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2009 Trade Adjustment Assistance operating instructions
Summary ETA gave state workforce agencies operating instructions for the 2009 Trade and Globalization Adjustment Assistance Act changes to worker eligibility, benefits, training, reemployment assistance and administration. Two linked attachments carry detailed program instructions. Change 1 later corrected an RTAA formula; ETA still lists the base advisory Active.
Document
Federal guidance
Agency
U.S. Department of Labor, Employment and Training Administration (ETA)
Document number
TEGL No. 22-08
Date issued
May 15, 2009
Status
Active
ETA lists this advisory Active as of 2026-10-24; its signed letter prints Expiration Date: Continuing and Rescissions: None. Change 1 later corrected its RTAA formula without expressly rescinding the base.
Status last verified October 24, 2026
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About this page: The full text below is the official document from U.S. Department of Labor, Employment and Training Administration (ETA). Ezel adds the plain-English summary and tracks the document's status. The official source linked on this page is authoritative for any reliance.
Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2009/TEGL22-08acc.pdf
CLASSIFICATION
EMPLOYMENT AND TRAINING ADMINISTRATION TAA
ADVISORY SYSTEM CORRESPONDENCE SYMBOL
U.S. DEPARTMENT OF LABOR ONR
Washington, D.C. 20210
DATE
May 15, 2009
TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 22-08
TO : ALL STATE WORKFORCE LIAISONS
ALL STATE WORKFORCE AGENCIES
ALL ONE-STOP CENTER SYSTEM LEADS
FROM : DOUGLAS F. SMALL /s/
Deputy Assistant Secretary
SUBJECT : Operating Instructions for Implementing the Amendments to
the Trade Act of 1974 Enacted by the Trade and Globalization
Adjustment Assistance Act of 2009
1. Purpose. To assist the State Workforce Agencies designated by the Governor
as “cooperating state agencies” in implementing the provisions of the Trade
and Globalization Adjustment Assistance Act of 2009 that amend the Trade
Adjustment Assistance program, and creates or expands programs for
Workers, Firms, Communities, and Farmers.
2. References. The Trade and Globalization Adjustment Assistance Act of 2009
(Division B, Title I, Subtitle I of the American Recovery and Reinvestment Act
of 2009, Public Law (P. L.) No. 111-5 (enacted on February 17, 2009); Trade
Adjustment Assistance Reform Act of 2002 (P.L. No. 107-210); the Trade Act
of 1974, as amended (P. L. No. 93-618, as amended); 20 CFR Part 617; 29 CFR
Part 90; Training and Employment Guidance Letter (TEGL) No. 11-02 with
Changes 1, 2, and 3; TEGL No. 2-03; Unemployment Insurance Program
Letter (UIPL) No. 02-03, and Change 1 and Change 3; UIPL No. 05-03; UIPL
No. 33-03.
3. Definitions
For purposes of these operating instructions, the following definitions will
apply:
1. 2002 Act means the Trade Act of 1974, P. L. No. 93-618, as amended
through the Trade Adjustment Assistance Reform Act of 2002, P.L.
No. 107-210.
2. 2002 Amendments means the amendments made to the Trade Act of
RESCISSIONS EXPIRATION DATE:
None Continuing
1974 by the Trade Adjustment Assistance Reform Act of 2002, P. L.
No. 107-210.
3. 2009 Act means the Trade Act as it stands in 2009, including the
Trade and Globalization Adjustment Assistance Act of 2009
(TGAAA) amendments.
4. 2009 Amendments means the TGAAA, Division B, Title I, Subtitle I
of the American Recovery and Reinvestment Act of 2009, P.L. No.
111-5.
5. Trade Act of 1974, means the Trade Act of 1974, P. L. No. 93-618, as
amended (through P. L. No. 106-113).
6. Recovery Act means the American Recovery and Reinvestment Act
of 2009, Pub. L. No. 111-5.
7. ATAA means the Demonstration Project for Alternative Trade
Adjustment Assistance for Older Workers, under section 246 of the
2002 Act, as in effect on May 17, 2009, the day before the effective
date of the 2009 Act.
8. CSA means Cooperating State Agency.
9. Department or DOL means the U.S. Department of Labor.
10. DOC means U.S. Department of Commerce.
11. Secretary means the Secretary of Labor.
12. TAA program means the Trade Adjustment Assistance for Workers
program.
13. TRA means Trade Readjustment Allowances.
14. RTAA means Reemployment Trade Adjustment Assistance, under
Section 246 of the 2009 Act.
15. HCTC means Health Coverage Tax Credit. (Section 35, Internal
Revenue Code (I.R.C.) of 1986) (26 U.S.C. 35)
16. WIA means the Workforce Investment Act of 1998, P.L. No. 105-
220, as amended. (29 U.S.C. 2801 et seq.)
17. Trade Affected Worker means workers who are members of a
certified worker group and have been separated or threatened with
separation.
4. Background. The TAA program for workers was first established at the DOL
by the Trade Act of 1974, and has been amended several times over the past
thirty-five years. The latest amendments are contained in the 2009 Act, which
is part of the Recovery Act. The 2009 Act overhauls the TAA program and
expands TAA coverage to more workers and firms, including workers and
firms in the service sector, and improves workers’ opportunities for training,
health insurance coverage, and reemployment.
Section 1856 of the 2009 Amendments contains the sense of Congress as it
applies the TAA programs: “the Secretaries of Labor, Commerce, and
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Agriculture should apply the provisions of [their respective trade adjustment
assistance programs] with the utmost regard for the interests of workers,
firms, communities, and farmers petitioning for benefits.” These operating
instructions reflect this intent. DOL expects the CSAs to implement these
instructions in accordance with that intent.
Many aspects of the process for determining group and individual eligibility
for TAA have been reformed by the 2009 Amendments. These amendments,
as addressed in these operating instructions, apply to workers covered by
petitions for adjustment assistance filed on or after May 18, 2009. Workers
covered by petitions filed on or before May 17, 2009, are subject to the
provisions of the 2002 Act as described in the Operating Instructions
provided in TEGL No. 11-02 and its changes, and TEGL No. 2-03 and its
changes. These provisions remain in full force and effect as participants who
are certified under the 2002 Act continue to seek and receive services and
benefits under those provisions. This is true for all workers separated from
adversely affected employment before the expiration of a certification based
on a petition filed on or before May 17, 2009.
Under the provisions of the 2002 Act, DOL receives petitions for TAA filed by
an employer, a one-stop operator or one-stop partner (as defined in section
101 of the WIA), 29 U.S.C. 2801, a State dislocated worker unit established
under title I of WIA, a group of workers, or their authorized representative.
DOL conducts fact-finding investigations of these petitions to determine
whether increased imports have contributed importantly to the workers’
displacement, or if the workers have been affected by certain shifts in
production. States make available rapid response and appropriate core and
intensive services under WIA and assist DOL in reviewing the petitions. If
the findings of an investigation show that the workers have been adversely
affected by increased imports or a shift in production of articles, the Secretary
of Labor issues a certification of eligibility to apply for adjustment assistance.
Once a certification is issued, notice of the certification, including the reason
for certification, is transmitted to the State and the petitioner, published in the
Federal Register, and posted on the DOL website.
Under an agreement executed by the Secretary of Labor and the State, the
CSA acts as the agent of the Secretary to notify certified workers of potential
TAA benefits and services, make eligibility determinations for individuals,
and deliver benefits and services. Individual workers who are members of
the certified worker group apply for benefits and services at a One-Stop
Career Center or other local office of the CSA. Individual workers who meet
the qualifying criteria may receive job training, income support in the form of
TRA, job search allowances, HCTC, a wage supplement in the form of ATAA
3
(now RTAA), and relocation allowances. In addition, all workers covered by
a certification are eligible for reemployment services including job referrals,
job clubs, and resume-writing assistance.
The 2009 Amendments amend the provisions of the 2002 Act in several
substantial ways:
Group Eligibility Extended to Include
• Workers in firms that supply services;
• Workers whose firm has shifted production to any foreign country;
• Workers in public agencies;
• Workers whose firm produces component parts based on increased
imports of finished products;
• Workers in firms that supply testing, packaging, maintenance and
transportation services to companies with TAA-certified workers; and
• Workers whose firm is identified in an International Trade
Commission “injury” determination listed in the Act.
Program Administration and Service Delivery
• Provides workers with a new entitlement to employment and case
management services, and designates funds for that purpose;
• Permits CSAs to waive requirements as necessary to ensure the
eligibility for program benefits of returning service members in the
same manner and to the same extent as if the service member had not
served a period of duty;
• Provides protections for workers covered under certifications delayed
by judicial and administrative appeals;
• Applies State UI “good cause” waiver provisions to all TAA time
limitations; and
• Provides minimum requirements for CSA reviews of waivers of the
training requirement.
Training
• Raises the statutory cap on funds that may be allocated to the States for
training from $220 million to $575 million per year, and amends how
DOL apportions those funds;
• Allows TAA-funded training prior to separation from employment;
• Allows for part-time training, but without TRA; and
• Extends the deadline for enrolling in training in order to qualify for
TRA to 26 weeks from the later of the worker’s most recent total
qualifying separation, or 26 weeks from the issuance of the
certification. States may grant an extension of the training deadline for
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up to 45 days for extenuating circumstances. Workers may also
receive a waiver of the training requirement within the same 26-week
plus 45-day periods.
Income Support
• Increases the maximum amount of additional TRA from 52 to 78 weeks
for workers in long-term training;
• Permits the payment of 78 weeks of additional TRA over a period of 91
weeks, thereby allowing breaks in training and temporary periods of
employment where additional TRA is not paid;
• Allows payment of up to 26 more consecutive weeks of additional
TRA if the worker must undertake prerequisite education or remedial
education in order to complete a program of TAA training;
• Allows trade-affected workers to elect to receive TRA instead of
Unemployment Insurance (UI) based upon a second UI benefit year
resulting from part-time or short-term work with a lower weekly
benefit amount (WBA);
• Creates a new standard for the waiver of recovery of TAA
overpayments; and
• Eliminates the 210-day requirement for making an application for
training as a condition for the receipt of additional TRA.
Wage Supplement (RTAA)
• Eliminates the requirement for a group certification specifically for
RTAA;
• Eliminates the requirement under ATAA that a worker must find
reemployment within 26 weeks of layoff;
• Workers who choose and are eligible to receive RTAA may also receive
regular TAA benefits and services: employment and case management
services, training, TRA (with limitations), relocation, HCTC, and job
search allowances;
• Increases the limit on wages in eligible reemployment to $55,000 a
year;
• Increases the individual’s benefit cap to $12,000; and
• Allows a worker to qualify for RTAA when working part-time.
Health Coverage Tax Credit
• Expands the HCTC program, which is available to “eligible TAA
recipients.”
• Modifies the definition of an “eligible TAA recipient” to permit a
worker to receive the HCTC even though s/he is in a break in training
of a duration that renders the worker ineligible for TRA.
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• Modifies the definition of an “eligible TAA recipient” to not apply the
training enrollment requirements to an individual who is receiving
unemployment insurance compensation.
• Increases the HCTC tax credit from 65 percent to 80 percent of the
amount a worker paid for coverage under qualifying health insurance;
and
• Provides for the continuation of HCTC eligibility for family members
after receipt of Medicare, Death, or Divorce of the principle recipient.
Job Search and Relocation
• Amends the percentage of job search expenses that may be paid on
behalf of a qualified participant to 100 percent of the total expenses,
capped at $1,500; and
• Amends the percentage of relocation expenses that may be paid on
behalf of a qualified participant to 100 percent of the total expenses,
plus a payment up to $1,500.
5. Operating Instructions. The operating instructions contained in the
attachment are issued to the States and the CSAs as guidance provided by
DOL in its role as the principal in the TAA program. As agents of the
Secretary of Labor, the States and CSAs may not vary from the operating
instructions in this document without prior approval from DOL.
Pending the issuance of regulations implementing the provisions of the 2009
Act, the operating instructions in this document constitute the controlling
guidance for the States and the CSAs in implementing and administering the
2009 Act, as provided in the agreements between the States and the Secretary
of Labor under Section 239 of the 2009 Act.
These Operating Instructions only address changes to the TAA program
made by the 2009 Amendments. For issues that are not addressed by these
operating instructions, States must continue to comply with Training and
Employment Guidance Letter (TEGL) 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; and TEGL 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; and other such
program letters issued by the Department applicable to the TAA benefits and
assistance for adversely affected workers covered under TAA certifications
resulting from petitions filed before May 18, 2009.
Unless otherwise noted, the 2009 Act takes effect for petitions filed on or after
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May 18, 2009, which is 90 days after the date the President signed the
Recovery Act into law. This effective date includes amendments to the
petitioning process and to the individual eligibility requirements and levels of
TAA benefits and services. For convenience and emphasis, the effective date
is repeated in several sections of these instructions. Petitions filed on and
after May 18, 2009, and certifications issued under those petitions, will be
identified by a numbering sequence starting at 70,001.
6. Action Required. CSAs are required to implement the 2009 amendments as
set forth in these Operating Instructions for workers covered under petitions
filed on or after May 18, 2009. Additionally, CSAs will continue to administer
the 2002 Act for workers covered under petitions filed before the effective
date of the 2009 Act until all of those workers have exited the program. CSAs
will inform all appropriate staff of the contents of these instructions.
7. Inquiries. CSAs should direct all inquiries to the appropriate ETA Regional
office.
8. Attachments.
• Attachment A: Operating Instructions for Implementing the
Amendments to the Trade Act of 1974 Enacted by the Trade and
Globalization Adjustment Assistance Act of 2009.
• Attachment B: Trade Act of 1974, as amended.
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ATTACHMENT A
Operating Instructions for Implementing the Amendments to
the Trade Act of 1974 Enacted by
the Trade and Globalization Adjustment Assistance Act of 2009
TABLE OF CONTENTS
INTRODUCTION A-1
DEFINITIONS A-2
A. REAUTHORIZATION AND TERMINATION A-3
B. GROUP ELIGIBILITY REQUIREMENTS A-4
C. TRADE READJUSTMENT ALLOWANCES A-14
D. TRAINING A-30
E. JOB SEARCH ALLOWANCES A-43
F. RELOCATIOIN ALLOWANCES A-44
G. EMPLOYMENT AND CASE MANAGEMENT SERVICES A-46
H. REEMPLOYMENT TRADE ADJUSTMENT ASSISTANCE A-51
I. STATE OPERATIONS A-64
J. HEALTH COVERAGE TAX CREDIT A-69
INTRODUCTION
These Operating Instructions only address changes to the TAA program made by
the 2009 Amendments. For issues that are not addressed by these operating
instructions, States must continue to comply with Training and Employment
Guidance Letter (TEGL) 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; and TEGL 2-03, Interim Operating Instructions for
Implementing the Alternative Trade Adjustment Assistance (ATAA) for Older
A-1
Workers Program Established by the Trade Adjustment Assistance Reform Act
of 2002, and Change 1; and other such program letters issued by the Department
applicable to the TAA benefits and assistance for adversely affected workers
covered under TAA certifications resulting from petitions filed before May 18,
2009.
DEFINITIONS
For purposes of these operating instructions, the following definitions will apply:
• 2002 Act means the Trade Act of 1974, P. L. No. 93-618, as amended
through the Trade Adjustment Assistance Reform Act of 2002, P.L. No.
107-210.
• 2002 Amendments means the amendments made to the Trade Act of 1974
by the Trade Adjustment Assistance Reform Act of 2002, P. L. No. 107-210.
• 2009 Act means the Trade Act as it stands in 2009, including the Trade and
Globalization Adjustment Assistance Act of 2009 (TGAAA) amendments.
• 2009 Amendments means the TGAAA, Division B, Title I, Subtitle I of the
American Recovery and Reinvestment Act of 2009, P.L. No. 111-5.
• Trade Act of 1974, means the Trade Act of 1974, P. L. No. 93-618, as
amended (through P. L. No. 106-113).
• Recovery Act means the American Recovery and Reinvestment Act of 2009,
Pub. L. No. 111-5.
• ATAA means the Demonstration Project for Alternative Trade Adjustment
Assistance for Older Workers, under section 246 of the 2002 Act, as in
effect on May 17, 2009, the day before the effective date of the 2009 Act.
• CSA means Cooperating State Agency.
• Department or DOL means the U.S. Department of Labor.
• DOC means U.S. Department of Commerce.
• Secretary means the Secretary of Labor.
• TAA program means the Trade Adjustment Assistance for Workers
program.
• TRA means Trade Readjustment Allowances.
• RTAA means Reemployment Trade Adjustment Assistance, under Section
246 of the 2009 Act.
• HCTC means Health Coverage Tax Credit. (Section 35, Internal Revenue
Code (I.R.C.) of 1986) (26 U.S.C. 35)
• WIA means the Workforce Investment Act of 1998, P.L. No. 105-220, as
amended. (29 U.S.C. 2801 et seq.)
• Trade Affected Worker means workers who are members of a certified
worker group and have been separated or threatened with separation.
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A. REAUTHORIZATION AND TERMINATION
Statutory Change: Sections 1891 through 1893 of the 2009 Amendments contain
effective dates for the 2009 Act and amend section 245, 246 and 285 relating to the
authorization of appropriations and termination/phase-out provisions
applicable to the TAA program under the 2002 Act and the TAA program under
the 2009 Act.
Administration: Section 1891 of the 2009 Amendments provides that the
effective date for the 2009 Act is 90 days after the date of enactment and the
amendments apply to petitions filed on or after the effective date. Since the 2009
Amendments were signed into law on February 17, 2009, the effective date is
May 18, 2009. Therefore, petitions filed on or after that date will be governed by
the 2009 Act and the 2009 Act will apply to benefits available to workers covered
under certifications issued in response to such petitions. Workers covered by
certifications issued in response to petitions filed before May 18, 2009 will
continue to be governed by the provisions of the 2002 Act. This distinction
means that CSAs will be providing benefits under two different sets of rules for
workers covered by petitions filed before and on or after May 18, 2009. Workers
covered by petitions filed before May 18, 2009, will be entitled to the benefits and
services available under the TAA program under the 2002 Act, including the
opportunity for ATAA-certified workers to elect to participate in the ATAA
program and receive the ATAA wage supplement benefit. Workers covered by
petitions filed on or after May 18, 2009, will be entitled to benefits and services
under the new TAA program under the 2009 Act, including the RTAA wage
supplement benefit. The ATAA program will not terminate, as provided in the
2002 Act, five years after it was implemented by a State. Instead, workers
covered by certifications for TAA and ATAA based on petitions filed before May
18, 2009, will continue to be eligible to receive the ATAA wage supplement
benefit available under the 2002 Act.
Section 1892 amends section 245 of the 2002 Act to extend the authorization of
appropriations through December 31, 2010. This section also amends section 285
of the 2002 Act to extend the termination/phase-out provision to December 31,
2010. Under the termination phase-out provision, no petitions filed after
December 31, 2010, will be certified. Workers covered by certifications based on
petitions filed on or before December 31, 2010, will be eligible to continue to
receive services and benefits in accordance with the requirements in effect before
the termination.
Section 1893 contains other sunset provisions relating to the 2009 Amendments.
DOL does not believe this section needs to be addressed in these operating
instructions but will issue additional instructions if actions relating to these
A-3
provisions were to become necessary.
The following operating instructions explain how the 2009 Amendments
changed the 2002 Act, and provide guidance on the operation of the new TAA
program.
B. GROUP ELIGIBILITY REQUIREMENTS
B.1. Primary Worker Certification Criteria
Statutory Change: Section 1801 of the 2009 Amendments amends Section 222(a)
of the 2002 Act to read:
(a) IN GENERAL. A group of workers shall be certified by the Secretary as eligible to
apply for adjustment assistance under this chapter pursuant to a petition filed under
section 221 if the Secretary determines that—
(1) a significant number or proportion of the workers in such workers’ firm have
become totally or partially separated, or are threatened to become totally or partially
separated; and
(2)(A)(i) the sales or production, or both, of such firm have decreased absolutely;
(ii)(I) imports of articles or services like or directly competitive with articles
produced or services supplied by such firm have increased;
(II) imports of articles like or directly competitive with articles—
(aa) into which one or more component parts produced by such firm are
directly incorporated, or
(bb) which are produced directly using services supplied by such firm,
have increased; or
(III) imports of articles directly incorporating one or more component parts
produced outside the United States that are like or directly competitive with
imports of articles incorporating one or more component parts produced by such
firm have increased; and
(iii) the increase in imports described in clause (ii) contributed importantly to
such workers’ separation or threat of separation and to the decline in the sales or
production of such firm; or
(B)(i)(I) there has been a shift by such workers’ firm to a foreign country in the
production of articles or the supply of services like or directly competitive with
articles which are produced or services which are supplied by such firm; or
(II) such workers’ firm has acquired from a foreign country articles or services
that are like or directly competitive with articles which are produced or services
which are supplied by such firm; and
(ii) the shift described in clause (i)(I) or the acquisition of articles or services
described in clause (i)(II) contributed importantly to such workers’ separation or
threat of separation.
A-4
Administration: As explained in greater detail below, the 2009 Amendments
substantially expand program coverage by expanding the groups of worker that
the Department must certify. The 2009 Amendments expand the coverage of
workers for firms that produce articles. Under the 2002 Act, the Department
could not certify workers for firms that produce a component part for a domestic
article, where imports of articles like or directly competitive with that domestic
article caused the separations of workers producing that component part. The
2009 Act now provides, in these circumstances, for certification of the workers
making the component part. It also provides for certification where separations
are caused by increased imports of articles directly incorporating one or more
component parts produced outside the United States are like or directly
competitive with imports of articles incorporating one or more component parts
produced by the workers’ firm.
Significantly, the 2009 Amendments amend Section 222(a) of the 2002 Act to
expand coverage to workers for firms that supply services on the same terms as
workers for firms that produce articles. In addition, the 2002 Act covered
workers only where production was shifted to certain foreign countries, unless
there “has been or is likely to be an increase in imports like or directly
competitive with articles produced by” the workers’ firm. The 2009 Act covers
workers where there was a shift in production or the supply of services to any
foreign country, regardless of whether there is either an actual or likely increase
in imports.
The 2009 Act also codifies current practice of covering workers in a firm that
acquires articles from a foreign country that are like or directly competitive with
articles that are produced by those workers’ firm. Similarly, the 2009 Act extends
this practice to cover workers in a firm that acquires services from a foreign
country that are like or directly competitive with services that are supplied by
those workers’ firm.
In order for the Department to issue a certification, the petition must satisfy these
three criteria:
1. A significant number or proportion of the workers in the workers’ firm,
must have become totally or partially separated or be threatened with
total or partial separation.
The first criterion has not changed from the first worker group eligibility
criterion applied to the TAA program since its inception. However, the 2009
Amendments amend the definition of a “firm” to include an “appropriate
subdivision,” since those Amendments delete the latter term from the
A-5
certification criteria. Accordingly, the term “firm,” as used in these operating
instructions, includes the “appropriate subdivision.”
2. The second criterion is satisfied if either (2)(A)(i) or (2)(B)(i) is satisfied:
(i) Sales or production, or both, at the workers’ firm must have decreased
absolutely, and
(ii)(a) imports of articles or services like or directly competitive with
articles or services produced or supplied by the workers’ firm have
increased, or
(b) imports of articles like or directly competitive with articles into
which the component part produced by the workers’ firm was directly
incorporated have increased; or
(c) imports of articles like or directly competitive with articles which
are produced directly using the services supplied by the workers’ firm
have increased; or
(d) imports of articles directly incorporating component parts not
produced in the U.S. that are like or directly competitive with the article
into which the component part produced by the workers’ firm was
directly incorporated have increased.
The first part of this requirement has not changed from the worker group
eligibility criterion applied to the TAA program since its inception.
The second part of this requirement significantly expands the TAA program’s
coverage to include certification based on increased imports of services as well as
increased imports of articles. It also expands coverage based on increased
imports to include imports of articles that either incorporate component articles
produced by the workers’ firm or are produced directly using services supplied
by the workers’ firm. In addition, clause (ii) expands coverage by allowing
certification in situations where there has been an increase in imports from
articles incorporating component parts produced in the United States to articles
incorporating component parts produced outside the United States.
(B)(i)(I) There has been a shift by the workers’ firm to a foreign country in
the production of articles or supply of services like or directly competitive
with those produced/supplied by the workers’ firm; or
(ii) there has been an acquisition from a foreign country by the workers’
firm of articles/services that are like or directly competitive with those
produced/supplied by the workers’ firm.
The first part of this requirement now includes workers for firms that supply
services, thus significantly expanding coverage to include shifts in the supply of
A-6
services by the workers’ firm. It also now includes shifts of the production of
articles or the supply of services to any foreign country by the workers’ firm.
The second part of this requirement (subclause ii) is new and provides for
worker group eligibility based on foreign contracting by the workers’ firm.
Subclause (ii) is met if the workers’ firm has acquired from a foreign source
articles or services like or directly competitive with those produced/supplied by
the workers’ firm.
3. The increase in imports or shift/acquisition must have contributed
importantly to the workers’ separation or threat of separation.
The legislation codifies the Department’s practice of interpreting the 2002 Act to
require a causal nexus between the shift of production to a foreign country and
the workers’ separations. Previously, the contributed importantly criterion was
explicit only in increased imports cases and was implicit in shift cases. The 2009
Amendments now make the requirement explicit for cases involving a shift in
production or a shift in acquisition of a service.
B.2. Public Agency Worker Certification Criteria
Statutory Change: Section 1801 of the 2009 Amendments adds a new provision
at subsection (b) of Section 222 of the 2009 Act. Section 222(b) now reads:
(b) ADVERSELY AFFECTED WORKERS IN PUBLIC AGENCIES.—A group of
workers in a public agency shall be certified by the Secretary as eligible to apply for
adjustment assistance under this chapter pursuant to a petition filed under section 221 if
the Secretary determines that—
(1) a significant number or proportion of the workers in the public agency have
become totally or partially separated, or are threatened to become totally or partially
separated;
(2) the public agency has acquired from a foreign country services like or directly
competitive with services which are supplied by such agency; and
(3) the acquisition of services described in paragraph (2) contributed importantly to
such workers’ separation or threat of separation.
Administration: Workers of a public agency that has acquired from a foreign
source services like or directly competitive with those supplied by the agency
may now be certified as eligible to apply for TAA. Section 247(7) of the 2009 Act
defines “public agency” as a “department or agency of a State or local
government or of the Federal Government, or a subdivision thereof.”
In order for a “public agency worker” certification to be issued, the petition must
satisfy these three criteria:
A-7
1. A significant number or proportion of the workers in the public agency
have become totally or partially separated or be threatened with total or
partial separation.
2. The public agency has acquired from a foreign country services that are
like or directly competitive with the services supplied by the public
agency.
3. The acquisition of services described in criterion 2 contributed
importantly to the workers’ separation or threat of separation.
The new certification criteria treat similarly workers in firms in the private sector
that perform services and workers in the public sector. The first criterion has
been used for the certification of workers in firms that produce articles since the
inception of the TAA program. The second criterion mirrors a certification
criterion for workers in firms in the private sector. The third criterion similarly
follows the certification criterion for workers in the private sector.
B.3. Secondarily-Affected Worker Certification Criteria
Statutory Change: Section 1801 of the 2009 Amendments renumbers subsection
(b) of Section 222 of the 2002 Act as subsection (c) and amends new Section 222(c)
to read:
(c) ADVERSELY AFFECTED SECONDARY WORKERS.—A group of workers
shall be certified by the Secretary as eligible to apply for trade adjustment assistance
benefits under this chapter pursuant to a petition filed under section 221 if the Secretary
determines that—
(1) a significant number or proportion of the workers in the workers’ firm or an
appropriate subdivision of the firm have become totally or partially separated, or are
threatened to become totally or partially separated;
(2) the workers’ firm is a supplier or downstream producer to a firm that employed a
group of workers who received a certification of eligibility under subsection (a), and
such supply or production is related to the article or service that was the basis for such
certification (as defined in subsection (d) (3)and (4)); and
(3) either
(A) the workers firm is a supplier and the component parts it supplied to the firm
described in paragraph (2) accounted for at least 20 percent of the production or sales
of the workers’ firm; or
(B) a loss of business by the workers’ firm with the firm described in paragraph (2)
contributed importantly to the workers’ separation or threat of separation determined
under paragraph (I).
Section 1801 of the 2009 Amendments amends Section 222 of the Act so that Section
222(d)(3) – (4) now reads:
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(3) DOWNSTREAM PRODUCER.—
(A) IN GENERAL.—The term ‘downstream producer’ means a firm that performs
additional, value-added production processes or services directly for another firm for
articles or services with respect to which a group of workers in such other firm has been
certified under subsection (a).
(B) VALUE-ADDED PRODUCTION PROCESSES OR SERVICES.—For purposes of
subparagraph (A), value-added production processes or services include final assembly,
finishing, testing, packaging, or maintenance or transportation services.
(4) SUPPLIER—The term “supplier” means a firm that produces and supplies directly to
another firm component parts for articles, or services, used in the production of articles or
in the supply of services, as the case may be, that were the basis for a certification of
eligibility under subsection (a) of a group of workers employed by such other firm.
Administration: The 2002 Act covers workers of a firm that supplies component
parts ( a “supplier”) a primary firm (a firm that employs a worker group certified
as eligible to apply for TAA) and workers of a firm that provides additional,
value-added production processes (a “downstream producer”) for a primary
firm.
The 2009 Act now covers suppliers and downstream producers where the
certification of workers for the primary firm was based upon the firm’s supply of
services. Further, workers for suppliers and downstream producers may now be
certified on the basis of the services they supply to, or the additional, value-
added services they provide for, the primary firm. However, the requirement
under the 2002 Act that the supplier must directly supply the primary firm has
not changed. The component parts from the supplier must be used in the
production of articles or in the supply of services that were the basis for the
certification of a group of workers in the primary firm. Further, the component
parts or services that the supplier supplied to the primary firm must either
account for at least 20 percent of the production or sales of the supplier, or the
loss of business with the primary firm by the upstream firm must have
contributed importantly to the upstream workers’ separations or threat of
separations.
The “direct” requirement under the 2002 Act for downstream producers also
remains unchanged: The downstream producer must perform additional, value-
added production processes or services “directly” for a primary firm for articles
or services with respect to which the group of workers in the primary firm was
certified. However, the 2009 Amendments have eliminated the requirement that
downstream workers may only be certified as secondarily affected if the workers
of the primary firm are certified based on increased imports from Canada or
Mexico or a shift of production to Canada or Mexico.
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In order for a certification to be issued, the petition must satisfy these three
criteria:
1. A significant number or proportion of the workers in the workers’ firm
must have become totally or partially separated or be threatened with
total or partial separation.
2. The workers’ firm (or subdivision) is a supplier or downstream producer
to a primary firm and such supply or production is related to the article or
service that was the basis for the primary firm’s workers’ certification.
3. Either A or B below is satisfied:
(A) the workers’ firm is a supplier and the component parts it supplied to
the primary firm (or subdivision) accounted for at least 20 percent of the
production or sales of the workers’ firm, or
(B) a loss of business by the workers’ firm with the primary firm (or
subdivision) contributed importantly to the workers’ separation or threat
of separation.”
The new certification criteria permit a group of workers in a downstream
producer to be eligible for TAA if the primary firm’s certification is linked to
trade with any country, not just Canada or Mexico. The first criterion has not
changed from the worker group eligibility criteria applied to the TAA program
since its inception. The second criterion reflects the elimination of the
requirement in the 2002 Act that the certification of eligibility of the downstream
producer’s customer must be based on increased imports or a shift in production
to Canada or Mexico. The third criterion is similar to the language in the 2002
Act, but also allows for secondary worker coverage based on certifications of
workers in service sector firms. In all cases, there must have been a loss of sales
to the certified firm.
B.4. Verification of Information
Statutory Change: Section 1801(b) of the 2009 Amendments adds a new
subsection (e) to Section 222 of the 2009 Act, as follows:
“(e)(3) VERIFICATION OF INFORMATION.—
(A) CERTIFICATION.— The Secretary shall require a firm or customer to
certify—
(i) all information obtained under paragraph (1) from the firm or the
customer (as the case may be) through questionnaires; and
(ii) all other information obtained under paragraph (1) from the firm or
the customer (as the case may be) on which the Secretary relies in
certifying a group of workers under section 223, unless the Secretary has a
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reasonable basis for determining that such information is accurate and
complete without being certified.
(B) USE OF SUBPOENAS.— The Secretary shall require a workers’ firm or a
customer of the workers’ firm to provide information requested by the Secretary under
paragraph (1) by subpoena pursuant to section 249 if the firm or customer (as the case
may be) fails to provide the information within 20 days of the Secretary’s request, unless
the firm or customer (as the case may be) demonstrates to the satisfaction of the Secretary
that the firm or customer (as the case may be) will provide the information within a
reasonable period of time.
(C) PROTECTION OF CONFIDENTIAL INFORMATION.— The Secretary
may not release information obtained under paragraph (1) that the Secretary considers to
be confidential business information unless the firm or customer (as the case may be)
submitting the confidential business information had notice at the time of submission,
that the information would be released by the Secretary, or the firm or customer (as the
case may be) subsequently consents to the release if the information. Nothing in this
paragraph shall be construed to prohibit the Secretary from providing such confidential
business information to a court in camera or to another party under a protective order
issued by a court.
Administration: The 2009 Amendments do not change the Department’s
obligation to make a determination on the petitioning workers’ eligibility to
apply for TAA based on substantive evidence, its authority to subpoena
information necessary to make a determination on a petition, or its obligation to
protect confidential information.
The 2009 Act requires a firm or customer to verify the information it provides to
the Department during the investigation of a TAA petition. Under the new
program, the Department will require the firm or customer providing
information through questionnaires or in other formats to certify that the
information is accurate and complete, unless the Department has a reasonable
basis for determining that such certification is not required. The various forms
and communications used by the Department in collecting relevant information
may include such an affirmation requirement.
The 2009 Act codifies the Department’s practice of issuing subpoenas when the
Department is unable, through other means, to obtain information necessary for
making a determination. Under current practice, the issuance of the subpoena
does not follow any established timeframe. Under the 2009 Act, the Department
is required to issue a subpoena if the firm or customer fails to provide the
information within twenty (20) days of the Department’s request, unless the firm
or customer has demonstrated to the Department’s satisfaction that the
information sought will be provided within a reasonable period of time.
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The 20 day period begins once the Department issues an information request, not
at the 20th day of the investigation. Thus, for example, if a petition is filed on
June 5 and if a Confidential Data Request is issued on June 11, 2009, and the firm
fails to provide the information, the Department may issue a subpoena on July 1,
2009.
Section 222(e)(3)(C) of the 2009 Act contains slightly different confidentiality
protections on confidential information than those applied under the 2002 Act.
The 2009 Act expressly prohibits DOL from releasing information it gathers in
the course of the investigation of a petition where DOL considers that
information to be “confidential business information.” DOL currently defines
that term in 29 C.F.R. 90.33.
The 2009 Act provides two exceptions to this confidentiality requirement, the
first occurs where “the firm or customer . . . submitting the confidential business
information had notice, at the time of submission, that the information would be
released by” DOL. If DOL determines that a firm or customer submitted any
information in confidence that is not entitled to confidentiality, then DOL,
consistent with past practice, will notify the firm or customer of this finding and
permit it to withdraw the information.
The 2009 Act’s second exception to confidentiality is the permission it affords
DOL to provide “confidential business information to a court in camera or to
another party under a protective order issued by a court.” This codifies past
practice where DOL submits confidential business information under seal to the
U.S. Court of International Trade on appeal of DOL’s denial of certification of a
petition. It also codifies DOL’s practice of releasing, under a protective order
issued by a court, confidential business information to plaintiffs’ attorneys in
these proceedings.
In addition to the 2009 Act exceptions, DOL will release confidential business
information with the permission of the entity submitting it, which is consistent
with the intent of the 2009 Amendments. DOL is committed to protecting
business confidential information to the full extent of the law.
B.5. Firms Identified by the International Trade Commission
Statutory Change: Section 1802 of the 2009 Amendments amends Section 222 of
the 2002 Act by adding a new subsection (f):
(f) FIRMS IDENTIFIED BY THE INTERNATIONAL TRADE COMMISSION.—Notwithstanding
any other provision of this chapter, a group of workers covered by a petition filed under
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section 221 shall be certified under subsection (a) as eligible to apply for adjustment
assistance under this chapter if—
(1) the workers’ firm is publicly identified by name by the International Trade
Commission as a member of a domestic industry in an investigation resulting in—
(A) an affirmative determination of serious injury or threat thereof under section
202(b)(1);
(B) an affirmative determination of market disruption or threat thereof under
section 421(b)(1); or
(C) an affirmative final determination of material injury or threat thereof under
section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C.
1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the 1-year period beginning on the date on which—
(A) a summary of the report submitted to the President by the International Trade
Commission under section 202(f)(1) with respect to the affirmative determination
described in paragraph (1)(A) is published in the Federal Register under section
202(f)(3); or
(B) notice of an affirmative determination described in subparagraph (B) or (C) of
paragraph (1) is published in the Federal Register; and
(3) the workers have become totally or partially separated from the workers’ firm
within—
(A) the 1-year period described in paragraph (2); or
(B) notwithstanding section 223(b), the 1-year period preceding the 1-year period
described in paragraph (2).
Administration: The 2009 Act provides, for the first time, for certification of a
petition without a Departmental investigation upon certain findings by the
International Trade Commission (ITC).
In order for a certification to be issued, the petition must satisfy these three
criteria:
1. The workers’ firm must be publicly identified by name by the ITC as a
member of a domestic industry in an investigation resulting in a finding
of injury or market disruption under section 202(b)(1), 421(b)(1),
705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930.
2. The petition is filed within one year after the date on which a summary of
the ITC’s report to the President, or the ITC’s affirmative finding, is
published in the Federal Register.
3. The workers of the firm identified in criterion 1 were totally or partially
separated no more than one year before the publication date of the Federal
Register notice described in criterion 2 and no later than one year after that
date.
Should the petition be filed more than one year after the date of the publication
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of the ITC’s Federal Register notice, the Department will investigate whether the
petition meets the other certification criteria. Further, although section 223(b)
provides that a certification will not cover workers separated more than one year
before the date of the petition on which that certification was granted, section
222(f)(3)(B) provides that a certification based upon an ITC finding covers
workers separated up to a year before the date of the publication of the ITC’s
Federal Register notice.
C. TRADE READJUSTMENT ALLOWANCES (TRA)
C.1. TRA Eligibility
Statutory Change: Sections 1801, 1821 and 1858 of the 2009 Amendments amend
Section 231(a)(1) – (4) of the 2002 Act to read:
(a) Payment of a trade readjustment allowance shall be made to an adversely affected
worker covered by a certification under subchapter A who files an application for such
allowance for any week of unemployment which begins on or after the date of such
certification, if the following conditions are met:
(1) Such worker’s total or partial separation before the worker’s application under this
chapter occurred—
(A) on or after the date, as specified in the certification under which the worker is
covered, on which total or partial separation began or threatened to begin in the
adversely affected employment,
(B) before the expiration of the 2-year period beginning on the date on which the
determination under section 223 was made, and
(C) before the termination date (if any) determined pursuant to section 223(d).
(2) Such worker had, in the 52-week period ending with the week in which such total
or partial separation occurred, at least 26 weeks of employment at wages of $30 or more
a week in adversely affected employment with a single firm, or, if data with respect to
weeks of employment with a firm are not available, equivalent amounts of employment
computed under regulations prescribed by the Secretary. For the purpose of this
paragraph, any week in which such worker—
(A) is on the employer-authorized leave for purposes of vacation, sickness, injury,
maternity, or inactive duty or active duty military service for training,
(B) does not work because of a disability that is compensable under a workmen’s
compensation law or plan of a State or the United States,
(C) had his employment interrupted in order to serve as a full-time representative of
a labor organization in such firm, or
(D) is on call-up for purposes of active duty in a reserve status in the Armed Forces
of the United States, provided such active duty is “Federal service” as defined in
section 8521(a)(1) of title 5, United States Code shall be treated as a week of
employment at wages of $30 or more, but not more than 7 weeks, in case of weeks
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described in subparagraph (A) or (C), or both (and not more than 26 weeks, in the
case of weeks described in subparagraph (B) or (D)), may be treated as weeks of
employment under this sentence.
(3) Such worker—
(A) was entitled to (or would be entitled to if the worker applied therefor)
unemployment insurance for a week within the benefit period (i) in which such total
or partial separation took place, or (ii) which began (or would have begun) by reason
of the filing of a claim for unemployment insurance by such worker after such total or
partial separation;
(B) has exhausted all rights to any unemployment insurance except additional
compensation that is funded by a State and is not reimbursed from any Federal finds,
to which the worker was entitled (or would be entitled if he applied therefor); and
(C) does not have an unexpired waiting period applicable to the worker for any such
unemployment insurance.
(4) Such worker, with respect to such week of unemployment, would not be
disqualified for extended compensation payable under the Federal-State Extended
Unemployment Compensation Act of 1970 by reason of the work acceptance and job
search requirements in section 202(a)(3) of such Act.
Administration: Section 1821 of the 2009 Amendments changes Section 231(a) of
the 2002 Act by eliminating the 60-day waiting period after a petition is filed to
receive trade readjustment allowances (TRA) and allows receipt of those
allowances for any week of unemployment that begins on or after the date of
certification. This amendment allows workers to begin receiving TRA benefits
immediately upon certification of a petition if UI entitlement (as defined in
section 247(12)) has been exhausted. Unlike under the 2002 Act, this means that
no payments may be made retroactively for weeks of unemployment that occur
before the certification was issued, but after the date of the petition.
Subparagraph C.5 of these Operating Instructions discusses two new provisions
that address specific issues that may arise because of this amendment in
determining the first payable week, such as the certification being delayed
because of appeals or other situations where there is justifiable cause to extend
the eligibility period for basic TRA.
Section 231(a)(1) through Section 231(a)(4), establishing requirements for TRA
eligibility, have not otherwise been substantively amended. They continue to
require for eligibility that the worker be adversely affected; that the worker’s
total or partial separation occurred during the period covered by the
certification; that the worker (with exceptions) had 26 weeks of employment at
$30 or more per week in the 52-week period ending with the total or partial
separation from adversely affected employment; that the worker was entitled to
and exhausted all UI entitlement, except additional compensation that is funded
by a State and is not reimbursed from any Federal funds; and that the worker
would not be disqualified for extended compensation payable under the Federal-
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State Extended Compensation Act of 1970 by reason of its work search and job
search requirements. Subparagraph C.4.1 of these Operating Instructions
discusses the sole exception to the requirement that TRA eligibility depends
upon the exhaustion all UI other than a certain type of additional compensation).
C.2. Enrollment in Training
Statutory Change: Section 1821 of the 2009 Amendments amends Section
231(a)(5)(A) of the 2002 Act to read:
(5) Such worker---
(A)(i) is enrolled in a training program approved by the Secretary under section
236(a), and
(ii) the enrollment required under clause (i) occurs no later than the latest of—
(I) in the case of a worker whose most recent total separation from adversely
affected employment that meets the requirements of paragraphs (1) and (2) occurs
after the date on which the Secretary issues a certification covering the worker, the
last day of the 26th week after such total separation,
(II) in the case of a worker whose most recent total separation from adversely
affected employment that meets the requirements of paragraphs (1) and (2) occurs
before the date on which the Secretary issues a certification covering the worker, the
last day of the 26th week after the date of such certification,
(III) 45 days after the date specified in subclause (I) or (II), as the case may be, if
the Secretary determines there are extenuating circumstances that justify an
extension in the enrollment period,
(IV) in the case of a worker who fails to enroll by the date required by subclause
(I), (II), or (III), as the case may be, due to the failure to provide the worker with
timely information regarding the date specified in such subclause, the last day of a
period determined by the Secretary, or
(V) the last day of a period determined by the Secretary to be approved for
enrollment after the termination of a waiver issued pursuant to subsection (c),
(B) has, after the date on which the worker became totally separated, or partially
separated, from the adversely affected employment, completed a training program
approved by the Secretary under section 236(a), or
(C) has received a written statement certified under subsection (c)( 1) after the date
described in subparagraph (13).
Administration: The 2009 Amendments leave intact the basic structure of
Section 231(a)(5). As before, Section 231(a)(5)(A) requires, as a condition for
receiving TRA, that the worker be enrolled in training. As before, Section
231(a)(5)(C) allows a worker to receive a waiver of the training requirement in
order to receive basic TRA. Section 231(a)(5)(A)(ii) sets deadlines by which the
enrollment in training must occur. These deadlines apply for eligibility for any
TRA payment – basic TRA, additional TRA, and additional weeks paid to
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adversely affected workers who undertake remedial or prerequisite education.
The 2009 Amendments lengthen the enrollment deadlines from 8 weeks after
certification or 16 weeks after separation to the later of 26 weeks from the
separation or certification date. This deadline extension allows a worker to
actively engage in a longer job search before making a decision about training,
and to make full use of the case management services provided under the 2009
Act to choose an appropriate training program. Additionally, in cases where
large worker groups are dislocated all at once, it allows the CSA more time for
counseling, assessment and other case management services which were difficult
to perform in advance of the prior, shorter enrollment deadlines.
The 2009 Act continues to allow for an extension of the enrollment deadlines for
45 days where the CSA determines that there are extenuating circumstances
justifying the extension. “Extenuating circumstances” continue to be
circumstances beyond the control of the worker. This includes situations where
training programs are abruptly cancelled as well as where the worker suffers
injury or illness preventing participation in training.
The 2009 Act includes a new Section 231(a)(5)(A)(ii)(IV), providing an exception
to the enrollment deadlines where the worker did not enroll by the deadlines
because the CSA failed to provide the worker with timely information regarding
the training enrollment deadlines. In that event, the worker must be enrolled by
the last day of a period to be determined by the Secretary. Accordingly, the
Secretary has determined that the worker must be enrolled in training or receive
a waiver by the Monday of the first week occurring 60 days after the date on
which the worker was properly notified of both his/her eligibility to apply for
TAA and the requirement to enroll in training absent a waiver of the training
requirement. The CSA must document its efforts to notify workers of the
enrollment deadlines.
A worker must be enrolled in training as a condition of basic TRA when the
enrollment in training deadline is reached. Further, a CSA may not waive the
enrollment in training requirement after the deadlines have passed.
The 2009 Act continues to have an additional deadline for training enrollment
that applies to workers who were granted a waiver of the training requirement,
now in Section 231(a)(5)(A)(ii)(V). Workers who have received a training waiver
must be enrolled in training prior to the last day of a period set by the Secretary
after the termination of a waiver in order to maintain future eligibility for TRA.
In its initial implementation of the 2002 Amendments, the Department set this
time period to be the first Monday after the termination of the waiver.
Subsequent experience operating the program has indicated that additional time
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is needed in some cases. Accordingly, the Secretary has determined that the
worker must be enrolled in training by the Monday of the first week occurring 30
days after the date on which the waiver terminated, whether by revocation or
expiration.
“Enrolled in training” continues to mean that the worker’s application for
training has been approved by the CSA and that the training institution has
furnished written notice to the CSA that the worker has been accepted into the
approved program which is to begin within 30 days of such approval.
C.3. Waiver of Training Requirement
Statutory Change: Section 1821 of the 2009 Amendments amends Section 231(c)
of the 2002 Act to read:
(c) WAIVERS OF TRAINING REQUIREMENTS.—
(1) ISSUANCE OF WAIVERS—The Secretary may issue a written statement to an
adversely affected worker waiving the requirement to be enrolled in training described
in subsection (a)(5)(A) if the Secretary determines that it is not feasible or appropriate
for the worker, because of 1 or more of the following reasons:
(A) RECALL—The worker has been notified that the worker will be recalled by the
firm from which the separation occurred.
(B) MARKETABLE SKILLS—
(i) IN GENERAL.—The worker possesses marketable skills for suitable employment
(as determined pursuant to an assessment of the worker, which may include the
profiling system under section 303(j) of the Social Security Act (42 U.S.C. 503(j)),
carried out in accordance with guidelines issued by the Secretary) and there is a
reasonable expectation of employment at equivalent wages in the foreseeable future.
(ii) MARKETABLE SKILLS DEFINED.—For purposes of clause (i), the term
‘marketable skills’ may include the possession of a postgraduate degree from an
institution of higher education (as defined in section 102 of the Higher Education
Act of 1965 (20 U.S.C. 1002)) or an equivalent institution, or the possession of an
equivalent postgraduate certification in a specialized field.
(C) RETIREMENT.—The worker is within 2 years of meeting all requirements for
entitlement to either—
(i) old-age insurance benefits under title H of the Social Security Act (42 U.S.C.
401 et seq.) (except for application therefor); or
(ii) a private pension sponsored by an employer or labor organization.
(D) HEALTH—The worker is unable to participate in training due to the health of
the worker, except that a waiver under this subparagraph shall not be construed to
exempt a worker from requirements relating to the availability for work, active search
for work, or refusal to accept work under Federal or State unemployment
compensation laws.
(E) ENROLLMENT UNAVAILABLE.—The first available enrollment date for the
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approved training of the worker is within 60 days after the date of the determination
made under this paragraph, or, if later, there are extenuating circumstances for the
delay in enrollment, as determined pursuant to guidelines issued by the Secretary.
(F) TRAINING NOT AVAILABLE—Training approved by the Secretary is not
reasonably available to the worker from either governmental agencies or private
sources (which may include area vocational education schools, as defined in section 3
of the Carl D. Perkins Vocational and Technical Education Act of 1 998 (20 U.S.C.
2302), and employers), no training that is suitable for the worker is available at a
reasonable cost, or no training finds are available.
(2) DURATION OF WAIVERS.—
(A) IN GENERAL—Except as provided in paragraph (3)(B), a waiver issued under
paragraph (1) shall be effective for not more than 6 months after the date on which the
waiver is issued, unless the Secretary determines otherwise.
(B) REVOCATION.-----The Secretary shall revoke a waiver issued under
paragraph (I) if the Secretary determines that the basis of a waiver is no longer
applicable to the worker and shall notify,’ the worker in writing of the revocation.
(3) AGREEMENTS UNDER SECTION 239.—
(A) ISSUANCE BY COOPERATING STATES.— An agreement under section
239 shall authorize a cooperating State to issue waivers as described in paragraph (1).
(B) REVIEW OF WAIVERS.— An agreement under section 239 shall require a
cooperating State to review each waiver issued by the State under subparagraph (A),
(B), (D), (E), or (F) of paragraph (1)—
(i) 3 months after the date on which the State issues the waiver; and
(ii) on a monthly basis thereafter.
(C) SUBMISSION OF STATEMENTS. —An agreement under section 239 shall
include a requirement that the cooperating State submit to the Secretary the written
statements provided under paragraph (1) and a statement of the reasons for the
waiver.
Administration: The 2009 Amendments expand the definition of “Marketable
Skills.” Additionally, they provide that no review of waivers is necessary if
issued under the “retirement” reason for granting the waiver. Finally, they
provide that periodic reviews of waivers issued under the remaining provisions
need not occur during the first three months, but must be reviewed at the three-
month mark and on a monthly basis thereafter.
Section 231(c) sets forth the requirements for issuing waivers of the requirement
under Section 231(a)(5)(A) that a worker be enrolled in training in order to
receive basic TRA, if training is not feasible or appropriate for the worker. The
training enrollment requirement may only be waived for receipt of basic TRA.
Training may not be waived for receipt of additional TRA or additional weeks
paid to workers who participated in remedial or prerequisite education. In order
to receive additional TRA, a worker must be participating in approved training.
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Section 231(c)(1) continues to provide six specific criteria for issuing a waiver of
the training requirement for eligibility for basic TRA. For convenience, those
criteria are provided below:
(A) Recall. – The worker has been notified that the worker will be recalled
by the firm from which the separation occurred.
(B) Marketable Skills—
(i) In General.—The worker possesses marketable skills for suitable
employment (as determined pursuant to an assessment of the worker,
which may include the profiling system under section 303(j) of the
Social Security Act (42 U.S.C. 503(j)), carried out in accordance with
guidelines issued by the Secretary) and there is a reasonable
expectation of employment at equivalent wages in the foreseeable
future.
(ii) Marketable Skills Defined.—For purposes of clause (i), the term
‘marketable skills’ may include the possession of a postgraduate
degree from an institution of higher education (as defined in section
102 of the Higher Education Act of 1965 (20 U.S.C. 1002)) or an
equivalent institution, or the possession of an equivalent postgraduate
certification in a specialized field.
(C) Retirement. – The worker is within 2 years of meeting all requirements
for entitlement to either –
(i) old-age insurance benefits under title II of the Social Security
Act (42 U.S.C. 401 et. seq.) (except for application therefor); or
(ii) a private pension sponsored by an employer or labor
organization.
(D) Health. – The worker is unable to participate in training due to the
health of the worker, except that this basis for a waiver does not
exempt a worker from the availability for work, active search for work,
or refusal to accept work requirements under Federal or State
unemployment compensation laws.
(E) Enrollment Unavailable. – The first available enrollment date for the
worker’s approved training is within 60 days after the date of the
determination made under this paragraph, or, if later, there are
extenuating circumstances for the delay in enrollment, as determined
under guidelines issued by the Secretary.
(F) Training Not Available. – Training approved by the Secretary is not
reasonably available to the worker from either governmental agencies
or private sources (which may include area vocational education
schools, as defined in section 3 of the Carl D. Perkins Vocational and
Technical Education Act of 1998 (20 U.S.C. 2302), and employers), no
suitable training for the worker is available at reasonable cost, or no
training funds are available.
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The training requirement may be waived only after an assessment that results in
a determination that one of the waiver provisions is met.
These criteria and their administration are essentially unchanged. The only
change to these criteria is the addition of subparagraph (B)(ii) that specifies that
workers who possess a post-graduate degree should be considered to have
marketable skills and are eligible for the marketable skills waiver.
The requirement that waivers be reviewed within three months of the time they
are issued provides the CSA with some flexibility in managing the waiver review
process while at the same time allowing the State to ensure the worker continues
to qualify for the waiver. It is important that the individual continue to receive
appropriate case management services during the waiver period to ensure that
progress continues to be made toward meeting the individual’s reemployment
plan.
C.4. Weekly Amounts of TRA
Statutory Change: Section 1822 of the 2009 Amendments amends Section
232(a)(1) – (2) of the 2002 Act to read:
(a) Subject to subsections (b), (c), and (d), the trade readjustment allowance payable to
an adversely affected worker for a week of unemployment shall be an amount equal to the
most recent weekly benefit amount of the unemployment insurance payable to the worker
for a week of total unemployment preceding the workers’ first exhaustion of
unemployment insurance (as determined for purposes of section 231(a)(3)(B) reduced
(but not below zero) by—
(1) any training allowance deductible under subsection (c); and
(2) income that is deductible from unemployment insurance under the disqualifying
income provisions of the applicable State law or Federal unemployment insurance law,
except that in the case of an adversely affected worker who is participating in training
under this chapter, such income shall not include earnings from work for such week
that are equal to or less than the most recent weekly benefit amount of the
unemployment insurance payable to the worker for a week of total unemployment
preceding the worker’s first exhaustion of unemployment insurance (as determined for
purposes of section 231(a)(3)(B)).
Administration: Section 232(a) establishes the weekly amount of TRA a worker
may receive. Section 232(a)(2) requires the deduction from that weekly amount
all income that is deductible from UI under the disqualifying income provisions
of State or Federal UI law. The 2009 Act provides, however, that for workers
participating in approved training, no deduction is made for earnings from work
for a week up to an amount that is equal to the worker’s most recent UI benefit
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amount (as determined under section 231(a)(3)(B)).
This provision will affect only the benefit computation for workers who are
participating in full-time training other than on-the-job training (because receipt
of TRA requires participation in full-time training, as discussed in Section D.3 of
these operating instructions). State payment units will need to reprogram their
TRA payment process to accommodate this change in the amount of deductible
earnings disregarded. This provision does not affect any wage calculations to
determine a future claim for UI; it simply disregards wages equal to or less than
the weekly benefit amount (WBA) for calculating the weekly TRA payment.
C.4.1. Election of TRA or UI
Statutory Change: Section 1822 of the 2009 Amendments amends Section 232 of
the 2002 Act by adding a new subsection (d), to read:
(d) ELECTION OF TRADE READJUSTMENT ALLOWANCE OR
UNEMPLOYMENT INSURANCE.—Notwithstanding section 231(a)(3)(B), an
adversely affected worker may elect to receive a trade readjustment allowance instead of
unemployment insurance during any week with respect to which the worker—
(1) is entitled to receive unemployment insurance as a result of the establishment by
the worker of a new benefit year under State law, based in whole or in part upon part-
time or short-term employment in which the worker engaged after the worker’s most
recent total separation from adversely affected employment; and
(2) is otherwise entitled to a trade readjustment allowance.
Administration: Sometimes, a worker earns wages after the most recent
separation from adversely affected employment, qualifying the worker for a
subsequent benefit year of UI at a lower WBA than for the first benefit year.
Section 231(a)(3) requires, as a condition of receiving TRA, that a worker “has
exhausted all rights to any unemployment insurance,” except a certain type of
additional compensation. Therefore, the worker’s TRA, based upon, the higher
WBA of the first benefit year, must stop while the worker collects UI based upon
the lower WBA of the second benefit year. This result sometimes forces a worker
to quit training to return to work.
