[Federal Register Volume 74, Number 189 (Thursday, October 1, 2009)]
[Notices]
[Pages 50874-50900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23660]



[[Page 50873]]

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Part II





Department of Labor





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Employment and Training Administration



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Operating Instructions for Implementing the Amendments to the Trade Act 
of 1974 Enacted by the Trade and Globalization Adjustment Assistance 
Act of 2009; Notice

Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / 
Notices

[[Page 50874]]


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DEPARTMENT OF LABOR

Employment and Training Administration


Operating Instructions for Implementing the Amendments to the 
Trade Act of 1974 Enacted by the Trade and Globalization Adjustment 
Assistance Act of 2009

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice, Training and Employment Guidance Letter (TEGL).

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SUMMARY: The Employment and Training Administration of the U.S. 
Department of Labor is publishing, for public information, notice of 
the issuance and availability of Training and Employment Guidance 
Letter (TEGL) number 22-08 entitled, Operating Instructions for 
Implementing the Amendments to the Trade Act of 1974 Enacted by the 
Trade and Globalization Adjustment Assistance Act of 2009, signed on 
May 15, 2009 by Douglas F. Small Deputy Assistant Secretary for 
Employment and Training.

FOR FURTHER INFORMATION CONTACT: Terry Clark, 202-693-3707.

SUPPLEMENTARY INFORMATION: The complete text of this guidance document 
is provided in this notice. In addition, it is available on the ETA 
Advisory Web site at http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=2756.
    Subject: Operating Instructions for Implementing the Amendments to 
the Trade Act of 1974 Enacted by the Trade and Globalization Adjustment 
Assistance Act of 2009 (TEGL 22-08).
    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.
    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 (Pub. L.) 111-5 (enacted on 
February 17, 2009); Trade Adjustment Assistance Reform Act of 2002 
(Pub. L. 107-210); the Trade Act of 1974, as amended (Pub. L. 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.
    Definitions: For purposes of these operating instructions, the 
following definitions will apply:
    1. 2002 Act means the Trade Act of 1974, Public Law 93-618, as 
amended through the Trade Adjustment Assistance Reform Act of 2002, 
Public Law 107-210.
    2. 2002 Amendments means the amendments made to the Trade Act of 
1974 by the Trade Adjustment Assistance Reform Act of 2002, Public Law 
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, Public Law 111-
5.
    5. Trade Act of 1974, means the Trade Act of 1974, Public Law 93-
618, as amended (through Pub. L. 106-113).
    6. Recovery Act means the American Recovery and Reinvestment Act of 
2009, Public Law 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, Public Law 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.
    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 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

[[Page 50875]]

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 Web site.
    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 (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

    <bullet> Workers in firms that supply services;
    <bullet> Workers whose firm has shifted production to any foreign 
country;
    <bullet> Workers in public agencies;
    <bullet> Workers whose firm produces component parts based on 
increased imports of finished products;
    <bullet> Workers in firms that supply testing, packaging, 
maintenance and transportation services to companies with TAA-certified 
workers; and
    <bullet> Workers whose firm is identified in an International Trade 
Commission ``injury'' determination listed in the Act.

Program Administration and Service Delivery

    <bullet> Provides workers with a new entitlement to employment and 
case management services, and designates funds for that purpose;
    <bullet> 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;
    <bullet> Provides protections for workers covered under 
certifications delayed by judicial and administrative appeals;
    <bullet> Applies State UI ``good cause'' waiver provisions to all 
TAA time limitations; and
    <bullet> Provides minimum requirements for CSA reviews of waivers 
of the training requirement.

Training

    <bullet> 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;
    <bullet> Allows TAA-funded training prior to separation from 
employment;
    <bullet> Allows for part-time training, but without TRA; and
    <bullet> 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 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

    <bullet> Increases the maximum amount of additional TRA from 52 to 
78 weeks for workers in long-term training;
    <bullet> 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;
    <bullet> 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;
    <bullet> 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);
    <bullet> Creates a new standard for the waiver of recovery of TAA 
overpayments; and
    <bullet> Eliminates the 210-day requirement for making an 
application for training as a condition for the receipt of additional 
TRA.

Wage Supplement (RTAA)

    <bullet> Eliminates the requirement for a group certification 
specifically for RTAA;
    <bullet> Eliminates the requirement under ATAA that a worker must 
find reemployment within 26 weeks of layoff;
    <bullet> 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;
    <bullet> Increases the limit on wages in eligible reemployment to 
$55,000 a year;
    <bullet> Increases the individual's benefit cap to $12,000; and
    <bullet> Allows a worker to qualify for RTAA when working part-
time.

Health Coverage Tax Credit

    <bullet> Expands the HCTC program, which is available to ``eligible 
TAA recipients.''
    <bullet> 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.
    <bullet> Modifies the definition of an ``eligible TAA recipient'' 
to not apply the training enrollment requirements to an individual who 
is receiving unemployment insurance compensation.
    <bullet> Increases the HCTC tax credit from 65 percent to 80 
percent of the amount a worker paid for coverage under qualifying 
health insurance; and
    <bullet> 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

    <bullet> 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
    <bullet> 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.
    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

[[Page 50876]]

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 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.
    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.
    Inquiries: CSAs should direct all inquiries to the appropriate ETA 
Regional office.
    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, can be accessed at 
http://wdr.doleta.gov/directives/attach/tegl/TEGL22-08aB.pdf.

