[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2023 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 20
Employees' Benefits
________________________
Parts 500 to 656
Revised as of April 1, 2023
Containing a codification of documents of general
applicability and future effect
As of April 1, 2023
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0-16 ISBN prefix is for U.S. Government Publishing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Publishing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P U B L I S H I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC
20402-0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 20:
Chapter IV--Employees' Compensation Appeals Board,
Department of Labor 3
Chapter V--Employment and Training Administration,
Department of Labor 13
Finding Aids:
Table of CFR Titles and Chapters........................ 651
Alphabetical List of Agencies Appearing in the CFR...... 671
List of CFR Sections Affected........................... 681
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 20 CFR 501.1 refers
to title 20, part 501,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, April 1, 2023), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
SALES
The Government Publishing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2104, 24 hours a day. For payment by check,
write to: US Government Publishing Office - New Orders, P.O. Box 979050,
St. Louis, MO 63197-9000.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
States, Compilation of Presidential Documents and the Privacy Act
Compilation are available in electronic format via www.govinfo.gov. For
more information, contact the GPO Customer Contact Center, U.S.
Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-
free). E-mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) website for public
law numbers, Federal Register finding aids, and related information.
Connect to NARA's website at www.archives.gov/federal-register.
The eCFR is a regularly updated, unofficial editorial compilation of
CFR material and Federal Register amendments, produced by the Office of
the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
April 1, 2023
[[Page ix]]
THIS TITLE
Title 20--Employees' Benefits is composed of four volumes. The first
volume, containing parts 1-399, includes current regulations issued by
the Office of Workers' Compensation Programs, Department of Labor and
the Railroad Retirement Board. The second volume, containing parts 400-
499, includes all current regulations issued by the Social Security
Administration. The third volume, containing parts 500 to 656, includes
current regulations issued by the Employees' Compensation Appeals Board,
and the Employment and Training Administration. The fourth volume,
containing part 657 to End, includes the current regulations issued by
the Office of Workers' Compensation Programs, the Benefits Review Board,
the Office of the Assistant Secretary for Veterans' Employment and
Training Service (all of the Department of Labor) and the Joint Board
for the Enrollment of Actuaries. The contents of these volumes represent
all current regulations codified under this title of the CFR as of April
1, 2023.
An index to chapter III appears in the second volume.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 20--EMPLOYEES' BENEFITS
(This book contains parts 500 to 656)
--------------------------------------------------------------------
Part
chapter iv--Employees' Compensation Appeals Board,
Department of Labor....................................... 501
chapter v--Employment and Training Administration,
Department of Labor....................................... 601
[[Page 3]]
CHAPTER IV--EMPLOYEES' COMPENSATION APPEALS BOARD, DEPARTMENT OF LABOR
--------------------------------------------------------------------
Part Page
500
[Reserved]
501 Rules of procedure.......................... 5
502-599
[Reserved]
[[Page 5]]
PART 500 [RESERVED]
PART 501_RULES OF PROCEDURE--Table of Contents
Sec.
501.1 Definitions.
501.2 Scope and applicability of rules; composition and jurisdiction of
the Board.
501.3 Notice of appeal.
501.4 Case record; inspection; submission of pleadings and motions.
501.5 Oral argument.
501.6 Decisions and orders.
501.7 Petition for reconsideration.
501.8 Clerk of the Office of the Appellate Boards; docket of
proceedings; records.
501.9 Representation; appearances and fees.
Authority: Federal Employees' Compensation Act (FECA), 5 U.S.C. 8101
et seq.
Source: 73 FR 62193, Oct. 20, 2008, unless otherwise noted.
Sec. 501.1 Definitions.
(a) FECA means the Federal Employees' Compensation Act, 5 U.S.C.
8101 et seq. and any statutory extension or application thereof.
(b) The Board means the Employees' Compensation Appeals Board.
(c) Chief Judge and Chairman of the Board means the Chairman of the
Employees' Compensation Appeals Board.
(d) Judge or Alternate Judge means a member designated and appointed
by the Secretary of Labor with authority to hear and make final
decisions on appeals taken from determinations and awards by the OWCP in
claims arising under the FECA.
(e) OWCP means the Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor.
(f) Director means the Director of the Office of Workers'
Compensation Programs or a person delegated authority to perform the
functions of the Director. The Director of OWCP is represented before
the Board by an attorney designated by the Solicitor of Labor.
(g) Appellant means any person adversely affected by a final
decision or order of the OWCP who files an appeal to the Board.
(h) Representative means an individual properly authorized by an
Appellant in writing to act for the Appellant in connection with an
appeal before the Board. The Representative may be any individual or an
attorney who has been admitted to practice and who is in good standing
with any court of competent jurisdiction.
(i) Decision, as prescribed by 5 U.S.C. 8149 of the FECA, means the
final determinative action made by the Board on appeal of a claim.
(j) Clerk or Office of the Clerk means the Clerk of the Office of
the Appellate Boards.
Sec. 501.2 Scope and applicability of rules; composition and jurisdiction
of the Board.
(a) The regulations in this part establish the Rules of Practice and
Procedure governing the operation of the Employees' Compensation Appeals
Board.
(b) The Board consists of three permanent judges, one of whom is
designated as Chief Judge and Chairman of the Board, and such alternate
judges as are appointed by the Secretary of Labor. The Chief Judge is
the administrative officer of the Board. The functions of the Board are
quasi-judicial. For organizational purposes, the Board is placed in the
Office of the Secretary of Labor and sits in Washington, DC.
(c) The Board has jurisdiction to consider and decide appeals from
final decisions of OWCP in any case arising under the FECA. The Board
may review all relevant questions of law, fact and exercises of
discretion (or failure to exercise discretion) in such cases.
(1) The Board's review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision.
Evidence not before OWCP will not be considered by the Board for the
first time on appeal.
(2) There will be no appeal with respect to any interlocutory matter
decided (or not decided) by OWCP during the pendency of a case.
(3) The Board and OWCP may not exercise simultaneous jurisdiction
over the same issue in a case on appeal. Following the docketing of an
appeal before the Board, OWCP does not retain jurisdiction to render a
further decision regarding the issue on appeal until after the Board
relinquishes jurisdiction.
[[Page 6]]
Sec. 501.3 Notice of Appeal.
(a) Who may file. Any person adversely affected by a final decision
of the Director, or his or her authorized Representative, may file an
appeal of such decision to the Board.
(b) How to file. (1) Beginning on April 12, 2021, attorneys and lay
representatives must file appeals with the Board electronically through
the Board's case management system, along with all post-appeal pleadings
and motions as set forth in paragraphs (d) and (h) of this section and
Sec. Sec. 501.4(b) through (d), 501.5(b) and (g); 501.7 (a), (e), and
(f), and 501.9(b), (c), and (e).
(2) Attorneys and lay representatives may request an exemption
(pursuant to Sec. 501.4(d)) for good cause shown. Such a request must
include a detailed explanation why e-filing or acceptance of e-service
should not be required.
(3) Self-represented parties may either file appeals electronically
through the Board's case management system or file appeals by mail or
other method of delivery to the Clerk of the Appellate Boards at 200
Constitution Avenue NW, Washington, DC 20210.
(c) Content of notice of appeal. A notice of appeal shall contain
the following information:
(1) Date of Appeal.
(2) Full name, address, email address, and telephone number of the
Appellant and the full name of any deceased employee on whose behalf an
appeal is taken. In addition, the Appellant must provide a signed
authorization identifying the full name, address, email address, and
telephone number of his or her representative, if applicable.
(3) Employing establishment, and the date, description and place of
injury.
(4) Date and Case File Number assigned by OWCP concerning the
decision being appealed to the Board.
(5) A statement explaining Appellant's disagreement with OWCP's
decision and stating the factual and/or legal argument in favor of the
appeal.
(6) Signature: An Appellant must sign the notice of appeal. A filing
made electronically through the Board's case management system by a
registered user containing the Appellant's name in an appropriate
signature block constitutes the Appellant's signature.
(d) Substitution of appellant: Should the Appellant die after having
filed an appeal with the Board, the appeal may proceed to decision
provided there is the substitution of a proper Appellant who requests
that the appeal proceed to decision by the Board.
(e) Time limitations for filing. Any notice of appeal must be filed
within 180 days from the date of issuance of a decision of the OWCP. The
Board maintains discretion to extend the time period for filing an
appeal if an applicant demonstrates compelling circumstances. Compelling
circumstances means circumstances beyond the Appellant's control that
prevent the timely filing of an appeal and does not include any delay
caused by the failure of an individual to exercise due diligence in
submitting a notice of appeal.
(f) Date of filing. A notice of appeal complying with this paragraph
(c) is considered to have been filed only if received by the Clerk of
the Appellate Boards within the period specified under paragraph (e) of
this section, except as otherwise provided in this subsection:
(1) If the notice of appeal is sent via the U.S. Postal Service or
commercial carrier and use of the date of delivery as the date of filing
would result in a loss of appeal rights, the appeal will be considered
to have been filed as of the date of the postmark or other carriers'
date markings. The date appearing on the U.S. Postal Service postmark or
other carriers' date markings (when available and legible) shall be
prima facie evidence of the date of mailing. If there is no such
postmark or date marking, or it is illegible, then other evidence
including, but not limited to, certified mail receipts, certificate of
service, and affidavits, may be used to establish the mailing date. If a
notice of appeal is delivered or sent by means other than the U.S.
Postal Service or commercial carrier, including e-filing, personal
delivery, or fax, the notice is deemed to be filed when received by the
Clerk of the Appellate Boards.
(2) For electronic filings made through the Board's case management
system, a document is deemed filed as of the date and time the Board's
electronic case management system records its receipt, even if
transmitted
[[Page 7]]
after the close of business. To be considered timely, an e-filed
document or pleading must be filed by 11:59:59 p.m. Eastern Time on the
due date.
(3) In computing the date of filing, the 180-day time period for
filing an appeal begins to run on the day following the date of the OWCP
decision. The last day of the period so computed shall be included,
unless it is a Saturday, Sunday or Federal holiday, in which event the
period runs to the close of the next business day.
(g) Failure to timely file a notice of appeal. The failure of an
Appellant or Representative to file an appeal with the Board within the
period specified under paragraph (e) of this section, including any
extensions granted by the Board in its discretion based upon compelling
circumstances, will foreclose all right to review. The Board will
dismiss any untimely appeal for lack of jurisdiction.
(h) Incomplete notice of appeal. Any timely notice of appeal that
does not contain the information specified in paragraph (c) of this
section will be considered incomplete. On receipt by the Board, the
Clerk of the Appellate Boards will inform Appellant of the deficiencies
in the notice of appeal and specify a reasonable time to submit the
requisite information. Such appeal will be dismissed unless Appellant
provides the requisite information in the specified time.
[73 FR 62193, Oct. 20, 2008, as amended at 86 FR 1771, Jan. 11, 2021]
Sec. 501.4 Case record; inspection; submission of pleadings and motions.
(a) Service on OWCP and transmission of OWCP case record. The Board
shall serve upon the Director a copy of each notice of appeal and
accompanying documents. Within 60 days from the date of such service,
the Director shall provide to the Board the record of the OWCP
proceeding to which the notice refers. On application of the Director,
the Board may, in its discretion, extend the time period for submittal
of the OWCP case record.
(b) Inspection of record. The case record on appeal is an official
record of the OWCP.
(1) Upon written application to the Clerk, an Appellant may request
inspection of the OWCP case record. At the discretion of the Board, the
OWCP case record may either be made available in the Office of the Clerk
of the Appellate Boards for inspection by the Appellant, or the request
may be forwarded to the Director so that OWCP may make a copy of the
OWCP case record and forward this copy to the Appellant. Inspection of
the papers and documents included in the OWCP case record of any appeal
pending before the Board will be permitted or denied in accordance with
5 CFR 10.10 to 10.13. The Chief Judge (or his or her designee) shall
serve as the disclosure officer for purposes of Appendix A to 29 CFR
Parts 70 and 71.
(2) Copies of the documents generated in the course of the appeal
before the Board will be provided to the Appellant and Appellant's
Representative by the Clerk. If the Appellant needs additional copies of
such documents while the appeal is pending, the Appellant may obtain
this information by contacting the Clerk. Pleadings and motions filed
during the appeal in proceedings before the Board will be made part of
the official case record of the OWCP.
(c) Pleadings. The Appellant, the Appellant's Representative and the
Director may file pleadings supporting their position and presenting
information, including but not limited to briefs, memoranda of law,
memoranda of justification, and optional form AB-1. All pleadings filed
must contain the docket number and be filed with the Clerk. The Clerk
will issue directions specifying the time allowed for any responses and
replies.
(1) The Clerk will distribute copies of any pleading received by the
Clerk to ensure that the Appellant, his or her Representative and the
Director receive all pleadings. Any pleading should be submitted within
60 days of the filing of an appeal. The Board may, in its discretion,
extend the time period for the submittal of any pleading.
(2) Proceedings before the Board are informal and there is no
requirement that any pleading be filed. Failure to submit a pleading or
to timely submit a pleading does not prejudice the rights of either the
Appellant or the Director.
[[Page 8]]
(3) Upon receipt of a pleading, the Appellant and the Director will
have the opportunity to submit a response to the Board.
(d) Motions. Motions are requests for the Board to take specific
action in a pending appeal. Motions include, but are not limited to,
motions to dismiss, affirm the decision below, remand, request a
substitution, request an extension of time, or other such matter as may
be brought before the Board. Motions may be filed by the Appellant, the
Appellant's Representative and the Director. The motion must be in
writing, contain the docket number, state the relief requested and the
basis for the relief requested, and be filed with the Clerk. Any motion
received will be sent by the Clerk to ensure that the Appellant, his or
her Representative and the Director receive all motions. The Clerk will
issue directions specifying the timing of any responses and replies. The
Board also may act on its own to issue direction in pending appeals,
stating the basis for its determination.
[73 FR 62193, Oct. 20, 2008, as amended at 86 FR 1771, Jan. 11, 2021]
Sec. 501.5 Oral argument.
(a) Oral argument. Oral argument may be held in the discretion of
the Board, on its own determination or on application by Appellant or
the Director.
(b) Request. A request for oral argument must be submitted in
writing to the Clerk. The application must specify the issue(s) to be
argued and provide a statement supporting the need for oral argument.
The request must be made no later than 60 days after the filing of an
appeal. Any appeal in which a request for oral argument is not granted
by the Board will proceed to a decision based on the case record and any
pleadings submitted.
(c) Notice of argument. If a request for oral argument is granted,
the Clerk will notify the Appellant and the Director at least 30 days
prior to the date set for argument. The notice of oral argument will
state the issues that the Board has determined will be heard and whether
the oral argument will take place in person in Washington, DC or by
videoconference.
(d) Time allowed. Appellant and any Representative for the Director
shall be allowed no more than 30 minutes to present oral argument. The
Board may, in its discretion, extend the time allowed.
(e) Appearances. An Appellant may appear at oral argument before the
Board or designate a Representative. Argument shall be presented by the
Appellant or a Representative, not both. The Director may be represented
by an attorney with the Solicitor of Labor. Argument is limited to the
evidence of record on appeal.
(f) Location. Oral argument in person is heard before the Board only
in Washington, DC. The Board may, in its discretion, hear oral argument
by videoconference. The Board does not reimburse costs associated with
an oral argument.
(g) Continuance. Once oral argument has been scheduled by the Board,
a continuance will not be granted except on a showing of good cause.
Good cause may include extreme hardship or where attendance by an
Appellant or Representative is mandated at a previously scheduled
judicial proceeding. Any request for continuance must be received by the
Board at least 15 days before the date scheduled for oral argument and
be served by the requester upon Appellant and the Director. No request
for a second continuance will be entertained by the Board. In such case,
the appeal will proceed to a decision based on the case record. The
Board may reschedule or cancel oral argument on its own motion at any
time.
(h) Nonappearance. The absence of an Appellant, his or her
Representative, or the Director at the time and place set for oral
argument will not delay the Board's resolution of an appeal. In such
event, the Board may, in its discretion, reschedule oral argument, or
cancel oral argument and treat the case as submitted on the case record.
[73 FR 62193, Oct. 20, 2008, as amended at 86 FR 1771, Jan. 11, 2021]
Sec. 501.6 Decisions and orders.
(a) Decisions. A decision of the Board will contain a written
opinion setting forth the reasons for the action taken and an
appropriate order. The decision
[[Page 9]]
is based on the case record, all pleadings and any oral argument. The
decision may consist of an affirmance, reversal or remand for further
development of the evidence, or other appropriate action.
(b) Panels. A decision of not less than two judges will be the
decision of the Board.
(c) Issuance. The date of the Board's decision is the date of
issuance or such date as determined by the Board. Issuance is not
determined by the postmark on any letter containing the decision or the
date of actual receipt by Appellant or the Director.
(d) Finality. The decisions and orders of the Board are final as to
the subject matter appealed, and such decisions and orders are not
subject to review, except by the Board. The decisions and orders of the
Board will be final upon the expiration of 30 days from the date of
issuance unless the Board has fixed a different period of time therein.
Following the expiration of that time, the Board no longer retains
jurisdiction over the appeal unless a timely petition for
reconsideration is submitted and granted.
(e) Dispositive orders. The Board may dispose of an appeal on a
procedural basis by issuing an appropriate order disposing of part or
all of a case prior to reaching the merits of the appeal. The Board may
proceed to an order on its own or on the written motion of Appellant or
the Director.
(f) Service. The Board will send its decisions and orders to the
Appellant, his or her Representative and the Director at the time of
issuance.
Sec. 501.7 Petition for reconsideration.
(a) Time for filing. The Appellant or the Director may file a
petition for reconsideration of a decision or order issued by the Board
within 30 days of the date of issuance, unless another time period is
specified in the Board's order.
(b) Where to File. The petition must be filed with the Clerk. Copies
will be sent by the Clerk to the Director, the Appellant and his or her
Representative in the time period specified by the Board.
(c) Content of petition. The petition must be in writing. The
petition must contain the docket number, specify the matters claimed to
have been erroneously decided, provide a statement of the facts upon
which the petitioner relies, and a discussion of applicable law. New
evidence will not be considered by the Board in a petition for
reconsideration.
(d) Panel. The panel of judges who heard and decided the appeal will
rule on the petition for reconsideration. If any member of the original
panel is unavailable, the Chief Judge may designate a new panel member.
The decision or order of the Board will stand as final unless vacated or
modified by the vote of at least two members of the reconsideration
panel.
(e) Answer. Upon the filing of a petition for reconsideration,
Appellant or the Director may file an answer to the petition within such
time as fixed by the Board.
(f) Oral argument and decision on reconsideration. An oral argument
may be allowed at the discretion of the Board upon application of the
Appellant or Director or the Board may proceed to address the matter
upon the papers filed. The Board shall grant or deny the petition for
reconsideration and issue such orders as it deems appropriate.
Sec. 501.8 Clerk of the Office of the Appellate Boards; docket of
proceedings; records.
(a) Location and business hours. The Office of the Clerk of the
Appellate Boards is located at 200 Constitution Avenue, NW., Washington,
DC 20210. The Office of the Clerk is open during business hours on all
days except Saturdays, Sundays and Federal holidays, from 8:30 a.m. to 5
p.m.
(b) Docket. The Clerk will maintain a docket containing a record of
all proceedings before the Board. Each docketed appeal will be assigned
a number in chronological order based upon the date on which the notice
of appeal is received. While the Board generally hears appeals in the
order docketed, the Board retains discretion to change the order in
which a particular appeal will be considered. The Clerk will prepare a
calendar of cases submitted or awaiting oral argument and such other
records as may be required by the Board.
[[Page 10]]
(c) Publication of decisions. Final decisions of the Board will be
published in such form as to be readily available for inspection by the
general public.
Sec. 501.9 Representation; appearances and fees.
(a) Representation. In any proceeding before the Board, an Appellant
may appear in person or by appointing a duly authorized individual as
his or her Representative.
(1) Counsel. The designated Representative may be an attorney who
has been admitted to practice and who is in good standing with any court
of competent jurisdiction.
(2) Lay representative. A non-attorney Representative may represent
an Appellant before the Board. He or she may be an accredited
Representative of an employee organization.
(3) Former members of the Board and other employees of the
Department of Labor. A former judge of the Board is not allowed to
participate as counsel or other Representative before the Board in any
proceeding until two years from the termination of his or her status as
a judge of the Board. The practice of a former judge or other former
employee of the Department of Labor is governed by 29 CFR Part 0,
Subpart B.
(b) Appearance. No individual may appear as a Representative in a
proceeding before the Board without first filing with the Clerk a
written authorization signed by the Appellant to be represented. When
accepted by the Board, such Representative will continue to be
recognized unless the Representative withdraws or abandons such capacity
or the Appellant directs otherwise.
(c) Change of address. Each Appellant and Representative authorized
to appear before the Board must give the Clerk written notice of any
change to the address or telephone number of the Appellant or
Representative. Such notice must identify the docket number and name of
each pending appeal for that Appellant, or, in the case of a
Representative, in which he or she is a Representative before the Board.
Absent such notice, the mailing of documents to the address most
recently provided to the Board will be fully effective.
(d) Debarment of Counsel or Representative. In any proceeding,
whenever the Board finds that a person acting as counsel or other
Representative for the Appellant or the Director, is guilty of unethical
or unprofessional conduct, the Board may order that such person be
excluded from further acting as counsel or Representative in such
proceeding. Such order may be appealed to the Secretary of Labor or his
or her designee, but proceedings before the Board will not be delayed or
suspended pending disposition of such appeal. However, the Board may
suspend the proceeding of an appeal for a reasonable time for the
purpose of enabling Appellant or the Director to obtain different
counsel or other Representative. Whenever the Board has issued an order
precluding a person from further acting as counsel or Representative in
a proceeding, the Board will, within a reasonable time, submit to the
Secretary of Labor or his or her designee a report of the facts and
circumstances surrounding the issuance of such order. The Board will
recommend what action the Secretary of Labor should take in regard to
the appearance of such person as counsel or Representative in other
proceedings before the Board. Before any action is taken debarring a
person as counsel or Representative from other proceedings, he or she
will be furnished notice and the opportunity to be heard on the matter.
(e) Fees for attorney, Representative, or other services. No claim
for a fee for legal or other service performed on appeal before the
Board is valid unless approved by the Board. Under 18 U.S.C. 292,
collecting a fee without the approval of the Board may constitute a
misdemeanor, subject to fine or imprisonment for up to a year or both.
No contract for a stipulated fee or on a contingent fee basis will be
approved by the Board. No fee for service will be approved except upon
written application to the Clerk, supported by a statement of the extent
and nature of the necessary work performed before the Board on behalf of
the Appellant. The fee application will be served by the Clerk on the
Appellant and a time set in which a response may be filed. Except where
such fee is de minimis, the
[[Page 11]]
fee request will be evaluated with consideration of the following
factors:
(1) Usefulness of the Representative's services;
(2) The nature and complexity of the appeal;
(3) The capacity in which the Representative has appeared;
(4) The actual time spent in connection with the Board appeal; and
(5) Customary local charges for similar services.
PARTS 502 599 [RESERVED]
[[Page 13]]
CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
--------------------------------------------------------------------
Part Page
600
[Reserved]
601 Administrative procedure.................... 15
602 Quality control in the Federal-State
unemployment insurance system........... 18
603 Federal-State Unemployment Compensation (UC)
Program; confidentiality and disclosure
of State UC information................. 26
604 Regulations for eligibility for unemployment
compensation............................ 38
606 Tax credits under the Federal Unemployment
Tax Act; advances under Title XII of the
Social Security Act..................... 40
609 Unemployment compensation for Federal
civilian employees...................... 50
614 Unemployment compensation for ex-
servicemembers.......................... 61
615 Extended benefits in the Federal-State
Unemployment Compensation Program....... 82
616 Interstate arrangement for combining
employment and wages.................... 104
617
[Reserved]
618 Trade adjustment assistance under the Trade
Act of 1974, as amended................. 108
619 Unemployment compensation data exchange
standardization for improved
interoperability........................ 207
620 Drug testing for state unemployment
compensation eligibility determination
purposes................................ 208
621
[Reserved]
625 Disaster unemployment assistance............ 210
626-638
[Reserved]
639 Worker adjustment and retraining
notification............................ 236
640 Standard for benefit payment promptness--
unemployment compensation............... 246
641 Provisions governing the Senior Community
Service Employment Program.............. 248
[[Page 14]]
646
[Reserved]
650 Standard for appeals promptness--
unemployment compensation............... 290
651 General provisions governing the Wagner-
Peyser Act Employment Service........... 292
652 Establishment and functioning of State
employment service...................... 298
653 Services of the Wagner-Peyser Act Employment
Service System.......................... 306
654 Special responsibilities of the Employment
Service System.......................... 320
655 Temporary employment of foreign workers in
the United States....................... 328
656 Labor certification process for permanent
employment of aliens in the United
States.................................. 619
[[Page 15]]
PART 600 [RESERVED]
PART 601_ADMINISTRATIVE PROCEDURE--Table of Contents
Subpart A_Approval, Certification and Findings With Respect to State
Laws and Plans of Operation for Normal and Additional Tax Credit and
Grant Purposes
Sec.
601.1 General.
601.2 Approval of State unemployment compensation laws.
601.3 Findings with respect to State laws and plans of operation.
601.4 Certification for tax credit.
601.5 Withholding payments and certifications.
Subpart B_Grants, Advances and Audits
601.6 Grants for administration of unemployment compensation laws and
employment service.
601.7 [Reserved]
601.8 Agreement with Postmaster General.
601.9 Audits.
Authority: 5 U.S.C. 301; 26 U.S.C. Chapter 23; 29 U.S.C. 49k; 38
U.S.C. Chapters 41 and 42; 39 U.S.C. 3202(a)(1)(E) and 3202 note; 42
U.S.C. 1302; and Secretary of Labor's Order No. 4-75, 40 FR 18515.
Source: 15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, unless
otherwise noted.
Editorial Note: Nomenclature changes to part 601 appear at 71 FR
35512, June 21, 2006.
Subpart A_Approval, Certification and Findings With Respect to State
Laws and Plans of Operation for Normal and Additional Tax Credit and
Grant Purposes
Sec. 601.1 General.
(a) State unemployment compensation laws are approved and certified
as provided in section 3304 of the Internal Revenue Code of 1986;
findings are made regarding reduced rates permitted by a State law
(section 3303(a) of the Internal Revenue Code of 1986) and such laws are
certified as provided in section 3303(b) of the Internal Revenue Code of
1986; findings are made regarding the inclusion of specified provisions
(section 303(a) of the Social Security Act) in State laws approved under
section 3304(a) of the Internal Revenue Code of 1986; findings are made
whether the States have accepted the provisions of the Wagner-Peyser Act
and whether their plans of operation for public employment offices
comply with the provisions of said Act.
(b) Normal and additional tax credit is given to taxpayers against
taxes imposed by section 3301 of the Internal Revenue Code of 1986.
(c) Grants of funds are made to States for administration of their
employment security laws if their unemployment compensation laws and
their plans of operation for public employment offices meet required
conditions of Federal law. (Section 303(a) of the Social Security Act;
section 3304(a) of the Internal Revenue Code of 1986; sections 6, 7, and
8 of the Wagner-Peyser Act.)
(d) As used throughout this Part, the terms ``Secretary'' or
``Secretary of Labor'' shall refer to the Secretary of Labor, U.S.
Department of Labor, or his or her designee.
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 61
FR 19983, May 3, 1996]
Sec. 601.2 Approval of State unemployment compensation laws.
States may at their option submit their unemployment compensation
laws for approval (section 3304(a) of the Internal Revenue Code of
1986).
(a) Submission. The States submit to the Employment and Training
Administration (ETA), one copy of the State unemployment compensation
law properly certified by an authorized State official to be true and
complete, together with a written request for approval.
(b) [Reserved]
(c) Approval. The Secretary of Labor determines whether the State
law contains the provisions required by section 3304(a) of the Internal
Revenue Code of 1986. If the State law is approved, the Secretary
notifies the Governor of the State within 30 days of the submission of
such law.
(d) Certification. On October 31 of each taxable year the Secretary
of Labor certifies, for the purposes of normal tax credit (section
3302(a)(1) of the Internal Revenue Code of 1986), to the Secretary of
the Treasury each State
[[Page 16]]
the law of which the Secretary has previously approved. (See also Sec.
601.5.)
(Approved by the Office of Management and Budget under control number
1205-0222)
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 49
FR 18295, Apr. 30, 1984; 50 FR 51241, Dec. 16, 1985; 71 FR 35513, June
21, 2006]
Sec. 601.3 Findings with respect to State laws and plans of operation.
For purposes of grants, findings are made regarding the inclusion in
State unemployment compensation laws, approved under section 3304(a) of
the Internal Revenue Code of 1986, of provisions required by section
303(a) of the Social Security Act (see Sec. 601.2); findings are also
made whether a State has accepted the provisions of the Wagner-Peyser
Act and whether its plan of operation for public employment offices
complies with the provisions of said act. For purposes of additional tax
credit, findings are made regarding reduced rates of contributions
permitted by the State law (section 3303(a) (1) of the Internal Revenue
Code of 1986).
So that the Secretary of Labor may be enabled to determine the status of
State laws and plans of operation, all relevant State materials, such as
statutes, executive and administrative orders, legal opinions, rules,
regulations, interpretations, court decisions, etc., are required to be
submitted currently.
(a) Submission. The States submit currently to the ETA one copy of
relevant State material, properly certified by an authorized State
official to be true and complete.
(b) [Reserved]
(c) Findings. The Secretary makes findings as provided in the cited
sections of the Federal law. In the event that the Secretary is unable
to make the findings required for certification for payment or for
certification of the law for purposes of additional tax credit, further
discussions with State officials are undertaken.
(Approved by the Office of Management and Budget under control number
1205-0222)
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 49
FR 18295, Apr. 30, 1984; 50 FR 51241, Dec. 16, 1985; 71 FR 35513, June
21, 2006]
Sec. 601.4 Certification for tax credit.
(a) Within 30 days after submittal of a State unemployment
compensation law for such purpose, the Secretary certifies to the State
agency, in accordance with the provisions of section 3303(b)(3) of the
Internal Revenue Code of 1986, the Secretary's findings regarding
reduced rates of contributions allowable under such law. On October 31
of each taxable year the Secretary certifies to the Secretary of the
Treasury the law of each State, certified with respect to such year
under section 3304 of the Internal Revenue Code of 1986 (see Sec.
601.2), which the Secretary finds allows reduced rates with respect to
such taxable year only in accordance with the provisions of section
3303(a) of the Internal Revenue Code of 1986.
(b) With regard to certification for payment, see Sec. 601.6.
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 71
FR 35513, June 21, 2006]
Sec. 601.5 Withholding payments and certifications.
(a) When withheld. Payment of funds to States or yearend
certification of State laws, or both, are withheld when the Secretary
finds, after reasonable notice and opportunity for hearing:
(1) That any provision required by section 303(a) of the Social
Security Act is no longer included in the State unemployment
compensation law; or
(2) That the State unemployment compensation law has been so changed
as no longer to meet the conditions required by section 3303(a) of the
Internal Revenue Code of 1986 (section 3303(b)(3) of the Internal
Revenue Code); or
(3) That the State unemployment compensation law has been so amended
as no longer to contain the provisions specified in section 3304(a) or
has failed to comply substantially with any such provision and such
finding has become effective (section 3304(c) of the Internal Revenue
Code of 1986); or
(4) That in the administration of the State unemployment
compensation law there has been a failure to comply substantially with
required provisions of such law (section 303(b)(2) of the Social
Security Act and section 3303(b)(3) of the Internal Revenue Code of
1986); or
[[Page 17]]
(5) That in the administration of the State unemployment
compensation law there has been a denial, in a substantial number of
cases, of benefits due under such law, except that there may be no such
finding until the question of entitlement has been decided by the
highest judicial authority given jurisdiction under such State law
(section 303(b)(1) of the Social Security Act); or
(6) That a State fails to make its unemployment compensation records
available to the Railroad Retirement Board or fails to cooperate with
Federal agencies charged with the administration of unemployment
compensation laws (section 303(c) of the Social Security Act); or
(7) That a State no longer has a plan of operation for public
employment offices complying with the provisions of the Wagner-Peyser
Act; or
(8) That a State agency has not properly expended, in accordance
with an approved plan of operation, the Federal monies paid it for
administration of its public employment service.
(b) Informal discussion. Such hearings are generally not called,
however, until after every reasonable effort has been made by ETA
representatives to resolve the question involved by conference and
discussion with State officials. Formal notification of the date and
place of a hearing does not foreclose further negotiations with State
officials.
(c) Notice of noncertification. If, at any time during the taxable
year, the Secretary of Labor has reason to believe that a State whose
unemployment compensation law he/she has previously approved may not be
certified, the Secretary promptly notifies the Governor of the State to
that effect (section 3304(d) of the Internal Revenue Code of 1986).
(d) Notice of hearing. Notice of hearing is sent by the Secretary of
Labor to the State unemployment compensation agency. The notice sets
forth the purpose of the hearing, the time, date, and place at which the
hearing will be held, and the rules of procedure which will be followed.
At a hearing the State is given an opportunity to present arguments and
all relevant evidence, written or oral. The Secretary makes the
necessary determination or findings, on the basis of the record of such
hearings. A notice of the Secretary's determination or finding is sent
to the State unemployment compensation agency.
(e) Civil Rights Act issues. To the extent that any proposed
withholding of funds involves circumstances within the scope of title VI
of the Civil Rights Act of 1964 and the regulations promulgated
thereunder, the procedure set forth in 29 CFR part 31 shall be
applicable.
[30 FR 6942, May 22, 1965, as amended at 43 FR 13828, Mar. 31, 1978; 71
FR 35513, June 21, 2006]
Subpart B_Grants, Advances and Audits
Sec. 601.6 Grants for administration of unemployment compensation laws
and employment service.
Grants of funds for administration of State unemployment
compensation laws and public employment service programs are made to
States under section 302(a) of the Social Security Act, the Wagner-
Peyser Act, and the Appropriation Acts.
(a) Requests for funds. The forms and instructions used by State
agencies in requesting funds are available on the ETA Web site (http://
www.ows.doleta.gov/rjm). The forms and instructions call for detailed
information for each budgetary period concerning the specific amounts
requested for personal services and other current expenses of State
agencies, supported by workload and unit-cost estimates. Supplementary
budget requests are processed in the same manner as regular requests.
The Administration's representatives in the regional offices furnish
assistance to the State agencies in preparing requests for funds.
(b) Processing of requests. (1) State agencies send their requests
for funds to the Regional Administrator who reviews the requests and
forwards them to the ETA National Office with his/her recommendation as
to the amounts necessary for proper and efficient administration of the
State unemployment compensation law and employment service program.
(2) The ETA National Office appraises the requests and the
recommendations
[[Page 18]]
of the regional representatives from a nationwide point of view,
examining each State's request in the light of the experience of other
States to insure equitable treatment among the States in the allocation
of funds made available by Congress for the administration of State
unemployment compensation laws and public employment service programs.
(c) Action by ETA National Office. If the ETA National Office
approves the State's budget request, the State agency is notified; and,
provided the conditions precedent to grants continue during the
budgetary period, certifications for payment, under the approved budget,
stating the amounts, are made by the ETA National Office to the
Secretary of the Treasury quarterly. Upon denial of a request, in whole
or in part, the State agency is notified and the Regional Administrator
is instructed to negotiate with the State with a view to removing the
basis for denial.
(Approved by the Office of Management and Budget under control number
1205-0132)
[15 FR 5886, Aug. 31, 1950, as amended at 42 FR 4724, Jan. 25, 1977; 49
FR 18295, Apr. 30, 1984; 71 FR 35513, June 21, 2006]
Sec. 601.7 [Reserved]
Sec. 601.8 Agreement with Postmaster General.
The Secretary of Labor and the Postmaster General have been directed
by the Congress (title II of the Labor-Federal Security Agency
Appropriation Act, 1950) to prescribe a mutually satisfactory procedure
whereby official State employment security postal matter will be handled
without the prepayment of postage. In lieu of such prepayments, the
Secretary periodically certifies to the Secretary of the Treasury for
payment to the U.S. Postal Service the amount necessary to cover the
cost of State agency mailings. The amount of payment is based on a
formula agreed upon by the Secretary of Labor and the U.S. Postal
Service.
[15 FR 5886, Aug. 31, 1950, as amended at 42 FR 4724, Jan. 25, 1977]
Sec. 601.9 Audits.
The Department of Labor's audit regulations at 29 CFR Part 96 and 29
CFR Part 99 shall apply with respect to employment service and
unemployment compensation programs.
[46 FR 7766, Jan. 23, 1981, as amended at 71 FR 35513, June 21, 2006]
PART 602_QUALITY CONTROL IN THE FEDERAL-STATE UNEMPLOYMENT INSURANCE SYSTEM-
-Table of Contents
Subpart A_General Provisions
Sec.
602.1 Purpose.
602.2 Scope.
Subpart B_Federal Requirements
602.10 Federal law requirements.
602.11 Secretary's interpretation.
Subpart C_State Responsibilities
602.20 Organization.
602.21 Standard methods and procedures.
602.22 Exceptions.
Subpart D_Federal Responsibilities
602.30 Management.
602.31 Oversight.
Subpart E_Quality Control Grants to States
602.40 Funding.
602.41 Proper expenditure of Quality Control granted funds.
602.42 Effect of failure to implement Quality Control program.
602.43 No incentives or sanctions based on specific error rates.
Appendix A to Part 602--Standard For Claim Determinations--Separation
Information
Authority: 42 U.S.C. 1302.
Source: 52 FR 33528, Sept. 3, 1987, unless otherwise noted.
Editorial Note: Nomenclature changes to part 602 appear at 71 FR
35513, June 21, 2006.
Subpart A_General Provisions
Sec. 602.1 Purpose.
The purpose of this part is to prescribe a Quality Control (QC)
program for the Federal-State unemployment compensation (UC) system,
which is applicable to the State UC programs and the Federal
unemployment benefit and allowance programs administered by the State
unemployment compensation agencies under agreements between the States
and the Secretary of
[[Page 19]]
Labor (Secretary). QC will be a major tool to assess the timeliness and
accuracy of State administration of the UC program. It is designed to
identify errors in claims processes and revenue collections (including
payments in lieu of contributions and Extended Unemployment Compensation
Account collections), analyze causes, and support the initiation of
corrective action.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Sec. 602.2 Scope.
This part applies to all State laws approved by the Secretary under
the Federal Unemployment Tax Act (section 3304 of the Internal Revenue
Code of 1986, 26 U.S.C. section 3304), to the administration of the
State laws, and to any Federal unemployment benefit and allowance
program administered by the State unemployment compensation agencies
under agreements between the States and the Secretary. QC is a
requirement for all States, initially being applicable to the largest
permanently authorized programs (regular UC including Combined-Wage-
Claims) and federally-funded programs (Unemployment Compensation for Ex-
Servicemembers and Unemployment Compensation for Federal Employees).
Other elements of the QC program (e.g., interstate, extended benefit
programs, benefit denials, and revenue collections) will be phased in
under a schedule determined by the Department in consultation with State
agencies.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Subpart B_Federal Requirements
Sec. 602.10 Federal law requirements.
(a) Section 303(a)(1) of the Social Security Act (SSA), 42 U.S.C.
503(a)(1), requires that a State law include provision for:
Such methods of administration . . . as are found by the Secretary
of Labor to be reasonably calculated to insure full payment of
unemployment compensation when due.
(b) Section 303(a)(6), SSA, 42 U.S.C. 505(a)(6), requires that a
State law include provision for:
The making of such reports, in such form and containing such
information, as the Secretary of Labor may from time to time require,
and compliance with such provisions as the Secretary of Labor may from
time to time find necessary to assure the correctness and verification
of such reports.
(c) Section 303(b), SSA, 42 U.S.C. 503(b), provides in part that:
Whenever the Secretary of Labor, after reasonable notice and
opportunity for hearing to the State agency charged with the
administration of the State law, finds that in the administration of the
law there is--
* * * * *
(2) a failure to comply substantially with any provision specified
in subsection (a);
the Secretary of Labor shall notify such State agency that further
payments will not be made to the State until the Secretary of Labor is
satisfied that there is no longer any such denial or failure to comply.
Until he is so satisfied, he shall make no further certification to the
Secretary of the Treasury with respect to such State . . . .
(d) Certification of payment of granted funds to a State is withheld
only when the Secretary finds, after reasonable notice and opportunity
for hearing to the State agency--
(1) That any provision required by section 303(a) of the Social
Security Act is no longer included in the State UC law, or
(2) That in the administration of the State UC law there has been a
failure to comply substantially with any required provision of such law.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Sec. 602.11 Secretary's interpretation.
(a) The Secretary interprets section 303(a)(1), SSA, to require that
a State law provide for such methods of administration as will
reasonably ensure the prompt and full payment of unemployment benefits
to eligible claimants, and collection and handling of income for the
State unemployment fund (particularly taxes and reimbursements), with
the greatest accuracy feasible.
(b) The Secretary interprets sections 303(a)(1) and 303(a)(6), SSA,
to authorize the Department of Labor to prescribe standard definitions,
methods
[[Page 20]]
and procedures, and reporting requirements for the QC program and to
ensure accuracy and verification of QC findings.
(c) The Secretary interprets section 303(b)(2), SSA to require that,
in the administration of a State law, there shall be substantial
compliance with the provisions required by sections 303(a) (1) and (6).
Further, conformity of the State law with those requirements is required
by section 303(a) and Sec. 601.5(a) of this chapter.
(d) To satisfy the requirements of sections 303(a) (1) and (6), a
State law must contain a provision requiring, or which is construed to
require, the establishment and maintenance of a QC program in accordance
with the requirements of this part. The establishment and maintenance of
such a QC program in accordance with this part shall not require any
change in State law concerning authority to undertake redeterminations
of claims or liabilities or the finality of any determination,
redetermination or decision.
Subpart C_State Responsibilities
Sec. 602.20 Organization.
Each State shall establish a QC unit independent of, and not
accountable to, any unit performing functions subject to evaluation by
the QC unit. The organizational location of this unit shall be
positioned to maximize its objectivity, to facilitate its access to
information necessary to carry out its responsibilities, and to minimize
organizational conflict of interest.
Sec. 602.21 Standard methods and procedures.
Each State shall:
(a) Perform the requirements of this section in accordance with
instructions issued by the Department, pursuant to Sec. 602.30(a) of
this part, to ensure standardization of methods and procedures in a
manner consistent with this part;
(b) Select representative samples for QC study of at least a minimum
size specified by the Department to ensure statistical validity (for
benefit payments, a minimum of 400 cases of weeks paid per State per
year);
(c) Complete prompt and in-depth case investigations to determine
the degree of accuracy and timeliness in the administration of the State
UC law and Federal programs with respect to benefit determinations,
benefit payments, and revenue collections; and conduct other
measurements and studies necessary or appropriate for carrying out the
purposes of this part; and in conducting investigations each State
shall:
(1) Inform claimants in writing that the information obtained from a
QC investigation may affect their eligibility for benefits and inform
employers in writing that the information obtained from a QC
investigation of revenue may affect their tax liability,
(2) Use a questionnaire, prescribed by the Department, which is
designed to obtain such data as the Department deems necessary for the
operation of the QC program; require completion of the questionnaire by
claimants in accordance with the eligibility and reporting authority
under State law,
(3) Collect data identified by the Department as necessary for the
operation of the QC program; however, the collection of demographic data
will be limited to those data which relate to an individual's
eligibility for UC benefits and necessary to conduct proportions tests
to validate the selection of representative samples (the demographic
data elements necessary to conduct proportions tests are claimants' date
of birth, sex, and ethnic classification); and
(4) Conclude all findings of inaccuracy as detected through QC
investigations with appropriate official actions, in accordance with the
applicable State and Federal laws; make any determinations with respect
to individual benefit claims in accordance with the Secretary's
``Standard for Claim Determinations--Separation Information'' in the
Employment Security Manual, part V, sections 6010-6015 (appendix A of
this part);
(d) Classify benefit case findings resulting from QC investigations
as:
(1) Proper payments, underpayments, or overpayments in benefit
payment cases, or
(2) Proper denials or underpayments in benefit denial cases;
(e) Make and maintain records pertaining to the QC program, and make
[[Page 21]]
all such records available in a timely manner for inspection,
examination, and audit by such Federal officials as the Secretary may
designate or as may be required or authorized by law;
(f) Furnish information and reports to the Department, including
weekly transmissions of case data entered into the automated QC system
and annual reports, without, in any manner, identifying individuals to
whom such data pertain; and
(g) Release the results of the QC program at the same time each
year, providing calendar year results using a standardized format to
present the data as prescribed by the Department; States will have the
opportunity to release this information prior to any release by the
Department.
(Approved by the Office of Management and Budget under Control Number
1205-0245)
Sec. 602.22 Exceptions.
If the Department determines that the QC program, or any constituent
part of the QC program, is not necessary for the proper and efficient
administration of a State law or in the Department's view is not cost
effective, the Department shall use established procedures to advise the
State that it is partially or totally excepted from the specified
requirements of this part. Any determination under this section shall be
made only after consultations with the State agency.
Subpart D_Federal Responsibilities
Sec. 602.30 Management.
(a) The Department shall establish required methods and procedures
(as specified in Sec. 602.21 of this part); and provide technical
assistance as needed on the QC process.
(b) The Department shall consider and explore alternatives to the
prescribed sampling, study, recordkeeping, and reporting methodologies.
This shall include, but not be limited to, testing the obtaining of
information needed for QC by telephone and mail rather than in face-to-
face interviews.
(c) The Department shall maintain a computerized data base of QC
case data which is transmitted to the Department under Sec. 602.21,
which will be combined with other data for statistical and other
analysis such as assessing the impact of economic cycles, funding
levels, and workload levels on program accuracy and timeliness.
Sec. 602.31 Oversight.
The Department shall review QC operational procedures and samples,
and validate QC methodology to ensure uniformity in the administration
of the QC program and to ensure compliance with the requirements of this
part. The Department shall, for purposes of determining eligibility for
grants described in Sec. 602.40, annually review the adequacy of the
administration of a State's QC program.
Subpart E_Quality Control Grants to States
Sec. 602.40 Funding.
(a) The Department shall use established procedures to notify States
of the availability of funds for the operation of QC programs in
accordance with this part.
(b) The Department may allocate additional resources, if available,
to States for analysis of data generated by the QC program, to increase
the number of claims sampled in areas where more information is needed,
for pilot studies for the purpose of expanding the QC program, and for
corrective action.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Sec. 602.41 Proper expenditure of Quality Control granted funds.
The Secretary may, after reasonable notice and opportunity for
hearing to the State agency, take exception to and require repayment of
an expenditure for the operation of a QC program if it is found by the
Secretary that such expenditure is not necessary for the proper and
efficient administration of the QC program in the State. See sections
303(a)(8), 303(a)(9) and 303(b)(2), SSA, and 20 CFR 601.5. For purposes
of this section, an expenditure will be
[[Page 22]]
found not necessary for proper and efficient administration if such
expenditure fails to comply with the requirements of subpart C of this
part.
[52 FR 33528, Sept. 3, 1987, as amended at 52 FR 34343, Sept. 10, 1987]
Sec. 602.42 Effect of failure to implement Quality Control program.
Any State which the Secretary finds, after reasonable notice and
opportunity for hearing, has not implemented or maintained a QC program
in accordance with this part will not be eligible for any grants under
title III of the Social Security Act until such time as the Secretary is
satisfied that there is no longer any failure to conform or to comply
substantially with any provision specified in this part. See sections
303(a)(1), 303(a)(6), and 303(b)(2), SSA, and 20 CFR 601.5.
Sec. 602.43 No incentives or sanctions based on specific error rates.
Neither sanctions nor funding incentives shall be used by the
Department to influence the achievement of specified error rates in
State UC programs.
Sec. Appendix A to Part 602--Standard for Claim Determinations--
Separation Information
Employment Security Manual (Part V, Sections 6010-6015)
6010 Federal Law Requirements. Section 303(a)(1) of the Social
Security Act requires that a State law include provision for:
``Such methods of administration . . . as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 303(a)(3) of the Social Security Act requires that a State
law include provision for:
``Opportunity for a fair hearing before an impartial tribunal, for
all individuals whose claims for unemployment compensation are denied.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation. . . .''
Section 3306(h) of the Federal Unemployment Tax Act defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
6011 Secretary's Interpretation of Federal Law Requirements. The
Secretary interprets the above sections to require that a State law
include provisions which will insure that:
A. Individuals who may be entitled to unemployment compensation are
furnished such information as will reasonably afford them an opportunity
to know, establish, and protect their rights under the unemployment
compensation law of such State, and
B. The State agency obtains and records in time for the prompt
determination and review of benefit claims such information as will
reasonably insure the payment of benefits to individuals to whom
benefits are due.
6012 Criteria for Review of State Law Conformity with Federal
Requirements:
In determining the conformity of a State law with the above
requirements of the Federal Unemployment Tax Act and the Social Security
Act as interpreted by the Secretary, the following criteria will be
applied:
A. Is it required that individuals who may be entitled to
unemployment compensation be furnished such information of their
potential rights to benefits, including the manner and places of filing
claims, the reasons for determinations, and their rights of appeal, as
will insure them a reasonable opportunity to know, establish, and
protect their rights under the law of the State?
B. Is the State agency required to obtain, in time for prompt
determination of rights to benefits such information as will reasonably
insure the payment of benefits to individuals to whom benefits are due?
C. Is the State agency required to keep records of the facts
considered in reaching determinations of rights to benefits?
6013 Claim Determinations Requirements Designed To Meet Department
of Labor Criteria:
A. Investigation of claims. The State agency is required to obtain
promptly and prior to a determination of an individual's right to
benefits, such facts pertaining thereto as will be sufficient reasonably
to insure the payment of benefits when due.
This requirement embraces five separate elements:
1. It is the responsibility of the agency to take the initiative in
the discovery of information. This responsibility may not be passed on
to the claimant or the employer. In addition to the agency's own
records, this information may be obtained from the worker, the employer,
or other sources. If the information obtained in the first instance
discloses no essential disagreement and provides a sufficient basis for
a fair determination, no further investigation is necessary. If the
information obtained from other sources differs essentially from that
furnished by the
[[Page 23]]
claimant, the agency, in order to meet its responsibility, is required
to inform the claimant of such information from other sources and to
afford the claimant an opportunity to furnish any further facts he may
have.
2. Evidentiary facts must be obtained as distinguished from ultimate
facts or conclusions. That a worker was discharged for misconduct is an
ultimate fact or conclusion; that he destroyed a machine upon which he
was working is a primary or evidentiary fact, and the sort of fact that
the requirement refers to.
3. The information obtained must be sufficient reasonably to insure
the payment of benefits when due. In general, the investigation made by
the agency must be complete enough to provide information upon which the
agency may act with reasonable assurance that its decision is consistent
with the unemployment compensation law. On the other hand, the
investigation should not be so exhaustive and time-consuming as unduly
to delay the payment of benefits and to result in excessive costs.
4. Information must be obtained promptly so that the payment of
benefits is not unduly delayed.
5. If the State agency requires any particular evidence from the
worker, it must give him a reasonable opportunity to obtain such
evidence.
B. Recording of facts. The agency must keep a written record of the
facts considered in reaching its determinations.
C. Determination notices.
1. The agency must give each claimant a written notice of:
a. Any monetary determination with respect to his benefit year;
b. Any determination with respect to purging a disqualification if,
under the State law, a condition or qualification must be satisfied with
respect to each week of disqualification; but in lieu of giving written
notice of each determination for each week in which it is determined
that the claimant has met the requirements for purging, the agency may
inform the claimant that he has purged the disqualification for a week
by notation of his applicant identification card or otherwise in
writing.
c. Any other determination which adversely affects \1\ his rights to
benefits, except that written notice of determination need not be given
with respect to:
---------------------------------------------------------------------------
\1\ A determination ``adversely affects'' claimant's right to
benefits if it (1) results in a denial to him of benefits (including a
cancellation of benefits or wage credits or any reduction in whole or in
part below the weekly or maximum amount established by his monetary
determination) for any week or other period; or (2) denies credit for a
waiting week; or (3) applies any disqualification or penalty; or (4)
determines that he has not satisfied a condition of eligibility,
requalification for benefits, or purging a disqualification; or (5)
determines that an overpayment has been made or orders repayment or
recoupment of any sum paid to him; or (6) applies a previously
determined overpayment, penalty, or order for repayment or recoupment;
or (7) in any other way denies claimant a right to benefits under the
State law.
---------------------------------------------------------------------------
(1) A week in a benefit year for which the claimant's weekly benefit
amount is reduced in whole or in part by earnings if, the first time in
the benefit year that there is such a reduction, he is required to be
furnished a booklet or leaflet containing the information set forth
below in paragraph 2f(1). However, a written notice of determination is
required if: (a) there is a dispute concerning the reduction with
respect to any week (e.g., as to the amount computed as the appropriate
reduction, etc.); or (b) there is a change in the State law (or in the
application thereof) affecting the reduction; or
(2) Any week in a benefit year subsequent to the first week in such
benefit year in which benefits were denied, or reduced in whole or in
part for reasons other than earnings, if denial or reduction for such
subsequent week is based on the same reason and the same facts as for
the first week, and if written notice of determination is required to be
given to the claimant with respect to such first week, and with such
notice of determination, he is required to be given a booklet or
pamphlet containing the information set forth below in paragraphs 2f(2)
and 2h. However, a written notice of determination is required if: (a)
there is a dispute concerning the denial or reduction of benefits with
respect to such week; or (b) there is a change in the State law (or in
the application thereof) affecting the denial or reduction; or (c) there
is a change in the amount of the reduction except as to the balance
covered by the last reduction in a series of reductions.
Note: This procedure may be applied to determinations made with
respect to any subsequent weeks for the same reason and on the basis of
the same facts: (a) that claimant is unable to work, unavailable for
work, or is disqualified under the labor dispute provision; and (b)
reducing claimant's weekly benefit amount because of income other than
earnings or offset by reason of overpayment.
2. The agency must include in written notices of determinations
furnished to claimants sufficient information to enable them to
understand the determinations, the reasons therefor, and their rights to
protest, request reconsideration, or appeal.
[[Page 24]]
The written notice of monetary determination must contain the
information specified in the following items (except h) unless an item
is specifically not applicable. A written notice of any other
determination must contain the information specified in as many of the
following items as are necessary to enable the claimant to understand
the determination and to inform him of his appeal rights. Information
specifically applicable to the individual claimant must be contained in
the written notice of determination. Information of general application
such as (but not limited to) the explanation of benefits for partial
unemployment, information as to deductions, seasonality factors, and
information as to the manner and place of taking an appeal, extension of
the appeal period, and where to obtain information and assistance may be
contained in a booklet or leaflet which is given the claimant with his
monetary determination.
a. Base period wages. The statement concerning base-period wages
must be in sufficient detail to show the basis of computation of
eligibility and weekly and maximum benefit amounts. (If maximum benefits
are allowed, it may not be necessary to show details of earnings.)
b. Employer name. The name of the employer who reported the wages is
necessary so that the worker may check the wage transcript and know
whether it is correct. If the worker is given only the employer number,
he may not be able to check the accuracy of the wage transcript.
c. Explanation of benefit formula--weekly and maximum benefit
amounts. Sufficient information must be given the worker so that he will
understand how his weekly benefit amount, including allowances for
dependents, and his maximum benefit amount were figured. If benefits are
computed by means of a table contained in the law, the table must be
furnished with the notice of determination whether benefits are granted
or denied.
The written notice of determination must show clearly the weekly
benefit amount and the maximum potential benefits to which the claimant
is entitled.
The notice to a claimant found ineligible by reason of insufficient
earnings in the base period must inform him clearly of the reason for
ineligibility. An explanation of the benefit formula contained in a
booklet or pamphlet should be given to each claimant at or prior to the
time he receives written notice of a monetary determination.
d. Benefit year. An explanation of what is meant by the benefit year
and identification of the claimant's benefit year must be included in
the notice of determination.
e. Information as to benefits for partial unemployment. There must
be included either in the written notice of determination or in a
booklet or pamphlet accompanying the notice an explanation of the
claimant's rights to partial benefits for any week with respect to which
he is working less than his normal customary full-time workweek because
of lack of work and for which he earns less than his weekly benefit
amount or weekly benefit amount plus earnings, whichever is provided by
the State law. If the explanation is contained in the notice of
determination, reference to the item in the notice in which his weekly
benefit amount is entered should be made.
f. Deductions from weekly benefits.
(1) Earnings. Although written notice of determinations deducting
earnings from a claimant's weekly benefit amount is generally not
required (see paragraph 1 c (1) above), where written notice of
determination is required (or given) it shall set forth the amount of
earnings, the method of computing the deduction in sufficient detail to
enable the claimant to verify the accuracy of the deduction, and his
right to protest, request redetermination, and appeal. Where a written
notice of determination is given to the claimant because there has been
a change in the State law or in the application of the law, an
explanation of the change shall be included.
Where claimant is not required to receive a written notice of
determination, he must be given a booklet or pamphlet the first time in
his benefit year that there is a deduction for earnings which shall
include the following information:
(a) The method of computing deductions for earnings in sufficient
detail to enable the claimant to verify the accuracy of the deduction;
(b) That he will not automatically be given a written notice of
determination for a week with respect to which there is a deduction for
earnings (unless there is a dispute concerning the reduction with
respect to a week or there has been a change in the State law or in the
application of the law affecting the deduction) but that he may obtain
such a written notice upon request; and
(c) A clear statement of his right to protest, request a
redetermination, and appeal from any determination deducting earnings
from his weekly benefit amount even though he does not automatically
receive a written notice of determination; and if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
(2) Other deductions.
(a) A written notice of determination is required with respect to
the first week in claimant's benefit year in which there is a reduction
from his benefits for a reason other than earnings. This notice must
describe the deduction made from claimant's weekly benefit amount, the
reason for the
[[Page 25]]
deduction, the method of computing it in sufficient detail to enable him
to verify the accuracy of such deduction, and his right to protest,
request redetermination, or appeal.
