[Federal Register Volume 74, Number 156 (Friday, August 14, 2009)]
[Notices]
[Pages 41165-41170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19519]


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DEPARTMENT OF LABOR

Employment and Training Administration


Federal-State Extended Unemployment Compensation Act of 1970--
Temporary Changes in Extended Benefits

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice.

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SUMMARY: The Employment and Training Administration (ETA) has provided 
guidance to State workforce agencies in response to the enactment of 
temporary changes to the extended benefits (EB) program as a result of 
recent Congressional enactments.
    The first guidance, issued on January 2, 2009, as Unemployment 
Insurance Program Letter (UIPL) No. 7-09, advised State workforce 
agencies of the temporary change, enacted by Public Law 110-449, in 
Federal sharing for the first week of extended benefits (EB) under the 
Federal-State Extended Unemployment Compensation Act of 1970 (FSEUCA) 
and is available at http://wdr.doleta.gov/directives/attach/UIPL/UIPL7-09.pdf.
    UIPL No. 12-09, issued on February 23, 2009, provided guidance 
related to temporary changes in the EB program as a result of Public 
Law 111-5. The UIPL (available at: http://wdr.doleta.gov/directives/attach/UIPL/UIPL12-09.pdf) addressed questions related to Federal 
sharing for cost benefits, benefit eligibility provisions, amendments 
to State law and reporting requirements.
    On May 4, 2009, ETA issued additional guidance with UIPL No. 12-09, 
Change 1 (available at: http://wdr.doleta.gov/directives/attach/UIPL/UIPL12-09_ch1.pdf) to address general questions about the EB program, 
work search requirements, submission of tangible evidence, suspension 
of work search requirements, interstate claims, terminating 
disqualifications using work, entitlement during high unemployment 
periods, beginning and ending dates of EB periods, and draft language 
for the Total Unemployment Rate (TUR) trigger.
    These three guidance documents are published below to inform the 
public.

SUPPLEMENTARY INFORMATION: 

UIPL No. 7-09: Federal-State Extended Unemployment Compensation Act of 
1970--Temporary Change in Federal Sharing for First Week of Extended 
Benefits

    1. Purpose. To advise States of the temporary change in Federal 
sharing for the first week of extended benefits (EB) under the Federal-
State Extended Unemployment Compensation Act of 1970 (FSEUCA).
    2. References. The Unemployment Compensation Extension Act of 2008, 
Public Law (Pub. L.) 110-449 enacted on November 21, 2008; FSEUCA (26 
U.S.C. 3304 note); 20 CFR 615.14; and Unemployment Insurance Program 
Letter No. 14-81.
    3. Background. In general, the benefit costs of EB, as well as 
certain weeks of ``regular'' State unemployment compensation (known as 
``sharable regular compensation''), are shared equally by the States 
and the Federal

[[Page 41166]]

government. However, Federal law prohibits Federal sharing of benefit 
costs for the first week of EB or the first week of sharable regular 
compensation if the State compensates beneficiaries for the first week 
of regular State benefit eligibility ``at any time or under any 
circumstances.'' See section 204(a)(2) of FSEUCA; 20 CFR 615.14(c)(3). 
As a result, States with no waiting week or States that, under certain 
conditions, pay what would otherwise be a waiting week are ineligible 
for Federal sharing for the first week of EB or sharable regular 
compensation.
    4. Temporary Change. Section 5 of Public Law 110-449 temporarily 
suspends this prohibition on Federal sharing of the costs of the first 
week of EB or sharable regular compensation for weeks of unemployment 
beginning after November 21, 2008, and ending on or before December 8, 
2009. As a result, as long as States continue to meet all other 
applicable conditions in FSEUCA, all States qualify for Federal sharing 
for the first week of EB or sharable regular compensation occurring 
during this period.
    5. Action. Administrators are to provide this information to the 
appropriate staff.
    6. Inquiries. Direct questions to the appropriate Regional Office.