Section 232(d), added by the 2009 amendments, resolves this dilemma by
allowing the worker, notwithstanding the UI exhaustion requirement of section
231(a)(3)(B), to elect to receive TRA instead of UI for any week where the worker
meets two conditions: The worker is entitled to receive UI as a result of a new
benefit year based in whole or in part upon part-time or short-term employment
in which the worker engaged after the worker’s most recent total separation from
adversely affected employment; and the worker is otherwise entitled to TRA.
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The first condition requires some explanation. It permits a worker to elect TRA,
instead of UI based upon a new benefit year, only where that new benefit year is
“based in whole or in part upon part-time or short-term employment in which
the worker engaged after the worker’s most recent total separation from
adversely affected employment . . . .” Thus, in determining whether the worker
may elect to receive TRA instead of UI based upon the new benefit year, the CSA
must determine whether the worker had any wages “after the worker’s most
recent total separation from adversely affected employment.” (Emphasis added).
If the CSA determines that the worker is entitled to a new benefit year based, in
whole or part, upon those specified wages “after” the worker’s “most total
separation from adversely affected employment,” the worker may (if otherwise
eligible) elect TRA instead of UI based on that new benefit year.
The first point to note is that the Act uses the phrase “most recent total
separation from adversely affected employment,” not, as in sections
231(a)(5)(A)(ii)(I) and (II), the phrase “most recent total separation from
adversely affected employment that meets the requirements of paragraphs (1) and
(2)” of section 231(a). (Emphasis added.) (See, also, section 233(a)(2), establishing
the eligibility period for basic TRA, which uses substantively identical language.)
Those paragraphs (1) and (2) of section 231(a) require that a worker’s separation
occur during the period covered by the certification and that the worker had,
with certain exceptions, in the 52-week period ending with the week in which the
separation occurred, at least 26 weeks of employment at wages of $30 or more a
week in adversely affected employment. The Department interprets the election
provision at section 232(d) as looking at wages earned after the “most recent total
separation from adversely affected employment that meets the requirements of
paragraphs (1) and (2)” of section 231(a).
This interpretation is advantageous to workers because it looks to a broader
range of wages upon which the new benefit year may be based (in whole or in
part) in order to allow the worker the election. For example, a worker might,
after having a separation meeting the requirements of paragraphs (1) and (2),
have a second separation after the period covered by the certification. Were
section 232(d) read literally, only the wages earned after that second separation
(the “most recent separation”), rather than all wages earned after the first
separation (the “most recent separation that meets the requirements of
paragraphs (1) and (2)”) , would “count” in determining whether the worker’s
new benefit year fell within the section permitting an election. The wages
earned after the second separation might have occurred too recently to be used in
establishing the second benefit year, and, in that event, that second benefit year
would not fall within section 232(d). The worker would be ineligible to elect
TRA over UI based upon the new benefit year. Thus, the Department’s
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interpretation will allow workers to elect TRA over UI based upon a new benefit
year in more situations.
The second point to note is that (in addition to the time period during which the
wages must be earned) the new benefit year must be based in whole or in part
upon “part-time or short-term employment.” In practice, a worker who
establishes a UI claim with a WBA that is less than the TRA benefit amount
would meet this test as the subsequent employment would not have been
suitable long term employment.
Significantly, the statute is silent as to what becomes of the UI claim based upon
the second benefit year, where the claimant elects to receive TRA instead. Thus,
State law applies to this UI claim. For States where that means a claim
establishes a benefit year, no subsequent claim may be established in a later
quarter during that benefit year, and any available entitlement remains,
consistent with State law, once TRA is exhausted. For States where claims may
be withdrawn if no benefits are paid, the worker might subsequently file a claim
in a later quarter, and the worker might potentially exercise the TRA option a
second time.
Often, the weekly amount of the UI payments in the second benefit period will
be a significant reduction from the weekly amount of TRA. If a worker
establishes a new UI benefit year based in whole or in part upon part-time or
short-term employment in which the worker engaged after the worker’s most
recent total separation from adversely affected employment (meeting the
conditions specified above), the State must provide the worker with the option to
elect to continue to receive TRA, if the worker is otherwise eligible. The CSA
must provide the worker an explanation of his/her benefit rights in writing, and
document the worker’s choice in the case management file.
C.5. Limitations on TRA
C.5.1 Prerequisite/Remedial TRA
Statutory Change: Sections 1823 and 1829 of the 2009 Amendments amend
Section 233(a)(2) of the 2002 Act to read:
(2) A trade readjustment allowance under paragraph (1) shall not be paid for any
week occurring after the close of the 104-week period (or, in the case of an adversely
affected worker who requires a program of prerequisite education or remedial education
(as described in section 236(a)(5)(D)) in order to complete training approved for the
worker under section 236, the 130-week period) that begins with the first week
following the week in which the adversely affected worker was most recently totally
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separated from adversely affected employment—
(A) within the period which is described in section 231(a)( 1), and
(B) with respect to which the worker meets the requirements of section 23 l(a)(2).
Administration: The 2009 Amendments added “prerequisite education” to
“remedial education” as an exception to the 104-week eligibility period for basic
TRA. Therefore, the eligibility period for basic TRA for workers requiring a
program of either prerequisite education or remedial education is 130 weeks.
Prerequisite education is coursework that the training institution requires for
entry into the approved training program. For instance, some nursing programs
may require additional math coursework that the worker may not have had in
high school to begin training in the new field. When required, this additional
coursework would qualify as “prerequisite education” and extend the weeks
during which basic TRA is potentially payable under this provision.
C.5.2 Additional TRA
Statutory Change: Section 1823 of the 2009 Amendments amends Section
233(a)(3) of the 2002 Act to read:
(3) Notwithstanding paragraph (I), in order to assist the adversely affected worker to
complete a training program approved for the worker under section 236, and in
accordance with regulations prescribed by the Secretary, payments may be made as trade
readjustment allowances for up to 78 additional weeks in the 91-week period that—
(A) follows the last week of entitlement to trade readjustment allowances otherwise
payable under this chapter; or
(B) begins with the first week of such training, if such training begins after the last
week described in subparagraph (A).
Payments for such additional weeks may be made only for weeks in such 91-week period
during which the individual is participating in such training.
Administration: Section 233(a)(3) allows workers participating in training to
receive additional TRA. The 2009 Amendments increase the number of weeks
for which a worker may receive additional TRA from 52 to 78. The eligibility
requirements for additional TRA remain unchanged except for the elimination of
the 210-day rule discussed in subparagraph C.5.3 below. This change provides
support for workers to participate in longer term training, such as a two-year
Associate’s degree, a nursing certification, or completion of a four year degree (if
that four-year degree was previously initiated or if the worker will complete it
using non-TAA funds).
The 2009 Act also expands the eligibility period within which a worker may
receive additional TRA from 52 weeks to 91 weeks to accommodate breaks in
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training. The expansion of the eligibility period allows the worker 91 weeks
during which to collect 78 weeks of benefits. Prior to this amendment, the
worker had a 52-consecutive week period during which to collect 52 weeks of
benefits. Any weeks not claimed were lost. This change allows the worker to not
claim benefits during up to 13 weeks without losing any weeks of benefits.
C.5.3 Elimination of 210-Day Requirement
Statutory Change: Section 1821 of the 2009 Amendments repeal Section 233(b) of
the 2002 Act, eliminating the 210-day time requirement for the submission of a
bona fide application for training as a condition of additional TRA.
Administration: There is no longer a requirement that a worker make a bona
fide application for training within the later of 210 days of certification or
separation. However, there are still deadlines for a worker to be enrolled in
approved training as a condition for the receipt of TRA. See section C.2 of these
operating instructions. Redesignated paragraphs 233(b) – (f) (covering
adjustments in amounts of TRA, payments of TRA while in on-the job training,
breaks in training and extension of time for remedial education) remain the same
as in the 2002 Act except that paragraph 233(f) adds prerequisite education,
discussed in Section C.5.1, above.
C.6 Special Rules for Calculating Separations
C.6.1 Judicial or Administrative Appeal
Statutory Change: Section 1824 of the 2009 Amendments amends Section 233 of
the 2002 Act by adding a new subsection (g), to read:
(g) SPECIAL RULE FOR CALCULATING SEPARATION.—Notwithstanding any
other provision of this chapter, any period during which a judicial or administrative
appeal is pending with respect to the denial by the Secretary of a petition under section
223 shall not be counted for purposes of calculating the period of separation under
subsection (a)(2).
Administration: As discussed above, Section 233(a)(2) establishes a 104-week
eligibility period (130 weeks for workers requiring prerequisite or remedial
education) for basic TRA. This period begins with the first week following the
week in which the worker was most recently totally separated from adversely
affected employment within the period covered by the certification and with
respect to which the worker meets certain tenure requirements in that
employment.
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This new section 233(g) tolls this eligibility period during a judicial or
administrative appeal of the Department’s denial of a certification. The tolling of
deadlines is necessary; otherwise a successful appeal might be meaningless since
all or most of the workers’ eligibility period might lapse by the time the
certification is granted.
In the event of a certification issued as a result of an appeal of a negative
determination denying certification, the 104-week (130-week as applicable)
eligibility period for basic TRA will begin with the week following the week in
which the group was certified. There is no need to adjust the enrollment
deadlines in such a circumstance because the applicable deadline will be 26
weeks after the certification is issued. Moreover, the enrollment deadlines may
be extended due to extenuating circumstances or State good cause rules as with
any other waivers.
C.6.2 Justifiable Cause to extend the Period
Statutory Change: Section 1824 of the 2009 Amendments amends Section 233 of
the 2002 Act by adding a new subsection (h), to read:
(h) SPECIAL RULE FOR JUSTIFIABLE CAUSE.—If the Secretary determines that
there is justifiable cause, the Secretary may extend the period during which trade
readjustment allowances are payable to an adversely affected worker under paragraphs
(2) and (3) of subsection (a) (but not the maximum amounts of such allowance that are
payable under this section).
Administration: As discussed above, Section 233(a)(2) of the 2002 Act
establishes a 104-week (130-week for workers requiring prerequisite or remedial
education) period beginning with a worker’s most recent total qualifying
separation during which the worker may receive basic TRA. Section 233(a)(3)
establishes a 91-week period during which a worker may receive additional
TRA. Section 233(h) is a new section allowing for an extension of these periods
for “justifiable cause,” meaning circumstances determined to be beyond the
worker’s control by the CSA. In making this determination, the CSA will apply
the State’s “good cause” law, regulations, policies and practices applicable to
administration of the State’s UI laws.
C.6.3 Military Service
Statutory Change: Section 1824 of the 2009 Amendments amends Section 233
of the 2002 Act by adding a new subsection (i), to read:
(i) SPECIAL RULE WITH RESPECT TO MILITARY SERVICE—
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(1) IN GENERAL.—Notwithstanding any other provision of this chapter, the Secretary
may waive any requirement of this chapter that the Secretary determines is necessary to
ensure that an adversely affected worker who is a member of a reserve component of the
Armed Forces and serves a period of duty described in paragraph (2) is eligible to
receive a trade readjustment allowance, training, and other benefits under this chapter
in the same manner and to the same extent as if the worker had not served the period of
duty.
(2) PERIOD OF DUTY DESCRIBED.—An adversely affected worker serves a period of
duty described in this paragraph if, before completing training under section 236, the
worker—
(A) serves on active duty for a period of more than 30 days under a call or order to
active duty of more than 30 days; or
(B) in the case of a member of the Army National Guard of the United States or Air
National Guard of the United States, performs full-time National Guard duty under
section 502(f) of title 32, United States Code, for 30 consecutive days or more when
authorized by the President or the Secretary of Defense for the purpose of responding
to a national emergency declared by the President and supported by Federal funds.
Administration: Under the 2002 Act, returning members of the Armed Forces
and National Guard units could sometimes be determined to be ineligible for
benefits if, for example, they missed the enrollment in training deadlines as a
condition of TRA eligibility, or if the plant at which they worked closed while
they were away on active duty. New section 233(i) makes returning service
members “whole,” as if the period of military service had not occurred. The
provision allows workers called up for active duty military or full-time National
Guard service to restart the TAA enrollment process after completion of military
service.
CSAs will need to apply this provision to any returning service member who
either: (1) served on active duty in the Armed Forces for a period of more than
30 days under a call or order to active duty of more than 30 days; or (2) in the
case of a member of the Army National Guard of the United States or Air
National Guard of the United States, performed full-time National Guard duty
under 32 U.S.C. 502(f) (regarding required drills and field exercises) for 30
consecutive days or more when authorized by the President or the Secretary of
Defense for the purpose of responding to a national emergency declared by the
President and supported by Federal funds. Under section 233(i)(2), this “make-
whole” provision applies only if the worker’s period of duty occurs before the
worker completes a training program approved under section 236. However, the
worker need not have already enrolled in or in fact have begun training before
the worker’s period of duty began for this provision to apply. Upon separation,
these individuals are eligible to receive TRA, training, and other benefits under
this chapter in the same manner and to the same extent as if the worker had not
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served the period of duty.
Accordingly, the CSAs will toll all deadlines for all TAA, ATAA, and RTAA
benefits and services, as well as TRA eligibility periods, during a service
member’s period of duty within the period described by section 233(i)(2), and
which occurs before the worker completes TAA-approved training. A CSA
must first consult with, and receive the Department’s permission, before waiving
any other TAA requirement under section 233(i).
C.7 Use of State Law Good Cause Provisions
Statutory Change: Section 1825 of the 2009 Amendments amends Section 234 of
the 2002 Act by adding a new subsection (b):
(b) SPECIAL RULE WITH RESPECT TO STATE LAWS AND REGULATIONS ON GOOD CAUSE
FOR WAIVER OF TIME LIMITS OR LATE FILING OF CLAIMS.—Any law, regulation, policy,
or practice of a cooperating State that allows for a waiver for good cause of any time
limitation relating to the administration of the State unemployment insurance law shall,
in the administration of the program under this chapter by the State, apply to any time
limitation with respect to an application for a trade readjustment allowance or enrollment
in training under this chapter.
Administration: New section 234(b) supersedes 20 CFR 617.50(d), providing in
part 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.” Accordingly, CSAs will
apply state UI “good cause” waiver provisions (laws, policies, or practices) to all
time limitations governing TRA and enrollment in training.
C.8 Waiver of Recovery of TRA Overpayment
Statutory Change: Section 1855 of the 2009 Amendments amends Section
243(a)(1) of the 2002 Act to read:
(a)(1) If a cooperating State agency, the Secretary, or a court of competent jurisdiction
determines that any person has received any payment under this chapter to which the
person was not entitled, including a payment referred to in subsection (b), such person
shall be liable to repay such amount to the State agency or the Secretary, as the case may
be, except that the State agency or the Secretary shall waive such repayment if such
agency or the Secretary determines that—
(A) the payment was made without fault on the part of such individual, and
(B) requiring such repayment would cause a financial hardship for the individual
(or the individual’s household, if applicable) when taking into consideration the
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income and resources reasonably available to the individual (or household) and other
ordinary living expenses of the individual (or household),
Administration: Section 243(a)(1) of the 2002 Act provided that a CSA “may
waive” repayment of any payment made in error where “the payment was made
without fault” on the worker’s part and where requiring repayment “would be
contrary to equity and good conscience. “ The 2009 Amendments retained the
requirement that “the payment was made without fault” on the worker’s part,
but amended that section to make waiver of repayment mandatory (“shall
waive”) where the worker’s financial circumstance meet specific criteria (as
opposed to the general standard of “contrary to equity and good conscience”) .
By making waiver mandatory where the worker meets specific criteria for waiver
(as long as the worker is not at fault), the 2009 Act supersedes 20 CFR
617.55(a)(2)(ii).
The new waiver criterion requires that recovery of the overpayment must be
waived if it would “cause a financial hardship for the individual (or the
individual’s household, if applicable), when taking into consideration the income
and resources reasonably available to the individual (or household) and other
ordinary living expenses of the individual (or household).” This standard is
more generous than the standard that 20 CFR 617.55(a)(2)(ii) establishes, which
requires the CSA to consider whether repayment of the overpayment would,
among other things, cause “extraordinary and lasting financial hardship . . . .”
Section 617.55(a)(2)(ii)(C)(1) defines that term as meaning that overpayment
recovery would “result directly” in the “loss of or inability to obtain minimal
necessities of food, medicine, and shelter for a substantial period of time” and
“may be expected to endure for the foreseeable future.” By including explicit
statutory waiver criteria in the 2009 Act, Congress intended that overpaid
individuals who are without fault and unable to repay their TAA overpayments
must be granted a reasonable opportunity for waivers of overpayments. The
Department is considering whether to provide further guidance on this new
standard prior to the completion of rulemaking.
D. TRAINING
D.1. Cap on Training Funds
Statutory Change: Section 1828 of the 2009 Amendments amends Section
236(a)(2)(A) of the 2002 Act to read:
(2)(A) The total amount of payments that may be made under paragraph (1) shall not
exceed—
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(i) for each of the fiscal years 2009 and 2010, $575,000,000; and
(ii) for the period beginning October 1, 2010, and ending December 31, 2010,
$143,750,000.
Administration: Section 236(a)(2)(A) limits the amount available to pay the costs
of approved training each year. The 2009 Amendments raise the amount from
the $220 million available each fiscal year since 2002, to $575 million for each of
fiscal years 2009 and 2010, and $143,750,000 for the first quarter of fiscal year
2011.
D.2. Pre-Separation Training
D.2.1 Adversely Affected Incumbent Workers Defined
Statutory Change: Section 1830 of the 2009 Amendments amends Section 247 of
the 2002Act by adding subsection (19), which reads:
(19) The term ‘adversely affected incumbent worker’ means a worker who—
(A) is a member of a group of workers who have been certified as eligible to apply for
adjustment assistance under subchapter A;
(B) has not been totally or partially separated from adversely affected employment;
and
(C) the Secretary determines, on an individual basis, is threatened with total or
partial separation.
Administration: As discussed in Section D.2.2 below, the 2009 Act provides that
training may be approved before separation for adversely affected incumbent
workers. This provision defines an adversely affected incumbent worker as a
worker who: (1) is a member of a group of workers that has been certified as
eligible to apply for TAA benefits, (2) has not been totally or partially separated
from employment and thus does not have a qualifying separation, and (3) is
determined to be individually threatened with total or partial separation. A CSA
may determine that a worker has been individually threatened with separation
when the worker has received a notice of termination or layoff from
employment. The CSA also may accept other documentation of a threat of total
or partial separation from the firm or other reliable source in making a
determination that a worker is an adversely affected incumbent worker entitled
to pre-separation training.
Section 617.4(d)(ii) of 20 CFR requires the CSA, upon notice of a certification, to
notify each worker covered by a TAA certification of program benefits as soon as
possible after the partial or total separation. A CSA satisfies this requirement by
obtaining from the firm, or other reliable source, the names and addresses of all
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workers who were or became totally or partially separated before the CSA
received the certification and within the certification period, as well as workers
subsequently separated during the certification period. Because of the statutory
expansion of the TAA training benefit to adversely affected incumbent workers,
the new Secretary/Governor Agreement requires the CSA to notify these
workers of their possible entitlement to TAA-training as soon as possible before
their partial or total separations. Thus, the CSA must identify, through the firm
or other reliable source, the names and addresses of all adversely affected
incumbent workers to permit the CSA to determine whether a worker is
individually threatened with separation. Accordingly, CSAs must request a
separate list of workers who are threatened with separation at the same time they
request the list of adversely affected workers from the employer.
D.2.2 Extension of Benefits to Adversely Affected Incumbent Workers
Statutory Change: Section 1830 of the 2009 Amendments amends Section 236(a)
of the Act by adding the phrase “or an adversely affected incumbent worker”
after “adversely affected worker,” in the criteria for the approval of training for
these two types of workers. In doing so, the 2009 Amendments extend to
“adversely affected incumbent workers” the same training benefits provided to
“adversely affected workers” under the Act, except as provided in Section
236(a)(10), which is discussed below in subparagraph E.2.3 of these Operating
Instructions.
Administration: This provision allows workers threatened with total or partial
separation from adversely affected employment to begin TAA-approved training
before the date of that separation. “Pre-layoff training” is not the same as
incumbent worker training programs allowable under Section 134(a)(3) of the
WIA, 29 U.S.C. 2864(a)(3). The goal of WIA incumbent worker training
programs is retraining the worker with new skills to allow the worker to
continue employment with an employer. TAA pre-separation training is
intended to allow earlier intervention where layoffs are planned in advance and
the employer can specifically identify which workers will be affected. Adversely
affected incumbent workers may begin training prior to layoff, thereby lessening
the amount of time needed to complete the training program after the separation
occurs, and lessening the worker’s overall length of unemployment.
The criteria and limitations for approval of training for adversely affected
incumbent workers are the same as they are for adversely affected workers,
except as discussed below in section D.2.3 of these Operating Instructions.
Adversely affected incumbent workers, like adversely affected workers, are
entitled to employment and case management services, as described in section G,
to ensure that they have the same assistance in developing a reemployment plan
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and choosing training.
D.2.3 Incumbent Worker Exclusions
Statutory Change: Section 1830 of the 2009 Amendments amends Section 236(a)
of the 2002 Act by adding paragraph (10):
(10) In the case of an adversely affected incumbent worker, the Secretary may not
approve—
(A) on-the-job training under paragraph (5)(A)(i); or
(B) customized training under paragraph (5)(A)(ii), unless such training is for a
position other than the worker’s adversely affected employment.
Administration: Pre-layoff training may not be approved if it consists of or
includes on-the-job training. Moreover, a CSA may not approve customized
training, meaning training that is designed to meet the special requirements of
one or more employers, for an adversely affected incumbent worker unless such
training is for a position other than the worker’s position in the adversely
affected employment. CSAs will need to ensure that the training being provided
is for a different position than the worker’s current position if the training is
being provided under agreement with the worker’s current employer. An
incumbent worker may receive pre-separation training for another position with
the worker’s current employer, but only if the position is not similarly threatened
by trade, i.e. the new position is outside of a subdivision with a trade-certified
worker group.
D.2.4 Loss of Threat to Separation
Statutory Change: Section 1830 of the 2009 Amendments amends Section 236(a)
of the 2002 Act to add paragraph (11):
(11) If the Secretary determines that an adversely affected incumbent worker for whom
the Secretary approved training under this section is no longer threatened with a total or
partial separation, the Secretary shall terminate the approval of such training.
Administration: CSAs must evaluate whether the threat of total or partial
separation continues to exist for the duration of the pre-layoff training. This can
be accomplished by verifying with the employer that the threat of separation still
exists before each subsequent portion of the training is funded. If the threat of
separation is removed during a training program, funding of the training must
cease. The worker would be eligible to complete any portion of the training
program where TAA funds have already been expended, but would not be
eligible for further TAA funding of the training program in the absence of a
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threatened or actual separation from the adversely affected employment. The
worker may resume the approved training program upon the resumption of the
threat or in the event of a total qualifying separation, if the six criteria for
approval of the training under Section 236(a)(1) are still met.
Section 617.22(f)(2) of 20 CFR permits a worker approval of one training program
per certification. A training program begun prior to separation counts as that
one training program, and the training plan should be designed to meet the long-
term needs of the worker based on the expectation that they will be laid off. The
training program should also take into account the availability of up to 156
weeks of training. Thus, while a pre-separation training program may be
resumed, a worker who has participated in pre-separation training will not be
eligible for a new and different training program.
D.3 Part-time Training
Statutory Change: Section 1830 of the 2009 Act amends Section 236 of the 2002
Act by adding subsection (h), which reads:
(h) PART-TIME TRAINING.—
(1) IN GENERAL.—The Secretary may approve full-time or part-time training for a
worker under subsection (a).
(2) LIMITATION.—Notwithstanding paragraph (1), a worker participating in part-
time training approved under subsection (a) may not receive a trade readjustment
allowance under section 231.
Administration: New subsection (h) allows workers to choose either part-time
or full-time training, although workers enrolled in part-time training are not
eligible for TRA. This amendment supersedes 20 CFR 617.22(f)(4), limiting
training to full-time programs. The training approval criteria at 20 CFR 617.22
(a) (1 - 6) that apply to the approval of full-time training also apply to the
approval of part-time training. Since part-time training will not be accompanied
by TRA, see Section D.5.1 of these Operating Instructions, which discusses a new
statutory provision (Section 236(a)(9)(B)(i)) permitting a CSA to approve training
for a period longer than the worker’s period of eligibility for TRA if the worker
demonstrates a financial ability to complete the training after the worker’s
eligibility period. Additionally, participation in part-time training can allow a
worker to participate in full-time work, even if that work is not suitable
employment, as defined at Section 236(e).
D.4 Length of Training
The Act does not include a specific limitation on the length of approvable
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training. However, 20 CFR 617.22(f)(2) limits the maximum length of approvable
training to 104 weeks (during which training is conducted) so that a training
program would not extend too far beyond the worker’s TRA. The 2002
amendments extended the maximum duration of TRA to 104 weeks for most
workers, but also added up to 26 weeks of TRA for workers requiring remedial
education, for a total potential of up to 130 weeks of income support.
Accordingly, TEGL No. 11-02 extended the maximum duration of approvable
training for workers who require remedial education to 130 weeks to match the
maximum duration of TRA availability.
As discussed in section C.5.2 of these Operating Instructions, the 2009 Act
provides up to 26 more weeks of additional TRA to workers for a potential total
of 130 weeks of income support for most workers, as well as up to 26 more weeks
for workers who require either remedial education or prerequisite training for a
total of up to 156 weeks of available income support. DOL interprets these
amendments as allowing approval of training for a maximum of 156 weeks
(during which training is conducted), consistent with the 156-week maximum
duration of income support. The 2009 Act also allows approval of training that
extends beyond the weeks of TRA available to the individual worker, as
explained in Section D.5.1 of these Operating Instructions. Most workers will not
have 156 or 130 weeks of income support available at the beginning of training;
rather most workers will have used some weeks of income support, such as 26
weeks or more of UI.
D.5 Approval of Training
The 2009 amendments left unchanged the six criteria for approval of training at
Section 236(a)(1)(A – F) of the 2002 Act. Accordingly, 20 CFR 617.22, describing
the administration of the training approval criteria, is still applicable, and will be
interpreted in the context of the 2009 Amendments, as elaborated upon in the
following sections of these Operating Instructions.
Section 236(a)(1) provides that if the CSA determines, with respect to an
adversely affected worker or an adversely affected incumbent worker, that:
(A) there is no suitable employment (which may include technical and
professional employment) available for an adversely affected worker,
(B) the worker would benefit from appropriate training,
(C) there is a reasonable expectation of employment following
completion of such training,
(D) 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
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the Vocational Education Act of 1963, and employers),
(E) the worker is qualified to undertake and complete such training, and
(F) such training is suitable for the worker and available at a reasonable
cost, the Secretary shall approve such training for the worker. Upon such
approval, the worker shall be entitled to have payment of the costs of such
training (subject to the limitations imposed by this section) paid on the
worker’s behalf by the Secretary directly or through a voucher system.
D.5.1 Qualifications to be Applied for Extended Training
Statutory Change: Section 1828 of the 2009 Amendments amends Section
236(a)(9)(B) of the 2002 Act by adding clause (i), which reads:
(B)(i) In determining under paragraph (1)(E) whether a worker is qualified to
undertake and complete training, the Secretary may approve training for a period longer
than the worker’s period of eligibility for trade readjustment allowances under part I if
the worker demonstrates a financial ability to complete the training after the expiration of
the worker’s period of eligibility for such trade readjustment allowances.
Administration: New Section 236(a)(9)(B)(i) provides that when determining
under Section 236(a)(1)(E) whether the worker is qualified to undertake and
complete training, the State may approve training for longer than the worker’s
period of TRA eligibility if the worker demonstrates the financial ability to
complete the training after the expiration of the TRA eligibility period. This
section mirrors 20 CRF 617.22(a)(5)(ii) and (iii), permitting training approval
where a worker’s personal or family resources are adequate to complete training.
This new section makes it possible for workers to have access to long-term
training such as a two-year Associate’s degree, a nursing certificate, or
completion of a four-year degree if that four-year degree was previously
initiated. States must not limit training approvals only to short-term programs,
and must, where the worker requests it, consider approval of training for longer
than the individual worker’s available remaining weeks of income support. For
example, delayed enrollment in training may result in the exhaustion of some
basic TRA when an adversely affected worker does not immediately enter
training due to job search activities. Training may be approved, provided that
the other training approval criteria are also met, for a period that is longer than
the period for which TRA is available if the worker demonstrates the financial
ability to support him/herself through the completion of the training. Financial
ability means the ability to pay living expenses while in TAA-approved training
after the period of TRA eligibility.
Training which will exceed the 156 maximum number of weeks currently
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allowed may not be paid for under the TAA program at this time. Consideration
will be given to expanding the approval to include longer term training approval
in the rule making process envisioned by the Department to implement the new
provisions of the 2009 Act.
D.5.2 Reasonable Cost
Statutory Change: Section 1828 of the 2009 Amendments also amends Section
236(a)(9)(B) of the 2002 Act to add clause (ii):
(ii) In determining the reasonable cost of training under paragraph (1)(F) with respect to
a worker, the Secretary may consider whether other public or private funds are
reasonably available to the worker, except that the Secretary may not require a worker to
obtain such funds as a condition of approval of training under paragraph (1).
Administration: Section 236(a)(9)(B) provides that when determining whether
the cost of training is reasonable, the CSA will consider whether other public or
private funds are available to the worker. This section ensures that training
programs that would otherwise not be approved under TAA due to costs may be
approved if a worker voluntarily commits to using public or private funds to pay
a portion of the costs of training. Private funds may include grants (with the
exception of certain student financial assistance, explained below), scholarships,
employer funding, or other sources available to the participant not requiring the
use of funds personal to the worker, relatives, or friends. Sections 617.22(h),
617.25(b)(1)(iii), and 617.25(b)(5)(ii) of 20 CFR prohibiting the use of funds
personal to the worker remain in effect until such time as they are amended
through notice and comment rulemaking. Further, a CSA may not require the
worker to obtain other funds as a condition for approval of training. If the
worker volunteers to use other funds to supplement the TAA training funds
when the cost of training is otherwise not reasonable, the training program will
be approved, if the other training approval criteria are met.
Significantly, a provision of the Higher Education Act of 1965, codified at 20
U.S.C. 1087uu, provides that “notwithstanding any other law,” certain types of
student financial assistance (Pell Grants, benefits under Supplemental
Educational Opportunity Grants, Federal educational loan programs,
Presidential Access Scholarships, Federal student work-study programs, and
Bureau of Indian Affairs Student Assistance) “shall not be taken into account in
determining the need or eligibility of any person for benefits or assistance, or the
amount of such benefits or assistance, under any Federal . . . program . . . .”
Therefore, a CSA may not consider the student financial assistance in
determining whether to approve training. This allows a worker to use student
financial assistance for living expenses instead of tuition and thus provides the
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worker income support during long-term training. However, the worker may
voluntarily choose to apply student financial assistance to the costs of training, if
the training would not be approved because the costs would otherwise be found
to be unreasonable.
Regarding the “reasonable cost” criterion for training approval, it should be
noted that the Department has not prohibited the limited use of “training caps”
on the amount of training costs a CSA considers reasonable. A CSA may
determine a maximum reasonable cost for training in the State, but only with a
mechanism for exceeding that maximum when that results in the most
reasonable and cost effective way of returning the trade affected worker to
sustainable employment. Beyond this, the CSA must ensure that any “caps”
developed are sufficient to cover the reasonable cost of suitable training for high
growth, demand, and green occupations in all localities to which those caps
apply.
Regulatory guidance for determining “reasonable cost” is found at 20 CFR Part
617.22(6). Specifically, the regulations dictate that, for the purpose of
determining reasonable costs of training, the CSA considers:
(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.
In approving training, CSAs must consider cost, suitability for the worker, and
quality and results. A CSA may approve a more expensive training program
that is of demonstrably higher quality or that may be expected to produce better
results for the worker in quickly returning to suitable employment.
D.5.3 Apprenticeship, Higher Education and WIA Programs
Statutory Change: Section 1829 of the 2009 Act amends Section 236(a)(5) of the
2002 Act to read as follows:
(5) Except as provided in paragraph (10), the training programs that may be approved
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under paragraph (I) include, but are not limited to—
(A)employer-based training, including—
(i) on-the-job training,
(ii) customized training, and
(iii) apprenticeship programs registered under the Act of August 16, 1937
(commonly known as the ‘National Apprenticeship Act’; 50 Stat. 664, chapter 663;
29 U.S.C. 50 et seq.),
(B) any training program provided by a State pursuant to Title I of the Workforce
Investment Act of 1998,
(C) any training program approved by a private industry council established under
section 102 of such Act,
(D) any program of remedial education,
(E) any program of prerequisite education or coursework required to enroll in
training that may be approved under this section,
(F) any training program (other than a training program described in paragraph (7))
for which all, or any portion, of the costs of training the worker are paid—
(i) under any Federal or State program other than this chapter, or
(ii) from any source other than this section,
(G) any other training program approved by the Secretary, and
(H) any training program or coursework at an accredited institution of higher
education (described in section 102 of the Higher Education Act of 1965 (20 U.S.C.
1002)), including a training program or coursework for the purpose of—
(i) obtaining a degree or certification; or
(ii) completing a degree or certification that the worker had previously begun at an
accredited institution of higher education.
The Secretary may not limit approval of a training program under paragraph (1) to a
program provided pursuant to title I of the Workforce Investment Act of 1998 (29 U.S.C.
2801 et seq.).
Administration: These provisions clarify that the TAA program can pay for
registered apprenticeship programs, any prerequisite education required to
enroll in training, and training at an accredited institution of higher education
including training to obtain or complete a degree or certificate program that
reasonably can be expected to result in employment.
Registered Apprenticeship programs offer workers employment and a
combination of on-the-job learning and related instruction. Since, in
apprenticeship programs, the employer pays all of the apprentice’s wages, the
on-the-job learning portion of apprenticeship training is not considered to be on-
the-job training as defined in Section 236(c). Apprentices are employed at the
start of their apprenticeship and work through a series of defined curricula until
the completion of their apprenticeship programs. The length of registered
apprenticeship programs varies depending on the specific occupation.
Adversely affected workers can access registered apprenticeship programs by
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contacting their State’s Registered Apprenticeship Office (Contact information is
available on-line at: http://www.doleta.gov/oa/sainformation.cfm).
TAA funds can be used to pay for the expenses associated with related
instruction (e.g., classroom and distance learning), tools, uniforms, equipment
and/or books for an adversely affected worker’s participation in a registered
apprenticeship program. These TAA funds can be used until the worker reaches
“suitable employment” (which is the purpose of training) or 156 weeks,
whichever comes first, while participating in the registered apprenticeship
program. Suitable employment as defined in Section 236 of the Act means work
of 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.
Additionally, because registered apprenticeship combines classroom instruction
with employment, adversely affected workers enrolled in a registered
apprenticeship program may not be able to access TRA income support due to
their income earned through wages. However, the use of the RTAA benefit as
described in Section H of these Operating Instructions may be an option for
adversely affected workers who are being trained and employed through a
registered apprenticeship program. In the case of registered apprenticeship, a
key factor for access to and use of RTAA funds are the wages for the workers’
past adversely affected employment, as compared to their current wages while
employed in a registered apprenticeship program as well as meeting the age
requirement of being age 50 or older.
Until the 2009 Act, the statute did not explicitly provide that TAA training funds
may be used to obtain a college or advanced degree although most States do use
the funds to assist workers to complete such degrees. The addition of Section
236(a)(5)(H) is intended to encourage CSAs to approve the use of training under
TAA to obtain a two-year certificate or degree, or to complete a four-year (or
more) degree that has been started and can be completed in a 156-week period.
The Department may consider this issue further in upcoming rulemaking.
Additionally, WIA-approved training is an approvable TAA training option.
However, the amendment of Section 236(a)(5) of the 2002 Act expressly provides
that training options available under the TAA program are not limited to
training programs available under Title I of WIA.
D.6 On-the-Job Training
Statutory Change: Section 1831 of the 2009 Amendments amends Section
236(c)(1) – (4) of the 2002 Act to read:
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(1) IN GENERAL.—The Secretary may approve on-the-job training for any adversely
affected worker if—
(A) the worker meets the requirements for training to be approved under subsection
(a)(1);
(B) the Secretary determines that on-the-job training—
(i) can reasonably be expected to lead to suitable employment with the employer
offering the on-the-job training;
(ii) is compatible with the skills of the worker;
(iii) includes a curriculum through which the worker will gain the knowledge or
skills to become proficient in the job for which the worker is being trained; and
(iv) can be measured by benchmarks that indicate that the worker is gaining such
knowledge or skills; and
(C) the State determines that the on-the-job training program meets the
requirements of clauses (iii) and (iv) of subparagraph (B).
(2) MONTHLY PAYMENTS.—The Secretary shall pay the costs of on-the-job training
approved under paragraph (1) in monthly installments.
(3) CONTRACTS FOR ON-THE-JOB TRAINING.—
(A) IN GENERAL.—The Secretary shall ensure, in entering into a contract with an
employer to provide on-the-job training to a worker under this subsection, that the
skill requirements of the job for which the worker is being trained, the academic and
occupational skill level of the worker, and the work experience of the worker are taken
into consideration.
(B) TERM OF CONTRACT.—Training under any such contract shall be limited to the
period of time required for the worker receiving on-the-job training to become
proficient in the job for which the worker is being trained, but shall not exceed 104
weeks in any case.
(4) EXCLUSION OF CERTAIN EMPLOYERS.—The Secretary shall not enter into a
contract for on-the-job training with an employer that exhibits a pattern of failing to
provide workers receiving on-the-job training from the employer with—
(A) continued, long-term employment as regular employees; and
(B) wages, benefits, and working conditions that are equivalent to the wages,
benefits, and working conditions provided to regular employees who have worked a
similar period of time and are doing the same type of work as workers receiving on-
the-job training from the employer.
Administration: CSAs may approve “on-the-job” training (OJT) for a worker
meeting the approval criteria of Section 236(a)(1), implemented at 20 CFR 617.22
(a), and the OJT criteria of Section 236(c)(1)(B).
Criterion (1) (Section 236(c)(1)(B)(i)) requires that the OJT can reasonably lead to
employment with the OJT employer. The 2002 Act removed this requirement
completely, but the 2009 Act reinstates it. However, approval should be
conditioned on whether the OJT can reasonably lead to employment with the
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OJT employer, and not that there is a guarantee of employment with the OJT
employer. Criterion (2) (Section 236(c)(1)(B)(ii)) requires that the OJT is
compatible with the worker’s skills. Criterion (3) (Section 236(c)(1)(B)(iii))
requires the OJT to allow the worker to become proficient in the job for which the
worker is being trained. Criterion (4) (Section 236(c)(1)(B)(iv)) requires the State
to be able to identify benchmarks or systematically evaluate whether the worker
is gaining knowledge or skills.
Under the 2009 Act, OJT is simply one of several training options for workers.
The 2009 Amendments repealed the requirement at Section 236(a)(1) that
“[i]nsofar as possible,” training be provided on the job.
Further, while the 2002 Act required payment for OJT to be made in equal
monthly installments, the 2009 Act requires only that payment be made on a
monthly basis. The 2009 Act expressly limits OJT contracts to no more than 104
weeks. Lastly, the 2009 Act also provides that employers that exhibit a pattern of
failing to provide workers with continued long-term employment, and adequate
wages, benefits and working conditions as regular employees are excluded from
OJT contracts.
D.7. UI and TAA Benefits while in Training
Statutory Change: Section 1832 of the 2009 Amendments amends Section 236(d)
of the 2002 Act to read:
(d) ELIGIBILITY.—An adversely affected worker may not be determined to be ineligible
or disqualified for unemployment insurance or program benefits under this subchapter—
(1) because the worker—
(A) is enrolled in training approved under subsection (a);
(B) left work—
(i) that was not suitable employment in order to enroll in such training; or
(ii) that the worker engaged in on a temporary basis during a break in such
training or a delay in the commencement of such training; or
(C) left on-the-job training not later than 30 days after commencing such training
because the training did not meet the requirements of subsection (c)(1)(B); or
(2) because of the application to any such week in training of the provisions of State
law or Federal unemployment insurance law relating to availability for work, active
search for work, or refusal to accept work.
Administration: The 2009 amendments codify the current regulations at 20 CFR
617.18 regarding disqualification of trainees from UI or TRA. In addition, the
2009 Amendments add two new circumstances under which a CSA may not
deny UC – because the worker left work that the worker engaged in on a
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temporary basis during a break in training or a delay in the commencement of
that training, and that the worker left OJT not later than 30 days after
commencing such training because the training did not meet the requirements of
Section 236(c)(1)(B). That section provides for the approval of OJT where the
CSA determines that it can reasonably be expected to lead to suitable
employment with the employer offering the OJT; is compatible with the skills of
the worker; includes a curriculum through which the worker will gain the
knowledge or skills to become proficient in the job for which the worker is being
trained; and can be measured by benchmarks that indicate that the worker is
gaining that knowledge or skills.
E. JOB SEARCH ALLOWANCES
Statutory Change: Section 1833 of the 2009 Amendments amends Section 237 of
the 2002 Act to read:
(a) JOB SEARCH ALLOWANCE AUTHORIZED.—
(1) IN GENERAL.—An adversely affected worker covered by a certification issued
under subchapter A of this chapter may file an application with the Secretary for
payment of a job search allowance.
(2) APPROVAL OF APPLICATIONS.—The Secretary may grant an allowance
pursuant to an application filed under paragraph (I) when all of the following apply:
(A) ASSIST ADVERSELY AFFECTED WORKER—The allowance is paid to assist
an adversely affected worker who has been totally separated in securing a job within
the United States.
(B) LOCAL EMPLOYMENT NOT AVALABLE.—The Secretary determines that the
worker cannot reasonably be expected to secure suitable employment in the
commuting area in which the worker resides.
(C) APPLICATION.—The worker has filed an application for the allowance with
the Secretary before—
(i) the later of—
(I) the 365th day after the date of the certification under which the worker is
certified as eligible; or
(II) the 365th day after the date of the worker’s last total separation; or
(ii) the date that is the 182nd day after the date on which the worker concluded
training.
(b) AMOUNT OF ALLOWANCE.—
(1) IN GENERAL.—An allowance granted under subsection (a) shall provide
reimbursement to the worker of all cost of necessary job search expenses as
prescribed by the Secretary in regulations.
(2) MAXIMUM ALLLOWANCE.—Reimbursement under this subsection may not
exceed $1,500 for any worker.
(3) ALLOWANCE FOR SUBSISTENCE AND TRANSPORTATION.—
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Reimbursement under this subsection may not be made for subsistence and
transportation expenses at levels exceeding those allowable under section 236(b) (1)
and (2).
(c) EXCEPTION.—Notwithstanding subsection (b), the Secretary shall reimburse any
adversely affected worker for necessary expenses incurred by the worker in participating
in a job search program approved by the Secretary.
Administration: The qualifying conditions for job search allowances are largely
unchanged.
The 2009 Amendments repeal the exception for workers who received a waiver
of the training requirement from the requirement to file a job search allowance
application within 182 day after the worker completes training. This exception
appears to have been meaningless, since it eliminates the deadline for workers
who enter training after the expiration or termination of a waiver, but requires
workers who enter training without ever having had a waiver to file an
application within 182 days after completing training. Accordingly, 20 CFR
617.31(c)(2) interpreted the 182-day application requirement as applying
regardless of whether the worker received a training waiver – and Congress
apparently concurred with the Department’s interpretation that the exception
was meaningless by repealing it.
The 2009 Act also raises the reimbursement amount for allowable job search
expenses from 90 percent to 100 percent of those expenses, and increases the
maximum amount payable to the worker from $1,250 to $1,500.
States must continue to administer job search allowances in accordance with 20
CFR part 617, subpart D, except that ”90 percent” in section 617.34(a) will be read
as “100 percent,” and “$800” (from a prior amendment to the Trade Act) in
section 617.34(b) will be read as “$1,500.”
F. RELOCATION ALLOWANCES
Statutory Change: Section 1833 of the 2009 Amendments amends Section 238 of
the 2002 Act to read:
(a) RELOCATION ALLOWANCE AUTHORIZED.—
(1) IN GENERAL.—Any adversely affected worker covered by a certification issued
under subchapter A of this chapter may file an application for a relocation allowance
with the Secretary, and the Secretary may grant the relocation allowance, subject to the
terms and conditions of this section.
(2) CONDTIONS FOR GRANTING ALLOWANCE.—A relocation allowance may be
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granted if all of the following terms and conditions are met:
(A) ASSIST AN ADVERSELY AFFECTED WORKER.—The relocation allowance
will assist an adversely affected worker in relocating within the United States.
(B) LOCAL EMPLOYMENT NOT AVAILABLE.—The Secretary determines that the
worker cannot reasonably be expected to secure suitable employment in the
commuting area in which the worker resides.
(C) TOTAL SEPARATION.—The worker is totally separated from employment at
the time relocation commences.
(D) SUITABLE EMPLOYMENT OBTAINED.—The worker—-
(i) has obtained suitable employment affording a reasonable expectation of long-
term duration in the area in which the worker wishes to relocate; or
(ii) has obtained a bona fide offer of such employment.
(E) APPLICATION.—The worker filed an application with the Secretary before
(i) the later of—
(I) the 425th day after the date of the certification under subchapter A of this
chapter; or
(II) the 425th day after the date of the worker’s last total separation; or
(ii) the date that is the 182d day after the date on which the worker concluded
training.
(b) AMOUNT OF ALLOWANCE— The relocation allowance granted to a worker
under subsection (a) includes—
(1) all reasonable and necessary expenses (including, but not limited to, subsistence
and transportation expenses at levels not exceeding those allowable under section
236(b) (1) and (2) specified in regulations prescribed by the Secretary), incurred in
transporting the worker, the worker’s family, and household effects; and
(2) a lump sum equivalent to 3 times the worker’s average weekly wage, up to a
maximum payment of $1,500.
(c) LIMITATION5.—A relocation allowance may not be granted to a worker unless—--
(1) the relocation occurs within 182 days after the filing of the application for
relocation assistance; or
(2) the relocation occurs within 182 days after the conclusion of training, if the
worker entered a training program approved by the Secretary under section 236(b) (1)
and (2).
Administration: The qualifying requirements for relocation allowances are
largely unchanged.
The 2009 Amendments repeals the exception for workers who received a waiver
of the training requirement from the requirement to file a relocation allowance
application within 182 day after the worker completes training. This exception
appears to be meaningless, since it eliminates the deadline for workers who enter
training after the expiration or termination of a waiver, but requires workers
who enter training without ever having had a waiver to file an application within
182 days after completing training. Accordingly, 20 CFR 617.31(c)(2) interpreted
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the 182-application requirement as applying regardless of whether the worker
received a training waiver – and Congress apparently concurred with the
Department’s interpretation that the exception was meaningless by repealing it.
The 2009 Act also raises the reimbursement amount for allowable relocation
expenses from 90 percent to 100 percent of those expenses, and increases the
maximum amount of the lump sum payment to the worker from $1,250 to $1,500.
States must continue to administer relocation allowances in accordance with 20
CFR part 617, subpart D, except that ”90 percent” in section 617.34(a) will be read
as “100 percent,” and “$800” (from a prior amendment to the Trade Act) in
section 617.34(b) will be read as “$1,500.”
G. EMPLOYMENT AND CASE MANAGEMENT SERVICES
G.1 Provision of Services
Statutory Change: Section 1826 of the 2009 Amendments amends Section 235 of
the 2002 Act to read:
SEC. 235. EMPLOYMENT AND CASE MANAGEMENT SERVICES.
The Secretary shall make available, directly or through agreements with States under
section 239, to adversely affected workers and adversely affected incumbent workers
covered by a certification under subchapter A of this chapter the following employment
and case management services:
(1) Comprehensive and specialized assessment of skill levels and service needs,
including through—
(A) diagnostic testing and use of other assessment tools; and
(B) in-depth interviewing and evaluation to identify employment barriers and
appropriate employment goals.
(2) Development of an individual employment plan to identify employment goals and
objectives, and appropriate training to achieve those goals and objectives.
(3) Information on training available in local and regional areas, information on
individual counseling to determine which training is suitable training, and information
on how to apply for such training.
(4) Information on how to apply for financial aid, including referring workers to
educational opportunity centers described in section 402F of the Higher Education Act
of 1965 (20 U.S.C. 1070a–16), where applicable, and notifying workers that the
workers may request financial aid administrators at institutions of higher education (as
defined in section 102 of such Act (20 U.S.C. 1002)) to use the administrators’
discretion under section 479A of such Act (20 U.S.C. 1087tt) to use current year
income data, rather than preceding year income data, for determining the amount of
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need of the workers for Federal financial assistance under title IV of such Act (20
U.S.C. 1070 et seq.).
(5) Short-term prevocational services, including development of learning skills,
communications skills, interviewing skills, punctuality, personal maintenance skills,
and professional conduct to prepare individuals for employment or training.
(6) Individual career counseling, including job search and placement counseling,
during the period in which the individual is receiving a trade adjustment allowance or
training under this chapter, and after receiving such training for purposes of job
placement.
(7) Provision of employment statistics information, including the provision of
accurate information relating to local, regional, and national labor market areas,
including—
(A) job vacancy listings in such labor market areas;
(B) information on jobs skills necessary to obtain jobs identified in job vacancy
listings described in subparagraph (A);
(C) information relating to local occupations that are in demand and earnings
potential of such occupations; and
(D) skills requirements for local occupations described in subparagraph (C).
(8) Information relating to the availability of supportive services, including services
relating to child care, transportation, dependent care, housing assistance, and need-
related payments that are necessary to enable an individual to participate in training.
Administration: The 2002 Act required CSAs to “make every reasonable effort”
to provide adversely affected workers the listed services through other
programs. The 2009 Act now requires that these services be offered to all
adversely affected workers and adversely affected incumbent workers. The
required services may be provided by staff funded by the new case management
funds authorized under the Act (discussed below), or by staff funded under
partner programs.
Co-enrollment or multiple-enrollment allows trade-affected workers to receive
supportive services that may assist in a quicker transition to work. It is vitally
important that States develop a goal, or informal deadline, for administering
assessment of workers in order to determine training and reemployment needs.
This will provide data for State officials to make a more accurate employability
determination and issue TAA waivers of training. Likewise, early assessment
will give case management staff the information necessary to advise, counsel,
and refer participants to the appropriate partner/training provider. Many States
have provided case management activities and related services in the past
through co-enrollment in other Federal programs (usually WIA and Wagner-
Peyser programs). The Department expects CSAs to continue this practice.
CSAs that have not fully used co-enrollment now have an opportunity to use
more integrated service strategies. Expertise in providing these services already
exists within the WIA and Wagner-Peyser programs.
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A CSA must offer workers each of the services set forth in Section 235. It must
demonstrate that it has provided or offered these services either in a paper-based
case file or in an electronic case management system, which must be available for
review. Additionally, the case management file of each participant must
demonstrate that the CSA notified each worker of his/her enrollment in training
deadlines.
The purpose of these employment and case management services is to provide
workers the necessary information and support for them to achieve sustainable
reemployment. Therefore, these services must be made available to workers
over the course of their participation in the TAA program, in an integrated
manner that suits their individual needs at a particular time. For example, skill
assessments must be geared towards evaluating whether the worker meets the
TAA training criteria or matches up to specific career opportunities in the
community. The individual employment plan must use and be guided by the
results of the skill assessments. The employment plan should, in turn, lead to
support for finding suitable employment and/or development of a training plan
that addresses any skill gaps made evident by the assessments, including
remedial or prerequisite training where appropriate. Career counseling and
labor market information must also inform the development of the employment
and training plans. Information on financial aid and supportive services must be
available as they are needed by the individual. Career counseling and other
informational resources must also be available after an individual completes
training, through his/her reemployment and exit from the TAA program.
CSAs should minimize the extent to which they establish new or stand alone
employment and case management structures for TAA program participants
where these services are available within the workforce development system.
Rather, CSAs should fully integrate TAA participants and resources into the
One-Stop Career Center system, thereby maximizing and enhancing existing
employment and case management structures. As stated in Section II.B of the
Governor-Secretary Agreement, “The State agrees that the TAA program is a
required partner in the comprehensive One-Stop system established under the
Workforce Investment Act of 1998 (WIA) (29 U.S.C. §§ 2801 et seq.) (see WIA
Section 121(b)(1)(B)(viii), 29 U.S.C. § 2841(b)(1)(B)(viii)). The State will ensure
integration of the TAA program into its One-Stop system and will comply with
all applicable laws, regulations, and policy guidance issued under the WIA. The
State will use One-Stop Career Centers as the main point of participant intake
and delivery of benefits and services.”
Early intervention services that include orientation; initial assessment of skill
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levels, aptitudes, and abilities; provision of labor market information; job search
assistance; and financial management workshops continue to be a priority for
workers in the TAA program. We encourage TAA staff to work with WIA staff
to align resources and develop clear plans for coordination.
G.2 Funding
Statutory Change: Section 1826 of the 2009 Amendments adds Section 235A to
the 2002 Act:
SEC. 235A. FUNDING FOR ADMINISTRATIVE EXPENSES AND
EMPLOYMENT AND CASE MANAGEMENT SERVICES.
(A) FUNDING FOR ADMINISTRATIVE EXPENSES AND EMPLOYMENT
AND CASE MANAGEMENT SERVICES.—
(1) IN GENERAL.—In addition to any funds made available to a State to carry out
section 236 for a fiscal year, the State shall receive for the fiscal year a payment in an
amount that is equal to 15 percent of the amount of such funds.
(2) USE OF FUNDS.—A State that receives a payment under paragraph (1) shall—
(A) use not more than 2/3 of such payment for the administration of the trade
adjustment assistance for workers program under this chapter, including for—
(i) processing waivers of training requirements under section 231;
(ii) collecting, validating, and reporting data required under this chapter; and
(iii) providing reemployment trade adjustment assistance under section 246; and
(B) use not less than 1/3 of such payment for employment and case management
services under section 235.
(b) ADDITIONAL FUNDING FOR EMPLOYMENT AND CASE MANAGEMENT
SERVICES.—
(1) IN GENERAL.—In addition to any funds made available to a State to carry out
section 236 and the payment under subsection (a)(1) for a fiscal year, the Secretary
shall provide to the State for the fiscal year a payment in the amount of $350,000.
(2) USE OF FUNDS.—A State that receives a payment under paragraph (1) shall use
such payment for the purpose of providing employment and case management services
under section 235.
(3) VOLUNTARY RETURN OF FUNDS.—A State that receives a payment under
paragraph (1) may decline or otherwise return such payment to the Secretary.
Administration: The 2009 Act provides two separate TAA program funding
sources for case management services, one under Section 235A(a) and the second
under Section 235A(b). Section 235A(a) provides funding for “administrative
expenses” and “case management services.” Section 235A(a)(2)(A) requires that
a CSA will “use not more than 2/3 of” these funds “for the administration of the
trade adjustment assistance for workers program,” and Section 235A(a)(2)(B)
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requires that it will “use not less than 1/3” of these funds “for employment and
case management services under section 235.”
In addition to staff costs for career counselors, the “employment and case
management services” funds may be used for: assessment tests; skills
transferability analysis; peer counselors; development and provision of labor
market information; maintenance and enhancement of electronic case
management systems to allow for improved case management services;
information on available training, including provider performance and cost
information; and, any other staff costs related to case management. This list is
not intended to be all inclusive.
With respect to the employment and case management funds, CSAs do not need
to maintain the 2/3 to 1/3 ratio on a regular basis. Instead, a determination of
whether the CSA has met this ratio requirement will be made during the grant
close out process upon expiration of the funds. At that time, expenditures on
administration in excess of 2/3 of the allotment for that fiscal year (meaning that
expenditures on employment and case management services were less than 1/3
of the allotment) will be considered disallowed costs.
The second source of funding for case management services, under Section
235A(b), is a payment “for the fiscal year . . . in the amount of $350,000.” The
2009 Act provides that States may decline or return these funds to the Secretary.
If a State chooses not to accept the $350,000 in employment and case
management services funds authorized for allotment to States under Section
235A(b) for the next fiscal year, the CSA should notify the Department, through
their appropriate ETA Regional Office, by August 15 of the prior fiscal year in
order to ensure that an allocation is not made. If a State receives these funds
through the allotment process, but decides to return them to DOL, States must
do so as soon as possible.
The employment and case management services funding provided for in this
section should be in addition to, and not offset, any funds that the CSA would
otherwise receive under WIA or any other program.
G.3 Coordination with WIA
Statutory Change: Section 1852 of the 2009 Amendments amends Section 239 of
the 2002 Act by redesignating subsection (f) as subsection (g) and adding to new
subsection (g) paragraphs (4) and (5), to read:
Each cooperating State agency shall, in carrying out subsection (a)(2)-
****
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(4) perform outreach to, intake of, and orientation for adversely affected workers and
adversely affected incumbent workers covered by a certification under subchapter A
with respect to assistance and benefits available under this chapter, and
(5) make employment and case management services described in section 235
available to adversely affected workers and adversely affected incumbent workers
covered by a certification under subchapter A and, if funds provided to carry out this
chapter are insufficient to make such services available, make arrangements to make
such services available through other Federal programs.
Administration: As required in the agreements between the Secretary of Labor
and the States under Section 239 of the Act, the CSAs must administer outreach,
intake, and orientation for adversely affected workers and make employment
and case management services as newly described in Section 235 available to
workers. If the TAA program funding sources for provision of employment and
case management services to workers in the TAA program are insufficient to
meet the requirement that these services be offered to all adversely affected
workers and adversely affected incumbent workers, the CSA must make
arrangements to assure that funding under the WIA or another program is
available to provide those services. Multiple enrollment resources may include
Wagner-Peyser activities, faith-based and community-based programs,
vocational rehabilitation services, and veterans’ programs.
