Although paragraph (6) of section 236(a) of
the Act is expressed in terms of the costs not being required to be
paid from TAA funds, it authorizes the mixing of TAA funds and funds
from any other Federal, State or private source. Therefore, sharing the
future costs of training is authorized where prior costs were paid from
another Federal, State or private source, but this does not authorize
reimbursement from TAA funds of any training costs which were incurred
and for which payment became due prior to the approval of the training
program under Subpart C of this part. In utilizing the authority under
paragraph (b)(3) of this section for sharing training costs,
prearrangements shall be entered into as required under paragraph
(b)(2) of this section before any TAA funds are obligated.
(B) Paragraph (6) of section 236(a) contains a special restriction
on the authority derived thereunder to use TAA funds in sharing
training costs. Therefore, before approving any training program under
Subpart C of this part, which may involve sharing of the training costs
under the authority of paragraph (b)(3) of this section, the
cooperating State agencies for the TAA program shall require the worker
to enter into a written agreement with the State under which TAA funds
will not be applied for or used to pay any portion of the costs of the
training the worker has reason to believe will be paid by any other
governmental or private source.
(4) Section 236(a)(4) of the Act. (i) In general. (A) Paragraph (4)
of section 236(a) of the Act (paragraph (3) of section 236(a) before
August 23, 1988) continues to provide, as it did before the addition of
paragraphs (5)(E), (6), and (7) to section 236(a), that:
(1) When the costs of training are paid from TAA funds under
subpart C of this part, no other payment for such costs of training may
be made under any other Federal law; and
(2) When the payment of the costs of training has already been made
under any other Federal law, or the costs are reimbursable under any
other Federal law and a portion of the costs has already been paid
under such other Federal law, payment of such training costs may not be
made from TAA funds.
(B) Paragraph (4) of section 236(a) also requires that: The
provisions of paragraphs (b)(4)(i) (A)(1) and (A)(2) of this section
shall not apply to, or take into account, any funds provided under any
other provision of Federal law which are used for any purpose other
than the direct payment of the identical costs incurred in training the
adversely affected worker under the TAA Program, even if such other use
has the effect of indirectly paying or reducing any portion of the
costs involved in training the adversely affected worker.
(ii) Application. (A) Although the prohibition on duplicate
payments in the first part of section 236(a)(4) remains fully
implemented in this section, the second part of section 236(a)(4) on
the sharing of costs from TAA funds and other Federal fund sources is
modified by the explicit provisions of paragraphs (5)(E) and (6) of
section 236(a), as set forth in paragraphs (b)(2) and (b)(3) of this
section.
(B) When the direct costs of a training program approvable under
subpart C of this part are payable from TAA funds and are also wholly
or partially payable under another Federal law, or under any State law
or from private, nongovernmental sources, the TAA Program agencies
shall establish procedures which ensure that TAA funds shall not be
utilized to duplicate funds available from another source, but this
preclusion of duplication does not prohibit and shall not discourage
sharing of costs under prearrangements authorized under paragraphs
(b)(2) and (b)(3) of this section.
(C)(1) Therefore, pursuant to paragraph (4) of section 236(a),
paragraph (b)(4) of this section continues to prohibit duplicate
payment of training costs, which is consistent with the general
prohibition expressed in subpart C of this part, against any use of TAA
funds to duplicate payment of training costs in any circumstances.
Paragraph (b)(4) of this section also continues to prohibit taking into
account, in determining whether training costs are payable from TAA
funds, any payments to the worker under any other Federal law which may
have the effect of indirectly paying all or a portion of the training
costs. Such indirect payments include Veterans Educational Assistance,
Pell Grants, and Supplemental Educational Opportunity Grants, which are
paid to the individual. However, any payments to the individual under
these programs are deductible from TRA payable to the individual under
Sec. 617.13(c)(2).
(2) When payments of Veterans Educational Assistance, Pell Grants,
and Supplemental Educational Opportunity Grants are made to the
training provider, instead of the individual, and are used for training
costs, such payments shall be taken into account as direct payment of
the training costs under other Federal law for the purposes of this
section.
