[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 906-945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16]


[[Page Unknown]]

[Federal Register: January 6, 1994]


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Part IV





Department of Labor





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Employment and Training Administration



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20 CFR Part 617




Trade Adjustment Assistance for Workers; Amendment of Regulations; 
Final Rule
DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 617

RIN: 1205-AA72

 
Trade Adjustment Assistance for Workers; Amendment of Regulations

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule; request for comments.

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SUMMARY: This document contains a final rule amending the regulations 
on trade adjustment assistance for workers which implement the 1988 
Amendments to the Trade Act of 1974 as contained in the Omnibus Trade 
and Competitiveness Act of 1988. This action will update the 
regulations and will provide uniform instructions to State agencies in 
carrying-out their responsibilities under the Trade Act. These State 
agencies act as agents of the United States for the purpose of 
providing adjustment assistance benefits and services to adversely 
affected workers. Comments are requested on the several material 
changes being made in this final rule, which differ from the September 
1988 proposed rule, and on a number of other changes which were not 
included in the proposed rule.

DATES: Effective date: February 7, 1994.
    Comment date: Comments on the material changes, from the proposed 
rule to this final regulation, are invited and must be received in the 
Department on or before February 22, 1994.

ADDRESSES: Written comments on the changes in the regulations, on which 
comments are invited, may be mailed or delivered to the Office of Trade 
Adjustment Assistance, Employment and Training Administration, 200 
Constitution Avenue NW., room C-4318, Washington, DC 20210.
    All comments received will be available for public inspection 
during normal business hours in Room C-4318 at the above address.

FOR FURTHER INFORMATION CONTACT: Marvin M. Fooks, Director, Office of 
Trade Adjustment Assistance, 200 Constitution Avenue NW., Washington, 
DC 20210. Telephone: (202) 219-5555 (this is not a toll free number).

SUPPLEMENTARY INFORMATION:

In General

    The Trade Act of 1974 made major changes to the trade adjustment 
assistance program (hereafter ``TAA program'') for workers displaced 
because of increased imports of articles like or directly competitive 
with articles produced by the workers' firm. On receiving a petition 
for trade adjustment assistance (hereafter ``TAA'') from a group of 
workers or its authorized representative, the Department conducts a 
factfinding investigation in response to the petition. If the findings 
substantiate that the workers of a firm or subdivision of a firm have 
been adversely affected by import competition, a certification is 
issued stating that the workers are eligible to apply at a local office 
of a State employment security agency for TAA benefits.
    The 1981 Amendments to the Trade Act of 1974 (Title XXV of Pub. L. 
97-35) made extensive changes in the TAA program. Further changes were 
made in the 1984 Amendments (Sections 2671 and 2672, of Pub. L. 98-369) 
and in the 1986 Amendments (Part 1 of Subtitle A of Title XIII of Pub. 
L. 99-272). Final regulations implementing the 1986 Amendments were 
published in the Federal Register on August 24, 1988, at 53 FR 32344, 
and on May 23, 1989, at 54 FR 22277.
    The 1988 Amendments to the TAA program are contained in Part 3, 
Trade Adjustment Assistance, of subtitle D of title I of the ``Omnibus 
Trade and Competitiveness Act of 1988'' (Pub. L. 100-418) (hereafter 
the ``OTCA''). The 1988 Amendments expand eligibility for TAA to 
workers in the oil and natural gas industry engaged in exploration and 
drilling; require detailed information about TAA program benefits to be 
given to every individual who files an initial claim for unemployment 
benefits, and further require an individualized notice to every worker 
believed to be covered by a certification issued by the Department; 
require publication of a notice of the certification in a newspaper of 
general circulation; require a worker to participate in training as a 
condition for receiving basic trade readjustment allowances (hereafter 
``TRA''); authorize the waiver of the training requirement for a worker 
when training is not feasible or appropriate; authorize the payment of 
basic and additional TRA to a worker during breaks in training that do 
not exceed 14 days; reinstate the movable eligibility period for basic 
TRA, based on the worker's most recent qualifying (total) separation 
rather than the first qualifying separation as was previously required; 
extend the expiration date of the TAA program to September 30, 1993; 
emphasize coordination with programs and services to dislocated workers 
provided under title III of the Job Training Partnership Act; and make 
other changes.
    While most of the provisions of Part 3 affecting the TAA program 
are in the form of amendments to Chapter 2 of Title II of the Trade Act 
of 1974, some provisions of Part 3 affecting workers do not amend 
existing law. Examples are the provision which permits workers in the 
oil and natural gas industry engaged in exploration or drilling, 
separated after September 30, 1985, to file petitions under new 
eligibility rules, and the provision concerning the eligibility of 
workers totally separated from adversely affected employment during the 
period beginning August 13, 1981, and ending April 7, 1986. The 
provisions of the 1988 Amendments became effective, in general, on 
August 23, 1988, except that the amendments to sections 231(a)(5), (b) 
and (c) took effect on November 21, 1988, and the amendment to Section 
225 took effect on September 22, 1988.
    Because many of the 1988 Amendments were effective on the date of 
their enactment into law, August 23, 1988, most notably the new 
``movable'' eligibility period for basic TRA, the Department issued 
interim Operating Instructions in General Administration Letter 
(hereafter ``GAL'') No. 7-88, dated September 12, 1988, which was 
published in the Federal Register on September 16, 1988, at 53 FR 
36180-36213, together with Training and Employment Information Notice 
(hereafter ``TEIN'') 6-88. GAL 7-88 and the two changes thereto were 
subsequently rescinded and replaced by GAL 15-90, dated August 21, 
1990. These GALs disseminated controlling guidance to the States on the 
administration of the TAA program as amended by the OTCA, pending the 
issuance of final amendments to the regulations. GAL 15-90 was 
published in the Federal Register on November 21, 1990, at 55 FR 48774-
48800, together with TEIN 13-90.
    Following the issuance of GAL 7-88, amendments to the regulations 
at 20 CFR part 617, implementing the 1988 Amendments, were proposed in 
a document published in the Federal Register on November 30, 1988, at 
53 FR 48474, with a comment period ending on December 30, 1988. 
Preparation of a final rule document, addressing the comments received, 
began after the end of the comment period. The need for other changes 
in the regulations was identified in light of the comments received, 
further reflection on the 1988 Amendments, and experience with the 
interim Operating Instructions. The most significant changes, resulting 
in the issuance of GAL 15-90 and in delaying the publication of this 
final rule document, were the changes in the interpretations of 
subsections (a) and (g) of Section 1430 of the OTCA, relating to the 
new ``movable'' eligibility period for basic TRA. This significant 
change, and other related changes, were announced in GAL 15-90.
    This final rule therefore includes substantive changes in the 
amendments to part 617 that were included in the proposed rule 
published on November 30, 1988. The most significant of these changes 
are the new interpretations of the effective dates of the 1988 
Amendments relating to the ``movable'' eligibility period for basic 
trade readjustment allowances (Secs. 617.3 and 617.11(a) (1) and (2)). 
This document also includes substantive changes to Part 617 that were 
not included in the published proposed rule, including sub-stantive 
changes that were announced in Changes 2 and 3 to GAL 15-90, relating 
to a complete revision of Sec. 617.26 and a change in Sec. 617.22(a). 
Many of these substantive changes resulted from a consideration of 
comments received on the proposed rule. Nonetheless, in the interests 
of keeping its rulemaking processes as open as possible, the Department 
is inviting public comments on these changes. Further changes are made 
in Secs. 617.3, 617.11(a), 617.15(b) and (d), 617.16, 617.19(b), 
617.21, 617.22(f), 617.33, 617.44, 617.50(d), 617.55, 617.60 and 
617.64, which are related to the revision of Sec. 617.26 or for other 
reasons as explained below. Conforming changes are also made in 
Sec. 617.67.
    The effective date of all of the substantive changes in the statute 
and the regulations that are announced in any GAL (or change thereto) 
is the same as the effective date of the amendment(s) to which the GAL 
pertains, but any substantive change in GAL operating instructions 
applies, unless stated otherwise, in the case of all decisions made 
after the date of issuance of the GAL (or change thereto) by the 
Department. However, all of the substantive changes noted below in 
items A through R are subject to an opportunity for comment after 
publication of this final rule. After the end of the comment period, 
and consideration of any comments received, another final rule document 
will be published relating to these substantive changes.
    Substantive changes in the interpretations of the 1988 Amendments 
which are addressed below relate primarily to the effective date and 
application of the new eligibility period for basic TRA, but also 
relate to other provisions of the OTCA, the Trade Act of 1974 and 
section 106(a) of Public Law 102-318 which amends section 231(a)(2) of 
the Trade Act, as discussed below.
    The Department's new interpretations center on the effective date 
provisions of subsections (a) and (g) of Section 1430 of the OTCA. 
These new interpretations are discussed in detail in paragraph A, 
below.

Good Cause Exception

    The Department has determined, pursuant to 5 U.S.C. 553 (b)(B), 
that good cause exists for publication in final of the substantive 
changes in this document, because all of such changes are essential to 
the proper administration of the TAA program by the States, and such 
changes either relieve a restriction, and have been previously 
announced in controlling operating instructions issued to the States, 
or relate primarily to procedural relationships between and among the 
States. In addition, because of the delays encountered in issuing this 
final rule, any further delay in putting these substantive changes into 
effect would be impractical and contrary to the public interest. As 
explained above, comments are invited and will be considered, after 
which a final rule will be published. In the meantime, public 
implementation of these substantive changes as final regulations will 
not be delayed further.
    In the following text, therefore, substantive changes, on which 
comments are requested, are addressed first. These changes are followed 
by a discussion of the comments received on the proposed rule published 
on November 30, 1988.

Substantive Changes from November 30, 1988 Proposed Rule

    The substantive changes noted under this heading are either changes 
in the amendments to part 617, as published on November 30, 1988, or 
changes in other sections of Part 617 that were not included in the 
proposed rule. These substantive changes also include conforming 
changes in the transition provisions of Sec. 617.67.
    Comments are requested on all of these substantive changes, after 
which a final rule document on such changes will be published.

A. New Eligibility Period for Basic TRA

    Section 1425 (a) of the OTCA amended section 233(a)(2) of the Trade 
Act of 1974 to reinstate the ``movable'' eligibility period for basic 
TRA. Section 1430(a) of the OTCA made this amendment effective on the 
date of enactment, August 23, 1988, and section 1430(g) of the OTCA 
provided that amended section 233(a)(2) would not be applied in certain 
circumstances if it would result in an earlier expiration date of a 
worker's eligibility period established on the basis of the prior law.
    In the proposed rule published on November 30, 1988 (53 FR 48474) 
(as well as in Section 4.F.1. of GAL 7-88), Section 1430(a) was 
interpreted as making this amendment applicable to any total qualifying 
separation which occurred on or after August 23, 1988. The limitation 
in section 1430 (g) was interpreted as applying with respect to any 
such total qualifying separation if it would result in an earlier 
expiration date of the eligibility period of a worker based on the 
prior law and a first qualifying separation which occurred before 
August 23, 1988.
    In GAL 15-90, issued on August 21, 1990, the Department announced 
that, in conjunction with the development of final regulations 
implementing the 1988 Amendments, the Department determined that the 
previously published interpretations of the effective date provisions 
in the proposed rule published on November 30, 1988, were in error. The 
same erroneous interpretations were contained in GAL 7-88, and this 
fact necessitated the issuance of revised operating instructions in GAL 
15-90, which was published in the Federal Register on November 21, 
1990, at 55 FR 48774.
    Subsection (a) of section 1430 of the OTCA provides that: ``Except 
as otherwise provided by this section, the amendments made by this part 
shall take effect on the date of enactment of this Act.'' Subsection 
(a) thus applied to, among others, the amendment to section 233(a)(2) 
of the Trade Act of 1974, which prescribes the eligibility period for 
basic TRA. In the proposed rule and in GAL 7-88, the amendment to 
section 233(a)(2) was interpreted as being applicable to separations 
which occurred on or after the date of enactment of the OTCA, August 
23, 1988.
    In the new interpretations announced in GAL 15-90, section 1430(a) 
was interpreted as applying to all decisions (i.e., all determinations, 
redeterminations, and decisions on appeals) made on and after August 
23, 1988.
    The Department concluded, and announced in GAL 15-90, that amended 
section 233(a)(2) should be applied to all decisions rendered on or 
after August 23, 1988, regardless of whether they involved initial 
determinations of TRA eligibility, redeterminations, or decisions on 
appeal.
    The Department also stated in GAL 15-90 that the new interpretation 
of section 1430(a) is supported by the analysis and construction placed 
on subsection (g) of section 1430, and by the general principle of law 
known as the law-in-effect rule. Under the law-in-effect rule, the law 
to be applied in making any decision is the law in effect at the time 
the decision is made. In GAL 15-90, this law-in-effect rule was 
determined to be applicable to the new interpretations and the 1988 
Amendments.
    Subsection (g) of section 1430 provides that the amendment to 
section 233(a)(2) ``shall not apply with respect to any total 
separation of a worker * * * that occurs before the date of enactment 
of this Act if the application of such amendment with respect to such 
total separation would reduce the period for which such worker would 
(but for such amendment) be allowed to receive'' basic TRA. In the 
proposed rule and in GAL 7-88, section 1430(g) was interpreted as 
limiting the application of amended section 233(a)(2) to total 
separations which occurred on or after August 23, 1988, where the 
result otherwise achieved would be an earlier expiration date of the 
eligibility period of a worker established on the basis of the prior 
law and a first qualifying separation which occurred before August 23, 
1988.
    In the new interpretations announced in GAL 15-90, section 1430(g) 
was interpreted literally as applying only to total separations that 
occurred before August 23, 1988, and the limitation in section 1430(g) 
thus applies only to such prior separations.
    A consequence of this new interpretation of section 1430(g) is 
that, if the application of amended section 233(a)(2) to a total 
separation prior to August 23, 1988, would result in extending the 
worker's eligibility period, the amended section 233(a)(2) shall be 
applied. Conversely, amended section 233(a)(2) shall be applied to 
total separations which occur on and after August 23, 1988, regardless 
of whether it would result in an earlier expiration date of the 
worker's eligibility period based upon a first qualifying separation 
which occurred before August 23, 1988.
    Section 1430(g) is not applicable, however, to a ``first qualifying 
separation'' which occurs before August 23, 1988. It is on the basis of 
such a first qualifying separation that a worker would have a longer 
eligibility period ``but for'' the amendment to section 233(a)(2). To 
preserve a longer eligibility period, and thereby give effect to the 
limitation in section 1430(g), therefore, such limitation could not 
logically be made applicable to such a first qualifying separation.
    A more extensive explanation and justification for the new 
interpretations affecting amended section 233(a)(2) was set forth in 
GAL 15-90, and in Attachment A and Section F.1. of GAL 15-90. That 
explanation and justification was published in the Federal Register, at 
55 FR 48774, 48778, 48782, and 48789 (November 21, 1990).
    The new interpretations require substantive changes in the final 
rule, particularly in the definitions of ``eligibility period'' and the 
various types of ``separation'' defined in Secs. 617.3(m) and 617.3(t), 
as well as in the transition provisions in Sec. 617.67. Other 
conforming changes are made throughout the document, including the 
deletion of clause (D) in Sec. 617.11(a)(2)(iii).

B. Other Applications of New Interpretations

    The new interpretation of section 1430(a) and the law-in-effect 
rule also affect other amendments to which section 1430(a) applies. 
These include--
     OTCA Section 1421(a)(1)(B)--Sec. 617.11(a)(4) Special 
rules for oil and gas workers--retroactive. (Section A.2. of Attachment 
A to GAL 15-90);
     Trade Act Section 233(b)--Sec. 617.15 (Section E.4. of 
Attachment A to GAL 15-90);
     OTCA Section 1425(b)--Sec. 617.11(a)(3) Special rules for 
workers separated in 1981 to 1986 period. (Section F.2. of Attachment A 
to GAL 15-90).
    A more extensive explanation and justification for the application 
of the new interpretations to these provisions was set forth in GAL 15-
90 and Attachment A thereto.
    The Department also has decided that the 1988 Amendments relating 
to sections 231(a)(5), 231(b), and 231(c) of the Trade Act, which, 
under section 1430(f) of the OTCA, took effect 90 days after the date 
of enactment (i.e., on November 21, 1988), are not affected by the new 
interpretation of section 1430(a). Although the effective date language 
of section 1430(f) is the same as the effective date language of 
section 1430(a), the Department has determined that the application of 
the new interpretation to these provisions would cause manifest 
injustice to affected workers and also would appear to be contrary to 
the intent of the Congress and the logic of the 90-day delay in the 
effective date of these amendments. This is more fully explained in GAL 
15-90 and Attachment A.

C. Changes to Sec. 617.11(a)(2)(iii)(B) (1) and (2)

    Section 106(a) of Public Law 102-318 amended section 231(a)(2) of 
the Trade Act of 1974 by adding a new paragraph (D) to the categories 
which are considered a week of adversely affected employment at wages 
of $30 or more a week in order to qualify for TRA. The new subparagraph 
(D) provides that any week a worker is on call-up for active duty in a 
reserve status in the armed forces, provided such active duty is 
``Federal service'' as defined in 5 U.S.C. 8521(a)(1), shall constitute 
a week in meeting the TRA qualifying requirements of section 231(a)(2) 
of the Trade Act of 1974. Section 106(a) also clarifies that not more 
than 26 weeks described in subparagraphs (B) or (D) of section 
231(a)(2) of the Trade Act may be used for TRA qualifying purposes.
    This means that all of the required employment and wages necessary 
to qualify for TRA may be attained during a reservist's call-up to 
active duty. This amendment only affects the TRA qualifying requirement 
in section 231(a)(2); all other TRA qualifying requirements in section 
231 are unchanged. Therefore, State agencies must also determine if a 
reservist meets the remaining TRA qualifying requirements contained in 
section 231 of the Trade Act before awarding TRA entitlement to the 
reservist.
    In determining the worker's qualifying weeks at wages of $30 or 
more a week for TRA qualifying purposes, the amendment to section 
231(a)(2) of the Trade Act applies to weeks beginning after August 1, 
1990. The effective date of this amendment results in a retroactive 
application to TRA claims filed (or which would have been filed) by 
reservists who took part in Operations Desert Storm and Desert Shield. 
This means that State agencies must redetermine the TRA initial claims 
of all reservists called-up for active duty whose claims were denied 
solely because they did not meet the requirements of section 231(a)(2) 
of the Trade Act as in effect prior to the enactment of this amendment. 
State agencies must also take TRA initial claims of reservists who did 
not previously file a TRA initial claim because they did not meet the 
requirements of section 231(a)(2) as in effect prior to the enactment 
of this amendment.
    Operating instructions issued to State agencies in GAL No. 10-92, 
Operating Instructions to section 231(a)(2) of the Trade Act of 1974 
Contained in H.R. 5260, dated July 6, 1992, explained the changes to 
section 231(a)(2) of the Trade Act and instructed State agencies and 
cooperating agencies to take the appropriate actions to identify and 
inform reservists of their rights to redetermination or the opportunity 
to file TRA initial claims. Actions by State agencies include a search 
of claimant files and publication of information on this new provision 
in newspapers of general circulation and other appropriate media.
    Accordingly, a new clause (iv) is added to 
Sec. 617.11(a)(2)(iii)(B)(1) and clause (ii) in 
Sec. 617.11(a)(2)(iii)(B)(2) is changed to implement these amendments 
to section 231 (a)(2) of the Trade Act.

D. Change to Sec. 617.11(a)(3)(i)(E)

    Section 1425(b) of OTCA provides eligibility for TRA to certain 
workers who were continuously unemployed since separation from 
adversely affected employment during the period from August 13, 1981 to 
April 7, 1986, not taking into account seasonal employment, odd jobs, 
or part-time, temporary employment. This provision opened up 
eligibility to workers who could not qualify for additional weeks of 
TRA because they did not meet the 210-day time limit for filing for 
training and to workers who did not receive all of their TRA 
entitlement because their eligibility period was based on their first 
rather than their most recent separation. In the proposed rule, general 
guidance was provided to State agencies on ``continuously unemployed'' 
but State agencies were allowed to apply the provisions using their 
expertise in determining eligibility relating to employment. However, 
the Department decided that it was essential to provide State agencies 
with guiding instructions for implementing section 1425(b)(2)(A) (ii) 
of the OTCA so that the Department, rather than States, defines the 
limits of the Federal liability. Accordingly, definitions to be used in 
applying the terms ``seasonal employment'', ``odd jobs'' and ``part-
time, temporary employment'' are added in a new clause (2) in 
Sec. 617.11(a)(3)(i)(E). Because precise definitions were not available 
for each of these terms, definitions were developed for purposes of 
this final rule from various sources and other program applications. 
The seasonal provision of applicable State law is used in applying the 
``seasonal employment'' provision. A definition for ``odd jobs'' was 
developed in which the established period of employment occurs within 5 
days or less. The definition for ``part-time'' is taken from the ETA 
Glossary of Program Terms and Definitions (ETA Handbook No. 373), which 
provides for less than 30 hours per week of regularly scheduled work. 
However, that definition has to be applied along with ``temporary 
employment.'' The definition for ``temporary employment'' is based on 
ETA reporting requirements for the public employment service in which 
an established employment period of 150 days or less is used.

E. Change to Sec. 617.15(b)

    Amendments to Sec. 617.15 were included in the proposed rule 
published for comment on November 30, 1988. A further change in 
Sec. 617.15 was considered as a result of the reinstatement of the 
movable eligibility period for basic TRA. This change was to base the 
210-day period for filing an application for training, in order to 
qualify for up to 26 weeks of additional TRA, on the worker's most 
recent partial or total separation from employment under the 
certification, rather than within 210 days after the date of the first 
qualifying separation. This change reinstates the rule that was 
applicable prior to the 1981 Amendments, when the eligibility period 
was movable, and was adopted with the issuance of Change 2 to GAL 7-88, 
dated May 22, 1989. In view of the new interpretation of section 
1430(a), and the law-in-effect rule, a further change was made in the 
interpretation and application of the 210-day rule, which was announced 
in GAL 15-90. The new interpretation applies to all decisions (i.e., 
determinations, redeterminations, and decisions on appeals) which are 
made after the date of issuance of GAL 15-90, on August 21, 1990. (See 
GAL 15-90 and section E.4 of Attachment A). These changes are 
incorporated in Sec. 617.15(b) of this final rule.

F. Change to Sec. 617.15(d)

    The proposed rule was published for comment on November 30, 1988. 
At that time, the Department had concluded that days ``in which 
training would not normally be scheduled'' should not be counted as 
part of a scheduled break in training. Initially, the Department 
limited the exclusion to Saturdays and Sundays, if training in the 
applicable training program would not normally be conducted on those 
days. In GAL 7-88, and Change 1 to GAL 7-88, the Department interpreted 
section 233(f) of the Trade Act as excluding certain weekend days and 
holidays in counting the days of a break in training. GAL 7-88 and 
Change 1 were unclear, however, whether the exclusion of holidays 
included both National and State holidays. On further consideration, 
the Department agreed that all officially recognized National and State 
holidays should be excluded in counting the days of a break in 
training, to the extent that training in the applicable training 
program would not normally be scheduled on those days if they did not 
occur during the break. This change was adopted with the issuance of 
GAL 15-90 and is applicable to all decisions (i.e., all determinations, 
redeterminations, and decisions on appeals) which are made on or after 
August 23, 1988, regardless of when the training was approved under 
section 236 of the Trade Act, or whether the training was approved or 
is approvable under section 236 as amended by the 1988 Amendments, or 
when the break in training began or ended. In making decisions under 
Sec. 617.15(d), the law to be applied is the law as in effect on the 
date the decision is made, and this rule has applied since the issuance 
of GAL 15-90 on August 21, 1990. Decisions previously made under prior 
operating instructions are subject to redetermination in accordance 
with State law, as set forth in section 4.b. of GAL 15-90.
    In order to clarify what constitutes a ``break in training'' for 
purposes of section 233(f), a new clause (2) is added to Sec. 617.15(d) 
defining a break in training as including all periods within or between 
courses, terms, quarters, semesters and academic years, whether or not 
such breaks are scheduled by the training provider.
    Clauses (2) through (5) of Sec. 617.15(d) are renumbered (3) 
through (6).

G. Revision of Sec. 617.16

    Section 234 of the Trade Act of 1974 specifies the State law 
provisions that shall be applicable to claimants for TRA purposes, and 
Sec. 617.16 distills the provisions of section 234 in a definition of 
``applicable State law.'' Section 617.16 is now being revised for two 
essential reasons. The first reason is to include in the definition the 
situation of the worker who is not entitled to UI after separation from 
adversely affected employment, as is provided for in Section 234. This 
had not seemed relevant after the 1981 Amendments, because of the 
addition in section 231(a)(3) of the eligibility requirement that the 
worker must be entitled to and have exhausted all UI. The 1988 
Amendments, however, have prompted rethinking of the roles and 
responsibilities of the States in the administration of the TAA 
program, and particularly of the role of the ``applicable State'' 
(i.e., the State whose law is the applicable State law) in the case of 
TAA program benefits other than TRA. Accordingly, the definition of 
``applicable State law'' is broadened so that it is a useful reference 
point for all TAA program benefits. While providing a useful reference 
point, there is no intent in revising Sec. 617.16 to suggest that an 
individual who is not entitled to UI after a qualifying separation from 
adversely affected employment may be entitled to TRA.
    The second reason for revising Sec. 617.16 is to conform 
Sec. 617.16 to the revision of Sec. 617.26, relating to the roles and 
responsibilities of the States as liable States and agent States in the 
administration of the TAA program. As discussed below, Sec. 617.26 is 
revised to incorporate the Department's thinking as set out in Change 2 
to GAL 15-90. In this connection, consideration was given to including 
in Sec. 617.16 the definition of ``applicable State'' which is set 
forth in Change 2. Upon further consideration, however, it was decided 
that the definition of ``applicable State law'' furnished the most 
useful reference point for all purposes of the TAA program, and that a 
special definition of ``applicable State'' is neither necessary nor 
useful.
    Accordingly, Sec. 617.16 is revised to track more closely Section 
234, and to serve as a useful reference point for all of the purposes 
of the TAA program. The section also is modified to make it clear that 
the UI entitlement referred to is that which immediately follows a 
qualifying separation from adversely affected employment, and not UI 
entitlement in some past period, however recent or remote it may have 
been.

H. Revision of Sec. 617.19(b)(1)(i)(B) and (b)(2)(ii)(A)

    Clause (A) of Sec. 617.19(b)(2)(ii) explains that training is not 
appropriate when the firm from which the individual was separated plans 
to recall the individual within the ``reasonably foreseeable future''. 
Also, Sec. 617.19(b)(1)(i)(B) defines ``appropriate'' as including 
whether there is a reasonable prospect which is reasonably foreseeable 
that the individual will be reemployed by the separating firm. These 
provisions are consistent with Sec. 617.22(a)(1)(ii) on conditions for 
approval of training when there is reasonable prospect of suitable work 
within the foreseeable future. (See item 43 below.)
    While it is reasonable to deny training under Sec. 617.22 (a) to a 
worker who is scheduled for recall, there is an identified need to 
provide additional guidance in the regulations on the application of 
the term ``recall that will occur in the reasonably foreseeable 
future'', for purposes of administering Secs. 617.19(b)(1)(i)(B) and 
(b)(2)(ii)(A). These regulations are consistent with the 
Administration's position to tighten waivers. Publication of these 
regulations will improve efficiency in utilizing waivers. This moves 
the current TAA program in to closer alignment with the Transitional 
Adjustment Assistance provisions of NAFTA. Therefore, this section is 
being amended by adding a new clause (2) to Secs. 617.19(b)(2)(ii)(A), 
for use in approving training and granting waivers. Clause (2) provides 
guidance on two types of planned recalls. The first type is a specific 
recall where an individual or group of individuals who was separated 
from employment is identified and notified by the employer to return to 
work within a specified time period. In this situation an individual 
would not be approved for training and a waiver of the training 
requirement would be granted for purposes of receiving basic TRA.
    The second type is a general recall where the employer announces an 
intention to recall an individual or group of individuals, or by other 
action reasonably signals an intent to recall, but does not specify a 
certain time period in which the recall will occur. In this situation, 
if the recall in each individual case is reasonably expected to occur 
after the individual would exhaust his or her eligibility for regular 
UI associated with the most recent total separation that is within the 
TAA certification period, the individual would be treated as any other 
individual who was separated from adversely affected employment and the 
participation in training requirement would be applied.