H. REEMPLOYMENT TRADE ADJUSTMENT ASSISTANCE (RTAA)
H.1. Background
Statutory Change: Section 1841 of the 2009 Amendments amends Section
246(a)(1) of the 2002 Act to read:
(1) ESTABLISHMENT.—The Secretary shall establish a reemployment trade
adjustment assistance program that provides the benefits described in paragraph (2).
Administration: The 2009 Act establishes RTAA as a wage supplement option
available to older workers under the TAA program. RTAA replaces ATAA,
which provided wage supplements as an option for reemployed older workers
as a demonstration project under the 2002 Act. Rather than a demonstration
program, RTAA is permanent, and has the same expiration date as the rest of the
TAA program.
ATAA is extended and remains available to workers certified for ATAA under
petitions filed prior to May 18, 2009.
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RTAA builds on the basic structure of ATAA, with some important differences:
• The 26-week deadline for reemployment, running from the date of
separation from the adversely affected employment is eliminated. This
26-week period frequently began prior to certification, not allowing
enough time for workers to find new jobs after learning of their potential
eligibility for ATAA.
• A separate certification of group eligibility beyond the TAA certification is
no longer required. All certifications include eligibility to apply for
RTAA, as well as other TAA benefits.
• Workers opting to participate in the wage supplement program no longer
surrender their eligibility for TAA-approved training.
• RTAA may be paid to participants working part-time, if they are enrolled
in approved training.
• Workers may collect RTAA after a period of TRA. These changes to the
program should make the program more accessible and attractive to
workers by removing barriers that existed under ATAA.
• RTAA eligibility requires that the worker “is not employed at the firm
from which the worker was separated.” This is a more restrictive
requirement than ATAA imposes. That program required only that the
worker “does not return to the employment from which the worker was
separated,” which the Department interpreted as permitting the worker to
return to the separating firm in a different job.
• The maximum benefit that the worker may receive over the course of the
eligibility period is increased from $10,000 to $12,000.
• The limit on wages in eligible reemployment is increased from $50,000 to
$55,000.
• RTAA has a different eligibility period than ATAA.
Significantly, workers receiving RTAA may, like ATAA participants, be eligible
for the HCTC.
H.2. Group Eligibility
Statutory Change: Section 1841 of the 2009 Amendments amends Section
246(a)(3)(A) of the 2002 Act to read:
(A) IN GENERAL.—A group of workers certified under subchapter A as eligible for
adjustment assistance under subchapter A is eligible for benefits described in
paragraph (2) under the program established under paragraph (1).
Administration: The new RTAA program eliminates the separate group
eligibility requirements under the ATAA program and instead provides that
workers in a group certified as eligible to apply for TAA are also eligible to apply
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for RTAA.
H.3. Individual Eligibility
Statutory Change: Section 1841 of the 2009 Amendments amends Section
246(a)(3)(B) of the 2002 Act to read:
(B) INDIVIDUAL ELIGIBILITY.—A worker in a group of workers described in
subparagraph (A) may elect to receive benefits described in paragraph (2) under the
program established under paragraph (1) if the worker—
(i) is at least 50 years of age;
(ii) earns not more than $55,000 each year in wages from reemployment;
(iii)(I) is employed on a full-time basis as defined by the law of the State in which the
worker is employed and is not enrolled in a training program approved under section
236; or
(II) is employed at least 20 hours per week and is enrolled in a training program
approved under section 236; and
(iv) is not employed at the firm from which the worker was separated.
Administration: The RTAA program has several differences in individual
eligibility from the ATAA program. It eliminates the requirement that the
worker obtain full-time employment within 26 weeks of separation from
adversely affected employment, increases the maximum an individual may earn
in reemployment from $50,000 to $55,000, and is not limited to workers
employed full-time, but allows workers employed at least 20 hours per week,
and enrolled in approved training, to qualify.
To be eligible for RTAA, an individual must meet the following conditions at the
time of reemployment:
1. Be at least age 50 at time of reemployment. The individual’s age can be
verified with a driver’s license or other appropriate documentation.
2. Must not be expected to earn more than $55,000 annually in gross wages,
excluding overtime pay, from the reemployment. If a paycheck has not
been issued at the time of application, the employer must submit a
supporting statement documenting the worker’s annual wages.
3. Reemployment:
a. Be reemployed full-time as defined by the State law where the worker
is employed and not enrolled in a TAA-approved training program. If
there is no State law addressing the definition of full-time
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employment, the State must issue a definition of full-time employment
for RTAA purposes. The CSA will verify reemployment in the same
manner as it uses for ATAA eligibility; or
b. Be reemployed less than full-time, but at least 20 hours a week, and be
enrolled in a TAA-approved training program. Similar to the
requirement that TRA benefits may only be paid when enrolled in a
full time training program, eligibility for RTAA benefits based on part-
time employment and participation in training requires enrollment in a
full time training program as well. This requirement helps ensure that
workers will not exhaust their limited RTAA benefit before returning
to full-time employment, which is the true goal of the TAA program.
The verification will be conducted in the same manner as is used for
verifying employment for ATAA eligibility and for verifying
participation in training.
4. The worker cannot return to employment at the “firm” from which the
worker was separated. However, the 2009 Act defines “firm” as either
the entire firm or the appropriate subdivision. Accordingly, this
requirement means that, if the certification is issued for a worker group in
an appropriate subdivision of a firm, the worker may not return to
employment with that subdivision, but may return to work at another
subdivision of the firm. If, however, the certification is issued for workers
in the entire firm, the worker may not return to employment in any
subdivision of that firm.
As with ATAA, the CSA will issue a written determination on an RTAA
application within 5 working days of its receipt. If approved, the CSA will also
notify the appropriate State payment unit and other appropriate component
offices within the State. The RTAA applicant has the right to appeal a State
determination which denies RTAA benefits in the same manner as provided for
in State UI law for all TAA determinations.
Where a worker seeks to establish RTAA eligibility based upon more than one
job, the employment hours will be combined in order to determine whether the
worker has the number of hours needed to qualify for RTAA. If the worker
obtains additional job(s), the wages from this employment will be included in the
calculation to determine whether the worker is expected to reach the $55,000
annual limit for reemployment wages.
Qualifying employment that was commenced prior to separation from adversely
affected employment may be considered RTAA qualifying employment.
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H.4. Eligibility Period
Statutory Change: Section 1841 of the 2009 Act amends Section 246(a)(4) of the
2002 Act to read:
(4) ELIGIBILITY PERIOD FOR PAYMENTS.—
(A) WORKER WHO HAS NOT RECEIVED TRADE READJUSTMENT ALLOWANCE.—In the
case of a worker described in paragraph (3)(B) who has not received a trade
readjustment allowance under part I of subchapter B pursuant to the certification
described in paragraph (3)(A), the worker may receive benefits described in paragraph
(2) for a period not to exceed 2 years beginning on the earlier of—
(i) the date on which the worker exhausts all rights to unemployment insurance
based on the separation of the worker from the adversely affected employment that is
the basis of the certification; or
(ii) the date on which the worker obtains reemployment described in paragraph
(3)(B).
(B) WORKER WHO HAS RECEIVED TRADE READJUSTMENT ALLOWANCE.—In the case of
a worker described in paragraph (3)(B) who has received a trade readjustment
allowance under part I of subchapter B pursuant to the certification described in
paragraph (3)(A), the worker may receive benefits described in paragraph (2) for a
period of 104 weeks beginning on the date on which the worker obtains reemployment
described in paragraph (3)(B), reduced by the total number of weeks for which the
worker received such trade readjustment allowance.
Administration: The eligibility periods for RTAA are different than those under
ATAA. The 2009 Act provides two separate eligibility periods, the first for
workers who have not received TRA, and the second for workers who have
received TRA.
The eligibility period for workers who have not received TRA is a two-year
period beginning the earlier of “the date on which the worker exhausts all rights
to unemployment insurance based on the separation of the worker from the
adversely affected employment that is the basis of the certification,” or
reemployment. Section 247(12) defines “unemployment insurance” as “the
unemployment compensation payable to an individual under any State law or
Federal unemployment compensation law,” which includes EUC.
The statutory phrase “worker exhausts all rights to unemployment insurance
based on the separation of the worker from . . . adversely affected employment . .
. ” requires some interpretation. The first point to make is that a worker may
have more than one separation from adversely affected employment. Where
there is more than one such separation, the relevant separation is the worker’s
last separation from adversely affected employment that qualifies the worker as
an adversely affected worker. The Department chose the last separation because
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that separation is the one that triggers the worker’s application for RTAA. Under
20 CFR 617.3(c), a separation that qualifies a worker as an adversely affected
worker is a lack-of-work separation from adversely affected employment.
Accordingly, the CSA must determine the worker’s last separation for lack of
work from adversely affected employment before the RTAA application. This
principle applies only to the determination of the eligibility period, and does not
apply to the calculation of RTAA payments.
Further, a separation may trigger a benefit year, occur during a benefit year, or
not result in any entitlement to UI. If the worker’s last separation from adversely
affected employment, which qualifies the worker as an adversely affected
worker, either triggers a benefit year or occurs within a benefit year, the
eligibility period will begin (if earlier than the reemployment) when the worker
exhausts that UI eligibility, either by collecting all benefits available on the
benefit year or by the expiration of the benefit year. If the worker has no UI
entitlement for his/her last separation from adversely affected employment that
qualifies him/her as an adversely affected worker, then the two-year period
begins on the date on which the worker obtains reemployment.
The eligibility period for a worker who has not received TRA is the two year
period (generally 104-weeks) beginning with the date of reemployment, reduced
by the number of weeks the worker received TRA. For example, if a worker
received 52 weeks of TRA, the eligibility period would be reduced to 52 weeks
beginning on the date of reemployment.
The individual’s application for RTAA must be filed within the applicable
eligibility period as described above. As with ATAA, retroactive payment may
be made where appropriate.
H.5. Total Amount of Payments
Statutory Change: Section 1841 of the 2009 Act amends Section 246(a)(5) of the
2002 Act to read:
(5) TOTAL AMOUNT OF PAYMENTS.—
(A) IN GENERAL.—The payments described in paragraph (2)(A) made to a worker
may not exceed—
(i) $12,000 per worker during the eligibility period under paragraph (4)(A); or
(ii) the amount described in subparagraph (B) per worker during the eligibility
period under paragraph (4)(B).
(B) AMOUNT DESCRIBED.—The amount described in this subparagraph is the amount
equal to the product of—
(i) $12,000, and
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(ii) the ratio of—
(I) the total number of weeks in the eligibility period under paragraph (4)(B) with
respect to the worker, to
(II) 104 weeks.
Administration: The total amount of payments that may be made to workers
under RTAA is different than under ATAA. The 2009 Act provides two separate
calculations of the maximum amount of payments that may be made to a worker,
the first for workers who have not received TRA, and the second for workers
who have received TRA.
Workers who have not received TRA may receive a maximum of $12,000 during
the eligibility period described in Section J.4 of the Operating Instructions. This
is an increase of $2,000 over the maximum amount of ATAA available to an
adversely affected worker.
Workers who have received TRA may receive an amount equal to the product of
$12,000 and the ratio of the number of weeks in the eligibility period described in
Section J.4 above and 104. For example, the calculation for a worker who
received 52 weeks of TRA and therefore has a 52-week eligibility period would
be as follows:
Factors
x Weeks of TRA
y Eligibility Period
z $12,000 Maximum RTAA Benefit
Ratio
x / y = Ratio
Formula
(x / y) * z = RTAA Benefit
Example
(52/104) * $12,000 = $6,000
H.6. Continuing Eligibility
The structure and procedures established for verification of continuing eligibility
under the ATAA program remain in place for the RTAA program, except where
noted otherwise. Once approved for the RTAA program, individuals who
continue to meet the eligibility criteria are paid RTAA benefits until they reach
the end of the eligibility period or the maximum total amount of payments
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whichever occurs first.
Nothing in the statute precludes an individual from working for different
employers within this eligibility period. Further, employment is not required to
be consecutive. However, as with ATAA, RTAA benefits are not payable during
periods of unemployment, but payment is allowable when the worker is on
employer allowed release time, such as sick leave. Changes in employment that
do not encompass a period of unemployment will be handled during the State’s
ongoing review of each worker’s RTAA status, as described below. In the event
of a period of unemployment, workers will need to complete a new Individual
Application for RTAA upon reemployment. The worker would be eligible for
the remaining RTAA benefits to which he/she is entitled. The eligibility period
continues to run from the date of UI exhaustion or reemployment.
Workers applying for RTAA will need to visit a One-Stop Career Center in
person to provide information and establish initial individual eligibility for
RTAA. The CSA will need to assess each RTAA claimant’s continuing eligibility
for RTAA. Whether RTAA entitlement is received on the basis of part-time (at
least 20 hours) or full-time employment, the CSA must verify the worker’s
employment and wage status on at least a monthly basis. If the worker is
employed part-time (at least 20 hours per week) and receiving RTAA while in
TAA-approved training, the CSA must, on a monthly basis, verify participation
in the training.
RTAA payments stop in the event of any one of the following:
• The worker’s annualized wages from reemployment are projected to
exceed $55,000 in a year.
• The worker no longer meets the reemployment requirement through
either full-time work or a combination of TAA-approved training and
at least 20 hours of work. (But, see the caveat in the second paragraph
below.)
• The worker has received the maximum amount of RTAA.
• The worker has reached the end of the RTAA eligibility period.
It is the CSA’s responsibility, when calculating the RTAA payment, to annualize
the recipient’s wages on a monthly basis to assure that the recipient’s annual
wages do not exceed $55,000. Annual wage calculations include all jobs in which
the worker is employed.
As explained above, a worker may qualify for RTAA where the worker is
working part-time, provided the worker is enrolled in training. A worker will be
excused from the training requirement for any week for which s/he has
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“justifiable cause,” as defined at 20 CFR 617.18(b)(2), for failing to begin or
ceasing participation in training. If the worker has justifiable cause for failing to
participate in training for a week, but is working at least 20 hours per week,
RTAA is payable for that week if the worker is otherwise eligible. If the worker
fails to participate in training for a week without justifiable cause, the worker is
ineligible for RTAA for that week.
H.7. RTAA Payments
Statutory Changes:
Section 1841 of the 2009 Amendments amends Section 246(a)(2) of the Act to
read:
(2) BENEFITS.
(A) PAYMENTS—A State shall use the funds provided to the State under section
241 to pay, for the eligibility period under subparagraph (A) or (B) of paragraph (4)
(as the case may be), to a worker described in paragraph (3)(B), 50 percent of the
difference between—
(i) the wages received by the worker at the time of separation; and
(ii) the wages received by the worker from reemployment.
It also amends Section 246(a)(6) of the Act to read:
(6) CALCULATION OF AMOUNT OF PAYMENTS FOR CERTAIN
WORKERS.—
(A) IN GENERAL.—In the case of a worker described in paragraph (3)(B)(iii)(II) [a
worker employed at least 20 hours per week an enrolled in training], paragraph (2)(A)
[the RTAA benefit amount calculation] shall be applied by substituting the percentage
described in subparagraph (B) for ‘50 percent’.
(B) PERCENTAGE DESCRIBED.—The percentage described in this subparagraph
is the percentage—
(i) equal to 1⁄2 of the ratio of—
(I) the number of weekly hours of employment of the worker referred to in
paragraph (3)(B)(iii)(II), to
(II) the number of weekly hours of employment of the worker at the time of
separation, but
(ii) in no case more than 50 percent.
Administration: The 2009 Act slightly rewords the benefit calculation found in
Section 246(a)(2)(A), but does not change the basic structure of providing 50
percent of the difference between the wages the worker received from the
adversely affected employer at the time of separation and the wages the worker
receives in new employment for workers who are employed on a full-time basis.
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For workers who meet the reemployment requirement described in Section H.3.
of the Operating Instructions through a combination of TAA-approved training
and at least 20 hours of work, the RTAA benefit calculation is based on a
percentage of the difference between the wages the worker received from the
adversely affected employer at the time of separation and the wages the worker
receives in new employment. The percentage is based on the number of hours
worked in new employment as compared to the adversely affected employment.
This calculation is illustrated below and in sections H.7.1 and H.7.2.
As with ATAA, in order to establish the RTAA payment, wages at separation are
defined as the annualized hourly rate at the time of the most recent separation.
Wages at reemployment are defined as the annualized hourly rate at the time of
reemployment. Annualized wages at separation are defined as the annualized
hourly rate at the time of the most recent qualifying separation. In the case of a
worker who had a partial separation, as defined in 20 CFR 617.3 (cc), that
resulted in a reduction of the worker’s wage and/or hours, the calculation
should be based on the wages and/or hours immediately before the partial
separation went into effect. The annualized wages are computed by multiplying
the worker’s hourly rate received during the last full week of his/her
employment by the number of hours the individual worked during the last full
week of employment and multiplying that number by 52. Overtime wages and
hours are excluded from the calculation. Annualized wages at reemployment
are defined similarly to annualized wages at separation, except that the hourly
rate and hours worked must reflect those of the first full week of reemployment.
RTAA may be paid on a weekly, biweekly, or other payment frequency not to
exceed monthly, as established by the CSA, ensuring that the total payment does
not exceed the $12,000 maximum or a period of two-years.
For example, the calculation of a monthly allotment would be derived in one of
the two following methods as appropriate:
Wage Calculation Methodology
Factors
Factors
o Annualized Old Wages (also Annualized Separation Wages)
n Annualized New Wages (also Annualized Reemployment Wages)
Variable percentage based on reduced Hours Per Week
h
h = (current hours per week /old hours per week)
Annualized Old Wages (o): Annualized wages are computed by
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multiplying the worker’s hourly rate during the last full week of his/her
employment by the number of hours the worker worked during the last
full week of employment and multiplying that number by 52:
(hourly rate * hours worked) * 52
Annualized New Wages (n): Annualized wages at reemployment are
defined similarly to annualized wages at separation, except that the
hourly rate and hours worked must reflect those of the first full week of
reemployment: (hourly rate * hours worked) * 52
Variable Percentage (h): This variable equals the quotient of the worker’s
current hours per week divided by the worker’s hours per week at the
time of separation.
H.7.1 Wage Calculation Formulas
Calculation for Full-Time Employment: Annualized Separation Wages
minus Annualized Reemployment Wages multiplied by .50 equals 50
percent of the difference between the two periods of wages. Fifty percent of
the difference between the two periods of wages divided by 12 equals the
monthly RTAA wage subsidy.
Monthly (o – n) * .50
Benefit Equals 12
Calculation for Part-time Employment: Annualized Separation Wages
minus Annualized Reemployment Wages multiplied by h (the variable
percentage based on reduced hours for part-time Annualized Reemployment
Wages). Fifty percent of the difference between the two periods of wages
divided by 12 equals the monthly RTAA wage subsidy.
Monthly ((o – n) * h * .50)
Benefit Equals 12
To determine the weekly annualized benefit amount change 12 to 52, or to
determine the bi-weekly annualized benefit amount change 12 to 26.
H.7.2 Wage Calculation Examples:
RTAA participant was working 40 hour per week with annualized separation
wage of $50,000 per year. The participant obtained full-time employment
making $20,000 per year.
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o = $50K n = $20K
Option 1- Full-Time Employment
Monthly ($50K – $20K) * .50
= $1250 Per Month
Benefit Equals 12
Option 2 – Part-Time Employment
RTAA participant was working 40 hour per week with annualized separation
wage of $50,000 per year. The participant obtained part-time employment of
20 hours per week making $20,000 per year.
o = $50K n = $20K h = (20/40)
Monthly ($50K – $20K) * (20/40) * .50
= $625 Per Month
Benefit Equals 12
If, as a result of the monthly verification exercise, the participant’s hourly wage
and/or hours are determined to have changed in such a way as to affect the
RTAA wage supplement, the CSA will repeat the above calculation and adjust
the RTAA payment accordingly.
H.8. Overpayments:
As with ATAA, the determination of “annualized wages” is made prospectively.
An individual meets the “earns not more than $55,000 a year in wages from
reemployment” requirement in Section 246 for a given month if the monthly
determination of annualized wages is accurate and complete at the time it is
made. Absent fraud, no overpayment determinations will be made for that
month based on projections for the yearly annual wage that later changed based
on information that was not available at the time that the monthly determination
was made. Monthly payments derived from the annualized wage projection
based on complete and accurate information at the time are valid payments that
the individual was entitled to, and are not overpayments.
H.9. Other Program Benefits
Statutory Changes:
Section 1841 of the 2009 Amendments amends Section 246(a)(2)(B)-(C) of the 2002
Act to read:
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(B) HEALTH INSURANCE.—A worker described in paragraph (3)(B) participating
in the program established under paragraph (1) is eligible to receive, for the
eligibility period under subparagraph (A) or (B) of paragraph (4) (as the case may
be), a credit for health insurance costs under section 35 of the Internal Revenue Code
of 1986.
(C) TRAINING AND OTHER SERVICES.—A worker described in paragraph (3)(B)
participating in the program established under paragraph (1) is eligible to receive
training approved under section 236 and employment and case management services
under section 235.
Section 1841 of the 2009 Amendments also amends Section 246(a)(7) of the 2002
Act to read:
(7) LIMITATION ON OTHER BENEFITS.—A worker described in paragraph
(3)(B) may not receive a trade readjustment allowance under part I of subchapter B
pursuant to the certification described in paragraph (3)(A) during any week for which
the worker receives a payment described in paragraph (2)(A).
Administration: An individual receiving RTAA may also receive TAA training,
employment and case management services, HCTC, and job search and
relocation allowances under certain conditions.
As with ATAA, once a worker elects RTAA, the worker cannot return to TRA.
Under the 2009 Act, a means is provided for a worker to move from TRA to
RTAA, by authorizing a method of computing an available balance when that
move occurs, but does not provide a means for a worker to move from RTAA
back to TRA.
With respect to HCTC, the CSA must report RTAA recipients (workers who are
receiving RTAA) to the Internal Revenue Service (IRS) in the manner described
in UIPL No. 24-03, dated April 14, 2003 and UIPL No. 21-09, dated April 3, 2009.
H.10. Documentation of Benefit History
The Department requires that each CSA maintain a manual or automated benefit
history for each RTAA recipient for a period of no less than three years for audit
purposes. The three years begins from the most recent determination of
eligibility, benefits paid or appeal decisions – whichever is later. The information
required in that benefit history is the same as that required for ATAA.
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I. STATE OPERATIONS
I.1. Alien Verification
Statutory Change: Section 1853 of the 2009 Amendments amends Section 239 of
the 2002 Act by adding subsection (k), which reads:
(k) VERIFICATION OF ELIGIBILITY FOR PROGRAM BENEFITS.—
(1) IN GENERAL.—An agreement under this subchapter shall provide that the State
shall periodically redetermine that a worker receiving benefits under this subchapter
who is not a citizen or national of the United States remains in a satisfactory
immigration status. Once satisfactory immigration status has been initially verified
through the immigration status verification system described in section 1137(d) of the
Social Security Act (42 U.S.C. 1320b-7(d)) for purposes of establishing a worker’s
eligibility for unemployment compensation, the State shall reverify the worker’s
immigration status if the documentation provided during initial verification will expire
during the period in which that worker is potentially eligible to receive benefits under
this subchapter. The State shall conduct such redetermination in a timely manner,
utilizing the immigration status verification system described in section 1137(d) of the
Social Security Act (42 U.S.C. 1320b-7(d)).
(2) PROCEDURES.—The Secretary shall establish procedures to ensure the uniform
application by the States of the requirements of this subsection.
Administration: All states are required, under section1137(d) of the Social
Security Act (42 U.S.C. 1320b-7(d)), to initially verify the immigration status of
self-reporting aliens who apply for UI through the Systematic Alien Verification
for Entitlement (SAVE) program maintained by the U.S. Customs and
Immigration Service (USCIS, formerly Immigration and Naturalization Service).
Under section 1137(d)(2), an alien is required to provide an alien registration
document with an alien registration number, or provide “such other documents
as the State determines constitutes reasonable evidence indicating a satisfactory
immigration status.” If there is a match that verifies the individual’s
documentation, SAVE returns information that the alien is in satisfactory
immigration status, and provides an expiration date, if there is one, for that
status.
To meet this requirement, the State must have a system for alerting the staff
responsible for processing applications to the expiration of satisfactory
immigration status during the time the individual is potentially eligible for
benefits. This may be done by modifying case management systems for TAA
recipients to track the immigration status of a worker receiving TAA who is not a
citizen or national of the United States. It is important to note that this
requirement applies to all benefits under the TAA program, and not just TRA
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benefits.
Section 239(k) of the 2009 Act requires that States re-verify an individual’s
immigration status if the documentation provided by the individual during
initial verification will expire during the period in which that worker is
potentially eligible to receive Trade benefits. The re-verification of satisfactory
immigration status must be conducted in a timely manner, and in the same
manner used for initial verification.
To the extent States have in place, and use, a system for alerting the staff
responsible for processing applications to the expiration of satisfactory
immigration status during the time the individual is potentially eligible for
benefits, no further action is required unless the alien’s satisfactory immigration
status expires. Additionally, one of the six conditions for approval of training is
that there be “a reasonable expectation of employment following completion of .
. . training.” Where a worker is not in a satisfactory immigration status, there is
no such reasonable expectation. Therefore, a training program is not approvable
if the individual is not eligible at the time of application for work at least one day
following completion of training.
I.2. Control Measures
Statutory Change: Section 1852 of the 2009 Amendments amends Section 239 of
the 2002 Act to add subsection (i), which reads:
(i) CONTROL MEASURES.—
(1) IN GENERAL.—The Secretary shall require each cooperating State and cooperating
State agency to implement effective control measures and to effectively oversee the
operation and administration of the trade adjustment assistance program under this
chapter, including by means of monitoring the operation of control measures to
improve the accuracy and timeliness of the data being collected and reported.
(2) DEFINITION.—For purposes of paragraph (1), the term ‘control measures’ means
measures that—
(A) are internal to a system used by a State to collect data; and
(B) are designed to ensure the accuracy and verifiability of such data.
Administration: This new section requires CSAs to implement control measures
to effectively oversee the operation and administration of the TAA program and
to improve the timeliness of reported data, as well as verifying the accuracy of
such data. In addition, CSAs must monitor on a regular basis the administration
of the TAA program and its various components, including TRA, training
services, RTAA, job search and relocation, and employment and case
management services.
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To comply with this new provision, the CSA must adopt a formal monitoring
program that reviews a sample of worker files to ensure effective and efficient
operation and administration of the program. The monitoring program must be
designed to identify best practices, process deficiencies, and training needs. Case
files reviewed must include files for workers certified under both the 2002
amendments and the 2009 amendments. A minimum quarterly random sample
of 20 cases should be audited and must include at least two certifications. The
four quarterly samples within a calendar year should also cover at least four
different areas of the State administering the program. If circumstances
preclude a CSA from meeting these criteria, the CSA should contact the ETA
Regional Office to design a monitoring program that better suits the TAA
program in that State, and is sufficient to ensure the accuracy and verifiability of
such data.
I.3. Data Reporting
Statutory Change: Section 1852 of the 2009 Amendments amends Section 239 of
the Act to add subsection (j), which reads:
(j) DATA REPORTING.—
(1) IN GENERAL.—Any agreement entered into under this section shall require the
cooperating State or cooperating State agency to report to the Secretary on a quarterly
basis comprehensive performance accountability data, to consist of—
(A) the core indicators of performance described in paragraph (2)(A);
(B) the additional indicators of performance described in paragraph (2)(B), if any;
and
(C) a description of efforts made to improve outcomes for workers under the trade
adjustment assistance program.
(2) CORE INDICATORS DESCRIBED.—
(A) IN GENERAL.—The core indicators of performance described in this paragraph
are—
(i) the percentage of workers receiving benefits under this chapter who are
employed during the second calendar quarter following the calendar quarter in
which the workers cease receiving such benefits;
(ii) the percentage of such workers who are employed in each of the third and
fourth calendar quarters following the calendar quarter in which the workers cease
receiving such benefits; and
(iii) the earnings of such workers in each of the third and fourth calendar quarters
following the calendar quarter in which the workers cease receiving such benefits.
(B) ADDITIONAL INDICATORS.—The Secretary and a cooperating State or
cooperating State agency may agree upon additional indicators of performance for the
trade adjustment assistance program under this chapter, as appropriate.
(3) STANDARDS WITH RESPECT TO RELIABILITY OF DATA.—In preparing the quarterly
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report required by paragraph (1), each cooperating State or cooperating State agency
shall establish procedures that are consistent with guidelines to be issued by the
Secretary to ensure that the data reported are valid and reliable.
Administration: This new section establishes statutory core indicators and
outcome reporting requirements for TAA participants, including an Entered
Employment measure, two Retained Employment measures and an Average
Earnings measure. Outcome data is required on a quarterly basis as part of the
overall effort to improve the TAA program, its performance and worker
outcomes. The Secretary and States may agree upon additional measures,
although no new measures are planned at this time. States also must submit a
description of efforts made to improve outcomes for workers.
Some of the outcome data required by Section 239(j) of the 2009 Act is collected
on current reports while other data may be new or may be collected in different
formats than those currently in place. Although the new reporting requirements
under Section 239(j) are similar to the Common Measures currently reported on
the Trade Act Participant Report (TAPR) (OMB 1205-0392). Section 239(j)
requires CSAs to report additional information beyond that reported on the
TAPR.
Therefore, on or before August 17, 2009, the Department expects to transmit new
reporting forms to the States and issue detailed guidance on the new reporting
requirements imposed on States under the 2009 Act. CSAs are required to
continue to submit the TAPR (OMB Control No. 1205-0932) in accordance with
TEGL No. 11-00, the ETA-563 Quarterly Participant Report (OMB Control No.
1205-0459) in accordance with TEGL 23-06, and the Alternative Trade
Adjustment Assistance Activities Report (ATAAAR) (OMB Control No. 1205-
0459) in accordance with TEGL No. 01-06, until the Department has issued
superseding forms and guidance.
I.4. Program Reporting Requirements
Statutory Change: Section 1854 of the 2009 Amendments amends the Act by
adding Section 249B:
SEC. 249B. COLLECTION AND PUBLICATION OF DATA AND REPORTS;
INFORMATION TO WORKERS.
(a) IN GENERAL.—Not later than 180 days after the date of the enactment of this
section, the Secretary shall implement a system to collect and report the data described in
subsection (b), as well as any other information that the Secretary considers appropriate
to effectively carry out this chapter.
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(b) DATA TO BE INCLUDED.—The system required under subsection (a) shall include
collection of and reporting on the following data for each fiscal year:
(1) DATA ON PETITIONS FILED, CERTIFIED, AND DENIED.—
(A) The number of petitions filed, certified, and denied under this chapter.
(B) The number of workers covered by petitions filed, certified, and denied.
(C) The number of petitions, classified by—
(i) the basis for certification, including increased imports, shifts in production,
and other bases of eligibility; and
(ii) congressional district of the United States.
(D) The average time for processing such petitions.
(2) DATA ON BENEFITS RECEIVED.—
(A) The number of workers receiving benefits under this chapter.
(B) The number of workers receiving each type of benefit, including training, trade
readjustment allowances, employment and case management services, and relocation
and job search allowances, and, to the extent feasible, credits for health insurance
costs under section 35 of the Internal Revenue Code of 1986.
(C) The average time during which such workers receive each such type of benefit.
(3) DATA ON TRAINING.—
(A) The number of workers enrolled in training approved under section 236,
classified by major types of training, including classroom training, training through
distance learning, on-the-job training, and customized training.
(B) The number of workers enrolled in full-time training and part-time training.
(C) The average duration of training.
(D) The number of training waivers granted under section 231(c), classified by type
of waiver.
(E) The number of workers who complete training and the duration of such
training.
(F) The number of workers who do not complete training.
(4) DATA ON OUTCOMES.—
(A) A summary of the quarterly reports required under section 239(j).
(B) The sectors in which workers are employed after receiving benefits under this
chapter.
(5) DATA ON RAPID RESPONSE ACTIVITIES.—Whether rapid response activities were
provided with respect to each petition filed under section 221.
(c) CLASSIFICATION OF DATA.—To the extent possible, in collecting and reporting the
data described in subsection (b), the Secretary shall classify the data by industry, State,
and national totals.
(d) REPORT.—Not later than December 15 of each year, the Secretary shall submit to
the Committee on Finance of the Senate and the Committee on Ways and Means of the
House of Representatives a report that includes—
(1) a summary of the information collected under this section for the preceding fiscal
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year;
(2) information on the distribution of funds to each State pursuant to section
236(a)(2); and
(3) any recommendations of the Secretary with respect to changes in eligibility
requirements, benefits, or training funding under this chapter based on the data
collected under this section.
(e) AVAILABILITY OF DATA.—
(1) IN GENERAL.—The Secretary shall make available to the public, by publishing on
the website of the Department of Labor and by other means, as appropriate—
(A) the report required under subsection (d);
(B) the data collected under this section, in a searchable format; and
(C) a list of cooperating States and cooperating State agencies that failed to submit
to the data required by this section to the Secretary in a timely manner.
(2) UPDATES.—The Secretary shall update the data under paragraph (1) on a
quarterly basis.
Administration: The new reporting requirements for data required under
Section 249B are effective 180 days after the date of the Act. Since quarterly data
are required, and reporting a split quarter would not be consistent with
legislative direction, new reporting requirements will be in effect for the Quarter
beginning October 1, 2009 (the first quarter of fiscal year 2010).
The new data elements required under Section 249B, as well as existing data
elements collected on current reports, may be required to be collected in different
formats than those currently in place in order to accommodate new reporting
requirements. Therefore, on or before August 17, 2009, the Department expects
to transmit new reporting forms to the States and issue detailed guidance on the
new reporting requirements imposed on States under the 2009 Act. States are
required to continue to submit the TAPR (OMB Control No. 1205-0932) in
accordance with TEGL No. 11-00, the ETA-563 Quarterly Participant Report
(OMB Control No. 1205-0459) in accordance with TEGL No. 23-06, and the
ATAAAR (OMB Control No. 1205-0459) in accordance with TEGL No. 01-06,
until the Department issues superseding forms and guidance.
J. HEALTH COVERAGE TAX CREDIT
Statutory Change: Sections 1899A and 1899B of the 2009 Amendments, relating
to the HCTC, amended Sections 35(a) and 7527(b) of the Internal Revenue Code
of 1986 by adding a new section, Section 7527(e), to provide for 80 percent
reimbursement of health insurance costs during the period from March 2009
through December 2010, to provide for certain retroactive payments, and also to
reduce the amount of any such payment by the amount of any National
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Emergency Grant (NEG) payments to the taxpayer. Section 1899C of the 2009
Amendments amended the definition of an “eligible TAA recipient” to provide
the HCTC during breaks in approved training and where, under defined
circumstances, a worker is not in approved training. Section 1899K of the 2009
Act extends the use of NEGs under Section 173(f) of the WIA to cover HCTC
advance payments, outreach, and infrastructure changes.
Administration: The Internal Revenue Service administers the HCTC, which
helps “eligible TAA recipients” and “eligible alternative TAA recipients” and
other eligible individuals and their families pay their health insurance premiums.
“Eligible alternative TAA recipients” includes ATAA recipients and RTAA
recipients.
The new definition of an “eligible TAA recipient” as amended continues to be
defined as an individual who receives Trade Readjustment Allowances (TRA) for
any day of a month (and the next subsequent month) or who will receive TRA
but for the fact that s/he has not exhausted unemployment compensation (UC)
entitlement, and is potentially eligible for HCTC for that month. Under the 2009
Act, an eligible TAA recipient also includes:
1. an individual who is in a break in approved training that exceeds 30 days,
and the break falls within the period for receiving TRA provided under
the Section 233 of the Trade Act; or,
2. who is receiving UC for any day of such month and would be eligible to
receive TRA (except that s/he has not exhausted UC) for such month,
without regard to the enrollment in training requirements.
These amendments have the effect of expanding HCTC eligibility, under some
conditions, to an individual who is in an extended break in training, or who is
still receiving UI benefits under regular or extended programs even though they
are not yet enrolled in training. Accordingly, CSAs will need to ensure that they
review each case individually before determining HCTC eligibility for trade
affected workers.
CSAs should also be aware that these amendments provide, through December,
2010, for the continuation of HCTC to certain family members of eligible
recipients after eligibility would have ended due to receipt of Medicare, death, or
divorce of the principle recipient. The CSA has no role in the administration of
this extension, which is the responsibility of the IRS, however the CSA needs to
be aware of this provision. This expanded eligibility is available for up to 24
additional months and permits eligible family members to continue to claim the
HCTC credit after eligibility would otherwise have expired.
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UIPL No. 21-09 provides guidance on applying the expanded definition of
“eligible TAA recipient.” Additional information on the HCTC program is
available on the IRS website at: www.irs.gov.
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ATTACHMENT B
Attachment B is an unofficial version of Chapter 2 and sections of Chapter 5 of
Title II of The Trade Act of 1974, Public Law 93-618, as amended. This document
was prepared by the U.S. Department of Labor to include amendments to the
Trade Act made by the Trade and Globalization Adjustment Assistance Act of
2009 (Division B, Title I, Subtitle I of the American Recovery and Reinvestment
Act of 2009, Public Law 111-5).
THE TRADE ACT OF 1974
Public Law 93-618, as amended by Public Law 96-417, Public Law 97-35, Public
Law 98-120, Public Law 98-369, Public Law 99-107, Public Law 99-I 55, Public
Law 99-181, Public Law 99-189, Public Law 99-272, Public Law 100-418. Public
Law 100-647, Public Law 101- 382, Public Law 102-318, Public Law 103-66, and
Public Law 103-182, Public Law 105-220, Public Law 105-277, Public Law 106-36,
Public Law 106-113, Public Law 107-210, Public Law 108-249, and Public Law
111-5.
CHAPTER 2—TRADE ASSISTANCE FOR WORKERS
Subchapter A—Petitions and Determinations
SEC. 221. PETITIONS. [19 U.S.C. § 2271]
(a) Filing of petitions; assistance; publication of notice
(1) A petition for certification of eligibility to apply for adjustment assistance for
a group of workers under this chapter may be filed simultaneously with the
Secretary of Labor and with the Governor of the State in which such workers’
firm (as defined in section 247) is located by any of the following:
(A) The group of workers.
(B) The certified or recognized union or other duly authorized representative of
such workers.
(C) Employers of such workers, one-stop operators or one-stop partners (as
defined in section 101 of the Workforce Investment Act of 1998 (29 U.S.C. §
2801)), including State employment security agencies, or the State dislocated
worker unit established under title I of such Act, on behalf of such workers.
B-1
(2) Upon receipt of a petition filed under paragraph (1), the Governor shall
(A) ensure that rapid response activities and appropriate core and intensive
services (as described in section 134 of the Workforce Investment Act of 1998
(29 U.S.C. § 2864)) authorized under other Federal laws are made available to
the workers covered by the petition to the extent authorized under such laws;
and
(B) assist the Secretary in the review of the petition by verifying such
information and providing such other assistance as the Secretary may request.
(3) Upon receipt of the petition, the Secretary shall promptly publish notice in the
Federal Register and on the website of the Department of Labor that the
Secretary has received the petition and initiated an investigation.
(b) Hearing
If the petitioner, or any other person found by the Secretary to have a substantial
interest in the proceedings, submits not later than 10 days after the date of the
Secretary’s publication under subsection (a) of this section a request for a
hearing, the Secretary shall provide for a public hearing and afford such
interested persons an opportunity to be present, to produce evidence, and to be
heard.
SEC. 222. GROUP ELIGIBILITY REQUIREMENTS. [19 U.S.C. § 2272]
(a) In general
A group of workers shall be certified by the Secretary as eligible to apply for
adjustment assistance under this chapter pursuant to a petition filed under
section 221 if the Secretary determines that--
(1) a significant number or proportion of the workers in such workers’ firm
have become totally or partially separated, or are threatened to become totally
or partially separated; and
(2)(A)(i) the sales or production, or both, of such firm have decreased
absolutely;
(ii)(I) imports of articles or services like or directly competitive with articles
produced or services supplied by such firm have increased;
(II) imports of articles like or directly competitive with articles--
B-2
(aa) into which one or more component parts produced by such firm are
directly incorporated, or
(bb) which are produced directly using services supplied by such firm,
have increased; or
(III) imports of articles directly incorporating one or more component parts
produced outside the United States that are like or directly competitive with
imports of articles incorporating one or more component parts produced by
such firm have increased; and
(iii) the increase in imports described in clause (ii) contributed importantly to
such workers’ separation or threat of separation and to the decline in the sales
or production of such firm; or
(B)(i)(I) there has been a shift by such workers’ firm to a foreign country in the
production of articles or the supply of services like or directly competitive with
articles which are produced or services which are supplied by such firm; or
(II) such workers’ firm has acquired from a foreign country articles or services
that are like or directly competitive with articles which are produced or
services which are supplied by such firm; and
(ii) the shift described in clause (i)(I) or the acquisition of articles or services
described in clause (i)(II) contributed importantly to such workers’ separation
or threat of separation.
(b) Adversely affected workers in public agencies
A group of workers in a public agency shall be certified by the Secretary as
eligible to apply for adjustment assistance under this chapter pursuant to a
petition filed under section 221 if the Secretary determines that--
(1) a significant number or proportion of the workers in the public agency have
become totally or partially separated, or are threatened to become totally or
partially separated;
(2) the public agency has acquired from a foreign country services like or
directly competitive with services which are supplied by such agency; and
(3) the acquisition of services described in paragraph (2) contributed
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importantly to such workers’ separation or threat of separation.
(c) Adversely affected secondary workers
A group of workers shall be certified by the Secretary as eligible to apply for
trade adjustment assistance benefits under this chapter pursuant to a petition
filed under section 221 if the Secretary determines that--
(1) a significant number or proportion of the workers in the workers’ firm or an
appropriate subdivision of the firm have become totally or partially separated,
or are threatened to become totally or partially separated;
(2) the workers’ firm is a supplier or downstream producer to a firm that
employed a group of workers who received a certification of eligibility under
subsection (a) of this section, and such supply or production is related to the
article or service that was the basis for such certification (as defined in
subsection (d) (3) and (4) of this section); and
(3) either--
(A) the workers’ firm is a supplier and the component parts it supplied to the
firm described in paragraph (2) accounted for at least 20 percent of the
production or sales of the workers’ firm; or
(B) a loss of business by the workers’ firm with the firm described in
paragraph (2) contributed importantly to the workers’ separation or threat of
separation determined under paragraph (1).
(d) Definitions
For purposes of this section--
(1) The term “contributed importantly” means a cause which is important but
not necessarily more important than any other cause.
(2)(A) Any firm that engages in exploration or drilling for oil or natural gas
shall be considered to be a firm producing oil or natural gas.
(B) Any firm that engages in exploration or drilling for oil or natural gas, or
otherwise produces oil or natural gas, shall be considered to be producing
articles directly competitive with imports of oil and with imports of natural
gas.
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(3) Downstream producer
(A) In general
The term “downstream producer” means a firm that performs additional,
value-added production processes or services directly for another firm for
articles or services with respect to which a group of workers in such other
firm has been certified under subsection (a).
(B) Value-added production processes or services
For purposes of subparagraph (A), value-added production processes or
services include final assembly, finishing, testing, packaging, or maintenance
or transportation services.
(4) Supplier
The term “supplier” means a firm that produces and supplies directly to
another firm component parts for articles, or services, used in the production of
articles or in the supply of services, as the case may be, that were the basis for a
certification of eligibility under subsection (a) of this section of a group of
workers employed by such other firm.
(5) Reference to firm
For purposes of subsection (a), the term “firm” does not include a public
agency.
(e) Basis for Secretary’s determinations
(1) In general
The Secretary shall, in determining whether to certify a group of workers under
section 223, obtain from the workers’ firm, or a customer of the workers’ firm,
information the Secretary determines to be necessary to make the certification,
through questionnaires and in such other manner as the Secretary determines
appropriate.
(2) Additional information
The Secretary may seek additional information to determine whether to certify
a group of workers under subsection (a), (b), or (c)--
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(A) By contacting
(i) officials or employees of the workers’ firm;
(ii) officials of customers of the workers’ firm;
(iii) officials of certified or recognized unions or other duly authorized
representatives of the group of workers; or
(iv) one-stop operators or one-stop partners (as defined in section 101 of the
Workforce Investment Act of 1998 (29 U.S.C. § 2801)); or
(B) by using other available sources of information.
(3) Verification of information
(A) Certification
The Secretary shall require a firm or customer to certify--
(i) all information obtained under paragraph (1) from the firm or customer
(as the case may be) through questionnaires; and
(ii) all other information obtained under paragraph (1) from the firm or
customer (as the case may be) on which the Secretary relies in making a
determination under section 223, unless the Secretary has a reasonable basis
for determining that such information is accurate and complete without
being certified.
(B) Use of subpoenas
The Secretary shall require the workers’ firm or a customer of the workers’
firm to provide information requested by the Secretary under paragraph (1)
by subpoena pursuant to section 249 if the firm or customer (as the case may
be) fails to provide the information within 20 days after the date of the
Secretary’s request, unless the firm or customer (as the case may be)
demonstrates to the satisfaction of the Secretary that the firm or customer (as
the case may be) will provide the information within a reasonable period of
time.
(C) Protection of confidential information
The Secretary may not release information obtained under paragraph (1) that
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the Secretary considers to be confidential business information unless the
firm or customer (as the case may be) submitting the confidential business
information had notice, at the time of submission, that the information would
be released by the Secretary, or the firm or customer (as the case may be)
subsequently consents to the release of the information. Nothing in this
subparagraph shall be construed to prohibit the Secretary from providing
such confidential business information to a court in camera or to another
party under a protective order issued by a court.
(f) Firms identified by the International Trade Commission
Notwithstanding any other provision of this chapter, a group of workers covered
by a petition filed under section 221 shall be certified under subsection (a) as
eligible to apply for adjustment assistance under this chapter if--
(1) the workers’ firm is publicly identified by name by the International Trade
Commission as a member of a domestic industry in an investigation resulting
in--
(A) an affirmative determination of serious injury or threat thereof under
section 202(b)(1);
(B) an affirmative determination of market disruption or threat thereof under
section 421(b)(1); or
(C) an affirmative final determination of material injury or threat thereof
under section 705(b)(1)(A) or 735(b)(1) of the Tarriff Act of 1930 (19 U.S.C. §§
1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the one-year period beginning on the date on
which--
(A) a summary of the report submitted to the President by the International
Trade Commission under section 202(f)(1) with respect to the affirmative
determination described in paragraph (1)(A) is published in the Federal
Register under section 202(f)(3); or
(B) notice of an affirmative determination described in subparagraph (B) or
(C) of paragraph (1) is published in the Federal Register; and
(3) the workers have become totally or partially separated from the workers’
firm within--
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(A) the one-year period described in paragraph (2); or
(B) notwithstanding section 223(b), the one-year period preceding the one-
year period described in paragraph (2).
SEC. 223. DETERMINATIONS BY SECRETARY OF LABOR. [19 U.S.C. §
2273]
(a) Certification of eligibility
As soon as possible after the date on which a petition is filed under section 221,
but in any event not later than 40 days after that date, the Secretary shall
determine whether the petitioning group meets the requirements of section 222
and shall issue a certification of eligibility to apply for assistance under this
subchapter covering workers in any group which meets such requirements. Each
certification shall specify the date on which the total or partial separation began
or threatened to begin.
(b) Workers covered by certification
A certification under this section shall not apply to any worker whose last total
or partial separation from the firm before the worker’s application under section
231 occurred more than one year before the date of the petition on which such
certification was granted.
(c) Publication of determination in Federal Register
Upon reaching a determination on a petition, the Secretary shall promptly
publish a summary of the determination in the Federal Register and on the
website of the Department of Labor, together with the Secretary’s reasons for
making such determination.
(d) Termination of certification
Whenever the Secretary determines, with respect to any certification of eligibility
of the workers of a firm, that total or partial separations from such firm are no
longer attributable to the conditions specified in section 222, the Secretary shall
terminate such certification and promptly have notice of such termination
published in the Federal Register and on the website of the Department of Labor,
together with the Secretary’s reasons for making such determination. Such
termination shall apply only with respect to total or partial separations occurring
after the termination date specified by the Secretary.
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(e) Standards for investigations and determinations
(1) In general
The Secretary shall establish standards, including data requirements, for
investigations of petitions filed under section 221 and criteria for making
determinations under subsection (a).
(2) Consultations
Not less than 90 days before issuing a final rule with respect to the standards
required under paragraph (1), the Secretary shall consult with the Committee
on Finance of the Senate and the Committee on Ways and Means of the House
of Representatives with respect to such rule.
SEC. 224. STUDY AND NOTIFICATIONS REGARDING CERTAIN
AFFIRMATIVE DETERMINATIONS; INDUSTRY NOTIFICATION OF
ASSISTANCE. [19 U.S.C. § 2274]
(a) Subject matter of study
Study of domestic industry--Whenever the International Trade Commission
(hereafter referred to in this chapter as the “Commission”) begins an
investigation under section 202 with respect to an industry, the Commission shall
immediately notify the Secretary of such investigation, and the Secretary shall
immediately begin a study of--
(1) the number of workers in the domestic industry producing the like or
directly competitive article who have been or are likely to be certified as
eligible for adjustment assistance, and
(2) the extent to which the adjustment of such workers to the import
competition may be facilitated through the use of existing programs.
(b) Report; publication
Report by the Secretary--The report of the Secretary of the study under
subsection (a) of this section shall be made to the President not later than 15 days
after the day on which the Commission makes its report under section 202(f).
Upon making his report to the President, the Secretary shall also promptly make
it public (with the exception of information which the Secretary determines to be
confidential) and shall have a summary of it published in the Federal Register
and on the website of the Department of Labor.
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(c) Notifications following affirmative global safeguard determinations
Upon making an affirmative determination under section 202(b), the
Commission shall promptly notify the Secretary of Labor and the Secretary of
Commerce and, in the case of a determination with respect to an agricultural
commodity, the Secretary of Agriculture, of the determination.
(d) Notifications following affirmative bilateral or plurilateral safeguard
determinations
(1) Notifications of determinations of market disruption
Upon making an affirmative determination under section 221(b)(1), the
Commission shall promptly notify the Secretary of Labor and the Secretary of
Commerce and, in the case of a determination with respect to an agricultural
commodity, the Secretary of Agriculture, of the determination.
(2) Notifications regarding trade agreement safeguards
Upon making an affirmative determination in a proceeding initiated under an
applicable safeguard provision (other than a provision described in paragraph
(3)) that is enacted to implement a trade agreement to which the United States
is a party, the Commission shall promptly notify the Secretary of Labor and the
Secretary of Commerce and, in the case of a determination with respect to an
agricultural commodity, the Secretary of Agriculture, of the determination.
(3) Notifications regarding textile and apparel safeguards
Upon making an affirmative determination in a proceeding initiated under any
safeguard provision relating to textile and apparel articles that is enacted to
implement a trade agreement to which the United States is a party, the
President shall promptly notify the Secretary of Labor and the Secretary of
Commerce of the determination.
(e) Notifications following certain affirmative determinations under subtitle IV of
chapter 4 of this title
Upon making an affirmative determination under section 705(b)(1)(A) or
735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. §§ 1671d(b)(1)(A) and
1673d(b)(1)(A)), the Commission shall promptly notify the Secretary of Labor
and the Secretary of Commerce and, in the case of a determination with respect
to an agricultural commodity, the Secretary of Agriculture, of the determination.
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(f) Industry notification of assistance
Upon receiving a notification of a determination under subsection (c), (d), or (e)
with respect to a domestic industry--
(1) the Secretary of Labor shall--
(A) notify the representatives of the domestic industry affected by the
determination, firms publicly identified by name during the course of the
proceeding relating to the determination, and any certified or recognized
union or, to the extent practicable, other duly authorized representative of
workers employed by such representatives of the domestic industry, of--
(i) the allowances, training, employment services, and other benefits
available under this chapter;
(ii) the manner in which to file a petition and apply for such benefits; and
(iii) the availability of assistance in filing such petitions;
(B) notify the Governor of each State in which one or more firms in the
industry described in subparagraph (A) are located of the Commission’s
determination and the identity of the firms; and
(C) upon request, provide any assistance that is necessary to file a petition
under section 221;
(2) the Secretary of Commerce shall--
(A) notify the representatives of the domestic industry affected by the
determination and any firms publicly identified by name during the course of
the proceeding relating to the determination of--
(i) the benefits available under chapter 3 of this subchapter;
(ii) the manner in which to file a petition and apply for such benefits; and
(iii) the availability of assistance in filing such petitions; and
(B) upon request, provide any assistance that is necessary to file a petition
under section 251; and
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(3) in the case of an affirmative determination based upon imports of an
agricultural commodity, the Secretary of Agriculture shall--
(A) notify representatives of the domestic industry affected by the
determination and any agricultural commodity producers publicly identified
by name during the course of the proceeding relating to the determination of
--
(i) the benefits available under chapter 6 of this subchapter;
(ii) the manner in which to file a petition and apply for such benefits; and
(iii) the availability of assistance in filing such petitions; and
(B) upon request, provide any assistance that is necessary to file a petition
under section 292.
(g) Representatives of the domestic industry
For purposes of subsection (f), the term “representatives of the domestic
industry” means the persons that petitioned for relief in connection with--
(1) a proceeding under section 202 or 241 of this Act;
(2) a proceeding under section 702(b) or 732(b) of the Tariff Act of 1930 (19
U.S.C. § 1671d(b) and 1673d(b)); or
(3) any safeguard investigation described in subsection (d)(2) or (d)(3).
SEC. 225. BENEFIT INFORMATION TO WORKERS. [19 U.S.C. § 2275]
(a) The Secretary shall provide full information to workers about the benefit
allowances, training, and other employment services available under this chapter
and about the petition and application procedures, and the appropriate filing
dates, for such allowances, training and services. The Secretary shall provide
whatever assistance is necessary to enable groups of workers to prepare petitions
or applications for program benefits. The Secretary shall make every effort to
insure that cooperating State agencies fully comply with the agreements entered
into under section 239(a) and shall periodically review such compliance. The
Secretary shall inform the State Board for Vocational Education or equivalent
agency and other public or private agencies, institutions, and employers, as
appropriate, of each certification issued under section 223 and of projections, if
available, of the needs for training under section 236 as a result of such
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certification.
(b)(1) The Secretary shall provide written notice through the mail of the benefits
available under this chapter to each worker whom the Secretary has reason to
believe is covered by a certification made under this subchapter--
(A) at the time such certification is made, if the worker was partially or totally
separated from the adversely affected employment before such certification, or
(B) at the time of the total or partial separation of the worker from the
adversely affected employment, if subparagraph (A) does not apply.
(2) The Secretary shall publish notice of the benefits available under this chapter
to workers covered by each certification made under this subchapter in
newspapers of general circulation in the areas in which such workers reside.
(c) Upon issuing a certification under section 223, the Secretary shall notify the
Secretary of Commerce of the identity of each firm covered by the certification.
Subchapter B—Program Benefits
PART I—TRADE ADJUSTMENT ALLOWANCES
SEC. 231. Qualifying requirements for workers. [19 U.S.C. § 2291]
(a) Trade readjustment allowance conditions
Payment of a trade readjustment allowance shall be made to an adversely
affected worker covered by a certification under subchapter A of this chapter
who files an application for such allowance for any week of unemployment
which begins on or after the date of such certification, if the following conditions
are met:
(1) Such worker’s total or partial separation before the worker’s application
under this part occurred--
(A) on or after the date, as specified in the certification under which the
worker is covered, on which total or partial separation began or threatened to
begin in the adversely affected employment,
(B) before the expiration of the 2-year period beginning on the date on which
the determination under section 223 was made, and
(C) before the termination date (if any) determined pursuant to section
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223(d).
(2) Such worker had, in the 52-week period ending with the week in which
such total or partial separation occurred, at least 26 weeks of employment at
wages of $30 or more a week in adversely affected employment with a single
firm, or, if data with respect to weeks of employment with a firm are not
available, equivalent amounts of employment computed under regulations
prescribed by the Secretary. For the purposes of this paragraph, any week in
which such worker--
(A) is on employer-authorized leave for purposes of vacation, sickness,
injury, maternity, or inactive duty or active duty military service for training,
(B) does not work because of a disability that is compensable under a
workmen’s compensation law or plan of a State or the United States,
(C) had his employment interrupted in order to serve as a full-time
representative of a labor organization in such firm, or
(D) is on call-up for purposes of active duty in a reserve status in the Armed
Forces of the United States, provided such active duty is “Federal service” as
defined in section 8521(a)(1) of Title 5, United States Code
shall be treated as a week of employment at wages of $30 or more, but not
more than 7 weeks, in case of weeks described in subparagraph (A) or (C), or
both (and not more than 26 weeks, in the case of weeks described in
subparagraph (B) or (D)), may be treated as weeks of employment under this
sentence.
(3) Such worker--
(A) was entitled to (or would be entitled to if the worker applied therefor)
unemployment insurance for a week within the benefit period (i) in which
such total or partial separation took place, or (ii) which began (or would have
begun) by reason of the filing of a claim for unemployment insurance by such
worker after such total or partial separation;
(B) has exhausted all rights to any unemployment insurance, except
additional compensation that is funded by a State and is not reimbursed from
any Federal funds, to which the worker was entitled (or would be entitled if
the worker applied therefor); and
(C) does not have an unexpired waiting period applicable to the worker for
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any such unemployment insurance.