(b) A written notice of determination is not required for subsequent
weeks that a deduction is made for the same reason and on the basis of
the same facts, if the notice of determination pursuant to (2)(a), or a
booklet or pamphlet given him with such notice explains (i) the several
kinds of deductions which may be made under the State law (e.g.,
retirement pensions, vacation pay, and overpayments); (ii) the method of
computing each kind of deduction in sufficient detail that claimant will
be able to verify the accuracy of deductions made from his weekly
benefit payments; (iii) any limitation on the amount of any deduction or
the time in which any deduction may be made; (iv) that he will not
automatically be given a written notice of determination for subsequent
weeks with respect to which there is a deduction for the same reason and
on the basis of the same facts, but that he may obtain a written notice
of determination upon request; (v) his right to protest, request
redetermination, or appeal with respect to subsequent weeks for which
there is a reduction from his benefits for the same reason, and on the
basis of the same facts even though he does not automatically receive a
written notice of determination; and (vi) that if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
g. Seasonality factors. If the individual's determination is
affected by seasonality factors under the State law, an adequate
explanation must be made. General explanation of seasonality factors
which may affect determinations for subsequent weeks may be included in
a booklet or pamphlet given claimant with his notice of monetary
determination.
h. Disqualification or ineligibility. If a disqualification is
imposed, or if the claimant is declared ineligible for one or more
weeks, he must be given not only a statement of the period of
disqualification or ineligibility and the amount of wage-credit
reductions, if any, but also an explanation of the reason for the
ineligibility or disqualification. This explanation must be sufficiently
detailed so that he will understand why he is ineligible or why he has
been disqualified, and what he must do in order to requalify for
benefits or purge the disqualification. The statement must be
individualized to indicate the facts upon which the determination was
based, e.g., state, ``It is found that you left your work with Blank
Company because you were tired of working; the separation was voluntary,
and the reason does not constitute good cause,'' rather than merely the
phrase ``voluntary quit.'' Checking a box as to the reason for the
disqualification is not a sufficiently detailed explanation. However,
this statement of the reason for the disqualification need not be a
restatement of all facts considered in arriving at the determination.
i. Appeal rights. The claimant must be given information with
respect to his appeal rights.
(1) The following information shall be included in the notice of
determination:
(a) A statement that he may appeal or, if the State law requires or
permits a protest or redetermination before an appeal, that he may
protest or request a redetermination.
(b) The period within which an appeal, protest, or request for
redetermination must be filed. The number of days provided by statute
must be shown as well as either the beginning date or ending date of the
period. (It is recommended that the ending date of the appeal period be
shown, as this is the more understandable of the alternatives.)
(2) The following information must be included either in the notice
of determination or in separate informational material referred to in
the notice:
(a) The manner in which the appeal, protest, or request for
redetermination must be filed, e.g., by signed letter, written
statement, or on a prescribed form, and the place or places to which the
appeal, protest, or request for redetermination may be mailed or hand-
delivered.
(b) An explanation of any circumstances (such as nonworkdays, good
cause, etc.) which will extend the period for the appeal, protest, or
request for redetermination beyond the date stated or identified in the
notice of determination.
(c) That any further information claimant may need or desire can be
obtained together with assistance in filing his appeal, protest, or
request for redetermination from the local office.
If the information is given in separate material, the notice of
determination would adequately refer to such material if it said, for
example, ``For other information about your (appeal), (protest),
(redetermination) rights, see pages __ to __ of the ____ (name of
pamphlet or booklet) heretofore furnished to you.''
6014 Separation Information Requirements Designed To Meet Department
of Labor Criteria:
A. Information to agency. Where workers are separated, employers are
required to furnish the agency promptly, either upon agency request or
upon such separation, a notice describing the reasons for and the
circumstances of the separation and any additional information which
might affect a claimant's right to benefits. Where workers are working
less than full time, employers are required to furnish the agency
promptly, upon agency request, information concerning
[[Page 26]]
a claimant's hours of work and his wages during the claim periods
involved, and other facts which might affect a claimant's eligibility
for benefits during such periods.
When workers are separated and the notices are obtained on a request
basis, or when workers are working less than full time and the agency
requests information, it is essential to the prompt processing of claims
that the request be sent out promptly after the claim is filed and the
employer be given a specific period within which to return the notice,
preferably within 2 working days.
When workers are separated and notices are obtained upon separation,
it is essential that the employer be required to send the notice to the
agency with sufficient promptness to insure that, if a claim is filed,
it may be processed promptly. Normally, it is desirable that such a
notice be sent to the central office of the agency, since the employer
may not know in which local office the workers will file his claim. The
usual procedure is for the employer to give the worker a copy of the
notice sent by the employer to the agency.
B. Information to worker.
1. Information required to be given. Employers are required to give
their employees information and instructions concerning the employees'
potential rights to benefits and concerning registration for work and
filing claims for benefits.
The information furnished to employees under such a requirement need
not be elaborate; it need only be adequate to insure that the worker who
is separated or who is working less than full time knows he is
potentially eligible for benefits and is informed as to what he is to do
or where he is to go to file his claim and register for work. When he
files his claim, he can obtain more detailed information.
In States that do not require employers to furnish periodically to
the State agency detailed reports of the wages paid to their employees,
each employer is required to furnish to his employees information as to
(a) the name under which he is registered by the State agency, (b) the
address where he maintains his payroll records, and (c) the workers'
need for this information if and when they file claims for benefits.
2. Methods for giving information. The information and instructions
required above may be given in any of the following ways:
a. Posters prominently displayed in the employer's establishment.
The State agency should supply employers with a sufficient number of
posters for distribution throughout their places of business and should
see that the posters are conspicuously displayed at all times.
b. Leaflets. Leaflets distributed either periodically or at the time
of separation or reduction of hours. The State agency should supply
employers with a sufficient number of leaflets.
c. Individual notices. Individual notices given to each employee at
the time of separation or reduction in hours.
It is recommended that the State agency's publicity program be used
to supplement the employer-information requirements. Such a program
should stress the availability and location of claim-filing offices and
the importance of visiting those offices whenever the worker is
unemployed, wishes to apply for benefits, and to seek a job.
6015 Evaluation of Alternative State Provisions with Respect to
Claim Determinations and Separation Information. If the State law
provisions do not conform to the suggested requirements set forth in
sections 6013 and 6014, but the State law contains alternative
provisions, the Bureau of Employment Security, in collaboration with the
State agency, will study the actual or anticipated effects of the
alternative provisions. If the Administrator of the Bureau concludes
that the alternative provisions satisfy the criteria in section 6012, he
will so notify the State agency. If the Administrator of the Bureau does
not so conclude, he will submit the matter to the Secretary. If the
Secretary concludes that the alternative provisions satisfy the criteria
in section 6012, the State agency will be so notified. If the Secretary
concludes that there is a question as to whether the alternative
provisions satisfy the criteria, the State agency will be advised that
unless the State law provisions are appropriately revised, a notice of
hearing will be issued as required by the Code of Federal Regulations,
title 20, section 601.5.
PART 603_FEDERAL-STATE UNEMPLOYMENT COMPENSATION (UC) PROGRAM;
CONFIDENTIALITY AND DISCLOSURE OF STATE UC INFORMATION--Table of Contents
Subpart A_In General
Sec.
603.1 What are the purpose and scope of this part?
603.2 What definitions apply to this part?
Subpart B_Confidentiality and Disclosure Requirements
603.3 What is the purpose and scope of this subpart?
603.4 What is the confidentiality requirement of Federal UC law?
603.5 What are the exceptions to the confidentiality requirement?
603.6 What disclosures are required by this subpart?
[[Page 27]]
603.7 What requirements apply to subpoenas, other compulsory processes,
and disclosure to officials with subpoena authority?
603.8 What are the requirements for payment of costs and program income?
603.9 What safeguards and security requirements apply to disclosed
information?
603.10 What are the requirements for agreements?
603.11 How do States notify claimants and employers about the uses of
their information?
603.12 How are the requirements of this part enforced?
Subpart C_Mandatory Disclosure for Income and Eligibility Verification
System (IEVS)
603.20 What is the purpose and scope of this subpart?
603.21 What is a requesting agency?
603.22 What information must State UC agencies disclose for purposes of
an IEVS?
603.23 What information must State UC agencies obtain from other
agencies, and crossmatch with wage information, for purposes
of an IEVS?
Authority: Secs. 116, 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014); 20 U.S.C 1232g.
Source: 71 FR 56842, Sept. 27, 2006, unless otherwise noted.
Subpart A_In General
Sec. 603.1 What are the purpose and scope of this part?
The purpose of this part is to implement the requirements of Federal
UC law concerning confidentiality and disclosure of UC information. This
part applies to States and State UC agencies, as defined in Sec.
603.2(f) and (g).
Sec. 603.2 What definitions apply to this part?
For the purposes of this part:
(a)(1) Claim information means information about:
(i) Whether an individual is receiving, has received, or has applied
for UC;
(ii) The amount of compensation the individual is receiving or is
entitled to receive; and
(iii) The individual's current (or most recent) home address.
(2) For purposes of subpart C (IEVS), claim information also
includes:
(i) Whether the individual has refused an offer of work and, if so,
a description of the job offered including the terms, conditions, and
rate of pay; and
(ii) Any other information contained in the records of the State UC
agency that is needed by the requesting agency to verify eligibility
for, and the amount of, benefits.
(b) Confidential UC information and confidential information mean
any UC information, as defined in paragraph (j) of this section,
required to be kept confidential under Sec. 603.4.
(c) Public domain information means--
(1) Information about the organization of the State and the State UC
agency and appellate authorities, including the names and positions of
officials and employees thereof;
(2) Information about the State UC law (and applicable Federal law)
provisions, rules, regulations, and interpretations thereof, including
statements of general policy and interpretations of general
applicability; and
(3) Any agreement of whatever kind or nature, including interstate
arrangements and reciprocal agreements and any agreement with the
Department of Labor or the Secretary, relating to the administration of
the State UC law.
(d) Public official means:
(1) An official, agency, or public entity within the executive
branch of Federal, State, or local government who (or which) has
responsibility for administering or enforcing a law, or an elected
official in the Federal, State, or local government.
(2) Public postsecondary educational institutions established and
governed under the laws of the State. These include the following:
(i) Institutions that are part of the State's executive branch. This
means the head of the institution must derive his or her authority from
the Governor, either directly or through a State WDB, commission, or
similar entity established in the executive branch under the laws of the
State.
(ii) Institutions which are independent of the executive branch.
This means the head of the institution derives his or her authority from
the State's chief executive officer for the State education authority or
agency
[[Page 28]]
when such officer is elected or appointed independently of the Governor.
(iii) Publicly governed, publicly funded community and technical
colleges.
(3) Performance accountability and customer information agencies
designated by the Governor of a State to be responsible for coordinating
the assessment of State and local education or workforce training
program performance and/or evaluating education or workforce training
provider performance.
(4) The chief elected official of a local area as defined in WIOA
sec. 3(9).
(5) A State educational authority, agency, or institution as those
terms are used in the Family Educational Rights and Privacy Act, to the
extent they are public entities.
(e) Secretary and Secretary of Labor mean the cabinet officer
heading the United States Department of Labor, or his or her designee.
(f) State means a State of the United States of America, the
District of Columbia, the Commonwealth of Puerto Rico, and the United
States Virgin Islands.
(g) State UC agency means an agency charged with the administration
of the State UC law.
(h) State UC law means the law of a State approved under Section
3304(a) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)).
(i) Unemployment compensation (UC) means cash benefits payable to
individuals with respect to their unemployment.
(j) UC information and State UC information means information in the
records of a State or State UC agency that pertains to the
administration of the State UC law. This term includes those State wage
reports collected under the IEVS (Section 1137 of the Social Security
Act (SSA)) that are obtained by the State UC agency for determining UC
monetary eligibility or are downloaded to the State UC agency's files as
a result of a crossmatch but does not otherwise include those wage
reports. It does not include information in a State's Directory of New
Hires, but does include any such information that has been disclosed to
the State UC agency for use in the UC program. It also does not include
the personnel or fiscal information of a State UC agency.
(k) Wage information means information in the records of a State UC
agency (and, for purposes of Sec. 603.23 (IEVS)), information reported
under provisions of State law which fulfill the requirements of Section
1137, SSA) about the--
(1) Wages paid to an individual,
(2) Social security account number (or numbers, if more than one) of
such individual, and
(3) Name, address, State, and the Federal employer identification
number of the employer who paid such wages to such individual.
[71 FR 56842, Sept. 27, 2006, as amended at 81 FR 56333, Aug. 19, 2016]
Subpart B_Confidentiality and Disclosure Requirements
Sec. 603.3 What is the purpose and scope of this subpart?
This subpart implements the basic confidentiality requirement
derived from Section 303(a)(1), SSA, and the disclosure requirements of
Sections 303(a)(7), (c)(1), (d), (e), (h), and (i), SSA, and Section
3304(a)(16), Federal Unemployment Tax Act (FUTA). This subpart also
establishes uniform minimum requirements for the payment of costs,
safeguards, and data-sharing agreements when UC information is
disclosed, and for conformity and substantial compliance with this
proposed rule. This subpart applies to States and State UC agencies, as
defined in Sec. 603.2(f) and (g), respectively.
Sec. 603.4 What is the confidentiality requirement of Federal UC law?
(a) Statute. Section 303(a)(1) of the SSA (42 U.S.C. 503(a)(1))
provides that, for the purposes of certification of payment of granted
funds to a State under Section 302(a) (42 U.S.C. 502(a)), State law must
include provision for such methods of administration as are found by the
Secretary of Labor to be reasonably calculated to insure full payment of
unemployment compensation when due.
(b) Interpretation. The Department of Labor interprets Section
303(a)(1), SSA, to mean that ``methods of administration'' that are
reasonably calculated to
[[Page 29]]
insure the full payment of UC when due must include provision for
maintaining the confidentiality of any UC information which reveals the
name or any identifying particular about any individual or any past or
present employer or employing unit, or which could foreseeably be
combined with other publicly available information to reveal any such
particulars, and must include provision for barring the disclosure of
any such information, except as provided in this part.
(c) Application. Each State law must contain provisions that are
interpreted and applied consistently with the interpretation in
paragraph (b) of this section and with this subpart, and must provide
penalties for any disclosure of confidential UC information that is
inconsistent with any provision of this subpart.
Sec. 603.5 What are the exceptions to the confidentiality requirement?
The following are exceptions to the confidentiality requirement.
Disclosure of confidential UC information is permissible under the
exceptions in paragraphs (a) through (g) of this section only if
authorized by State law and if such disclosure does not interfere with
the efficient administration of the State UC law. Disclosure of
confidential UC information is permissible under the exceptions in
paragraphs (h) and (i) of this section without such restrictions.
(a) Public domain information. The confidentiality requirement of
Sec. 603.4 does not apply to public domain information, as defined at
Sec. 603.2(c).
(b) UC appeals records. Disclosure of appeals records and decisions,
and precedential determinations on coverage of employers, employment,
and wages, is permissible provided all social security account numbers
have been removed and such disclosure is otherwise consistent with
Federal and State law.
(c) Individual or employer. Disclosure for non-UC purposes, of
confidential UC information about an individual to that individual, or
of confidential UC information about an employer to that employer, is
permissible.
(d) Informed consent. Disclosure of confidential UC information on
the basis of informed consent is permissible in the following
circumstances--
(1) Agent--to one who acts for or in the place of an individual or
an employer by the authority of that individual or employer if--
(i) In general--
(A) The agent presents a written release (which may include an
electronically submitted release that the State determines is authentic)
from the individual or employer being represented;
(B) When a written release is impossible or impracticable to obtain,
the agent presents such other form of consent as is permitted by the
State UC agency in accordance with State law;
(ii) In the case of an elected official performing constituent
services, the official presents reasonable evidence (such as a letter
from the individual or employer requesting assistance or a written
record of a telephone request from the individual or employer) that the
individual or employer has authorized such disclosure; or
(iii) In the case of an attorney retained for purposes related to
the State's UC law, the attorney asserts that he or she is representing
the individual or employer.
(2) Third party (other than an agent) or disclosure made on an
ongoing basis--to a third party that is not acting as an agent or that
receives confidential information following an informed consent
disclosure on an ongoing basis (even if such entity is an agent), but
only if that entity obtains a written release from the individual or
employer to whom the information pertains.
(i) The release must be signed and must include a statement--
(A) Specifically identifying the information that is to be
disclosed;
(B) That State government files will be accessed to obtain that
information;
(C) Of the specific purpose or purposes for which the information is
sought and a statement that information obtained under the release will
only be used for that purpose or purposes; and
(D) Indicating all the parties who may receive the information
disclosed.
(ii) The purpose specified in the release must be limited to--
(A) Providing a service or benefit to the individual signing the
release that
[[Page 30]]
such individual expects to receive as a result of signing the release;
or
(B) Carrying out administration or evaluation of a public program to
which the release pertains.
Note to paragraph (d): The Electronic Signatures in Global and
National Commerce Act of 2000 (E-Sign), Pub. L. 106-229, may apply where
a party wishes to effectuate electronically an informed consent release
(Sec. 603.5(d)(2)) or a disclosure agreement (Sec. 603.10(a)) with an
entity that uses informed consent releases. E-Sign, among other things,
sets forth the circumstances under which electronic signatures,
contracts, and other records relating to such transactions (in lieu of
paper documents) are legally binding. Thus, an electronic communication
may suffice under E-Sign to establish a legally binding contract. The
States will need to consider E-Sign's application to these informed
consent releases and disclosure agreements. In particular, a State must,
to conform and substantially comply with this regulation, assure that
these informed consent releases and disclosure agreements are legally
enforceable. If an informed consent release or disclosure agreement is
to be effectuated electronically, the State must determine whether E-
Sign applies to that transaction, and, if so, make certain that the
transaction satisfies the conditions imposed by E-Sign. The State must
also make certain that the electronic transaction complies with every
other condition necessary to make it legally enforceable.
(e) Public official. Disclosure of confidential UC information to a
public official for use in the performance of his or her official duties
is permissible.
(1) ``Performance of official duties'' means administration or
enforcement of law or the execution of the official responsibilities of
a Federal, State, or local elected official. Administration of law
includes research related to the law administered by the public
official. Execution of official responsibilities does not include
solicitation of contributions or expenditures to or on behalf of a
candidate for public or political office or a political party.
(2) For purposes of Sec. 603.2(d)(2) through (5), ``performance of
official duties'' includes, in addition to the activities set out in
paragraph (e)(1) of this section, use of the confidential UC information
for the following limited purposes:
(i) State and local performance accountability under WIOA sec. 116,
including eligible training provider performance accountability under
WIOA secs. 116(d) and 122;
(ii) The requirements of discretionary Federal grants awarded under
WIOA; or
(iii) As otherwise required for education or workforce training
program performance accountability and reporting under Federal or State
law.
(f) Agent or contractor of public official. Disclosure of
confidential UC information to an agent or contractor of a public
official to whom disclosure is permissible under paragraph (e) of this
section.
(g) Bureau of Labor Statistics. The confidentiality requirement does
not apply to information collected exclusively for statistical purposes
under a cooperative agreement with the Bureau of Labor Statistics (BLS).
Further, this part does not restrict or impose any condition on the
transfer of any other information to the BLS under an agreement, or the
BLS's disclosure or use of such information.
(h) Court order; official with subpoena authority. Disclosure of
confidential UC information in response to a court order or to an
official with subpoena authority is permissible as specified in Sec.
603.7(b).
(i) UC Program Oversight and Audits. The confidentiality requirement
does not apply to any disclosure to a Federal official for purposes of
UC program oversight and audits, including disclosures under 20 CFR part
601 and 29 CFR parts 96 and 97.
[71 FR 56842, Sept. 27, 2006, as amended at 81 FR 56333, Aug. 19, 2016]
Sec. 603.6 What disclosures are required by this subpart?
(a) The confidentiality requirement of 303(a)(1), SSA, and Sec.
603.4 are not applicable to this paragraph (a) and the Department of
Labor interprets Section 303(a)(1), SSA, as requiring disclosure of all
information necessary for the proper administration of the UC program.
This includes disclosures to claimants, employers, the Internal Revenue
Service (for purposes of UC tax administration), and the U.S.
Citizenship and Immigration Services (for purposes of verifying a
claimant's immigration status).
[[Page 31]]
(b) In addition to Section 303(f), SSA (concerning an IEVS), which
is addressed in subpart C, the following provisions of Federal UC law
also specifically require disclosure of State UC information and State-
held information pertaining to the Federal UC and benefit programs of
Unemployment Compensation for Federal Employees (UCFE), Unemployment
Compensation for Ex-Servicemembers (UCX), Trade Adjustment Assistance
(TAA) (except for confidential business information collected by
States), Disaster Unemployment Assistance (DUA), and any Federal UC
benefit extension program:
(1) Section 303(a)(7), SSA, requires State law to provide for making
available, upon request, to any agency of the United States charged with
the administration of public works or assistance through public
employment, disclosure of the following information with respect to each
recipient of UC--
(i) Name;
(ii) Address;
(iii) Ordinary occupation;
(iv) Employment status; and
(v) A statement of such recipient's rights to further compensation
under the State law.
(2) Section 303(c)(1), SSA, requires each State to make its UC
records available to the Railroad Retirement Board, and to furnish such
copies of its UC records to the Railroad Retirement Board as the Board
deems necessary for its purposes.
(3) Section 303(d)(1), SSA, requires each State UC agency, for
purposes of determining an individual's eligibility benefits, or the
amount of benefits, under a food stamp program established under the
Food Stamp Act of 1977, to disclose, upon request, to officers and
employees of the Department of Agriculture, and to officers or employees
of any State food stamp agency, any of the following information
contained in the records of the State UC agency--
(i) Wage information,
(ii) Whether an individual is receiving, has received, or has made
application for, UC, and the amount of any such compensation being
received, or to be received, by such individual,
(iii) The current (or most recent) home address of such individual,
and
(iv) Whether an individual has refused an offer of employment and,
if so, a description of the employment so offered and the terms,
conditions, and rate of pay therefore.
(4) Section 303(e)(1), SSA, requires each State UC agency to
disclose, upon request, directly to officers or employees of any State
or local child support enforcement agency, any wage information
contained in the records of the State UC agency for purposes of
establishing and collecting child support obligations (not to include
custodial parent support obligations) from, and locating, individuals
owing such obligations.
(5) Section 303(h), SSA, requires each State UC agency to disclose
quarterly, to the Secretary of Health and Human Services (HHS), wage
information and claim information as required under Section 453(i)(1) of
the SSA (establishing the National Directory of New Hires), contained in
the records of such agency, for purposes of Subsections (i)(1), (i)(3),
and (j) of Section 453, SSA (establishing the National Directory of New
Hires and its uses for purposes of child support enforcement, Temporary
Assistance to Needy Families (TANF), TANF research, administration of
the earned income tax credit, and use by the Social Security
Administration).
(6) Section 303(i), SSA, requires each State UC agency to disclose,
upon request, to officers or employees of the Department of Housing and
Urban Development (HUD) and to representatives of a public housing
agency, for purposes of determining an individual's eligibility for
benefits, or the amount of benefits, under a housing assistance program
of HUD, any of the following information contained in the records of
such State agency about any individual applying for or participating in
any housing assistance program administered by HUD who has signed a
consent form approved by the Secretary of HUD--
(i) Wage information, and
(ii) Whether the individual is receiving, has received, or has made
application for, UC, and the amount of any such compensation being
received (or to be received) by such individual.
(7) Section 3304(a)(16), FUTA requires each State UC agency--
[[Page 32]]
(i) To disclose, upon request, to any State or political subdivision
thereof administering a Temporary Assistance to Needy Families Agency
(TANF) program funded under part A of Title IV of the SSA, wage
information contained in the records of the State UC agency which is
necessary (as determined by the Secretary of HHS in regulations) for
purposes of determining an individual's eligibility for TANF assistance
or the amount of TANF assistance; and
(ii) To furnish to the Secretary of HHS, in accordance with that
Secretary's regulations at 45 CFR 303.108, wage information (as defined
at 45 CFR 303.108(a)(2)) and UC information (as defined at 45 CFR
303.108(a)(3)) contained in the records of such agency for the purposes
of the National Directory of New Hires established under Section 453(i)
of the SSA.
(8) To comply with WIOA sec. 116(e)(4), States must, to the extent
practicable, cooperate in the conduct of evaluations (including related
research projects) provided for by the Secretary of Labor or the
Secretary of Education under the provisions of Federal law identified in
WIOA sec. 116(e)(1); WIOA secs. 169 and 242(c)(2)(D); sec. 12(a)(5), 14,
and 107 of the Rehabilitation Act of 1973 (29 U.S.C. 709(a)(5), 711,
727) (applied with respect to programs carried out under title I of that
Act (29 U.S.C. 720 et seq.)); and the investigations provided for by the
Secretary of Labor under sec. 10(b) of the Wagner-Peyser Act (29 U.S.C.
49i(b)). For purposes of this part, States must disclose confidential UC
information to a Federal official (or an agent or contractor of a
Federal official) requesting such information in the course of such
evaluations. This disclosure must be done in accordance with appropriate
privacy and confidentiality protections established in this part. This
disclosure must be made to the ``extent practicable'', which means that
the disclosure would not interfere with the efficient administration of
the State UC law, as required by Sec. 603.5.
(c) Each State law must contain provisions that are interpreted and
applied consistently with the requirements listed in this section.
[71 FR 56842, Sept. 27, 2006, as amended at 81 FR 56333, Aug. 19, 2016]
Sec. 603.7 What requirements apply to subpoenas, other compulsory
processes, and disclosure to officials with subpoena authority?
(a) In general. Except as provided in paragraph (b) of this section,
when a subpoena or other compulsory process is served upon a State UC
agency or the State, any official or employee thereof, or any recipient
of confidential UC information, which requires the production of
confidential UC information or appearance for testimony upon any matter
concerning such information, the State or State UC agency or recipient
must file and diligently pursue a motion to quash the subpoena or other
compulsory process if other means of avoiding the disclosure of
confidential UC information are not successful or if the court has not
already ruled on the disclosure. Only if such motion is denied by the
court or other forum may the requested confidential UC information be
disclosed, and only upon such terms as the court or forum may order,
such as that the recipient protect the disclosed information and pay the
State's or State UC agency's costs of disclosure.
(b) Exceptions. The requirement of paragraph (a) of this section to
move to quash subpoenas shall not be applicable, so that disclosure is
permissible, where--
(1) Court Decision--a subpoena or other compulsory legal process has
been served and a court has previously issued a binding precedential
decision that requires disclosures of this type, or a well-established
pattern of prior court decisions have required disclosures of this type,
or
(2) Official with subpoena authority--Confidential UC information
has been subpoenaed, by a local, State or Federal governmental official,
other than a clerk of court on behalf of a litigant, with authority to
obtain such information by subpoena under State or Federal law. The
State or State UC agency may choose to disclose such confidential UC
information to these officials without the actual issuance of a
subpoena.
[[Page 33]]
Sec. 603.8 What are the requirements for payment of costs and program
income?
(a) In general. Except as provided in paragraph (b) of this section,
grant funds must not be used to pay any of the costs of making any
disclosure of UC information. Grant funds may not be used to pay any of
the costs of making any disclosures under Sec. 603.5(d)(2) (third party
(other than an agent) or disclosure made on an ongoing basis), Sec.
603.5(e) (optional disclosure to a public official), Sec. 603.5(f)
(optional disclosure to an agent or contractor of a public official),
and Sec. 603.5(g) (optional disclosure to BLS), Sec. 603.6(b)
(mandatory disclosures for non-UC purposes), or Sec. 603.22 (mandatory
disclosure for purposes of an IEVS).
(b) Use of grant funds permitted. Grant funds paid to a State under
Section 302(a), SSA, may be used to pay the costs of only those
disclosures necessary for proper administration of the UC program. (This
may include some disclosures under Sec. 603.5(a) (concerning public
domain information), Sec. 603.5(c) (to an individual or employer), and
Sec. 603.5(d)(1) (to an agent).) In addition, grant funds may be used
to pay costs of disclosures under Sec. 603.5(i) (for UC Program
Oversight and Audits) and Sec. 603.6(a) (for the proper administration
of the UC program). Grant funds may also be used to pay costs associated
with disclosures under Sec. 603.7(b)(1) (concerning court-ordered
compliance with subpoenas) if a court has denied recovery of costs, or
to pay costs associated with disclosures under Sec. 603.7(b)(2) (to
officials with subpoena authority) if the State UC agency has attempted
but not been successful in obtaining reimbursement of costs. Finally,
grant funds may be used to pay costs associated with any disclosure of
UC information if not more than an incidental amount of staff time and
no more than nominal processing costs are involved in making the
disclosure.
(c) Calculation of costs. The costs to a State or State UC agency of
processing and handling a request for disclosure of information must be
calculated in accordance with the cost principles and administrative
requirements of 29 CFR part 97 and Office of Management and Budget
Circular No. A-87 (Revised). For the purpose of calculating such costs,
any initial start-up costs incurred by the State UC agency in
preparation for making the requested disclosure(s), such as computer
reprogramming necessary to respond to the request, and the costs of
implementing safeguards and agreements required by Sec. Sec. 603.9 and
603.10, must be charged to and paid by the recipient. (Start-up costs do
not include the costs to the State UC agency of obtaining, compiling, or
maintaining information for its own purposes.) Postage or other delivery
costs incurred in making any disclosure are part of the costs of making
the disclosure. Penalty mail, as defined in 39 U.S.C. 3201(1), must not
be used to transmit information being disclosed, except information
disclosed for purposes of administration of State UC law. As provided in
Sections 453(e)(2) and 453(g) of the SSA, the Secretary of HHS has the
authority to determine what constitutes a reasonable amount for the
reimbursement for disclosures under Section 303(h), SSA, and Section
3304(a)(16)(B), FUTA.
(d) Payment of costs. The costs to a State or State UC agency of
making a disclosure of UC information, calculated in accordance with
paragraph (c) of this section, must be paid by the recipient of the
information or another source paying on behalf of the recipient, either
in advance or by way of reimbursement. If the recipient is not a public
official, such costs, except for good reason must be paid in advance.
For the purposes of this paragraph (d), payment in advance means full
payment of all costs before or at the time the disclosed information is
given in hand or sent to the recipient. The requirement of payment of
costs in this paragraph is met when a State UC agency has in place a
reciprocal cost agreement or arrangement with the recipient. As used in
this section, reciprocal means that the relative benefits received by
each are approximately equal. Payment or reimbursement of costs must
include any initial start-up costs associated with making the
disclosure.
(e) Program income. Costs paid as required by this section, and any
funds generated by the disclosure of UC information under this part, are
program
[[Page 34]]
income and may be used only as permitted by 29 CFR 97.25(g) (on program
income). Such income may not be used to benefit a State's general fund
or other program.
Sec. 603.9 What safeguards and security requirements apply to disclosed
information?
(a) In general. For disclosures of confidential UC information under
Sec. 603.5(d)(2) (to a third party (other than an agent) or disclosures
made on an ongoing basis); Sec. 603.5(e) (to a public official), except
as provided in paragraph (d) of this section; Sec. 603.5(f) (to an
agent or contractor of a public official); Sec. 603.6(b)(1) through
(4), (6), and (7)(i) (as required by Federal UC law); and Sec. 603.22
(to a requesting agency for purposes of an IEVS), a State or State UC
agency must require the recipient to safeguard the information disclosed
against unauthorized access or redisclosure, as provided in paragraphs
(b) and (c) of this section, and must subject the recipient to penalties
provided by the State law for unauthorized disclosure of confidential UC
information.
(b) Safeguards to be required of recipients. (1) The State or State
UC agency must:
(i) Require the recipient to use the disclosed information only for
purposes authorized by law and consistent with an agreement that meets
the requirements of Sec. 603.10;
(ii) Require the recipient to store the disclosed information in a
place physically secure from access by unauthorized persons;
(iii) Require the recipient to store and process disclosed
information maintained in electronic format, such as magnetic tapes or
discs, in such a way that unauthorized persons cannot obtain the
information by any means;
(iv) Require the recipient to undertake precautions to ensure that
only authorized personnel are given access to disclosed information
stored in computer systems;
(v) Require each recipient agency or entity to:
(A) Instruct all personnel having access to the disclosed
information about confidentiality requirements, the requirements of this
subpart B, and the sanctions specified in the State law for unauthorized
disclosure of information, and
(B) Sign an acknowledgment that all personnel having access to the
disclosed information have been instructed in accordance with paragraph
(b)(1)(v)(A) of this section and will adhere to the State's or State UC
agency's confidentiality requirements and procedures which are
consistent with this subpart B and the agreement required by Sec.
603.10, and agreeing to report any infraction of these rules to the
State UC agency fully and promptly,
(vi) Require the recipient to dispose of information disclosed or
obtained, and any copies thereof made by the recipient agency, entity,
or contractor, after the purpose for which the information is disclosed
is served, except for disclosed information possessed by any court.
Disposal means return of the information to the disclosing State or
State UC agency or destruction of the information, as directed by the
State or State UC agency. Disposal includes deletion of personal
identifiers by the State or State UC agency in lieu of destruction. In
any case, the information disclosed must not be retained with personal
identifiers for longer than such period of time as the State or State UC
agency deems appropriate on a case-by-case basis; and
(vii) Maintain a system sufficient to allow an audit of compliance
with the requirements of this part.
(2) In the case of disclosures made under Sec. 603.5(d)(2) (to a
third party (other than an agent) or disclosures made on an ongoing
basis), the State or State UC agency must also--
(i) Periodically audit a sample of transactions accessing
information disclosed under that section to assure that the entity
receiving disclosed information has on file a written release
authorizing each access. The audit must ensure that the information is
not being used for any unauthorized purpose;
(ii) Ensure that all employees of entities receiving access to
information disclosed under Sec. 603.5(d)(2) are subject to the same
confidentiality requirements, and State criminal penalties for
[[Page 35]]
violation of those requirements, as are employees of the State UC
agency.
(c) Redisclosure of confidential UC information. (1) A State or
State UC agency may authorize any recipient of confidential UC
information under paragraph (a) of this section to redisclose
information only as follows:
(i) To the individual or employer who is the subject of the
information;
(ii) To an attorney or other duly authorized agent representing the
individual or employer;
(iii) In any civil or criminal proceedings for or on behalf of a
recipient agency or entity;
(iv) In response to a subpoena only as provided in Sec. 603.7;
(v) To an agent or contractor of a public official only if the
person redisclosing is a public official, if the redisclosure is
authorized by the State law, and if the public official retains
responsibility for the uses of the confidential UC information by the
agent or contractor;
(vi) From one public official to another if the redisclosure is
authorized by the State law;
(vii) When so authorized by Section 303(e)(5), SSA, (redisclosure of
wage information by a State or local child support enforcement agency to
an agent under contract with such agency for purposes of carrying out
child support enforcement) and by State law; or
(viii) When specifically authorized by a written release that meets
the requirements of Sec. 603.5(d) (to a third party with informed
consent).
(2) Information redisclosed under paragraphs (c)(1)(v) and (vi) of
this section must be subject to the safeguards in paragraph (b) of this
section.
(d) The requirements of this section do not apply to disclosures of
UC information to a Federal agency which the Department has determined,
by notice published in the Federal Register, to have in place safeguards
adequate to satisfy the confidentiality requirement of Section
303(a)(1), SSA.
Sec. 603.10 What are the requirements for agreements?
(a) Requirements. (1) For disclosures of confidential UC information
under Sec. 603.5(d)(2) (to a third party (other than an agent) or
disclosures made on an ongoing basis); Sec. 603.5(e) (to a public
official), except as provided in paragraph (d) of this section; Sec.
603.5(f) (to an agent or contractor of a public official); Sec.
603.6(b)(1) through (4), (6), and (7)(i) (as required by Federal UC
law); and Sec. 603.22 (to a requesting agency for purposes of an IEVS),
a State or State UC agency must enter into a written, enforceable
agreement with any agency or entity requesting disclosure(s) of such
information. The agreement must be terminable if the State or State UC
agency determines that the safeguards in the agreement are not adhered
to.
(2) For disclosures referred to in Sec. 603.5(f) (to an agent or
contractor of a public official), the State or State UC agency must
enter into a written, enforceable agreement with the public official on
whose behalf the agent or contractor will obtain information. The
agreement must hold the public official responsible for ensuring that
the agent or contractor complies with the safeguards of Sec. 603.9. The
agreement must be terminable if the State or State UC agency determines
that the safeguards in the agreement are not adhered to.
(b) Contents of agreement--(1) In general. Any agreement required by
paragraph (a) of this section must include, but need not be limited to,
the following terms and conditions:
(i) A description of the specific information to be furnished and
the purposes for which the information is sought;
(ii) A statement that those who request or receive information under
the agreement will be limited to those with a need to access it for
purposes listed in the agreement;
(iii) The methods and timing of requests for information and
responses to those requests, including the format to be used;
(iv) Provision for paying the State or State UC agency for any costs
of furnishing information, as required by Sec. 603.8 (on costs);
(v) Provision for safeguarding the information disclosed, as
required by Sec. 603.9 (on safeguards); and
(vi) Provision for on-site inspections of the agency, entity, or
contractor, to assure that the requirements of the
[[Page 36]]
State's law and the agreement or contract required by this section are
being met.
(2) In the case of disclosures under Sec. 603.5(d)(2) (to a third
party (other than an agent) or disclosures made on an ongoing basis),
the agreement required by paragraph (a) of this section must assure that
the information will be accessed by only those entities with
authorization under the individual's or employer's release, and that it
may be used only for the specific purposes authorized in that release.
(c) Breach of agreement--(1) In general. If an agency, entity, or
contractor, or any official, employee, or agent thereof, fails to comply
with any provision of an agreement required by this section, including
timely payment of the State's or State UC agency's costs billed to the
agency, entity, or contractor, the agreement must be suspended, and
further disclosure of information (including any disclosure being
processed) to such agency, entity, or contractor is prohibited, until
the State or State UC agency is satisfied that corrective action has
been taken and there will be no further breach. In the absence of prompt
and satisfactory corrective action, the agreement must be canceled, and
the agency, entity, or contractor must be required to surrender to the
State or State UC agency all confidential UC information (and copies
thereof) obtained under the agreement which has not previously been
returned to the State or State UC agency, and any other information
relevant to the agreement.
(2) Enforcement. In addition to the actions required to be taken by
paragraph (c)(1) of this section, the State or State UC agency must
undertake any other action under the agreement, or under any law of the
State or of the United States, to enforce the agreement and secure
satisfactory corrective action or surrender of the information, and must
take other remedial actions permitted under State or Federal law to
effect adherence to the requirements of this subpart B, including
seeking damages, penalties, and restitution as permitted under such law
for any charges to granted funds and all costs incurred by the State or
the State UC agency in pursuing the breach of the agreement and
enforcement as required by this paragraph (c).
(d) The requirements of this section do not apply to disclosures of
UC information to a Federal agency which the Department has determined,
by notice published in the Federal Register, to have in place safeguards
adequate to satisfy the confidentiality requirement of Section
303(a)(1), SSA, and an appropriate method of paying or reimbursing the
State UC agency (which may involve a reciprocal cost arrangement) for
costs involved in such disclosures. These determinations will be
published in the Federal Register.
Sec. 603.11 How do States notify claimants and employers about the
uses of their information?
(a) Claimants. Every claimant for compensation must be notified, at
the time of application, and periodically thereafter, that confidential
UC information pertaining to the claimant may be requested and utilized
for other governmental purposes, including, but not limited to,
verification of eligibility under other government programs. Notice on
or attached to subsequent additional claims will satisfy the requirement
for periodic notice thereafter.
(b) Employers. Every employer subject to a State's law must be
notified that wage information and other confidential UC information may
be requested and utilized for other governmental purposes, including,
but not limited to, verification of an individual's eligibility for
other government programs.
Sec. 603.12 How are the requirements of this part enforced?
(a) Resolving conformity and compliance issues. For the purposes of
resolving issues of conformity and substantial compliance with the
requirements set forth in subparts B and C, the provisions of 20 CFR
601.5(b) (informal discussions with the Department of Labor to resolve
conformity and substantial compliance issues), and 20 CFR 601.5(d)
(Secretary of Labor's hearing and decision on conformity and substantial
compliance) apply.
(b) Conformity and substantial compliance. Whenever the Secretary of
Labor, after reasonable notice and opportunity for a hearing to the
State UC
[[Page 37]]
agency of a State, finds that the State law fails to conform, or that
the State or State UC agency fails to comply substantially, with:
(1) The requirements of Title III, SSA, implemented in subparts B
and C of this part, the Secretary of Labor shall notify the Governor of
the State and such State UC agency that further payments for the
administration of the State UC law will not be made to the State until
the Secretary of Labor is satisfied that there is no longer any such
failure. Until the Secretary of Labor is so satisfied, the Department of
Labor shall make no further payments to such State.
(2) The FUTA requirements implemented in this subpart B, the
Secretary of Labor shall make no certification under that section to the
Secretary of the Treasury for such State as of October 31 of the 12-
month period for which such finding is made.
Subpart C_Mandatory Disclosure for Income and Eligibility Verification
System (IEVS)
Sec. 603.20 What is the purpose and scope of this subpart?
(a) Purpose. Subpart C implements Section 303(f), SSA. Section
303(f) requires States to have in effect an income and eligibility
verification system, which meets the requirements of Section 1137, SSA,
under which information is requested and exchanged for the purpose of
verifying eligibility for, and the amount of, benefits available under
several federally assisted programs, including the Federal-State UC
program.
(b) Scope. This subpart C applies only to a State UC agency.
Note to paragraph (b): Although not implemented in this part 603,
Section 1137(a)(1), SSA, provides that each State must require claimants
for compensation to furnish to the State UC agency their social security
account numbers, as a condition of eligibility for compensation, and
further requires States to utilize such account numbers in the
administration of the State UC laws. Section 1137(a)(3), SSA, further
provides that employers must make quarterly wage reports to a State UC
agency, or an alternative agency, for use in verifying eligibility for,
and the amount of, benefits. Section 1137(d)(1), SSA, provides that each
State must require claimants for compensation, as a condition of
eligibility, to declare in writing, under penalty of perjury, whether
the individual is a citizen or national of the United States, and, if
not, that the individual is in a satisfactory immigration status. Other
provisions of Section 1137(d), SSA, not implemented in this regulation
require the States to obtain, and individuals to furnish, information
which shows immigration status, and require the States to verify
immigration status with the Bureau of Citizenship and Immigration
Services.
Sec. 603.21 What is a requesting agency?
For the purposes of this subpart C, requesting agency means:
(a) Temporary Assistance to Needy Families Agency--Any State or
local agency charged with the responsibility of administering a program
funded under part A of Title IV of the SSA.
(b) Medicaid Agency--Any State or local agency charged with the
responsibility of administering the provisions of the Medicaid program
under a State plan approved under Title XIX of the SSA.
(c) Food Stamp Agency--Any State or local agency charged with the
responsibility of administering the provisions of the Food Stamp Program
under the Food Stamp Act of 1977.
(d) Other SSA Programs Agency--Any State or local agency charged
with the responsibility of administering a program under a State plan
approved under Title I, X, XIV, or XVI (Supplemental Security Income for
the Aged, Blind, and Disabled) of the SSA.
(e) Child Support Enforcement Agency--Any State or local child
support enforcement agency charged with the responsibility of enforcing
child support obligations under a plan approved under part D of Title IV
of the SSA.
(f) Social Security Administration--Commissioner of the Social
Security Administration in establishing or verifying eligibility or
benefit amounts under Titles II (Old-Age, Survivors, and Disability
Insurance Benefits) and XVI (Supplemental Security Income for the Aged,
Blind, and Disabled) of the SSA.
Sec. 603.22 What information must State UC agencies disclose for
purposes of an IEVS?
(a) Disclosure of information. Each State UC agency must disclose,
upon request, to any requesting agency, as
[[Page 38]]
defined in Sec. 603.21, that has entered into an agreement required by
Sec. 603.10, wage information (as defined at Sec. 603.2(k)) and claim
information (as defined at Sec. 603.2(a)) contained in the records of
such State UC agency.
(b) Format. The State UC agency must adhere to standardized formats
established by the Secretary of HHS (in consultation with the Secretary
of Agriculture) and set forth in 42 CFR 435.960 (concerning standardized
formats for furnishing and obtaining information to verify income and
eligibility).
Sec. 603.23 What information must State UC agencies obtain from other
agencies, and crossmatch with wage information, for purposes of an IEVS?
(a) Crossmatch with information from requesting agencies. Each State
UC agency must obtain such information from the Social Security
Administration and any requesting agency as may be needed in verifying
eligibility for, and the amount of, compensation payable under the State
UC law.
(b) Crossmatch of wage and benefit information. The State UC agency
must crossmatch quarterly wage information with UC payment information
to the extent that such information is likely, as determined by the
Secretary of Labor, to be productive in identifying ineligibility for
benefits and preventing or discovering incorrect payments.
PART 604_REGULATIONS FOR ELIGIBILITY FOR UNEMPLOYMENT COMPENSATION-
-Table of Contents
Sec.
604.1 Purpose and scope.
604.2 Definitions.
604.3 Able and available requirement--general principles.
604.4 Application--ability to work.
604.5 Application--availability for work.
604.6 Conformity and substantial compliance.
Authority: 42 U.S.C. 1302(a); 42 U.S.C. 503(a)(2) and (5); 26 U.S.C.
3304(a)(1) and (4); 26 U.S.C. 3306(h); 42 U.S.C. 1320b-7(d); Secretary's
Order No. 4-75 (40 FR 18515); and Secretary's Order No. 14-75 (November
12, 1975).
Source: 72 FR 1893, Jan. 16, 2007, unless otherwise noted.
Sec. 604.1 Purpose and scope.
The purpose of this Part is to implement the requirements of Federal
UC law that limit a State's payment of UC to individuals who are able to
work and available for work. This regulation applies to all State UC
laws and programs.
Sec. 604.2 Definitions.
(a) Department means the United States Department of Labor.
(b) FUTA means the Federal Unemployment Tax Act, 26 U.S.C. 3301 et
seq.
(c) Social Security Act means the Social Security Act, 42 U.S.C. 501
et seq.
(d) State means a State of the United States of America, the
District of Columbia, the Commonwealth of Puerto Rico, and the United
States Virgin Islands.
(e) State UC agency means the agency of the State charged with the
administration of the State's UC law.
(f) State UC law means the law of a State approved under Section
3304(a), FUTA (26 U.S.C. 3304(a)).
(g) Unemployment Compensation (UC) means cash benefits payable to
individuals with respect to their unemployment.
(h) Week of unemployment means a week of total, part-total or
partial unemployment as defined in the State's UC law.
Sec. 604.3 Able and available requirement--general principles.
(a) A State may pay UC only to an individual who is able to work and
available for work for the week for which UC is claimed.
(b) Whether an individual is able to work and available for work
under paragraph (a) of this section must be tested by determining
whether the individual is offering services for which a labor market
exists. This requirement does not mean that job vacancies must exist,
only that, at a minimum, the type of services the individual is able and
available to perform is generally performed in the labor market. The
State must determine the geographical scope of the labor market for an
individual under its UC law.
(c) The requirement that an individual be able to work and available
for
[[Page 39]]
work applies only to the week of unemployment for which UC is claimed.
It does not apply to the reasons for the individual's separation from
employment, although the separation may indicate the individual was not
able to work or available for work during the week the separation
occurred. This Part does not address the authority of States to impose
disqualifications with respect to separations. This Part does not limit
the States' ability to impose additional able and available requirements
that are consistent with applicable Federal laws.
Sec. 604.4 Application--ability to work.
(a) A State may consider an individual to be able to work during the
week of unemployment claimed if the individual is able to work for all
or a portion of the week claimed, provided any limitation on his or her
ability to work does not constitute a withdrawal from the labor market.
(b) If an individual has previously demonstrated his or her ability
to work and availability for work following the most recent separation
from employment, the State may consider the individual able to work
during the week of unemployment claimed despite the individual's illness
or injury, unless the individual has refused an offer of suitable work
due to such illness or injury.
Sec. 604.5 Application--availability for work.
(a) General application. A State may consider an individual to be
available for work during the week of unemployment claimed under any of
the following circumstances:
(1) The individual is available for any work for all or a portion of
the week claimed, provided that any limitation placed by the individual
on his or her availability does not constitute a withdrawal from the
labor market.
(2) The individual limits his or her availability to work which is
suitable for such individual as determined under the State UC law,
provided the State law definition of suitable work does not permit the
individual to limit his or her availability in such a way that the
individual has withdrawn from the labor market. In determining whether
the work is suitable, States may, among other factors, take into
consideration the education and training of the individual, the
commuting distance from the individual's home to the job, the previous
work history of the individual (including salary and fringe benefits),
and how long the individual has been unemployed.
(3) The individual is on temporary lay-off and is available to work
only for the employer that has temporarily laid-off the individual.
(b) Jury service. If an individual has previously demonstrated his
or her availability for work following the most recent separation from
employment and is appearing for duty before any court under a lawfully
issued summons during the week of unemployment claimed, a State may
consider the individual to be available for work. For such an
individual, attendance at jury duty may be taken as evidence of
continued availability for work. However, if the individual does not
appear as required by the summons, the State must determine if the
reason for non-attendance indicates that the individual is not able to
work or is not available for work.
(c) Approved training. A State must not deny UC to an individual for
failure to be available for work during a week if, during such week, the
individual is in training with the approval of the State agency.
However, if the individual fails to attend or otherwise participate in
such training, the State must determine if the reason for non-attendance
or non-participation indicates that the individual is not able to work
or is not available for work.
(d) Self-employment assistance. A State must not deny UC to an
individual for failure to be available for work during a week if, during
such week, the individual is participating in a self-employment
assistance program and meets all the eligibility requirements of such
self-employment assistance program.
(e) Short-time compensation. A State must not deny UC to an
individual participating in a short-time compensation (also known as
worksharing) program under State UC law for failure to be available for
work during a week, but such individual will be required to
[[Page 40]]
be available for his or her normal workweek.
(f) Alien status. To be considered available for work in the United
States for a week, the alien must be legally authorized to work that
week in the United States by the appropriate agency of the United States
government. In determining whether an alien is legally authorized to
work in the United States, the State must follow the requirements of
section 1137(d) of the SSA (42 U.S.C. 1320b-7(d)), which relate to
verification of and determination of an alien's status.
(g) Relation to ability to work requirement. A State may consider an
individual available for work if the State finds the individual able to
work under Sec. 604.4(b) despite illness or injury.
(h) Work search. The requirement that an individual be available for
work does not require an active work search on the part of the
individual. States may, however, require an individual to be actively
seeking work to be considered available for work, or States may impose a
separate requirement that the individual must actively seek work.
Sec. 604.6 Conformity and substantial compliance.
(a) In general. A State's UC law must conform with, and the
administration of its law must substantially comply with, the
requirements of this regulation for purposes of certification under:
(1) Section 3304(c) of the FUTA (26 U.S.C. 3304(c)), with respect to
whether employers are eligible to receive credit against the Federal
unemployment tax established by section 3301 of the FUTA (26 U.S.C.
3301), and
(2) Section 302 of the SSA (42 U.S.C. 502), with respect to whether
a State is eligible to receive Federal grants for the administration of
its UC program.
(b) Resolving Issues of Conformity and Substantial Compliance. For
the purposes of resolving issues of conformity and substantial
compliance with the requirements of this regulation, the following
provisions of 20 CFR 601.5 apply:
(1) Paragraph (b) of this section, pertaining to informal
discussions with the Department of Labor to resolve conformity and
substantial compliance issues, and
(2) Paragraph (d) of this section, pertaining to the Secretary of
Labor's hearing and decision on conformity and substantial compliance.
(c) Result of failure to conform or substantially comply--(1) FUTA
requirements. Whenever the Secretary of Labor, after reasonable notice
and opportunity for a hearing to the State UC agency, finds that the
State UC law fails to conform, or that the State or State UC agency
fails to comply substantially, with the requirements of the FUTA, as
implemented in this regulation, then the Secretary of Labor shall make
no certification under such act to the Secretary of the Treasury for
such State as of October 31 of the 12-month period for which such
finding is made. Further, the Secretary of Labor must notify the
Governor of the State and such State UC agency that further payments for
the administration of the State UC law will not be made to the State.
(2) SSA requirements. Whenever the Secretary of Labor, after
reasonable notice and opportunity for a hearing to the State UC agency,
finds that the State UC law fails to conform, or that the State or State
UC agency fails to comply substantially, with the requirements of title
III, SSA (42 U.S.C. 501-504), as implemented in this regulation, then
the Secretary of Labor must notify the Governor of the State and such
State UC agency that further payments for the administration of the
State UC law will not be made to the State until the Secretary of Labor
is satisfied that there is no longer any such failure. Until the
Secretary of Labor is so satisfied, the Department of Labor will not
make further payments to such State.
PART 606_TAX CREDITS UNDER THE FEDERAL UNEMPLOYMENT TAX ACT; ADVANCES
UNDER TITLE XII OF THE SOCIAL SECURITY ACT--Table of Contents
Subpart A_General
Sec.
606.1 Purpose and scope.
606.2 Total credits allowable.
606.3 Definitions.
606.4 Redelegation of authority.
[[Page 41]]
606.5 Verification of estimates and review of determinations.
606.6 Information, reports, and studies.
Subpart B--Tax Credit Reduction [Reserved]
Subpart C_Relief From Tax Credit Reduction
606.20 Cap on tax credit reduction.
606.21 Criteria for cap.
606.22 Application for cap.
606.23 Avoidance of tax credit reduction.
606.24 Application for avoidance.
606.25 Waiver of and substitution for additional tax credit reduction.
606.26 Application for waiver and substitution.
Subpart D_Interest on Advances
606.30 Interest rates on advances.
606.31 Due dates for payment of interest. [Reserved]
606.32 Types of advances subject to interest.
606.33 No payment of interest from unemployment fund. [Reserved]
606.34 Reports of interest payable. [Reserved]
606.35 Order of application for repayments. [Reserved]
Subpart E_Relief from Interest Payment
606.40 May/September delay.
606.41 High unemployment deferral.
606.42 High unemployment delay.
606.44 Notification of determinations.
Authority: 42 U.S.C. 1102; 42 U.S.C. 1322(b)(2)(C); 26 U.S.C.
7805(a); Secretary's Order No. 3-2007, April 3, 2007 (72 FR 15907).
Source: 53 FR 37429, Sept. 26, 1988, unless otherwise noted.
Editorial Note: Nomenclature changes to part 606 appear at 71 FR
35513, June 21, 2006.
Subpart A_General
Sec. 606.1 Purpose and scope.
(a) In general. The regulations in this part 606 are issued to
implement the tax credit provisions of the Federal Unemployment Tax Act,
and the loan provisions of title XII of the Social Security Act. The
regulations on tax credits cover all of the subjects of 3302 of the
Federal Unemployment Tax Act (FUTA), except subsections (c)(3) and (e).
The regulations on loans cover all of the subjects in title XII of the
Social Security Act.
(b) Scope. This part 606 covers general matters relating to this
part in this subpart A, and in the following subparts includes specific
subjects described in general terms as follows:
(1) Subpart B describes the tax credit reductions under the Federal
Unemployment Tax Act, which relate to outstanding balances of advances
made under title XII of the Social Security Act.
(2) Subpart C describes the various forms of relief from tax credit
reductions, and the criteria and standards for grant of such relief in
the form of--
(i) A cap on tax credit reduction,
(ii) Avoidance of tax credit reduction, and
(iii) Waiver of and substitution for additional tax credit
reduction.
(3) Subpart D describes the interest rates on advances made under
title XII of the Social Security Act, dues dates for payment of
interest, and other related matters.
(4) Subpart E describes the various forms of relief from payment of
interest, and the criteria and standards for grant of such relief in the
form of--
(i) May/September delay of interest payments,
(ii) High unemployment deferral of interest payments,
(iii) High unemployment delay of interest payments, and
(iv) Maintenance of solvency effort required to retain a deferral
previously granted.
Sec. 606.2 Total credits allowable.
The total credits allowed to an employer subject to the tax imposed
by section 3301 of the Federal Unemployment Tax Act shall not exceed 5.4
percent with respect to taxable years beginning after December 31, 1984.
Sec. 606.3 Definitions.
For the purposes of the Acts cited and this part--
Act means as appropriate the Federal Unemployment Tax Act (26 U.S.C.
3301-3311), or title XII of the Social Security Act (42 U.S.C. 1321-
1324).
Advance means a transfer of funds to a State unemployment fund, for
the purpose of paying unemployment compensation, from the Federal
unemployment account in the Unemployment
[[Page 42]]
Trust Fund, pursuant to section 1202 of the Social Security Act.
Average High Cost Multiple (AHCM) for a State as of December 31 of a
calendar year is calculated by dividing the State's reserve ratio, as
defined in Sec. 606.3, by the State's average high cost rate (AHCR), as
defined in Sec. 606.3, for the same year. Final calculations are
rounded to the nearest multiple of 0.01.
Average High Cost Rate (AHCR) for a State is calculated as follows:
(1) Determine the time period over which calculations are to be made
by selecting the longer of:
(i) The 20-calendar year period that ends with the year for which
the AHCR calculation is made; or
(ii) The number of years beginning with the calendar year in which
the first of the last three completed national recessions began, as
determined by the National Bureau of Economic Research, and ending with
the calendar year for which the AHCR is being calculated.
(2) For each calendar year during the selected time period,
calculate the benefit-cost ratio, as defined in Sec. 606.3; and
(3) Average the three highest calendar year benefit cost ratios for
the selected time period from paragraph (2) of this definition. Final
calculations are rounded to the nearest multiple of 0.01 percent.
Benefit-cost ratio for a calendar year is the percentage obtained by
dividing--
(1) The total dollar sum of--
(i) All compensation actually paid under the State law during such
calendar year, including in such total sum all regular, additional, and
extended compensation, as defined in section 205 of the Federal-State
Extended Unemployment Compensation Act of 1970, and excluding from such
total sum--
(A) Any such compensation paid for which the State is entitled to
reimbursement or was reimbursed under the provisions of any Federal Law,
and
(B) Any such compensation paid which is attributable to services
performed for a reimbursing employer, and which is not included in the
total dollar amount reported under paragraph (c)(1)(i)(A) of this
section, and
(ii) Any interest paid during such calendar year on any advance, by
(2) The total wages (as defined in Sec. 606.3) with respect to such
calendar year.
(3) For cap purposes, if any percentage determined by this
computation for a calendar year is not a multiple of 0.1 percent, such
percentage shall be reduced to the nearest multiple of 0.1 percent. For
funding goal purposes, if any percentage determined by this computation
for a calendar year is not a multiple of 0.01 percent, such percentage
is rounded to the nearest multiple of 0.01 percent.
Contributions means payments required by a State law to be made into
an unemployment fund by any person on account of having individuals in
his employ, to the extent that such payments are made by him without
being deducted or deductible from the remuneration of individuals in his
employ.
Federal unemployment tax means the excise tax imposed under section
3301 of the Federal Unemployment Tax Act on employers with respect to
having individuals in their employ.
Fiscal year means the Federal fiscal year which begins on October 1
of a year and ends on September 30, of the next succeeding year.
FUTA refers to the Federal Unemployment Tax Act.
