[Federal Register Volume 69, Number 197 (Wednesday, October 13, 2004)]
[Notices]
[Pages 60903-60904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22919]


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DEPARTMENT OF LABOR

Employment and Training Administration


Trade Adjustment Assistance Program: Training and Employment 
Guidance Letter Interpreting Federal Law

    The Employment and Training Administration interprets federal law 
requirements pertaining to Trade Adjustment Assistance (TAA). These 
interpretations are issued in Training and Employment Guidance Letters 
(TEGLs) to the State Workforce Agencies. The TEGL described below is 
published in the Federal Register in order to inform the public.

TEGL 11-02, Change 1

    TEGL 11-02, Change 1 advises states of the federal law requirements 
applicable to implementing reforms of the Trade Adjustment Assistance 
(TAA) program enacted by the TAA Reform Act of 2002.
    The operating instructions in TEGL 11-02, Change 1 are issued to 
the states and the cooperating state workforce agencies (SWAs) as 
guidance provided by the Department of Labor (DOL) in its role as the 
principal in the TAA program. As agents of the Secretary of Labor, the 
states and cooperating SWAs may not vary from the operating 
instructions in TEGL 11-02, Change 1 without prior approval from DOL.
    Pending the issuance of regulations implementing the provisions of 
the TAA Reform Act of 2002, the operating instructions in TEGL 11-02 
and TEGL 11-02, Change 1 constitute the controlling guidance for the 
states and the cooperating SWAs in implementing and administering the 
Trade Act of 1974, as amended, pursuant to the agreements between the 
states and the Secretary of Labor under Section 239 of the Trade Act of 
1974, as amended.
    Changes to the TAA program operating instructions in TEGL 11-02, 
Change 1 focus on further explanation of requirements relating to 
eligibility deadlines and to the issuance of training waivers, and 
supplement the guidance issued in TEGL 11-02.

    Dated: October 6, 2004.
Emily Stover DeRocco,
Assistant Secretary for Training and Employment.

Training and Employment Guidance Letter No. 11-02, Change 1

    To: All State Workforce Agencies, All State Workforce Liaisons, 
All One-Stop Center System Leads.
    From: Emily Stover DeRocco, Assistant Secretary.
    Subject: Change 1 to the Operating Instructions for Implementing 
the Amendments to the Trade Act of 1974 Enacted by the Trade Act of 
2002.
    1. Purpose. To provide guidance to State Workforce Agencies 
(SWAs) on training deadlines, issuing waivers to the Trade 
Adjustment Assistance (TAA) program training requirements, and 
additional information on implementing the TAA Reform Act of 2002.
    2. References. The Trade Act of 1974, as amended (Pub. L. 93-
618, as amended) (``the Trade Act''); the Trade Act of 2002 (Pub. L. 
107-210) (``the 2002 amendments''); 20 CFR Part 617; Training and 
Employment Guidance Letter (TEGL) No. 11-02 (October 10, 2002); TEGL 
No. 20-02 (March 3, 2003); General Administration Letter (GAL) No. 
7-94 (December 28, 1993); Unemployment Insurance Program Letter 
(UIPL) No. 24-03 and No. 33-03. The 2002 amendments to the TAA 
program are also known as the Trade Adjustment Assistance Reform Act 
of 2002.
    3. Clarification of Training Deadlines for Eligibility for Trade 
Readjustment Allowances (TRA). The training deadlines requiring 
clarification include the following:
    <bullet> ``8/16 week deadline'' for enrolling in training.
    <bullet> 45-day extension of the 8/16 week deadline for 
extenuating circumstances.
    <bullet> 210-day time limit for applying for training.
    Section 114 of the 2002 amendments, which amended section 
231(a)(5)(A) of the Trade Act, imposed a deadline by which a worker 
must be enrolled in approved training, or have a waiver of this 
requirement, in order to be eligible for TRA.
    This deadline is either the last day of the 8th week after the 
week of issuance of the certification of eligibility covering the 
worker or the last day of the 16th week after the worker's most 
recent total qualifying separation, whichever is later (commonly 
referred to as the 8/16 week deadline). The ``8/16 week deadline'' 
applies to eligibility for all TRA, both basic and additional TRA. 
If a worker fails to meet the applicable 8/16 week deadline, then 
the worker is not eligible for any TRA (basic TRA or additional TRA, 
including TRA for remedial training) under the relevant 
certification. In many cases, the 8/16 week deadline for a worker 
will be reached while the worker is still receiving unemployment 
insurance (UI). Some workers are not aware that this deadline may 
apply before they exhaust their UI. The SWA is responsible for 
informing workers of these requirements. The SWA must also assist 
such workers in enrolling in an approved training program prior to 
the 8/16 week deadline, or issue the workers waivers prior to the 8/
16 week deadline, if appropriate.
    Under certain extenuating circumstances, the 8/16 week deadline 
for enrollment may be extended for up to 45 days. TEGL No. 11-02 
explained the definition of ``extenuating circumstances.'' That 
definition applies and includes situations that could arise, such as 
when a worker has been enrolled in a training program that is 
abruptly cancelled, where a worker suffers injury or illness that 
adversely affects the worker's ability to enroll in a training 
program, or other events where the states can justify and document 
that the application of extenuating circumstances is warranted.
    The 2002 amendments did not change the 210-day time limit 
applicable to additional TRA. Additional TRA, beyond basic TRA, may 
be paid to workers participating in approved training who meet all 
TRA eligibility requirements, including the 210-day deadline. This 
means, in order to be eligible for additional TRA, a worker must 
have filed a bona fide application for training with the SWA within 
210 days of either the issuance of the certification covering the 
worker or the worker's most recent separation, whichever is later. 
This 210-day deadline applies to additional TRA, but not to remedial 
TRA that may be received by workers enrolled in remedial training.
    SWAs should be mindful that the 210-day deadline may pass if a 
worker has a long-term waiver of the training requirement. This 
could happen if a worker (who lacks marketable skills) receives a 
waiver due to lack of training funds. For example, if a worker 
receives a waiver 16 weeks after the worker's most recent qualifying 
separation and that waiver remains in effect for the maximum 26 
weeks, then a total of 42 weeks (294 days) might pass without the 
worker being required to be enrolled in approved training. If the 
worker does not file a bona fide application for training with the 
SWA during this 210-day period, then the worker is ineligible for 
additional TRA. Therefore, SWA's are responsible for ensuring that 
workers are informed of this deadline.
    Issuance of a waiver before the 8/16 week deadline might occur 
while the worker is still receiving UI. In these instances, workers 
must meet the Extended Benefit work test requirement (except as 
provided in 20 CFR 617.11 (a)(2)(vi)(B)) as a condition of TRA.
    4. HCTC and Waivers. All workers covered by TAA or NAFTA-TAA 
certified petitions who are receiving TRA, or would be receiving TRA 
except they have not exhausted their UI, may be eligible for the 
Health Coverage Tax Credit (HCTC) under the 2002 amendments. States 
are responsible for identifying and transmitting the names of