UIPL No. 12-09--Extended Benefits Program--Temporary Changes Made by 
the Assistance for Unemployed Workers and Struggling Families Act

    1. Purpose. To advise States of temporary changes to the permanent 
Federal-State Extended Benefits (EB) program.
    2. References. Section 2005 of Division B, Title II, the Assistance 
for Unemployed Workers and Struggling Families Act, of Public Law 111-
5, enacted February 17, 2009; the Unemployment Compensation Extension 
Act of 2008, Public Law 110-449; the Federal-State Extended 
Unemployment Compensation Act of 1970 (``EB law''), 26 U.S.C. 
3304(a)(11) note; 20 CFR Part 615; and Unemployment Insurance Program 
Letter (UIPL) No. 45-82 and UIPL No. 7-09.
    3. Background. Section 2005 made several temporary changes to the 
EB program provided for under the EB law. One change is intended to 
encourage States experiencing high unemployment to enact the program's 
optional total unemployment rate (TUR) trigger by providing that the 
Federal government will, in most cases, pay 100 percent of the benefit 
costs of EB for a specified period. This 100 percent reimbursement also 
applies to States triggering ``on'' under other EB triggers and is 
available to States that already have the TUR trigger in their laws. 
Under another change, States may allow additional individuals to 
qualify for EB.
    Attachment I discusses the temporary changes in greater detail. 
Attachment II contains the text of the EB provisions.
    4. Action. State administrators should distribute this advisory to 
appropriate staff.
    5. Inquiries. Questions should be addressed to your Regional 
Office.
    6. Attachments.

Attachment I--Temporary Changes to Federal-State EB Program

Attachment II--Text of Section 2005 of Public Law 111-5

Attachment I

Temporary Changes to Federal-State EB Program

Federal Sharing for Benefit Costs
    1. Question: How do the changes made by Section 2005 affect Federal 
sharing for EB?
    Answer: With certain exceptions, the permanent EB law provides that 
one-half of EB benefit costs will be paid by the Federal government. 
(See Section 204(a) of the EB law and 20 CFR 615.14.) This Federal 
share is also paid for certain weeks of regular State unemployment 
compensation known as ``sharable regular compensation.'' (For purposes 
of this UIPL, all references to EB benefits include sharable regular 
compensation.)
    Section 2005 amended the EB law to provide that the Federal 
government will pay 100 percent of EB benefit costs for weeks of 
unemployment beginning after the date of enactment (that is, after 
February 17, 2009) and before January 1, 2010.
    Q&As 3, 4, and 5 discuss three exceptions to this Federal sharing. 
Also, see Q&A 7 for an optional exception to the January 1, 2010, 
ending date.
    2. Question: My State was already in an EB period when the 
amendments were enacted. What is the first week of unemployment for 
which 100 percent Federal funding is available?
    Answer: The State is entitled to obtain 100 percent of eligible EB 
costs for weeks of unemployment beginning after February 17, 2009.
    3. Question: How do the changes affect Federal sharing for the 
first week of EB?
    Answer: The permanent EB law prohibits Federal sharing of benefit 
costs for the first week of EB if the State compensates individuals for 
the first week of regular State benefit eligibility ``at any time or 
under any circumstances.'' (See Section 204(a)(2)(B) of the EB law and 
20 CFR 515.14(c)(3).) As explained in UIPL 7-09, this prohibition on 
Federal sharing of the first week of EB was suspended for weeks of 
unemployment beginning after November 21, 2008, and ending on or before 
December 8, 2009.
    Section 2005 extended this suspension through weeks of unemployment 
ending before May 30, 2010. As a result, even if a State does not have 
a waiting week for regular State unemployment compensation or permits 
payment of a waiting week under certain circumstances, the costs of the 
first week of EB will be paid as follows:
     The entire cost will be paid by the Federal government if 
the first week of EB begins after February 17, 2009, and before January 
1, 2010.
     50 percent of the cost will be paid by the Federal 
government if the first week of EB begins after January 1, 2010, and 
ends before May 30, 2010.
    4. Question: How do the changes affect Federal sharing for amounts 
that are not rounded down?
    Answer: They have no effect. As a result, the prohibition on 
Federal sharing for situations where States round up (rather than down) 
remains in effect. For example, an individual is eligible for $99.50 
and the State rounds the payment up to $100.00. For the period of time 
specified in the amendments, the Federal government will pay $99.00 
while the State will pay the $1.00 attributable to rounding up. (See 
Section 204(a)(2)(C) of the EB law and 20 CFR 615.14(c)(5) regarding 
this rounding requirement.)
    5. Question: How do the changes affect Federal sharing for EB based 
on employment with State and local governments and Federally-recognized 
Indian Tribes?
    Answer: They have no effect. The EB law's prohibition on Federal 
sharing based on such employment remains in effect. (See Section 
204(a)(3) of the EB law and 20 CFR 615.14(c)(6).)
Benefit Eligibility Provisions
    6. Question: What changes does Section 2005 permit to EB 
eligibility requirements?
    Answer: To initially qualify for EB under the permanent EB law, an 
individual must have at least one week in his/her benefit year that 
begins in an EB period. (See Section 203(c) of the EB law and 20 CFR 
615.2(h).) For example, if the final week of the individual's benefit 
year is also the first week of the State's EB period, the individual 
will qualify for EB. If otherwise eligible, this individual may receive 
EB until his/her