(4) Such worker, with respect to such week of unemployment, would not be
disqualified for extended compensation payable under the Federal-State
Extended Unemployment Compensation Act of 1970 by reason of the work
acceptance and job search requirements in section 202(a) (3) of such Act.
(5) Such worker--
(A)(i) is enrolled in a training program approved by the Secretary under
section 236(a), and
(ii) the enrollment required under clause (i) occurs no later than the latest of--
(I) in the case of a worker whose most recent total separation from
adversely affected employment that meets the requirements of paragraphs
(1) and (2) occurs after the date on which the Secretary issues a certification
covering the worker, the last day of the 26th week after such total
separation,
(II) in the case of a worker whose most recent total separation from
adversely affected employment that meets the requirements of paragraphs
(1) and (2) occurs before the date on which the Secretary issues a
certification covering the worker, the last day of the 26th week after the date
of such certification,
(III) 45 days after the date specified in subclause (I) or (II), as the case may
be, if the Secretary determines there are extenuating circumstances that
justify an extension in the enrollment period,
(IV) in the case of a worker who fails to enroll by the date required by
subclause (I), (II), or (III), as the case may be, due to the failure to provide
the worker with timely information regarding the date specified in such
subclause, the last day of a period determined by the Secretary, or
(V) the last day of a period determined by the Secretary to be approved for
enrollment after the termination of a waiver issued pursuant to subsection
(c) of this section,
(B) has, after the date on which the worker became totally separated, or
partially separated, from the adversely affected employment, completed a
training program approved by the Secretary under section 236(a), or
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(C) has received a written statement under subsection (c)(1) of this section
after the date described in subparagraph (B).
(b) Withholding of trade readjustment allowance pending beginning or
resumption of participation in training program; period of applicability
If--
(1) the Secretary determines that--
(A) the adversely affected worker--
(i) has failed to begin participation in the training program the enrollment
in which meets the requirement of subsection (a)(5) of this section, or
(ii) has ceased to participate in such training program before completing
such training program, and
(B) there is no justifiable cause for such failure or cessation, or
(2) the certification made with respect to such worker under subsection (c)(1) of
this section is revoked under subsection (c)(2) of this section,
no trade readjustment allowance may be paid to the adversely affected worker
under this chapter for the week in which such failure, cessation, or revocation
occurred, or any succeeding week, until the adversely affected worker begins or
resumes participation in a training program approved under section 236(a).
(c) Waivers of training requirements
(1) Issuance of waivers
The Secretary may issue a written statement to an adversely affected worker
waiving the requirement to be enrolled in training described in subsection
(a)(5)(A) of this section if the Secretary determines that it is not feasible or
appropriate for the worker, because of 1 or more of the following reasons:
(A) Recall
The worker has been notified that the worker will be recalled by the firm
from which the separation occurred.
(B) Marketable skills
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(i) In general
The worker possesses marketable skills for suitable employment (as
determined pursuant to an assessment of the worker, which may include
the profiling system under section 303(j) of the Social Security Act (42 U.S.C.
§ 503(j)), carried out in accordance with guidelines issued by the Secretary)
and there is a reasonable expectation of employment at equivalent wages in
the foreseeable future.
(ii) Marketable skills defined
For purposes of clause (i), the term “marketable skills” may include the
possession of a postgraduate degree from an institution of higher education
(as defined in section 102 of the Higher Education Act of 1965 (20 U.S.C. §
1002)) or an equivalent institution, or the possession of an equivalent
postgraduate certification in a specialized field.
(C) Retirement
The worker is within 2 years of meeting all requirements for entitlement to
either--
(i) old-age insurance benefits under title II of the Social Security Act (42
U.S.C. §§ 401 et seq.) (except for application therefor); or
(ii) a private pension sponsored by an employer or labor organization.
(D) Health
The worker is unable to participate in training due to the health of the
worker, except that a waiver under this subparagraph shall not be construed
to exempt a worker from requirements relating to the availability for work,
active search for work, or refusal to accept work under Federal or State
unemployment compensation laws.
(E) Enrollment unavailable
The first available enrollment date for the approved training of the worker is
within 60 days after the date of the determination made under this
paragraph, or, if later, there are extenuating circumstances for the delay in
enrollment, as determined pursuant to guidelines issued by the Secretary.
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(F) Training not available
Training approved by the Secretary is not reasonably available to the worker
from either governmental agencies or private sources (which may include
area career and technical education schools, as defined in section 3 of the Carl
D. Perkins Vocational and Technical Education Act of 1998 (20 U.S.C. § 2302),
and employers), no training that is suitable for the worker is available at a
reasonable cost, or no training funds are available.
(2) Duration of waivers
(A) In general
Except as provided in paragraph (3)(B), a waiver issued under paragraph (1)
shall be effective for not more than 6 months after the date on which the
waiver is issued, unless the Secretary determines otherwise.
(B) Revocation
The Secretary shall revoke a waiver issued under paragraph (1) if the
Secretary determines that the basis of a waiver is no longer applicable to the
worker and shall notify the worker in writing of the revocation.
(3) Agreements under section 2311 of this title
(A) Issuance by cooperating States
An agreement under section 239 shall authorize a cooperating State to issue
waivers as described in paragraph (1).
(B) Review of waivers
An agreement under section 239 shall require a cooperating State to review
each waiver issued by the State under subparagraph (A), (B), (D), (E), or (F) of
paragraph (1)--
(i) 3 months after the date on which the State issues the waiver; and
(ii) on a monthly basis thereafter.
(C) Submission of statements
An agreement under section 239 shall include a requirement that the
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cooperating State submit to the Secretary the written statements provided
under paragraph (1) and a statement of the reasons for the waiver.
SEC. 232. WEEKLY AMOUNTS. [19 U.S.C. § 2292]
(a) Formula
Subject to subsections (b), (c), and (d) of this section, the trade readjustment
allowance payable to an adversely affected worker for a week of unemployment
shall be an amount equal to the most recent weekly benefit amount of the
unemployment insurance payable to the worker for a week of total
unemployment preceding the worker’s first exhaustion of unemployment
insurance (as determined for purposes of section 231(a)(3)(B)) reduced (but not
below zero) by--
(1) any training allowance deductible under subsection (c) of this section; and
(2) income that is deductible from unemployment insurance under the
disqualifying income provisions of the applicable State law or Federal
unemployment insurance law, except that in the case of an adversely affected
worker who is participating in training under this chapter, such income shall
not include earnings from work for such week that are equal to or less than the
most recent weekly benefit amount of the unemployment insurance payable to
the worker for a week of total unemployment preceding the worker’s first
exhaustion of unemployment insurance (as determined for purposes of section
231(a)(3)(B)).
(b) Adversely affected workers who are undergoing training
Any adversely affected worker who is entitled to trade readjustment allowances
and who is undergoing training approved by the Secretary shall receive for each
week in which he is undergoing any such training, a trade readjustment
allowance in an amount (computed for such week) equal to the amount
computed under subsection (a) of this section or (if greater) the amount of any
weekly allowance for such training to which he would be entitled under any
other Federal law for the training of workers, if he applied for such allowance.
Such trade readjustment allowance shall be paid in lieu of any training allowance
to which the worker would be entitled under such other Federal law.
(c) Deduction from total number of weeks of allowance entitlement
If a training allowance under any Federal law other than this chapter is paid to
an adversely affected worker for any week of unemployment with respect to
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which he would be entitled (determined without regard to any disqualification
under section 223(b)) to a trade readjustment allowance if he applied for such
allowance, each such week shall be deducted from the total number of weeks of
trade readjustment allowance otherwise payable to him under section 233(a)
when he applies for a trade readjustment allowance and is determined to be
entitled to such allowance. If such training allowance paid to such worker for
any week of unemployment is less than the amount of the trade readjustment
allowance to which he would be entitled if he applied for such allowance, he
shall receive, when he applies for a trade readjustment allowance and is
determined to be entitled to such allowance, a trade readjustment allowance for
such week equal to such difference.
(d) Election of trade readjustment allowance or unemployment insurance
Notwithstanding section 231(a)(3)(B), an adversely affected worker may elect to
receive a trade readjustment allowance instead of unemployment insurance
during any week with respect to which the worker--
(1) is entitled to receive unemployment insurance as a result of the
establishment by the worker of a new benefit year under State law, based in
whole or in part upon part-time or short-term employment in which the
worker engaged after the worker’s most recent total separation from adversely
affected employment; and
(2) is otherwise entitled to a trade readjustment allowance.
SEC. 233. LIMITATIONS ON TRADE READJUSTMENT ALLOWANCES. [19
U.S.C. § 2293]
(a) Maximum allowance; deduction for unemployment insurance; additional
payments for approved training periods
(1) The maximum amount of trade readjustment allowances payable with respect
to the period covered by any certification to an adversely affected worker shall
be the amount which is the product of 52 multiplied by the trade readjustment
allowance payable to the worker for a week of total unemployment (as
determined under section 232(a)), but such product shall be reduced by the total
sum of the unemployment insurance to which the worker was entitled (or would
have been entitled if he had applied therefor) in the worker’s first benefit period
described in section 231(a)(3)(A).
(2) A trade readjustment allowance under paragraph (1) shall not be paid for any
week occurring after the close of the 104-week period (or, in the case of an
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adversely affected worker who requires a program of prerequisite education or
remedial education (as described in section 236(a)(5)(D)) in order to complete
training approved for the worker under section 236, the 130-week period) that
begins with the first week following the week in which the adversely affected
worker was most recently totally separated from adversely affected
employment--
(A) within the period which is described in section 231(a)(1), and
(B) with respect to which the worker meets the requirements of section
231(a)(2).
(3) Notwithstanding paragraph (1), in order to assist the adversely affected
worker to complete a training program approved for the worker under section
236, and in accordance with regulations prescribed by the Secretary, payments
may be made as trade readjustment allowances for up to 78 additional weeks in
the 91-week period that--
(A) follows the last week of entitlement to trade readjustment allowances
otherwise payable under this chapter; or
(B) begins with the first week of such training, if such training begins after the
last week described in subparagraph (A).
Payments for such additional weeks may be made only for weeks in such 91-
week period during which the individual is participating in such training.
(b) Adjustments of amounts payable
Amounts payable to an adversely affected worker under this chapter shall be
subject to such adjustment on a week-to-week basis as may be required by
section 232(b).
(c) Special adjustments for benefit years ending with extended benefit periods
Notwithstanding any other provision of this chapter or other Federal law, if the
benefit year of a worker ends within an extended benefit period, the number of
weeks of extended benefits that such worker would, but for this subsection, be
entitled to in that extended benefit period shall be reduced (but not below zero)
by the number of weeks for which the worker was entitled, during such benefit
year, to trade readjustment allowances under this chapter. For purposes of this
paragraph, the terms “benefit year” and “extended benefit period” shall have the
same respective meanings given to them in the Federal-State Extended
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Unemployment Compensation Act of 1970.
(d) Week during which worker received on-the-job training
No trade readjustment allowance shall be paid to a worker under this chapter for
any week during which the worker is receiving on-the-job training.
(e) Workers treated as participating in training
For purposes of this chapter, a worker shall be treated as participating in training
during any week which is part of a break in training that does not exceed 30 days
if--
(1) the worker was participating in a training program approved under section
236(a) before the beginning of such break in training, and
(2) the break is provided under such training program.
(f) Notwithstanding any other provision of this section, in order to assist an
adversely affected worker to complete training approved for the worker under
section 236 which includes a program of prerequisite education or remedial
education (as described in section 236(a)(5)(D)), and in accordance with
regulations prescribed by the Secretary, payments may be made as trade
readjustment allowances for up to 26 additional weeks in the 26-week period
that follows the last week of entitlement to trade readjustment allowances
otherwise payable under this chapter.
(g) Special rule for calculating separation
Notwithstanding any other provision of this chapter, any period during which a
judicial or administrative appeal is pending with respect to the denial by the
Secretary of a petition under section 223 shall not be counted for purposes of
calculating the period of separation under subsection (a)(2).
(h) Special rule for justifiable cause
If the Secretary determines that there is justifiable cause, the Secretary may
extend the period during which trade readjustment allowances are payable to an
adversely affected worker under paragraphs (2) and (3) of subsection (a) (but not
the maximum amounts of such allowances that are payable under this section).
(i) Special rule with respect to military service
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(1) In general
Notwithstanding any other provision of this chapter, the Secretary may waive
any requirement of this chapter that the Secretary determines is necessary to
ensure that an adversely affected worker who is a member of a reserve
component of the Armed Forces and serves a period of duty described in
paragraph (2) is eligible to receive a trade readjustment allowance, training,
and other benefits under this chapter in the same manner and to the same
extent as if the worker had not served the period of duty.
(2) Period of duty described
An adversely affected worker serves a period of duty described in this
paragraph if, before completing training under section 236, the worker--
(A) serves on active duty for a period of more than 30 days under a call or
order to active duty of more than 30 days; or
(B) in the case of a member of the Army National Guard of the United States
or Air National Guard of the United States, performs full-time National
Guard duty under section 502(f) of Title 32, United States Code, for 30
consecutive days or more when authorized by the President or the Secretary
of Defense for the purpose of responding to a national emergency declared by
the President and supported by Federal funds.
SEC. 234. APPLICATION OF STATE LAWS. [19 U.S.C. § 2294]
(a) In general
Except where inconsistent with the provisions of this chapter and subject to such
regulations as the Secretary may prescribe, the availability and disqualification
provisions of the State law--
(1) under which an adversely affected worker is entitled to unemployment
insurance (whether or not he has filed a claim for such insurance), or
(2) if he is not so entitled to unemployment insurance, of the State in which he
was totally or partially separated,
shall apply to any such worker who files a claim for trade readjustment
allowances. The State law so determined with respect to a separation of a worker
shall remain applicable, for purposes of the preceding sentence, with respect to
such separation until such worker becomes entitled to unemployment insurance
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under another State law (whether or not he has filed a claim for such insurance).
(b) Special rule with respect to State laws and regulations on good cause for
waiver of time limits or late filing of claims
Any law, regulation, policy, or practice of a cooperating State that allows for a
waiver for good cause of any time limitation relating to the administration of the
State unemployment insurance law shall, in the administration of the program
under this chapter by the State, apply to any time limitation with respect to an
application for a trade readjustment allowance or enrollment in training under
this chapter.
PART II—TRAINING, OTHER EMPLOYMENT SERVICES, AND
ALLOWANCES
SEC. 235. EMPLOYMENT AND CASE MANAGEMENT SERVICES. [19
U.S.C. § 2295]
The Secretary shall make available, directly or through agreements with States
under section 239, to adversely affected workers and adversely affected
incumbent workers covered by a certification under subchapter A of this chapter
the following employment and case management services:
(1) Comprehensive and specialized assessment of skill levels and service needs,
including through--
(A) diagnostic testing and use of other assessment tools; and
(B) in-depth interviewing and evaluation to identify employment barriers and
appropriate employment goals.
(2) Development of an individual employment plan to identify employment
goals and objectives, and appropriate training to achieve those goals and
objectives.
(3) Information on training available in local and regional areas, information on
individual counseling to determine which training is suitable training, and
information on how to apply for such training.
(4) Information on how to apply for financial aid, including referring workers
to educational opportunity centers described in section 402F of the Higher
Education Act of 1965 (20 U.S.C. § 1070a-16), where applicable, and notifying
workers that the workers may request financial aid administrators at
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institutions of higher education (as defined in section 102 of such Act (20 U.S.C.
§ 1002)) to use the administrators’ discretion under section 479A of such Act (20
U.S.C. § 1087tt) to use current year income data, rather than preceding year
income data, for determining the amount of need of the workers for Federal
financial assistance under title IV of such Act (20 U.S.C. §§ 1070 et seq.).
(5) Short-term prevocational services, including development of learning skills,
communications skills, interviewing skills, punctuality, personal maintenance
skills, and professional conduct to prepare individuals for employment or
training.
(6) Individual career counseling, including job search and placement
counseling, during the period in which the individual is receiving a trade
adjustment allowance or training under this chapter, and after receiving such
training for purposes of job placement.
(7) Provision of employment statistics information, including the provision of
accurate information relating to local, regional, and national labor market
areas, including--
(A) job vacancy listings in such labor market areas;
(B) information on jobs skills necessary to obtain jobs identified in job
vacancy listings described in subparagraph (A);
(C) information relating to local occupations that are in demand and earnings
potential of such occupations; and
(D) skills requirements for local occupations described in subparagraph (C).
(8) Information relating to the availability of supportive services, including
services relating to child care, transportation, dependent care, housing
assistance, and need-related payments that are necessary to enable an
individual to participate in training.
SEC. 235A. FUNDING FOR ADMINISTRATIVE EXPENSES AND
EMPLOYMENT AND CASE MANAGEMENT SERVICES. [19 U.S.C. § 2295a]
(a) Funding for administrative expenses and employment and case management
services
(1) In general
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In addition to any funds made available to a State to carry out section 236 for a
fiscal year, the State shall receive for the fiscal year a payment in an amount
that is equal to 15 percent of the amount of such funds.
(2) Use of funds
A State that receives a payment under paragraph (1) shall--
(A) use not more than 2/3 of such payment for the administration of the
trade adjustment assistance for workers program under this chapter,
including for--
(i) processing waivers of training requirements under section 231;
(ii) collecting, validating, and reporting data required under this chapter;
and
(iii) providing reemployment trade adjustment assistance under section 246;
and
(B) use not less than 1/3 of such payment for employment and case
management services under section 235.
(b) Additional funding for employment and case management services
(1) In general
In addition to any funds made available to a State to carry out section 236 and
the payment under subsection (a)(1) for a fiscal year, the Secretary shall
provide to the State for the fiscal year a payment in the amount of $350,000.
(2) Use of funds
A State that receives a payment under paragraph (1) shall use such payment for
the purpose of providing employment and case management services under
section 235.
(3) Voluntary return of funds
A State that receives a payment under paragraph (1) may decline or otherwise
return such payment to the Secretary.
SEC. 236. TRAINING. [19 U.S.C. § 2296]
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(a) Approval of training; limitation on expenditures; reasonable expectation of
employment; payment of costs; approved training programs; nonduplication of
payments from other sources; disapproval of certain programs; exhaustion of
unemployment benefits; promulgation of regulations
(1) If the Secretary determines, with respect to an adversely affected worker or an
adversely affected incumbent worker, that--
(A) there is no suitable employment (which may include technical and
professional employment) available for an adversely affected worker,
(B) the worker would benefit from appropriate training,
(C) there is a reasonable expectation of employment following completion of
such training,
(D) training approved by the Secretary is reasonably available to the worker
from either governmental agencies or private sources (which may include area
career and technical education schools, as defined in section 195(2) of the
Vocational Education Act of 1963, and employers),
(E) the worker is qualified to undertake and complete such training, and
(F) such training is suitable for the worker and available at a reasonable cost,
the Secretary shall approve such training for the worker. Upon such approval,
the worker shall be entitled to have payment of the costs of such training (subject
to the limitations imposed by this section) paid on the worker’s behalf by the
Secretary directly or through a voucher system.
(2)(A) The total amount of payments that may be made under paragraph (1) shall
not exceed
(i) for each of the fiscal years 2009 and 2010, $575,000,000; and
(ii) for the period beginning October 1, 2010, and ending December 31, 2010,
$143,750,000.
(B)(i) The Secretary shall, as soon as practicable after the beginning of each fiscal
year, make an initial distribution of the funds made available to carry out this
section, in accordance with the requirements of subparagraph (C).
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(ii) The Secretary shall ensure that not less than 90 percent of the funds made
available to carry out this section for a fiscal year are distributed to the States
by not later than July 15 of that fiscal year.
(C)(i) In making the initial distribution of funds pursuant to subparagraph (B)(i)
for a fiscal year, the Secretary shall hold in reserve 35 percent of the funds made
available to carry out this section for that fiscal year for additional distributions
during the remainder of the fiscal year.
(ii) Subject to clause (iii), in determining how to apportion the initial
distribution of funds pursuant to subparagraph (B)(i) in a fiscal year, the
Secretary shall take into account, with respect to each State—
(I) the trend in the number of workers covered by certifications of eligibility
under this chapter during the most recent 4 consecutive calendar quarters
for which data are available;
(II) the trend in the number of workers participating in training under this
section during the most recent 4 consecutive calendar quarters for which
data are available;
(III) the number of workers estimated to be participating in training under
this section during the fiscal year;
(IV) the amount of funding estimated to be necessary to provide training
approved under this section to such workers during the fiscal year; and
(V) such other factors as the Secretary considers appropriate relating to the
provision of training under this section.
(iii) In no case may the amount of the initial distribution to a State pursuant to
subparagraph (B)(i) in a fiscal year be less than 25 percent of the initial
distribution to the State in the preceding fiscal year.
(D) The Secretary shall establish procedures for the distribution of the funds that
remain available for the fiscal year after the initial distribution required under
subparagraph (B)(i). Such procedures may include the distribution of funds
pursuant to requests submitted by States in need of such funds.
(E) If, during a fiscal year, the Secretary estimates that the amount of funds
necessary to pay the costs of training approved under this section will exceed the
dollar amount limitation specified in subparagraph (A), the Secretary shall
decide how the amount of funds made available to carry out this section that
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have not been distributed at the time of the estimate will be apportioned among
the States for the remainder of the fiscal year.
(3) For purposes of applying paragraph (1)(C), a reasonable expectation of
employment does not require that employment opportunities for a worker be
available, or offered, immediately upon the completion of training approved
under paragraph (1).
(4)(A) If the costs of training an adversely affected worker or an adversely
affected incumbent worker are paid by the Secretary under paragraph (1), no
other payment for such costs may be made under any other provision of Federal
law.
(B) No payment may be made under paragraph (1) of the costs of training an
adversely affected worker or an adversely affected incumbent worker if such
costs--
(i) have already been paid under any other provision of Federal law, or
(ii) are reimbursable under any other provision of Federal law and a portion of
such costs have already been paid under such other provision of Federal law.
(C) The provisions of this paragraph 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 costs incurred in training a
particular adversely affected worker or an adversely affected incumbent worker,
even if such use has the effect of indirectly paying or reducing any portion of the
costs involved in training the adversely affected worker or an adversely affected
incumbent worker.
(5) Except as provided in paragraph (10), the training programs that may be
approved under paragraph (1) include, but are not limited to--
(A) employer-based training, including--
(i) on-the-job training,
(ii) customized training, and
(iii) apprenticeship programs registered under the Act of August 16, 1937
(commonly known as the “National Apprenticeship Act”; 50 Stat. 664,
chapter 663; 29 U.S.C. §§ 50 et seq.),
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(B) any training program provided by a State pursuant to title I of the
Workforce Investment Act of 1998 [29 U.S.C. §§ 2801 et seq.],
(C) any training program approved by a private industry council established
under section 102 of such Act,
(D) any program of remedial education,
(E) any program of prerequisite education or coursework required to enroll in
training that may be approved under this section,
(F) any training program (other than a training program described in
paragraph (7)) for which all, or any portion, of the costs of training the worker
are paid--
(i) under any Federal or State program other than this chapter, or
(ii) from any source other than this section,
(G) any other training program approved by the Secretary, and
(H) any training program or coursework at an accredited institution of higher
education (described in section 102 of the Higher Education Act of 1965 (20
U.S.C. § 1002)), including a training program or coursework for the purpose of-
-
(i) obtaining a degree or certification; or
(ii) completing a degree or certification that the worker had previously begun
at an accredited institution of higher education.
The Secretary may not limit approval of a training program under paragraph
(1) to a program provided pursuant to title I of the Workforce Investment Act
of 1998 (29 U.S.C. §§ 2801 et seq.).
(6)(A) The Secretary is not required under paragraph (1) to pay the costs of any
training approved under paragraph (1) to the extent that such costs are paid--
(i) under any Federal or State program other than this chapter, or
(ii) from any source other than this section.
(B) Before approving any training to which subparagraph (A) may apply, the
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Secretary may require that the adversely affected worker or adversely affected
incumbent worker enter into an agreement with the Secretary under which the
Secretary will not be required to pay under this section the portion of the costs of
such training that the worker has reason to believe will be paid under the
program, or by the source, described in clause (i) or (ii) of subparagraph (A).
(7) The Secretary shall not approve a training program 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 or adversely affected incumbent 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 this part, or from wages paid under such training
program, for any portion of the costs of such training program paid under the
plan or program.
(8) The Secretary may approve training for any adversely affected worker who is
a member of a group certified under subchapter A of this chapter at any time
after the date on which the group is certified under subchapter A of this chapter,
without regard to whether such worker has exhausted all rights to any
unemployment insurance to which the worker is entitled.
(9)(A) Subject to subparagraph (B), the Secretary shall prescribe regulations
which set forth the criteria under each of the subparagraphs of paragraph (1) that
will be used as the basis for making determinations under paragraph (1).
(B)(i) In determining under paragraph (1)(E) whether a worker is qualified to
undertake and complete training, the Secretary may approve training for a
period longer than the worker’s period of eligibility for trade readjustment
allowances under part I of this subchapter if the worker demonstrates a financial
ability to complete the training after the expiration of the worker’s period of
eligibility for such trade readjustment allowances.
(ii) In determining the reasonable cost of training under paragraph (1) (F) with
respect to a worker, the Secretary may consider whether other public or private
funds are reasonably available to the worker, except that the Secretary may not
require a worker to obtain such funds as a condition of approval of training
under paragraph (1).
(10) In the case of an adversely affected incumbent worker, the Secretary may not
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approve
(A) on-the-job training under paragraph (5)(A)(i); or
(B) customized training under paragraph (5)(A)(ii), unless such training is for a
position other than the worker’s adversely affected employment.
(11) If the Secretary determines that an adversely affected incumbent worker for
whom the Secretary approved training under this section is no longer threatened
with a total or partial separation, the Secretary shall terminate the approval of
such training.
(b) Supplemental assistance
The Secretary may, where appropriate, authorize supplemental assistance
necessary to defray reasonable transportation and subsistence expenses for
separate maintenance when training is provided in facilities which are not within
commuting distance of a worker’s regular place of residence. The Secretary may
not authorize--
(1) payments for subsistence that exceed whichever is the lesser of (A) the
actual per diem expenses for subsistence, or (B) payments at 50 percent of the
prevailing per diem allowance rate authorized under the Federal travel
regulations, or
(2) payments for travel expenses exceeding the prevailing mileage rate
authorized under the Federal travel regulations.
(c) On-the-job training requirements
(1) In general
The Secretary may approve on-the-job training for any adversely affected
worker if--
(A) the worker meets the requirements for training to be approved under
subsection (a)(1);
(B) the Secretary determines that on-the-job training--
(i) can reasonably be expected to lead to suitable employment with the
employer offering the on-the-job training;
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(ii) is compatible with the skills of the worker;
(iii) includes a curriculum through which the worker will gain the
knowledge or skills to become proficient in the job for which the worker is
being trained; and
(iv) can be measured by benchmarks that indicate that the worker is gaining
such knowledge or skills; and
(C) the State determines that the on-the-job training program meets the
requirements of clauses (iii) and (iv) of subparagraph (B).
(2) Monthly payments
The Secretary shall pay the costs of on-the-job training approved under
paragraph (1) in monthly installments.
(3) Contracts for on-the-job training
(A) In general
The Secretary shall ensure, in entering into a contract with an employer to
provide on-the-job training to a worker under this subsection, that the skill
requirements of the job for which the worker is being trained, the academic
and occupational skill level of the worker, and the work experience of the
worker are taken into consideration.
(B) Term of contract
Training under any such contract shall be limited to the period of time
required for the worker receiving on-the-job training to become proficient in
the job for which the worker is being trained, but may not exceed 104 weeks
in any case.
(4) Exclusion of certain employers
The Secretary shall not enter into a contract for on-the-job training with an
employer that exhibits a pattern of failing to provide workers receiving on-the-
job training from the employer with--
(A) continued, long-term employment as regular employees; and
(B) wages, benefits, and working conditions that are equivalent to the wages,
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benefits, and working conditions provided to regular employees who have
worked a similar period of time and are doing the same type of work as
workers receiving on-the-job training from the employer.
(5) Labor standards
The Secretary may pay the costs of on-the-job training, notwithstanding any
other provision of this section, only if--
(A) no currently employed worker is displaced by such adversely affected
worker (including partial displacement such as a reduction in the hours of
nonovertime work, wages, or employment benefits),
(B) such training does not impair existing contracts for services or collective
bargaining agreements,
(C) in the case of training which would be inconsistent with the terms of a
collective bargaining agreement, the written concurrence of the labor
organization concerned has been obtained,
(D) no other individual is on layoff from the same, or any substantially
equivalent, job for which such adversely affected worker is being trained,
(E) the employer has not terminated the employment of any regular employee
or otherwise reduced the workforce of the employer with the intention of
filling the vacancy so created by hiring such adversely affected worker,
(F) the job for which such adversely affected 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,
(G) 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,
(H) the employer is provided reimbursement of not more than 50 percent of the
wage rate of the participant, for the cost of providing the training and
additional supervision related to the training,
(I) the employer has not received payment under subsection (a)(1) of this
section with respect to any other on-the-job training provided by such
employer which failed to meet the requirements of subparagraphs (A), (B), (C),
(D), (E), and (F), and
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(J) the employer has not taken, at any time, any action which violated the terms
of any certification described in subparagraph (H) made by such employer
with respect to any other on-the-job training provided by such employer for
which the Secretary has made a payment under subsection (a)(1) of this section.
(d) Eligibility
An adversely affected worker may not be determined to be ineligible or
disqualified for unemployment insurance or program benefits under this
subchapter--
(1) because the worker--
(A) is enrolled in training approved under subsection (a);
(B) left work--
(i) that was not suitable employment in order to enroll in such training; or
(ii) that the worker engaged in on a temporary basis during a break in such
training or a delay in the commencement of such training; or
(C) left on-the-job training not later than 30 days after commencing such
training because the training did not meet the requirements of subsection
(c)(1)(B); or
(2) because of the application to any such week in training of the provisions of
State law or Federal unemployment insurance law relating to availability for
work, active search for work, or refusal to accept work.
(e) “Suitable employment” defined
For purposes of this section 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 than 80
percent of the worker’s average weekly wage.
(f) “Customized training” defined
For purposes of this section, the term “customized training” means training that
is--
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(1) designed to meet the special requirements of an employer or group of
employers;
(2) conducted with a commitment by the employer or group of employers to
employ an individual upon successful completion of the training; and
(3) for which the employer pays for a significant portion (but in no case less
than 50 percent) of the cost of such training, as determined by the Secretary.
(g) Regulations with respect to apportionment of training funds to States
(1) In general
Not later than 1 year after February 17, 2009, the Secretary shall issue such
regulations as may be necessary to carry out the provisions of subsection (a)(2).
(2) Consultations
The Secretary shall consult with the Committee on Finance of the Senate and
the Committee on Ways and Means of the House of Representatives not less
than 90 days before issuing any regulation pursuant to paragraph (1).
(h) Part-time training
(1) In general
The Secretary may approve full-time or part-time training for a worker under
subsection (a).
(2) Limitation
Notwithstanding paragraph (1), a worker participating in part-time training
approved under subsection (a) may not receive a trade readjustment allowance
under section 231.
SEC. 237. JOB SEARCH ALLOWANCES. [19 U.S.C. § 2297]
(a) Job search allowance authorized
(1) In general
An adversely affected worker covered by a certification issued under
subchapter A of this chapter may file an application with the Secretary for
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payment of a job search allowance.
(2) Approval of applications
The Secretary may grant an allowance pursuant to an application filed under
paragraph (1) when all of the following apply:
(A) Assist adversely affected worker
The allowance is paid to assist an adversely affected worker who has been
totally separated in securing a job within the United States.
(B) Local employment not available
The Secretary determines that the worker cannot reasonably be expected to
secure suitable employment in the commuting area in which the worker
resides.
(C) Application
The worker has filed an application for the allowance with the Secretary
before--
(i) the later of--
(I) the 365th day after the date of the certification under which the worker
is certified as eligible; or
(II) the 365th day after the date of the worker’s last total separation; or
(ii) the date that is the 182d day after the date on which the worker
concluded training.
(b) Amount of allowance
(1) In general
An allowance granted under subsection (a) of this section shall provide
reimbursement to the worker of all necessary job search expenses as prescribed
by the Secretary in regulations.
(2) Maximum allowance
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Reimbursement under this subsection may not exceed $1,500 for any worker.
(3) Allowance for subsistence and transportation
Reimbursement under this subsection may not be made for subsistence and
transportation expenses at levels exceeding those allowable under section
236(b) (1) and (2) of this title.
(c) Exception
Notwithstanding subsection (b) of this section, the Secretary shall reimburse any
adversely affected worker for necessary expenses incurred by the worker in
participating in a job search program approved by the Secretary.
SEC. 238. RELOCATION ALLOWANCES [19 U.S.C. § 2298]
(a) Relocation allowance authorized
(1) In general
Any adversely affected worker covered by a certification issued under
subchapter A of this chapter may file an application for a relocation allowance
with the Secretary, and the Secretary may grant the relocation allowance,
subject to the terms and conditions of this section.
(2) Conditions for granting allowance
A relocation allowance may be granted if all of the following terms and
conditions are met:
(A) Assist an adversely affected worker
The relocation allowance will assist an adversely affected worker in
relocating within the United States.
(B) Local employment not available
The Secretary determines that the worker cannot reasonably be expected to
secure suitable employment in the commuting area in which the worker
resides.
(C) Total separation
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The worker is totally separated from employment at the time relocation
commences.
(D) Suitable employment obtained
The worker--
(i) has obtained suitable employment affording a reasonable expectation of
long-term duration in the area in which the worker wishes to relocate; or
(ii) has obtained a bona fide offer of such employment.
(E) Application
The worker filed an application with the Secretary before--
(i) the later of--
(I) the 425th day after the date of the certification under subchapter A of
this chapter; or
(II) the 425th day after the date of the worker’s last total separation; or
(ii) the date that is the 182d day after the date on which the worker
concluded training.
(b) Amount of allowance
The relocation allowance granted to a worker under subsection (a) of this section
includes--
(1) all reasonable and necessary expenses (including, but not limited to,
subsistence and transportation expenses at levels not exceeding those allowable
under section 236(b) (1) and (2) of this title specified in regulations prescribed
by the Secretary) incurred in transporting the worker, the worker’s family, and
household effects; and
(2) a lump sum equivalent to 3 times the worker’s average weekly wage, up to
a maximum payment of $1,500.
(c) Limitations
A relocation allowance may not be granted to a worker unless--
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(1) the relocation occurs within 182 days after the filing of the application for
relocation assistance; or
(2) the relocation occurs within 182 days after the conclusion of training, if the
worker entered a training program approved by the Secretary under section
236(b) (1) and (2).
Subchapter C—General Provisions
SEC. 239. AGREEMENTS WITH STATES. [19 U.S.C. § 2311].
(a) Authority of Secretary to enter into agreements
The Secretary is authorized on behalf of the United States to enter into an
agreement with any State, or with any State agency (referred to in this
subchapter as “cooperating States” and “cooperating States agencies”
respectively). Under such an agreement, the cooperating State agency (1) as
agent of the United States, shall receive applications for, and shall provide,
payments on the basis provided in this chapter, (2) in accordance with subsection
(f), shall make available to adversely affected workers and adversely affected
incumbent workers covered by a certification under subchapter A of this chapter
the employment and case management services described in section 235, (3) shall
make any certifications required under section 231(c)(2), and (4) shall otherwise
cooperate with the Secretary and with other State and Federal agencies in
providing payments and services under this chapter.
(b) Amendment, suspension, and termination of agreements
Each agreement under this subchapter shall provide the terms and conditions
upon which the agreement may be amended, suspended, or terminated.
(c) Form and manner of data
Each agreement under this subchapter shall--
(1) provide the Secretary with the authority to collect any data the Secretary
determines necessary to meet the requirements of this chapter; and
(2) specify the form and manner in which any such data requested by the
Secretary shall be reported.
(d) Unemployment insurance
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Each agreement under this subchapter shall provide that unemployment
insurance otherwise payable to any adversely affected worker will not be denied
or reduced for any week by reason of any right to payments under this chapter.
(e) Review
A determination by a cooperating State agency with respect to entitlement to
program benefits under an agreement is subject to review in the same manner
and to the same extent as determinations under the applicable State law and only
in that manner and to that extent.
(f) Coordination of benefits and assistance
Any agreement entered into under this section shall provide for the coordination
of the administration of the provisions for employment services, training, and
supplemental assistance under sections 235 and 236 and under title I of the
Workforce Investment Act of 1998 [29 U.S.C. §§ 2801 et seq.] upon such terms
and conditions as are established by the Secretary in consultation with the States
and set forth in such agreement. Any agency of the State jointly administering
such provisions under such agreement shall be considered to be a cooperating
State agency for purposes of this chapter.
(g) Advising and interviewing adversely affected workers
Each cooperating State agency shall, in carrying out subsection (a)(2) of this
section--
(1) advise each worker who applies for unemployment insurance of the
benefits under this chapter and the procedures and deadlines for applying for
such benefits,
(2) facilitate the early filing of petitions under section 221 for any workers that
the agency considers are likely to be eligible for benefits under this chapter,
(3) advise each adversely affected worker to apply for training under section
236(a) before, or at the same time, the worker applies for trade readjustment
allowances under part I of subchapter B,
(4) perform outreach to, intake of, and orientation for adversely affected
workers and adversely affected incumbent workers covered by a certification
under subchapter A of this chapter with respect to assistance and benefits
available under this chapter, and
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(5) make employment and case management services described in section 235
available to adversely affected workers and adversely affected incumbent
workers covered by a certification under subchapter A of this chapter and, if
funds provided to carry out this chapter are insufficient to make such services
available, make arrangements to make such services available through other
Federal programs.
(h) Submission of information for coordination of workforce investment activities
In order to promote the coordination of workforce investment activities in each
State with activities carried out under this chapter, any agreement entered into
under this section shall provide that the State shall submit to the Secretary, in
such form as the Secretary may require, the description and information
described in paragraphs (8) and (14) of section 112(b) of the Workforce
Investment Act of 1998 (29 U.S.C. § 2822(b)) and a description of the State’s rapid
response activities under section 221(a)(2)(A).
(i) Control measures
(1) In general
The Secretary shall require each cooperating State and cooperating State agency
to implement effective control measures and to effectively oversee the
operation and administration of the trade adjustment assistance program under
this chapter, including by means of monitoring the operation of control
measures to improve the accuracy and timeliness of the data being collected
and reported.
(2) Definition
For purposes of paragraph (1), the term “control measures” means measures
that--
(A) are internal to a system used by a State to collect data; and
(B) are designed to ensure the accuracy and verifiability of such data.
(j) Data reporting
(1) In general
Any agreement entered into under this section shall require the cooperating
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State or cooperating State agency to report to the Secretary on a quarterly basis
comprehensive performance accountability data, to consist of--
(A) the core indicators of performance described in paragraph (2)(A);
(B) the additional indicators of performance described in paragraph (2)(B), if
any; and
(C) a description of efforts made to improve outcomes for workers under the
trade adjustment assistance program.
(2) Core indicators described
(A) In general
The core indicators of performance described in this paragraph are--
(i) the percentage of workers receiving benefits under this chapter who are
employed during the second calendar quarter following the calendar
quarter in which the workers cease receiving such benefits;
(ii) the percentage of such workers who are employed in each of the third
and fourth calendar quarters following the calendar quarter in which the
workers cease receiving such benefits; and
(iii) the earnings of such workers in each of the third and fourth calendar
quarters following the calendar quarter in which the workers cease
receiving such benefits.
(B) Additional indicators
The Secretary and a cooperating State or cooperating State agency may agree
upon additional indicators of performance for the trade adjustment assistance
program under this chapter, as appropriate.
(3) Standards with respect to reliability of data
In preparing the quarterly report required by paragraph (1), each cooperating
State or cooperating State agency shall establish procedures that are consistent
with guidelines to be issued by the Secretary to ensure that the data reported
are valid and reliable.
(k) Verification of eligibility for program benefits
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(1) In general
An agreement under this subchapter shall provide that the State shall
periodically redetermine that a worker receiving benefits under this subchapter
who is not a citizen or national of the United States remains in a satisfactory
immigration status. Once satisfactory immigration status has been initially
verified through the immigration status verification system described in section
1137(d) of the Social Security Act (42 U.S.C. § 1320b-7(d)) for purposes of
establishing a worker’s eligibility for unemployment compensation, the State
shall reverify the worker’s immigration status if the documentation provided
during initial verification will expire during the period in which that worker is
potentially eligible to receive benefits under this subchapter. The State shall
conduct such redetermination in a timely manner, utilizing the immigration
status verification system described in section 1137(d) of the Social Security Act
(42 U.S.C. § 1320b-7(d)).
(2) Procedures
The Secretary shall establish procedures to ensure the uniform application by
the States of the requirements of this subsection.
SEC. 240. ADMINISTRATION ABSENT STATE AGREEMENT. [19 U.S.C. §
2312]
(a) Promulgation of regulations; fair hearing
In any State where there is no agreement in force between a State or its agency
under section 239, the Secretary shall arrange under regulations prescribed by
him for performance of all necessary functions under subchapter B of this
chapter, including provision for a fair hearing for any worker whose application
for payments is denied.
(b) Review of final determination
A final determination under subsection (a) of this section with respect to
entitlement to program benefits under subchapter B of this chapter is 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)).
SEC. 241. PAYMENTS TO STATES. [19 U.S.C. § 2313]
(a) Certification to Secretary of the Treasury for payment to cooperating States
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The Secretary shall from time to time certify to the Secretary of the Treasury for
payment to each cooperating State the sums necessary to enable such State as
agent of the United States to make payments provided for by this chapter.
(b) Utilization or return of money
All money paid a State under this section shall be used solely for the purposes
for which it is paid; and money so paid which is not used for such purposes shall
be returned, at the time specified in the agreement under this subchapter, to the
Secretary of the Treasury.
(c) Surety bonds
Any agreement under this subchapter may require any officer or employee of the
State certifying payments or disbursing funds under the agreement or otherwise
participating in the performance of the agreement, to give a surety bond to the
United States in such amount as the Secretary may deem necessary, and may
provide for the payment of the cost of such bond from funds for carrying out the
purposes of this chapter.
SEC. 242. LIABILITIES OF CERTIFYING AND DISBURSING OFFICERS. [19
U.S.C. § 2314]
(a) Certifying officer
No person designated by the Secretary, or designated pursuant to an agreement
under this subchapter, as a certifying officer, shall, in the absence of gross
negligence or intent to defraud the United States, be liable with respect to any
payment certified by him under this chapter.
(b) Disbursing officer
No disbursing officer shall, in the absence of gross negligence or intent to
defraud the United States, be liable with respect to any payment by him under
this chapter if it was based upon a voucher signed by a certifying officer
designated as provided in subsection (a) of this section.
SEC. 243. FRAUD AND RECOVERY OF OVERPAYMENTS. [19 U.S.C. § 2315]
(a) Repayment; deductions
(1) If a cooperating State agency, the Secretary, or a court of competent
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jurisdiction determines that any person has received any payment under this
chapter to which the person was not entitled, including a payment referred to in
subsection (b) of this section, such person shall be liable to repay such amount to
the State agency or the Secretary, as the case may be, except that the State agency
or the Secretary shall waive such repayment if such agency or the Secretary
determines that--
(A) the payment was made without fault on the chapter of such individual, and
(B) requiring such repayment would cause a financial hardship for the
individual (or the individual’s household, if applicable) when taking into
consideration the income and resources reasonably available to the individual
(or household) and other ordinary living expenses of the individual (or
household).
(2) Unless an overpayment is otherwise recovered, or waived under paragraph
(1), the State agency or the Secretary shall recover the overpayment by
deductions from any sums payable to such person under this chapter, under any
Federal unemployment compensation law administered by the State agency or
the Secretary, or under any other Federal law administered by the State agency
or the Secretary which provides for the payment of assistance or an allowance
with respect to unemployment, and, notwithstanding any other provision of
State law or Federal law to the contrary, the Secretary may require the State
agency to recover any overpayment under this chapter by deduction from any
unemployment insurance payable to such person under the State law, except that
no single deduction under this paragraph shall exceed 50 percent of the amount
otherwise payable.
(b) False representation or nondisclosure of material fact
If a cooperating State agency, the Secretary, or a court of competent jurisdiction
determines that an 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 chapter to
which the individual was not entitled, such individual shall, in addition to any
other penalty provided by law, be ineligible for any further payments under this
chapter.
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(c) Notice of determination; fair hearing; finality
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 subsection (a) (1) of this section by the State agency
or the Secretary, as the case may be, has been made, notice of the determination
and an opportunity for a fair hearing thereon has been given to the individual
concerned, and the determination has become final.
(d) Recovered amount returned to Treasury
Any amount recovered under this section shall be returned to the Treasury of the
United States.
SEC. 244. PENALTIES. [19 U.S.C. § 2316]
Any person who--
(1) makes a false statement of a material fact knowing it to be false, or
knowingly fails to disclose a material fact, for the purpose of obtaining or
increasing for that person or for any other person any payment authorized to
be furnished under this chapter or pursuant to an agreement under section 239,
or
(2) makes a false statement of a material fact knowing it to be false, or
knowingly fails to disclose a material fact, when providing information to the
Secretary during an investigation of a petition under section 221, shall be
imprisoned for not more than one year, or fined under Title 18, or both.
SEC. 245. AUTHORIZATION OF APPROPRIATIONS. [19 U.S.C. § 2317]
(a) In general
There are authorized to be appropriated to the Department of Labor, for the
period beginning October 1, 2001, and ending December 31, 2010, such sums as
may be necessary to carry out the purposes of this chapter.
(b) Period of expenditure
Funds obligated for any fiscal year to carry out activities under sections 235
through 238 may be expended by each State receiving such funds during that
fiscal year and the succeeding two fiscal years.
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SEC. 246. REEMPLOYMENT TRADE ADJUSTMENT ASSISTANCE
PROGRAM. [19 U.S.C. § 2318]
(a) In general
(1) Establishment
The Secretary shall establish a reemployment trade adjustment assistance
program for older workers that provides the benefits described in paragraph
(2).
(2) Benefits
(A) Payments
A State shall use the funds provided to the State under section 241 to pay, for
the eligibility period under subparagraph (A) or (B) of paragraph (4) (as the
case may be), to a worker described in paragraph (3)(B), 50 percent of the
difference between--
(i) the wages received by the worker at the time of separation; and
(ii) the wages received by the worker from reemployment.
(B) Health insurance
A worker described in paragraph (3)(B) participating in the program
established under paragraph (1) is eligible to receive, for the eligibility period
under subparagraph (A) or (B) of paragraph (4) (as the case may be), a credit
for health insurance costs under section 35 of The Internal Revenue Code of
1986.
(C) Training and other services
A worker described in paragraph (3)(B) participating in the program
established under paragraph (1) is eligible to receive training approved under
section 236 and employment and case management services under section
235.
(3) Eligibility
(A) In general
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A group of workers certified under subchapter A of this chapter as eligible for
adjustment assistance under subchapter A of this chapter is eligible for
benefits described in paragraph (2) under the program established under
paragraph (1).
(B) Individual eligibility
A worker in a group of workers described in subparagraph (A) may elect to
receive benefits described in paragraph (2) under the program established
under paragraph (1) if the worker--
(i) is at least 50 years of age;
(ii) earns not more than $55,000 each year in wages from reemployment;
(iii)(I) is employed on a full-time basis as defined by the law of the State in
which the worker is employed and is not enrolled in a training program
approved under section 236; or
(II) is employed at least 20 hours per week and is enrolled in a training
program approved under section 236; and
(iv) is not employed at the firm from which the worker was separated.
(4) Eligibility period for payments
(A) Worker who has not received trade readjustment allowance
In the case of a worker described in paragraph (3)(B) who has not received a
trade readjustment allowance under part I of subchapter B of this chapter
pursuant to the certification described in paragraph (3)(A), the worker may
receive benefits described in paragraph (2) for a period not to exceed 2 years
beginning on the earlier of--
(i) the date on which the worker exhausts all rights to unemployment
insurance based on the separation of the worker from the adversely affected
employment that is the basis of the certification; or
(ii) the date on which the worker obtains reemployment described in
paragraph (3)(B).
(B) Worker who has received trade readjustment allowance
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In the case of a worker described in paragraph (3)(B) who has received a trade
readjustment allowance under part I of subchapter B of this chapter pursuant
to the certification described in paragraph (3)(A), the worker may receive
benefits described in paragraph (2) for a period of 104 weeks beginning on
the date on which the worker obtains reemployment described in paragraph
(3)(B), reduced by the total number of weeks for which the worker received
such trade readjustment allowance.
(5) Total amount of payments
(A) In general
The payments described in paragraph (2)(A) made to a worker may not
exceed--
(i) $12,000 per worker during the eligibility period under paragraph (4)(A);
or
(ii) the amount described in subparagraph (B) per worker during the
eligibility period under paragraph (4)(B).
(B) Amount described
The amount described in this subparagraph is the amount equal to the
product of--
(i) $12,000, and
(ii) the ratio of--
(I) the total number of weeks in the eligibility period under paragraph
(4)(B) with respect to the worker, to
(II) 104 weeks.
(6) Calculation of amount of payments for certain workers
(A) In general
In the case of a worker described in paragraph (3)(B)(iii)(II), paragraph (2)(A)
shall be applied by substituting the percentage described in subparagraph (B)
for “50 percent”.
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(B) Percentage described
The percentage described in this subparagraph is the percentage--
(i) equal to 1/2 of the ratio of--
(I) the number of weekly hours of employment of the worker referred to
in paragraph (3)(B)(iii)(II), to
(II) the number of weekly hours of employment of the worker at the time
of separation, but
(ii) in no case more than 50 percent.
(7) Limitation on other benefits
A worker described in paragraph (3)(B) may not receive a trade readjustment
allowance under part I of subchapter B of this chapter pursuant to the
certification described in paragraph (3)(A) during any week for which the
worker receives a payment described in paragraph (2)(A).
(b) Termination
(1) In general
Except as provided in paragraph (2), no payments may be made by a State
under the program established under subsection (a)(1) of this section after
December 31, 2010.
(2) Exception
Notwithstanding paragraph (1), a worker receiving payments under the
program established under subsection (a)(1) of this section on the termination
date described in paragraph (1) shall continue to receive such payments if the
worker meets the criteria described in subsection (a)(3) of this section.
SEC. 247. DEFINITIONS. [19 U.S.C. § 2319]
For purposes of this chapter--
(1) The term “adversely affected employment” means employment in a firm, if
workers of such firm are eligible to apply for adjustment assistance under this
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chapter.
(2) The term “adversely affected worker” means an individual who, because of
lack of work in adversely affected employment, has been totally or partially
separated from such employment.
(3) Subject to section 222(d)(5), the term “firm” means--
(A) a firm, including an agricultural firm, service sector firm, or public
agency; or
(B) an appropriate subdivision thereof.
(4) The term “average weekly wage” means one-thirteenth of the total wages
paid to an individual in the high quarter. For purposes of this computation, the
high quarter shall be that quarter in which the individual’s total wages were
highest among the first 4 of the last 5 completed calendar quarters immediately
before the quarter in which occurs the week with respect to which the
computation is made. Such week shall be the week in which total separation
occurred, or, in cases where partial separation is claimed, an appropriate week,
as defined in regulations prescribed by the Secretary.
(5) The term “average weekly hours” means the average hours worked by the
individual (excluding overtime) in the employment from which he has been or
claims to have been separated in the 52 weeks (excluding weeks during which
the individual was sick or on vacation) preceding the week specified in the last
sentence of paragraph (4).
(6) The term “partial separation” means, with respect to an individual who has
not been totally separated, that he has had--
(A) his hours of work reduced to 80 percent or less of his average weekly
hours in adversely affected employment, and
(B) his wages reduced to 80 percent or less of his average weekly wage in
such adversely affected employment.
(7) The term “public agency” means a department or agency of a State or local
government or of the Federal Government, or a subdivision thereof.
(8) The term “State” includes the District of Columbia and the Commonwealth
of Puerto Rico; and the term “United States” when used in the geographical
sense includes such Commonwealth.
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(9) The term “State agency” means the agency of the State which administers
the State law.
(10) The term “State law” means the unemployment insurance law of the State
approved by the Secretary of Labor under section 3304 of the Internal Revenue
Code of 1954.
(11) The term “total separation” means the layoff or severance of an individual
from employment with a firm in which adversely affected employment exists.
(12) The term “unemployment insurance” means the unemployment
compensation payable to an individual under any State law or Federal
unemployment compensation law, including chapter 85 of Title 5 and the
Railroad Unemployment Insurance Act [45 U.S.C. §§ 351 et seq.]. The terms
“regular compensation”, “additional compensation”, and “extended
compensation” have the same respective meanings that are given them in
section 205(2), (3), and (4) of the Federal-State Extended Unemployment
Compensation Act of 1970 (26 U.S.C. § 3304 note).
(13) The term “week” means a week as defined in the applicable State law.
(14) The term “week of unemployment” means a week of total, part-total, or
partial unemployment as determined under the applicable State law or Federal
unemployment insurance law.
(15) The term “benefit period” means, with respect to an individual--
(A) the benefit year and any ensuing period, as determined under applicable
State law, during which the individual is eligible for regular compensation,
additional compensation, or extended compensation, or
(B) the equivalent to such a benefit year or ensuing period provided for under
the applicable Federal unemployment insurance law.
(16) The term “on-the-job training” means training provided by an employer to
an individual who is employed by the employer.
(17)(A) The term “job search program” means a job search workshop or job
finding club.
(B) The term “job search workshop” means a short (1 to 3 days) seminar
designed to provide participants with knowledge that will enable the
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participants to find jobs. Subjects are not limited to, but should include, labor
market information, resume writing, interviewing techniques, and techniques
for finding job openings.
(C) The term “job finding club” means a job search workshop which includes a
period (1 to 2 weeks) of structured, supervised activity in which participants
attempt to obtain jobs.
(18) The term “service sector firm” means a firm engaged in the business of
supplying services.
(19) The term “adversely affected incumbent worker” means a worker who--
(A) is a member of a group of workers who have been certified as eligible to
apply for adjustment assistance under subchapter A of this chapter;
(B) has not been totally or partially separated from adversely affected
employment; and
(C) the Secretary determines, on an individual basis, is threatened with total
or partial separation.
SEC. 248. REGULATIONS. [19 U.S.C. § 2320]
(a) In general
The Secretary shall prescribe such regulations as may be necessary to carry out
the provisions of this chapter.
(b) Consultations
Not later than 90 days before issuing a regulation under subsection (a), the
Secretary shall consult with the Committee on Finance of the Senate and the
Committee on Ways and Means of the House of Representatives with respect to
the regulation.
SEC. 249. SUBPOENA POWER. [19 U.S.C. § 2321]
(a) Subpoena by Secretary
The Secretary may require by subpoena the attendance of witnesses and the
production of evidence necessary for the Secretary to make a determination
under the provisions of this chapter.
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(b) Court order
If a person refuses to obey a subpoena issued under subsection (a) of this section,
a United States district court within the jurisdiction of which the relevant
proceeding under this chapter is conducted may, upon petition by the Secretary,
issue an order requiring compliance with such subpoena.
SEC. 249A. OFFICE OF TRADE ADJUSTMENT ASSISTANCE. [19 U.S.C. §
2322]
(a) Establishment
There is established in the Department of Labor an office to be known as the
Office of Trade Adjustment Assistance (in this section referred to as the “Office”).
(b) Head of Office
The head of the Office shall be an administrator, who shall report directly to the
Deputy Assistant Secretary for Employment and Training.
(c) Principal functions
The principal functions of the administrator of the Office shall be--
(1) to oversee and implement the administration of trade adjustment assistance
program under this chapter; and
(2) to carry out functions delegated to the Secretary of Labor under this chapter,
including--
(A) making determinations under section 223;
(B) providing information under section 225 about trade adjustment
assistance to workers and assisting such workers to prepare petitions or
applications for program benefits;
(C) providing assistance to employers of groups of workers that have filed
petitions under section 221 in submitting information required by the
Secretary relating to the petitions;
(D) ensuring workers covered by a certification of eligibility under
subchapter A of this chapter receive the employment and case management
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services described in section 235;
(E) ensuring that States fully comply with agreements entered into under
section 239;
(F) advocating for workers applying for benefits available under this chapter;
(G) establishing and overseeing a hotline that workers, employers, and other
entities may call to obtain information regarding eligibility criteria,
procedural requirements, and benefits available under this chapter; and
(H) carrying out such other duties with respect to this chapter as the Secretary
specifies for purposes of this section.
(d) Administration
(1) Designation
The administrator shall designate an employee of the Department of Labor
with appropriate experience and expertise to carry out the duties described in
paragraph (2).
(2) Duties
The employee designated under paragraph (1) shall--
(A) receive complaints and requests for assistance related to the trade
adjustment assistance program under this chapter;
(B) resolve such complaints and requests for assistance, in coordination with
other employees of the Office;
(C) compile basic information concerning such complaints and requests for
assistance; and
(D) carry out such other duties with respect to this chapter as the Secretary
specifies for purposes of this section.
SEC. 249B. COLLECTION AND PUBLICATION OF DATA AND REPORTS;
INFORMATION TO WORKERS. [19 U.S.C. § 2323]
(a) In general
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Not later than 180 days after February 17, 2009, the Secretary shall implement a
system to collect and report the data described in subsection (b), as well as any
other information that the Secretary considers appropriate to effectively carry out
this chapter.