I. Revision of Sec. 617.21

    Section 617.21 describes the activities that are included as 
reemployment services and allowances. Paragraph (e) of this section is 
revised to add child care as a support service. This revision is made 
to eliminate any uncertainty that child care is a support service and 
that the costs for such service may not be charged as a related cost of 
training and paid with TAA program funds. See also the Department's 
response to item 47 below.
    Paragraph (g) of this section is also revised to reflect the 1988 
Amendment to section 236 of the Act which added remedial education as 
being approvable as classroom training. Training designed to enhance 
the employability of individuals by upgrading basic skills, through 
remedial education or English-as-second-language courses, are 
considered as remedial education approvable under Sec. 617.22(a) if all 
the approval criteria in that section are met. A training program of 
remedial education only may now be approved for an individual if he or 
she possesses occupational skills and needs only remedial education to 
obtain employment. Ordinarily, remedial education is made part of a 
broader skills training program as defined in Sec. 617.22(f) (3).

J. Revision of Sec. 617.22(a)(5)

    Section 617.22(a) lists six criteria that must be met for approval 
of training. These are intended to assure that training will lead to a 
specific occupational goal. Clause (5) of Sec. 617.22(a) deals with a 
worker's personal qualifications to undertake and complete such 
training. The Department's interpretation of this clause has been 
changed to add ``financial resources'' to those personal 
qualifications, and this change is included in amended 
Sec. 617.22(a)(5).
    Change 3 to GAL 15-90, dated July 17, 1991, (56 FR 46331, 46333), 
announced a change in the definition of the criterion for approval of 
training in Section 236(a)(1) (E) of the Act, by adding ``financial 
resources'' to the existing physical and mental qualifications which 
must be reviewed in making a determination that a worker is able to 
undertake and complete training, as set out for criterion (E) in 
Section G.1. of Attachment A to GAL 15-90 and incorporated in this 
final rule. This change was made to enhance the worker's ability to 
complete training by stressing that the duration of approved training 
should be commensurate with the worker's financial resources.
    Training may be approved for a duration not to exceed 104 weeks 
under a single certification, as limited in amended Sec. 617.22(f)(2). 
However, combined UI and TRA entitlement is available to workers for a 
maximum of 78 weeks. When the duration of training exceeds the 
remaining weeks of UI and TRA payments, a worker's income support may 
end or be substantially reduced before completing the approved training 
program. This situation often results in workers dropping out of 
training.
    The amended Sec. 617.22(a)(5) will require State agency staff to 
explain to workers seeking approval of training in which the duration 
of training exceeds their remaining weeks of UI and TRA payments, that 
in the absence of other financial resources such training may not be 
appropriate. When the worker's financial resources are not commensurate 
with a training program suitable to the worker, the training 
requirement may be waived under Sec. 617.19(b)(2)(ii)(B).

K. Revision of Sec. 617.22(f)

    An individual who satisfies the six criteria for approval of 
training in Sec. 617.22(a) may be enrolled in a training program that 
does not exceed 104 weeks in length. (See Sec. 617.22(f)(2).) Inquiries 
were received on whether an individual may pursue more than one 
training program under a single certification or whether training under 
a certification is limited by the 104-weeks time provision. To 
eliminate any uncertainty on this matter, clause (2) on length of 
training has been revised to state more clearly that the maximum 
duration for any approvable training program is 104 weeks and no 
individual shall be entitled to more than one training program under a 
single certification.
    For purposes of part 617, a new clause (3) is added to 
Sec. 617.22(f), which provides a definition for a ``training program''. 
Subclause (i) of clause (3) provides that a training program may 
consist of a single course or a group of courses designed and approved 
by the State agency for an individual to meet a specific occupational 
goal. Subclause (ii) of clause (3) authorizes State agencies to amend 
an individual's approved training program, when the duration of 
training is less than 104 weeks, to add a course or courses designed to 
satisfy unforeseen needs, such as the need for remedial education or 
specific occupational skills. However, the amended training program may 
not exceed the 104-week time limitation in clause (2).
    Clause (4), previously clause (3), is amended to clarify that the 
hours in a day and the days in a week an individual attends an approved 
training program must be full time commensurate with the standards of 
the training facility. The purpose of this amendment is to ensure that 
hours of training per week and length of the training program are 
scheduled in a manner that the individual will develop the skills 
needed to achieve a specific occupational goal in a reasonable time 
period and at a reasonable cost. Any week in which training is less 
than full time will still count as a full week for the purposes of the 
104-week limitation.

L. Revision of Sec. 617.26

    Section 617.26, entitled ``Approval of other training including 
interstate,'' was not among the sections of regulations proposed to be 
amended in the proposed rule published on November 30, 1988. However, 
rethinking occasioned by the 1988 Amendments led to the conclusion that 
there is a need to clarify, and in some respects alter, the roles and 
responsibilities of liable States and agent States in the 
administration of the TAA program. Among the OTCA amendments that 
caused such rethinking were those making training an entitlement and an 
eligibility requirement for basic TRA, and the provisions of amended 
section 231(c) on training waivers. In addition, comments received on 
related sections of the proposed regulations were considered in 
reaching this conclusion. The redescription of liable State and agent 
State roles and responsibilities was announced in Change 2 to GAL 15-
90, which was published at 56 FR 46331, 46332.
    The present Sec. 617.26, written in 1975, provides that the agent 
State shall be responsible for the selection and approval of training, 
and will pay any training related costs, and that the liable State is 
responsible for determining eligibility for TRA, job search and 
relocation allowances, and may approve and purchase training provided 
that certain conditions are met. Although the respective roles of the 
liable and agent States were spelled out, the section was silent on the 
legal relationships and the appellate authority in the case of 
determinations made by the agent State. In addition, there were some 
overlapping responsibilities relative to training approval and payment 
of training costs. The regulations as revised in this document address 
these issues and, in general, deal more comprehensively with the roles 
and responsibilities of liable and agent States in administering the 
TAA program. Accordingly, Sec. 617.26 is retitled ``Liable and agent 
State responsibilities'' and the roles of liable and agent States are 
delineated.
    After examining State practices, as affected by the OTCA 
amendments, the Department has concluded that, as a general rule, the 
agent State should continue to be responsible for procuring and paying 
for TAA approved training and related costs, including subsistence and 
transportation, as appropriate. In addition, the agent State shall 
assist the liable State in fulfilling its responsibilities for making 
determinations of entitlement to all TAA program benefits. These 
changes are reflected in revised Sec. 617.26.
    Another significant change in Sec. 617.26 is in making the liable 
State responsible for all determinations, redeterminations, and 
decisions on appeals pertaining to any worker's eligibility for or 
entitlement to any TAA program benefit under Part 617. This includes 
determinations relating to training approval, disapproval, waivers and 
revocation of waivers for training, and training related costs 
including subsistence and transportation. This requirement will 
preclude due process objections which could be raised if workers were 
required to appeal some issues under the agent State law and other 
issues under the liable State law. Responsibility for selection and 
approval of training no longer resides in the agent State, as is 
provided in the present rule.
    However, a liable State and an agent State may jointly agree to 
modify this rule with respect to their TAA administrative functions, 
but any such change must comply with the legal requirement that all 
determinations will be under the authority of the liable State, and all 
appeals by individuals will be under the law of the liable State. 
Further, prior approval for any such modification must be obtained 
under Sec. 617.54. (See also Secs. 617.33 and 617.44, below.)
    Additionally, in those situations where two or more States share a 
common labor market area and workers commute across State lines for 
work, those States may wish to develop cooperative arrangements, 
consistent with revised Sec. 617.26, and approved under Sec. 617.54, to 
provide TAA ser-vices to adversely affected workers in the area.
    The definition of ``liable State'' at Sec. 617.3(aa) is also 
revised to conform with changes in Secs. 617.16, 617.26, 617.33 and 
617.44, and a definition is added for ``agent State''. (The term 
``applicable State,'' which is defined and used in Change 2 to GAL 15-
90, is not used in this final rule. It was decided that the terms 
``liable State'' and ``agent State,'' and the definition of 
``applicable State law'' in Sec. 617.16 were adequate to cover the 
rules associated with interstate responsibilities without adding a 
further definition of ``applicable State.'')
    As revised in this final rule, Sec. 617.26 comprehensively 
addresses the roles and responsibilities of liable States and agent 
States in interstate cases, clarifies the legal and appellate 
relationships among the States, and assures due process for workers and 
conformance with section 239(d) of the Act. With this revision, and 
other changes in the rules, there is consistency among the regulations 
in addressing State responsibilities: Sec. 617.16 covers applicable 
State law; Sec. 617.20 addresses State responsibilities for the 
delivery of reemployment services, in general; Sec. 617.33 addresses 
findings required before final payment of a job search allowance is 
made by the liable State; Sec. 617.44 addresses findings required 
before final payment of a relocation allowance is made by the liable 
State; and Secs. 617.50 and 617.51 speak to determinations of 
entitlement, and appeals and hearings under the applicable State law, 
respectively.
    A conforming change is made in Sec. 617.50(a) by striking the 
clause ``, or the State agency as provided in Sec. 617.26(d),''.

M. Revision of Sec. 617.33

    Section 617.33 prescribes the findings required before final 
payment of a job search allowance is made to an eligible worker by the 
liable State. It describes the responsibilities of liable and agent 
States in regard to those findings. This section is revised to 
delineate more clearly the responsibilities of liable and agent States 
for determinations (and appeal rights) regarding job search allowances.

N. Revision of Sec. 617.44

    Section 617.44 prescribes the findings required before final 
payment of a relocation allowance is made to an eligible worker by the 
liable State. It describes the responsibilities of liable and agent 
States in regard to those findings. This section is revised to 
delineate more clearly the responsibilities of liable and agent States 
for determinations (and appeal rights) regarding relocation allowances.

O. Revision of Sec. 617.50(d)

    Section 617.50(d) contains the rules on the use of State law and 
regulations in making and reviewing determinations and redeterminations 
under part 617. Questions have arisen in at least two States whether 
the 210-day time limit in Sec. 617.15(b) (and section 233(b) of the 
Act) may be waived for good cause, or whether State law provisions on 
good cause for late filing of UI claims may be applied. The Department 
has consistently taken the position that such good cause provisions may 
not be applied, in view of the lack of authority for doing so in any 
provision of the Act or the regulations. Nevertheless, State 
authorities in one State have ruled a number of times that there can be 
good cause for late filing. And more recently, in a matter arising in 
another State, the Sixth Circuit Court of Appeals issued a decision 
adverse to the position of the Department. Because the Department 
believes that conclusions inconsistent with its longstanding position 
do not comport with the Act, it has decided to address the issue in a 
broad manner and state as clearly as possible in the regulations the 
precise situations in which State laws may be applicable in addressing 
issues arising under the regulations.
    The Sixth Circuit's decision started with the proposition that the 
Trade Act of 1974 was passed by the Congress ``during a mood of 
congressional largesse,'' and that the 210-day rule in section 233(b) 
of the Act ``was not intended to act as a jurisdictional prerequisite 
to additional TRA benefits.'' From this premise it reasoned that ``the 
purpose of the rule is to discourage dilatory'' conduct by applicants, 
and that absent a finding of dilatory conduct ``the application of the 
210-day rule does nothing to further the Act's remedial purpose and 
everything to frustrate it''. Citing another holding in the District of 
Columbia Circuit, the Sixth Circuit held that the Department's 
``interpretation makes sense only if there was a congressional policy 
in favor of limiting TRA benefits.'' The Sixth Circuit concluded that: 
``That court found no evidence of such a policy. Nor do we.'' From this 
line of reasoning the Sixth Circuit held that the State's ``waiver for 
good cause rule [is applicable] in this context''.
    The Department believes the Sixth Circuit erred in relying upon the 
``mood of congressional largesse'' in passing the 1974 Act, without 
taking into account the critical redirection in the 1981 amendments 
away from TRA and towards greater emphasis upon training (including 
changing the 233(b) rule from 180 days to 210 days), and the direct 
linkage in the 1988 Amendments of training and eligibility for basic 
TRA (as well as additional TRA). In this context, there is a sound 
reason for upholding the ``jurisdictional'' nature of the 210-day rule, 
and less reason for reaching out to State law for a good cause 
exception, as distinguished from fashioning an exception from the 
language of Section 233(b). For these reasons, the Department believes 
the Sixth Circuit's decision was incorrect. The Department is therefore 
moving to clarify the regulations to make its interpretation of the Act 
clearer.
    In considering where in the regulations the clarification of the 
Department's position should be made, the Department took into account 
the fact that there are other time limits expressed in the regulations, 
such as in Secs. 617.10(b), 617.31(c), 617.41(c), and 617.43(b). Since 
all such time limits may be vulnerable to the same deviations that 
occurred with respect to the 210-day time limit, it was decided that a 
general rule was needed that is applicable to all of part 617. The 
placement of this general rule thus fell logically in paragraph (d) of 
Sec. 617.50.
    Accordingly, paragraph (d) of Sec. 617.50 is amended to add the 
general rule that no provision of State law or regulations as to good 
cause for waiver of any time limit or for late filing of any claim 
shall apply in the case of any time limitation stated in part 617, 
unless such State law or regulation is made applicable by a specific 
provision of part 617. This change eliminates any uncertainty about the 
Department's position, and places a clear obligation on the States to 
adhere to the time limitations in all of part 617.

P. Revision of Sec. 617.55

    Section 243 of the Act, on Fraud and Recovery of Overpayments, is 
interpreted as being drawn in broad terms so as to impose liability for 
repayment of all improper payments under the Act, and to impose 
penalties for all false statements or representations resulting in 
improper payments. Subsection (a) imposes repayment liability upon any 
``person'' receiving an improper payment, whereas subsections (b) and 
(c) use the term ``individual'' in the fraud and recovery provisions. 
In Sec. 617.55, in contrast, the term ``individual'' is used throughout 
the liability, fraud, and waiver provisions of the regulations.
    Recent experience in the administration of the TAA program has 
highlighted the difference between ``person'' and ``individual'' as 
such terms are commonly understood in other areas of law. The term 
``person'' is more comprehensive, and may include an employer or other 
entity or organization as well as an individual, whereas the term 
``individual'' as used throughout part 617 typically means the 
individual workers who are the beneficiaries of the program. The 
question that arose was whether Sec. 617.55(a) was sufficiently broad 
in wording to impose repayment liability upon an employer who had 
received improper payments for the on-the-job training. In examining 
this issue it became apparent that the same issue existed with respect 
to payments for training of individuals that are made directly to 
training providers. Although the payments in both cases may be said to 
be made on behalf of the individual workers, it is evident that, in 
many cases (particularly in the case of on-the-job training), liability 
for repayment as well as responsibility for fraud is more properly 
assignable primarily to the employer and possibly the training 
provider.
    To clarify the regulations, and to reflect the broad interpretation 
given to section 243 of the Act, Sec. 617.55 is revised throughout to 
make it specifically applicable to any person or individual, and 
paragraph (i) is added to define person as any employer or other entity 
or organization as well as the officers and officials thereof who may 
bear individual responsibility.

Q. Revision of Sec. 617.60

    A new Sec. 617.60, on Administrative requirements, was included in 
the proposed rule published on November 30, 1988, for comment. Although 
no comments were received, the substance of several of the provisions 
are affected by other administrative regulations. Since further work is 
required to bring the TAA administrative requirements into full 
conformity with those other regulations, the decision was made to 
reserve Sec. 617.60 for use when the revised TAA administrative 
requirements are completed and published.

R. Revision of Sec. 617.64

    In the 1986 Amendments to the Trade Act, section 285 was amended 
by, among other things, adding a subsection (b), to provide that ``no 
assistance, allowance, or other payments may be provided under chapter 
2 * * * after September 30, 1991.'' This new subsection (b) superseded 
the current provisions in Sec. 617.64, which were consistent with the 
amendments made by section 2512 of the Omnibus Budget Reconciliation 
Act of 1981. Section 1426(a) of the OTCA extended the termination of 
the program to September 30, 1993. While the 1986 and 1988 amendments 
to the TAA program changed the termination dates to September 30, 1991 
and 1993, respectively, appropriate changes were not made to 
Sec. 617.64 concerning the payment of TAA program benefits after the 
termination date in the Act. Therefore, Sec. 617.64 is amended to bring 
it into accord with the amended language in section 285 of the Act.
    A strict construction of the law, prohibiting the actual payment of 
TAA program benefits to individuals after the termination date in the 
Act, would have a profound effect on those persons who completed 
approved TAA program services, but, because of State processing 
requirements, payment for such services cannot be made by the State 
agency until after the termination date in the Act. This strict 
construction would unnecessarily make the orderly termination of the 
program impossible. It would deny payment of benefits to individuals 
for the period prior to the termination date of the program simply 
because it was administratively infeasible to make the payment before 
the termination date. Therefore, in order to avoid these untoward 
results stemming from a strict construction, a more liberal 
construction of section 285(b) is necessary to effectuate the 
Congressional intent. A ``payment,'' within the meaning of section 
285(b), will be deemed to have been made before the termination date of 
the program, if a final determination on the amount payable to, or on 
behalf of, the individual for TAA program services was made on or 
before the termination date of the program, for which payment was due.
    This means that State agency approved job search and relocation, 
and training related transportation and subsistence, must be completed 
on or before the termination date in the Act and that the State make a 
final determination on the amount of TAA program funds payable to the 
individual on or before such termination date. This places the 
requirement on the State agency to inform all individuals presently 
approved for such benefits of the statutory time provision that the 
service must be completed and a final determination on the amount 
payable made on or before the termination date of the program. It also 
places a requirement on individuals to complete the approved services 
and to submit all claims for such activities to the State agency in 
time to receive a final determination on the amount payable on or 
before the termination date.
    Individuals approved for training who began approved training on or 
before the termination date in the Act must have a final determination 
by the State agency on or before the termination date on the amount due 
and payable for the training costs to cover previously incurred tuition 
and related expenses. Determinations on tuition shall be limited to the 
current training term, quarter, semester, or other scheduled period, 
and be in accord with normal billing practices of the training provider 
and payment practices of the State agency. In order to conform with the 
intent of the law, the State agency may make a final determination on 
the amount payable only for the training term, quarter, semester or 
other time period for which payment is due and payable on or before the 
termination date of the program.
    Individuals entering training, and those currently in training 
programs which extend beyond the termination date of the program, 
should be informed that no payments will be authorized or made for any 
costs or expenses which become due and payable after the termination 
date of the program, nor will any such costs or expenses be paid prior 
to the expiration date of the program.
    Moreover, only the last full TRA benefit week, for which a final 
determination has been made according to normal State UI processing 
procedures on or before the termination date of the program, will be 
paid to any individual.
    When a claim for TRA is submitted to the State agency subsequent to 
the termination date in the Act, or for which a final determination on 
the amount payable has not been made on or prior to the termination 
date of the program, the State agency is required to issue a ``no-
payment'' determination on the claim because the State may not refuse 
to take and process the claim even though it is prohibited by statute 
from paying the claim. These provisions apply also to claims for job 
search allowances under Sec. 617.33 and for relocation allowances under 
Sec. 617.44.