Attachment A

Table of Contents

Introduction

Definitions

A. Reauthorization and Termination
B. Group Eligibility Requirements
C. Trade Readjustment Allowances
D. Training
E. Job Search Allowances
F. Relocatioin Allowances
G. Employment and Case Management Services
H. Reemployment Trade Adjustment Assistance
I. State Operations
J. Health Coverage Tax Credit

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 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:
    <bullet> 2002 Act means the Trade Act of 1974, Public Law 93-618, 
as amended through the Trade Adjustment Assistance Reform Act of 2002, 
Public Law 107-210.
    <bullet> 2002 Amendments means the amendments made to the Trade Act 
of 1974 by the Trade Adjustment Assistance Reform Act of 2002, Public 
Law 107-210.
    <bullet> 2009 Act means the Trade Act as it stands in 2009, 
including the Trade and Globalization Adjustment Assistance Act of 2009 
(TGAAA) amendments.
    <bullet> 2009 Amendments means the TGAAA, Division B, Title I, 
Subtitle I of the American Recovery and Reinvestment Act of 2009, 
Public Law 111-5.
    <bullet> Trade Act of 1974, means the Trade Act of 1974, Public Law 
93-618, as amended (through Pub. L. 106-113).
    <bullet> Recovery Act means the American Recovery and Reinvestment 
Act of 2009, Public Law 111-5.
    <bullet> 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.
    <bullet> CSA means Cooperating State Agency.
    <bullet> Department or DOL means the U.S. Department of Labor.
    <bullet> DOC means U.S. Department of Commerce.
    <bullet> Secretary means the Secretary of Labor.
    <bullet> TAA program means the Trade Adjustment Assistance for 
Workers program.
    <bullet> TRA means Trade Readjustment Allowances.
    <bullet> RTAA means Reemployment Trade Adjustment Assistance, under 
Section 246 of the 2009 Act.
    <bullet> HCTC means Health Coverage Tax Credit. (Section 35, 
Internal Revenue Code (I.R.C.) of 1986) (26 U.S.C. 35).
    <bullet> WIA means the Workforce Investment Act of 1998, Public Law 
105-220, as amended. (29 U.S.C. 2801 et seq.).
    <bullet> Trade Affected Worker means workers who are members of a 
certified worker group and have been separated or threatened with 
separation.

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

[[Page 50877]]

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 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.

    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 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

[[Page 50878]]

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 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:
    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:
    (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

[[Page 50879]]

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.
    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 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.
    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 CFR 
90.33.
    The 2009 Act provides two exceptions to this confidentiality 
requirement, the

[[Page 50880]]

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 INDENTIFIED 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)(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 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 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 therefore) 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 therefore); 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

[[Page 50881]]

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-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 
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 is needed in some cases. Accordingly, the Secretary has 
determined that the worker must be

[[Page 50882]]

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 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.
    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 
therefore); 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.

[[Page 50883]]

    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 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.
    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

[[Page 50884]]

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 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 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 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 latter 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.

[[Page 50885]]

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.
    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--
    (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 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

[[Page 50886]]

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 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--
    (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 2002 Act 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 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.

[[Page 50887]]

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 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 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 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

[[Page 50888]]

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 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 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

[[Page 50889]]

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 
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 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 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 
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-

[[Page 50890]]

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:

    (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 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 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

[[Page 50891]]

    (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.--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 days 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 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) LIMITATIONS.--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 days 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 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,

[[Page 50892]]

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 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.
    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 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

[[Page 50893]]

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) 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)--
* * * * *
    (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.
    RTAA builds on the basic structure of ATAA, with some important 
differences:
    <bullet> 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.
    <bullet> 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.
    <bullet> Workers opting to participate in the wage supplement 
program no longer surrender their eligibility for TAA-approved 
training.
    <bullet> RTAA may be paid to participants working part-time, if 
they are enrolled in approved training.
    <bullet> 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.
    <bullet> 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.

[[Page 50894]]

    <bullet> The maximum benefit that the worker may receive over the 
course of the eligibility period is increased from $10,000 to $12,000.
    <bullet> The limit on wages in eligible reemployment is increased 
from $50,000 to $55,000.
    <bullet> 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 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 
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.
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

[[Page 50895]]

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 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
    (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 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:
    <bullet> The worker's annualized wages from reemployment are 
projected to exceed $55,000 in a year.

[[Page 50896]]

    <bullet> 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.)
    <bullet> The worker has received the maximum amount of RTAA.
    <bullet> 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 ``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.
    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
------------------------------------------------------------------------
 
------------------------------------------------------------------------
o.........................................  Annualized Old Wages (also
                                             Annualized Separation
                                             Wages).
n.........................................  Annualized New Wages (also
                                             Annualized Reemployment
                                             Wages).
h.........................................  Variable percentage based on
                                             reduced Hours Per Week h =
                                             (current hours per week/old
                                             hours per week).
------------------------------------------------------------------------

    Annualized Old Wages (o): Annualized wages are computed by 
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.
[GRAPHIC] [TIFF OMITTED] TN01OC09.000

    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.

[[Page 50897]]

[GRAPHIC] [TIFF OMITTED] TN01OC09.001

    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.
[GRAPHIC] [TIFF OMITTED] TN01OC09.002

Option 1--Full-Time Employment
[GRAPHIC] [TIFF OMITTED] TN01OC09.003

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.
[GRAPHIC] [TIFF OMITTED] TN01OC09.004

[GRAPHIC] [TIFF OMITTED] TN01OC09.005

    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:

    (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.

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

[[Page 50898]]

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 section 1137(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 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.
    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 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

[[Page 50899]]

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.
    (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 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 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

[[Page 50900]]

unemployment compensation (UC) entitlement, and is potentially eligible 
for HCTC for that month. Under the 2009 Act, an eligible TAA recipient 
also includes:
    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,
    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.
    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 Web site at: http://www.irs.gov.

    Signed: at Washington, DC, this 25th day of September 2009.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. E9-23660 Filed 9-30-09; 8:45 am]
BILLING CODE 4510-FN-P