(5) Section 236(a)(7) of the Act. (i) In general. Paragraph (7) of
section 236(a) of the Act provides that a training program shall not be
approved under the Act if--
(A) all or a portion of the costs of such training program are paid
under any nongovernmental plan or program,
(B) the adversely affected worker has a right to obtain training or
funds for training under such plan or program, and
(C) such plan or program requires the worker to reimburse the plan
or program from funds provided under the Act, or from wages paid under
such training program, for any portion of the costs of such training
program paid under the plan or program.
(ii) Application. Paragraph (7) of section 236(a), which is
implemented in paragraph (b)(5) of this section, reinforces the
prohibition in Sec. 617.22(h) against approval of a training program
under subpart C of this part if the worker is required to pay a fee or
tuition. The provisions of paragraph (b) and paragraph (h) of this
section shall be given effect as prohibiting the approval under subpart
C of this part of any training program if the worker would be requested
or required, at any time or under any circumstances, to pay any of the
costs of a training program, however small, from any TAA funds given to
the worker or from any other funds belonging to the worker from any
source whatever. Aside from this stringent limitation, however,
paragraph (7) of section 236(a) of the Act implicitly authorizes
training approved under this subpart C to be wholly or partly funded
from nongovernmental (i.e., employer, union or other private) sources.
19. Section 617.26 is revised to read as follows:
Sec. 617.26 Liable and agent State responsibilities.
(a) Liable State. The liable State means, for any individual, the
State which administers the applicable State law (as determined under
Sec. 617.16). The liable State is responsible for making all
determinations, redeterminations, and decisions on appeals on all
claims for program benefits under this part 617, including waivers and
revocations of waivers pursuant to Sec. 617.19, subsistence payments
pursuant to Sec. 617.27, and transportation payments pursuant to
Sec. 617.28. Upon receiving a copy of a certification issued by the
Department, with respect to an affected firm in the State, the liable
State also is responsible for publishing newspaper notices as provided
in Sec. 617.4(d), furnishing information and assistance to workers as
provided in Sec. 617.4, furnishing reemployment services under subparts
C, D, and E of this part to all eligible workers covered by such
certification, and carrying out other activities and functions required
by the State's Agreement with the Secretary entered into pursuant to
Sec. 617.59. All determinations pertaining to any individual's
eligibility for or entitlement to any program benefit under this part
617 shall be subject to the provisions of Secs. 617.50 and 617.51.
(b) Agent State. Agent State means, for any individual, any State
other than the liable State for the individual. Agent States shall be
responsible for cooperating fully with the liable State and assisting
the liable State in carrying out its activities and functions. These
agent State responsibilities shall be part of the activities and
functions undertaken by the agent States under their Agreements entered
into pursuant to Sec. 617.59. Agent State responsibilities include
cooperating with liable States in taking applications and claims for
TAA, providing reemployment services to certified workers in accordance
with subparts B, C, D and E of this part, providing interstate
claimants with TAA program information and assistance, assisting
applicants or claimants to file claims for TAA program benefits and
services, cooperating with the liable State by providing information
needed to issue determinations, redeterminations, and decisions on
appeals, and procuring and paying the cost of any approved training,
including subsistence and transportation costs, according to
determinations issued by the liable State.
20. Section 617.32(a)(4) is revised to read as follows:
Sec. 617.32 Eligibility.
(a) Conditions. * * *
(4) A determination by the State agency that the individual has no
reasonable expectation of securing suitable employment in the commuting
area, and has a reasonable expectation of obtaining suitable employment
of long-term duration outside the commuting area and in the area where
the job search will be conducted. For the purposes of this section, the
term ``suitable employment'' means suitable work as defined in
Sec. 617.3(kk) (1) or (2), whichever is applicable to the individual;
and
* * * * *
21. Section 617.33 is revised to read as follows:
Sec. 617.33 Findings required.
(a) Findings by liable State. Before final payment of a job search
allowance may be approved, the following findings shall be made by the
liable State:
(1) The individual meets the eligibility requirements for a job
search allowance specified in Sec. 617.32(a) (1) through (4);
(2) The application for a job search allowance was submitted by the
individual within the time limits specified in Sec. 617.31(c); and
(3) The individual completed the job search within the time limits
stated in Sec. 617.32(a)(5), and the requirements of paragraphs (b) and
(c) of Sec. 617.32 have been met.
