[Federal Register Volume 71, Number 201 (Wednesday, October 18, 2006)]
[Proposed Rules]
[Pages 61618-61626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8752]



[[Page 61617]]

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Part V





Department of Labor





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Employment and Training Administration



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20 CFR Part 618



Alternative Trade Adjustment Assistance Benefits; Amendment of 
Regulations; Proposed Rule

Federal Register / Vol. 71, No. 201 / Wednesday, October 18, 2006 / 
Proposed Rules

[[Page 61618]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 618

RIN 1205-AB40


Alternative Trade Adjustment Assistance Benefits; Amendment of 
Regulations

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice of Proposed Rule Making (NPRM); Request for comments.

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SUMMARY: On August 6, 2002, President Bush signed into law the Trade 
Adjustment Assistance Reform Act of 2002 (the Reform Act), which 
amended the Trade Act of 1974, as amended (Act or Trade Act). The 
Reform Act reauthorized the Trade Adjustment Assistance (TAA) program 
through fiscal year 2007 and made significant amendments to the TAA 
program, including the addition of Alternative Trade Adjustment 
Assistance for Older Workers (Alternative TAA or ATAA). These 
amendments generally took effect on November 4, 2002, and required that 
the Department establish the ATAA program ``[n]ot later than one year 
after the date of the enactment of the [Reform Act]''.
    The Department is implementing the TAA amendments, including the 
introduction of ATAA, through three separate rulemakings. This proposed 
rule implements the ATAA program, a demonstration project for older 
workers. On August 25, 2006, the Department published a proposed rule 
governing the payment of TAA and the provision of related employment 
services. The Department will publish a third proposed rule governing 
TAA and ATAA certifications of worker groups adversely affected by 
trade.

DATES: The Department invites written comments on this proposed rule. 
Comments must be submitted on or before December 18, 2006.

ADDRESSES: You may submit written comments on this proposed rule, 
identified by Regulatory Identification Number (RIN) 1205-AB40, by any 
of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#95d4f9e1f0e7fbf4e1fce3f0c1d4d4bbf6faf8f8f0fbe1e6d5f1faf9bbf2fae3"><span class="__cf_email__" data-cfemail="66270a1203140807120f10033227274805090b0b030812152602090a48010910">[email protected]</span></a>. Include RIN 
1205-AB40 in the subject line of the message. Your comment must be in 
the body of the e-mail message; do not send attached files.
    <bullet> Fax: (202) 693-3584 (this is not a toll-free number). Only 
comments of 10 or fewer pages (including a Fax cover sheet and 
attachments, if any) will be accepted by Fax.
    <bullet> Mail: Submit comments to Erica Cantor, Administrator, 
Office of National Response, ETA, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N-5422, Washington, DC 20210. Please 
note that due to security concerns, mail delivery in Washington, DC, 
may be delayed. Therefore, the Department encourages the public to 
submit comments via e-mail or Internet as indicated above.
    <bullet> Hand Delivery/Courier: 200 Constitution Avenue, NW., Room 
N-5422, Washington, DC 20210.
    Instructions: All comment submissions should include the RIN (1205-
AB40) for this rulemaking and must be received on or before the last 
day of the comment period. The Department will not open, read, or 
consider any comments received after that date. Also, the Department 
will not acknowledge receipt of any comments received. Commenters who 
submit comments to the Department by Fax or through the Internet as 
well as by mail should indicate that the mailed comments are duplicate 
copies.
    Docket: All comments will be available for public inspection and 
copying during normal business hours at 200 Constitution Avenue, NW., 
Division of Trade Adjustment Assistance, Room N-5422, Washington, DC 
20210. Copies of the proposed rule are available in alternative formats 
of large print and electronic file on computer disk, which may be 
obtained at the above-stated address. The proposed rule is available on 
the Internet at the Web address http://www.doleta.gov.

FOR FURTHER INFORMATION CONTACT: Erica Cantor, Administrator, Office of 
National Response, ETA, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room N-5422, Washington, DC 20210. Telephone: (202) 693-
3560 (voice) (this is not a toll-free number); 1-800-326-2577 (TDD).

SUPPLEMENTARY INFORMATION: This preamble is divided into three 
sections. Section I provides general background information on the 
Reform Act and the Department's approach for developing implementing 
regulations for the Reform Act. Section II is a section-by-section 
analysis of this NPRM which proposes rules to implement ATAA for older 
workers. Section III covers the administrative requirements for this 
proposed rulemaking mandated by statute and executive order.

I. Background

    The Reform Act expanded the scope of the TAA program and increased 
certain benefit amounts available under that program, repealed the 
North American Free Trade Agreement Transitional Adjustment Assistance 
(NAFTA-TAA) program, provided the Health Coverage Tax Credit (HCTC) 
administered by the Internal Revenue Service (IRS) to provide a tax 
credit for qualified health insurance costs for eligible workers, and 
enacted the Alternative TAA demonstration program for older workers. 
These amendments augmented the benefits and services to workers 
certified as adversely affected by foreign trade under the TAA program.
    One of the purposes of the TAA program, 19 U.S.C. 2271 et seq., as 
described in section 2 of the Act, 19 U.S.C. 2102, is ``to assist * * * 
workers * * * to adjust to changes in international trade flows.'' The 
TAA program assists workers adversely affected by international trade 
by providing eligible workers with certain benefits and services, 
including income support in the form of trade readjustment allowances 
(TRA), training, job search allowances, relocation allowances, wage 
subsidies under ATAA, and the Health Coverage Tax Credit (HCTC). In 
order for a worker to apply to a cooperating State agency (CSA) for 
these benefits and services, the worker must be part of a group of 
workers covered under a TAA certification.
    To implement the substantial changes to the TAA program, including 
the introduction of ATAA, the Department proposes creating a new 20 CFR 
Part 618. Proposed Part 618 would consist of nine subparts: subpart A--
General; subpart B--Petitions and Determinations of Eligibility to 
Apply for Trade Adjustment Assistance; subpart C--Delivery of Services 
through the One-Stop Delivery System; subpart D--Job Search Allowances; 
subpart E--Relocation Allowances; subpart F--Training Services; subpart 
G--Trade Readjustment Allowances (TRA); subpart H--Administration by 
Applicable State Agencies; and subpart I--Alternative Trade Adjustment 
Assistance for Older Workers.
    The rulemaking for Part 618 is divided into three parts: This NPRM 
proposes rules for Subpart I, ATAA for Older Workers. The Reform Act 
introduced this demonstration program to provide alternate benefits to 
older workers who obtain group certifications of their eligibility to 
apply for both TAA and ATAA. These older workers, when

[[Page 61619]]

they are part of a group certified as eligible to apply for ATAA, have 
the option of applying for a wage supplement as an alternative to TAA 
when they take work for less compensation than they received in their 
adversely affected employment.
    A separate NPRM, published at 71 FR 50760-50832 (August 25, 2006) 
(RIN 1205-AB32), covers six subparts governing the payment of TAA and 
the provision of related employment services (subpart C through subpart 
H) and related definitions in subpart A. The Department will publish a 
third NPRM for subpart B, which will govern TAA and ATAA certifications 
of worker groups adversely affected by trade. (A worker must be covered 
under a TAA or ATAA certification to apply for TAA or ATAA, 
respectively.) It will also provide definitions relating to TAA and 
ATAA certifications that were reserved in subpart A.
    The reader should note that since the Department initially expected 
to publish subparts B and I as one NPRM, both subparts B and I were 
initially covered under the same RIN, 1205-AB40. In order to expedite 
the publication of subpart I, the Department has decided to publish the 
NPRM for subpart B separately. Therefore, subpart I will remain under 
RIN 1205-AB40, and the Department will request a new RIN for subpart B 
and remaining definitions in subpart A.