[[Page 41167]]

EB account is exhausted or the State's EB period ends. Treatment of 
these individuals is unchanged.
    Section 2005 provides for a State to, at its option, permit certain 
individuals to qualify for EB in cases where there is no overlap 
between the individual's benefit year and the EB period. Specifically, 
the State may permit individuals to qualify for EB when the individuals 
have exhausted Emergency Unemployment Compensation (EUC08) during an EB 
period that began on or before the date the individual exhausted. For 
example, an individual's benefit year ends during Week 7 of a calendar 
year and the individual is receiving EUC08, the State triggers ``on'' 
EB during Week 10, and the individual exhausts EUC08 during Week 13. 
The State may determine the individual to be eligible for EB beginning 
Week 14, because the individual exhausted all rights to EUC08 at Week 
13 during an EB period. The individual may, if otherwise eligible, 
collect EB until that benefit is exhausted or, if earlier, the EB 
period ends.
    This option is available to States for weeks of unemployment 
beginning after February 17, 2009, and before January 1, 2010.
    7. Question: Is there any phase-out for individuals who have 
established EB eligibility as of the January 1, 2010, end date?
    Answer: Yes. If an individual has received EB with respect to one 
or more weeks of unemployment beginning after February 17, 2009, and 
before January 1, 2010, the State may continue to pay EB to the 
individual (if otherwise eligible) for weeks of unemployment ending 
before June 1, 2010.
    The Federal government will pay 100 percent of eligible EB benefit 
costs based on such claims during this phase-out period. Note this 
phase-out for Federal sharing applies to payments to individuals who 
established EB eligibility (1) under the rules pertaining to the 
permanent EB program as well as (2) as a result of the special rule 
described in the previous Q&A.
    8. Question: Do the amendments affect the requirement that an 
individual must conduct a systematic and sustained work search?
    Answer: No. States must require EB claimants (with exceptions in 
current law) to conduct a systematic and sustained search for work, and 
to submit tangible evidence of such search, as a condition of being 
eligible for EB for a week. States must administer these work search 
provisions (and all other EB eligibility requirements) to receive 
Federal sharing under both permanent EB law and under the temporary 
amendments. (See Section 202(a)(3)(A)(ii) and 20 CFR 615.8(g)(2).)
Amendments to State Law
    9. Question. Do the provisions of Section 2005 require my State to 
amend its law?
    Answer: States paying EB under current provisions of State law will 
automatically qualify for increased Federal sharing. Whether a State 
needs to amend its law to trigger ``on'' using the optional TUR 
trigger, and thereby obtain the increased Federal payments under 
Section 2005, is a matter determined under State law. Draft language 
for implementing the optional TUR trigger is found in UIPL 45-92.
Reporting Requirements
    10. Question. Are there any changes for reports required by the 
Department of Labor?
    Answer: No. However, States should note that, for purposes of the 
ETA 2112 report (OMB No. 1205-0154), any payment fully funded by the 
Federal government should be reported in its entirety on line 38 
(pertaining to the Federal share of EB).

Attachment II

Text of Section 2005 of Public Law 111-5

    Text of the law may be found at: http://wdr.doleta.gov/directives/attach/UIPL/UIPL12-09a2.pdf.