(b) Data to be included
The system required under subsection (a) shall include collection of and
reporting on the following data for each fiscal year:
(1) Data on petitions filed, certified, and denied
(A) The number of petitions filed, certified, and denied under this chapter.
(B) The number of workers covered by petitions filed, certified, and denied.
(C) The number of petitions, classified by
(i) the basis for certification, including increased imports, shifts in
production, and other bases of eligibility; and
(ii) congressional district of the United States.
(D) The average time for processing such petitions.
(2) Data on benefits received
(A) The number of workers receiving benefits under this chapter.
(B) The number of workers receiving each type of benefit, including training,
trade readjustment allowances, employment and case management services,
and relocation and job search allowances, and, to the extent feasible, credits
for health insurance costs under section 35 of the Internal Revenue Code of
1986.
(C) The average time during which such workers receive each such type of
benefit.
(3) Data on training
(A) The number of workers enrolled in training approved under section 236,
classified by major types of training, including classroom training, training
through distance learning, on-the-job training, and customized training.
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(B) The number of workers enrolled in full-time training and part-time
training.
(C) The average duration of training.
(D) The number of training waivers granted under section 231(c), classified
by type of waiver.
(E) The number of workers who complete training and the duration of such
training.
(F) The number of workers who do not complete training.
(4) Data on outcomes
(A) A summary of the quarterly reports required under section 239(j).
(B) The sectors in which workers are employed after receiving benefits under
this chapter.
(5) Data on rapid response activities
Whether rapid response activities were provided with respect to each petition
filed under section 221.
(c) Classification of data
To the extent possible, in collecting and reporting the data described in
subsection (b), the Secretary shall classify the data by industry, State, and
national totals.
(d) Report
Not later than December 15 of each year, the Secretary shall submit to the
Committee on Finance of the Senate and the Committee on Ways and Means of
the House of Representatives a report that includes--
(1) a summary of the information collected under this section for the preceding
fiscal year;
(2) information on the distribution of funds to each State pursuant to section
236(a)(2); and
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(3) any recommendations of the Secretary with respect to changes in eligibility
requirements, benefits, or training funding under this chapter based on the
data collected under this section.
(e) Availability of data
(1) In general
The Secretary shall make available to the public, by publishing on the website
of the Department of Labor and by other means, as appropriate--
(A) the report required under subsection (d);
(B) the data collected under this section, in a searchable format; and
(C) a list of cooperating States and cooperating State agencies that failed to
submit the data required by this section to the Secretary in a timely manner.
(2) Updates
The Secretary shall update the data under paragraph (1) on a quarterly basis.
Chapter 5—Miscellaneous Provisions
SEC. 282. TRADE MONITORING AND DATA COLLECTION. [19 U.S.C. §
2393]
(a) Monitoring programs
The Secretary of Commerce and the Secretary of Labor shall establish and
maintain a program to monitor imports of articles and services into the United
States which will reflect changes in the volume of such imports, the relation of
such imports to changes in domestic production and domestic supply of services,
changes in employment within domestic industries producing articles or
supplying services like or directly competitive with such imports, and the extent
to which such changes in production, or supply of services, and employment are
concentrated in specific geographic regions of the United States. A summary of
the information gathered under this section shall be published regularly and
provided to the Adjustment Assistance Coordinating Committee, the
International Trade Commission, and to the Congress.
(b) Collection of data and reports on service sector
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(1) Secretary of Labor
Not later than 90 days after February 17, 2009, the Secretary of Labor shall
implement a system to collect data on adversely affected workers employed in
the service sector that includes the number of workers by State and industry,
and by the cause of the dislocation of each worker, as identified in the
certification.
(2) Secretary of Commerce
Not later than 1 year after February 17, 2009, the Secretary of Commerce shall, in
consultation with the Secretary of Labor, conduct a study and submit to the
Committee on Finance of the Senate and the Committee on Ways and Means of
the House of Representatives a report on ways to improve the timeliness and
coverage of data on trade in services, including methods to identify increased
imports due to the relocation of United States firms to foreign countries, and
increased imports due to United States firms acquiring services from firms in
foreign countries.
SEC. 284. JUDICIAL REVIEW. [19 U.S.C. § 2395]
(a) Petition for review; time and place of filing
A worker, group of workers, certified or recognized union, or authorized
representative of such worker or group aggrieved by a final determination of the
Secretary of Labor under section 223 of this title, a firm or its representative or
authorized representative of a community aggrieved by a final determination of
the Secretary of Commerce under section 251 of this title, an agricultural
commodity producer (as defined in section 291(2) of this title) aggrieved by a
determination of the Secretary of Agriculture under section 293 or 296 of this
title, or a community or authorized representative of a community aggrieved by
a final determination of the Secretary of Commerce under section 271 of this title
may, within sixty days after notice of such determination, commence a civil
action in the United States Court of International Trade for review of such
determination. The clerk of such court shall send a copy of the summons and the
complaint in such action to the Secretary of Labor, the Secretary of Commerce, or
the Secretary of Agriculture, as the case may be. Upon receiving a copy of such
summons and complaint, such Secretary shall promptly certify and file in such
court the record on which he based such determination.
(b) Findings of fact by Secretary; conclusiveness; new or modified findings
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The findings of fact by the Secretary of Labor, the Secretary of Commerce, or the
Secretary of Agriculture, as the case may be, if supported by substantial
evidence, shall be conclusive; but the court, for good cause shown, may remand
the case to such Secretary to take further evidence, and such Secretary may
thereupon make new or modified findings of fact and may modify his previous
action, and shall certify to the court the record of the further proceedings. Such
new or modified findings of fact shall likewise be conclusive if supported by
substantial evidence.
(c) Determination; review by Supreme Court
The Court of International Trade shall have jurisdiction to affirm the action of the
Secretary of Labor, the Secretary of Commerce, or the Secretary of Agriculture, as
the case may be, or to set such action aside, in whole or in part. The judgment of
the Court of International Trade shall be subject to review by the United States
Court of Appeals for the Federal Circuit as prescribed by the rules of such court.
The judgment of the Court of Appeals for the Federal Circuit shall be subject to
review by the Supreme Court of the United States upon certiorari as provided in
section 1256 of Title 28.
SEC. 288. SENSE OF CONGRESS. [19 U.S.C. § 2397a]
It is the sense of Congress that the Secretaries of Labor, Commerce, and
Agriculture should apply the provisions of chapter 2 of this title (relating to
adjustment assistance for workers), chapter 3 of this title (relating to adjustment
assistance for firms), chapter 4 of this title (relating to adjustment assistance for
communities), and chapter 6 of this title (relating to adjustment assistance for
farmers), respectively, with the utmost regard for the interests of workers, firms,
communities, and farmers petitioning for benefits under such chapters of this
title.
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Linked official document 1: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2009/TEGL22-08aA.pdf
ATTACHMENT A
Operating Instructions for Implementing the Amendments to
the Trade Act of 1974 Enacted by
the Trade and Globalization Adjustment Assistance Act of 2009
TABLE OF CONTENTS
INTRODUCTION A-1
DEFINITIONS A-2
A. REAUTHORIZATION AND TERMINATION A-3
B. GROUP ELIGIBILITY REQUIREMENTS A-4
C. TRADE READJUSTMENT ALLOWANCES A-14
D. TRAINING A-30
E. JOB SEARCH ALLOWANCES A-43
F. RELOCATIOIN ALLOWANCES A-44
G. EMPLOYMENT AND CASE MANAGEMENT SERVICES A-46
H. REEMPLOYMENT TRADE ADJUSTMENT ASSISTANCE A-51
I. STATE OPERATIONS A-64
J. HEALTH COVERAGE TAX CREDIT A-69
INTRODUCTION
These Operating Instructions only address changes to the TAA program made by
the 2009 Amendments. For issues that are not addressed by these operating
instructions, States must continue to comply with Training and Employment
Guidance Letter (TEGL) 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; and TEGL 2-03, Interim Operating Instructions for
Implementing the Alternative Trade Adjustment Assistance (ATAA) for Older
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Workers Program Established by the Trade Adjustment Assistance Reform Act
of 2002, and Change 1; and other such program letters issued by the Department
applicable to the TAA benefits and assistance for adversely affected workers
covered under TAA certifications resulting from petitions filed before May 18,
2009.
DEFINITIONS
For purposes of these operating instructions, the following definitions will apply:
• 2002 Act means the Trade Act of 1974, P. L. No. 93-618, as amended
through the Trade Adjustment Assistance Reform Act of 2002, P.L. No.
107-210.
• 2002 Amendments means the amendments made to the Trade Act of 1974
by the Trade Adjustment Assistance Reform Act of 2002, P. L. No. 107-210.
• 2009 Act means the Trade Act as it stands in 2009, including the Trade and
Globalization Adjustment Assistance Act of 2009 (TGAAA) amendments.
• 2009 Amendments means the TGAAA, Division B, Title I, Subtitle I of the
American Recovery and Reinvestment Act of 2009, P.L. No. 111-5.
• Trade Act of 1974, means the Trade Act of 1974, P. L. No. 93-618, as
amended (through P. L. No. 106-113).
• Recovery Act means the American Recovery and Reinvestment Act of 2009,
Pub. L. No. 111-5.
• ATAA means the Demonstration Project for Alternative Trade Adjustment
Assistance for Older Workers, under section 246 of the 2002 Act, as in
effect on May 17, 2009, the day before the effective date of the 2009 Act.
• CSA means Cooperating State Agency.
• Department or DOL means the U.S. Department of Labor.
• DOC means U.S. Department of Commerce.
• Secretary means the Secretary of Labor.
• TAA program means the Trade Adjustment Assistance for Workers
program.
• TRA means Trade Readjustment Allowances.
• RTAA means Reemployment Trade Adjustment Assistance, under Section
246 of the 2009 Act.
• HCTC means Health Coverage Tax Credit. (Section 35, Internal Revenue
Code (I.R.C.) of 1986) (26 U.S.C. 35)
• WIA means the Workforce Investment Act of 1998, P.L. No. 105-220, as
amended. (29 U.S.C. 2801 et seq.)
• Trade Affected Worker means workers who are members of a certified
worker group and have been separated or threatened with separation.
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A. REAUTHORIZATION AND TERMINATION
Statutory Change: Sections 1891 through 1893 of the 2009 Amendments contain
effective dates for the 2009 Act and amend section 245, 246 and 285 relating to the
authorization of appropriations and termination/phase-out provisions
applicable to the TAA program under the 2002 Act and the TAA program under
the 2009 Act.
Administration: Section 1891 of the 2009 Amendments provides that the
effective date for the 2009 Act is 90 days after the date of enactment and the
amendments apply to petitions filed on or after the effective date. Since the 2009
Amendments were signed into law on February 17, 2009, the effective date is
May 18, 2009. Therefore, petitions filed on or after that date will be governed by
the 2009 Act and the 2009 Act will apply to benefits available to workers covered
under certifications issued in response to such petitions. Workers covered by
certifications issued in response to petitions filed before May 18, 2009 will
continue to be governed by the provisions of the 2002 Act. This distinction
means that CSAs will be providing benefits under two different sets of rules for
workers covered by petitions filed before and on or after May 18, 2009. Workers
covered by petitions filed before May 18, 2009, will be entitled to the benefits and
services available under the TAA program under the 2002 Act, including the
opportunity for ATAA-certified workers to elect to participate in the ATAA
program and receive the ATAA wage supplement benefit. Workers covered by
petitions filed on or after May 18, 2009, will be entitled to benefits and services
under the new TAA program under the 2009 Act, including the RTAA wage
supplement benefit. The ATAA program will not terminate, as provided in the
2002 Act, five years after it was implemented by a State. Instead, workers
covered by certifications for TAA and ATAA based on petitions filed before May
18, 2009, will continue to be eligible to receive the ATAA wage supplement
benefit available under the 2002 Act.
Section 1892 amends section 245 of the 2002 Act to extend the authorization of
appropriations through December 31, 2010. This section also amends section 285
of the 2002 Act to extend the termination/phase-out provision to December 31,
2010. Under the termination phase-out provision, no petitions filed after
December 31, 2010, will be certified. Workers covered by certifications based on
petitions filed on or before December 31, 2010, will be eligible to continue to
receive services and benefits in accordance with the requirements in effect before
the termination.
Section 1893 contains other sunset provisions relating to the 2009 Amendments.
DOL does not believe this section needs to be addressed in these operating
instructions but will issue additional instructions if actions relating to these
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provisions were to become necessary.
The following operating instructions explain how the 2009 Amendments
changed the 2002 Act, and provide guidance on the operation of the new TAA
program.
B. GROUP ELIGIBILITY REQUIREMENTS
B.1. Primary Worker Certification Criteria
Statutory Change: Section 1801 of the 2009 Amendments amends Section 222(a)
of the 2002 Act to read:
(a) IN GENERAL. A group of workers shall be certified by the Secretary as eligible to
apply for adjustment assistance under this chapter pursuant to a petition filed under
section 221 if the Secretary determines that—
(1) a significant number or proportion of the workers in such workers’ firm have
become totally or partially separated, or are threatened to become totally or partially
separated; and
(2)(A)(i) the sales or production, or both, of such firm have decreased absolutely;
(ii)(I) imports of articles or services like or directly competitive with articles
produced or services supplied by such firm have increased;
(II) imports of articles like or directly competitive with articles—
(aa) into which one or more component parts produced by such firm are
directly incorporated, or
(bb) which are produced directly using services supplied by such firm,
have increased; or
(III) imports of articles directly incorporating one or more component parts
produced outside the United States that are like or directly competitive with
imports of articles incorporating one or more component parts produced by such
firm have increased; and
(iii) the increase in imports described in clause (ii) contributed importantly to
such workers’ separation or threat of separation and to the decline in the sales or
production of such firm; or
(B)(i)(I) there has been a shift by such workers’ firm to a foreign country in the
production of articles or the supply of services like or directly competitive with
articles which are produced or services which are supplied by such firm; or
(II) such workers’ firm has acquired from a foreign country articles or services
that are like or directly competitive with articles which are produced or services
which are supplied by such firm; and
(ii) the shift described in clause (i)(I) or the acquisition of articles or services
described in clause (i)(II) contributed importantly to such workers’ separation or
threat of separation.
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Administration: As explained in greater detail below, the 2009 Amendments
substantially expand program coverage by expanding the groups of worker that
the Department must certify. The 2009 Amendments expand the coverage of
workers for firms that produce articles. Under the 2002 Act, the Department
could not certify workers for firms that produce a component part for a domestic
article, where imports of articles like or directly competitive with that domestic
article caused the separations of workers producing that component part. The
2009 Act now provides, in these circumstances, for certification of the workers
making the component part. It also provides for certification where separations
are caused by increased imports of articles directly incorporating one or more
component parts produced outside the United States are like or directly
competitive with imports of articles incorporating one or more component parts
produced by the workers’ firm.
Significantly, the 2009 Amendments amend Section 222(a) of the 2002 Act to
expand coverage to workers for firms that supply services on the same terms as
workers for firms that produce articles. In addition, the 2002 Act covered
workers only where production was shifted to certain foreign countries, unless
there “has been or is likely to be an increase in imports like or directly
competitive with articles produced by” the workers’ firm. The 2009 Act covers
workers where there was a shift in production or the supply of services to any
foreign country, regardless of whether there is either an actual or likely increase
in imports.
The 2009 Act also codifies current practice of covering workers in a firm that
acquires articles from a foreign country that are like or directly competitive with
articles that are produced by those workers’ firm. Similarly, the 2009 Act extends
this practice to cover workers in a firm that acquires services from a foreign
country that are like or directly competitive with services that are supplied by
those workers’ firm.
In order for the Department to issue a certification, the petition must satisfy these
three criteria:
1. A significant number or proportion of the workers in the workers’ firm,
must have become totally or partially separated or be threatened with
total or partial separation.
The first criterion has not changed from the first worker group eligibility
criterion applied to the TAA program since its inception. However, the 2009
Amendments amend the definition of a “firm” to include an “appropriate
subdivision,” since those Amendments delete the latter term from the
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certification criteria. Accordingly, the term “firm,” as used in these operating
instructions, includes the “appropriate subdivision.”
2. The second criterion is satisfied if either (2)(A)(i) or (2)(B)(i) is satisfied:
(i) Sales or production, or both, at the workers’ firm must have decreased
absolutely, and
(ii)(a) imports of articles or services like or directly competitive with
articles or services produced or supplied by the workers’ firm have
increased, or
(b) imports of articles like or directly competitive with articles into
which the component part produced by the workers’ firm was directly
incorporated have increased; or
(c) imports of articles like or directly competitive with articles which
are produced directly using the services supplied by the workers’ firm
have increased; or
(d) imports of articles directly incorporating component parts not
produced in the U.S. that are like or directly competitive with the article
into which the component part produced by the workers’ firm was
directly incorporated have increased.
The first part of this requirement has not changed from the worker group
eligibility criterion applied to the TAA program since its inception.
The second part of this requirement significantly expands the TAA program’s
coverage to include certification based on increased imports of services as well as
increased imports of articles. It also expands coverage based on increased
imports to include imports of articles that either incorporate component articles
produced by the workers’ firm or are produced directly using services supplied
by the workers’ firm. In addition, clause (ii) expands coverage by allowing
certification in situations where there has been an increase in imports from
articles incorporating component parts produced in the United States to articles
incorporating component parts produced outside the United States.
(B)(i)(I) There has been a shift by the workers’ firm to a foreign country in
the production of articles or supply of services like or directly competitive
with those produced/supplied by the workers’ firm; or
(ii) there has been an acquisition from a foreign country by the workers’
firm of articles/services that are like or directly competitive with those
produced/supplied by the workers’ firm.
The first part of this requirement now includes workers for firms that supply
services, thus significantly expanding coverage to include shifts in the supply of
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services by the workers’ firm. It also now includes shifts of the production of
articles or the supply of services to any foreign country by the workers’ firm.
The second part of this requirement (subclause ii) is new and provides for
worker group eligibility based on foreign contracting by the workers’ firm.
Subclause (ii) is met if the workers’ firm has acquired from a foreign source
articles or services like or directly competitive with those produced/supplied by
the workers’ firm.
3. The increase in imports or shift/acquisition must have contributed
importantly to the workers’ separation or threat of separation.
The legislation codifies the Department’s practice of interpreting the 2002 Act to
require a causal nexus between the shift of production to a foreign country and
the workers’ separations. Previously, the contributed importantly criterion was
explicit only in increased imports cases and was implicit in shift cases. The 2009
Amendments now make the requirement explicit for cases involving a shift in
production or a shift in acquisition of a service.
B.2. Public Agency Worker Certification Criteria
Statutory Change: Section 1801 of the 2009 Amendments adds a new provision
at subsection (b) of Section 222 of the 2009 Act. Section 222(b) now reads:
(b) ADVERSELY AFFECTED WORKERS IN PUBLIC AGENCIES.—A group of
workers in a public agency shall be certified by the Secretary as eligible to apply for
adjustment assistance under this chapter pursuant to a petition filed under section 221 if
the Secretary determines that—
(1) a significant number or proportion of the workers in the public agency have
become totally or partially separated, or are threatened to become totally or partially
separated;
(2) the public agency has acquired from a foreign country services like or directly
competitive with services which are supplied by such agency; and
(3) the acquisition of services described in paragraph (2) contributed importantly to
such workers’ separation or threat of separation.
Administration: Workers of a public agency that has acquired from a foreign
source services like or directly competitive with those supplied by the agency
may now be certified as eligible to apply for TAA. Section 247(7) of the 2009 Act
defines “public agency” as a “department or agency of a State or local
government or of the Federal Government, or a subdivision thereof.”
In order for a “public agency worker” certification to be issued, the petition must
satisfy these three criteria:
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1. A significant number or proportion of the workers in the public agency
have become totally or partially separated or be threatened with total or
partial separation.
2. The public agency has acquired from a foreign country services that are
like or directly competitive with the services supplied by the public
agency.
3. The acquisition of services described in criterion 2 contributed
importantly to the workers’ separation or threat of separation.
The new certification criteria treat similarly workers in firms in the private sector
that perform services and workers in the public sector. The first criterion has
been used for the certification of workers in firms that produce articles since the
inception of the TAA program. The second criterion mirrors a certification
criterion for workers in firms in the private sector. The third criterion similarly
follows the certification criterion for workers in the private sector.
B.3. Secondarily-Affected Worker Certification Criteria
Statutory Change: Section 1801 of the 2009 Amendments renumbers subsection
(b) of Section 222 of the 2002 Act as subsection (c) and amends new Section 222(c)
to read:
(c) ADVERSELY AFFECTED SECONDARY WORKERS.—A group of workers
shall be certified by the Secretary as eligible to apply for trade adjustment assistance
benefits under this chapter pursuant to a petition filed under section 221 if the Secretary
determines that—
(1) a significant number or proportion of the workers in the workers’ firm or an
appropriate subdivision of the firm have become totally or partially separated, or are
threatened to become totally or partially separated;
(2) the workers’ firm is a supplier or downstream producer to a firm that employed a
group of workers who received a certification of eligibility under subsection (a), and
such supply or production is related to the article or service that was the basis for such
certification (as defined in subsection (d) (3)and (4)); and
(3) either
(A) the workers firm is a supplier and the component parts it supplied to the firm
described in paragraph (2) accounted for at least 20 percent of the production or sales
of the workers’ firm; or
(B) a loss of business by the workers’ firm with the firm described in paragraph (2)
contributed importantly to the workers’ separation or threat of separation determined
under paragraph (I).
Section 1801 of the 2009 Amendments amends Section 222 of the Act so that Section
222(d)(3) – (4) now reads:
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(3) DOWNSTREAM PRODUCER.—
(A) IN GENERAL.—The term ‘downstream producer’ means a firm that performs
additional, value-added production processes or services directly for another firm for
articles or services with respect to which a group of workers in such other firm has been
certified under subsection (a).
(B) VALUE-ADDED PRODUCTION PROCESSES OR SERVICES.—For purposes of
subparagraph (A), value-added production processes or services include final assembly,
finishing, testing, packaging, or maintenance or transportation services.
(4) SUPPLIER—The term “supplier” means a firm that produces and supplies directly to
another firm component parts for articles, or services, used in the production of articles or
in the supply of services, as the case may be, that were the basis for a certification of
eligibility under subsection (a) of a group of workers employed by such other firm.
Administration: The 2002 Act covers workers of a firm that supplies component
parts ( a “supplier”) a primary firm (a firm that employs a worker group certified
as eligible to apply for TAA) and workers of a firm that provides additional,
value-added production processes (a “downstream producer”) for a primary
firm.
The 2009 Act now covers suppliers and downstream producers where the
certification of workers for the primary firm was based upon the firm’s supply of
services. Further, workers for suppliers and downstream producers may now be
certified on the basis of the services they supply to, or the additional, value-
added services they provide for, the primary firm. However, the requirement
under the 2002 Act that the supplier must directly supply the primary firm has
not changed. The component parts from the supplier must be used in the
production of articles or in the supply of services that were the basis for the
certification of a group of workers in the primary firm. Further, the component
parts or services that the supplier supplied to the primary firm must either
account for at least 20 percent of the production or sales of the supplier, or the
loss of business with the primary firm by the upstream firm must have
contributed importantly to the upstream workers’ separations or threat of
separations.
The “direct” requirement under the 2002 Act for downstream producers also
remains unchanged: The downstream producer must perform additional, value-
added production processes or services “directly” for a primary firm for articles
or services with respect to which the group of workers in the primary firm was
certified. However, the 2009 Amendments have eliminated the requirement that
downstream workers may only be certified as secondarily affected if the workers
of the primary firm are certified based on increased imports from Canada or
Mexico or a shift of production to Canada or Mexico.
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In order for a certification to be issued, the petition must satisfy these three
criteria:
1. A significant number or proportion of the workers in the workers’ firm
must have become totally or partially separated or be threatened with
total or partial separation.
2. The workers’ firm (or subdivision) is a supplier or downstream producer
to a primary firm and such supply or production is related to the article or
service that was the basis for the primary firm’s workers’ certification.
3. Either A or B below is satisfied:
(A) the workers’ firm is a supplier and the component parts it supplied to
the primary firm (or subdivision) accounted for at least 20 percent of the
production or sales of the workers’ firm, or
(B) a loss of business by the workers’ firm with the primary firm (or
subdivision) contributed importantly to the workers’ separation or threat
of separation.”
The new certification criteria permit a group of workers in a downstream
producer to be eligible for TAA if the primary firm’s certification is linked to
trade with any country, not just Canada or Mexico. The first criterion has not
changed from the worker group eligibility criteria applied to the TAA program
since its inception. The second criterion reflects the elimination of the
requirement in the 2002 Act that the certification of eligibility of the downstream
producer’s customer must be based on increased imports or a shift in production
to Canada or Mexico. The third criterion is similar to the language in the 2002
Act, but also allows for secondary worker coverage based on certifications of
workers in service sector firms. In all cases, there must have been a loss of sales
to the certified firm.
B.4. Verification of Information
Statutory Change: Section 1801(b) of the 2009 Amendments adds a new
subsection (e) to Section 222 of the 2009 Act, as follows:
“(e)(3) VERIFICATION OF INFORMATION.—
(A) CERTIFICATION.— The Secretary shall require a firm or customer to
certify—
(i) all information obtained under paragraph (1) from the firm or the
customer (as the case may be) through questionnaires; and
(ii) all other information obtained under paragraph (1) from the firm or
the customer (as the case may be) on which the Secretary relies in
certifying a group of workers under section 223, unless the Secretary has a
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reasonable basis for determining that such information is accurate and
complete without being certified.
(B) USE OF SUBPOENAS.— The Secretary shall require a workers’ firm or a
customer of the workers’ firm to provide information requested by the Secretary under
paragraph (1) by subpoena pursuant to section 249 if the firm or customer (as the case
may be) fails to provide the information within 20 days of the Secretary’s request, unless
the firm or customer (as the case may be) demonstrates to the satisfaction of the Secretary
that the firm or customer (as the case may be) will provide the information within a
reasonable period of time.
(C) PROTECTION OF CONFIDENTIAL INFORMATION.— The Secretary
may not release information obtained under paragraph (1) that the Secretary considers to
be confidential business information unless the firm or customer (as the case may be)
submitting the confidential business information had notice at the time of submission,
that the information would be released by the Secretary, or the firm or customer (as the
case may be) subsequently consents to the release if the information. Nothing in this
paragraph shall be construed to prohibit the Secretary from providing such confidential
business information to a court in camera or to another party under a protective order
issued by a court.
Administration: The 2009 Amendments do not change the Department’s
obligation to make a determination on the petitioning workers’ eligibility to
apply for TAA based on substantive evidence, its authority to subpoena
information necessary to make a determination on a petition, or its obligation to
protect confidential information.
The 2009 Act requires a firm or customer to verify the information it provides to
the Department during the investigation of a TAA petition. Under the new
program, the Department will require the firm or customer providing
information through questionnaires or in other formats to certify that the
information is accurate and complete, unless the Department has a reasonable
basis for determining that such certification is not required. The various forms
and communications used by the Department in collecting relevant information
may include such an affirmation requirement.
The 2009 Act codifies the Department’s practice of issuing subpoenas when the
Department is unable, through other means, to obtain information necessary for
making a determination. Under current practice, the issuance of the subpoena
does not follow any established timeframe. Under the 2009 Act, the Department
is required to issue a subpoena if the firm or customer fails to provide the
information within twenty (20) days of the Department’s request, unless the firm
or customer has demonstrated to the Department’s satisfaction that the
information sought will be provided within a reasonable period of time.
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The 20 day period begins once the Department issues an information request, not
at the 20th day of the investigation. Thus, for example, if a petition is filed on
June 5 and if a Confidential Data Request is issued on June 11, 2009, and the firm
fails to provide the information, the Department may issue a subpoena on July 1,
2009.
Section 222(e)(3)(C) of the 2009 Act contains slightly different confidentiality
protections on confidential information than those applied under the 2002 Act.
The 2009 Act expressly prohibits DOL from releasing information it gathers in
the course of the investigation of a petition where DOL considers that
information to be “confidential business information.” DOL currently defines
that term in 29 C.F.R. 90.33.
The 2009 Act provides two exceptions to this confidentiality requirement, the
first occurs where “the firm or customer . . . submitting the confidential business
information had notice, at the time of submission, that the information would be
released by” DOL. If DOL determines that a firm or customer submitted any
information in confidence that is not entitled to confidentiality, then DOL,
consistent with past practice, will notify the firm or customer of this finding and
permit it to withdraw the information.
The 2009 Act’s second exception to confidentiality is the permission it affords
DOL to provide “confidential business information to a court in camera or to
another party under a protective order issued by a court.” This codifies past
practice where DOL submits confidential business information under seal to the
U.S. Court of International Trade on appeal of DOL’s denial of certification of a
petition. It also codifies DOL’s practice of releasing, under a protective order
issued by a court, confidential business information to plaintiffs’ attorneys in
these proceedings.
In addition to the 2009 Act exceptions, DOL will release confidential business
information with the permission of the entity submitting it, which is consistent
with the intent of the 2009 Amendments. DOL is committed to protecting
business confidential information to the full extent of the law.
B.5. Firms Identified by the International Trade Commission
Statutory Change: Section 1802 of the 2009 Amendments amends Section 222 of
the 2002 Act by adding a new subsection (f):
(f) FIRMS IDENTIFIED BY THE INTERNATIONAL TRADE COMMISSION.—Notwithstanding
any other provision of this chapter, a group of workers covered by a petition filed under
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section 221 shall be certified under subsection (a) as eligible to apply for adjustment
assistance under this chapter if—
(1) the workers’ firm is publicly identified by name by the International Trade
Commission as a member of a domestic industry in an investigation resulting in—
(A) an affirmative determination of serious injury or threat thereof under section
202(b)(1);
(B) an affirmative determination of market disruption or threat thereof under
section 421(b)(1); or
(C) an affirmative final determination of material injury or threat thereof under
section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C.
1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the 1-year period beginning on the date on which—
(A) a summary of the report submitted to the President by the International Trade
Commission under section 202(f)(1) with respect to the affirmative determination
described in paragraph (1)(A) is published in the Federal Register under section
202(f)(3); or
(B) notice of an affirmative determination described in subparagraph (B) or (C) of
paragraph (1) is published in the Federal Register; and
(3) the workers have become totally or partially separated from the workers’ firm
within—
(A) the 1-year period described in paragraph (2); or
(B) notwithstanding section 223(b), the 1-year period preceding the 1-year period
described in paragraph (2).
Administration: The 2009 Act provides, for the first time, for certification of a
petition without a Departmental investigation upon certain findings by the
International Trade Commission (ITC).
In order for a certification to be issued, the petition must satisfy these three
criteria:
1. The workers’ firm must be publicly identified by name by the ITC as a
member of a domestic industry in an investigation resulting in a finding
of injury or market disruption under section 202(b)(1), 421(b)(1),
705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930.
2. The petition is filed within one year after the date on which a summary of
the ITC’s report to the President, or the ITC’s affirmative finding, is
published in the Federal Register.
3. The workers of the firm identified in criterion 1 were totally or partially
separated no more than one year before the publication date of the Federal
Register notice described in criterion 2 and no later than one year after that
date.
Should the petition be filed more than one year after the date of the publication
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of the ITC’s Federal Register notice, the Department will investigate whether the
petition meets the other certification criteria. Further, although section 223(b)
provides that a certification will not cover workers separated more than one year
before the date of the petition on which that certification was granted, section
222(f)(3)(B) provides that a certification based upon an ITC finding covers
workers separated up to a year before the date of the publication of the ITC’s
Federal Register notice.
C. TRADE READJUSTMENT ALLOWANCES (TRA)
C.1. TRA Eligibility
Statutory Change: Sections 1801, 1821 and 1858 of the 2009 Amendments amend
Section 231(a)(1) – (4) of the 2002 Act to read:
(a) Payment of a trade readjustment allowance shall be made to an adversely affected
worker covered by a certification under subchapter A who files an application for such
allowance for any week of unemployment which begins on or after the date of such
certification, if the following conditions are met:
(1) Such worker’s total or partial separation before the worker’s application under this
chapter occurred—
(A) on or after the date, as specified in the certification under which the worker is
covered, on which total or partial separation began or threatened to begin in the
adversely affected employment,
(B) before the expiration of the 2-year period beginning on the date on which the
determination under section 223 was made, and
(C) before the termination date (if any) determined pursuant to section 223(d).
(2) Such worker had, in the 52-week period ending with the week in which such total
or partial separation occurred, at least 26 weeks of employment at wages of $30 or more
a week in adversely affected employment with a single firm, or, if data with respect to
weeks of employment with a firm are not available, equivalent amounts of employment
computed under regulations prescribed by the Secretary. For the purpose of this
paragraph, any week in which such worker—
(A) is on the employer-authorized leave for purposes of vacation, sickness, injury,
maternity, or inactive duty or active duty military service for training,
(B) does not work because of a disability that is compensable under a workmen’s
compensation law or plan of a State or the United States,
(C) had his employment interrupted in order to serve as a full-time representative of
a labor organization in such firm, or
(D) is on call-up for purposes of active duty in a reserve status in the Armed Forces
of the United States, provided such active duty is “Federal service” as defined in
section 8521(a)(1) of title 5, United States Code shall be treated as a week of
employment at wages of $30 or more, but not more than 7 weeks, in case of weeks
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described in subparagraph (A) or (C), or both (and not more than 26 weeks, in the
case of weeks described in subparagraph (B) or (D)), may be treated as weeks of
employment under this sentence.
(3) Such worker—
(A) was entitled to (or would be entitled to if the worker applied therefor)
unemployment insurance for a week within the benefit period (i) in which such total
or partial separation took place, or (ii) which began (or would have begun) by reason
of the filing of a claim for unemployment insurance by such worker after such total or
partial separation;
(B) has exhausted all rights to any unemployment insurance except additional
compensation that is funded by a State and is not reimbursed from any Federal finds,
to which the worker was entitled (or would be entitled if he applied therefor); and
(C) does not have an unexpired waiting period applicable to the worker for any such
unemployment insurance.
(4) Such worker, with respect to such week of unemployment, would not be
disqualified for extended compensation payable under the Federal-State Extended
Unemployment Compensation Act of 1970 by reason of the work acceptance and job
search requirements in section 202(a)(3) of such Act.
Administration: Section 1821 of the 2009 Amendments changes Section 231(a) of
the 2002 Act by eliminating the 60-day waiting period after a petition is filed to
receive trade readjustment allowances (TRA) and allows receipt of those
allowances for any week of unemployment that begins on or after the date of
certification. This amendment allows workers to begin receiving TRA benefits
immediately upon certification of a petition if UI entitlement (as defined in
section 247(12)) has been exhausted. Unlike under the 2002 Act, this means that
no payments may be made retroactively for weeks of unemployment that occur
before the certification was issued, but after the date of the petition.
Subparagraph C.5 of these Operating Instructions discusses two new provisions
that address specific issues that may arise because of this amendment in
determining the first payable week, such as the certification being delayed
because of appeals or other situations where there is justifiable cause to extend
the eligibility period for basic TRA.
Section 231(a)(1) through Section 231(a)(4), establishing requirements for TRA
eligibility, have not otherwise been substantively amended. They continue to
require for eligibility that the worker be adversely affected; that the worker’s
total or partial separation occurred during the period covered by the
certification; that the worker (with exceptions) had 26 weeks of employment at
$30 or more per week in the 52-week period ending with the total or partial
separation from adversely affected employment; that the worker was entitled to
and exhausted all UI entitlement, except additional compensation that is funded
by a State and is not reimbursed from any Federal funds; and that the worker
would not be disqualified for extended compensation payable under the Federal-
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State Extended Compensation Act of 1970 by reason of its work search and job
search requirements. Subparagraph C.4.1 of these Operating Instructions
discusses the sole exception to the requirement that TRA eligibility depends
upon the exhaustion all UI other than a certain type of additional compensation).
C.2. Enrollment in Training
Statutory Change: Section 1821 of the 2009 Amendments amends Section
231(a)(5)(A) of the 2002 Act to read:
(5) Such worker---
(A)(i) is enrolled in a training program approved by the Secretary under section
236(a), and
(ii) the enrollment required under clause (i) occurs no later than the latest of—
(I) in the case of a worker whose most recent total separation from adversely
affected employment that meets the requirements of paragraphs (1) and (2) occurs
after the date on which the Secretary issues a certification covering the worker, the
last day of the 26th week after such total separation,
(II) in the case of a worker whose most recent total separation from adversely
affected employment that meets the requirements of paragraphs (1) and (2) occurs
before the date on which the Secretary issues a certification covering the worker, the
last day of the 26th week after the date of such certification,
(III) 45 days after the date specified in subclause (I) or (II), as the case may be, if
the Secretary determines there are extenuating circumstances that justify an
extension in the enrollment period,
(IV) in the case of a worker who fails to enroll by the date required by subclause
(I), (II), or (III), as the case may be, due to the failure to provide the worker with
timely information regarding the date specified in such subclause, the last day of a
period determined by the Secretary, or
(V) the last day of a period determined by the Secretary to be approved for
enrollment after the termination of a waiver issued pursuant to subsection (c),
(B) has, after the date on which the worker became totally separated, or partially
separated, from the adversely affected employment, completed a training program
approved by the Secretary under section 236(a), or
(C) has received a written statement certified under subsection (c)( 1) after the date
described in subparagraph (13).
Administration: The 2009 Amendments leave intact the basic structure of
Section 231(a)(5). As before, Section 231(a)(5)(A) requires, as a condition for
receiving TRA, that the worker be enrolled in training. As before, Section
231(a)(5)(C) allows a worker to receive a waiver of the training requirement in
order to receive basic TRA. Section 231(a)(5)(A)(ii) sets deadlines by which the
enrollment in training must occur. These deadlines apply for eligibility for any
TRA payment – basic TRA, additional TRA, and additional weeks paid to
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adversely affected workers who undertake remedial or prerequisite education.
The 2009 Amendments lengthen the enrollment deadlines from 8 weeks after
certification or 16 weeks after separation to the later of 26 weeks from the
separation or certification date. This deadline extension allows a worker to
actively engage in a longer job search before making a decision about training,
and to make full use of the case management services provided under the 2009
Act to choose an appropriate training program. Additionally, in cases where
large worker groups are dislocated all at once, it allows the CSA more time for
counseling, assessment and other case management services which were difficult
to perform in advance of the prior, shorter enrollment deadlines.
The 2009 Act continues to allow for an extension of the enrollment deadlines for
45 days where the CSA determines that there are extenuating circumstances
justifying the extension. “Extenuating circumstances” continue to be
circumstances beyond the control of the worker. This includes situations where
training programs are abruptly cancelled as well as where the worker suffers
injury or illness preventing participation in training.
The 2009 Act includes a new Section 231(a)(5)(A)(ii)(IV), providing an exception
to the enrollment deadlines where the worker did not enroll by the deadlines
because the CSA failed to provide the worker with timely information regarding
the training enrollment deadlines. In that event, the worker must be enrolled by
the last day of a period to be determined by the Secretary. Accordingly, the
Secretary has determined that the worker must be enrolled in training or receive
a waiver by the Monday of the first week occurring 60 days after the date on
which the worker was properly notified of both his/her eligibility to apply for
TAA and the requirement to enroll in training absent a waiver of the training
requirement. The CSA must document its efforts to notify workers of the
enrollment deadlines.
A worker must be enrolled in training as a condition of basic TRA when the
enrollment in training deadline is reached. Further, a CSA may not waive the
enrollment in training requirement after the deadlines have passed.
The 2009 Act continues to have an additional deadline for training enrollment
that applies to workers who were granted a waiver of the training requirement,
now in Section 231(a)(5)(A)(ii)(V). Workers who have received a training waiver
must be enrolled in training prior to the last day of a period set by the Secretary
after the termination of a waiver in order to maintain future eligibility for TRA.
In its initial implementation of the 2002 Amendments, the Department set this
time period to be the first Monday after the termination of the waiver.
Subsequent experience operating the program has indicated that additional time
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is needed in some cases. Accordingly, the Secretary has determined that the
worker must be enrolled in training by the Monday of the first week occurring 30
days after the date on which the waiver terminated, whether by revocation or
expiration.
“Enrolled in training” continues to mean that the worker’s application for
training has been approved by the CSA and that the training institution has
furnished written notice to the CSA that the worker has been accepted into the
approved program which is to begin within 30 days of such approval.
C.3. Waiver of Training Requirement
Statutory Change: Section 1821 of the 2009 Amendments amends Section 231(c)
of the 2002 Act to read:
(c) WAIVERS OF TRAINING REQUIREMENTS.—
(1) ISSUANCE OF WAIVERS—The Secretary may issue a written statement to an
adversely affected worker waiving the requirement to be enrolled in training described
in subsection (a)(5)(A) if the Secretary determines that it is not feasible or appropriate
for the worker, because of 1 or more of the following reasons:
(A) RECALL—The worker has been notified that the worker will be recalled by the
firm from which the separation occurred.
(B) MARKETABLE SKILLS—
(i) IN GENERAL.—The worker possesses marketable skills for suitable employment
(as determined pursuant to an assessment of the worker, which may include the
profiling system under section 303(j) of the Social Security Act (42 U.S.C. 503(j)),
carried out in accordance with guidelines issued by the Secretary) and there is a
reasonable expectation of employment at equivalent wages in the foreseeable future.
(ii) MARKETABLE SKILLS DEFINED.—For purposes of clause (i), the term
‘marketable skills’ may include the possession of a postgraduate degree from an
institution of higher education (as defined in section 102 of the Higher Education
Act of 1965 (20 U.S.C. 1002)) or an equivalent institution, or the possession of an
equivalent postgraduate certification in a specialized field.
(C) RETIREMENT.—The worker is within 2 years of meeting all requirements for
entitlement to either—
(i) old-age insurance benefits under title H of the Social Security Act (42 U.S.C.
401 et seq.) (except for application therefor); or
(ii) a private pension sponsored by an employer or labor organization.
(D) HEALTH—The worker is unable to participate in training due to the health of
the worker, except that a waiver under this subparagraph shall not be construed to
exempt a worker from requirements relating to the availability for work, active search
for work, or refusal to accept work under Federal or State unemployment
compensation laws.
(E) ENROLLMENT UNAVAILABLE.—The first available enrollment date for the
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approved training of the worker is within 60 days after the date of the determination
made under this paragraph, or, if later, there are extenuating circumstances for the
delay in enrollment, as determined pursuant to guidelines issued by the Secretary.
(F) TRAINING NOT AVAILABLE—Training approved by the Secretary is not
reasonably available to the worker from either governmental agencies or private
sources (which may include area vocational education schools, as defined in section 3
of the Carl D. Perkins Vocational and Technical Education Act of 1 998 (20 U.S.C.
2302), and employers), no training that is suitable for the worker is available at a
reasonable cost, or no training finds are available.
(2) DURATION OF WAIVERS.—
(A) IN GENERAL—Except as provided in paragraph (3)(B), a waiver issued under
paragraph (1) shall be effective for not more than 6 months after the date on which the
waiver is issued, unless the Secretary determines otherwise.
(B) REVOCATION.-----The Secretary shall revoke a waiver issued under
paragraph (I) if the Secretary determines that the basis of a waiver is no longer
applicable to the worker and shall notify,’ the worker in writing of the revocation.
(3) AGREEMENTS UNDER SECTION 239.—
(A) ISSUANCE BY COOPERATING STATES.— An agreement under section
239 shall authorize a cooperating State to issue waivers as described in paragraph (1).
(B) REVIEW OF WAIVERS.— An agreement under section 239 shall require a
cooperating State to review each waiver issued by the State under subparagraph (A),
(B), (D), (E), or (F) of paragraph (1)—
(i) 3 months after the date on which the State issues the waiver; and
(ii) on a monthly basis thereafter.
(C) SUBMISSION OF STATEMENTS. —An agreement under section 239 shall
include a requirement that the cooperating State submit to the Secretary the written
statements provided under paragraph (1) and a statement of the reasons for the
waiver.
Administration: The 2009 Amendments expand the definition of “Marketable
Skills.” Additionally, they provide that no review of waivers is necessary if
issued under the “retirement” reason for granting the waiver. Finally, they
provide that periodic reviews of waivers issued under the remaining provisions
need not occur during the first three months, but must be reviewed at the three-
month mark and on a monthly basis thereafter.
Section 231(c) sets forth the requirements for issuing waivers of the requirement
under Section 231(a)(5)(A) that a worker be enrolled in training in order to
receive basic TRA, if training is not feasible or appropriate for the worker. The
training enrollment requirement may only be waived for receipt of basic TRA.
Training may not be waived for receipt of additional TRA or additional weeks
paid to workers who participated in remedial or prerequisite education. In order
to receive additional TRA, a worker must be participating in approved training.
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Section 231(c)(1) continues to provide six specific criteria for issuing a waiver of
the training requirement for eligibility for basic TRA. For convenience, those
criteria are provided below:
(A) Recall. – The worker has been notified that the worker will be recalled
by the firm from which the separation occurred.
(B) Marketable Skills—
(i) In General.—The worker possesses marketable skills for suitable
employment (as determined pursuant to an assessment of the worker,
which may include the profiling system under section 303(j) of the
Social Security Act (42 U.S.C. 503(j)), carried out in accordance with
guidelines issued by the Secretary) and there is a reasonable
expectation of employment at equivalent wages in the foreseeable
future.
(ii) Marketable Skills Defined.—For purposes of clause (i), the term
‘marketable skills’ may include the possession of a postgraduate
degree from an institution of higher education (as defined in section
102 of the Higher Education Act of 1965 (20 U.S.C. 1002)) or an
equivalent institution, or the possession of an equivalent postgraduate
certification in a specialized field.
(C) Retirement. – The worker is within 2 years of meeting all requirements
for entitlement to either –
(i) old-age insurance benefits under title II of the Social Security
Act (42 U.S.C. 401 et. seq.) (except for application therefor); or
(ii) a private pension sponsored by an employer or labor
organization.
(D) Health. – The worker is unable to participate in training due to the
health of the worker, except that this basis for a waiver does not
exempt a worker from the availability for work, active search for work,
or refusal to accept work requirements under Federal or State
unemployment compensation laws.
(E) Enrollment Unavailable. – The first available enrollment date for the
worker’s approved training is within 60 days after the date of the
determination made under this paragraph, or, if later, there are
extenuating circumstances for the delay in enrollment, as determined
under guidelines issued by the Secretary.
(F) Training Not Available. – Training approved by the Secretary is not
reasonably available to the worker from either governmental agencies
or private sources (which may include area vocational education
schools, as defined in section 3 of the Carl D. Perkins Vocational and
Technical Education Act of 1998 (20 U.S.C. 2302), and employers), no
suitable training for the worker is available at reasonable cost, or no
training funds are available.
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The training requirement may be waived only after an assessment that results in
a determination that one of the waiver provisions is met.
These criteria and their administration are essentially unchanged. The only
change to these criteria is the addition of subparagraph (B)(ii) that specifies that
workers who possess a post-graduate degree should be considered to have
marketable skills and are eligible for the marketable skills waiver.
The requirement that waivers be reviewed within three months of the time they
are issued provides the CSA with some flexibility in managing the waiver review
process while at the same time allowing the State to ensure the worker continues
to qualify for the waiver. It is important that the individual continue to receive
appropriate case management services during the waiver period to ensure that
progress continues to be made toward meeting the individual’s reemployment
plan.
C.4. Weekly Amounts of TRA
Statutory Change: Section 1822 of the 2009 Amendments amends Section
232(a)(1) – (2) of the 2002 Act to read:
(a) Subject to subsections (b), (c), and (d), the trade readjustment allowance payable to
an adversely affected worker for a week of unemployment shall be an amount equal to the
most recent weekly benefit amount of the unemployment insurance payable to the worker
for a week of total unemployment preceding the workers’ first exhaustion of
unemployment insurance (as determined for purposes of section 231(a)(3)(B) reduced
(but not below zero) by—
(1) any training allowance deductible under subsection (c); and
(2) income that is deductible from unemployment insurance under the disqualifying
income provisions of the applicable State law or Federal unemployment insurance law,
except that in the case of an adversely affected worker who is participating in training
under this chapter, such income shall not include earnings from work for such week
that are equal to or less than the most recent weekly benefit amount of the
unemployment insurance payable to the worker for a week of total unemployment
preceding the worker’s first exhaustion of unemployment insurance (as determined for
purposes of section 231(a)(3)(B)).
Administration: Section 232(a) establishes the weekly amount of TRA a worker
may receive. Section 232(a)(2) requires the deduction from that weekly amount
all income that is deductible from UI under the disqualifying income provisions
of State or Federal UI law. The 2009 Act provides, however, that for workers
participating in approved training, no deduction is made for earnings from work
for a week up to an amount that is equal to the worker’s most recent UI benefit
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amount (as determined under section 231(a)(3)(B)).
This provision will affect only the benefit computation for workers who are
participating in full-time training other than on-the-job training (because receipt
of TRA requires participation in full-time training, as discussed in Section D.3 of
these operating instructions). State payment units will need to reprogram their
TRA payment process to accommodate this change in the amount of deductible
earnings disregarded. This provision does not affect any wage calculations to
determine a future claim for UI; it simply disregards wages equal to or less than
the weekly benefit amount (WBA) for calculating the weekly TRA payment.
C.4.1. Election of TRA or UI
Statutory Change: Section 1822 of the 2009 Amendments amends Section 232 of
the 2002 Act by adding a new subsection (d), to read:
(d) ELECTION OF TRADE READJUSTMENT ALLOWANCE OR
UNEMPLOYMENT INSURANCE.—Notwithstanding section 231(a)(3)(B), an
adversely affected worker may elect to receive a trade readjustment allowance instead of
unemployment insurance during any week with respect to which the worker—
(1) is entitled to receive unemployment insurance as a result of the establishment by
the worker of a new benefit year under State law, based in whole or in part upon part-
time or short-term employment in which the worker engaged after the worker’s most
recent total separation from adversely affected employment; and
(2) is otherwise entitled to a trade readjustment allowance.
Administration: Sometimes, a worker earns wages after the most recent
separation from adversely affected employment, qualifying the worker for a
subsequent benefit year of UI at a lower WBA than for the first benefit year.
Section 231(a)(3) requires, as a condition of receiving TRA, that a worker “has
exhausted all rights to any unemployment insurance,” except a certain type of
additional compensation. Therefore, the worker’s TRA, based upon, the higher
WBA of the first benefit year, must stop while the worker collects UI based upon
the lower WBA of the second benefit year. This result sometimes forces a worker
to quit training to return to work.
Section 232(d), added by the 2009 amendments, resolves this dilemma by
allowing the worker, notwithstanding the UI exhaustion requirement of section
231(a)(3)(B), to elect to receive TRA instead of UI for any week where the worker
meets two conditions: The worker is entitled to receive UI as a result of a new
benefit year based in whole or in part upon part-time or short-term employment
in which the worker engaged after the worker’s most recent total separation from
adversely affected employment; and the worker is otherwise entitled to TRA.
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The first condition requires some explanation. It permits a worker to elect TRA,
instead of UI based upon a new benefit year, only where that new benefit year is
“based in whole or in part upon part-time or short-term employment in which
the worker engaged after the worker’s most recent total separation from
adversely affected employment . . . .” Thus, in determining whether the worker
may elect to receive TRA instead of UI based upon the new benefit year, the CSA
must determine whether the worker had any wages “after the worker’s most
recent total separation from adversely affected employment.” (Emphasis added).
If the CSA determines that the worker is entitled to a new benefit year based, in
whole or part, upon those specified wages “after” the worker’s “most total
separation from adversely affected employment,” the worker may (if otherwise
eligible) elect TRA instead of UI based on that new benefit year.
The first point to note is that the Act uses the phrase “most recent total
separation from adversely affected employment,” not, as in sections
231(a)(5)(A)(ii)(I) and (II), the phrase “most recent total separation from
adversely affected employment that meets the requirements of paragraphs (1) and
(2)” of section 231(a). (Emphasis added.) (See, also, section 233(a)(2), establishing
the eligibility period for basic TRA, which uses substantively identical language.)
Those paragraphs (1) and (2) of section 231(a) require that a worker’s separation
occur during the period covered by the certification and that the worker had,
with certain exceptions, in the 52-week period ending with the week in which the
separation occurred, at least 26 weeks of employment at wages of $30 or more a
week in adversely affected employment. The Department interprets the election
provision at section 232(d) as looking at wages earned after the “most recent total
separation from adversely affected employment that meets the requirements of
paragraphs (1) and (2)” of section 231(a).
This interpretation is advantageous to workers because it looks to a broader
range of wages upon which the new benefit year may be based (in whole or in
part) in order to allow the worker the election. For example, a worker might,
after having a separation meeting the requirements of paragraphs (1) and (2),
have a second separation after the period covered by the certification. Were
section 232(d) read literally, only the wages earned after that second separation
(the “most recent separation”), rather than all wages earned after the first
separation (the “most recent separation that meets the requirements of
paragraphs (1) and (2)”) , would “count” in determining whether the worker’s
new benefit year fell within the section permitting an election. The wages
earned after the second separation might have occurred too recently to be used in
establishing the second benefit year, and, in that event, that second benefit year
would not fall within section 232(d). The worker would be ineligible to elect
TRA over UI based upon the new benefit year. Thus, the Department’s
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interpretation will allow workers to elect TRA over UI based upon a new benefit
year in more situations.
The second point to note is that (in addition to the time period during which the
wages must be earned) the new benefit year must be based in whole or in part
upon “part-time or short-term employment.” In practice, a worker who
establishes a UI claim with a WBA that is less than the TRA benefit amount
would meet this test as the subsequent employment would not have been
suitable long term employment.
Significantly, the statute is silent as to what becomes of the UI claim based upon
the second benefit year, where the claimant elects to receive TRA instead. Thus,
State law applies to this UI claim. For States where that means a claim
establishes a benefit year, no subsequent claim may be established in a later
quarter during that benefit year, and any available entitlement remains,
consistent with State law, once TRA is exhausted. For States where claims may
be withdrawn if no benefits are paid, the worker might subsequently file a claim
in a later quarter, and the worker might potentially exercise the TRA option a
second time.
Often, the weekly amount of the UI payments in the second benefit period will
be a significant reduction from the weekly amount of TRA. If a worker
establishes a new UI benefit year based in whole or in part upon part-time or
short-term employment in which the worker engaged after the worker’s most
recent total separation from adversely affected employment (meeting the
conditions specified above), the State must provide the worker with the option to
elect to continue to receive TRA, if the worker is otherwise eligible. The CSA
must provide the worker an explanation of his/her benefit rights in writing, and
document the worker’s choice in the case management file.
C.5. Limitations on TRA
C.5.1 Prerequisite/Remedial TRA
Statutory Change: Sections 1823 and 1829 of the 2009 Amendments amend
Section 233(a)(2) of the 2002 Act to read:
(2) A trade readjustment allowance under paragraph (1) shall not be paid for any
week occurring after the close of the 104-week period (or, in the case of an adversely
affected worker who requires a program of prerequisite education or remedial education
(as described in section 236(a)(5)(D)) in order to complete training approved for the
worker under section 236, the 130-week period) that begins with the first week
following the week in which the adversely affected worker was most recently totally
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separated from adversely affected employment—
(A) within the period which is described in section 231(a)( 1), and
(B) with respect to which the worker meets the requirements of section 23 l(a)(2).
Administration: The 2009 Amendments added “prerequisite education” to
“remedial education” as an exception to the 104-week eligibility period for basic
TRA. Therefore, the eligibility period for basic TRA for workers requiring a
program of either prerequisite education or remedial education is 130 weeks.
Prerequisite education is coursework that the training institution requires for
entry into the approved training program. For instance, some nursing programs
may require additional math coursework that the worker may not have had in
high school to begin training in the new field. When required, this additional
coursework would qualify as “prerequisite education” and extend the weeks
during which basic TRA is potentially payable under this provision.
C.5.2 Additional TRA
Statutory Change: Section 1823 of the 2009 Amendments amends Section
233(a)(3) of the 2002 Act to read:
(3) Notwithstanding paragraph (I), in order to assist the adversely affected worker to
complete a training program approved for the worker under section 236, and in
accordance with regulations prescribed by the Secretary, payments may be made as trade
readjustment allowances for up to 78 additional weeks in the 91-week period that—
(A) follows the last week of entitlement to trade readjustment allowances otherwise
payable under this chapter; or
(B) begins with the first week of such training, if such training begins after the last
week described in subparagraph (A).
Payments for such additional weeks may be made only for weeks in such 91-week period
during which the individual is participating in such training.
Administration: Section 233(a)(3) allows workers participating in training to
receive additional TRA. The 2009 Amendments increase the number of weeks
for which a worker may receive additional TRA from 52 to 78. The eligibility
requirements for additional TRA remain unchanged except for the elimination of
the 210-day rule discussed in subparagraph C.5.3 below. This change provides
support for workers to participate in longer term training, such as a two-year
Associate’s degree, a nursing certification, or completion of a four year degree (if
that four-year degree was previously initiated or if the worker will complete it
using non-TAA funds).
The 2009 Act also expands the eligibility period within which a worker may
receive additional TRA from 52 weeks to 91 weeks to accommodate breaks in
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training. The expansion of the eligibility period allows the worker 91 weeks
during which to collect 78 weeks of benefits. Prior to this amendment, the
worker had a 52-consecutive week period during which to collect 52 weeks of
benefits. Any weeks not claimed were lost. This change allows the worker to not
claim benefits during up to 13 weeks without losing any weeks of benefits.