Discussion of Comments and Changes

    In response to the proposed rule, the Department received written 
comments from two State Governors, fourteen State employment security 
agencies, three labor unions, and one public interest group.
    1. Eligibility period. The Pennsylvania Department of Labor and 
Industry (PDLI) recommended that clause (i) of Sec. 617.3(m)(1) 
(defining ``eligibility period'' for basic TRA) be amended by removing 
the word ``first'' after the word ``individual'' in the seventh line, 
and by removing all language after the parenthetical clause ``(as 
defined in paragraph (oo)(1) of this section).'' The PDLI stated that 
these deletions are necessary for the regulation to conform to the 
eligibility requirement of Section 233(a)(2) prior to its amendment by 
the OTCA. The International Union, United Automobile, Aerospace and 
Agricultural Implement Workers of America (UAW) commented that the 
proposed rule incorrectly ties the eligibility period for basic TRA to 
the date on which the first qualifying separation occurs, and the 
reference to eligibility period, therefore, should be omitted.
    Department's response. The Department believes that these comments 
reflect an incorrect view of the 1981 Amendments and the effect of the 
1988 Amendments in the OTCA. The Department construes the 1981 
Amendments as setting the beginning of the eligibility period as the 
week immediately following the week in which regular benefits are 
exhausted following the worker's first qualifying separation. This is 
explicitly provided for in section 233(a)(2), as amended in 1981, and 
is set forth in the Department's regulations implementing the 1981 
Amendments. The only change in this provision of the law was the 
extension of the eligibility period from 52 weeks to 104 weeks in the 
1986 Amendments. No change was made in the fixed eligibility period 
until the 1988 Amendments, which restored the movable eligibility 
period based on the most recent qualifying total separation. Therefore, 
in Sec. 617.3(m)(1), the fixed eligibility period is retained for first 
qualifying separations that occurred before August 23, 1988. The new 
movable eligibility period is also implemented, in accordance with the 
1988 Amendments, for decisions made on or after August 23, 1988, for 
other qualifying total separations which occurred before, on, or after 
August 23, 1988.
    Section 1430(g) of the OTCA provides for the retention of the pre-
OTCA eligibility period which was established by the first qualifying 
separation occurring before August 23, 1988, even if the decision is 
made on or after August 23, 1988. Amended section 233(a)(2) may not be 
applied in a decision made on or after August 23, 1988, in the case of 
a more recent total separation occurring before August 23, 1988, if the 
effect of applying such amended section would result in an earlier 
expiration date of the eligibility period established on the basis of 
an earlier first qualifying separation.
    It is essential to retain the definition of eligibility period for 
the application of prior law with respect to first qualifying 
separations which occurred before August 23, 1988, while adding a 
definition of the new eligibility period for qualifying separations to 
which amended section 233(a)(2) is applicable. If, however, the 
adversely affected worker is totally separated on or after August 23, 
1988, following a first qualifying separation which occurred prior to 
August 23, 1988, amended section 233(a)(2) must be applied even though 
it results in an earlier expiration date of the eligibility period 
established under pre-OTCA law.
    Therefore, no substantive change is made in paragraph (m)(1)(i) of 
Sec. 617.3, but as noted below substantive changes are made in 
paragraphs (m) and (t) as a result of the new interpretations of 
sections 1430 (a) and (g) of the OTCA, and to correct technical errors.
    2. Application of new eligibility period. The UAW commented that in 
Sec. 617.3(m)(1) the Department set up two standards for the 104-week 
eligibility period during which TRA is payable. The UAW argues that the 
proposed two standards differ according to whether the date of 
separation occurred before or after August 23, 1988. The UAW commented 
that Congress explicitly provided in section 1430(g) of the OTCA that 
the revised definition of the 104-week eligibility period in section 
1425(a) (amending section 233(a)(2)) was effective upon enactment 
unless the application of the amended eligibility period would reduce 
the period for which a worker would have been eligible for TRA. 
Therefore, the two standards should not turn on the date of the 
worker's separation, but on whether or not the worker's period of 
eligibility is reduced through the application of the amended 
eligibility period. The UAW commented further that Congress intended 
the amendment to be fully effective upon enactment, permitting the 
amendment to increase the eligibility period for basic TRA or establish 
a TRA eligibility period for some workers, and noted that the 
Conference agreement statements in House Conference Report 100-576 on 
sections 1425 and 1430 of the OTCA strongly support this application of 
the amendments. The UAW also commented that under OTCA sections 1425(a) 
and 1430(g) the most recent total separation which is qualifying must 
be used to determine the eligibility period, unless the eligibility 
period would be shortened through the application of the amendment to 
workers separated prior to enactment.
    The PDLI, commenting on the transition guidelines in 
Sec. 617.67(e)(3), noted that section 1430(g), in specifically 
referring to total separations prior to the enactment of the OTCA, 
raised the unavoidable implication that amended section 233(a)(2) shall 
be applied to total separations prior to August 23, 1988, if such 
application would provide the worker with a longer or later eligibility 
period than the worker would have had under the pre-OTCA law. The 
Unemployment Council of Southwestern Pennsylvania made the same point 
in its comments.
    Department's response. The Department agrees with the commenters' 
understanding that the amendment to the basic TRA eligibility period is 
not to operate to the disadvantage of workers whose eligibility period 
would expire at a later date with respect to a qualifying separation 
which occurred before the date of enactment of the amendment to section 
233(a)(2). These comments were also a factor in the Department's 
reconsideration of GAL 7-88 and the resulting new interpretations of 
sections 1430(a) and 1430(g) announced in GAL 15-90 (see discussion in 
item A. above).
    If workers are to retain the advantage of a later expiration date 
for the eligibility period based on the prior law, then the prior law 
must continue to be applied to first qualifying separations which occur 
before the date of enactment of the OTCA (August 23, 1988).
    Accordingly, in general the comments have merit, and substantial 
changes are made in the final regulations regarding the definition of 
``eligibility period'' in Sec. 617.3(m)(1) and the definitions of 
``separations'' in Sec. 617.3(t). Furthermore, the transition 
provisions at Sec. 617.67(e) also have been revised to reflect the 
Department's new interpretations of sections 1430(a) and 1430(g). For 
further clarification, a proviso directly implementing section 1430(g) 
of the OTCA is added to Sec. 617.3(m)(1).
    3. Retroactive approval. The PDLI stated that Sec. 617.3(m)(2)(iii) 
does not clearly point out why weeks of training prior to approval 
cannot be paid. The PDLI asked ``What if the trainee, for example, was 
in JTPA funded training that would be, after approval, either paid for 
by TAA or continued under JTPA?''
    Department's response. This comment suggests a misunderstanding of 
the TAA program and the effects of the 1988 Amendments and earlier 
changes. Since the addition of section 236(a)(3) (now 236(a)(4)) in the 
1986 Amendments, the switching of training costs from other funds to 
TAA funds has to be subject to the controls set out in that section. In 
the 1988 Amendments those controls were retained, and authority was 
added to mix TAA funding with funding from other public and private 
sources and to use funding solely from other sources for TAA training. 
That is why, in GAL 15-90 (and earlier in GAL 7-88) and in amended 
Sec. 617.25, greater emphasis is given to entering into prearrangements 
for sharing the costs of training with other funding sources. With 
training becoming an eligibility requirement for basic TRA in the 1988 
Amendments, the same emphasis upon prospective treatment must now be 
given to basic TRA as has been given to additional TRA and, to a 
somewhat lesser extent, TAA funds for training. Additional TRA has not 
been paid for retroactive weeks, nor, under Sec. 617.22(c), have 
previously incurred training costs been payable from TAA funds. This 
same rule must now be applied to basic TRA, as well as additional TRA 
and TAA training funds, and it is this rule that is reflected in 
amended Sec. 617.3(m)(2)(iii) as well as in amended Sec. 617.22(c). 
Under the 1988 Amendments, therefore, TAA funding will not follow 
automatically from approval of training under Sec. 617.22(a), nor will 
approval of training that commenced before approval under 
Sec. 617.22(a) imply or justify payment of previously incurred training 
costs from TAA funds, or payment of any TRA for any week that ended 
before such approval was documented.
    For the foregoing reasons, no substantive change is made in the 
final regulations to accord with PDLI's comment. Changes are made in 
Sec. 617.3(m)(2)(iii), as well as in Sec. 617.22(c), however, for 
purposes of stating the prospective rule as clearly as possible and to 
furnish a regulatory response to the PDLI's multi-faceted question.
    4. Retroactive payments. The Ohio Bureau of Employment Services 
(OBES) commented that Sec. 617.3(m)(2)(iii) specifies that the 
eligibility period, during which additional weeks of TRA are payable to 
a worker in approved training, if such training is approved after the 
training commences, begins with the first week such training is 
approved. Approval of such training after the training has commenced 
shall not be deemed to authorize the payment of TRA for any week which 
ended before such approval was documented. The OBES explained that, at 
the present time, many individuals are enrolled in training programs 
which were not TAA approvable prior to the 1988 Amendments because the 
costs of training were paid with non-appropriated funds. While these 
individuals are being made aware of the change in the law that now 
authorizes the use of non-appropriated funds to pay the costs of 
training, there are unavoidable delays in documenting sources of 
training funds and approving the training under part 617. These delays 
result in lost worker eligibility for weeks of additional TRA. OBES 
recommends that the final rule provide for retroactive payment of the 
additional weeks of TRA in such cases, at least to the date of 
application for approval of such training. Sections 617.22(c) and 
617.67(f) would also need to be modified for this purpose.
    Department's response. The OBES presented the problem as one that 
existed at the time the letter was written; that is, when the OBES's 
comments were made in December 1988. Although the Department 
understands that such a problem may have existed in late August and in 
September 1988, the operating instructions in GAL 7-88 were issued to 
State agencies some three months before the OBES comments were made. 
Accordingly, the Department has decided not to relax its long-standing 
rule against retroactive payments expressed in Sec. 617.22(c). See 
discussion under the preceding item. It was not expected that the new 
authorization for sharing costs of training would furnish a viable 
solution to all existing cases. One of the safeguards built into the 
new system was to require that sharing of costs be under conditions 
arranged before the training was approved under Sec. 617.22 and 
undertaken by the worker. There is no intent to approve the payment of 
additional TRA for weeks a worker is not actually participating in 
training nor to approve retroactive payments that are not allowable 
under Sec. 617.22 (c). The expectation is that cooperating agencies 
will enter into shared cost prearrangements for training not funded 
wholly from TAA funds.
    Therefore, the Department has decided to make no change in the 
regulations in response to this comment, but notes under item 3 that 
clarifying technical changes are being made in Secs. 617.3(m)(2)(iii) 
and 617.22(c).
    5. Qualifying separations. The Missouri Department of Labor and 
Industrial Relations (MDLIR) commented on paragraphs (t)(1), (t)(2)(ii) 
and (t)(3)(ii) of Sec. 617.3 in the proposed rule, which define ``first 
separation'', ``qualifying separation'', and ``first qualifying 
separation''. Since a worker must have a total separation on or after 
August 23, 1988 to qualify for TRA, the MDLIR asked why the definition 
of ``partial separation'' should not be eliminated if it takes a total 
separation to establish eligibility for TRA?
    Department's response. The Department retained the definition of 
``partial separation'' because the qualifying requirements in section 
231(a)(1) and (2) continue to permit workers to have a total or partial 
separation from employment to qualify for TRA prior to August 23, 1988, 
and for TAA services other than TRA whether a separation occurs before 
or after August 23, 1988. The amended law does not require that a 
worker have a total qualifying separation on or after August 23, 1988, 
in order to qualify for basic or additional TRA for weeks beginning 
after August 23, 1988. Workers will continue to be eligible for basic 
and additional TRA after August 23, 1988, based on a partial or total 
qualifying separation that occurred before August 23 under the prior 
law. Although the amended law requires that a qualifying separation 
must be a total separation to qualify initially for basic TRA (or to 
move the eligibility period based on a prior qualifying separation 
under the same certification), a partial qualifying separation will be 
used for purposes other than the basic TRA eligibility period. For 
example, under Sec. 617.15(b) an application for training must be filed 
within 210 days after the date of the worker's total or partial 
separation referred to in Section 231(a) (1). (See item E. above, and 
item 25, below, concerning changes to Sec. 617.15(b) on the application 
of the 210-day rule.) Further, the weekly and maximum amounts of TRA 
payable to an individual are based on the first total or partial 
separation. However, with respect to qualifying separations to which 
amended section 233(a)(2) applies, a worker's eligibility period for 
basic TRA is based on total separations only.
    In considering this comment, however, an error was discovered in 
paragraph (t)(3) of Sec. 617.3, which did not give proper effect to a 
partial separation on or after August 23, 1988. Therefore, in addition 
to other changes as discussed above, paragraph (t)(3) is amended in 
this final rule to accord with the above response to this comment. For 
the same reason a parallel change is made in Sec. 617.67(e)(4).
    6. TRA weekly and maximum. In commenting on the application of 
amended section 233(a)(2) to the most recent total qualifying 
separation, in determining the eligibility period of a worker, the UAW 
argued that this contrasts with the determination of weekly and maximum 
amounts of TRA, which does require the use of ``first qualifying 
separation.'' The proper use of ``first qualifying separation'' is 
restricted to the determination of the weekly and maximum amounts of 
TRA.
    Department's response. The Department agrees that determinations of 
TRA weekly benefit amounts and maximum benefit amounts, under sections 
232(a) and 233(a)(1), will continue to be based on the first total or 
partial separation, and that this was not changed by the 1988 
Amendments. What this means is that monetary determinations of TRA 
entitlement may have to be based upon two separations which occurred in 
different years. For example, for a period of up to three years or more 
after August 23, 1988 (the impact date to termination date of a 
certification plus the time between petition and certification dates 
can be a period of up to or in excess of three years), it is possible 
that a worker will have had a first qualifying separation before August 
23, 1988, and computations under sections 232(a) and 233(a)(1) will be 
based upon UI entitlement in the first benefit period following such 
first separation, whereas the worker's most recent total qualifying 
separation will be used to determine the basic TRA eligibility period. 
This is simply illustrative, however, because in all cases decided on 
or after August 23, 1988, the eligibility period under amended section 
233(a)(2) will be based upon the most recent ``total qualifying 
separation,'' whereas computations of weekly and maximum TRA amounts 
under sections 232(a) and 233(a)(1) will continue to be based on the 
first separation with respect to which the worker is entitled to UI, 
whether such separation occurred before or after August 23, 1988. This 
is an additional reason why, for any worker who is determined to have 
had a ``total qualifying separation,'' it will be necessary to 
establish whether the worker had an earlier first separation under the 
same certification.
    The definition of ``first qualifying separation'' in paragraph 
(t)(3) of Sec. 617.3 incorrectly relates determinations of weekly and 
maximum TRA amounts only to first qualifying separations with respect 
to which the worker also qualifies for TRA. This is corrected in the 
final regulations, and other technical corrections are made to 
distinguish between ``first separation'' and the meaning of ``first 
qualifying separation'' for its two purposes; that is, (a) eligibility 
period for TRA, and (b) computation of weekly and maximum TRA amounts.
    7. Partial separations. The Indiana Department of Employment and 
Training Services (IDETS) commented that, based on its understanding of 
Sec. 617.3(t)(3)(ii) of the proposed rule, and sections 233(a)(1) and 
231(a)(3)(A) of the Act, there appears to be a conflict over whether a 
partial separation after August 23, 1988, may be used to determine 
benefit amounts.
    Department's response. The IDETS is correct in noting this error in 
paragraph (t)(3) of Sec. 617.3. See the discussion under the preceding 
two items. The first separation under a single certification, with 
respect to which the worker is entitled to UI, must be used to 
determine the worker's weekly and maximum amounts of basic TRA, whether 
such first separation occurs before or after August 23, 1988. As noted 
in the preceding two items, Sec. 617.3(t) is modified to clarify this 
and other points.
    8. Advice to workers. The Vermont Department of Employment and 
Training (VDET) commented on Sec. 617.4 concerning what constitutes 
proper advice and assistance to workers. The VDET stated that the 
requirement to inform each worker applying for unemployment insurance 
``of the procedures and deadlines for applying for such benefits'' 
taken literally includes a large number of applicants who are applying 
for short term UI benefits and who in no way are likely to be eligible 
for benefits under the TAA program. The VDET argues that while it is 
important that the State agency take the initiative to inform workers 
who may be eligible for the benefits, the current language is too 
rigid, and will only cause confusion among short term unemployed. The 
Vermont agency recommended that the requirement be rephrased to require 
States to develop the means to identify trade eligible workers who 
apply for UI and then provide the necessary information to those 
workers.
    Department's response. The Department agrees that State agencies 
should identify potential trade eligible workers as early as possible 
in their benefit period. However, section 239(f) of the Act provides, 
among other things, that each worker who applies for unemployment 
insurance shall be advised of the benefits under the TAA provisions of 
the Trade Act and the procedures and deadlines to apply for such 
benefits. There is no language which would support the limitation 
suggested by the VDET. Often temporary layoffs by a firm adversely 
affected by import competition or other economic conditions become 
permanent. The intent of Congress is to ensure that such workers are 
made aware early in their unemployment experience of the TAA program, 
how to apply for benefits, and the services available to them. Many 
State UI agencies furnish an information bulletin or brochure to every 
worker who files a claim for UI. These bulletins or brochures should 
include full and correct information on the amended TAA program, and on 
the benefits and services available to unemployed workers. The 
Department is encouraging all State agencies to publish a brochure for 
handout to workers filing initial claims for UI. State agencies should 
revise their previously used brochures to accurately reflect all the 
changes made in this final rule, and furnish a copy to each worker who 
files an initial claim for UI as required by section 239(f) since 
August 23, 1988.
    While no change is made in the final regulations regarding the 
requirement of advising all UI claimants of the TAA program, 
Sec. 617.4(e) is modified by eliminating the unnumbered paragraph at 
the end of this section and by adding the provisions of that paragraph 
in clause (2).
    9. Notice to workers. The Michigan Employment Security Commission 
(MESC) explained that Sec. 617.4(d)(1)(ii)(A) states that notices to 
workers must include information as to the article(s) produced. The 
MESC commented that unless the article(s) produced is part of the 
certification statement, e.g. ``all workers producing shock 
absorbers,'' referring to it will often confuse rather than clarify 
worker coverage. For example, if the certification covers ``all workers 
of XYZ Company,'' to state in the worker notice that the company 
``produces shock absorbers,'' will confuse workers of the XYZ Company 
who may have produced brakes. Unless a specific article is identified 
in the published certification document, it should not be required 
information in the notice to workers.
    Department's response. The Department concurs with the comment. The 
articles produced are to be specified in a notice to the workers only 
when there is a specific reference in the published certification 
document to an article or articles. When all workers in the firm are 
covered by the certification it is not necessary to identify the 
article(s) produced. The regulation is modified at 
Sec. 617.4(d)(1)(ii)(A) to reflect this change, and the same change is 
made in Sec. 617.4(d)(2)(ii)(A) regarding newspaper notices.
    10. Identifying workers. The New York Department of Labor (NYDL) 
commented that Sec. 617.4(d)(1) expands the intent of the Trade Act by 
specifying the sources that the State agency should utilize in 
identifying adversely affected workers. The NYDL stated that it is 
inappropriate to specify such sources in a regulation and suggested 
that the Department adhere to the language of the Act. It also 
suggested the following substitute language: ``The state agency shall 
provide written notice, through the mail, of benefits available under 
this chapter to each worker whom the State agency has reason to believe 
is covered by a certification made under subchapter A of this chapter. 
The notice must include the following information: * * *.''
    Department's response. The proposed rule merely refers to any other 
reliable sources of information other than the workers' firm. When a 
firm closes, information from the firm's records may be difficult to 
obtain. In this case, as well as others, the State agency should obtain 
the best information available to it. This level of specificity seems 
appropriate for the regulations. Similarly, in implementing the 
provision on the scope of the notice to be given, the Department has 
concluded that amended Section 225 requires that all workers who can be 
identified shall receive such notice. Therefore, no change is made in 
the final regulations.
    11. Newspaper notices. The OBES commented that Sec. 617.4(d)(2) 
requires State agencies to publish a notice of each certification 
issued in its State in a newspaper of general circulation in the areas 
in which the affected workers reside. OBES further commented that it is 
not uncommon that prior to the State agency being informed of a 
certification by the Department of Labor all affected workers have 
already learned of the certification and have reported to the State 
agency to file for TAA benefits. Therefore, OBES recommended that the 
final rule provide for a waiver of the public notice requirement when 
it can be verified by the State agency that all the affected workers 
have filed for TAA benefits. The OBES also recommended that the funding 
source for such newspaper notices be identified formally. The 
California Employment Development Department (CEDD) provided similar 
comments on Sec. 617.4(d)(2). CEDD pointed out that there is no useful 
purpose in placing an expensive newspaper ad when all affected workers 
are notified by letter, or when the ad will very likely not be seen by 
any of the former workers.
    Department's response. The Department agrees that a newspaper 
notice is not needed in some situations because all the workers are 
identified by the State agency and notified by mail. This situation 
occurs frequently when the certified worker group is small. Therefore, 
the Department is amending the final rule at Sec. 617.4(d)(2) to 
authorize State agencies to dispense with the newspaper notice when it 
can be substantiated and is documented in the agency's records that all 
adversely affected workers covered by a certification have been 
identified and have been sent written notice by mail as required by 
Sec. 617.4(d)(1)(i).
    12. Notices of waivers. The UAW, commenting on Sec. 617.4(e), 
stated that workers should be provided with a notice of their right to 
seek a waiver of the training requirement and the procedure for doing 
so.
    Department's response. The Department believes that the regulations 
as proposed establish the right of workers to waivers of the training 
requirement in appropriate cases, and provide for appeal and review of 
determinations on such waivers. State agencies will initiate waivers 
where training is not feasible or appropriate. Information that waivers 
will be issued to workers when training is not appropriate or feasible 
must be furnished to the workers or be included in the bulletin or 
brochure furnished to each worker under paragraph (e)(1) of Sec. 617.4. 
The Department does not believe that more specificity is required in 
paragraph (e)(1). Therefore, no change is made in the final 
regulations.
    13. Information to workers. The CEDD, commenting on Sec. 617.4(e), 
stated that there is some confusion between this section and 
Sec. 617.67(c)(2). The CEDD commented that it is not clear whether TAA 
information must be provided to every individual who applies for 
unemployment insurance, as stated in Sec. 617.67(c)(2), or just to 
those certified as adversely affected as implied by use of the word 
``worker'' in Sec. 617.4(e). The CEDD recommended, if States are to 
provide TAA information to all individuals filing for UI, this 
requirement should be clearly identified in the final rule.
    Department's response. The Department does not believe that the 
regulations are ambiguous on this issue. The 1988 Amendments to section 
239(f) state that every worker filing for UI is to be informed of the 
TAA program and the benefits available, even though the worker may not 
qualify for TAA. The regulations at Secs. 617.4(e)(1) and 617.67(c)(2) 
clearly state that each worker who applies for UI shall be advised of 
the benefits available under the TAA program and does not confine such 
advice to workers who have been identified as adversely affected by 
imports. Therefore, no change is made in the regulations.
    14. Advice to UI claimants. The OBES commented that 
Sec. 617.4(e)(1) requires State agencies to advise each worker who 
files for unemployment insurance of TAA benefits available and the 
deadlines for applying for such benefits. The OBES requested that the 
final rule replace the term ``deadlines'' with ``time limits''. The 
final rule should also establish the administrative funding mechanism 
for the substantial costs associated with implementing this 
requirement. CEDD also commented on a funding issue.
    Department's response. The regulations at Sec. 617.4(e)(1) track 
the language of section 239(f)(1) of the Trade Act, which provides that 
workers shall be informed of the ``deadlines'' for applying for TAA 
benefits. Matters of administrative funding are addressed in program 
letters and other issuances of the Department and will be addressed 
further in Sec. 617.60 when it is published. (See explanation on the 
publication of Sec. 617.60 in item Q. above.) No special funding 
category is contemplated for furnishing information and assistance to 
applicants and potential applicants. Therefore, no change is made in 
the final regulations.
    15. All UI claimants. The CEDD, commenting on Sec. 617.10(d), 
stated that this section contains a statement about providing 
``workers'' with TAA information at the time the UI claim is filed. The 
CEDD argues that, if the rule means every individual who files a UI 
claim, States will have problems meeting this requirement because often 
a TAA certification has not been issued when the worker files an 
initial UI claim.
    Department's response. The 1988 Amendments require the State agency 
to inform every worker filing an initial UI claim about the TAA program 
and the benefits available under it. There are no exceptions to this 
rule. One of the purposes of the amendment is to ensure that workers 
are informed of the program at that time so they can file a petition 
for TAA if they wish, whether or not a petition has been filed or a 
certification issued covering that worker or others. See Sec. 617.4(e). 
The Department believes this requirement can be met easily by 
furnishing an information bulletin or brochure on the TAA program to 
every worker who files an initial UI claim. See discussion in item 8, 
above. Therefore, no change is made in the final regulations.
    16. Legal work requirement. The UAW commented that the proposed 
rules at Sec. 617.11(a)(1)(iii)(C) and (a)(2)(iii)(C) are not reflected 
in any provision of the Trade Act of 1974, as amended, nor in the 1988 
Amendments. The UAW stated that the Department is trying to enforce the 
Immigration Reform and Control Act (IRCA) with this provision. The UAW 
argued that if Congress wished to enact such a provision it could have, 
but it did not do so. IRCA did not implicitly amend other federal laws. 
The Department should not amend the TAA program to enforce IRCA in the 
absence of statutory authority and therefore the referenced 
subparagraphs should be deleted entirely.
    Department's response. The content of Secs. 617.11(a)(1)(iii)(C) 
and (a)(2)(iii)(C) is not changed by reason of the 1988 Amendments. 
These sections of the regulations merely restate a requirement which 
has been in the TAA regulations since they were issued in 1975 in a 
different place within the regulations. No substantive change has been 
made in this regulatory requirement. These provisions do not implement 
the IRCA. Therefore, no change is made to the regulations.
    17. Certification period. The NYDL recommended that paragraphs (B) 
and (C) of Sec. 617.11(a)(1)(ii) and (a)(2)(ii) be combined to read as 
follows: ``(B) Before the expiration of the two-year period beginning 
on the date of such certification, or, if earlier, before the 
termination date, if any, of such certification.''
    Department's response. The Department agrees that this change would 
clarify an ambiguity in the statutory language. Therefore, the 
regulations are changed along the lines suggested by the NYDL.
    18. Job search program. The NYDL recommended that 
Sec. 617.11(a)(1)(vii) on the job search program (JSP) be deleted from 
the regulations since retroactive TRA claims approved for weeks prior 
to November 21, 1988, will no longer require participation in a JSP. 
After November 21, 1988, individuals involved will not know about the 
requirement. The UAW made a similar comment on the JSP requirement. 
However, the UAW commented further that this proposed rule creates a 
likelihood that workers will not be informed by State agencies of the 
deletion of this requirement in the 1988 Amendments since the 
Department is ``encouraging'' States to continue the program.
    Department's response. Various provisions of the 1988 Amendments 
became effective on different dates. The proposed rule was structured 
to address those statutory requirements that applied prior to, and 
apply on and after November 21, 1988. The JSP requirement was 
applicable through November 20, 1988. The training requirement became 
applicable on November 21, 1988. Therefore, it is essential to 
delineate the statutory requirements for each time period, and set them 
forth clearly in these regulations. Also, appeal actions may be pending 
on workers who were denied TRA eligibility because they failed to begin 
participation in or failed to complete a JSP. Some of these cases could 
eventually be resolved in the courts. The retention of the regulations 
on the JSP will continue to provide the basis for supporting 
determinations made by State agencies during the period the JSP 
requirement was applicable. In the proposed rule, a new paragraph was 
added to Sec. 617.49, specifically providing that JSP is not a 
requirement for any week which begins after November 20, 1988, and this 
provision is included in the final regulations. In addition, the 
Department believes that a JSP is a very useful employability service 
for adversely affected workers and should be encouraged. Therefore, no 
change is made in the final regulations.
    19. Temporary work. The OBES commented that Sec. 617.11(a)(3)(iii) 
specifies that State agencies are to take into account local labor 
market characteristics in giving effect to the terms seasonal 
employment and part-time, temporary work. The OBES recommended that the 
final rule should provide a definition of temporary work to ensure 
uniformity among and between States.
    Department's response. As noted in item D. above, the Department 
decided to add to the regulations definitions of the terms ``seasonal 
employment'', ``odd jobs'', and ``part-time, temporary employment'', to 
provide State agencies with guiding instructions for implementing 
section 1426(b)(2)(A)(ii) of the OTCA, so that the Department, rather 
than the States, defines the limits of Federal liability under 
Sec. 617.11(a)(3) as under other aspects of the TAA program. The 
explanation for each of these definitions is noted in item D. In more 
specific response to the commenter, notice that the definitions go 
beyond simply defining temporary work separate and apart from ``part-
time, temporary employment'' as used in the statute. To fit into this 
category, as is made clear in the amended regulation, such work must be 
both part-time and temporary.
    20. Enrolled in training. The Governor of North Dakota and the Job 
Service of North Dakota, commenting on Sec. 617.11(a)(2)(vii), point 
out that the definition for ``enrolled into training'' is when the 
worker has been accepted to an approved training program that will 
begin within 30 calendar days. Both recommended that the definition 
provide that a worker be considered as enrolled in training upon 
acceptance into an approved training program and scheduled to commence 
training on the next regularly scheduled program starting date. Rural 
States have a limited number of training facilities offering open entry 
and open exit options. Virtually all training programs offered by both 
public and private facilities have designated enrollment dates. The 30-
day limitation would cause States to invoke the waiver provision 
unnecessarily.
    Department's response. The Department included the 30-day provision 
in the definition for ``Enrolled in training'' to help reduce the 
number of waivers of the training requirement that would have to be 
issued by State administering agencies because approved training would 
not begin immediately. The Department recognizes that schedules for 
some training institutions may involve periods longer than 30 days for 
training to begin. In such situations, a waiver may and should be 
granted. States must search for training programs for individuals which 
will begin within 30 days, or as soon as possible thereafter. To allow 
fewer days in the definition for ``Enrolled in training'' would 
generate more waivers of the training requirement and increase 
administrative costs. The Department believes that extending this 
period in regulations would be difficult to justify. Under the statute, 
the objective of the training requirement is to get workers actively 
engaged in training as soon as possible, as a condition of entitlement 
to TRA. The 30-day requirement eliminates the need for a waiver where 
the training program is to begin within 30 days, but does not subject 
the worker to the EB work test while awaiting the start of training. 
Accordingly, no change is made in the final regulations.
    21. Apparent contradiction with EB work test. The MDLIR commented 
that Sec. 617.11(a)(2)(vi)(B) and (vii)(B) and (C), which refer to the 
EB work test and the training requirement, appear to be contradictory. 
The regulations state that the EB work test and the training 
requirement shall not apply to an individual with respect to a claim 
for TRA for weeks of unemployment prior to the filing of an initial 
claim for TRA, nor for any week which begins before the certification 
is issued and the individual is fully informed of the requirement. The 
MDLIR points out that the language of these paragraphs appears to 
permit retroactive payments of TRA.
    Department's response. The Department does not agree with the 
commenter. The cited paragraphs of the regulations do not authorize 
retroactive payments of TRA. These paragraphs specifically provide that 
the requirements for eligibility in clauses (vi) and (vii) may not be 
applied retroactively, to workers otherwise eligible for basic TRA, 
because workers cannot comply retroactively with those requirements. 
This is a ``due process'' issue only. Therefore, no change is made in 
the regulations.
    22. Completed training. The Unemployed Council of Southwestern 
Pennsylvania (UCSP), commenting on Sec. 617.11(a)(2)(vii)(D)(2), stated 
that the requirement ``the training occurred subsequent to the 
individual's total or partial separation'' goes beyond Congressional 
intent. The UCSP argues that in amended Section 231(a)(5)(B) Congress 
allowed TRA payments to workers who have ``* * * after the date on 
which the worker became totally separated, or partially separated, from 
adversely affected employment, completed a training program approved by 
the Secretary. * * *'' The UAW also commented along the same lines.
    Department's response. The Department agrees with the comments, and 
the regulations have been changed accordingly to delete the word 
``occurred'' and insert in place thereof ``was completed'' in 
Sec. 617.11(a)(2)(vii)(D)(2).
    23. Enrolled in training. The Washington Employment Security 
Department (WESD), commenting on Sec. 617.11(a)(2)(vii)(D)(1), 
recommended that the definition for ``enrolled in training'' be amended 
by adding after ``within 30 calendar days'' the words ``or the next 
available time the training could begin at the training institution.'' 
The WESD explained that in the cases where training is not available 
within 30 days of approval that to subject the worker to the EB work 
test, which means a worker must accept any work the worker is 
physically capable of performing, would be to the detriment of the 
worker when training is approved and planned for in the foreseeable 
future.
    Department's response. During the period the EB work test is 
applied under Sec. 617.19(b)(3), when the training requirement is 
waived, the worker may find suitable employment which would eliminate 
the need for additional training. If the State agency determines the 
job is not suitable (as defined in Sec. 617.22(a)(1)(ii)), and it is 
reasonable and necessary for the worker to quit work in order to enter 
training, as provided in Sec. 617.18(b)(1)(iii), the individual may 
enter training when the training program begins. Also, see the 
Department's response in item 20, above. Therefore, no change is made 
in the final regulations.
    24. Certain waivers. The PDLI commented that 
Sec. 617.11(a)(3)(i)(C) appears to require that a worker must meet all 
the requirements applicable to eligibility for basic TRA in the 
preceding sections, including the wage and employment qualifying 
requirements, with respect to the total separation in 
Sec. 617.11(a)(3)(i)(B), to qualify for the waiver of the basic TRA 
eligibility period and the 210-day filing requirement under Section 
1425(b) of the OTCA. The PDLI commented further that the reference in 
Section 1425(b) is to total separations from adversely affected 
employment within the meaning of Section 247 of the Act. Section 247 
defines both separation and adversely affected employment. The 
definitions do not include references to wage and employment qualifying 
requirements. Requiring workers to meet these additional conditions 
with respect to the total separation noted in section 1425(b) seems to 
be beyond the intent of the law. Further, to the extent previous 
Federal operating instructions (GAL 7-88) direct the wage requirements, 
including equivalent qualifying weeks, be met as provided under the law 
prior to the 1986 Amendments, the PDLI believes those instructions are 
incorrect and should be revised.
    Department's response. The Department does not concur in these 
comments. Section 1425(b) does not remove the wage and employment 
qualifying requirements of the Trade Act. This section, by specific 
reference to sections 233(a)(2) and 233(b), only eliminates the time 
limit on the eligibility period for receiving basic TRA and the 210-day 
time limit for filing for training to qualify for additional weeks of 
TRA. No waiver of any of the other basic eligibility requirements is 
implied in removing these two time constraints. Therefore, no change is 
made in the regulations.
    25. 210-day period. The WESD, commenting on Sec. 617.15(b)(2), 
argues that it would be a contradiction for the Department to retain 
the present 210-day requirement for requesting training in order to 
qualify for additional weeks of TRA rather than applying a movable 
eligibility period as used for TRA payments. The NJDL and the MESC also 
commented that the 210-day period should begin with the individual's 
most recent qualifying separation.
    Department's response. The Department agrees with these comments, 
and Sec. 617.15(b) is revised accordingly in the final rule. This 
change has already been implemented through Change 2 to GAL 7-88 and 
reiterated in GAL 15-90, both of which were also previously published 
as notices in the Federal Register. This change is effective for 
decisions made on or after August 23, 1988, when the movable 
eligibility period took effect. However, as this change was not 
included in the proposed rule, a 30-day comment period is provided in 
this final rule. (See the explanation above in item C.)
    26. Scheduled breaks in training. The UAW, commenting on 
Sec. 617.15(d)(1), pointed out that amended section 233(f) provides 
that a worker shall be treated as participating in training during a 
week which falls in a break of 14 days or less, if the worker was 
participating in training before the break and ``the break is provided 
under such training program.''
    The UAW points out that the proposed rule adds the requirement that 
the break be ``provided in the published schedule of the training 
program.'' While ``publication'' might ease administration, there are 
some individualized training programs which do not have published 
schedules. Therefore, the UAW recommended that ``previously 
established'' schedule as an alternative formulation which would permit 
workers in less academic settings to continue to receive TRA as 
Congress intended, but prevent nonparticipating workers from arguing 
they were merely ``on break.''
    Department's response. The Department does not believe such a 
narrow reading need be given to the word ``published,'' but has 
clarified the regulations by modifying Sec. 617.15(d)(1) to add after 
the ``published schedule'' the words ``or previously established 
schedule'' and by adding that the break may be indicated in the 
training program approved for the individual. The intent is to ensure 
that ``breaks'' in training during which TRA payments may continue are 
not limited to regularly scheduled breaks established by the training 
provider before the program begins but also include all other periods 
of time elapsing between courses or phases of the approved training 
program. Therefore, the changes made in this final rule with respect to 
this matter go beyond the comments received, and, as explained in item 
F. above, a new clause (2) is added to Sec. 617.15(d) to define a 
scheduled break in training as including scheduled breaks within or 
between courses, terms, quarters, semesters, and academic years, 
whether or not such breaks are scheduled by the training provider.
    27. Before and after break. The PDLI commented that 
Sec. 617.15(d)(1)(i) requires, in addition to other requirements, that 
the worker be participating in training immediately prior to the break 
and resume participation immediately after the break ends. The PDLI 
recommends that this provision might be stated better by changing the 
final regulation to participating in training for the week claimed 
prior to the beginning of the break and resuming participation for the 
week claimed at the end of the break.
    Department's response. The Department believes the commenter's 
suggestion would introduce some ambiguity in the wording of the 
regulations. However, Sec. 617.15(d)(1) is revised to reflect the 
change announced in GAL 15-90, and set forth in Section E.3., Payments 
of TRA During Breaks in Training, in Attachment A to GAL 15-90. Section 
233(f) provides for the payment of basic and additional TRA ``during 
any week which is part of a break in training'' provided certain 
conditions are met. The conditions are spelled out in 
Sec. 617.15(d)(1), clauses (i) through (iii). In addition, as a 
condition of TRA eligibility during the break, Sec. 617.15(d)(1) is 
amended to restate the requirement that the worker shall be required to 
participate in training after the break ends. This will assure that the 
purpose of Section 233(f) is carried out. Section 617.15(d)(1) 
accordingly is modified by removing the ``resume participation'' 
condition from clause (i) and restating it in clause (iii), with 
emphasis upon ``immediate'' resumption of participation.
    28. Break delay. The ODHR, commenting on Sec. 617.15(d)(1)(i), 
explains that by including the phrase ``and resumes participation'' as 
a condition for payment means that no payment for the break can be paid 
until the break is over and this is verified. The ODHR states that this 
contradicts the intent of the rule that ``An individual will continue 
to receive basic and additional weeks of TRA during scheduled breaks in 
training'' and would create problems if the break fell within the 
individual's scheduled reporting period. The NYDL provided similar 
comments on Sec. 617.15(d)(1)(i).
    Department's response. The Department agrees that it is not the 
intent of this regulation to delay TRA payments during scheduled breaks 
in training that do not exceed 14 days. However, if a worker fails to 
resume participation in the training immediately after the break ends, 
any payments made during the scheduled break shall be established as 
overpayments, subject to repayment under the provisions of Sec. 617.55. 
Therefore, no change in the regulations is necessary to reflect this 
intent.
    29. Inconsistency. The MESC, commenting on Sec. 617.15(d)(2), 
stated that no basic TRA may be paid if the individual is on a 
scheduled training break of 15 days or more. The MESC stated that 
denial of TRA to a claimant during a break which exceeds 14 days, but 
less than 30 days, is inconsistent with the definition of ``enrolled in 
training'' in Sec. 617.11(a)(2)(vii)(D)(1), which allows payment of TRA 
to a claimant who will enter training within 30 days. A claimant during 
a break in training of less than 30 days should be considered enrolled 
in training and eligible for basic TRA.
    Department's response. The purpose of these two provisions is not 
similar, nor is there a basis in the statute for altering the specific 
14-day provision of section 233(f). The 14-day break in training 
provision is a statutory requirement and not subject to change in 
regulations. On the 30-day provision, see the discussion in item 20 
above. Therefore, no change is made in the final regulations.
    30. Holidays during breaks. The West Virginia Department of 
Employment Security (WVDES) commented that, in counting days of breaks 
under Sec. 617.15(d)(3), Saturdays and Sundays are not counted but 
holidays are counted. The WVDES recommends that for purposes of 
counting the days in a break, holidays not be counted along with 
Saturdays and Sundays. The MESC, NYDL and the Oregon Department of 
Human Resources (ODHR) provided similar comments.
    Department's response. The Department agrees that recognized legal 
holidays should not be counted, and has already acknowledged this 
change in section E.3. of Attachment A to GAL 15-90 (also see page 3 of 
the GAL). Ordinarily, breaks in training are oriented to National and 
State holidays, and to periods within terms or semesters of the 
training institution. The one long holiday oriented break each year is 
the holiday beginning around the second or third week in December and 
ending after New Year's Day. Since these holidays are the reason for 
the break, the Department agrees that such holidays should not be 
included in counting the number of days of the break. The critical 
point is whether a particular day would ordinarily be a scheduled 
training day in the particular training program. Therefore, official 
State and National holidays are added to the days not counted in 
counting the days of a break, if training in the program concerned 
would not normally be scheduled on such days. (See the explanation in 
item F. above.)
    31. EB work test. The MESC, commenting on Sec. 617.17(b)(2), stated 
that this section indicates that on or after November 21, 1988, 
claimants in training which is State approved (but not TAA approved) 
must satisfy the EB work test. The MESC further states that before 
November 21, 1988, the EB work test was not applied to claimants in 
State approved training. The MESC argues that there should be no change 
in the exception to the EB work test on or after November 21, 1988. 
Section 231(a)(4) of the Trade Act, unchanged by the 1988 Amendments, 
requires that to be eligible for TRA, a worker would not be 
disqualified for EB due to the work test. An EB claimant in State 
approved training would not be disqualified.
    Department's response. The commenter incorrectly reads section 
231(a)(4) and the effect of the substantive amendment to section 
231(a)(5), which was effective on November 21, 1988. Prior to November 
21, 1988, for the purposes of basic TRA, participation in training 
approved under the State law or under Sec. 617.22(a) was sufficient to 
make the able and available requirement, including the EB work test, 
inapplicable. The amendment to section 231(a)(5) makes training 
approved under section 236 an eligibility requirement for basic TRA, 
effective on November 21, 1988. After November 20, therefore, claimants 
for basic TRA may not satisfy the requirement of section 231(a)(5), or 
avoid the EB work test, by participating in training which is not 
approved under section 236. The Department's position was clearly set 
forth in section 4.C. of GAL 7-88, and was reiterated without change in 
section C. of Attachment A to GAL 15-90; it also is correctly stated in 
Secs. 617.11(a) (2), (3), and (4) and 617.17(b) of the proposed rule 
and is retained in this final rule.
    To give full effect to the 1988 Amendments, moreover, the EB work 
test must apply even after the TRA claimant has satisfied the 
requirement of Section 231(a)(5) by completing a training program 
approved under amended Sec. 617.22(a), (see Section C. of Attachment A 
to GAL 15-90). Having completed such training, the individual should be 
job ready, and should be actively seeking work so as to return to 
employment as soon as possible. It is particularly appropriate in these 
circumstances, therefore, that the EB work test of section 231(a)(4) 
should apply in regard to any further claims for basic TRA. It would 
not accord with these purposes to permit the claimant to avoid the EB 
work test by engaging in any other training that is not approved under 
amended Sec. 617.22(a). The Department has concluded, and the final 
regulations provide, therefore, that the EB work test must be met by 
every claimant for basic TRA, unless the claimant actually is enrolled 
in or participating in TAA approved training as specified in the Trade 
Act and in these final regulations. This requirement applies as well to 
claimants who have completed TAA approved training, with respect to any 
claim for basic TRA for any week beginning after completing the 
training program. For the foregoing reasons, no change is made in the 
final regulations.