Reserve ratio is calculated by dividing the balance in the State's
account in the unemployment trust fund (UTF) as of December 31 of such
year by the total wages paid workers covered by the unemployment
compensation (UC) program during the 12 months ending on December 31 of
such year. Final calculations are rounded to the nearest multiple of
0.01 percent.
State unemployment fund or unemployment fund means a special fund
established under a State law for the payment of unemployment
compensation to unemployed individuals, and which is an ``unemployment
fund'' as defined in section 3306(f) of the Federal Unemployment Tax
Act.
Taxable year means the calendar year.
Unemployment tax rate means, for any taxable year and with respect
to any
[[Page 43]]
State, the percentage obtained by dividing the total amount of
contributions paid into the State unemployment fund with respect to such
taxable year by total wages as defined in Sec. 606.3.
Wages, taxable means the total sum of remuneration which is subject
to contributions under a State law.
Wages, total means the total sum of all remuneration covered by a
State law, disregarding any dollar limitation on the amount of
remuneration which is subject to contributions under the State law.
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35513, June 21, 2006;
75 FR 57156, Sept. 17, 2010]
Sec. 606.4 Redelegation of authority.
(a) Redelegation to OWS Administrator. The Administrator, Office of
Workforce Security (hereinafter ``OWS Administrator''), is redelegated
authority to make the determinations required under this part. This
redelegation is contained in Employment and Training Order No. 1-84,
published in the Federal Register on November 14, 1983 (48 FR 51870).
(b) Delegation by Governor. The Governor of a State, as used in this
part, refers to the highest executive official of a State. Wherever in
this part an action is required by or of the Governor of a State, such
action may be taken by the Governor or may be taken by a delegatee of
the Governor if the Department is furnished appropriate proof of an
authoritative delegation of authority.
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 606.5 Verification of estimates and review of determinations.
The Department of Labor (hereinafter ``Department'') shall verify
all information and data provided by a State under this part, and the
State shall comply with such provisions as the Department considers
necessary to assure the correctness and verification of such information
and data. The State agency of a State affected by a determination made
by the OWS Administrator under this part may seek review of such
determination by a higher level official of the Employment and Training
Administration.
Sec. 606.6 Information, reports, and studies.
A State shall furnish to the Secretary of Labor such information and
reports and conduct such studies as the Secretary determines are
necessary or appropriate for carrying out the purposes of this part,
including any additional information or data the OWS Administrator may
require for the purposes of making determinations under subparts C and E
of this part.
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35514, June 21, 2006]
Subpart B--Tax Credit Reduction [Reserved]
Subpart C_Relief From Tax Credit Reduction
Sec. 606.20 Cap on tax credit reduction.
(a) Applicability. Subsection (f) of section 3302 of FUTA authorizes
a limitation (cap) on the reduction of tax credits by reason of an
outstanding balance of advances, if the OWS Administrator determines
with respect to a State, on or before November 10 of a taxable year,
that--
(1) No action was taken by the State during the 12-month period
ending on September 30 of such taxable year which has resulted, or will
result, in a reduction in the State's unemployment tax effort, as
defined in Sec. 606.21(a);
(2) No action was taken by the State during the 12-month period
ending on September 30 of such taxable year which has resulted, or will
result, in a net decrease in the solvency of the State unemployment
compensation system, as defined in Sec. 606.21(b);
(3) The State unemployment tax rate (as defined in Sec. 606.3) for
the taxable year equals or exceeds the average benefit-cost ratio (as
defined in Sec. 606.3) for the calendar years in the five-calendar year
period ending with the calendar year immediately preceding the taxable
year for which the cap is requested, under the rules specified in Sec.
606.21 (c) and (d); and
(4) The outstanding balance of advances to the State on September 30
of the taxable year was not greater than the outstanding balance of
advances to
[[Page 44]]
the State on September 30 of the third preceding taxable year.
(b) Maximum tax credit reduction. If a State qualifies for a cap,
the maximum tax credit reduction for the taxable year shall not exceed
0.6 percent, or, if higher, the tax credit reduction that was in effect
for the taxable year preceding the taxable year for which the cap is
requested.
(c) Year not taken into account. If a State qualifies for a cap for
any year, the year and January 1 of the year to which the cap applies
will not be taken into account for purposes of determining reduction of
tax credit for subsequent taxable years.
(d) Partial caps. Partial caps obtained under subsection (f)(8) are
no longer available. Nevertheless, for the purposes of applying section
3302(c)(2) to subsequent taxable years, partial cap credits earned will
be taken into account for purposes of determining reduction of tax
credits. Also, the taxable year to which the partial cap applied (and
January 1 thereof) will be taken into account for purposes of
determining reduction of tax credits for subsequent taxable years.
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.21 Criteria for cap.
(a) Reduction in unemployment tax effort. (1) For purposes of
paragraph (a)(1) of Sec. 606.20, a reduction in a State's unemployment
tax effort will have occurred with respect to a taxable year if any
action is or was taken (legislative, judicial, or administrative,) that
is effective during the 12-month period ending on September 30 of such
taxable year, which has resulted in or will result in a reduction of the
amount of contributions paid or payable or the amounts that were or
would have been paid or payable but for such action.
(2) Actions that will result in a reduction in tax effort include,
but are not limited to, a reduction in the taxable wage base, the tax
rate schedule, tax rates, or taxes payable (including surtaxes) that
would not have gone into effect but for the legislative, judicial, or
administrative action taken. Notwithstanding the foregoing criterion, a
reduction in unemployment tax effort resulting from any provision of the
State law enacted prior to August 13, 1981, will not be taken into
account as a reduction in the State's unemployment tax effort for the
purposes of this section.
(b) Net decrease in solvency. For purposes of paragraph (a)(2) of
Sec. 606.20, a net decrease in the solvency of the State's unemployment
compensation system will have occurred with respect to a taxable year if
any action is or was taken (legislative, judicial, or administrative),
that is effective during the 12-month period ending on September 30 of
such taxable year, which has resulted in or will result in an increase
in benefits without at least an equal increase in taxes, or a decrease
in taxes without at least an equal decrease in benefits. Notwithstanding
the foregoing criterion, a decrease in solvency resulting from any
provision of the State law enacted prior to August 13, 1981, will not be
taken into account as a reduction in solvency of the State's
unemployment compensation system for the purposes of this section.
(c) State unemployment tax rate. For purposes of paragraph (a)(3) of
Sec. 606.20, the State unemployment tax rate is defined in Sec. 606.3.
If such percentage is not a multiple of 0.1 percent, the percentage
shall remain unrounded.
(d) State five-year average benefit cost ratio. The average benefit-
cost ratio for the 5 preceding calendar years is the percentage
determined by dividing the sum of the benefit-cost ratios for the 5
years by five. If such percentage is not a multiple of 0.1 percent, the
percentage shall remain unrounded.
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.22 Application for cap.
(a) Application. (1) The Governor of the State shall make
application, addressed to the Secretary of Labor, no later than July 1
of a taxable year with respect to which a State requests a cap on tax
credit reduction. The Governor is required to notify the Department on
or before October 15 of such taxable year of any action occurring after
the date of the initial application and effective prior to October 1 of
such year that would impact upon the State's application.
[[Page 45]]
(2) The OWS Administrator will make a determination on the
application on or before November 10 of such taxable year, will notify
the applicant and the Secretary of the Treasury of such determination,
and will cause notice of such determination to be published in the
Federal Register.
(b) Anticipated impact statement. In support of the application by
the Governor, there shall be submitted with the application (on or
before October 15), for the purposes of the criteria described in
Sec. Sec. 606.20(a) (1) and (2) and 606.21 (a) and (b), a description
of all statutory provisions enacted or amended, regulations adopted or
revised, administrative policies and procedures adopted or revised, and
judicial decisions given effect, which are effective during the 12-month
period ending on September 30 of the taxable year for which a cap on tax
credit reduction is requested, and an anticipated impact statement (AIS)
for each such program action in the following respect--
(1) The estimated dollar effect on each program action upon
expenditures for compensation from the State unemployment fund and for
the amounts of contributions paid or payable in such 12-month period,
including the effect of interaction among program actions, and with
respect to program actions for which dollar impact cannot be estimated
or is minor or negligible, indicate whether the impact is positive or
negative;
(2) If a program action has no such dollar effect, an explanation of
why there is or will be no such effect;
(3) A description of assumptions and methodology used and the basis
for the financial estimate of the impact of each program action
described in paragraphs (b)(1) and (b)(2) of this section; and
(4) A comparision of the program actions described in paragraphs
(b)(1) and (b)(2) of this section with the program actions prior to the
Federal fiscal year (as defined in Sec. 606.3) which ends on such
September 30.
(c) Unemployment tax rate. With respect to the unemployment tax rate
criterion described in Sec. Sec. 606.20(a)(3) and 606.21(c), the
application shall include an estimate for the taxable year with respect
to which a cap on tax credit reduction is requested and actual data for
the prior two years as follows:
(1) The amount of taxable wages as defined in Sec. 606.3;
(2) The amount of total wages as defined in Sec. 606.3; and
(3) The estimated distribution of taxable wages, as defined in Sec.
606.3, by tax rate under the State law.
(d) Benefit cost ratio. With respect to the benefit cost ratio
criterion described in Sec. Sec. 606.20(a)(3) and 606.21(d), the
application shall include for each of the five calendar years prior to
the taxable year for which a cap on tax credit reduction is requested,
the following data:
(1) The total dollar sum of compensation actually paid under the
State law during the calendar year, including in such total sum all
regular, additional, and extended compensation as defined in section 205
of the Federal-State Extended Unemployment Compensation Act of 1970, but
excluding from such total sum--
(i) The total dollar amount of such compensation paid for which the
State is entitled to reimbursement or was reimbursed under the
provisions of any Federal law;
(ii) The total dollar amount of such compensation paid which is
attributable to services performed for a reimbursing employer, and which
is not included in the total amount reported under paragraph (d)(1)(i)
of this section;
(2) The total dollar amount of interest paid during the calendar
year on any advance; and
(3) The total dollar amount of wages (as defined in Sec. 606.3)
with respect to such calendar year.
(e) Documentation required. Copies of the sources of or authority
for each program action described in paragraph (b) of this section shall
be submitted with each application for a cap on tax credit reduction. In
addition, a notation shall be made on each AIS of where all figures
referred to are contained in reports required by the Department or in
other data sources.
(f) State contact person. The Department may request additional
information or clarification of information submitted bearing upon an
application for a cap on tax credit reduction. To
[[Page 46]]
expedite requests for such information, the name and telephone number of
an appropriate State official shall be included in the application by
the Governor.
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.23 Avoidance of tax credit reduction.
(a) Applicability. Subsection (g) of section 3302 of FUTA authorizes
a State to avoid a tax credit reduction for a taxable year by meeting
the three requirements of subsection (g). These requirements are met if
the OWS Administrator determines that:
(1) Advances were repaid by the State during the one-year period
ending on November 9 of the taxable year in an amount not less than the
sum of--
(i) The potential additional taxes (as estimated by the OWS
Administrator) that would be payable by the State's employers if
paragraph (2) of section 3302(c) of FUTA were applied for such taxable
year (as estimated with regard to the cap on tax credit reduction for
which the State qualifies under Sec. Sec. 606.20 to 606.22 with respect
to such taxable year), and
(ii) Any advances made to such State during such one-year period
under title XII of the Social Security Act;
(2) There will be adequate funds in the State unemployment fund (as
estimated by the OWS Administrator) sufficient to pay all benefits when
due and payable under the State law during the three-month period
beginning on November 1 of such taxable year without receiving any
advance under title XII of the Social Security Act; and
(3) There is a net increase (as estimated by the OWS Administrator)
in the solvency of the State unemployment compensation system for the
taxable year and such net increase equals or exceeds the potential
additional taxes for such taxable year as estimated under paragraph
(a)(1)(i) of this section.
(b) Net increase in solvency. (1) The net increase in solvency for a
taxable year, as determined for the purposes of paragraph (a)(3) of this
section, must be attributable to legislative changes made in the State
law after the later of--
(i) September 3, 1982, or
(ii) The date on which the first advance is taken into account in
determining the amount of the potential additional taxes.
(2) The OWS Administrator shall determine the net increase in
solvency by first estimating the difference between revenue receipts and
benefit outlays under the law in effect for the year for which avoidance
is requested, as if the relevant changes in State law referred to in
paragraph (b)(1) of this section were not in effect for such year. The
OWS Administrator shall then estimate the difference between revenue
receipts and benefit outlays under the law in effect for the year for
which the avoidance is requested, taking into account the relevant
changes in State law referred to in paragraph (b)(1) of this section.
The amount (if any) by which the second estimated difference exceeds the
first estimated difference shall constitute the net increase in solvency
for the purposes of this section.
(c) Year taken into account. If a State qualifies for avoidance for
any year, that year and January 1 of that year to which the avoidance
applies will be taken into account for purposes of determining reduction
of tax credits for subsequent taxable years.
Sec. 606.24 Application for avoidance.
(a) Application. (1) The Governor of the State shall make
application, addressed to the Secretary of Labor, no later than July 1
of a taxable year with respect to which a State requests avoidance of
tax credit reduction. The Governor is required to notify the Department
on or before October 15 of such taxable year of any action impacting
upon the State's application occurring subsequent to the date of the
initial application and on or before November 10.
(2) The OWS Administrator will make a determination on the
application as of November 10 of such taxable year, will notify the
applicant and the Secretary of the Treasury of such determination, and
will cause notice of such determination to be published in the Federal
Register.
(b) Information. (1) The application shall include a statement of
the amount of advances repaid and to be
[[Page 47]]
repaid during the one-year period ending on November 9 of the taxable
year for which avoidance is requested. If the amount repaid as of the
date of the application is less than the amount required to satisfy the
provisions of Sec. 606.23(a)(1), the Governor shall provide a report
later of the additional repayments that have been made in the remainder
of the one-year period ending on November 9 of the taxable year, for the
purposes of meeting the provisions of Sec. 606.23(a)(1).
(2) The application also shall include estimates of revenue
receipts, benefit outlays, and end-of-month fund balance for each month
in the period beginning with September of the taxable year for which
avoidance is requested through the subsequent January. Actual data for
the comparable period of the preceding year also shall be included in
the application in order to determine the reasonableness of such
estimates.
(3) The application also shall include a description of State law
changes, effective for the taxable year for which the avoidance is
requested, which resulted in a net increase in the solvency of the State
unemployment compensation system, and documentation which supports the
State's estimate of the net increase in solvency for such taxable year.
Sec. 606.25 Waiver of and substitution for additional tax credit reduction.
A provision of subsection (c)(2) of section 3302 of FUTA provides
that, for a State that qualifies, the additional tax credit reduction
applicable under subparagraph (C), beginning in the fifth consecutive
year of a balance of outstanding advances, shall be waived and the
additional tax credit reduction applicable under subparagraph (B) shall
be substituted. The waiver and substitution are granted if the OWS
Administrator determines that the State has taken no action, effective
during the 12-month period ending on September 30 of the year for which
the waiver and substitution are requested, which has resulted or will
result in a net decrease in the solvency of the State unemployment
compensation system as determined for the purposes of Sec. Sec.
606.20(a)(2) and 606.21(b).
Sec. 606.26 Application for waiver and substitution.
(a) Application. The Governor of the State shall make application
addressed to the Secretary of Labor, no later than July 1 of a taxable
year with respect to which a State requests waiver and substitution. Any
such application shall contain the supportive data and information
required by Sec. 606.22(b) for the purposes of Sec. Sec. 606.20(a)(2)
and 606.21(b). The Governor is required to notify the Department on or
before October 15 of such taxable year of action occurring after the
date of the initial application and effective prior to October 1 of such
year that would impact upon the State's application.
(b) Notification of determination. The OWS Administrator will make a
determination on the application as of November 10 of the taxable year,
will notify the applicant and the Secretary of the Treasury of the
resulting tax credit reduction to be applied, and will cause notice of
such determination to be published in the Federal Register.
Subpart D_Interest on Advances
Sec. 606.30 Interest rates on advances.
Advances made to States pursuant to title XII of the Social Security
Act shall be subject to interest payable on the due dates specified in
Sec. 606.31. \1\ The interest rate for each calendar year will be 10
percent or, if less, the rate determined by the Secretary of the
Treasury and announced to the States by the Department.
---------------------------------------------------------------------------
\1\ (Editorial note: This section will be added at a later date.)
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 606.31 Due dates for payment of interest. [Reserved]
Sec. 606.32 Types of advances subject to interest.
(a) Payment of interest. Except as otherwise provided in paragraph
(b) of this section each State shall pay interest on any advance made to
such State under title XII of the Social Security Act.
(b) Cash flow loans--(1) Availability of interest-free advances.
Advances are
[[Page 48]]
deemed cash flow loans and shall be free of interest provided that:
(i) The advances are repaid in full prior to October 1 of the
calendar year in which the advances are made;
(ii) The State does not receive an additional advance after
September 30 of the same calendar year in which the advance is made. If
the State receives an additional advance after September 30 of the same
calendar year in which earlier advances were made, interest on the fully
repaid earlier advance(s) is due and payable not later than the day
following the date of the first such additional advance. The
administrator of the State agency must notify the Secretary of Labor no
later than September 10 of the same calendar year of those loans deemed
to be cash flow loans and not subject to interest. This notification
must include the date and amount of each loan made beginning January 01
through September 30 of the same calendar year, and a copy of
documentation sent to the Secretary of the Treasury requesting loan
repayment transfer(s) from the State's account in the UTF to the Federal
unemployment account in the UTF; and
(iii) The State has met the funding goals described in paragraph
(b)(2) or (b)(3) of this section.
(2) Funding goals. This paragraph (b)(2) is applicable to all States
as of January 1, 2019. A State has met the funding goals requirement if:
(i) The State, as of December 31 of any of the 5 consecutive
calendar years preceding the calendar year in which such advances are
made, had an AHCM of at least 1.00, as determined under Sec. 606.3; and
(ii) The State maintained tax effort as determined under paragraph
(b)(4) of this section.
(3) Phasing in funding goals. This paragraph (b)(3) applies for
calendar years 2014 through 2018. A State has met the funding goals
requirement if it has satisfied the solvency criterion in paragraph (i),
and the maintenance of tax effort criteria in paragraph (ii), of this
Sec. 606.32(b)(3).
(i) A State has met the solvency criterion if:
(A) For calendar year 2014, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.50, as determined under Sec. 606.3;
(B) For calendar year 2015, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.60, as determined under Sec. 606.3;
(C) For calendar year 2016, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.70, as determined under Sec. 606.3;
(D) For calendar year 2017, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.80, as determined under Sec. 606.3;
(E) For calendar year 2018, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.90, as determined under Sec. 606.3;
(ii) A State has met the maintenance of tax effort criteria if it
maintained tax effort as determined under paragraph (b)(4) of this
section.
(4) Maintenance of tax effort criteria. A State has maintained tax
effort if, for every year between the last calendar year in which it met
the solvency criterion in paragraph (b)(2)(i) or (b)(3)(i) of this
section and the calendar year in which an interest-free advance is
taken, the State's unemployment tax rate as defined in Sec. 606.3 for
the calendar year is at least--
(i) 80 percent of the prior year's unemployment tax rate; and
(ii) 75 percent of the State 5-year average benefit-cost ratio, as
determined under Sec. 606.21(d).
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.33 No payment of interest from unemployment fund. [Reserved]
Sec. 606.34 Reports of interest payable. [Reserved]
Sec. 606.35 Order of application for repayments. [Reserved]
Subpart E_Relief from Interest Payment
Sec. 606.40 May/September delay.
Subsection (b)(3)(B) of section 1202 of the Social Security Act
permits a
[[Page 49]]
State to delay payment of interest accrued on advances made during the
last five months of the Federal fiscal year (May, June, July, August,
and September) to no later than December 31 of the next succeeding
calendar year. If the payment is delayed, interest on the delayed
payment will accrue from the normal due date (i.e., September 30) and in
the same manner as if the interest due on the advance(s) was an advance
made on such due date. The Governor of a State which has decided to
delay such interest payment shall notify the Secretary of Labor no later
than September 1 of the year with respect to which the delay is
applicable.
Sec. 606.41 High unemployment deferral.
(a) Applicability. Subsection (b)(3)(C) of section 1202 of the
Social Security Act permits a State to defer payment of, and extend the
payment for, 75 percent of interest charges otherwise due prior to
October 1 of a year if the OWS Administrator determines that high
unemployment conditions existed in the State.
(b) High unemployment defined. For purposes of this section, high
unemployment conditions existed in the State if the State's rate of
insured unemployment (as determined for purposes of 20 CFR 615.12) under
the State law with respect to the period consisting of the first six
months of the preceding calendar year equalled or exceeded 7.5 percent;
this means that in weeks 1 (that week which includes January 1 of the
year) through 26 of such preceding calendar year, the rate of insured
unemployment reported by the State and accepted by the Department under
20 CFR part 615 must have averaged a percentage equalling or exceeding
7.5 percent.
(c) Schedule of deferred payments. The State must pay prior to
October 1 one-fourth of the interest due, and must pay a minimum of one-
third of the deferred amount prior to October 1 in each of the three
years following the year in which deferral was granted; at the State's
option payment of deferred interest may be accelerated.
(d) Related criteria. Timely payment of one-fourth of the interest
due prior to October 1 is a precondition to obtaining deferral of
payment of 75 percent of the interest due. No interest shall accrue on
such deferred interest.
(e) Application for deferral and determination. (1) The Governor of
a State which has decided to request such deferral of interest payment
shall apply to the Secretary of Labor no later than July 1 of the
taxable year for which the deferral is requested.
(2) The OWS Administrator will determine whether deferral is or is
not granted on the basis of the Department's records of reports of the
rates of insured unemployment and information obtained from the
Department of the Treasury as to the timely and full payment of one-
fourth of the interest due.
Sec. 606.42 High unemployment delay.
(a) Applicability. Paragraph (9) of section 1202 (b) of the Social
Security Act permits a State to delay for a period not exceeding nine
months the interest payment due prior to October 1 if, for the most
recent 12-month period prior to such October 1 for which data are
available, the State had an average total unemployment rate of 13.5
percent or greater.
(b) Delayed due date. An interest payment delayed under paragraph
(9) must be paid in full not later than the last official Federal
business day prior to the following July 1; at the State's option
payment of delayed interest may be accelerated. No interest shall accrue
on such delayed payment.
(c) Application for delay in payment and determination. (1) The
Governor of a State which has decided to request delay in payment of
interest under paragraph (9) shall apply to the Secretary of Labor no
later than July 1 of the taxable year for which the delay is requested.
(2) The OWS Administrator will determine whether delay is or is not
granted on the basis of seasonally unadjusted civilian total
unemployment rate data published by the Department's Bureau of Labor
Statistics.
Sec. 606.44 Notification of determinations.
The OWS Administrator will make determinations under Sec. Sec.
606.41, 606.42, and 606.43 on or before September 10 of the taxable
year, will promptly notify the applicants and the Secretary of the
[[Page 50]]
Treasury of such determinations, and will cause notice of such
determinations to be published in the Federal Register. The OWS
Administrator also will inform the Secretary of the Treasury and cause
notice to be published in the Federal Register of information with
respect to delayed payment of interest as provided in Sec. 606.40.
PART 609_UNEMPLOYMENT COMPENSATION FOR FEDERAL CIVILIAN EMPLOYEES-
-Table of Contents
Subpart A_General Provisions
Sec.
609.1 Purpose and application.
609.2 Definitions of terms.
Subpart B_Administration of UCFE Program
609.3 Eligibility requirements for UCFE.
609.4 Weekly and maximum benefit amounts.
609.5 Claims for UCFE.
609.6 Determinations of entitlement; notices to individual.
609.7 Appeal and review.
609.8 The applicable State for an individual.
609.9 Provisions of State law applicable to UCFE claims.
609.10 Restrictions on entitlement.
609.11 Overpayments; penalties for fraud.
609.12 Inviolate rights to UCFE.
609.13 Recordkeeping; disclosure of information.
609.14 Payments to States.
609.15 Public access to Agreements.
609.16 Administration in absence of an Agreement.
609.17 Information, reports, and studies.
Subpart C_Responsibilities of Federal Agencies
609.20 Information to Federal civilian employees.
609.21 Findings of Federal agency.
609.22 Correcting Federal findings.
609.23 Furnishing additional information.
609.24 Reconsideration of Federal findings.
609.25 Furnishing other information.
609.26 Liaison with Department.
Authority: 5 U.S.C. 8508; Secretary's Order No. 4-75, 40 FR 18515;
(5 U.S.C. 301). Interpret and apply secs. 8501-8508 of title 5, United
States Code.
Source: 47 FR 54687, Dec. 3, 1982, unless otherwise noted.
Subpart A_General Provisions
Sec. 609.1 Purpose and application.
(a) Purpose. Subchapter I of chapter 85, title 5 of the United
States Code, as amended by Pub. L. 94-566, 90 Stat. 2667, 5 U.S.C. 8501-
8508, provides for a permanent program of unemployment compensation for
unemployed Federal civilian employees. The unemployment compensation
provided for in subchapter I is hereinafter referred to as unemployment
compensation for Federal employees, or UCFE. The regulations in this
part are issued to implement the UCFE Program.
(b) First rule of construction. The Act and the implementing
regulations in this part shall be construed liberally so as to carry out
the purposes of the Act.
(c) Second rule of construction. The Act and the implementing
regulations in this part shall be construed so as to assure insofar as
possible the uniform interpretation and application of the Act
throughout the United States.
(d) Effectuating purpose and rules of construction. (1) In order to
effectuate the provisions of this section, each State agency shall
forward to the United States Department of Labor (hereafter Department),
not later than 10 days after issuance, a copy of each judicial or
administrative decision ruling on an individual's entitlement to payment
of UCFE or to credit for a waiting period. On request of the Department,
a State agency shall forward to the Department a copy of any
determination or redetermination ruling on an individual's entitlement
to UCFE or waiting period credit.
(2) If the Department believes that a determination,
redetermination, or decision is inconsistent with the Department's
interpretation of the Act or this part, the Department may at any time
notify the State agency of the Department's view. Thereafter the State
agency shall issue a redetermination or appeal if possible, and shall
not follow such determination, redetermination, or decision as a
precedent; and, in any subsequent proceedings which involve such
determination, redetermination, or decision, or wherein such
determination, redetermination, or decision is cited as precedent or
otherwise relied upon, the State agency shall inform
[[Page 51]]
the claims deputy or hearing officer or court of the Department's view
and shall make all reasonable efforts, including appeal or other
proceedings in an appropriate forum, to obtain modification, limitation,
or overruling of the determination, redetermination, or decision.
(3) If the Department believes that a determination,
redetermination, or decision is patently and flagrantly violative of the
Act or this part, the Department may at any time notify the State agency
of the Department's view. If the determination, redetermination, or
decision in question denies UCFE to a claimant, the steps outlined in
paragraph (d)(2) of this section shall be followed by the State agency.
If the determination, redetermination, or decision in question awards
UCFE to a claimant, the benefits are ``due'' within the meaning of
section 303(a)(1) of the Social Security Act, 42 U.S.C. 503(a)(1), and
therefore must be paid promptly to the claimant. However, the State
agency shall take the steps outlined in paragraph (d)(2) of this
section, and payments to the claimant may be temporarily delayed if
redetermination or appeal action is taken not more than one business day
following the day on which the first payment otherwise would be issued
to the claimant; and the redetermination action is taken or appeal is
filed to obtain a reversal of the award of UCFE and a ruling consistent
with the Department's view; and the redetermination action or appeal
seeks an expedited redetermination or appeal within not more than two
weeks after the redetermination action is taken or the appeal is filed.
If redetermination action is not taken or appeal is not filed within the
above time limit, or a redetermination or decision is not obtained
within the two-week limit, or any redetermination or decision or order
is issued which affirms the determination, redetermination, or decision
awarding UCFE or allows it to stand in whole or in part, the benefits
awarded must be paid promptly to the claimant.
(4)(i) If any determination, redetermination, or decision, referred
to in paragraph (d)(2) or paragraph (d)(3) of this section, is treated
as a precedent for any future UCFE claim or claim under the UCX Program
(part 614 of this chapter), the Secretary will decide whether the
Agreement with the State entered into under the Act shall be terminated.
(ii) In the case of any determination, redetermination, or decision
that is not legally warranted under the Act or this part, including any
determination, redetermination, or decision referred to in paragraph
(d)(3) of this section, the Secretary will decide whether the State
shall be required to restore the funds of the United States for any sums
paid under such a determination, redetermination, or decision, and
whether, in the absence of such restoration, the Agreement with the
State shall be terminated and whether other action shall be taken to
recover such sums for the United States.
(5) A State agency may request reconsideration of a notice issued
pursuant to paragraph (d)(2) of paragraph (d)(3) of this section, and
shall be given an opportunity to present views and arguments if desired.
(6) Concurrence of the Department in a determination,
redetermination, or decision shall not be presumed from the absence of a
notice issued pursuant to this section.
Sec. 609.2 Definitions of terms.
For the purposes of the Act and this part:
(a) Act means subchapter I of chapter 85, title 5, United States
Code, 5 U.S.C. 8501-8508.
(b) Agreement means the agreement entered into pursuant to the Act
between a State and the Secretary under which the State agency of the
State agrees to make payments of unemployment compensation in accordance
with the Act and the regulations and procedures thereunder prescribed by
the Department.
(c) Based period means the base period as defined by the applicable
State law for the benefit year.
(d) Benefit year means the benefit year as defined by the applicable
State law, and if not so defined the term means the period prescribed in
the agreement with the State or, in the absence of an Agreement, the
period prescribed by the Department.
[[Page 52]]
(e) Federal agency means any department, agency, or governmental
body of the United States, including any instrumentality wholly or
partially owned by the United States, in any branch of the Government of
the United States, which employs any individual in Federal civilian
service.
(f) Federal civilian service means service performed in the employ
of any Federal agency, except service performed--
(1) By an elective official in the executive or legislative branches
of the Government of the United States;
(2) As a member of the Armed Forces or the Commissioned Corps of the
National Oceanic and Atmospheric Administration;
(3) By Foreign Service personnel for whom special separation
allowances are provided under chapter 14 of title 22 of the United
States Code;
(4) Outside the 50 States, the Commonwealth of Puerto Rico, the
Virgin Islands, and the District of Columbia, by an individual who is
not a citizen of the United States;
(5) By an individual excluded by regulations of the Office of
Personnel Management from civil service retirement coverage provided by
subchapter III of chapter 83 of title 5 of the United States Code
because the individual is paid on a contract or fee basis;
(6) By an individual receiving nominal pay and allowances of $12 or
less a year;
(7) In a hospital, home, or other institution of the United States
by a patient or inmate thereof;
(8) By a student-employee as defined by 5 U.S.C. 5351; that is: (i)
A student nurse, medical or dental intern, resident-in-training, student
dietitian, student physical therapist, or student occupational
therapist, assigned or attached to a hospital, clinic, or medical or
dental laboratory operated by an agency as defined in section 5351; or
(ii) Any other student-employee, assigned or attached primarily for
training purposes to such a hospital, clinic, or medical or dental
laboratory operated by such an agency, who is designated by the head of
the agency with the approval of the Office of Personnel Management;
(9) By an individual serving on a temporary basis in case of fire,
storm, earthquake, flood, or other similar emergency;
(10) By an individual employed under a Federal relief program to
relieve the individual from unemployment;
(11) As a member of a State, county, or community committee under
the Agricultural Stabilization and Conservation Service or of any other
board, council, committee, or other similar body, unless such body is
composed exclusively of individuals otherwise in the full-time employ of
the United States;
(12) By an officer or member of the crew on or in connection with an
American vessel which is:
(i) Owned by or bareboat chartered to the United States, and
(ii) The business of which is conducted by a general agent of the
Secretary of Commerce; and
(iii) If contributions on account of such service are required under
section 3305(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3305(g))
to be made to an unemployment fund under a State law;
(13) By an individual excluded by any other Federal law from
coverage under the UCFE Program; or
(14) By an individual whose service is covered by the UCX Program to
which part 614 of this chapter applies.
(g) Federal employee means an individual who has performed Federal
civilian service.
(h) Federal findings means the facts reported by a Federal agency
pertaining to an individual as to: (1) Whether or not the individual has
performed Federal civilian service for such an agency;
(2) The period or periods of such Federal civilian service;
(3) The individual's Federal wages; and
(4) The reasons for termination of the individual's Federal civilian
service.
(i) Federal wages means all pay and allowances, in cash and in kind,
for Federal civilian service.
(j) First claim means an initial claim for unemployment compensation
under the UCFE Program, the UCX Program (part 614 of this chapter), a
State law, or some combination thereof, whereby
[[Page 53]]
a benefit year is established under an applicable State law.
(k) Official station means the State (or country, if outside the
United States) designated on a Federal employee's notification of
personnel action terminating the individual's Federal civilian service
(Standard Form 50 or its equivalent) as the individual's ``duty
station.'' If the form of notification does not specify the Federal
employee's ``duty station'', the individual's official station shall be
the State or country designated under ``name and location of employing
office'' on such form or designated as the individual's place of
employment on an equivalent form.
(l) Secretary means the Secretary of Labor of the United States.
(m) State means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, and the Virgin Islands.
(n) State agency means the agency of the State which administers the
applicable State law and is administering the UCFE Program in the State
pursuant to an Agreement with the Secretary.
(o)(1) State law means the unemployment compensation law of a State
approved by the Secretary under section 3304 of the Internal Revenue
Code of 1986, 26 U.S.C. 3304, if the State is certified under section
3304(c) of the Internal Revenue Code of 1986, 26 U.S.C. 3304(c).
(2) Applicable State law means the State law made applicable to a
UCFE claimant by Sec. 609.8.
(p)(1) Unemployment compensation means cash benefits (including
dependents' allowances) payable to individuals with respect to their
unemployment, and includes regular, additional, emergency, and extended
compensation.
(2) Regular compensation means unemployment compensation payable to
an individual under any State law, but not including additional
compensation or extended compensation.
(3) Additional compensation means unemployment compensation totally
financed by a State and payable under a State law by reason of
conditions of high unemployment or by reason of other special factors.
(4) Emergency compensation means supplementary unemployment
compensation payable under a temporary Federal law after exhaustion of
regular and extended compensation.
(5) Extended compensation means unemployment compensation payable to
an individual for weeks of unemployment in an extended benefit period,
under those provisions of a State law which satisfy the requirements of
the Federal-State Extended Unemployment Compensation Act of 1970, as
amended, 26 U.S.C. 3304 note, and part 615 of this chapter, with respect
to the payment of extended compensation.
(q) Week means, for purposes of eligibility for and payment of UCFE,
a week as defined in the applicable State law.
(r) Week of unemployment means a week of total, part-total, or
partial unemployment as defined in the applicable State law, which shall
be applied in the same manner and to the same extent to all employment
and earnings, and in the same manner and to the same extent for the
purposes of the UCFE Program, as if the individual filing for UCFE were
filing a claim for State unemployment compensation.
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
Subpart B_Administration of UCFE Program
Sec. 609.3 Eligibility requirements for UCFE.
An individual shall be eligible to receive a payment of UCFE or to
waiting period credit with respect to a week of unemployment if:
(a) The individual has Federal civilian service and Federal wages in
the base period under the applicable State law;
(b) The individual meets the qualifying employment and wage
requirements of the applicable State law, either on the basis of Federal
civilian service and Federal wages alone or in combination with service
and wages covered under a State law or under the UCX Program (part 614
of this chapter);
(c) The individual has filed an initial claim for UCFE and, as
appropriate, has filed a timely claim for waiting period credit or a
payment of UCFE with
[[Page 54]]
respect to that week of unemployment; and
(d) The individual is totally, part-totally, or partially
unemployed, and is able to work, available for work, and seeking work
within the meaning of or as required by the applicable State law, and is
not subject to disqualification under this part or the applicable State
law, with respect to that week of unemployment.
Sec. 609.4 Weekly and maximum benefit amounts.
(a) Total unemployment. The weekly amount of UCFE payable to an
eligible individual for a week of total unemployment shall be the amount
that would be payable to the individual as unemployment compensation for
a week of total unemployment as determined under the applicable State
law.
(b) Partial and part-total unemployment. The weekly amount of UCFE
payable for a week of partial or part-total unemployment shall be the
amount that would be payable to the individual as unemployment
compensation for a week of partial or part-total unemployment as
determined under the applicable State law.
(c) Maximum amount. The maximum amount of UCFE which shall be
payable to an eligible individual during and subsequent to the
individual's benefit year shall be the maximum amount of all
unemployment compensation that would be payable to the individual as
determined under the applicable State law.
(d) Computation rules. (1) The weekly and maximum amounts of UCFE
payable to an individual under the UCFE Program shall be determined
under the applicable State law to be in the same amount, on the same
terms, and subject to the same conditions as the State unemployment
compensation which would be payable to the individual under the
applicable State law if the individual's Federal civilian service and
Federal wages assigned or transferred under this part to the State had
been included as employment and wages covered by that State law.
(2) All Federal civilian service and Federal wages for all Federal
agencies shall be considered employment with a single employer for
purposes of the UCFE Program.
Sec. 609.5 Claims for UCFE.
(a) First claims. A first claim for UCFE shall be filed by an
individual in any State agency of any State (or Canada) according to the
applicable State law, and on a form prescribed by the Department which
shall be furnished to the individual by the State agency where the claim
is filed.
(b) Weekly claims. Claims for waiting week credit and payments of
UCFE for weeks of unemployment shall be filed in any State agency (or
Canada) at the times and in the manner as claims for State unemployment
compensation are filed under the applicable State law, and on forms
prescribed by the Department which shall be furnished to the individual
by the State agency where the claim is filed.
(c) Secretary's standard. The procedure for reporting and filing
claims for UCFE and waiting period credit shall be consistent with this
part 609 and the Secretary's ``Standard for Claim Filing, Claimant
Reporting, Job Finding and Employment Services'' (Employment Security
Manual, part V, sections 5000 et seq.).
Sec. 609.6 Determinations of entitlement; notices to individual.
(a) Determination of first claim. The State agency whose State law
applies to an individual under Sec. 609.8 shall, promptly upon the
filing of a first claim for UCFE, determine whether the individual is
eligible and whether a disqualification applies, and, if the individual
is found to be eligible, the individual's benefit year and the weekly
and maximum amounts of UCFE payable to the individual.
(b) Determinations of weekly claims. The State agency promptly
shall, upon the filing of a claim for payment of UCFE or waiting period
credit with respect to a week, determine whether the individual is
entitled to a payment of UCFE or waiting period credit with respect to
such week, and, if entitled, the amount of UCFE or waiting period credit
to which the individual is entitled.
(c) Redetermination. The provisions of the applicable State law
concerning
[[Page 55]]
the right to request, or authority to undertake, reconsideration of a
determination pertaining to State unemployment compensation under the
applicable State law shall apply to determinations pertaining to UCFE.
(d) Notices to individual. The State agency promptly shall give
notice in writing to the individual of any determination or
redetermination of a first claim, and, except as may be authorized under
paragraph (g) of this section, of any determination or redetermination
of any weekly claim which denies UCFE or waiting period credit or
reduces the weekly amount or maximum amount initially determined to be
payable. Each notice of determination or redetermination shall include
such information regarding the determination or redetermination and
notice of right to reconsideration or appeal, or both, as is furnished
with written notices of determinations and redeterminations with respect
to claims for State unemployment compensation; and where information
furnished by a Federal agency was considered in making the
determination, or redetermination, the notice thereof shall include an
explanation of the right of the individual to seek additional
information pursuant to Sec. 609.23 and/or a reconsideration of Federal
findings pursuant to Sec. 609.24.
(e) Obtaining information for claim determinations. (1) Information
required for the determination of claims for UCFE shall be obtained by
the State agency from claimants, employers, and others, in the same
manner as information is obtained for claim purposes under the
applicable State law, but information (including additional and
reconsidered Federal findings) shall be obtained from the Federal agency
that employed the UCFE claimant as prescribed in Sec. Sec. 609.21
through 609.25. On request by a UCFE claimant, the State agency shall
seek additional information pursuant to Sec. 609.23 and reconsideration
of Federal findings pursuant to Sec. 609.24.
(2) If Federal findings have not been received from a Federal agency
within 12 days after the request for information was submitted to the
Federal agency, the State agency shall determine the individual's
entitlement to UCFE on the basis of an affidavit completed by the
individual on a form prescribed by the Department. In addition, the
individual shall submit for examination by the State agency any
documents issued by the Federal agency (for example, Standard Form 50 or
W-2) verifying that the individual performed services for and received
wages from such Federal agency.
(3) If Federal findings received by a State agency after a
determination has been made under this section contain information which
would result in a change in the individual's eligibility for or
entitlement to UCFE, the State agency promptly shall make a
redetermination and notify the individual, as provided in this section.
All payments of UCFE made prior to or after such redetermination shall
be adjusted in accordance therewith.
(f) Promptness. Full payment of UCFE when due shall be consistent
with this part 609 and shall be made with the greatest promptness that
is administratively feasible, but the provisions of part 640 of this
chapter (relating to promptness of benefit payments) shall not be
applicable to the UCFE Program.
(g) Secretary's standard. The procedures for making determinations
and redeterminations, and furnishing written notices of determinations,
redeterminations, and rights of appeal to individuals applying for UCFE,
shall be consistent with this part 609 and with the Secretary's
``Standard for Claim Determinations--Separation Information''
(Employment Security Manual, part V, sections 6010 et seq.).
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
Sec. 609.7 Appeal and review.
(a) Applicable State law. The provisions of the applicable State law
concerning the right of appeal and fair hearing from a determination or
redetermination of entitlement to State unemployment compensation shall
apply to determinations and redeterminations of eligibility for or
entitlement to UCFE and waiting period credit. Any such determination or
redetermination shall be subject to appeal and review only in the manner
and to the extent provided in the applicable State
[[Page 56]]
law with respect to determinations and redeterminations of entitlement
to State unemployment compensation.
(b) Rights of appeal and fair hearing. The provisions on right to
appeal and opportunity for a fair hearing with respect to claims for
UCFE shall be consistent with this part and with sections 303(a)(1) and
303(a)(3) of the Social Security Act, 42 U.S.C. 503(a)(1) and 503(a)(3).
(c) Promptness on appeals. (1) Decisions on appeals under the UCFE
Program shall accord with the Secretary's ``Standard for Appeals
Promptness--Unemployment Compensation'' in part 650 of this chapter, and
with Sec. 609.1(d).
(2) Any provision of an applicable State law for advancement or
priority of unemployment compensation cases on judicial calendars, or
otherwise intended to provide for the prompt payment of unemployment
compensation when due, shall apply to proceedings involving claims for
UCFE.
(d) Appeal and review by Federal agency. If a Federal agency
believes that a State agency's determination or redetermination of an
individual's eligibility for or entitlement to UCFE is incorrect, the
Federal agency may seek appeal and review of such determination or
redetermination in the same manner as an interested employer may seek
appeal and review under the applicable State law.
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
Sec. 609.8 The applicable State for an individual.
(a) The applicable State. The applicable State for an individual
shall be the State to which the individual's Federal civilian service
and Federal wages are assigned or transferred under this section. The
applicable State law for the individual shall be the State law of such
State.
(b) Assignment of service and wages. (1) An individual's Federal
civilian service and Federal wages shall be assigned to the State in
which the individual had his or her last official station prior to
filing a first claim unless:
(i) At the time a first claim is filed the individual resides in
another State in which, after separation from Federal civilian service,
the individual performed service covered under the State law, in which
case all of the individual's Federal civilian service and wages shall be
assigned to the latter State; or
(ii) Prior to filing a first claim an individual's last official
station was outside the States, in which case all of the individual's
Federal civilian service and Federal wages shall be assigned to the
State in which the individual resides at the time the individual files a
first claim, provided the individual is personally present in a State
when the individual files the first claim.
(2) Federal civilian service and wages assigned to a State in error
shall be reassigned for use by the proper State agency. An appropriate
record of a reassignment shall be made by the State agency which makes
the reassignment.
(3) Federal civilian service and Federal wages assigned to a State
shall be transferred to another State where such transfer is necessary
for the purposes of a combined-wage claim filed by an individual.
(c) Assignment deemed complete. All of an individual's Federal
civilian service and Federal wages shall be deemed to have been assigned
to a State upon the filing of a first claim. Federal civilian service
and Federal wages shall be assigned to a State only in accordance with
paragraph (b) of this section.
(d) Use of assigned service and wages. All assigned Federal civilian
service and Federal wages shall be used only by the State to which
assigned or transferred in accordance with paragraph (b) of this
section.
Sec. 609.9 Provisions of State law applicable to UCFE claims.
(a) Particular provisions applicable. Except where the result would
be inconsistent with the provisions of the Act or this part or the
procedures thereunder prescribed by the Department, the terms and
conditions of the applicable State law which apply to claims for, and
the payment of, State unemployment compensation shall apply to claims
for, and the payment of, UCFE and claims for waiting period credit. The
provisions of the applicable State law which shall apply include, but
are not limited to:
(1) Claim filing and reporting;
[[Page 57]]
(2) Information to individuals, as appropriate;
(3) Notices to individuals and Federal agencies, as appropriate,
including notice to each individual of each determination and
redetermination of eligibility for or entitlement to UCFE;
(4) Determinations and redeterminations;
(5) Ability to work, availability for work, and search for work; and
(6) Disqualifications.
(b) IBPP. The Interstate Benefit Payment Plan shall apply, where
appropriate, to individuals filing claims for UCFE.
(c) Wage combining. The State's provisions complying with the
Interstate Arrangement for Combining Employment and Wages (part 616 of
this chapter) shall apply, where appropriate, to individuals filing
claims for UCFE.
(d) Procedural requirements. The provisions of the applicable State
law which apply hereunder to claims for and the payment of UCFE shall be
applied consistently with the requirements of title III of the Social
Security Act and the Federal Unemployment Tax Act which are pertinent in
the case of State unemployment compensation, including but not limited
to those standards and requirements specifically referred to in the
provisions of this part, except as provided in paragraph (f) of Sec.
609.6.
Sec. 609.10 Restrictions on entitlement.
(a) Disqualification. If the week of unemployment for which an
individual claims UCFE is a week to which a disqualification for State
unemployment compensation applies under the applicable State law, or
would apply but for the fact that the individual has no right to such
compensation, the individual shall not be entitled to a payment of UCFE
for that week.
(b) Allocation of terminal annual leave payments. Lump-sum terminal
annual leave payments shall not be allocated by a Federal agency and
shall be allocated by a State agency in the same manner as similar
payments to individuals employed by private employers are allocated
under the applicable State law. In a State in which a private employer
has an option as to the period to which such payments shall be
allocated, such payments shall be allocated to the date of separation
from employment.
Sec. 609.11 Overpayments; penalties for fraud.
(a) False statements and representations. Section 8507(a) of the Act
provides that if a State agency, the Department, or a court of competent
jurisdiction finds that an individual--
(1) Knowingly has made, or caused to be made by another, a false
statement or representation of a material fact, or knowingly has failed,
or caused another to fail, to disclose a material fact; and
(2) As a result of that action has received an amount as UCFE to
which the individual was not entitled; the individual shall repay the
amount to the State agency or the Department. Instead of requiring
repayments, the State agency or the Department may recover the amount by
deductions from UCFE payable to the individual during the 2-year period
after the date of the finding. A finding by a State agency or the
Department may be made only after an opportunity for a fair hearing,
subject to such further review as may be appropriate under Sec. 609.7.
(b) Prosecution for fraud. Section 1919 of title 18, United States
Code, provides that whoever makes a false statement or representation of
a material fact knowing it to be false, or knowingly fails to disclose a
material fact, to obtain or increase for himself or for any other
individual any payment authorized to be paid under chapter 85 of title
5, United States Code, or under an agreement thereunder, shall be fined
not more than $1,000 or imprisoned not more than one year, or both.
(c) Absence of fraud. If a State agency or court of competent
jurisdiction finds that an individual has received a payment of UCFE to
which the individual was not entitled under the Act and this part, which
was not due to a false statement or representation as provided in
paragraph (a) or (b) of this section, the individual shall be liable to
repay to the applicable State the total sum of the payment to which the
individual was not entitled, and the State agency shall take all
reasonable measures authorized under any State law or Federal law to
recover for the account
[[Page 58]]
of the United States the total sum of the payment to which the
individual was not entitled.
(d) Recovery by offset. (1) The State agency shall recover, insofar
as is possible, the amount of any overpayment which is not repaid by the
individual, by deductions from any UCFE payable to the individual under
the Act and this part, or from any unemployment compensation payable to
the individual under any Federal unemployment compensation law
administered by the State agency, or from any assistance or allowance
payable to the individual with respect to unemployment under any other
Federal law administered by the State agency.
(2) A State agency shall also recover, insofar as is possible, the
amount of any overpayment of UCFE made to the individual by another
State, by deductions from any UCFE payable by the State agency to the
individual under the Act and this part, or from any unemployment
compensation payable to the individual under any Federal unemployment
compensation law administered by the State agency, or from any
assistance or allowance payable to the individual with respect to
unemployment under any other Federal law administered by the State
agency.
(3) Recoupment of fraudulent overpayments referred to in paragraph
(a) of this section shall be limited to the 2-year period stated in that
paragraph. Recoupment of fraudulent overpayments referred to in
paragraph (b) of this section, and nonfraudulent overpayments referred
to in paragraph (c) of this section shall be subject to any time
limitation on recoupment provided for in the State law that applies to
the case.
(e) Debts due the United States. UCFE payable to an individual shall
be applied by the State agency for the recovery by offset of any debt
due to the United States from the individual, but shall not be applied
or used by the State agency in any manner for the payment of any debt of
the individual to any State or any other entity or person except
pursuant to a court order for child support or alimony in accordance
with the law of the State and section 459 of the Social Security Act, 42
U.S.C. 659.
(f) Application of State law. (1) Except as indicated in paragraph
(a) of this section, any provision of State law that may be applied for
the recovery of overpayments or prosecution for fraud, and any provision
of State law authorizing waiver of recovery of overpayments of
unemployment compensation, shall be applicable to UCFE.
(2) In the case of any finding of false statement or representation
under the Act and paragraph (a) of this section, or prosecution for
fraud under 18 U.S.C. 1919 or pursuant to paragraph (f)(1) of this
section, the individual shall be disqualified or penalized in accordance
with the provisions of the applicable State law relating to fraud in
connection with a claim for State unemployment compensation.
(g) Final decision. Recovery of any overpayment of UCFE shall not be
enforced by the State agency until the determination or redetermination
establishing the overpayment has become final, or if appeal is taken
from the determination or redetermination, until the decision after
opportunity for a fair hearing has become final.
(h) Procedural requirements. (1) The provisions of paragraphs (c),
(d), and (g) of Sec. 609.6 shall apply to determinations and
redeterminations made pursuant to this section.
(2) The provisions of Sec. 609.7 shall apply to determinations and
redeterminations made pursuant to this section.
(i) Fraud detection and prevention. Provisions in the procedures of
each State with respect to detection and prevention of fraudulent
overpayments of UCFE shall be, as a minimum, commensurate with the
procedures adopted by the State with respect to State unemployment
compensation and consistent with the Secretary's ``Standard for Fraud
and Overpayment Detection'' (Employment Security Manual, part V, section
7510 et seq.).
(j) Recovered overpayments. An amount repaid or recouped under this
section shall be--
(1) Deposited in the fund from which payment was made, if the
repayment was to a State agency; or
(2) Returned to the Treasury of the United States and credited to
the current applicable appropriation, fund, or
[[Page 59]]
account from which payment was made, if the repayment was to the
Department.
Sec. 609.12 Inviolate rights to UCFE.
Except as specifically provided in this part, the rights of
individuals to UCFE shall be protected in the same manner and to the
same extent as the rights of persons to State unemployment compensation
are protected under the applicable State law. Such measures shall
include protection of applicants for UCFE from waiver, release,
assignment, pledge, encumbrance, levy, execution, attachment, and
garnishment of their rights to UCFE, except as provided in Sec. 609.11.
In the same manner and to the same extent, individuals shall be
protected from discrimination and obstruction in regard to seeking,
applying for, and receiving any right to UCFE.
Sec. 609.13 Recordkeeping; disclosure of information.
(a) Recordkeeping. Each State agency will make and maintain records
pertaining to the administration of the UCFE Program as the Department
requires, and will make all such records available for inspection,
examination, and audit by such Federal officials or employees as the
Department may designate or as may be required by law.
(b) Disclosure of Information. Information in records maintained by
a State agency in administering the UCFE Program shall be kept
confidential, and information in such records may be disclosed only in
the same manner and to the same extent as information with respect to
State unemployment compensation and the entitlement of individuals
thereto may be disclosed under the applicable State law. This provision
on the confidentiality of information maintained in the administration
of the UCFE Program shall not apply, however, to the Department or for
the purposes of Sec. Sec. 609.11 or 609.13, or in the case of
information, reports and studies required pursuant to Sec. Sec. 609.17
or 609.25, or where the result would be inconsistent with the Freedom of
Information Act (5 U.S.C. 552), the Privacy Act of 1974, as amended (5
U.S.C. 552a), or regulations of the Department promulgated thereunder.
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
Sec. 609.14 Payments to States.
(a) State entitlement. Each State is entitled to be paid by the
United States with respect to each individual whose base period wages
included Federal wages, an amount bearing the same ratio to the total
amount of compensation paid to such individual as the amount of the
individual's Federal wages in the individual's base period bears to the
total amount of the individual's base period wages.
(b) Payment. Each State shall be paid, either in advance or by way
of reimbursement, as may be determined by the Department, the sum that
the Department estimates the State is entitled to receive under the Act
and this part for each calendar month. The sum shall be reduced or
increased by the amount which the Department finds that its estimate for
an earlier calendar month was greater or less than the sum which should
have been paid to the State. An estimate may be made on the basis of a
statistical, sampling, or other method agreed on by the Department and
the State agency.
(c) Certification by the Department. The Department, from time to
time, shall certify to the Secretary of the Treasury the sum payable to
each State under this section. The Secretary of the Treasury, before
audit or settlement by the General Accounting Office, shall pay the
State in accordance with the certification from the funds for carrying
out the purposes of the Act and this part.
(d) Use of money. Money paid a State under the Act and this part may
be used solely for the purposes for which it is paid. Money so paid
which is not used solely for these purposes shall be returned, at the
time specified by the Agreement, to the Treasury of the United States
and credited to the current applicable appropriation, fund, or account
from which payments to states under the Act and this part may be made.
[[Page 60]]
Sec. 609.15 Public access to Agreements.
The State agency of a State will make available to any individual or
organization a true copy of the Agreement with the State for inspection
and copying. Copies of an Agreement may be furnished on request to any
individual or organization upon payment of the same charges, if any, as
apply to the furnishing of copies of other records of the State agency.
Sec. 609.16 Administration in absence of an Agreement.
(a) Administering Program. The Department shall administer the UCFE
Program through personnel of the Department or through other
arrangements under procedures prescribed by the Department, in the case
of any State which does not have an Agreement with the Secretary as
provided for in 5 U.S.C. 8502. The procedures prescribed by the
Department under this section shall be consistent with the Act and this
part.
(b) Applicable State law. On the filing by an individual of a claim
for UCFE in accordance with arrangements under this section, UCFE shall
be paid to the individual, if eligible, in the same amount, on the same
terms, and subject to the same conditions as would be paid to the
individual under the applicable State law if the individual's Federal
civilian service and Federal wages had been included as employment and
wages under the State law. Any such claim shall include the individual's
Federal civilian service and Federal wages, combined with any service
and wages covered by State law. However, if the individual, without
regard to his or her Federal civilian service and Federal wages, has
employment or wages sufficient to qualify for compensation during the
benefit year under that State law, then payments of UCFE under this
section may be made only on the basis of the individual's Federal
civilian service and Federal wages.
(c) Fair hearing. An individual whose claim for UCFE is denied under
this section is entitled to a fair hearing under rules of procedure
prescribed by the Department. A final determination by the Department
with respect to entitlement to UCFE under this section is subject to
review by the courts in the same manner and to the same extent as is
provided by section 205(g) of the Social Security Act, 42 U.S.C. 405(g).
Sec. 609.17 Information, reports, and studies.
State agencies shall furnish to the Department such information and
reports and conduct such studies as the Department determines are
necessary or appropriate for carrying out the purposes of the UCFE
Program.
Subpart C_Responsibilities of Federal Agencies
Sec. 609.20 Information to Federal civilian employees.
Each Federal agency shall:
(a) Furnish information to its employees as to their rights and
responsibilities under the UCFE Program and 18 U.S.C. 1919; and
(b) Furnish a completed copy of a form approved by the Department,
``Notice to Federal Employee About Unemployment Compensation,'' in
accordance with instructions thereon, to each employee at the time of
separation from Federal civilian service, when transferred from one
payroll office to another, or when the office responsible for
distribution of the form is advised that an individual is in nonpay
status for seven consecutive days or more.
Sec. 609.21 Findings of Federal agency.
(a) Answering request. Within four workdays after receipt from a
State agency of a request for Federal findings on a form furnished by
the State agency, and prescribed by the Department, a Federal agency
shall make such Federal findings, complete all copies of the form, and
transmit the completed copies to the State agency. If documents
necessary for completion of the form have been assigned to an agency
records center or the Federal Records Center in St. Louis, the Federal
agency shall obtain the necessary information from the records center.
Any records center shall give priority to such a request.
(b) Failure to meet time limit. If a completed form containing the
Federal agency's findings cannot be returned
[[Page 61]]
within four workdays of receipt, the Federal agency immediately shall
inform the State agency, and shall include an estimated date by which
the completed form will be returned.
(c) Administrative control. Each Federal agency shall maintain a
control of all requests for Federal findings received by it, and the
Federal agency's response to each request. The records shall be
maintained so as to enable the Federal agency to ascertain at any time
the number of such forms that have not been returned to State agencies,
and the dates of the Federal agency's receipt of such unreturned forms.
Sec. 609.22 Correcting Federal findings.
If a Federal agency ascertains at any time within one year after it
has returned a completed form reporting its findings, that any of its
findings were erroneous, it shall promptly correct its error and forward
its corrected findings to the State agency.
Sec. 609.23 Furnishing additional information.
On receipt of a request for additional information from a State
agency, a Federal agency shall consider the information it supplied
initially in connection with such request and shall review its findings.
The Federal agency promptly shall forward to the State agency such
additional findings as will respond to the request. The Federal agency
shall, if possible, respond within four workdays after the receipt of a
request under this section.
Sec. 609.24 Reconsideration of Federal findings.
On receipt of a request for reconsideration of Federal findings from
a State agency, the Federal agency shall consider the initial
information supplied in connection with such request and shall review
its findings. The Federal agency shall correct any errors or omissions
in its findings and shall affirm, modify, or reverse any or all of its
findings in writing. The Federal agency promptly shall forward its
reconsidered findings to the requesting authority. The Federal agency
shall, if possible, respond within four workdays after the receipt of a
request under this section.
