[Federal Register Volume 85, Number 163 (Friday, August 21, 2020)]
[Rules and Regulations]
[Pages 51896-52024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13802]



[[Page 51895]]

Vol. 85

Friday,

No. 163

August 21, 2020

Part III





Department of Labor





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Employment and Training Administration





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20 CFR Parts 617 and 618

29 CFR 90





Trade Adjustment Assistance for Workers; Final Rule

  Federal Register / Vol. 85, No. 163 / Friday, August 21, 2020 / Rules 
and Regulations  

[[Page 51896]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 617 and 618

29 CFR Part 90

[Docket No. ETA-2019-0009]
RIN 1205-AB78


Trade Adjustment Assistance for Workers

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department) is expanding protection and support 
for U.S. workers adversely impacted by foreign trade by revising its 
Trade Adjustment Assistance (TAA) for Workers program (TAA Program) 
regulations. This final rule will, among other improvements, make it 
easier for workers to qualify for job search and relocation allowances, 
increase those allowances in line with the statute, expand training to 
include more flexibility for apprenticeships, ensure workers have 
access to individualized assessments, make it easier for groups of 
workers to apply for benefits, and offer assistance to additional 
categories of workers, including by helping workers in jobs threatened 
by foreign trade to receive training and support to transition to new 
employment.

DATES: This final rule is effective September 21, 2020.

FOR FURTHER INFORMATION CONTACT: Norris Tyler, Administrator, Office of 
Trade Adjustment Assistance, U.S. Department of Labor, Employment and 
Training Administration, 200 Constitution Avenue NW, Room N-5428, 
Washington, DC 20210, Telephone: 202-693-3560 (voice) (this is not a 
toll-free number), 1-888-365-6822, or 1-877-889-5627 
(Telecommunications Device for the Deaf).

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

I. Acronyms and Abbreviations
II. Background
    A. Introduction to the Trade Adjustment Assistance Program
    B. Statutory and Regulatory History of the Trade Adjustment 
Assistance Program
    C. Need for This Regulation
    D. Public Comments Received on the Notice of Proposed Rulemaking
III. Section-by-Section Analysis of This Final Rule
    A. Subpart A--General
    B. Subpart B--Petitions, Investigations, and Determinations
    C. Subpart C--Employment and Case Management Services
    D. Subpart D--Job Search and Relocation Allowances
    E. Subpart E--Reemployment Trade Adjustment Assistance
    F. Subpart F--Training Services
    G. Subpart G--Trade Readjustment Allowances
    H. Subpart H--Administration by Applicable State Agencies
    I. Subpart I--Allocation of Funds to States for Training and 
Other Activities
IV. Agency Determinations
    A. Legal Authority
    B. Executive Orders 12866 (Regulatory Planning and Review), 
13563 (Improving Regulation and Regulatory Review), and 13771 
(Reducing Regulation and Controlling Regulatory Costs)
    C. Regulatory Flexibility Act, Small Business Regulatory 
Enforcement Fairness Act of 1996, and Executive Order 13272 (Proper 
Consideration of Small Entities in Agency Rulemaking)
    D. Paperwork Reduction Act
    E. Executive Order 13132 (Federalism)
    F. Unfunded Mandates Reform Act of 1995
    G. Executive Order 13175 (Indian Tribal Governments)

I. Acronyms and Abbreviations

AAIW(s) adversely affected incumbent worker(s)
AAW(s) adversely affected worker(s)
ATAA Alternative Trade Adjustment Assistance
EB Extended Benefits
ECI Employment Cost Indices
ETP(s) eligible training provider(s)
FEIN(s) Federal Employment Identification Number(s)
FTR Federal Travel Regulation
HCTC Health Coverage Tax Credit
IC(s) information collection(s)
ICR(s) information collection request(s)
IEP(s) individual employment plan(s)
ITA(s) Individual Training Account(s)
ITC International Trade Commission
JSP job search program
JTPA Job Training Partnership Act
local area(s) local workforce development area(s)
LWDB(s) local workforce development board(s)
MIS management information system
NAA National Apprenticeship Act
OES Occupational Employment Statistics
OJT on-the-job training
OTAA Office of Trade Adjustment Assistance
PIRL Participant Individual Record Layout
RTAA Reemployment Trade Adjustment Assistance
SNAP Supplemental Nutrition Assistance Program
TAA Trade Adjustment Assistance
TAA Program collective reference to the following three programs: 
TAA for Workers program, ATAA, and RTAA
TAAEA Trade Adjustment Assistance Extension Act of 2011
TAARA 2002 Trade Adjustment Assistance Reform Act of 2002
TAARA 2015 Trade Adjustment Assistance Reauthorization Act of 2015
TaOA Training and Other Activities
TEGL(s) Training and Employment Guidance Letter(s)
TGAAA Trade and Globalization Adjustment Assistance Act of 2009
the Act chapter 2 of title II of the Trade Act of 1974, as amended
TRA Trade Readjustment Allowances
UI Unemployment Insurance
UMRA Unfunded Mandates Reform Act of 1995
USCIT United States Court of International Trade
WARN Worker Adjustment and Retraining Notice
WBA(s) weekly benefit amount(s)
WIA Workforce Investment Act of 1998
WIOA Workforce Innovation and Opportunity Act

II. Background

A. Introduction to the Trade Adjustment Assistance Program

    On November 7, 2019, the Department published a Notice of Proposed 
Rulemaking (NPRM) in the Federal Register (84 FR 60150), proposing to 
amend 20 CFR parts 617 (Trade Adjustment Assistance for Workers under 
the Trade Act of 1974) and 618 (Trade Adjustment Assistance under the 
Trade Act of 1974, as Amended) to expand protection and support for 
U.S. workers adversely impacted by foreign trade.
    The Department is streamlining and consolidating three separate 
parts of the CFR that contain TAA Program regulations (20 CFR parts 617 
and 618, 29 CFR part 90) into a single part (20 CFR part 618) with nine 
subparts. In addition, the revisions will codify into regulation 
elements of the most recent TAA Program amendments, the Trade 
Adjustment Assistance Reauthorization Act of 2015 (Pub. L. 114-27, 
title IV) (TAARA 2015). This final rule also incorporates operating 
instructions issued via administrative guidance into the TAA Program 
regulations, with some refinements. Further, the revisions align the 
TAA Program regulations with the Workforce Innovation and Opportunity 
Act (WIOA) (Pub. L. 113-128), the 2014 comprehensive legislation that 
reauthorized the public workforce system.
    This final rule increases efficiency and flexibility for States and 
trade-affected workers. Because subpart B (Petitions, Investigations, 
and Determinations) of this final rule expressly permits workers 
employed by a leasing or staffing agency (termed ``staffed workers'') 
to be members of a worker group, even if they are not mentioned 
specifically within the determination document, the

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Department anticipates a substantial reduction in the number of 
requests to amend certifications. The Department also is increasing 
flexibility in subpart D (Job Search and Relocation Allowances) by 
making it easier for adversely affected workers (AAWs) to qualify for a 
job search allowance and ensuring that workers who qualify for 
relocation allowances are finding comparable or better paying jobs. 
Subpart F (Training Services) clarifies that work-based training 
includes apprenticeships for all or part of a trade-affected worker's 
training program. It also establishes a regulatory framework to provide 
assistance to workers who are currently employed but threatened with 
job loss resulting from foreign trade, thereby enabling such workers to 
retrain and seek new employment before job separation occurs. In 
subpart H (Administration by Applicable State Agencies), the Department 
is extending flexibility by removing the requirement that only State 
merit staff can provide employment and case management services using 
TAA Program funding, granting States more flexibility with program 
operations and creating better alignment with WIOA.
    This final rule seeks to improve service delivery, and thereby 
serve trade-affected workers more effectively, by including service-
delivery requirements that align with data-tested methods. Subpart A 
(General) better defines certain investigations-based terms to add 
consistency at both the State and Federal level and improve program 
operations, including reducing burden and workload for TAA Program 
investigative reconsiderations and appeals related to these terms. In 
addition, the Department is helping provide positive outcomes for each 
trade-affected worker by including new data-driven requirements for 
assessments and individual employment plans (IEPs) in subpart C 
(Employment and Case Management Services).
    In subpart E, this final rule implements statutory provisions for 
Reemployment Trade Adjustment Assistance (RTAA) and incorporates 
administrative guidance previously issued by the Department, since no 
regulations covering the RTAA program existed. Subpart G implements 
several statutory changes to Trade Readjustment Allowances (TRA), 
including establishing deadlines to enroll in training, reducing the 
types of available waivers, allowing an election between Unemployment 
Insurance (UI) and TRA, and allowing AAWs to earn up to their weekly 
benefit amount (WBA) without penalty. In addition, subpart I 
(Allocation of Funds to States for Training and Other Activities) 
replaces the term ``training'' with ``Training and Other Activities'' 
(TaOA) to reflect the additional benefits and services covered by such 
funding.
    This final rule provides a consolidated, authoritative set of rules 
to guide Federal and State officials in implementing the Trade Act of 
1974 (Pub. L. 93-618), as amended (the Act). This streamlining will 
also clarify the Department's interpretation of law for courts.
    Subpart B (Petitions, Investigations, and Determinations) will 
produce cost savings by eliminating the two-step process for 
reconsiderations, which will reduce the processing time involved for 
all reconsiderations, and by clarifying ``final determinations'' for 
judicial appeals, which will reduce the number of those appeals. 
Subpart H (Administration by Applicable State Agencies) will also 
produce cost savings by revising the merit staff requirements to allow 
States to charge time for non-merit staff to TAA Program funds for the 
provision of employment and case management services. This final rule 
is considered to be an Executive Order (E.O.) 13771 deregulatory 
action. Details on the estimated cost savings of this final rule can be 
found in the rule's economic analysis.
    The purpose of this final rule is to ensure that the TAA Program 
regulations are modernized to reflect the program's current operation 
and make needed improvements. The revisions also will provide clarity 
by eliminating confusing and overly technical language and update the 
TAA Program regulations by encouraging the use of paperless electronic 
mechanisms over paper-based methods.
    An ever-changing global marketplace drives the 21st-century 
economy. For America to compete in the global economy, its workers need 
to have the skills and support to take advantage of new opportunities. 
The TAA Program bolsters America's competitiveness by helping American 
workers retrain and reenter the workforce.