UIPL No. 12-09, Change 1--Extended Benefits Program--Temporary Changes 
Made by the Assistance for Unemployed Workers and Struggling Families 
Act

    1. Purpose. To respond to questions about the permanent Federal-
State extended benefits (EB) program, including temporary changes made 
by Public Law 111-5.
    2. References. Section 2005 of Division B, Title II, the Assistance 
for Unemployed Workers and Struggling Families Act, of Public Law 111-
5, enacted February 17, 2009; the Unemployment Compensation Extension 
Act of 2008, Public Law 110-449; the Federal-State Extended 
Unemployment Compensation Act of 1970 (``EB law''), 26 U.S.C. 
3304(a)(11) note; 20 CFR Part 615; Unemployment Insurance Program 
Letter (UIPL) No. 45-92; UIPL No. 7-09; and UIPL No. 12-09.
    3. Background. UIPL No. 12-09 provided guidance to States on the 
provisions of Public Law 111-5 regarding temporary changes to the EB 
program. This UIPL provides:
     Question and Answers (Q&As) responding to questions 
received from States about these temporary changes and about permanent 
EB law.
     Draft legislation that States can use when enacting the EB 
program's optional total unemployment rate (TUR) trigger.
    Attachment I addresses the temporary changes and other questions in 
greater detail. Attachment II contains the draft language for enacting 
the TUR trigger.
    4. Action. State administrators should distribute this advisory to 
appropriate staff.
    5. Inquiries. Questions should be addressed to your Regional 
Office.
    6. Attachments.

Attachment I--Extended Benefits--Questions and Answers

Attachment II--Draft Legislation--TUR Trigger

Attachment I

Extended Benefits

Questions and Answers

In General

    CH 1-1. Question: Section 2005(c) of Public Law 111-5 includes a 
six-month phase-out of the temporary 100-percent Federal financing for 
Extended Benefits (EB) that the Public Law establishes. For individuals 
who received EB for a week of unemployment beginning before Friday, 
January 1, 2010, EB payments made for weeks ending before June 1, 2010, 
will continue to be eligible for 100-percent Federal financing. 
However, payments to individuals who first received EB for weeks of 
unemployment beginning after January 1, 2010, would be funded through a 
50-percent Federal share and a 50-percent State share. After January 1, 
2010, can a State limit EB to only those individuals who were covered 
by full Federal funding?
    Answer: No. If the State is in an EB period, it must pay all 
individuals who qualify for EB, regardless of Federal sharing. 
Conversely, if a State is not in an EB period, it may not pay any EB.
    CH 1-2. Question: My State is in the process of adding the Total 
Unemployment Rate (TUR) trigger to its law. May my State law provide 
that the EB period will begin prior to the date of enactment?
    Answer: Assuming that the requirements for an EB period are met, 
nothing in Federal law or regulation prohibits the retroactive EB 
period described in the question.
    CH 1-3. Question: To follow-up on the preceding question, how will 
eligibility for any retroactive weeks be determined, particularly with 
respect to backdating claims and to the EB program's requirement that 
an

[[Page 41168]]

individual engage in a ``systematic and sustained'' search for work?
    Answer: For purposes of backdating claims, State law applies. See 
20 CFR 615.8(a)(1). The EB work search requirements do not apply to 
retroactive weeks. The EB work search requirements only apply after 
individuals are notified in writing that their prospects of finding 
employment are ``not good''. See Q&A CH 1-7.
    CH 1-4. Question: Q&A 5 in UIPL No. 12-09 states that the changes 
made by Public Law 111-5 do not affect Federal sharing for EB based on 
service performed in the employ of State and local governments and 
Federally-recognized Indian Tribes. How should the State charge EB 
based on service for these entities?
    Answer: The answer differs for reimbursing employers and 
contributing employers:
     Because Section 204(a)(3) of the EB law denies Federal 
reimbursement for EB based on service for State and local governments 
and Federally-recognized Indian Tribes, 20 CFR 615.10(b) requires these 
employers, when they elect the reimbursement option, to reimburse 100 
percent of these EB costs. Public Law 111-5 does not change this result 
because it does not change the fact that there is no Federal 
reimbursement for these costs.
     State law dictates whether or not contributory employers 
are charged for EB. (However, States must continue to charge 
contributing employers for their share of sharable regular 
compensation.) See 20 CFR 615.10(a).