C.5.3 Elimination of 210-Day Requirement
Statutory Change: Section 1821 of the 2009 Amendments repeal Section 233(b) of
the 2002 Act, eliminating the 210-day time requirement for the submission of a
bona fide application for training as a condition of additional TRA.
Administration: There is no longer a requirement that a worker make a bona
fide application for training within the later of 210 days of certification or
separation. However, there are still deadlines for a worker to be enrolled in
approved training as a condition for the receipt of TRA. See section C.2 of these
operating instructions. Redesignated paragraphs 233(b) – (f) (covering
adjustments in amounts of TRA, payments of TRA while in on-the job training,
breaks in training and extension of time for remedial education) remain the same
as in the 2002 Act except that paragraph 233(f) adds prerequisite education,
discussed in Section C.5.1, above.
C.6 Special Rules for Calculating Separations
C.6.1 Judicial or Administrative Appeal
Statutory Change: Section 1824 of the 2009 Amendments amends Section 233 of
the 2002 Act by adding a new subsection (g), to read:
(g) SPECIAL RULE FOR CALCULATING SEPARATION.—Notwithstanding any
other provision of this chapter, any period during which a judicial or administrative
appeal is pending with respect to the denial by the Secretary of a petition under section
223 shall not be counted for purposes of calculating the period of separation under
subsection (a)(2).
Administration: As discussed above, Section 233(a)(2) establishes a 104-week
eligibility period (130 weeks for workers requiring prerequisite or remedial
education) for basic TRA. This period begins with the first week following the
week in which the worker was most recently totally separated from adversely
affected employment within the period covered by the certification and with
respect to which the worker meets certain tenure requirements in that
employment.
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This new section 233(g) tolls this eligibility period during a judicial or
administrative appeal of the Department’s denial of a certification. The tolling of
deadlines is necessary; otherwise a successful appeal might be meaningless since
all or most of the workers’ eligibility period might lapse by the time the
certification is granted.
In the event of a certification issued as a result of an appeal of a negative
determination denying certification, the 104-week (130-week as applicable)
eligibility period for basic TRA will begin with the week following the week in
which the group was certified. There is no need to adjust the enrollment
deadlines in such a circumstance because the applicable deadline will be 26
weeks after the certification is issued. Moreover, the enrollment deadlines may
be extended due to extenuating circumstances or State good cause rules as with
any other waivers.
C.6.2 Justifiable Cause to extend the Period
Statutory Change: Section 1824 of the 2009 Amendments amends Section 233 of
the 2002 Act by adding a new subsection (h), to read:
(h) SPECIAL RULE FOR JUSTIFIABLE CAUSE.—If the Secretary determines that
there is justifiable cause, the Secretary may extend the period during which trade
readjustment allowances are payable to an adversely affected worker under paragraphs
(2) and (3) of subsection (a) (but not the maximum amounts of such allowance that are
payable under this section).
Administration: As discussed above, Section 233(a)(2) of the 2002 Act
establishes a 104-week (130-week for workers requiring prerequisite or remedial
education) period beginning with a worker’s most recent total qualifying
separation during which the worker may receive basic TRA. Section 233(a)(3)
establishes a 91-week period during which a worker may receive additional
TRA. Section 233(h) is a new section allowing for an extension of these periods
for “justifiable cause,” meaning circumstances determined to be beyond the
worker’s control by the CSA. In making this determination, the CSA will apply
the State’s “good cause” law, regulations, policies and practices applicable to
administration of the State’s UI laws.
C.6.3 Military Service
Statutory Change: Section 1824 of the 2009 Amendments amends Section 233
of the 2002 Act by adding a new subsection (i), to read:
(i) SPECIAL RULE WITH RESPECT TO MILITARY SERVICE—
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(1) IN GENERAL.—Notwithstanding any other provision of this chapter, the Secretary
may waive any requirement of this chapter that the Secretary determines is necessary to
ensure that an adversely affected worker who is a member of a reserve component of the
Armed Forces and serves a period of duty described in paragraph (2) is eligible to
receive a trade readjustment allowance, training, and other benefits under this chapter
in the same manner and to the same extent as if the worker had not served the period of
duty.
(2) PERIOD OF DUTY DESCRIBED.—An adversely affected worker serves a period of
duty described in this paragraph if, before completing training under section 236, the
worker—
(A) serves on active duty for a period of more than 30 days under a call or order to
active duty of more than 30 days; or
(B) in the case of a member of the Army National Guard of the United States or Air
National Guard of the United States, performs full-time National Guard duty under
section 502(f) of title 32, United States Code, for 30 consecutive days or more when
authorized by the President or the Secretary of Defense for the purpose of responding
to a national emergency declared by the President and supported by Federal funds.
Administration: Under the 2002 Act, returning members of the Armed Forces
and National Guard units could sometimes be determined to be ineligible for
benefits if, for example, they missed the enrollment in training deadlines as a
condition of TRA eligibility, or if the plant at which they worked closed while
they were away on active duty. New section 233(i) makes returning service
members “whole,” as if the period of military service had not occurred. The
provision allows workers called up for active duty military or full-time National
Guard service to restart the TAA enrollment process after completion of military
service.
CSAs will need to apply this provision to any returning service member who
either: (1) served on active duty in the Armed Forces for a period of more than
30 days under a call or order to active duty of more than 30 days; or (2) in the
case of a member of the Army National Guard of the United States or Air
National Guard of the United States, performed full-time National Guard duty
under 32 U.S.C. 502(f) (regarding required drills and field exercises) for 30
consecutive days or more when authorized by the President or the Secretary of
Defense for the purpose of responding to a national emergency declared by the
President and supported by Federal funds. Under section 233(i)(2), this “make-
whole” provision applies only if the worker’s period of duty occurs before the
worker completes a training program approved under section 236. However, the
worker need not have already enrolled in or in fact have begun training before
the worker’s period of duty began for this provision to apply. Upon separation,
these individuals are eligible to receive TRA, training, and other benefits under
this chapter in the same manner and to the same extent as if the worker had not
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served the period of duty.
Accordingly, the CSAs will toll all deadlines for all TAA, ATAA, and RTAA
benefits and services, as well as TRA eligibility periods, during a service
member’s period of duty within the period described by section 233(i)(2), and
which occurs before the worker completes TAA-approved training. A CSA
must first consult with, and receive the Department’s permission, before waiving
any other TAA requirement under section 233(i).
C.7 Use of State Law Good Cause Provisions
Statutory Change: Section 1825 of the 2009 Amendments amends Section 234 of
the 2002 Act by adding a new subsection (b):
(b) SPECIAL RULE WITH RESPECT TO STATE LAWS AND REGULATIONS ON GOOD CAUSE
FOR WAIVER OF TIME LIMITS OR LATE FILING OF CLAIMS.—Any law, regulation, policy,
or practice of a cooperating State that allows for a waiver for good cause of any time
limitation relating to the administration of the State unemployment insurance law shall,
in the administration of the program under this chapter by the State, apply to any time
limitation with respect to an application for a trade readjustment allowance or enrollment
in training under this chapter.
Administration: New section 234(b) supersedes 20 CFR 617.50(d), providing in
part 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.” Accordingly, CSAs will
apply state UI “good cause” waiver provisions (laws, policies, or practices) to all
time limitations governing TRA and enrollment in training.
C.8 Waiver of Recovery of TRA Overpayment
Statutory Change: Section 1855 of the 2009 Amendments amends Section
243(a)(1) of the 2002 Act to read:
(a)(1) If a cooperating State agency, the Secretary, or a court of competent jurisdiction
determines that any person has received any payment under this chapter to which the
person was not entitled, including a payment referred to in subsection (b), such person
shall be liable to repay such amount to the State agency or the Secretary, as the case may
be, except that the State agency or the Secretary shall waive such repayment if such
agency or the Secretary determines that—
(A) the payment was made without fault on the part of such individual, and
(B) requiring such repayment would cause a financial hardship for the individual
(or the individual’s household, if applicable) when taking into consideration the
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income and resources reasonably available to the individual (or household) and other
ordinary living expenses of the individual (or household),
Administration: Section 243(a)(1) of the 2002 Act provided that a CSA “may
waive” repayment of any payment made in error where “the payment was made
without fault” on the worker’s part and where requiring repayment “would be
contrary to equity and good conscience. “ The 2009 Amendments retained the
requirement that “the payment was made without fault” on the worker’s part,
but amended that section to make waiver of repayment mandatory (“shall
waive”) where the worker’s financial circumstance meet specific criteria (as
opposed to the general standard of “contrary to equity and good conscience”) .
By making waiver mandatory where the worker meets specific criteria for waiver
(as long as the worker is not at fault), the 2009 Act supersedes 20 CFR
617.55(a)(2)(ii).
The new waiver criterion requires that recovery of the overpayment must be
waived if it would “cause a financial hardship for the individual (or the
individual’s household, if applicable), when taking into consideration the income
and resources reasonably available to the individual (or household) and other
ordinary living expenses of the individual (or household).” This standard is
more generous than the standard that 20 CFR 617.55(a)(2)(ii) establishes, which
requires the CSA to consider whether repayment of the overpayment would,
among other things, cause “extraordinary and lasting financial hardship . . . .”
Section 617.55(a)(2)(ii)(C)(1) defines that term as meaning that overpayment
recovery would “result directly” in the “loss of or inability to obtain minimal
necessities of food, medicine, and shelter for a substantial period of time” and
“may be expected to endure for the foreseeable future.” By including explicit
statutory waiver criteria in the 2009 Act, Congress intended that overpaid
individuals who are without fault and unable to repay their TAA overpayments
must be granted a reasonable opportunity for waivers of overpayments. The
Department is considering whether to provide further guidance on this new
standard prior to the completion of rulemaking.
D. TRAINING
D.1. Cap on Training Funds
Statutory Change: Section 1828 of the 2009 Amendments amends Section
236(a)(2)(A) of the 2002 Act to read:
(2)(A) The total amount of payments that may be made under paragraph (1) shall not
exceed—
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(i) for each of the fiscal years 2009 and 2010, $575,000,000; and
(ii) for the period beginning October 1, 2010, and ending December 31, 2010,
$143,750,000.
Administration: Section 236(a)(2)(A) limits the amount available to pay the costs
of approved training each year. The 2009 Amendments raise the amount from
the $220 million available each fiscal year since 2002, to $575 million for each of
fiscal years 2009 and 2010, and $143,750,000 for the first quarter of fiscal year
2011.
D.2. Pre-Separation Training
D.2.1 Adversely Affected Incumbent Workers Defined
Statutory Change: Section 1830 of the 2009 Amendments amends Section 247 of
the 2002Act by adding subsection (19), which reads:
(19) The term ‘adversely affected incumbent worker’ means a worker who—
(A) is a member of a group of workers who have been certified as eligible to apply for
adjustment assistance under subchapter A;
(B) has not been totally or partially separated from adversely affected employment;
and
(C) the Secretary determines, on an individual basis, is threatened with total or
partial separation.
Administration: As discussed in Section D.2.2 below, the 2009 Act provides that
training may be approved before separation for adversely affected incumbent
workers. This provision defines an adversely affected incumbent worker as a
worker who: (1) is a member of a group of workers that has been certified as
eligible to apply for TAA benefits, (2) has not been totally or partially separated
from employment and thus does not have a qualifying separation, and (3) is
determined to be individually threatened with total or partial separation. A CSA
may determine that a worker has been individually threatened with separation
when the worker has received a notice of termination or layoff from
employment. The CSA also may accept other documentation of a threat of total
or partial separation from the firm or other reliable source in making a
determination that a worker is an adversely affected incumbent worker entitled
to pre-separation training.
Section 617.4(d)(ii) of 20 CFR requires the CSA, upon notice of a certification, to
notify each worker covered by a TAA certification of program benefits as soon as
possible after the partial or total separation. A CSA satisfies this requirement by
obtaining from the firm, or other reliable source, the names and addresses of all
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workers who were or became totally or partially separated before the CSA
received the certification and within the certification period, as well as workers
subsequently separated during the certification period. Because of the statutory
expansion of the TAA training benefit to adversely affected incumbent workers,
the new Secretary/Governor Agreement requires the CSA to notify these
workers of their possible entitlement to TAA-training as soon as possible before
their partial or total separations. Thus, the CSA must identify, through the firm
or other reliable source, the names and addresses of all adversely affected
incumbent workers to permit the CSA to determine whether a worker is
individually threatened with separation. Accordingly, CSAs must request a
separate list of workers who are threatened with separation at the same time they
request the list of adversely affected workers from the employer.
D.2.2 Extension of Benefits to Adversely Affected Incumbent Workers
Statutory Change: Section 1830 of the 2009 Amendments amends Section 236(a)
of the Act by adding the phrase “or an adversely affected incumbent worker”
after “adversely affected worker,” in the criteria for the approval of training for
these two types of workers. In doing so, the 2009 Amendments extend to
“adversely affected incumbent workers” the same training benefits provided to
“adversely affected workers” under the Act, except as provided in Section
236(a)(10), which is discussed below in subparagraph E.2.3 of these Operating
Instructions.
Administration: This provision allows workers threatened with total or partial
separation from adversely affected employment to begin TAA-approved training
before the date of that separation. “Pre-layoff training” is not the same as
incumbent worker training programs allowable under Section 134(a)(3) of the
WIA, 29 U.S.C. 2864(a)(3). The goal of WIA incumbent worker training
programs is retraining the worker with new skills to allow the worker to
continue employment with an employer. TAA pre-separation training is
intended to allow earlier intervention where layoffs are planned in advance and
the employer can specifically identify which workers will be affected. Adversely
affected incumbent workers may begin training prior to layoff, thereby lessening
the amount of time needed to complete the training program after the separation
occurs, and lessening the worker’s overall length of unemployment.
The criteria and limitations for approval of training for adversely affected
incumbent workers are the same as they are for adversely affected workers,
except as discussed below in section D.2.3 of these Operating Instructions.
Adversely affected incumbent workers, like adversely affected workers, are
entitled to employment and case management services, as described in section G,
to ensure that they have the same assistance in developing a reemployment plan
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and choosing training.
D.2.3 Incumbent Worker Exclusions
Statutory Change: Section 1830 of the 2009 Amendments amends Section 236(a)
of the 2002 Act by adding paragraph (10):
(10) In the case of an adversely affected incumbent worker, the Secretary may not
approve—
(A) on-the-job training under paragraph (5)(A)(i); or
(B) customized training under paragraph (5)(A)(ii), unless such training is for a
position other than the worker’s adversely affected employment.
Administration: Pre-layoff training may not be approved if it consists of or
includes on-the-job training. Moreover, a CSA may not approve customized
training, meaning training that is designed to meet the special requirements of
one or more employers, for an adversely affected incumbent worker unless such
training is for a position other than the worker’s position in the adversely
affected employment. CSAs will need to ensure that the training being provided
is for a different position than the worker’s current position if the training is
being provided under agreement with the worker’s current employer. An
incumbent worker may receive pre-separation training for another position with
the worker’s current employer, but only if the position is not similarly threatened
by trade, i.e. the new position is outside of a subdivision with a trade-certified
worker group.
D.2.4 Loss of Threat to Separation
Statutory Change: Section 1830 of the 2009 Amendments amends Section 236(a)
of the 2002 Act to add paragraph (11):
(11) If the Secretary determines that an adversely affected incumbent worker for whom
the Secretary approved training under this section is no longer threatened with a total or
partial separation, the Secretary shall terminate the approval of such training.
Administration: CSAs must evaluate whether the threat of total or partial
separation continues to exist for the duration of the pre-layoff training. This can
be accomplished by verifying with the employer that the threat of separation still
exists before each subsequent portion of the training is funded. If the threat of
separation is removed during a training program, funding of the training must
cease. The worker would be eligible to complete any portion of the training
program where TAA funds have already been expended, but would not be
eligible for further TAA funding of the training program in the absence of a
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threatened or actual separation from the adversely affected employment. The
worker may resume the approved training program upon the resumption of the
threat or in the event of a total qualifying separation, if the six criteria for
approval of the training under Section 236(a)(1) are still met.
Section 617.22(f)(2) of 20 CFR permits a worker approval of one training program
per certification. A training program begun prior to separation counts as that
one training program, and the training plan should be designed to meet the long-
term needs of the worker based on the expectation that they will be laid off. The
training program should also take into account the availability of up to 156
weeks of training. Thus, while a pre-separation training program may be
resumed, a worker who has participated in pre-separation training will not be
eligible for a new and different training program.
D.3 Part-time Training
Statutory Change: Section 1830 of the 2009 Act amends Section 236 of the 2002
Act by adding subsection (h), which reads:
(h) PART-TIME TRAINING.—
(1) IN GENERAL.—The Secretary may approve full-time or part-time training for a
worker under subsection (a).
(2) LIMITATION.—Notwithstanding paragraph (1), a worker participating in part-
time training approved under subsection (a) may not receive a trade readjustment
allowance under section 231.
Administration: New subsection (h) allows workers to choose either part-time
or full-time training, although workers enrolled in part-time training are not
eligible for TRA. This amendment supersedes 20 CFR 617.22(f)(4), limiting
training to full-time programs. The training approval criteria at 20 CFR 617.22
(a) (1 - 6) that apply to the approval of full-time training also apply to the
approval of part-time training. Since part-time training will not be accompanied
by TRA, see Section D.5.1 of these Operating Instructions, which discusses a new
statutory provision (Section 236(a)(9)(B)(i)) permitting a CSA to approve training
for a period longer than the worker’s period of eligibility for TRA if the worker
demonstrates a financial ability to complete the training after the worker’s
eligibility period. Additionally, participation in part-time training can allow a
worker to participate in full-time work, even if that work is not suitable
employment, as defined at Section 236(e).
D.4 Length of Training
The Act does not include a specific limitation on the length of approvable
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training. However, 20 CFR 617.22(f)(2) limits the maximum length of approvable
training to 104 weeks (during which training is conducted) so that a training
program would not extend too far beyond the worker’s TRA. The 2002
amendments extended the maximum duration of TRA to 104 weeks for most
workers, but also added up to 26 weeks of TRA for workers requiring remedial
education, for a total potential of up to 130 weeks of income support.
Accordingly, TEGL No. 11-02 extended the maximum duration of approvable
training for workers who require remedial education to 130 weeks to match the
maximum duration of TRA availability.
As discussed in section C.5.2 of these Operating Instructions, the 2009 Act
provides up to 26 more weeks of additional TRA to workers for a potential total
of 130 weeks of income support for most workers, as well as up to 26 more weeks
for workers who require either remedial education or prerequisite training for a
total of up to 156 weeks of available income support. DOL interprets these
amendments as allowing approval of training for a maximum of 156 weeks
(during which training is conducted), consistent with the 156-week maximum
duration of income support. The 2009 Act also allows approval of training that
extends beyond the weeks of TRA available to the individual worker, as
explained in Section D.5.1 of these Operating Instructions. Most workers will not
have 156 or 130 weeks of income support available at the beginning of training;
rather most workers will have used some weeks of income support, such as 26
weeks or more of UI.
D.5 Approval of Training
The 2009 amendments left unchanged the six criteria for approval of training at
Section 236(a)(1)(A – F) of the 2002 Act. Accordingly, 20 CFR 617.22, describing
the administration of the training approval criteria, is still applicable, and will be
interpreted in the context of the 2009 Amendments, as elaborated upon in the
following sections of these Operating Instructions.
Section 236(a)(1) provides that if the CSA determines, with respect to an
adversely affected worker or an adversely affected incumbent worker, that:
(A) there is no suitable employment (which may include technical and
professional employment) available for an adversely affected worker,
(B) the worker would benefit from appropriate training,
(C) there is a reasonable expectation of employment following
completion of such training,
(D) 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
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the Vocational Education Act of 1963, and employers),
(E) the worker is qualified to undertake and complete such training, and
(F) such training is suitable for the worker and available at a reasonable
cost, the Secretary shall approve such training for the worker. Upon such
approval, the worker shall be entitled to have payment of the costs of such
training (subject to the limitations imposed by this section) paid on the
worker’s behalf by the Secretary directly or through a voucher system.
D.5.1 Qualifications to be Applied for Extended Training
Statutory Change: Section 1828 of the 2009 Amendments amends Section
236(a)(9)(B) of the 2002 Act by adding clause (i), which reads:
(B)(i) In determining under paragraph (1)(E) whether a worker is qualified to
undertake and complete training, the Secretary may approve training for a period longer
than the worker’s period of eligibility for trade readjustment allowances under part I if
the worker demonstrates a financial ability to complete the training after the expiration of
the worker’s period of eligibility for such trade readjustment allowances.
Administration: New Section 236(a)(9)(B)(i) provides that when determining
under Section 236(a)(1)(E) whether the worker is qualified to undertake and
complete training, the State may approve training for longer than the worker’s
period of TRA eligibility if the worker demonstrates the financial ability to
complete the training after the expiration of the TRA eligibility period. This
section mirrors 20 CRF 617.22(a)(5)(ii) and (iii), permitting training approval
where a worker’s personal or family resources are adequate to complete training.
This new section makes it possible for workers to have access to long-term
training such as a two-year Associate’s degree, a nursing certificate, or
completion of a four-year degree if that four-year degree was previously
initiated. States must not limit training approvals only to short-term programs,
and must, where the worker requests it, consider approval of training for longer
than the individual worker’s available remaining weeks of income support. For
example, delayed enrollment in training may result in the exhaustion of some
basic TRA when an adversely affected worker does not immediately enter
training due to job search activities. Training may be approved, provided that
the other training approval criteria are also met, for a period that is longer than
the period for which TRA is available if the worker demonstrates the financial
ability to support him/herself through the completion of the training. Financial
ability means the ability to pay living expenses while in TAA-approved training
after the period of TRA eligibility.
Training which will exceed the 156 maximum number of weeks currently
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allowed may not be paid for under the TAA program at this time. Consideration
will be given to expanding the approval to include longer term training approval
in the rule making process envisioned by the Department to implement the new
provisions of the 2009 Act.
D.5.2 Reasonable Cost
Statutory Change: Section 1828 of the 2009 Amendments also amends Section
236(a)(9)(B) of the 2002 Act to add clause (ii):
(ii) In determining the reasonable cost of training under paragraph (1)(F) with respect to
a worker, the Secretary may consider whether other public or private funds are
reasonably available to the worker, except that the Secretary may not require a worker to
obtain such funds as a condition of approval of training under paragraph (1).
Administration: Section 236(a)(9)(B) provides that when determining whether
the cost of training is reasonable, the CSA will consider whether other public or
private funds are available to the worker. This section ensures that training
programs that would otherwise not be approved under TAA due to costs may be
approved if a worker voluntarily commits to using public or private funds to pay
a portion of the costs of training. Private funds may include grants (with the
exception of certain student financial assistance, explained below), scholarships,
employer funding, or other sources available to the participant not requiring the
use of funds personal to the worker, relatives, or friends. Sections 617.22(h),
617.25(b)(1)(iii), and 617.25(b)(5)(ii) of 20 CFR prohibiting the use of funds
personal to the worker remain in effect until such time as they are amended
through notice and comment rulemaking. Further, a CSA may not require the
worker to obtain other funds as a condition for approval of training. If the
worker volunteers to use other funds to supplement the TAA training funds
when the cost of training is otherwise not reasonable, the training program will
be approved, if the other training approval criteria are met.
Significantly, a provision of the Higher Education Act of 1965, codified at 20
U.S.C. 1087uu, provides that “notwithstanding any other law,” certain types of
student financial assistance (Pell Grants, benefits under Supplemental
Educational Opportunity Grants, Federal educational loan programs,
Presidential Access Scholarships, Federal student work-study programs, and
Bureau of Indian Affairs Student Assistance) “shall not be taken into account in
determining the need or eligibility of any person for benefits or assistance, or the
amount of such benefits or assistance, under any Federal . . . program . . . .”
Therefore, a CSA may not consider the student financial assistance in
determining whether to approve training. This allows a worker to use student
financial assistance for living expenses instead of tuition and thus provides the
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worker income support during long-term training. However, the worker may
voluntarily choose to apply student financial assistance to the costs of training, if
the training would not be approved because the costs would otherwise be found
to be unreasonable.
Regarding the “reasonable cost” criterion for training approval, it should be
noted that the Department has not prohibited the limited use of “training caps”
on the amount of training costs a CSA considers reasonable. A CSA may
determine a maximum reasonable cost for training in the State, but only with a
mechanism for exceeding that maximum when that results in the most
reasonable and cost effective way of returning the trade affected worker to
sustainable employment. Beyond this, the CSA must ensure that any “caps”
developed are sufficient to cover the reasonable cost of suitable training for high
growth, demand, and green occupations in all localities to which those caps
apply.
Regulatory guidance for determining “reasonable cost” is found at 20 CFR Part
617.22(6). Specifically, the regulations dictate that, for the purpose of
determining reasonable costs of training, the CSA considers:
(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.
In approving training, CSAs must consider cost, suitability for the worker, and
quality and results. A CSA may approve a more expensive training program
that is of demonstrably higher quality or that may be expected to produce better
results for the worker in quickly returning to suitable employment.
D.5.3 Apprenticeship, Higher Education and WIA Programs
Statutory Change: Section 1829 of the 2009 Act amends Section 236(a)(5) of the
2002 Act to read as follows:
(5) Except as provided in paragraph (10), the training programs that may be approved
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under paragraph (I) include, but are not limited to—
(A)employer-based training, including—
(i) on-the-job training,
(ii) customized training, and
(iii) apprenticeship programs registered under the Act of August 16, 1937
(commonly known as the ‘National Apprenticeship Act’; 50 Stat. 664, chapter 663;
29 U.S.C. 50 et seq.),
(B) any training program provided by a State pursuant to Title I of the Workforce
Investment Act of 1998,
(C) any training program approved by a private industry council established under
section 102 of such Act,
(D) any program of remedial education,
(E) any program of prerequisite education or coursework required to enroll in
training that may be approved under this section,
(F) any training program (other than a training program described in paragraph (7))
for which all, or any portion, of the costs of training the worker are paid—
(i) under any Federal or State program other than this chapter, or
(ii) from any source other than this section,
(G) any other training program approved by the Secretary, and
(H) any training program or coursework at an accredited institution of higher
education (described in section 102 of the Higher Education Act of 1965 (20 U.S.C.
1002)), including a training program or coursework for the purpose of—
(i) obtaining a degree or certification; or
(ii) completing a degree or certification that the worker had previously begun at an
accredited institution of higher education.
The Secretary may not limit approval of a training program under paragraph (1) to a
program provided pursuant to title I of the Workforce Investment Act of 1998 (29 U.S.C.
2801 et seq.).
Administration: These provisions clarify that the TAA program can pay for
registered apprenticeship programs, any prerequisite education required to
enroll in training, and training at an accredited institution of higher education
including training to obtain or complete a degree or certificate program that
reasonably can be expected to result in employment.
Registered Apprenticeship programs offer workers employment and a
combination of on-the-job learning and related instruction. Since, in
apprenticeship programs, the employer pays all of the apprentice’s wages, the
on-the-job learning portion of apprenticeship training is not considered to be on-
the-job training as defined in Section 236(c). Apprentices are employed at the
start of their apprenticeship and work through a series of defined curricula until
the completion of their apprenticeship programs. The length of registered
apprenticeship programs varies depending on the specific occupation.
Adversely affected workers can access registered apprenticeship programs by
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contacting their State’s Registered Apprenticeship Office (Contact information is
available on-line at: http://www.doleta.gov/oa/sainformation.cfm).
TAA funds can be used to pay for the expenses associated with related
instruction (e.g., classroom and distance learning), tools, uniforms, equipment
and/or books for an adversely affected worker’s participation in a registered
apprenticeship program. These TAA funds can be used until the worker reaches
“suitable employment” (which is the purpose of training) or 156 weeks,
whichever comes first, while participating in the registered apprenticeship
program. Suitable employment as defined in Section 236 of the Act means work
of 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.
Additionally, because registered apprenticeship combines classroom instruction
with employment, adversely affected workers enrolled in a registered
apprenticeship program may not be able to access TRA income support due to
their income earned through wages. However, the use of the RTAA benefit as
described in Section H of these Operating Instructions may be an option for
adversely affected workers who are being trained and employed through a
registered apprenticeship program. In the case of registered apprenticeship, a
key factor for access to and use of RTAA funds are the wages for the workers’
past adversely affected employment, as compared to their current wages while
employed in a registered apprenticeship program as well as meeting the age
requirement of being age 50 or older.
Until the 2009 Act, the statute did not explicitly provide that TAA training funds
may be used to obtain a college or advanced degree although most States do use
the funds to assist workers to complete such degrees. The addition of Section
236(a)(5)(H) is intended to encourage CSAs to approve the use of training under
TAA to obtain a two-year certificate or degree, or to complete a four-year (or
more) degree that has been started and can be completed in a 156-week period.
The Department may consider this issue further in upcoming rulemaking.
Additionally, WIA-approved training is an approvable TAA training option.
However, the amendment of Section 236(a)(5) of the 2002 Act expressly provides
that training options available under the TAA program are not limited to
training programs available under Title I of WIA.
D.6 On-the-Job Training
Statutory Change: Section 1831 of the 2009 Amendments amends Section
236(c)(1) – (4) of the 2002 Act to read:
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(1) IN GENERAL.—The Secretary may approve on-the-job training for any adversely
affected worker if—
(A) the worker meets the requirements for training to be approved under subsection
(a)(1);
(B) the Secretary determines that on-the-job training—
(i) can reasonably be expected to lead to suitable employment with the employer
offering the on-the-job training;
(ii) is compatible with the skills of the worker;
(iii) includes a curriculum through which the worker will gain the knowledge or
skills to become proficient in the job for which the worker is being trained; and
(iv) can be measured by benchmarks that indicate that the worker is gaining such
knowledge or skills; and
(C) the State determines that the on-the-job training program meets the
requirements of clauses (iii) and (iv) of subparagraph (B).
(2) MONTHLY PAYMENTS.—The Secretary shall pay the costs of on-the-job training
approved under paragraph (1) in monthly installments.
(3) CONTRACTS FOR ON-THE-JOB TRAINING.—
(A) IN GENERAL.—The Secretary shall ensure, in entering into a contract with an
employer to provide on-the-job training to a worker under this subsection, that the
skill requirements of the job for which the worker is being trained, the academic and
occupational skill level of the worker, and the work experience of the worker are taken
into consideration.
(B) TERM OF CONTRACT.—Training under any such contract shall be limited to the
period of time required for the worker receiving on-the-job training to become
proficient in the job for which the worker is being trained, but shall not exceed 104
weeks in any case.
(4) EXCLUSION OF CERTAIN EMPLOYERS.—The Secretary shall not enter into a
contract for on-the-job training with an employer that exhibits a pattern of failing to
provide workers receiving on-the-job training from the employer with—
(A) continued, long-term employment as regular employees; and
(B) wages, benefits, and working conditions that are equivalent to the wages,
benefits, and working conditions provided to regular employees who have worked a
similar period of time and are doing the same type of work as workers receiving on-
the-job training from the employer.
Administration: CSAs may approve “on-the-job” training (OJT) for a worker
meeting the approval criteria of Section 236(a)(1), implemented at 20 CFR 617.22
(a), and the OJT criteria of Section 236(c)(1)(B).
Criterion (1) (Section 236(c)(1)(B)(i)) requires that the OJT can reasonably lead to
employment with the OJT employer. The 2002 Act removed this requirement
completely, but the 2009 Act reinstates it. However, approval should be
conditioned on whether the OJT can reasonably lead to employment with the
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OJT employer, and not that there is a guarantee of employment with the OJT
employer. Criterion (2) (Section 236(c)(1)(B)(ii)) requires that the OJT is
compatible with the worker’s skills. Criterion (3) (Section 236(c)(1)(B)(iii))
requires the OJT to allow the worker to become proficient in the job for which the
worker is being trained. Criterion (4) (Section 236(c)(1)(B)(iv)) requires the State
to be able to identify benchmarks or systematically evaluate whether the worker
is gaining knowledge or skills.
Under the 2009 Act, OJT is simply one of several training options for workers.
The 2009 Amendments repealed the requirement at Section 236(a)(1) that
“[i]nsofar as possible,” training be provided on the job.
Further, while the 2002 Act required payment for OJT to be made in equal
monthly installments, the 2009 Act requires only that payment be made on a
monthly basis. The 2009 Act expressly limits OJT contracts to no more than 104
weeks. Lastly, the 2009 Act also provides that employers that exhibit a pattern of
failing to provide workers with continued long-term employment, and adequate
wages, benefits and working conditions as regular employees are excluded from
OJT contracts.
D.7. UI and TAA Benefits while in Training
Statutory Change: Section 1832 of the 2009 Amendments amends Section 236(d)
of the 2002 Act to read:
(d) ELIGIBILITY.—An adversely affected worker may not be determined to be ineligible
or disqualified for unemployment insurance or program benefits under this subchapter—
(1) because the worker—
(A) is enrolled in training approved under subsection (a);
(B) left work—
(i) that was not suitable employment in order to enroll in such training; or
(ii) that the worker engaged in on a temporary basis during a break in such
training or a delay in the commencement of such training; or
(C) left on-the-job training not later than 30 days after commencing such training
because the training did not meet the requirements of subsection (c)(1)(B); or
(2) because of the application to any such week in training of the provisions of State
law or Federal unemployment insurance law relating to availability for work, active
search for work, or refusal to accept work.
Administration: The 2009 amendments codify the current regulations at 20 CFR
617.18 regarding disqualification of trainees from UI or TRA. In addition, the
2009 Amendments add two new circumstances under which a CSA may not
deny UC – because the worker left work that the worker engaged in on a
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temporary basis during a break in training or a delay in the commencement of
that training, and that the worker left OJT not later than 30 days after
commencing such training because the training did not meet the requirements of
Section 236(c)(1)(B). That section provides for the approval of OJT where the
CSA determines that it can reasonably be expected to lead to suitable
employment with the employer offering the OJT; is compatible with the skills of
the worker; includes a curriculum through which the worker will gain the
knowledge or skills to become proficient in the job for which the worker is being
trained; and can be measured by benchmarks that indicate that the worker is
gaining that knowledge or skills.
E. JOB SEARCH ALLOWANCES
Statutory Change: Section 1833 of the 2009 Amendments amends Section 237 of
the 2002 Act to read:
(a) JOB SEARCH ALLOWANCE AUTHORIZED.—
(1) IN GENERAL.—An adversely affected worker covered by a certification issued
under subchapter A of this chapter may file an application with the Secretary for
payment of a job search allowance.
(2) APPROVAL OF APPLICATIONS.—The Secretary may grant an allowance
pursuant to an application filed under paragraph (I) when all of the following apply:
(A) ASSIST ADVERSELY AFFECTED WORKER—The allowance is paid to assist
an adversely affected worker who has been totally separated in securing a job within
the United States.
(B) LOCAL EMPLOYMENT NOT AVALABLE.—The Secretary determines that the
worker cannot reasonably be expected to secure suitable employment in the
commuting area in which the worker resides.
(C) APPLICATION.—The worker has filed an application for the allowance with
the Secretary before—
(i) the later of—
(I) the 365th day after the date of the certification under which the worker is
certified as eligible; or
(II) the 365th day after the date of the worker’s last total separation; or
(ii) the date that is the 182nd day after the date on which the worker concluded
training.
(b) AMOUNT OF ALLOWANCE.—
(1) IN GENERAL.—An allowance granted under subsection (a) shall provide
reimbursement to the worker of all cost of necessary job search expenses as
prescribed by the Secretary in regulations.
(2) MAXIMUM ALLLOWANCE.—Reimbursement under this subsection may not
exceed $1,500 for any worker.
(3) ALLOWANCE FOR SUBSISTENCE AND TRANSPORTATION.—
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Reimbursement under this subsection may not be made for subsistence and
transportation expenses at levels exceeding those allowable under section 236(b) (1)
and (2).
(c) EXCEPTION.—Notwithstanding subsection (b), the Secretary shall reimburse any
adversely affected worker for necessary expenses incurred by the worker in participating
in a job search program approved by the Secretary.
Administration: The qualifying conditions for job search allowances are largely
unchanged.
The 2009 Amendments repeal the exception for workers who received a waiver
of the training requirement from the requirement to file a job search allowance
application within 182 day after the worker completes training. This exception
appears to have been meaningless, since it eliminates the deadline for workers
who enter training after the expiration or termination of a waiver, but requires
workers who enter training without ever having had a waiver to file an
application within 182 days after completing training. Accordingly, 20 CFR
617.31(c)(2) interpreted the 182-day application requirement as applying
regardless of whether the worker received a training waiver – and Congress
apparently concurred with the Department’s interpretation that the exception
was meaningless by repealing it.
The 2009 Act also raises the reimbursement amount for allowable job search
expenses from 90 percent to 100 percent of those expenses, and increases the
maximum amount payable to the worker from $1,250 to $1,500.
States must continue to administer job search allowances in accordance with 20
CFR part 617, subpart D, except that ”90 percent” in section 617.34(a) will be read
as “100 percent,” and “$800” (from a prior amendment to the Trade Act) in
section 617.34(b) will be read as “$1,500.”
F. RELOCATION ALLOWANCES
Statutory Change: Section 1833 of the 2009 Amendments amends Section 238 of
the 2002 Act to read:
(a) RELOCATION ALLOWANCE AUTHORIZED.—
(1) IN GENERAL.—Any adversely affected worker covered by a certification issued
under subchapter A of this chapter may file an application for a relocation allowance
with the Secretary, and the Secretary may grant the relocation allowance, subject to the
terms and conditions of this section.
(2) CONDTIONS FOR GRANTING ALLOWANCE.—A relocation allowance may be
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granted if all of the following terms and conditions are met:
(A) ASSIST AN ADVERSELY AFFECTED WORKER.—The relocation allowance
will assist an adversely affected worker in relocating within the United States.
(B) LOCAL EMPLOYMENT NOT AVAILABLE.—The Secretary determines that the
worker cannot reasonably be expected to secure suitable employment in the
commuting area in which the worker resides.
(C) TOTAL SEPARATION.—The worker is totally separated from employment at
the time relocation commences.
(D) SUITABLE EMPLOYMENT OBTAINED.—The worker—-
(i) has obtained suitable employment affording a reasonable expectation of long-
term duration in the area in which the worker wishes to relocate; or
(ii) has obtained a bona fide offer of such employment.
(E) APPLICATION.—The worker filed an application with the Secretary before
(i) the later of—
(I) the 425th day after the date of the certification under subchapter A of this
chapter; or
(II) the 425th day after the date of the worker’s last total separation; or
(ii) the date that is the 182d day after the date on which the worker concluded
training.
(b) AMOUNT OF ALLOWANCE— The relocation allowance granted to a worker
under subsection (a) includes—
(1) all reasonable and necessary expenses (including, but not limited to, subsistence
and transportation expenses at levels not exceeding those allowable under section
236(b) (1) and (2) specified in regulations prescribed by the Secretary), incurred in
transporting the worker, the worker’s family, and household effects; and
(2) a lump sum equivalent to 3 times the worker’s average weekly wage, up to a
maximum payment of $1,500.
(c) LIMITATION5.—A relocation allowance may not be granted to a worker unless—--
(1) the relocation occurs within 182 days after the filing of the application for
relocation assistance; or
(2) the relocation occurs within 182 days after the conclusion of training, if the
worker entered a training program approved by the Secretary under section 236(b) (1)
and (2).
Administration: The qualifying requirements for relocation allowances are
largely unchanged.
The 2009 Amendments repeals the exception for workers who received a waiver
of the training requirement from the requirement to file a relocation allowance
application within 182 day after the worker completes training. This exception
appears to be meaningless, since it eliminates the deadline for workers who enter
training after the expiration or termination of a waiver, but requires workers
who enter training without ever having had a waiver to file an application within
182 days after completing training. Accordingly, 20 CFR 617.31(c)(2) interpreted
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the 182-application requirement as applying regardless of whether the worker
received a training waiver – and Congress apparently concurred with the
Department’s interpretation that the exception was meaningless by repealing it.
The 2009 Act also raises the reimbursement amount for allowable relocation
expenses from 90 percent to 100 percent of those expenses, and increases the
maximum amount of the lump sum payment to the worker from $1,250 to $1,500.
States must continue to administer relocation allowances in accordance with 20
CFR part 617, subpart D, except that ”90 percent” in section 617.34(a) will be read
as “100 percent,” and “$800” (from a prior amendment to the Trade Act) in
section 617.34(b) will be read as “$1,500.”
G. EMPLOYMENT AND CASE MANAGEMENT SERVICES
G.1 Provision of Services
Statutory Change: Section 1826 of the 2009 Amendments amends Section 235 of
the 2002 Act to read:
SEC. 235. EMPLOYMENT AND CASE MANAGEMENT SERVICES.
The Secretary shall make available, directly or through agreements with States under
section 239, to adversely affected workers and adversely affected incumbent workers
covered by a certification under subchapter A of this chapter the following employment
and case management services:
(1) Comprehensive and specialized assessment of skill levels and service needs,
including through—
(A) diagnostic testing and use of other assessment tools; and
(B) in-depth interviewing and evaluation to identify employment barriers and
appropriate employment goals.
(2) Development of an individual employment plan to identify employment goals and
objectives, and appropriate training to achieve those goals and objectives.
(3) Information on training available in local and regional areas, information on
individual counseling to determine which training is suitable training, and information
on how to apply for such training.
(4) Information on how to apply for financial aid, including referring workers to
educational opportunity centers described in section 402F of the Higher Education Act
of 1965 (20 U.S.C. 1070a–16), where applicable, and notifying workers that the
workers may request financial aid administrators at institutions of higher education (as
defined in section 102 of such Act (20 U.S.C. 1002)) to use the administrators’
discretion under section 479A of such Act (20 U.S.C. 1087tt) to use current year
income data, rather than preceding year income data, for determining the amount of
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need of the workers for Federal financial assistance under title IV of such Act (20
U.S.C. 1070 et seq.).
(5) Short-term prevocational services, including development of learning skills,
communications skills, interviewing skills, punctuality, personal maintenance skills,
and professional conduct to prepare individuals for employment or training.
(6) Individual career counseling, including job search and placement counseling,
during the period in which the individual is receiving a trade adjustment allowance or
training under this chapter, and after receiving such training for purposes of job
placement.
(7) Provision of employment statistics information, including the provision of
accurate information relating to local, regional, and national labor market areas,
including—
(A) job vacancy listings in such labor market areas;
(B) information on jobs skills necessary to obtain jobs identified in job vacancy
listings described in subparagraph (A);
(C) information relating to local occupations that are in demand and earnings
potential of such occupations; and
(D) skills requirements for local occupations described in subparagraph (C).
(8) Information relating to the availability of supportive services, including services
relating to child care, transportation, dependent care, housing assistance, and need-
related payments that are necessary to enable an individual to participate in training.
Administration: The 2002 Act required CSAs to “make every reasonable effort”
to provide adversely affected workers the listed services through other
programs. The 2009 Act now requires that these services be offered to all
adversely affected workers and adversely affected incumbent workers. The
required services may be provided by staff funded by the new case management
funds authorized under the Act (discussed below), or by staff funded under
partner programs.
Co-enrollment or multiple-enrollment allows trade-affected workers to receive
supportive services that may assist in a quicker transition to work. It is vitally
important that States develop a goal, or informal deadline, for administering
assessment of workers in order to determine training and reemployment needs.
This will provide data for State officials to make a more accurate employability
determination and issue TAA waivers of training. Likewise, early assessment
will give case management staff the information necessary to advise, counsel,
and refer participants to the appropriate partner/training provider. Many States
have provided case management activities and related services in the past
through co-enrollment in other Federal programs (usually WIA and Wagner-
Peyser programs). The Department expects CSAs to continue this practice.
CSAs that have not fully used co-enrollment now have an opportunity to use
more integrated service strategies. Expertise in providing these services already
exists within the WIA and Wagner-Peyser programs.
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A CSA must offer workers each of the services set forth in Section 235. It must
demonstrate that it has provided or offered these services either in a paper-based
case file or in an electronic case management system, which must be available for
review. Additionally, the case management file of each participant must
demonstrate that the CSA notified each worker of his/her enrollment in training
deadlines.
The purpose of these employment and case management services is to provide
workers the necessary information and support for them to achieve sustainable
reemployment. Therefore, these services must be made available to workers
over the course of their participation in the TAA program, in an integrated
manner that suits their individual needs at a particular time. For example, skill
assessments must be geared towards evaluating whether the worker meets the
TAA training criteria or matches up to specific career opportunities in the
community. The individual employment plan must use and be guided by the
results of the skill assessments. The employment plan should, in turn, lead to
support for finding suitable employment and/or development of a training plan
that addresses any skill gaps made evident by the assessments, including
remedial or prerequisite training where appropriate. Career counseling and
labor market information must also inform the development of the employment
and training plans. Information on financial aid and supportive services must be
available as they are needed by the individual. Career counseling and other
informational resources must also be available after an individual completes
training, through his/her reemployment and exit from the TAA program.
CSAs should minimize the extent to which they establish new or stand alone
employment and case management structures for TAA program participants
where these services are available within the workforce development system.
Rather, CSAs should fully integrate TAA participants and resources into the
One-Stop Career Center system, thereby maximizing and enhancing existing
employment and case management structures. As stated in Section II.B of the
Governor-Secretary Agreement, “The State agrees that the TAA program is a
required partner in the comprehensive One-Stop system established under the
Workforce Investment Act of 1998 (WIA) (29 U.S.C. §§ 2801 et seq.) (see WIA
Section 121(b)(1)(B)(viii), 29 U.S.C. § 2841(b)(1)(B)(viii)). The State will ensure
integration of the TAA program into its One-Stop system and will comply with
all applicable laws, regulations, and policy guidance issued under the WIA. The
State will use One-Stop Career Centers as the main point of participant intake
and delivery of benefits and services.”
Early intervention services that include orientation; initial assessment of skill
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levels, aptitudes, and abilities; provision of labor market information; job search
assistance; and financial management workshops continue to be a priority for
workers in the TAA program. We encourage TAA staff to work with WIA staff
to align resources and develop clear plans for coordination.
G.2 Funding
Statutory Change: Section 1826 of the 2009 Amendments adds Section 235A to
the 2002 Act:
SEC. 235A. FUNDING FOR ADMINISTRATIVE EXPENSES AND
EMPLOYMENT AND CASE MANAGEMENT SERVICES.
(A) FUNDING FOR ADMINISTRATIVE EXPENSES AND EMPLOYMENT
AND CASE MANAGEMENT SERVICES.—
(1) IN GENERAL.—In addition to any funds made available to a State to carry out
section 236 for a fiscal year, the State shall receive for the fiscal year a payment in an
amount that is equal to 15 percent of the amount of such funds.
(2) USE OF FUNDS.—A State that receives a payment under paragraph (1) shall—
(A) use not more than 2/3 of such payment for the administration of the trade
adjustment assistance for workers program under this chapter, including for—
(i) processing waivers of training requirements under section 231;
(ii) collecting, validating, and reporting data required under this chapter; and
(iii) providing reemployment trade adjustment assistance under section 246; and
(B) use not less than 1/3 of such payment for employment and case management
services under section 235.
(b) ADDITIONAL FUNDING FOR EMPLOYMENT AND CASE MANAGEMENT
SERVICES.—
(1) IN GENERAL.—In addition to any funds made available to a State to carry out
section 236 and the payment under subsection (a)(1) for a fiscal year, the Secretary
shall provide to the State for the fiscal year a payment in the amount of $350,000.
(2) USE OF FUNDS.—A State that receives a payment under paragraph (1) shall use
such payment for the purpose of providing employment and case management services
under section 235.
(3) VOLUNTARY RETURN OF FUNDS.—A State that receives a payment under
paragraph (1) may decline or otherwise return such payment to the Secretary.
Administration: The 2009 Act provides two separate TAA program funding
sources for case management services, one under Section 235A(a) and the second
under Section 235A(b). Section 235A(a) provides funding for “administrative
expenses” and “case management services.” Section 235A(a)(2)(A) requires that
a CSA will “use not more than 2/3 of” these funds “for the administration of the
trade adjustment assistance for workers program,” and Section 235A(a)(2)(B)
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requires that it will “use not less than 1/3” of these funds “for employment and
case management services under section 235.”
In addition to staff costs for career counselors, the “employment and case
management services” funds may be used for: assessment tests; skills
transferability analysis; peer counselors; development and provision of labor
market information; maintenance and enhancement of electronic case
management systems to allow for improved case management services;
information on available training, including provider performance and cost
information; and, any other staff costs related to case management. This list is
not intended to be all inclusive.
With respect to the employment and case management funds, CSAs do not need
to maintain the 2/3 to 1/3 ratio on a regular basis. Instead, a determination of
whether the CSA has met this ratio requirement will be made during the grant
close out process upon expiration of the funds. At that time, expenditures on
administration in excess of 2/3 of the allotment for that fiscal year (meaning that
expenditures on employment and case management services were less than 1/3
of the allotment) will be considered disallowed costs.
The second source of funding for case management services, under Section
235A(b), is a payment “for the fiscal year . . . in the amount of $350,000.” The
2009 Act provides that States may decline or return these funds to the Secretary.
If a State chooses not to accept the $350,000 in employment and case
management services funds authorized for allotment to States under Section
235A(b) for the next fiscal year, the CSA should notify the Department, through
their appropriate ETA Regional Office, by August 15 of the prior fiscal year in
order to ensure that an allocation is not made. If a State receives these funds
through the allotment process, but decides to return them to DOL, States must
do so as soon as possible.
The employment and case management services funding provided for in this
section should be in addition to, and not offset, any funds that the CSA would
otherwise receive under WIA or any other program.
G.3 Coordination with WIA
Statutory Change: Section 1852 of the 2009 Amendments amends Section 239 of
the 2002 Act by redesignating subsection (f) as subsection (g) and adding to new
subsection (g) paragraphs (4) and (5), to read:
Each cooperating State agency shall, in carrying out subsection (a)(2)-
****
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(4) perform outreach to, intake of, and orientation for adversely affected workers and
adversely affected incumbent workers covered by a certification under subchapter A
with respect to assistance and benefits available under this chapter, and
(5) make employment and case management services described in section 235
available to adversely affected workers and adversely affected incumbent workers
covered by a certification under subchapter A and, if funds provided to carry out this
chapter are insufficient to make such services available, make arrangements to make
such services available through other Federal programs.
Administration: As required in the agreements between the Secretary of Labor
and the States under Section 239 of the Act, the CSAs must administer outreach,
intake, and orientation for adversely affected workers and make employment
and case management services as newly described in Section 235 available to
workers. If the TAA program funding sources for provision of employment and
case management services to workers in the TAA program are insufficient to
meet the requirement that these services be offered to all adversely affected
workers and adversely affected incumbent workers, the CSA must make
arrangements to assure that funding under the WIA or another program is
available to provide those services. Multiple enrollment resources may include
Wagner-Peyser activities, faith-based and community-based programs,
vocational rehabilitation services, and veterans’ programs.
H. REEMPLOYMENT TRADE ADJUSTMENT ASSISTANCE (RTAA)
H.1. Background
Statutory Change: Section 1841 of the 2009 Amendments amends Section
246(a)(1) of the 2002 Act to read:
(1) ESTABLISHMENT.—The Secretary shall establish a reemployment trade
adjustment assistance program that provides the benefits described in paragraph (2).
Administration: The 2009 Act establishes RTAA as a wage supplement option
available to older workers under the TAA program. RTAA replaces ATAA,
which provided wage supplements as an option for reemployed older workers
as a demonstration project under the 2002 Act. Rather than a demonstration
program, RTAA is permanent, and has the same expiration date as the rest of the
TAA program.
ATAA is extended and remains available to workers certified for ATAA under
petitions filed prior to May 18, 2009.
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RTAA builds on the basic structure of ATAA, with some important differences:
• The 26-week deadline for reemployment, running from the date of
separation from the adversely affected employment is eliminated. This
26-week period frequently began prior to certification, not allowing
enough time for workers to find new jobs after learning of their potential
eligibility for ATAA.
• A separate certification of group eligibility beyond the TAA certification is
no longer required. All certifications include eligibility to apply for
RTAA, as well as other TAA benefits.
• Workers opting to participate in the wage supplement program no longer
surrender their eligibility for TAA-approved training.
• RTAA may be paid to participants working part-time, if they are enrolled
in approved training.
• Workers may collect RTAA after a period of TRA. These changes to the
program should make the program more accessible and attractive to
workers by removing barriers that existed under ATAA.
• RTAA eligibility requires that the worker “is not employed at the firm
from which the worker was separated.” This is a more restrictive
requirement than ATAA imposes. That program required only that the
worker “does not return to the employment from which the worker was
separated,” which the Department interpreted as permitting the worker to
return to the separating firm in a different job.
• The maximum benefit that the worker may receive over the course of the
eligibility period is increased from $10,000 to $12,000.
• The limit on wages in eligible reemployment is increased from $50,000 to
$55,000.
• RTAA has a different eligibility period than ATAA.
Significantly, workers receiving RTAA may, like ATAA participants, be eligible
for the HCTC.
H.2. Group Eligibility
Statutory Change: Section 1841 of the 2009 Amendments amends Section
246(a)(3)(A) of the 2002 Act to read:
(A) IN GENERAL.—A group of workers certified under subchapter A as eligible for
adjustment assistance under subchapter A is eligible for benefits described in
paragraph (2) under the program established under paragraph (1).
Administration: The new RTAA program eliminates the separate group
eligibility requirements under the ATAA program and instead provides that
workers in a group certified as eligible to apply for TAA are also eligible to apply
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for RTAA.
H.3. Individual Eligibility
Statutory Change: Section 1841 of the 2009 Amendments amends Section
246(a)(3)(B) of the 2002 Act to read:
(B) INDIVIDUAL ELIGIBILITY.—A worker in a group of workers described in
subparagraph (A) may elect to receive benefits described in paragraph (2) under the
program established under paragraph (1) if the worker—
(i) is at least 50 years of age;
(ii) earns not more than $55,000 each year in wages from reemployment;
(iii)(I) is employed on a full-time basis as defined by the law of the State in which the
worker is employed and is not enrolled in a training program approved under section
236; or
(II) is employed at least 20 hours per week and is enrolled in a training program
approved under section 236; and
(iv) is not employed at the firm from which the worker was separated.
Administration: The RTAA program has several differences in individual
eligibility from the ATAA program. It eliminates the requirement that the
worker obtain full-time employment within 26 weeks of separation from
adversely affected employment, increases the maximum an individual may earn
in reemployment from $50,000 to $55,000, and is not limited to workers
employed full-time, but allows workers employed at least 20 hours per week,
and enrolled in approved training, to qualify.
To be eligible for RTAA, an individual must meet the following conditions at the
time of reemployment:
1. Be at least age 50 at time of reemployment. The individual’s age can be
verified with a driver’s license or other appropriate documentation.
2. Must not be expected to earn more than $55,000 annually in gross wages,
excluding overtime pay, from the reemployment. If a paycheck has not
been issued at the time of application, the employer must submit a
supporting statement documenting the worker’s annual wages.
3. Reemployment:
a. Be reemployed full-time as defined by the State law where the worker
is employed and not enrolled in a TAA-approved training program. If
there is no State law addressing the definition of full-time
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employment, the State must issue a definition of full-time employment
for RTAA purposes. The CSA will verify reemployment in the same
manner as it uses for ATAA eligibility; or
b. Be reemployed less than full-time, but at least 20 hours a week, and be
enrolled in a TAA-approved training program. Similar to the
requirement that TRA benefits may only be paid when enrolled in a
full time training program, eligibility for RTAA benefits based on part-
time employment and participation in training requires enrollment in a
full time training program as well. This requirement helps ensure that
workers will not exhaust their limited RTAA benefit before returning
to full-time employment, which is the true goal of the TAA program.
The verification will be conducted in the same manner as is used for
verifying employment for ATAA eligibility and for verifying
participation in training.
4. The worker cannot return to employment at the “firm” from which the
worker was separated. However, the 2009 Act defines “firm” as either
the entire firm or the appropriate subdivision. Accordingly, this
requirement means that, if the certification is issued for a worker group in
an appropriate subdivision of a firm, the worker may not return to
employment with that subdivision, but may return to work at another
subdivision of the firm. If, however, the certification is issued for workers
in the entire firm, the worker may not return to employment in any
subdivision of that firm.
As with ATAA, the CSA will issue a written determination on an RTAA
application within 5 working days of its receipt. If approved, the CSA will also
notify the appropriate State payment unit and other appropriate component
offices within the State. The RTAA applicant has the right to appeal a State
determination which denies RTAA benefits in the same manner as provided for
in State UI law for all TAA determinations.
Where a worker seeks to establish RTAA eligibility based upon more than one
job, the employment hours will be combined in order to determine whether the
worker has the number of hours needed to qualify for RTAA. If the worker
obtains additional job(s), the wages from this employment will be included in the
calculation to determine whether the worker is expected to reach the $55,000
annual limit for reemployment wages.
Qualifying employment that was commenced prior to separation from adversely
affected employment may be considered RTAA qualifying employment.
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H.4. Eligibility Period
Statutory Change: Section 1841 of the 2009 Act amends Section 246(a)(4) of the
2002 Act to read:
(4) ELIGIBILITY PERIOD FOR PAYMENTS.—
(A) WORKER WHO HAS NOT RECEIVED TRADE READJUSTMENT ALLOWANCE.—In the
case of a worker described in paragraph (3)(B) who has not received a trade
readjustment allowance under part I of subchapter B pursuant to the certification
described in paragraph (3)(A), the worker may receive benefits described in paragraph
(2) for a period not to exceed 2 years beginning on the earlier of—
(i) the date on which the worker exhausts all rights to unemployment insurance
based on the separation of the worker from the adversely affected employment that is
the basis of the certification; or
(ii) the date on which the worker obtains reemployment described in paragraph
(3)(B).