B. Statutory and Regulatory History of the Trade Adjustment Assistance 
Program

    The Act (codified at 19 U.S.C. 2271 et seq.), title II, chapter 2, 
established the TAA for Workers program and the RTAA program, as well 
as the predecessor to RTAA, the Alternative Trade Adjustment Assistance 
(ATAA) program.\1\ These programs, collectively referred to as the TAA 
Program, assist U.S. workers who have lost or may lose their jobs as a 
result of foreign trade (i.e., trade-affected workers). The TAA Program 
provides AAWs and adversely affected incumbent workers (AAIWs) with 
opportunities to obtain skills, credentials, resources, and support to 
help them become reemployed. TAA Program benefits and services under 
the TAARA 2015 amendments include employment and case management 
services; training; out-of-area job search and relocation allowances; 
income support through TRA; the RTAA wage supplement benefit for AAWs 
aged 50 or older who find qualifying reemployment; and, if available, 
eligibility for assistance with health care premium costs under the 
Health Coverage Tax Credit (HCTC),\2\ which is administered by the 
Internal Revenue Service (IRS).
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    \1\ ATAA is largely unaddressed in the final rule because it was 
replaced by RTAA.
    \2\ The HCTC was due to expire on January 1, 2020, but has 
recently been extended to January 1, 2021.
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    There are two steps for trade-affected workers to obtain program 
benefits and services. First, a group of workers must file a petition, 
or have a petition filed on its behalf, to determine worker-group 
eligibility. Upon receiving a petition, the Department initiates an 
investigation to determine whether the circumstances of the layoff meet 
the group-eligibility criteria established by section 222 of the Act. 
Second, if the Department finds the group eligible and certifies the 
petition, trade-affected workers in the worker group may individually 
apply to their State for TAA Program benefits and services. Under 
agreements between the Secretary of Labor (Secretary) and each 
Governor, the States determine individual eligibility based on the 
statutory criteria and provide the TAA Program benefits and services to 
trade-affected workers with Federal funds allocated by the Department 
for that purpose. The TAA Program is a required one-stop partner under 
WIOA. One-stop centers--branded as American Job Centers under WIOA--
deliver workforce development services to job seekers and businesses 
nationwide.
    Since 1975, the TAA Program has served over 2 million trade-
affected U.S. workers. In Fiscal Year (FY) 2018, an estimated 76,920 
workers became eligible for TAA Program benefits and services. Nearly 
77 percent of trade-affected workers obtained employment within 6 
months of completing the TAA Program.
    Trade-affected workers come from a variety of backgrounds and 
industries, so they enter the program with a wide array of skills and 
experience. Most

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trade-affected workers who enter the program, however, face similar 
challenges in obtaining reemployment. Trade-affected workers have no 
postsecondary degree typically, a median age of 52, and have a median 
tenure of 8.3 years of experience in adversely affected employment.\3\ 
The TAA Program is designed to serve the needs of this unique 
population.
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    \3\ U.S. Department of Labor, Employment and Training 
Administration. (2019). ``Trade Adjustment Assistance for Workers 
Program: Fiscal Year 2018.'' Retrieved from: https://www.doleta.gov/tradeact/docs/AnnualReport18.pdf.
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    Congress has reauthorized and amended chapter 2, and thus the TAA 
Program, multiple times. The TAA Program was changed extensively by 
amendments in 1981 (Pub. L. 97-35, title XXV), 1984 (Pub. L. 98-369, 
sections 2671, 2672, 2673), 1986 (Pub. L. 99-272, title XIII, subtitle 
A, part 1), 1988 (Pub. L. 100-418, title I, subtitle D, part 3), and 
1993 (Pub. L. 103-182, section 501 through 507). In 1987, the 
Department issued a final rule significantly revising the certification 
process in 29 CFR part 90 (52 FR 23403, June 19, 1987). In 1994, the 
Department issued a final rule significantly revising the TAA Program 
regulations in 20 CFR part 617 to implement the 1988 amendments (59 FR 
906, Jan. 6, 1994).
    In 2002, Congress reauthorized and amended the TAA Program in the 
Trade Adjustment Assistance Reform Act of 2002 (TAARA 2002) (Pub. L. 
107-210). TAARA 2002 expanded the scope of the TAA Program, increased 
its benefit amounts, repealed the North American Free Trade Agreement 
Transitional Adjustment Assistance (or NAFTA-TAA) program, established 
the HCTC to subsidize private health-insurance costs for qualified 
workers, and created the ATAA program as a demonstration program.
    The Department published two NPRMs in 2006, to implement the TAARA 
2002 amendments (71 FR 50760, Aug. 25, 2006 and 71 FR 61618, Oct. 18, 
2006). However, Congress in 2007 (Pub. L. 110-5), 2008 (Pub. L. 110-
161), and 2009 (Pub. L. 111-8) prohibited the Department from further 
action until Congress reauthorized the TAA Program. The next 
reauthorization, the Trade and Globalization Adjustment Assistance Act 
of 2009 (TGAAA) (Pub. L. 111-5, div. B, title I, subtitle I), made such 
substantial amendments to the TAA Program that it rendered the 2006 
NPRMs obsolete. The Department withdrew the NPRMs in 2009 (74 FR 27262, 
June 9, 2009).
    TGAAA, part of the American Recovery and Reinvestment Act (Pub. L. 
111-5), reauthorized and substantially amended the TAA Program. It 
expanded the program's benefits and the types of trade-affected workers 
the Department could certify. Section 1893 of TGAAA provided that most 
of the TGAAA amendments would expire on December 31, 2010. Congress 
later extended that expiration date by 6 weeks (Pub. L. 111-344).
    The Department revised the TAA Program regulations in 2010, by 
adding a new 20 CFR part 618 (75 FR 16988, Apr. 2, 2010). The revisions 
addressed the allocation of TAA Program training funds to the States. 
The revisions also required, for the first time by regulation, that 
State administration of the TAA Program be performed by merit staff.
    The Trade Adjustment Assistance Extension Act of 2011 (TAAEA), 
enacted in 2011, provided a balance between the expanded certification 
criteria and benefits and services provided under TGAAA, and the more 
limited provisions in TAARA 2002.
    TAARA 2015 reauthorized the TAA Program through June 30, 2021. It 
primarily followed TAAEA, the 2011 law, with two exceptions. The 
amendments included capping funding for TaOA at $450 million per fiscal 
year and establishing new performance indicators to align with WIOA. 
TAARA 2015 reauthorized the RTAA and HCTC benefit programs. TAARA 2015 
continued to grandfather earlier versions of the TAA Program for trade-
affected workers who had been certified under TAARA 2002, TGAAA, and 
TAAEA. That is, a trade-affected worker who was a member of a worker 
group covered by a certification that was issued under TAARA 2002, 
TGAAA, or TAAEA continued to receive benefits and services available 
under the respective program eligibility criteria applicable to those 
earlier amendments.

C. Need for This Regulation

    The TAA Program regulations were last updated in 1994, with only 
minor changes made in 2006,\4\ 2007,\5\ and 2010.\6\ Since that time, 
multiple TAA Program legislative amendments have required various 
changes to the program, which the Department has addressed through 
administrative guidance. This final rule codifies in regulation program 
operations under the most recent amendments (TAARA 2015), including 
significant elements of TAA Program administrative guidance. This final 
rule was drafted to reflect how the TAA Program is currently operating 
and includes some adjustments that will improve the program. Once this 
final rule is effective, the Department will rescind redundant 
administrative guidance, as appropriate.
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    \4\ 71 FR 35511 (June 21, 2006) (making technical amendments to 
update obsolete, nonsubstantive, or nomenclature references).
    \5\ 72 FR 37097 (July 9, 2007) (making minor changes to 29 CFR 
part 90).
    \6\ 75 FR 16988 (Apr. 2, 2010) (adding 20 CFR part 618 to 
include only subparts H and I relating to merit staffing of State 
administration and allocation of TAA Program training funds to 
States).
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    This final rule will help States and the public better understand 
the proper operation of the TAA Program. It will promote transparency 
by setting out, in binding regulation, the major principles by which 
the TAA Program operates, and it also will provide the public and 
courts with the Department's authoritative interpretation of the Act.
    In addition, this final rule includes clarifications that draw upon 
the Department's expertise gained from decades of experience operating 
the TAA Program. For example, the Department's litigation experience 
has provided insight into parts of the TAA Program regulations that 
have needed clarification to ensure more effective, efficient, and 
consistent operations of the TAA Program throughout the United States. 
In addition, since 2009, the Department has had the benefit of real-
time data on trade-affected workers participating in the TAA Program, 
the analysis of which has driven improvements to the provisions in this 
final rule.
    This final rule also includes changes that align the TAA Program 
regulations with WIOA. For example, WIOA further integrated the TAA 
Program with the public workforce and education systems by affirming 
the TAA Program as a required partner in the one-stop delivery system. 
This final rule aligns with and references the WIOA regulations where 
appropriate. This final rule also removes outdated references to the 
Job Training Partnership Act (JTPA) and the Workforce Investment Act of 
1998 (WIA).

D. General Comments Received on the Notice of Proposed Rulemaking

    On November 7, 2019, the Department published an NPRM in the 
Federal Register (84 FR 60150), proposing to amend 20 CFR parts 617 
(Trade Adjustment Assistance for Workers under the Trade Act of 1974) 
and 618 (Trade Adjustment Assistance under the Trade Act of 1974, as 
Amended) and 29 CFR part 90 to expand protection and support for U.S. 
workers adversely impacted by foreign trade. The NPRM invited written 
comments from the public concerning this proposed

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rulemaking through December 9, 2019. This 30-day comment period was 
later extended by 2 days (84 FR 67681), through December 11, 2019, 
because of a regulations.gov website outage that occurred on December 
9, 2019. No commenters requested an extension of the comment period or 
otherwise expressed concern about the public's ability to participate 
in the rulemaking process. The comments received on the NPRM may be 
viewed at https://www.regulations.gov by entering docket number ETA-
2019-0009.
    The Department received comment submissions from 54 commenters, of 
which 45 submissions were unique and 9 were duplicates or not related 
to the subject of this rule. The commenters represented a range of 
stakeholders from the public and nonprofit sectors. Public sector 
commenters included State and local government agencies, local 
workforce development boards (LWDBs), and one-stop operators. Nonprofit 
sector commenters included public policy organizations, advocacy 
groups, national and local labor unions, and a trade association. Of 
the unique comments, nearly one third came from State government 
workforce agencies. The Department also received several comments from 
private citizens.
    These comments are addressed in Section III (Section-by-Section 
Analysis) of this final rule. About half of the unique comments 
supported parts of the proposal but opposed others, while a smaller 
number conditioned their support for the proposal on the Department 
adopting certain changes in this final rule.
    The NPRM notified the public that an additional docket (ETA-2019-
0010) for comments related to the information collection (IC) discussed 
in Section V.D of the NPRM preamble (Paperwork Reduction Act) would 
remain open until January 6, 2020. The Department did not receive 
comments related to this IC in this docket. For further information on 
the IC, please see the Paperwork Reduction Act (PRA) section of this 
final rule (Section IV.D).
General Comments on the Proposed Rule
    One commenter agreed with the anticipated improvements and benefits 
of the proposed rule that the Department set forth in the NPRM. One 
commenter stated that several of the proposed changes would positively 
strengthen local control of program development. Another commenter 
agreed that the proposal would help workers but expressed curiosity 
about how the rule would affect the economy if adopted. Several 
commenters sought guidance, unrelated to the proposal, on very specific 
programmatic scenarios related to their current workforce programs. One 
commenter expressed general concern that the proposed rule could 
disproportionately reduce benefits and services for rural AAWs. In 
contrast, another commenter said the proposed rule would help rural 
communities and areas with ``a strong presence of the blue-collar work 
force.''
    None of these commenters provided specific, substantive comments on 
any particular part of the proposed rule or proposed regulatory text; 
therefore, these comments are not addressed in the Section-by-Section 
Analysis below.
    One State workforce agency commented that the TAA Program needs 
updates to keep serving trade-affected workers most effectively. 
Another State workforce agency commenter supported efforts to 
incorporate existing law, administrative guidance, and practice into a 
single set of regulations, saying the changes would improve program 
operations and reduce the burden of referencing numerous amendments and 
issuances of administrative guidance. The Department has, wherever 
possible, incorporated administrative guidance into this rule.
    The Department received one comment of general opposition to the 
timing of the proposed rule in relation to the upcoming Presidential 
election and the status of the economy. The commenter provided 
insufficient information on why it recommended delaying until after the 
election, so the Department is unable to address any specific concerns.
Comments on the Department's Approach to Rulemaking
    A commenter from an LWDB strongly agreed with the Department's 
rationale concerning the need for a rulemaking, including that the 
proposed rule would increase stakeholder and public understanding of 
how the TAA Program works, would streamline State administration of the 
program, would strengthen transparency through codification of current 
practice, and would provide courts with the Department's definitive 
interpretation of the TAA Program's authorizing statutes.
    Citing its own research about the need for TAA Program reform, a 
nonprofit public policy organization said that the proposed rule covers 
several issues raised in that research, namely the need to increase the 
proportion of dislocated workers covered; the need to strengthen the 
TAA Program across the board (rather than focus on training only); and 
the need to ensure the training offered results in stable, family-
sustaining employment. The commenter, however, suggested additional 
changes to increase the program's effectiveness: Extending eligibility 
to workers affected by automation and other large-scale economic 
disruptions, allowing workers to use TRA for services other than 
training, and making extra support available to communities hit hardest 
by foreign trade impacts. The Department appreciates this feedback, but 
these suggestions are beyond the scope of its statutory authority and 
are not addressed in this final rule.
    While one commenter agreed with the overall argument for why a 
rulemaking is needed (e.g., to modernize the program regulations), it 
requested clarification about the intended effect of consolidating the 
regulations: Whether it will result in a ``universal'' program under 
which all trade-affected workers may access the same benefits 
regardless of the statutory basis for their certification, or whether 
the final rule will provide different requirements and benefits 
according to the individual statutory basis of eligibility. The 
commenter said it preferred the ``universal'' approach because it would 
provide a consistent level of support to all workers and help avoid 
``misunderstandings.'' While the Department appreciates the commenter's 
interest in the provision of a consistent level of support, the 
Department does not have the authority to apply this final rule to all 
trade-affected workers without regard to the version of the Act under 
which the worker group was certified.
Integrated Service Strategies To Align WIOA and TAA Programs
    A worker advocacy group strongly supported efforts to codify into 
the program regulations improved alignment with WIOA, such as through 
the replacement of core indicators of performance based on TAAEA with 
primary indicators of performance based on WIOA, and the addition of 
more robust reporting and data collection requirements. Citing WIOA's 
approach to promoting industry or sector partnerships among 
stakeholders at the State and local workforce development area (local 
area) levels, the group also encouraged the Department to emphasize the 
importance of aligning training and other services to industry needs. 
Further, the commenter said that bringing this focus to the TAA Program 
would help ensure that public investments both lift up affected workers 
and respond to industry demands.