    (Note: section 202(b) of the Unemployment Compensation 
Amendments of 1992 added paragraph (7) to section 202(a) of the 
Federal-State Extended Unemployment Compensation Act of 1970, which 
suspends the eligibility and requalification requirements of 
paragraphs (3) and (4) of section 202(a) for the weeks beginning 
after March 6, 1993, until January 1, 1995. GAL No. 7-93, 58 F.R. 
21477, makes this change applicable to the TAA Program and should be 
used for guidance with respect to this issue. This change is not 
incorporated into the final regulations because it is a temporary 
suspension.)

    32. Justifiable cause. The American Federation of Labor and 
Congress of Industrial Organizations (AFL-CIO), commented on 
Sec. 617.18(b)(2)(i), regarding an individual who ``* * * fails to make 
satisfactory progress in training,'' and on Sec. 617.18(b)(2)(ii)(C), 
Justifiable cause, including reasons related to the individual's 
capability to participate in or complete approved training. The AFL-CIO 
recommends that, since educational limitations are a common reason for 
failure to profit from job training, such individuals should be 
promptly evaluated as to the need for remedial education, as authorized 
under the 1988 Amendments.
    Department's response. The Department agrees that training must be 
suitable for the worker. The fifth criterion in section 236(a)(1) 
requires a supported determination that a worker is qualified to 
undertake and complete the training being approved. See section G.1. of 
Attachment A to GAL 15-90 and section 4.G.1. of GAL 7-88, and 
Sec. 617.22(a)(5). This provision emphasizes the worker's personal 
qualifications; that is, that the worker's own physical and mental 
capabilities and background and experience are appropriate to the 
training. It states further that the worker must be evaluated before 
approving training as being qualified to undertake the specific 
training program being considered and to complete that training program 
successfully. If the worker needs remedial education, this should be 
identified and included as a part of the approved training program. If, 
during the training program, the need for remedial education becomes 
apparent, appropriate arrangements should be made to accommodate those 
needs as part of the same training program. Therefore, while the 
Department agrees with the comment, no change is needed in the 
regulations to accomplish this intent. However, the worker's personal 
qualifications in Sec. 617.22(a)(5) are amended by adding financial 
resources to the existing qualifications to undertake and complete the 
training being approved. Item J., above, explains the change and the 
Department's reasons for the change.
    33. Satisfactory progress in training. The PDLI commented that 
several paragraphs in the proposed rule refer to ``making satisfactory 
progress'' in training. This language was amended in section 233(a) of 
the Trade Act effec- tive on November 21, 1988, to ``participating'' in 
training, and section 236(c) was repealed. The PDLI recommends that 
unless these sections refer to the law prior to November 21, 1988, this 
language only serves to confuse and should be revised or deleted. The 
UCSP and UAW made similar comments on the requirement in the proposed 
rule that the worker must have ``successfully'' completed an approved 
training program to meet the training completion requirement of amended 
Section 231(a)(5).
    Department's response. The Department has reconsidered these 
matters and agrees that the comments on ``satisfactory progress'' have 
merit. References to ``satisfactory progress'' have therefore been 
removed from Secs. 617.11(a)(3)(i)(D), 617.15(b)(3), 617.18(b)(1)(ii) 
and (iii), and 617.18(b)(2)(i). The references to ``successfully'' 
completed and ``satisfactory'' completion of training are also removed 
from Secs. 617.11(a)(2)(vii) (A)(2) and (D)(2). However, the conditions 
for ``completed training'' in Sec. 617.11(a)(2)(vii)(D)(2) are 
retained. To meet the requirements of section 231(a)(5) of the Act, it 
is reasonable to expect an individual who completed a training program 
to have satisfied the standards or conditions for the training program 
and, therefore, to have ``successfully'' completed such training in 
order to be job ready. Further, in connection with making this 
correction in Sec. 617.11(a)(3)(i)(D), the language is modified to make 
it clearer that an individual must actually be enrolled in or 
participating in approved training in each week that TRA is claimed, 
and that, while the break in training provisions of Sec. 617.15(d) 
apply, the waiver of participation provisions of Sec. 617.19 shall not 
be applicable under paragraph (a)(3).
    34. Waiver appeals. The PDLI commented that Sec. 617.19(a)(2) 
provides the minimum information that shall be contained on the waiver 
of training participation. (Sec. 617.19(c)(3) provides for equivalent 
information on the waiver revocation form.) These minimum information 
items do not include an appeal date, or instructions for appeal. 
However, Sec. 617.19(c)(4) appears to state that waivers and waiver 
revocations shall be appealable. The PDLI suggests that the issuance of 
waivers and waiver revocations should not be appealable determinations; 
rather, these documents are prerequisites to determinations of 
entitlement to TRA payments, and these latter determinations should be 
appealable. The PDLI recommends further evaluation of this regulation.
    Department's response. The 1975 regulations required that all 
determinations relating to TAA program benefits shall be subject to 
appeal and review, as specifically required by section 239(d) of the 
Trade Act of 1974. That requirement continues in effect and is 
correctly implemented in the regulations in providing that Secs. 617.50 
and 617.51 shall apply to all determinations regarding waivers, as well 
as any determination pertaining to any other TAA program benefit. 
Waivers have a direct relationship to basic TRA entitlement. The 
Department does not believe it would be appropriate to provide that an 
individual should be denied the right to appeal a determination issued 
by the State agency that training is not feasible or appropriate, or 
that written notice of such determinations (granting, denying, or 
revoking a waiver) should not include notice of appeal rights.
    Consideration of the comments, however, reveals that there appears 
to be some lingering uncertainty about the scope of the waiver 
provision and the appeal rights of individual workers, and the 
reexamination of the language proposed for Sec. 617.19 underscores the 
need for some clarification of the regulatory language so as to express 
the scope of the waiver provision more accurately and to declare 
unmistakably the appeal and review rights of individuals in regard to 
all determinations relating to waivers.
    Paragraph (a)(1) of Sec. 617.19 thus is revised to state more 
accurately the scope of the waiver provision, and to state explicitly 
that a waiver pertains solely to basic TRA and may never be made 
applicable to additional TRA. Paragraph (a)(2) is revised so as to be 
more explicit about the application of the waiver provision, and to 
provide that waiver determinations shall include all of the information 
required by Sec. 617.50(e), which thereby requires inclusion of notice 
of appeal rights in any such determination. This is in addition to 
other information specified in paragraph (a)(2) that is required to be 
furnished in the determination.
    Other important changes in paragraph (a) of Sec. 617.19 are the 
addition of clauses (3) and (4). Clause (3) is added to make certain 
that denial of a waiver also is a determination to which all of the 
requirements for determinations apply. Clause (4) is a restatement of 
the provision proposed in paragraph (c)(4), and is moved in paragraph 
(a) and revised to make more explicit the application of Secs. 617.50 
and 617.51 to all determinations under paragraph (a) and to provide 
expressly that this means and includes notice of appeal rights.
    Conforming changes are made in other paragraphs of Sec. 617.19, 
most significantly including a combining of the provisions of clauses 
(3) and (4) of paragraph (c) into a revised clause (3), and deleting 
the proposed clause (4). This revision makes clear that waiver 
revocations are determinations to which Secs. 617.50 and 617.51 apply, 
and that such determinations shall include all of the information 
required for determinations under paragraph (a), including notice of 
appeal rights.
    35. Waiver revocation. The NYDL commented on Sec. 617.19(a)(2)(iv), 
which mandates inclusion of the statement that the ``waiver will be 
revoked at any time suitable training becomes available.'' This 
statement would be appropriate only for waivers issued because suitable 
training is not currently available; however, there are numerous 
situations in which training may become available and yet a revocation 
of waiver would not be appropriate. Accordingly, the NYDL recommended 
the following statement as more appropriate: ``This waiver is subject 
to review at 30 day intervals.'' This would afford the states the 
needed latitude to assess the continuing validity of a waiver should 
training become available but remain inappropriate.
    Department's response. The Department agrees that the qualifying 
wording is too narrowly focused, but does not agree on affording States 
the broad latitude suggested by the NYDL. Accordingly, 
Sec. 617.19(a)(2)(iv) is revised by deleting the term ``suitable 
training'' and inserting in place thereof ``appropriate and feasible 
training'' as provided in amended section 231(c)(2) of the Act.
    36. Waiver reasons. The UAW commented that Sec. 617.19(b)(2)(i) as 
drafted should be of substantial assistance to State agencies in 
administering this provision. The UAW suggested that, for clarity, the 
Department repeat the criteria that ``the worker is so situated as to 
be able to take full advantage of the training'' at this point in the 
rule.
    Department's response. The Department believes that 
Sec. 617.19(b)(2) adequately covers the reasons for issuing a waiver 
when training is not feasible or appropriate. The UAW's point is 
covered under the criteria for approval of training. Therefore, no 
change is made in the regulations.
    37. Training limitation. The Nebraska Department of Labor (NDL) 
commented that Sec. 617.19(b)(2)(ii)(B) indicates that a course of 
training is not appropriate if the duration of training exceeds the 
individual's maximum entitlement to TRA payments. This would seem to 
limit appropriate training to a duration of 52 weeks when initial UI 
eligibility is 26 weeks. If this is the actual effect, it ignores the 
fact that an individual may enter training during the initial UI 
benefit period. When the individual enters training during the UI 
eligibility period, a training program of up to 78 weeks might be 
completed before exhausting TRA benefits. It seems further to preclude 
the possibility for an individual who enters training during the first 
13 weeks of UI to be eligible for needs based payments under EDWAA 
during the portion of a training period which might extend beyond the 
end of TRA eligibility. If this section in fact has these effects, they 
may be unintended, and should perhaps be reconsidered.
    Department's response. The TAA provisions of the Trade Act 
authorize the State to approve training for a worker for up to 104 
weeks; however, the maximum combined duration of UI and TRA payments 
generally is 78 weeks. If a training program longer than the worker's 
remaining eligibility for UI and TRA payments is being considered, the 
State administering agency should ensure that the individual has the 
financial resources to complete the training program after TRA payments 
expire. If such an assurance cannot be made, a training program of 
shorter duration should be considered for approval. The Department 
therefore agrees that the regulation is too strictly worded, and 
Sec. 617.19(b)(2)(ii)(B) is clarified in these final regulations. (See 
discussion in item J. above, on Revision of Sec. 617.22(a)(5).)
    38. Reasons for waiver. The VDET, commenting on 
Sec. 617.19(b)(2)(ii)(C), concerning reasons for issuing a waiver, 
asked why, after 26 weeks of UI, a person with skills for suitable 
employment has not become reemployed already. Simply allowing a waiver 
to be granted at this point in a person's unemployment seems to be at 
odds with the intent of all of the recently enacted Federal retraining 
legislation, and may actually exacerbate a situation where the worker 
has not been receiving the proper services which would result in new 
employment. The VDET recognized that there may be some circumstances 
where it would be unfair to the worker not to receive a waiver based on 
this condition. However, the VDET recommended making this condition an 
extreme one, by not specifically identifying it as a reason to grant a 
waiver.
    Department's response. The Department agrees that waivers should 
only be issued on a limited basis. As reflected in the VDET comment, 
however, there may be situations where such waivers are properly 
warranted. For example, when a firm agrees to employ a worker in the 
foreseeable future, no purpose would be served by having the worker 
enter training to learn other occupational skills. Therefore, the 
Department sees no need to make any change in the regulations.
    39. Every 30 days. The PDLI recommended that the parenthetical 
phrase ``(i.e., every 30 days or less)'' in Sec. 617.19(c)(1) be 
deleted as an unnecessary guideline with which compliance could be 
impossible. The OBES presented similar comments that the final rule 
should reflect administrative and logistical realities by specifying 
such period for waiver review to be 60 days. Basic TRA payments should 
be made once a waiver has been issued until such time as the waiver is 
revoked, and not require documentation of such waiver reviews on an 
ongoing or routine basis. The CEDD also recommended that the frequency 
of waiver reviews be changed to 60 days. The MESC recommended that 
waivers be reviewed every 90 days, while the ODHR recommended that the 
State have more flexibility in the frequency for reviewing waivers. The 
NJDL recommended that States be given authority to establish procedures 
for reviewing appropriate waivers.
    Department's response. A major objective of the 1988 Amendments is 
to enroll adversely affected workers in training programs to help 
facilitate their return to employment as quickly as possible. The 
Department believes that, when the training requirement is waived for 
an individual, proper program administration necessitates regular 
reviews of waivers issued by the State agencies. The frequency of such 
reviews at 30-day intervals is reasonable to carry out the provision 
requiring adversely affected workers to be enrolled in training for 
purposes of receiving TRA, particularly in light of the fact that TRA 
is a weekly benefit program and the 30-day rule only requires review 
approximately every four weeks. Section 231(c)(2)(B) provides that 
``If, after submitting to a worker a written statement * * * a State or 
State agency finds that it is feasible or appropriate to approve a 
training program for such worker pursuant to the requirements of 
section 236(a), the State or State agency shall submit to such worker * 
* * a written statement that revokes the certification * * *.'' To 
review waivers less frequently than every 30 days would not give the 
sense of urgency reflected in the law on placing adversely affected 
workers into training programs as soon as possible.
    However, the comments highlight an omission in the regulations, in 
that, in individual cases, when circumstances change, the need to 
revoke a waiver may arise earlier than the next periodic review, and, 
accordingly, necessitate action to revoke the certification before the 
next review date. Therefore, Sec. 617.19(c)(2) is amended to require 
revocation in individual cases at any time a change in circumstances 
occurs.
    40. Waiver determinations appealable. The MESC, commenting on 
Sec. 617.19(c)(4), stated that waiver actions should not be appealable 
determinations. If training is being denied, the denial and any appeal 
should come on the training determination, not on the waiver. 
Otherwise, duplicative appeals and confusion of issues will result. The 
waiver form should contain an explanatory statement, such as: ``If you 
disagree with this waiver action, you have the right to appeal any 
denial of training or trade readjustment allowances (TRA) that results 
from this action.''
    Department's response. See discussion under item 34, above. A 
determination on the feasibility and appropriateness of training, and 
the reason(s) therefor, constitutes the critical determination on 
whether a worker is subject to the EB work test regarding claims for 
basic TRA. Equally important is the relevance of a waiver in some 
cases. For example, a waiver is not appropriate concerning entitlement 
to additional TRA, because additional TRA is payable only while the 
worker is actually participating in training, and, in that case, the EB 
work test is not applicable. Similarly, a waiver is not appropriate 
during breaks in training. It is not needed if the break is not more 
than 14 days. A waiver is not appropriate if the break is more than 14 
days, since payment of basic or additional TRA in this case would be 
inconsistent with sections 231(a)(5), 233(a)(3), and 233(f). It is 
clear, therefore, that the determination resulting in the issuance, 
denial or revocation of a waiver presents justiciable issues, and, 
accordingly, determinations relating to waivers must be subject to the 
right of appeal and review. To deny the right of appeal and review on 
justiciable issues cannot be justified. Paragraph (c)(4) of 
Sec. 617.19, therefore, has a sound basis in law, and is unchanged in 
the final rule.
    41. Recording waivers. The NYDL, commenting on Sec. 617.19(d)(1), 
stated that recordkeeping and reporting of waivers issued and revoked 
by reason constitutes a very real problem in that the agency relies on 
time consuming manual systems. Any requirement in this regard must be 
accompanied by appropriate levels of administrative funding, 
specifically for this purpose, in order to yield reliable data.
    Department's response. The regulations at Sec. 617.19(d) (1) track 
the language of section 231(c)(3) of the Trade Act, which provides that 
the Secretary shall submit an annual report to Congress on the number 
of waivers issued and the number revoked. As explained in item 14 
above, matters concerning the administrative funding for all TAA 
activities are addressed in program letters and other issuances of the 
Department and will be addressed further in Sec. 617.60 when it is 
published. No special funding category is contemplated for this item. 
Therefore, no change is made in the final regulations.
    42. Reemployment plans. The NYDL commented that to require monthly 
reviews of individual reemployment plans, as implied in 
Sec. 617.20(b)(13), would not serve the worker in a constructive way, 
and to interview every adversely affected worker needlessly would place 
an unreasonable burden on the agency when there is a minimum amount of 
funds available for staff costs. The PDLI and the NJDL provided similar 
comments.
    Department's response. The Department concurs in the comments. It 
is not the Department's intent to have State agency staffs review 
individual reemployment plans every 30 days, as is required for waivers 
of the training requirement. Therefore, the rule is modified to provide 
for periodic review and updating of reemployment plans, as may be 
appropriate, in individual cases. The review of waivers, which is 
required no less frequently than every 30 days under Sec. 617.19(c)(1), 
is addressed in a new clause (14) in Sec. 617.20(b).
    43. Work in the ``foreseeable future''. The UAW, commenting on 
Sec. 617.22(a)(1)(ii), stated the proposed rule provides that training 
can be denied if there is a reasonable prospect of suitable work within 
the ``foreseeable future.'' The statute does not include this element, 
providing instead that there must be ``no suitable employment 
available'' to the adversely affected worker. The UAW argues that under 
the proposed rule, a worker could be denied TRA because training was 
not approved due to foreseeable work, even though the worker had no job 
to enter. The UCSP provided similar comments and recommended that the 
last part of the rule be eliminated.
    Department's response. This provision was incorporated in the 
regulations to preclude the approval of training when the worker is 
clearly scheduled to be employed or recalled. For that worker, suitable 
employment is ``available'' if the employment may occur in the 
foreseeable future. The purpose of including the provision in the rule 
is to give meaning to the first criterion of section 236(a)(1) and help 
preserve limited training funds for use by workers who need such 
assistance to return to employment. Labor-management agreements 
frequently provide for worker recall on a seniority basis. When recalls 
are scheduled in the foreseeable future, workers clearly do not need 
training in order to return to employment. In such situations, a waiver 
of the training requirement is appropriate and shall be issued by the 
State administering agency. Therefore, no change is made in 
Sec. 617.22(a)(1)(ii) of the regulations. However, as explained in item 
H. above, guidance is added in Secs. 617.19 (b)(1)(i)(B) and 
(b)(2)(ii)(A) for use by State agencies on the application of recall 
that will occur in the ``reasonably foreseeable future.''
    44. Suitable employment. The AFL-CIO, commenting on 
Sec. 617.22(a)(1)(ii), pointed out that the term ``suitable 
employment'' means work at no less than 80 percent of the worker's 
average weekly wage in such adversely affected employment. Since job 
benefits such as health insurance and pension entitlement must be 
coupled with wages to determine the total compensation of a position, 
this definition should be expanded to include ``and benefits valued at 
not less than 80 percent of those provided in the worker's adversely 
affected employment.''
    Department's response. The regulation uses the definition in 
section 236(e), and any change such as that suggested would require a 
change in the law. Therefore, no change is made in the regulations.
    45. Adversely affected wage. The MDLIR, commenting on 
Sec. 617.22(a)(1)(ii), explained that suitable employment is defined in 
the proposed rule as work of a substantially equal or higher skill 
level than the worker's past adversely affected employment and wages 
for such work at not less than 80 percent of the worker's average 
weekly wage in such adversely affected employment. The MDLIR asks why, 
since there does not appear to be a change in the law, the regulation 
was changed from average weekly wage to average weekly wage in 
adversely affected employment? In addition, the definition of average 
weekly wage in adversely affected employment makes reference to partial 
separation which, for separations on August 23, 1988 or later, will no 
longer establish TRA eligibility.
    Department's response. The Department agrees that the definition of 
``average weekly wage in adversely affected employment'' is used 
appropriately only in the definition of ``partial separation,'' and the 
definition of ``suitable work'' in section 236(e) does not include the 
reference to adversely affected employment. Therefore, to fully accord 
with the statute, the phrase ``in such adversely affected employment'' 
is removed from Sec. 617.22(a)(1)(ii).
    46. Training cost limit. The UAW, commenting on Sec. 617.22(b), 
pointed out that the Conference Committee rejected a proposed $4000 per 
worker limit on training costs, stating that ``it is inappropriate to 
establish a ceiling on training and related costs for individual 
workers since such costs may vary significantly from one region of the 
country to another and from one worker dislocation to another.'' The 
Department cannot give the States the authority to do indirectly what 
the Congress decided it would not let the Department do directly. The 
UAW recommended that this proposal should be dropped. The UCSP provided 
similar comments. The MESC also commented that it is contradictory to 
require States to establish a single maximum amount and then indicate 
that States should take into consideration the type of occupational 
training, duration of training, etc. The different types of training 
and varying durations render a single maximum cost meaningless. By 
applying Sec. 617.22(a)(6)(iv)(B), there will be sufficient cost 
control. Section 617.22(a)(6)(iv)(B) requires comparison of training 
similar in quality, content and results at different training 
facilities, and approval of the lowest cost training. Also, the ODHR 
recommended that more guidelines are needed in order to define the 
``maximum amount allowable for the total costs of training.'' 
Specifically, ODHR is concerned with overcoming inequities in setting 
an amount both for individuals in a rural area without training 
facilities and for individuals in an urban area with training 
facilities. The ODHR asked if it is the intent for the maximum amount 
allowable, because the cost of subsistence or mileage is part of the 
cost of training, to limit the kinds or duration of training for 
individuals in rural areas.
    Department's response. The Department agrees with the comments and 
is amending this section by eliminating the requirement that States 
establish, annually, a maximum amount allowable for the total cost of 
training for each worker. While the Congress did not establish a 
national ceiling for the costs of training for individual workers, the 
Conferees did state in the Conference Report that they expected the 
Secretary of Labor to set forth guidelines for State administering 
agencies to provide approved training at the lowest reasonable cost for 
the particular type of training in that region consistent with the 
objective of assisting import impacted workers to obtain suitable 
skills to return to work as quickly as possible. The 1988 Amendments 
clearly provide that State administering agencies shall approve 
training for individual workers at the lowest reasonable cost which 
will lead to employment and will result in training opportunities for 
the largest number of adversely affected workers. This means that State 
administering agencies should avoid approving training for occupations 
that require an extraordinarily high skill level relative to the 
worker's current skills level and for which total costs of training, 
including transportation and subsistence, are excessively high. While 
the final regulations eliminate the requirement for States to establish 
a maximum amount allowable for the total costs of training, they 
continue to provide that States approve training at the lowest 
reasonable cost for the particular type of training in that region that 
will lead to employment and will enable the worker to obtain employment 
within a reasonable period of time.
    47. Child care. The WESD, commenting on Sec. 617.22, stated it 
believed that child care is equally important as transportation and 
subsistence to include as a cost of training. The WESD recommended that 
child care be included under the definition for supportive services, as 
is transportation and subsistence. The WESD states that the 1981 
Amendments do not permit self-financed training and require TAA or 
other Federal, State, or private sources to ``pay the full costs of the 
training.'' Washington contends that the lack of child care would, in 
fact, require self payment of training costs and it should be included 
as part of the reasonable costs of training.
    Department's response. Section 236(b) authorizes transportation and 
subsistence expenses applicable to training. Child care is a supportive 
service to be obtained for individuals under section 235 of the Act 
(and Sec. 617.21(e)), and is not a training cost in the TAA program. 
Funds for the administration of sections 225, 231 through 235, 243 and 
244 of the Trade Act are appropriated in the State Unemployment 
Insurance and Employment Service Operations (SUIESO) account. The 
SUIESO account includes funds for the administration of section 235 
activities but not for the direct payment of supportive services for 
certified individuals. Since child care is a supportive service 
authorized by section 235 to be provided if available under ``any other 
Federal law'', no TAA funds are appropriated for such services.
    The Department's position is that the State administering agency, 
in carrying out its responsibilities under section 235 and 
Sec. 617.21(e), should make every reasonable effort to secure for 
adversely affected workers covered by a certification any supportive 
services, including child care, which are obtainable under any other 
Federal law, to help individuals in training and to obtain employment. 
No change is made in the regulations, but Sec. 617.21 is amended to 
make clear that supportive services are to be provided under other 
Federal law and may include child care.
    48. Other source funds. The MESC, commenting on Sec. 617.24(e), 
stated that this rule allows approval of training for which all, or any 
portion, of the cost of training is paid ``from any other source''. The 
MESC points out that the rule does not sufficiently define acceptable 
funding sources. Some limits are necessary. Acceptable funding sources 
should be limited to recognized employment and training programs, 
including employer training funds. Such funding sources as friends, 
relatives, and fraternal organizations should not be acceptable, but 
Sec. 617.24(e) does not preclude them.
    Department's response. The Department concurs in this comment and 
has modified Secs. 617.24(e)(2) and 617.25(b)(1) to clarify that other 
funding sources may not include sources personal to the individual, 
such as self, relatives, or friends. This is consistent with the 
Department's prior position on this matter.
    49. Equal monthly installments. The MESC questioned the application 
of the requirement in Sec. 617.25(a) that employers be paid in equal 
monthly installments for on-the-job training (OJT) programs. The MESC 
stated that problems are associated with trainees entering OJT programs 
in the middle of the month, trainees receiving raises in wages during 
the month, and trainees working different hours. The MESC explained 
that it has attempted to satisfy the intent of the equal monthly 
payment requirement by having the employer bill for the trainee's hours 
in training during the month, which results in approximately equal 
monthly payments. The Governor of Idaho and the WESD presented similar 
comments on Sec. 617.25. The Governor stated that the proposed rule 
will require Idaho and possibly many other States to incur additional 
administrative costs to pay for tracking OJT reimbursements. The WESD 
suggested that reimbursement to employers for actual hours worked by 
the trainee, on a monthly basis, would eliminate overpayments.
    Department's response. The Department recognizes that the statutory 
provision requiring payments for OJT to be made to employers in equal 
monthly installments is presenting problems in negotiating and 
reimbursing employers for OJT contracts. In negotiating OJT contracts 
with employers, reasonable costs should be based on the achievement of 
a prescribed level of job skills, rather than being based solely on the 
hourly wages of the worker. The hourly wages should serve only as a 
guide for establishing OJT contract costs. A raise in the worker's 
wages implies increased proficiency of the worker and higher 
productivity, and may not form the basis for increasing training costs. 
Once the cost of OJT for a worker is established, payments can be made 
in equal monthly installments, with any required adjustment made in the 
final payment to the employer.
    What appears to be troubling to States in administering this 
provision is thinking of equal monthly installments in terms of equal 
``dollar'' amounts. Instead, it appears most reasonable to base the 
``equal monthly installments'' on the number of hours of paid work 
during the month, multiplied by the agreed upon rate of payment. 
Although this would not assure the same dollar figure for each month, 
it is nonetheless ``equal'' in the sense that the payment for each 
month is computed at the same rate. This method would appear to ad-
dress the concerns expressed in the comments received, and may be 
accomplished under the present reading of Sec. 617.25(a). For these 
reasons, no change is made in the regulations.
    50. Pell and similar grants. The ODHR, commenting on 
Sec. 617.25(b)(4)(i)(A)(2), stated the rule is clear that when the 
direct payment of the costs of training has been made under any other 
Federal law, or the costs are reimbursable under any other Federal law 
and a portion of the direct costs has already been paid under such 
other Federal law, payment of such training costs may not be made from 
TAA funds. The ODHR points out, however, that grants, such as Pell 
Grants, are often paid directly to the institution to be applied toward 
tuition. The ODHR feels this contingency should be addressed here and 
that these funds should be allowed in these cases in determining costs 
payable from TAA funds for training.
    Department's response. The Department agrees that complications are 
presented in considering appropriate TAA funding in the case of Pell 
Grants and similar Federal educational assistance. Section 
617.25(b)(4)(ii)(C) provides, in implementing section 236(a)(4)(C), 
that such federal educational assistance paid to the individual may not 
be taken into account in determining payment of the costs of training 
from TAA or other funds, but such payments to the individual shall be 
deducted from TRA under Sec. 617.13(c)(2). Conversely, when such 
Federal educational assistance is paid to the training institution, to 
the extent it is used for training costs otherwise payable from TAA 
funds, it must be taken into account in determining the training costs 
payable from TAA funds, either alone or in combination with other 
funds. To clarify this matter, the regulations at 
Sec. 617.25(b)(4)(ii)(C) are modified; combination funding is otherwise 
addressed in more detail in the completely revised Sec. 617.25.
    51. OJT approval. The AFL-CIO recommended that additional standards 
be added in Sec. 617.25(a) concerning the approval of on-the-job 
training agreements. Further, the AFL-CIO recommended that since 
employers available to provide OJT under TAA have offered such training 
under JTPA, those who failed to meet JTPA requirements should be barred 
from receiving TAA funds for such training. Such a requirement is 
clearly in keeping with the emphasis on coordination of TAA program 
activities with the JTPA Title III program.
    Department's response. The requirements in Sec. 617.25(a) are based 
on existing statutory language, and provide adequate protection to 
workers from adverse effects under OJT training contracts. The 
Department agrees that contracts under the TAA program for OJT should 
not be entered into with employers who failed to meet JTPA 
requirements. While Sec. 617.25 (a)(9) and (a)(10) are intended to 
avoid such situations, the final rule is clarified to help ensure that 
employers who violated a JTPA training contract will be denied TAA 
training contracts. The words ``or under any other Federal law'' is 
added after ``this Subpart C'' in paragraph (a)(9) of Sec. 617.25, with 
another addition at the end of paragraph (a)(9) to make this point 
clear.
    52. Information on waivers. The UCSP, commenting on Sec. 617.67(c), 
argues that workers should be furnished information on applying for a 
waiver of the training requirement in order to receive TRA payments.
    Department's response. The Department does not believe a specific 
provision is needed for the reasons explained in the response to item 
12, above.
    53. Homework. The Amalgamated Clothing and Textile Workers Union 
(ACTWU) commented that a major problem has recently arisen which 
affects workers, when the Department lifted the restrictions 
prohibiting homework in five of the six industries, and announced it 
will shortly lift the re-straints on homework in the women's and 
children's apparel industry. While this matter is not finally resolved 
due to court challenges, the TAA regulations have to anticipate the 
situation of potentially extensive homework in these industries.
    Department's response. This issue is beyond the scope of the 1988 
Amendments to the TAA program, and the final rule in this document.
    Other changes. In addition to the changes discussed above in 
responses to comments received, other changes are made in the final 
rule in this document to correct printing errors, and to make technical 
and conforming changes that either do not affect the substance of the 
regulations, or, in the case of other provisions (including the 
transition provisions of Sec. 617.67), are necessary to conform to 
other changes in the final regulations. Further, references to 
compliance with ``the Act and this Part'' are changed to eliminate 
references to the Act so that it is clear that the regulations are 
controlling and express the Department's interpretations of the Act.