EB Work Search Requirements

    CH 1-5. Question: Where can I find more information on the EB work 
search requirements?
    Answer: Regulations governing the EB work search requirements, and 
other matters related to the EB program, are available at 20 CFR Part 
615. The core provisions are summarized in Q&As CH 1-6 through CH 1-14.
    CH 1-6. Question: When must individuals begin the EB work search?
    Answer: Individuals must begin a work search after the State 
provides notification that their prospects for obtaining work within a 
reasonably short period of time are ``good'' or ``not good.'' The State 
must provide this notification no later than the end of the week in 
which individuals file their first EB claim. Individuals whose job 
prospects are ``not good'' must be notified of the EB work search 
requirements at the same time. The work search requirements apply to 
the week following the week in which the individual receives such 
notice. See 20 CFR 615.8(d)(1).
    CH 1-7. Question: How does the State determine whether an 
individual's prospects for obtaining work within a reasonably short 
period of time are ``good'' or ``not good''?
    Answer: State law specifies what constitutes a reasonably short 
period of time. See 20 CFR 615.2(o)(3). Since individuals claiming EB 
have exhausted regular compensation and Emergency Unemployment 
Compensation (EUC08), they have been unemployed for a long time. There 
is a presumption that their prospects of obtaining work within a 
reasonably short period of time generally will be considered ``not 
good.'' Individuals can rebut this presumption by furnishing to the 
State satisfactory evidence to the contrary.
    CH 1-8. Question: What are the work search requirements for an 
individual who is claiming EB?
    Answer: The answer depends on whether the individual's prospects 
for obtaining work within a reasonable time are ``good'' or ``not 
good.'' Individuals whose prospects are ``good'' must conduct the same 
search for suitable work as is required of individuals claiming regular 
compensation under State law. Many State laws allow such individuals to 
establish eligibility if they limit their work search to their usual 
occupation. In other words, many State laws do not require individuals 
to immediately search for any kind of work available.
    The EB law and regulations set forth the work search requirements 
that States must require for individuals whose work prospects are ``not 
good.'' Taken together, this authority requires a ``systematic and 
sustained effort'' to search for ``suitable work'' for each week of EB 
claimed. (See Sections 202(a)(3)(C)-(E) of the EB law and 20 CFR 
615.8(d)(4), and 615.2(o)(8).) A ``systematic and sustained effort'' 
means, among other things, that the search is ``not limited to the 
classes of work or rates of pay to which the individual is accustomed 
or which represent the individual's higher skills, and which includes 
all types of work within the individual's physical and mental 
capabilities * * * '' 20 CFR 615.2(o)(8)(iv).
    CH 1-9. Question: How do the work search requirements relate to 
individuals participating in a short-time compensation (STC) program?
    Answer: The job prospects for individuals participating in a STC 
program are considered ``good'' because they are working, although at 
reduced hours. Moreover, Section 401(d)(1) of Public Law 102-318 
defines STC as a program under which, among other things, ``eligible 
employees are not required to meet * * * work search requirements while 
collecting'' STC. Thus, individuals are not required to seek work as a 
condition of receiving STC, regardless of whether the individual is 
claiming regular compensation or EB.

Submission of Tangible Evidence

    CH 1-10. Question: What tangible evidence of seeking work must the 
individual submit?
    Answer: The individual must supply information which includes the 
(1) actions taken, (2) methods of applying for work, (3) type(s) of 
work sought, (4) dates and places where work was sought, (5) name of 
the employer or person contacted, and (6) outcome of the contact. See 
20 CFR 615.2(o)(9).
    CH 1-11. Question: Must the individual actually submit the tangible 
evidence of work search to the State prior to the State issuing 
payment? Alternatively, may States issue payment based on the 
individual's certification, via Interactive Voice Response (IVR) or 
other means, that the tangible evidence has been transmitted to the 
State?
    Answer: It is preferable that a State require an individual to 
submit the tangible evidence with each claim. However, the Department 
of Labor (Department) will permit States to make payment based on the 
individual's certification that s/he has conducted the required work 
search and transmitted the evidence to the State.
    Section 615.8(g)(1) of 20 CFR requires the submission of tangible 
evidence of actively seeking work ``with each claim,'' suggesting that 
the State must receive the evidence at the same time as other claims 
materials. However, that section was drafted when simultaneous 
submittal of work-search data was more practical since claims were 
filed either in-person or through the mail. The current use of 
technologies such as IVR generally allows the States to process claims 
quickly and efficiently, but does not readily permit a claimant to 
submit ``tangible evidence,'' that is, ``a written record'' (20 CFR 
615.2(o)(9)), ``with each claim.'' Accordingly, the Department 
interprets section 615.8(g) as permitting a State to make payment upon 
the individual certifying, ``with each claim,'' that s/he has conducted 
the required work search and is submitting the tangible evidence. At a 
minimum, a State must periodically audit reasonable samples of the 
tangible evidence submitted to ensure that it has received these 
``written records'' and that they are complete.

