TAA operation after February 2011 reversion

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2011/TEGL-16-10-Change2-ACC.pdf

                                                         CLASSIFICATION
      EMPLOYMENT AND TRAINING ADMINISTRATION             TAA
                   ADVISORY SYSTEM                       CORRESPONDENCE SYMBOL
             U.S. DEPARTMENT OF LABOR                    OTAA
                  Washington, D.C. 20210
                                                         DATE
                                                         February 4, 2011



ADVISORY:         TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 16-10,
                  CHANGE 2

TO:               STATE WORKFORCE AGENCIES
                  STATE WORKFORCE LIAISONS
                  ONE-STOP CENTER SYSTEM LEADS
                  STATE WORKFORCE ADMINISTRATORS
                  STATE AND LOCAL WORKFORCE BOARD CHAIRS AND
                  DIRECTORS
                  STATE LABOR COMMISSIONERS

FROM:             JANE OATES /s/
                  Assistant Secretary

SUBJECT:          Instructions for Operating the Trade Adjustment Assistance Program after the
                  Termination of the Trade and Globalization Adjustment Assistance Act
                  Amendments on February 12, 2011- Program Reverts to 2002 Amendments

1. Purpose. Training and Employment Guidance Letter (TEGL) No. 16-10, Change 2, instructs
the State Workforce Agencies or agencies designated by Governors as "Cooperating State
Agencies" (CSAs) (also jointly referred to as "states") to operate the Trade Adjustment
Assistance program (TAA) after February 12, 2011 under the provisions of the Trade Act in
effect before the TGAAA.

2. References. The Omnibus Trade Act of 2010 (Pub. L. No. 111-344, enacted December 29,
2010) (Omnibus Trade Act); The 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, enacted February 17, 2009) (TGAAA or 2009 Amendments); Trade Adjustment
Assistance Reform Act of 2002, Division A Title I, Subtitle A of the Trade Act of 2002, (Pub. L.
No. 107-210) (2002 Amendments); the Trade Act of 1974, as amended (Pub. L. No. 93-618, as
amended) (Trade Act); Wagner-Peyser Act, as amended (29 U.S.C. 49 et seq.) (Wagner-Peyser);
the Workforce Investment Act of 1998, as amended (Pub. L. No. 105-220) (29 U.S.C. 2801 et
seq.) (WIA); 20 CFR Part 617; 29 CFR Part 90; 20 CFR Part 618; Training and Employment
Guidance Letter (TEGL) No. TEGL 6-09: Instructions for Implementing the Revised 2010 Trade
Adjustment Assistance Trade Activity Participant Report (TAPR); TEGL No. 9-09, Fiscal Year
(FY) 2010 State Initial Allocations and the Process for Requesting Additional Trade Adjustment
Assistance (TAA) Program Reserve Funds; TEGL No. 22-08 and Change 1, Operating
Instructions for Implementing the Amendments to the Trade Act of 1974 Enacted by the Trade
and Globalization Adjustment Assistance Act of 2009; TEGL No. 4-08 and Change 1, Fiscal

 RESCISSIONS:     NONE                                   EXPIRATION DATE:      Continuing
Year (FY) 2009 State Supplemental Training Fund Distributions Including Case Management
Funds and the Process for Requesting Additional Trade Adjustment Assistance (TAA) Program
Reserve Funds; TEGL No. 11-02, Operating Instructions for Implementing the Amendments to
the Trade Act of 1974 Enacted by the Trade Act of 2002, and Changes 1, 2, and 3; 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 Change 1; TEGL No. 5-00, Attachment B, Guidance on Integrating
Services under the Trade Act Programs - Trade Adjustment Assistance (TAA) and North
American Free Trade Agreement - Transitional Adjustment Assistance (NAFTA-TAA) - with
the Services Provided under the Workforce Investment Act (WIA) and the Paperwork Reduction
Act of 1995 (P.L. 104-13); and TEGL 16-10, Instructions for Phasing Out Changes to the Trade
Act of 1974 Enacted by the Trade and Globalization Adjustment Assistance Act of 2009, and
Change 1.

3. Background. The TAA program for workers, under chapter 2 of title II of the Trade Act (19
U.S.C. 2271 et seq.), provides adjustment assistance for workers whose jobs have been adversely
affected by international trade. The TAA program was first established by the Trade Act of
1974, and has been amended numerous times over the past thirty-seven years. The latest
substantive amendments, referred to as the 2009 Amendments, are contained in the TGAAA.
Before the 2009 Amendments, the program was operated under the provisions of Trade Act, as
amended primarily by the 2002 Amendments.

The Omnibus Trade Act extended the application of the 2009 Amendments for six weeks,
through February 12, 2011. After that date, the Act provided for a reversion to the law in effect
before the 2009 Amendments, and authorized the appropriation of funds for the Department to
carry out the reverted program for one additional year (through February 12, 2012), including a
specific provision extending a small component of that program—the alternative TAA program
for older workers (ATAA)—for one year (through February 12, 2012). However, the
termination provision, if read literally, terminates benefits under the reverted program on the
same day it begins. This inconsistency renders the statute ambiguous. To avoid an illogical and
absurd result, and reading the Omnibus Trade Act as a whole, the Department interprets the Act
as extending the TAA program in effect before the 2009 Amendments after February 12, 2011
through February 12, 2012.