(b) Agent State. (1) When an individual files an application for a
job search allowance with respect to a job search conducted in a State
other than the liable State, the State agency of the State in which the
individual conducts the job search shall serve as the agent State and
be responsible for assisting the individual in conducting the job
search and in filing an application for a job search allowance with the
liable State, and for assisting the liable State by furnishing to it
any information required for the liable State's determination of the
claim.
(2) The agent State shall cooperate fully with the liable State in
carrying out its activities and functions with regard to such
applications.
22. Paragraph (b) of Sec. 617.34 is revised to read as follows:
Sec. 617.34 Amount.
* * * * *
(b) Limit. The total job search allowances paid to an individual
under a certification may not exceed $800, regardless of the number of
job searches undertaken by the individual. The amounts otherwise
payable under paragraph (a) of this section shall be reduced by any
amounts the individual is entitled to be paid or reimbursed for such
expenses from any other source.
23. Section 617.42(a)(6) is revised to read as follows:
Sec. 617.42 Eligibility.
(a) Conditions. * * *
(6) A determination by the State agency that the individual has no
reasonable expectation of securing suitable employment in the commuting
area, and has obtained suitable employment affording a reasonable
expectation of employment of long-term duration, or a bona fide offer
of such suitable employment, outside the commuting area and in the area
of intended relocation. For the purposes of this section, the term
``suitable employment'' means suitable work as defined in
Sec. 617.3(kk) (1) and (2), whichever is applicable to the individual;
and
* * * * *
24. Section 617.44 is revised to read as follows:
Sec. 617.44 Findings required.
(a) Findings by liable State. Before final payment of a relocation
allowance may be approved, the following findings shall be made by the
liable State:
(1) The individual meets the eligibility requirements for a
relocation allowance specified in Sec. 617.42(a) (1) to (6) and
Sec. 617.42(b).
(2) The application for a relocation allowance was submitted by the
individual within the time limits specified in Sec. 617.41(c);
(3) The individual began and completed the relocation within the
limitations specified in Sec. 617.42(a)(7) and Sec. 617.43; and
(4) The liable State has verified (directly or through the agent
State) with the employer, and finds, that the individual has obtained
suitable employment affording a reasonable expectation of employment of
long-term duration, or a bona fide offer of such suitable employment,
in the area of intended relocation, in accordance with
Sec. 617.42(a)(6).
(b) Agent State. (1) When an individual relocates in a State other
than the liable State, the State agency of the State in which the
individual relocates shall serve as the agent State and be responsible
for:
(i) Assisting the individual in relocating to the State, and in
filing an application for a relocation allowance with the liable State,
and
(ii) Assisting the liable State by furnishing to it any information
required for the liable State's determination on the claim.
(2) The agent State shall cooperate with the liable State in
carrying out its activities and functions with regard to such
applications. When requested by the liable State, the agent State shall
verify with the employer and report to the liable State whether the
individual has obtained suitable employment affording a reasonable
expectation of employment of long-term duration, or a bona fide offer
of such suitable employment.
25. Section 617.49 is amended by adding a new paragraph (e) to read
as follows:
Sec. 617.49 Job search program.
* * * * *
(e) Termination of requirement. The job search program requirement
set out in this section shall not be a condition of entitlement to TRA
for any week which begins after November 20, 1988.
26. Paragraphs (a) and (d) of Sec. 617.50 are revised to read as
follows:
Sec. 617.50 Determinations of entitlement; notices to individuals.
(a) Determinations of initial applications for TRA or other TAA.
The State Agency whose State law is the applicable State law under
Sec. 617.16 shall upon the filing of an initial application for TRA or
other TAA promptly determine the individual's entitlement to such TRA
or other TAA under this part 617, and may accept for such purposes
information and findings supplied by another State agency under this
part 617.