[[Page 41169]]

    CH 1-12. Question: Must the State review the tangible evidence 
before making each payment?
    Answer: No. It is not practical for States to review all tangible 
evidence before making payments. However, States must, at a minimum, 
periodically review for completeness a reasonable sample of such 
evidence after payment.
    CH 1-13. Question: How may the tangible evidence of an active 
search be submitted?
    Answer: No single method of submission is required. What is 
essential is that the individual provide the necessary information in a 
verifiable form. As a result, States may require submission through 
paper, on-line, IVR, fax, or any other method that assures the State 
obtains the information. (For audit purposes, the State is required to 
maintain the individuals' responses for the same length of time as any 
written record(s). See 20 CFR 615.15(b).)

Suspension of Work Search Requirements

    CH 1-14. Question: May a State suspend the EB work search 
requirement?
    Answer: The work search requirements for individuals whose job 
prospects are ``not good'' may be suspended when:
     ``[S]evere weather conditions or other calamity forces 
suspension of such activities by most members of the community.'' (See 
20 CFR 615.2(o)(8)(vi).) High unemployment is not a ``calamity'' which 
``forces'' suspension of work search.
     Individuals are on jury duty or ``[h]ospitalized for 
treatment of an emergency or life- threatening condition.'' However, 
such suspension criteria only apply when State law authorizes 
suspension for both EB and regular UC. (See 20 CFR 615.8(g)(3).) Any 
illnesses or disabilities not requiring hospitalization for the reasons 
described are not permissible reasons to suspend the EB work search 
requirements.
    In addition, ``State law applies regarding whether members of labor 
organizations shall be required to seek nonunion work in their 
customary occupations.'' See 20 CFR 615.8(g)(4).

Interstate Claims

    CH 1-15. Question: Federal law limits EB eligibility to two weeks 
for certain individuals who file from a State that is not in an EB 
period. Does this limitation pertain to commuter claims?
    Answer: No. The two-week limitation applies only to claims filed 
under the Interstate Benefit Payment Plan (IBPP). Commuter claims are 
made by individuals who regularly traveled across a State line from 
home to work, and file for UC with the State of employment. Because 
commuter claims are not filed through the IBPP, the two-week limitation 
does not apply. See EB law, Section 202(c) and 20 CFR 615.9(c).

Terminating Disqualifications Using Work

    CH 1-16. Question: My State law provides that individuals are not 
required to return to work to terminate certain disqualifications. 
Instead, they must only wait a certain number of weeks to qualify. To 
be eligible for EB, an individual must terminate a disqualification 
using employment. How, in practice, does this work?
    Answer: The Department's regulations provide that, for EB purposes, 
a State ``shall require that the individual be employed again 
subsequent to the date of the disqualification before it may be 
terminated.'' (20 CFR 615.8(c)(2).) Under this rule, when the 
individual first files for EB, the State will apply the EB provisions 
of its UC law which require employment to terminate a disqualification. 
If the State finds that the individual has performed the employment 
required by its law prior to filing for EB, the disqualification will 
be terminated and initial EB eligibility may be established. If the 
State finds that such employment has not been performed, the State will 
issue an appealable determination specifying the amount of employment 
required for EB eligibility.