Sec. 609.25 Furnishing other information.
(a) Additional Information. In addition to the information required
by Sec. Sec. 609.21, 609.22, 609.23, and 609.24, a Federal agency shall
furnish to a State agency or the Department, within the time requested,
any information which it is not otherwise prohibited from releasing by
law, which the Department determines is necessary for the administration
of the UCFE Program.
(b) Reports. Federal agencies shall furnish to the Department or
State agencies such reports containing such information as the
Department determines are necessary or appropriate for carrying out the
purposes of the UCFE Program.
Sec. 609.26 Liaison with Department.
To facilitate the Department's administration of the UCFE Program,
each Federal agency shall designate one or more of its officials to be
the liaison with the Department. Each Federal agency will inform the
Department of its designation(s) and of any change in a designation.
PART 614_UNEMPLOYMENT COMPENSATION FOR EX-SERVICEMEMBERS--Table of Contents
Subpart A_General Provisions
Sec.
614.1 Purpose and application.
614.2 Definitions of terms.
Subpart B_Administration of UCX Program
614.3 Eligibility requirements for UCX.
614.4 Weekly and maximum benefit amounts.
614.5 Claims for UCX.
614.6 Determinations of entitlement; notices to individual and Federal
military agency.
614.7 Appeal and review.
614.8 The applicable State for an individual.
614.9 Provisions of State law applicable to UCX claims.
614.10 Restrictions on entitlement.
614.11 Overpayments; penalties for fraud.
614.12 Schedules of remuneration.
614.13 Inviolate rights to UCX.
614.14 Recordkeeping; disclosure of information.
614.15 Payments to States.
614.16 Public access to Agreements.
614.17 Administration in absence of an Agreement.
[[Page 62]]
614.18 Information, reports, and studies.
Subpart C_Responsibilities of Federal Military Agencies and State
Agencies
614.20 Information to ex-servicemembers.
614.21 Findings of Federal military agency.
614.22 Correcting Federal findings.
614.23 Finality of findings.
614.24 Furnishing other information.
614.25 Liaison with Department
Appendix A to Part 614--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
Appendix B to Part 614--Standard for Claim Determination--Separation
Information
Appendix C to Part 614--Standard for Fraud and Overpayment Detection
Authority: 5 U.S.C. 8508; Secretary's Order No. 4-75 (40 FR 18515).
Source: 47 FR 54697, Dec. 3, 1982, unless otherwise noted.
Subpart A_General Provisions
Sec. 614.1 Purpose and application.
(a) Purpose. Subchapter II of chapter 85, title 5 of the United
States Code (5 U.S.C. 8521-8525) provides for a permanent program of
unemployment compensation for unemployed individuals separated from the
Armed Forces. The unemployment compensation provided for in subchapter
II is hereinafter referred to as Unemployment Compensation for Ex-
servicemembers, or UCX. The regulations in this part are issued to
implement the UCX Program.
(b) First rule of construction. The Act and the implementing
regulations in this part shall be construed liberally so as to carry out
the purposes of the Act.
(c) Second rule of construction. The Act and the implementing
regulations in this part shall be construed so as to assure insofar as
possible the uniform interpretation and application of the Act
throughout the United States.
(d) Effectuating purpose and rules of construction. (1) In order to
effectuate the provisions of this section, each State agency shall
forward to the United States Department of Labor (hereafter Department),
not later than 10 days after issuance, a copy of each judicial or
administrative decision ruling on an individual's entitlement to payment
of UCX or to credit for a waiting period. On request of the Department,
a State agency shall forward to the Department a copy of any
determination or redetermination ruling on an individual's entitlement
to UCX or waiting period credit.
(2)(i) If the Department believes that a determination,
redetermination, or decision is inconsistent with the Department's
interpretation of the Act or this part, the Department may at any time
notify the State agency of the Department's view. Thereafter, the State
agency shall issue a redetermination or appeal if possible, and shall
not follow such determination, redetermination, or decision as a
precedent; and, in any subsequent proceedings which involve such
determination, redetermination, or decision, or wherein such
determination, redetermination, or decision is cited as precedent or
otherwise relied upon, the State agency shall inform the claims deputy
or hearing officer or court of the Department's view and shall make all
reasonable efforts, including appeal or other proceedings in an
appropriate forum, to obtain modification, limitation, or overruling of
the determination, redetermination, or decision.
(ii) If the Department believes that a State agency has failed to
use, or use in a timely manner, the crossmatch mechanism at the claims
control center designated by the Department, the Department may at any
time notify the State of the Department's view. Thereafter, the State
agency shall take action to ensure that operable procedures for the
effective utilization of the claims control center are in place and
adhered to. In any case of any determination, redetermination, or
decision that is not legally warranted under the Act or this part had
the State used, or used in a timely manner, the crossmatch mechanism at
the claims control center designated by the Department, State agency
shall take the steps outlined in paragraph (d)(2)(i) of this section.
(3) If the Department believes that a determination,
redetermination, or decision is patently and flagrantly violative of the
Act or this part, the Department may at any time notify the State agency
of the Department's view. If the determination, redetermination, or
decision in question denies UCX to a
[[Page 63]]
claimant, the steps outlined in paragraph (2) above shall be followed by
the State agency. If the determination, redetermination, or decision in
question awards UCX to a claimant, the benefits are ``due'' within the
meaning of section 303(a)(1) of the Social Security Act, 42 U.S.C.
503(a)(1), and therefore must be paid promptly to the claimant. However,
the State agency shall take the steps outlined in paragraph (d)(2) of
this section, and payments to the claimant may be temporarily delayed if
redetermination or appeal action is taken not more than one business day
following the day on which the first payment otherwise would be issued
to the claimant; and the redetermination action is taken or appeal is
filed to obtain a reversal of the award of UCX and a ruling consistent
with the Department's view; and the redetermination action or appeal
seeks an expedited redetermination or appeal within not more than two
weeks after the redetermination action is taken or the appeal is filed.
If redetermination action is not taken or appeal is not filed within the
above time limit, or a redetermination or decision is not obtained
within the two-week limit, or any redetermination or decision or order
is issued which affirms the determination, redetermination, or decision
awarding UCX or allows it to stand in whole or in part, the benefits
awarded must be paid promptly to the claimant.
(4)(i) If any determination, redetermination, or decision, referred
to in paragraph (d)(2) or paragraph (d)(3) of this section, is treated
as a precedent for any future UCX claim or claim under the UCFE Program
(part 609 of this chapter), the Secretary will decide whether the
Agreement with the State entered into under the Act shall be terminated.
(ii) In the case of any determination, redetermination, or decision
that is not legally warranted under the Act or this part, including any
determination, redetermination, or decision referred to in paragraph
(d)(2) or in paragraph (d)(3) of this section, the Secretary will decide
whether the State shall be required to restore the funds of the United
States for any sums paid under such a determination, redetermination, or
decision, and whether, in absence of such restoration, the Agreement
with the State shall be terminated and whether other action shall be
taken to recover such sums for the United States.
(5) A State agency may request reconsideration of a notice issued
pursuant to paragraph (d)(2) or paragraph (d)(3) of this section, and
shall be given an opportunity to present views and arguments if desired.
(6) Concurrence of the Department in a determination,
redetermination, or decision shall not be presumed from the absence of a
notice issued pursuant to this section.
(Approved by the Office of Management and Budget under control number
1205-0163)
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40553, Oct. 17, 1988; 53
FR 43799, Oct. 26, 1988; 57 FR 59799, Dec. 15, 1992]
Sec. 614.2 Definitions of terms.
For purposes of the Act and this part:
(a) Act means subchapter II of chapter 85 of title 5 of the United
States Code, 5 U.S.C. 8521-8525.
(b) Agreement means the Agreement entered into pursuant to 5 U.S.C.
8502 between a State and the Secretary under which the State agency of
the State agrees to make payments of unemployment compensation in
accordance with the Act and the regulations and procedures thereunder
prescribed by the Department.
(c) Base period means the base period as defined by the applicable
State law for the benefit year.
(d) Benefit year means the benefit year as defined by the applicable
State law, and if not so defined the term means the period prescribed in
the Agreement with the State or, in the absence of an Agreement, the
period prescribed by the Department.
(e) Ex-servicemember means an individual who has performed Federal
military service.
(f) Federal military agency means any of the Armed Forces of the
United States, including the Army, Air Force, Navy, Marine Corps, and
Coast Guard, and the National Oceanic and Atmospheric Administration
(Department of Commerce).
(g) Federal military service means active service (not including
active duty
[[Page 64]]
in a reserve status unless for a continuous period of 90 days or more)
in the Armed Forces or the Commissioned Corps of the National Oceanic
and Atmospheric Administration if with respect to that service--
(1) The individual was discharged or released under honorable
conditions (and, if an officer, did not resign for the good of the
service); and
(2)(i) The individual was discharged or released after completing
his/her first full term of active service which the individual initially
agreed to serve, or
(ii) The individual was discharged or released before completing
such term of active service--
(A) For the convenience of the Government under an early release
program,
(B) Because of medical disqualification, pregnancy, parenthood, or
any service-incurred injury or disability,
(C) Because of hardship, or
(D) Because of personality disorders or inaptitude but only if the
service was continuous for 365 days or more.
(h) Federal military wages means all pay and allowances in cash and
in kind for Federal military service, computed on the basis of the pay
and allowances for the pay grade of the individual at the time of his or
her latest discharge or release from Federal/military service, as
determined in accordance with the Schedule of Remuneration applicable at
the time the individual files his or her first claim for compensation
for a benefit year.
(i) First claim means an initial claim for unemployment compensation
under the UCX Program, the UCFE Program (part 609 of this chapter), or a
State law, or some combination thereof, first filed by an individual
after the individual's latest discharge or release from Federal military
service, whereby a benefit year is established under an applicable State
law.
(j) Military document means an official document or documents issued
to an individual by a Federal military agency relating to the
individual's Federal military service and discharge or release from such
service.
(k) Period of active service means a period of continuous active
duty (including active duty for training purposes) in a Federal military
agency or agencies, beginning with the date of entry upon active duty
and ending on the effective date of the first discharge or release
thereafter which is not qualified or conditional.
(l) Schedule of Remuneration means the schedule issued by the
Department from time to time under 5 U.S.C. 8521(a)(2) and this part,
which specifies for purposes of the UCX Program, the pay and allowances
for each pay grade of servicemember.
(m) Secretary means the Secretary of Labor of the United States.
(n) State means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, and the Virgin Islands.
(o) State agency means the agency of the State which administers the
applicable State unemployment compensation law and is administering the
UCX Program in the State pursuant to an Agreement with the Secretary.
(p)(1) State law means the unemployment compensation law of a State
approved by the Secretary under section 3304 of the Internal Revenue
Code of 1986, 26 U.S.C. 3304, if the State is certified under section
3304(c) of the Internal Revenue Code of 1986, 26 U.S.C. 3304(c).
(2) Applicable State law means the State law made applicable to a
UCX claimant by Sec. 614.8.
(q)(1) Unemployment compensation means cash benefits (including
dependents' allowances) payable to individuals with respect to their
unemployment, and includes regular, additional, emergency, and extended
compensation.
(2) Regular compensation means unemployment compensation payable to
an individual under any State law, but not including additional
compensation or extended compensation.
(3) Additional compensation means unemployment compensation totally
financed by a State and payable under a State law by reason of
conditions of high unemployment or by reason of other special factors.
(4) Emergency compensation means supplementary unemployment
compensation payable under a temporary Federal law after exhaustion of
regular and extended compensation.
[[Page 65]]
(5) Extended compensation means unemployment compensation payable to
an individual for weeks of unemployment in an extended benefit period,
under those provisions of a State law which satisfy the requirements of
the Federal-State Extended Unemployment Compensation Act of 1970, as
amended, 26 U.S.C. 3304 note, and part 615 of this chapter, with respect
to the payment of extended compensation.
(r) Unemployment Compensation for Ex-Servicemember means the
unemployment compensation payable under the Act to claimants eligible
for the payments, and is referred to as UCX.
(s) Week means, for purposes of eligibility for and payment of UCX,
a week as defined in the applicable State law.
(t) Week of unemployment means a week of total, part-total, or
partial unemployment as defined in the applicable State law, which shall
be applied in the same manner and to the same extent to all employment
and earnings, and in the same manner and to the same extent for the
purposes of the UCX Program, as if the individual filing for UCX were
filing a claim for State unemployment compensation.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 53
FR 43799, Oct. 26, 1988; 57 FR 59799, Dec. 15, 1992]
Subpart B_Administration of UCX Program
Sec. 614.3 Eligibility requirements for UCX.
An individual shall be eligible to receive a payment of UCX or
waiting period credit with respect to a week of unemployment if:
(a) The individual has Federal military service and Federal military
wages in the base period under the applicable State law;
(b) The individual meets the qualifying employment and wage
requirements of the applicable State law, either on the basis of Federal
military service and Federal military wages alone or in combination with
service and wages covered under a State law or under the UCFE Program
(part 609 of this chapter);
(c) The individual has filed an initial claim for UCX and, as
appropriate, has filed a timely claim for waiting period credit or
payment of UCX with respect to that week of unemployment; and
(d) The individual is totally, part-totally, or partially
unemployed, and is able to work, available for work, and seeking work
within the meaning of or as required by the applicable State law, and is
not subject to disqualification under this part or the applicable State
law, with respect to that week of unemployment.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 57
FR 59799, Dec. 15, 1992]
Sec. 614.4 Weekly and maximum benefit amounts.
(a) Total unemployment. The weekly amount of UCX payable to an
eligible individual for a week of total unemployment shall be the amount
that would be payable to the individual as unemployment compensation for
a week of total unemployment as determined under the applicable State
law.
(b) Partial and part-total unemployment. The weekly amount of UCX
payable for a week of partial or part-total unemployment shall be the
amount that would be payable to the individual as unemployment
compensation for a week of partial or part-total unemployment as
determined under the applicable State law.
(c) Maximum amount. The maximum amount of UCX which shall be payable
to an eligible individual during and subsequent to the individual's
benefit year shall be the maximum amount of all unemployment
compensation that would be payable to the individual as determined under
the applicable State law.
(d) Computation rules. The weekly and maximum amounts of UCX payable
to an individual under the UCX Program shall be determined under the
applicable State law to be in the same amount, on the same terms, and
subject to the same conditions as the State unemployment compensation
which would be payable to the individual under the applicable State law
if the individual's Federal military service and Federal military wages
assigned or transferred under this part to the State had been included
as employment and wages covered by that State
[[Page 66]]
law, subject to the use of the applicable Schedule of Remuneration.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 57
FR 59800, Dec. 15, 1992]
Sec. 614.5 Claims for UCX.
(a) First claims. A first claim for UCX shall be filed by an
individual in any State agency of any State according to the applicable
State law, and on a form prescribed by the Department which shall be
furnished to the individual by the State agency where the claim is
filed.
(b) Weekly claims. Claims for waiting week credit and payments of
UCX for weeks of unemployment shall be filed in any State agency (or
Canada) at the times and in the manner as claims for State unemployment
compensation are filed under the applicable State law, and on forms
prescribed by the Department which shall be furnished to the individual
by the State agency where the claim is filed.
(c) Secretary's standard. The procedures for reporting and filing
claims for UCX and waiting period credit shall be consistent with this
part 614 and the Secretary's ``Standard for Claim Filing, Claimant
Reporting, Job Finding and Employment Services'' in the Employment
Security Manual, part V, sections 5000-5004 (appendix A of this part).
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988]
Sec. 614.6 Determinations of entitlement; notices to individual and
Federal military agency.
(a) Determinations of first claim. Except for findings of a Federal
military agency and the applicable Schedule of Remuneration which are
final and conclusive under Sec. 614.23, the State agency whose State
law applies to an individual under Sec. 614.8 shall, promptly upon the
filing of a first claim for UCX, determine whether the individual is
otherwise eligible, and, if the individual is found to be eligible, the
individual's benefit year and the weekly and maximum amounts of UCX
payable to the individual.
(b) Determinations of weekly claims. The State agency promptly
shall, upon the filing of a claim for a payment of UCX or waiting period
credit with respect to a week, determine whether the individual is
entitled to a payment of UCX or waiting period credit respect to such
week, and, if entitled, the amount of UCX or waiting period credit to
which the individual is entitled.
(c) Redetermination. The provisions of the applicable State law
concerning the right to request, or authority to undertake,
reconsideration of a determination pertaining to State unemployment
compensation under the applicable State law shall apply to
determinations pertaining to UCX.
(d) Notices to individual and Federal military agency. (1) The State
agency promptly shall give notice in writing to the individual of any
determination or redetermination of a first claim, and, except as may be
authorized under paragraph (g) of this section, of any determination or
redetermination of any weekly claim which denies UCX or waiting period
credit or reduces the weekly amount or maximum amount initially
determined to be payable. Each notice of determination or
redetermination shall include such information regarding the
determination or redetermination and notice of right to reconsideration
or appeal, or both, as is furnished with written notices of
determinations and redeterminations with respect to claims for State
unemployment compensation. Such notice shall include the findings of any
Federal military agency utilized in making the determination or
redetermination, and shall inform the individual of the finality of
Federal findings and the individual's right to request correction of
such findings as is provided in Sec. 614.22.
(2) A notice of claim filing and subsequent notices of monetary and
nonmonetary determinations on a UCX claim shall be sent to each Federal
military agency for which the individual performed Federal military
service during the appropriate base period, together with notice of
appeal rights of the Federal military agency to the same extent that
chargeable employers are given such notices under State law and practice
unless an alternate mechanism is established by the Department of Labor
in lieu of such notices.
[[Page 67]]
(e) Obtaining information for claim determinations. (1) Information
required for the determination of claims for UCX shall be obtained by
the State agency from claimants, employers, and others, in the same
manner as information is obtained for claim purposes under the
applicable State law, but Federal military findings shall be obtained
from military documents, the applicable Schedule of Remuneration, and
from Federal military agencies as prescribed in Sec. Sec. 614.21
through 614.24.
(f) Promptness. Full payment of UCX when due shall be consistent
with this part and shall be made with the greatest promptness that is
administratively feasible, but the provisions of part 640 of this
chapter (relating to promptness of benefit payments) shall not be
applicable to the UCX Program.
(g) Secretary's standard. The procedures for making determinations
and redeterminations, and furnishing written notices of determinations,
redeterminations, and rights of appeal to individuals applying for UCX
and to appropriate Federal military agencies shall be consistent with
this part 614 and the Secretary's ``Standard for Claim Determinations-
Separation Information'' in the Employment Security Manual, part V,
sections 6010-6015 (Appendix B of this part).
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 71
FR 35514, June 21, 2006]
Sec. 614.7 Appeal and review.
(a) Applicable State Law. The provisions of the applicable State law
concerning the right of appeal and fair hearing from a determination or
redetermination of entitlement to State unemployment compensation
(exclusive of findings which are final and conclusive under Sec.
614.25) shall apply to determinations and redeterminations of
eligibility for or entitlement to UCX and waiting period credit. Any
such determination or redetermination shall be subject to appeal and
review only in the manner and to the extent provided in the applicable
State law with respect to determinations and redeterminations of
entitlement to State unemployment compensation.
(Section 614.24 governs appeals of findings of the Veterans
Administration)
(b) Rights of appeal and fair hearing. The provisions on right of
appeal and opportunity for a fair hearing with respect to claims for UCX
shall be consistent with this part and with sections 303(a)(1) and
303(a)(3) of the Social Security Act, 42 U.S.C. 503(a)(1) and 503(a)(3).
(c) Promptness on appeals. (1) Decisions on appeals under the UCX
Program shall accord with the Secretary's ``Standard for Appeals
Promptness--Unemployment Compensation'' in part 650 of this chapter, and
with Sec. 614.1(d).
(2) Any provision of an applicable State law for advancement or
priority of unemployment compensation cases on judicial calendars, or
otherwise intended to provide for the prompt payment of unemployment
compensation when due, shall apply to proceedings involving claims for
UCX.
(d) Appeal and review by Federal military agency. If a Federal
military agency believes that a State agency's determination or
redetermination of an individual's eligibility for or entitlement to UCX
is incorrect, the Federal military agency may seek appeal and review of
such determination or redetermination in the same manner as an
interested employer may seek appeal and review under the applicable
State law.
Sec. 614.8 The applicable State for an individual.
(a) The applicable State. The applicable State for an individual
shall be the State to which the individual's Federal military service
and Federal military wages are assigned or transferred under this
section. The applicable State law for the individual shall be the State
law of such State.
(b) Assignment of service and wages. (1) When an individual files a
first claim, all of the individual's Federal military service and
Federal military wages shall be deemed to be assigned to the State in
which such claim is filed, which shall be the ``Paying State'' in the
case of a combined-wage claim. (Sec. 616.6(e) of this chapter.)
(2) Federal military service and Federal military wages assigned to
a State in error shall be reassigned for use by the proper State agency.
An appropriate record of the reassignment shall
[[Page 68]]
be made by the State agency which makes the reassignment.
(c) Assignment deemed complete. All of an individual's Federal
military service and Federal military wages shall be deemed to have been
assigned to a State upon the filing of a first claim. Federal military
service and Federal military wages shall be assigned to a State only in
accordance with paragraph (b) of this section.
(d) Use of assigned service and wages. All assigned Federal military
service and Federal military wages shall be used only by the State to
which assigned in accordance with paragraph (b) of this section, except
that any Federal military service and Federal military wages which are
not within the base period of the State to which they were assigned
shall be subject to transfer in accordance with part 616 of this chapter
for the purposes of any subsequent Combined-Wage Claim filed by the
individual.
Sec. 614.9 Provisions of State law applicable to UCX claims.
(a) Particular provisions applicable. Except where the result would
be inconsistent with the provisions of the Act or this part or the
procedures thereunder prescribed by the Department, the terms and
conditions of the applicable State law which apply to claims for, and
the payment of, State unemployment compensation shall apply to claims
for, and the payment of, UCX and claims for waiting period credit. The
provisions of the applicable State law which shall apply include, but
are not limited to:
(1) Claim filing and reporting;
(2) Information to individuals, as appropriate;
(3) Notices to individuals, as appropriate, including notice to each
individual of each determination and redetermination of eligibility for
or entitlement to UCX;
(4) Determinations and redeterminations;
(5) Ability to work, availability for work, and search for work; and
(6) Disqualifications, except in regard to separation from any
Federal military agency.
(b) IBPP. The Interstate Benefit Payment Plan shall apply, where
appropriate, to individuals filing claims for UCX.
(c) Wage combining. The State's provisions complying with the
Interstate Arrangement for Combining Employment and Wages (part 616 of
this chapter) shall apply, where appropriate, to individuals filing
claims for UCX.
(d) Procedural requirements. The provisions of the applicable State
law which apply hereunder to claims for and the payment of UCX shall be
applied consistently with the requirements of title III of the Social
Security Act and the Federal Unemployment Tax Act which are pertinent in
the case of State unemployment compensation, including but not limited
to those standards and requirements specifically referred to in the
provisions of this part, except as provided in paragraph (f) of Sec.
614.6.
Sec. 614.10 Restrictions on entitlement.
(a) Disqualification. If the week of unemployment for which an
individual claims UCX is a week to which a disqualification for State
unemployment compensation applies under the applicable State law, the
individual shall not be entitled to a payment of UCX for that week. As
provided in Sec. 614.9(a), no disqualification shall apply in regard to
separation from any Federal military agency.
(b) Effect of ``days lost''. The continuity of a period of an
individual's Federal military service shall not be deemed to be
interrupted by reason of any ``days lost'' in such period, but ``days
lost'' shall not be counted for purposes of determining:
(1) Whether an individual has performed Federal military service;
(2) Whether an individual meets the wage and employment requirements
of a State law; or
(3) The amount of an individual's Federal military wages.
(c) Allocation of military accrued leave. A State agency shall
allocate the number of days of unused military leave specified in an ex-
servicemember's military document, for which a lump-sum payment has been
made, in the same manner as similar payments by private employers to
their employees are allocated under the applicable State law, except
that the applicable Schedule of Remuneration instead of
[[Page 69]]
the lump-sum payment shall be used to determine the amount of the
claimant's Federal military wages. In a State in which a private
employer has an option as to the period to which such payments shall be
allocated, such payments shall be allocated to the date of the
individual's latest discharge or release from Federal military service.
An allocation under this paragraph shall be disregarded in determining
whether an individual has had a period of active service constituting
Federal military service.
(d) Education and training allowances. An individual is not entitled
to UCX under the Act or this part for a period with respect to which the
individual receives:
(1) A subsistence allowance for vocational rehabilitation training
under chapter 31 of title 38 of the United States Code, 38 U.S.C. 1501
et seq., or under part VIII of Veterans Regulation Numbered 1(a); or
(2) An educational assistance allowance or special training
allowance under chapter 35 of title 38 of the United States Code, 38
U.S.C. 1700 et seq.
Sec. 614.11 Overpayments; penalties for fraud.
(a) False statements and representations. Section 8507(a) of the Act
provides that if a State agency, the Department, or a court of competent
jurisdiction finds that an individual--
(1) Knowingly has made, or caused to be made by another, a false
statement or representation of a material fact, or knowingly has failed,
or caused another to fail, to disclose a material fact; and
(2) As a result of that action has received an amount as UCX to
which the individual was not entitled; the individual shall repay the
amount to the State agency or the Department. Instead of requiring
repayment, the State agency or the Department may recover the amount by
deductions from UCX payable to the individual during the 2-year period
after the date of the finding. A finding by a State agency or the
Department may be made only after an opportunity for a fair hearing,
subject to such further review as may be appropriate under Sec. 614.7.
(b) Prosecution for fraud. Section 1919 of title 18, United States
Code, provides that whoever makes a false statement or representation of
a material fact knowing it to be false, or knowingly fails to disclose a
material fact, to obtain or increase for himself or for any other
individual any payment authorized to be paid under chapter 85 of title
5, United States Code, or under an agreement thereunder, shall be fined
not more than $1,000 or imprisoned not more than one year, or both.
(c) Absence of fraud. If a State agency or court of competent
jurisdiction finds that an individual has received a payment of UCX to
which the individual was not entitled under the Act and this part, which
was not due to a false statement or representation as provided in
paragraph (a) or (b) of this section, the individual shall be liable to
repay to the applicable State the total sum of the payment to which the
individual was not entitled, and the State agency shall take all
reasonable measures authorized under any State law or Federal law to
recover for the account of the United States the total sum of the
payment to which the individual was not entitled.
(d) Recovery by offset. (1) The State agency shall recover, insofar
as is possible, the amount of any overpayment which is not repaid by the
individual, by deductions from any UCX payable to the individual under
the Act and this part, or from any unemployment compensation payable to
the individual under any Federal unemployment compensation law
administered by the State agency, or from any assistance or allowance
payable to the individual with respect to unemployment under any other
Federal law administered by the State agency.
(2) A State agency shall also recover, insofar as is possible, the
amount of any overpayment of UCX made to the individual by another State
by deductions from any UCX payable by the State agency to the individual
under the Act and this part, or from any unemployment compensation
payable to the individual under any Federal unemployment compensation
law administered by the State agency, or from any assistance or
allowance payable to
[[Page 70]]
the individual with respect to unemployment under any other Federal law
administered by the State agency.
(3) Recoupment of fraudulent overpayments referred to in paragraph
(a) of this section shall be limited to the 2-year period stated in that
paragraph. Recoupment of fraudulent overpayments referred to in
paragraph (b) of this section, and nonfraudulent overpayments referred
to in paragraph (c) of this section shall be subject to any time
limitation on recoupment provided for in the State law that applies to
the case.
(e) Debts due the United States. UCX payable to an individual shall
be applied by the State agency for the recovery by offset of any debt
due to the United States from the individual, but shall not be applied
or used by the State agency in any manner for the payment of any debt of
the individual to any State or any other entity or person except
pursuant to a court order for child support or alimony in accordance
with the law of the State and section 459 of the Social Security Act, 42
U.S.C. 659.
(f) Application of State law. (1) Except as indicated in paragraph
(a) of this section, any provision of State law that may be applied for
the recovery of overpayments or prosecution for fraud, and any provision
of State law authorizing waiver of recovery of overpayments of
unemployment compensation, shall be applicable to UCX.
(2) In the case of any finding of false statement of representation
under the Act and paragraph (a) of this section, or prosecution for
fraud under 18 U.S.C. 1919 or pursuant to paragraph (f)(1) of this
section, the individual shall be disqualified or penalized in accordance
with the provision of the applicable State law relating to fraud in
connection with a claim for State unemployment compensation.
(g) Final decision. Recovery of any overpayment of UCX shall not be
enforced by the State agency until the determination or redetermination
establishing the overpayment has become final, or if appeal is taken
from the determination or redetermination, until the decision after
opportunity for a fair hearing has become final.
(h) Procedural requirements. (1) The provisions of paragraphs (c),
(d), and (g) of Sec. 614.6 shall apply to determinations and
redeterminations made pursuant to this section.
(2) The provisions of Sec. 614.7 shall apply to determinations and
redeterminations made pursuant to this section.
(i) Fraud detection and prevention. Provisions in the procedures of
each State with respect to detection and prevention of fraudulent
overpayments of UCX shall be, as a minimum, commensurate with the
procedures adopted by the State with respect to State unemployment
compensation and consistent with this part 614 and the Secretary's
``Standard for Fraud and Overpayment Detection'' in the Employment
Security Manual, part V, sections 7510-7515 (Appendix C of this part),
and provide for timely use of any crossmatch mechanism established by
the Department.
(j) Recovered overpayments. An amount repaid or recouped under this
section shall be--
(1) Deposited in the fund from which payment was made, if the
repayment was to a State agency; or
(2) Returned to the Treasury of the United States and credited to
the current applicable appropriation, fund, or account from which
payment was made, if the repayment was to the Department.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40555, Oct. 17, 1988]
Sec. 614.12 Schedules of remuneration.
(a) Authority. Section 8521(a)(2) of chapter 85, title 5 of the
United States Code, 5 U.S.C. 8521(a)(2), requires the Secretary of Labor
to issue from time to time, after consultation with the Secretary of
Defense, a Schedule of Remuneration specifying the pay and allowances
for each pay grade of members of the Armed Forces.
(b) Elements of schedule. A schedule reflects representative amounts
for appropriate elements of the pay and allowances, whether in cash or
kind, for each pay grade of members of the Armed Forces, with a
statement of the effective date of the schedule. Benefit amounts for the
UCX Program are computed on the basis of the Federal
[[Page 71]]
military wages for the pay grade of the individual at the time of the
individual's latest discharge or release from Federal military service,
as specified in the schedule applicable at the time the individual files
his or her first claim for compensation for the benefit year.
(c) Effective date. Any new Schedule of Remuneration shall take
effect beginning with the first week of the calendar quarter following
the calendar quarter in which such schedule is issued, and shall remain
applicable until a subsequent schedule becomes effective. Prior
schedules shall continue to remain applicable for the periods they were
in effect.
(d) Publication. Any new Schedule of Remuneration shall be issued by
the Secretary of Labor to the State agencies and the Federal military
agencies. Promptly after the issuance of a new Schedule of Remuneration
it shall be published as a notice in the Federal Register.
Sec. 614.13 Inviolate rights to UCX.
Except as specifically provided in this part, the rights of
individuals to UCX shall be protected in the same manner and to the same
extent as the rights of persons to State unemployment compensation are
protected under the applicable State law. Such measures shall include
protection of applicants for UCX from waiver, release, assignment,
pledge, encumbrance, levy, execution, attachment, and garnishment of
their rights to UCX, except as provided in Sec. 614.11. In the same
manner and to the same extent, individuals shall be protected from
discrimination and obstruction in regard to seeking, applying for, and
receiving any right to UCX.
Sec. 614.14 Recordkeeping; disclosure of information.
(a) Recordkeeping. Each State agency will make and maintain records
pertaining to the administration of the UCX Program as the Department
requires, and will make all such records available for inspection,
examination, and audit by such Federal officials or employees as the
Department may designate or as may be required by law.
(b) Disclosure of information. Information in records maintained by
a State agency in administering the UCX Program shall be kept
confidential, and information in such records may be disclosed only in
the same manner and to the same extent as information with respect to
State unemployment compensation and the entitlement of individuals
thereto may be disclosed under the applicable State law. This provision
on the confidentiality of information maintained in the administration
of the UCX Program shall not apply, however, to the Department or for
the purposes of Sec. Sec. 614.11 or 614.14, or in the case of
information, reports and studies required pursuant to Sec. Sec. 614.18
or 614.26, or where the result would be inconsistent with the Freedom of
Information Act, 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a,
or regulations of the Department promulgated thereunder.
Sec. 614.15 Payments to States.
(a) State entitlement. Each State is entitled to be paid by the
United States with respect to each individual whose base period wages
included Federal military wages, an amount bearing the same ratio to the
total amount of compensation paid to such individual as the amount of
the individual's Federal military wages in the individual's base period
bears to the total amount of the individual's base period wages.
(b) Payment. Each State shall be paid, either in advance or by way
of reimbursement, as may be determined by the Department, the sum that
the Department estimates the State is entitled to receive under the Act
and this part for each calendar month. The sum shall be reduced or
increased by the amount which the Department finds that its estimate for
an earlier calendar month was greater or less than the sum which should
have been paid to the State. An estimate may be made on the basis of a
statistical, sampling, or other method agreed on by the Department and
the State agency.
(c) Certification by the Department. The Department, from time to
time, shall certify to the Secretary of the Treasury the sum payable to
each State under this section. The Secretary of the Treasury, before
audit or settlement by the General Accounting Office, shall pay the
State in accordance
[[Page 72]]
with the certification from the funds for carrying out the purposes of
the Act and this part.
(d) Use of money. Money paid a State under the Act and this part may
be used solely for the purposes for which it is paid. Money so paid
which is not used solely for these purposes shall be returned, at the
time specified by the Agreement, to the Treasury of the United States
and credited to the current applicable appropriation, fund, or account
from which payments to States under the Act and this part may be made.
Sec. 614.16 Public access to Agreements.
The State agency of a State will make available to any individual or
organization a true copy of the Agreement with the State for inspection
and copying. Copies of an Agreement may be furnished on request to any
individual or organization upon payment of the same charges, if any, as
apply to the furnishing of copies of other records of the State agency.
Sec. 614.17 Administration in absence of an Agreement.
(a) Administering program. The Department shall administer the UCX
Program through personnel of the Department or through other
arrangements under procedures prescribed by the Department, in the case
of any State which does not have an Agreement with the Secretary as
provided for in 5 U.S.C. 8502. The procedures prescribed by the
Department under this section shall be consistent with the Act and this
part.
(b) Applicable State law. On the filing by an individual of a claim
for UCX in accordance with arrangements under this section, UCX shall be
paid to the individual, if eligible, in the same amount, on the same
terms, and subject to the same conditions as would be paid to the
individual under the applicable State law if the individual's Federal
military service and Federal military wages had been included as
employment and wages under the State law. Any such claims shall include
the individual's Federal military service and Federal military wages,
combined with any service and wages covered by State law. However, if
the individual, without regard to his or her Federal military service
and Federal military wages, has employment or wages sufficient to
qualify for compensation during the benefit year under that State law,
then payments of UCX under this section may be made only on the basis of
the individual's Federal military service and Federal military wages.
(c) Fair hearing. An individual whose claim for UCX is denied under
this section is entitled to a fair hearing under rules of procedures
prescribed by the Department. A final determination by the Department
with respect to entitlement to UCX under this section is subject to
review by the courts in the same manner and to the same extent as is
provided by section 205(g) of the Social Security Act, 42 U.S.C. 405(g).
Sec. 614.18 Information, reports, and studies.
State agencies shall furnish to the Department such information and
reports and conduct such studies as the Department determines are
necessary or appropriate for carrying out the purposes of the UCX
Program.
Subpart C_Responsibilities of Federal Military Agencies and State
Agencies
Sec. 614.20 Information to ex-servicemembers.
At the time of discharge or release from Federal military service,
each Federal military agency shall furnish to each ex-servicemember
information explaining rights and responsibilities under the UCX Program
and 18 U.S.C. 1919, and military documents necessary for filing claims
for UCX.
Sec. 614.21 Findings of Federal military agency.
(a) Findings in military documents. Information contained in a
military document furnished to an ex-servicemember shall constitute
findings to which Sec. 614.23 applies as to:
(1) Whether the individual has performed active service in the Armed
Forces or the Commissioned Corps of the National Oceanic and Atmospheric
Administration;
[[Page 73]]
(2) The beginning and ending dates of the period of active service
and ``days lost'' during such period;
(3) The type of discharge or release terminating the period of
active service;
(4) The individuals' pay grade at the time of discharge or release
from active service; and
(5) The narrative reason or other reason for separation from active
service.
(b) Discharges not under honorable conditions. A military document
which shows that an individual's discharge or release was under other
than honorable conditions shall also be a finding to which Sec. 614.23
applies.
[53 FR 40555, Oct. 17, 1988]
Sec. 614.22 Correcting Federal findings.
(a) Request for correction. (1) If an individual believes that a
finding specified in Sec. 614.21 is incorrect or that information as to
any finding has been omitted from a military document, the individual
may request the issuing Federal military agency to correct the military
document. A request for correction may be made through the State agency,
which shall forward such request and any supporting information
submitted by the individual to the Federal military agency.
(2) The Federal military agency shall promptly forward to the
individual or State agency making the request the corrected military
document. Information contained in a corrected military document issued
pursuant to such a request shall constitute the findings of the Federal
military agency under Sec. 614.21.
(3) If a determination or redetermination based on a finding as to
which correction is sought has been issued by a State agency before a
request for correction under this paragraph is made, the individual who
requested such correction shall file a request for redetermination or
appeal from such determination or redetermination with the State agency,
and shall inform the State agency of the request for correction.
(4) An individual who files a request for correction of findings
under this paragraph shall promptly notify the State agency of the
action of the Federal military agency on such request.
(b) State agency procedure when request made. (1) If a determination
of entitlement has not been made when an individual notifies a State
agency of a request for correction under paragraph (a) of this section,
the State agency may postpone such determination until the individual
has notified the State agency of the action of the Federal military
agency on the request.
(2) If a determination of entitlement has been made when an
individual notifies a State agency that a request for correction of
Federal findings has been made, or if an individual notifies a State
agency prior to a determination of entitlement that a request has been
made but such determination is not postponed by the State agency, the
individual may file a request for redetermination or appeal in
accordance with the applicable State law.
(3) Except as provided in paragraph (c) of this section, no
redetermination shall be made or hearing scheduled on an appeal until
the individual has notified the State agency of the action of the
Federal military agency on a request for correction under paragraph (a)
of this section.
(c) State agency procedure when request answered. On receipt of
notice of the action of a Federal military agency on a request for
correction of its findings, a State agency shall:
(1) Make a timely determination or redetermination of the
individual's entitlement, or
(2) Promptly schedule a hearing on the individual's appeal.
If such notice is not received by a State agency within one year of the
date on which an individual first filed a claim, or such notice is not
given promptly by an individual, a State agency without further
postponement may make such determination or redetermination or schedule
such hearing.
(d) Findings corrected without request. Information as to any
finding specified in Sec. 614.21 contained in a corrected military
document issued by a Federal military agency on its own motion shall
constitute the findings of such agency under Sec. 614.21, if notice
thereof is received by a State agency before the period for
redetermination or appeal has expired under the State law. On timely
receipt of such notice a
[[Page 74]]
State agency shall take appropriate action under the applicable State
law to give effect to the corrected findings.
Sec. 614.23 Finality of findings.
The findings of a Federal military agency referred to in Sec. Sec.
614.21 and 614.22, and the Schedules of Remuneration issued by the
Department pursuant to the Act and Sec. 614.12, shall be final and
conclusive for all purposes of the UCX Program, including appeal and
review pursuant to Sec. 614.7 or Sec. 614.17.
[53 FR 40555, Oct. 17, 1988]
Sec. 614.24 Furnishing other information.
(a) Additional information. In addition to the information required
by Sec. Sec. 614.21 and 614.22, a Federal military agency shall furnish
to a State agency or the Department, within the time requested, any
information which it is not otherwise prohibited from releasing by law,
which the Department determines is necessary for the administration of
the UCX Program.
(b) Reports. Federal military agencies shall furnish to the
Department or State agencies such reports containing such information as
the Department determines are necessary or appropriate for carrying out
the purposes of the UCX Program.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40555, Oct. 17, 1988]
Sec. 614.25 Liaison with Department
To facilitate the Department's administration of the UCX program,
each Federal military agency shall designate one or more of its
officials to be the liaison with the Department. Each Federal military
agency will inform the Department of its designation(s) and of any
change in a designation.
[53 FR 40555, Oct. 17, 1988]
Sec. Appendix A to Part 614--Standard for Claim Filing, Claimant
Reporting, Job Finding, and Employment Services
Employment Security Manual (Part V, Sections 5000-5004) *
---------------------------------------------------------------------------
* Revises subgrouping 5000-5004.
---------------------------------------------------------------------------
5000-5099 Claims Filing
5000 Standards for Claim Filing, Claimant Reporting, Job Finding, and
Employment Services
A. Federal law requirements. Section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security Act
require that a State law provide for:
``Payment of unemployment compensation solely through public
employment offices or such other agencies as the Secretary may
approve.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law provide
for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation. * * *''
Section 303(a)(1) of the Social Security Act requires that the State
law provide for:
``Such methods of administration * * * as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
B. Secretary's interpretation of Federal law requirements.
1. The Secretary interprets section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security Act to
require that a State law provide for payment of unemployment
compensation solely through public employment offices or claims offices
administered by the State employment security agency if such agency
provides for such coordination in the operations of its public
employment offices and claims offices as will insure: (a) The payment of
benefits only to individuals who are unemployed and who are able to work
and available for work, and (b) that individuals claiming unemployment
compensation (claimants) are afforded such placement and other
employment services as are necessary and appropriate to return them to
suitable work as soon as possible.
2. The Secretary interprets all the above sections to require that a
State law provide for:
a. Such contact by claimants with public employment offices or
claims offices or both, (1) as will reasonably insure the payment of
unemployment compensation only to individuals who are unemployed and who
are able to work and available for work, and (2)
[[Page 75]]
that claimants are afforded such placement and other employment services
as are necessary and appropriate to facilitate their return to suitable
work as soon as possible; and
b. Methods of administration which do not unreasonably limit the
opportunity of individuals to establish their right to unemployment
compensation due under such State law.
5001 Claim Filing and Claimant Reporting Requirements Designed to
Satisfy Secretary's Interpretation
A. Claim filing--total or part-total unemployment.
1. Individuals claiming unemployment compensation for total or part-
total unemployment are required to file a claim weekly or biweekly, in
person or by mail, at a public employment office or a claims office
(these terms include offices at itinerant points) as set forth below.
2. Except as provided in paragraph 3, a claimant is required to file
in person:
a. His new claim with respect to a benefit year, or his continued
claim for a waiting week or for his first compensable week of
unemployment in such year; and
b. Any other claim, when requested to do so by the claims personnel
at the office at which he files his claim(s) because questions about his
right to benefits are raised by circumstances such as the following:
(1) The conditions or circumstances of his separation from
employment;
(2) The claimant's answers to questions on mail claim(s) indicate
that he may be unable to work or that there may be undue restrictions on
his availability for work or that his search for work may be inadequate
or that he may be disqualified;
(3) The claimant's answers to questions on mail claims create
uncertainty about his credibility or indicate a lack of understanding of
the applicable requirement; or
(4) The claimant's record shows that he has previously filed a
fraudulent claim.
In such circumstances, the claimant is required to continue to file
claims in person each week (or biweekly) until the State agency
determines that filing claims in person is no longer required for the
resolution of such questions.
3. A claimant must be permitted to file a claim by mail in any of
the following circumstances:
a. He is located in an area requiring the expenditure of an
unreasonable amount of time or money in traveling to the nearest
facility established by the State agency for filing claims in person;
b. Conditions make it impracticable for the agency to take claims in
person;
c. He has returned to full-time work on or before the scheduled date
for his filing a claim, unless the agency makes provision for in-person
filing at a time and place that does not interfere with his employment;
d. The agency finds that he has good cause for failing to file a
claim in person.
4. A claimant who has been receiving benefits for partial
unemployment may continue to file claims as if he were a partially
unemployed worker for the first four consecutive weeks of total or part-
total unemployment immediately following his period of partial
unemployment so long as he remains attached to his regular employer.
B. Claim filing--partial unemployment. Each individual claiming
unemployment compensation for a week (or other claim period) during
which, because of lack of work, he is working less than his normal
customary full-time hours for his regular employer and is earning less
than the earnings limit provided in the State law, shall not be required
to file a claim for such week or other claim period earlier than 2 weeks
from the date that wages are paid for such claim period or, if a low
earnings report is required by the State law, from the date the employer
furnished such report to the individual. State agencies may permit
claims for partial unemployment to be filed either in person or by mail,
except that in the circumstances set forth in section A 3, filing by
mail must be permitted, and in the circumstances set forth in section A
2 b, filing in person may be required.
5002 Requirement for Job Finding, Placement, and other Employment
Services Designed to Satisfy Secretary's Interpretation
A. Claims personnel are required to assure that each claimant is
doing what a reasonable individual in his circumstances would do to
obtain suitable work.
B. In the discretion of the State agency:
1. The claims personnel are required to give each claimant such
necessary and appropriate assistance as they reasonably can in finding
suitable work and at their discretion determine when more complete
placement and employment services are necessary and appropriate for a
claimant; and if they determine more complete services are necessary and
appropriate, the claims personnel are to refer him to employment service
personnel in the public employment office in which he has been filing
claim(s), or, if he has been filing in a claims office, in the public
employment office most accessible to him; or
2. All placement and employment services are required to be afforded
to each claimant by employment service personnel in the public
employment office most accessible to him, in which case the claims
personnel in the office in which the claimant files his claim are to
refer him to the employment service personnel when placement or other
employment services are necessary and appropriate for him.
[[Page 76]]
C. The personnel to whom the State agency assigns the
responsibilities outlined in paragraph B above are required to give
claimants such job-finding assistance, placement, and other employment
services as are necessary and appropriate to facilitate their return to
suitable work as soon as possible.
In some circumstances, no such services or only limited services may
be required. For example, if a claimant is on a short-term temporary
layoff with a fixed return date, the only service necessary and
appropriate to be given to him during the period of the layoff is a
referral to suitable temporary work if such work is being performed in
the labor market area.
Similarly, claimants whose unemployment is caused by a labor dispute
presumably will return to work with their employer as soon as the labor
dispute is settled. They generally do not need services, nor do
individuals in occupations where placement customarily is made by other
nonfee charging placement facilities such as unions and professional
associations.
Claimants who fall within the classes which ordinarily would require
limited services or no services shall, if they request placement and
employment services, be afforded such services as are necessary and
appropriate for them to obtain suitable work or to achieve their
reasonable employment goals.
On the other hand, a claimant who is permanently separated from his
job is likely to require some services. He may need only some direction
in how to get a job; he may need placement services if he is in an
occupation for which there is some demand in the labor market area; if
his occupation is outdated, he may require counseling and referral to a
suitable training course. The extent and character of the services to be
given any particular claimant may change with the length of his
unemployment and depend not only on his own circumstances and
conditions, but also on the condition of the labor market in the area.
D. Claimants are required to report to employment service personnel,
as directed, but such personnel and the claims personnel are required to
so arrange and coordinate the contacts required of a claimant as not to
place an unreasonable burden on him or unreasonably limit his
opportunity to establish his rights to compensation. As a general rule,
a claimant is not required to contact in person claims personnel or
employment service personnel more frequently than once a week, unless he
is directed to report more frequently for a specific service such as
referral to a job or a training course or counseling which cannot be
completed in one visit.
E. Employment service personnel are required to report promptly to
claims personnel in the office in which the claimant files his claim(s):
(1) His failure to apply for or accept work to which he was referred by
such personnel or when known, by any other nonfee-charging placement
facility such as a union or a professional association; and (2) any
information which becomes available to it that may have a bearing on the
claimant's ability to work or availability for work, or on the
suitability of work to which he was referred or which was offered to
him.
5004 Evaluation of Alternative State Provisions. If the State law
provisions do not conform to the ``suggested State law requirements''
set forth in sections 5001 and 5002, but the State law contains
alternative provisions, the Manpower Administrator, in collaboration
with the State agency, will study the actual or anticipated effect of
the alternative provisions. If the Manpower Administrator concludes that
the alternative provisions satisfy the requirements of the Federal law
as construed by the Secretary (see section 5000 B) he will so notify the
State agency. If he does not so conclude, he will submit the matter to
the Secretary. If the Secretary concludes that the alternative
provisions satisfy such requirements, the State agency will be so
notified. If the Secretary concludes that there is a question as to
whether the alternative provisions satisfy such requirements, the State
agency will be advised that unless the State law provisions are
appropriately revised, a notice of hearing will be issued as required by
the Code of Federal Regulations, title 20, section 601.3.
[53 FR 40555, Oct. 17, 1988; 53 FR 43799, Oct. 26, 1988]
Sec. Appendix B to Part 614--Standard for Claim Determination--
Separation Information
Employment Security Manual (Part V, Sections 6010-6015)
6010-6019 Standard for Claim Determinations--Separation Information *
---------------------------------------------------------------------------
* Revises subgrouping 6010-6019
---------------------------------------------------------------------------
6010 Federal Law Requirements. Section 303(a)(1) of the Social Security
Act requires that a State law include provision for:
``Such methods of administration . . . as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 303(a)(3) of the Social Security Act requires that a State
law include provision for:
``Opportunity for a fair hearing before an impartial tribunal, for
all individuals whose claims for unemployment compensation are denied.''
[[Page 77]]
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation * * *.
Section 3306(h) of the Federal Unemployment Tax Act defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
6011 Secretary's Interpretation of Federal Law Requirements. The
Secretary interprets the above sections to require that a State law
include provisions which will insure that:
A. Individuals who may be entitled to unemployment compensation are
furnished such information as will reasonably afford them an opportunity
to know, establish, and protect their rights under the unemployment
compensation law of such State, and
B. The State agency obtains and records in time for the prompt
determination and review of benefit claims such information as will
reasonably insure the payment of benefits to individuals to whom
benefits are due.
6012 Criteria for Review of State Law Conformity with Federal
Requirements
In determining the conformity of a State law with the above
requirements of the Federal Unemployment Tax Act and the Social Security
Act as interpreted by the Secretary, the following criteria will be
applied:
A. Is it required that individuals who may be entitled to
unemployment compensation be furnished such information of their
potential rights to benefits, including the manner and places of filing
claims, the reasons for determinations, and their rights of appeal, as
will insure them a reasonable opportunity to know, establish, and
protect their rights under the law of the State?
B. Is the State agency required to obtain, in time for prompt
determination of rights to benefits such information as will reasonably
insure the payment of benefits to individuals to whom benefits are due?
C. Is the State agency required to keep records of the facts
considered in reaching determinations of rights to benefits?
6013 Claim Determinations Requirements Designed To Meet Department of
Labor Criteria
A. Investigation of claims. The State agency is required to obtain
promptly and prior to a determination of an individual's right to
benefits, such facts pertaining thereto as will be sufficient reasonably
to insure the payment of benefits when due.
This requirement embraces five separate elements:
1. It is the responsibility of the agency to take the initiative in
the discovery of information. This responsibility may not be passed on
the claimant or the employer. In addition to the agency's own records,
this information may be obtained from the worker, the employer, or other
sources. If the information obtained in the first instance discloses no
essential disagreement and provides a sufficient basis for a fair
determination, no further investigation is necessary. If the information
obtained from other sources differs essentially from that furnished by
the claimant, the agency, in order to meet its responsibility, is
required to inform the claimant of such information from other sources
and to afford the claimant an opportunity to furnish any further facts
he may have.
2. Evidentiary facts must be obtained as distinguished from ultimate
facts or conclusions. That a worker was discharged for misconduct is an
ultimate fact or conclusion; that he destroyed a machine upon which he
was working is a primary or evidentiary fact, and the sort of fact that
the requirement refers to.
3. The information obtained must be sufficient reasonably to insure
the payment of benefits when due. In general, the investigation made by
the agency must be complete enough to provide information upon which the
agency may act with reasonable assurance that its decision is consistent
with the unemployment compensation law. On the other hand, the
investigation should not be so exhaustive and time-consuming as unduly
to delay the payment of benefits and to result in excessive costs.
4. Information must be obtained promptly so that the payment of
benefits is not unduly delayed.
5. If the State agency requires any particular evidence from the
worker, it must give him a reasonable opportunity to obtain such
evidence.
B. Recording of facts. The agency must keep a written record of the
facts considered in reaching its determinations.
C. Determination notices
1. The agency must give each claimant a written notice of:
a. Any monetary determination with respect to his benefit year;
b. Any determination with respect to purging a disqualification if,
under the State law, a condition or qualification must be satisfied with
respect to each week of disqualification; but in lieu of giving written
notice of each determination for each week in which it is determined
that the claimant has met the requirements for purging the agency may
inform the claimant that he has purged the disqualification for a week
by notation on his applicant identification card or otherwise in
writing.
[[Page 78]]
c. Any other determination which adversely affects \1\ his rights to
benefits, except that written notice of determination need not be given
with respect to:
---------------------------------------------------------------------------
\1\ A determination ``adversely affects'' claimant's right to
benefits if it: (1) Results in a denial to him of benefits (including a
cancellation of benefits or wage credits or any reduction in whole or in
part below the weekly or maximum amount established by his monetary
determination) for any week or other period; or (2) denies credit for a
waiting week; or (3) applies any disqualification or penalty; or (4)
determines that he has not satisfied a condition of eligibility,
requalification for benefits, or purging a disqualification; or (5)
determines that an overpayment has been made or orders repayment or
recoupment of any sum paid to him; or (6) applies a previously
determined overpayment, penalty, or order for repayment or recoupment;
or (7) in any other way denies claimant a right to benefits under the
State law.
---------------------------------------------------------------------------
(1) A week in a benefit year for which the claimant's weekly benefit
amount is reduced in whole or in part by earnings if, the first time in
the benefit year that there is such a reduction, he is required to be
furnished a booklet or leaflet containing the information set forth
below in paragraph 2f(1). However, a written notice of determination is
required if: (a) There is a dispute concerning the reduction with
respect to any week (e.g., as to the amount computed as the appropriate
reduction, etc.); or (b) there is a change in the State law (or in the
application thereof) affecting the reduction; or
(2) Any week in a benefit year subsequent to the first week in such
benefit year in which benefits were denied, or reduced in whole or in
part for reasons other than earnings, if denial or reduction for such
subsequent week is based on the same reason and the same facts as for
the first week, and if written notice of determination is required to be
given to the claimant with respect to such first week, and with such
notice of determination, he is required to be given a booklet or
pamphlet containing the information set forth below in paragraphs 2f(2)
and 2h. However, a written notice of determination is required if: (a)
There is a dispute concerning the denial or reduction of benefits with
respect to such week; or (b) there is a change in the State law (or in
the application thereof) affecting the denial or reduction; or (c) there
is a change in the amount of the reduction except as to the balance
covered by the last reduction in a series of reductions.
Note: This procedure may be applied to determinations made with
respect to any subsequent weeks for the same reason and on the basis of
the same facts: (a) That claimant is unable to work, unavailable for
work, or is disqualified under the labor dispute provision; and (b)
reducing claimant's weekly benefit amount because of income other than
earnings or offset by reason of overpayment.
2. The agency must include in written notices of determinations
furnished to claimants sufficient information to enable them to
understand the determinations, the reasons therefor, and their rights to
protest, request reconsideration, or appeal.
The written notice of monetary determination must contain the
information specified in the following items (except h) unless an item
is specifically not applicable. A written notice of any other
determination must contain the information specified in as many of the
following items as are necessary to enable the claimant to understand
the determination and to inform him of his appeal rights. Information
specifically applicable to the individual claimant must be contained in
the written notice of determination. Information of general application
such as (but not limited to) the explanation of benefits for partial
unemployment, information as to deductions, seasonality factors, and
information as to the manner and place of taking an appeal, extension of
the appeal period, and where to obtain information and assistance may be
contained in a booklet or leaflet which is given the claimant with his
monetary determination.
a. Base period wages. The statement concerning base-period wages
must be in sufficient detail to show the basis of computation of
eligibility and weekly and maximum benefit amounts. (If maximum benefits
are allowed, it may not be necessary to show details of earnings.)
b. Employer name. The name of the employer who reported the wages is
necessary so that the worker may check the wage transcript and know
whether it is correct. If the worker is given only the employer number,
he may not be able to check the accuracy of the wage transcript.
c. Explanation of benefit formula--weekly and maximum benefit
amounts. Sufficient information must be given the worker so that he will
understand how his weekly benefit amount, including allowances for
dependents, and his maximum benefit amount were figured. If benefits are
computed by means of a table contained in the law, the table must be
furnished with the notice of determination whether benefits are granted
or denied.
The written notice of determination must show clearly the weekly
benefit amount and the maximum potential benefits to which the claimant
is entitled.
The notice to a claimant found ineligible by reason of insufficient
earnings in the base period must inform him clearly of the reason for
ineligibility. An explanation of the benefit formula contained in a
booklet or pamphlet should be given to each claimant at or
[[Page 79]]
prior to the time he receives written notice of a monetary
determination.
d. Benefit year. An explanation of what is meant by the benefit year
and identification of the claimant's benefit year must be included in
the notice of determination.
e. Information as to benefits for partial unemployment. There must
be included either in the written notice of determination or in a
booklet or pamphlet accompanying the notice an explanation of the
claimant's rights to partial benefits for any week with respect to which
he is working less than his normal customary full-time workweek because
of lack of work and for which he earns less than his weekly benefit
amount or weekly amount plus earnings, whichever is provided by the
State law. If the explanation is contained in the notice of
determination, reference to the item in the notice in which his weekly
benefit amount is entered should be made.
f. Deductions from weekly benefits.
(1) Earnings. Although written notice of determinations deducting
earnings from a claimant's weekly benefit amount is generally not
required (see paragraph 1c (1) above), where written notice of
determination is required (or given) it shall set forth the amount of
earnings, the method of computing the deduction in sufficient detail to
enable the claimant to verify the accuracy of the deduction, and his
right to protest, request redetermination, and appeal. Where a written
notice of determination is given to the claimant because there has been
a change in the State law or in the application of the law, an
explanation of the change shall be included.