[[Page 51900]]

    The Department aligned this final rule with WIOA requirements and 
has long promoted integrated service delivery for the TAA Program 
within the nation's public workforce system. These efforts began as 
early as the passage of the 1988 amendments to the TAA Program and the 
subsequent passage of the Economic Dislocation and Worker Adjustment 
Assistance Program. Integrated service delivery became a requirement, 
enforced via the Governor-Secretary Agreement, following the passage of 
the WIA. The Department has provided significant administrative 
guidance and dedicated substantial technical assistance resources to 
assist States and local areas in developing integrated service models 
focused on reducing barriers to participation and eliminating 
duplication of effort. After more than 20 years of promoting an 
integrated service delivery model and encouraging co-enrollment in WIOA 
(WIA, JTPA, etc.), the Department, based on detailed analysis of 
participant outcomes, is now mandating co-enrollment between the TAA 
Program and the WIOA dislocated worker program. Additionally, as the 
commenter recommended, the Department has aligned this final rule with 
the WIOA regulations wherever possible, unless a particular statutory 
limitation required otherwise or data analysis supported an alternative 
approach.
    One commenter supported the Department's acknowledgment that WIOA 
and TAA Program alignment is important for workers, businesses, and 
communities, but it expressed concerns about the level of Federal 
funding and infrastructure limitations in the public workforce system. 
The commenter provided data supporting stated concerns about the levels 
of Federal funding of the public workforce system. The Department 
recognizes these concerns, but appropriated funding levels are beyond 
the scope of this rulemaking.
    This commenter also made several recommendations to facilitate 
better alignment of the programs without overburdening workers or 
program administrators, including clarifying the meaning of WIOA-
related terms, such as ``customized training,'' ``on-the-job training'' 
(OJT), and ``individual employment plan,'' and their application to the 
TAA Program. To the extent possible and consistent with statutory 
differences, the Department has aligned these definitions in the final 
rule. For further discussion regarding how these various terms have 
been defined, please refer to the preamble discussion for Sec.  618.110 
below.

III. Section-by-Section Analysis of This Final Rule

    If a section of the NPRM is not addressed in the section-by-section 
analysis below, there were no public comments received and, unless 
otherwise noted, the Department has adopted the section as proposed. 
The Department has made some nonsubstantive changes to the regulatory 
text to correct grammatical and typographical errors, or to improve 
readability.

A. Subpart A--General

    Subpart A sets forth the purpose and scope of the TAA Program and 
defines relevant terms used throughout the rule. Subpart A as proposed 
in the NPRM modified and simplified several definitions for greater 
clarity, eliminated definitions in response to statutory changes to the 
Act, and added definitions of new terms based on statutory changes. The 
definitions used in this final rule are intended to reflect the 
modernized TAA Program, which has evolved since TAARA 2002, and ensure 
maximum alignment with WIOA. Where the Department received comments on 
specific paragraphs within a section, details of those paragraphs as 
proposed in the NPRM are included to provide context for the discussion 
of comments that follows.
Section 618.100 Purpose and Scope
    Section 618.100 of the final rule sets forth the purpose and scope 
of the regulations governing the TAA program in one location. Prior to 
this final rule, this provision existed at 20 CFR 617.1 and 617.2. The 
NPRM proposed setting forth these provisions in one section, addressing 
the purpose in paragraph (a) and the scope in paragraph (b). The NPRM 
also proposed revising them by broadening the purpose to reflect that 
the TAA Program's purpose is more than just returning trade-affected 
workers to suitable employment and by expanding the scope beyond what 
was reflected in 20 CFR 617.2 in light of the fact that part 618 of the 
final rule combines what had been parts 617 and 618 of title 20 and 
part 90 of title 29.
    With regard to the scope of this rule at paragraph (b), two 
commenters asked whether eligible trade-affected workers who are 
members of a worker group certified under previous amendments 
(versions) of the Act would be provided the benefits and services 
described in the proposed rule or whether administrative guidance would 
still apply. The TAA Program regulations were last updated in 1994, 
with only minor changes made in 2006,\7\ 2007,\8\ and 2010.\9\ Since 
that time, multiple TAA Program reauthorizations and amendments have 
required various changes to the TAA Program, which the Department has 
addressed through administrative guidance. Upon review, the Department 
concludes that some administrative guidance must remain active in order 
to serve continuing or new workers enrolling under the TAARA 2002 and 
TGAAA versions of the TAA Program. The Department will rescind 
administrative guidance that is either obsolete or superseded.
---------------------------------------------------------------------------

    \7\ 71 FR 35511 (June 21, 2006) (making technical amendments to 
update obsolete, nonsubstantive, or nomenclature references).
    \8\ 72 FR 37097 (July 9, 2007) (making minor changes to 29 CFR 
part 90).
    \9\ 75 FR 16988 (Apr. 2, 2010) (adding 20 CFR part 618 to 
include only subparts H and I relating to merit staffing of State 
administration and allocation of TAA Program training funds to 
States).
---------------------------------------------------------------------------

    In short, this rule will apply except where it does not apply to 
older versions of the TAA Program because of a statutory conflict. 
Specifically, certain sections will not apply to members of worker 
groups certified under petition numbers TA-W-80,999 and below. Members 
of worker groups certified under petition series TA-W-43,000 through 
TA-W-69,999 and some under the petition series TA-W-80,000 through TA-
W-80,999 are served by TAARA 2002,\10\ and where this final rule does 
not apply to a since-amended version of the statute governing the 
relevant version of the program, administrative guidance will continue 
to apply for current members of worker groups and any new members of 
worker groups determined eligible for training services as well as job 
search and relocation allowances under that version of the program. The 
same applies for members of worker groups certified under petition 
series TA-W-70,000 through TA-W-79,999 served by TGAAA. Members of 
worker groups certified under petition series TA-W-81,000 through TA-W-
84,999, and some certified under petition series TA-W-80,000 through 
TA-W-80,999, are served by TAAEA and this final rule will apply in 
full. Members of worker groups certified under petition series TA-W-
90,000 and above, and some certified under petition series TA-W-85,000 
through TA-W-89,999, are served by TAARA 2015, and this final rule will 
apply in full. The Department has added a clarification to Sec.  
618.100(b) of the final rule to explain the limitations of this part 
618 and will

[[Page 51901]]

provide technical assistance on this topic.
---------------------------------------------------------------------------

    \10\ States serving workers certified under petition series TA-
W-42,999 and below should contact their regional office for 
guidance.
---------------------------------------------------------------------------

    One commenter generally supported facilitating State TAA Program 
administration. Another commenter wrote that it is difficult to 
administer separate TAA programs based on the many previous amendments. 
The Department explored whether it was possible to unite all previous 
versions of the TAA Program under a single rule to reduce the 
administrative burden on the States. Unfortunately, this is not 
possible through regulation and the final rule adopts the regulatory 
text as proposed.
Section 618.110 Definitions
    Section 618.110 sets forth definitions used throughout the TAA 
regulations, consolidating definitions from several places in the old 
regulations and guidance, as well as adding some new defined terms. If 
the Department did not receive public comments on a definition or 
inclusion of a specific term, the term is not listed below and the 
definition was adopted as proposed, unless stated otherwise.
    Some necessary technical changes were made to several definitions; 
specifically, the plural pronoun ``their'' was changed to a singular 
``his or her'' in the definitions of ``Administrator,'' ``eligible TAA 
recipient,'' and ``individual employment plan.'' A similar pronoun 
change was made in the definition of ``qualifying separation,'' being 
replaced with the acronym ``AAW's.''
Agent State
    The Department clarifies that there is only an agent State, other 
than the liable State, if the AAW has accessed services outside of the 
worker's liable State. Until such time as the worker seeks services in 
another State, the liable State is both the liable and agent State. If 
the worker is simply seeking to travel to another State under a job 
search allowance, or is relocating to another State, that is not 
considered to be seeking services in that State. The Department has 
added this clarification to the definition.
Exhaustion of UI
    The NPRM removed this defined term from 20 CFR 617.3(p) and 
included it in proposed subpart G rather than in proposed subpart A.
    Several commenters raised concerns with the elimination of the term 
``exhaustion of UI.'' The Department noted in the proposal that it 
intended to remove this term and address this via the language 
contained in proposed Sec.  618.720(e). Upon further review, the 
Department concurs with the commenters and has added to subpart A the 
original term and its definition into this final rule from 20 CFR 
617.3(p), changing only the phrase ``an individual'' to ``a worker.''
Family
    The NPRM modified the definition of this term from 20 CFR 617.3(q), 
which was based on the Internal Revenue Code definition. The definition 
used in the NPRM was the definition of ``immediate family'' used in the 
Federal Travel Regulation (FTR) at 41 CFR 300-3.1.
    Numerous commenters recommended the Department use the WIOA 
definition of ``family'' from 20 CFR 675.300, rather than the proposed 
definition. The commenters asserted that this approach would increase 
flexibility and better align the TAA Program with WIOA. The Department 
proposed the FTR definition of ``family'' because the term is used only 
in subpart D, which governs Job Search and Relocation Allowances. The 
definition of ``family'' used under other programs, such as WIOA, is 
inconsistent with subpart D and the requirements of the FTR and is, 
therefore, not used in this final rule. The Department adopts the term 
and definition as proposed. However, a technical correction was made to 
remove an erroneous letter ``s'' before the apostrophe. The rest of the 
definition of the term is adopted as proposed.
Full-Time Training
    The NPRM added ``full-time training'' and defined it for the first 
time. The definition was derived from 20 CFR 617.22(f)(4) and defined 
full-time training as attendance in training in accordance with the 
training provider's established full-time hours in a day (or credit 
hours) and days in a week. The Department also added an interpretation, 
originally published in TAAEA administrative guidance, that provided 
that in the last semester of training, if the remaining required 
courses to complete the approved training will not meet the training 
provider's normal definition of full-time training, the State must 
consider the AAW to be in full-time training, and otherwise eligible to 
apply for TRA benefits.
    A commenter agreed with the proposed definition of ``full-time 
training,'' saying it would help States assess TRA eligibility for 
students who are in their last semester of training. The Department has 
adopted this term and definition as proposed.
Group of Workers
    The NPRM added ``group of workers'' and defined it for the first 
time in regulations. This term relates to the workers who file a 
petition or for whom a petition is filed. The NPRM defined it to mean 
at least two workers employed or formerly employed by the same firm, or 
an appropriate subdivision. The proposed definition included 
teleworkers and staffed workers because they are frequently performing 
the same work as other trade-affected workers in the subject firm and 
are under the subject firm's operational control. Separated workers 
were included in the definition because they, too, may be trade-
affected workers.
    Two commenters supported redefining ``group of workers'' as meaning 
two or more (not three or more) workers. One commenter was concerned 
that the change would result in a higher volume of petitions filed and 
certified.
    The Act does not define ``group of workers'' and does not otherwise 
indicate how many workers must be in a group. According to a plain and 
ordinary meaning of the term ``group,'' the word means more than one. 
Thus, the Department has reduced the number of workers required to two, 
allowing for the broadest interpretation of ``group.'' The Department 
acknowledges that this change may result in a higher volume of 
petitions; nevertheless, it concludes that this definition is 
consistent with the statutory framework. The Department adopts this 
term and definition into the final rule as proposed.
Individual Employment Plan or IEP
    The NPRM added ``individual employment plan or IEP'' and defined it 
for the first time. The IEP is a dynamic document that may be changed 
based on comprehensive and specialized assessments, training program 
modifications, or other factors that emerge during program 
participation.
    A commenter recommended a small edit to the definition of 
``individual employment plan'' (replacing the word ``State'' with the 
phrase ``career planner'') for better alignment with both 20 CFR 
680.170 of the WIOA regulations (definition of IEP) and the proposed 
changes to permit staffing flexibility in the TAA Program regulations. 
Throughout the rule, the Department uses the term ``State'' because the 
obligation for providing these services under the Governor-Secretary 
Agreement is on the State. Some commenters were concerned that this was 
not the appropriate term to use, considering that the additional 
flexibility provided in the area of merit

