2011 TAA operating instructions, Change 2

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2013/TEGL_10-11_Chg2_Acc.pdf

CLASSIFICATION
   EMPLOYMENT AND TRAINING ADMINISTRATION                 TAA
               ADVISORY SYSTEM                            CORRESPONDENCE SYMBOL
                                                          OTAA
          U.S. DEPARTMENT OF LABOR
                                                          DATE
             Washington, D.C. 20210
                                                          May 13, 2013


ADVISORY:          TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 10-11,
                   Change 2

TO:                STATE WORKFORCE AGENCIES
                   STATE WORKFORCE LIAISONS
                   AMERICAN JOB CENTER SYSTEM LEADS
                   STATE WORKFORCE ADMINISTRATORS
                   STATE AND LOCAL WORKFORCE BOARD CHAIRS AND
                   DIRECTORS
                   STATE LABOR COMMISSIONERS

FROM:              JANE OATES /s/
                   Assistant Secretary

SUBJECT:           Change 2 to the Operating Instructions for Implementing the Amendments to
                   the Trade Act of 1974 Enacted by the Trade Adjustment Assistance Extension
                   Act of 2011 (TAAEA)

1. Purpose. To respond to questions from State Workforce Agencies designated by Governors
as “Cooperating State Agencies” (also jointly referred to as “states”) that administer the Trade
Adjustment Assistance (TAA) Program, as amended by the TAAEA.

2. References.
    Chapter 2 of Title II of the Trade Act of 1974, as amended (19 U.S.C.2271-2323) (Trade
      Act)
    Trade Adjustment Assistance Reform Act of 2002, Division A, Title I, Subtitle A of the
      Trade Act of 2002 (Pub. L. No. 107-210);
    Trade and Globalization Adjustment Assistance Act of 2009, Division B, Title I, Subtitle
      I of the American Recovery and Reinvestment Act of 2009 (Pub. L. No. 111-5);
    Omnibus Trade Act of 2010 (Pub. L. No. 111-344);
    Trade Adjustment Assistance Extension Act of 2011 (Pub. L. No. 112-40);
    20 Code of Federal Regulations (CFR) Part 617;
    20 CFR Part 618;
    29 CFR Part 90;
    Training and Employment Guidance Letter (TEGL) No. 11-02, Operating Instructions for
      Implementing the Amendments to the Trade Act of 1974 Enacted by the Trade Act of
      2002, and its Changes 1, 2, and 3;


 RESCISSIONS                                             EXPIRATION DATE
 None                                                    Continuing

      TEGL No. 2-03, Interim Operating Instructions for Implementing the Alternative Trade
       Adjustment Assistance (ATAA) for Older Workers Program Established by the Trade
       Adjustment Assistance Reform Act of 2002, and its Changes 1, 2, and 3;
      TEGL No. 22-08, Operating Instructions for Implementing the Amendments to the Trade
       Act of 1974 Enacted by the Trade and Globalization Adjustment Assistance Act of 2009,
       and its Changes 1 and 2;
      TEGL No. 15-10, Increasing Credential, Degree, and Certificate Attainment by
       Participants of the Public Workforce System; and
      TEGL No. 10-11, Operating Instructions for Implementing the Amendments to the Trade
       Act of 1974 Enacted by the Trade Adjustment Assistance Extension Act of 2011 and its
       Change 1.
3. Guidance. The following questions and answers address issues raised by the states in
connection with TEGL No. 10-11, Operating Instructions for Implementing the Amendments to
the Trade Act of 1974 Enacted by the Trade Adjustment Assistance Extension Act of 2011.

Changes to Trade Readjustment Allowances (TRA) (Section 233 of the Trade Act)

Q1. Is a training participant required to file an application for Completion TRA?

Answer: Yes, an application must be filed for Completion TRA. Given the complexity of
statutory requirements for this benefit, states must establish an application process to document
the training participant’s eligibility based on the 5 eligibility criteria for Completion TRA. For
the complete list of Completion TRA eligibility criteria, see Section C.3 of TEGL No. 10-11.

Q2. When does the 20-week period of eligibility for Completion TRA begin?

Answer: The 20-week period of eligibility for Completion TRA eligibility begins with the first
week in which the training participant files a claim for Completion TRA, regardless of when the
first payment is received. Note that Completion TRA eligibility does not require a training
participant to file a claim for Completion TRA for the first week following either expiration of
the eligibility period for Additional TRA, or exhaustion of Additional TRA; filing a claim after
either of those first weeks is permitted. See Section C.3.2 of TEGL No. 10-11.