Where claimant is not required to receive a written notice of
determination, he must be given a booklet or pamphlet the first time in
his benefit year that there is a deduction for earnings which shall
include the following information:
(a) The method of computing deductions for earnings in sufficient
detail to enable the claimant to verify the accuracy of the deduction;
(b) That he will not automatically be given a written notice of
determination for a week with respect to which there is a deduction for
earnings (unless there is a dispute concerning the reduction with
respect to a week or there has been a change in the State law or in the
application of the law affecting the deduction) but that he may obtain
such a written notice upon request; and
(c) A clear statement of his right to protest, request a
redetermination, and appeal from any determination deducting earnings
from his weekly benefit amount even though he does not automatically
receive a written notice of determination; and if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
(2) Other deductions.
(a) A written notice of determination is required with respect to
the first week in claimant's benefit year in which there is a reduction
from his benefits for a reason other than earnings. This notice must
describe the deduction made from claimant's weekly benefit amount, the
reason for the deduction, the method of computing it in sufficient
detail to enable him to verify the accuracy of such deduction, and his
right to protest, request redetermination, or appeal.
(b) A written notice of determination is not required for subsequent
weeks that a deduction is made for the same reason and on the basis of
the same facts, if the notice of determination pursuant to (2)(a), or a
booklet or pamphlet given him with such notice explains: (i) The several
kinds of deductions which may be made under the State law (e.g.,
retirement pensions, vacation pay, and overpayments); (ii) the method of
computing each kind of deduction in sufficient detail that claimant will
be able to verify the accuracy of deductions made from his weekly
benefit payments; (iii) any limitation on the amount of any deduction or
the time in which any deduction may be made; (iv) that he will not
automatically be given a written notice of determination for subsequent
weeks with respect to which there is a deduction for the same reason and
on the basis of the same facts, but that he may obtain a written notice
of determination upon request; (v) his right to protest, request
redetermination, or appeal with respect to subsequent weeks for which
there is a reduction from his benefits for the same reason, and on the
basis of the same facts even though he does not automatically receive a
written notice of determination; and (vi) that if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
g. Seasonality factors. If the individual's determination is
affected by seasonality factors under the State law, an adequate
explanation must be made. General explanations of seasonality factors
which may affect determinations for subsequent weeks may be included in
a booklet or pamphlet given with his notice of monetary determination.
h. Disqualification or ineligibility. If a disqualification is
imposed, or if the claimant is declared ineligible for one or more
weeks, he must be given not only a statement of the period of
disqualification or ineligibility and the amount of wage-credit
reductions, if any, but also an explanation of the reason for the
ineligibility or disqualification. This explanation must be sufficiently
detailed so that he will understand why he is ineligible or
[[Page 80]]
why he has been disqualified, and what he must do in order to requalify
for benefits or purge the disqualification. The statement must be
individualized to indicate the facts upon which the determination was
based, e.g., state, ``It is found that you left your work with Blank
Company because you were tired of working; the separation was voluntary,
and the reason does not constitute good cause,'' rather than merely the
phrase ``voluntary quit.'' Checking a box as to the reason for the
disqualification is not a sufficiently detailed explanation. However,
this statement of the reason for the disqualification need not be a
restatement of all facts considered in arriving at the determination.
i. Appeal rights. The claimant must be given information with
respect to his appeal rights.
(1) The following information shall be included in the notice of
determination:
(a) A statement that he may appeal or, if the State law requires or
permits a protest or redetermination before an appeal, that he may
protest or request a redetermination.
(b) The period within which an appeal, protest, or request for
redetermination must be filed. The number of days provided by statute
must be shown as well as either the beginning date or ending date of the
period. (It is recommended that the ending date of the appeal period be
shown, as this is the more understandable of the alternatives.)
(2) The following information must be included either in the notice
of determination or in separate informational material referred to in
the notice:
(a) The manner in which the appeal, protest, or request for
redetermination must be filed, e.g., by signed letter, written
statement, or on a prescribed form, and the place or places to which the
appeal, protest, or request for redetermination may be mailed or hand-
delivered.
(b) An explanation of any circumstances (such as nonworkdays, good
cause, etc.) which will extend the period for the appeal, protest, or
request for redetermination beyond the date stated or identified in the
notice of determination.
(c) That any further information claimant may need or desire can be
obtained together with assistance in filing his appeal, protest, or
request for redetermination from the local office.
If the information is given in separate material, the notice of
determination would adequately refer to such material if it said, for
example, ``For other information about your (appeal), (protest),
(redetermination) rights, see pages __ to __ of the ______________ (name
of pamphlet or booklet) heretofore furnished to you.''
6014 Separation Information Requirements Designed To Meet Department of
Labor Criteria
A. Information to agency. Where workers are separated, employers are
required to furnish the agency promptly, either upon agency request or
upon such separation, a notice describing the reasons for and the
circumstances of the separation and any additional information which
might affect a claimant's right to benefits. Where workers are working
less than full time, employers are required to furnish the agency
promptly, upon agency request, information concerning a claimant's hours
of work and his wages during the claim periods invovled, and other facts
which might affect a claimant's eligibility for benefits during such
periods.
When workers are separated and the notices are obtained on a request
basis, or when workers are working less than full time and the agency
requests information, it is essential to the prompt processing of claims
that the request be sent out promptly after the claim is filed and the
employer be given a specific period within which to return the notice,
preferably within 2 working days.
When workers are separated and notices are obtained upon separation,
it is essential that the empolyer be required to send the notice to the
agency with sufficient promptness to insure that, if a claim is filed,
it may be processed promptly. Normally, it is desirable that such a
notice be sent to the central office of the agency, since the employer
may not know in which local office the worker will file his claim. The
usual procedure is for the employer to give the worker a copy of the
notice sent by the employer to the agency.
B. Information to worker.
1. Information required to be given. Employees are required to give
their employers information and instructions concerning the employees'
potential rights to benefits and concerning registration for work and
filing claims for benefits.
The information furnished to employees under such a requirement need
not be elaborate; it need only be adequate to insure that the worker who
is separated or who is working less than full time knows he is
potentially eligible for benefits and is informed as to what he is to do
or where he is to go to file his claim and register for work. When he
files his claim, he can obtain more detailed information.
In States that do not require employers to furnish periodically to
the State agency detailed reports of the wages paid to their employees,
each employer is required to furnish to his employees information as to:
(a) The name under which he is registered by the State agency, (b) the
address where he maintains his payroll records, and (c) the workers'
need for this information if and when they file claims for benefits.
[[Page 81]]
2. Methods for giving information. The information and instructions
required above may be given in any of the following ways:
a. Posters prominently displayed in the employer's establishment.
The State agency should supply employers with a sufficient number of
posters for distribution throughout their places of business and should
see that the posters are conspicuously displayed at all times.
b. Leaflets. Leaflets distributed either periodically or at the time
of separation or reduction of hours. The State agency should supply
employers with a sufficient number of leaflets.
c. Individual notices. Individual notices given to each employee at
the time of separation or reduction in hours.
It is recommended that the State agency's publicity program be used
to supplement the employer-information requirements. Such a program
should stress the availability and location of claim-filing offices and
the importance of visiting those offices whenever the worker is
unemployed, wishes to apply for benefits, and to seek a job.
6015 Evaluation of Alternative State Provisions with Respect to Claim
Determinations and Separation Information. If the State law provisions
do not conform to the suggested requirements set forth in sections 6013
and 6014, but the State law contains alternative provisions, the Bureau
of Employment Security, in collaboration with the State agency, will
study the actual or anticipated effects of the alternative provisions.
If the Administrator of the Bureau concludes that the alternative
provisions satisfy the criteria in section 6012, he will so notify the
State agency. If the Administrator of the Bureau does not so conclude,
he will submit the matter to the Secretary. If the Secretary concludes
that the alternative provisions satisfy the criteria in section 6012,
the State agency will be so notified. If the Secretary concludes that
there is a question as to whether the alternative provisions satisfy the
criteria, the State agency will be advised that unless the State law
provisions are appropriately revised, a notice of hearing will be issued
as required by the Code of Federal Regulations, title 20, Sec. 601.5.
[53 FR 40557, Oct. 17, 1988; 53 FR 43799, Oct. 26, 1988]
Sec. Appendix C to Part 614--Standard for Fraud and Overpayment
Detection
Employment Security Manual (Part V, Sections 7510-7515)
7510-7519 Standard for Fraud and Overpayment Detection
7510 Federal Law Requirements. Section 303(a)(1) of the Social Security
Act requires that a State law include provision for:
``Such methods of administration * * * as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 1603(a)(4) of the Internal Revenue Code and section
3030(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure for all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation * * * ''
Section 1607(h) of the Internal Revenue Code defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
7511 The Secretary's Interpretation of Federal Law Requirements. The
Secretary of Labor interprets the above sections to require that a State
law include provision for such methods of administration as are, within
reason, calculated (1) to detect benefits paid through error by the
agency or through willful misrepresentation or error by the claimant or
others, and (2) to deter claimants from obtaining benefits through
willful misrepresentation.
7513 Criteria for Review of State Conformity With Federal Requirements.
In detemining State conformity with the above requirements of the
Internal Revenue Code and the Social Security Act, as interpreted by the
Secretary of Labor, the following criteria will be applied:
A. Are investigations required to be made after the payment of
benefits, (or, in the case of interstate claims, are investigations made
by the agent State after the processing of claims) as to claimants'
entitlement to benefits paid to them in a sufficient proportion of cases
to test the effectiveness of the agency's procedures for the prevention
of payments which are not due? To carry out investigations, has the
agency assigned to some individual or unit, as a basic function, the
responsibility of making or functionally directing such investigations?
Explantaion: It is not feasible to prescribe the extent to which the
above activities are required; however, they should always be carried on
to such an extent that they will show whether or not error or willful
misrepresentation is increasing or decreasing, and will reveal problem
areas. The extent and nature of the above activities should be varied
according to the seriousness of the problem in the State. The
responsible individual or unit should:
1. Check paid claims for overpayment and investigate for willful
misrepresentation or, alternatively, advise and assist the operating
units in the performance of such functions, or both;
[[Page 82]]
2. Perform consultative services with respect to methods and
procedures for the prevention and detection of fraud; and
3. Perform other services which are closely related to the above.
Although a State agency is expected to make a full-time assignment
of responsibility to a unit or individual to carry on the functions
described above, a small State agency might make these functions a part-
time responsibility of one individual. In connection with the detection
of overpayments, such a unit or individual might, for example:
(a) Investigate information on suspected benefit fraud received from
any agency personnel, and from sources outside the agency, including
anonymous complaints;
(b) Investigate information secured from comparisons of benefit
payments with employment records to detect cases of concurrent working
(whether in covered or noncovered work) and claiming of benefits
(including benefit payments in which the agency acted as agent for
another State).
The benefit fraud referred to herein may involve employers, agency
employees, and witnesses, as well as claimants.
Comparisons of benefit payments with employment records are commonly
made either by post-audit or by industry surveys. The so-called ``post-
audit'' is a matching of central office wage-record files against
benefit payments for the same period. ``Industry surveys'' or ``mass
audits'' are done in some States by going directly to employers for pay-
roll information to be checked against concurrent benefit lists. A plan
A. of investigation based on a sample post-audit will be considered
as partial fulfillment of the investigation program; it would need to be
supplemented by other methods capable of detecting overpayments to
persons who have moved into noncovered occupations or are claiming
interstate benefits.
B. Are adequate records maintained by which the results of
investigations may be evaluated? *
---------------------------------------------------------------------------
* Revises section 7513 as issued 5/5/50.
---------------------------------------------------------------------------
Explanation. To meet this criterion, the State agency will be
expected to maintain records of all its activities in the detection of
overpayments, showing whether attributable to error or willful
misrepresentation, measuring the results obtained through various
methods, and noting the remedial action taken in each case. The adequacy
and effectiveness of various methods of checking for willful
misrepresentation can be evaluated only if records are kept of the
results obtained. Internal reports on fraudulent and erroneous
overpayments are needed by State agencies for self-evaluation. Detailed
records should be maintained in order that the State agency may
determine, for example, which of several methods of checking currently
used are the most productive. Such records also will provide the basis
for drawing a clear distinction between fraud and error.
C. Does the agency take adequate action with respect to publicity
concerning willful misrepresentation and its legal consequences to deter
fraud by claimants? *
Explanation. To meet this criterion, the State agency must issue
adequate material on claimant eligibility requirements and must take
necessary action to obtain publicity on the legal consequences of
willful misrepresentation or willful nondisclosure of facts.
Public announcements on convictions and resulting penalties for
fraud are generally considered necessary as a deterrent to other
persons, and to inform the public that the agency is carrying on an
effective program to prevent fraud. This alone is not considered
adequate publicity. It is important that information be circulated which
will explain clearly and understandably the claimant's rights, and the
obligations which he must fulfill to be eligible for benefits. Leaflets
for distribution and posters placed in local offices are appropriate
media for such information.
7515 Evalauation of Alternative State Provisions with Respect to
Erroneous and Illegal Payments. If the methods of administration
provided for by the State law do not conform to the suggested methods of
meeting the requirements set forth in section 7511, but a State law does
provide for alternative methods of administration designed to accomplish
the same results, the Bureau of Employment Security, in collaboration
with the State agency, will study the actual or anticipated effect of
the alternative methods of administration. If the Bureau concludes that
the alternative methods satisfy the criteria in section 7513, it will so
notify the State agency. If the Bureau does not so conclude, it will
submit to the Secretary the results of the study for his determination
of whether the State's alternative methods of administration meet the
criteria. *
---------------------------------------------------------------------------
* Revises section 7513 as issued 5/5/50.
---------------------------------------------------------------------------
PART 615_EXTENDED BENEFITS IN THE FEDERAL-STATE UNEMPLOYMENT COMPENSATION
PROGRAM--Table of Contents
Sec.
615.1 Purpose.
615.2 Definitions.
615.3 Effective period of the program.
615.4 Eligibility requirements for Extended Benefits.
615.5 Definition of ``exhaustee.''
615.6 Extended Benefits; weekly amount.
615.7 Extended Benefits; maximum amount.
[[Page 83]]
615.8 Provisions of State law applicable to claims.
615.9 Restrictions on entitlement.
615.10 Special provisions for employers.
615.11 Extended Benefit Periods.
615.12 Determination of ``on'' and ``off'' indicators.
615.13 Announcement of the beginning and ending of Extended Benefit
Periods or High Unemployment Periods.
615.14 Payments to States.
615.15 Records and reports.
Authority: 26 U.S.C. 7805; 26 U.S.C. 1102; Secretary's Order No. 6-
10.
Source: 53 FR 27937, July 25, 1988, unless otherwise noted.
Editorial Note: Nomenclature changes to part 615 appear at 81 FR
57778, Aug. 24, 2016.
Sec. 615.1 Purpose.
This part implements the ``Federal-State Extended Unemployment
Compensation Act of 1970'' (EUCA). Under the Federal Unemployment Tax
Act, 26 U.S.C. 3304(a)(11), an approved State law must provide for the
payment of extended compensation to eligible individuals who have
exhausted all rights to regular compensation during specified periods of
unemployment, as prescribed in EUCA and this part.
[81 FR 57778, Aug. 24, 2016]
Sec. 615.2 Definitions.
For the purposes of the EUCA and this part--
Additional compensation means compensation totally financed by a
State and payable under a State law by reason of conditions of high
unemployment or by reason of other special factors and, when so payable,
includes compensation payable pursuant to 5 U.S.C. chapter 85.
And, as used in section 202(a)(3)(D)(ii), shall be interpreted to
mean ``or''.
Applicable benefit year means, with respect to an individual, the
current benefit year if, at the time an initial claim for extended
compensation is filed, the individual has an unexpired benefit year only
in the State in which such claim is filed, or, in any other case, the
individual's most recent benefit year. For this purpose, the most recent
benefit year for an individual who has unexpired benefit years in more
than one State when an initial claim for extended compensation is filed,
is the benefit year with the latest ending date or, if such benefit
years have the same ending date, the benefit year in which the latest
continued claim for regular compensation was filed. The individual's
most recent benefit year which expires in an extended benefit period,
when either extended compensation or high unemployment extended
compensation is payable, is the applicable benefit year if the
individual cannot establish a second benefit year or is precluded from
receiving regular compensation in a second benefit year solely by reason
of a State law provision which meets the requirement of section
3304(a)(7) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)(7)).
Applicable State means, with respect to an individual, the State
with respect to which the individual is an ``exhaustee'' as defined in
Sec. 615.5, and in the case of a combined wage claim for regular
compensation, the term means the ``paying State'' as defined in Sec.
616.6(e) of this chapter.
Applicable State law means the law of the State which is the
applicable State for an individual.
Average weekly benefit amount, for the purposes of section
202(a)(3)(D)(i), means the weekly benefit amount (including dependents'
allowances payable for a week of total unemployment and before any
reduction because of earnings, pensions or other requirements)
applicable to the week in which the individual failed to take an action
which results in a disqualification as required by section 202(a)(3)(B)
of the EUCA.
Base period means, with respect to an individual, the base period as
determined under the applicable State law for the individual's
applicable benefit year.
Benefit structure as used in section 204(a)(2)(D), for the
requirement to round down to the ``nearest lower full dollar amount''
for Federal reimbursement of sharable regular and sharable extended
compensation means all of the following:
(1) Amounts of regular weekly benefit payments,
(2) Amounts of additional and extended weekly benefit payments,
(3) The State maximum or minimum weekly benefit,
[[Page 84]]
(4) Partial and part-total benefit payments,
(5) Amounts payable after deduction for pensions, and
(6) Amounts payable after any other deduction required by State law.
Benefit year means, with respect to an individual, the benefit year
as defined in the applicable State law.
Claim filed in any State under the interstate benefit payment plan,
as used in section 202(c), means:
(1) Any interstate claim for a week of unemployment filed pursuant
to the Interstate Benefit Payment Plan, but does not include--
(i) A claim filed in Canada,
(ii) A visiting claim filed by an individual who has received
permission from his/her regular reporting office to report temporarily
to a local office in another State and who has been furnished intrastate
claim forms on which to file claims, or
(iii) A transient claim filed by an individual who is moving from
place to place searching for work, or an intrastate claim for Extended
Benefits filed by an individual who does not reside in a State that is
in an Extended Benefit Period,
(2) The first 2 weeks, as used in section 202(c), means the first 2
weeks for which the individual files compensable claims for Extended
Benefits under the Interstate Benefit Payment Plan in an agent State in
which an Extended Benefit Period is not in effect during such weeks.
Compensation and unemployment compensation means cash benefits
(including dependents' allowances) payable to individuals with respect
to their unemployment, and includes regular compensation, additional
compensation and extended compensation as defined in this section.
Date of a disqualification, as used in section 202(a)(4), means the
date the disqualification begins, as determined under the applicable
State law.
Department means the United States Department of Labor, and shall
include the Employment and Training Administration, the agency of the
United States Department of Labor headed by the Assistant Secretary of
Labor for Employment and Training to whom has been delegated the
Secretary's authority under the EUCA in Secretary's Order No. 6-2010 (75
FR 66268) or any subsequent order.
Eligibility period means, for an individual, the period consisting
of--
(1) The weeks in the individual's applicable benefit year which
begin in an extended benefit period or high unemployment period, or for
a single benefit year, the weeks in the benefit year which begin in more
than one extended benefit period or high unemployment period, and
(2) If the applicable benefit year ends within an extended benefit
period or high unemployment period, any weeks thereafter which begin in
such extended benefit period or high unemployment period,
(3) An individual may not have more than one eligibility period for
any one exhaustion of regular benefits, or carry over from one
eligibility period to another any entitlement to extended compensation.
Employed, for the purposes of section 202(a)(3)(B)(ii) of the EUCA,
and employment, for the purposes of section 202(a)(4) of the EUCA, mean
service performed in an employer-employee relationship as defined in the
State law; and that law also shall govern whether that service must be
covered by it, must consist of consecutive weeks, and must consist of
more weeks of work than are required under section 202(a)(3)(B) of the
EUCA.
EUCA means the Federal-State Extended Unemployment Compensation Act
of 1970, title II of Public Law 91-373, 84 Stat. 695, 708 (codified in
note to 26 U.S.C. 3304), as amended.
Extended benefit period means the weeks during which extended
compensation is payable in a State in accordance with Sec. 615.11.
Extended Benefits Program or EB Program means the entire program
under which monetary payments are made to workers who have exhausted
their regular compensation during periods of high unemployment.
Extended compensation or extended benefits means the funds payable
to an individual for weeks of unemployment which begin in a regular EB
period or high unemployment period (HUP), under those provisions of a
State law which satisfy the requirements of
[[Page 85]]
EUCA and this part with respect to the payment of extended unemployment
compensation, and, when so payable, includes compensation payable under
5 U.S.C. chapter 85, but does not include regular compensation or
additional compensation.
Extended compensation account is the account established for each
individual claimant for the payment of regular extended compensation or
high unemployment extended compensation.
Extended unemployment compensation means:
(1) Regular extended compensation paid to an eligible individual
under those provisions of a State law which are consistent with EUCA and
this part, and that does not exceed the smallest of the following:
(i) 50 percent of the total amount of regular compensation payable
to the individual during the applicable benefit year; or
(ii) 13 times the individual's weekly amount of extended
compensation payable for a week of total unemployment, as determined
under Sec. 615.6(a); or
(iii) 39 times the individual's weekly benefit amount, referred to
in paragraph (1)(ii) of this definition, reduced by the regular
compensation paid (or deemed paid) to the individual during the
applicable benefit year; or
(2) High unemployment extended compensation paid to an eligible
individual under an optional TUR indicator enacted under State law when
the State is in a high unemployment period, in accordance with Sec.
615.11(e) of this part, and that does not exceed the smallest of the
following:
(i) 80 percent of the total amount of regular compensation payable
to the individual during the applicable benefit year; or
(ii) 20 times the individual's weekly amount of extended
compensation payable for a week of total unemployment, as determined
under Sec. 615.6(a); or
(iii) 46 times the individual's weekly benefit amount, referred to
in paragraph (1)(ii) of this definition, reduced by the regular
compensation paid (or deemed paid) to the individual during the
applicable benefit year.
Gross average weekly remuneration, for the purposes of section
202(a)(3)(D)(i), means the remuneration offered for a week of work
before any deductions for taxes or other purposes and, in case the
offered pay may vary from week to week, it shall be determined on the
basis of recent experience of workers performing work similar to the
offered work for the employer who offered the work.
High unemployment extended compensation means the benefits payable
to an individual for weeks of unemployment which begin in a high
unemployment period, under those provisions of a State law which satisfy
the requirements of EUCA and this part for the payment of high
unemployment extended compensation. When so payable, high unemployment
extended compensation includes compensation payable under 5 U.S.C.
chapter 85, but does not include regular compensation or additional
compensation. Regular extended unemployment compensation, along with
high unemployment extended compensation, are part of the program
referred to in this part as Extended Benefits.
High unemployment period (or HUP) means a period where the
Department determines that the Trigger Value in a State, which has
enacted the alternative Total Unemployment Rate indicator in law, for
the most recent 3 months for which data for all States is published,
equals or exceeds 8 percent and such Trigger Value equals or exceeds 110
percent of such Trigger Value for either or both of the corresponding 3-
month periods ending in the 2 preceding calendar years.
Hospitalized for treatment of an emergency or life-threatening
condition, as used in section 202(a)(3)(A)(ii), has the following
meaning: ``Hospitalized for treatment'' means an individual was admitted
to a hospital as an inpatient for medical treatment. Treatment is for an
``emergency or life threatening condition'' if determined to be such by
the hospital officials or attending physician that provide the treatment
for a medical condition existing upon or arising after hospitalization.
For purposes of this definition, the term ``medical treatment'' refers
to the application of any remedies which have the objective of effecting
a cure of the emergency or life-threatening condition. Once an
``emergency condition''
[[Page 86]]
or a ``life-threatening condition'' has been determined to exist by the
hospital officials or attending physician, the status of the individual
as so determined shall remain unchanged until release from the hospital.
Individual's capabilities, for the purposes of section 202(a)(3)(C),
means work which the individual has the physical and mental capacity to
perform and which meets the minimum requirements of section
202(a)(3)(D).
Insured Unemployment Rate means the percentage derived by dividing
the average weekly number of individuals filing claims for regular
compensation in a State for weeks of unemployment in the most recent 13-
consecutive-week period as determined by the State on the basis of State
reports to the United States Secretary of Labor by the average monthly
employment covered under State law for the first 4 of the most recent 6
completed calendar quarters before the end of such 13-week period.
Jury duty, for purposes of section 202(a)(3)(A)(ii), means the
performance of service as a juror, during all periods of time an
individual is engaged in such service, in any court of a State or the
United States pursuant to the law of the State or the United States and
the rules of the court in which the individual is engaged in the
performance of such service.
Provisions of the applicable State law, as used in section
202(a)(3)(D)(iii) of EUCA, means that State law provisions must not be
inconsistent with sections 202(a)(3)(C) and 202(a)(3)(E). Therefore,
decisions based on State law provisions must not require an individual
to take a job which requires traveling an unreasonable distance to work,
or which involves an unreasonable risk to the individual's health,
safety or morals. Such State law provisions must also include labor
standards and training provisions required under sections 3304(a)(5) and
3304(a)(8) of the Internal Revenue Code of 1986 and section 236(d) of
the Trade Act of 1974.
Reasonably short period, for the purposes of section 202(a)(3)(C),
means the number of weeks provided by the applicable State law.
Regular compensation means compensation payable to an individual
under a State law, and, when so payable, includes compensation payable
pursuant to 5 U.S.C. chapter 85, but does not include extended
compensation or additional compensation.
Regular extended compensation means the benefits payable to an
individual for weeks of unemployment which begin in an extended benefit
period, under those provisions of a State law which satisfy the
requirements of EUCA and this part for the payment of extended
unemployment compensation, and, when so payable, includes compensation
payable under 5 U.S.C. chapter 85, but does not include regular
compensation or additional compensation. Regular extended compensation,
along with high unemployment extended compensation, are part of the
program referred to in this part as Extended Benefits.
Regular EB period means a period in which a state is ``on'' the EB
Program because either the mandatory or optional IUR indicator satisfies
the criteria to be ``on'' and the state is not in a 13-week mandatory
``off'' period; or the State is ``on'' the EB Program because the TUR
indicator's Trigger Value is at least 6.5 percent and it is at least 110
percent of the Trigger Value for the comparable 3 months in either of
the prior 2 years.
Secretary means the Secretary of Labor of the United States.
Sharable compensation means:
(1) Extended compensation paid to an eligible individual under those
provisions of a State law which are consistent with EUCA and this part,
and that does not exceed the smallest of the following:
(i) 50 percent of the total amount of regular compensation payable
to the individual during the applicable benefit year; or
(ii) 13 times the individual's weekly amount of extended
compensation payable for a week of total unemployment, as determined
under Sec. 615.6(a); or
(iii) 39 times the individual's weekly benefit amount, referred to
in paragraph (1)(ii) of this definition, reduced by the regular
compensation paid (or deemed paid) to the individual during the
applicable benefit year.
(2) Extended compensation paid to an eligible individual under an
optional
[[Page 87]]
TUR indicator enacted under State law when the State is in a high
unemployment period, in accordance with Sec. 615.12(f) of this part,
and that does not exceed the smallest of the following:
(i) 80 percent of the total amount of regular compensation payable
to the individual during the applicable benefit year; or
(ii) 20 times the individual's weekly amount of extended
compensation payable for a week of total unemployment, as determined
under Sec. 615.6(a); or
(iii) 46 times the individual's weekly benefit amount, referred to
in paragraph (1)(ii) of this definition, reduced by the regular
compensation paid (or deemed paid) to the individual during the
applicable benefit year.
(3) Regular compensation paid to an eligible individual for weeks of
unemployment in the individual's eligibility period, but only to the
extent that the sum of such compensation, plus the regular compensation
paid (or deemed paid) to the individual for prior weeks of unemployment
in the applicable benefit year, exceeds 26 times and does not exceed 39
times the average weekly benefit amount (including allowances for
dependents) for weeks of total unemployment payable to the individual
under the State law in such benefit year: Provided, that such regular
compensation is paid under provisions of a State law which are
consistent with EUCA and this part.
(4) Notwithstanding the preceding provisions of this paragraph,
sharable compensation does not include any regular or extended
compensation for which a State is not entitled to a payment under
section 202(a)(6) or 204 of EUCA or Sec. 615.14 of this part.
State means the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and the U. S. Virgin Islands.
State agency means the State unemployment compensation agency of a
State which administers the State law.
State law means the unemployment compensation law of a State,
approved by the Secretary under section 3304(a) of the Internal Revenue
Code of 1986 (26 U.S.C. 3304(a)).
A systematic and sustained effort, for the purposes of section
202(a)(3)(E), means--
(i) A high level of job search activity throughout the given week,
compatible with the number of employers and employment opportunities in
the labor market reasonably applicable to the individual,
(ii) A plan of search for work involving independent efforts on the
part of each individual which results in contacts with persons who have
the authority to hire or which follows whatever hiring procedure is
required by a prospective employer in addition to any search offered by
organized public and private agencies such as the State employment
service or union or private placement offices or hiring halls,
(iii) Actions by the individual comparable to those actions by which
jobs are being found by people in the community and labor market, but
not restricted to a single manner of search for work such as registering
with and reporting to the State employment service and union or private
placement offices or hiring halls, in the same manner that such work is
found by people in the community,
(iv) A search not limited to classes of work or rates of pay to
which the individual is accustomed or which represent the individual's
higher skills, and which includes all types of work within the
individual's physical and mental capabilities, except that the
individual, while classified by the State agency as provided in Sec.
615.8(d) as having ``good'' job prospects, shall search for work that is
suitable work under State law provisions which apply to claimants for
regular compensation (which is not sharable),
(v) A search by every claimant, without exception for individuals or
classes of individuals other than those in approved training, as
required under section 3304(a)(8) of the Internal Revenue Code of 1986
or section 236(e) of the Trade Act of 1974,
(vi) A search suspended only when severe weather conditions or other
calamity forces suspension of such activities by most members of the
community, except that
(vii) The individual, while classified by the State agency as
provided in Sec. 615.8(d) as having ``good'' job prospects, if such
individual normally obtains customary work through a hiring
[[Page 88]]
hall, shall search for work that is suitable work under State law
provisions which apply to claimants for regular compensation (which is
not sharable).
Tangible evidence of an active search for work, for the purposes of
section 202(a)(3)(E), means a written record which can be verified, and
which includes the actions taken, methods of applying for work, types of
work sought, dates and places where work was sought, the name of the
employer or person who was contacted and the outcome of the contact.
Total Unemployment Rate means the number of unemployed individuals
in a State (seasonally adjusted) divided by the civilian labor force
(seasonally adjusted) in the State for the same period.
Trigger Value or average rate of total unemployment means the ratio
computed using 3 months of the level of seasonally adjusted unemployment
in a State in the numerator and 3 months of the level of the seasonally
adjusted civilian labor force in the State in the denominator. This rate
is used for triggering States ``on'' and ``off'' the optional Total
Unemployment Rate indicator as described in Sec. 615.12(e).
Week means:
(1) For purposes of eligibility for and payment of extended
compensation, a week as defined in the applicable State law.
(2) For purposes of computation of extended compensation ``on'' and
``off'' and ``no change'' indicators and insured unemployment rates and
the beginning and ending of an EB Period or a HUP, a calendar week.
Week of unemployment means:
(1) A week of total, part-total, or partial unemployment as defined
in the applicable State law, which shall be applied in the same manner
and to the same extent to the Extended Benefit Program as if the
individual filing a claim for Extended Benefits were filing a claim for
regular compensation, except as provided in paragraph (2) of this
definition.
(2) Week of unemployment in section 202(a)(3)(A) of the EUCA means a
week of unemployment, as defined in paragraph (1) of this definition,
for which the individual claims Extended Benefits or sharable regular
benefits.
[81 FR 57778, Aug. 24, 2016]
Sec. 615.3 Effective period of the program.
An Extended Benefit Program conforming with EUCA and this part shall
be a requirement for a State law effective on and after January 1, 1972,
pursuant to section 3304(a)(11) of the Internal Revenue Code of 1986,
(26 U.S.C. 3304(a)(11)). Continuation of the program by a State in
conformity and substantial compliance with EUCA and this part,
throughout any 12-month period ending on October 31 of a year subsequent
to 1972, shall be a condition of the certification of the State with
respect to such 12-month period under section 3304(c) of the Internal
Revenue Code of 1986 (26 U.S.C. 3304(c)). Conformity with EUCA and this
part in the payment of regular compensation, regular extended
compensation, and high unemployment extended compensation (if State law
so provides) to any individual is a continuing requirement, applicable
to every week as a condition of a State's entitlement to payment for any
compensation as provided in EUCA and this part.
[53 FR 27937, July 25, 1988, as amended at 81 FR 57781, Aug. 24, 2016]
Sec. 615.4 Eligibility requirements for Extended Benefits.
(a) General. An individual is entitled to Extended Benefits for a
week of unemployment which begins in the individual's eligibility period
if, with respect to such week, the individual is an exhaustee as defined
in Sec. 615.5, files a timely claim for Extended Benefits, and
satisfies the pertinent requirements of the applicable State law which
are consistent with EUCA and this part.
(b) Qualifying for Extended Benefits. The State law shall specify
whether an individual qualifies for Extended Benefits by earnings and
employment in the base period for the individual's applicable benefit
year as required by section 202(a)(5) of EUCA, (and if it does not also
apply this requirement to the payment of sharable regular benefits, the
[[Page 89]]
State will not be entitled to a payment under Sec. 615.14), as follows:
(1) One and one-half times the high quarter wages; or
(2) Forty times the most recent weekly benefit amount, and if this
alternative is adopted, it shall use the weekly benefit amount
(including dependents' allowances) payable for a week of total
unemployment (before any reduction because of earnings, pensions or
other requirements) which applied to the most recent week of regular
benefits; or
(3) Twenty weeks of full-time insured employment, and if this
alternative is adopted, the term ``full-time'' shall have the meaning
provided by the State law.
Sec. 615.5 Definition of ``exhaustee.''
(a)(1) ``Exhaustee'' means an individual who, with respect to any
week of unemployment in the individual's eligibility period:
(i) Has received, prior to such week, all of the regular
compensation that was payable under the applicable State law or any
other State law (including regular compensation payable to Federal
civilian employees and Ex-Servicemembers under 5 U.S.C. chapter 85) for
the applicable benefit year that includes such week; or
(ii) Has received, prior to such week, all of the regular
compensation that was available under the applicable State law or any
other State law (including regular compensation available to Federal
civilian employees and Ex-Servicemembers under 5 U.S.C. chapter 85) in
the benefit year that includes such week, after the cancellation of some
or all of the individual's wage credits or the total or partial
reduction of the individual's right to regular compensation; or
(iii) The applicable benefit year having expired prior to such week
and the individual is precluded from establishing a second (new) benefit
year, or the individual established a second benefit year but is
suspended indefinitely from receiving regular compensation, solely by
reason of a State law provision which meets the requirement of section
3304(a)(7) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)(7)):
Provided, that, an individual shall not be entitled to Extended Benefits
based on regular compensation in a second benefit year during which the
individual is precluded from receiving regular compensation solely by
reason of a State law provision which meets the requirement of section
3304(a)(7) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)(7));
or
(iv) The applicable benefit year having expired prior to such week,
the individual has insufficient wages or employment, or both, on the
basis of which a new benefit year could be established in any State that
would include such week; and
(v) Has no right to unemployment compensation for such week under
the Railroad Unemployment Insurance Act or such other Federal laws as
are specified by the Department pursuant to this paragraph; and
(vi) Has not received and is not seeking for such week unemployment
compensation under the unemployment compensation law of Canada, unless
the Canadian agency finally determines that the individual is not
entitled to unemployment compensation under the Canadian law for such
week.
(2) An individual who becomes an exhaustee as defined above shall
cease to be an exhaustee commencing with the first week that the
individual becomes eligible for regular compensation under any State law
or 5 U.S.C. chapter 85, or has any right to unemployment compensation as
provided in paragraph (a)(1)(v) of this section, or has received or is
seeking unemployment compensation as provided in paragraph (a)(1)(vi) of
this section. The individual's Extended Benefit Account shall be
terminated upon the occurrence of any such week, and the individual
shall have no further right to any balance in that Extended Benefit
Account.
(b) Special Rules. For the purposes of paragraphs (a)(1)(i) and
(a)(1)(ii) of this section, an individual shall be deemed to have
received in the applicable benefit year all of the regular compensation
payable according to the monetary determination, or available to the
individual, as the case may be, even though--
(1) As a result of a pending appeal with respect to wages or
employment
[[Page 90]]
or both that were not included in the original monetary determination
with respect to such benefit year, the individual may subsequently be
determined to be entitled to more or less regular compensation, or
(2) By reason of a provision in the State law that establishes the
weeks of the year in which regular compensation may be paid to the
individual on the basis of wages in seasonal employment--
(i) The individual may be entitled to regular compensation with
respect to future weeks of unemployment in the next season or off
season, as the case may be, but such compensation is not payable with
respect to the week of unemployment for which Extended Benefits are
claimed, and
(ii) The individual is otherwise an exhaustee within the meaning of
this section with respect to rights to regular compensation during the
season or off season in which that week of unemployment occurs, or
(3) Having established a benefit year, no regular compensation is
payable during such year because wage credits were cancelled or the
right to regular compensation was totally reduced as the result of the
application of a disqualification.
(c) Adjustment of week. If it is subsequently determined as the
result of a redetermination or appeal that an individual is an exhaustee
as of a different week than was previously determined, the individual's
rights to Extended Benefits shall be adjusted so as to accord with such
redetermination or decision.
[53 FR 27937, July 25, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 615.6 Extended Benefits; weekly amount.
(a) Total unemployment. (1) The weekly amount of Extended Benefits
payable to an individual for a week of total unemployment in the
individual's eligibility period shall be the amount of regular
compensation payable to the individual for a week of total unemployment
during the applicable benefit year. If the individual had more than one
weekly amount of regular compensation for total unemployment during such
benefit year, the weekly amount of extended compensation for total
unemployment shall be one of the following which applies as specified in
the applicable State law:
(i) The average of such weekly amounts of regular compensation,
(ii) The last weekly benefit amount of regular compensation in such
benefit year, or
(iii) An amount that is reasonably representative of the weekly
amounts of regular compensation payable during such benefit year.
(2) If the method in paragraph (a)(1)(iii) of this section is
adopted by a State, the State law shall specify how such amount is to be
computed. If the method in paragraph (a)(1)(i) of this section is
adopted by a State, and the amount computed is not an even dollar
amount, the amount shall be raised or lowered to an even dollar amount
as provided by the applicable State law for regular compensation.
(b) Partial and part-total unemployment. The weekly amount of
Extended Benefits payable for a week of partial or part-total
unemployment shall be determined under the provisions of the applicable
State law which apply to regular compensation, computed on the basis of
the weekly amount of Extended Benefits payable for a week of total
unemployment as determined pursuant to paragraph (a) of this section.
Sec. 615.7 Extended Benefits; maximum amount.
(a) Individual account. An Extended Benefit Account shall be
established for each individual determined to be eligible for Extended
Benefits, in the sum of the maximum amount potentially payable to the
individual as computed in accordance with paragraph (b) of this section.
(b) Computation of amount in individual account. (1) The amount
established in the Extended Benefit Account of an individual, as the
maximum amount potentially payable to the individual during the
individual's eligibility period, shall be equal to the lesser of--
(i) 50 percent of the total amount of regular compensation
(including dependents' allowances) payable to the
[[Page 91]]
individual during the individual's applicable benefit year; or
(ii) 13 times the individual's weekly amount of Extended Benefits
payable for a week of total unemployment, as determined pursuant to
Sec. 615.6(a); or
(iii) 39 times the individual's weekly benefit amount referred to in
(ii), reduced by the regular compensation paid (or deemed paid) to the
individual during the individual's applicable benefit year.
(2) If the State law so provides, the amount in the individual's
Extended Benefit Account shall be reduced by the aggregate amount of
additional compensation paid (or deemed paid) to the individual under
such law for prior weeks of unemployment in such benefit year which did
not begin in an Extended Benefit Period.
(3) If State law provides, in accordance with Sec. 615.12(e), for a
high unemployment period for weeks of unemployment beginning after March
6, 1993, the provisions of paragraph (b)(1) of this section are applied
by substituting:
(i) 80 percent for 50 percent in (b)(1)(i),
(ii) 20 for 13 in (b)(1)(ii), and
(iii) 46 for 39 in (b)(1)(iii).
Note to paragraph (b)(3). Provided, that if an individual's extended
compensation account is determined in accordance with the provisions of
paragraphs (b)(3)(i) through (b)(3)(iii) (for a ``high unemployment
period'' as defined in Sec. 615.2) during the individual's eligibility
period, upon termination of the high unemployment period, such
individual's account must be reduced by the amount in the account that
is more than the maximum amount of extended compensation or high
extended compensation payable to the individual. Provided further, if
the account balance is equal to or less than the maximum amount of
extended compensation or high unemployment extended compensation
payable, there will be no reduction in the account balance upon
termination of a high unemployment period. In no case will the
individual receive more regular extended compensation or high
unemployment extended compensation than the amount determined in
accordance with paragraphs (b)(1)(i) through (iii) of this section, nor
more extended compensation or high unemployment extended compensation
than as provided in paragraphs (b)(2)(i) through (iii) of this section.
(c) Changes in accounts. (1) If an individual is entitled to more or
less Extended Benefits as a result of a redetermination or an appeal
which awarded more or less regular compensation or Extended Benefits, an
appropriate change shall be made in the individual's Extended Benefit
Account pursuant to an amended determination of the individual's
entitlement to Extended Benefits.
(2) If an individual who has received Extended Benefits for a week
of unemployment is determined to be entitled to more regular
compensation with respect to such week as the result of a
redetermination or an appeal, the Extended Benefits paid shall be
treated as if they were regular compensation up to the greater amount to
which the individual has been determined to be entitled, and the State
agency shall make appropriate adjustments between the regular and
extended accounts. If the individual is entitled to more Extended
Benefits as a result of being entitled to more regular compensation, an
amended determination shall be made of the individual's entitlement to
Extended Benefits. If the greater amount of regular compensation results
in an increased duration of regular compensation, the individual's
status as an exhaustee shall be redetermined as of the new date of
exhaustion of regular compensation.
(3) If an individual who has received Extended Benefits for a week
of unemployment is determined to be entitled to less regular
compensation as the result of a redetermination or an appeal, and as a
consequence is entitled to less Extended Benefits, any Extended Benefits
paid in excess of the amount to which the individual is determined to be
entitled after the redetermination or decision on appeal shall be
considered an overpayment which the individual shall have to repay on
the same basis and in the same manner that excess payments of regular
compensation are required to be repaid under the applicable State law.
If such decision reduces the duration of regular compensation payable to
the individual, the claim for Extended Benefits shall
[[Page 92]]
be backdated to the earliest date, subsequent to the date when the
redetermined regular compensation was exhausted and within the
individual's eligibility period, that the individual was eligible to
file a claim for Extended Benefits. Any such changes shall be made
pursuant to an amended determination of the individual's entitlement to
Extended Benefits.
(d) Reduction because of trade readjustment allowances. Section
233(c) of the Trade Act of 1974 (and section 204(a)(2)(C) of EUCA),
requiring a reduction of extended compensation because of the receipt of
trade readjustment allowances, must be applied as follows:
(1) The reduction of Extended Benefits shall apply only to an
individual who has not exhausted his/her Extended Benefits at the end of
the benefit year;
(2) The amount to be deducted is the product of the weekly benefit
amount for Extended Benefits multiplied by the number of weeks for which
trade readjustment allowances were paid (regardless of the amount paid
for any such week) up to the close of the last week that begins in the
benefit year; and
(3) The amount to be deducted shall be deducted from the balance of
Extended Benefits not used as of the close of the last week which begins
in the benefit year.
[53 FR 27937, July 25, 1988, as amended at 81 FR 57781, Aug. 24, 2016]
Sec. 615.8 Provisions of State law applicable to claims.
(a) Particular provisions applicable. Except where the result would
be inconsistent with the provisions of EUCA or this part, the terms and
conditions of the applicable State law which apply to claims for, and
the payment of, regular compensation shall apply to claims for, and the
payment of, Extended Benefits. The provisions of the applicable State
law which shall apply to claims for, and the payment of, Extended
Benefits include, but are not limited to:
(1) Claim filing and reporting;
(2) Information to individuals, as appropriate;
(3) Notices to individuals and employers, as appropriate;
(4) Determinations, redeterminations, and appeal and review;
(5) Ability to work and availability for work, except as provided
otherwise in this section;
(6) Disqualifications, including disqualifying income provisions,
except as provided by paragraph (c) of this section;
(7) Overpayments, and the recovery thereof;
(8) Administrative and criminal penalties;
(9) The Interstate Benefit Payment Plan;
(10) The Interstate Arrangement for Combining Employment and Wages,
in accordance with part 616 of this chapter.
(b) Provisions not to be applicable. The State law and regulations
shall specify those of its terms and conditions which shall not be
applicable to claims for, or payment of, Extended Benefits. Among such
terms and conditions shall be at least those relating to--
(1) Any waiting period;
(2) Monetary or other qualifying requirements, except as provided in
Sec. 615.4(b); and
(3) Computation of weekly and total regular compensation.
(c) Terminating disqualifications. A disqualification in a State
law, as to any individual who voluntarily left work, was suspended or
discharged for misconduct, gross misconduct or the commission or
conviction of a crime, or refused an offer of or a referral to work, as
provided in sections 202(a) (4) and (6) of EUCA--
(1) As applied to regular benefits which are not sharable, is not
subject to any limitation in sections 202(a) (4) and (6);
(2) As applied to eligibility for Extended Benefits, shall require
that the individual be employed again subsequent to the date of the
disqualification before it may be terminated, even though it may have
been terminated on other grounds for regular benefits which are not
sharable; and if the State law does not also apply this provision to the
payment of what would otherwise be sharable regular benefits, the State
will not be entitled to a payment under EUCA and Sec. 615.14 in regard
to such regular compensation; and
[[Page 93]]
(3) Will not apply in regard to eligibility for Extended Benefits in
a subsequent eligibility period.
(d) Classification and determination of job prospects. (1) As to
each individual who files an initial claim for Extended Benefits (or
sharable regular compensation), the State agency shall classify the
individual's prospects for obtaining work in his/her customary
occupation within a reasonably short period, as ``good'' or ``not
good,'' and shall promptly (not later than the end of the week in which
the initial claim is filed) notify the individual in writing of such
classification and of the requirements applicable to the individual
under the provisions of the applicable State law corresponding to
section 202(a)(3) of EUCA and this part. Such requirements shall be
applicable beginning with the week following the week in which the
individual is furnished such written notice.
(2) If an individual is thus classified as having good prospects,
but those prospects are not realized by the close of the period the
State law specifies as a reasonably short period, the individual's
prospects will be automatically reclassified as ``not good'' or
classified as ``good'' or ``not good'' depending on the individual's job
prospects as of that date.
(3) Whenever, as part of a determination of an individual's
eligibility for benefits, an issue arises concerning the individual's
failure to apply for or accept an offer of work (sections
202(a)(3)(A)(i) and (F) of EUCA and paragraphs (e) and (f) of this
section), or to actively engage in seeking work (sections
202(a)(3)(A)(ii) and (E) of EUCA and paragraph (g) of this section), a
written appealable determination shall be made which includes a finding
as to the individual's job prospects at the time the issue arose. The
reasons for allowing or denying benefits in the written notice of
determination shall explain how the individual's job prospects relate to
the decision to allow or deny benefits.
(4) If an individual's job prospects are determined in accordance
with the preceding paragraph (3) to be ``good,'' the suitability of work
will be determined under the standard State law provisions applicable to
claimants for regular compensation which is not sharable; and if
determined to be ``not good,'' the suitability of work will be
determined under the definition of suitable work in the State law
provisions corresponding to sections 202(a)(3) (C) and (D) of EUCA and
this part. Any determination or classification of an individual's job
prospects is mutually exclusive, and only one suitable work definition
shall be applied to a claimant as to any failure to accept or apply for
work or seek work with respect to any week.
(e) Requirement of referral to work. (1) The State law shall
provide, as required by section 202(a)(3)(F) of EUCA and this part, that
the State Workforce Agency shall refer every claimant for Extended
Benefits to work which is ``suitable work'' as provided in paragraph
(d)(4) of this section, beginning with the week following the week in
which the individual is furnished a written notice of classification of
job prospects as required by paragraphs (d)(1) and (h) of this section.
(2) To make such referrals, the State Workforce Agency shall assure
that each Extended Benefit claimant is registered for work and continues
to be considered for referral to job openings as long as he/she
continues to claim benefits.
(3) In referring claimants to available job openings, the State
Workforce Agency shall apply to Extended Benefit claimants the same
priorities, policies, and judgments as it does to other applicants,
except that it shall not restrict referrals only to work at higher skill
levels, prior rates of pay, customary work, or preferences as to work or
pay for individuals whose prospects of obtaining work in their customary
occupations have been classified as or determined to be ``not good.''
(4) For referral purposes, any work which does not exceed the
individual's capabilities shall be considered suitable work for an
Extended Benefit claimant whose job prospects have been classified as or
determined to be ``not good'', except as modified by this paragraph (e).
(5) For Extended Benefit claimants whose prospects of obtaining work
in their customary occupations have been classified as or determined to
be ``not
[[Page 94]]
good'', work shall not be suitable, and referral to a job shall not be
made, if--
(i) The gross average weekly remuneration for the work for any week
does not exceed the sum of the individual's weekly benefit amount plus
any supplemental unemployment benefits (SUB) (as defined in section
501(c)(17)(D) of the Internal Revenue Code of 1986) payable to the
individual,
(ii) The work is not offered in writing or is not listed with the
State employment service,
(iii) The work pays less than the higher of the minimum wage set in
section 6(a)(1) of the Fair Labor Standards Act of 1938, or any
applicable State or local minimum wage, without regard to any exemption
elsewhere in those laws, or
(iv) Failure to accept or apply for the work would not result in a
denial of compensation under the provisions of the applicable State law
as defined in Sec. 615.2(o)(7).
(6) In addition, if the State Workforce Agency classifies or
determines that an individual's prospects for obtaining work in his/her
customary occupation within a reasonably short period are ``good,''
referral shall not be made to a job if such referral would not be made
under the State law provisions applicable to claimants for regular
benefits which are not sharable, and such referrals shall be limited to
work which the individual is required to make a ``systematic and
sustained effort'' to search for as defined in Sec. 615.2(o)(8).
(7) For the purposes of the foregoing paragraphs of this paragraph
(e), State law applies regarding whether members of labor organizations
shall be referred to nonunion work in their customary occupations.
(8) If the State law does not also apply this paragraph (e) to
individuals who claim what would otherwise be sharable regular
compensation, the State will not be entitled to payment under EUCA and
Sec. 615.14 in regard to such regular compensation.
(f) Refusal of work. (1) The State law shall provide, as required by
section 202(a)(3)(A)(i) of EUCA and this part, that if an individual who
claims Extended Benefits fails to accept an offer of work or fails to
apply for work to which he/she was referred by the State Workforce
Agency--
(i) If the individual's prospects for obtaining work in his/her
customary occupation within a reasonably short period are determined to
be ``good,'' the State agency shall determine whether the work is
suitable under the standard State law provisions which apply to
claimants for regular compensation which is not sharable, and if
determined to be suitable the individual shall be ineligible for
Extended Benefits for the week in which the individual fails to apply
for or accept an offer of suitable work and thereafter until the
individual is employed in at least four weeks with wages from such
employment totalling not less than four times the individual's weekly
benefit amount, as provided by the applicable State law; or
(ii) If the individual's prospects for obtaining work in his/her
customary occupation are determined to be ``not good,'' the State agency
shall determine whether the work is suitable under the applicable State
law provisions corresponding to sections 202(a)(3) (C) and (D) of EUCA
and paragraphs (e)(5) and (f)(2) of this section, and if determined to
be suitable the individual shall be ineligible for Extended Benefits for
the week in which the individual fails to apply for or accept an offer
of suitable work and thereafter until the individual is employed in at
least four weeks with wages from such employment totalling not less than
four times the individual's weekly benefit amount, as provided by the
applicable State law.
(2) For an individual whose prospects of obtaining work in his/her
customary occupation within the period specified by State law are
classified or determined to be ``not good,'' the term ``suitable work''
shall mean any work which is within the individual's capabilities,
except that work shall not be suitable if--
(i) The gross average weekly remuneration for the work for any week
does not exceed the sum of the individual's weekly benefit amount plus
any
[[Page 95]]
supplemental unemployment compensation benefits (as defined in section
501(c)(17)(D) of the Internal Revenue Code of 1986) payable to the
individual,
(ii) The work is not offered in writing or is not listed with the
State employment service,
(iii) The work pays less than the higher of the minimum wage set in
section 6(a)(1) of the Fair Labor Standards Act of 1938, or any
applicable State or local minimum wage, without regard to any exemption
elsewhere in those laws, or
(iv) Failure to accept or apply for the work would not result in a
denial of compensation under the provisions of the applicable State law
as defined in Sec. 615.2(o)(7).
(3) For the purposes of the foregoing paragraphs of this paragraph
(f), State law applies regarding whether members of labor organizations
shall be referred to nonunion work in their customary occupations.
(4) If the State law does not also apply this paragraph (f) to
individuals who claim what would otherwise be sharable regular
compensation, the State will not be entitled to payment under EUCA and
Sec. 615.14 in regard to such regular compensation.
(g) Actively seeking work. (1) The State law shall provide, as
required by sections 202(a)(3) (A)(ii) and (E) of EUCA and this part,
that an individual who claims Extended Benefits shall be required to
make a systematic and sustained effort (as defined in Sec. 615.2(o)(8))
to search for work which is ``suitable work'' as provided in paragraph
(d)(4) of this section, throughout each week beginning with the week
following the week in which the individual is furnished a written notice
of classification of job prospects as required by paragraphs (d)(1) and
(h) of this section, and to furnish to the State agency with each claim
tangible evidence of such efforts.
(2) If the individual fails to thus search for work, or to furnish
tangible evidence of such efforts, he/she shall be ineligible for
Extended Benefits for the week in which the failure occurred and
thereafter until the individual is employed in at least four weeks with
wages from such employment totalling not less than four times the
individual's weekly benefit amount, as provided by the applicable State
law.
(3)(i) A State law may provide that eligibility for Extended
Benefits be determined under the applicable provisions of State law for
regular compensation which is not sharable, without regard to the active
search provisions otherwise applicable in paragraph (g)(1) of this
section, for any individual who fails to engage in a systematic and
sustained search for work throughout any week because such individual
is--
(A) Serving on jury duty, or
(B) Hospitalized for treatment of an emergency or life-threatening
condition.
(ii) The conditions in (i) (A) and (B) must be applied to
individuals filing claims for Extended Benefits in the same manner as
applied to individuals filing claims for regular compensation which is
not sharable compensation.
(4) For the purposes of the foregoing paragraphs of this paragraph
(g), State law applies regarding whether members of labor organizations
shall be required to seek nonunion work in their customary occupations.
(5) If the State law does not also apply this paragraph (g) to
individuals who claim what would otherwise be sharable regular
compensation, the State will not be entitled to payment under EUCA and
Sec. 615.14 in regard to such regular compensation.
(h) Information to claimants. The State agency or State Workforce
Agency, as applicable, shall assure that each Extended Benefit claimant
(and claimant for sharable regular compensation) is informed in
writing--
(1) Of the State agency's classification of his/her prospects for
finding work in his/her customary occupation within the time set out in
paragraph (d) as ``good'' or ``not good,''
(2) What kind of jobs he/she may be referred to, depending on the
classification of his/her job prospects,
(3) What kind of jobs he/she must be actively engaged in seeking
each week depending on the classification of his/her job prospects, and
what tangible evidence of such search must be furnished to the State
agency with each claim for benefits. In addition, the State must inform
the claimant that
[[Page 96]]
he/she is required to apply for and accept suitable work, and
(4) The resulting disqualification if he/she fails to apply for work
to which referred, or fails to accept work offered, or fails to actively
engage in seeking work or to furnish tangible evidence of such search
for each week for which extended compensation or sharable regular
benefits is claimed, beginning with the week following the week in which
such information shall be furnished in writing to the individual.
[53 FR 27937, July 25, 1988, as amended at 71 FR 35514, June 21, 2006;
81 FR 57781, Aug. 24, 2016]
Sec. 615.9 Restrictions on entitlement.
(a) Disqualifications. If the week of unemployment for which an
individual claims Extended Benefits is a week to which a
disqualification for regular compensation applies, including a reduction
because of the receipt of disqualifying income, or would apply but for
the fact that the individual has exhausted all rights to such
compensation, the individual shall be disqualified in the same degree
from receipt of Extended Benefits for that week.
(b) Additional compensation. No individual shall be paid additional
compensation and Extended Benefits with respect to the same week. If
both are payable by a State with respect to the same week, the State law
may provide for the payment of Extended Benefits instead of additional
compensation with respect to the week. If Extended Benefits are payable
to an individual by one State and additional compensation is payable to
the individual for the same week by another State, the individual may
elect which of the two types of compensation to claim.
(c) Interstate claims. An individual who files claims for Extended
Benefits under the Interstate Benefit Payment Plan, in a State which is
not in an Extended Benefit Period for the week(s) for which Extended
Benefits are claimed, shall not be paid more than the first two weeks
for which he/she files such claims.
(d) Other restrictions. The restrictions on entitlement specified in
this section are in addition to other restrictions in EUCA and this part
on eligibility for and entitlement to Extended Benefits.
Sec. 615.10 Special provisions for employers.
(a) Charging contributing employers. (1) Section 3303(a)(1) of the
Internal Revenue Code of 1986 (26 U.S.C. 3303(a)(1)) does not require
that Extended Benefits paid to an individual be charged to the
experience rating accounts of employers.
(2) A State law may, however, consistently with section 3303(a)(1),
require the charging of Extended Benefits paid to an individual; and if
it does, it may provide for charging all or any portion of such
compensation paid.
(3) Sharable regular compensation must be charged as all other
regular compensation is charged under the State law.
(b) Payments by reimbursing employers. If an employer is reimbursing
the State unemployment fund in lieu of paying contributions pursuant to
the requirements of State law conforming with sections 3304(a)(6)(B) and
3309(a)(2) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)(6)(B)
and 3309(a)(2)), the State law shall require the employer to reimburse
the State unemployment fund for not less than 50 percent of any sharable
compensation that is attributable under the State law to service with
such employer; and as to any compensation which is not sharable
compensation under Sec. 615.14, the State law shall require the
employer to reimburse the State unemployment fund for 100 percent,
instead of 50 percent, of any such compensation paid.
Sec. 615.11 Extended Benefit Periods.