II. Summary and Discussion of Regulatory Provisions: Subpart I--
Alternative Trade Adjustment Assistance for Older Workers

    This proposed subpart governs ATAA, a demonstration project 
established by the Reform Act under new section 246 of the Act. ATAA is 
a new approach to providing employment assistance to workers 50 years 
of age or older through wage subsidies. The goal of ATAA is to 
encourage reemployment of older workers who may find it difficult to 
find a new job at the same wage level when they change careers after 
long-term employment in a single job or industry. Training to improve 
opportunities for a future career, such as training individuals may 
receive through TAA, may not be the best option for these workers.
    The program allows a worker covered by an ATAA certification a 
choice. An eligible worker may receive either an ATAA wage supplement 
to supplement income from a new job at lower pay than the worker's 
adversely affected employment, or TAA benefits including training and 
income support (although some workers may, under this proposed subpart, 
receive TRA, the income support component of TAA, before being 
determined eligible for ATAA). A worker under either program may 
receive employment and other related services focused on obtaining new 
employment offering compensation at or near the wages earned in 
adversely affected employment, and a worker under either program may 
receive the Health Coverage Tax Credit (HCTC) if otherwise eligible.
    Some provisions in proposed subpart I reference provisions in 
subpart H of Part 618, Administration by Applicable State Agencies. All 
subpart H provisions apply to the ATAA program except where subpart H 
or subpart I specifically provides to the contrary. The absence in 
subpart I of a reference to an applicable subpart H provision may not 
be construed to mean subpart H does not apply.
    Proposed Sec.  618.900 describes the scope and purpose of ATAA. It 
explains that the Division of Trade Adjustment Assistance (DTAA) will 
determine ATAA and TAA certification at the same time. ATAA group 
certification will be covered in subpart B of this Part. Paragraph (a) 
of Sec.  618.900 also explains that a worker for whom a nonrefundable 
expense is incurred for training approved under Sec.  618.605(c) loses 
the option to receive ATAA, whether or not TAA funds pay the expense. 
The basis for this requirement appears in the preamble explanation of 
proposed Sec.  618.915. Finally, this provision explains that proposed 
Sec.  618.915 provides that workers individually found eligible for TAA 
and ATAA may not receive any TAA (except for the HCTC) after receiving 
an ATAA wage supplement, to highlight the choice of benefits that 
receipt of ATAA imposes on an individual worker.
    Proposed paragraph (b) states the purpose of the ATAA program: ``to 
provide workers 50 years of age or older with the option to receive a 
temporary wage supplement upon prompt reemployment at lower pay than 
their previous adversely affected employment.''
    Proposed Sec.  618.905 discusses the six criteria that section 246 
of the Act requires the Cooperating State Agencies (CSAs) to apply in 
determining whether an individual worker is eligible for ATAA.
    Proposed paragraph (a)(1) of Sec.  618.905 (criterion 1) implements 
both section 246(a)(3)(B)(i) of the Act, requiring that, to be eligible 
for the ATAA wage supplement, the worker ``is covered by a 
certification under subpart A of this Part [providing for group 
certifications for TAA],'' as well as the section 246(a)(3)(B) 
requirement that the worker is covered by an ATAA certification. 
Accordingly, proposed paragraph (a)(1) requires that the worker be 
certified as eligible to apply for ATAA under an ATAA certification 
(which is issued concurrently with a TAA certification). Further, the 
Department interprets the statutory phrase ``covered by a 
certification'' to mean that the worker is an ``adversely affected 
worker,'' as defined in Sec.  618.110(b)(3). To be an adversely 
affected worker, the worker must be separated from adversely affected 
employment during the period of coverage of the certification. Thus, an 
adversely affected worker is one who is ``covered by a certification,'' 
as required by the statutory language. Moreover, the definition of 
adversely affected worker requires that the worker be separated 
``because of lack of work in adversely affected employment * * *.'' 
This requirement assures that a worker fired for cause or laid off for 
other reasons than lack of work is not eligible for ATAA benefits. 
Accordingly, proposed paragraph (a)(1) requires that the worker be an 
adversely affected worker in a group of workers certified as eligible 
to apply for TAA and ATAA.
    Proposed paragraph (a)(2) of Sec.  618.905 (criterion 2) implements 
section 246(a)(3)(B)(ii) of the Act, which requires that the worker 
obtain reemployment not more than 26 weeks after the date of separation 
from adversely affected employment. Proposed paragraph (a)(2) 
implements this provision by requiring the worker to obtain 
reemployment by the last day of the 26th week after the date of the 
worker's most recent ``total separation,'' as defined in Sec.  
618.110(b)(76), that occurred within the certification period of the 
ATAA certification. The use of the term ``most recent total 
separation'' recognizes that workers may undergo more than one 
separation from employment and, like the regular TAA program, permits 
workers to obtain benefits when the employment relationship appears to 
be finally severed.
    By making the wage supplement available only if reemployment 
occurred within 26 weeks of the worker's total separation, the statute 
encourages workers to begin looking for employment as soon as possible. 
However, as provided in proposed Sec. Sec.  618.905(d)(4) and 
618.910(a)(3), a CSA may approve a wage supplement and pay it 
retroactively to a worker who is covered by an ATAA certification but 
is reemployed before the certification is issued, if the worker 
otherwise meets eligibility requirements. The Department believes that 
denying the supplement to a worker who becomes