* * * * *
(d) Use of State law. In making determinations or redeterminations
under this section, or in reviewing such determinations or
redeterminations under Sec. 617.51, a State agency shall apply the
regulations in this part 617. As to matters committed by this part 617
to the applicable State law, a State agency, a hearing officer, or a
State court shall apply the applicable State law and regulations
thereunder, including procedural requirements of such State law or
regulations, except so far as such State law or regulations are
inconsistent with this part 617 or the purpose of this part 617:
Provided, that, no provision of State law or regulations on good cause
for waiver of any time limit, or for late filing of any claim, shall
apply to any time limitation referred to or specified in this part 617,
unless such State law or regulation is made applicable by a specific
provision of this part 617.
27. Section 617.55 is revised to read as follows:
Sec. 617.55 Overpayments; penalties for fraud.
(a) Determination and repayment. (1) If a State agency or a court
of competent jurisdiction determines that any person or individual has
received any payment under this part 617 to which the person or
individual was not entitled, including a payment referred to in
paragraph (b) or paragraph (c) of this section, such person or
individual shall be liable to repay such amount to the State agency,
and the State agency shall recover any such overpayment in accordance
with the provisions of this part 617; except that the State agency may
waive the recovery of any such overpayment if the State agency
determines, in accordance with the guidelines prescribed in paragraph
(a)(2) of this section, that:
(i) The payment was made without fault on the part of such person
or individual; and
(ii) Requiring such repayment would be contrary to equity and good
conscience.
(2)(i)(A) In determining whether fault exists for purposes of
paragraph (a)(1)(i) of this section, the following factors shall be
considered:
(1) Whether a material statement or representation was made by the
person or individual in connection with the application for TAA that
resulted in the overpayment, and whether the person or individual knew
or should have known that the statement or representation was
inaccurate.
(2) Whether the person or individual failed or caused another to
fail to disclose a material fact, in connection with an application for
TAA that resulted in the overpayment, and whether the person or
individual knew or should have known that the fact was material.
(3) Whether the person or individual knew or could have been
expected to know, that the person or individual was not entitled to the
TAA payment.
(4) Whether, for any other reason, the overpayment resulted
directly or indirectly, and partially or totally, from any act or
omission of the person or individual or of which the person or
individual had knowledge, and which was erroneous or inaccurate or
otherwise wrong.
(5) Whether there has been a determination of fraud under paragraph
(b) of this section or section 243 of the Act.
(B) An affirmative finding on any one of the factors in paragraphs
(a)(2)(i)(A) of this section precludes waiver of overpayment recovery.
(ii)(A) In determining whether equity and good conscience exists
for purposes of paragraph (a)(1)(ii) of this section, the following
factors shall be considered:
(1) Whether the overpayment was the result of a decision on appeal,
whether the State agency had given notice to the person or individual
that the case has been appealed and that the person or individual may
be required to repay the overpayment in the event of a reversal on
appeal, and whether recovery of the overpayment will not cause
extraordinary and lasting financial hardship to the person or
individual.
(2) Whether recovery of the overpayment will not cause
extraordinary financial hardship to the person or individual, and there
has been no affirmative finding under paragraph (a)(2)(ii)(A) of this
section with respect to such person or individual and such overpayment.
(B) An affirmative finding on either of the foregoing factors in
paragraphs (a)(2)(ii)(A) of this section precludes waiver of
overpayment recovery.
(C)(1) For the purpose of paragraph (a)(2)(ii) of this section, an
extraordinary financial hardship shall exist if recovery of the
overpayment would result directly in the person's or individual's loss
of or inability to obtain minimal necessities of food, medicine, and
shelter for a substantial period of time; and an extraordinary and
lasting financial hardship shall be extraordinary as described above
and may be expected to endure for the foreseeable future.
(2) In applying this test in the case of attempted recovery by
repayment, a substantial period of time shall be 30 days, and the
foreseeable future shall be at least three months. In applying this
test in the case of proposed recoupment from other benefits, a
substantial period of time and the foreseeable future shall be the
longest potential period of benefit entitlement as seen at the time of
the request for a waiver determination. In making these determinations,
the State agency shall take into account all potential income of the
person or individual and the person's or individual's firm,
organization, or family and all cash resources available or potentially
available to the person or individual and the person's or individual's
firm, organization, or family in the time period being considered.