Drafting Information

    This document was prepared under the direction and control of the 
Director, Office of Trade Adjustment Assistance, Employment and 
Training Administration, U.S. Department of Labor, 200 Constitution 
Avenue NW., Washington, DC 20210: telephone: (202) 219-5555 (this is 
not a toll free number).

Classification Executive Order 12866

    The final rule in this document is not classified as a ``major 
rule'' under Executive Order 12866 on Federal Regulations, because it 
is not likely to result in (1) an annual effect on the economy of $100 
million or more; (2) a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; or (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic or export markets.

Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
of 1980, 44 U.S.C. Ch. 35, approval of the recordkeeping requirement 
contained at Secs. 617.19(d) and 617.57 has been obtained from the 
Office of Management and Budget (control number 12050016, for reporting 
forms ETA 563 and ETA 9027). OMB control number 12050222 applies to 
forms used by States to convey reports to the Department as required in 
Secs. 617.52(c) and 617.54.

Regulatory Flexibility Act

    No regulatory flexibility analysis is required where the rule 
``will not . . . have a significant economic impact on a substantial 
number of small entities.'' 5 U.S.C. 605(b). The definition of the term 
``small entity'' under 5 U.S.C. 601 (6) does not include States. Since 
these regulations involve an entitlement program administered by the 
States, and are directed to the States, no regulatory flexibility 
analysis is required. The Secretary has certified to the Chief Counsel 
for Advocacy of the Small Business Administration to this effect. 
Accordingly, no regulatory flexibility analysis is required.

Catalog of Federal Domestic Assistance Number

    This program is listed in the Catalog of Federal Domestic 
Assistance at No. 17.245, ``Trade Adjustment Assistance--Workers.''

List of Subjects in 20 CFR Part 617

    Job search assistance, labor, reemployment services, relocation 
assistance, trade readjustment allowances, unemployment compensation, 
vocational education.

Words of Issuance

    For the reasons set out in the preamble, part 617 of title 20, Code 
of Federal Regulations, is amended as set forth below.

    Signed at Washington, DC on December 21, 1993.
Doug Ross,
Assistant Secretary of Labor.

PART 617--TRADE ADJUSTMENT ASSISTANCE FOR WORKERS

    1. The authority for part 617 continues to read as follows:

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

    2. Paragraphs (j), (m), (t), (aa), (ff), and (oo)(4) of Sec. 617.3 
are revised to read as follows:


Sec. 617.3  Definitions.

* * * * *
    (j)(1) Certification means a certification of eligibility to apply 
for TAA issued under section 223 of the Act with respect to a specified 
group of workers of a firm or appropriate subdivision of a firm.
    (2) Certification period means the period of time during which 
total and partial separations from adversely affected employment within 
a firm or appropriate subdivision of a firm are covered by the 
certification.
* * * * *
    (m) Eligibility period means the period of consecutive calendar 
weeks during which basic or additional TRA is payable to an otherwise 
eligible individual, and for an individual such eligibility period is--
    (1) Basic TRA. (i) With respect to a first qualifying separation 
(as defined in paragraph (t)(3)(i)(A) of this section) that occurs on a 
day that precedes August 23, 1988, the 104-week period beginning with 
the first week following the week with respect to which the individual 
first exhausts all rights to regular compensation (as defined in 
paragraph (oo)(1) of this section) in such individual's first benefit 
period (as described in Sec. 617.11(a)(1)(iv)) or 
Sec. 617.11(a)(2)(iv), whichever is applicable), and
    (ii) With respect to a total qualifying separation (as defined in 
paragraph (t)(3)(i)(B) of this section) that occurs on or after August 
23, 1988--or before August 23, 1988, if the individual also had a prior 
first qualifying separation under the same certification--the 104-week 
period beginning with the first week following the week in which such 
total qualifying separation occurred;
    Provided, that, an individual who has a second or subsequent total 
qualifying separation within the certification period of the same 
certification shall be determined to have a new 104-week eligibility 
period based upon the most recent such total qualifying separation; but 
the rule of this proviso shall not be applicable in the case of an 
individual who had a total qualifying separation before August 23, 
1988, and also had a prior first qualifying separation (as referred to 
in paragraph (m)(1)(i) of this section) within the certification period 
of the same certification, if the individual's 104-week eligibility 
period based upon the total qualifying separation (as referred to in 
paragraph (m)(1)(i) of this section) would end on a date earlier than 
the ending date of the individual's eligibility period which is based 
upon the prior first qualifying separation; and
    (2) Additional TRA. With respect to additional weeks of TRA, and 
any individual determined under this part 617 to be entitled to 
additional TRA, the consecutive calendar weeks that occur in the 26-
week period that--
    (i) Immediately follows the last week of entitlement to basic TRA 
otherwise payable to the individual, or
    (ii) Begins with the first week of training approved under this 
part 617, if such training begins after the last week described in 
paragraph (m)(2)(i) of this section, or
    (iii) Begins with the first week in which such training is approved 
under this part 617, if such training is so approved after the training 
has commenced; but approval of training under this part 617 after the 
training has commenced shall not imply or justify approval of a payment 
of basic or additional TRA with respect to any week which ended before 
the week in which such training was approved, nor approval of payment 
of any costs of training or any costs or expenses associated with such 
training (such as travel or subsistence) which were incurred prior to 
the date of the approval of such training under this part 617.
* * * * *
    (t)(1) First separation means, for an individual to qualify as an 
adversely affected worker for the purposes of TAA program benefits 
(without regard to whether the individual also qualifies for TRA), the 
individual's first total or partial separation within the certification 
period of a certification, irrespective of whether such first 
separation also is a qualifying separation as defined in paragraph 
(t)(2) of this section;
    (2) Qualifying separation means, for an individual to qualify as an 
adversely affected worker and for basic TRA--
    (i) Prior to August 23, 1988, the individual's first (total or 
partial) separation within the certification per-iod of a 
certification, with respect to which the individual meets all of the 
requirements of Sec. 617.11(a)(1) (i) through (iv), and which qualifies 
as a first qualifying separation as defined in paragraph (t)(3)(i)(A) 
of this section, and
    (ii) At any time before, on, or after August 23, 1988, any total 
separation of the individual within the certification period of a 
certification (other than a first qualifying separation as defined in 
paragraph (t)(3)(i)(A) of this section), with respect to which the 
individual meets all of the requirements in Sec. 617.11(a)(2) (i) 
through (iv), and which qualifies as a total qualifying separation as 
defined in paragraph (B) of (t)(3)(i)(B) of this section;
    (3) ``First qualifying separation'' means--
    (i) For the purposes of determining an individual's eligibility 
period for basic TRA--
    (A) with respect to a separation that occurs before August 23, 
1988, the individual's first (total or partial) separation within the 
certification period of a certification, with respect to which the 
individual meets all of the requirements of Sec. 617.11(a)(1) (i) 
through (iv), and
    (B) with respect to a separation that occurs before, on, or after 
August 23, 1988 (other than a first qualifying separation as defined in 
paragraph (t)(3)(i)(A) of this section), the first total separation of 
the individual within the certification period of a certification, with 
respect to which the individual meets all of the requirements in 
Sec. 617.11(a)(2) (i) through (iv); and
    (ii) For the purposes of determining the weekly and maximum amounts 
of basic TRA payable to an individual, with respect to a separation 
that occurs before, on, or after August 23, 1988, the individual's 
first (total or partial) separation within the certification period of 
a certification if, with respect to such separation, the individual 
meets the requirements of Sec. 617.11(a)(1) (i), (ii) and (iv) or 
Sec. 617.11(a)(2) (i), (ii) and (iv).
* * * * *
    (aa) Liable State and Agent State are defined as follows:
    (1) Liable State means, with respect to any individual, the State 
whose State law is the applicable State law as determined under 
Sec. 617.16 for all purposes of this Part 617.
    (2) Agent State means, with respect to any individual, any State 
other than the State which is the liable State for such individual.
* * * * *
    (ff)(1) Secretary means the Secretary of Labor of the United States 
of America.
    (2) Department of Labor or Department means the United States 
Department of Labor or the Employment and Training Administration 
within the Department.
* * * * *
    (oo) * * *
    (4) Federal supplemental compensation means the supplemental 
unemployment compensation payable to individuals who have exhausted 
their rights to regular and extended compensation, and which is payable 
under the Federal Supplemental Compensation Act of 1982 or any similar 
Federal law enacted before or after the 1982 Act.
* * * * *
    4. Sections 617.3(h)(1) and 617.3(kk) (1) and (2) are revised to 
read as follows.


Sec. 617.3  Definitions.

* * * * *
    (h) Benefit period * * *
    (1) The benefit year and any ensuing period, as determined under 
the applicable State law, during which the individual is eligible for 
regular compensation, additional compensation, extended compensation, 
or federal supplemental compensation, as these terms are defined by 
paragraph (oo) of this section; or
* * * * *
    (kk) Suitable work * * *
    (1) Suitable work as defined in the applicable State law for 
claimants for regular compensation (as defined in paragraph (oo)(1) of 
this section); or
    (2) Suitable work as defined in applicable State law provisions 
consistent with section 202(a)(3) of the Federal-State Extended 
Unemployment Compensation Act of 1970;

whichever is applicable, but does not in any case include self-
employment or employment as an independent contractor.
* * * * *
    5. Section 617.4 is amended by revising the heading of paragraph 
(c) and adding new paragraphs (d) and (e) to read as follows:


Sec. 617.4  Benefit information to workers.

* * * * *
    (c) Providing information to State vocational education agencies 
and others. * * *
    (d) Written and newspaper notices. (1) Written notices to workers. 
(i) Upon receipt of a certification issued by the Department of Labor, 
the State agency shall provide a written notice through the mail of the 
benefits available under subparts B through E of this part 617 to each 
worker covered by a certification issued under section 223 of the Act 
when the worker is partially or totally separated or as soon as 
possible after the certification is issued if such workers are already 
partially or totally separated from adversely affected employment.
    (ii) The State agency will satisfy this requirement by obtaining 
from the firm, or other reliable source, the names and addresses of all 
workers who were partially or totally separated from adversely affected 
employment before the certification was received by the agency, and 
workers who are thereafter partially or totally separated within the 
certification period. The State agency shall mail a written notice to 
each such worker of the benefits available under the TAA Program. The 
notice must include the following information:
    (A) Worker group(s) covered by the certification, and the 
article(s) produced as specified in the copy of the certification 
furnished to the State agency.
    (B) Name and the address or location of workers' firm.
    (C) Impact, certification, and expiration dates in the 
certification document.
    (D) Benefits and reemployment services available to eligible 
workers.
    (E) Explanation of how workers apply for TAA benefits and services.
    (F) Whom to call to get additional information on the 
certification.
    (G) When and where the workers should come to apply for benefits 
and services.
    (2) Newspaper notices. (i) Upon receipt of a copy of a 
certification issued by the Department affecting workers in a State, 
the State agency shall publish a notice of such certification in a 
newspaper of general circulation in areas in which such workers reside. 
Such a newspaper notice shall not be required to be published, however, 
in the case of a certification with respect to which the State agency 
can substantiate, and enters in its records evidence substantiating, 
that all workers covered by the certification have received written 
notice required by paragraph (d)(1) of this section.
    (ii) A published notice must include the following kinds of 
information:
    (A) Worker group(s) covered by the certification, and the 
article(s) produced as specified in the copy of the certification 
furnished to the State agency.
    (B) Name and the address or location of workers' firm.
    (C) Impact, certification, and expiration dates in the 
certification document.
    (D) Benefits and reemployment services available to eligible 
workers.
    (E) Explanation of how and where workers should apply for TAA 
benefits and services.
    (e) Advice and assistance to workers. In addition to the 
information and assistance to workers as required under paragraphs (a) 
and (b) of this section, State agencies shall--
    (1) Advise each worker who applies for unemployment insurance under 
the State law of the benefits available under subparts B through E of 
this part and the procedures and deadlines for applying for such 
benefits.
    (2) Facilitate the early filing of petitions under section 221 of 
the Act and Sec. 617.4(b) for any workers that the agency considers are 
likely to be eligible for benefits. State agencies shall utilize 
information received by the State's dislocated worker unit to 
facilitate the early filing of petitions under section 221 of the Act 
by workers potentially adversely affected by imports.
    (3) Advise each adversely affected worker to apply for training 
under Sec. 617.22(a) before, or at the same time as, the worker applies 
for trade readjustment allowances under subpart B of this part.
    (4) Interview each adversely affected worker, as soon as 
practicable, regarding suitable training opportunities available to the 
worker under Sec. 617.22(a) and review such opportunities with the 
worker.
    6. Section 617.10 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 617.10  Applications for TRA.

* * * * *
    (d) Advising workers to apply for training. State agencies shall 
advise each worker of the qualifying requirements for entitlement to 
TRA and other TAA benefits at the time the worker files an initial 
claim for State UI, and shall advise each adversely affected worker to 
apply for training under subpart C of this part before, or at the same 
time, the worker applies for TRA, as required by Sec. 617.4(e)(1) and 
(3).
    7. Section 617.11 is revised to read as follows:


Sec. 617.11  Qualifying requirements for TRA.

    (a) Basic qualifying requirements for entitlement--(1) Prior to 
November 21, 1988. To qualify for TRA for any week of unemployment that 
begins prior to November 21, 1988, an individual must meet each of the 
following requirements of paragraphs (a)(1) (i) through (vii) of this 
section:
    (i) Certification. The individual must be an adversely affected 
worker covered under a certification.
    (ii) Separation. The individual's first qualifying separation (as 
defined in paragraph (t)(3)(i) of Sec. 617.3) before application for 
TRA must occur:
    (A) On or after the impact date of such certification; and
    (B) Before the expiration of the two-year period beginning on the 
date of such certification, or, if earlier, before the termination 
date, if any, of such certification.
    (iii) Wages and employment. (A) In the 52-week period (i.e., 52 
consecutive calendar weeks) ending with the week of the individual's 
first qualifying separation, the individual must have had at least 26 
weeks of employment at wages of $30 or more a week in adversely 
affected employment with a single firm or subdivision of a firm. 
Evidence that an individual meets this requirement shall be obtained as 
provided in Sec. 617.12. Employment and wages covered under more than 
one certification may not be combined to qualify for TRA.
    (B)(1) For the purposes of paragraph (a)(1)(iii) of this section, 
any week in which such individual--
    (i) is on employer-authorized leave from such adversely affected 
employment for purposes of vacation, sickness, injury, maternity, or 
inactive duty or active duty military service for training, or
    (ii) does not work in such adversely affected employment because of 
a disability compensable under a workers' compensation law or plan of a 
State or the United States, or
    (iii) had adversely affected employment interrupted to serve as a 
full-time representative of a labor organization in such firm or 
subdivision,

shall be treated as a week of employment at wages of $30 or more;
    (2) Provided, that--
    (i) not more than 7 weeks in the case of weeks described in 
paragraph (a)(1)(iii)(B)(1)(i) or paragraph (a)(1)(iii)(B)(1)(iii) of 
this section, or both, and (ii) not more than 26 weeks described in 
paragraph (a)(1)(iii)(B)(1)(ii) of this section,

may be treated as weeks of employment for purposes of paragraph 
(a)(1)(iii) of this section.
    (C) Wages and employment creditable under paragraph (a)(1)(iii) of 
this section shall not include employment or wages earned or paid for 
employment which is contrary to or prohibited by any Federal law.
    (iv) Entitlement to UI. The individual must have been entitled to 
(or would have been entitled to if the individual had applied therefor) 
UI for a week within the benefit period--
    (A) in which the individual's first qualifying separation occurred, 
or
    (B) which began (or would have begun) by reason of the filing of a 
claim for UI by the individual after such first qualifying separation.
    (v) Exhaustion of UI. The individual must:
    (A) Have exhausted all rights to any UI to which the individual was 
entitled (or would have been entitled to if the individual had applied 
therefor); and
    (B) Not have an unexpired waiting period applicable to the 
individual for any such UI.
    (vi) Extended Benefit work test. (A) The individual must--
    (1) Accept any offer of suitable work, as defined in 
Sec. 617.3(kk), and actually apply for any suitable work the individual 
is referred to by the State agency, and
    (2) Actively engage in seeking work and furnish the State agency 
tangible evidence of such efforts each week, and
    (3) Register for work and be referred by the State agency to 
suitable work,

in accordance with those provisions of the applicable State law which 
apply to claimants for Extended Benefits and which are consistent with 
Part 615 of this Chapter.
    (B) The Extended Benefit work test shall not apply to an individual 
with respect to claims for TRA for weeks of unemployment beginning 
prior to the filing of an initial claim for TRA, nor for any week which 
begins before the individual is notified that the individual is covered 
by a certification issued under the Act and is fully informed of the 
Extended Benefit work test requirements of paragraph (a)(1)(vi) of this 
section and Sec. 617.17. Prior to such notification and advice, the 
individual shall not be subject to the Extended Benefit work test 
requirements, nor to any State timely filing requirement, but shall be 
required to be unemployed and able to work and available for work with 
respect to any such week except as provided for workers in approved 
training in Sec. 617.17(b)(1).
    (vii) Job search program participation. (A) The individual is 
enrolled in, participating in, or has successfully completed a job 
search program which meets the requirements of Sec. 617.49(a); or the 
State agency has determined that no acceptable job search program is 
reasonably available under the criteria set forth in Sec. 617.49(c).
    (B) The job search program requirement shall not apply to an 
individual with respect to claims for TRA for weeks of unemployment 
beginning prior to the filing of an initial claim for TRA, nor for any 
week which begins before the individual is notified that the individual 
is covered by a certification issued under the Act and is fully 
informed of the job search program requirement of paragraph (a)(1)(vii) 
of this section and Sec. 617.49.
    (C) The job search program requirement shall not apply to an 
individual, as a qualifying requirement for TRA, with respect to any 
week ending after November 20, 1988, but cooperating State agencies are 
encouraged to continue to utilize job search programs after November 
20, 1988, as an effective tool to assist adversely affected workers in 
finding suitable employment, particularly unemployed workers who have 
completed training or for whom the training requirement has been waived 
under Sec. 617.19.
    (2) On and after November 21, 1988. To qualify for TRA for any week 
of unemployment that begins on or after November 21, 1988, an 
individual must meet each of the following requirements of paragraphs 
(a)(2) (i) through (vii) of this section:
    (i) Certification. The individual must be an adversely affected 
worker covered under a certification.
    (ii) Separation. The individual's first qualifying separation (as 
defined in paragraph (t)(3)(i) of Sec. 617.3) before application for 
TRA must occur:
    (A) On or after the impact date of such certification; and
    (B) Before the expiration of the two-year period beginning on the 
date of such certification, or, if earlier, before the termination 
date, if any, of such certification.
    (iii) Wages and employment. (A) In the 52-week period (i.e., 52 
consecutive calendar weeks) ending with the week of the individual's 
first qualifying separation, or any subsequent total qualifying 
separation under the same certification, the individual must have had 
at least 26 weeks of employment at wages of $30 or more a week in 
adversely affected employment with a single firm or subdivision of a 
firm. Evidence that an individual meets this requirement shall be 
obtained as provided in Sec. 617.12. Employment and wages covered under 
more than one certification may not be combined to qualify for TRA.
    (B)(1) For the purposes of paragraph (a)(2)(iii) of this section, 
any week in which such individual--
    (i) Is on employer-authorized leave from such adversely affected 
employment for purposes of vacation, sickness, injury, maternity, or 
inactive duty or active duty military service for training, or
    (ii) Does not work in such adversely affected employment because of 
a disability compensable under a workers' compensation law or plan of a 
State or the United States, or
    (iii) Had adversely affected employment interrupted to serve as a 
full-time representative of a labor organization in such firm or 
subdivision, or
    (iv) Is on call-up for the purpose of active duty in a reserve 
status in the Armed Forces of the United States (if such week began 
after August 1, 1990), provided such active duty is ``Federal service'' 
as defined in part 614 of this chapter,