[[Page 61620]]

reemployed before the certification is issued is inconsistent with the 
intent of the statute to encourage rapid reemployment. In addition, 
denying retroactive approval of ATAA could encourage a worker to delay 
reemployment if a petition is pending, since the worker would have an 
incentive to wait until a determination is made. Further, the statute 
does not preclude retroactive approval of ATAA since it requires 
reemployment within 26 weeks of separation and does not provide an 
alternate deadline for reemployment if the separation occurs prior to 
the certification.
    Proposed paragraph (a)(3) of Sec.  618.905 (criterion 3) implements 
section 246(a)(3)(B)(iii) of the Act, which requires that the worker is 
at least 50 years of age. Proposed paragraph (a)(3) implements this 
provision by requiring that the worker must be at least 50 years of age 
at the time of reemployment. The Department proposes using the age of 
the worker at the time of the worker's reemployment because that is the 
time when all 6 criteria must be met. The worker's age may be verified 
with a driver's license or other appropriate documentation.
    Proposed paragraph (a)(4) of Sec.  618.905 (criterion 4) implements 
section 246(a)(3)(B)(iv) of the Act, which conditions the wage 
supplement on the worker not earning more than $50,000 a year in wages 
from reemployment. Accordingly, proposed paragraph (a)(4) requires that 
the worker may not earn more than $50,000 in annualized wages from 
reemployment as calculated under proposed Sec.  618.910(a)(2)(ii). 
Computations of annualized wages from reemployment include wages from 
all jobs in which the worker is employed. When a worker applies for 
ATAA, a paycheck or supporting statement from the employer, or from 
each employer if there is more than one, must indicate that the 
annualized wages from reemployment with that employer will not exceed 
$50,000. Because the $50,000 figure is a prospective calculation, a 
formula to annualize reemployment wages, set forth in proposed Sec.  
618.910(a)(2)(ii), must be used to calculate whether the worker's wages 
project to exceed this amount or the annualized wages at separation as 
computed under proposed Sec.  618.910(a)(2)(i). Finally, the proposed 
paragraph provides that annualized wages from reemployment must be less 
than the worker's annualized wages at separation from adversely 
affected employment, computed under Sec.  618.910(a)(2)(i).
    Proposed paragraph (a)(5) of Sec.  618.905 (criterion 5) implements 
section 246(a)(3)(B)(v) of the Act, which requires that the worker is 
employed on a full-time basis as defined by State law in the State in 
which the worker is employed by repeating the statutory language. It 
also adds the requirement that the worker must continue to be employed 
on a full-time basis, although not necessarily at the same job or for 
the same employer. This is a requirement for continuing eligibility 
which the Department believes should be clearly stated.
    Proposed paragraph (a)(5)(i) explains that either a single full-
time job or any combination of part-time work that meets or exceeds 
full-time employment under that State law may be used. ``State law'' is 
defined in Sec.  618.110(b)(70) as the State Unemployment Insurance 
(UI) law. Following longstanding practice, State UI law means not only 
State statutory provisions, but also: State court decisions, 
regulations, program letters, manuals, and any other documents 
interpreting State UI law. Thus, even if full-time employment were not 
defined in the State code, a definition contained in another State-
issued document would apply. If the worker is employed in more than one 
State, then the law of the State in which the worker has the higher 
weekly earnings applies. If the worker's weekly earnings in that State 
are reduced, the law of that State continues to apply. The 
determination of which State law applies is made at the same time as 
the initial determination of eligibility and the amount of the 
supplement or, if the worker requalifies for ATAA on the basis of 
subsequent employment in two States, at the initial determination for 
that employment. Once the CSA makes the determination of the applicable 
State law, that determination continues to apply even if the worker's 
weekly earnings change. If the worker's wages in that State are 
reduced, it is easier to simply continue to apply the law of that 
State.
    State UI law does not need to cover the employment, but the 
employment must not present any unusual risk to the health, safety, or 
morals of the worker and the employment must not be in an unlawful 
activity under any applicable Federal, State, or local law. The 
Department includes this provision because it believes that ATAA should 
not serve as an incentive for a worker either to accept employment that 
otherwise would jeopardize the worker's own welfare or involve illegal 
activities.
    Proposed paragraph (a)(5)(ii) provides an exception to the 
requirement that State law requirements define full-time employment. It 
provides that a worker is considered employed full-time for any week in 
which the worker worked less than full-time as defined in State law, 
only because the worker was on employer-authorized leave. The 
Department believes that a worker should not be disqualified from 
receiving ATAA for periods of employer-authorized leave, whether paid 
or unpaid, simply because the worker actually worked fewer than the 
minimum number of hours required under the applicable State law 
definition of full-time employment.
    Proposed paragraph (a)(5)(iii) provides that the employment may not 
be TAA- or WIA-sponsored on-the-job training (OJT). Under both TAA and 
WIA, OJT is a form of training in which a Federal program pays a 
subsidy to an employer to offset the employer's cost of providing 
training. Since ATAA is provided as an alternative to other TAA 
benefits, the choice to enroll in training means that a worker becomes 
ineligible for ATAA. ATAA allowances may be paid if a WIA-funded OJT, 
that has not been approved as TAA training, ends and leads to permanent 
unsubsidized employment within the 26-week window for applying for 
ATAA.
    Proposed paragraph (a)(6) of Sec.  618.905 (criterion 6) implements 
section 246(a)(3)(B)(vi) of the Act, which requires that the worker 
``does not return to the employment from which the worker was 
separated.'' The Department interprets this as meaning more than merely 
a return to the same job, with the same facility, of the same firm, 
producing the same article. Rather, the provision's evident intent is 
to prevent the subsidization of wages when the worker effectively is 
returning to the adversely affected employment, a broader standard.
    Proposed paragraph (a)(6)(i) contains the first part of this 
interpretation, that the worker returns to the same facility owned by 
the same firm from which the adversely affected worker was separated, 
regardless of whether the worker returns to the same job or produces 
the same article as in adversely affected employment. Proposed 
paragraph (a)(6)(ii) contains the second part of the interpretation, 
that the worker returns to the same facility but under ownership by a 
different firm from that which the worker was separated, if the worker 
is producing the same article as identified in the TAA determination 
but without regard to whether the worker is in the same job. Proposed 
paragraph (a)(6)(iii) contains the third part of the interpretation, 
that the worker is reemployed at a different facility of the same firm 
from which the worker was