(B) WORKER WHO HAS RECEIVED TRADE READJUSTMENT ALLOWANCE.—In the case of
a worker described in paragraph (3)(B) who has received a trade readjustment
allowance under part I of subchapter B pursuant to the certification described in
paragraph (3)(A), the worker may receive benefits described in paragraph (2) for a
period of 104 weeks beginning on the date on which the worker obtains reemployment
described in paragraph (3)(B), reduced by the total number of weeks for which the
worker received such trade readjustment allowance.
Administration: The eligibility periods for RTAA are different than those under
ATAA. The 2009 Act provides two separate eligibility periods, the first for
workers who have not received TRA, and the second for workers who have
received TRA.
The eligibility period for workers who have not received TRA is a two-year
period beginning the earlier of “the date on which the worker exhausts all rights
to unemployment insurance based on the separation of the worker from the
adversely affected employment that is the basis of the certification,” or
reemployment. Section 247(12) defines “unemployment insurance” as “the
unemployment compensation payable to an individual under any State law or
Federal unemployment compensation law,” which includes EUC.
The statutory phrase “worker exhausts all rights to unemployment insurance
based on the separation of the worker from . . . adversely affected employment . .
. ” requires some interpretation. The first point to make is that a worker may
have more than one separation from adversely affected employment. Where
there is more than one such separation, the relevant separation is the worker’s
last separation from adversely affected employment that qualifies the worker as
an adversely affected worker. The Department chose the last separation because
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that separation is the one that triggers the worker’s application for RTAA. Under
20 CFR 617.3(c), a separation that qualifies a worker as an adversely affected
worker is a lack-of-work separation from adversely affected employment.
Accordingly, the CSA must determine the worker’s last separation for lack of
work from adversely affected employment before the RTAA application. This
principle applies only to the determination of the eligibility period, and does not
apply to the calculation of RTAA payments.
Further, a separation may trigger a benefit year, occur during a benefit year, or
not result in any entitlement to UI. If the worker’s last separation from adversely
affected employment, which qualifies the worker as an adversely affected
worker, either triggers a benefit year or occurs within a benefit year, the
eligibility period will begin (if earlier than the reemployment) when the worker
exhausts that UI eligibility, either by collecting all benefits available on the
benefit year or by the expiration of the benefit year. If the worker has no UI
entitlement for his/her last separation from adversely affected employment that
qualifies him/her as an adversely affected worker, then the two-year period
begins on the date on which the worker obtains reemployment.
The eligibility period for a worker who has not received TRA is the two year
period (generally 104-weeks) beginning with the date of reemployment, reduced
by the number of weeks the worker received TRA. For example, if a worker
received 52 weeks of TRA, the eligibility period would be reduced to 52 weeks
beginning on the date of reemployment.
The individual’s application for RTAA must be filed within the applicable
eligibility period as described above. As with ATAA, retroactive payment may
be made where appropriate.
H.5. Total Amount of Payments
Statutory Change: Section 1841 of the 2009 Act amends Section 246(a)(5) of the
2002 Act to read:
(5) TOTAL AMOUNT OF PAYMENTS.—
(A) IN GENERAL.—The payments described in paragraph (2)(A) made to a worker
may not exceed—
(i) $12,000 per worker during the eligibility period under paragraph (4)(A); or
(ii) the amount described in subparagraph (B) per worker during the eligibility
period under paragraph (4)(B).
(B) AMOUNT DESCRIBED.—The amount described in this subparagraph is the amount
equal to the product of—
(i) $12,000, and
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(ii) the ratio of—
(I) the total number of weeks in the eligibility period under paragraph (4)(B) with
respect to the worker, to
(II) 104 weeks.
Administration: The total amount of payments that may be made to workers
under RTAA is different than under ATAA. The 2009 Act provides two separate
calculations of the maximum amount of payments that may be made to a worker,
the first for workers who have not received TRA, and the second for workers
who have received TRA.
Workers who have not received TRA may receive a maximum of $12,000 during
the eligibility period described in Section J.4 of the Operating Instructions. This
is an increase of $2,000 over the maximum amount of ATAA available to an
adversely affected worker.
Workers who have received TRA may receive an amount equal to the product of
$12,000 and the ratio of the number of weeks in the eligibility period described in
Section J.4 above and 104. For example, the calculation for a worker who
received 52 weeks of TRA and therefore has a 52-week eligibility period would
be as follows:
Factors
x Weeks of TRA
y Eligibility Period
z $12,000 Maximum RTAA Benefit
Ratio
x / y = Ratio
Formula
(x / y) * z = RTAA Benefit
Example
(52/104) * $12,000 = $6,000
H.6. Continuing Eligibility
The structure and procedures established for verification of continuing eligibility
under the ATAA program remain in place for the RTAA program, except where
noted otherwise. Once approved for the RTAA program, individuals who
continue to meet the eligibility criteria are paid RTAA benefits until they reach
the end of the eligibility period or the maximum total amount of payments
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whichever occurs first.
Nothing in the statute precludes an individual from working for different
employers within this eligibility period. Further, employment is not required to
be consecutive. However, as with ATAA, RTAA benefits are not payable during
periods of unemployment, but payment is allowable when the worker is on
employer allowed release time, such as sick leave. Changes in employment that
do not encompass a period of unemployment will be handled during the State’s
ongoing review of each worker’s RTAA status, as described below. In the event
of a period of unemployment, workers will need to complete a new Individual
Application for RTAA upon reemployment. The worker would be eligible for
the remaining RTAA benefits to which he/she is entitled. The eligibility period
continues to run from the date of UI exhaustion or reemployment.
Workers applying for RTAA will need to visit a One-Stop Career Center in
person to provide information and establish initial individual eligibility for
RTAA. The CSA will need to assess each RTAA claimant’s continuing eligibility
for RTAA. Whether RTAA entitlement is received on the basis of part-time (at
least 20 hours) or full-time employment, the CSA must verify the worker’s
employment and wage status on at least a monthly basis. If the worker is
employed part-time (at least 20 hours per week) and receiving RTAA while in
TAA-approved training, the CSA must, on a monthly basis, verify participation
in the training.
RTAA payments stop in the event of any one of the following:
• The worker’s annualized wages from reemployment are projected to
exceed $55,000 in a year.
• The worker no longer meets the reemployment requirement through
either full-time work or a combination of TAA-approved training and
at least 20 hours of work. (But, see the caveat in the second paragraph
below.)
• The worker has received the maximum amount of RTAA.
• The worker has reached the end of the RTAA eligibility period.
It is the CSA’s responsibility, when calculating the RTAA payment, to annualize
the recipient’s wages on a monthly basis to assure that the recipient’s annual
wages do not exceed $55,000. Annual wage calculations include all jobs in which
the worker is employed.
As explained above, a worker may qualify for RTAA where the worker is
working part-time, provided the worker is enrolled in training. A worker will be
excused from the training requirement for any week for which s/he has
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“justifiable cause,” as defined at 20 CFR 617.18(b)(2), for failing to begin or
ceasing participation in training. If the worker has justifiable cause for failing to
participate in training for a week, but is working at least 20 hours per week,
RTAA is payable for that week if the worker is otherwise eligible. If the worker
fails to participate in training for a week without justifiable cause, the worker is
ineligible for RTAA for that week.
H.7. RTAA Payments
Statutory Changes:
Section 1841 of the 2009 Amendments amends Section 246(a)(2) of the Act to
read:
(2) BENEFITS.
(A) PAYMENTS—A State shall use the funds provided to the State under section
241 to pay, for the eligibility period under subparagraph (A) or (B) of paragraph (4)
(as the case may be), to a worker described in paragraph (3)(B), 50 percent of the
difference between—
(i) the wages received by the worker at the time of separation; and
(ii) the wages received by the worker from reemployment.
It also amends Section 246(a)(6) of the Act to read:
(6) CALCULATION OF AMOUNT OF PAYMENTS FOR CERTAIN
WORKERS.—
(A) IN GENERAL.—In the case of a worker described in paragraph (3)(B)(iii)(II) [a
worker employed at least 20 hours per week an enrolled in training], paragraph (2)(A)
[the RTAA benefit amount calculation] shall be applied by substituting the percentage
described in subparagraph (B) for ‘50 percent’.
(B) PERCENTAGE DESCRIBED.—The percentage described in this subparagraph
is the percentage—
(i) equal to 1⁄2 of the ratio of—
(I) the number of weekly hours of employment of the worker referred to in
paragraph (3)(B)(iii)(II), to
(II) the number of weekly hours of employment of the worker at the time of
separation, but
(ii) in no case more than 50 percent.
Administration: The 2009 Act slightly rewords the benefit calculation found in
Section 246(a)(2)(A), but does not change the basic structure of providing 50
percent of the difference between the wages the worker received from the
adversely affected employer at the time of separation and the wages the worker
receives in new employment for workers who are employed on a full-time basis.
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For workers who meet the reemployment requirement described in Section H.3.
of the Operating Instructions through a combination of TAA-approved training
and at least 20 hours of work, the RTAA benefit calculation is based on a
percentage of the difference between the wages the worker received from the
adversely affected employer at the time of separation and the wages the worker
receives in new employment. The percentage is based on the number of hours
worked in new employment as compared to the adversely affected employment.
This calculation is illustrated below and in sections H.7.1 and H.7.2.
As with ATAA, in order to establish the RTAA payment, wages at separation are
defined as the annualized hourly rate at the time of the most recent separation.
Wages at reemployment are defined as the annualized hourly rate at the time of
reemployment. Annualized wages at separation are defined as the annualized
hourly rate at the time of the most recent qualifying separation. In the case of a
worker who had a partial separation, as defined in 20 CFR 617.3 (cc), that
resulted in a reduction of the worker’s wage and/or hours, the calculation
should be based on the wages and/or hours immediately before the partial
separation went into effect. The annualized wages are computed by multiplying
the worker’s hourly rate received during the last full week of his/her
employment by the number of hours the individual worked during the last full
week of employment and multiplying that number by 52. Overtime wages and
hours are excluded from the calculation. Annualized wages at reemployment
are defined similarly to annualized wages at separation, except that the hourly
rate and hours worked must reflect those of the first full week of reemployment.
RTAA may be paid on a weekly, biweekly, or other payment frequency not to
exceed monthly, as established by the CSA, ensuring that the total payment does
not exceed the $12,000 maximum or a period of two-years.
For example, the calculation of a monthly allotment would be derived in one of
the two following methods as appropriate:
Wage Calculation Methodology
Factors
Factors
o Annualized Old Wages (also Annualized Separation Wages)
n Annualized New Wages (also Annualized Reemployment Wages)
Variable percentage based on reduced Hours Per Week
h
h = (current hours per week /old hours per week)
Annualized Old Wages (o): Annualized wages are computed by
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multiplying the worker’s hourly rate during the last full week of his/her
employment by the number of hours the worker worked during the last
full week of employment and multiplying that number by 52:
(hourly rate * hours worked) * 52
Annualized New Wages (n): Annualized wages at reemployment are
defined similarly to annualized wages at separation, except that the
hourly rate and hours worked must reflect those of the first full week of
reemployment: (hourly rate * hours worked) * 52
Variable Percentage (h): This variable equals the quotient of the worker’s
current hours per week divided by the worker’s hours per week at the
time of separation.
H.7.1 Wage Calculation Formulas
Calculation for Full-Time Employment: Annualized Separation Wages
minus Annualized Reemployment Wages multiplied by .50 equals 50
percent of the difference between the two periods of wages. Fifty percent of
the difference between the two periods of wages divided by 12 equals the
monthly RTAA wage subsidy.
Monthly (o – n) * .50
Benefit Equals 12
Calculation for Part-time Employment: Annualized Separation Wages
minus Annualized Reemployment Wages multiplied by h (the variable
percentage based on reduced hours for part-time Annualized Reemployment
Wages). Fifty percent of the difference between the two periods of wages
divided by 12 equals the monthly RTAA wage subsidy.
Monthly ((o – n) * h * .50)
Benefit Equals 12
To determine the weekly annualized benefit amount change 12 to 52, or to
determine the bi-weekly annualized benefit amount change 12 to 26.
H.7.2 Wage Calculation Examples:
RTAA participant was working 40 hour per week with annualized separation
wage of $50,000 per year. The participant obtained full-time employment
making $20,000 per year.
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o = $50K n = $20K
Option 1- Full-Time Employment
Monthly ($50K – $20K) * .50
= $1250 Per Month
Benefit Equals 12
Option 2 – Part-Time Employment
RTAA participant was working 40 hour per week with annualized separation
wage of $50,000 per year. The participant obtained part-time employment of
20 hours per week making $20,000 per year.
o = $50K n = $20K h = (20/40)
Monthly ($50K – $20K) * (20/40) * .50
= $625 Per Month
Benefit Equals 12
If, as a result of the monthly verification exercise, the participant’s hourly wage
and/or hours are determined to have changed in such a way as to affect the
RTAA wage supplement, the CSA will repeat the above calculation and adjust
the RTAA payment accordingly.
H.8. Overpayments:
As with ATAA, the determination of “annualized wages” is made prospectively.
An individual meets the “earns not more than $55,000 a year in wages from
reemployment” requirement in Section 246 for a given month if the monthly
determination of annualized wages is accurate and complete at the time it is
made. Absent fraud, no overpayment determinations will be made for that
month based on projections for the yearly annual wage that later changed based
on information that was not available at the time that the monthly determination
was made. Monthly payments derived from the annualized wage projection
based on complete and accurate information at the time are valid payments that
the individual was entitled to, and are not overpayments.
H.9. Other Program Benefits
Statutory Changes:
Section 1841 of the 2009 Amendments amends Section 246(a)(2)(B)-(C) of the 2002
Act to read:
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(B) HEALTH INSURANCE.—A worker described in paragraph (3)(B) participating
in the program established under paragraph (1) is eligible to receive, for the
eligibility period under subparagraph (A) or (B) of paragraph (4) (as the case may
be), a credit for health insurance costs under section 35 of the Internal Revenue Code
of 1986.
(C) TRAINING AND OTHER SERVICES.—A worker described in paragraph (3)(B)
participating in the program established under paragraph (1) is eligible to receive
training approved under section 236 and employment and case management services
under section 235.
Section 1841 of the 2009 Amendments also amends Section 246(a)(7) of the 2002
Act to read:
(7) LIMITATION ON OTHER BENEFITS.—A worker described in paragraph
(3)(B) may not receive a trade readjustment allowance under part I of subchapter B
pursuant to the certification described in paragraph (3)(A) during any week for which
the worker receives a payment described in paragraph (2)(A).
Administration: An individual receiving RTAA may also receive TAA training,
employment and case management services, HCTC, and job search and
relocation allowances under certain conditions.
As with ATAA, once a worker elects RTAA, the worker cannot return to TRA.
Under the 2009 Act, a means is provided for a worker to move from TRA to
RTAA, by authorizing a method of computing an available balance when that
move occurs, but does not provide a means for a worker to move from RTAA
back to TRA.
With respect to HCTC, the CSA must report RTAA recipients (workers who are
receiving RTAA) to the Internal Revenue Service (IRS) in the manner described
in UIPL No. 24-03, dated April 14, 2003 and UIPL No. 21-09, dated April 3, 2009.
H.10. Documentation of Benefit History
The Department requires that each CSA maintain a manual or automated benefit
history for each RTAA recipient for a period of no less than three years for audit
purposes. The three years begins from the most recent determination of
eligibility, benefits paid or appeal decisions – whichever is later. The information
required in that benefit history is the same as that required for ATAA.
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I. STATE OPERATIONS
I.1. Alien Verification
Statutory Change: Section 1853 of the 2009 Amendments amends Section 239 of
the 2002 Act by adding subsection (k), which reads:
(k) VERIFICATION OF ELIGIBILITY FOR PROGRAM BENEFITS.—
(1) IN GENERAL.—An agreement under this subchapter shall provide that the State
shall periodically redetermine that a worker receiving benefits under this subchapter
who is not a citizen or national of the United States remains in a satisfactory
immigration status. Once satisfactory immigration status has been initially verified
through the immigration status verification system described in section 1137(d) of the
Social Security Act (42 U.S.C. 1320b-7(d)) for purposes of establishing a worker’s
eligibility for unemployment compensation, the State shall reverify the worker’s
immigration status if the documentation provided during initial verification will expire
during the period in which that worker is potentially eligible to receive benefits under
this subchapter. The State shall conduct such redetermination in a timely manner,
utilizing the immigration status verification system described in section 1137(d) of the
Social Security Act (42 U.S.C. 1320b-7(d)).
(2) PROCEDURES.—The Secretary shall establish procedures to ensure the uniform
application by the States of the requirements of this subsection.
Administration: All states are required, under section1137(d) of the Social
Security Act (42 U.S.C. 1320b-7(d)), to initially verify the immigration status of
self-reporting aliens who apply for UI through the Systematic Alien Verification
for Entitlement (SAVE) program maintained by the U.S. Customs and
Immigration Service (USCIS, formerly Immigration and Naturalization Service).
Under section 1137(d)(2), an alien is required to provide an alien registration
document with an alien registration number, or provide “such other documents
as the State determines constitutes reasonable evidence indicating a satisfactory
immigration status.” If there is a match that verifies the individual’s
documentation, SAVE returns information that the alien is in satisfactory
immigration status, and provides an expiration date, if there is one, for that
status.
To meet this requirement, the State must have a system for alerting the staff
responsible for processing applications to the expiration of satisfactory
immigration status during the time the individual is potentially eligible for
benefits. This may be done by modifying case management systems for TAA
recipients to track the immigration status of a worker receiving TAA who is not a
citizen or national of the United States. It is important to note that this
requirement applies to all benefits under the TAA program, and not just TRA
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benefits.
Section 239(k) of the 2009 Act requires that States re-verify an individual’s
immigration status if the documentation provided by the individual during
initial verification will expire during the period in which that worker is
potentially eligible to receive Trade benefits. The re-verification of satisfactory
immigration status must be conducted in a timely manner, and in the same
manner used for initial verification.
To the extent States have in place, and use, a system for alerting the staff
responsible for processing applications to the expiration of satisfactory
immigration status during the time the individual is potentially eligible for
benefits, no further action is required unless the alien’s satisfactory immigration
status expires. Additionally, one of the six conditions for approval of training is
that there be “a reasonable expectation of employment following completion of .
. . training.” Where a worker is not in a satisfactory immigration status, there is
no such reasonable expectation. Therefore, a training program is not approvable
if the individual is not eligible at the time of application for work at least one day
following completion of training.
I.2. Control Measures
Statutory Change: Section 1852 of the 2009 Amendments amends Section 239 of
the 2002 Act to add subsection (i), which reads:
(i) CONTROL MEASURES.—
(1) IN GENERAL.—The Secretary shall require each cooperating State and cooperating
State agency to implement effective control measures and to effectively oversee the
operation and administration of the trade adjustment assistance program under this
chapter, including by means of monitoring the operation of control measures to
improve the accuracy and timeliness of the data being collected and reported.
(2) DEFINITION.—For purposes of paragraph (1), the term ‘control measures’ means
measures that—
(A) are internal to a system used by a State to collect data; and
(B) are designed to ensure the accuracy and verifiability of such data.
Administration: This new section requires CSAs to implement control measures
to effectively oversee the operation and administration of the TAA program and
to improve the timeliness of reported data, as well as verifying the accuracy of
such data. In addition, CSAs must monitor on a regular basis the administration
of the TAA program and its various components, including TRA, training
services, RTAA, job search and relocation, and employment and case
management services.
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To comply with this new provision, the CSA must adopt a formal monitoring
program that reviews a sample of worker files to ensure effective and efficient
operation and administration of the program. The monitoring program must be
designed to identify best practices, process deficiencies, and training needs. Case
files reviewed must include files for workers certified under both the 2002
amendments and the 2009 amendments. A minimum quarterly random sample
of 20 cases should be audited and must include at least two certifications. The
four quarterly samples within a calendar year should also cover at least four
different areas of the State administering the program. If circumstances
preclude a CSA from meeting these criteria, the CSA should contact the ETA
Regional Office to design a monitoring program that better suits the TAA
program in that State, and is sufficient to ensure the accuracy and verifiability of
such data.
I.3. Data Reporting
Statutory Change: Section 1852 of the 2009 Amendments amends Section 239 of
the Act to add subsection (j), which reads:
(j) DATA REPORTING.—
(1) IN GENERAL.—Any agreement entered into under this section shall require the
cooperating State or cooperating State agency to report to the Secretary on a quarterly
basis comprehensive performance accountability data, to consist of—
(A) the core indicators of performance described in paragraph (2)(A);
(B) the additional indicators of performance described in paragraph (2)(B), if any;
and
(C) a description of efforts made to improve outcomes for workers under the trade
adjustment assistance program.
(2) CORE INDICATORS DESCRIBED.—
(A) IN GENERAL.—The core indicators of performance described in this paragraph
are—
(i) the percentage of workers receiving benefits under this chapter who are
employed during the second calendar quarter following the calendar quarter in
which the workers cease receiving such benefits;
(ii) the percentage of such workers who are employed in each of the third and
fourth calendar quarters following the calendar quarter in which the workers cease
receiving such benefits; and
(iii) the earnings of such workers in each of the third and fourth calendar quarters
following the calendar quarter in which the workers cease receiving such benefits.
(B) ADDITIONAL INDICATORS.—The Secretary and a cooperating State or
cooperating State agency may agree upon additional indicators of performance for the
trade adjustment assistance program under this chapter, as appropriate.
(3) STANDARDS WITH RESPECT TO RELIABILITY OF DATA.—In preparing the quarterly
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report required by paragraph (1), each cooperating State or cooperating State agency
shall establish procedures that are consistent with guidelines to be issued by the
Secretary to ensure that the data reported are valid and reliable.
Administration: This new section establishes statutory core indicators and
outcome reporting requirements for TAA participants, including an Entered
Employment measure, two Retained Employment measures and an Average
Earnings measure. Outcome data is required on a quarterly basis as part of the
overall effort to improve the TAA program, its performance and worker
outcomes. The Secretary and States may agree upon additional measures,
although no new measures are planned at this time. States also must submit a
description of efforts made to improve outcomes for workers.
Some of the outcome data required by Section 239(j) of the 2009 Act is collected
on current reports while other data may be new or may be collected in different
formats than those currently in place. Although the new reporting requirements
under Section 239(j) are similar to the Common Measures currently reported on
the Trade Act Participant Report (TAPR) (OMB 1205-0392). Section 239(j)
requires CSAs to report additional information beyond that reported on the
TAPR.
Therefore, on or before August 17, 2009, the Department expects to transmit new
reporting forms to the States and issue detailed guidance on the new reporting
requirements imposed on States under the 2009 Act. CSAs are required to
continue to submit the TAPR (OMB Control No. 1205-0932) in accordance with
TEGL No. 11-00, the ETA-563 Quarterly Participant Report (OMB Control No.
1205-0459) in accordance with TEGL 23-06, and the Alternative Trade
Adjustment Assistance Activities Report (ATAAAR) (OMB Control No. 1205-
0459) in accordance with TEGL No. 01-06, until the Department has issued
superseding forms and guidance.
I.4. Program Reporting Requirements
Statutory Change: Section 1854 of the 2009 Amendments amends the Act by
adding Section 249B:
SEC. 249B. COLLECTION AND PUBLICATION OF DATA AND REPORTS;
INFORMATION TO WORKERS.
(a) IN GENERAL.—Not later than 180 days after the date of the enactment of this
section, the Secretary shall implement a system to collect and report the data described in
subsection (b), as well as any other information that the Secretary considers appropriate
to effectively carry out this chapter.
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(b) DATA TO BE INCLUDED.—The system required under subsection (a) shall include
collection of and reporting on the following data for each fiscal year:
(1) DATA ON PETITIONS FILED, CERTIFIED, AND DENIED.—
(A) The number of petitions filed, certified, and denied under this chapter.
(B) The number of workers covered by petitions filed, certified, and denied.
(C) The number of petitions, classified by—
(i) the basis for certification, including increased imports, shifts in production,
and other bases of eligibility; and
(ii) congressional district of the United States.
(D) The average time for processing such petitions.
(2) DATA ON BENEFITS RECEIVED.—
(A) The number of workers receiving benefits under this chapter.
(B) The number of workers receiving each type of benefit, including training, trade
readjustment allowances, employment and case management services, and relocation
and job search allowances, and, to the extent feasible, credits for health insurance
costs under section 35 of the Internal Revenue Code of 1986.
(C) The average time during which such workers receive each such type of benefit.
(3) DATA ON TRAINING.—
(A) The number of workers enrolled in training approved under section 236,
classified by major types of training, including classroom training, training through
distance learning, on-the-job training, and customized training.
(B) The number of workers enrolled in full-time training and part-time training.
(C) The average duration of training.
(D) The number of training waivers granted under section 231(c), classified by type
of waiver.
(E) The number of workers who complete training and the duration of such
training.
(F) The number of workers who do not complete training.
(4) DATA ON OUTCOMES.—
(A) A summary of the quarterly reports required under section 239(j).
(B) The sectors in which workers are employed after receiving benefits under this
chapter.
(5) DATA ON RAPID RESPONSE ACTIVITIES.—Whether rapid response activities were
provided with respect to each petition filed under section 221.
(c) CLASSIFICATION OF DATA.—To the extent possible, in collecting and reporting the
data described in subsection (b), the Secretary shall classify the data by industry, State,
and national totals.
(d) REPORT.—Not later than December 15 of each year, the Secretary shall submit to
the Committee on Finance of the Senate and the Committee on Ways and Means of the
House of Representatives a report that includes—
(1) a summary of the information collected under this section for the preceding fiscal
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year;
(2) information on the distribution of funds to each State pursuant to section
236(a)(2); and
(3) any recommendations of the Secretary with respect to changes in eligibility
requirements, benefits, or training funding under this chapter based on the data
collected under this section.
(e) AVAILABILITY OF DATA.—
(1) IN GENERAL.—The Secretary shall make available to the public, by publishing on
the website of the Department of Labor and by other means, as appropriate—
(A) the report required under subsection (d);
(B) the data collected under this section, in a searchable format; and
(C) a list of cooperating States and cooperating State agencies that failed to submit
to the data required by this section to the Secretary in a timely manner.
(2) UPDATES.—The Secretary shall update the data under paragraph (1) on a
quarterly basis.
Administration: The new reporting requirements for data required under
Section 249B are effective 180 days after the date of the Act. Since quarterly data
are required, and reporting a split quarter would not be consistent with
legislative direction, new reporting requirements will be in effect for the Quarter
beginning October 1, 2009 (the first quarter of fiscal year 2010).
The new data elements required under Section 249B, as well as existing data
elements collected on current reports, may be required to be collected in different
formats than those currently in place in order to accommodate new reporting
requirements. Therefore, on or before August 17, 2009, the Department expects
to transmit new reporting forms to the States and issue detailed guidance on the
new reporting requirements imposed on States under the 2009 Act. States are
required to continue to submit the TAPR (OMB Control No. 1205-0932) in
accordance with TEGL No. 11-00, the ETA-563 Quarterly Participant Report
(OMB Control No. 1205-0459) in accordance with TEGL No. 23-06, and the
ATAAAR (OMB Control No. 1205-0459) in accordance with TEGL No. 01-06,
until the Department issues superseding forms and guidance.
J. HEALTH COVERAGE TAX CREDIT
Statutory Change: Sections 1899A and 1899B of the 2009 Amendments, relating
to the HCTC, amended Sections 35(a) and 7527(b) of the Internal Revenue Code
of 1986 by adding a new section, Section 7527(e), to provide for 80 percent
reimbursement of health insurance costs during the period from March 2009
through December 2010, to provide for certain retroactive payments, and also to
reduce the amount of any such payment by the amount of any National
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Emergency Grant (NEG) payments to the taxpayer. Section 1899C of the 2009
Amendments amended the definition of an “eligible TAA recipient” to provide
the HCTC during breaks in approved training and where, under defined
circumstances, a worker is not in approved training. Section 1899K of the 2009
Act extends the use of NEGs under Section 173(f) of the WIA to cover HCTC
advance payments, outreach, and infrastructure changes.
Administration: The Internal Revenue Service administers the HCTC, which
helps “eligible TAA recipients” and “eligible alternative TAA recipients” and
other eligible individuals and their families pay their health insurance premiums.
“Eligible alternative TAA recipients” includes ATAA recipients and RTAA
recipients.
The new definition of an “eligible TAA recipient” as amended continues to be
defined as an individual who receives Trade Readjustment Allowances (TRA) for
any day of a month (and the next subsequent month) or who will receive TRA
but for the fact that s/he has not exhausted unemployment compensation (UC)
entitlement, and is potentially eligible for HCTC for that month. Under the 2009
Act, an eligible TAA recipient also includes:
1. an individual who is in a break in approved training that exceeds 30 days,
and the break falls within the period for receiving TRA provided under
the Section 233 of the Trade Act; or,
2. who is receiving UC for any day of such month and would be eligible to
receive TRA (except that s/he has not exhausted UC) for such month,
without regard to the enrollment in training requirements.
These amendments have the effect of expanding HCTC eligibility, under some
conditions, to an individual who is in an extended break in training, or who is
still receiving UI benefits under regular or extended programs even though they
are not yet enrolled in training. Accordingly, CSAs will need to ensure that they
review each case individually before determining HCTC eligibility for trade
affected workers.
CSAs should also be aware that these amendments provide, through December,
2010, for the continuation of HCTC to certain family members of eligible
recipients after eligibility would have ended due to receipt of Medicare, death, or
divorce of the principle recipient. The CSA has no role in the administration of
this extension, which is the responsibility of the IRS, however the CSA needs to
be aware of this provision. This expanded eligibility is available for up to 24
additional months and permits eligible family members to continue to claim the
HCTC credit after eligibility would otherwise have expired.
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UIPL No. 21-09 provides guidance on applying the expanded definition of
“eligible TAA recipient.” Additional information on the HCTC program is
available on the IRS website at: www.irs.gov.
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Linked official document 2: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2009/TEGL22-08aB.pdf
ATTACHMENT B
Attachment B is an unofficial version of Chapter 2 and sections of Chapter 5 of
Title II of The Trade Act of 1974, Public Law 93-618, as amended. This document
was prepared by the U.S. Department of Labor to include amendments to the
Trade Act made by the Trade and Globalization Adjustment Assistance Act of
2009 (Division B, Title I, Subtitle I of the American Recovery and Reinvestment
Act of 2009, Public Law 111-5).
THE TRADE ACT OF 1974
Public Law 93-618, as amended by Public Law 96-417, Public Law 97-35, Public
Law 98-120, Public Law 98-369, Public Law 99-107, Public Law 99-I 55, Public
Law 99-181, Public Law 99-189, Public Law 99-272, Public Law 100-418. Public
Law 100-647, Public Law 101- 382, Public Law 102-318, Public Law 103-66, and
Public Law 103-182, Public Law 105-220, Public Law 105-277, Public Law 106-36,
Public Law 106-113, Public Law 107-210, Public Law 108-249, and Public Law
111-5.
CHAPTER 2—TRADE ASSISTANCE FOR WORKERS
Subchapter A—Petitions and Determinations
SEC. 221. PETITIONS. [19 U.S.C. § 2271]
(a) Filing of petitions; assistance; publication of notice
(1) A petition for certification of eligibility to apply for adjustment assistance for
a group of workers under this chapter may be filed simultaneously with the
Secretary of Labor and with the Governor of the State in which such workers’
firm (as defined in section 247) is located by any of the following:
(A) The group of workers.
(B) The certified or recognized union or other duly authorized representative of
such workers.
(C) Employers of such workers, one-stop operators or one-stop partners (as
defined in section 101 of the Workforce Investment Act of 1998 (29 U.S.C. §
2801)), including State employment security agencies, or the State dislocated
worker unit established under title I of such Act, on behalf of such workers.
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(2) Upon receipt of a petition filed under paragraph (1), the Governor shall
(A) ensure that rapid response activities and appropriate core and intensive
services (as described in section 134 of the Workforce Investment Act of 1998
(29 U.S.C. § 2864)) authorized under other Federal laws are made available to
the workers covered by the petition to the extent authorized under such laws;
and
(B) assist the Secretary in the review of the petition by verifying such
information and providing such other assistance as the Secretary may request.
(3) Upon receipt of the petition, the Secretary shall promptly publish notice in the
Federal Register and on the website of the Department of Labor that the
Secretary has received the petition and initiated an investigation.
(b) Hearing
If the petitioner, or any other person found by the Secretary to have a substantial
interest in the proceedings, submits not later than 10 days after the date of the
Secretary’s publication under subsection (a) of this section a request for a
hearing, the Secretary shall provide for a public hearing and afford such
interested persons an opportunity to be present, to produce evidence, and to be
heard.
SEC. 222. GROUP ELIGIBILITY REQUIREMENTS. [19 U.S.C. § 2272]
(a) In general
A group of workers shall be certified by the Secretary as eligible to apply for
adjustment assistance under this chapter pursuant to a petition filed under
section 221 if the Secretary determines that--
(1) a significant number or proportion of the workers in such workers’ firm
have become totally or partially separated, or are threatened to become totally
or partially separated; and
(2)(A)(i) the sales or production, or both, of such firm have decreased
absolutely;
(ii)(I) imports of articles or services like or directly competitive with articles
produced or services supplied by such firm have increased;
(II) imports of articles like or directly competitive with articles--
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(aa) into which one or more component parts produced by such firm are
directly incorporated, or
(bb) which are produced directly using services supplied by such firm,
have increased; or
(III) imports of articles directly incorporating one or more component parts
produced outside the United States that are like or directly competitive with
imports of articles incorporating one or more component parts produced by
such firm have increased; and
(iii) the increase in imports described in clause (ii) contributed importantly to
such workers’ separation or threat of separation and to the decline in the sales
or production of such firm; or
(B)(i)(I) there has been a shift by such workers’ firm to a foreign country in the
production of articles or the supply of services like or directly competitive with
articles which are produced or services which are supplied by such firm; or
(II) such workers’ firm has acquired from a foreign country articles or services
that are like or directly competitive with articles which are produced or
services which are supplied by such firm; and
(ii) the shift described in clause (i)(I) or the acquisition of articles or services
described in clause (i)(II) contributed importantly to such workers’ separation
or threat of separation.
(b) Adversely affected workers in public agencies
A group of workers in a public agency shall be certified by the Secretary as
eligible to apply for adjustment assistance under this chapter pursuant to a
petition filed under section 221 if the Secretary determines that--
(1) a significant number or proportion of the workers in the public agency have
become totally or partially separated, or are threatened to become totally or
partially separated;
(2) the public agency has acquired from a foreign country services like or
directly competitive with services which are supplied by such agency; and
(3) the acquisition of services described in paragraph (2) contributed
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importantly to such workers’ separation or threat of separation.
(c) Adversely affected secondary workers
A group of workers shall be certified by the Secretary as eligible to apply for
trade adjustment assistance benefits under this chapter pursuant to a petition
filed under section 221 if the Secretary determines that--
(1) a significant number or proportion of the workers in the workers’ firm or an
appropriate subdivision of the firm have become totally or partially separated,
or are threatened to become totally or partially separated;
(2) the workers’ firm is a supplier or downstream producer to a firm that
employed a group of workers who received a certification of eligibility under
subsection (a) of this section, and such supply or production is related to the
article or service that was the basis for such certification (as defined in
subsection (d) (3) and (4) of this section); and
(3) either--
(A) the workers’ firm is a supplier and the component parts it supplied to the
firm described in paragraph (2) accounted for at least 20 percent of the
production or sales of the workers’ firm; or
(B) a loss of business by the workers’ firm with the firm described in
paragraph (2) contributed importantly to the workers’ separation or threat of
separation determined under paragraph (1).
(d) Definitions
For purposes of this section--
(1) The term “contributed importantly” means a cause which is important but
not necessarily more important than any other cause.
(2)(A) Any firm that engages in exploration or drilling for oil or natural gas
shall be considered to be a firm producing oil or natural gas.
(B) Any firm that engages in exploration or drilling for oil or natural gas, or
otherwise produces oil or natural gas, shall be considered to be producing
articles directly competitive with imports of oil and with imports of natural
gas.
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(3) Downstream producer
(A) In general
The term “downstream producer” means a firm that performs additional,
value-added production processes or services directly for another firm for
articles or services with respect to which a group of workers in such other
firm has been certified under subsection (a).
(B) Value-added production processes or services
For purposes of subparagraph (A), value-added production processes or
services include final assembly, finishing, testing, packaging, or maintenance
or transportation services.
(4) Supplier
The term “supplier” means a firm that produces and supplies directly to
another firm component parts for articles, or services, used in the production of
articles or in the supply of services, as the case may be, that were the basis for a
certification of eligibility under subsection (a) of this section of a group of
workers employed by such other firm.
(5) Reference to firm
For purposes of subsection (a), the term “firm” does not include a public
agency.
(e) Basis for Secretary’s determinations
(1) In general
The Secretary shall, in determining whether to certify a group of workers under
section 223, obtain from the workers’ firm, or a customer of the workers’ firm,
information the Secretary determines to be necessary to make the certification,
through questionnaires and in such other manner as the Secretary determines
appropriate.
(2) Additional information
The Secretary may seek additional information to determine whether to certify
a group of workers under subsection (a), (b), or (c)--
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(A) By contacting
(i) officials or employees of the workers’ firm;
(ii) officials of customers of the workers’ firm;
(iii) officials of certified or recognized unions or other duly authorized
representatives of the group of workers; or
(iv) one-stop operators or one-stop partners (as defined in section 101 of the
Workforce Investment Act of 1998 (29 U.S.C. § 2801)); or
(B) by using other available sources of information.
(3) Verification of information
(A) Certification
The Secretary shall require a firm or customer to certify--
(i) all information obtained under paragraph (1) from the firm or customer
(as the case may be) through questionnaires; and
(ii) all other information obtained under paragraph (1) from the firm or
customer (as the case may be) on which the Secretary relies in making a
determination under section 223, unless the Secretary has a reasonable basis
for determining that such information is accurate and complete without
being certified.
(B) Use of subpoenas
The Secretary shall require the workers’ firm or a customer of the workers’
firm to provide information requested by the Secretary under paragraph (1)
by subpoena pursuant to section 249 if the firm or customer (as the case may
be) fails to provide the information within 20 days after the date of the
Secretary’s request, unless the firm or customer (as the case may be)
demonstrates to the satisfaction of the Secretary that the firm or customer (as
the case may be) will provide the information within a reasonable period of
time.
(C) Protection of confidential information
The Secretary may not release information obtained under paragraph (1) that
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the Secretary considers to be confidential business information unless the
firm or customer (as the case may be) submitting the confidential business
information had notice, at the time of submission, that the information would
be released by the Secretary, or the firm or customer (as the case may be)
subsequently consents to the release of the information. Nothing in this
subparagraph shall be construed to prohibit the Secretary from providing
such confidential business information to a court in camera or to another
party under a protective order issued by a court.
(f) Firms identified by the International Trade Commission
Notwithstanding any other provision of this chapter, a group of workers covered
by a petition filed under section 221 shall be certified under subsection (a) as
eligible to apply for adjustment assistance under this chapter if--
(1) the workers’ firm is publicly identified by name by the International Trade
Commission as a member of a domestic industry in an investigation resulting
in--
(A) an affirmative determination of serious injury or threat thereof under
section 202(b)(1);
(B) an affirmative determination of market disruption or threat thereof under
section 421(b)(1); or
(C) an affirmative final determination of material injury or threat thereof
under section 705(b)(1)(A) or 735(b)(1) of the Tarriff Act of 1930 (19 U.S.C. §§
1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the one-year period beginning on the date on
which--
(A) a summary of the report submitted to the President by the International
Trade Commission under section 202(f)(1) with respect to the affirmative
determination described in paragraph (1)(A) is published in the Federal
Register under section 202(f)(3); or
(B) notice of an affirmative determination described in subparagraph (B) or
(C) of paragraph (1) is published in the Federal Register; and
(3) the workers have become totally or partially separated from the workers’
firm within--
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(A) the one-year period described in paragraph (2); or
(B) notwithstanding section 223(b), the one-year period preceding the one-
year period described in paragraph (2).
SEC. 223. DETERMINATIONS BY SECRETARY OF LABOR. [19 U.S.C. §
2273]
(a) Certification of eligibility
As soon as possible after the date on which a petition is filed under section 221,
but in any event not later than 40 days after that date, the Secretary shall
determine whether the petitioning group meets the requirements of section 222
and shall issue a certification of eligibility to apply for assistance under this
subchapter covering workers in any group which meets such requirements. Each
certification shall specify the date on which the total or partial separation began
or threatened to begin.
(b) Workers covered by certification
A certification under this section shall not apply to any worker whose last total
or partial separation from the firm before the worker’s application under section
231 occurred more than one year before the date of the petition on which such
certification was granted.
(c) Publication of determination in Federal Register
Upon reaching a determination on a petition, the Secretary shall promptly
publish a summary of the determination in the Federal Register and on the
website of the Department of Labor, together with the Secretary’s reasons for
making such determination.
(d) Termination of certification
Whenever the Secretary determines, with respect to any certification of eligibility
of the workers of a firm, that total or partial separations from such firm are no
longer attributable to the conditions specified in section 222, the Secretary shall
terminate such certification and promptly have notice of such termination
published in the Federal Register and on the website of the Department of Labor,
together with the Secretary’s reasons for making such determination. Such
termination shall apply only with respect to total or partial separations occurring
after the termination date specified by the Secretary.
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(e) Standards for investigations and determinations
(1) In general
The Secretary shall establish standards, including data requirements, for
investigations of petitions filed under section 221 and criteria for making
determinations under subsection (a).
(2) Consultations
Not less than 90 days before issuing a final rule with respect to the standards
required under paragraph (1), the Secretary shall consult with the Committee
on Finance of the Senate and the Committee on Ways and Means of the House
of Representatives with respect to such rule.
SEC. 224. STUDY AND NOTIFICATIONS REGARDING CERTAIN
AFFIRMATIVE DETERMINATIONS; INDUSTRY NOTIFICATION OF
ASSISTANCE. [19 U.S.C. § 2274]
(a) Subject matter of study
Study of domestic industry--Whenever the International Trade Commission
(hereafter referred to in this chapter as the “Commission”) begins an
investigation under section 202 with respect to an industry, the Commission shall
immediately notify the Secretary of such investigation, and the Secretary shall
immediately begin a study of--
(1) the number of workers in the domestic industry producing the like or
directly competitive article who have been or are likely to be certified as
eligible for adjustment assistance, and
(2) the extent to which the adjustment of such workers to the import
competition may be facilitated through the use of existing programs.
(b) Report; publication
Report by the Secretary--The report of the Secretary of the study under
subsection (a) of this section shall be made to the President not later than 15 days
after the day on which the Commission makes its report under section 202(f).
Upon making his report to the President, the Secretary shall also promptly make
it public (with the exception of information which the Secretary determines to be
confidential) and shall have a summary of it published in the Federal Register
and on the website of the Department of Labor.
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(c) Notifications following affirmative global safeguard determinations
Upon making an affirmative determination under section 202(b), the
Commission shall promptly notify the Secretary of Labor and the Secretary of
Commerce and, in the case of a determination with respect to an agricultural
commodity, the Secretary of Agriculture, of the determination.
(d) Notifications following affirmative bilateral or plurilateral safeguard
determinations
(1) Notifications of determinations of market disruption
Upon making an affirmative determination under section 221(b)(1), the
Commission shall promptly notify the Secretary of Labor and the Secretary of
Commerce and, in the case of a determination with respect to an agricultural
commodity, the Secretary of Agriculture, of the determination.
(2) Notifications regarding trade agreement safeguards
Upon making an affirmative determination in a proceeding initiated under an
applicable safeguard provision (other than a provision described in paragraph
(3)) that is enacted to implement a trade agreement to which the United States
is a party, the Commission shall promptly notify the Secretary of Labor and the
Secretary of Commerce and, in the case of a determination with respect to an
agricultural commodity, the Secretary of Agriculture, of the determination.
(3) Notifications regarding textile and apparel safeguards
Upon making an affirmative determination in a proceeding initiated under any
safeguard provision relating to textile and apparel articles that is enacted to
implement a trade agreement to which the United States is a party, the
President shall promptly notify the Secretary of Labor and the Secretary of
Commerce of the determination.
(e) Notifications following certain affirmative determinations under subtitle IV of
chapter 4 of this title
Upon making an affirmative determination under section 705(b)(1)(A) or
735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. §§ 1671d(b)(1)(A) and
1673d(b)(1)(A)), the Commission shall promptly notify the Secretary of Labor
and the Secretary of Commerce and, in the case of a determination with respect
to an agricultural commodity, the Secretary of Agriculture, of the determination.
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(f) Industry notification of assistance
Upon receiving a notification of a determination under subsection (c), (d), or (e)
with respect to a domestic industry--
(1) the Secretary of Labor shall--
(A) notify the representatives of the domestic industry affected by the
determination, firms publicly identified by name during the course of the
proceeding relating to the determination, and any certified or recognized
union or, to the extent practicable, other duly authorized representative of
workers employed by such representatives of the domestic industry, of--
(i) the allowances, training, employment services, and other benefits
available under this chapter;
(ii) the manner in which to file a petition and apply for such benefits; and
(iii) the availability of assistance in filing such petitions;
(B) notify the Governor of each State in which one or more firms in the
industry described in subparagraph (A) are located of the Commission’s
determination and the identity of the firms; and
(C) upon request, provide any assistance that is necessary to file a petition
under section 221;
(2) the Secretary of Commerce shall--
(A) notify the representatives of the domestic industry affected by the
determination and any firms publicly identified by name during the course of
the proceeding relating to the determination of--
(i) the benefits available under chapter 3 of this subchapter;
(ii) the manner in which to file a petition and apply for such benefits; and
(iii) the availability of assistance in filing such petitions; and
(B) upon request, provide any assistance that is necessary to file a petition
under section 251; and
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(3) in the case of an affirmative determination based upon imports of an
agricultural commodity, the Secretary of Agriculture shall--
(A) notify representatives of the domestic industry affected by the
determination and any agricultural commodity producers publicly identified
by name during the course of the proceeding relating to the determination of
--
(i) the benefits available under chapter 6 of this subchapter;
(ii) the manner in which to file a petition and apply for such benefits; and
(iii) the availability of assistance in filing such petitions; and
(B) upon request, provide any assistance that is necessary to file a petition
under section 292.
(g) Representatives of the domestic industry
For purposes of subsection (f), the term “representatives of the domestic
industry” means the persons that petitioned for relief in connection with--
(1) a proceeding under section 202 or 241 of this Act;
(2) a proceeding under section 702(b) or 732(b) of the Tariff Act of 1930 (19
U.S.C. § 1671d(b) and 1673d(b)); or
(3) any safeguard investigation described in subsection (d)(2) or (d)(3).
SEC. 225. BENEFIT INFORMATION TO WORKERS. [19 U.S.C. § 2275]
(a) The Secretary shall provide full information to workers about the benefit
allowances, training, and other employment services available under this chapter
and about the petition and application procedures, and the appropriate filing
dates, for such allowances, training and services. The Secretary shall provide
whatever assistance is necessary to enable groups of workers to prepare petitions
or applications for program benefits. The Secretary shall make every effort to
insure that cooperating State agencies fully comply with the agreements entered
into under section 239(a) and shall periodically review such compliance. The
Secretary shall inform the State Board for Vocational Education or equivalent
agency and other public or private agencies, institutions, and employers, as
appropriate, of each certification issued under section 223 and of projections, if
available, of the needs for training under section 236 as a result of such
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certification.
(b)(1) The Secretary shall provide written notice through the mail of the benefits
available under this chapter to each worker whom the Secretary has reason to
believe is covered by a certification made under this subchapter--
(A) at the time such certification is made, if the worker was partially or totally
separated from the adversely affected employment before such certification, or
(B) at the time of the total or partial separation of the worker from the
adversely affected employment, if subparagraph (A) does not apply.
(2) The Secretary shall publish notice of the benefits available under this chapter
to workers covered by each certification made under this subchapter in
newspapers of general circulation in the areas in which such workers reside.
(c) Upon issuing a certification under section 223, the Secretary shall notify the
Secretary of Commerce of the identity of each firm covered by the certification.
Subchapter B—Program Benefits
PART I—TRADE ADJUSTMENT ALLOWANCES
SEC. 231. Qualifying requirements for workers. [19 U.S.C. § 2291]
(a) Trade readjustment allowance conditions
Payment of a trade readjustment allowance shall be made to an adversely
affected worker covered by a certification under subchapter A of this chapter
who files an application for such allowance for any week of unemployment
which begins on or after the date of such certification, if the following conditions
are met:
(1) Such worker’s total or partial separation before the worker’s application
under this part occurred--
(A) on or after the date, as specified in the certification under which the
worker is covered, on which total or partial separation began or threatened to
begin in the adversely affected employment,
(B) before the expiration of the 2-year period beginning on the date on which
the determination under section 223 was made, and
(C) before the termination date (if any) determined pursuant to section
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223(d).
(2) Such worker had, in the 52-week period ending with the week in which
such total or partial separation occurred, at least 26 weeks of employment at
wages of $30 or more a week in adversely affected employment with a single
firm, or, if data with respect to weeks of employment with a firm are not
available, equivalent amounts of employment computed under regulations
prescribed by the Secretary. For the purposes of this paragraph, any week in
which such worker--
(A) is on employer-authorized leave for purposes of vacation, sickness,
injury, maternity, or inactive duty or active duty military service for training,
(B) does not work because of a disability that is compensable under a
workmen’s compensation law or plan of a State or the United States,
(C) had his employment interrupted in order to serve as a full-time
representative of a labor organization in such firm, or
(D) is on call-up for purposes of active duty in a reserve status in the Armed
Forces of the United States, provided such active duty is “Federal service” as
defined in section 8521(a)(1) of Title 5, United States Code
shall be treated as a week of employment at wages of $30 or more, but not
more than 7 weeks, in case of weeks described in subparagraph (A) or (C), or
both (and not more than 26 weeks, in the case of weeks described in
subparagraph (B) or (D)), may be treated as weeks of employment under this
sentence.
(3) Such worker--
(A) was entitled to (or would be entitled to if the worker applied therefor)
unemployment insurance for a week within the benefit period (i) in which
such total or partial separation took place, or (ii) which began (or would have
begun) by reason of the filing of a claim for unemployment insurance by such
worker after such total or partial separation;
(B) has exhausted all rights to any unemployment insurance, except
additional compensation that is funded by a State and is not reimbursed from
any Federal funds, to which the worker was entitled (or would be entitled if
the worker applied therefor); and
(C) does not have an unexpired waiting period applicable to the worker for
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any such unemployment insurance.
(4) Such worker, with respect to such week of unemployment, would not be
disqualified for extended compensation payable under the Federal-State
Extended Unemployment Compensation Act of 1970 by reason of the work
acceptance and job search requirements in section 202(a) (3) of such Act.
(5) Such worker--
(A)(i) is enrolled in a training program approved by the Secretary under
section 236(a), and
(ii) the enrollment required under clause (i) occurs no later than the latest of--
(I) in the case of a worker whose most recent total separation from
adversely affected employment that meets the requirements of paragraphs
(1) and (2) occurs after the date on which the Secretary issues a certification
covering the worker, the last day of the 26th week after such total
separation,
(II) in the case of a worker whose most recent total separation from
adversely affected employment that meets the requirements of paragraphs
(1) and (2) occurs before the date on which the Secretary issues a
certification covering the worker, the last day of the 26th week after the date
of such certification,
(III) 45 days after the date specified in subclause (I) or (II), as the case may
be, if the Secretary determines there are extenuating circumstances that
justify an extension in the enrollment period,
(IV) in the case of a worker who fails to enroll by the date required by
subclause (I), (II), or (III), as the case may be, due to the failure to provide
the worker with timely information regarding the date specified in such
subclause, the last day of a period determined by the Secretary, or
(V) the last day of a period determined by the Secretary to be approved for
enrollment after the termination of a waiver issued pursuant to subsection
(c) of this section,
(B) has, after the date on which the worker became totally separated, or
partially separated, from the adversely affected employment, completed a
training program approved by the Secretary under section 236(a), or
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(C) has received a written statement under subsection (c)(1) of this section
after the date described in subparagraph (B).
(b) Withholding of trade readjustment allowance pending beginning or
resumption of participation in training program; period of applicability
If--
(1) the Secretary determines that--
(A) the adversely affected worker--
(i) has failed to begin participation in the training program the enrollment
in which meets the requirement of subsection (a)(5) of this section, or
(ii) has ceased to participate in such training program before completing
such training program, and
(B) there is no justifiable cause for such failure or cessation, or
(2) the certification made with respect to such worker under subsection (c)(1) of
this section is revoked under subsection (c)(2) of this section,
no trade readjustment allowance may be paid to the adversely affected worker
under this chapter for the week in which such failure, cessation, or revocation
occurred, or any succeeding week, until the adversely affected worker begins or
resumes participation in a training program approved under section 236(a).
(c) Waivers of training requirements
(1) Issuance of waivers
The Secretary may issue a written statement to an adversely affected worker
waiving the requirement to be enrolled in training described in subsection
(a)(5)(A) of this section if the Secretary determines that it is not feasible or
appropriate for the worker, because of 1 or more of the following reasons:
(A) Recall
The worker has been notified that the worker will be recalled by the firm
from which the separation occurred.
(B) Marketable skills
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(i) In general
The worker possesses marketable skills for suitable employment (as
determined pursuant to an assessment of the worker, which may include
the profiling system under section 303(j) of the Social Security Act (42 U.S.C.
§ 503(j)), carried out in accordance with guidelines issued by the Secretary)
and there is a reasonable expectation of employment at equivalent wages in
the foreseeable future.
(ii) Marketable skills defined
For purposes of clause (i), the term “marketable skills” may include the
possession of a postgraduate degree from an institution of higher education
(as defined in section 102 of the Higher Education Act of 1965 (20 U.S.C. §
1002)) or an equivalent institution, or the possession of an equivalent
postgraduate certification in a specialized field.
(C) Retirement
The worker is within 2 years of meeting all requirements for entitlement to
either--
(i) old-age insurance benefits under title II of the Social Security Act (42
U.S.C. §§ 401 et seq.) (except for application therefor); or
(ii) a private pension sponsored by an employer or labor organization.
(D) Health
The worker is unable to participate in training due to the health of the
worker, except that a waiver under this subparagraph shall not be construed
to exempt a worker from requirements relating to the availability for work,
active search for work, or refusal to accept work under Federal or State
unemployment compensation laws.
(E) Enrollment unavailable
The first available enrollment date for the approved training of the worker is
within 60 days after the date of the determination made under this
paragraph, or, if later, there are extenuating circumstances for the delay in
enrollment, as determined pursuant to guidelines issued by the Secretary.
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(F) Training not available
Training approved by the Secretary is not reasonably available to the worker
from either governmental agencies or private sources (which may include
area career and technical education schools, as defined in section 3 of the Carl
D. Perkins Vocational and Technical Education Act of 1998 (20 U.S.C. § 2302),
and employers), no training that is suitable for the worker is available at a
reasonable cost, or no training funds are available.
(2) Duration of waivers
(A) In general
Except as provided in paragraph (3)(B), a waiver issued under paragraph (1)
shall be effective for not more than 6 months after the date on which the
waiver is issued, unless the Secretary determines otherwise.
(B) Revocation
The Secretary shall revoke a waiver issued under paragraph (1) if the
Secretary determines that the basis of a waiver is no longer applicable to the
worker and shall notify the worker in writing of the revocation.
(3) Agreements under section 2311 of this title
(A) Issuance by cooperating States
An agreement under section 239 shall authorize a cooperating State to issue
waivers as described in paragraph (1).
(B) Review of waivers
An agreement under section 239 shall require a cooperating State to review
each waiver issued by the State under subparagraph (A), (B), (D), (E), or (F) of
paragraph (1)--
(i) 3 months after the date on which the State issues the waiver; and
(ii) on a monthly basis thereafter.
(C) Submission of statements
An agreement under section 239 shall include a requirement that the
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cooperating State submit to the Secretary the written statements provided
under paragraph (1) and a statement of the reasons for the waiver.
SEC. 232. WEEKLY AMOUNTS. [19 U.S.C. § 2292]
(a) Formula
Subject to subsections (b), (c), and (d) of this section, the trade readjustment
allowance payable to an adversely affected worker for a week of unemployment
shall be an amount equal to the most recent weekly benefit amount of the
unemployment insurance payable to the worker for a week of total
unemployment preceding the worker’s first exhaustion of unemployment
insurance (as determined for purposes of section 231(a)(3)(B)) reduced (but not
below zero) by--
(1) any training allowance deductible under subsection (c) of this section; and
(2) income that is deductible from unemployment insurance under the
disqualifying income provisions of the applicable State law or Federal
unemployment insurance law, except that in the case of an adversely affected
worker who is participating in training under this chapter, such income shall
not include earnings from work for such week that are equal to or less than the
most recent weekly benefit amount of the unemployment insurance payable to
the worker for a week of total unemployment preceding the worker’s first
exhaustion of unemployment insurance (as determined for purposes of section
231(a)(3)(B)).