[[Page 51902]]

staff requirements will result in many of the services under the TAA 
Program being delivered by local area WIOA staff that are not State 
employees.
    The TAA Program is operated under an agreement between the 
Secretary and the Governor of each State. Although some services may be 
performed or administered by non-State staff, it is the State, via the 
cooperating State agency, that is ultimately responsible to ensure that 
those services are provided, so ``State'' will be retained throughout 
the final rule as the appropriate term.
Lack of Work
    The NPRM added ``lack of work'' and defined it for the first time. 
The proposed definition was based on administrative guidance related to 
``strikes'' and ``lockouts'' and their effect on eligibility for TAA 
Program benefits and services since 1987. Specifically, a ``lack of 
work'' separation occurs when the employer initiates the unavailability 
of work--the employer either does not have work for the worker to 
perform or does not make that work available to the worker.
    One commenter agreed with the definition of ``lack of work'' to 
include workers involuntarily barred from work because of an employer-
imposed lockout and maintained that this would reach workers who may 
not be covered by State UI laws. The Department adopts this term and 
definition into the final rule as proposed.
Layoff
    The NPRM modified the definition of this term, by adding the words 
``of time'' to the 20 CFR 617.3(z) phrase ``expected to be for a 
definite or indefinite period.'' In addition, the language at 20 CFR 
617.3(z) and 29 CFR 90.2 that required that the layoff be expected to 
last for ``not less than seven consecutive days'' and ``no less than 
seven (7) consecutive calendar days,'' respectively, was not included 
in the proposed definition, because that restriction was not supported 
by the Act.
    One commenter requested clarification regarding the Department's 
decision not to retain from the previous definition of ``layoff'' in 29 
CFR 90.2 the requirement that the employer's suspension of a worker 
from pay status for lack of work be expected to last ``no less than 
seven (7) consecutive calendar days.'' The commenter asked, as an 
example, whether a worker who is ``laid off'' for 1 day and then starts 
employment with the same employer at a different facility would qualify 
for relocation allowance, or whether that would be treated as a 
``transfer.'' More broadly, the commenter sought clarification about 
whether there are specific instances in which a State must consider the 
length of the layoff to determine a worker's eligibility for some TAA 
Program benefits.
    The NPRM proposed removing the language regarding 7 consecutive 
days. The language removal affirmed that, consistent with the 
commenter's example, an AAW can be laid off from trade-affected 
employment for 1 day and begin employment for the same employer at 
another facility that is not the same subdivision or firm of the 
certified worker group. Also, if all other eligibility requirements are 
met, the worker may qualify for a relocation allowance. The Department 
has determined that, generally, States may consider the length of a 
layoff to help determine if a qualifying separation is either a first 
separation or the most recent separation. The Department adopts this 
term and definition into the final rule as proposed.
Liable State
    The Department clarifies that a liable State is the State whose 
State UI law is the applicable law for the claim. Until such time as 
the worker seeks services in another State, the liable State is both 
the liable and agent State. The Department has added this clarification 
to the definition by indicating that a State can be both the liable and 
agent State.
On-the-Job Training or OJT
    The NPRM modified the definition of ``on-the-job training or OJT'' 
from section 247(15) of the Act and 20 CFR 617.3(bb). It added that 
such training is work-based and performed under contract with an 
employer.
    A commenter suggested aligning the definition of ``on-the-job 
training'' more closely with the WIOA definition (WIOA section 3(44)) 
to clarify when and how such training is provided and to describe a 
limit on the duration of such training. While many of the requirements 
align, there are statutory differences between the Act and WIOA as it 
relates to OJT, including differing criteria and labor protections. The 
Department has aligned this final rule wherever operationally and 
statutorily possible with the WIOA Final Rule, but the statutory 
differences prevent complete alignment here. The Department adopts this 
term and definition into the final rule as proposed.
Prerequisite Education or Prerequisite Coursework or Prerequisite 
Training
    The NPRM added the terms prerequisite education or prerequisite 
coursework or prerequisite training and defined them for the first 
time. They refer to approvable training under section 236(a)(5)(E) of 
the Act.
    A commenter expressed concern that the proposed definition of the 
terms prerequisite education or prerequisite coursework or prerequisite 
training was overbroad and could result in all but a student's last 
courses being treated as prerequisite. The commenter recommended that 
the Department adopt an alternative definition, based on language 
regarding classroom training currently found in 20 CFR 617.21(g): ``any 
coursework or training required by a training provider before entering 
an occupational training program designed to impart the skills and 
information required to perform a specific job or group of jobs.'' 
Another commenter requested clarification about the proposed 
definition, stating that it appeared inconsistent with administrative 
guidance.
    The Department concurs with these comments. Though the Department 
intended to codify the administrative guidance, the Department's 
definition failed to recognize that, throughout a training program, 
every course that precedes another one can be considered a 
prerequisite. The final rule revises the proposed definition of these 
terms and defines prerequisite education as those courses or training 
required by a training provider before entering an occupational 
training program designed to impart the skills and information required 
to perform a specific job or group of jobs, consistent with 
administrative guidance.
Program of Remedial Education or Remedial Education or Remedial 
Training
    The NPRM added ``program of remedial education or remedial 
education or remedial training'' and defined them for the first time. 
The terms relate to approvable training under section 236(a)(5)(D) of 
the Act and are used to refer to education designed to improve trade-
affected workers' basic knowledge.
    A commenter asked for clarification on the Department's proposed 
definition of the terms program of remedial education or remedial 
education or remedial training, stating that it seemed inconsistent 
with administrative guidance. The commenter did not provide any 
specifics regarding its concern.
    The definition as provided, when read in concert with the allowable 
services under the employment and case management provisions of subpart 
C and the training provisions in subpart F,

[[Page 51903]]

is consistent with the previously issued administrative guidance. The 
Department adopts this term and the definition into the final rule as 
proposed.
Successor-in-Interest
    The NPRM added ``successor-in-interest'' and defined it for the 
first time to provide clarity to States when there are mergers and 
acquisitions, name changes, bankruptcy proceedings, and other actions 
that may change the name of the firm under which a trade-affected 
worker's wages are reported to the State or by whom a termination 
notice or threatened status letter is issued. Under the proposed 
definition, in determining whether or not there is a successor-in-
interest, the State must determine whether most or all of the following 
conditions are met: There is continuity in business operations; there 
is continuity in location; there is continuity in the workforce; there 
is continuity in supervisory personnel; the same jobs exist under 
similar conditions; there is continuity in machinery, equipment, and 
process; there is continuity in product/service.
    A State workforce agency commented that the Department's 
clarification in the proposed rule of which actions establish a 
``successor-in-interest'' relationship will help States by reducing 
their need to file petitions seeking to amend a certification. A 
different commenter requested further clarity as to how to determine 
whether a successor-in-interest exists. Another commenter requested 
clarification about the inclusion of wages paid to a worker by a 
successor-in-interest for purposes of proposed subpart G. Specifically, 
the commenter stated that States are not able to determine whether a 
successor-in-interest is ``a valid entity tied to the trade-affected 
wage'' and it asked what documentation a State would need to reach such 
a determination.
    Under the TAA Program, the Department certifies a worker group, not 
a firm. Members of the worker group consist of those employed by the 
firm named in the certification, those employed by a staffing agency, 
those who telework at remote locations, and those employed by a 
successor-in-interest. In many circumstances, not all of these 
categories of trade-affected workers will be specifically referenced in 
the certification, but those workers will nevertheless be included in 
the worker group. States can more easily use the factors found in the 
definition at Sec.  618.110 to determine whether a successor firm is a 
successor-in-interest and this is further discussed in Sec. Sec.  
618.225(k), 618.505(b), and 618.820(h). When a State determines that a 
firm is a successor-in-interest to the firm named in an active 
certification, the State benefits by being able to serve those workers 
without the delay of having to file a petition to amend the 
certification.
    In regards to RTAA, as stated in Sec.  618.505(b), if the State 
determines that the AAW returned to employment with a successor-in-
interest to the firm from which the worker was separated, then the 
worker is not eligible for RTAA. This requirement is a protection 
against firms purposefully separating workers and then rehiring them 
under a successor-in-interest at lower wages, and shifting those costs 
to the taxpayer via the RTAA benefit. Applying the certification to the 
successor-in-interest reflects that the firm may continue to be 
affected by a trade impact. If the State determines that the 
reemployment is with a successor-in-interest, the State also must seek 
to identify any additional members of the worker group and notify them 
of their potential eligibility under the TAA Program, as provided in 
Sec.  618.816(e).
    The Department recognizes this may be a shift in how some States 
have administered the TAA Program. Specifically, TRA staff will need to 
work closely with TAA staff and can no longer rely on employing firms' 
names being listed in the certification. This reliance on the 
certification as the sole source for employer information creates 
delays in serving trade-affected workers. The Department regularly 
receives petitions requesting to amend a certification solely to add 
the name of a successor-in-interest whose workers have already been 
identified to the State in a worker list as part of identifying the 
worker group. These requests arise simply because the TRA staff 
believes that the firm must be listed in the determination in order for 
the trade-affected worker to be eligible to apply for TAA Program 
benefits and services. The delays caused by waiting for a subsequent 
petition investigation to conclude prior to serving these workers 
creates longer periods of unemployment for workers in need of training 
or other reemployment services. The Department will provide technical 
assistance to States for handling successor-in-interest issues, as well 
as for their identification of and provision of benefits and services 
for members of certified worker groups. The Department adopts the term 
and definition into the final rule as proposed, except for two 
nonsubstantive spelling corrections.
Suitable Employment
    The NPRM modified the definition of ``suitable employment'' from 20 
CFR 617.22(a)(1)(i) and section 236(e) of the Act. The Department 
proposed that suitable employment exclude part-time, temporary, or 
threatened employment.
    A State workforce agency commented that the proposed definition of 
``suitable employment'' excluded ``temporary employment'' and asked the 
Department to clarify that temporary employment means work lasting 6 
months or less. Two additional commenters requested clarification about 
the intended meaning of ``threatened employment,'' another category of 
work that would not count as ``suitable employment.'' Specifically, one 
of the commenters stated that it would support its interpretation as 
being ``unlikely to lead to a long-term employment opportunity,'' 
because of its concern that work meeting that definition, even if not 
explicitly temporary, would be susceptible to future elimination. The 
commenter maintained that this could trap workers in a ``cycle'' of 
needing continuous TAA Program benefits or result in their losing 
eligibility for retraining (and, therefore, having to assume training 
costs themselves), and should not be considered ``suitable 
employment.''
    The Department shares these concerns and agrees they should be 
considered. For this reason, the proposed definition of ``suitable 
employment'' in Sec.  618.110 included language that part-time, 
temporary, short-term, or threatened employment is not suitable 
employment.
    A State workforce agency recommended ``streamlining'' the 
definition of ``suitable employment,'' saying that the proposed 
definition would lead to unnecessary frustration and confusion among 
workers.
    The Department concludes that the proposed definition of this term 
will reduce confusion by explicitly providing additional guidance to 
States and trade-affected workers for when employment is not suitable 
employment for purposes of the TAA Program.
    Similarly, another State workforce agency raised the following 
concerns about the proposed definition of ``suitable employment'': (1) 
The phrase ``substantially equal or higher skill level'' is unclear and 
open to interpretation and, if maintained in the final rule, will 
require administrative guidance for States to operationalize it as a 
criterion uniformly and objectively; (2) it is not sufficiently 
flexible and could bar workers at higher incomes from eligibility for 
some benefits, such