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separated, and in the same job producing the same article identified in 
the TAA determination.
    Proposed paragraph (b) of Sec.  618.905 contains the basic filing 
requirement for a worker to file an application for ATAA. For an ATAA 
application to be timely, it must be filed with the CSA within two 
years from the first day of the worker's reemployment, unless the 
Department extends this two-year deadline for workers covered by an 
ATAA certification whose issuance was unduly delayed as determined by 
the Department. Although the Act is silent, the Department proposes a 
deadline in order to avoid an open-ended commitment. ATAA is payable 
for no more than two years and it is reasonable that a claimant file 
the claim within this period.
    The Department also proposes to permit CSAs to require in-person 
filing because it might, in some cases, help prevent fraud by better 
enabling the CSA to verify an applicant's identity, or assist in 
ensuring an accurate calculation of benefits for eligible workers. The 
ATAA payment, unlike State UI, is not based upon wage records in a 
database, but pay stubs. The CSA may need the claimant present to 
obtain the needed information quickly and to speed up the process for 
deciding on eligibility for and the amount of the ATAA payment. The 
Department therefore believes that CSA's should have the flexibility of 
requiring in-person claim filing.
    Proposed paragraph (c) addresses situations where, because of the 
delays associated with litigation over the denials of certifications of 
petitions, certifications are issued so late that the two-year deadline 
for receiving ATAA benefits has expired for workers covered. Proposed 
paragraph (c) remedies this by providing that, as long as the 
petitioner or the adversely affected worker did not contribute to the 
delay in issuing the certification, for example, failing to meet filing 
deadlines or repeatedly requesting extensions of filing deadlines, the 
filing deadline will be extended for a reasonable period, decided on a 
case-by-case basis, necessary to permit eligible workers to file for 
ATAA. The Department believes that, in these cases, the adversely 
affected workers should not be unfairly penalized by not receiving 
ATAA. The Department proposes paragraph (c) to restore such workers to 
the position they would have occupied had the certification covering 
them been issued without the delay. The 26-week deadline for obtaining 
reemployment, in Sec.  618.925(a)(2), is not extended. The 26-week 
deadline is statutory. Under the statute, the deadline runs from the 
layoff date, not the certification date. Since every certification 
reaches back one year, in every certification there are potentially 
workers for whom the 26-week deadline passed long before the petition 
was certified, or even filed. Everyone must meet this deadline, 
regardless of whether the worker was laid off before a timely 
certification, or the worker was laid off before the certification 
because it was delayed by the appeals process.
    Proposed paragraph (d) of Sec.  618.905 provides that specified 
provisions in subpart H concerning determinations, redeterminations, 
notice, and appeals and hearings apply to ATAA. The Department proposes 
to apply the same procedural requirements to ATAA as apply to TAA 
because doing so promotes efficient ATAA administration. Proposed 
paragraphs (d)(1), (d)(2), and (d)(3) provide further procedural 
requirements specific to ATAA.
    Proposed paragraph (d)(1) provides that in reviewing the 
application, the CSA must verify and document the worker's age, 
reemployment, and wages in determining whether the individual meets the 
individual eligibility criteria in proposed Sec.  618.905(a).
    Proposed paragraph (d)(2) provides that a determination of 
eligibility issued to a worker must include a notice that the benefit 
amount will be regularly recalculated and may change if the eligible 
worker's annualized wages in reemployment vary. Workers' ATAA payments 
frequently change; therefore, this requirement would prevent confusion 
as workers see their benefit amounts change.
    Proposed paragraph (d)(3) allows a worker to file a new application 
and obtain ATAA if the worker meets the criteria of proposed Sec.  
618.905(a) at the time of filing of the new application, even if the 
CSA has denied a prior application.
    Proposed paragraph (d)(4) provides that a CSA may approve a wage 
supplement and pay it retroactively to a worker who is covered by an 
ATAA certification but is reemployed before the certification is 
issued, and otherwise meets eligibility requirements. This was 
explained above in the discussion of proposed Sec.  618.905(a)(2).
    Proposed paragraph (e) of Sec.  618.905 provides that the 
recordkeeping and disclosure of information requirements of proposed 
Sec.  618.865 apply to CSA's ATAA program administration. The language 
of proposed Sec.  618.865 already states that it applies to the 
administration of ``the Act,'' which includes ATAA; however, proposed 
Sec.  618.905(e) ensures there is no confusion concerning the 
applicability of proposed Sec.  618.865 to ATAA.
    Proposed Sec.  618.910 addresses the wage supplement payments 
available, and the HCTC potentially available, to those receiving ATAA. 
Proposed paragraphs (a)(1) and (a)(2) of this section govern the 
computation of the total ATAA wage supplement for an eligible worker.
    Proposed paragraph (a)(1) of Sec.  618.910 provides that the total 
supplement amount, payable for up to a two-year period, is the lesser 
of $10,000 or an amount equal to 50 percent of the difference between 
the wages earned from the adversely affected employer and the new 
employment obtained after separation from adversely affected 
employment. As discussed above regarding proposed Sec.  618.905(a)(4), 
a worker is ineligible to receive any wage supplement if the worker's 
annualized wages at separation do not exceed the worker's annualized 
wages from reemployment.
    Proposed paragraphs (a)(2)(i) and (ii) of Sec.  618.910 provide the 
computations for, respectively, annualized wages at separation, and 
annualized wages from reemployment. Proposed paragraph (a)(2)(i) 
computes the annualized wages at separation based upon the amount of 
wages received by the worker during the last full week of adversely 
affected employment. Proposed Sec.  618.110(b)(81) defines ``wages'' as 
``all compensation for employment for an employer, including 
commissions, bonuses, and the cash value of all compensation in a 
medium other than cash.'' Thus, the computation of annualized wages at 
separation for ATAA recognizes that some eligible workers are paid by 
means other than an hourly wage. However, the computation of wages for 
ATAA purposes varies from the definition of ``wages'' by excluding 
overtime wages because such wages are too speculative. It also varies 
from the definition of ``wages'' by excluding employer-paid health 
insurance premiums and employer pension contributions, so as not to 
disqualify workers for ATAA because their employer provides health 
insurance or pensions. Lastly, it varies from the definition of 
``wages'' by excluding bonuses, severance payments, buyouts and similar 
payments, which are not reflective of the worker's weekly pay and which 
therefore should not be annualized. The computation of annualized wages 
at separation would use wages earned only in the last full week of the 
worker's regular schedule in adversely affected employment, rather 
than, for example, the worker's wages during the preceding 12-month 
period.

[[Page 61622]]