Q3. May the state amend the training participant’s training plan to provide for a later 20-week
eligibility period for Completion TRA if: (1) training is interrupted after the individual has filed
a claim for Completion TRA; and (2) that interruption leads to a training completion date that
occurs after the 20-week eligibility period in the approved training plan?

Answer: No. As TEGL 10-11 explains, the 20-week eligibility period to receive up to 13 weeks
of Completion TRA allows for the flexibility of a break in training of up to 7 weeks, but no
more. In this case, since the amended training completion date is after the 20-week eligibility
period in the approved training plan, the individual will no longer be eligible for Completion


TRA. For the complete list of Completion TRA eligibility criteria, see Section C.3 of TEGL No.
10-11.

Q4. May a worker who has not yet filed a claim for Completion TRA still be eligible for
Completion TRA if: (1) training is interrupted before the 20-week eligibility period for
Completion TRA has begun; and (2) that interruption leads to a training completion date that
occurs after the 20-week eligibility period in the approved training plan?

Answer: Yes. If the worker has not yet filed his or her claim for Completion TRA, the
eligibility period for Completion TRA has not begun. In that case, the state may amend the
worker’s training plan to provide for a later training completion date and correspondingly later
20-week eligibility period for Completion TRA.

Training (Section 236 of the Trade Act)

Q5. If a training participant fails to satisfy one or both training benchmarks for the first time,
must the state wait for the results of the next scheduled review to determine whether to modify
the training plan?

Answer: No. TEGL No. 10-11, Section C.3.1 states that “upon one substandard review of the
established benchmarks, the worker will be given a warning, while two substandard reviews
must result in a modification to the training plan, or the worker will no longer be eligible for
Completion TRA.” However, the purpose of training benchmarks is to allow early and ongoing
assessment of the performance of a training participant to determine whether the original training
plan is a good fit for the individual. Therefore, if a training participant fails a benchmark review
for the first time, but that failure is of a magnitude as to make a failure at a later benchmark
review likely, then the state should reevaluate the training plan with the training participant, and
amend the training plan if necessary to improve the likelihood that the participant will complete
the training program.

Q6. For the purposes of Completion TRA eligibility, if a TAA training participant is failing two
courses in one benchmark assessment period, does that mean the participant has failed a
benchmark review one time or two times?

Answer: One. However, as noted above, any benchmark failure will result in a substandard
review. A substandard review that raises the probability of a second substandard review should
result in state action to reevaluate the training plan with the training participant and amend the
training plan if necessary to improve the likelihood that the participant will complete the training
program. In this instance, if the training participant’s failure of two courses makes timely
completion of training under the training plan unlikely, then the training plan should be
amended.

Q7. If a training participant obtains suitable employment (as defined in section 236(e) of the
Trade Act) before he or she has completed training, is the state obliged to continue with funding
the training as stated in the training plan?


Answer: Yes, if certain conditions are met. TAA training is designed to lead to sustained
employment for training participants. The acquisition of industry-recognized credentials forms
an important part of that long term reemployment strategy. Therefore, states must provide
training for TAA training participants as approved by the state and the individual in the training
plan, even if the individual becomes employed in suitable work during that training, provided
that: (1) the state determines that training completion serves the long term employment goals of
the individual; and (2) the training participant continues to meet benchmarks that were
established as part of the training plan, even though the employed training participant will no
longer be eligible for TRA.

Q8. If a training participant fails a course once, may the state modify the training plan to allow
the individual to retake the course?

Answer: Yes. If a training participant fails a course, the state may give the individual a second
chance to pass the course. However, the state should direct case managers to determine first the
factors that contributed to the course failure. For example, a course failure could be the result of
personal issues, or an inability to complete the specified coursework satisfactorily. Once the
contributing factors are identified, the state may decide to allow the training participant to repeat
the course in order to complete the training plan, which also may require amending the training
plan to include additional assistance (such as tutoring or an elective introductory course) or
changing the training goal within the same industry, in order to meet the limitation of only one
training per certification as required in 20 CFR Section 617.22(f)(2). However, the amendment
cannot result in training that exceeds the maximum duration of training, as explained in TEGL
No. 10-11, Section D.2.

Reemployment Trade Adjustment Assistance (RTAA) Provisions (Section 246 of the Trade
Act)

Q9. Does the ATAA eligibility requirement that a worker be 50 years of age when ATAA-
qualifying employment occurs apply to RTAA eligibility, or may the worker turn 50 during the
two-year RTAA eligibility period and become eligible for RTAA at that time?