(3) Determinations granting or denying waivers of overpayments
shall be made only on request for a waiver determination. Such request
shall be made on a form which shall be furnished to the person or
individual by the State agency. Notices of determination of
overpayments shall include an accurate description of the waiver
provisions of paragraph (a) of this section, if the State agency has
elected to allow waivers of TAA overpayments.
(4) Each State shall have the option to establish a policy as to
whether the waiver provisions of this section shall be applied to TAA
overpayments. A State's decision on its policy shall not be controlled
by whether it waives UI overpayments, but the State's decision shall be
published for the information of the public and the Department.
(5)(i) Unless an overpayment is otherwise recovered, or is waived
under paragraph (a) of this section, the State agency shall recover the
overpayment by deduction from any sums payable to such person or
individual under:
(A) This part 617;
(B) Any Federal unemployment compensation law administered by the
State agency; or
(C) Any other Federal law administered by the State agency which
provides for the payment of unemployment assistance or an allowance
with respect to unemployment.
(ii) In addition, a State agency may recover the overpayment from
unemployment insurance payable to such person or individual under the
State law.
(b) Fraud. If a State agency or a court of competent jurisdiction
finds that any person or individual:
(1) Knowingly has made, or caused another to make, a false
statement or representation of a material fact; or
(2) Knowingly has failed, or caused another to fail, to disclose a
material fact; and as a result of such false statement or
representation, or of such nondisclosure, such individual has received
any payment under this part 617 to which the person or individual was
not entitled, such person or individual shall, in addition to any other
penalty provided by law, be ineligible for any further payments under
this part 617.
(c) Training, job search and relocation allowances. (1) If an
individual fails, with good cause, to complete training, a job search,
or a relocation, any payment or portion of a payment made under this
part 617 to such individual or any person that is not properly and
necessarily expended in attempting to complete such training, job
search, or relocation, shall constitute an overpayment.
(2) If an individual fails, without good cause, to complete
training, a job search, or a relocation, any payment made under this
part 617 to such individual or any person shall constitute an
overpayment.
(3) Such overpayment shall be recovered or waived as provided in
paragraph (a) of this section.
(d) Final determination. Except for overpayments determined by a
court of competent jurisdiction, no repayment may be required, and no
deduction may be made, under this section until a determination under
paragraph (a) of this section by the State agency has been made, notice
of the determination and an opportunity for a fair hearing thereon has
been given to the person or individual concerned, and the determination
has become final.
(e) Deposit. Any amount recovered by a State agency under this
section shall be deposited into the Federal fund or account from which
payment was made.
(f) Procedural requirements. (1) The provisions of paragraphs (c),
(e), and (g) of Sec. 617.50 shall apply to determinations and
redeterminations made pursuant to this section.
(2) The provisions of Sec. 617.51 shall apply to determinations and
redeterminations made pursuant to this section.
(g) Fraud detection and prevention. State procedures for the
detection and prevention of fraudulent overpayments of TAA shall be, as
a minimum, commensurate with the procedures adopted by the State with
respect to State unemployment compensation and consistent with the
Secretary's ``Standard for Fraud and Overpayment Detection,''
Employment Security Manual, Part V, sections 7510-7515 (Appendix B of
this Part).
(h) Debts due the United States or Others. (1) Notwithstanding any
provision of this part 617, TAA payable to a person or an individual
under this part 617 shall be applied by the State agency for the
recovery by offset of any debt due the United States from the person or
individual.
(2) TAA shall not be applied or used by the State agency in any
manner for the payment of any debt of any person or individual to any
State or any other entity or person, except that TRA payable to an
individual shall be payable to someone other than the individual if
required by State law and Federal law to satisfy the individual's
obligation for child support or alimony.
(i) Definition of person. For purposes of this section, a person
includes any employer or other entity or organization as well as the
officers and officials thereof who may bear individual responsibility.
28. Section 617.59 is amended by adding a new paragraph (h) and a
new paragraph (i) to read as follows:
Sec. 617.59 Agreements with State agencies.