(a) Beginning date. Except as provided in paragraph (d) of this
section, an extended benefit period or high unemployment period begins
in a State on the first day of the third calendar week after a week for
which there is a State ``on'' indicator in that State under either Sec.
615.12(a) or (b).
(b) Ending date. Except as provided in paragraphs (c) and (e) of
this section, an extended benefit period or high unemployment period in
a State ends on the last day of the third week after the first week for
which there is a State
[[Page 97]]
``off'' indicator in that State, unless another indicator is in ``on''
status.
(c) Duration. When an extended benefit period and/or high
unemployment period becomes effective in any State, or triggers ``off,''
the attained status must continue in effect for not less than 13
consecutive weeks.
(d) Limitation. No extended benefit period or high unemployment
period may begin or end in any State before the most recent week for
which data used to trigger the State ``on'' or ``off'' or ``no change''
indicator has been published.
(e) Specific applications of the 13-week rule. (1) If a State
concludes a 13-week mandatory ``on'' period by virtue of the IUR
indicator which, at the end of the 13-week period no longer satisfies
the requirements for a State to be ``on,'' the extended benefit period
continues if the TUR indicator is ``on'' during the 11th week of the 13-
week mandatory ``on'' period.
(2) If a State concludes a 13-week mandatory ``on'' period by virtue
of the TUR indicator which, at the end of the 13-week period no longer
satisfies the requirements for a State to be ``on,'' the extended
benefit period continues if the IUR indicator is ``on'' during the 11th
week of the 13-week mandatory ``on'' period.
(f) Determining if a State remains ``off'' as a result of a total
unemployment rate indicator after the 13-week mandatory ``off'' period
ends. (1) The State remains ``off'' if there is not an IUR ``on''
indicator the 11th week of the 13-week mandatory ``off'' period, and
there is a TUR ``off'' indicator for the third week before the last week
of the 13-week mandatory ``off'' period.
[81 FR 57781, Aug. 24, 2016]
Sec. 615.12 Determination of ``on'' and ``off'' indicators.
(a) Standard State indicators. (1) There is a State ``on'' indicator
in a State for a week if the head of the State agency determines, in
accordance with this section, that, for the period consisting of that
week and the immediately preceding 12 weeks, the rate of insured
unemployment (not seasonally adjusted) under the State law--
(i) Equalled or exceeded 120 percent of the average of such rates
for the corresponding 13-week periods ending in each of the preceding
two calendar years, and
(ii) Equalled or exceeded 5.0 percent.
(2) There is a State ``off'' indicator in a State for a week if the
head of the State agency determines, in accordance with this section,
that, for the period consisting of that week and the immediately
preceding 12 weeks, the rate of insured unemployment (not seasonally
adjusted) under the State law--
(i) Was less than 120 percent of the average of such rates for the
corresponding 13 week periods ending in each of the preceding two
calendar years, or
(ii) Was less than 5.0 percent.
(3) The standard State indicators in this paragraph (a) shall apply
to weeks beginning after September 25, 1982.
(b) Optional State indicators. (1)(i) A State may, in addition to
the State indicators in paragraph (a) of this section, provide by its
law that there shall be a State ``on'' indicator in the State for a week
if the head of the State agency determines, in accordance with this
section, that, for the period consisting of that week and the
immediately preceding 12 weeks, the rate of insured unemployment (not
seasonally adjusted) under the State law equalled or exceeded 6.0
percent even though it did not meet the 120 percent factor required
under paragraph (a).
(ii) A State which adopts the optional State indicator must also
provide that, when it is in an Extended Benefit Period, there will not
be an ``off'' indicator until (A) the State rate of insured unemployment
is less than 6.0 percent, and (B) either its rate of insured
unemployment is less than 5.0 percent or is less than 120 percent of the
average of such rates for the corresponding 13-week periods ending in
each of the preceding two calendar years.
(2) The optional State indicators in this paragraph (b) shall apply
to weeks beginning after September 25, 1982.
(c) Computation of rate of insured unemployment--(1) Equation. Each
week the State agency head shall calculate the rate of insured
unemployment under the State law (not seasonally adjusted) for purposes
of determining the State ``on'' and ``off'' and ``no change''
[[Page 98]]
indicators. In making such calculations the State agency head shall use
a fraction, the numerator of which shall be the weekly average number of
weeks claimed in claims filed (not seasonally adjusted) in the State in
the 13-week period ending with the week for which the determination is
made, and the denominator of which shall be the average monthly
employment covered by the State law for the first four of the last six
calendar quarters ending before the close of the 13-week period. The
quotient obtained is to be computed to four decimal places, and is not
otherwise rounded, and is to be expressed as a percentage by multiplying
the resultant decimal fraction by 100.
(2) Counting weeks claimed. To determine the average number of weeks
claimed in claims filed to serve as the numerator under paragraph
(c)(1), the State agency shall include claims for all weeks for regular
compensation, including claims taken as agent State under the Interstate
Benefit Payment Plan. It shall exclude claims--
(i) For Extended Benefits under any State law,
(ii) For additional compensation under any State law, and
(iii) Under any Federal law except joint claims which combine
regular compensation and compensation payable under 5 U.S.C. chapter 85.
(3) Method of computing the State 120 percent factor. The rate of
insured unemployment for a current 13-week period shall be divided by
the average of the rates of insured unemployment for the corresponding
13-week periods in each of the two preceding calendar years to determine
whether the rate is equal to 120 percent of the average rate for the two
years. The quotient obtained shall be computed to four decimal places
and not otherwise rounded, and shall be expressed as a percentage by
multiplying the resultant decimal fraction by 100. The average of the
rates for the corresponding 13-week periods in each of the two preceding
calendar years shall be one-half the sum of such rates computed to four
decimal places and not otherwise rounded. To determine which are the
corresponding weeks in the preceding years--
(i) The weeks shall be numbered starting with week number 1 as the
first week ending in each calendar year.
(ii) The 13-week period ending with any numbered week in the current
year shall correspond to the period ending with that same numbered week
in each preceding year.
(iii) When that period in the current year ends with week number 53,
the corresponding period in preceding years shall end with week number
52 if there is no week number 53.
(d) Amendment of State indicator rates. (1) Any determination by the
head of a State agency of an ``on'' or ``off'' or ``no change'' IUR
indicator may not be corrected more than three weeks after the close of
the week to which it applies. If any figure used in the computation of a
rate of insured unemployment is later found to be wrong, the correct
figure must be used to redetermine the rate of insured unemployment and
the 120 percent factor for that week and all later weeks, but no
determination of previous ``on'' or ``off'' or ``no change'' indicator
shall be affected unless the redetermination is made within the time the
indicator may be corrected under the first sentence of this paragraph
(d)(1). Any change is subject to the concurrence of the Department as
provided in paragraph (e) of this section.
(2) The initial release of the TUR by the Bureau of Labor Statistics
(BLS) is subject to revision. However, once a State's TUR indicator is
determined using the initial release of the TUR data, it is not subject
to revision even if the BLS TUR for that period of time is revised.
(3) The ``on'' period under a State's optional IUR or TUR indicator
may not begin before the later of the date of the State's adoption of
the optional insured unemployment rate or total unemployment rate
indicator, or the effective date of that enactment. The ``off'' period
under a State's optional insured unemployment rate or total unemployment
rate indicator may not occur until after the effective date of the
repeal of the optional insured unemployment rate or total unemployment
rate indicator from State law.
(e) Other optional indicators. (1) A State may, as an option, in
addition to the State indicators in paragraphs (a)
[[Page 99]]
and (b) of this section, provide by its law that there is a State ``on''
or ``off'' indicator in the State for a week if we determine that--
(i) The Trigger Value in such State computed using the most recent 3
months for which data for all States are published before the close of
such week equals or exceeds 6.5 percent; and
(ii) The Trigger Value computed using data from the 3-month period
referred to in paragraph (e)(1)(i) of this section equals or exceeds 110
percent of the Trigger Value for either (or both) of the corresponding
3-month periods ending in the 2 preceding calendar years. This ``look-
back'' is computed by dividing the Trigger Value by the same measure for
the corresponding 3 months in each of the applicable prior years, and
the resulting decimal fraction is rounded to the hundredths place,
multiplied by 100 and reported as an integer and compared to the
statutory threshold to help determine the State's EB Program status; and
(iii) There is a State ``off'' indicator for a week if either the
requirements of paragraph (e)(1)(i) or (ii) of this section are not
satisfied.
(2) Where a State adopts the optional indicator under paragraph
(e)(1) of this section, there is a State ``on'' indicator for a high
unemployment period (as defined in Sec. 615.2) under State law if--
(i) The Trigger Value in the State computed using the most recent 3
months for which data for all States are published before the close of
such week equals or exceeds 8.0 percent, and
(ii) The Trigger Value in the State computed using data from the 3-
month period referred to in paragraph (e)(2)(i) of this section equals
or exceeds 110 percent of the Trigger Value for either (or both) of the
corresponding 3-month periods ending in the 2 preceding calendar years.
This ``look-back'' is computed by dividing the Trigger Value by the same
measure for the corresponding 3 months in each of the applicable prior
years, and the resulting decimal fraction is rounded to the hundredths
place, multiplied by 100 and reported as an integer and compared to the
statutory threshold to help determine the State's EB Program status; and
(iii) There is a State ``off'' indicator for high unemployment
period for a week if either the requirements of paragraph (e)(2)(i) or
(ii) of this section are not satisfied.
(3) Method of computing the average rate of total unemployment. The
average rate of total unemployment is computed by dividing the average
of 3 months of the level of seasonally adjusted unemployment in the
State by the average of 3 months of the level of seasonally adjusted
unemployment and employment in the State. The resulting rate is
multiplied by 100 to convert it to a percentage basis and then rounded
to the tenths place (the first digit to the right of the decimal place).
(4) Method of computing the State ''look-back.'' The average rate of
total unemployment, ending with a given month, is divided by the same
measure for the corresponding 3 months in each of the applicable prior
years. The resultant decimal fraction is then rounded to the hundredths
place (the second digit to the right of the decimal place). The
resulting number is then multiplied by 100 and reported as an integer
(no decimal places) and compared to the statutory threshold to help
determine the State's EB Program status.
(f) Notice to Secretary. Within 10 calendar days after the end of
any week for which the head of a State agency has determined that there
is an ``on,'' or ``off,'' or ``no change'' IUR indicator in the State,
the head of the State agency must notify the Secretary of the
determination. The notice must state clearly the State agency head's
determination of the specific week for which there is a State ``on'' or
``off'' or ``no change'' indicator. The notice must include also the
State agency head's findings supporting the determination, with a
certification that the findings are made in accordance with the
requirements of Sec. 615.15. The Secretary may provide additional
instructions for the contents of the notice to assure the correctness
and verification of notices given under this paragraph. The Secretary
will accept determinations and findings made in accordance with the
provisions of this paragraph and of any instructions issued under this
paragraph. A notice does not become final for purposes of EUCA and
[[Page 100]]
this part until the Secretary accepts the notice.
[53 FR 27937, July 25, 1988, as amended at 81 FR 57782, Aug. 24, 2016]
Sec. 615.13 Announcement of the beginning and ending of Extended Benefit
Periods or High Unemployment Periods.
(a) State indicators--(1) Extended benefit period. Upon receipt of a
notice required by Sec. 615.12(f) which the Department determines is
acceptable, the Department will publish in the Federal Register a notice
of the State agency head's determination that there is an ``on'' or an
``off'' indicator in the State, as the case may be, the name of the
State and the beginning or ending of the extended benefit period, or
high unemployment period, whichever is appropriate. If an ``on'' or
``off'' EB period is determined by the Department to be based on a
State's TUR Trigger Value, the Department publishes that information in
the Federal Register as well.
(2) Notification. The Department also notifies the heads of all
other State agencies, and the Regional Administrators of the Employment
and Training Administration of the State agency head's determination of
the State ``on'' or ``off'' indicator for an extended benefit period, or
high unemployment period (based on the insured unemployment rate in the
State), or of the Department's determination of an ``on'' or ``off''
indicator (based on the total unemployment rate in a State) for an
extended benefit period or high unemployment period and of the
indicator's effect.
(b) Publicity by State. (1) Whenever a State agency head determines
that there is an ``on'' indicator in the State by reason of which an
extended benefit period (based on the insured unemployment rate in the
State) will begin in the State, or an ``off'' indicator by reason of
which an extended benefit period in the State (based on the insured
unemployment rate) will end, the head of the State agency must promptly
announce the determination through appropriate news media in the State
after the Department accepts notice from the agency head in accordance
the 615.12(f).
(2) Whenever the head of a State agency receives notification from
the Department in accordance with Sec. 615.12(f) that there is an
``on'' indicator by reason of which an extended benefit period or high
unemployment period (based on the total unemployment rate in the State)
will begin in the State, or an ``off'' indicator by reason of which a
regular extended benefit period or high unemployment period (based on
the total unemployment rate) will end, the head of the State agency must
promptly announce the determination through the appropriate news media
in the State.
(3) Announcements made in accordance with paragraphs (b)(1) or
(b)(2) of this section must include the beginning or ending date of the
extended benefit period or high unemployment period, whichever is
appropriate. In the case of a regular EB period or high unemployment
period that is about to begin, the announcement must describe clearly
the unemployed individuals who may be eligible for extended compensation
or high extended compensation during the period, and in the case of a
regular EB period or high unemployment period that is about to end, the
announcement must also describe clearly the individuals whose
entitlement to extended compensation or high extended compensation will
be terminated. If a high unemployment period is ending, but an extended
benefit period will remain ``on,'' the announcement must clearly state
that fact and the effect on entitlement to extended compensation.
(c) Notice to individuals. (1) Whenever there has been a
determination that a regular extended benefit period or high
unemployment period will begin in a State, the State agency must provide
prompt written notice of potential entitlement to Extended Benefits to
each individual who has established a benefit year in the State that
will not end before the beginning of the regular extended benefit period
or high unemployment period, and who exhausted all rights under the
State law to regular compensation before the beginning of the regular
extended benefit period or high unemployment period.
(2) The State agency must provide the notice promptly to each
individual
[[Page 101]]
who begins to claim sharable regular benefits or who exhausts all rights
under the State law to regular compensation during a regular extended
benefit period or high unemployment period, including exhaustion by
reason of the expiration of the individual's benefit year.
(3) The notices required by paragraphs (c)(1) and (2) of this
section must describe the actions required of claimants for sharable
regular compensation and extended compensation and those
disqualifications which apply to the benefits which are different from
those applicable to other claimants for regular compensation which is
not sharable.
(4) Whenever there is a determination that a regular extended
benefit period or high unemployment period will end in a State, the
State agency must provide prompt written notice to each individual who
is currently filing claims for extended compensation of the forthcoming
end of the regular extended benefit period or high unemployment period
and its effect on the individual's right to extended compensation.
[81 FR 57783, Aug. 24, 2016]
Sec. 615.14 Payments to States.
(a) Sharable compensation. (1) The Department shall promptly upon
receipt of a State's report of its expenditures for a calendar month
reimburse the State in the amount of the sharable compensation the State
is entitled to receive under EUCA and this part.
(2) The Department may instead advance to a State for any period not
greater than one day the amount the Department estimates the State will
be entitled to be paid under EUCA and this part for that period.
(3) Any payment to a State under this section shall be based upon
the Department's determination of the amount the State is entitled to be
paid under EUCA and this part, and such amount shall be reduced or
increased, as the case may be, by any amount by which the Department
finds that a previous payment was greater or less than the amount that
should have been paid to the State.
(4) Any payment to a State pursuant to this paragraph (a) shall be
made by a transfer from the extended unemployment compensation account
in the Unemployment Trust Fund to the account of the State in such Fund,
in accordance with section 204(e) of EUCA.
(b) Payments not to be made to States. Because a State law must
contain provisions fully consistent with sections 202 and 203 of EUCA,
the Department shall make no payment under paragraph (a) of this
section, whether or not the State is certified under section 3304(c) of
the Internal Revenue Code of 1986--
(1) In respect of any regular or extended compensation paid to any
individual for any week if the State does not apply--
(i) The provisions of the State law required by section 202(a)(3)
and this part, relating to failure to accept work offered or to apply
for work or to actively engage in seeking work or the provisions of
State law required by section 202(a)(4) and this part, relating to
terminating a disqualification;
(ii) The provisions of the State law required by section 202(a)(5)
and this part, relating to qualifying employment; or
(2) In respect of any regular or extended compensation paid to any
individual for any week which was not payable by reason of the provision
of the State law required by section 202(c) and this part as determined
by the Department with regard to each State.
(c) Payments not to be reimbursed. The Department shall make no
payment under paragraph (a) of this section, whether or not the State is
certified under section 3304(c) of the Internal Revenue Code of 1986, in
respect of any regular or extended compensation paid under a State law--
(1) As provided in section 204(a)(1) of EUCA and this part, if the
payment made was not sharable extended compensation or sharable regular
compensation;
(2) As provided in section 204(a)(2)(A) of EUCA, if the State is
entitled to reimbursement for the payment under the provisions of any
Federal law other than EUCA;
(3) As provided in section 204(a)(2)(B) of EUCA, if for the first
week in an individual's eligibility period with respect to which
Extended Benefits or sharable regular benefits are paid to
[[Page 102]]
the individual and the State law provides for the payment (at any time
or under any circumstances) of regular compensation to any individual
for the first week of unemployment in any such individual's benefit
year; except that--
(i) In the case of a State law which is changed so that regular
compensation is not paid at any time or under any circumstances with
respect to the first week of unemployment in any individual's benefit
year, this paragraph (c)(3) shall not apply to any week which begins
after the effective date of such change in the State law; and
(ii) In the case of a State law which is changed so that regular
compensation is paid at any time or under any circumstances with respect
to the first week of unemployment in any individual's benefit year, this
paragraph (c)(3) shall apply to all weeks which begin after the
effective date of such change in the State law;
(4) As provided in section 204(a)(2)(C) of EUCA, for any week in
which extended compensation is not payable because of the payment of
trade readjustment allowances, as provided in section 233(c) of the
Trade Act of 1974, and Sec. 615.7(d).
(5) As provided in section 204(a)(2)(D) of EUCA and this part, if
the State does not provide for a benefit structure under which benefits
are rounded down to the next lower dollar amount, for the 50 percent
Federal share of the amount by which sharable regular or Extended
Benefits paid to any individual exceeds the nearest lower full dollar
amount.
(6) As provided in section 204(a)(3) of EUCA, to the extent that
such compensation is based upon employment and wages in service
performed for governmental entities or instrumentalities to which
section 3306(c)(7) of the Internal Revenue Code of 1986 (26 U.S.C.
3306(c)(7)) applies, in the proportion that wages for such service in
the base period bear to the total base period wages;
(7) If the payment made was not sharable extended compensation or
sharable regular compensation because the payment was not consistent
with the requirements of--
(i) Section 202(a)(3) of EUCA, and Sec. 615.8 (e), (f), or (g);
(ii) Section 202(a)(4) of EUCA, and Sec. 615.8(c); or
(iii) Section 202(a)(5) of EUCA, and Sec. 615.4(b);
(8) If the payment made was not sharable extended compensation or
sharable regular compensation because there was not in effect in the
State an Extended Benefit Period in accord with the Act and this part;
or
(9) For any week with respect to which the claimant was either
ineligible for or not entitled to the payment.
(d) Effectuating authorization for reimbursement. (1) If the
Department believes that reimbursement should not be authorized with
respect to any payments made by a State that are claimed to be sharable
compensation paid by the State, because the State law does not contain
provisions required by EUCA and this part, or because such law is not
interpreted or applied in rules, regulations, determinations or
decisions in a manner that is consistent with those requirements, the
Department may at any time notify the State agency in writing of the
Department's view. The State agency shall be given an opportunity to
present its views and arguments if desired.
(2) The Department shall thereupon decide whether the State law
fails to include the required provisions or is not interpreted and
applied so as to satisfy the requirements of EUCA and this part. If the
Department finds that such requirements are not met, the Department
shall notify the State agency of its decision and the effect thereof on
the State's entitlement to reimbursement under this section and the
provisions of section 204 of EUCA.
(3) Thereafter, the Department shall not authorize any payment under
paragraph (a) of this section in respect of any sharable regular or
extended compensation if the State law does not contain all of the
provisions required by sections 202 and 203 of EUCA and this part, or if
the State law, rules, regulations, determinations or decisions are not
consistent with such requirements, or which would not have been payable
if the State law contained
[[Page 103]]
the provisions required by EUCA and this part or if the State law,
rules, regulations, determinations or decisions had been consistent with
such requirements. Loss of reimbursement for such compensation shall
begin with the date the State law was required to contain such
provisions, and shall continue until such time as the Department finds
that such law, rules and regulations have been revised or the
interpretations followed pursuant to such determinations and decisions
have been overruled and payments are made or denied so as to accord with
the Federal law requirements of EUCA and this part, but no reimbursement
shall be authorized with respect to any payment that did not fully
accord with EUCA and this part.
(4) A State agency may request reconsideration of a decision issued
pursuant to paragraph (d)(2) above, within 10 calendar days of the date
of such decision, and shall be given an opportunity to present views and
arguments if desired.
(5) Concurrence of the Department in any State law provision, rule,
regulation, determination or decision shall not be presumed from the
absence of notice issued pursuant to this section or from a
certification of the State issued pursuant to section 3304(c) of the
Internal Revenue Code of 1986.
(6) Upon finding that a State has made payments for which it claims
reimbursement that are not consistent with EUCA or this part, such claim
shall be denied; and if the State has already been paid such claim in
advance or by reimbursement, it shall be required to repay the full
amount to the Department. Such repayment may be made by transfer of
funds from the State's account in the Unemployment Trust Fund to the
Extended Unemployment Compensation Account in the Fund, or by offset
against any current advances or reimbursements to which the State is
otherwise entitled, or the amount repayable may be recovered for the
Extended Unemployment Compensation Account by other means and from any
other sources that may be available to the United States or the
Department.
(e) Compensation under Federal unemployment compensation programs.
The Department shall promptly reimburse each State which has paid
sharable compensation based on service covered by the UCFE and UCX
Programs (parts 609 and 614 of this chapter, respectively) pursuant to 5
U.S.C. chapter 85, an amount which represents the full amount of such
sharable compensation paid under the State law, or may make advances to
the State. Such amounts shall be paid from the Federal Employees
Compensation Account established for those programs, rather than from
the Extended Unemployment Compensation Account.
(f) Combined-wage claims. If an individual was paid benefits under
the Interstate Arrangement for Combining Employment and Wages (part 616
of this chapter) any payment required by paragraph (a) of this section
shall be made to the States which contributed the wage credits.
(g) Interstate claims. Where sharable compensation is paid to an
individual under the provisions of the Interstate Benefit Payment Plan,
any payment required by paragraph (a) of this section shall be made only
to the liable State.
[53 FR 27937, July 25, 1988, as amended at 71 FR 35514, June 21, 2006;
81 FR 57783, Aug. 24, 2016]
Sec. 615.15 Records and reports.
(a) General. State agencies must furnish to the Secretary such
information and reports and make such studies as the Secretary decides
are necessary or appropriate for carrying out the purposes of this part.
(b) Recordkeeping. Each State agency must make and maintain records
pertaining to the administration of the Extended Benefit Program as the
Department requires, and must make all such records available for
inspection, examination and audit by such Federal officials or employees
as the Department may designate or as may be required by law.
[81 FR 57783, Aug. 24, 2016]
[[Page 104]]
PART 616_INTERSTATE ARRANGEMENT FOR COMBINING EMPLOYMENT AND WAGES-
-Table of Contents
Sec.
616.1 Purpose of arrangement.
616.2 Consultation with the State agencies.
616.3 Interstate cooperation.
616.4 Rules, regulations, procedures, forms--resolution of
disagreements.
616.6 Definitions.
616.7 Election to file a Combined-Wage Claim.
616.8 Responsibilities of the paying State.
616.9 Responsibilities of transferring States.
616.10 Reuse of employment and wages.
616.11 Amendment of arrangement.
Authority: 26 U.S.C. 3304(a)(9)(B); Secretary's Order No. 3-2007,
Apr. 3, 2007 (72 FR 15907).
Source: 36 FR 24992, Dec. 28, 1971, unless otherwise noted.
Sec. 616.1 Purpose of arrangement.
This arrangement is approved by the Secretary under the provisions
of section 3304(a)(9)(B) of the Federal Unemployment Tax Act to
establish a system whereby an unemployed worker with covered employment
or wages in more than one State may combine all such employment and
wages in one State, in order to qualify for benefits or to receive more
benefits.
Sec. 616.2 Consultation with the State agencies.
As required by section 3304(a)(9)(B), this arrangement has been
developed in consultation with the State unemployment compensation
agencies. For purposes of such consultation in its formulation and any
future amendment the Secretary recognizes, as agents of the State
agencies, the duly designated representatives of the National
Association of State Workforce Agencies (NASWA).
[36 FR 24992, Dec. 28, 1971, as amended at 71 FR 35514, June 21, 2006]
Sec. 616.3 Interstate cooperation.
Each State agency will cooperate with every other State agency by
implementing such rules, regulations, and procedures as may be
prescribed for the operation of this arrangement. Each State agency
shall identify the paying and the transferring State with respect to
Combined-Wage Claims filed in its State.
Sec. 616.4 Rules, regulations, procedures, forms--resolution of
disagreements.
All State agencies shall operate in accordance with such rules,
regulations, and procedures, and shall use such forms, as shall be
prescribed by the Secretary in consultation with the State unemployment
compensation agencies. All rules, regulations, and standards prescribed
by the Secretary with respect to intrastate claims will apply to claims
filed under this arrangement unless they are clearly inconsistent with
the arrangement. The Secretary shall resolve any disagreement between
State agencies concerning the operation of the arrangement, with the
advice of the duly designated representatives of the State agencies.
Sec. 616.6 Definitions.
These definitions apply for the purpose of this arrangement and the
procedures issued to effectuate it.
(a) State. ``State'' includes the States of the United States of
America, the District of Columbia, the Commonwealth of Puerto Rico, and
the Virgin Islands.
(b) State agency. The agency which administers the unemployment
compensation law of a State.
(c) Combined-Wage Claim. A claim filed under this arrangement.
(d) Combined-Wage Claimant. A claimant who has covered wages under
the unemployment compensation law of more than one State and who has
filed a claim under this arrangement.
(e) Paying State. A single State against which the claimant files a
Combined-Wage Claim, if the claimant has wages and employment in that
State's base period(s) and the claimant qualifies for unemployment
benefits under the unemployment compensation law of that State using
combined wages and employment.
(f) Transferring State. A State in which a Combined-Wage Claimant
had covered employment and wages in the base period of a paying State,
and which transfers such employment and wages to the paying State for
its use in
[[Page 105]]
determining the benefit rights of such claimant under its law.
(g) Employment and wages. ``Employment'' refers to all services
which are covered under the unemployment compensation law of a State,
whether expressed in terms of weeks of work or otherwise. ``Wages''
refers to all remuneration for such employment.
(h) Secretary. The Secretary of Labor of the United States.
(i) Base period and benefit year. The base period and benefit year
applicable under the unemployment compensation law of the paying State.
[36 FR 24992, Dec. 28, 1971, as amended at 39 FR 45215, Dec. 31, 1974;
43 FR 2625, Jan. 17, 1978; 71 FR 35514, June 21, 2006; 73 FR 63072, Oct.
23, 2008]
Sec. 616.7 Election to file a Combined-Wage Claim.
(a) Any unemployed individual who has had employment covered under
the unemployment compensation law of two or more States, whether or not
the individual is monetarily qualified under one or more of them, may
elect to file a Combined-Wage Claim. The individual may not so elect,
however, if the individual has established a benefit year under any
State or Federal unemployment compensation law and:
(1) The benefit year has not ended, and
(2) The individual still has unused benefit rights based on such
benefit year. \1\
---------------------------------------------------------------------------
\1\ The Federal-State Extended Unemployment Compensation Act of
1970, title II, Public Law 91-373, section 202(a)(1), limits the payment
of extended benefits with respect to any week to individuals who have no
rights to regular compensation with respect to such week under any State
unemployment compensation law or to compensation under any other Federal
law and in certain other instances. This provision precludes any
individual from receiving any Federal-State extended benefits with
respect to any week for which the individual is eligible to receive
regular benefits based on a Combined Wage Claim. (See section 5752, part
V of the Employment Security Manual.)
---------------------------------------------------------------------------
(b) For the purposes of this arrangement, a claimant will not be
considered to have unused benefit rights based on a benefit year which
the claimant has established under a State or Federal unemployment
compensation law if:
(1) The claimant has exhausted his/her rights to all benefits based
on such benefit year; or
(2) The claimant's rights to such benefits have been postponed for
an indefinite period or for the entire period in which benefits would
otherwise be payable; or
(3) Benefits are affected by the application of a seasonal
restriction.
(c) If an individual elects to file a Combined-Wage Claim, all
employment and wages in all States in which the individual worked during
the base period of the paying State must be included in such combining,
except employment and wages which are not transferrable under the
provisions of Sec. 616.9(b).
(d) A Combined-Wage Claimant may withdraw his/her Combined-Wage
Claim within the period prescribed by the law of the paying State for
filing an appeal, protest, or request for redetermination (as the case
may be) from the monetary determination of the Combined-Wage Claim,
provided the claimant either:
(1) Repays in full any benefits paid to him thereunder, or
(2) Authorizes the State(s) against which the claimant files a
substitute claim(s) for benefits to withhold and forward to the paying
State a sum sufficient to repay such benefits.
(e) If the Combined-Wage Claimant files his/her claim in a State
other than the paying State, the claimant shall do so pursuant to the
Interstate Benefit Payment Plan.
(f) If a State denies a Combined-Wage Claim, it must inform the
claimant of the option to file in another State in which the claimant
has wages and employment during that State's base period(s).
[36 FR 24992, Dec. 28, 1971, as amended at 71 FR 35514, 35515, June 21,
2006; 73 FR 63072, Oct. 23, 2008]
Sec. 616.8 Responsibilities of the paying State.
(a) Transfer of employment and wages--payment of benefits. The
paying State shall request the transfer of a Combined-Wage Claimant's
employment and wages in all States during its base period, and shall
determine the claimant's entitlement to benefits (including additional
benefits, extended benefits
[[Page 106]]
and dependents' allowances when applicable) under the provisions of its
law based on employment and wages in the paying State, and all such
employment and wages transferred to it hereunder. The paying State shall
apply all the provisions of its law to each determination made
hereunder, except that the paying State may not determine an issue which
has previously been adjudicated by a transferring State. Such exception
shall not apply, however, if the transferring State's determination of
the issue resulted in making the Combined-Wage Claim possible under
Sec. 616.7(b)(2). If the paying State fails to establish a benefit year
for the Combined-Wage Claimant, or if the claimant withdraws his/her
claim as provided herein, it shall return to each transferring State all
employment and wages thus unused.
(b) Notices of determination. The paying State shall give to the
claimant a notice of each of its determinations on his/her Combined-Wage
Claim that he/she is required to receive under the Secretary's Claim
Determinations Standard and the contents of such notice shall meet such
Standard. When the claimant is filing his/her Combined-Wage Claims in a
State other than the paying State, the paying State shall send a copy of
each such notice to the local office in which the claimant filed such
claims.
(c) Redeterminations. (1) Redeterminations may be made by the paying
State in accordance with its law based on additional or corrected
information received from any source, including a transferring State,
except that such information shall not be used as a basis for changing
the paying State if benefits have been paid under the Combined-Wage
Claim.
(2) When a determination is made, as provided in paragraph (a) of
this section, which suspends the use of wages earned in employment with
an educational institution during a prescribed period between successive
academic years or terms or other periods as prescribed in the law of the
paying State in accordance with section 3304(a)(6)(A)(i)-(iv) of the
Internal Revenue Code of 1986, the paying State shall furnish each
transferring State involved in the combined-Wage Claim an adjusted
determination used to recompute each State's proportionate share of any
charges that may accumulate for benefits paid during the period of
suspended use of school wages. Wages which are suspended shall be
retained by the paying State for possible future reinstatement to the
Combined-Wage Claim and shall not be returned to the transferring State.
(d) Appeals. (1) Except as provided in paragraph (d)(3) of this
section, where the claimant files his/her Combined-Wage Claim in the
paying State, any protest, request for redetermination or appeal shall
be in accordance with the law of such State.
(2) Where the claimant files his/her Combined-Wage Claim in a State
other than the paying State, or under the circumstances described in
paragraph (d)(3) of this section, any protest, request for
redetermination or appeal shall be in accordance with the Interstate
Benefit Payment Plan.
(3) To the extent that any protest, request for redetermination or
appeal involves a dispute as to the coverage of the employing unit or
services in a transferring State, or otherwise involves the amount of
employment and wages subject to transfer, the protest, request for
redetermination or appeal shall be decided by the transferring State in
accordance with its law.
(e) Recovery of prior overpayments. If there is an overpayment
outstanding in a transferring State and such transferring State so
requests, the overpayment shall be deducted from any benefits the paying
State would otherwise pay to the claimant on his/her Combined-Wage Claim
except to the extent prohibited by the law of the paying State. The
paying State shall transmit the amount deducted to the transferring
State or credit the deduction against the transferring State's required
reimbursement under this arrangement. This paragraph shall apply to
overpayments only if the transferring State certifies to the paying
State that the determination of overpayment was made within 3 years
before the Combined-Wage Claim was filed and that repayment by the
claimant is legally required and enforceable against him/her under the
law of the transferring State.
[[Page 107]]
(f) Statement of benefit charges. (1) At the close of each calendar
quarter, the paying State shall send each transferring State a statement
of benefits charged during such quarter to such State as to each
Combined-Wage Claimant.
(2) Except as provided in paragraphs (c)(2), (f)(3), and (f)(5) of
this section, each such charge shall bear the same ratio to the total
benefits paid to the Combined-Wage Claimant by the paying State as the
claimant's wages transferred by the transferring State bear to the total
wages used in such determination. Each such ratio shall be computed as a
percentage, to three or more decimal places.
(3) Charges to the transferring State shall not include the costs of
any benefits paid which are funded or reimbursed from the Federal
Unemployment Benefits and Allowances account in the U.S. Department of
Labor appropriation, including:
(i) Benefits paid pursuant to 5 U.S.C. 8501-8525; and
(ii) Benefits which are reimbursable under part B of title II of the
Emergency Jobs and Unemployment Assistance Act of 1974 (Pub. L. 93-567).
(4) Except as provided in paragraphs (f)(3) and (f)(5) of this
section, all transferring States will be charged by the paying State for
Extended Benefits in the same manner as for regular benefits.
(5) The United States shall be charged directly by the paying State,
in the same manner as is provided in paragraphs (f)(1) and (f)(2) of
this section, in regard to Federal civilian service and wages and
Federal military service and wages assigned or transferred to the paying
State and included in Combined-Wage Claims in accordance with this part
and parts 609 and 614 of this chapter.
(26 U.S.C. 3304(a)(9)(B); Secretary's Order No. 4-75, (40 FR 18515))
[36 FR 24992, Dec. 28, 1971, as amended at 43 FR 2625, Jan. 17, 1978; 45
FR 47109, July 11, 1980; 71 FR 35515, June 21, 2006; 73 FR 63072, Oct.
23, 2008]
Sec. 616.9 Responsibilities of transferring States.
(a) Transfer of employment and wages. Each transferring State shall
promptly transfer to the Paying State the employment and wages the
Combined-Wage Claimant had in covered employment during the base period
of the paying State. Any employment and wages so transferred shall be
transferred without restriction as to their use for determination and
benefit payments under the provisions of the paying State's law.
(b) Employment and wages not transferable. Employment and wages
transferred to the paying State by a transferring State shall not
include:
(1) Any employment and wages which have been transferred to any
other paying State and not returned unused, or which have been used in
the transferring State as the basis of a monetary determination which
established a benefit year.
(2) Any employment and wages which have been canceled or are
otherwise unavailable to the claimant as a result of a determination by
the transferring State made prior to its receipt of the request for
transfer, if such determination has become final or is in the process of
appeal but is still pending. If the appeal is finally decided in favor
of the Combined-Wage Claimant, any employment and wages involved in the
appeal shall forthwith be transferred to the paying State and any
necessary redetermination shall be made by such paying State.
(c) Reimbursement of paying State. Each transferring State shall, as
soon as practicable after receipt of a quarterly statement of charges
described herein, reimburse the paying State accordingly.
(26 U.S.C. 3304(a)(9)(B); Secretary's Order No. 4-75, (40 FR 18515))
[36 FR 24992, Dec. 28, 1971, as amended at 45 FR 47109, July 11, 1980]
Sec. 616.10 Reuse of employment and wages.
Employment and wages which have been used under this arrangement for
a determination of benefits which establishes a benefit year shall not
thereafter be used by any State as the basis for another monetary
determination of benefits.
[[Page 108]]
Sec. 616.11 Amendment of arrangement.
Periodically the Secretary shall review the operation of this
arrangement, and shall propose such amendments to the arrangement as the
Secretary believes are necessary or appropriate. Any State unemployment
compensation agency or NASWA may propose amendments to the arrangement.
Any proposal shall constitute an amendment to the arrangement upon
approval by the Secretary in consultation with the State unemployment
compensation agencies. Any such amendment shall specify when the change
shall take effect, and to which claims it shall apply.
[36 FR 24992, Dec. 28, 1971, as amended at 71 FR 35515, June 21, 2006]
PART 617 [RESERVED]
PART 618_TRADE ADJUSTMENT ASSISTANCE UNDER THE TRADE ACT OF 1974,
AS AMENDED--Table of Contents
Subpart A_General
Sec.
618.100 Purpose and scope.
618.110 Definitions.
618.120 Severability.
Subpart B_Petitions, Investigations, and Determinations
618.200 Scope.
618.205 Petitions.
618.210 Investigation.
618.215 Public hearings.
618.220 Use of subpoena.
618.225 Criteria for certification of a group of workers.
618.230 Evidence.
618.235 Determinations.
618.240 Termination of certification.
618.245 Reconsideration of termination of an investigation, denial, or
termination or partial termination of certification.
618.250 Amendments of certifications.
618.255 Judicial review of determinations.
618.260 Study regarding certain affirmative determinations by the
Commission.
618.265 Availability of information to the public.
Subpart C_Employment and Case Management Services
618.300 Scope.
618.305 The Trade Adjustment Assistance Program as a one-stop partner.
618.310 Responsibilities for the delivery of employment and case
management services.
618.325 Integrated service strategies and Workforce Innovation and
Opportunity Act co-enrollment.
618.330 Assessment of trade-affected workers.
618.335 Initial assessment of trade-affected workers.
618.345 Comprehensive and specialized assessment of trade-affected
workers.
618.350 Individual employment plans for trade-affected workers.
618.355 Knowledge, skills, and abilities of staff performing
assessments.
618.360 Employment and case management services for trade-affected
workers in training.
Subpart D_Job Search and Relocation Allowances
618.400 Scope.
618.405 General.
618.410 Applying for a job search allowance.
618.415 Eligibility for a job search allowance.
618.420 Findings required for a job search allowance.
618.425 Amount of a job search allowance.
618.430 Determination and payment of a job search allowance.
618.435 Job search program participation.
618.440 Applying for a relocation allowance.
618.445 Eligibility for a relocation allowance.
618.450 Findings required for a relocation allowance.
618.455 Determining the amount of a relocation allowance.
618.460 Determinations and payment of a relocation allowance.
Subpart E_Reemployment Trade Adjustment Assistance
618.500 Scope.
618.505 Individual eligibility.
618.510 Eligibility period for payments of Reemployment Trade Adjustment
Assistance and application deadline.
618.515 Continuing eligibility and timing of payments.
618.520 Benefits available to eligible adversely affected workers.
618.525 Determinations, redeterminations, and appeals.
618.530 Reductions of Reemployment Trade Adjustment Assistance payments;
priority of payments.
Subpart F_Training Services
618.600 Scope.
618.605 General procedures.
618.610 Criteria for approval of training.
[[Page 109]]
618.615 Limitations on training approval.
618.620 Selection of training program.
618.625 Payment restrictions for training programs.
618.630 Training of reemployed trade-affected workers.
618.635 Work-based training.
618.640 Supplemental assistance.
618.645 Voluntary withdrawal from a training program.
618.650 State standards and procedures for establishing reasonable cost
of training.
618.655 Training for adversely affected incumbent workers.
618.660 Training benchmarks.
618.665 Amending approved training.
Subpart G_Trade Readjustment Allowances
618.700 Scope.
618.705 Definitions.
618.710 Categories of Trade Readjustment Allowances.
618.715 Applications for Trade Readjustment Allowances and payment.
618.720 Qualifying requirements for Basic Trade Readjustment Allowances.
618.725 Training enrollment deadlines.
618.730 Good cause.
618.735 Waiver of training requirement for Basic Trade Readjustment
Allowances.
618.740 Evidence of qualification for Basic, Additional, and Completion
Trade Readjustment Allowances.
618.745 Weekly amounts of Basic, Additional, and Completion Trade
Readjustment Allowances.
618.750 Maximum amount of Basic Trade Readjustment Allowances.
618.755 Eligibility period for Basic Trade Readjustment Allowances.
618.760 Qualifying requirements for, and timing and duration of,
Additional Trade Readjustment Allowances.
618.765 Qualifying requirements for, and timing and duration of,
Completion Trade Readjustment Allowances.
618.770 Special rule for justifiable cause.
618.775 Payment of Trade Readjustment Allowances during breaks in
training.
618.780 Disqualifications.
Subpart H_Administration by Applicable State Agencies
618.800 Scope.
618.804 Agreements with the Secretary of Labor.
618.808 State rulemaking.
618.812 Subpoenas.
618.816 Trade Adjustment Assistance Program benefit information and
provision of services to workers.
618.820 Determinations of eligibility; notices to individuals.
618.824 Liable State and agent State responsibilities.
618.828 Appeals and hearings.
618.832 Overpayments; penalties for fraud.
618.836 Recovery of debts due the United States or to others by Trade
Adjustment Assistance offset.
618.840 Uniform interpretation and application of this part.
618.844 Inviolate rights to Trade Adjustment Assistance or Reemployment
Trade Adjustment Assistance.
618.848 Veterans' priority of service.
618.852 Recordkeeping and disclosure of information requirements.
618.856 Information, reports, and studies.
618.860 General fiscal and administrative requirements and cost
classification.
618.864 Trade Adjustment Assistance Program performance.
618.868 Unemployment Insurance.
618.872 Travel under the Trade Adjustment Assistance Program.
618.876 Verification of eligibility for program benefits.
618.884 Special rule with respect to military service.
618.888 Equitable tolling.
618.890 Staffing flexibility.
618.894 Nondiscrimination and equal opportunity requirements.
618.898 Applicable State law.
Subpart I_Allocation of Funds to States for Training and Other
Activities
618.900 Annual cap on funds available for Training and Other Activities.
618.910 Initial allocation of funds.
618.920 Reserve fund distributions.
618.930 Second distribution.
618.940 Insufficient funds.
618.950 Recapture and reallocation of Training and Other Activities
funds.
Appendix A to Part 617--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
Appendix B to Part 617--Standard for Claim Determinations--Separation
Information
Appendix C to Part 617--Standard for Fraud and Overpayment Detection
Authority: 19 U.S.C. 2320; Secretary's Order No. 6-2010, 75 FR 66267
(Oct. 27, 2010).
Source: 85 FR 51972, Aug. 21, 2020, unless otherwise noted.
Subpart A General
Sec. 618.100 Purpose and scope.
(a) Purpose. The Act establishes a Trade Adjustment Assistance for
Workers (TAA) Program. The goal of
[[Page 110]]
the TAA Program is to help each worker participating in the program
obtain suitable employment whenever possible, and to return to
employment as quickly as possible.
(b) Scope. Global trade impacts thousands of workers each year
across the United States. The TAA Program provides trade-affected
workers with opportunities to obtain the skills, credentials, resources,
and support necessary to become reemployed in a good job. The TAA
Program's benefits and services include: employment and case management
services, training, out-of-area job search and relocation allowances,
income support through Trade Readjustment Allowances (TRA), the
Reemployment Trade Adjustment Assistance (RTAA) benefit for workers aged
50 or older who find qualifying reemployment, and, if available, the
Health Coverage Tax Credit (HCTC). Together with its workforce
development partners in the one-stop delivery system authorized under
the Workforce Innovation and Opportunity Act (WIOA), the TAA Program
helps retrain, retool, and rebuild the American workforce. This part 618
applies for all workers determined eligible to apply for TAA except for
those covered under certain provisions of the Trade Adjustment
Assistance Reform Act of 2002 and the Trade and Globalization Adjustment
Assistance Act of 2009, for which administrative guidance will continue
to apply.
(c) Effect. The regulations in this part are issued to implement the
Act.
Sec. 618.110 Definitions.
The following definitions apply solely in this part.
Act means chapter 2 of title II of the Trade Act of 1974, Public Law
93-618, 88 Stat. 1978 (19 U.S.C. 2271-2323 and 2395), as amended.
Administrator means the Administrator, Office of Trade Adjustment
Assistance, Employment and Training Administration, U.S. Department of
Labor, Washington, DC, who has responsibility for administering the TAA
Program, or his or her designee.
Adversely affected employment means employment in a firm or
appropriate subdivision, if workers of the firm or appropriate
subdivision are certified as eligible to apply for the TAA Program under
subpart B of this part.
Adversely affected worker or AAW (also referred to, in combination
with an AAIW, as a trade-affected worker) means an individual, including
an employer, who, because of lack of work in adversely affected
employment, has been totally or partially separated from such
employment.
Adversely affected incumbent worker or AAIW (also referred to, in
combination with an AAW, as a trade-affected worker) means a worker who:
(1) Is a member of a worker group certified as eligible to apply for
the TAA Program under subpart B of this part;
(2) Has not been totally or partially separated from adversely
affected employment; and
(3) The Department determines, on an individual basis, is threatened
with total or partial separation.
Agent State means a State, other than a liable State, that provides
benefits or services to a trade-affected worker. A State can be both an
agent State and a liable State.
Applicable State law means, for any worker, the State law of the
State:
(1) In which such worker is entitled to Unemployment Insurance (UI)
(whether or not such worker has filed a UI claim) immediately following
such worker's first separation; or
(2) If the worker is not so entitled to UI under the State law of
any State immediately following such first separation, or is entitled to
UI under the Railroad Unemployment Insurance Act (RRUI), the State law
of the State in which such first separation occurred.
Appropriate subdivision means an establishment, facility or
facilities, an organizational department, a product line, a project
team, an operational unit, or part or combination thereof. The
appropriate subdivision is determined on a case-by-case basis and
includes all workers or a subset of workers working at, or reporting to,
the location(s) identified in the petition, or subsequently identified
during the course of the investigation, whose employment is dependent
upon the production of the specific article or supply of the specific
service identified in the
[[Page 111]]
petition, or identified during the course of the investigation.
Appropriate week means the week in which the AAW's first separation
occurred.
Approved training or TAA approved training means a training program
approved under subpart F of this part (Sec. 618.610).
Article means a tangible good or an intangible good sold or produced
by a firm. The good must be the subject of the sale or production, and
not an object that is produced incidentally to the sale or production.
An article can be measured in individual production units or commercial
production units, such as with commodities. Sale of an article is the
means by which revenue is generated, accumulated, or calculated.
Average weekly hours means the average hours worked by an AAW
(excluding overtime) in the employment from which the worker has been or
claims to have been separated in the 52 consecutive calendar weeks
(excluding weeks during which the worker was sick or on vacation)
immediately preceding the worker's total separation or, for a partially
separated worker, the week before the appropriate week. The average is
obtained by dividing:
(1) Total hours worked (excluding overtime) in the 52 consecutive
calendar weeks (excluding weeks in such period during which the worker
was sick or on vacation); by
(2) The number of weeks in such 52 consecutive calendar weeks
(excluding weeks in such period during which the worker was sick or on
vacation).
Average weekly wage means one-thirteenth of the total wages paid to
an AAW in the high quarter. For purposes of this computation, the high
quarter is the quarter in which the worker's total wages were highest
among the first 4 of the last 5 completed calendar quarters immediately
preceding the week in which total separation occurred or, in cases where
partial separation is claimed, the appropriate week.
Benefit period means, with respect to an AAW:
(1) The benefit year and any ensuing period, as determined under the
applicable State law, during which the worker is eligible for regular
compensation, additional compensation, or extended compensation; or
(2) The equivalent to such a benefit year or ensuing period provided
for under Federal UI law.
Certification or affirmative determination or petition certification
means a determination issued under Sec. 618.235(a), or an amendment
under Sec. 618.250, of eligibility to apply for the TAA Program, with
respect to a specified worker group of a firm or appropriate
subdivision. Excluded from this definition are ``certifications'' in
sections 223(d), 236(a)(5)(H), 239(a)(3), and 247(19) of the Act, and
``affirmative determinations'' in sections 222(e) and 224 of the Act.
Certification date or date of certification means the date on which
the Certifying Officer signs the certification. This is the date that
the certification takes effect.
Certification period means the period of time during which total,
partial, or threat of separations from adversely affected employment
within a firm or appropriate subdivision of a firm are covered by a
certification for worker groups eligible to apply for assistance under
section 222(a) and (b) of the Act. It also means the period of time
during which total or partial separations from adversely affected
employment within a firm are covered by a certification for worker
groups eligible to apply for assistance under section 222(e) of the Act.
The certification period begins on the impact date and, unless stated
otherwise in the certification, ends 2 years after the certification
date. A certification may expire sooner than 2 years after the
certification date as a result of a termination under Sec. 618.240, an
amendment under Sec. 618.250, or if a certification is based on a
determination issued by the International Trade Commission (ITC) under
section 222(e) of the Act.
Certifying Officer means an official, including the Administrator of
the Office of Trade Adjustment Assistance, Employment and Training
Administration, Department of Labor, who has been delegated
responsibility to make determinations and issue certifications of
eligibility to apply for the TAA Program, and to perform such further
duties as may be required.
[[Page 112]]
Co-enrollment means enrollment in the TAA Program and at least one
other program that operates as part of the one-stop delivery system,
such as the dislocated worker program under title I of WIOA.
Commission or International Trade Commission or ITC means the U.S.
International Trade Commission.
Commuting area means the area in which a trade-affected worker would
be expected to travel to and from work on a daily basis as determined
under the applicable State law.
Completion of training or complete training or completed training
means that the trade-affected worker has finished all required
coursework (including required externships or internships), testing, and
professional licensing exams related to TAA approved training.
Component part means an input (tangible or intangible article) that
is directly incorporated into the production of another article,
although it need not retain its original form or characteristics.
Confidential business information means trade secrets and commercial
or financial information received by the Department, or by the States on
the Department's behalf, during an investigation under subpart B of this
part, which the Department considers to be privileged or confidential as
set forth in the Trade Secrets Act (18 U.S.C. 1905), 5 U.S.C. 552(b)(4),
or 29 CFR part 70. It does not include publicly available business
information, or business information with respect to which the firm or
customer submitting the information had notice, at the time of
submitting the information, that the information would be released by
the Department or the States, or if the firm or customer subsequently
consents to the release of the information.
Contributed importantly means a cause that is important but not
necessarily more important than any other cause.
Cooperating State agency or CSA means the agency at the State level
that will act as agent of the Department in receiving applications from
and providing benefits and services to trade-affected workers in
coordination with the State agency that administers the UI law, if
applicable, and such other agency or agencies of the State as the
Governor of the State may designate to cooperate with such CSA for
performance accountability reporting and other purposes.
Customized training means work-based training that is:
(1) Designed to meet the special requirements of a single employer
or group of employers;
(2) Conducted with a commitment by the employer or group of
employers to employ a trade-affected worker upon successful completion
of the training; and
(3) For which the employer pays for a significant portion (but in no
case less than 50 percent) of the cost of such training.
Denial or negative determination or petition denial means a
determination issued under Sec. 618.235(b) that a group of workers is
not eligible for TAA Program benefits.
Department of Labor or Department means the U.S. Department of
Labor.
Downstream producer means a firm that performs additional, value-
added production processes or services, such as final assembly,
finishing, testing, packaging, or maintenance or transportation
services. The value-added production processes or services must be
performed directly for another firm that has a worker group certified to
apply for the TAA Program under Sec. 618.225, and the production
processes or services must be carried out with respect to the article or
service on which the certification under Sec. 618.225 was based.
Eligible RTAA recipient means, for HCTC purposes (see definition of
HCTC), an AAW eligible for RTAA and who is participating in RTAA for a
month and is receiving an RTAA benefit for that month.
Eligible TAA recipient means, for HCTC purposes (see definition of
HCTC), an AAW who receives TRA for any day of the month or who would be
eligible to receive TRA but for the fact that the worker has not
exhausted his or her UI entitlement.
Employer means any individual or type of organization, including the
[[Page 113]]
Federal Government, a State government, a political subdivision, or an
instrumentality of one or more governmental entities, with one or more
individuals performing service in employment for it within the United
States.
Employment means any service performed for an employer by an officer
of a corporation or by an individual for wages.
Enrolled in training means that a worker's application for training
is approved by the State under subpart F of this part, and the training
provider has furnished written notice to the State that the worker has
been accepted in the approved training program, which is to begin within
30 calendar days of the date of such approval.
Exhaustion of UI means exhaustion of all rights to UI in a benefit
period by reason of:
(1) Having received all UI to which a worker was entitled under the
applicable State law or Federal unemployment compensation law with
respect to such benefit period; or
(2) The expiration of such benefit period.
Family means the following members of an adversely affected worker's
household whose principal place of abode is with the individual in a
home the individual maintains or would maintain but for unemployment:
(1) Spouse;
(2) Domestic partner;
(3) Children of the adversely affected worker, of the worker's
spouse, or of the worker's domestic partner, who are unmarried and under
21 years of age or who, regardless of age, are physically or mentally
incapable of self-support. (The term ``children'' shall include natural
offspring; stepchildren; adopted children; grandchildren, legal minor
wards or other dependent children who are under legal guardianship of
the worker, of the worker's spouse, or of the domestic partner; and an
unborn child(ren) born and moved after the worker's effective date of
transfer.);
(4) Dependent parents (including step and legally adoptive parents)
of the worker, of the worker's spouse, or of the worker's domestic
partner; and
(5) Dependent brothers and sisters (including step and legally
adoptive brothers and sisters) of the worker, of the worker's spouse, or
of the worker's domestic partner, who are unmarried and under 21 years
of age or who, regardless of age, are physically or mentally incapable
of self-support.
Filing date means the date on which the petition and attachments to
the petition form are determined to be valid by the Department's Office
of Trade Adjustment Assistance, in accordance with Sec. 618.205.
Firm means an individual proprietorship, partnership, joint venture,
association, corporation (including a development corporation), business
trust, cooperative, trustee in bankruptcy, or receiver under decree of
any court. A firm, together with any predecessor or successor-in-
interest, or together with any affiliated firm controlled or
substantially beneficially owned by substantially the same persons may
be considered a single firm. Where the term ``firm'' appears in this
part, it means ``firm or appropriate subdivision.'' Firm also means an
agricultural firm or service sector firm or an appropriate subdivision
thereof. For purposes of subpart B of this part only, firm does not
include a public agency or any subdivision of a public agency, as
defined in 29 U.S.C. 203(x).
First benefit period means the benefit period established after the
AAW's first qualifying separation or in which such separation occurs.
Full-time training means:
(1) Attendance in training in accordance with the training
provider's established full-time hours in a day (or credit hours) and
days in a week; and
(2) In the last semester of training, if the remaining course(s) to
complete the training approved under subpart F of this part do not meet
the training provider's usual definition of full-time, States must
consider the participation in training as full-time training, if no
additional training or coursework will be required to complete the
training program.
Group of workers means at least two workers employed or formerly
employed by the same firm, or an appropriate subdivision thereof,
including teleworkers and staffed workers, who file a petition for
certification under subpart B of this part, or for whom a petition is
filed.
[[Page 114]]
Health Coverage Tax Credit or HCTC means the tax credit equal to a
specific percentage of the costs of qualified health insurance premiums,
which is administered by the Internal Revenue Service under section 35
of the Internal Revenue Code of 1986, as amended (26 U.S.C. 35). When
the tax credit is available, eligible TAA and RTAA recipients (see
definitions of eligible TAA recipient and eligible RTAA recipient) and
qualifying family members may apply for advance payment of the credit or
claim the credit on their income tax return.
Impact date means the date stated in a certification of eligibility
to apply for the TAA Program, on which the total or partial separations
of the workers covered by the certification began or threatened to
begin, but in most cases, is not more than 1 year before the petition
date.
Increased imports means that imports have increased either
absolutely or relative to domestic production compared to a
representative base period. The representative base period will be 1
year consisting of the 4 quarters immediately preceding the date that is
12 months prior to the date of the petition.
Individual employment plan or IEP means a revisable document
containing an ongoing strategy, jointly developed by the trade-affected
worker and the State, identifying the worker's employment goals,
appropriate achievement objectives, and appropriate services for the
worker to achieve his or her employment goals, objectives, and
benchmarks while in training or receiving employment and case management
services.
Job finding club means a job search workshop that includes a period
of 1 to 2 weeks of structured, supervised activity in which trade-
affected workers attempt to obtain jobs.
Job search program or JSP means a job search workshop or job finding
club.
Job search workshop means a short (1 to 3 days) seminar designed to
provide workers with knowledge that will enable the workers to find
jobs. Subjects are not limited to, but should include, labor market
information, resume writing, interviewing techniques, and techniques for
finding job openings.
Lack of work means that the employer does not have work for the
worker to perform or does not make that work available to the worker,
and includes, but is not limited to, circumstances when:
(1) Work is unavailable because the employer suspends or ceases
operations or institutes a lockout; or
(2) Work is unavailable because the employer downsizes the workforce
by means of attrition or layoff.
Layoff means a suspension of or separation from employment by a firm
for lack of work, initiated by the employer, and expected to be for a
definite or indefinite period of time.
Liable State means, with respect to a trade-affected worker making
claims for TAA Program benefits, the State whose State UI law is the
applicable State law. A State can be both an agent State and a liable
State.
Like or directly competitive means, for articles, that articles have
characteristics that are substantially identical in inherent or
intrinsic characteristics (i.e., material from which the articles are
made, appearance, quality) or are used for substantially equivalent
purposes and achieve comparable results and are, therefore, commercially
interchangeable; and for services, services that have characteristics
that are substantially identical in inherent or intrinsic
characteristics (i.e., processes and procedures that comprise the
activity, sequence of steps or component elements required in the
provision of the service or both) or are used for substantially
equivalent purposes and achieve comparable results and are, therefore,
commercially interchangeable.
Office of Trade Adjustment Assistance or OTAA means the organization
within the U.S. Department of Labor, Employment and Training
Administration that administers the TAA Program, or OTAA's successor
organization.