This is because the Act describes the formula as using the wages 
received by the worker ``at the time of separation.''
    Proposed paragraph (a)(2)(ii) of Sec.  618.910 provides that the 
initial computation of annualized wages from reemployment relies on the 
amount of wages received by the worker during the first full week of 
reemployment. This computation also requires combining wages from all 
jobs, which is consistent with the requirement in proposed Sec.  
618.905(a)(5) that ``full-time employment'' may include any combination 
of part-time jobs. However, the computation of wages from reemployment, 
like the computation of wages at separation, excludes overtime, 
employer-paid health insurance premiums, employer pension 
contributions, as well as bonuses, severance payments, buyouts and 
similar payments not reflective of weekly pay. Tips are not included in 
the proposed definition of wages, and the Department specifically 
invites comments on whether they should be, and if so, how they should 
be calculated. The computation of annualized wages from reemployment 
uses wages earned in the first full week of reemployment because that 
amount is the only actual figure available at the outset of a worker's 
reemployment.
    The Department notes that the proposed computation of the wage 
supplement does not address one possible problem, that is, where a 
worker's wages decrease because an employer lowers the worker's wage 
rate immediately prior to separation or because piece rate or 
commission earnings are reduced. The Department invites comment on this 
possible problem as well as whether there is a better way to calculate 
wages at separation.
    Proposed paragraph (a)(3) of Sec.  618.910 governs the timing of 
wage supplement payments and explains that the CSA has the option to 
distribute the wage supplement payments to the worker on either a 
weekly, biweekly, or monthly basis for no more than a two-year period 
to a worker under any single ATAA certification. Proposed paragraph 
(a)(3) also provides that a worker may receive a lump-sum retroactive 
wage supplement payment for a previous period for which the worker was 
eligible for such payments, but did not have the opportunity to apply. 
This most commonly would occur where a worker was separated and found a 
new job before the ATAA certification was issued. Retroactive payment 
was explained above in the discussion of Sec.  618.905(a)(2).
    Proposed paragraph (a)(4) of Sec.  618.910 provides that each wage 
supplement payment will be equal to the Annualized Wage Differential 
divided by the number of payments made during the year, e.g., divided 
by 12 in a State that pays on a monthly basis and divided by 52 in a 
State that pays on a weekly basis. As noted in proposed Sec.  
618.905(d)(2), this calculation, and thus the payments, may change when 
the Annualized Wage Differential is recalculated as a result of changes 
in wages.
    Proposed paragraph (a)(5) of Sec.  618.910 provides that the CSA 
will, no less than monthly, review whether a worker remains eligible 
for, and the amount of, the wage supplement payments. This requirement 
would reduce the risk of fraud and error and would reduce the number of 
overpayments that would have to be established in the case of workers 
who receive payments to which they are not entitled. This requirement 
also is necessary for determinations of eligibility and recalculations 
of wage supplement payment amounts if the worker's annualized wages 
from reemployment change, as provided in proposed paragraph (a)(6) of 
Sec.  618.910. If the review determines that the worker's annualized 
wages from reemployment have changed, then proposed paragraph (a)(6) 
requires a CSA to determine eligibility or recalculate wage supplement 
payment amounts based on the new annualized wages from the change.
    Proposed paragraph (a)(7) of Sec.  618.910 provides that if a CSA 
has verified continued eligibility monthly, as required by proposed 
paragraph (a)(5), then payments made after a worker's annualized wages 
from reemployment have changed but before the regular monthly review, 
are considered valid payments to which the individual was entitled and 
are not overpayments subject to Sec.  618.840. The Department believes 
that in these circumstances, basic fairness and justice requires that 
it allow a worker to keep wage supplement payments received as the 
result of determinations that were correct and accurate at the time 
they were made based on all the information available at that time.
    Proposed paragraph (a)(8) of Sec.  618.910 explains how a change in 
employment affects ATAA eligibility. Proposed paragraph (a)(8)(i) 
provides that an eligible worker who changes jobs is not disqualified 
from continuing to receive wage supplement payments so long as the new 
employment meets the applicable requirements in proposed Sec.  
618.905(a), that is, proposed paragraphs (a)(4), (a)(5) and (a)(6).
    The Department proposes this policy because it does not want to 
preclude workers from receiving ATAA benefits if they secure different 
employment after their initial reemployment. Also, the employment is 
not required to be consecutive. However, ATAA benefits are not payable 
during periods of unemployment. If a worker receiving ATAA becomes 
unemployed, the worker must complete a new individual application for 
ATAA upon reemployment. The worker then will be eligible to receive the 
wage supplement, up to the $10,000 maximum, for the remainder of the 
two-year eligibility period (the two-calendar year period beginning 
with the first day of initial reemployment) if the worker meets 
criteria 4, 5, and 6 of Sec.  618.905.
    If the worker's initial reemployment meets all the criteria for 
individual eligibility found in Sec.  618.905, then the worker 
continues to be eligible for ATAA even though the worker obtains 
different employment, as long as it is within the worker's two-year 
eligibility period for benefits and the new job meets criteria 4, 5 and 
6. Criteria 1, 2 and 3 do not need to be reevaluated. Criterion 1, the 
worker is covered by a certification and criterion 3, the worker is at 
least 50 years of age, will not change. The Department also interprets 
criterion 2, that the worker obtained the job not more than 26 weeks 
after the date of separation from adversely affected employment, as 
only applying to the first reemployment job. Thus, it is not necessary 
that the worker obtain subsequent reemployment by the statutory 
deadline described in Sec.  618.905(a)(2), because that deadline was 
met by the initial reemployment.
    Proposed paragraph (a)(8)(ii) specifies that a worker already 
receiving wage supplement payments will become ineligible for the 
duration of any period of unemployment. However, the worker may regain 
eligibility upon again becoming reemployed if the new employment meets 
the same three requirements in Sec.  618.905(a).
    Proposed paragraph (a)(8)(iii) provides that a worker whose 
recalculated annualized wages from reemployment exceed $50,000, may not 
receive any further wage supplement payments or any TAA benefit. 
However, if another change reduces the worker's annualized wages from 
reemployment below $50,000 and the job still meets criteria 4, 5 and 6, 
the worker may reapply and receive ATAA for the remaining portion of 
the two-year eligibility period. The Department believes a worker 
should not be permanently barred from further wage supplement payments 
due to a

[[Page 61623]]

temporary spike in earnings that subsides before the worker's two-year 
eligibility period expires.
    Proposed paragraph (b) of Sec.  618.910 provides that ATAA 
recipients are ``eligible ATAA recipients'' for purposes of the HCTC. 
Although neither the Department nor CSAs make HCTC eligibility 
determinations, proposed Sec.  618.770(b) describes the duties of a CSA 
in administering the HCTC. The Internal Revenue Service makes the final 
determination of HCTC eligibility.
    Proposed Sec.  618.915 explains the Department's interpretation of 
section 246(a)(5) of the Act, limiting the TAA benefits available to 
workers receiving ATAA. That provision prohibits a worker who is 
receiving ATAA benefits from receiving benefits under the TAA program 
other than the HCTC, but it does not indicate whether a worker may 
receive ATAA after having received TAA benefits. Proposed Sec.  618.915 
interprets section 246(a)(5) of the Act as permitting a worker to 
receive TRA, a job search allowance, and a relocation allowance under a 
TAA certification before receiving a wage supplement payment under the 
accompanying ATAA certification. Once such a worker receives a wage 
supplement payment, however, that worker may not receive any further 
TAA benefits under that TAA certification, except the HCTC, if 
eligible.
    Proposed Sec.  618.915 prohibits a worker for whom a nonrefundable 
expense is incurred--whether or not TAA funds pay the expense--for 
training approved under Sec.  618.605(c) from receiving a wage 
supplement payment under the ATAA certification. The Department 
proposes this prohibition because ATAA is a demonstration program 
designed to test whether a wage supplement will return older workers to 
work faster than training under the TAA program. Therefore, it is 
reasonable to require a worker to choose between a longer-term 
commitment to training and the receipt of ATAA to supplement the wages 
earned in employment obtained quickly with existing skills. Mere 
approval of training under Sec.  618.605(c) does not disqualify a 
worker from receiving ATAA; rather, the disqualification for receipt of 
training applies only once an actual and nonrefundable expense for TAA 
approved training is incurred from TAA or other funds.
    Proposed Sec.  618.920 explains the effect of the termination of 
the ATAA program. This program was enacted as a demonstration project 
to better serve older workers seeking reemployment. Section 246(b) of 
the Act provides that a worker may not receive ATAA after the 
termination date unless the worker is ``receiving payments * * * on the 
termination date.'' Proposed Sec.  618.920 interprets this provision to 
mean that an eligible worker whose initial application for ATAA is 
approved on or before the termination date may receive ATAA payments 
for as long as the worker remains eligible for the duration of the 
worker's ATAA eligibility period. The Department believes this 
interpretation, as opposed to one that would permit continuing wage 
supplement payments only to workers who had received an actual payment 
by the termination date, is reasonable and is more sensible because it 
avoids the inequity of a worker having an initial application approved 
before the termination date, but then not receiving a payment because 
of an administrative delay.