shall be treated as a week of employment at wages of $30 or more;
    (2) Provided, that--
    (i) Not more than 7 weeks in the case of weeks described in 
paragraph (a)(2)(iii)(B)(1) (i) or (iii) of this section, or both, and
    (ii) Not more than 26 weeks described in paragraph 
(a)(2)(iii)(B)(1) (ii) or (iv) of this section,

may be treated as weeks of employment for purposes of paragraph 
(a)(2)(iii) of this section.
    (C) Wages and employment creditable under paragraph (a)(2)(iii) of 
this section shall not include employment or wages earned or paid for 
employment which is contrary to or prohibited by any Federal law.
    (iv) Entitlement to UI. The individual must have been entitled to 
(or would have been entitled to if the individual had applied therefor) 
UI for a week within the benefit period--
    (A) in which the individual's first qualifying separation occurred, 
or
    (B) which began (or would have begun) by reason of the filing of a 
claim for UI by the individual after such first qualifying separation.
    (v) Exhaustion of UI. The individual must:
    (A) Have exhausted all rights to any UI to which the individual was 
entitled (or would have been entitled if the individual had applied 
therefor); and
    (B) Not have an unexpired waiting period applicable to the 
individual for any such UI.
    (vi) Extended Benefit work test. (A) The individual must--
    (1) Accept any offer of suitable work, as defined in 
Sec. 617.3(kk), and actually apply for any suitable work the individual 
is referred to by the State agency, and
    (2) Actively engage in seeking work and furnish the State agency 
tangible evidence of such efforts each week, and
    (3) Register for work and be referred by the State agency to 
suitable work,

in accordance with those provisions of the applicable State law which 
apply to claimants for Extended Benefits and which are consistent with 
part 615 of this chapter.
    (B) The Extended Benefit work test shall not apply to an individual 
with respect to claims for TRA for weeks of unemployment beginning 
prior to the filing of an initial claim for TRA, nor for any week which 
begins before the individual is notified that the individual is covered 
by a certification issued under the Act and is fully informed of the 
Extended Benefit work test requirements of paragraph (a)(2)(vi) of this 
section and Sec. 617.17. Prior to such notification and advice, the 
individual shall not be subject to the Extended Benefit work test 
requirements, nor to any State timely filing requirement, but shall be 
required to be unemployed and able to work and available for work with 
respect to any such week except as provided in Sec. 617.17(b)(2) for 
workers enrolled in, or participating in, a training program approved 
under Sec. 617.22(a).
    (vii) Participation in training. (A) The individual must--
    (1) Be enrolled in or participating in a training program approved 
pursuant to Sec. 617.22(a), or
    (2) Have completed a training program approved under 
Sec. 617.22(a), after a total or partial separation from adversely 
affected employment within the certification period of a certification 
issued under the Act, or
    (3) Have received from the State agency a written statement under 
Sec. 617.19 waiving the participation in training requirement for the 
individual.
    (B) The participation in training requirement of paragraph 
(a)(2)(vii) of this section shall not apply to an individual with 
respect to claims for TRA for weeks of unemployment beginning prior to 
the filing of an initial claim for TRA, nor for any week which begins 
before the individual is notified that the individual is covered by a 
certification issued under the Act and is fully informed of the 
participation in training requirement of paragraph (a)(2)(vii) of this 
section and Sec. 617.19.
    (C) The participation in training requirement of paragraph 
(a)(2)(vii) of this section shall apply, as a qualifying requirement 
for TRA, to an individual with respect to claims for TRA for weeks of 
unemployment commencing on or after November 21, 1988, and beginning 
with the first week following the week in which a certification 
covering the individual is issued under the Act, unless the State 
agency has issued a written statement to the individual under 
Sec. 617.19 waiving the participation in training requirement for the 
individual.
    (D) For purposes of paragraph (a)(2)(vii) of this section, the 
following definitions shall apply:
    (1) Enrolled in Training. A worker shall be considered to be 
enrolled in training when the worker's application for training is 
approved by the State agency and the training institution has furnished 
written notice to the State agency 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. (A waiver under Sec. 617.19 shall not be 
required for an individual who is enrolled in training as defined 
herein.)
    (2) Completed Training. A worker shall be considered to have 
completed a training program if the training program was approved, or 
was approvable and is approved, pursuant to Sec. 617.22, and the 
training was completed subsequent to the individual's total or partial 
separation from adversely affected employment within the certification 
period of a certification issued under the Act, and the training 
provider has certified that all the conditions for completion of the 
training program have been satisfied.
    (3) Special rules for workers separated in 1981 to 1986 period. (i) 
Basic conditions. Under section 1425(b) of the Omnibus Trade and 
Competitiveness Act of 1988 (the ``OTCA'') (Pub. L. 100-418) the time 
limit on the eligibility period for basic TRA in section 233(a)(2) of 
the Act (before and after the amendment by Public Law 100-418), and the 
210-day time limit in section 233(b) of the Act on the filing of a bona 
fide application for training in order to qualify for additional TRA, 
are set aside and shall be disregarded for any individual separated 
from adversely affected employment in the period which began on August 
13, 1981, and ended on April 7, 1986: Provided, That, any such 
individual must meet all of the following requirements of paragraphs 
(a)(3)(i)(A) through (E) of this section to qualify for TRA for any 
week.
    (A) Period of separation. The separation of the individual must 
have occurred on a date within the period which began on August 13, 
1981 and ended on April 7, 1986.
    (B) Total separation required. Such separation must be a ``total 
separation'' as defined in Sec. 617.3(ll), and a ``total qualifying 
separation'' as defined in Sec. 617.3(t)(3)(i)(B); and, for the 
purposes of determining whether an individual has been continuously 
unemployed, as defined in Sec. 617.3(t)(3)(i)(E), only the last such 
total separation within the August 13, 1981 to April 7, 1986 period 
shall be taken into account.
    (C) Other standard requirements. The individual must, with respect 
to such total separation, meet all of the requirements of paragraphs 
(a)(2)(i) through (v) of this section.
    (D) Participation in training. (1) The individual must meet the 
requirements of paragraph (a)(2)(vii) of this section, with respect to 
being enrolled in or participating in a training program approved 
pursuant to Sec. 617.22(a), as to each week TRA is claimed, and not be 
ineligible under Sec. 617.18(b)(2) for failure to begin participation 
in such training or for ceasing to participate in such training.
    (2) With respect to participation in training, as required under 
paragraph (a)(3) of this section, the break in training provisions of 
Sec. 617.15(d) shall be applicable, and the waiver of participation 
provisions in Sec. 617.19 shall not be applicable.
    (E) Continuously unemployed. (1) The individual must have been 
continuously unemployed since the date of the individual's total 
separation referred to in paragraph (a)(2)(vii)(B) of this section, not 
taking into account for the purposes of this determination any work in 
which the individual was employed in seasonal employment, odd jobs, or 
part-time, temporary employment.
    (2) For purposes of Sec. 617.11(a)(3)(i)(E)(1), continuously 
unemployed shall mean the individual has not been engaged in any 
employment, except for seasonal employment, odd-jobs, or part-time, 
temporary employment. Employment shall be considered:
    (i) Seasonal employment when seasonality provisions of the 
applicable State law are applicable to such employment; or
    (ii) An odd job when the established period of employment occurs 
within five (5) consecutive days or less; or
    (iii) Part-time, temporary employment when a termination date of 
one hundred fifty (150) days or less was established at the time of 
employment, and the average weekly hours for the job, over the period 
of employment, was less than 30 hours per week.
    (ii) TRA payments prospective only. The provisions of paragraph 
(a)(3) of this section apply to payments of TRA only for weeks which 
begin after August 23, 1988, and with respect to training in which the 
individual becomes enrolled and begins participation before or after 
such date, and which is approved under Sec. 617.22(a) before or after 
such date. No payment of TRA may be authorized under paragraph (a)(3) 
of this section for any week which ends before such training is 
approved under Sec. 617.22(a).
    (iii) Other special rules. (1) Although the last total qualifying 
separation of an individual will be used for the purposes of the 
determination under paragraph (a)(3)(i)(B) of this section, the 
individual's first qualifying separation (as defined in paragraph 
(t)(3)(ii) of Sec. 617.3) must be used to determine the weekly and 
maximum amounts payable to the individual in accordance with 
Secs. 617.13 and 617.14.
    (2) No individual shall be determined to be eligible for TRA under 
paragraph (a)(3) of this section if the individual has previously 
received all of the basic and additional TRA to which the individual 
was entitled.
    (3) The 26-week eligibility period for additional TRA is applicable 
under paragraph (a)(3) of this section, as such term is defined in 
paragraph (m)(2) of Sec. 617.3.
    (4) Special rules for oil and gas workers--retroactive. (i) Basic 
conditions. Under section 1421(a)(1)(B) of the OTCA, individuals 
employed by independent firms engaged in exploration or drilling for 
oil and natural gas who were separated after September 30, 1985, may be 
entitled, retroactively, to TAA program benefits, but only if, as to 
any such individual, all of the conditions in the following provisions 
of paragraph (a)(4) of this section are met.
    (ii) Prior certification. Individuals covered by this paragraph 
(a)(4) do not include any individual covered under a certification 
(made with respect to the same firm or subdivision of a firm) that was 
issued under section 223 of the Act without regard to the amendments to 
section 222 of the Act (relating to oil and gas workers) made by 
section 1421 (a)(1)(A) of the OTCA.
    (iii) Petition. (A) To apply for a certification under section 223 
covering workers referred to in section 1421 (a)(1)(B) of the OTCA, a 
petition must have been filed in the Office of Trade Adjustment 
Assistance after August 23, 1988, and on or before November 18, 1988, 
by or on behalf of a group of workers of such a firm or subdivision of 
a firm.
    (B) A petition, to be valid, may not be signed by or on behalf of 
an individual referred to in paragraph (a)(4)(ii) of this section.
    (iv) Certification. (A) As provided in section 1421(a) (1)(B) of 
the OTCA, a certification issued pursuant to section 223 of the Act 
will not be subject to the one-year limitation on the impact date which 
is specified in section 223(b) of the Act, but the impact date of any 
such certification may not be a date earlier than October 1, 1985.
    (B) A certification shall not be issued under the authority of 
section 1421(a)(1)(B) of the OTCA if a certification could have been 
issued under section 223 of the Act before or after the amendment made 
by section 1421(a)(1)(A) of the OTCA.
    (v) Coverage of certification. Individuals covered by a 
certification issued under the authority of section 1421(a)(1)(B) of 
the OTCA will be eligible to apply for TAA program benefits as follows:
    (A) Basic and additional TRA, retroactively and prospectively, 
subject to the conditions stated in paragraph (a)(4) of this section;
    (B) Training, prospectively, subject to the conditions stated in 
subpart C of this part;
     (C) Job search allowances, prospectively, subject to the 
conditions stated in subpart D of this part; and
    (D) Relocation allowances, prospectively, subject to the conditions 
stated in subpart E of this part.
    (vi) TRA entitlement. To qualify for TRA for any week, an 
individual must meet all of the following requirements of paragraphs 
(a)(4)(vi)(A) through (D) of this section;
    (A) Certification. The individual must be an adversely affected 
worker covered under a certification issued pursuant to section 223 of 
the Act and under the authority of section 1421(a)(1)(B) of the OTCA.
    (B) Date of separation. The date of the individual's most recent 
total separation (as defined in Sec. 617.3) must be a date after 
September 30, 1985, and within the certification period of the 
certification under which the worker is covered. Separations occurring 
prior to October 1, 1985, shall be disregarded for the purposes of 
determining whether an individual experienced a total separation after 
September 30, 1985.
    (C) Other standard requirements. (1) With respect to weeks of 
unemployment that begin after September 30, 1985, but prior to November 
21, 1988, the individual must, with respect to the separation referred 
to in paragraph (a)(4)(vi)(B) of this section, meet all of the 
requirements of paragraph (a)(1)(i) through (vii) of this section, and
    (2) With respect to weeks of unemployment that begin on or after 
November 21, 1988, the individual must meet all of the requirements of 
paragraphs (a)(2)(i) through (vii) of this section.
    (D) Other special rules. (1) Although an individual's most recent 
total or partial separation after September 30, 1985 must be used for 
the purposes of this paragraph (a)(4)(vi)(B) of this section, the 
individual's first qualifying separation (as defined in paragraph 
(t)(3)(ii) of Sec. 617.3) must be used to determine the weekly and 
maximum amounts payable to the individual in accordance with 
Secs. 617.13 and 617.14.
    (2) The 60-day preclusion rule in paragraph (b)(1) of this section 
shall not be applicable to an individual covered by a certification 
referred to in paragraph (a)(4)(vi)(A) of this section, and who is 
eligible for TRA under the provisions of paragraph (a)(4) of this 
section.
    (3) The 26-week eligibility period for additional TRA (as defined 
in paragraph (m)(2) of Sec. 617.3) is applicable under paragraph (a)(4) 
of this section.
    (b) First week of entitlement. The first week any individual may be 
entitled to a payment of basic TRA shall be the later of:
    (1) The first week beginning more than 60 days after the date of 
the filing of the petition which resulted in the certification under 
which the individual is covered (except in the case of oil and gas 
workers to whom paragraph (a)(4) of this section applies); or
    (2) The first week beginning after the individual's exhaustion of 
all rights to UI including waiting period credit, as determined under 
Sec. 617.11(a)(1)(v) or Sec. 617.11(a)(2), as appropriate.
    8. Section 617.14(a)(2) is revised to read as follows:


Sec. 617.14  Maximum amount of TRA.

    (a) General rule. * * *
    (2) Subtracting from the product derived under paragraph (a)(1) of 
this section, the total sum of UI to which the individual was entitled 
(or would have been entitled if the individual had applied therefor) in 
the individual's first benefit period described in 
Sec. 617.11(a)(1)(iv) or, as appropriate, Sec. 617.11(a)(2)(iv). The 
individual's full entitlement shall be subtracted under this paragraph, 
without regard to the amount, if any, that was actually paid to the 
individual with respect to such benefit period.
    9. Section 617.15 is revised to read as follows:


Sec. 617.15  Duration of TRA.

    (a) Basic weeks. An individual shall not be paid basic TRA for any 
week beginning after the close of the 104-week eligibility period (as 
defined in Sec. 617.3(m)(1)), which is applicable to the individual as 
determined under Secs. 617.3 (m)(1), 617.3(t), and 617.67(e).
    (b) Additional weeks. (1) To assist an individual to complete 
training approved under subpart C of this part, payments may be made as 
TRA for up to 26 additional weeks in the 26-week eligibility period (as 
defined in Sec. 617.3(m)(2)) which is applicable to the individual as 
determined under Secs. 617.3(m)(2) and 617.67(f).
    (2) To be eligible for TRA for additional weeks, an individual must 
make a bona fide application for such training--
    (i) within 210 days after the date of the first certification under 
which the individual is covered, or
    (ii) if later, within 210 days after the date of the individual's 
most recent partial or total separation (as defined in Secs. 617.3(cc) 
and 617.3(ll)) under such certification.
    (3) Except as provided in paragraph (d) of this section, payments 
of TRA for additional weeks may be made only for those weeks in the 26-
week eligibility period during which the individual is actually 
participating fully in training approved under Sec. 617.22(a).
    (c) Limit. The maximum TRA payable to any individual on the basis 
of a single certification is limited to the maximum amount of basic TRA 
as determined under Sec. 617.14 plus additional TRA for up to 26 weeks 
as provided in paragraph (b) of this section.
    (d) Scheduled breaks in training. (1) An individual who is 
otherwise eligible will continue to be eligible for basic and 
additional weeks of TRA during scheduled breaks in training, but only 
if a scheduled break is not longer than 14 days, and the following 
additional conditions are met:
    (i) The individual was participating in the training approved under 
Sec. 617.22(a) immediately before the beginning of the break; and
    (ii) The break is provided for in the published schedule or the 
previously established schedule of training issued by the training 
provider or is indicated in the training program approved for the 
worker; and, further
    (iii) The individual resumes participation in the training 
immediately after the break ends.
    (2) A scheduled break in training shall include all periods within 
or between courses, terms, quarters, semesters and academic years of 
the approved training program.
    (3) No basic or additional TRA will be paid to an individual for 
any week which begins and ends within a scheduled break that is 15 days 
or more.
    (4) The days within a break in a training program that shall be 
counted in determining the number of days of the break for the purposes 
of paragraph (d) of this section shall include all calendar days 
beginning with the first day of the break and ending with the last day 
of the break, as provided for in the schedule of the training provider, 
except that any Saturday, Sunday, or official State or National holiday 
occurring during the scheduled break in training, on which training 
would not normally be scheduled in the training program if there were 
no break in training, shall not be counted in determining the number of 
days of the break for the purposes of paragraph (d) of this section.
    (5) When the worker is drawing basic TRA, the maximum amount of TRA 
payable is not affected by the weeks the worker does not receive TRA 
while in a break period, but the weeks will count against the 104-week 
eligibility period.
    (6) When the worker is drawing additional weeks of TRA to complete 
training, any weeks for which TRA is not paid will count against the 
continuous 26-week eligibility period and the number of weeks payable.
    10. Section 617.16 is revised to read as follows:


Sec. 617.16  Applicable State law.

    (a) What law governs. The applicable State law for any individual, 
for all of the purposes of this part 617, is the State law of the 
State--
    (1) In which the individual is entitled to UI (whether or not the 
individual has filed a claim therefor) immediately following the 
individual's first separation (as defined in paragraph (t)(1) of 
Sec. 617.3), or
    (2) If the individual 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.
    (b) Change of law. The State law determined under paragraph (a) of 
this section to be the applicable State law for an individual shall 
remain the applicable State law for the individual until the individual 
becomes entitled to UI under the State law of another State (whether or 
not the individual files a claim therefor).
    (c) UI entitlement. (1) An individual shall be deemed to be 
entitled to UI under a State law if the individual satisfies the base 
period employment and wage qualifying requirements of such State law.
    (2) In the case of a combined-wage claim (Part 616 of this 
chapter), UI entitlement shall be determined under the law of the 
paying State.
    (3) In case of a Federal UI claim, or a joint State and Federal UI 
claim (Parts 609 and 614 of this Chapter), UI entitlement shall be 
determined under the law of the State which is the applicable State for 
such claims.
    (d) RRUI claimants. If an individual is entitled to UI under the 
Railroad Unemployment Insurance Act, the applicable State law for 
purposes of paragraphs (a) and (b) of this section is the law of the 
State in which the individual's first qualifying separation occurs.
    (e) Liable State. The State whose State law is determined under 
this section to be the applicable State law for any individual shall be 
the liable State for the individual for all purposes of this part 617. 
Any State other than the liable State shall be an agent State.
    11. Section 617.17 is revised to read as follows:


Sec. 617.17  Availability and active search for work.

    (a) Extended Benefit work test applicable. Except as provided in 
paragraph (b) of this section, an individual shall, as a basic 
condition of entitlement to basic TRA for a week of unemployment--
    (1) be unemployed, as defined in the applicable State law for UI 
claimants, and
    (2) be able to work and available for work, as defined in the 
applicable State law for UI claimants, and
    (3) satisfy the Extended Benefit work test in each week for which 
TRA is claimed, as set forth in Secs. 617.11(a)(1) (vi) and 
617.11(a)(2)(vi).
    (b) Exceptions--(1) Prior to November 21, 1988. The conditions 
stated in paragraphs (a) and (b) of this section shall not be 
applicable to an individual actually participating in training approved 
under the applicable State law or under Sec. 617.22(a), or during a 
scheduled break in the training program if (as determined for the 
purposes of Sec. 617.15 (d)) the individual participated in the 
training immediately before the beginning of the break and resumes 
participation in the training immediately after the break ends, unless 
the individual is ineligible or subject to disqualification under the 
applicable State law or Sec. 617.18 (b)(2).
    (2) On and after November 21, 1988. The conditions stated in 
paragraphs (a)(2) and (a)(3) of this section shall not be applicable to 
an individual who is enrolled in or participating in a training program 
approved under Sec. 617.22 (a), or during a break in the training 
program if (as determined for the purposes of Sec. 617.15(d)) the 
individual participated in the training immediately before the 
beginning of the break and resumes participation in the training 
immediately after the break ends.
    12. Paragraph (b) of Sec. 617.18 is revised to read as follows:


Sec. 617.18  Disqualifications.

* * * * *
    (b) Disqualification of trainees--(1) State law inapplicable. A 
State law shall not be applied to disqualify an individual from 
receiving either UI or TRA because the individual:
    (i) Is enrolled in or is participating in a training program 
approved under Sec. 617.22(a); or
    (ii) Refuses work to which the individual has been referred by the 
State agency, if such work would require the individual to discontinue 
training, or if added to hours of training would occupy the individual 
more than 8 hours a day or 40 hours a week, except that paragraph 
(b)(1)(ii) of this section shall not apply to an individual who is 
ineligible under paragraph (b)(2) of this section; or
    (iii) Quits work, if the individual was employed in work which was 
not suitable (as defined in Sec. 617.22(a)(1)), and it was reasonable 
and necessary for the individual to quit work to begin or continue 
training approved for the individual under Sec. 617.22(a).
    (2) Trainees ineligible. (i) An individual who, without justifiable 
cause, fails to begin participation in a training program which is 
approved under Sec. 617.22(a), or ceases to participate in such 
training, or for whom a waiver is revoked pursuant to Sec. 617.19(c), 
shall not be eligible for basic TRA, or any other payment under this 
part 617, for the week in which such failure, cessation, or revocation 
occurred, or any succeeding week thereafter until the week in which the 
individual begins or resumes participation in a training program that 
is approved under Sec. 617.22(a).
    (ii) For purposes of this section and other provisions of this Part 
617, the following definitions shall be used:
    (A) Failed to begin participation. A worker shall be determined to 
have failed to begin participation in a training program when the 
worker fails to attend all scheduled training classes and other 
training activities in the first week of the training program, without 
justifiable cause.
    (B) Ceased participation. A worker shall be determined to have 
ceased participation in a training program when the worker fails to 
attend all scheduled training classes and other training activities 
scheduled by the training institution in any week of the training 
program, without justifiable cause.
    (C) Justifiable cause. For the purposes of paragraph (b)(2) of this 
section, the term ``justifiable cause'' means such reasons as would 
justify an individual's conduct when measured by conduct expected of a 
reasonable individual in like circumstances, including but not limited 
to reasons beyond the individual's control and reasons related to the 
individual's capability to participate in or complete an approved 
training program.
* * * * *
    13. A new Sec. 617.19 is added to read as follows:


Sec. 617.19  Requirement for participation in training.

    (a) In general--(1) Basic requirement. (i) All individuals 
otherwise entitled to basic TRA, for all weeks beginning on and after 
November 21, 1988, must either be enrolled in or participating in a 
training program approved under Sec. 617.22(a), or have completed a 
training program approved under Sec. 617.22(a), as provided in 
Sec. 617.11(a)(2)(vii), in order to be entitled to basic TRA payments 
for any such week (except for continuation of payments during scheduled 
breaks in training of 14 days or less under the conditions stated in 
Sec. 617.15(d)). The training requirement of paragraph (a)(1)(i) of 
this section shall be waived in writing on an individual basis, solely 
in regard to entitlement to basic TRA, if approval of training for the 
individual is not feasible or is not appropriate, as determined in 
accordance with paragraph (a)(2) of this section.
    (ii) As a principal condition of entitlement to additional TRA 
payments, all individuals must actually be participating in a training 
program approved under Sec. 617.22(a), for all weeks beginning before 
November 21, 1988, and for all weeks beginning on and after November 
21, 1988 (except for continuation of payments during breaks in training 
under the conditions stated in Sec. 617.15(d)). Paragraph (a)(2) of 
this section is not applicable in regard to additional TRA, and the 
participation in training requirement of paragraph (a)(1)(ii) of this 
section may not be waived under any circumstances.
    (2) Waiver of participation requirement. When it is determined, in 
accordance with paragraph (a)(2) of this section, that it is not 
feasible or is not appropriate (as such terms are defined in paragraph 
(b) of this section) to approve a training program for an individual 
otherwise entitled to basic TRA, the individual shall be furnished a 
formal written notice of waiver, with an explanation of the reason(s) 
for the waiver and a statement of why training is not feasible or is 
not appropriate in the case of such individual. At a minimum, the 
written statement furnished to the individual shall contain information 
required by Sec. 617.50(e) as well as the following information:
    (i) Name and social security number of the individual;
    (ii) Petition number under which the worker was certified;
    (iii) A statement why the agency has determined that it is not 
feasible or is not appropriate to approve training for the individual 
at that time, and the reason(s) for the finding;
    (iv) A statement that the waiver will be revoked at any time that 
feasible and appropriate training becomes available;
    (v) Any other advice or information the State agency deems 
appropriate in informing the individual;
    (vi) Signature block (with signature) for the appropriate State 
official; and
    (vii) Signature block (with signature) for the worker's 
acknowledgement of receipt.
    (3) Denial of a waiver. In any case in which a determination is 
made to deny to any individual a waiver of the participation 
requirement, the individual shall be furnished a formal written notice 
of denial of waiver, which shall contain all of the information 
required of formal written notices under paragraph (a)(2) of this 
section.
    (4) Procedure. Any determination under paragraph (a)(2) or 
paragraph (a)(3) of this section shall be a determination to which 
Secs. 617.50 and 617.51 apply, including the requirement that any 
written notice furnished to an individual shall include notice of the 
individual's appeal rights as is provided in Sec. 617.50(e).
    (b) Reasons for issuing a waiver. (1) For the purposes of 
paragraphs (a)(2) and (a)(3) of this section, a waiver of the 
participation in training requirement shall be issued to an individual 
only upon a supported finding that approval of a Sec. 617.22(a) 
training program for that individual is not feasible or is not 
appropriate at that time.
    (i) Feasible and appropriate. For the purposes of this section:
    (A) Feasible. The term feasible means:
    (1) training is available at that time which meets all the criteria 
of Sec. 617.22(a);
    (2) the individual is so situated as to be able to take full 
advantage of the training opportunity and complete the training; and
    (3) funding is available to pay the full costs of the training and 
any transportation and subsistence expenses which are compensable.