Entitlement During High Unemployment Periods

    CH 1-17. Question: My State has triggered ``off'' the 8 percent 
high unemployment period (HUP) provided for under the TUR trigger. It 
remains triggered ``on'' under the 6.5 percent TUR trigger. How does my 
State treat individuals with remaining HUP entitlement?
    Answer: In general, when a State triggers ``on'' to a HUP, an 
individual's maximum entitlement to EB will equal up to 20 weeks of 
benefits, as opposed to up to 13 weeks of benefits for ``basic'' EB. 
These additional weeks of benefits are payable only for weeks of 
unemployment occurring in a HUP. As a result, when a State triggers 
``on'' a HUP, the State will redetermine amounts payable for an 
otherwise eligible individual. However, when a State triggers ``off'' a 
HUP and the individual has not exhausted all entitlement, the State 
must redetermine the individual's remaining entitlement.
    Specifically, when a HUP triggers ``off,'' the State must 
redetermine entitlement based upon the ``basic'' EB monetary 
determination, minus benefits paid. For example, if an individual first 
becomes EB-eligible during a HUP, the individual will initially be 
entitled to 20 weeks. If the individual is paid six weeks and the HUP 
ends, the individual's remaining entitlement will be recalculated based 
on the current 13-week maximum entitlement minus any weeks of EB paid. 
In this case, the individual's remaining entitlement would equal seven 
weeks. (13-6 = 7.)
    As another example, assume the above individual was paid 15 weeks 
of EB and the HUP ends. In this case, the individual would have no 
remaining entitlement because the individual's current entitlement is 
capped at 13 weeks and an amount exceeding 13 weeks has already been 
paid.

Beginning and Ending Dates of EB Periods

    CH 1-18. Question: When does my State's EB period begin and end if 
it triggers ``on'' and ``off'' under different triggers? For example, 
my State:
     Triggers ``on'' EB under the TUR trigger.
     While still meeting the TUR trigger, also meets the 
mandatory insured unemployment rate (IUR) ``on'' trigger.
     While still meeting the IUR trigger, stops meeting the TUR 
trigger.
     Finally, stops meeting the IUR trigger.
    Answer: The State's EB period will begin with the first week 
payable under the TUR trigger and end with the last week payable under 
the IUR trigger. In this case, although there are different triggers 
for determining when an EB period may begin and end, there is only one 
EB period. As long as EB remains triggered ``on'' throughout this 
period under any trigger, the EB period continues. (See UIPL No. 45-
92.)
    The answer would be different if the ``on'' triggers do not 
overlap. For example, if the last week payable under the TUR trigger is 
week 14 of the calendar year and the first week payable under the IUR 
trigger is week 15, then the EB period would not be continuous. 
Instead, the TUR EB period would end. In this case, even though the 
State is continuing to experience high unemployment, the State must 
trigger ``off'' EB for a minimum of 13 weeks as required by EB law, 
Section 203(b)(1)(B), and 20 CFR 625.11(d).
    CH 1-19. Question: An EB period based on the TUR trigger begins the 
third week following the Department's EB trigger notice identifying 
that the State meets the ``on'' indicator. For the IUR trigger, the EB 
period begins the week immediately following the release

[[Page 41170]]

of the trigger notice with an ``on'' notice. What is the reason for 
this difference?
    Answer: Under Federal law, an EB period based on either the IUR or 
the TUR trigger begins the ``third week after the first week for which 
there is a State `on' indicator.'' (EB law, Section 203(a)(1).) 
However, since the ``on'' indicators for the IUR and TUR triggers are 
based upon different events, the EB periods they trigger begin at 
different times following the trigger notices:
     Under the IUR trigger, the week of the ``on'' indicator is 
the last week of a 13-week period when the State's IUR reaches the 
levels specified in law and regulation. (See Section 203(d)(1) of the 
EB law and 20 CFR 615.12(a).) Under Section 203(a)(1) of the EB law, 
the EB period begins the third week after this ``on'' indicator week. 
The week that the EB period begins is the week after the trigger notice 
is published because the process proceeds as follows:

--Week 1 is the week when individuals submit benefit claims for the 
prior week. That prior week will be deemed the ``on'' indicator week if 
these benefit claims meet the IUR trigger requirements.
--Week 2 is the week the State compiles the benefit claims submitted 
during Week 1, the State reports its IUR to the Department, and the 
Department issues the EB trigger notice based on the State report.
--Week 3 is the beginning of the EB period.