III. Administrative Requirements of the Proposed Rulemaking

Executive Order 12866

    This proposed rule for ATAA program benefits is not an economically 
significant rule because it will not materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs; have an 
annual effect on the economy of $100 million or more; or adversely 
affect the economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities in a material way. However, the 
proposed rule is a significant regulatory action under Executive Order 
12866 at section 3(f), Regulatory Planning and Review, because it 
raises novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order. This proposed rule implements a new program under the Reform Act 
for individuals who are at least 50 years old. Therefore, the 
Department has submitted this proposed rule to the Office of Management 
and Budget for review.

Paperwork Reduction Act

    The ATAA program described in this proposed rule contains a 
requirement for States to submit to the Department the quarterly ATAA 
Activities Report (ATAAAR). These requirements were previously reviewed 
and approved for use by the Office of Management and Budget (OMB) and 
assigned OMB control number 1205-0459 under the provisions of the 
Paperwork Reduction Act of 1995 (Pub. L. 104-13) (PRA).

Executive Order 13132: Federalism

    The Department has reviewed this proposed rule revising the 
operation of a Federal benefit program in accordance with Executive 
Order 13132 and found that it will not have substantial direct effects 
on the States or the relationship between the national government and 
the States, or the distribution of power and responsibilities among the 
various levels of government, within the meaning of the Executive 
Order.

Unfunded Mandates Reform Act of 1995

    This regulatory action has been reviewed in accordance with the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) and Executive 
Order 12875. The Department has determined that this rule does not 
include any Federal mandate that may result in increased expenditures 
by State, local, or tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year. Accordingly, 
the Department has not prepared a budgetary impact statement.

Effect on Family Life

    The Department certifies that this proposed rule has been assessed 
according to section 654 of Pub. L. 105-277, 112 Stat. 2681, for its 
effect on family well-being. The Department concludes that the rule 
will not adversely affect the well-being of the nation's families. 
Rather, it should have a positive effect on family well-being by 
providing greater choice in for benefits to eligible individuals.

Regulatory Flexibility Act/SBREFA

    We have notified the Chief Counsel for Advocacy, Small Business 
Administration, and made the certification pursuant to the Regulatory 
Flexibility Act (RFA) at 5 U.S.C. 605(b), that this proposed rule will 
not have a significant economic impact on a substantial number of small 
entities. Under the RFA, no regulatory flexibility analysis is required 
where the rule ``will not * * * have a significant economic impact on a 
substantial number of small entities.'' 5 U.S.C. 605(b). A small entity 
is defined as a small business, small not-for-profit organization, or 
small governmental jurisdiction. 5 U.S.C. 601(3)-(5). Therefore, the 
definition of the term ``small entity'' does not include States or 
individuals.
    This proposed rule provides procedures governing a program for 
individuals over age 50 and is administered by the States and not by 
small governmental jurisdictions. In addition, the program applies to 
individuals who seek benefits under the program only, and not small 
entities as

[[Page 61624]]

defined by the Regulatory Flexibility Act. Therefore, the Department 
certifies that this proposed rule will not have a significant impact on 
a substantial number of small entities and, as a result, no regulatory 
flexibility analysis is required.
    In addition, the Department certifies that this proposed rule is 
not a major rule as defined by section 804 of the Small Business 
Regulatory Enforcement Act of 1996 (SBREFA). Under section 804 of 
SBREFA, a major rule is one that is an ``economically significant 
regulatory action'' within the meaning of Executive Order 12866. 
Because this proposed rule is not an economically significant rule 
under Executive Order 12866, the Department certifies that it also is 
not a major rule under SBREFA.

Catalogue of Federal Domestic Assistance Number

    This program is listed in the Catalogue of Federal Domestic 
Assistance at No. 17.245.

List of Subjects in 20 CFR Part 618

    Administrative practice and procedure, Employment, Fraud, Grant 
programs--labor, Manpower training programs, Relocation assistance, 
Reporting and recordkeeping requirements, Trade adjustment assistance, 
Vocational education.

    Signed at Washington, DC, on October 12, 2006.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration.

    For the reasons stated in the preamble, the Department of Labor 
proposes to amend 20 CFR part 618 as proposed in a Notice of Proposed 
Rulemaking entitled Trade Adjustment Assistance for Workers, Workforce 
Investment Act; Amendment of Regulations, published at 71 FR 50760-
50832 (August 25, 2006) which is proposed to be further amended as 
follows:

PART 618--TRADE ADJUSTMENT ASSISTANCE UNDER THE TRADE ACT OF 1974 
FOR WORKERS CERTIFIED UNDER PETITIONS FILED BEFORE NOVEMBER 4, 2002

    1. The authority citation for this part continues to read as 
follows:

    Authority: 19 U.S.C. 2320; Secretary's Order No. 3-81, 46 FR 
31117.

    2. 20 CFR part 618 is amended to add subpart I to read as follows:

Subpart I--Alternative Trade Adjustment Assistance for Older 
Workers

Sec.
618.900 Scope and purpose.
618.905 Individual eligibility criteria, application, and 
determinations.
618.910 Benefits.
618.915 Choice of TAA or ATAA wage supplement.
618.920 Termination of ATAA Program.

Subpart I--Alternative Trade Adjustment Assistance for Older 
Workers


Sec.  618.900  Scope and purpose.