One-stop delivery system means the nationwide system of one-stop
career centers, known as American Job Centers, which administer and
deliver workforce development, educational, and training activities, as
well as supportive services to workers and job seekers, in accordance
with title I of WIOA.
[[Page 115]]
On-the-job training or OJT means work-based training, provided--
under contract with an employer in the public, nonprofit, or private
sector--to an AAW who is employed by the employer.
Partial separation or partially separated means, with respect to an
AAW who has not been totally separated, that:
(1) For purposes of subpart B of this part:
(i) The worker's hours of work have been reduced to 80 percent or
less of the worker's average weekly hours at the firm, or appropriate
subdivision thereof during the period of investigation; and
(ii) The worker's wages have been reduced to 80 percent or less of
the worker's average weekly wage at the firm, or appropriate subdivision
thereof during the period of investigation.
(2) For this subpart and subparts C through I of this part:
(i) The worker's hours of work have been reduced to 80 percent or
less of the worker's average weekly hours in adversely affected
employment during the certification period; and
(ii) The worker's wages have been reduced to 80 percent or less of
the worker's average weekly wage in adversely affected employment during
the certification period.
Period of duty means active duty served by an AAW before completing
training under subpart F of this part for a period of more than 30 days
under a call or order to active duty of more than 30 days or, in the
case of a member of the Army National Guard of the United States or Air
National Guard of the United States, full-time National Guard duty under
32 U.S.C. 502(f), 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.
Petition date means the date a petition form is signed by the
petitioner(s). When petitioners sign on different dates, the petition
date is the latest of those dates.
Prerequisite education or prerequisite coursework or prerequisite
training means any coursework or training required by a training
provider before entering an occupational training program designed to
impart the skills and information required to perform a specific job or
group of jobs.
Program of remedial education or remedial education or remedial
training means coursework or training that is designed to enhance the
employability of a trade-affected worker by upgrading basic academic
knowledge through such courses as adult basic education (ABE), basic
math and literacy, English language acquisition (ELA) for nonnative
speakers, and high school equivalency (HSE) courses, among others.
Qualifying separation means any total or partial separation of an
AAW from adversely affected employment within the certification period
for the purposes of determining the AAW's eligibility to receive Basic
TRA; 26-week period for enrollment in approved training; and Basic TRA
eligibility period. The first qualifying separation is used to determine
the weekly and maximum amounts of Basic TRA payable to an AAW.
Reemployment Trade Adjustment Assistance or RTAA means the TAA
Program benefit available to certain AAWs 50 years of age and older who
obtain qualifying reemployment.
Regional Administrator means the appropriate Regional Administrator
of the U.S. Department of Labor's Employment and Training
Administration.
Secretary means the Secretary of Labor, U.S. Department of Labor, or
his or her designee.
Separation date means:
(1) For a total separation:
(i) For a worker in employment status and not on employer-authorized
leave, the last day worked; or
(ii) For a worker on employer-authorized leave, including leave for
military service, the last day the worker would have worked had the
worker not been on the employer-authorized leave.
(2) For a partial separation, the last day of the week in which the
partial separation occurred.
Service means the work performed by a worker for a service firm or
appropriate subdivision. The work of a service firm is measured in units
of time, labor, and tasks completed. Services
[[Page 116]]
may include the incidental production of an article, such as a license,
ticket, certificate, permit, model, drawing, or prototype. Services are
intangible but may involve the use of tangible objects during the supply
of the service (such as textbooks in the supply of educational
services). Where the revenue of the firm, or appropriate subdivision, is
generated from the sale of a service, the firm, or appropriate
subdivision, is deemed to be engaged in activity related to the supply
of a service.
Significant number or proportion of the workers means:
(1) The lesser of 50 workers or 5 percent of the workers within a
firm, or appropriate subdivision, have been totally or partially
separated, or both, or are threatened with total or partial separation;
or
(2) 2 or more workers within a firm, or appropriate subdivision,
with a workforce of fewer than 50 workers, have been totally or
partially separated, or both, or are threatened with total or partial
separation.
Staffed worker means a worker directly employed by one firm to
perform work under the operational control of another firm that is the
subject of a petition investigation. These workers were previously
referred to as ``leased workers.'' The term excludes independent
contractors.
State means the States of the United States, the District of
Columbia, and the Commonwealth of Puerto Rico; and the term ``United
States,'' when used in the geographical sense, includes the Commonwealth
of Puerto Rico.
State agency means the agency at the State level that administers
the State law.
State law means the UI law of a State under section 3304 of the
Internal Revenue Code of 1986, as amended (26 U.S.C. 3304).
Successor-in-interest means a firm, whether or not named on a
certification issued under subpart B of this part, from which trade-
affected workers are separated, or threatened with separation, and where
most or all of the factors in paragraphs (1) through (7) of this
definition are present, relative to a firm named on a determination
issued under subpart B:
(1) There is continuity in business operations.
(2) There is continuity in location.
(3) There is continuity in the workforce.
(4) There is continuity in supervisory personnel.
(5) The same jobs exist under similar conditions.
(6) There is continuity in machinery, equipment, and process.
(7) There is continuity in product/service.
Suitable employment means, with respect to a worker, work of a
substantially equal or higher skill level than the worker's past
adversely affected employment, and wages for such work that are not less
than 80 percent of the worker's average weekly wage. Part-time,
temporary, short-term, or threatened employment is not suitable
employment.
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 Sec. 618.225 of a
worker group employed by such other firm. There is no direct supply
where an intervening customer, supplier, or another entity receives the
component parts, aside from in a delivery or bailment capacity, or in
the case of a service supplier, if an intervening entity performs the
service.
Supportive services means services such as local transportation,
childcare, dependent care, and housing, provided through WIOA or other
programs, that are needed to enable an individual to participate in
activities authorized under the Act.
Threatened to become totally or partially separated means that there
is evidence of intent to separate workers or that imminent separations
are reasonably anticipated.
Threatened to begin means, in the context of reasonably anticipated
total or partial separations, the date(s) on which imminent separations
will begin.
Total separation or totally separated means:
(1) For purposes of subpart B of this part, the layoff or severance
of an AAW
[[Page 117]]
from a firm or appropriate subdivision thereof; or
(2) For all other purposes under this part, the layoff or severance
of a worker from adversely affected employment with a firm, or
appropriate subdivision thereof.
Trade Adjustment Assistance for Workers or Trade Adjustment
Assistance or TAA Program means chapter 2 of title II of the Act, Public
Law 93-618, 88 Stat. 1978 (19 U.S.C. 2271-2323 and 2395), as amended,
which establishes the Trade Adjustment Assistance for Workers (TAA)
Program. The benefits and services established under the Act, including
RTAA, are collectively referred to as the Trade Adjustment Assistance
Program (TAA Program) and provide assistance to workers adversely
affected by foreign trade, as described in this part.
Trade-affected worker means both ``adversely affected workers'' and
``adversely affected incumbent workers.''
Trade Readjustment Allowances or TRA means a weekly allowance
payable to an AAW who meets the requirements of subpart G of this part.
There are three types of TRA: Basic, Additional, and Completion, as
described in Sec. 618.710.
Unemployment Insurance or UI means the unemployment compensation
payable to a worker under any State law or Federal UI law, including
chapter 85 of title 5 of the U.S. Code and the RRUI. UI includes:
(1) Regular compensation means compensation payable to a worker
under any State unemployment compensation law (including compensation
payable pursuant to 5 U.S.C. chapter 85), other than extended
compensation and additional compensation.
(2) Additional compensation means compensation payable to exhaustees
by reason of conditions of high unemployment or by reason of other
special factors.
(3) Extended compensation means compensation (including additional
compensation and compensation payable pursuant to 5 U.S.C. chapter 85)
payable for weeks of unemployment beginning in an extended benefit
period to a worker under those provisions of the State law that satisfy
the requirements of the Federal-State Extended Unemployment Compensation
Act of 1970 (EUCA) (26 U.S.C. 3304 (note)) with respect to the payment
of extended compensation, including one-hundred percent federally funded
unemployment compensation extensions.
Value-added production processes or services means such processes or
services similar to and including final assembly, finishing, testing,
packaging, or maintenance or transportation services.
Wages means:
(1) Remuneration as defined by State law; or
(2) For purposes of calculating a reemployment wage when determining
the availability of suitable employment, the stated salary and--to the
extent known--the value of any compensation package that would be
defined as remuneration under State law, as provided by an employer in a
job posting or job offer.
Wagner-Peyser Act means the Wagner-Peyser Act, as amended (29 U.S.C.
49 et seq.).
Week means a week as defined in the applicable State law.
Week of unemployment means a week of total, part-total, or partial
unemployment as determined under the applicable State law or Federal UI
law.
Worker group means two or more workers of the same firm, or
appropriate subdivision thereof, named in a certification rendered under
subpart B of this part as eligible to apply for TAA Program benefits and
services, inclusive of teleworkers and staffed workers.
Workforce Innovation and Opportunity Act or WIOA means the Workforce
Innovation and Opportunity Act (Pub. L. 113-128, as amended).
Sec. 618.120 Severability.
Should a court of competent jurisdiction hold any provision(s) of
this subpart to be invalid, such action will not affect any other
provision of this subpart.
Subpart B_Petitions, Investigations, and Determinations
Sec. 618.200 Scope.
This subpart relates to petitions, investigations, and
determinations of eligibility for a group of workers to apply
[[Page 118]]
for adjustment assistance under the Act. This subpart specifically
applies to the initiation, conduct, and effective processing of
petitions for certification of eligibility to apply for adjustment
assistance. This subpart also contains general provisions with respect
to filing of documents, public availability of documents, and the
appeals process.
Sec. 618.205 Petitions.
(a) Who may file a petition. A petition for certification of
eligibility to apply for adjustment assistance for a group of workers,
or a request to amend an existing certification under Sec. 618.250,
must be filed simultaneously with the Department and with the State in
which such workers' firm is located, by any of the following:
(1) A group of two or more workers from the same firm, on whose
behalf the petition is filed;
(2) A certified or recognized union, or other duly authorized
representative of the group of workers;
(3) The employer(s) of the group of workers; or
(4) One-stop center operators or one-stop partners, including State
workforce officials, employment security agencies, or dislocated worker
unit and rapid response team members.
(b) Form and contents. Petitioners may obtain a petition form and
instructions online at: https://www.dol.gov/agencies/eta/tradeact, at a
one-stop center (also known as an American Job Center), or by writing
to: U.S. Department of Labor, Employment and Training Administration,
Office of Trade Adjustment Assistance, 200 Constitution Avenue NW,
Washington, DC 20210. A petition, which may include attachments, must
provide the following information to be considered valid and for an
investigation to commence:
(1) The name and contact information for each petitioner;
(2) The name of the firm;
(3) The address of the location(s) where the group of workers who
have been totally or partially separated or threatened with separation
report to work (for a teleworker, the address of the location to which
they report);
(4) The name and contact information of an official within the firm
or an individual authorized to provide information regarding the
operation of the group of workers' firm;
(5) The article produced or service supplied by the firm;
(6) The actual or approximate date on which total or partial
separations are threatened to occur or did occur;
(7) The actual or estimated total number of workers who have been or
may be separated;
(8) A reason why the petitioner believes that worker separations
have occurred or may occur at the firm due to foreign trade impacts, or
a reason why a request to amend an existing and active certification
should be granted; and
(9)(i) Every petition must be signed and dated by at least two
members of the petitioning group of workers, or by an official of a
certified or recognized union or other duly authorized representative of
the group of workers, or by an official of the employer of the group of
workers, or by a representative of one of the organizations listed in
paragraph (a)(4) of this section.
(ii) Signing of a petition must constitute acknowledgement that the
information provided on the petition form will be used for the purposes
of determining worker group eligibility and providing notice to
petitioners, workers, and the general public that the petition has been
filed, and whether the worker group is eligible to apply for TAA Program
benefits and services. Knowingly falsifying any information on the
petition form is a Federal offense (18 U.S.C. 1001) and a violation of
the Act (19 U.S.C. 2316). For the petition to be valid, the
petitioner(s) listed on the form must sign and date the form, attesting
to the fact that they are authorized to file a petition.
(c) Supplemental information. Providing supplemental information,
while not required, may assist the investigation. Attachments to the
petition form are part of the petition.
(d) Filing. (1) Petitions should be filed electronically with the
Office of Trade Adjustment Assistance, via https://www.dol.gov/agencies/
eta/tradeact. Individuals requiring assistance in filing online should
contact their nearest one-stop center or the State's rapid response
unit.
[[Page 119]]
(2) Alternatively, petitions may be filed via email to
[email protected], via fax at (202) 693-3584 or (202) 693-3585, or by
mail to: U.S. Department of Labor, Employment and Training
Administration, Office of Trade Adjustment Assistance, 200 Constitution
Avenue NW, Washington, DC 20210.
(e) Industry notification of ITC determinations. Upon receiving
notification from the ITC that it has issued an affirmative
determination of injury or threat of injury under section 202 or 421 of
the Act, under an applicable safeguard provision enacted to implement a
trade agreement to which the United States is a party, or an affirmative
final determination of material injury of threat thereof in
investigation under section 705 or 735 of the Tariff Act of 1930, the
Department will notify the affected parties listed in paragraph (e)(1)
of this section. To the extent practicable, the Department may also
notify other duly authorized representatives of the industry to which
the ITC determination applies.
(1) Parties the Department will notify under paragraph (e) of this
section include:
(i) Representatives of the domestic industry affected by the
determination;
(ii) Firms publicly identified by name during the proceeding related
to the ITC determination; and
(iii) Unions representing workers in firms covered by the
determination.
(2) The notice provided by the Department under paragraph (e) of
this section will include:
(i) A summary of the ITC determination;
(ii) Information about the workers' potential eligibility for TAA
Program benefits;
(iii) The benefits and services available under the TAA Program;
(iv) Information regarding the process for filing of petitions; and
(v) The availability of assistance from the State for filing
petitions.
(3) The Department will also notify the Governor of each State in
which one or more firms covered by an ITC determination are located and
will identify those firms to the State.
(f) Acceptance of petitions. The Department will review a petition,
including attachments, to determine if it is valid within 2 business
days of receipt of the petition by the Department. The date on which the
petition is determined to be valid under paragraph (b) of this section
is the filing date. The Department will not initiate the investigation
until it has determined that the petition is valid.
(g) Multiple petitions for same group of workers. If the Department
receives multiple petitions regarding the same group of workers, it will
base the filing date upon the first petition received.
(h) Publication of notice in the Federal Register. The Department
will publish a notice in the Federal Register and on the Department's
website announcing the initiation of an investigation into all valid
petitions filed.
(i) Public access to petitions. A petition, including attachments,
is a record that is available, in redacted form, in accordance with the
Freedom of Information Act (FOIA), as amended (5 U.S.C. 552), Executive
Order 12600, and 29 CFR part 70. The Department will post all petitions,
in redacted form, to the Department's website and make them available
for review at the Office of Trade Adjustment Assistance, Washington, DC.
(j) Receipt of petition by the State. When the State receives a
petition, the State must verify that the Department has also received
the petition. If the petition has not been posted to the Department's
website within 10 calendar days of receipt by the State, the State must
forward the petition to the Department.
Sec. 618.210 Investigation.
(a) Timing. The Department will initiate an investigation once it
has deemed the petition valid in accordance with Sec. 618.205(f).
(b) Period of investigation. For purposes of this subpart, the
period of investigation is the time period it takes to investigate each
of the criteria that are part of the Department's determination. The
period of investigation varies for some eligibility criteria; Sec.
618.225 describes the period of investigation for each criterion.
(c) Investigative process. To determine whether the petitioning
group of workers' eligibility criteria for certification have been met,
the Department may
[[Page 120]]
take as many of the steps in paragraphs (c)(1) through (8) of this
section during the investigation as it deems necessary to identify the
group of workers and to reach a determination of eligibility to apply
for TAA Program benefits for the identified worker group:
(1) Verify information on the petition form by contacting the
petitioner(s);
(2) Provide the petitioner(s) the opportunity to submit additional
evidence in support of the petition;
(3) Obtain publicly available information about the workers' firm
and industry;
(4) Request information from the workers' firm;
(5) Request information from the customers of the workers' firm;
(6) Request information from the officials of certified or
recognized unions or other duly authorized representatives of the group
of workers;
(7) Request information from one-stop center operators or one-stop
partners; or
(8) Use other available sources of information as necessary.
(d) Protection of confidential business information. (1) The
Department will determine whether information submitted by a firm or
customer is confidential business information in accordance with FOIA,
as amended (5 U.S.C. 552), Executive Order 12600, the Trade Secrets Act
(18 U.S.C. 1905), and 29 CFR part 70.
(2) The Department will not disclose confidential business
information without the consent of the submitting firm or customer,
unless under a court order to do so or as otherwise required by law.
(e) Termination of investigation. (1) The Department will notify the
petitioner of the termination of an investigation, publish a Notice of
Termination of Investigation in the Federal Register, and post on the
Department's website. The Department may terminate an investigation if
the investigation establishes one of the following:
(i) The petition is invalid, which includes petitions identifying a
nonexistent group of workers, filed under false pretenses, or
perpetuating fraud;
(ii) The petitioner has withdrawn the petition in writing;
(iii) The group of workers identified in the investigation is the
same as a group of workers identified in another pending investigation;
(iv) The group of workers identified in the investigation already
has been issued a denial, and the period of investigation applicable to
the current investigation and the previous denial is the same; or
(v) The group of workers identified in the investigation is already
covered by a certification that does not expire within 90 calendar days
of the determination.
(2) If appropriate to protect the interests of the group of workers
covered by a petition filed and terminated under paragraph (e)(1)(i) or
(ii) of this section, the Department may use the original impact date of
the terminated petition for the identical group of workers covered under
a later, valid, petition covering the identical group of workers,
provided that it is filed within 30 calendar days of the filing date of
the first petition. Under no circumstances will the Department use the
impact date of an earlier petition when that petition was terminated for
being invalid under paragraph (e)(1)(i) of this section because it was
filed under false pretenses or to perpetuate a fraud.
(3) Section 618.245 describes reconsideration of a termination of
investigation.
(f) Investigative record. The investigative record of a
determination will include the petition that initiated the
investigation, the documents and other materials provided to the
Department in connection with the determination on the petition,
research conducted by the Department, and records of investigation
activities (including but not limited to telephone logs and email
correspondence, and any determination under Sec. 618.225(a), (b), or
(c)). The investigative record excludes information that is privileged
or otherwise exempt from disclosure. Personally identifiable information
and confidential business information will be protected consistent with
all Federal authorities and Departmental administrative guidance.
[[Page 121]]
(g) Site visits. The investigation may include one or more site
visits to confirm information furnished by the petitioner(s) and to
elicit other relevant information, where other methods to obtain or
confirm information or both, are unsuccessful.
Sec. 618.215 Public hearings.
(a) When held. (1) A public hearing must be held in connection with
an investigation initiated under Sec. 618.210 whenever, but not later
than 10 days after the date of publication in the Federal Register of
the notice of receipt of the petition, such a hearing is requested in
writing by:
(i) The petitioner; or
(ii) Any other person found by the Administrator to have a
substantial interest in the proceedings.
(2) Such petitioner and other interested persons must be afforded an
opportunity to be present, to produce evidence, and to be heard.
(3) An explanation of why the requestor is requesting the hearing
must be provided to the Department.
(b) Form of request. A request for public hearing must be filed, in
letter format, in the same manner as provided for other documents under
Sec. 618.205(d)(2). The request must contain:
(1) The name, address, and telephone number of the person,
organization, or group requesting the hearing;
(2) A complete statement of the relationship of the person,
organization, or group requesting the hearing to the petitioner or the
petition's subject matter; and
(3) An explanation of why the person, organization, or requestor of
the hearing is interested in the matter.
(c) Time, place, and scope. The time, place, and scope of a public
hearing will be set by the presiding officers and published in the
Federal Register a reasonable period of time before the scheduled
hearing.
(d) Presiding officer. The Administrator, or his or her designee,
must conduct and preside over public hearings.
(e) Order of testimony. Witnesses will testify in the order
designated by the presiding officer. Each witness, after being duly
sworn, will proceed with testimony. After testifying, the presiding
officer or an agent designated by the presiding officer may question the
witness. Any person who has entered an appearance in accordance with
paragraph (k) of this section may direct questions to the witness, but
only for the purpose of assisting the presiding officer in obtaining
relevant and material facts with respect to the subject matter of the
hearing.
(f) Evidence. Witnesses may produce evidence of a relevant and
material nature to the subject matter of the hearing.
(g) Briefs. Parties who have entered an appearance may file briefs
regarding the evidence produced at the hearing. The briefs must be filed
with the presiding officer within 10 days of the completion of the
hearing.
(h) Oral argument. The presiding officer must provide opportunity
for oral argument by parties listed in paragraphs (a)(1)(i) and (ii) of
this section after conclusion of the testimony in a hearing. The
presiding officer will determine in each instance the time to be allowed
for argument and the allocation thereof.
(i) Authentication of evidence. Evidence, oral or written, submitted
at hearings, will, upon order of the presiding officer, be subject to
verification from books, papers, and records of the parties submitting
such evidence and from any other available sources.
(j) Transcripts. All hearings will be transcribed or recorded in
compliance with the standards of the Department. Persons interested in
records of the hearings may inspect them at the U.S. Department of Labor
in Washington, DC.
(k) Appearances. Any person showing a substantial interest in the
proceedings may enter an appearance at a hearing, either in person or by
a duly authorized representative.
Sec. 618.220 Use of subpoena.
(a) The Administrator may require, by subpoena, in connection with
any investigation or hearing, the attendance and testimony of witnesses
and the production of evidence the issuing official deems necessary to
make a determination under this subpart.
[[Page 122]]
(b) The Department will issue a subpoena to secure evidence from a
firm, customer, petitioner, or other person who fails to provide
requested information within 20 days of the request, unless the
recipient of the subpoena demonstrates to the satisfaction of the
Department that the information will be provided within a reasonable
time. In making this determination, the Department will consider the
following factors:
(1) Submission of a portion of the required information;
(2) Prompt cooperation with inquiries about the information;
(3) Cooperation in previous responses to information requests;
(4) Evidence of effort to obtain the required information; and
(5) Other information the Department determines to be relevant.
(c) Witnesses subpoenaed under this section to appear in person must
be paid the same fees and mileage as are paid for like services in the
District Court of the United States within the jurisdiction of which the
proceeding is taking place. The Department must pay the witness fees and
mileage.
(d) Subpoenas issued under paragraph (a) of this section must be
signed by the Administrator, or his or her designee, and must be served
consistent with Rule 5(b) of the Federal Rules of Civil Procedure. The
date for compliance must be 7 calendar days following service of the
subpoena, unless otherwise indicated.
(e) If the recipient of the subpoena refuses to provide the
requested information, the Department may petition the appropriate
District Court of the United States to seek enforcement of the subpoena.
Sec. 618.225 Criteria for certification of a group of workers.
(a) Increased imports. (1) This paragraph (a) includes criteria for
certification of a group of workers based upon increased imports of:
(i) Articles like or directly competitive with the articles produced
by the workers' firm;
(ii) Services like or directly competitive with the services
supplied by the workers' firm;
(iii) Articles like or directly competitive with articles into which
one or more component parts produced by the workers' firm are directly
incorporated;
(iv) Articles like or directly competitive with articles that are
produced directly using services supplied by the workers' firm; or
(v) 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 the workers' firm.
(2) After review of the relevant information necessary to make a
determination, the Certifying Officer must certify a worker group as
eligible to apply for TAA Program benefits and services as impacted by
increased imports if all four of the criteria in paragraphs (a)(2)(i)
through (iv) of this section are met.
(i) Criterion 1. A significant number or proportion of the workers'
firm, or appropriate subdivision thereof, have been totally or partially
separated, or threatened with such separation, during the 1-year period
prior to the petition date.
(A) Information regarding separations may be obtained from:
(1) A questionnaire;
(2) State workforce agencies;
(3) Unions;
(4) Workers in the group of workers;
(5) Public records; and
(6) Other reliable sources.
(B) Analysis of separation data must generally consist of a:
(1) Comparison of employment on the petition date to employment on
the date that is 1 year prior to the petition date;
(2) Review of employment activity during the 1-year period prior to
the petition date; and
(3) Review of evidence provided by the workers' firm regarding
actual and threatened separations that occur, or are scheduled to occur,
after the petition date.
(C) Evidence of threat of separation includes, but is not limited
to:
[[Page 123]]
(1) A Worker Adjustment and Retraining Notice (WARN) letter, or a
notification issued under a similar State law;
(2) A separation schedule;
(3) Information provided to the public, such as a news release or
notice on the workers' firm website;
(4) Information provided to the worker group; or
(5) Internal firm documents, including memoranda or a firm
newsletter.
(ii) Criterion 2. Sales or production, or both, of the workers' firm
has decreased during the 1-year period prior to the petition date.
(A) Information regarding sales or production may be collected from:
(1) Questionnaires;
(2) Public records; and
(3) Other reliable sources.
(B) Analysis of sales or production data must generally consist of a
comparison of sales or production data on the petition date to sales or
production data on the date that is 1 year prior to the petition date.
(iii) Criterion 3. Imports of the article or service have increased
during the 1-year period prior to the petition date.
(A) Information regarding imports may be collected from:
(1) Questionnaires issued to the workers' firm or customer(s);
(2) Public records; and
(3) Other reliable sources.
(B) Analysis of the workers' firm import activity must generally
consist of a comparison of the workers' firm import data on the petition
date to the workers' firm import data on the date that is 1 year prior
to the petition date.
(C) Analysis of customer import activity must generally consist of a
comparison of the aggregate of customer import data on the petition date
to the aggregate of customer import data on the date that is 1 year
prior to the petition date.
(iv) Criterion 4. Increased imports have contributed importantly to
worker separations, or threat of separation, and the decline in sales or
production at the workers' firm.
(A) Analysis of the impact of increased imports on worker
separations and declines in sales or production at the workers' firm
must generally consist of determining:
(1) Whether there are one or more events, or factors, that lessen or
sever the causal nexus between the increase in imports and worker
separations or threat of separation, and the decline in sales and
production at the workers' firm;
(2) What percentage of the workers' firm sales or production
declines was attributable to the firm's increased imports;
(3) What percentage of the workers' firm customer(s) sales or
production declines was attributable to the firm's increased imports;
and
(4) Whether there are other events or factors that mitigate or
amplify the impact of increased imports on the workers' firm.
(B) The impact may be determined using a quantitative or qualitative
analysis.
(b) Shift. (1) This paragraph (b) includes criteria for
certification of a worker group based on a shift:
(i) In production of like or directly competitive articles by the
workers' firm to another country; or
(ii) In the supply of like or directly competitive services by the
workers' firm to another country.
(2) After a review of relevant information necessary to make a
determination, the Certifying Officer must certify a group of workers as
eligible to apply for TAA Program benefits and services as impacted by a
shift in production or supply of service if all of the criteria in
paragraphs (b)(2)(i) through (iii) of this section of are met.
(i) Criterion 1. A significant number or proportion of the workers'
firm, or appropriate subdivision thereof, have been totally or partially
separated, or threatened with separation, during the 1-year period prior
to the petition date.
(A) Information regarding separations may be obtained from:
(1) A questionnaire;
(2) State workforce agencies;
(3) Unions;
(4) Workers in the group of workers;
(5) Public records; and
(6) Other reliable sources.
(B) Analysis of separation data must generally consist of a:
[[Page 124]]
(1) Comparison of employment on the petition date to employment on
the date that is 1 year prior to the petition date;
(2) Review of employment activity during the 1-year period prior to
the petition date; and
(3) Review of evidence provided by the workers' firm regarding
actual and threatened separations that occur, or are scheduled to occur,
after the petition date.
(C) Evidence of threat of separation includes, but is not limited
to:
(1) A WARN letter, or a notification issued under a similar State
law;
(2) A separation schedule;
(3) Information provided to the public, such as a news release or
notice on the workers' firm website;
(4) Information provided to the worker group; or
(5) Internal firm documents, including memoranda or a firm
newsletter.
(ii) Criterion 2. There has been a shift in the production or supply
of services by the workers' firm to a foreign country.
(A) Information regarding shift activity may be collected from:
(1) A questionnaire;
(2) Public records; and
(3) Other reliable sources.
(B) Analysis of shift activity must generally consist of a:
(1) Comparison of shift data on the petition date to shift data on
the date that is 1 year prior to the petition date;
(2) Review of shift activity during the 1-year period prior to the
petition date; and
(3) Review of evidence provided by the workers' firm regarding shift
activity scheduled to occur after the petition date.
(C) Evidence of future planned shift activity must include more than
a stated intent to shift activity to a foreign country and includes, but
is not limited to, a reassignment of production or service supply; a
reassignment of discrete aspects or stages of production or service
supply; securing a facility in a foreign country; shipping resources to
a foreign country; or acquiring personnel in a foreign country.
(iii) Criterion 3. The shift to a foreign country has contributed
importantly to worker separations or threat of separation.
(A) Analysis of impact of shift activity on worker separations must
generally consist of determining:
(1) Whether there are one or more events or factors that sever or
lessen the causal nexus between the shift activity and worker
separations or threat of separation;
(2) What percentage of the workers' firm sales or production
declines was attributable to the firm's shift activity;
(3) Whether operations at the workers' firm domestic facility or
facilities decreased at the same or at a greater rate than operations at
the foreign facility or facilities; and
(4) Whether there are other events or factors that mitigate or
amplify the impact of shift activity on the workers' firm.
(B) The impact may be determined using a quantitative or qualitative
analysis.
(c) Foreign acquisition. This paragraph (c) includes criteria for
certification of a worker group based on a foreign acquisition of like
or directly competitive articles by the workers' firm from another
country. After review of relevant information necessary to make a
determination, the Certifying Officer must certify a group of workers as
eligible to apply for TAA Program benefits and services as impacted by a
foreign acquisition of articles or services if all of the criteria in
paragraphs (c)(1) through (3) of this section are met.
(1) Criterion 1. A significant number or proportion of the workers'
firm, or appropriate subdivision thereof, have been totally or partially
separated, or threatened with separation, during the 1-year period prior
to the petition date.
(i) Information regarding separations may be obtained from:
(A) A questionnaire;
(B) State workforce agencies;
(C) Unions;
(D) Workers in the group of workers;
(E) Public records; and
(F) Other reliable sources.
(ii) Analysis of separation data must generally consist of a:
(A) Comparison of employment on the petition date to employment on
the
[[Page 125]]
date that is 1 year prior to the petition date;
(B) Review of employment activity during the 1-year period prior to
the petition date; and
(C) Review of evidence provided by the workers' firm regarding
actual and threatened separations that occur, or are scheduled to occur,
after the petition date.
(iii) Evidence of threat of separation includes, but is not limited
to:
(A) A WARN letter, or a notification issued under a similar State
law;
(B) A separation schedule;
(C) Information provided to the public, such as a news release or
notice on the workers' firm website;
(D) Information provided to the worker group; or
(E) Internal firm documents, including memoranda or a firm
newsletter.
(2) Criterion 2. There has been an acquisition of articles or supply
of services by the workers' firm from an entity in a foreign country.
(i) Information regarding separations may be obtained from:
(A) A questionnaire;
(B) State workforce agencies;
(C) Unions;
(D) Workers in the group of workers;
(E) Public records; and
(F) Other reliable sources.
(ii) Analysis of acquisition data must generally consist of a:
(A) Comparison of acquisition data on the petition date to
acquisition data on the date that is 1 year prior to the petition date;
(B) Review of acquisition data during the 1-year period prior to the
petition date; and
(C) Review of evidence provided by the workers' firm regarding
acquisition activity scheduled to occur after the petition date.
(iii) Evidence of future planned acquisitions requires more than a
stated intent to procure production of an article or supply of services
from an entity in a foreign country and may include, but is not limited
to, entering into a contract with a licensee; reassignment of production
or service supply to a contractor or licensee; and a reassignment of
discrete aspects or stages of production or service supply to a
contractor or licensee.
(3) Criterion 3. The acquisition from a foreign country has
contributed importantly to worker separations or threat of separation.
(i) Analysis of impact of acquisition data on worker separations
must generally consist of determining:
(A) Whether there are one or more events or factors that lessen or
sever the causal nexus between the acquisition activity and worker
separations or threat of separation;
(B) What percentage of the workers' firm sales or production
declines was attributable to the firm's acquisition activity;
(C) Whether operations at the workers' firm domestic facility or
facilities decreased at the same or at a greater rate than contractor or
licensee operations in the foreign country; and
(D) Whether there are other events or factors that mitigate or
amplify the impact of acquisition activity on the workers' firm.
(ii) The impact may be determined using a quantitative or
qualitative analysis.
(d) Supplier of component parts or services. This paragraph (d)
contains criteria for certification of a worker group as a supplier to a
worker group. After review of relevant information necessary to make a
determination, the Certifying Officer must certify a worker group as
eligible to apply for TAA Program benefits and services as a supplier to
a worker group if all of the criteria in paragraphs (d)(1) through (5)
of this section are met.
(1) Criterion 1. A significant number or proportion of the workers'
firm, or appropriate subdivision thereof, have been totally or partially
separated, or threatened with separation, during the 1-year period prior
to the petition date.
(i) Information regarding separations may be obtained from:
(A) A questionnaire;
(B) State workforce agencies;
(C) Unions;
(D) Workers in the group of workers;
(E) Public records; and
(F) Other reliable sources.
(ii) Analysis of separation data must generally consist of a:
(A) Comparison of employment on the petition date to employment on
the
[[Page 126]]
date that is 1 year prior to the petition date;
(B) Review of employment activity during the 1-year period prior to
the petition date; and
(C) Review of evidence provided by the workers' firm regarding
actual and threatened separations that occur, or are scheduled to occur,
after the petition date.
(iii) Evidence of threat of separation includes, but is not limited
to:
(A) A WARN letter, or a notification issued under a similar State
law;
(B) A separation schedule;
(C) Information provided to the public, such as a news release or
notice on the workers' firm website;
(D) Information provided to the worker group; or
(E) Internal firm documents, including memoranda or a firm
newsletter.
(2) Criterion 2. The certification of the worker group employed by
the firm to which the workers' firm supplied component parts or services
has not expired by the petition date.
(3) Criterion 3. The workers' firm conducted business with the firm
identified in paragraph (d)(2) of this section during the 1-year period
prior to the petition date.
(4) Criterion 4. The certification identified in paragraph (d)(2) of
this section was based on an article or service related to the component
part produced or service supplied by the workers' firm.
(5) Criterion 5. The component parts supplied to the firm identified
in paragraph (d)(2) of this section, represented at least 20 percent of
the supplier's production or sales during the 1-year period prior to the
petition date, or loss of business with the firm identified in paragraph
(d)(2) of this section, during the 1-year period prior to the petition
date, contributed importantly to separations or threat of separation at
the workers' firm.
(e) Downstream producer. After review of relevant information
necessary to make a determination, the Certifying Officer must certify a
worker group as eligible to apply for TAA Program benefits and services
as a downstream producer if all of the criteria in paragraphs (e)(1)
through (5) of this section are met.
(1) Criterion 1. A significant number or proportion of the workers'
firm, or appropriate subdivision thereof, have been totally or partially
separated, or threatened with separation, during the 1-year period prior
to the petition date.
(i) Information regarding separations may be obtained from a
questionnaire, State workforce agencies, unions, workers in the group of
workers, public records, and other reliable sources.
(ii) Analysis of separation data must generally consist of a:
(A) Comparison of employment on the petition date to employment on
the date that is 1 year prior to the petition date;
(B) Review of employment activity during the 1-year period prior to
the petition date; and
(C) Review of evidence provided by the workers' firm regarding
actual and threatened separations that occur, or are scheduled to occur,
after the petition date.
(iii) Evidence of threat of separation includes, but is not limited
to:
(A) A WARN letter, or a notification issued under a similar State
law;
(B) A separation schedule;
(C) Information provided to the public, such as a news release or
notice on the workers' firm website;
(D) Information provided to the worker group; or
(E) Internal firm documents, including memoranda or a firm
newsletter.
(2) Criterion 2. The certification of the worker group employed by
the firm to which the workers' firm provided value-added production
processes or services has not expired by the petition date.
(3) Criterion 3. The workers' firm conducted business with the firm
identified in paragraph (e)(2) of this section during the 1-year period
prior to the petition date.
(4) Criterion 4. The certification identified in paragraph (e)(2) of
this section was based on an article or service related to the value-
added production processes or services supplied by the workers' firm.
(5) Criterion 5. Loss of business with the firm identified in
paragraph (e)(2) of this section during the 1-year period prior to the
petition date contributed
[[Page 127]]
importantly to separations or threat of separation at the workers' firm.
(f) ITC determinations. After review of relevant information
necessary to make a determination, the Certifying Officer must certify a
worker group as eligible to apply for TAA based on a determination
issued by the ITC if all of the criteria in paragraphs (f)(1) through
(3) of this section are met.
(1) Criterion 1. The ITC has publicly identified the workers' firm,
by name, as a member of a domestic industry in an investigation
resulting in:
(i) An affirmative determination of serious injury or threat thereof
under section 202(b)(1) of the Act (19 U.S.C. 2252(b)(1));
(ii) An affirmative determination of market disruption or threat
thereof under section 421(b)(1) of the Act (19 U.S.C. 2451(b)(1)); or
(iii) 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) Criterion 2. The petition is filed during the 1-year period
beginning on the date on which:
(i) A summary of the report submitted to the President by the ITC
under section 202(f)(1) of the Act with respect to the affirmative
determination described in paragraph (f)(1)(i) of this section is
published in the Federal Register under section 202(f)(3) of the Act; or
(ii) Notice of an affirmative determination described in paragraph
(f)(1)(ii) or (iii) of this section is published in the Federal
Register.
(3) Criterion 3. The workers have become totally or partially
separated from the workers' firm within:
(i) The 1-year period described in paragraph (f)(2) of this section;
or
(ii) The 1-year period preceding the 1-year period described in
paragraph (f)(2) of this section.
(g) Sales or production decline criteria. For paragraphs (a) through
(c) of this section, in assessing sales or production decline for the
period 1 year prior to the petition date, the Department will use a
comparison of the latest 2 full calendar year periods and will use a
comparison of the year to date period (from the year the petition was
filed) to the same year to date period from the prior year. This
paragraph (g) does not apply to determining whether a significant number
of workers have been separated or threatened with separation.
(h) Oil and gas. For workers employed by firms engaged in
exploration or drilling for crude oil and natural gas:
(1) Any firm, or appropriate subdivision of a firm, that engages in
exploration or drilling for oil or natural gas must be considered to be
a firm producing oil or natural gas;
(2) Any firm, or appropriate subdivision of a firm, that engages in
exploration or drilling for oil or natural gas, or otherwise produces
oil or natural gas, must be considered to be producing articles directly
competitive with imports of oil and with imports of natural gas; and
(3) The Department may conduct a parallel investigation to determine
whether the group of workers meets the criteria for certification of
worker groups under this section for the services provided by the group
of workers. The Department will render a determination after all
appropriate avenues are considered.
(i) Staffed workers. The Department considers staffed workers to be
members of a worker group even if they are not specifically mentioned
within the determination document issued under Sec. 618.235. The
Department will collect information from the workers' firm during the
investigation to establish which leasing or staffing entity or entities
the firm used under a contract. Once identified, an evaluation of
operational control will occur. If a certification is rendered, the
Department will notify States regarding the appropriate contact
information of the known leasing or staffing entity or entities in order
to expedite worker notification of their eligibility to apply
individually for TAA Program benefits and services. Factors to be
considered in evaluating operational control include:
(1) Whether the contract workers perform only tasks that are
independent, discrete projects for the workers' firm (as opposed to
performing tasks that are part of the regular business operations of the
firm);
[[Page 128]]
(2) Whether the workers' firm has the discretion to hire, fire, and
discipline the contract workers;
(3) Whether the workers' firm has the ability to terminate the
contract workers' employment with such firm through the staffing or
leasing contracted firm;
(4) Whether the workers' firm exercises the authority to supervise
the contract workers' daily work activities, including assigning and
managing work, and determining how, where, and when the work of contract
worker takes place (e.g., factors such as the hours of work, the
selection of work, and the manner in which the work is to be performed
by each contract worker are relevant);
(5) Whether the services of the contract workers are offered on the
open market;
(6) Whether the contract workers work exclusively for the workers'
firm;
(7) Whether the workers' firm is responsible for establishing wage
rates and the payment of salaries of the contract workers;
(8) Whether the workers' firm provides skills training to the
contract workers; and
(9) Whether there are other facts indicating that the workers' firm
exercises control over the contract workers.
(j) Teleworkers. The Department considers teleworkers (also known as
remote, or home-based workers) to be members of a worker group even if
they are not specifically mentioned within the determination document
issued under Sec. 618.235 when they would be a part of the worker group
if they worked on-site. Teleworkers do not have to be physically based
at the location of the subject firm or in the same city or same State of
the location that is identified on the determination document to be
members of the certified worker group.
(k) Successor-in-interest. The Department considers workers employed
by a firm that is a successor-in-interest to be members of a worker
group even if they are not mentioned specifically within the
determination document issued under Sec. 618.235.
Sec. 618.230 Evidence.
(a) The Department will verify information obtained during an
investigation before considering such information in support of a
petition.
(b) Evidence may be accepted from such sources including, but not
limited to, petitioners, company officials, current and former workers
of the firm, customers of the firm, trade associations, union
representatives, Federal agencies, and public sources such as State
agencies and academic institutions.
(c) The Department may share affidavits, testimonials, news
articles, and other types of information proffered in support of a
petition with appropriate parties for verification.
Sec. 618.235 Determinations.
Based on the findings of the investigation as set forth in Sec.
618.230, a Certifying Officer will make a determination on a petition as
provided under paragraph (a) or (b) of this section.
(a) Affirmative determination or certification. When the
investigation establishes that a group of workers meets the eligibility
criteria of Sec. 618.225, the Certifying Officer will issue a
certification of worker group eligibility to apply for TAA Program
benefits and services. The certification will include the name of the
firm or appropriate subdivision thereof at which the trade-affected
workers covered by the certification have been employed (which need not
be limited to the unit specified in the petition), and may identify the
worker group by name, as described in Sec. 618.225(i) and (j), the
certification period, and the certification date.
(1) A certification covers any worker in the worker group eligible
to apply for assistance under sec. 222(a) and (b) of the Act, whose last
total or partial separation, or threat of a separation, from a firm or
appropriate subdivision took place within the certification period,
which is the period:
(i) Following the impact date, which is the date 1 year before the
petition date; and
(ii) On or before the day the certification expires, which is 2
years after the certification date, or an earlier date on which the
Certifying Officer
[[Page 129]]
determines that separations from adversely affected employment may no
longer be attributed to the conditions underlying the certification, as
described in Sec. 618.240, or the date identified in an amendment
described in Sec. 618.250.
(2) A certification covers any worker in the worker group eligible
to apply for TAA Program benefits and services under section 222(e)
whose last total or partial separation from a firm took place within the
certification period, which is the period:
(i) Following the impact date, which is the date 1 year before the
ITC publication in the Federal Register; and
(ii) On or before the day the certification expires, which is the
date 1 year from the ITC publication in the Federal Register.
(3) A trade-affected worker who is a member of the worker group
covered by the certification may apply to the State for benefits and
services under subparts C through G of this part.
(b) Negative determination or denial. When the investigation
establishes that the group of workers does not meet the criteria for
eligibility, as described in Sec. 618.225, the Certifying Officer will
issue a denial. The denial will include the name of the firm or
appropriate subdivision thereof at which the workers covered by the
denial have been employed (which need not be limited to the unit
specified in the petition), and may identify the worker group by name,
as described in Sec. 618.225(i) and (j).
(c) Determination. The Certifying Officer issues a determination
identifying the article(s) produced or service(s) provided and
describing the worker group covered by the certification or denial and
stating the reasons for the determination (excluding information
designated as confidential business information). The Department will
provide a copy of the determination to the petitioner(s) and to the
State(s) covered by the determination. The Department will publish in
the Federal Register, and on the Department's website, a summary of the
determination issued under paragraph (a) or (b) of this section, along
with a general statement of the reasons for the determination (except
for confidential business information).
(d) Amended determination. The Department may amend a certification
for any of the purposes described in Sec. 618.250(a), in response to a
petition filed under Sec. 618.205, or without an outside request for an
amendment. An amended determination will not take effect until the
previous determination becomes final, either after the period in which
to request reconsideration has lapsed or after the Department makes a
determination on reconsideration. Amended certifications are discussed
in more detail in Sec. 618.250.
(e) Administrative action. The Department may, with or without an
outside request, reconsider actions taken under Sec. 618.210(e),
618.235(b), 618.240, 618.245, or 618.250.
Sec. 618.240 Termination of certification.
(a) Initiation. Whenever the Administrator of the Office of Trade
Adjustment Assistance has reason to believe, with respect to any
nonexpired certification, that the total or partial separations or
threat of separation from a firm, or appropriate subdivision thereof,
are no longer attributable to the conditions specified in section 222 of
the Act and Sec. 618.225, the Administrator must promptly conduct an
investigation.
(b) Notice. A notice of the initiation of an investigation to
terminate a certification must be published in the Federal Register, and
on the Department's website, and provided to the petitioner(s) of the
certification under investigation, the firm official(s), and State(s)
that contain the location(s) of the workers comprising the worker group
covered by the certification. The State(s) must also promptly notify the
workers in the worker group.
(c) Opportunity for comment. Within 10 calendar days after
publication of the notice under paragraph (b) of this section, members
of the worker group or any other person who has a substantial interest
in the matter may provide evidence in writing supporting the
continuation of eligibility of certification to show why the
certification should not be terminated. If a hearing is requested, it
will be conducted in accordance with Sec. 618.215. If no evidence is
[[Page 130]]
provided by any interested party within 10 days from the date of
publication to the Federal Register or on the Department's website,
whichever is later, a determination must be issued once the
investigation is complete. Evidence (except at a timely requested
hearing) and hearing requests submitted outside the 10-day period will
not be accepted.
(d) Investigation of termination of a certification. The Department
will conduct a review of the record on which the certification was
based, any evidence timely filed under paragraph (c) of this section,
and any data submitted with the petition or provided subsequent to the
filing of the petition.
(e) Determination to terminate or partially terminate a
certification. A determination to terminate a certification may cover
the entire worker group specified in the certification or a portion of
that group. Such termination or partial termination must apply only with
respect to total or partial separations occurring after the termination
date specified in the determination notice and must only take effect
after the determination becomes final, either after the period in which
to request reconsideration has lapsed or after a determination on
reconsideration is made.
(1) Upon making a determination that the certification should be
terminated for all or part of the worker group specified in the
certification, the Department will issue a determination, which will
contain the reasons for making such determination, and notify the
petitioner(s) of the original certification, the firm official(s), and
the State(s). The Department will also publish the notice in the Federal
Register, and on the Department's website. The State will notify the
worker group of the termination or partial termination.
(2) The termination date specified in the determination notice must
not be earlier than the date of publication in the Federal Register.
(f) Determination of continuation of certification. After an
investigation resulting in a decision that the certification should not
be terminated, the Department will notify the petitioner(s) of the
original certification, firm official(s), and the State(s). The State(s)
will notify the worker group of the determination of continuation of
certification. The Department will publish the determination in the
Federal Register and on the Department's website. After receiving notice
by the Department, the State(s) must notify the worker group of the
continuation of certification.
(g) Reconsideration of termination or partial termination of a
certification. Any party that is eligible under Sec. 618.205 to submit
a petition may file an application for reconsideration with the
Department, following the procedures described in Sec. 618.245.
Sec. 618.245 Reconsideration of termination of an investigation, denial,
or termination or partial termination of certification.
(a) Application for reconsideration; contents. (1) Any party who is
eligible to file a petition under Sec. 618.205, and any worker in the
group of workers, may file a written application seeking reconsideration
of a termination of an investigation under Sec. 618.210(e); a negative
determination issued under Sec. 618.235(b); or a termination or partial
termination of certification issued under Sec. 618.240, via email:
[email protected]; fax: (202) 693-3584 or (202) 693-3585; or
mail: U.S. Department of Labor, Employment and Training Administration,
Office of Trade Adjustment Assistance, 200 Constitution Avenue NW,
Washington, DC 20210.
(2) An application for reconsideration must contain the following
information to be complete and valid:
(i) The name(s) and contact information of the applicant(s);
(ii) The name or a description of the group of workers on whose
behalf the application for reconsideration is filed in the case of an
application for reconsideration of a termination of an investigation or
a negative determination, or the name or a description of the worker
group on whose behalf the application for reconsideration of a
termination or partial termination of a certification is filed;
(iii) The petition number identified on the petition or
determination that is the subject of the application for
reconsideration;
[[Page 131]]
(iv) The reasons for believing that the termination of the
investigation, negative determination, or termination or partial
termination of a certification identified in paragraph (a)(1) of this
section is erroneous, including any issues that the applicant asserts
require further investigation;
(v) Any information that may support the application for
reconsideration, including material not considered prior to the
termination of the investigation, negative determination, or termination
or partial termination of a certification; and
(viii) The signature(s) of the party, or representative thereof,
requesting reconsideration.
(b) Time for filing. An application for reconsideration of the
termination of the investigation, negative determination, or termination
or partial termination of a certification must be filed no later than 30
calendar days after the notice of the termination of the investigation,
negative determination, or termination or partial termination of a
certification has been published in the Federal Register. If an
application is filed after that time, it will be returned as untimely
filed.
(c) Return of incomplete applications for reconsideration. The
Department will review an application for reconsideration within 2
business days upon its receipt to determine if the application contains
all of the necessary information required under paragraph (a)(2) of this
section. The Department will not accept an incomplete application for
filing, but will return it to the applicant with a brief statement
explaining why it is incomplete. Should an applicant wish to refile an
application for reconsideration, the refiling must occur no later than
30 calendar days after the notice of the determination has been
published in the Federal Register, within the 30-day period identified
in paragraph (b) of this section or, if the application is returned less
than 5 days before the end of that period, within 5 days of receipt.
(d) Notice of an application for reconsideration. After receipt of a
complete and timely application for reconsideration, the Department will
notify the applicant and publish in the Federal Register and on the
Department's website the notice of the application and the initiation of
an investigation on reconsideration of the termination of the
investigation, negative determination, or termination or partial
termination of a certification.
(e) Opportunity for comment and submission of data on
reconsideration. Within 10 calendar days after publication of a notice
under paragraph (d) of this section, any party who is eligible to file a
petition under Sec. 618.205 may make written submissions to show why
the determination under reconsideration should or should not be
modified.
(f) Investigation on reconsideration. The Department will conduct a
review of the record on which the termination of the investigation,
negative determination, or termination or partial termination of a
certification was based, any comments timely filed under paragraphs
(a)(2)(iv), (a)(2)(v), or (e) of this section, and any data submitted
with the original petition or provided subsequent to the filing of the
petition. The period of investigation under reconsideration will remain
the same as the period of investigation for the original petition.
(g) Determinations on reconsideration. The Department will issue a
final determination affirming, reversing, or modifying the termination
of the investigation, negative determination, or termination or partial
termination of a certification within 60 days after the date of
receiving a complete and valid application for reconsideration. The
Department will notify the applicant(s), the petitioner(s) of the
original petition, firm official(s), and the State(s); and publish
notice in the Federal Register of the determination on reconsideration
and the reasons for it (redacting confidential business information).
The State continues to be responsible for notifying trade-affected
workers in a certified worker group of their eligibility to apply for
TAA, in accordance with Sec. 618.820. If 60 days pass without a
determination on reconsideration, the Department will contact the
applicant to ascertain whether the applicant wishes the Department to
continue the reconsideration investigation and issue a determination on
reconsideration or wishes the Department to
[[Page 132]]
terminate the reconsideration investigation, which renders the initial
determination as the Department's final determination.
Sec. 618.250 Amendments of certifications.
(a) Reasons for amendments. A Certifying Officer may amend a
certification. The Department retains the authority to amend a
certification without a petition, where it has determined that an
amendment is appropriate. Amendments must not extend the impact date
more than 1 year prior to the petition date unless there is a statutory
exception, as described in Sec. 618.235(a)(1)(ii). Reasons for
amendments include, but are not limited to:
(1) Identifying an ownership change affecting the applicable firm;
(2) Correcting technical errors; or
(3) Clarifying the identification of the worker group.
(b) Petition filing. Amendments must be requested through the
regular petition process described in Sec. 618.205.
(c) Notification of amendment. The Department will publish the
amended certification in the Federal Register and on the Department's
website. The Department will also notify the affected States and the
State must notify any additional certified trade-affected workers, as
required by Sec. 618.820.
Sec. 618.255 Judicial review of determinations.
(a) General. A worker, group of workers, certified or recognized
union, or authorized representative of such worker or group may commence
a civil action for review of the determination by filing a complaint
with the United States Court of International Trade (USCIT) within 60
days after the date of publication of the notice of a final
determination in the Federal Register, as provided under section 284 of
the Act (19 U.S.C. 2395).
(b) Final determination. Only determinations issued under Sec.
618.245(g) are final determinations for purposes of judicial review.
(c) Certified record of the Department. Upon receiving a copy of the
summons and complaint from the clerk of the USCIT, the Department will
file with the court a certified record meeting the requirements of the
rules of the USCIT. When the certified record contains confidential
business information, the Department will file a public version of the
record redacting the confidential business information, and a separate
version that includes the confidential business information, in
accordance with the rules of the USCIT.
(d) Further proceedings. Upon remand by the USCIT, the Department
will conduct an additional investigation and the Certifying Officer will
make new or modified findings of fact and will modify or affirm the
previous determination. Upon making this subsequent determination, the
Certifying Officer will publish a summary of the determination and the
reasons for the determination in the Federal Register, redacting any
confidential business information from the published summary. The
Certifying Officer also will file the determination upon remand and the
record on which the determination is based with the USCIT, in accordance
with the rules of USCIT.
(e) Standard of review. The determination and findings of fact by
the Certifying Officer are conclusive if the USCIT determines that they
are supported by substantial evidence, as provided under section 284 of
the Act (19 U.S.C. 2395).
(f) Individual benefits denials. Appeals of denials of individual
benefits are not determinations under section 222 of the Act and are not
subject to review by the USCIT under section 284 of the Act.
(g) Manner of filing. Requests for judicial review must be filed in
accordance with the rules of the USCIT.
Sec. 618.260 Study regarding certain affirmative determinations by
the Commission.
(a) Upon notification from the Commission that it has begun an
investigation under section 202 of the Act with respect to an industry,
the Department must immediately begin a study of:
(1) The number of workers in the domestic industry producing the
like or directly competitive article who have been or are likely to be
certified as eligible for adjustment assistance, which includes, but is
not limited to, analysis of:
[[Page 133]]
(i) The estimated number of certified workers within the domestic
industry named in the ITC affirmative determination;
(ii) Information obtained during the investigation of TAA Program
determinations;
(iii) Responses from Domestic Industry Study;
(iv) Information obtained by consultation with ITC Commission
industry experts; and
(v) Other pertinent workforce and trade-impact data of companies who
are currently participating in the industry.
(2) The extent to which the adjustment of such workers to the import
competition may be facilitated through the use of the TAA Program, other
Departmental programs and resources, and programs administered by other
Federal agencies.
(b) The report of the Department's study under paragraph (a) of this
section must be made to the President not later than 15 days after the
day on which the Commission makes its report under section 202(f)(1) of
the Act. The Department will also publish the report in the Federal
Register and on the Department's website.
Sec. 618.265 Availability of information to the public.
(a) Information available to the public. The Department posts all
determinations on the Department's website at https://www.dol.gov/
agencies/eta/tradeact. The Department also posts redacted versions of
all petitions on the same website. Upon request to the Administrator of
the Office of Trade Adjustment Assistance, members of the public may
inspect petitions and other documents filed with the Administrator,
transcripts of testimony taken and exhibits submitted at public hearings
held under the provisions of this subpart, public notices concerning
trade-affected worker assistance under the Act, and other reports and
documents issued for general distribution, in accordance with the
Department's record retention schedule, FOIA, and the Privacy Act.
(b) Information not available to the public. Confidential business
information must not be made available to the public.
Subpart C_Employment and Case Management Services
Sec. 618.300 Scope.
This subpart describes the employment and case management services
that the State must make available to trade-affected workers, either
directly through the TAA Program or through arrangements with partner
programs. This subpart requires States, under the Governor-Secretary
Agreement at Sec. 618.804, to integrate the provision of benefits and
services available to trade-affected workers under the TAA Program with
the delivery of employment services and other assistance provided
through the one-stop delivery system (established under title I of
WIOA), as required by sections 235 and 239(a), (e), and (g) of the Act.
It also implements the requirements of section 221(a)(2)(A) of the Act
for the provision of rapid response assistance and appropriate career
services described in Sec. Sec. 682.300 through 682.370, and 680.150 of
this chapter, respectively, for workers upon receipt of a petition filed
covering a group of workers.
Sec. 618.305 The Trade Adjustment Assistance Program as a one-stop
partner.
(a) As provided by WIOA section 121(b)(1)(B)(vii), the TAA Program
is a required one-stop partner under WIOA.
(b) The State must ensure that the TAA Program complies with WIOA's
one-stop partnership requirements at WIOA section 121(b)(1)(A)(i)
through (v). This includes, among the other requirements, paying
infrastructure costs where the TAA Program is being carried out.
(c) The TAA Program must also comply with, and be a party to, the
memorandum of understanding required under the regulations implementing
WIOA at Sec. 678.500 of this chapter, where the TAA Program is being
carried out.
Sec. 618.310 Responsibilities for the delivery of employment and case
management services.
(a) The State is responsible for providing information to workers
about
[[Page 134]]
the TAA Program, as required in Sec. 618.816;
(b) As part of the delivery of services, the State must:
(1) Conduct intake, which includes interviewing each trade-affected
worker and reviewing suitable training opportunities reasonably
available to each worker under subpart F of this part;
(2) Inform trade-affected workers of the employment services and
allowances available under the Act and this part, including the
application procedures, the filing requirements for such services, and
enrollment deadlines for receiving TRA, as described in subpart G of
this part;
(3) Determine whether suitable employment, as defined in Sec.
618.110, is available, and assist in job search activities related to
securing suitable employment;
(4) Accept applications for training;
(5) Provide information on which training providers offer training
programs at a reasonable cost and with a reasonable expectation of
employment following the completion of such training, and assist in
acquiring such training;
(6) Monitor the progress and attendance of trade-affected workers in
approved training programs;
(7) Develop and implement a procedure for determining whether to
issue a training waiver and to review waivers to determine whether the
conditions under which they were issued have changed, in compliance with
subpart G of this part;
(8) Provide access to workshops and other resources related to job
search strategies, resume building, interviewing, and other topics
available through the TAA Program or through the one-stop delivery
system; and
(9) Coordinate the administration and delivery of additional
appropriate employment services, benefits, training, supportive
services, and supplemental assistance for workers with partner programs
for which the trade-affected worker may be eligible.