* * * * *
(h) Program coordination. State agencies providing employment
services, training and supplemental assistance under Subpart C of this
part shall, in accordance with their Agreements under this section,
coordinate such services and payments with programs and services
provided by State Service Delivery Areas, Private Industry Councils,
and substate grantees under the Job Training Partnership Act and with
the State agency administering the State law.
(i) Administration absent State Agreement. In any State in which no
Agreement under this section is in force, the Secretary shall
administer the Act and this part 617 and pay TAA hereunder through
appropriate arrangements made by the Department, and for this purpose
the Secretary or the Department shall be substituted for the State or
cooperating State agency wherever appropriate in this part 617. Such
arrangements shall include the requirement that TAA be administered in
accordance with this part 617, and the provisions of the applicable
State law except to the extent that such State law is inconsistent with
any provision of this part 617 or section 303 of the Social Security
Act (42 U.S.C. 503) or section 3304(a) of the Internal Revenue Code of
1986 (26 U.S.C. 3304(a)), and shall also include provision for a fair
hearing for any individual whose application for TAA is denied. A final
determination under paragraph (i) of this section as to entitlement to
TAA shall be subject to review by the courts in the same manner and to
the same extent as is provided by section 205(g) of the Social Security
Act (42 U.S.C. 405(g)).
29. Section 617.60 is added and reserved to read as follows:
Sec. 617.60 Administrative requirements. [Reserved]
30. Section 617.64 is revised to read as follows:
Sec. 617.64 Termination of TAA program benefits.
The following rules are applicable to the termination of TAA
benefits under the Act:
(a) No application for TRA, or transportation or subsistence
payment while in training approved under subpart C of this part 617,
shall be approved, and no payment of TRA or payment for transportation
or subsistence occurring on or before the termination date shall be
made after the termination date specified in the Act, unless the claim
for TRA or an invoice for transportation and subsistence is presented
to the State agency and a final determination is made on the amount
payable on or before the termination date in the Act.
(b) No payment of job search or relocation allowances shall be made
after the termination date specified in the Act, unless an application
for such allowances was approved, such job search or relocation was
completed, and a final determination made on the amount payable for
such benefits by the State agency on or before the termination date in
the Act.
(c) No training under subpart C of this part shall be approved
unless a determination regarding the approval of such training was made
on or before the termination date in the Act, and such training
commenced on or before such termination date. Consistent with the
requirements of section 236(a)(1) of the Act, and the termination
provisions of paragraph (c) of this section, a final determination must
be made on the invoice for the training costs by the State agency on or
before the termination date specified in the Act to cover tuition
related expenses. Determinations on tuition bills shall be limited to
the training term, quarter, semester or other period beginning on or
before the termination date in the Act. The training period should be
in accord with normal billing practices of the training provider and/or
State agency approval practices.
31. Section 617.67 is added to read as follows:
Sec. 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 Sec. 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
Sec. 617.13, and the individual's maximum amount of basic TRA, as
computed under Sec. 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 Sec. 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.
32. By redesignating Appendixes A and B as Appendixes B and C.
Sec. 617.50 [Amended]
33. By amending Sec. 617.50(g) by removing ``(Appendix A of this
part)'' and adding in place ``(Appendix B of this Part)''.
Sec. 617.55 [Amended]
34. By amending Sec. 617.55(g) by removing ``(Appendix B of this
part)'' and adding in place ``(Appendix C of this Part)''.
Sec. 617.10 [Amended]
35. By amending Sec. 617.10(c) by removing all words after
``sections 5000 et seq.'' and adding in place ``(Appendix A of this
Part)''.
36. By adding a new appendix A to read as follows:
Appendix A to Part 617--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
EMPLOYMENT SECURITY MANUAL (Part V, Sections 5000-5004)
5000-5099 Claims Filing
5000 Standard for Claim Filing, Claimant Reporting, Job Finding, and
Employment Services
A. Federal law requirements. Section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security
Act require that a State law provide for:
``Payment of unemployment compensation solely through public
employment offices or such other agencies as the Secretary may
approve.''