    (a) This subpart covers Alternative Trade Adjustment Assistance for 
older workers (ATAA), including the procedures for applying for 
individual eligibility determinations. ATAA certification is determined 
at the same time as TAA certification, both of which are governed by 
subpart B of this Part. Workers who are covered under an ATAA 
certification must meet the individual eligibility criteria for ATAA in 
order to opt to receive a wage supplement. However, a worker for whom a 
nonrefundable expense is incurred for training approved under Sec.  
618.605(c) loses the option to receive ATAA, whether or not TAA funds 
pay for the expense. Under Sec.  618.915 a worker who receives an ATAA 
wage supplement may not receive TAA benefits and services, but may 
still be eligible to receive the HCTC.
    (b) The purpose of ATAA is to provide workers 50 years of age or 
older with the option to receive a temporary wage supplement upon 
prompt reemployment at lower pay than their previous adversely affected 
employment, as an alternative to training and other TAA benefits.


Sec.  618.905  Individual eligibility criteria, applications, and 
determinations.

    (a) Criteria for individual eligibility. An individual worker must 
satisfy each of the following requirements to qualify for ATAA:
    (1) Criterion 1: The worker is covered by a certification. The 
worker must be an adversely affected worker, as defined in Sec.  
618.110(b)(3), in the group of workers certified as eligible to apply 
for TAA and ATAA;
    (2) Criterion 2: The worker obtains reemployment not more than 26 
weeks after the date of separation from the adversely affected 
employment. The worker's first day of employment must occur before the 
last day of the 26th week after the date of the worker's most recent 
total separation, as defined in Sec.  618.110(b)(76), within the ATAA 
certification period;
    (3) Criterion 3: The worker is at least 50 years of age. The worker 
must be at least 50 years of age at the time of reemployment;
    (4) Criterion 4: The worker earns not more than $50,000 a year in 
annualized wages from reemployment. The worker may not earn more than 
$50,000 in annualized wages from reemployment, as computed under 
618.910(a)(2)(ii). Annualized wages from reemployment will include 
wages from all jobs in which the worker is employed. When a worker 
applies for ATAA, a paycheck or supporting statement from the employer, 
or from each employer if more than one, must be used to establish that 
annualized wages from reemployment will not exceed $50,000. Annualized 
wages from reemployment also must be less than the worker's annualized 
wages at separation from adversely affected employment, as computed 
under Sec.  618.910(a)(2)(i);
    (5) Criterion 5: The worker is employed on a full-time basis as 
defined by State law in the State in which the worker is employed. The 
worker must be employed, and must continue being employed (although the 
worker need not continue to be employed in the same job(s) or for the 
same employer(s)), on a full-time basis as defined by State law (as 
defined in Sec.  618.110(b)(70)) in the State in which the worker is 
employed.
    (i) Employment on a full-time basis may include a single, full-time 
job or any combination of part-time work that meets or exceeds full-
time employment, as defined under State law in the State in which the 
worker is employed. If the worker is employed in more than one State, 
then the law of the State in which the worker has the highest weekly 
earnings applies. If the worker's weekly earnings in that State are 
reduced, the law of that State continues to apply. Such employment need 
not be covered employment under State UI law, but must be employment 
which does not present any unusual risk to the health, safety, or 
morals of the individual and must not involve activity that is unlawful 
under Federal, State, or local law.
    (ii) Notwithstanding State law, a worker must be considered 
employed full-time for any week in which the worker worked less than 
full-time as defined in State law, only because the worker was on 
employer-authorized leave.
    (iii) Such employment may not be TAA- or WIA-sponsored on-the-job 
training (OJT);
    (6) Criterion 6: The worker does not return to the employment from 
which the worker was separated. The worker's reemployment must not be 
the same employment as the adversely affected employment from which the 
worker was separated. An adversely affected worker

[[Page 61625]]

returns to adversely affected employment if reemployed:
    (i) by the same firm at the same facility from which the adversely 
affected worker was separated, regardless of whether the worker is 
returning to the same job or producing the same article as identified 
in the TAA determination; or
    (ii) by a different firm but at the same facility from which the 
adversely affected worker was separated, and producing the same article 
identified in the TAA determination, regardless of whether the worker 
is returning to the same job; or
    (iii) by the same firm but at a different facility in the same job 
and producing the same article identified in the TAA determination.
    (b) Filing an individual application for ATAA. To receive ATAA, an 
adversely affected worker must file an application for ATAA with the 
cooperating State agency within two years from the first day of the 
worker's reemployment. The cooperating State agency, at its discretion, 
may require the worker to file the application in person.
    (c) The limitation in paragraph (b) of this section does not apply 
where a negative determination on a petition filed under subpart B of 
this part 618 has been appealed to the United States Court of 
International Trade; and the certification is later granted; and the 
delay in the certification is not attributable to the petitioner or the 
adversely affected worker. In that event, the filing period for ATAA 
will be extended by the Department of Labor, on a case-by-case basis, 
for a reasonable period in which workers may file for ATAA. The 26 week 
deadline for reemployment described in Sec.  618.905(a)(2) remains and 
is not changed by this provision.
    (d) Determinations, redeterminations, and appeals. Cooperating 
State agencies must apply the requirements of Sec.  618.825 
(determinations and notice) and Sec.  618.835 (appeals and hearings) of 
subpart H, respectively, to all determinations, redeterminations, and 
appeals under this subpart I.
    (1) Before issuing a determination or redetermination, the 
cooperating State agency must verify and document the worker's age, 
reemployment, and wages in determining whether the requirements of 
paragraph (a) of this section have been met.
    (2) A determination of eligibility issued to a worker must include 
a notice that the benefit amount will be regularly recalculated (as 
required by Sec.  618.910(a)(6)) and may change if the eligible 
worker's annualized wages in reemployment vary.
    (3) A worker who is denied individual eligibility based on a first 
reemployment may file a new application and subsequently obtain ATAA 
eligibility if the worker meets all of the criteria of paragraph (a) of 
this section at the time the worker files the new application.
    (4) A wage supplement may be approved retroactively in the case of 
a worker who is covered by an ATAA certification but is reemployed 
before such certification actually is issued, and otherwise meets the 
eligibility requirements of this section.
    (e) Recordkeeping requirements. The recordkeeping and disclosure of 
information requirements of Sec.  618.865 apply to the cooperating 
State agencies' administration of the ATAA program.


Sec.  618.910  Benefits.