The funding referred to in paragraph (b)(1)(i)(A)(3) of this section 
includes not only TAA program funds but also all other funds available 
under any of the provisions of the Job Training Partnership Act 
(including Title III) or any other Federal, State or private source 
that may be utilized for training approvable under Sec. 617.22(a). 
Further, the individual's situation in respect to undertaking training 
(as referred to in paragraph (b)(1)(i)(A)(2) of this section) shall 
include taking into account personal circumstances that preclude the 
individual from being able to participate in and complete the training 
program, such as the availability of transportation, the ability to 
make arrangements for necessary child care, and adequate financial 
resources if the weeks of training exceeds the duration of UI and TRA 
payments.
    (B) Appropriate. The term appropriate means being suitable or 
compatible, fitting, or proper. Appropriate, therefore, refers to 
suitability of the training for the worker (including whether there is 
a reasonable prospect which is reasonably foreseeable that the 
individual will be reemployed by the firm from which separated), and 
compatibility of the training for the purposes of the TAA Program. In 
these respects, suitability of training for the individual is 
encompassed within the several criteria in Sec. 617.22 (a), and 
compatibility with the program is covered by the various provisions of 
subpart C of this part which describe the types of training approvable 
under Sec. 617.22(a) and the limitations thereon.
    (ii) Basis for application. Whether training is feasible or 
appropriate at any given time is determined by finding whether, at that 
time, training suitable for the worker is available, the training is 
approvable under subpart C of this part including the criteria in 
Sec. 617.22(a), the worker is so situated as to be able to take full 
advantage of the training and satisfactorily complete the training, 
full funding for the training is available from one or more sources in 
accordance with Secs. 617.24 and 617.25, the worker has the financial 
resources to complete the training when the duration of the training 
program exceeds the worker's eligibility for TRA, and the training will 
commence within 30 days of approval.
    (2) Particular applications. The reasons for any determination that 
training is not feasible or is not appropriate shall be in accord with 
the following:
    (i) Not feasible because--
    (A) The beginning date of approved training is beyond 30 days, as 
required by the definition for ``Enrolled in training'' in 
Sec. 617.11(a)(2)(vii)(D),
    (B) Training is not reasonably available to the individual,
    (C) Training is not available at a reasonable cost,
    (D) Funds are not available to pay the total costs of training, or
    (E) Personal circumstances such as health or financial resources, 
preclude participation in training or satisfactory completion of 
training,
    (F) Other (explain).
    (ii) Not appropriate because--
    (A)(1) The firm from which the individual was separated plans to 
recall the individual within the reasonably foreseeable future (State 
agencies must verify planned recalls with the employer),
    (2) Planned recall. For the purpose of determining whether the 
recall or reemployment of an individual is reasonably foreseeable (for 
the purposes of this section and Sec. 617.22), either a specific or 
general type of recall (as set out) shall be deemed to be sufficient.
    (i) Specific recall. A specific recall is where an individual or 
group of individuals who was separated from employment is identified 
and notified by the employer to return to work within a specified time 
period.
    (ii) General recall. A general recall is where the employer 
announces an intention to recall an individual or group of individuals, 
or by other action reasonably signals an intent to recall, without 
specifying any certain date or specific time period.
    (iii) Reasonably foreseeable. For purposes of determining whether 
training should be denied and a training waiver granted, because of a 
planned recall that is reasonably foreseeable, such a planned recall 
includes a specific recall and also includes a general recall (as 
defined in paragraph (b)(2)(ii)(A)(2) of this section) if the general 
recall in each individual's case is reasonably expected to occur before 
the individual exhausts eligibility for any regular UI payments for 
which the individual is or may become entitled. A general recall, in 
which the timing of the recall is reasonably expected to occur after 
the individual's exhaustion of any regular UI to which the individual 
is or may become entitled, shall not be treated as precluding approval 
of training, but shall be treated as any other worker separation for 
these purposes.
    (B) The duration of training suitable for the individual exceeds 
the individual's maximum entitlement to basic and additional TRA 
payments and the individual cannot assure financial responsibility for 
completing the training program,
    (C) The individual possesses skills for ``suitable employment'' and 
there is a reasonable expectation of employment in the foreseeable 
future, or
    (D) Other (explain).
    (3) Waivers and able and available. An individual who has been 
furnished a written notice of waiver under paragraph (a)(2) of this 
section (or denial of waiver under paragraph (a)(3) of this section) 
shall be subject to all of the requirements of Sec. 617.17(a), which 
shall continue until the individual is enrolled in a training program 
as required by paragraph (a)(2)(vii) of Sec. 617.11.
    (c) Waiver review and revocations. (1) State agencies must have a 
procedure for reviewing regularly (i.e., every 30 days or less) all 
waivers issued under this section to individuals, to ascertain that the 
conditions upon which the waivers were granted continue to exist. In 
any case in which the conditions have changed--i.e., training has 
become feasible and appropriate--then the waiver must be revoked, and a 
written notice of revocation shall be furnished to the individual 
involved.
    (2) In addition to the periodic reviews required by paragraph 
(c)(1) of this section, State agencies must have a procedure for 
revoking waivers in individual cases promptly whenever a change in 
circumstances occurs. For example, a written notice of revocation shall 
be issued to the individual concurrent with the approval of the 
training in which the individual has enrolled (if such training is 
scheduled to commence within 30 days), and shall not be issued prior to 
such approval.
    (3) State agencies may incorporate a revocation section in the 
waiver form or on a separate revocation form. Any determination under 
paragraph (c) of this section shall be a determination to which 
Secs. 617.50 and 617.51 apply. The information included in a written 
notice of revocation issued under this paragraph (c) shall include all 
of the information required for written notices issued under paragraph 
(a)(2) of this section.
    (d) Recordkeeping and reporting. (1) State agencies must develop 
procedures for compiling and reporting on the number of waivers issued 
and revoked, by reason, as specified in paragraphs (b) and (c) of this 
section, and report such data to the Department of Labor as requested 
by the Department.
    (2) State agencies are not required to forward copies of individual 
waiver and revocation notices to the Department of Labor, unless 
specifically requested by the Department. However, each State agency 
shall retain a copy of every individual waiver and revocation notice 
issued by the State, for such period of time as the Department 
requires. (Approved by the Office of Management and Budget under 
control number 1205-0016).
    14. Section 617.20 is revised to read as follows:


Sec. 617.20  Responsibilities for the delivery of reemployment 
services.

    (a) State agency referral. Cooperating State agencies shall be 
responsible for:
    (1) Advising each adversely affected worker to apply for training 
with the State agency responsible for reemployment services, while the 
worker is receiving UI payments, and at the time the individual files 
an initial claim for TRA; and
    (2) Referring each adversely affected worker to the State agency 
responsible for training and other reemployment services in a timely 
manner.
    (b) State agency responsibilities. The responsibilities of 
cooperating State agencies under subpart C of this part include, but 
are not limited to:
    (1) Interviewing each adversely affected worker regarding suitable 
training opportunities reasonably available to each individual under 
subpart C of this part, reviewing such opportunities with each 
individual, informing each individual of the requirement for 
participation in training as a condition for receiving TRA, and 
accepting each individual's application for training. Such training may 
be approved for any adversely affected worker at any time after a 
certification is issued and the worker is determined to be covered 
without regard to whether the worker has exhausted all rights to 
unemployment insurance;
    (2) Registering adversely affected workers for work;
    (3) Informing adversely affected workers of the reemployment 
services and allowances available under the Act and this Part 617, the 
application procedures, the filing date requirements for such 
reemployment services and the training requirement for receiving TRA;
    (4) Determining whether suitable employment, as defined in 
Sec. 617.22(a)(1), is available;
    (5) Providing counseling, testing, placement, and supportive 
services;
    (6) Providing or procuring self-directed job search training, when 
necessary;
    (7) Providing training, job search and relocation assistance;
    (8) Developing a training plan with the individual;
    (9) Determining which training institutions offer training programs 
at a reasonable cost and with a reasonable expectation of employment 
following the completion of such training, and procuring such training;
    (10) Documenting the standards and procedures used to select 
occupations and training institutions in which training is approved;
    (11) Making referrals and approving training programs;
    (12) Monitoring the progress of workers in approved training 
programs;
    (13) Developing, and periodically reviewing and updating 
reemployment plans for adversely affected workers;
    (14) Developing and implementing a procedure for reviewing training 
waivers and revocations at least every 30 days to determine whether the 
conditions under which they are issued have changed; and
    (15) Coordinating the administration and delivery of employment 
services, benefits, training, and supplemental assistance for adversely 
affected workers with programs under the Act and under Title III of the 
Job Training Partnership Act.
    15. The introductory text and paragraphs (e) and (g) of Sec. 617.21 
are revised to read as follows:


Sec. 617.21  Reemployment services and allowances.

    Reemployment services and allowances shall include, as appropriate, 
the services and allowances as set forth in this section, provided that 
those services included within the scope of paragraphs (a) through (e) 
of this section shall be provided for under any other Federal law other 
than the Act.
* * * * *
    (e) Supportive services. Supportive services shall be provided so 
individuals can obtain or retain employment or participate in 
employment and training programs leading to eventual placement in 
permanent employment. Such services may include work orientation, basic 
education, communication skills, child care, and any other services 
necessary to prepare an individual for full employment in accordance 
with the individual's capabilities and employment opportunities.
* * * * *
    (g) Classroom training. This training activity is any training of 
the type normally conducted in a classroom setting, including 
vocational education, and may be provided to individuals when the 
conditions for approval of training are met, as provided in 
Sec. 617.22(a), to impart technical skills and information required to 
perform a specific job or group of jobs. Training designed to enhance 
the employability of individuals by upgrading basic skills, through the 
provision of courses such as remedial education or English-as-a-second-
language, shall be considered as remedial education approvable under 
Sec. 617.22(a) if the criteria for approval of training under 
Sec. 617.22(a) are met.
* * * * *
    16. Paragraphs (a), (b), (c), and (f) (2), (3), and (4) of 
Sec. 617.22 are amended to read as follows:


Sec. 617.22  Approval of training.

    (a) Conditions for approval. Training shall be approved for an 
adversely affected worker if the State agency determines that:
    (1) There is no suitable employment (which may include technical 
and professional employment) available for an adversely affected 
worker.
    (i) This means that for the worker for whom approval of training is 
being considered under this section, no suitable employment is 
available at that time for that worker, either in the commuting area, 
as defined in Sec. 617.3(k), or outside the commuting area in an area 
in which the worker desires to relocate with the assistance of a 
relocation allowance under subpart E of this part, and there is no 
reasonable prospect of such suitable employment becoming available for 
the worker in the foreseeable future. For the purposes of paragraph 
(a)(1) of this section only, the term ``suitable employment'' means, 
with respect to a worker, work of a substantially equal or higher skill 
level than the worker's past adversely affected employment, and wages 
for such work at not less that 80 percent of the worker's average 
weekly wage.
    (2) The worker would benefit from appropriate training. (i) This 
means that there is a direct relationship between the needs of the 
worker for skills training or remedial education and what would be 
provided by the training program under consideration for the worker, 
and that the worker has the mental and physical capabilities to 
undertake, make satisfactory progress in, and complete the training. 
This includes the further criterion that the individual will be job 
ready on completion of the training program.
    (3) There is a reasonable expectation of employment following 
completion of such training. (i) This means that, for that worker, 
given the job market conditions expected to exist at the time of the 
completion of the training program, there is, fairly and objectively 
considered, a reasonable expectation that the worker will find a job, 
using the skills and education acquired while in training, after 
completion of the training. Any determination under this criterion must 
take into account that ``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. 
This emphasizes, rather than negates, the point that there must be a 
fair and objective projection of job market conditions expected to 
exist at the time of completion of the training.
    (4) Training approved by the Secretary is reasonably available to 
the worker from either governmental agencies or private sources (which 
may include area vocational education schools, as defined in section 
195(2) of the Vocational Education Act of 1963, and employers). (i) 
This means that training is reasonably accessible to the worker within 
the worker's commuting area at any governmental or private training (or 
education) provider, particularly including on-the-job training with an 
employer, and it means training that is suitable for the worker and 
meets the other criteria in paragraph (a) of this section. It also 
means that emphasis must be given to finding accessible training for 
the worker, although not precluding training outside the commuting area 
if none is available at the time within the worker's commuting area. 
Whether the training is within or outside the commuting area, the 
training must be available at a reasonable cost as prescribed in 
paragraph (a)(6) of this section.
    (ii) In determining whether or not training is reasonably 
available, first consideration shall be given to training opportunities 
available within the worker's normal commuting area. Training at 
facilities outside the worker's normal commuting area should be 
approved only if such training is not available in the area or the 
training to be provided outside the normal commuting area will involve 
less charges to TAA funds.
    (5) The worker is qualified to undertake and complete such 
training. (i) This emphasizes the worker's personal qualifications to 
undertake and complete approved training. Evaluation of the worker's 
personal qualifications must include the worker's physical and mental 
capabilities, educational background, work experience and financial 
resources, as adequate to undertake and complete the specific training 
program being considered.
    (ii) Evaluation of the worker's financial ability shall include an 
analysis of the worker's remaining weeks of UI and TRA payments in 
relation to the duration of the training program. If the worker's UI 
and TRA payments will be exhausted before the end of the training 
program, it shall be ascertained whether personal or family resources 
will be available to the worker to complete the training. It must be 
noted on the worker's record that financial resources were discussed 
with the worker before the training was approved.
    (iii) When adequate financial resources will not be available to 
the worker to complete a training program which exceeds the duration of 
UI and TRA payments, the training shall not be approved and 
consideration shall be given to other training opportunities available 
to the worker.
    (6) Such training is suitable for the worker and available at a 
reasonable cost. (i) Such training means the training being considered 
for the worker. Suitable for the worker means that paragraph (a)(5) of 
this section is met and that the training is appropriate for the worker 
given the worker's capabilities, background and experience.
    (ii) Available at a reasonable cost means that training may not be 
approved at one provider when, all costs being considered, training 
substantially similar in quality, content and results can be obtained 
from another provider at a lower total cost within a similar time 
frame. It also means that training may 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. This criterion also requires taking into consideration the 
funding of training costs from sources other than TAA funds, and the 
least cost to TAA funding of providing suitable training opportunities 
to the worker. Greater emphasis will need to be given to these elements 
in determining the reasonable costs of training, particularly in view 
of the requirements in Sec. 617.11(a) (2) and (3) that TRA claimants be 
enrolled in and participate in training.
    (iii) For the purpose of determining reasonable costs of training, 
the following elements shall be considered:
    (A) Costs of a training program shall include tuition and related 
expenses (books, tools, and academic fees), travel or transportation 
expenses, and subsistence expenses;
    (B) In determining whether the costs of a particular training 
program are reasonable, first consideration must be given to the lowest 
cost training which is available within the commuting area. When 
training, substantially similar in quality, content and results, is 
offered at more than one training provider, the lowest cost training 
shall be approved; and
    (C) Training at facilities outside the worker's normal commuting 
area that involves transportation or subsistence costs which add 
substantially to the total costs shall not be approved if other 
appropriate training is available.
    (b) Allowable amounts for training. In approving a worker's 
application for training, the conditions for approval in paragraph (a) 
of this section must be found to be satisfied, including assurance that 
the training is suitable for the worker, is at the lowest reasonable 
cost, and will enable the worker to obtain employment within a 
reasonable period of time. An application for training shall be denied 
if it is for training in an occupational area which requires an 
extraordinarily high skill level and for which the total costs of the 
training are substantially higher than the costs of other training 
which is suitable for the worker.
    (c) Previous approval of training under State law. Training 
previously approved for a worker under State law or other authority is 
not training approved under paragraph (a) of this section. Any such 
training may be approved under paragraph (a) of this section, if all of 
the requirements and limitations of paragraph (a) of this section and 
other provisions of Subpart C of this part are met, but such approval 
shall not be retroactive for any of the purposes of this Part 617, 
including payment of the costs of the training and payment of TRA to 
the worker participating in the training. However, in the case of a 
redetermination or decision reversing a determination denying approval 
of training, for the purposes of this Part 617 such redetermination or 
decision shall be given effect retroactive to the issuance of the 
determination that was reversed by such redetermination or decision; 
but no costs of training may be paid unless such costs actually were 
incurred for training in which the individual participated, and no 
additional TRA may be paid with respect to any week the individual was 
not actually participating in the training.
* * * * *
    (f) Length of training and hours of attendance. * * *
    (2) Length of training. The maximum duration for any approvable 
training program is 104 weeks (during which training is conducted) and 
no individual shall be entitled to more than one training program under 
a single certification.
    (3) Training program. (i) For purposes of this Part 617, a training 
program may consist of a single course or group of courses which is 
designed and approved by the State agency for an individual to meet a 
specific occupational goal.
    (ii) When an approved training program involves more than one 
course and involves breaks in training (within or between courses, or 
within or between terms, quarters, semesters and academic years), all 
such breaks in training are subject to the ``14-day break in training'' 
provision in Sec. 617.15(d), for purposes of receiving TRA payments. An 
individual's approved training program may be amended by the State 
agency to add a course designed to satisfy unforeseen needs of the 
individual, such as remedial education or specific occupational skills, 
as long as the length of the amended training program does not exceed 
the 104-week training limitation in paragraph (f)(2) of this section.
    (4) Full-time training. Individuals in TAA approved training shall 
attend training full time, and when other training is combined with OJT 
attendance at both shall be not less than full-time. The hours in a day 
and days in a week of attendance in training shall be full-time in 
accordance with established hours and days of training of the training 
provider.
* * * * *
    17. Section 617.24 is revised to read as follows:


Sec. 617.24  Preferred training.

    Training programs that may be approved under Sec. 617.22(a) 
include, but are not limited to--
    (a) On-the-job training,
    (b) Any training program provided by a State pursuant to Title III 
of the Job Training Partnership Act,
    (c) Any training program approved by a private industry council 
established under the Job Training Partnership Act,
    (d) Any program of remedial education,
    (e) Any training program (other than a training program described 
in paragraph (c) of Sec. 617.25) for which all, or any portion, of the 
costs of training the worker are paid--
    (1) Under any other Federal or State program other than this 
Subpart C, or
    (2) From any other source other than this section, but not 
including sources personal to the individual, such as self, relatives, 
or friends, and
    (f) Any other training program approved by the Department.
    18. Section 617.25 is revised to read as follows:


Sec. 617.25  Limitations on training under Subpart C of this part.

    The second sentence of amended section 236(a)(1) of the Act 
provides that an adversely affected worker shall be entitled to have 
payment of the costs of training approved under the Act paid on the 
worker's behalf, subject, however, ``to the limitations imposed by'' 
section 236. The limitations in section 236 which are implemented in 
this section concern the restrictions on approval of training which are 
related directly or indirectly to the conditions on training which are 
approvable or on the funding of training costs.
    (a) On-the-job training. The costs of on-the-job training approved 
Subpart C of this part for a worker, which are paid from TAA funds, 
shall be paid in equal monthly installments. Such costs may be paid 
from TAA funds, and such training may be approved under subpart C of 
this part, however, only if the State agency determines that:
    (1) No currently employed individual is displaced by such eligible 
worker, including partial displacement such as a reduction in the hours 
of non-overtime work, wages, or employment benefits;
    (2) Such training does not impair existing contracts for services 
or collective bargaining agreements;
    (3) In the case of training which would be inconsistent with the 
terms of a collective bargaining agreement, written concurrence has 
been obtained from the concerned labor organization;
    (4) No other individual is on layoff from the same or any 
substantially equivalent job for which such eligible worker is being 
trained;
    (5) The employer has not terminated the employment of any regular 
employee or otherwise reduced the work force with the intention of 
filling the vacancy so created by hiring the eligible worker;
    (6) The job for which the eligible worker is being trained is not 
being created in a promotional line that will infringe in any way upon 
the promotional opportunities of currently employed individuals;
    (7) Such training is not for the same occupation from which the 
worker was separated and with respect to which such worker's group was 
certified pursuant to section 222 of the Act;
    (8) The employer certifies to the State agency that the employer 
will continue to employ the eligible worker for at least 26 weeks after 
completing the training if the worker desires to continue such 
employment and the employer does not have due cause to terminate such 
employment;
    (9) The employer has not received payment under this Subpart C or 
under any other Federal law for any other on-the-job training provided 
by such employer which failed to meet the requirements of paragraphs 
(a)(1) through (a)(6) of this section or such other Federal law; and
    (10) The employer has not taken, at any time, any action which 
violated the terms of any certification described in paragraph (a)(8) 
of this section made by the employer with respect to any other on-the-
job training provided by the employer for which the employer has 
received a payment under Subpart C of this part (or the prior 
provisions of Subpart C of this part).
    (b) Other authority and restrictions on funding--
    (1) In general. Section 236(a) contains several provisions which 
allow the costs of a training program approved under the Act to be 
paid--
    (i) Solely from TAA funds,
    (ii) Solely from other public or private funds, or
    (iii) Partly from TAA funds and partly from other public or private 
funds,

but also precludes the use of TAA funds or funds under another Federal 
law where such use of funds would result in duplication of payment of 
training costs. Those authorities and restrictions are spelled out in 
paragraph (b) of this section: Provided, that, private funds may not 
include funds from sources personal to the individual, such as self, 
relatives, or friends.
    (2) Section 236(a)(5)(E) of the Act. (i) In general. Paragraph 
(5)(E) of section 236(a) of the Act specifies one of the types of 
training programs approvable under the Act, as including a program 
(other than a training program described in section 236(a)(7) 
(paragraph (b)(5) of this section)) for which all, or any portion, of 
the costs of the training program are paid--
    (A) Under any Federal or State program other than the Act, or
    (B) From any source other than TAA funds.
    (ii) Application. Paragraph (E) of section 236(a)(5) of the Act 
thus authorizes prearrangements between cooperating State agencies 
administering the TAA program and the authorities administering any 
other Federal, State, or private funding source, to agree upon any mix 
of TAA funds and other funds for paying the costs of a training program 
approved under Subpart C of this part. Any such prearrangement must 
contain specific commitments from the other authorities to pay the 
costs they agree to assume.
    (3) Section 236(a)(6) of the Act. (i) In general. Paragraph (6) of 
section 236(a) of the Act is related to section 236(a)(5)(E) in 
providing that the costs of a training program approved under the Act 
are not required to be paid from TAA funds to the extent that such 
costs are paid under any Federal or State program other than the Act or 
from any source other than the Act.
    (ii) Application. (A) Although paragraph (6) of section 236(a) of 
the Act is expressed in terms of the costs not being required to be 
paid from TAA funds, it authorizes the mixing of TAA funds and funds 
from any other Federal, State or private source. Therefore, sharing the 
future costs of training is authorized where prior costs were paid from 
another Federal, State or private source, but this does not authorize 
reimbursement from TAA funds of any training costs which were incurred 
and for which payment became due prior to the approval of the training 
program under Subpart C of this part. In utilizing the authority under 
paragraph (b)(3) of this section for sharing training costs, 
prearrangements shall be entered into as required under paragraph 
(b)(2) of this section before any TAA funds are obligated.
    (B) Paragraph (6) of section 236(a) contains a special restriction 
on the authority derived thereunder to use TAA funds in sharing 
training costs. Therefore, before approving any training program under 
Subpart C of this part, which may involve sharing of the training costs 
under the authority of paragraph (b)(3) of this section, the 
cooperating State agencies for the TAA program shall require the worker 
to enter into a written agreement with the State under which TAA funds 
will not be applied for or used to pay any portion of the costs of the 
training the worker has reason to believe will be paid by any other 
governmental or private source.
    (4) Section 236(a)(4) of the Act. (i) In general. (A) Paragraph (4) 
of section 236(a) of the Act (paragraph (3) of section 236(a) before 
August 23, 1988) continues to provide, as it did before the addition of 
paragraphs (5)(E), (6), and (7) to section 236(a), that:
    (1) When the costs of training are paid from TAA funds under 
subpart C of this part, no other payment for such costs of training may 
be made under any other Federal law; and
    (2) When the payment of the costs of training has already been made 
under any other Federal law, or the costs are reimbursable under any 
other Federal law and a portion of the costs has already been paid 
under such other Federal law, payment of such training costs may not be 
made from TAA funds.
    (B) Paragraph (4) of section 236(a) also requires that: The 
provisions of paragraphs (b)(4)(i) (A)(1) and (A)(2) of this section 
shall not apply to, or take into account, any funds provided under any 
other provision of Federal law which are used for any purpose other 
than the direct payment of the identical costs incurred in training the 
adversely affected worker under the TAA Program, even if such other use 
has the effect of indirectly paying or reducing any portion of the 
costs involved in training the adversely affected worker.
    (ii) Application. (A) Although the prohibition on duplicate 
payments in the first part of section 236(a)(4) remains fully 
implemented in this section, the second part of section 236(a)(4) on 
the sharing of costs from TAA funds and other Federal fund sources is 
modified by the explicit provisions of paragraphs (5)(E) and (6) of 
section 236(a), as set forth in paragraphs (b)(2) and (b)(3) of this 
section.
    (B) When the direct costs of a training program approvable under 
subpart C of this part are payable from TAA funds and are also wholly 
or partially payable under another Federal law, or under any State law 
or from private, nongovernmental sources, the TAA Program agencies 
shall establish procedures which ensure that TAA funds shall not be 
utilized to duplicate funds available from another source, but this 
preclusion of duplication does not prohibit and shall not discourage 
sharing of costs under prearrangements authorized under paragraphs 
(b)(2) and (b)(3) of this section.
    (C)(1) Therefore, pursuant to paragraph (4) of section 236(a), 
paragraph (b)(4) of this section continues to prohibit duplicate 
payment of training costs, which is consistent with the general 
prohibition expressed in subpart C of this part, against any use of TAA 
funds to duplicate payment of training costs in any circumstances. 
Paragraph (b)(4) of this section also continues to prohibit taking into 
account, in determining whether training costs are payable from TAA 
funds, any payments to the worker under any other Federal law which may 
have the effect of indirectly paying all or a portion of the training 
costs. Such indirect payments include Veterans Educational Assistance, 
Pell Grants, and Supplemental Educational Opportunity Grants, which are 
paid to the individual. However, any payments to the individual under 
these programs are deductible from TRA payable to the individual under 
Sec. 617.13(c)(2).
    (2) When payments of Veterans Educational Assistance, Pell Grants, 
and Supplemental Educational Opportunity Grants are made to the 
training provider, instead of the individual, and are used for training 
costs, such payments shall be taken into account as direct payment of 
the training costs under other Federal law for the purposes of this 
section.
    (5) Section 236(a)(7) of the Act. (i) In general. Paragraph (7) of 
section 236(a) of the Act provides that a training program shall not be 
approved under the Act if--
    (A) all or a portion of the costs of such training program are paid 
under any nongovernmental plan or program,
    (B) the adversely affected worker has a right to obtain training or 
funds for training under such plan or program, and
    (C) such plan or program requires the worker to reimburse the plan 
or program from funds provided under the Act, or from wages paid under 
such training program, for any portion of the costs of such training 
program paid under the plan or program.
    (ii) Application. Paragraph (7) of section 236(a), which is 
implemented in paragraph (b)(5) of this section, reinforces the 
prohibition in Sec. 617.22(h) against approval of a training program 
under subpart C of this part if the worker is required to pay a fee or 
tuition. The provisions of paragraph (b) and paragraph (h) of this 
section shall be given effect as prohibiting the approval under subpart 
C of this part of any training program if the worker would be requested 
or required, at any time or under any circumstances, to pay any of the 
costs of a training program, however small, from any TAA funds given to 
the worker or from any other funds belonging to the worker from any 
source whatever. Aside from this stringent limitation, however, 
paragraph (7) of section 236(a) of the Act implicitly authorizes 
training approved under this subpart C to be wholly or partly funded 
from nongovernmental (i.e., employer, union or other private) sources.
    19. Section 617.26 is revised to read as follows:


Sec. 617.26  Liable and agent State responsibilities.

    (a) Liable State. The liable State means, for any individual, the 
State which administers the applicable State law (as determined under 
Sec. 617.16). The liable State is responsible for making all 
determinations, redeterminations, and decisions on appeals on all 
claims for program benefits under this part 617, including waivers and 
revocations of waivers pursuant to Sec. 617.19, subsistence payments 
pursuant to Sec. 617.27, and transportation payments pursuant to 
Sec. 617.28. Upon receiving a copy of a certification issued by the 
Department, with respect to an affected firm in the State, the liable 
State also is responsible for publishing newspaper notices as provided 
in Sec. 617.4(d), furnishing information and assistance to workers as 
provided in Sec. 617.4, furnishing reemployment services under subparts 
C, D, and E of this part to all eligible workers covered by such 
certification, and carrying out other activities and functions required 
by the State's Agreement with the Secretary entered into pursuant to 
Sec. 617.59. All determinations pertaining to any individual's 
eligibility for or entitlement to any program benefit under this part 
617 shall be subject to the provisions of Secs. 617.50 and 617.51.
    (b) Agent State. Agent State means, for any individual, any State 
other than the liable State for the individual. Agent States shall be 
responsible for cooperating fully with the liable State and assisting 
the liable State in carrying out its activities and functions. These 
agent State responsibilities shall be part of the activities and 
functions undertaken by the agent States under their Agreements entered 
into pursuant to Sec. 617.59. Agent State responsibilities include 
cooperating with liable States in taking applications and claims for 
TAA, providing reemployment services to certified workers in accordance 
with subparts B, C, D and E of this part, providing interstate 
claimants with TAA program information and assistance, assisting 
applicants or claimants to file claims for TAA program benefits and 
services, cooperating with the liable State by providing information 
needed to issue determinations, redeterminations, and decisions on 
appeals, and procuring and paying the cost of any approved training, 
including subsistence and transportation costs, according to 
determinations issued by the liable State.
    20. Section 617.32(a)(4) is revised to read as follows:


Sec. 617.32  Eligibility.