(b) Adversely affected workers who are undergoing training
Any adversely affected worker who is entitled to trade readjustment allowances
and who is undergoing training approved by the Secretary shall receive for each
week in which he is undergoing any such training, a trade readjustment
allowance in an amount (computed for such week) equal to the amount
computed under subsection (a) of this section or (if greater) the amount of any
weekly allowance for such training to which he would be entitled under any
other Federal law for the training of workers, if he applied for such allowance.
Such trade readjustment allowance shall be paid in lieu of any training allowance
to which the worker would be entitled under such other Federal law.
(c) Deduction from total number of weeks of allowance entitlement
If a training allowance under any Federal law other than this chapter is paid to
an adversely affected worker for any week of unemployment with respect to
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which he would be entitled (determined without regard to any disqualification
under section 223(b)) to a trade readjustment allowance if he applied for such
allowance, each such week shall be deducted from the total number of weeks of
trade readjustment allowance otherwise payable to him under section 233(a)
when he applies for a trade readjustment allowance and is determined to be
entitled to such allowance. If such training allowance paid to such worker for
any week of unemployment is less than the amount of the trade readjustment
allowance to which he would be entitled if he applied for such allowance, he
shall receive, when he applies for a trade readjustment allowance and is
determined to be entitled to such allowance, a trade readjustment allowance for
such week equal to such difference.
(d) Election of trade readjustment allowance or unemployment insurance
Notwithstanding section 231(a)(3)(B), an adversely affected worker may elect to
receive a trade readjustment allowance instead of unemployment insurance
during any week with respect to which the worker--
(1) is entitled to receive unemployment insurance as a result of the
establishment by the worker of a new benefit year under State law, based in
whole or in part upon part-time or short-term employment in which the
worker engaged after the worker’s most recent total separation from adversely
affected employment; and
(2) is otherwise entitled to a trade readjustment allowance.
SEC. 233. LIMITATIONS ON TRADE READJUSTMENT ALLOWANCES. [19
U.S.C. § 2293]
(a) Maximum allowance; deduction for unemployment insurance; additional
payments for approved training periods
(1) The maximum amount of trade readjustment allowances payable with respect
to the period covered by any certification to an adversely affected worker shall
be the amount which is the product of 52 multiplied by the trade readjustment
allowance payable to the worker for a week of total unemployment (as
determined under section 232(a)), but such product shall be reduced by the total
sum of the unemployment insurance to which the worker was entitled (or would
have been entitled if he had applied therefor) in the worker’s first benefit period
described in section 231(a)(3)(A).
(2) A trade readjustment allowance under paragraph (1) shall not be paid for any
week occurring after the close of the 104-week period (or, in the case of an
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adversely affected worker who requires a program of prerequisite education or
remedial education (as described in section 236(a)(5)(D)) in order to complete
training approved for the worker under section 236, the 130-week period) that
begins with the first week following the week in which the adversely affected
worker was most recently totally separated from adversely affected
employment--
(A) within the period which is described in section 231(a)(1), and
(B) with respect to which the worker meets the requirements of section
231(a)(2).
(3) Notwithstanding paragraph (1), in order to assist the adversely affected
worker to complete a training program approved for the worker under section
236, and in accordance with regulations prescribed by the Secretary, payments
may be made as trade readjustment allowances for up to 78 additional weeks in
the 91-week period that--
(A) follows the last week of entitlement to trade readjustment allowances
otherwise payable under this chapter; or
(B) begins with the first week of such training, if such training begins after the
last week described in subparagraph (A).
Payments for such additional weeks may be made only for weeks in such 91-
week period during which the individual is participating in such training.
(b) Adjustments of amounts payable
Amounts payable to an adversely affected worker under this chapter shall be
subject to such adjustment on a week-to-week basis as may be required by
section 232(b).
(c) Special adjustments for benefit years ending with extended benefit periods
Notwithstanding any other provision of this chapter or other Federal law, if the
benefit year of a worker ends within an extended benefit period, the number of
weeks of extended benefits that such worker would, but for this subsection, be
entitled to in that extended benefit period shall be reduced (but not below zero)
by the number of weeks for which the worker was entitled, during such benefit
year, to trade readjustment allowances under this chapter. For purposes of this
paragraph, the terms “benefit year” and “extended benefit period” shall have the
same respective meanings given to them in the Federal-State Extended
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Unemployment Compensation Act of 1970.
(d) Week during which worker received on-the-job training
No trade readjustment allowance shall be paid to a worker under this chapter for
any week during which the worker is receiving on-the-job training.
(e) Workers treated as participating in training
For purposes of this chapter, a worker shall be treated as participating in training
during any week which is part of a break in training that does not exceed 30 days
if--
(1) the worker was participating in a training program approved under section
236(a) before the beginning of such break in training, and
(2) the break is provided under such training program.
(f) Notwithstanding any other provision of this section, in order to assist an
adversely affected worker to complete training approved for the worker under
section 236 which includes a program of prerequisite education or remedial
education (as described in section 236(a)(5)(D)), and in accordance with
regulations prescribed by the Secretary, payments may be made as trade
readjustment allowances for up to 26 additional weeks in the 26-week period
that follows the last week of entitlement to trade readjustment allowances
otherwise payable under this chapter.
(g) Special rule for calculating separation
Notwithstanding any other provision of this chapter, any period during which a
judicial or administrative appeal is pending with respect to the denial by the
Secretary of a petition under section 223 shall not be counted for purposes of
calculating the period of separation under subsection (a)(2).
(h) Special rule for justifiable cause
If the Secretary determines that there is justifiable cause, the Secretary may
extend the period during which trade readjustment allowances are payable to an
adversely affected worker under paragraphs (2) and (3) of subsection (a) (but not
the maximum amounts of such allowances that are payable under this section).
(i) Special rule with respect to military service
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(1) In general
Notwithstanding any other provision of this chapter, the Secretary may waive
any requirement of this chapter that the Secretary determines is necessary to
ensure that an adversely affected worker who is a member of a reserve
component of the Armed Forces and serves a period of duty described in
paragraph (2) is eligible to receive a trade readjustment allowance, training,
and other benefits under this chapter in the same manner and to the same
extent as if the worker had not served the period of duty.
(2) Period of duty described
An adversely affected worker serves a period of duty described in this
paragraph if, before completing training under section 236, the worker--
(A) serves on active duty for a period of more than 30 days under a call or
order to active duty of more than 30 days; or
(B) in the case of a member of the Army National Guard of the United States
or Air National Guard of the United States, performs full-time National
Guard duty under section 502(f) of Title 32, United States Code, for 30
consecutive days or more when authorized by the President or the Secretary
of Defense for the purpose of responding to a national emergency declared by
the President and supported by Federal funds.
SEC. 234. APPLICATION OF STATE LAWS. [19 U.S.C. § 2294]
(a) In general
Except where inconsistent with the provisions of this chapter and subject to such
regulations as the Secretary may prescribe, the availability and disqualification
provisions of the State law--
(1) under which an adversely affected worker is entitled to unemployment
insurance (whether or not he has filed a claim for such insurance), or
(2) if he is not so entitled to unemployment insurance, of the State in which he
was totally or partially separated,
shall apply to any such worker who files a claim for trade readjustment
allowances. The State law so determined with respect to a separation of a worker
shall remain applicable, for purposes of the preceding sentence, with respect to
such separation until such worker becomes entitled to unemployment insurance
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under another State law (whether or not he has filed a claim for such insurance).
(b) Special rule with respect to State laws and regulations on good cause for
waiver of time limits or late filing of claims
Any law, regulation, policy, or practice of a cooperating State that allows for a
waiver for good cause of any time limitation relating to the administration of the
State unemployment insurance law shall, in the administration of the program
under this chapter by the State, apply to any time limitation with respect to an
application for a trade readjustment allowance or enrollment in training under
this chapter.
PART II—TRAINING, OTHER EMPLOYMENT SERVICES, AND
ALLOWANCES
SEC. 235. EMPLOYMENT AND CASE MANAGEMENT SERVICES. [19
U.S.C. § 2295]
The Secretary shall make available, directly or through agreements with States
under section 239, to adversely affected workers and adversely affected
incumbent workers covered by a certification under subchapter A of this chapter
the following employment and case management services:
(1) Comprehensive and specialized assessment of skill levels and service needs,
including through--
(A) diagnostic testing and use of other assessment tools; and
(B) in-depth interviewing and evaluation to identify employment barriers and
appropriate employment goals.
(2) Development of an individual employment plan to identify employment
goals and objectives, and appropriate training to achieve those goals and
objectives.
(3) Information on training available in local and regional areas, information on
individual counseling to determine which training is suitable training, and
information on how to apply for such training.
(4) Information on how to apply for financial aid, including referring workers
to educational opportunity centers described in section 402F of the Higher
Education Act of 1965 (20 U.S.C. § 1070a-16), where applicable, and notifying
workers that the workers may request financial aid administrators at
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institutions of higher education (as defined in section 102 of such Act (20 U.S.C.
§ 1002)) to use the administrators’ discretion under section 479A of such Act (20
U.S.C. § 1087tt) to use current year income data, rather than preceding year
income data, for determining the amount of need of the workers for Federal
financial assistance under title IV of such Act (20 U.S.C. §§ 1070 et seq.).
(5) Short-term prevocational services, including development of learning skills,
communications skills, interviewing skills, punctuality, personal maintenance
skills, and professional conduct to prepare individuals for employment or
training.
(6) Individual career counseling, including job search and placement
counseling, during the period in which the individual is receiving a trade
adjustment allowance or training under this chapter, and after receiving such
training for purposes of job placement.
(7) Provision of employment statistics information, including the provision of
accurate information relating to local, regional, and national labor market
areas, including--
(A) job vacancy listings in such labor market areas;
(B) information on jobs skills necessary to obtain jobs identified in job
vacancy listings described in subparagraph (A);
(C) information relating to local occupations that are in demand and earnings
potential of such occupations; and
(D) skills requirements for local occupations described in subparagraph (C).
(8) Information relating to the availability of supportive services, including
services relating to child care, transportation, dependent care, housing
assistance, and need-related payments that are necessary to enable an
individual to participate in training.
SEC. 235A. FUNDING FOR ADMINISTRATIVE EXPENSES AND
EMPLOYMENT AND CASE MANAGEMENT SERVICES. [19 U.S.C. § 2295a]
(a) Funding for administrative expenses and employment and case management
services
(1) In general
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In addition to any funds made available to a State to carry out section 236 for a
fiscal year, the State shall receive for the fiscal year a payment in an amount
that is equal to 15 percent of the amount of such funds.
(2) Use of funds
A State that receives a payment under paragraph (1) shall--
(A) use not more than 2/3 of such payment for the administration of the
trade adjustment assistance for workers program under this chapter,
including for--
(i) processing waivers of training requirements under section 231;
(ii) collecting, validating, and reporting data required under this chapter;
and
(iii) providing reemployment trade adjustment assistance under section 246;
and
(B) use not less than 1/3 of such payment for employment and case
management services under section 235.
(b) Additional funding for employment and case management services
(1) In general
In addition to any funds made available to a State to carry out section 236 and
the payment under subsection (a)(1) for a fiscal year, the Secretary shall
provide to the State for the fiscal year a payment in the amount of $350,000.
(2) Use of funds
A State that receives a payment under paragraph (1) shall use such payment for
the purpose of providing employment and case management services under
section 235.
(3) Voluntary return of funds
A State that receives a payment under paragraph (1) may decline or otherwise
return such payment to the Secretary.
SEC. 236. TRAINING. [19 U.S.C. § 2296]
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(a) Approval of training; limitation on expenditures; reasonable expectation of
employment; payment of costs; approved training programs; nonduplication of
payments from other sources; disapproval of certain programs; exhaustion of
unemployment benefits; promulgation of regulations
(1) If the Secretary determines, with respect to an adversely affected worker or an
adversely affected incumbent worker, that--
(A) there is no suitable employment (which may include technical and
professional employment) available for an adversely affected worker,
(B) the worker would benefit from appropriate training,
(C) there is a reasonable expectation of employment following completion of
such training,
(D) training approved by the Secretary is reasonably available to the worker
from either governmental agencies or private sources (which may include area
career and technical education schools, as defined in section 195(2) of the
Vocational Education Act of 1963, and employers),
(E) the worker is qualified to undertake and complete such training, and
(F) such training is suitable for the worker and available at a reasonable cost,
the Secretary shall approve such training for the worker. Upon such approval,
the worker shall be entitled to have payment of the costs of such training (subject
to the limitations imposed by this section) paid on the worker’s behalf by the
Secretary directly or through a voucher system.
(2)(A) The total amount of payments that may be made under paragraph (1) shall
not exceed
(i) for each of the fiscal years 2009 and 2010, $575,000,000; and
(ii) for the period beginning October 1, 2010, and ending December 31, 2010,
$143,750,000.
(B)(i) The Secretary shall, as soon as practicable after the beginning of each fiscal
year, make an initial distribution of the funds made available to carry out this
section, in accordance with the requirements of subparagraph (C).
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(ii) The Secretary shall ensure that not less than 90 percent of the funds made
available to carry out this section for a fiscal year are distributed to the States
by not later than July 15 of that fiscal year.
(C)(i) In making the initial distribution of funds pursuant to subparagraph (B)(i)
for a fiscal year, the Secretary shall hold in reserve 35 percent of the funds made
available to carry out this section for that fiscal year for additional distributions
during the remainder of the fiscal year.
(ii) Subject to clause (iii), in determining how to apportion the initial
distribution of funds pursuant to subparagraph (B)(i) in a fiscal year, the
Secretary shall take into account, with respect to each State—
(I) the trend in the number of workers covered by certifications of eligibility
under this chapter during the most recent 4 consecutive calendar quarters
for which data are available;
(II) the trend in the number of workers participating in training under this
section during the most recent 4 consecutive calendar quarters for which
data are available;
(III) the number of workers estimated to be participating in training under
this section during the fiscal year;
(IV) the amount of funding estimated to be necessary to provide training
approved under this section to such workers during the fiscal year; and
(V) such other factors as the Secretary considers appropriate relating to the
provision of training under this section.
(iii) In no case may the amount of the initial distribution to a State pursuant to
subparagraph (B)(i) in a fiscal year be less than 25 percent of the initial
distribution to the State in the preceding fiscal year.
(D) The Secretary shall establish procedures for the distribution of the funds that
remain available for the fiscal year after the initial distribution required under
subparagraph (B)(i). Such procedures may include the distribution of funds
pursuant to requests submitted by States in need of such funds.
(E) If, during a fiscal year, the Secretary estimates that the amount of funds
necessary to pay the costs of training approved under this section will exceed the
dollar amount limitation specified in subparagraph (A), the Secretary shall
decide how the amount of funds made available to carry out this section that
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have not been distributed at the time of the estimate will be apportioned among
the States for the remainder of the fiscal year.
(3) For purposes of applying paragraph (1)(C), a reasonable expectation of
employment does not require that employment opportunities for a worker be
available, or offered, immediately upon the completion of training approved
under paragraph (1).
(4)(A) If the costs of training an adversely affected worker or an adversely
affected incumbent worker are paid by the Secretary under paragraph (1), no
other payment for such costs may be made under any other provision of Federal
law.
(B) No payment may be made under paragraph (1) of the costs of training an
adversely affected worker or an adversely affected incumbent worker if such
costs--
(i) have already been paid under any other provision of Federal law, or
(ii) are reimbursable under any other provision of Federal law and a portion of
such costs have already been paid under such other provision of Federal law.
(C) The provisions of this paragraph 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 costs incurred in training a
particular adversely affected worker or an adversely affected incumbent worker,
even if such use has the effect of indirectly paying or reducing any portion of the
costs involved in training the adversely affected worker or an adversely affected
incumbent worker.
(5) Except as provided in paragraph (10), the training programs that may be
approved under paragraph (1) include, but are not limited to--
(A) employer-based training, including--
(i) on-the-job training,
(ii) customized training, and
(iii) apprenticeship programs registered under the Act of August 16, 1937
(commonly known as the “National Apprenticeship Act”; 50 Stat. 664,
chapter 663; 29 U.S.C. §§ 50 et seq.),
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(B) any training program provided by a State pursuant to title I of the
Workforce Investment Act of 1998 [29 U.S.C. §§ 2801 et seq.],
(C) any training program approved by a private industry council established
under section 102 of such Act,
(D) any program of remedial education,
(E) any program of prerequisite education or coursework required to enroll in
training that may be approved under this section,
(F) any training program (other than a training program described in
paragraph (7)) for which all, or any portion, of the costs of training the worker
are paid--
(i) under any Federal or State program other than this chapter, or
(ii) from any source other than this section,
(G) any other training program approved by the Secretary, and
(H) any training program or coursework at an accredited institution of higher
education (described in section 102 of the Higher Education Act of 1965 (20
U.S.C. § 1002)), including a training program or coursework for the purpose of-
-
(i) obtaining a degree or certification; or
(ii) completing a degree or certification that the worker had previously begun
at an accredited institution of higher education.
The Secretary may not limit approval of a training program under paragraph
(1) to a program provided pursuant to title I of the Workforce Investment Act
of 1998 (29 U.S.C. §§ 2801 et seq.).
(6)(A) The Secretary is not required under paragraph (1) to pay the costs of any
training approved under paragraph (1) to the extent that such costs are paid--
(i) under any Federal or State program other than this chapter, or
(ii) from any source other than this section.
(B) Before approving any training to which subparagraph (A) may apply, the
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Secretary may require that the adversely affected worker or adversely affected
incumbent worker enter into an agreement with the Secretary under which the
Secretary will not be required to pay under this section the portion of the costs of
such training that the worker has reason to believe will be paid under the
program, or by the source, described in clause (i) or (ii) of subparagraph (A).
(7) The Secretary shall not approve a training program 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 or adversely affected incumbent 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 this part, or from wages paid under such training
program, for any portion of the costs of such training program paid under the
plan or program.
(8) The Secretary may approve training for any adversely affected worker who is
a member of a group certified under subchapter A of this chapter at any time
after the date on which the group is certified under subchapter A of this chapter,
without regard to whether such worker has exhausted all rights to any
unemployment insurance to which the worker is entitled.
(9)(A) Subject to subparagraph (B), the Secretary shall prescribe regulations
which set forth the criteria under each of the subparagraphs of paragraph (1) that
will be used as the basis for making determinations under paragraph (1).
(B)(i) In determining under paragraph (1)(E) whether a worker is qualified to
undertake and complete training, the Secretary may approve training for a
period longer than the worker’s period of eligibility for trade readjustment
allowances under part I of this subchapter if the worker demonstrates a financial
ability to complete the training after the expiration of the worker’s period of
eligibility for such trade readjustment allowances.
(ii) In determining the reasonable cost of training under paragraph (1) (F) with
respect to a worker, the Secretary may consider whether other public or private
funds are reasonably available to the worker, except that the Secretary may not
require a worker to obtain such funds as a condition of approval of training
under paragraph (1).
(10) In the case of an adversely affected incumbent worker, the Secretary may not
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approve
(A) on-the-job training under paragraph (5)(A)(i); or
(B) customized training under paragraph (5)(A)(ii), unless such training is for a
position other than the worker’s adversely affected employment.
(11) If the Secretary determines that an adversely affected incumbent worker for
whom the Secretary approved training under this section is no longer threatened
with a total or partial separation, the Secretary shall terminate the approval of
such training.
(b) Supplemental assistance
The Secretary may, where appropriate, authorize supplemental assistance
necessary to defray reasonable transportation and subsistence expenses for
separate maintenance when training is provided in facilities which are not within
commuting distance of a worker’s regular place of residence. The Secretary may
not authorize--
(1) payments for subsistence that exceed whichever is the lesser of (A) the
actual per diem expenses for subsistence, or (B) payments at 50 percent of the
prevailing per diem allowance rate authorized under the Federal travel
regulations, or
(2) payments for travel expenses exceeding the prevailing mileage rate
authorized under the Federal travel regulations.
(c) On-the-job training requirements
(1) In general
The Secretary may approve on-the-job training for any adversely affected
worker if--
(A) the worker meets the requirements for training to be approved under
subsection (a)(1);
(B) the Secretary determines that on-the-job training--
(i) can reasonably be expected to lead to suitable employment with the
employer offering the on-the-job training;
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(ii) is compatible with the skills of the worker;
(iii) includes a curriculum through which the worker will gain the
knowledge or skills to become proficient in the job for which the worker is
being trained; and
(iv) can be measured by benchmarks that indicate that the worker is gaining
such knowledge or skills; and
(C) the State determines that the on-the-job training program meets the
requirements of clauses (iii) and (iv) of subparagraph (B).
(2) Monthly payments
The Secretary shall pay the costs of on-the-job training approved under
paragraph (1) in monthly installments.
(3) Contracts for on-the-job training
(A) In general
The Secretary shall ensure, in entering into a contract with an employer to
provide on-the-job training to a worker under this subsection, that the skill
requirements of the job for which the worker is being trained, the academic
and occupational skill level of the worker, and the work experience of the
worker are taken into consideration.
(B) Term of contract
Training under any such contract shall be limited to the period of time
required for the worker receiving on-the-job training to become proficient in
the job for which the worker is being trained, but may not exceed 104 weeks
in any case.
(4) Exclusion of certain employers
The Secretary shall not enter into a contract for on-the-job training with an
employer that exhibits a pattern of failing to provide workers receiving on-the-
job training from the employer with--
(A) continued, long-term employment as regular employees; and
(B) wages, benefits, and working conditions that are equivalent to the wages,
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benefits, and working conditions provided to regular employees who have
worked a similar period of time and are doing the same type of work as
workers receiving on-the-job training from the employer.
(5) Labor standards
The Secretary may pay the costs of on-the-job training, notwithstanding any
other provision of this section, only if--
(A) no currently employed worker is displaced by such adversely affected
worker (including partial displacement such as a reduction in the hours of
nonovertime work, wages, or employment benefits),
(B) such training does not impair existing contracts for services or collective
bargaining agreements,
(C) in the case of training which would be inconsistent with the terms of a
collective bargaining agreement, the written concurrence of the labor
organization concerned has been obtained,
(D) no other individual is on layoff from the same, or any substantially
equivalent, job for which such adversely affected worker is being trained,
(E) the employer has not terminated the employment of any regular employee
or otherwise reduced the workforce of the employer with the intention of
filling the vacancy so created by hiring such adversely affected worker,
(F) the job for which such adversely affected 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,
(G) 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,
(H) the employer is provided reimbursement of not more than 50 percent of the
wage rate of the participant, for the cost of providing the training and
additional supervision related to the training,
(I) the employer has not received payment under subsection (a)(1) of this
section with respect to any other on-the-job training provided by such
employer which failed to meet the requirements of subparagraphs (A), (B), (C),
(D), (E), and (F), and
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(J) the employer has not taken, at any time, any action which violated the terms
of any certification described in subparagraph (H) made by such employer
with respect to any other on-the-job training provided by such employer for
which the Secretary has made a payment under subsection (a)(1) of this section.
(d) Eligibility
An adversely affected worker may not be determined to be ineligible or
disqualified for unemployment insurance or program benefits under this
subchapter--
(1) because the worker--
(A) is enrolled in training approved under subsection (a);
(B) left work--
(i) that was not suitable employment in order to enroll in such training; or
(ii) that the worker engaged in on a temporary basis during a break in such
training or a delay in the commencement of such training; or
(C) left on-the-job training not later than 30 days after commencing such
training because the training did not meet the requirements of subsection
(c)(1)(B); or
(2) because of the application to any such week in training of the provisions of
State law or Federal unemployment insurance law relating to availability for
work, active search for work, or refusal to accept work.
(e) “Suitable employment” defined
For purposes of this section 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 than 80
percent of the worker’s average weekly wage.
(f) “Customized training” defined
For purposes of this section, the term “customized training” means training that
is--
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(1) designed to meet the special requirements of an employer or group of
employers;
(2) conducted with a commitment by the employer or group of employers to
employ an individual upon successful completion of the training; and
(3) for which the employer pays for a significant portion (but in no case less
than 50 percent) of the cost of such training, as determined by the Secretary.
(g) Regulations with respect to apportionment of training funds to States
(1) In general
Not later than 1 year after February 17, 2009, the Secretary shall issue such
regulations as may be necessary to carry out the provisions of subsection (a)(2).
(2) Consultations
The Secretary shall consult with the Committee on Finance of the Senate and
the Committee on Ways and Means of the House of Representatives not less
than 90 days before issuing any regulation pursuant to paragraph (1).
(h) Part-time training
(1) In general
The Secretary may approve full-time or part-time training for a worker under
subsection (a).
(2) Limitation
Notwithstanding paragraph (1), a worker participating in part-time training
approved under subsection (a) may not receive a trade readjustment allowance
under section 231.
SEC. 237. JOB SEARCH ALLOWANCES. [19 U.S.C. § 2297]
(a) Job search allowance authorized
(1) In general
An adversely affected worker covered by a certification issued under
subchapter A of this chapter may file an application with the Secretary for
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payment of a job search allowance.
(2) Approval of applications
The Secretary may grant an allowance pursuant to an application filed under
paragraph (1) when all of the following apply:
(A) Assist adversely affected worker
The allowance is paid to assist an adversely affected worker who has been
totally separated in securing a job within the United States.
(B) Local employment not available
The Secretary determines that the worker cannot reasonably be expected to
secure suitable employment in the commuting area in which the worker
resides.
(C) Application
The worker has filed an application for the allowance with the Secretary
before--
(i) the later of--
(I) the 365th day after the date of the certification under which the worker
is certified as eligible; or
(II) the 365th day after the date of the worker’s last total separation; or
(ii) the date that is the 182d day after the date on which the worker
concluded training.
(b) Amount of allowance
(1) In general
An allowance granted under subsection (a) of this section shall provide
reimbursement to the worker of all necessary job search expenses as prescribed
by the Secretary in regulations.
(2) Maximum allowance
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Reimbursement under this subsection may not exceed $1,500 for any worker.
(3) Allowance for subsistence and transportation
Reimbursement under this subsection may not be made for subsistence and
transportation expenses at levels exceeding those allowable under section
236(b) (1) and (2) of this title.
(c) Exception
Notwithstanding subsection (b) of this section, the Secretary shall reimburse any
adversely affected worker for necessary expenses incurred by the worker in
participating in a job search program approved by the Secretary.
SEC. 238. RELOCATION ALLOWANCES [19 U.S.C. § 2298]
(a) Relocation allowance authorized
(1) In general
Any adversely affected worker covered by a certification issued under
subchapter A of this chapter may file an application for a relocation allowance
with the Secretary, and the Secretary may grant the relocation allowance,
subject to the terms and conditions of this section.
(2) Conditions for granting allowance
A relocation allowance may be granted if all of the following terms and
conditions are met:
(A) Assist an adversely affected worker
The relocation allowance will assist an adversely affected worker in
relocating within the United States.
(B) Local employment not available
The Secretary determines that the worker cannot reasonably be expected to
secure suitable employment in the commuting area in which the worker
resides.
(C) Total separation
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The worker is totally separated from employment at the time relocation
commences.
(D) Suitable employment obtained
The worker--
(i) has obtained suitable employment affording a reasonable expectation of
long-term duration in the area in which the worker wishes to relocate; or
(ii) has obtained a bona fide offer of such employment.
(E) Application
The worker filed an application with the Secretary before--
(i) the later of--
(I) the 425th day after the date of the certification under subchapter A of
this chapter; or
(II) the 425th day after the date of the worker’s last total separation; or
(ii) the date that is the 182d day after the date on which the worker
concluded training.
(b) Amount of allowance
The relocation allowance granted to a worker under subsection (a) of this section
includes--
(1) all reasonable and necessary expenses (including, but not limited to,
subsistence and transportation expenses at levels not exceeding those allowable
under section 236(b) (1) and (2) of this title specified in regulations prescribed
by the Secretary) incurred in transporting the worker, the worker’s family, and
household effects; and
(2) a lump sum equivalent to 3 times the worker’s average weekly wage, up to
a maximum payment of $1,500.
(c) Limitations
A relocation allowance may not be granted to a worker unless--
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(1) the relocation occurs within 182 days after the filing of the application for
relocation assistance; or
(2) the relocation occurs within 182 days after the conclusion of training, if the
worker entered a training program approved by the Secretary under section
236(b) (1) and (2).
Subchapter C—General Provisions
SEC. 239. AGREEMENTS WITH STATES. [19 U.S.C. § 2311].
(a) Authority of Secretary to enter into agreements
The Secretary is authorized on behalf of the United States to enter into an
agreement with any State, or with any State agency (referred to in this
subchapter as “cooperating States” and “cooperating States agencies”
respectively). Under such an agreement, the cooperating State agency (1) as
agent of the United States, shall receive applications for, and shall provide,
payments on the basis provided in this chapter, (2) in accordance with subsection
(f), shall make available to adversely affected workers and adversely affected
incumbent workers covered by a certification under subchapter A of this chapter
the employment and case management services described in section 235, (3) shall
make any certifications required under section 231(c)(2), and (4) shall otherwise
cooperate with the Secretary and with other State and Federal agencies in
providing payments and services under this chapter.
(b) Amendment, suspension, and termination of agreements
Each agreement under this subchapter shall provide the terms and conditions
upon which the agreement may be amended, suspended, or terminated.
(c) Form and manner of data
Each agreement under this subchapter shall--
(1) provide the Secretary with the authority to collect any data the Secretary
determines necessary to meet the requirements of this chapter; and
(2) specify the form and manner in which any such data requested by the
Secretary shall be reported.
(d) Unemployment insurance
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Each agreement under this subchapter shall provide that unemployment
insurance otherwise payable to any adversely affected worker will not be denied
or reduced for any week by reason of any right to payments under this chapter.
(e) Review
A determination by a cooperating State agency with respect to entitlement to
program benefits under an agreement is subject to review in the same manner
and to the same extent as determinations under the applicable State law and only
in that manner and to that extent.
(f) Coordination of benefits and assistance
Any agreement entered into under this section shall provide for the coordination
of the administration of the provisions for employment services, training, and
supplemental assistance under sections 235 and 236 and under title I of the
Workforce Investment Act of 1998 [29 U.S.C. §§ 2801 et seq.] upon such terms
and conditions as are established by the Secretary in consultation with the States
and set forth in such agreement. Any agency of the State jointly administering
such provisions under such agreement shall be considered to be a cooperating
State agency for purposes of this chapter.
(g) Advising and interviewing adversely affected workers
Each cooperating State agency shall, in carrying out subsection (a)(2) of this
section--
(1) advise each worker who applies for unemployment insurance of the
benefits under this chapter and the procedures and deadlines for applying for
such benefits,
(2) facilitate the early filing of petitions under section 221 for any workers that
the agency considers are likely to be eligible for benefits under this chapter,
(3) advise each adversely affected worker to apply for training under section
236(a) before, or at the same time, the worker applies for trade readjustment
allowances under part I of subchapter B,
(4) perform outreach to, intake of, and orientation for adversely affected
workers and adversely affected incumbent workers covered by a certification
under subchapter A of this chapter with respect to assistance and benefits
available under this chapter, and
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(5) make employment and case management services described in section 235
available to adversely affected workers and adversely affected incumbent
workers covered by a certification under subchapter A of this chapter and, if
funds provided to carry out this chapter are insufficient to make such services
available, make arrangements to make such services available through other
Federal programs.
(h) Submission of information for coordination of workforce investment activities
In order to promote the coordination of workforce investment activities in each
State with activities carried out under this chapter, any agreement entered into
under this section shall provide that the State shall submit to the Secretary, in
such form as the Secretary may require, the description and information
described in paragraphs (8) and (14) of section 112(b) of the Workforce
Investment Act of 1998 (29 U.S.C. § 2822(b)) and a description of the State’s rapid
response activities under section 221(a)(2)(A).
(i) Control measures
(1) In general
The Secretary shall require each cooperating State and cooperating State agency
to implement effective control measures and to effectively oversee the
operation and administration of the trade adjustment assistance program under
this chapter, including by means of monitoring the operation of control
measures to improve the accuracy and timeliness of the data being collected
and reported.
(2) Definition
For purposes of paragraph (1), the term “control measures” means measures
that--
(A) are internal to a system used by a State to collect data; and
(B) are designed to ensure the accuracy and verifiability of such data.
(j) Data reporting
(1) In general
Any agreement entered into under this section shall require the cooperating
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State or cooperating State agency to report to the Secretary on a quarterly basis
comprehensive performance accountability data, to consist of--
(A) the core indicators of performance described in paragraph (2)(A);
(B) the additional indicators of performance described in paragraph (2)(B), if
any; and
(C) a description of efforts made to improve outcomes for workers under the
trade adjustment assistance program.
(2) Core indicators described
(A) In general
The core indicators of performance described in this paragraph are--
(i) the percentage of workers receiving benefits under this chapter who are
employed during the second calendar quarter following the calendar
quarter in which the workers cease receiving such benefits;
(ii) the percentage of such workers who are employed in each of the third
and fourth calendar quarters following the calendar quarter in which the
workers cease receiving such benefits; and
(iii) the earnings of such workers in each of the third and fourth calendar
quarters following the calendar quarter in which the workers cease
receiving such benefits.
(B) Additional indicators
The Secretary and a cooperating State or cooperating State agency may agree
upon additional indicators of performance for the trade adjustment assistance
program under this chapter, as appropriate.
(3) Standards with respect to reliability of data
In preparing the quarterly report required by paragraph (1), each cooperating
State or cooperating State agency shall establish procedures that are consistent
with guidelines to be issued by the Secretary to ensure that the data reported
are valid and reliable.
(k) Verification of eligibility for program benefits
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(1) In general
An agreement under this subchapter shall provide that the State shall
periodically redetermine that a worker receiving benefits under this subchapter
who is not a citizen or national of the United States remains in a satisfactory
immigration status. Once satisfactory immigration status has been initially
verified through the immigration status verification system described in section
1137(d) of the Social Security Act (42 U.S.C. § 1320b-7(d)) for purposes of
establishing a worker’s eligibility for unemployment compensation, the State
shall reverify the worker’s immigration status if the documentation provided
during initial verification will expire during the period in which that worker is
potentially eligible to receive benefits under this subchapter. The State shall
conduct such redetermination in a timely manner, utilizing the immigration
status verification system described in section 1137(d) of the Social Security Act
(42 U.S.C. § 1320b-7(d)).
(2) Procedures
The Secretary shall establish procedures to ensure the uniform application by
the States of the requirements of this subsection.
SEC. 240. ADMINISTRATION ABSENT STATE AGREEMENT. [19 U.S.C. §
2312]
(a) Promulgation of regulations; fair hearing
In any State where there is no agreement in force between a State or its agency
under section 239, the Secretary shall arrange under regulations prescribed by
him for performance of all necessary functions under subchapter B of this
chapter, including provision for a fair hearing for any worker whose application
for payments is denied.
(b) Review of final determination
A final determination under subsection (a) of this section with respect to
entitlement to program benefits under subchapter B of this chapter is 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)).
SEC. 241. PAYMENTS TO STATES. [19 U.S.C. § 2313]
(a) Certification to Secretary of the Treasury for payment to cooperating States
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The Secretary shall from time to time certify to the Secretary of the Treasury for
payment to each cooperating State the sums necessary to enable such State as
agent of the United States to make payments provided for by this chapter.
(b) Utilization or return of money
All money paid a State under this section shall be used solely for the purposes
for which it is paid; and money so paid which is not used for such purposes shall
be returned, at the time specified in the agreement under this subchapter, to the
Secretary of the Treasury.
(c) Surety bonds
Any agreement under this subchapter may require any officer or employee of the
State certifying payments or disbursing funds under the agreement or otherwise
participating in the performance of the agreement, to give a surety bond to the
United States in such amount as the Secretary may deem necessary, and may
provide for the payment of the cost of such bond from funds for carrying out the
purposes of this chapter.
SEC. 242. LIABILITIES OF CERTIFYING AND DISBURSING OFFICERS. [19
U.S.C. § 2314]
(a) Certifying officer
No person designated by the Secretary, or designated pursuant to an agreement
under this subchapter, as a certifying officer, shall, in the absence of gross
negligence or intent to defraud the United States, be liable with respect to any
payment certified by him under this chapter.
(b) Disbursing officer
No disbursing officer shall, in the absence of gross negligence or intent to
defraud the United States, be liable with respect to any payment by him under
this chapter if it was based upon a voucher signed by a certifying officer
designated as provided in subsection (a) of this section.
SEC. 243. FRAUD AND RECOVERY OF OVERPAYMENTS. [19 U.S.C. § 2315]
(a) Repayment; deductions
(1) If a cooperating State agency, the Secretary, or a court of competent
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jurisdiction determines that any person has received any payment under this
chapter to which the person was not entitled, including a payment referred to in
subsection (b) of this section, such person shall be liable to repay such amount to
the State agency or the Secretary, as the case may be, except that the State agency
or the Secretary shall waive such repayment if such agency or the Secretary
determines that--
(A) the payment was made without fault on the chapter of such individual, and
(B) requiring such repayment would cause a financial hardship for the
individual (or the individual’s household, if applicable) when taking into
consideration the income and resources reasonably available to the individual
(or household) and other ordinary living expenses of the individual (or
household).
(2) Unless an overpayment is otherwise recovered, or waived under paragraph
(1), the State agency or the Secretary shall recover the overpayment by
deductions from any sums payable to such person under this chapter, under any
Federal unemployment compensation law administered by the State agency or
the Secretary, or under any other Federal law administered by the State agency
or the Secretary which provides for the payment of assistance or an allowance
with respect to unemployment, and, notwithstanding any other provision of
State law or Federal law to the contrary, the Secretary may require the State
agency to recover any overpayment under this chapter by deduction from any
unemployment insurance payable to such person under the State law, except that
no single deduction under this paragraph shall exceed 50 percent of the amount
otherwise payable.
(b) False representation or nondisclosure of material fact
If a cooperating State agency, the Secretary, or a court of competent jurisdiction
determines that an 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 chapter to
which the individual was not entitled, such individual shall, in addition to any
other penalty provided by law, be ineligible for any further payments under this
chapter.
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(c) Notice of determination; fair hearing; finality
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 subsection (a) (1) of this section by the State agency
or the Secretary, as the case may be, has been made, notice of the determination
and an opportunity for a fair hearing thereon has been given to the individual
concerned, and the determination has become final.
(d) Recovered amount returned to Treasury
Any amount recovered under this section shall be returned to the Treasury of the
United States.
SEC. 244. PENALTIES. [19 U.S.C. § 2316]
Any person who--
(1) makes a false statement of a material fact knowing it to be false, or
knowingly fails to disclose a material fact, for the purpose of obtaining or
increasing for that person or for any other person any payment authorized to
be furnished under this chapter or pursuant to an agreement under section 239,
or
(2) makes a false statement of a material fact knowing it to be false, or
knowingly fails to disclose a material fact, when providing information to the
Secretary during an investigation of a petition under section 221, shall be
imprisoned for not more than one year, or fined under Title 18, or both.
SEC. 245. AUTHORIZATION OF APPROPRIATIONS. [19 U.S.C. § 2317]
(a) In general
There are authorized to be appropriated to the Department of Labor, for the
period beginning October 1, 2001, and ending December 31, 2010, such sums as
may be necessary to carry out the purposes of this chapter.
(b) Period of expenditure
Funds obligated for any fiscal year to carry out activities under sections 235
through 238 may be expended by each State receiving such funds during that
fiscal year and the succeeding two fiscal years.
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SEC. 246. REEMPLOYMENT TRADE ADJUSTMENT ASSISTANCE
PROGRAM. [19 U.S.C. § 2318]
(a) In general
(1) Establishment
The Secretary shall establish a reemployment trade adjustment assistance
program for older workers that provides the benefits described in paragraph
(2).
(2) Benefits
(A) Payments
A State shall use the funds provided to the State under section 241 to pay, for
the eligibility period under subparagraph (A) or (B) of paragraph (4) (as the
case may be), to a worker described in paragraph (3)(B), 50 percent of the
difference between--
(i) the wages received by the worker at the time of separation; and
(ii) the wages received by the worker from reemployment.
(B) Health insurance
A worker described in paragraph (3)(B) participating in the program
established under paragraph (1) is eligible to receive, for the eligibility period
under subparagraph (A) or (B) of paragraph (4) (as the case may be), a credit
for health insurance costs under section 35 of The Internal Revenue Code of
1986.
(C) Training and other services
A worker described in paragraph (3)(B) participating in the program
established under paragraph (1) is eligible to receive training approved under
section 236 and employment and case management services under section
235.
(3) Eligibility
(A) In general
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A group of workers certified under subchapter A of this chapter as eligible for
adjustment assistance under subchapter A of this chapter is eligible for
benefits described in paragraph (2) under the program established under
paragraph (1).
(B) Individual eligibility
A worker in a group of workers described in subparagraph (A) may elect to
receive benefits described in paragraph (2) under the program established
under paragraph (1) if the worker--
(i) is at least 50 years of age;
(ii) earns not more than $55,000 each year in wages from reemployment;
(iii)(I) is employed on a full-time basis as defined by the law of the State in
which the worker is employed and is not enrolled in a training program
approved under section 236; or
(II) is employed at least 20 hours per week and is enrolled in a training
program approved under section 236; and
(iv) is not employed at the firm from which the worker was separated.
(4) Eligibility period for payments
(A) Worker who has not received trade readjustment allowance
In the case of a worker described in paragraph (3)(B) who has not received a
trade readjustment allowance under part I of subchapter B of this chapter
pursuant to the certification described in paragraph (3)(A), the worker may
receive benefits described in paragraph (2) for a period not to exceed 2 years
beginning on the earlier of--
(i) the date on which the worker exhausts all rights to unemployment
insurance based on the separation of the worker from the adversely affected
employment that is the basis of the certification; or
(ii) the date on which the worker obtains reemployment described in
paragraph (3)(B).
(B) Worker who has received trade readjustment allowance
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In the case of a worker described in paragraph (3)(B) who has received a trade
readjustment allowance under part I of subchapter B of this chapter pursuant
to the certification described in paragraph (3)(A), the worker may receive
benefits described in paragraph (2) for a period of 104 weeks beginning on
the date on which the worker obtains reemployment described in paragraph
(3)(B), reduced by the total number of weeks for which the worker received
such trade readjustment allowance.
(5) Total amount of payments
(A) In general
The payments described in paragraph (2)(A) made to a worker may not
exceed--
(i) $12,000 per worker during the eligibility period under paragraph (4)(A);
or
(ii) the amount described in subparagraph (B) per worker during the
eligibility period under paragraph (4)(B).
(B) Amount described
The amount described in this subparagraph is the amount equal to the
product of--
(i) $12,000, and
(ii) the ratio of--
(I) the total number of weeks in the eligibility period under paragraph
(4)(B) with respect to the worker, to
(II) 104 weeks.
(6) Calculation of amount of payments for certain workers
(A) In general
In the case of a worker described in paragraph (3)(B)(iii)(II), paragraph (2)(A)
shall be applied by substituting the percentage described in subparagraph (B)
for “50 percent”.
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(B) Percentage described
The percentage described in this subparagraph is the percentage--
(i) equal to 1/2 of the ratio of--
(I) the number of weekly hours of employment of the worker referred to
in paragraph (3)(B)(iii)(II), to
(II) the number of weekly hours of employment of the worker at the time
of separation, but
(ii) in no case more than 50 percent.
(7) Limitation on other benefits
A worker described in paragraph (3)(B) may not receive a trade readjustment
allowance under part I of subchapter B of this chapter pursuant to the
certification described in paragraph (3)(A) during any week for which the
worker receives a payment described in paragraph (2)(A).
(b) Termination
(1) In general
Except as provided in paragraph (2), no payments may be made by a State
under the program established under subsection (a)(1) of this section after
December 31, 2010.
(2) Exception
Notwithstanding paragraph (1), a worker receiving payments under the
program established under subsection (a)(1) of this section on the termination
date described in paragraph (1) shall continue to receive such payments if the
worker meets the criteria described in subsection (a)(3) of this section.
SEC. 247. DEFINITIONS. [19 U.S.C. § 2319]
For purposes of this chapter--
(1) The term “adversely affected employment” means employment in a firm, if
workers of such firm are eligible to apply for adjustment assistance under this
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chapter.
(2) The term “adversely affected worker” means an individual who, because of
lack of work in adversely affected employment, has been totally or partially
separated from such employment.
(3) Subject to section 222(d)(5), the term “firm” means--
(A) a firm, including an agricultural firm, service sector firm, or public
agency; or
(B) an appropriate subdivision thereof.
(4) The term “average weekly wage” means one-thirteenth of the total wages
paid to an individual in the high quarter. For purposes of this computation, the
high quarter shall be that quarter in which the individual’s total wages were
highest among the first 4 of the last 5 completed calendar quarters immediately
before the quarter in which occurs the week with respect to which the
computation is made. Such week shall be the week in which total separation
occurred, or, in cases where partial separation is claimed, an appropriate week,
as defined in regulations prescribed by the Secretary.
(5) The term “average weekly hours” means the average hours worked by the
individual (excluding overtime) in the employment from which he has been or
claims to have been separated in the 52 weeks (excluding weeks during which
the individual was sick or on vacation) preceding the week specified in the last
sentence of paragraph (4).
(6) The term “partial separation” means, with respect to an individual who has
not been totally separated, that he has had--
(A) his hours of work reduced to 80 percent or less of his average weekly
hours in adversely affected employment, and
(B) his wages reduced to 80 percent or less of his average weekly wage in
such adversely affected employment.
(7) The term “public agency” means a department or agency of a State or local
government or of the Federal Government, or a subdivision thereof.
(8) The term “State” includes the District of Columbia and the Commonwealth
of Puerto Rico; and the term “United States” when used in the geographical
sense includes such Commonwealth.
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(9) The term “State agency” means the agency of the State which administers
the State law.
(10) The term “State law” means the unemployment insurance law of the State
approved by the Secretary of Labor under section 3304 of the Internal Revenue
Code of 1954.
(11) The term “total separation” means the layoff or severance of an individual
from employment with a firm in which adversely affected employment exists.
(12) The term “unemployment insurance” means the unemployment
compensation payable to an individual under any State law or Federal
unemployment compensation law, including chapter 85 of Title 5 and the
Railroad Unemployment Insurance Act [45 U.S.C. §§ 351 et seq.]. The terms
“regular compensation”, “additional compensation”, and “extended
compensation” have the same respective meanings that are given them in
section 205(2), (3), and (4) of the Federal-State Extended Unemployment
Compensation Act of 1970 (26 U.S.C. § 3304 note).
(13) The term “week” means a week as defined in the applicable State law.
(14) The term “week of unemployment” means a week of total, part-total, or
partial unemployment as determined under the applicable State law or Federal
unemployment insurance law.
(15) The term “benefit period” means, with respect to an individual--
(A) the benefit year and any ensuing period, as determined under applicable
State law, during which the individual is eligible for regular compensation,
additional compensation, or extended compensation, or
(B) the equivalent to such a benefit year or ensuing period provided for under
the applicable Federal unemployment insurance law.
(16) The term “on-the-job training” means training provided by an employer to
an individual who is employed by the employer.
(17)(A) The term “job search program” means a job search workshop or job
finding club.
(B) The term “job search workshop” means a short (1 to 3 days) seminar
designed to provide participants with knowledge that will enable the
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participants to find jobs. Subjects are not limited to, but should include, labor
market information, resume writing, interviewing techniques, and techniques
for finding job openings.
(C) The term “job finding club” means a job search workshop which includes a
period (1 to 2 weeks) of structured, supervised activity in which participants
attempt to obtain jobs.
(18) The term “service sector firm” means a firm engaged in the business of
supplying services.
(19) The term “adversely affected incumbent worker” means a worker who--
(A) is a member of a group of workers who have been certified as eligible to
apply for adjustment assistance under subchapter A of this chapter;
(B) has not been totally or partially separated from adversely affected
employment; and
(C) the Secretary determines, on an individual basis, is threatened with total
or partial separation.
SEC. 248. REGULATIONS. [19 U.S.C. § 2320]
(a) In general
The Secretary shall prescribe such regulations as may be necessary to carry out
the provisions of this chapter.
(b) Consultations
Not later than 90 days before issuing a regulation under subsection (a), the
Secretary shall consult with the Committee on Finance of the Senate and the
Committee on Ways and Means of the House of Representatives with respect to
the regulation.
SEC. 249. SUBPOENA POWER. [19 U.S.C. § 2321]
(a) Subpoena by Secretary
The Secretary may require by subpoena the attendance of witnesses and the
production of evidence necessary for the Secretary to make a determination
under the provisions of this chapter.
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(b) Court order
If a person refuses to obey a subpoena issued under subsection (a) of this section,
a United States district court within the jurisdiction of which the relevant
proceeding under this chapter is conducted may, upon petition by the Secretary,
issue an order requiring compliance with such subpoena.
SEC. 249A. OFFICE OF TRADE ADJUSTMENT ASSISTANCE. [19 U.S.C. §
2322]
(a) Establishment
There is established in the Department of Labor an office to be known as the
Office of Trade Adjustment Assistance (in this section referred to as the “Office”).
(b) Head of Office
The head of the Office shall be an administrator, who shall report directly to the
Deputy Assistant Secretary for Employment and Training.
(c) Principal functions
The principal functions of the administrator of the Office shall be--
(1) to oversee and implement the administration of trade adjustment assistance
program under this chapter; and
(2) to carry out functions delegated to the Secretary of Labor under this chapter,
including--
(A) making determinations under section 223;
(B) providing information under section 225 about trade adjustment
assistance to workers and assisting such workers to prepare petitions or
applications for program benefits;
(C) providing assistance to employers of groups of workers that have filed
petitions under section 221 in submitting information required by the
Secretary relating to the petitions;
(D) ensuring workers covered by a certification of eligibility under
subchapter A of this chapter receive the employment and case management
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services described in section 235;
(E) ensuring that States fully comply with agreements entered into under
section 239;
(F) advocating for workers applying for benefits available under this chapter;
(G) establishing and overseeing a hotline that workers, employers, and other
entities may call to obtain information regarding eligibility criteria,
procedural requirements, and benefits available under this chapter; and
(H) carrying out such other duties with respect to this chapter as the Secretary
specifies for purposes of this section.
(d) Administration
(1) Designation
The administrator shall designate an employee of the Department of Labor
with appropriate experience and expertise to carry out the duties described in
paragraph (2).
(2) Duties
The employee designated under paragraph (1) shall--
(A) receive complaints and requests for assistance related to the trade
adjustment assistance program under this chapter;
(B) resolve such complaints and requests for assistance, in coordination with
other employees of the Office;
(C) compile basic information concerning such complaints and requests for
assistance; and
(D) carry out such other duties with respect to this chapter as the Secretary
specifies for purposes of this section.
SEC. 249B. COLLECTION AND PUBLICATION OF DATA AND REPORTS;
INFORMATION TO WORKERS. [19 U.S.C. § 2323]
(a) In general
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Not later than 180 days after February 17, 2009, the Secretary shall implement a
system to collect and report the data described in subsection (b), as well as any
other information that the Secretary considers appropriate to effectively carry out
this chapter.
(b) Data to be included
The system required under subsection (a) shall include collection of and
reporting on the following data for each fiscal year:
(1) Data on petitions filed, certified, and denied
(A) The number of petitions filed, certified, and denied under this chapter.
(B) The number of workers covered by petitions filed, certified, and denied.
(C) The number of petitions, classified by
(i) the basis for certification, including increased imports, shifts in
production, and other bases of eligibility; and
(ii) congressional district of the United States.
(D) The average time for processing such petitions.
(2) Data on benefits received
(A) The number of workers receiving benefits under this chapter.
(B) The number of workers receiving each type of benefit, including training,
trade readjustment allowances, employment and case management services,
and relocation and job search allowances, and, to the extent feasible, credits
for health insurance costs under section 35 of the Internal Revenue Code of
1986.
(C) The average time during which such workers receive each such type of
benefit.
(3) Data on training
(A) The number of workers enrolled in training approved under section 236,
classified by major types of training, including classroom training, training
through distance learning, on-the-job training, and customized training.
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(B) The number of workers enrolled in full-time training and part-time
training.
(C) The average duration of training.
(D) The number of training waivers granted under section 231(c), classified
by type of waiver.
(E) The number of workers who complete training and the duration of such
training.
(F) The number of workers who do not complete training.
(4) Data on outcomes
(A) A summary of the quarterly reports required under section 239(j).
(B) The sectors in which workers are employed after receiving benefits under
this chapter.
(5) Data on rapid response activities
Whether rapid response activities were provided with respect to each petition
filed under section 221.
(c) Classification of data
To the extent possible, in collecting and reporting the data described in
subsection (b), the Secretary shall classify the data by industry, State, and
national totals.
(d) Report
Not later than December 15 of each year, the Secretary shall submit to the
Committee on Finance of the Senate and the Committee on Ways and Means of
the House of Representatives a report that includes--
(1) a summary of the information collected under this section for the preceding
fiscal year;
(2) information on the distribution of funds to each State pursuant to section
236(a)(2); and
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(3) any recommendations of the Secretary with respect to changes in eligibility
requirements, benefits, or training funding under this chapter based on the
data collected under this section.
(e) Availability of data
(1) In general
The Secretary shall make available to the public, by publishing on the website
of the Department of Labor and by other means, as appropriate--
(A) the report required under subsection (d);
(B) the data collected under this section, in a searchable format; and
(C) a list of cooperating States and cooperating State agencies that failed to
submit the data required by this section to the Secretary in a timely manner.
(2) Updates
The Secretary shall update the data under paragraph (1) on a quarterly basis.
Chapter 5—Miscellaneous Provisions
SEC. 282. TRADE MONITORING AND DATA COLLECTION. [19 U.S.C. §
2393]
(a) Monitoring programs
The Secretary of Commerce and the Secretary of Labor shall establish and
maintain a program to monitor imports of articles and services into the United
States which will reflect changes in the volume of such imports, the relation of
such imports to changes in domestic production and domestic supply of services,
changes in employment within domestic industries producing articles or
supplying services like or directly competitive with such imports, and the extent
to which such changes in production, or supply of services, and employment are
concentrated in specific geographic regions of the United States. A summary of
the information gathered under this section shall be published regularly and
provided to the Adjustment Assistance Coordinating Committee, the
International Trade Commission, and to the Congress.
(b) Collection of data and reports on service sector
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(1) Secretary of Labor
Not later than 90 days after February 17, 2009, the Secretary of Labor shall
implement a system to collect data on adversely affected workers employed in
the service sector that includes the number of workers by State and industry,
and by the cause of the dislocation of each worker, as identified in the
certification.
(2) Secretary of Commerce
Not later than 1 year after February 17, 2009, the Secretary of Commerce shall, in
consultation with the Secretary of Labor, conduct a study and submit to the
Committee on Finance of the Senate and the Committee on Ways and Means of
the House of Representatives a report on ways to improve the timeliness and
coverage of data on trade in services, including methods to identify increased
imports due to the relocation of United States firms to foreign countries, and
increased imports due to United States firms acquiring services from firms in
foreign countries.
SEC. 284. JUDICIAL REVIEW. [19 U.S.C. § 2395]
(a) Petition for review; time and place of filing
A worker, group of workers, certified or recognized union, or authorized
representative of such worker or group aggrieved by a final determination of the
Secretary of Labor under section 223 of this title, a firm or its representative or
authorized representative of a community aggrieved by a final determination of
the Secretary of Commerce under section 251 of this title, an agricultural
commodity producer (as defined in section 291(2) of this title) aggrieved by a
determination of the Secretary of Agriculture under section 293 or 296 of this
title, or a community or authorized representative of a community aggrieved by
a final determination of the Secretary of Commerce under section 271 of this title
may, within sixty days after notice of such determination, commence a civil
action in the United States Court of International Trade for review of such
determination. The clerk of such court shall send a copy of the summons and the
complaint in such action to the Secretary of Labor, the Secretary of Commerce, or
the Secretary of Agriculture, as the case may be. Upon receiving a copy of such
summons and complaint, such Secretary shall promptly certify and file in such
court the record on which he based such determination.
(b) Findings of fact by Secretary; conclusiveness; new or modified findings
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The findings of fact by the Secretary of Labor, the Secretary of Commerce, or the
Secretary of Agriculture, as the case may be, if supported by substantial
evidence, shall be conclusive; but the court, for good cause shown, may remand
the case to such Secretary to take further evidence, and such Secretary may
thereupon make new or modified findings of fact and may modify his previous
action, and shall certify to the court the record of the further proceedings. Such
new or modified findings of fact shall likewise be conclusive if supported by
substantial evidence.
(c) Determination; review by Supreme Court
The Court of International Trade shall have jurisdiction to affirm the action of the
Secretary of Labor, the Secretary of Commerce, or the Secretary of Agriculture, as
the case may be, or to set such action aside, in whole or in part. The judgment of
the Court of International Trade shall be subject to review by the United States
Court of Appeals for the Federal Circuit as prescribed by the rules of such court.
The judgment of the Court of Appeals for the Federal Circuit shall be subject to
review by the Supreme Court of the United States upon certiorari as provided in
section 1256 of Title 28.
SEC. 288. SENSE OF CONGRESS. [19 U.S.C. § 2397a]
It is the sense of Congress that the Secretaries of Labor, Commerce, and
Agriculture should apply the provisions of chapter 2 of this title (relating to
adjustment assistance for workers), chapter 3 of this title (relating to adjustment
assistance for firms), chapter 4 of this title (relating to adjustment assistance for
communities), and chapter 6 of this title (relating to adjustment assistance for
farmers), respectively, with the utmost regard for the interests of workers, firms,
communities, and farmers petitioning for benefits under such chapters of this
title.
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