Section 3304(a)(4) of the Federal Unemployment Tax and section
303(a)(5) of the Social Security Act require that a State law
provide for:
``Expenditure of all money withdrawn from an unemployment fund
of such State, in the payment of unemployment compensation * * *''
Section 303(a)(1) of the Social Security Act requires that the
State law provide for:
``Such methods of administration * * * as are found by the
Secretary to be reasonably calculated to insure full payment of
unemployment compensation when due.''
B. Secretary's interpretation of federal law requirements.
1. The Secretary interprets section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security
Act to require that a State law provide for payment of unemployment
compensation solely through public employment offices or claims
offices administered by the State employment security agency if such
agency provides for such coordination in the operations of its
public employment offices and claims offices as will insure (a) the
payment of benefits only to individuals who are unemployed and who
are able to work and available for work, and (b) that individuals
claiming unemployment compensation (claimants) are afforded such
placement and other employment services as are necessary and
appropriate to return them to suitable work as soon as possible.
2. The Secretary interprets all the above sections to require
that a State law provide for:
a. Such contact by claimants with public employment offices or
claims offices or both, (1) as will reasonably insure the payment of
unemployment compensation only to individuals who are unemployed and
who are able to work and available for work, and (2) that claimants
are afforded such placement and other employment services as are
necessary and appropriate to facilitate their return to suitable
work as soon as possible; and
b. Methods of administration which do not unreasonably limit the
opportunity of individuals to establish their right to unemployment
compensation due under such States law.
5001 Claim Filing and Claimant Reporting Requirements Designed to
Satisfy Secretary's Interpretation
A. Claim filing--total or part-total unemployment
1. Individuals claiming unemployment compensation for total or
part-total unemployment are required to file a claim weekly or
biweekly, in person or by mail, at a public employment office or a
claims office (these terms include offices at itinerant points) as
set forth below.
2. Except as provided in paragraph 3, a claimant is required to
file in person.
a. His new claim with respect to a benefit year, or his
continued claim for a waiting week or for his first compensable week
of unemployment in such year; and
b. Any other claim, when requested to do so by the claims
personnel at the office at which he files his claim(s) because
questions about his right to benefits are raised by circumstances
such as the following:
(1) The conditions or circumstances of his separation from
employment;
(2) The claimant's answers to questions on mail claim(s)
indicate that he may be unable to work or that there may be undue
restrictions on his availability for work or that his search for
work may be inadequate or that he may be disqualified;
(3) The claimant's answers to questions on mail claims create
uncertainty about his credibility or indicate a lack of
understanding of the applicable requirements; or
(4) The claimant's record shows that he has previously filed a
fraudulent claim.
In such circumstances, the claimant is required to continue to
file claims in person each week (or biweekly) until the State agency
determines that filing claims in person is no longer required for
the resolution of such questions.
3. A claimant must be permitted to file a claim by mail in any
of the following circumstances:
a. He is located in an area requiring the expenditure of an
unreasonable amount of time or money in traveling to the nearest
facility established by the State agency for filing claims in
person;
b. Conditions make it impracticable for the agency to take
claims in person;
c. He has returned to full-time work on or before the scheduled
date for his filing a claim, unless the agency makes provision for
in-person filing at a time and place that does not interfere with
his employment;
d. The agency finds that he has good cause for failing to file a
claim in person.
4. A claimant who has been receiving benefits for partial
unemployment may continue to file claims as if he were a partially
unemployed worker for the first four consecutive weeks of total or
part-total unemployment immediately following his period of partial
unemployment so long as he remains attached to his regular employer.
B. Claim filing--partial unemployment. Each individual claiming
unemployment compensation for a week (or other claim period) during
which, because of lack of work, he is working less than his normal
customary full-time hours for his regular employer and is earning
less than the earnings limit provided in the State law, shall not be
required to file a claim for such week or other claim period earlier
than 2 weeks from the date that wages are paid for such claim period
or, if a low earnings report is required by the State law, from the
date the employer furnished such report to the individual. State
agencies may permit claims for partial unemployment to be filed
either in person or by mail, except that in the circumstances set
forth in section A 3, filing by mail must be permitted, and in the
circumstances set forth in section A 2 b, filing in person may be
required.