[[Page 51904]]

as job search and relocation allowances, because of inability to find 
new work at a high enough wage; (3) the lack of clarity as to whether 
and how it should be interpreted relative to other defined terms (i.e., 
``average weekly wage'' and ``wages'') muddles the proper approach to 
issues like noncash compensation, commissions, and bonuses; and (4) the 
``blanket exclusion'' for part-time work does not account for 
situations in which the new work is otherwise suitable in terms of 
skills required and wages paid ``(e.g., a production worker ret[r]ains 
to be a [Registered Nurse]).''
    The phrase ``substantially equal or higher skill level'' is 
contained in the statute. In operational terms, States assess the 
trade-affected worker's preexisting skill levels, abilities, and 
education, and compare them with the requirements of available 
employment in the current and projected labor market to determine 
suitability. The Occupational Information Network (O*NET) provides 
skill level information for hundreds of occupations. To address the 
example provided by the State, work scheduled for a Registered Nurse 
may only be 3 or 4 days a week, but the job is unlikely to be 
considered part-time under State law based on the hours worked. The 
Department further explains that the determination of the availability 
of suitable employment is used for the approval of benefits, not for 
projecting employment following the completion of training.
    Several comments were received about the definition of ``suitable 
employment,'' requesting clarification of its relationship to the 
definition of ``wages.'' Proposed Sec.  618.100(a) established that the 
purpose of the TAA Program is to return trade-affected workers to 
suitable employment as quickly as possible, which is unchanged from 20 
CFR 617.2. In this context, suitable employment means that after the 
trade-affected worker receives services under the TAA Program, the 
worker is reemployed at an equal or higher skill level and earns at 
least 80 percent of his or her former wages. This goal of attaining 
suitable employment has not changed.
    Unfortunately, there are situations in which trade-affected workers 
may be unable to obtain suitable employment. Such difficulties may 
occur because (1) few, if any, jobs are available at the workers' 
former wages with the trade-affected workers' experience; (2) the local 
labor market has few available jobs; or (3) the trade-affected workers 
have substantial barriers to reemployment. These factors can 
significantly limit trade-affected workers' employment opportunities. 
Offering appropriate training, especially in a stagnant labor market, 
may significantly increase a trade-affected worker's prospects of 
obtaining suitable employment. Trade-affected workers must have access 
to training and services that will allow them the best possible 
outcomes and ability to compete for work at the highest skill levels 
and highest wages achievable, as quickly as possible. This must be 
accomplished with prudence, careful management of limited TAA Program 
funds, and a practical understanding of labor market realities; given 
the trade-affected workers' preexisting skill levels, abilities, and 
education, and the current and projected needs of employers. States 
must ensure they administer their programs equitably and reasonably. 
The Department adopts this term and definition in the final rule as 
proposed.
Wages
    The Act does not provide a definition of ``wages,'' so the 
Department proposed to retain the definition of ``wages'' from existing 
regulations at 20 CFR 617.3(pp).
    One commenter was concerned with the ability of staff to calculate 
noncash compensation. Another commenter stated that the proposed 
definition of wages would complicate calculations needed under the RTAA 
benefit.
    In response to these comments, the Department has reconsidered the 
proposed definition of ``wages.'' The final rule yields to applicable 
State laws, contains a new reference to a State's definition of 
remuneration under State UI law, and revises the proposed definition in 
Sec.  618.110 accordingly.
    There is no practical or operational change with this revision, 
including no change for calculating TRA, or for determining whether 
reemployment is suitable employment. Before a State can approve a 
training program, the State must ensure that there is not suitable 
employment available to the AAW. While calculating the wage component 
of suitable employment is statutory, it is 80 percent of the average 
weekly wage as defined by the Act. When exploring the local labor 
market, the worker and the State will be limited to the information 
contained in job postings in calculating the reemployment wage. These 
postings will likely contain an hourly wage rate, annual salary amount, 
or range. Although the posting may contain reference to other benefits, 
commissions, or bonuses, these are not usually listed with a known 
value and are often not guaranteed. Where there is no known value of 
these benefits, bonuses, or commissions, the State would simply use the 
wage rate or annual salary amount in the posting to determine whether 
the wage portion of the definition of suitable employment has been met. 
Where there are definite benefits, commissions, or bonuses, the State 
would include those amounts if it would be included in determining 
remuneration under State UI law. Based on oversight and technical 
assistance provided on this issue, the Department is confident that 
this reflects what is being done in most States under the previous 
regulations in 20 CFR part 617.
Other Terminology Applicable Across Part 618
    A few commenters requested that the Department define the term 
``teleworker.'' A State workforce agency added that, while Sec.  
618.225(j) offers some guidance as to its meaning, a fuller definition 
in Sec.  618.110, like the definition of ``staffed worker'' found 
there, would be helpful. The Department has not included a definition 
of the term in this final rule because there is no singular, agreed-
upon definition for the term ``teleworker'' across Federal programs. In 
general, teleworkers are workers who are members of a worker group who 
work remotely, but take direction from and report to the location 
listed for a firm on a certification. The remote location can vary, and 
may include the worker's own residence, a shared office space, public 
location, etc. Teleworkers may need to provide information or 
documentation showing their connection to the worker group if they are 
not already listed on the worker list provided to the State by the 
firm.
    The same commenter offered several further suggestions of 
definitions the Department should consider adding to this section of 
the rule:
     ``Adjustment assistance'' (used in Sec.  618.205);
     ``Annualized reemployment wages'' and ``annualized 
separation wages'' (to replace the term ``wages,'' which the commenter 
said is defined in a manner inconsistent with how it is used in Sec.  
618.520(a)(2)(i) and (ii), with more ``technical'' terms);
     ``Distance learning'' (in lieu of defining it in Sec.  
618.620(b)(2));
     ``Foreign trade,'' ``foreign trade impacts,'' or both; and
     ``Remedial education.''
The commenter also requested clarification about whether the terms 
``training'' and ``skills training'' are meant to be interchangeable 
and suggested that these terms, which (along with the term ``remedial 
education'') are used in Sec.  618.610(b)(1), might warrant definition 
in this section.

[[Page 51905]]

    The requested additional wage-related terms are unnecessary based 
on the modification made to the definition of ``wages'' in the final 
rule. Many of these terms are discussed elsewhere in this preamble and 
the Department concludes that the remaining terms are clear without 
further definition. The Department declines commenters' suggestions for 
additional definitions.
Section 618.120 Severability
    The Department has decided to include a severability provision as 
part of the final rule. To the extent that any provision of the final 
rule is declared invalid by a court of competent jurisdiction, the 
Department intends for all other provisions that are capable of 
operating in the absence of the specific provision that has been 
invalidated to remain in effect.

B. Subpart B--Petitions, Investigations, and Determinations

    The purpose of subpart B is to implement the provisions for 
determining group eligibility to apply for adjustment assistance for 
trade-affected workers. This subpart provides the process for the 
investigation of petitions for certification of eligibility to apply 
for adjustment assistance.
    Subpart B addresses sections 221, 222, 223, and 224 of the Act, 
modifying 29 CFR part 90 and incorporating it into part 618. Proposed 
subpart B made several changes to update the regulations, including 
updates to reflect statutory changes and current procedures for filing 
petitions, conducting investigations, and issuing determinations of TAA 
Program eligibility, and added a requirement for exhaustion of 
administrative remedies, specifically, use of the reconsideration 
process, prior to judicial review. In the NPRM, the Department 
relocated most of the definitions in 29 CFR 90.2 to subpart A of 20 CFR 
part 618 for clarity and consistency. The Department did not receive 
any comments on proposed Sec. Sec.  618.200, 618.220, 618.230, and 
618.260. The final rule adopts these sections as proposed, with the 
exception of a change at Sec.  618.220(d) to the use of a pronoun. 
Where the Department received comments on specific paragraphs within a 
section, details of those paragraphs as proposed in the NPRM are 
included to provide context for the discussion of comments that 
follows.
Section 618.205 Petitions
    Proposed Sec.  618.205 updated the section related to petitions at 
29 CFR 90.11. The Department is finalizing this section as proposed, 
except for the changes noted below.
Paragraph (a)
    Proposed paragraph (a) of this section updated who may file a 
petition, based on changes to section 221(a) of the Act. This paragraph 
identified four entities who may file a petition: (1) A group of 
workers; (2) a union or other duly authorized representative; (3) the 
employer of the group of workers; or (4) one-stop center operators or 
partners, including State workforce officials, employment security 
agencies, or dislocated worker unit and rapid response team members. It 
also changed the language from 20 CFR 90.11(a) to reduce the number of 
workers who must sign the petition from three to two. The Act does not 
specify a minimum number of workers that make up a ``group of 
workers.''
    A commenter generally supported the proposed changes to the 
petition process, writing that they would reduce barriers for diverse 
AAW populations. Another commenter wrote that the proposal would 
clarify the petition process and remove overly technical language. A 
few commenters agreed that petitions should be filed through the 
Department's website, but some also requested that the feature for 
uploading attachments be made more user-friendly. The Department will 
take these requests into consideration as it works to modify the online 
system for submitting petitions and uploading attachments, and 
appreciates the commenters' input and support.
    A few commenters supported the proposed change at Sec.  618.205(a), 
writing that reducing the required number of workers on a petition from 
three to two would benefit workers and the petition process. The 
Department appreciates this support.
    Another commenter stated that the introduction to paragraph (a) of 
this section is unclear and a State workforce agency provided 
recommended edits to Sec.  618.205(a) to clarify which workers may file 
a petition. The State workforce agency said that the language in 
paragraph (a) of the proposed rule said that a group of workers may 
file a petition, yet paragraphs (a)(2) through (4) identified a list of 
additional entities that could also file a petition. The Department 
agrees that, while a group of workers may file a petition, there are 
also others who may file petitions on its behalf. The Department has 
revised the regulatory text to remove the use of the term ``worker 
group'' in this paragraph (a).
    One commenter recommended removing language at Sec.  618.205(a) 
that would require petitioners to file simultaneously with their State, 
writing that a better approach would be for the Department to share 
petitions with States. The commenter also asked for clarification of 
the consequences if petitioners failed to file simultaneously under the 
proposed rule. Another commenter, however, recommended retaining the 
requirement that petitioners file simultaneously with the State, 
stating that this is a statutory requirement intended to ensure States 
provide rapid response services to petitioners. The commenter added 
that paragraph (j) of this section also should be changed to reflect 
the statutory requirement that the State and the Department receive 
petitions simultaneously. The Department agrees that simultaneous 
filing is not optional. The ``may'' that section 221(a)(1) refers to is 
the party that is authorized to file a petition, not to the requirement 
for simultaneous filing of a petition. The proposed rule required that 
petitions be filed simultaneously with the Department and the State. 
The Department, therefore, adopts the proposed language into the final 
rule, with the exception of Sec.  618.205(j), which has been revised to 
require States to verify that the Department also has received the 
petition.
    A State workforce agency recommended adding the words ``certified 
or recognized'' before ``union'' at paragraph (a)(2) of this section. 
The commenter maintained that doing so would be consistent with the 
regulatory text at Sec. Sec.  618.205(b)(9)(i) and 618.210(c)(6). The 
Department agrees and acknowledges that this proposed revision would 
align the regulatory text more closely with the statutory requirement, 
and has revised the regulatory text accordingly.
    The same State workforce agency also recommended replacing 
``employer'' at Sec.  618.205(a)(3) with ``an authorized representative 
of the firm where the group of workers is employed.'' It maintained 
that this language would better fit with the regulations' definition of 
the term ``firm,'' which excludes government entities. The State 
workforce agency also said that Sec.  618.205(b)(2) likewise uses the 
term ``firm'' instead of ``employer.'' The Department agrees that 
public sector workers do not meet the group eligibility requirements 
for a worker group under TAARA 2015. The use of the term ``employer,'' 
however, long predated the temporary addition of those workers in 2009, 
and changing the term from ``employer'' to ``firm'' may unintentionally 
limit the universe of petition filers, because the term ``firm''