Because February 13, 2011 is a non-business day, the Department of Labor provided notice that
it will accept petitions received on or before February 14, 2011 as filed by February 12, 2011,
and process these petitions under the certification requirements of the 2009 Amendments.
Workers covered by those petitions may be eligible for TAA benefits and services provided
under the 2009 Amendments. Petitions received starting February 15, 2011 will be considered
filed after the Omnibus Trade Act deadline, and therefore governed under the 2002
Amendments. Workers covered by those petitions may be eligible for TAA benefits provided
under the 2002 Amendments, including but not limited to the ATAA wage subsidy for certain
reemployed older workers.

4. Instructions. In order to implement the expiration provisions of the Omnibus Trade Act,
States will serve workers in the TAA program covered by petitions received by the Department
after February 14, 2011, under the provisions of the 2002 Amendments, as if the 2009
Amendments never existed. However, recent regulatory changes to program administration and

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funding codified at 29 CFR part 618 and reporting required through the revised TAPR will
continue to apply.

In order to help states determine whether either the 2009 Amendments or the 2002 Amendments
govern benefits and services for a specific worker, the Department will once again start a new
petition number series. Workers covered by the 2002 Amendments before the 2009
Amendments went into effect are identified by petition numbers ranging from 50,000 to 69,999.
Workers covered by the 2009 Amendments are identified by petition numbers ranging from
70,000 to 79,999. The Department will identify petitions received after February 14, 2011, and
therefore covered under the 2002 Amendments, with petition numbers greater than 80,000.
Therefore, as previously described in TEGL No. 16-10, CSAs will be required to manage
benefits and services for three distinct cohorts of workers:

    i. Workers covered by petitions filed on or before May 17, 2009, identified by a petition
       number lower than 70,000. These workers are subject to the provisions of the 2002
       Amendments, as implemented in TEGL No. 11-02 and Changes, 1, 2, and 3; TEGL No.
       2-03, and Change 1; as well as regulations codified at 20 CFR parts 617 and 618, and 29
       CFR part 90.

    ii. Workers covered by petitions filed on or after May 18, 2009, and on or before February
        14, 2011, identified by petition numbers between 70,000 and 79,999. These workers are
        subject to the provisions of the 2009 Amendments as implemented in TEGL No. 22-08
        and Change 1; TEGL 16-10 and Change 1; as well as regulations codified at 20 CFR
        parts 617 and 618, and 29 CFR part 90.

   iii. Workers covered by petitions received after on or after February 15, 2011, identified by a
        petition number greater than or equal to 80,000. These workers are subject to the
        provisions of the 2002 Amendments as implemented in TEGL No. 11-02, and Changes 1,
        2, and 3; and TEGL No. 2-03, and Change 1; as well as regulations at 20 CFR parts 617
        and 618 and 29 CFR part 90.

  Petition is Received by OTAA       Petition is Received by OTAA On      Petition is Received by OTAA
       Before May 17, 2009           or After May 18, 2009 and On or         After February 14, 2011
               AND                       Before February 14, 2011                      AND
Assigned a Petition Number Equal                    AND                    Assigned a Petition Number
    to and Lower than 69,999            Assigned a Petition Number       Greater Than or Equal to 80,000
                                        Between 70,000 and 79,999
Eligible workers are entitled to    Eligible workers are entitled to    Eligible workers are entitled to
receive TAA benefits and services   receive TAA benefits and services   receive TAA benefits and services
under the 2002 Amendments           under the 2009 Amendments           under the 2002 Amendments


    In addition, funds designated for expenditure on employment and case management services
    may only be expended to provide those services for workers covered by the 2009
    Amendments. Workers covered by the 2002 Amendments are not entitled to TAA-funded
    employment and case management services, although states are required to make every
    reasonable effort to secure those services through other Federal programs.




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   The Department strongly recommends that petitioners who wish to be considered for TAA
   benefits and services at the 2009 level file early and file online or by fax to ensure petition
   receipt on or before 11:59 PM EST on Monday, February 14, 2011.

   A petition is filed in time to be considered for TAA if it is received:

          Via mail at the Office of Trade Adjustment Assistance at Employment and Training
           Administration (ETA), United States Department of Labor, 200 Constitution Avenue,
           NW, Washington DC 20210 on or before 5:00 PM EST Monday, February 14, 2011.

          Via fax to 202-693-3585 on or before 11:59 PM EST Monday, February 14, 2011.
           The Department strongly suggests that petitioners retain the fax cover sheet with the
           date and time stamp.

          Via online petition processing located on the OTAA’s website,
           www.doleta.gov/tradeact, and a confirmation email generated by the system is sent to
           the worker that indicates the petition was received in the Office of Trade Adjustment
           Assistance on or before 11:59 PM EST Monday, February 14, 2011.

As long as a petition is received on or before 11:59 PM EST on Monday, February 14, 2011, the
fact that it is certified after that date does not affect covered workers’ eligibility to apply for
benefits. The date and time in the EST time zone controls whether a petition is timely.

4. Action Requested. CSAs will be required to manage benefits and services provided to TAA
program participants as described above beginning February 15, 2011. States will be notified if
the sunset provisions of the TGAAA are extended to allow the 2009 Amendments to continue to
apply after 11:59 PM EST February 14, 2011.

5. Inquiries. State Administrators should direct all inquiries to the appropriate Employment
and Training Administration Regional Office.




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