5002 Requirement for Job Finding, Placement, and Other Employment
Services Designed to Satisfy Secretary's Interpretation
A. Claims personnel are required to assure that each claimant is
doing what a reasonable individual in his circumstances would do to
obtain suitable work.
B. In the discretion of the State agency:
1. The claims personnel are required to give each claimant such
necessary and appropriate assistance as they reasonably can in
finding suitable work and at their discretion determine when more
complete placement and employment services are necessary and
appropriate for a claimant; and if they determine more complete
services are necessary and appropriate, the claims personnel are to
refer him to employment service personnel in the public employment
office in which he has been filing claim(s), or, if he has been
filing in a claims office, in the public employment office most
accessible to him; or
2. All placement and employment services are required to be
afforded to each claimant by employment service personnel in the
public employment office most accessible to him in which case the
claims personnel in the office in which the claimant files his claim
are to refer him to the employment service personnel when placement
or other employment services are necessary and appropriate for him.
C. The personnel to whom the State agency assigns the
responsibilities outlined in paragraph B above are required to give
claimants such job-finding assistance, placement, and other
employment services as are necessary and appropriate to facilitate
their return to suitable work as soon as possible.
In some circumstances, no such services or only limited services
may be required. For example, if a claimant is on a short-term
temporary layoff with a fixed return date, the only service
necessary and appropriate to be given to him during the period of
the layoff is a referral to suitable temporary work if such work is
being performed in the labor market area.
Similarly, claimants whose unemployment is caused by a labor
dispute presumably will return to work with their employer as soon
as the labor dispute is settled. They generally do not need
services, nor do individuals in occupations where placement
customarily is made by other nonfee charging placement facilities
such as unions and professional associations.
Claimants who fall within the classes which ordinarily would
require limited services or no services shall, if they request
placement and employment services, be afforded such services as are
necessary and appropriate for them to obtain suitable work or to
achieve their reasonable employment goals.
On the other hand, a claimant who is permanently separated from
his job is likely to require some services. He may need only some
direction in how to get a job; he may need placement services if he
is in an occupation for which there is some demand in the labor
market area; if his occupation is outdated, he may require
counseling and referral to a suitable training course. The extent
and character of the services to be given any particular claimant
may change with the length of his unemployment and depend not only
on his own circumstances and conditions, but also on the condition
of the labor market in the area.
D. Claimants are required to report to employment service
personnel, as directed, but such personnel and the claims personnel
required to so arrange and coordinate the contacts required of a
claimant as not to place an unreasonable burden on him or
unreasonably limit his opportunity to establish his rights to
compensation. As a general rule, a claimant is not required to
contact in person claims personnel or employment service personnel
more frequently than once a week, unless he is directed to report
more frequently for a specific service such as referral to a job or
a training course or counseling which cannot be completed in one
visit.
E. Employment service personnel are required to report promptly
to claims personnel in the office in which the claimant files his
claim(s): (1) his failure to apply for or accept work to which he
was referred by such personnel or when known, by any other nonfee-
charging placement facility such as a union or a professional
association; and (2) any information which becomes available to it
that may have a bearing on the claimant's ability to work or
availability for work, or on the suitability of work to which he was
referred or which was offered to him.
5004 Evaluation of Alternative State Provisions
If the State law provisions do not conform to the ``suggested
State law requirements'' set forth in sections 5001 and 5002, but
the State law contains alternative provisions, the Manpower
Administrator, in collaboration with the State agency, will study
the actual or anticipated affect of the alternative provisions. If
the Manpower Administrator concludes that the alternative provisions
satisfy the requirements of the Federal law as construed by the
Secretary (see section 5000 B) he will so notify the State agency.
If he does not so conclude, he will submit the matter to the
Secretary. If the Secretary concludes that the alternative
provisions satisfy such requirements, the State agency will be so
notified. If the Secretary concludes that there is a question as to
whether the alternative provisions satisfy such requirements, the
State agency will be advised that unless the State law provisions
are appropriately revised, a notice of hearing will be issued as
required by the Code of Federal Regulations, title 20, section
601.3.
[FR Doc. 94-16 Filed 1-5-94; 8:45 am]
BILLING CODE 4510-30-P