[[Page 51906]]

is specifically defined to include the ``firm or appropriate 
subdivision.'' The Department has adopted the language into the final 
rule as proposed.
    The same State workforce agency requested clarification of 
``employment security agencies'' at Sec.  618.205(a)(4). The Department 
explains that ``employment security agencies'' is a legacy term that 
refers to the State agency responsible for administering UI. Section 
618.205(a)(4) is adopted without change.
Paragraph (b)
    Proposed paragraph (b) combined and modified 29 CFR 90.11(b) and 
(c) regarding the form and content of petitions. It required 
petitioners to provide information the Department needs to begin its 
investigation. Absent this required information, a petition would not 
be valid.
    A commenter recommended rewording Sec.  618.205(b) to reflect the 
possibility that a petition may be filed by persons other than the 
workers named in the petition. Another commenter generally supported 
the changes in paragraphs (b)(1) through (9) of this section. The 
Department agrees with the commenter that proposed paragraph (b) did 
not accurately reflect the universe of entities who may file a petition 
and has revised the regulatory text at Sec.  618.205(b) by deleting the 
first sentence, which specifically referred to the worker group.
    Two commenters asked whether Sec.  618.205(b)(4), which required 
that a petition include the name and contact information of an official 
within the employer firm or an individual authorized to provide 
information regarding the operation of the group of workers' firm, 
meant that only a single point of contact need be provided for a 
petition for certification. Another commenter recommended that the 
provision for ``an individual authorized to provide information 
regarding the operation of the group of workers' firm'' be removed, as 
it is unclear who such an individual would be. The regulatory text as 
proposed means that at least one official within the firm employing the 
group of workers or an individual authorized to provide information 
regarding the operation of the business is required on the petition 
form; this regulatory text does not, however, preclude a petitioner 
from including more than one contact, if known.
    One commenter wrote that proposed Sec.  618.205(b)(6), which 
required that a petition include the actual or approximate date on 
which total or partial separations are threated to occur or did occur, 
did not explain clearly how a petitioner would address multiple 
separation dates. The commenter stated that worker separations in mass 
layoffs often come in waves, and it recommended that the ``hover text'' 
available in the online system for submitting petitions (asking that 
petitioners provide the ``most recent date on which the separation 
occurred or is threatened to occur'') be adopted in the final rule. The 
Department has addressed these issues separately through revisions to 
the instructions provided through the online petition process and on 
the print versions of the forms.
    One commenter wrote that proposed Sec.  618.205(b)(8), which 
required that the petitioner provide a reason why he or she believes 
that worker separations have occurred or may occur at the firm due to 
foreign trade impacts or why an amendment to an existing certification 
should be granted, provides only a cursory mention of using petitions 
to amend active certifications. This commenter suggested that petitions 
to amend active certifications should be addressed in a separate 
paragraph. Another commenter also recommended that Sec.  618.205(b)(8) 
and other sections of the regulatory text more clearly address requests 
to amend petitions. The Department specifically addresses amendments to 
active certifications in Sec.  618.250, and has made no change in the 
final rule to Sec.  618.205(b)(8) in response to these comments. The 
only change to Sec.  618.205(b)(8) is the removal of the word 
``employer's'' before ``firm'' for consistency throughout this subpart.
    One commenter recommended editing Sec.  618.205(b)(9)(i), which 
identified who must sign the petition, by adding the words ``of 
workers'' after ``petitioning group,'' and adding the words ``of the 
group of workers, or an official of the firm employing the group of 
workers'' after ``duly authorized representative.'' The commenter wrote 
that the requirement in Sec.  618.205(b)(9)(ii) that petitioners attest 
to their authorization to file a petition is problematic for 
petitioners under paragraph (a)(1) of this section, who often file 
because of their firm's refusal to do so. The requirement that the 
workers attest to being authorized to file means only that the workers 
believe that they are included in the group of workers. This 
attestation is not related to the firm's support of, or opposition to, 
the application. The Department has modified the language in the final 
rule at Sec.  618.205(b)(9)(i) consistent with the comments received. 
These revisions provide important clarity, while not substantively 
changing the requirement.
Paragraph (d)
    Proposed paragraph (d) of this section updated 29 CFR 90.11(c) and 
maintained the methods of filing, allowing petition submissions by fax, 
email, and mail, but strongly encouraged that all petitions be filed 
electronically with the Department through the Department's website.
    Another commenter recommended that paragraph (d) of this section be 
changed to direct workers to State TAA or TRA coordinators instead of a 
one-stop center, arguing that the former would provide more accurate 
information. WIOA designates the TAA Program as a required partner of 
the one-stop delivery system. Additionally, this final rule requires 
that the TAA Program be delivered primarily through the one-stop 
delivery system. Thus, the one-stop centers or rapid response units are 
the appropriate place for trade-affected workers to be directed to 
access additional information about the TAA Program. After considering 
this comment, the Department declines this suggestion, and adopts Sec.  
618.205(d) into the final rule as proposed, with a nonsubstantive edit 
to the hyperlink to the website for the TAA Program.
Paragraph (e)
    Proposed paragraph (e) implemented section 224 of the Act, 
requiring the Department to take specific actions when the ITC issues 
an affirmative determination on the investigation under section 202 or 
421 of the Act, or issues an affirmative final determination under 
section 705 or 735 of the Tariff Act of 1930.
    Two commenters wrote that the changes for International Trade 
Commission (ITC) notifications at Sec.  618.205(e) would better serve 
the public if States were notified in addition to industries. The 
Department explains that the notification to the States was already 
included in proposed Sec.  618.205(e)(3); therefore, there is no need 
to revise paragraph (e) and the final rule adopts the paragraph as 
proposed.
    One commenter requested that the Department allow petitions filed 
on behalf of companies with affirmative ITC determinations to omit 
information that otherwise would be required in a petition, writing 
that it is burdensome for States to provide that information. The 
Department will continue to explore options for the investigation 
process for petitions filed based on an ITC finding. Any changes made 
to the petition process must be made under an information collection 
request (ICR) separate from the final rule.

[[Page 51907]]

Accordingly, the Department declines to revise the regulatory text at 
this time, and this final rule adopts the provision as proposed.
Paragraph (j)
    Proposed paragraph (j) of this section set forth the States' 
responsibilities under section 239 of the Act to verify that the 
Department has also received any petition filed with the State. No 
comments were received regarding this paragraph, but the Department has 
made a technical correction to Sec.  618.205(j) to correct two 
incomplete conditional statements. There is no change to the intent of 
the proposed rule or its operational impact as a result of this edit.
Section 618.210 Investigation
    Section 618.210 of the proposed rule described the investigation 
process, authorized under sections 221 and 222 of the Act, and updated 
the language from 29 CFR part 90 to reflect current procedures and 
practices in the areas of timing, period of investigation, 
investigative processes, protection of confidential business 
information, termination of an investigation, the investigative record, 
and site visits.
    Several commenters stated that it would be helpful if the 
Department would share a list of impacted workers with States, saying 
that doing so would expedite their outreach to members of worker 
groups. The Department does not collect worker lists due to the 
personally identifiable information contained therein, nor is this 
information needed for a determination to be made. To assist States in 
collecting worker lists, the Department has explicitly authorized 
States to use subpoenas to collect this information from firms that 
fail to provide the information upon request. Although the use of 
subpoenas for this purpose has always been authorized under the TAA 
Program, it has, until now, been implied rather than specified.
    Proposed paragraph (c) explained the steps the investigator may 
take in order to render a determination on a petition. It also 
identified commonly used sources of information, and provided added 
detail, structure, and transparency to stakeholders about the 
investigation process.
    A commenter stated that the transparency of the investigative 
process provided at Sec.  618.210(c) helps ensure that petitions are 
submitted correctly. The Department's intent of including this 
additional information is to provide the public with a better 
understanding of the investigation process and the information reviewed 
by the Department. The final rule adopts this section as proposed, with 
the addition of a comma in paragraph (f).
Section 618.215 Public Hearings
    Section 618.215 of the proposed rule set forth when a public 
hearing in connection with an investigation is to be held and, as was 
explained in the preamble to the NPRM, there were only a few proposed 
changes from 29 CFR 90.13.
    Proposed paragraph (b) established the method for requesting a 
public hearing and expanded on the requirements related to hearings 
that existed at 29 CFR 90.13.
    A commenter identified a nonsubstantive typo in Sec.  618.215 at 
proposed paragraph (b)(3). The Department corrects the error by 
replacing ``is'' with ``of'' and also makes a change to the use of a 
pronoun in paragraph (d). The remainder of the section is adopted as 
proposed.
Section 618.225 Criteria for Certification of a Group of Workers
    Proposed Sec.  618.225 substantially updated language from 29 CFR 
90.16(b) to describe the criteria the Department uses to certify a 
group of workers, which have expanded significantly under section 222 
of the Act. It also identified factors under consideration in 
determining whether a criterion is met. The revised language provided 
transparency on how investigations are conducted, the importance of 
information collected, and how the information is used. The proposed 
provisions reflected Congressional intent and existing Departmental 
practices. The Department is finalizing this section as proposed, 
except for the changes noted below.
    One commenter stated that transparency of certification criteria is 
helpful for the efficient operation of the petition process.
Staffed Workers Sec.  618.225(i)
    Proposed paragraph (i) of this section provided that staffed 
workers, working on or off site, would be classified as part of the 
worker group of the firm. The Department would specify in the 
determination document that all members of the affected worker group 
include teleworkers and staffed workers, but would not list specific 
leasing companies or temporary staffing entities. The Department would 
continue to collect information from the subject firm in order to 
establish the leasing or temporary staffing entity or entities over 
which the trade-affected workers' firm has operational control. 
Proposed paragraphs (i)(1) through (9) of this section then listed the 
factors to be considered in evaluating operation control.
    The Department specifically sought comments from the public on 
whether or not to include, by default, staffed workers as part of a 
certified worker group. The primary benefit to including staffed 
workers as part of the worker group is that staffed workers are members 
of a worker group even if they are not specifically mentioned within 
the determination document. States may serve those workers without the 
delay of petitioning to amend an active certification. The Department 
is finalizing this section as proposed, except for the changes noted 
below.
    One commenter requested guidance for determining whether a staffing 
entity should be included in a certified worker group. Two commenters 
requested additional guidance for how States should provide services to 
staffed workers that were not included in the original certification, 
especially when more than one agency administers the TAA Program. 
Another commenter also requested further guidance on the treatment of 
staffed workers, explaining that there is tension between (1) the 
Department's determination whether a certification will cover a 
staffing entity, and (2) the allowance for staffed workers to belong to 
a certified worker group even if the determination document does not 
name the workers' staffing entity. A few commenters recommended that 
the Department continue to list all employers of staffed workers within 
its determination document, commenting that this practice better 
provides benefits to eligible workers and is less labor intensive for 
States. One commenter maintained that naming staffing entities in 
petitions would help States because the staffing entities, not the 
certified employers, would have workers' wage data. Conversely, a 
commenter wrote that requiring States to petition to amend 
certifications in order to provide benefits to unnamed staffed workers 
would be needlessly burdensome. Another commenter agreed, writing that 
such a requirement would lead to longer investigations and, thus, harm 
the entire worker group. A different commenter agreed that it would be 
easier for workers to be included on a single petition, but it said 
that doing so would complicate States' recordkeeping procedures. A 
commenter stated that the provision for staffed workers would impose an 
undue hardship on States with limited TAA Program staff. The commenter 
also pointed out that the TAA Program might be administered by two 
agencies within a State, which