     Under the TUR trigger, the week of the ``on'' indicator is 
the week ``the average rate of total unemployment in [a] State 
(seasonally adjusted) for the period consisting of the most recent 3 
months for which data for all States are published'' meets certain 
criteria. (EB law, Section 203(f)(1)(A)(i).) Thus, the statute ties the 
TUR ``on'' indicator to the week of publication, and the EB period 
begins the third week following this indicator week. As a result, for 
example, when data for the month of February for all States was 
published on March 27, 2009, the EB period for States triggering ``on'' 
using this data began April 12, 2009.
    Similarly, the end dates of EB periods in relation to the 
Department's EB trigger notice depend on whether the State triggers 
``off'' an EB period based on the TUR trigger or the IUR trigger.

Attachment II

Draft Legislation--Tur Trigger

Discussion
    Below is suggested legislative language for States that choose to 
add a TUR EB trigger and make the first week of EB payable the week 
beginning February 22, 2009. (This is the first week most EB payments 
qualify for 100 percent Federal sharing. The exceptions to 100 percent 
Federal sharing are discussed in Q&As 4 and 5 in Attachment I to UIPL 
No. 12-09.) This language is identical to the suggested provisions in 
UIPL No. 45-92, Attachment II, with two exceptions. First, the date 
provided in paragraph (a)(2)(C) for the start of the TUR trigger 
differs. Second, two unnecessary words were deleted. States that choose 
to adopt a later date should edit the dates as appropriate.
    States that do not want to make the TUR EB trigger permanent have 
requested assistance in developing two termination options. The first 
end date would be the last week that 100 percent Federal sharing is 
available for most EB payments (i.e., the last week beginning before 
January 1, 2010). The second would be the last week of the phase-out 
(i.e., the last week ending before June 1, 2010). As discussed above, 
the phase-out allows 100 percent Federal sharing to continue for 
individuals who were paid EB for a week of unemployment ending before 
January 1, 2010. The bolded language in the draft legislation offers 
two dates, depending on when the State chooses to terminate the TUR 
trigger. (The earlier date relates to the first option; the later to 
the second option.)
    An alternative approach is based on the possibility that Congress 
will extend the termination dates for Federal sharing. Under this 
option, the expiration date is tied to the date that Congress selects. 
If the State chooses this approach, then, as above, it has two options.
     Under the first option, EB would terminate the last week 
100 percent Federal sharing is available for most EB payments. State 
law could provide that the EB trigger will remain in effect ``until the 
week ending four weeks prior to the last week of unemployment for which 
100 percent Federal sharing is available under Section 2005(a) of 
Public Law 111-5, without regard to the extension of Federal sharing 
for certain claims as provided under Section 2005(c) of such law.''
     Under the second option, EB would terminate the last week 
100 percent Federal sharing is available under the phase-out. State law 
could provide that the trigger will remain in effect ``until the week 
ending four weeks prior to the last week of unemployment for which 100 
percent Federal sharing is available for any claim under Section 
2005(c) of Public Law 111-5.''
    The draft language also implements the HUP trigger of 8 percent TUR 
(with lookback). States implementing the optional 6.5 percent TUR 
trigger must also implement the HUP trigger, which has the effect of 
increasing EB eligibility from 13 to 20 weeks. (See UIPL No. 45-92, 
Attachment 1, section I.B.2.)
    States should consider whether it is necessary to enact amendments 
expanding EB eligibility provisions to cover certain individuals who 
have exhausted EUC08, as authorized under Public Law 111-5. (See UIPL 
No. 12-09, Q&As 6 and 7.) States choosing to enact such amendments may 
add language indicating that, notwithstanding anything in State law, an 
individual's eligibility period shall include any eligibility period 
provided for in section 2005(b) of Public Law 111-5.
Draft Language
    The draft language for legislation is available at: http://wdr.doleta.gov/directives/attach/UIPL/UIPL12-09_ch1_a2acc.pdf.

    Dated: This tenth day of August, 2009.
Jane Oates,
Assistant Secretary of Labor, Employment and Training Administration.
[FR Doc. E9-19519 Filed 8-13-09; 8:45 am]
BILLING CODE 4510-FW-P