    (a) Wage supplement. An eligible worker under an ATAA certification 
may receive a total wage supplement of up to $10,000 over a period of 
not more than two years.
    (1) Computation of total worker payment and Annualized Wage 
Differential. The ATAA wage supplement supplements an individual's 
wages for up to two calendar years beginning with the first day of 
initial reemployment or $10,000, whichever occurs first, by an amount 
equal to the annualized wage differential. The Annualized Wage 
Differential is an amount equal to 50 percent of the result of--
    (i) The amount of the worker's annualized wages at separation, as 
computed under paragraph (a)(2)(i) of this section, minus
    (ii) The amount of the worker's annualized wages from reemployment, 
as computed under paragraph (a)(2)(ii) of this section.
    (2) Computation of annualized wages. (i) Annualized wages at 
separation means the product of 52 multiplied by the amount of wages 
received by the worker during the last full week of the worker's 
regular schedule in adversely affected employment. The computation of 
wages at separation excludes overtime, employer-paid health insurance 
premiums, and employer pension contributions, as well as bonuses, 
severance payments, buyouts and similar payments not reflective of the 
worker's weekly pay.
    (ii) Annualized wages from reemployment means the product of 52 
multiplied by the amount of wages received by the worker during the 
first full week of reemployment. If a worker's wages from reemployment 
change, then annualized wages from reemployment means the product of 52 
multiplied by the amount of wages received by the worker during the 
latest full week of reemployment, and the cooperating State agency must 
follow Sec.  618.910(a)(6) in recalculating the wage supplement 
payments. The computation of annualized wages from reemployment 
excludes overtime, employer-paid health insurance premiums, and 
employer pension contributions, as well as bonuses, severance payments, 
buyouts and similar payments not reflective of the worker's weekly pay. 
If a worker's annualized wages from reemployment exceed $50,000, then 
the worker is ineligible for any ATAA benefit under this subpart I.
    (3) Timing of wage supplement payments. The cooperating State 
agency must make wage supplement payments on a regular basis, either 
weekly, biweekly, or monthly, for no more than a two-year period for a 
worker under any one certification, beginning no earlier than the first 
day of reemployment that satisfies the requirements of Sec.  618.905. A 
worker may receive retroactive payments, in a lump sum, for which the 
worker was eligible under Sec.  618.905(a) and approved under Sec.  
618.905(d)(4).
    (4) Calculation of wage supplement payments. Each wage supplement 
payment will be equal to the Annualized Wage Differential divided by 
the number of payments made during the year, e.g., divided by 12 in a 
State that pays on a monthly basis and divided by 52 in a State that 
pays on a weekly basis.
    (5) Periodic verification of employment and annualized wages. No 
less than once a month, the cooperating State agency must review 
whether a worker receiving wage supplement payments continues to meet 
the eligibility requirements of Sec.  618.905, and determine whether 
changes have occurred in the worker's annualized wages from 
reemployment, as described in paragraph (a)(2)(ii) of this section.
    (6) Change in annualized wages from reemployment. The cooperating 
State agency must recalculate the appropriate amount of the wage 
supplement payments if, during its review under paragraph (a)(5) of 
this section, it determines that the worker's annualized wages from 
reemployment have changed.
    (i) If the worker's annualized wages from reemployment, as computed 
under paragraph (a)(2)(ii) of this section, exceed either $50,000 or 
the worker's annualized wages at separation, as computed under 
paragraph (a)(2)(i) of this section, then the cooperating State agency 
must immediately issue a determination that the worker is ineligible 
for further wage supplement

[[Page 61626]]

payments, notify the worker of this determination, and cease such wage 
supplement payments.
    (ii) If the worker's annualized wages from reemployment, as 
computed under paragraph (a)(2)(ii) of this section, change, but still 
do not exceed either $50,000 or the worker's annualized wages at 
separation, as computed under paragraph (a)(2)(i) of this section, then 
the cooperating State agency must recalculate the amount of each wage 
supplement payment.
    (7) Overpayments. If a cooperating State agency has verified 
continued eligibility monthly, as required by paragraph (a)(5) of this 
section, payments made before a worker's annualized wages from 
reemployment are determined, under the computation in paragraph 
(a)(2)(ii) of this section, to have changed will, in the absence of 
fraud, be considered valid payments to which the individual was 
entitled and are not overpayments subject to Sec.  618.840.
    (8) Continuing eligibility for wage supplement. (i) Changing jobs 
during reemployment does not disqualify an otherwise eligible worker 
from receiving subsequent wage supplement payments under this subpart I 
for the remainder of the two-year eligibility period if the new 
reemployment meets the requirements of Sec.  618.905(a)(4), (a)(5), and 
(a)(6).
    (ii) A worker already receiving wage supplement payments who has a 
period of unemployment will not be eligible to receive the wage 
supplement for that period nor any TAA benefit (see Sec.  618.915 
(choice of TAA or ATAA wage supplement)). Upon reemployment, the worker 
must reapply for ATAA to the cooperating State agency. If the new 
reemployment meets the requirements of Sec.  618.905(a)(4), (a)(5), and 
(a)(6), the worker may be eligible to receive the wage supplement in 
accordance with the requirements of this section for the remaining 
portion of the two-year eligibility period.
    (iii) A worker already receiving wage supplement payments whose 
recalculated annualized wages from reemployment, under 
618.910(a)(2)(ii), exceed $50,000, may not receive any further wage 
supplement payments or any TAA benefit (see Sec.  618.915 (choice of 
TAA or ATAA wage supplement)). However, if another change reduces the 
worker's annualized wages from reemployment to $50,000 or less and the 
worker meets the requirements of Sec.  618.905(a)(4), (a)(5), and 
(a)(6), the worker may reapply to the CSA and resume receiving ATAA for 
the remaining portion of the two-year eligibility period.
    (b) Health Coverage Tax Credit. A worker who receives an ATAA wage 
supplement payment is an eligible ATAA recipient as defined in 
618.110(b)(33) and may, if determined eligible by the Internal Revenue 
Service, receive the HCTC for any month in which the worker receives an 
ATAA payment and for one month following the last month of ATAA payment 
eligibility. A cooperating State agency must meet the responsibilities 
explained in Sec.  618.770(b) (Health Coverage Tax Credit).


Sec.  618.915  Choice of TAA or ATAA wage supplement.

    A worker for whom a nonrefundable expense is incurred--whether or 
not TAA funds pay the expense--for training approved under Sec.  
618.605(c) loses the option to receive ATAA and may not receive a wage 
supplement under an accompanying ATAA certification. A worker who has 
received TRA, a job search allowance, or a relocation allowance may 
still choose to receive ATAA benefits. However, a worker who receives a 
wage supplement payment under an ATAA certification makes an 
irrevocable election to receive ATAA benefits and may not receive any 
concurrent or subsequent TAA benefits, except for the HCTC, as provided 
in Sec.  618.910(b), under the TAA certification that accompanies that 
ATAA certification.


Sec.  618.920  Termination of ATAA Program.

    A worker may not receive a wage supplement under Sec.  618.910(a) 
after the termination date of the ATAA program specified in the Act or 
other law, unless the worker received a determination approving an 
initial application for ATAA on or before such termination date. A 
worker who has received approval of a wage supplement under the ATAA 
program on or before the termination date specified in the Act will, if 
otherwise eligible, continue to receive payments throughout the 
worker's eligibility period, in accordance with Sec.  618.910(a) of 
this subpart I.

[FR Doc. 06-8752 Filed 10-17-06; 8:45 am]
BILLING CODE 4510-30-P


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