[[Page 51908]]

could lead to inconsistent determinations regarding staffing entities.
    The Department appreciates the time and effort taken by commenters 
to respond to this specific request. The Governor-Secretary Agreement 
binds the entire executive branch of a State to compliance with these 
regulations and all determinations made by the Department. Upon 
publication and implementation of this final rule, State workforce 
agencies, including those that administer UI, will be bound to 
implement them.
    Once a certification is issued, the States are charged with 
determining individual eligibility. These regulations provide 
sufficient guidelines for State agencies to determine whether or not a 
trade-affected worker is included in the worker group, subject to the 
determination document issued by the Department. Further, these 
regulations require States to notify the Department when there are 
appeals to denials of benefits under the TAA Program. Through this 
process, the Department will ensure that States are fully compliant 
with the provisions of these rules related to staffed workers, 
teleworkers, and successor-in-interest issues.
    The Department recognizes this may be a shift in how some States 
have administered the TAA Program. Specifically, TRA staff will need to 
work closely with TAA Program staff and can no longer rely on the names 
of employing firms being separately listed in the certification. This 
reliance on the certification as the sole source for employer 
information creates delays in serving trade-affected workers. The 
Department regularly receives requests to amend a certification solely 
to add the name of a staffing company whose workers have already been 
identified to the State in a worker list as part of identifying the 
worker group. These requests arise simply because the TRA staff 
believes that the firm must be specifically listed in the determination 
in order for the trade-affected worker to be eligible to apply for TAA 
Program benefits and services. The delays caused by waiting for a 
subsequent petition investigation to conclude, or for an amendment to 
be issued, prior to serving these workers creates longer periods of 
unemployment for workers in need of training and other reemployment 
services. The Department will be providing technical assistance to 
assist States in handling staffed worker issues as well as to assist in 
this transition to further empower States in their identification of 
and provision of benefits and services for members of certified worker 
groups.
    A commenter asked how the Department will treat workers it 
determines are ineligible after a State has already begun providing 
services to those workers. If a trade-affected worker is determined 
ineligible after a State has already begun providing services to the 
worker, he or she should be treated the same way as the State treats 
any other worker in similar circumstances. If necessary, the State 
would issue a benefit denial determination and afford the worker the 
opportunity to appeal the determination.
    Additionally, since trade-affected workers, if eligible, are 
mandated to be co-enrolled with the WIOA dislocated worker program, the 
worker may continue to be served by that program or other partner 
programs. The commenter also questioned when and how often the 
Department would provide States with the names of staffing entities. 
The Department will provide States with information on staffing firms.
    A different commenter asked how the Department would handle workers 
of a staffing entity that no longer contracts with a certified worker 
group firm. When a firm is queried about staffed workers, it will be 
asked to provide information on all staffing firms utilized during the 
certification period, even if the contract is no longer in place at the 
time of the investigation. In accordance with provisions in Sec.  
618.225(i), the Department will provide States with the names of 
staffing entities (if they are provided during the investigation 
process) at the time the certification is announced to assist States in 
notifying members of the worker group. States that discover additional 
leasing or temporary staffing entities employing staffed workers who 
are members of a certified worker group may serve those trade-affected 
workers without the delay of filing a new petition requesting an 
amendment to the certification. This change in procedure will enhance 
service delivery to workers. The list of staffing entities provided to 
the States by the Department should not be seen as limiting. There may 
be workers employed by other staffing entities not listed that are also 
members of the worker group. States should make clear to the firm that, 
when requesting the worker list, the list should include all on-site 
and off-site workers, as well as staffing agencies and successor-in-
interest information, if known. The Department encourages States in 
need of technical assistance on individual scenarios that arise under 
this final rule to contact their regional office for assistance.
    One commenter requested that the Department share Federal 
Employment Identification Numbers (FEINs) with States to help identify 
impacted workers, especially teleworkers. The Department certifies a 
worker group, not a firm, and members of that worker group may be 
employed by the firm, a subdivision of the firm, a successor-in-
interest, or a staffing agency under the direction of the firm. 
Although a FEIN may be collected during a petition investigation, the 
Department does not systematically collect all of the FEINs associated 
with a firm, subdivision of a firm, or all employers of a worker group. 
Therefore, though an FEIN may be provided, it is insufficient to 
identify all teleworkers.
    The Department recognizes States' challenges in determining 
individual eligibility for TRA benefits and reviewing wage records to 
determine if an AAW has worked long enough at a location to qualify for 
TAA Program benefits. Additionally, challenges also can arise with 
regard to staffed workers and those who are perceived to be staffed 
workers.
    Scenarios often arise where a firm that employs or employed a 
certified worker group outsources its payroll and benefits functions to 
a third party. Trade-affected workers named by the company as being 
part of the eligible worker group may have their wages paid by the 
third party and not the company named by the certified petition. For 
example, Company A has been named in a certification. Trade-affected 
workers named as part of the worker list associated with this 
certification have their wages paid to them by Company B, a third party 
that Company A has outsourced its payroll and benefits functions to, 
and their wage records do not align with being employed by Company A. 
The outsourcing of those workers' payroll and benefits processing by 
Company A to Company B does not render those workers ineligible to 
individually apply for TAA Program benefits and services. Often, States 
have filed a petition to request an amendment to a certification to 
offer clarification. Even though it may appear that the workers named 
are being paid by a third party, an amendment to add the payroll 
company before serving these workers is unnecessary. It also may be 
helpful for States, as part of initial requests to a firm for its 
worker list, to inquire whether the firm contracts its payroll out to a 
different company, and to ask for pertinent information about that 
payroll company.

[[Page 51909]]

    The Department has adopted paragraph (i) into the final rule as 
proposed.
Teleworkers Sec.  618.225(j)
    Proposed paragraph (j) of this section codified administrative 
guidance issued as part of the TAAEA operating instructions. This 
section explained that teleworkers, also known as remote workers, may 
be part of a certified worker group without being specifically 
referenced in a certification document, insofar as their position is 
affected by the same trade effects as other trade-affected workers in 
the worker group.
    One commenter supported including teleworkers in a certified worker 
group. Another commenter supported the proposal and stated that it 
would allow States to share lists of teleworkers with other States.
    A State workforce agency recommended clarifying whether teleworkers 
based in other countries could be considered part of a worker group. A 
teleworker, living abroad, would not be eligible for services or 
benefits under the Act while abroad. Upon the teleworker's return to 
the United States, he or she would be able to apply for benefits and 
services and a determination would be made at that time. The Department 
adopts Sec.  618.225(j) into the final rule as proposed.
References to Worker Adjustment and Retraining Notice (WARN) Letters
    One commenter requested that, where WARN letters are referenced, 
the Department add ``or a similar letter under [S]tate statute.'' 
Several States have State laws modeled after the Federal WARN Act 
requirements. The Department has modified the regulatory text in five 
instances at Sec.  618.225(a)(2)(i)(C)(1), (b)(2)(i)(C)(1), 
(c)(1)(iii)(A), (d)(1)(iii)(A), and (e)(1)(iii)(A) to include language 
that references State-level WARN laws.
    The same commenter also recommended replacing the term ``displaced 
worker'' with ``dislocated worker'' throughout the proposal in order to 
match WIOA terminology. Upon review, the Department has concluded that 
neither term is ideal. The Department has changed the six instances of 
the term ``displaced workers'' at Sec.  618.225(a)(2)(i)(A)(4), 
(b)(2)(i)(A)(4), (c)(1)(i)(D), (c)(2)(i)(D), (d)(1)(i)(D), and 
(e)(1)(i) to ``workers in the group of workers.'' Since ``displaced 
workers'' is not a defined term, ``workers in the group of workers'' is 
more appropriate and this clarification does not change the meaning of 
the regulatory provision.
    Finally, the Department made nonsubstantive technical corrections 
to capitalize the term ``Certifying Officers'' in this section. Aside 
from the modifications discussed above, the final rule adopts Sec.  
618.225 as proposed.
Section 618.235 Determinations
    Section 618.235 of the proposed rule clarified the process the 
Certifying Officer would use for issuing a determination based on the 
findings of the investigation as set forth in Sec.  618.230. The final 
rule adopts this section as proposed, except for the changes noted 
below.
    Proposed paragraph (c) covered determinations and was derived from 
29 CFR 90.16(d). Proposed paragraph (d) covered amended determinations 
and codified the practice of amending a certification.
    One commenter recommended a technical correction to the opening 
part of paragraph (c) of this section to clarify that the correct title 
is Certifying Officer and not Certifying Official. The same commenter 
also recommended revising paragraph (d) of this section to allow the 
Department to amend certifications with or without a petition. The 
commenter requested clarity about the provision in paragraph (d) 
allowing the Department to reconsider a denial on its own initiative, 
commenting that there is an absence of references to other, related 
provisions in Sec.  618.245. Based on these comments, the Department 
revised the regulatory text at Sec.  618.235(c) to refer to a 
Certifying Officer instead of a Certifying Official, at Sec.  
618.235(d) to provide that a determination may be amended in accordance 
with Sec.  618.250(a), and has also added a new provision Sec.  
618.235(e) explicitly stating the Department's preexisting, intrinsic 
authority to modify its determinations. The Department has included a 
similar statement in the final rule at Sec.  618.250(d) to address the 
comment about the Department's ability to amend determinations on its 
own authority.
Section 618.240 Termination of Certification
    Proposed Sec.  618.240 discussed the termination of certifications 
under section 223(d) of the Act and updated the previous regulations to 
reflect current practice and procedures through minor revisions to 29 
CFR 90.17. The Department clarified that any party eligible under 
proposed Sec.  618.225 to submit a petition may file for a 
reconsideration of a terminated or partially terminated certification. 
A decision to uphold the termination of a certification after 
reconsideration is a final determination by the Department and subject 
to judicial appeal. The Department is finalizing this section as 
proposed, except for the changes noted below.
Paragraph (a)
    Proposed paragraph (a) restated section 222(d) of the Act and is 
unchanged from 29 CFR 90.17(a). Proposed paragraph (a)(1) described 
that unless a termination is issued under proposed Sec.  618.240, all 
certifications made under proposed Sec.  618.235(a)(1)(ii) are 
considered terminated the day following the expiration date of the 
certification. Proposed paragraph (a)(2) provided that all ITC 
certifications, described at Sec.  618.225(f), are considered 
terminated the day following the expiration date of the certification, 
which is 1 year following the date of publication of the determination 
in the Federal Register.
    The Department received comments on proposed paragraph (d), 
discussed below, which resulted in the final rule not carrying forward 
proposed paragraphs (a)(1) and (2) of this section.
    One commenter asked how a termination would affect program 
participants. In response to this comment, if a certification is 
terminated, no additional trade-affected workers would be eligible to 
enroll in the TAA Program as of the effective date of the termination. 
AAWs already receiving TAA Program benefits and services would be 
allowed to continue in the TAA Program. The Department made no changes 
in response to this comment.
Paragraph (b)
    Proposed paragraph (b) included the notice language from 29 CFR 
90.17(a) and updated it to include to whom the notices will be made. It 
also required the State to notify the trade-affected workers in the 
worker group of the initiation of the investigation to terminate a 
certification.
    Two commenters asked how States may notify a worker group of a 
terminated certification. Similarly, a State workforce agency commented 
that States should be required to notify only those trade-affected 
workers who would face separations after a certification termination, 
because a broader requirement would burden States and confuse workers. 
The Department does not concur with the commenter that such a notice 
would cause burden or confusion. The notification should clearly state 
that workers fully or partially separated prior to the termination date 
remain eligible for benefits. The regulatory text in the final rule has 
not been revised.