[[Page 60904]]

those individuals to the Internal Revenue Service's HCTC Program 
Office in accordance with instructions contained in UIPL No. 24-03. 
The HCTC Program Office is ultimately responsible for determining 
whether HCTC-eligible TAA recipients meet all other qualifying 
criteria for receipt of the HCTC.
    If a worker is still on UI and seeking the HCTC, actions must be 
taken to ensure that all criteria for TRA eligibility are met as 
described in TEGL No. 11-02, including that the worker is enrolled 
in an approved training program, has completed an approved training 
program, or has received a written waiver of the training 
requirement.
    A preliminary assessment of each trade affected worker's skills 
must be carried out to identify workers for whom immediate 
enrollment in training is appropriate. Except where such an 
assessment of a worker clearly indicates a need to enroll in 
training immediately, the Department of Labor believes it would 
generally be appropriate to approve a waiver request under the 
marketable skills condition if such a determination is made shortly 
after separation and the worker qualifies for such a waiver. This 
waiver would allow some period of job search and avoid removing some 
workers prematurely from the labor force and investing training 
resources that may not be necessary to helping a worker obtain 
reemployment. All waivers must be reevaluated every 30 days for the 
duration of the waiver period. If the waiver is issued on the basis 
of marketable skills, the reevaluation will take into account the 
reasons the individual has been unable to obtain employment during 
the job search. If the difficulty finding work is attributed to 
skill deficiencies, it may be appropriate to revoke the waiver and 
immediately enroll the worker in training.
    It should be emphasized that waivers are not permitted under the 
NAFTA-TAA program. Therefore, workers covered by a NAFTA-TAA 
certification may only qualify for HCTC if the worker is receiving 
TRA or if the worker is enrolled in an approved training program, or 
has completed an approved training program, while still receiving UI 
and while satisfying the other TRA eligibility criteria found at 20 
CFR 617.11.
    5. Extension of Waivers Beyond Six Months. The discussion in 
sections 3 and 4 above cover cases that may require a determination 
on whether to issue a waiver of the training requirement before a 
worker's UI entitlement has expired. The TAA Reform Act of 2002 
specifically limits the maximum duration of a waiver to six months, 
unless the Secretary determines otherwise (section 231(c)(2)(A) of 
the Trade Act). In the absence of such a determination by the 
Secretary, a waiver issued during a worker's UI period often will 
not cover the worker's entire entitlement to basic TRA. For example, 
a six-month waiver could expire before all UI is exhausted and basic 
TRA begins for a worker who receives a waiver in order to establish 
HCTC eligibility. This can occur when a worker is granted a six-
month waiver eight weeks after separation from employment. Such a 
waiver could expire one month before maximum entitlement to UI 
compensation (for example, 26 weeks of UI and 13 weeks of Temporary 
Extended Unemployment Compensation (TEUC) and basic TRA (13 weeks) 
are exhausted).
    The Department interprets the wording of section 231(c)(2)(A) to 
cover cases in which it may be necessary to issue a waiver to a 
worker before the worker actually begins to receive basic TRA. 
Therefore, the Department has determined that a state may extend a 
worker's waiver beyond six months in any case where it is necessary 
to cover the worker's full entitlement to basic TRA.
    6. Action Required. States shall inform all appropriate staff of 
the contents of these instructions.
    7. Inquiries. States should direct all inquiries to the 
appropriate ETA Regional Office.

[FR Doc. 04-22919 Filed 10-12-04; 8:45 am]
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