(c) The State must make available the employment and case management
services in paragraphs (c)(1) through (7) of this section to trade-
affected workers who apply for or are seeking receipt of TAA Program
benefits and services, and ensure that those workers are informed of the
availability of:
(1) Comprehensive and specialized assessment of skill levels and
service needs, including through:
(i) Diagnostic testing and use of other assessment tools; and
(ii) In-depth interviewing and evaluation to identify employment
barriers and appropriate employment goals.
(2) Development of an individual employment plan (IEP) to identify
employment goals and objectives, and appropriate training to achieve
those goals and objectives.
(3) 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, as amended (HEA) (20
U.S.C. 1070a-16), where applicable, and notifying workers that they may
request that financial aid administrators at institutions of higher
education (as defined in section 102 of HEA (20 U.S.C. 1002)) use the
administrators' discretion under section 479A of HEA (20 U.S.C. 1087tt)
to use current-year income data, rather than preceding-year income data,
for determining the amount of the workers' need for Federal financial
assistance under title IV of HEA (20 U.S.C. 1070 et seq.).
(4) Short-term prevocational services, including development of
learning skills, communications skills, interviewing skills,
punctuality, personal maintenance skills, and professional conduct to
prepare trade-affected workers for employment or training.
(5) Individual and group career counseling, including job search and
placement counseling, during the period in which the worker is receiving
a trade adjustment allowance or training under this chapter, and after
receiving such training for purposes of job placement and employment
retention.
(6) Provision of employment statistics information, including the
provision of accurate information relating to local, regional, and
national labor market areas, including:
(i) Job-vacancy listings in such labor market areas;
(ii) Information on the job skills necessary to obtain the jobs
identified in
[[Page 135]]
the job-vacancy listings described in paragraph (c)(6)(i) of this
section;
(iii) Information relating to local occupations that are in demand
and the earning potential of those occupations; and
(iv) Skills requirements for local occupations described in
paragraph (c)(6)(iii) of this section.
(7) Information relating to the availability of supportive services,
available through partner programs, including services relating to
childcare, transportation, dependent care, housing assistance, and needs
related payments that are necessary to enable a trade-affected worker to
participate in training.
(d) To make available, with respect to the employment and case
management services described in paragraph (c) of this section, means:
(1) That the State must inform the trade-affected worker of the full
suite of services available; and
(2) That the State must offer and provide appropriate services to
the trade-affected worker, as requested by the worker or deemed
appropriate for the worker; and
(3) That the State must document each service provided to the trade-
affected worker and document the reason any service listed in paragraph
(c) of this section was not provided. The documentation must be included
in the worker's case file, either through case notes or as a stand-alone
document.
Sec. 618.325 Integrated service strategies and Workforce Innovation and
Opportunity Act co-enrollment.
(a)(1) A State must co-enroll trade-affected workers who are
eligible for WIOA's dislocated worker program. Workers may choose to
decline co-enrollment in WIOA. A State cannot deny such a worker
benefits or services under the TAA Program solely for declining co-
enrollment in WIOA.
(2) A State must also make co-enrollment available to trade-affected
workers who are eligible for other one-stop partner programs to ensure
that all necessary and appropriate services, including supportive
services, are available to the worker.
(b)(1) Trade-affected worker dislocated worker eligibility. Most
trade-affected workers meet the eligibility criteria of a dislocated
worker defined at WIOA section 3(15).
(2) Partially separated worker and AAIW dislocated worker
eligibility. In certain circumstances, such as a general announcement of
a closure, partially separated workers and AAIWs may meet the
eligibility criteria as a dislocated worker under WIOA and must also be
co-enrolled.
(3) Trade-affected worker dislocated worker ineligibility. Some
trade-affected workers are ineligible for the WIOA dislocated worker
program, including those that do not meet the Selective Service
registration requirement, and will be exempt from the co-enrollment
requirement in this section.
Sec. 618.330 Assessment of trade-affected workers.
(a) The assessment process forms the basis for determining which TAA
Program benefits and services, including training, are most appropriate
to enable trade-affected workers to successfully become reemployed.
(b) The State must schedule an initial assessment that provides
sufficient time and information for the trade-affected worker to
consider, request, and enroll in training or obtain a waiver of the
training requirement in Sec. 618.720(g) to protect the worker's
eligibility to receive TRA under subpart G of this part.
(c) Assessments are administered with the cooperation of the trade-
affected worker and should include discussion of the worker's interests,
skills, aptitudes, and abilities.
(d) The results of assessments must be documented in the case file,
either through case notes or as a stand-alone document.
(e) If an assessment has already been administered by a partner
program, it must be reviewed once a worker becomes a trade-affected
worker to ensure it has the required components as listed in Sec.
618.335 for an initial assessment and, if necessary, Sec. 618.345 for a
comprehensive and specialized assessment. If the assessment(s) does not
contain the required components, the assessment(s) must be supplemented
by the State, in conjunction with the trade-affected worker, to ensure
it is
[[Page 136]]
fully compliant with TAA Program requirements in this part.
(f) The State must make the trade-affected worker aware of the
advantages of receiving an assessment(s). However, a worker may refuse
an assessment. Since portions of the assessment(s) are necessary to
determine eligibility for certain TAA Program benefits, a worker's
refusal to provide necessary information, either as part of the
assessment or outside of the assessment process, may result in a denial
of a those benefits. This is detailed further in the applicable benefit
sections throughout this part.
Sec. 618.335 Initial assessment of trade-affected workers.
(a) A State must carry out an initial assessment for each trade-
affected worker as part of the intake process described in section
239(g) of the Act. When applicable, a State must use the results of an
assessment developed by a partner program, supplemented if necessary, as
described in Sec. 618.330(e).
(b) The results of the initial assessment will determine the best
service strategy to assist the trade-affected worker in obtaining
reemployment and provide insight into which benefits and services under
the TAA Program and partner programs would be most beneficial to the
worker. The initial assessment of the availability of suitable
employment to the worker in the local labor market must take into
consideration the following factors:
(1) Prevailing local labor market conditions, including the
unemployment rate, local employer skill demands and hiring
prerequisites;
(2) The worker's knowledge, skills, and abilities from his or her
education and previous employment;
(3) Transferable skills that the worker may possess that would be of
interest to other local employers;
(4) Evaluation of a worker's skill levels (including literacy,
numeracy, and English language proficiency), aptitudes, abilities
(including skills gaps), and supportive service needs; and
(5) Any barriers to the worker's reemployment, such as:
(i) Lack of applicability of skills from the worker's present
occupation to other occupations;
(ii) Skills that are in excess supply in the labor market area; or
(iii) Other barriers as outlined in WIOA section 3(24).
(c) Based upon the information gathered in the initial assessment,
described in paragraph (a) of this section, the State may:
(1) Determine that suitable employment is available to the trade-
affected worker, and if so, the State must make available employment and
case management services. If the worker disagrees with the
determination, the State must make available to the worker a
comprehensive and specialized assessment (under Sec. 618.345) to obtain
additional information to determine whether the initial assessment was
correct.
(2) Determine that no suitable employment is available to the worker
and, if so, the State must make available services as described in Sec.
618.310 (responsibilities for the delivery of employment and case
management services) and a comprehensive and specialized assessment (as
described in Sec. 618.345) to develop a comprehensive service strategy
for the trade-affected worker.
(d) If the State determines under paragraph (c) of this section that
suitable employment is not available to a trade-affected worker, even
with additional employment and case management services, the State must
advise the worker to apply for training under subpart F of this part.
Sec. 618.345 Comprehensive and specialized assessment of trade-affected
workers.
(a) The State must make available a comprehensive and specialized
assessment to all trade-affected workers.
(b) The comprehensive and specialized assessment must take into
account the trade-affected worker's goals and interests as they relate
to employment opportunities either in the worker's commuting area or,
where there is no reasonable expectation of securing employment in the
worker's commuting area and the worker is interested in relocation, the
employment opportunities and demand in the area to which the worker
proposes to relocate.
[[Page 137]]
(c) The comprehensive and specialized assessment must expand upon
the initial assessment regarding the trade-affected worker's interests,
skills, aptitudes, and abilities. This may include use of diagnostic
testing tools and instruments and in-depth interviewing and evaluation
to identify barriers to employment and appropriate employment goals. The
in-depth interviewing of trade-affected workers must include discussion
of training opportunities reasonably available to each trade-affected
worker, as described in subpart F of this part; reviewing the
opportunities with each trade-affected worker; and informing each trade-
affected worker of the requirements for participating in training,
including the enrollment deadlines required for TRA eligibility.
(d) The State may use information from the comprehensive and
specialized assessment to determine whether the trade-affected worker
has met the six criteria for approval of training listed in subpart F of
this part.
Sec. 618.350 Individual employment plans for trade-affected workers.
(a) A State must:
(1) Make available an IEP; and
(2) Document an IEP for any trade-affected worker seeking training
under subpart F of this part or a job search allowance under subpart D
of this part, before the worker receives those benefits and services.
(b) An IEP must use the results of the initial and, if available,
comprehensive and specialized assessments to assist in documenting a
strategy to provide the trade-affected worker with the services needed
to obtain employment, including the items listed in paragraph (c) of
this section.
(c) An IEP must document:
(1) The trade-affected worker's employment goal, including the
targeted occupation and industry;
(2) The training program proposed, if any;
(3) Any services that will be needed by the worker to obtain
suitable employment, including career services, supportive services
provided through partner programs, and post-training case management
services;
(4) If applicable, any supplemental assistance (subsistence or
transportation payments) required for participation in training and the
basis for their calculation; and
(5) The worker's responsibilities under the plan.
(d) If an IEP has been previously developed with a trade-affected
worker by a partner program, it must be reviewed once the worker becomes
TAA Program-eligible to ensure it has the components required by
paragraph (c) of this section. If the IEP does not contain the
components, the IEP must be supplemented by the State in conjunction
with the worker to ensure it is fully compliant with the TAA Program
requirements in this part.
(e) The State must monitor the progress of the trade-affected worker
in meeting the worker's responsibilities as listed in the IEP, including
attendance and achievement in approved training programs.
(f)(1) The State must modify the IEP as necessary to facilitate a
successful performance outcome for the trade-affected worker.
(2) The modification must be done with the worker's input.
(3) At a minimum, the IEP must be modified when there is a change in
the training program, receipt of supplemental assistance, or both.
(g) The State must make the trade-affected worker aware of the
advantages of receiving an IEP. However, a worker may refuse to complete
an IEP. Since portions of the IEP are necessary to determine eligibility
for job search allowances under subpart D of this part and training
under subpart F of this part, a worker's refusal to provide necessary
information, either as part of the IEP or outside of the IEP process,
may result in a denial of a those benefits and services. This is
detailed further in subparts D and F of this part.
Sec. 618.355 Knowledge, skills, and abilities of staff performing
assessments.
(a) Staff performing either the initial or comprehensive and
specialized assessment must possess the following knowledge and
abilities:
(1) Knowledge of the local labor market;
[[Page 138]]
(2) Knowledge of local employer and occupation skill demands and
hiring prerequisites, such as educational requirements and professional
certifications;
(3) The ability to identify transferable skills that a trade-
affected worker may possess that would be of interest to other local
employers outside of the worker's present occupational area;
(4) The ability to evaluate quickly a worker's ability to conduct a
self-directed job search; and
(5) The ability to identify barriers to a worker's employment that
could be overcome with training and case management services.
(b) The staff performing these initial and comprehensive and
specialized assessments may be from any partner program.
(c) Funds under section 235A(1) of the Act may be used to improve
and maintain the knowledge and abilities of staff conducting assessments
for trade-affected workers.
Sec. 618.360 Employment and case management services for trade-affected
workers in training.
The State must make employment and case management services
available, including placement and referrals to supportive services and
follow-up services available through partner programs, to trade-affected
workers during training, and after completion of training, and for AAWs
on a waiver from training.
Subpart D_Job Search and Relocation Allowances
Sec. 618.400 Scope.
This subpart sets forth the conditions under which an AAW may apply
for and receive a job search allowance to help the worker secure
suitable employment outside the commuting area but within the United
States. This subpart also sets forth the conditions under which an AAW
may apply for and receive a relocation allowance to help the worker
relocate to suitable employment secured outside the commuting area but
within the United States.
Sec. 618.405 General.
(a) A State must grant a job search allowance to an AAW to help the
worker secure suitable employment within the United States if the AAW
meets the requirements in this subpart. A job search allowance for
activities outside of the worker's commuting area may be provided for
costs including, but not limited to:
(1) Travel to and attendance at job fairs and interviews;
(2) Travel to and attendance at prevocational workshops;
(3) Making an in-person visit with a potential employer who may
reasonably be expected to have openings for suitable employment;
(4) Completing a job application in person with a potential employer
who may reasonably be expected to have openings for suitable employment;
(5) Going to a local one-stop, copy shop, Post Office, or similar
entity to print, copy, mail, email, or fax a job application, cover
letter, and/or a resume;
(6) Going to a local one-stop, public library, community center, or
similar entity to use online job matching systems, to search for job
matches, request referrals, submit applications/resumes, attend
workshops, and/or apply for jobs; and,
(7) Attending a professional association meeting for networking
purposes.
(b) A State must grant a relocation allowance to an AAW to help the
worker and the worker's family relocate within the United States if the
AAW meets the requirements in this subpart. A State may grant a
relocation allowance to a worker only once under a certification. A
State may grant a relocation allowance to only one member of a family
for the same relocation, even if there are multiple AAWs in the same
family. If more than one member of a family applies for a relocation
allowance for the same relocation, then the State must pay the allowance
to the AAW who files first, if that AAW is otherwise eligible.
Sec. 618.410 Applying for a job search allowance.
(a) Forms. To receive a job search allowance, an AAW must apply to
the State, using the State's process.
[[Page 139]]
(b) Submittal. An AAW must apply for a job search allowance before
beginning a job search to be funded by such an allowance.
Sec. 618.415 Eligibility for a job search allowance.
(a) Conditions. To be eligible for a job search allowance an AAW
must:
(1) File an application before either:
(i) The later of the 365th day after either the date of the
certification under which the AAW is covered, or the 365th day after the
AAW's last total separation; or
(ii) The 182nd day after the date of concluding approved training;
(2) Be an AAW totally separated from the job covered under the
certification when beginning the job search;
(3) Receive a determination by the State that the AAW:
(i) Cannot reasonably expect to secure suitable employment in the
commuting area; and
(ii) Can reasonably expect to obtain, in the area of the job search,
either:
(A) Suitable employment; or
(B) Employment that pays a wage of at least the 75th percentile of
national wages, as determined by the National Occupational Employment
Wage Estimates, and otherwise meets the definition of suitable
employment;
(4) Receive a determination by the State that the worker cannot
reasonably expect to secure suitable employment by alternatives to being
physically present in the area of the job search, such as by searching
and interviewing for employment by means of the internet and other
technology;
(5) Not previously have received a relocation allowance under the
same certification; and
(6) Complete a State-approved job search within 30 calendar days
after the worker leaves the commuting area to begin the job search.
(b) Completion of job search. (1) An AAW has completed a job search
when the worker either:
(i) Obtains a bona fide offer of employment; or
(ii) Has, with State verification, as provided in Sec.
618.420(a)(2), contacted each employer the worker planned to contact, or
to whom the State or other one-stop partner referred the worker as part
of the job search.
(2) The job search is complete when one of the actions in paragraph
(b)(1) of this section occurs, whichever comes first. For purposes of
paragraph (b)(1)(i) of this section, ``bona fide'' means the offer of
suitable employment is made in good faith by a prospective employer.
Sec. 618.420 Findings required for a job search allowance.
(a) Findings by liable State. Before a liable State may approve
final payment of a job search allowance, the liable State must:
(1) Find that the AAW meets the eligibility requirements for a job
search allowance specified in Sec. 618.415(a)(1) through (6); and
(2) Verify that the worker contacted each employer the State
certified or to whom the State or one-stop center referred the worker as
part of the job search and must find that the worker completed the job
search, as described in Sec. 618.415(b) within the time limits stated
in Sec. 618.415(a)(6).
(b) Assistance by agent State. (1) When an AAW files an application
for a job search allowance to conduct a job search in an agent State,
the agent State in which the worker conducts the job search is
responsible for assisting the worker in conducting the job search, for
assisting the liable State by furnishing any information required for
the liable State's determination of the claim, and for paying the job
search allowance.
(2) The agent State must cooperate fully with the liable State in
carrying out its activities and functions with regard to such
applications. When requested by the liable State, the agent State must
verify with the employer and report to the liable State whether the
worker has obtained suitable employment, or a bona fide offer of
suitable employment.
Sec. 618.425 Amount of a job search allowance.
(a) Computation. The job search allowance is 90 percent of the total
costs of an AAW's travel (as defined in paragraph (a)(1) of this
section) and lodging and meals (as defined in paragraph
[[Page 140]]
(a)(2) of this section), up to the limit in paragraph (b) of this
section:
(1) Travel. The worker's allowable travel expenses may not exceed 90
percent of the prevailing cost per mile by privately owned vehicle under
41 CFR chapters 300 through 304, the Federal Travel Regulation (FTR),
found at https://www.gsa.gov/, for round trip travel by the usual route
from the worker's home to the job search area, though other forms of
transportation may be utilized.
(2) Lodging and meals. The worker's allowable lodging and meals
costs cannot exceed the lesser of:
(i) The actual cost for lodging and meals while engaged in the job
search; or
(ii) 50 percent of the prevailing per diem allowance under the FTR,
found at https://www.gsa.gov/, for the worker's job search area.
(b) Limit. The AAW's total job search allowance under a
certification may not exceed $1,250, no matter how many job searches the
worker undertakes. If the worker is entitled to be paid or reimbursed by
another source for any of these travel, lodging, and meals expenses, the
State must reduce the job search allowance by the amount of the payment
or reimbursement.
(c) Choice of mode of transportation. With respect to the limits
established in paragraph (a)(1) of this section, an AAW may elect to use
a different mode of transportation than the one for which the State
calculated the applicable reimbursement amount. However, the State must
limit the reimbursement to the worker to the amount calculated under
paragraph (a)(1) of this section.
Sec. 618.430 Determination and payment of a job search allowance.
(a) Determinations. The State must promptly make and record
determinations necessary to assure an AAW's eligibility for a job search
allowance. Sections 618.820 (determinations of eligibility; notices to
individuals) and 618.828 (appeals and hearings) apply to these
determinations. States must include copies of such applications and all
determinations by the State in the AAW's case file.
(b) Payment. If the AAW makes a timely application, is covered under
a certification, and is otherwise eligible, the State must make payment
promptly after the worker has completed a job search and complied with
paragraph (d) of this section, provided that funds are available for job
search allowances.
(c) Advances. Once the State determines that the AAW is eligible for
a job search allowance, it may advance the worker up to 60 percent of
the estimated amount of the job search allowance subject to the limit in
Sec. 618.425(b), but not exceeding $750, within 5 days before the
commencement of a job search. The State must deduct the advance from any
payment under paragraph (b) of this section.
(d) Worker evidence. After the AAW completes a job search, the AAW
must certify to the State as to the employer contacts made and must
provide documentation of expenses in accordance with FTR and Uniform
Guidance at 2 CFR part 200. This may include receipts for all lodging,
purchased transportation, or other expenses. If an advance the worker
received was more or less than the actual allowance, the State must make
an appropriate adjustment and pay the balance entitled, or the worker
must repay the excess received.
Sec. 618.435 Job search program participation.
(a) Requirements. An AAW who participates in an approved job search
program (JSP), may receive reimbursement for necessary expenses of
subsistence and transportation incurred for the worker's participation
in the approved JSP, regardless of the worker's approval for, or receipt
of, a job search allowance under Sec. Sec. 618.420 and 618.430.
(b) Approved JSP. A State may approve a JSP if:
(1) The JSP is provided through WIOA, the public employment service,
or any other Federal- or State-funded program, and meets the definition
provided in Sec. 618.110; or
(2) The JSP is sponsored by the firm from which the AAW has been
separated.
(c) JSP allowances. Subsistence and transportation costs, whether
inside or outside the AAW's commuting area,
[[Page 141]]
must be approved for workers participating in JSPs in accordance with
Sec. 618.640(a) and within available State funding levels.
Sec. 618.440 Applying for a relocation allowance.
(a) Forms. To receive a relocation allowance, an AAW must apply to
the State using the State's process.
(b) Submittal. An AAW must apply for a relocation allowance and the
State must approve the worker for a relocation allowance before the
relocation begins. The State must make a timely determination on a
relocation application submitted to allow the worker to promptly begin
the relocation.
Sec. 618.445 Eligibility for a relocation allowance.
(a) Conditions. To be eligible for a relocation allowance, the AAW
must:
(1) File an application before either:
(i) The later of the 425th day after the date of the certification
under which the worker is covered, or the 425th day after the date of
the worker's last total separation; or
(ii) The 182nd day after the date the worker concluded training;
(2) Be an AAW totally separated from adversely affected employment
when the relocation begins;
(3) Not have already received a relocation allowance under the same
certification;
(4) Relocate within the United States but outside the worker's
commuting area;
(5) Receive a determination by the State that the worker has no
reasonable expectation of securing suitable employment in the commuting
area, and has obtained either suitable employment or employment that
pays a wage of at least the 75th percentile of national wages, as
determined by the National Occupational Employment Wage Estimates, and
otherwise meets the suitable employment requirements, or a bona fide
offer of such employment, in the area of intended relocation;
(6) Begin the relocation as promptly as possible after the date of
certification but no later than:
(i) 182 days after the worker filed the application for a relocation
allowance; or
(ii) 182 days after the conclusion of an approved training program,
if the worker entered a training program that received supplemental
assistance approved under Sec. 618.640(c) (subsistence payments) and
(d) (transportation payments), for training outside the worker's
commuting area; and
(7) Complete the relocation, as described in Sec. 618.460(f),
within a reasonable time as determined in accordance with FTR with the
State giving consideration to, among other factors, whether:
(i) Suitable housing is available in the area of relocation;
(ii) The worker can dispose of the worker's residence;
(iii) The worker or a family member is ill; and
(iv) A member of the family is attending school, and when the family
can best transfer the member to a school in the area of relocation.
(b) Job search allowances. The State may not approve a relocation
allowance and a job search allowance for an AAW at the same time.
However, if the worker has received a job search allowance, the worker
may receive a relocation allowance at a later time or receive a
relocation allowance as a result of a successful job search for which
the worker received a job search allowance.
Sec. 618.450 Findings required for a relocation allowance.
(a) Findings by liable State. Before the liable State may approve
final payment of a relocation allowance, the liable State must make the
following findings:
(1) That the AAW meets the eligibility requirements for a relocation
allowance specified in Sec. 618.445(a)(1) through (7) and is not also
simultaneously receiving a job search allowance as specified in Sec.
618.445(b);
(2) That the worker submitted the application for a relocation
allowance within the time limits specified in Sec. 618.445(a)(1);
(3) That the worker began and completed the relocation within the
time
[[Page 142]]
limitations specified in Sec. 618.445(a)(6) and (7); and
(4) That the worker obtained suitable employment, or a bona fide
offer of such suitable employment, in the area of intended relocation,
in accordance with Sec. 618.445(a)(5). The liable State must verify
(directly or through the agent State) the suitable employment, or the
bona fide offer, with the employer.
(b) Assistance by agent State. (1) When an AAW relocates to an agent
State, the agent State is responsible for:
(i) Assisting the worker in relocating to the State, completing an
application for a relocation allowance with the liable State, and paying
the relocation allowance; and
(ii) Assisting the liable State by furnishing any information
required for the liable State's determination on the claim.
(2) The agent State must cooperate with the liable State in carrying
out its activities and functions with regard to relocation applications.
When requested by the liable State, the agent State must verify with the
employer and report to the liable State whether the worker has obtained
suitable employment, or a bona fide offer of suitable employment.
Sec. 618.455 Determining the amount of a relocation allowance.
The AAW's relocation allowance includes the information in
paragraphs (a) through (c) of this section, as applicable:
(a) Reimbursement--(1) Travel. (i) The State may reimburse the AAW
for up to 90 percent of the prevailing cost per mile by privately owned
vehicle under the FTR, found at https://www.gsa.gov/, for travel from
the AAW's old home to the AAW's new home.
(ii) Separate travel of a family member or members who, for good
cause and with the approval of the State, must travel separately to
their new home, may also be reimbursed. For purposes of this paragraph
(a)(1)(ii), good cause includes, but is not limited to, reasons such as
a family member's health, schooling, job, or economic circumstances.
(2) Lodging and meals. The State may reimburse the worker for 90
percent of lodging and meal expenses for the worker and his or her
family while they are in transit, but such costs may not exceed the
lesser of:
(i) The actual lodging and meals cost to the worker and his or her
family while they are traveling; or
(ii) 50 percent of the prevailing per diem allowance under the FTR,
found at https://www.gsa.gov/, for the relocation area for those days
while the worker and his or her family are traveling.
(3) Movement of household goods. (i) The State may reimburse the
worker for 90 percent of the allowable costs of moving the workers and
family's household goods and personal effects in accordance with the FTR
(41 CFR chapter 302). This includes 90 percent of the costs of moving by
the most economical commercial carrier the State can reasonably expect
the worker to use, moving by rental truck or trailer (for rental,
mileage, and fuel), or moving a house trailer or mobile home. It also
includes 90 percent of the costs of temporary storage of household goods
for up to 60 days. In approving the move of a house trailer or mobile
home, the State must follow the specific requirements of the FTR, found
at https://www.gsa.gov.
(ii) For a commercial carrier move of household goods or house
trailer or mobile home, the worker must obtain an estimate of the moving
cost and provide this to the liable State. The estimate may include the
cost of insuring such goods and effects for their actual value or
$40,000 as delineated in the FTR, whichever is less, against loss or
damage in transit.
(iii) If more economical, the State may make direct arrangements for
moving and insuring a worker's household goods and personal effects with
a carrier and insurer selected by the worker and may make payment of 90
percent of moving and insurance costs directly to the carrier and
insurer. No such arrangement releases a carrier from liability otherwise
provided by law or contract for loss or damage to the worker's goods and
effects. Any contract for moving and insuring an AAW's household goods
must provide that the United States must not be or
[[Page 143]]
become liable to either party for personal injury or property loss
damage under any circumstances.
(iv) The maximum net weight of the household goods relocated from
the worker's old home to the relocation area may not exceed that set by
the FTR.
(4) Lump sum. As part of the relocation allowance, the worker will
receive a lump sum equivalent to three times the worker's average weekly
wage, not to exceed $1,250.
(b) Reduction. If the AAW is eligible to receive or has received
moving expenses from any other source for the same relocation, the State
must deduct the amount received from the amount of the relocation
allowance as determined in paragraphs (a)(1) through (3) of this
section.
(c) Limitation. In no case may the State pay a travel allowance for
the AAW or a family member more than once for a single relocation.
Sec. 618.460 Determinations and payment of a relocation allowance.
(a) Determinations. The State must promptly make and record
determinations necessary to assure an AAW's eligibility for a relocation
allowance. Sections 618.820 (determinations of eligibility; notices to
individuals) and 618.828 (appeals and hearings) apply to these
determinations. The State must include copies of such applications and
all determinations by the State in the AAW's case file.
(b) Payment. If the AAW makes a timely application, is covered under
a certification, and is otherwise eligible, the State must make payment
as promptly as possible.
(c) Travel allowances--(1) Payment. The State must pay the
allowances computed under Sec. 618.455 no earlier than 10 days in
advance of, and no later than at the time of, the AAW's scheduled
departure to begin relocation. The State must make the payment for a
family member approved for separate travel 10 days in advance of, or at
the time of that family member's scheduled departure.
(2) Worker evidence. After an AAW completes the relocation, the AAW
must certify to the State the expenses associated with the relocation,
in accordance with the FTR and Uniform Guidance in 2 CFR part 200. This
may include receipts for all lodging, purchased transportation, or other
expenses. If an advance the worker received was more or less than the
actual allowance, the State must make an appropriate adjustment and pay
the balance entitled, if any, or the worker must repay any excess
received, if any.
(d) Movement of household goods. The State must pay the amount equal
to 90 percent of the estimate of the costs of moving the AAW's household
goods by the most economical commercial carrier the State can reasonably
expect the worker to use (as described in Sec. 618.455(a)(3)
(determining the amount of a relocation allowance) as follows:
(1) Commercial carrier. If a commercial carrier moves the worker's
household goods and personal effects, the State must provide the worker
with an advance equal to 90 percent of the estimated cost of the move,
including any other charges that the State has approved, such as
insurance. The State must advance the funds to the worker no earlier
than 10 days in advance of, and no later than at the time of, the
scheduled shipment. If more economical, the State may make direct
arrangements for moving and insuring a worker's household goods and
personal effects with a carrier and insurer selected by the worker and
may make payment of 90 percent of moving and insurance costs directly to
the carrier and insurer subject to the conditions of Sec.
618.455(a)(3)(iii). The State must deliver payment to the carrier and
insurer no earlier than 10 days in advance of, and no later than at the
time of, the scheduled shipment.
(i) On completion of the move, as determined under paragraph (f) of
this section, the worker must promptly submit to the State a copy of the
carrier's bill of lading, including a receipt showing payment of moving
costs.
(ii) If the amount the worker received as an advance is greater than
90 percent of the actual approved moving costs, the worker must
reimburse the State for the difference. If the advance the worker
received is less than 90 percent of the actual moving costs approved by
the State, the State must reimburse the worker for the difference.
[[Page 144]]
(2) Private truck and trailer, rental truck or trailer, or house
trailer move--(i) Private vehicle with trailer. If the move is by
private vehicle and trailer, the State must advance 90 percent of the
estimated cost for the use of the private vehicle within 10 days in
advance of the scheduled move.
(ii) Truck and trailer rental. If the move is by rental truck or
rental trailer, the State must advance 90 percent of the estimated
rental cost within 10 days in advance of the scheduled move. The State
may make payment to either the worker or the rental company.
(iii) House trailer. If a house trailer or mobile home is moved by
commercial carrier, the State must advance 90 percent of the approved
estimated cost to the worker within 10 days in advance of the scheduled
move. The State may make payment to either the worker or the carrier.
(iv) Itemized receipt. Upon completion of the move, the worker must
promptly submit an itemized receipt to the State for payment of the
rental charges and fuel costs. If the amount the worker received as an
advance is greater than 90 percent of the actual moving costs, the
worker must reimburse the State for the difference. If the advance the
worker received is less than 90 percent of the actual moving costs
approved by the State, the State must pay the worker for the difference.
(3) Temporary storage. If temporary storage, not to exceed 60 days,
of household goods and personal effects is necessary for the relocation,
then the State must advance 90 percent of the approved estimated cost
within 10 days in advance of the scheduled move. The State may make
payment to either the worker or the rental agency.
(e) Lump sum allowance. The State must pay the lump sum allowance
provided in Sec. 618.455(a)(4) when arrangements for the relocation are
finalized, but not more than 10 days before the earlier of the AAW's
anticipated departure from his or her old home, or the anticipated date
of shipment of the worker's household goods and personal effects.
(f) Relocation completed. An AAW completes a relocation when the
worker and family, if any, along with household goods and personal
effects are delivered to the new residence in the area of relocation or
to temporary storage. If the worker moves no household goods and
personal effects, then a worker completes relocation when the worker and
family, if any, arrive in the area of relocation and establish a
residence in the new area. When a family member is approved for separate
travel, the later arrival of such family member does not alter the date
on which the State must consider the relocation completed.
Subpart E_Reemployment Trade Adjustment Assistance
Sec. 618.500 Scope.
This subpart provides the rules for RTAA. RTAA, authorized under
section 246 of the Act, provides 50 percent of the difference between
the wages received by the AAW at the time of separation from adversely
affected employment and the wages received by the worker from
reemployment for workers aged 50 and older who meet the eligibility
criteria described in this subpart. This subpart identifies the
eligibility criteria and the benefits available to AAWs who are eligible
for RTAA.
Sec. 618.505 Individual eligibility.
(a) Eligibility criteria. An AAW from a worker group certified under
Sec. 618.225 may elect to receive RTAA benefits if the AAW:
(1) Is at least 50 years of age;
(2) Earns not more than, or is projected to earn not more than,
$50,000 in reemployment wages each year during the eligibility period,
as further defined in Sec. 618.520(a);
(3) Earns less than, or is projected to earn less than, the AAW's
annualized wages at separation, as further defined in Sec. 618.520(a);
(4)(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 any
training program approved under subpart F of this part; or
(ii) Is employed at least 20 hours per week and is enrolled in a TAA
approved training program; and
(5) Is not employed at the firm, as further defined in paragraph (b)
of this
[[Page 145]]
section, from which the worker was separated.
(b) Eligibility-relevant definitions. For purposes of RTAA, the
following definitions apply:
(1) Firm. The State must determine on a case-by-case basis what
constitutes the ``firm'' for purposes of determining RTAA eligibility
based on the certification. If the Department issues the certification
under subpart B of this part for a worker group in an appropriate
subdivision of a firm, an AAW in that group is not eligible for RTAA
upon a return to employment within that subdivision, but may be eligible
for RTAA upon a return to employment at another subdivision of the firm.
If, however, the Department issues the certification for a worker group
composed of all workers from the firm rather than from a subdivision,
then the worker is not eligible for RTAA based on a return to employment
in any subdivision of that firm.
(2) Successor-in-interest. The State must determine if the firm now
employing the AAW is the same firm as the one from which the AAW was
separated.
(i) In making its determination, the State should first review the
certification under which the worker was covered, look for any
amendments to the certification, and compare the name and address of the
firm in the certification to the name and address of the firm in which
the worker has found reemployment. If they are the same, this is, in
most cases, dispositive: The firms are the same and the worker is not
eligible for RTAA.
(ii) If, despite the information gathered under paragraph (b)(2)(i)
of this section, it nonetheless remains unclear whether the firms are
the same, the State may need to obtain further information about the
firm reemploying the worker, from the employer and otherwise, to make
that determination. To do so, the State should determine whether the
firm at which the worker found reemployment is a ``successor-in-
interest'' to the firm from which the worker was separated. If the
reemploying firm merged with, acquired, or purchased the assets of the
firm from which the worker was separated, then the reemploying firm is a
successor-in-interest.
(iii) If the reemploying firm does not meet the criteria in
paragraph (b)(2)(ii) of this section, or if that information is
unavailable, then the State should consider the factors identified in
paragraphs (b)(3)(i) through (vii) of this section to determine whether
the reemploying firm is a successor-in-interest. If the State determines
that the worker returned to employment with a successor-in-interest to
the firm from which the worker was separated, then the worker is not
eligible for RTAA. The State must make the determination based on the
individual application of the worker. A firm, together with any
predecessor or successor-in-interest, or together with any affiliated
firm controlled or substantially owned by substantially the same
persons, is considered a single firm. If the State determines that the
reemployment is with a successor-in-interest the State also must seek to
identify any additional members of the worker group and notify them of
their potential eligibility under the TAA Program, as provided in Sec.
618.816(e).
(3) Successor-in-interest factors. A State may consider a firm a
successor-in-interest to another firm, if a majority of the following
factors are present:
(i) There is continuity in business operations.
(ii) There is continuity in location.
(iii) There is continuity in the workforce.
(iv) There is continuity in supervisory personnel.
(v) The same jobs exist under similar conditions.
(vi) There is continuity in machinery, equipment, and process.
(vii) There is continuity in product/service.
(4) Year. For purposes of RTAA, a year represents the 12-month
period beginning with the first full week of qualifying reemployment.
(c) Full-time employment. For purposes of RTAA, full-time employment
is defined per State law in which the reemployment occurs.
(1) If there is no State law addressing the definition of full-time
employment referenced under paragraph (a)(4)(i) of this section, the
State must issue a
[[Page 146]]
definition of full-time employment for RTAA purposes.
(2) The State must verify reemployment and do so in accordance with
State policies.
(3) Where an AAW seeks to establish RTAA eligibility based upon more
than one job, the State must combine employment hours in order to
determine whether the worker has the number of hours needed to qualify
for RTAA.
(4) If the AAW is employed in more than one State, the State must
determine full-time employment for the entire duration of the AAW's RTAA
eligibility under a single certification under the law of the State in
which the AAW has the lowest threshold of hours required to meet the
definition of full-time employment.
(d) Relevance of UI eligibility. UI eligibility is not a requirement
for RTAA eligibility.
(e) Eligible employment. (1) Employment for purposes of paragraph
(a)(4) of this section must be covered employment under State law;
however, employment may not include activity that is unlawful under
Federal, State, or local law.
(2) Work involving wages plus commission or piece work may be
considered qualifying employment for the purpose of establishing RTAA
eligibility, if it otherwise meets the criteria in paragraph (e)(1) of
this section.
(3) For purposes of meeting the requirements of paragraphs (a)(4)(i)
and (ii) of this section, employment may include one or more jobs
unless, in the case of paragraph (a)(4)(i) of this section, the law of
the State in which the AAW is employed provides otherwise.
(4) A State must count hours in which an AAW is on employer-
authorized leave as hours of work for purposes of meeting the
requirements of paragraphs (a)(4)(i) and (ii) of this section unless, in
the case of paragraph (a)(4)(i) of this section, the law of the State in
which the worker is employed provides otherwise.
Sec. 618.510 Eligibility period for payments of Reemployment Trade
Adjustment Assistance and application deadline.
(a) Adversely affected worker who has not received TRA. (1) In the
case of an AAW who has not received TRA, the worker may receive benefits
as described in Sec. 618.520(a) for a period not to exceed 104 weeks
beginning on the earlier of:
(i) The date on which the worker exhausts all rights to UI 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 first begins qualifying
reemployment as described in Sec. 618.505(e).
(2) Where a worker has more than one separation from adversely
affected employment, the relevant separation for determining the date on
which the ``worker exhausts all rights to UI'' referenced in paragraph
(a)(1)(i) of this section is the worker's last separation from adversely
affected employment that qualifies the worker as an AAW. The Department
uses the last separation because that separation is the one that
triggers the worker's application for RTAA. Accordingly, the State 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, where wages at separation are
defined as the annualized hourly rate at the time of the most recent
separation, as explained in Sec. 618.520(a).
(b) Adversely affected worker who has received TRA. In the case of
an AAW who has received TRA, the worker may also receive RTAA benefits
based on the same certification for a period of 104 weeks beginning on
the date on which the worker first begins qualifying reemployment,
reduced by the total number of weeks for which the worker received such
TRA.
(c) Applicable dates. To make the RTAA determination, the State will
need to know the applicable dates for the AAW: The date of reemployment
and either the date the worker exhausted all rights to UI, or the dates
the worker began and ended receipt of TRA before the date of
reemployment. These dates must occur within the 104-week eligibility
period identified in the Act.
[[Page 147]]
(d) Age of AAW when obtaining RTAA-qualifying employment. An AAW may
obtain employment before turning 50 years old and receive RTAA benefits
after turning 50 years old, if the employment is determined to be RTAA-
qualifying reemployment, as provided at Sec. 618.505(e), and the RTAA
eligibility period established after obtaining such employment has not
expired when the individual turned 50 years old.
(e) Exception to filing deadline and eligibility periods. The filing
deadline and eligibility periods in paragraphs (a) and (b) of this
section do not apply where:
(1) A negative determination on a petition filed under subpart B of
this part has been appealed to the USCIT;
(2) A certification of the worker group covered by that petition is
later made; and
(3) The delay in the certification is not attributable to the
petitioner or the AAW.
(f) Reasonable accommodation of filing deadline and eligibility
periods. In the event the filing deadline and eligibility periods in
paragraphs (a) and (b) of this section do not apply because the
certification meets the conditions in paragraph (e) of this section, the
filing deadline and eligibility periods for RTAA will be extended by the
State for the period necessary to make RTAA reasonably available to
AAWs.
Sec. 618.515 Continuing eligibility and timing of payments.
(a) Continuing eligibility for RTAA. (1) Changing jobs during
reemployment does not disqualify an otherwise eligible AAW from
receiving subsequent RTAA payments for the remainder of the 104-week (2-
year) eligibility period if the new reemployment meets the requirements
of Sec. 618.505.
(2) An AAW already receiving RTAA payments who has a period of
unemployment will not be eligible to receive RTAA for that period. Upon
reemployment, the AAW must notify the State. If the new reemployment
meets the requirements of Sec. 618.505 and the worker meets all other
eligibility requirements in this part, the AAW will be eligible to
receive RTAA in accordance with the requirements of this section for the
remaining portion of the 104-week (2-year) eligibility period.
(3) If during a year during the 2-year eligibility period an AAW's
cumulative wages exceed, or are projected to exceed, $50,000, the AAW
will no longer be eligible to receive additional RTAA payments within
that year. The AAW will be eligible for RTAA benefits in the next year
and RTAA payments will resume until wages exceed, or are projected to
exceed, $50,000, or until the $10,000 benefit limit is reached.
(4) If the worker is employed part-time (at least 20 hours per week)
and receiving RTAA while in TAA approved training, the State must verify
participation in training on a monthly basis. Verification of
participation in TAA approved training will be conducted in accordance
with State policies. States may use training benchmarks, described at
Sec. 618.660, as a method of verification of participation.
(b) Timing of RTAA payments. The State must make RTAA payments on a
regular basis, either weekly, biweekly, or monthly, for no more than a
104-week (2-year) period for an AAW under any one certification,
beginning no earlier than the first day of reemployment that satisfies
the requirements of Sec. 618.505. An AAW may receive retroactive
payments, in a lump sum, for payments for which the AAW was eligible,
but for which the AAW had not yet applied.
(c) Periodic verification of employment and reemployment wages. No
less than once a month, the State must review whether an AAW receiving
RTAA payments continues to meet the eligibility requirements of Sec.
618.505 and determine whether changes have occurred in the AAW's
reemployment wages, as described in Sec. 618.520(a).
(d) Change in reemployment wages. The State must recompute the
appropriate amount of the RTAA payments if, during its review under
paragraph (c) of this section, it determines that an AAW's reemployment
wages have changed.
(1) If reemployment wages exceed, or are projected to exceed,
$50,000 in a year during the eligibility period, then the State must
immediately issue a determination that the AAW is ineligible for further
RTAA payments, notify the
[[Page 148]]
AAW of this determination, and cease such RTAA payments.
(2) If reemployment wages change but do not exceed $50,000 in a year
during the eligibility period then the RTAA payment must be recomputed
every time such a change in reemployment wages occurs. The State must
then continue periodic verification in accordance with paragraph (c) of
this section, or recommence periodic verification if RTAA payments
resume in the second year after such scenario as described in paragraph
(a)(3) of this section occurs.
Sec. 618.520 Benefits available to eligible adversely affected workers.
(a) Payment. A RTAA-eligible AAW may receive a maximum of $10,000
over a period of not more than 104 weeks (2 years). If the AAW received
TRA, each week of TRA received reduces the total weeks of RTAA available
by 1 week and reduces the total RTAA payment amount available in
proportion to the reduction in the number of total weeks.
(1) Total amount of benefits. RTAA supplements a worker's wages for
up to 104 weeks (2 years) (reduced by the number of weeks of TRA
received) or $10,000 (reduced in proportion to the reduction in the
number of total weeks of TRA received), whichever occurs first, by an
amount equal to the annualized wage differential as computed under
paragraph (a)(2) of this section for an AAW employed full-time or
paragraph (a)(3) of this section for an AAW employed less than full-
time.
(2) Annualized wage differential for initial eligibility of an AAW
employed full-time. This amount is equal to 50 percent of: The AAW's
annualized separation wages (as computed under paragraph (a)(2)(i) of
this section) minus the amount of the AAW's annualized reemployment
wages (as computed under paragraph (a)(2)(ii) of this section).
(i) Annualized separation wages are the product of the AAW's hourly
rate during the last full week of the AAW's regular schedule in
adversely affected employment, multiplied by the number of hours the AAW
worked during the last full week of such employment, multiplied by 52.
The computation of annualized wages at separation excludes employer-paid
health insurance premiums and employer pension contributions, as well as
bonuses, severance payments, buyouts, and similar payments not
reflective of the AAW's weekly pay. [(hourly rate x hours worked) x 52]
(ii) Annualized reemployment wages are the product of the AAW's
hourly rate during the first full week of reemployment, multiplied by
the number of hours the AAW worked during the first full week of such
reemployment, multiplied by 52 [(hourly rate x hours worked) x 52]. If
the AAW's wages from reemployment change during the eligibility period,
then the State must recompute the AAW's annualized wages from
reemployment at the new hourly wage and must likewise recompute the
appropriate RTAA payment as required by Sec. 618.515(d). The
computation of annualized wages from reemployment excludes employer-paid
health insurance premiums and employer pension contributions, as well as
bonuses, severance payments, buyouts, and similar payments not
reflective of the AAW's weekly pay.
(3) Annualized wage differential for initial eligibility of an AAW
employed less than full-time. This amount, for an AAW employed at least
20 hours per week and enrolled in TAA approved training, is the
annualized wages as computed under paragraph (a)(2) of this section
multiplied by the ratio of the AAW's number of weekly hours of
reemployment to the AAW's number of weekly hours of employment at the
time of separation, but in no case more than 50 percent.
(4) Adjustment to total amount of RTAA benefits for AAWs who
received TRA. A State must adjust of the maximum RTAA benefit for an
RTAA-eligible AAW who has received TRA. The RTAA-eligible AAW may
receive up to the adjusted RTAA benefit as described in this section
within the eligibility period as provided in Sec. 618.510(b). RTAA
eligibility is terminated once the AAW reaches either the number of
weeks permitted pursuant to Sec. 618.510 or the adjusted RTAA benefit.
The adjusted RTAA benefit is calculated by subtracting the number of TRA
paid weeks
[[Page 149]]
from the 104-week RTAA eligibility period to determine the percentage of
reduced weeks that payments may be made. The maximum payable benefit of
$10,000 is then reduced by the same percentage. Once the reduction in
RTAA payable weeks and the reduction in the RTAA total payable are
reduced by the same percentage, they become the new maximum number of
payable weeks and maximum payable benefit.
(b) Training and related services. Recipients of RTAA are eligible
to receive training approved under subpart F of this part and employment
and case management services under subpart C of this part.
(c) Job search and relocation allowances. Recipients of RTAA are
eligible to receive job search and relocation allowances under subpart D
of this part, subject to the eligibility requirements and rules of
subpart D.
(d) HCTC. Recipients of RTAA are eligible to apply for or claim the
HCTC, if available.
(e) TRA. Once an AAW has received a payment under RTAA, the AAW is
no longer eligible for TRA under the same petition. Receipt of TRA prior
to RTAA will result in a reduction of RTAA benefits as described at
paragraph (a)(4) of this section.
Sec. 618.525 Determinations, redeterminations, and appeals.
(a) Determinations, redeterminations, and appeals. States must apply
the requirements of Sec. Sec. 618.820 (determinations of eligibility;
notices to individuals) and 618.828 (appeals and hearings),
respectively, to all determinations, redeterminations, and appeals under
this subpart.
(1) Before issuing a determination or redetermination, the State
must verify and document the AAW's age, reemployment, and wages in
determining whether the worker has met eligibility requirements of Sec.
618.505(a).
(2) A determination of eligibility issued to an AAW must include a
notice that the benefit amount will be regularly recomputed (as required
by Sec. 618.515(d)) and will change if the eligible AAW's reemployment
wages change.
(3) An AAW denied individual eligibility based on nonqualifying
reemployment may file a new application for a subsequent reemployment.
(4) A State may approve an RTAA payment retroactively if an AAW
becomes reemployed before the Department issues a certification under
subpart B of this part, provided that the AAW otherwise meets the
eligibility requirements of Sec. 618.505(a).
(b) Recordkeeping requirements. The recordkeeping and disclosure of
information requirements of Sec. 618.852 apply to the State's
administration of RTAA.
Sec. 618.530 Reductions of Reemployment Trade Adjustment Assistance
payments; priority of payments.
(a) Ordered child support payments. State laws regarding deductions
of payments from UI, TRA, and RTAA must comply with the Social Security
Act (SSA). SSA section 303(e)(1) defines child support obligations as
only including obligations which are being enforced pursuant to a plan
described in section 454 of SSA which has been approved by the Secretary
of Health and Human Services under part D of title IV of SSA. SSA does
not otherwise permit deductions for alimony or for child support.
(b) Priority of UI payments. RTAA does not fit into priority of
payments under UI because RTAA is related to employment, not
unemployment. UI and RTAA are two separate programs that operate
independently of one another.
Subpart F_Training Services
Sec. 618.600 Scope.
This subpart sets forth the conditions and procedures under which a
trade-affected worker may apply for and receive training to help secure
reemployment. Training provided under this subpart must, at a reasonable
cost and as quickly as possible, assist a trade-affected worker in
obtaining the necessary skills to have a reasonable expectation of
reemployment. All else being equal, States should prefer training that
replaces 100 percent or more of a trade-affected worker's wages in
adversely affected employment or that qualifies as suitable employment.
[[Page 150]]
Sec. 618.605 General procedures.
(a) Assessments. The State must ensure and document that every
trade-affected worker has an initial assessment and that a comprehensive
and specialized assessment is made available, as described in subpart C
of this part. If a worker refused to take an assessment, the information
necessary to determine eligibility for training must be documented. If a
trade-affected worker has an IEP, the assessment results must support
the training program set out in the worker's IEP, as described in
subpart C of this part, before an application for training is approved.
As with assessments, if a worker refused to develop an IEP, the
information necessary to determine eligibility for training must be
documented.
(b) Applications. Applications for training, including requests for
TAA Program-funded transportation and subsistence payments, must be made
to the State in accordance with any policies and procedures established
by the State.
(c) Determinations. Decisions on selection for, approval of, or
referral of a trade-affected worker to training, including whether to
provide TAA Program-funded transportation and subsistence payments,
under this subpart, or a decision with respect to any specific training
or nonselection, nonapproval, or nonreferral for any reason is a
determination to which Sec. Sec. 618.820 (determinations of
eligibility; notices to individuals), 618.824 (liable State and agent
State responsibilities), and 618.828 (appeals and hearings) apply.
(d) Training opportunities. (1) The State must explore, identify,
and secure training opportunities to ensure trade-affected workers
return to employment as soon as possible. States must use all necessary
and reasonable means to find alternatives when local training resources
cannot adequately train trade-affected workers for reemployment.
Training resources may be inadequate when they cannot train workers
quickly, or at a reasonable cost, or equip workers with skills that meet
the demands of the job market.
(2) When available training is inadequate, TAA Program funds may be
used to create customized, group training opportunities in response to a
particular dislocation event. Funds may be used for trainings that
provide intensive remedial education classes, English language training,
or contextualized occupational training, which combines academic and
occupational training. These group trainings must adhere to the
principles described in Sec. 618.600.
(3) States are required to coordinate with other public and private
agencies, in cooperation with local workforce development boards (LWDBs)
established under WIOA, to ensure a wide-range of training opportunities
are available to trade-affected workers in demand occupations.
(e) Timing of application and approval of training. A trade-affected
worker may apply for training and a State may approve training at any
time after the certification date on which his or her worker group is
certified under subpart B of this part, without regard to whether such
worker has applied for or exhausted all rights to any UI to which the
worker is entitled.
Sec. 618.610 Criteria for approval of training.
The State must consult the trade-affected worker's assessment
results and IEP, if available, as described respectively under
Sec. Sec. 618.345 and 618.350, before approving an application for
training. Training must be approved for a trade-affected worker if the
State determines that all of the criteria in paragraphs (a) through (f)
of this section are met:
(a) Criterion 1. There is no suitable employment available for the
trade-affected worker.
(1) There is no suitable employment available for a trade-affected
worker in either the commuting area or another area outside the
commuting area to which the worker intends to relocate, and there is no
reasonable prospect of such suitable employment becoming available for
the worker in the foreseeable future.
(2) If a training program, or an application for training, is denied
under paragraph (a)(1) of this section, the State must document the
availability of suitable employment through traditional and real-time
labor market information including, but not limited
[[Page 151]]
to, projections data, job postings, and job vacancy surveys.
(b) Criterion 2. The trade-affected worker would benefit from
appropriate training.
(1) The worker would benefit from appropriate training when
training, skills training, or remedial education would increase the
likelihood of obtaining employment. Appropriate training should improve
the worker's chances of obtaining employment at higher wages than in the
absence of training or place the worker on a pathway to do so.
(2) The worker must have the knowledge, skills, and abilities to
undertake, make satisfactory progress in, and complete the training
program.
(c) Criterion 3. There is a reasonable expectation of employment
following completion of such training. Given the labor market conditions
expected to exist at the time of the completion of the training program,
a reasonable expectation, fairly and objectively considered, exists that
the trade-affected worker is likely to find employment, using the skills
and education acquired while in training, upon completion of approved
training. The labor market conditions considered must be limited to
those in the worker's commuting area, or in the area where the worker
intends to relocate.
(1) ``A reasonable expectation of employment'' does not require that
employment opportunities for the worker be available, or offered,
immediately upon the completion of the approved training program. When
initially approving such training, there must be a projection, based on
labor market information, of employment opportunities expected to exist
at the time of completion of the training program.
(2) The State must measure expected job market conditions using
pertinent labor market data, including but not limited to job order
activity, short-term projections data, job vacancy surveys, business
visitation programs, and local and regional strategic plans. This labor
market information should be documented in the trade-affected worker's
case file. The State should also work with the LWDBs and their one-stop
partners, especially business team members, to understand current labor
market conditions and opportunities for work-based learning.
(3) When a worker desires to relocate within the United States, but
outside the worker's present commuting area, upon completion of
training, the State must document the labor market information,
described in paragraph (c)(2) of this section, for the area of the
planned relocation.
(4) A reasonable expectation of employment may exist in a limited
demand occupation for a single, trained worker in the worker's commuting
area or in an area to which the worker desires to relocate. A limited
demand for such an occupation does not preclude the approval of training
in an occupation where the State has determined that there is a
reasonable expectation that the worker can secure employment in that
occupation. States must verify with businesses in the commuting area or
in the area of intended relocation that demand exists for an individual
with such training. These efforts must be documented in the trade-
affected workers case file. Before approving training in occupations
with limited demand, the State must consider the number of individuals
currently enrolled in training that are likely to meet that demand
before enrolling additional workers in training for that occupation.
(5) A State may approve a training program in an occupation if it
finds that there is a reasonable expectation that the training will lead
to self-employment in the occupation for which the worker requests
training and that such self-employment will provide the worker with
wages or earnings at or near the worker's wages in adversely affected
employment.
(6) Training programs that consist solely of OJT or contain an OJT
component are not approvable if they are not expected to lead to
suitable employment, with the employer providing the OJT, in compliance
with section 236(c)(1)(B)(i) of the Act.
(d) Criterion 4. Training is reasonably available to the trade-
affected worker. In determining whether training is reasonably
available, States must first consider training opportunities available
within the worker's commuting
[[Page 152]]
area. States may approve training outside the commuting area if none is
available at the time in the worker's commuting area. Whether the
training is in or outside the commuting area, the training program must
be available at a reasonable cost as prescribed in paragraph (f) of this
section.
(e) Criterion 5. The trade-affected worker is qualified to undertake
and complete such training. States must ensure the following:
(1) The worker's knowledge, skills, abilities, educational
background, work experience, and financial resources are adequate to
undertake and complete the specific training program being considered.
(2) Any initial assessment, comprehensive and specialized
assessment, and IEP developed under subpart C of this part must be
consulted to support the trade-affected worker's ability to undertake
and complete the training program.
(3) Where the worker's remaining available weeks of UI and TRA
payments will not equal or exceed the duration of the training program,
that the worker will have sufficient financial resources to support
completion of the training program within the time limits noted in Sec.
618.615(d). In making this determination, the State must consider:
(i) The worker's remaining weeks of UI and TRA payments in relation
to the duration of the proposed training program;
(ii) Other sources of income support available to the worker,
including severance, earnings of other family members, and other family
resources;
(iii) Other fixed financial obligations and expenses of the worker
and family;
(iv) The availability of Federal student financial assistance or any
State-funded student financial assistance or any private funding
designated for student financial assistance including, but not limited
to, nongovernmental scholarships, awards, or grants; and
(v) Whether or not the worker is employed while attending training.
(4) The State must document whether or not the trade-affected worker
has sufficient financial resources to complete the training program that
exceeds the duration of UI and TRA payments.
(5) If a worker has insufficient financial resources to complete the
worker's proposed training program that exceeds the duration of UI and
TRA payments, then the State must not approve that training program and
must instead consider other training opportunities available to the
worker.
(f) Criterion 6. Such training is suitable for the trade-affected
worker and available at a reasonable cost.
(1) Suitable for the worker. The training program being considered
must address the criteria set out in paragraphs (e)(1) and (2) of this
section and be determined by the State to be appropriate given the
worker's knowledge, skills and abilities, background, and experience
relative to the worker's employment goal, and criteria set out in
paragraph (c) of this section.
(2) Available at a reasonable cost. (i) Costs of a training program
may include, but are not limited to, tuition and related expenses (e.g.,
books, tools, computers and other electronic devices, internet access,
uniforms and other training-related clothing such as goggles and work
boots, laboratory fees, and other academic fees required as part of the
approved training program) as well as supplemental assistance
(subsistence expenses and transportation expenses as described in Sec.
618.640(c) and (d)). States must pay the costs of initial licensing and
certification tests and fees where a license or certification is
required for employment.
(A) The State must ensure and document that the training program
costs are reasonable by researching costs for similar training programs,
whether it is classroom or work-based training.
(B) Related expenses must be necessary for the worker to complete
the training program. Other options should be explored before purchasing
equipment or related materials.
(ii) Available at a reasonable cost means that training must not be
approved at one provider when, all costs being considered, training
better or substantially similar in quality, content, and results can be
obtained from another provider at a lower total cost within a similar
time frame. Training
[[Page 153]]
must not be approved when the costs of the training are unreasonably
high in comparison with the average costs of training other workers in
similar occupations at other providers. The State may approve a higher
cost training if that training is reasonably expected to result in a
higher likelihood of employment, employment retention, or greater
earnings, or to return the worker to employment in a significantly
shorter duration.
(iii) Training at facilities outside the worker's commuting area
requiring transportation or subsistence payments that add substantially
to the total cost of the training program may not be approved if other
appropriate training is available in the commuting area at a lower cost,
unless the exception described in paragraph (f)(2)(ii) of this section
applies.
(iv) Approval of training under paragraph (f) of this section
(Criterion 6) is also subject to the provisions of Sec. 618.650.