    (a) Conditions. * * *
    (4) A determination by the State agency that the individual has no 
reasonable expectation of securing suitable employment in the commuting 
area, and has a reasonable expectation of obtaining suitable employment 
of long-term duration outside the commuting area and in the area where 
the job search will be conducted. For the purposes of this section, the 
term ``suitable employment'' means suitable work as defined in 
Sec. 617.3(kk) (1) or (2), whichever is applicable to the individual; 
and
* * * * *
    21. Section 617.33 is revised to read as follows:


Sec. 617.33  Findings required.

    (a) Findings by liable State. Before final payment of a job search 
allowance may be approved, the following findings shall be made by the 
liable State:
    (1) The individual meets the eligibility requirements for a job 
search allowance specified in Sec. 617.32(a) (1) through (4);
    (2) The application for a job search allowance was submitted by the 
individual within the time limits specified in Sec. 617.31(c); and
    (3) The individual completed the job search within the time limits 
stated in Sec. 617.32(a)(5), and the requirements of paragraphs (b) and 
(c) of Sec. 617.32 have been met.
    (b) Agent State. (1) When an individual files an application for a 
job search allowance with respect to a job search conducted in a State 
other than the liable State, the State agency of the State in which the 
individual conducts the job search shall serve as the agent State and 
be responsible for assisting the individual in conducting the job 
search and in filing an application for a job search allowance with the 
liable State, and for assisting the liable State by furnishing to it 
any information required for the liable State's determination of the 
claim.
    (2) The agent State shall cooperate fully with the liable State in 
carrying out its activities and functions with regard to such 
applications.
    22. Paragraph (b) of Sec. 617.34 is revised to read as follows:


Sec. 617.34  Amount.

* * * * *
    (b) Limit. The total job search allowances paid to an individual 
under a certification may not exceed $800, regardless of the number of 
job searches undertaken by the individual. The amounts otherwise 
payable under paragraph (a) of this section shall be reduced by any 
amounts the individual is entitled to be paid or reimbursed for such 
expenses from any other source.
    23. Section 617.42(a)(6) is revised to read as follows:


Sec. 617.42  Eligibility.

    (a) Conditions. * * *
    (6) A determination by the State agency that the individual has no 
reasonable expectation of securing suitable employment in the commuting 
area, and has obtained suitable employment affording a reasonable 
expectation of employment of long-term duration, or a bona fide offer 
of such suitable employment, outside the commuting area and in the area 
of intended relocation. For the purposes of this section, the term 
``suitable employment'' means suitable work as defined in 
Sec. 617.3(kk) (1) and (2), whichever is applicable to the individual; 
and
* * * * *
    24. Section 617.44 is revised to read as follows:


Sec. 617.44  Findings required.

    (a) Findings by liable State. Before final payment of a relocation 
allowance may be approved, the following findings shall be made by the 
liable State:
    (1) The individual meets the eligibility requirements for a 
relocation allowance specified in Sec. 617.42(a) (1) to (6) and 
Sec. 617.42(b).
    (2) The application for a relocation allowance was submitted by the 
individual within the time limits specified in Sec. 617.41(c);
    (3) The individual began and completed the relocation within the 
limitations specified in Sec. 617.42(a)(7) and Sec. 617.43; and
    (4) The liable State has verified (directly or through the agent 
State) with the employer, and finds, that the individual has obtained 
suitable employment affording a reasonable expectation of employment of 
long-term duration, or a bona fide offer of such suitable employment, 
in the area of intended relocation, in accordance with 
Sec. 617.42(a)(6).
    (b) Agent State. (1) When an individual relocates in a State other 
than the liable State, the State agency of the State in which the 
individual relocates shall serve as the agent State and be responsible 
for:
    (i) Assisting the individual in relocating to the State, and in 
filing an application for a relocation allowance with the liable State, 
and
    (ii) Assisting the liable State by furnishing to it any information 
required for the liable State's determination on the claim.
    (2) The agent State shall cooperate 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 shall 
verify with the employer and report to the liable State whether the 
individual has obtained suitable employment affording a reasonable 
expectation of employment of long-term duration, or a bona fide offer 
of such suitable employment.
    25. Section 617.49 is amended by adding a new paragraph (e) to read 
as follows:


Sec. 617.49  Job search program.

* * * * *
    (e) Termination of requirement. The job search program requirement 
set out in this section shall not be a condition of entitlement to TRA 
for any week which begins after November 20, 1988.
    26. Paragraphs (a) and (d) of Sec. 617.50 are revised to read as 
follows:


Sec. 617.50  Determinations of entitlement; notices to individuals.

    (a) Determinations of initial applications for TRA or other TAA. 
The State Agency whose State law is the applicable State law under 
Sec. 617.16 shall upon the filing of an initial application for TRA or 
other TAA promptly determine the individual's entitlement to such TRA 
or other TAA under this part 617, and may accept for such purposes 
information and findings supplied by another State agency under this 
part 617.
* * * * *
    (d) Use of State law. In making determinations or redeterminations 
under this section, or in reviewing such determinations or 
redeterminations under Sec. 617.51, a State agency shall apply the 
regulations in this part 617. As to matters committed by this part 617 
to the applicable State law, a State agency, a hearing officer, or a 
State court shall apply the applicable State law and regulations 
thereunder, including procedural requirements of such State law or 
regulations, except so far as such State law or regulations are 
inconsistent with this part 617 or the purpose of this part 617: 
Provided, that, no provision of State law or regulations on good cause 
for waiver of any time limit, or for late filing of any claim, shall 
apply to any time limitation referred to or specified in this part 617, 
unless such State law or regulation is made applicable by a specific 
provision of this part 617.
    27. Section 617.55 is revised to read as follows:


Sec. 617.55  Overpayments; penalties for fraud.

    (a) Determination and repayment. (1) If a State agency or a court 
of competent jurisdiction determines that any person or individual has 
received any payment under this part 617 to which the person or 
individual was not entitled, including a payment referred to in 
paragraph (b) or paragraph (c) of this section, such person or 
individual shall be liable to repay such amount to the State agency, 
and the State agency shall recover any such overpayment in accordance 
with the provisions of this part 617; except that the State agency may 
waive the recovery of any such overpayment if the State agency 
determines, in accordance with the guidelines prescribed in paragraph 
(a)(2) of this section, that:
    (i) The payment was made without fault on the part of such person 
or individual; and
    (ii) Requiring such repayment would be contrary to equity and good 
conscience.
    (2)(i)(A) In determining whether fault exists for purposes of 
paragraph (a)(1)(i) of this section, the following factors shall be 
considered:
    (1) Whether a material statement or representation was made by the 
person or individual in connection with the application for TAA that 
resulted in the overpayment, and whether the person or individual knew 
or should have known that the statement or representation was 
inaccurate.
     (2) Whether the person or individual failed or caused another to 
fail to disclose a material fact, in connection with an application for 
TAA that resulted in the overpayment, and whether the person or 
individual knew or should have known that the fact was material.
    (3) Whether the person or individual knew or could have been 
expected to know, that the person or individual was not entitled to the 
TAA payment.
    (4) Whether, for any other reason, the overpayment resulted 
directly or indirectly, and partially or totally, from any act or 
omission of the person or individual or of which the person or 
individual had knowledge, and which was erroneous or inaccurate or 
otherwise wrong.
    (5) Whether there has been a determination of fraud under paragraph 
(b) of this section or section 243 of the Act.
    (B) An affirmative finding on any one of the factors in paragraphs 
(a)(2)(i)(A) of this section precludes waiver of overpayment recovery.
    (ii)(A) In determining whether equity and good conscience exists 
for purposes of paragraph (a)(1)(ii) of this section, the following 
factors shall be considered:
    (1) Whether the overpayment was the result of a decision on appeal, 
whether the State agency had given notice to the person or individual 
that the case has been appealed and that the person or individual may 
be required to repay the overpayment in the event of a reversal on 
appeal, and whether recovery of the overpayment will not cause 
extraordinary and lasting financial hardship to the person or 
individual.
    (2) Whether recovery of the overpayment will not cause 
extraordinary financial hardship to the person or individual, and there 
has been no affirmative finding under paragraph (a)(2)(ii)(A) of this 
section with respect to such person or individual and such overpayment.
    (B) An affirmative finding on either of the foregoing factors in 
paragraphs (a)(2)(ii)(A) of this section precludes waiver of 
overpayment recovery.
    (C)(1) For the purpose of paragraph (a)(2)(ii) of this section, an 
extraordinary financial hardship shall exist if recovery of the 
overpayment would result directly in the person's or individual's loss 
of or inability to obtain minimal necessities of food, medicine, and 
shelter for a substantial period of time; and an extraordinary and 
lasting financial hardship shall be extraordinary as described above 
and may be expected to endure for the foreseeable future.
    (2) In applying this test in the case of attempted recovery by 
repayment, a substantial period of time shall be 30 days, and the 
foreseeable future shall be at least three months. In applying this 
test in the case of proposed recoupment from other benefits, a 
substantial period of time and the foreseeable future shall be the 
longest potential period of benefit entitlement as seen at the time of 
the request for a waiver determination. In making these determinations, 
the State agency shall take into account all potential income of the 
person or individual and the person's or individual's firm, 
organization, or family and all cash resources available or potentially 
available to the person or individual and the person's or individual's 
firm, organization, or family in the time period being considered.
    (3) Determinations granting or denying waivers of overpayments 
shall be made only on request for a waiver determination. Such request 
shall be made on a form which shall be furnished to the person or 
individual by the State agency. Notices of determination of 
overpayments shall include an accurate description of the waiver 
provisions of paragraph (a) of this section, if the State agency has 
elected to allow waivers of TAA overpayments.
    (4) Each State shall have the option to establish a policy as to 
whether the waiver provisions of this section shall be applied to TAA 
overpayments. A State's decision on its policy shall not be controlled 
by whether it waives UI overpayments, but the State's decision shall be 
published for the information of the public and the Department.
    (5)(i) Unless an overpayment is otherwise recovered, or is waived 
under paragraph (a) of this section, the State agency shall recover the 
overpayment by deduction from any sums payable to such person or 
individual under:
    (A) This part 617;
    (B) Any Federal unemployment compensation law administered by the 
State agency; or
    (C) Any other Federal law administered by the State agency which 
provides for the payment of unemployment assistance or an allowance 
with respect to unemployment.
    (ii) In addition, a State agency may recover the overpayment from 
unemployment insurance payable to such person or individual under the 
State law.
    (b) Fraud. If a State agency or a court of competent jurisdiction 
finds that any person or individual:
    (1) Knowingly has made, or caused another to make, a false 
statement or representation of a material fact; or
    (2) Knowingly has failed, or caused another to fail, to disclose a 
material fact; and as a result of such false statement or 
representation, or of such nondisclosure, such individual has received 
any payment under this part 617 to which the person or individual was 
not entitled, such person or individual shall, in addition to any other 
penalty provided by law, be ineligible for any further payments under 
this part 617.
    (c) Training, job search and relocation allowances. (1) If an 
individual fails, with good cause, to complete training, a job search, 
or a relocation, any payment or portion of a payment made under this 
part 617 to such individual or any person that is not properly and 
necessarily expended in attempting to complete such training, job 
search, or relocation, shall constitute an overpayment.
    (2) If an individual fails, without good cause, to complete 
training, a job search, or a relocation, any payment made under this 
part 617 to such individual or any person shall constitute an 
overpayment.
    (3) Such overpayment shall be recovered or waived as provided in 
paragraph (a) of this section.
    (d) Final determination. Except for overpayments determined by a 
court of competent jurisdiction, no repayment may be required, and no 
deduction may be made, under this section until a determination under 
paragraph (a) of this section by the State agency has been made, notice 
of the determination and an opportunity for a fair hearing thereon has 
been given to the person or individual concerned, and the determination 
has become final.
    (e) Deposit. Any amount recovered by a State agency under this 
section shall be deposited into the Federal fund or account from which 
payment was made.
    (f) Procedural requirements. (1) The provisions of paragraphs (c), 
(e), and (g) of Sec. 617.50 shall apply to determinations and 
redeterminations made pursuant to this section.
    (2) The provisions of Sec. 617.51 shall apply to determinations and 
redeterminations made pursuant to this section.
    (g) Fraud detection and prevention. State procedures for the 
detection and prevention of fraudulent overpayments of TAA 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, sections 7510-7515 (Appendix B of 
this Part).
    (h) Debts due the United States or Others. (1) Notwithstanding any 
provision of this part 617, TAA payable to a person or an individual 
under this part 617 shall be applied by the State agency for the 
recovery by offset of any debt due the United States from the person or 
individual.
    (2) TAA shall not be applied or used by the State agency in any 
manner for the payment of any debt of any person or individual to any 
State or any other entity or person, except that TRA payable to an 
individual shall be payable to someone other than the individual if 
required by State law and Federal law to satisfy the individual's 
obligation for child support or alimony.
    (i) Definition of person. For purposes of this section, a person 
includes any employer or other entity or organization as well as the 
officers and officials thereof who may bear individual responsibility.
    28. Section 617.59 is amended by adding a new paragraph (h) and a 
new paragraph (i) to read as follows:


Sec. 617.59  Agreements with State agencies.

* * * * *
    (h) Program coordination. State agencies providing employment 
services, training and supplemental assistance under Subpart C of this 
part shall, in accordance with their Agreements under this section, 
coordinate such services and payments with programs and services 
provided by State Service Delivery Areas, Private Industry Councils, 
and substate grantees under the Job Training Partnership Act and with 
the State agency administering the State law.
    (i) Administration absent State Agreement. In any State in which no 
Agreement under this section is in force, the Secretary shall 
administer the Act and this part 617 and pay TAA hereunder through 
appropriate arrangements made by the Department, and for this purpose 
the Secretary or the Department shall be substituted for the State or 
cooperating State agency wherever appropriate in this part 617. Such 
arrangements shall include the requirement that TAA be administered in 
accordance with this part 617, and the provisions of the applicable 
State law except to the extent that such State law is inconsistent with 
any provision of this part 617 or section 303 of the Social Security 
Act (42 U.S.C. 503) or section 3304(a) of the Internal Revenue Code of 
1986 (26 U.S.C. 3304(a)), and shall also include provision for a fair 
hearing for any individual whose application for TAA is denied. A final 
determination under paragraph (i) of this section as to entitlement to 
TAA shall be 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)).
    29. Section 617.60 is added and reserved to read as follows:


Sec. 617.60  Administrative requirements. [Reserved]

    30. Section 617.64 is revised to read as follows:


Sec. 617.64  Termination of TAA program benefits.

    The following rules are applicable to the termination of TAA 
benefits under the Act:
    (a) No application for TRA, or transportation or subsistence 
payment while in training approved under subpart C of this part 617, 
shall be approved, and no payment of TRA or payment for transportation 
or subsistence occurring on or before the termination date shall be 
made after the termination date specified in the Act, unless the claim 
for TRA or an invoice for transportation and subsistence is presented 
to the State agency and a final determination is made on the amount 
payable on or before the termination date in the Act.
    (b) No payment of job search or relocation allowances shall be made 
after the termination date specified in the Act, unless an application 
for such allowances was approved, such job search or relocation was 
completed, and a final determination made on the amount payable for 
such benefits by the State agency on or before the termination date in 
the Act.
    (c) No training under subpart C of this part shall be approved 
unless a determination regarding the approval of such training was made 
on or before the termination date in the Act, and such training 
commenced on or before such termination date. Consistent with the 
requirements of section 236(a)(1) of the Act, and the termination 
provisions of paragraph (c) of this section, a final determination must 
be made on the invoice for the training costs by the State agency on or 
before the termination date specified in the Act to cover tuition 
related expenses. Determinations on tuition bills shall be limited to 
the training term, quarter, semester or other period beginning on or 
before the termination date in the Act. The training period should be 
in accord with normal billing practices of the training provider and/or 
State agency approval practices.
    31. Section 617.67 is added to read as follows:


Sec. 617.67  Transition guidelines for the 1988 Amendments.

    The provisions of part 3 of subtitle D of title I of the Omnibus 
Trade and Competitiveness Act of 1988 (the ``OTCA''), Public Law 100-
418, approved on August 23, 1988, made material changes in the TAA 
Program for workers that are reflected in the amended regulations 
published with this new section on transition guidelines for the 1988 
Amendments. States and cooperating State agencies shall be guided by 
the following paragraphs of this section in the transition to the TAA 
Program as modified by the 1988 Amendments and reflected in the 
preceding provisions of this part 617, as well as in the interim 
operating instructions issued by the Department which are superseded by 
these regulations. The operating instructions in GAL 15-90, and the 
Changes thereto, shall continue in effect as guidance on the proper 
application of the 1988 Amendments except as modified in these final 
regulations. (GAL 15-90 is available from the Office of Trade 
Adjustment Assistance, U.S. Department of Labor, 200 Constitution Ave., 
NW., room C-4318, Washington, DC 20210.)
    (a) Oil and gas workers--prospective. Workers in firms or 
appropriate subdivisions of firms engaged in exploration or drilling 
for oil or natural gas are newly covered under the TAA Program by an 
amendment to section 222 of the Trade Act of 1974. This is a permanent 
change in the Act having prospective effect, and became effective on 
August 23, 1988. Oil and gas workers covered by a certification issued 
pursuant to section 223 of the Act and the regulations at 29 CFR part 
90 shall be entitled to basic and additional TRA and other TAA Program 
benefits on precisely the same terms and conditions as apply to other 
workers covered by other certifications and which are specifically set 
forth in this part 617.
    (b) Oil and gas workers--retroactive. Oil and gas workers referred 
to in paragraph (a) of this section, who were separated from adversely 
affected employment after September 30, 1985, are covered retroactively 
under section 1421(a)(1)(B) of the OTCA, if they are covered by a 
certification issued pursuant to section 223 of the Act which is in 
response to a petition filed in the Office of Trade Adjustment 
Assistance on or before November 18, 1988. Administration of TAA 
Program benefits to these workers shall be on precisely the same terms 
and conditions as apply to other workers covered by other 
certifications, except that the limitations of the impact date 
provision of section 223(b) and the 60-day preclusion in section 231(a) 
may not be applied to these workers.
    (c) Benefit information to workers. (1) An amendment to section 225 
of the Act requires individualized and published notices to workers 
covered by certifications issued pursuant to section 223 of the Act. 
This amendment became effective as a requirement on September 22, 1988, 
and is applicable to all certifications issued on and after that date. 
Individualized notices and published notices shall contain the 
information specifically set forth in this part 617.
    (2) Section 239(f) of the Act requires cooperating State agencies 
to furnish four discrete items of information and advice to individuals 
about TAA Program benefits, commencing with such advice and information 
to every individual who applies for unemployment insurance under each 
State's unemployment compensation law. See Sec. 617.4(e). This 
amendment became effective on August 23, 1988. Information and advice 
required by section 239(f) shall be provided in accordance with this 
part 617.
    (d) Training and eligibility requirements for TRA. Effective on 
November 21, 1988, in general, enrollment and participation in, or 
completion of, a training program approved under subpart C is required 
as a condition of entitlement to basic TRA. Amendments to sections 
231(a)(5), 231(b), and 231(c) of the Act incorporate this new 
requirement, replacing the job search program requirement which remains 
in effect through November 20, 1988. Continuation of the job search 
program requirement through November 20, 1988, and installation of the 
training program requirement on and after November 21, 1988, is 
required of all applicants for basic TRA.
    (e) Eligibility period for basic TRA. (1) Effective on August 23, 
1988, and with respect to all decisions (i.e., all determinations, 
redeterminations, and decisions on appeals) issued on or after that 
date, the eligibility period for basic TRA is changed from the prior 
law. Prior to the OTCA amendments, section 233(a)(2) provided that the 
eligibility period for an individual was a fixed 104-week period that 
immediately followed the week with respect to which the individual 
first exhausted all rights to regular benefits after the individual's 
first qualifying separation. Under section 233(a)(2) the new 
eligibility period is movable, and is the 104-week period that 
immediately follows the week in which the worker's most recent total 
qualifying separation occurs under the same, single certification. 
Under the effective date provisions of the OTCA, section 233(a)(2) 
applies to all decisions (i.e., determinations, redeterminations, and 
decisions on appeals) issued on and after August 23, 1988. Further, the 
law to be applied in making any such decision is the law as in effect 
on the date such a decision is made. These interpretative rules apply 
in all cases, regardless of whether the total qualifying separation 
occurred before, on, or after August 23, 1988, except as noted in 
paragraph (e)(3) of this section.
    (2) The major significance of the change in section 233(a)(2) is 
that, effective for all decisions (i.e., determinations, 
redeterminations, and decisions on appeals) issued on or after August 
23, 1988, it applies to the ``most recent'' total qualifying 
separation. This means that, after the first qualifying separation 
before August 23, 1988, or the first total qualifying separation on and 
after August 23, 1988, with each subsequent total qualifying separation 
of an individual under the same certification the individual's 
eligibility period must be redetermined as the 104-week period that 
immediately follows the week in which such subsequent separation 
occurred.
    (3) Section 1430(g) of the OTCA requires that the new eligibility 
period not be applied with respect to any total qualifying separation 
occurring before August 23, 1988, if as a result of applying section 
233(a)(2) the individual would have an eligibility period with an 
earlier expiration date than the expiration date of the eligibility 
period established under the prior law and based on a first qualifying 
separation which occurred under the same certification before August 
23, 1988. Therefore, for decisions (i.e., determinations, 
redeterminations, and decisions on appeals) issued on or after August 
23, 1988, for a worker who had a first qualifying separation under the 
same certification before August 23, 1988, it must be determined what 
the individual's eligibility period is based upon the prior law, and, 
if the individual also had a subsequent total qualifying separation, 
what the individual's eligibility period is based on the amended law. 
Only if the subsequent total qualifying separation occurred before 
August 23, 1988, and the expiration date of the new eligibility period 
ends on the same date or a later date than the expiration date of the 
old eligibility period may the new eligibility period be applied to the 
individual, and in that event it must be applied; if the new 
eligibility period would end on a date earlier than the ending date of 
the eligibility period based on the worker's first qualifying 
separation, section 1430(g) operates to preclude the application of 
amended section 233(a)(2).
    (4) Computation of the weekly and maximum amounts of basic TRA do 
not change under the 1988 Amendments in the OTCA. They must continue to 
be based upon the first benefit period which is related to the worker's 
first total or partial separation under the same certification 
regardless of whether such first separation occurs before, on, or after 
August 23, 1988. Upon the occurrence of a second or subsequent 
separation under the same certification which is a total qualifying 
separation under this part 617, the individual's eligibility period 
will be 104 weeks after the week of such second or subsequent (total 
qualifying) separation, but no change will be made in the weekly or 
maximum amounts of basic TRA as computed in relation to the first 
separation. Therefore, for any decision (i.e., determination, 
redetermination, or decision on appeal) issued on or after August 23, 
1988, whenever an individual files a new TRA claim it will be necessary 
to determine whether the individual's most recent separation was a 
total qualifying separation, and, if so, whether the individual had a 
prior partial or total separation within the certification period of 
the same certification which was a first qualifying separation. If such 
most recent (total qualifying) separation occurred before August 23, 
1988, and was not the individual's first qualifying separation, then:
    (i) The eligibility period will be the 104 weeks beginning with the 
week following the week in which the most recent total qualifying 
separation occurred or 104 weeks after the first exhaustion of regular 
UI following the first qualifying separation, whichever is longer, and
    (ii) The individual's weekly amount of basic TRA, as computed under 
Sec. 617.13, and the individual's maximum amount of basic TRA, as 
computed under Sec. 617.14, are established or remain fixed as 
determined with respect to the individual's first benefit period 
following the first separation which is within the certification period 
of the certification covering the individual.
    (f) Eligibility period for additional TRA. One technical and one 
conforming change are made by the OTCA in section 233(a)(3) of the Act, 
but have no effect on the 26-week eligibility period for additional TRA 
as the statute has been interpreted and applied in the past. Therefore, 
the 26-week eligibility period begins with the first week of training 
if the training begins after exhaustion of basic TRA. Further, if the 
training begins before approval is obtained under this part 617, the 
26-week eligibility period begins with the week in which the 
determination of approval is issued, if there is any scheduled training 
session in that week after the date of the determination.
    (g) Eligibility for TRA during breaks in training. (1) Paragraph 
(f) of section 233 of the Act, added by the OTCA, provides for the 
payment, under specified conditions, of both basic and additional TRA 
during scheduled breaks in a training program, provided the conditions 
for such payments are met as expressed in this part 617. By making this 
provision applicable to basic TRA as well as additional TRA, paragraph 
(f) of section 233 of the Act changes the prior law for both. 
Previously, basic TRA was payable during training breaks, but 
additional TRA was payable solely with respect to weeks of training. 
Under new section 233(f), both basic and additional TRA are payable 
during training breaks, but only if the break does not exceed 14 days. 
Now, as under the prior law, weeks when TRA is not payable will still 
count against the eligibility periods for both basic and additional 
TRA, and in the case of additional TRA it will also count against the 
number of weeks payable.
    (2) Paragraph (f) of section 233 of the Act is effective with 
regard to all decisions (i.e., all determinations, redeterminations, 
and decisions on appeals) made on or after August 23, 1988, regardless 
of when the training was approved under section 236 of the Trade Act, 
or whether the training was approved or is approvable under section 236 
as amended by the 1988 Amendments, or when the break in training began 
or ended. In making any decision involving paragraph (f) of section 233 
of the Act, the law to be applied is the law as in effect on the date 
the decision is made.
    (h) Retroactive eligibility for TRA. (1) Effective on August 23, 
1988, section 1425(b) of the OTCA provides for an open-ended waiver of 
the time limit in section 233(a)(2) on the eligibility period for basic 
TRA, and the 210-day time limit in section 233(b) on filing a bona fide 
application for training in order to qualify for additional TRA. This 
waiver provision applies solely to workers who experienced a total 
qualifying separation in the period which began on August 13, 1981 and 
ended on April 7, 1986. Other conditions must be met that are specified 
in section 1425(b) and in this part 617.
    (2) Altogether, nine conditions must be met for workers to obtain 
TRA payments under this special provision. (See Sec. 617.11(a)(3).) 
Further, this special provision applies solely to weeks which begin 
after August 23, 1988; no retroactive payments may be made under this 
special provision. Finally, only the two specific time limitations are 
waived, and all other requirements of the prior and amended law apply, 
including the first separation rule (relating to computation of the 
weekly and maximum amounts of basic TRA payable), the 26-week 
eligibility period for additional TRA, and the break provision of 
section 233(f).
    (i) Training for adversely affected workers. Extensive amendments 
to section 236 are made in the OTCA which, except for some technical 
and conforming changes that take effect on November 21, 1988, all 
became effective on August 23, 1988. These changes must be effectuated 
in accordance with this part 617.
    (j) Agreements with States. Section 239 also was amended by the 
OTCA, to require new terms and conditions in the section 239 
agreements. This requires new agreements to be executed between the 
States and the Secretary of Labor, and gives new emphasis to the 
contractual nature of the obligations entered into by the States to 
administer the TAA Program in strict accordance with the Act and the 
regulations and operating instructions issued by the Department.
    (k) Other. Other matters covered by the OTCA amendments, as well as 
the matters discussed in the preceding paragraphs of this section, 
shall, to the extent that the States may be involved in their 
implementation, be effectuated in strict accordance with the Act and 
the regulations and operating instructions issued by the Department, 
and as of the respective effective dates of the various provisions of 
the OTCA.
    32. By redesignating Appendixes A and B as Appendixes B and C.


Sec. 617.50  [Amended]

    33. By amending Sec. 617.50(g) by removing ``(Appendix A of this 
part)'' and adding in place ``(Appendix B of this Part)''.


Sec. 617.55  [Amended]

    34. By amending Sec. 617.55(g) by removing ``(Appendix B of this 
part)'' and adding in place ``(Appendix C of this Part)''.


Sec. 617.10  [Amended]

    35. By amending Sec. 617.10(c) by removing all words after 
``sections 5000 et seq.'' and adding in place ``(Appendix A of this 
Part)''.
    36. By adding a new appendix A to read as follows:

Appendix A to Part 617--Standard for Claim Filing, Claimant Reporting, 
Job Finding, and Employment Services

EMPLOYMENT SECURITY MANUAL (Part V, Sections 5000-5004)

5000-5099  Claims Filing

5000  Standard 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 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) 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 States 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 requirements; 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.
    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 
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 affect 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.

[FR Doc. 94-16 Filed 1-5-94; 8:45 am]
BILLING CODE 4510-30-P