Answer: Although TEGL No. 2-03 directed that workers must be 50 years of age at the time of
ATAA-qualifying employment, and TEGL No. 22-08 provided that this guidance applied to
RTAA, DOL has revised its interpretation in TEGL No. 22-08, Change 1 Attachment item no. 41
of when the worker must reach the statutorily-mandated age of 50 for RTAA eligibility for
workers applying for RTAA after the date of issuance of this TEGL. Effective on this date,
workers who have become employed before they reach the age of 50 may be determined eligible
for RTAA when they turn 50 during such employment if they meet all the other RTAA eligibility
requirements. In this scenario, the worker’s two year eligibility for RTAA will commence at the
point of the worker’s 50th birthday. Further, if the worker received TRA, each week in which
TRA was paid reduces the duration of RTAA eligibility accordingly, as explained in TEGL No.
22-08, Change 1, Section A.
This revised interpretation applies only to RTAA and not to ATAA. A change in the application
of the age 50 eligibility requirement for ATAA is not appropriate at this time because ATAA


was authorized as a pilot program to provide a wage subsidy as an alternative TAA benefit for
certain certified older workers. When Congress amended the Trade Act in 2009, it ended the
pilot and made RTAA a permanent benefit without the reemployment deadline and group
certification requirements for ATAA and the requirement that recipients choose to forgo TAA
training. The new interpretation of the RTAA age eligibility requirement is consistent with the
statutory changes to expand the availability of the wage subsidy to older workers by allowing
them to qualify for the benefit when they reach age 50 and the other eligibility requirements have
been met. This new interpretation is also consistent with section 288 of the Trade Act, which
Congress added in 2009 to provide a statutory basis for the Secretary interpreting the
requirements of the TAA program to provide maximum TAA benefits for covered workers.

Therefore, the states should, as stated in 20 CFR 617.50 and 20 CFR 617.51, take appropriate
action to apply this interpretation of the age eligibility requirement in all RTAA determinations,
redeterminations, and appeals.

Q10. May a worker who is employed full-time and receiving RTAA continue to receive RTAA if
the worker’s hours are reduced and the worker receives Short-Time Compensation (STC) under
a state-approved STC plan?

Answer:
For RTAA eligibility, a worker must either: (1) be “employed on a full-time basis as defined by
the law of the State in which the worker is employed” (section 246(a)(3)(B)(iii)(I), Trade Act);
or (2) work at least twenty hours a week while in an approved training program (section
246(a)(3)(B)(iii)(II), Trade Act). An STC program (also known as work sharing or shared work
program) is a special unemployment program that preserves employees’ jobs and employers’
trained workforces during disruptions to an employer’s regular business activity by reducing
hours of work for an entire group of employees rather than laying off some employees while
others continue to work full time. The STC benefit is payable under state law (or under an
agreement with the Secretary under Section 2163 of the Layoff Prevention Act of 2012) to an
employee under a state-approved STC plan, as described in UIPL No. 22-12. As discussed in
section H. of UIPL No. 22-12, Change 1, state STC laws may permit payment of STC when a
worker’s hours are reduced below forty hours a week and there is a reduction in the usual hours
of work of at least ten percent but not more than sixty percent (the percentage of reduction for
eligibility for an STC benefit may vary from state to state). Therefore, it is possible for a worker
to continue to meet the state law definition of “full-time employment” when working reduced
hours under an STC plan. If the state full-time definitions is met, a worker may be eligible for
STC and RTAA during the same week. Alternatively, if the worker is enrolled in full-time TAA
approved training, and works at least 20 hours a week, then the worker might be eligible for
RTAA. If those hours are reduced under an STC plan and the worker continues to meet the
minimum hours of work requirement for RTAA, then the worker may be eligible for both RTAA
and STC. The amounts of those payments would be determined in accordance with the
respective program requirements, and RTAA would not be reduced.


4. Action Required. States must inform all appropriate staff of the contents of these
instructions. In particular, inform all appropriate staff, including the appellate divisions of the
state agency, of the availability of RTAA to workers when they meet the age eligibility


requirement for RTAA to workers when they meet the age eligibility requirements for RTAA
(Section 246(a)(3)(N)(i), Trade Act) and have met all the other Section 236 individual eligibility
requirements for RTAA, as described in the answer to question 10 of this TEGL.

5. Inquiries. States should direct all inquiries to the appropriate ETA Regional Office.