[[Page 51910]]

Paragraph (d)
    Proposed paragraph (d) described the information that will be 
considered in determining whether to terminate a certification and 
provided that the period of investigation would remain the same as the 
period of investigation for the original certification.
    One commenter asked how terminations issued because worker 
separations fail to result from conditions set out in section 222 of 
the Act could be consistent with paragraph (d) of this section, if the 
period of a certification will remain the same as the original period 
of investigation. The commenter asked if the issue is whether those 
conditions, which existed at the time of the certification, have 
changed in the period since the certification and before the standard 
date of termination. The termination provisions, as proposed, were 
based on the statutory language at section 223(d) of the Act and 
previous regulations at 29 CFR 90.17. The actions taken under the 
termination provision do not establish a new period of certification. A 
change in circumstances may occur to change the conditions under which 
the worker group was initially certified. In most scenarios, a 
termination is a result of the removal of a threat of separation and 
often there have been no actual separations and the conditions that 
resulted in the threat are no longer present. The Department sought to 
provide additional transparency and clarity on the internal operations 
of the investigation process related to terminations. In doing so, the 
Department now recognizes that the proposed language needs 
clarification. As a result, the Department has revised the regulatory 
text to reflect more closely the language included in 29 CFR 90.17 by 
deleting proposed Sec.  618.240(a)(1) and (2), deleting the last 
sentence of proposed Sec.  618.240(d) (which would have required the 
period of investigation of a termination of certification to remain the 
same as the period of investigation for the original certification), 
and making minor technical edits to proposed Sec.  618.240(e)(1) and 
(f).
Paragraph (e)
    Proposed paragraph (e) combined 29 CFR 90.17(d) and (e) to provide 
details on the process of issuing a notice of termination or notice of 
partial termination, and detailed to whom the notices would be issued. 
It required States to notify the worker group of the termination or 
partial termination. It also stated that a termination would not take 
effect until the period in which a party may request reconsideration 
has elapsed.
    A State workforce agency requested additional guidance on paragraph 
(e) of this section, asking how the final rule would impact workers who 
receive services prior to a termination date. The Department clarifies 
that there would be no change in benefits to AAWs who have been 
separated or partially separated prior to the termination. AAIWs who 
are receiving benefits would be impacted by a termination or partial 
termination of a certification, as they would not have been separated 
or partially separated. Aside from the technical edit to Sec.  
618.240(e)(1) discussed above, the final rule adopts paragraph (e) as 
proposed.
Paragraph (f)
    Proposed paragraph (f) updated 29 CFR 90.17(f) and provided detail 
on the process of issuing a notice of continuation of certification, 
and detailed to whom the notice will be issued. It required States to 
notify the worker group of the continuation of certification.
    One commenter recommended that the Department be required to 
provide notification to workers in a worker group for which 
certification has been terminated, instead of the State, writing that 
States could share their information with the Department or the 
Department could provide States with a letter to send on its behalf. 
The commenter also recommended deleting the third sentence of paragraph 
(f) of this section, as notice to the worker group is already addressed 
in the last sentence of paragraph (f). Another commenter supported 
notifying workers that a petition is under investigation, but requested 
that the regulation contain information as to what must be included in 
a notification and who would need to receive it. The Department will 
provide training and technical assistance on how States can provide 
notice to impacted trade-affected workers should a termination occur, 
but States should plan to contact workers using available contact 
information and to notify eligible workers who are nonparticipants in a 
similar manner in which States first notified the impacted workers of 
their eligibility to apply for benefits and services.
    One commenter asked for an example of why a certification would be 
terminated. One example would be if the Department receives notice from 
a company official that the firm just received a new contract and have 
canceled the imminent layoffs of the certified worker group. Another 
example is where the company has canceled the outsourcing of its 
manufacturing line to a foreign country. In these cases, the Department 
would investigate and determine whether separations are still 
attributable to the reasons stated in the worker group certification. 
The Department points out this provision also was in 29 CFR 90.17. 
Aside from the technical edit to Sec.  618.240(f)(1) discussed above, 
the final rule adopts paragraph (f) as proposed.
Paragraph (g)
    Proposed paragraph (g) allowed for reconsideration of a termination 
or partial termination of a certification and referred parties to Sec.  
618.245.
    The same commenter discussed immediately above also wrote that 
paragraph (g) of this section should refer to Sec.  618.205, not Sec.  
618.225. The Department has corrected the typographical error.
Section 618.245 Reconsideration of Termination of an Investigation, 
Denial, or Termination or Partial Termination of Certification
    Proposed Sec.  618.245 contained the process for reconsiderations 
of determinations on petitions. The proposed rule contained several 
changes from the previous language in 29 CFR 90.18 to provide 
additional clarifications and to enhance efficiency of investigations.
    A State workforce agency stated that the Department should notify 
States when it is reconsidering a termination. The State workforce 
agency said that the proposed change would expedite reconsideration 
requests. Another commenter, a private citizen, agreed and said the 
rule would make reconsiderations mandatory prior to a final adverse 
determination. The Department concurs with the commenters and will 
provide notification of any intent to reconsider. This is an 
operational process that does not require a change to the regulatory 
text. As such, no changes were made to the regulatory text in the final 
rule in response to these comments.
Section 618.250 Amendments of Certifications
    Proposed Sec.  618.250 provided the process for seeking amendments 
to certifications. Although the proposed process was not previously 
included in regulation, the Department has been issuing amendments for 
many years. Section 223 of the Act establishes that a determination be 
issued for any group that meets the eligibility criteria of section 222 
of the Act. The Department interprets that provision to mean that, 
should new or supplemental

[[Page 51911]]

information support a clarification of the certified worker group, the 
Department may issue an amended certification under the same petition 
number and publish the amendment in the Federal Register and post it on 
the Department's website. The Department is adopting this section in 
the final rule as proposed, except for the changes noted below.
    Proposed paragraph (a) described the reasons for amendments and 
explained that amendments must not extend the impact date as that would 
go beyond the period covered by the certification itself.
    A commenter requested that the Department further specify that the 
Department may undertake to amend a certification on its own 
initiative, without a Sec.  618.205 petition. The Department has 
modified the regulatory text in Sec. Sec.  618.235(d) and 618.250(a) to 
clarify that the Department retains the authority to amend a 
certification without a petition where it has determined that an 
amendment is appropriate. The Department has further modified the 
paragraph heading in Sec.  618.250(a) in the final rule from Types of 
amendments to Reasons for amendments to accurately reflect the contents 
of paragraph (a).
    A commenter asked whether the reference in Sec.  618.250(a) to 
Sec.  618.235(a)(1)(iii)(A) should cite Sec.  618.235(a)(1)(ii) 
instead. The correct reference is Sec.  618.235(a)(1)(ii), and the 
citation in the regulatory text has been corrected accordingly.
Section 618.255 Judicial Review of Determinations
    Section 618.255 in the NPRM proposed the process for judicial 
review of determinations issued under proposed Sec.  618.245(g). This 
is a significant revision to the language previously at 29 CFR 90.19. 
Section 284 of the Act allows for judicial review of only ``final 
determinations.'' Under previous regulations, all determinations the 
Department rendered were final determinations subject to judicial 
review. The Department is adopting the section in the final rule as 
proposed, except for the change noted below.
    Proposed paragraph (b) defined only determinations on 
reconsideration issued under proposed Sec. Sec.  618.240(g) and 618.245 
as final determinations subject to judicial review through the United 
States Court of International Trade (USCIT).
    A commenter wrote that Sec.  618.255(b) should be amended to 
reference only Sec.  618.245(g) rather than Sec. Sec.  618.240(g) and 
618.245. The commenter stated that the latter sections are not correct 
citations with respect to final determinations. The Department concurs, 
has corrected the citation in the regulatory text, and otherwise adopts 
Sec.  618.255(b) as proposed.
Section 618.265 Availability of Information to the Public
    Section 618.265 of the NPRM proposed at paragraph (a) that the 
Department would post all determinations and redacted petitions on the 
Department's website. This paragraph also provided that members of the 
public may inspect petitions and other related documents filed with the 
Administrator. Proposed paragraph (b) stated that confidential business 
information would not be made available to the public. Section 618.265 
as proposed was largely unchanged from the previous language at 29 CFR 
90.32, except to indicate that copies of petitions, in redacted form, 
would be available on the Department's website.
    A commenter recommended adding a reference to the TAA Program 
website to Sec.  618.265(a). The Department concurs with the suggestion 
to include the website for the TAA Program in Sec.  618.265(a). The 
website reference has been added to paragraph (a) of this provision in 
the final rule, and the Department otherwise adopts Sec.  618.265 as 
proposed.

C. Subpart C--Employment and Case Management Services

    Subpart C describes the employment and case management services 
that States must make available to trade-affected workers as required 
by section 235 of the Act. These services were previously set forth in 
20 CFR part 617. The proposed regulation proposed significant changes 
to the part 617 provisions to reflect the changes enacted by TGAAA, 
TAAEA, and TAARA 2015. However, not all of the requirements included 
here are new. Previously, 20 CFR 617.20 and 617.21 contained many of 
the same elements now contained in section 235 of the Act and in this 
final rule.
    Subpart C of the NPRM also proposed language to update 20 CFR part 
617 to reflect changes to the TAA Program and related workforce 
development programs due to the authorization and implementation of 
WIOA. This subpart emphasizes the integration of the TAA Program into 
the one-stop delivery system established under WIA and continued under 
WIOA. It also implements the requirements of section 221(a)(2)(A) of 
the Act for the provision of rapid response assistance and appropriate 
career services for workers upon receipt of a petition filed covering a 
group of workers.
    Some key proposals within subpart C included requiring initial 
assessments for trade-affected workers, clarifying the provision of 
required case management services, and prescribing requirements for 
IEPs.
    The Department is finalizing this subpart as proposed, except for 
the changes noted below. Where the Department received comments on 
specific paragraphs within a section, details of those paragraphs as 
proposed in the NPRM are included to provide context for the discussion 
of comments that follows. No comments were received on proposed 
Sec. Sec.  618.300 and 618.305, and the final rule implements these 
sections as proposed.
Section 618.310 Responsibilities for the Delivery of Employment and 
Case Management Services
    Proposed Sec.  618.310 of the NPRM set forth the State's 
responsibilities for delivering and making available employment and 
case management services. These responsibilities are from section 235 
of the Act. The Department is making a technical correction to Sec.  
618.310(a) to edit the citation from Sec.  618.820 to Sec.  618.816. 
The Department is finalizing this section as proposed, except for the 
changes to Sec.  618.310(b) and (c) noted below.
Paragraph (b)
    Proposed paragraph (b) listed the State's specific responsibilities 
for delivering employment and case management services. The proposed 
regulatory text modified 20 CFR 617.20(b). The language in 20 CFR 
617.20 was based on workforce programs that have been replaced by WIOA 
and used outdated language to describe reemployment services, now known 
under the TAA Program as employment and case management services. 
Proposed paragraph (b) did not significantly change the activities and 
services that States must provide or make available to trade-affected 
workers. It required that States (1) interview and review training 
opportunities for each trade-affected worker, (2) inform trade-affected 
workers of the services and allowances available, (3) help them secure 
suitable employment, (4) accept applications for training, (5) help 
them secure appropriate training, (6) monitor their training progress, 
(7) devise a training-waiver process, (8) provide access to workshops 
and other employment resources, and (9) coordinate other employment 
benefits that workers may be eligible for.
    Proposed paragraph (b) also reorganized 20 CFR 617.20(b). All the

[[Page 51912]]

provisions of 20 CFR 617.20(b), if not contained in this section, are 
subsumed elsewhere in the rule.
    One commenter expressed concern about the requirement at Sec.  
618.310(b)(1) mandating States subject ``every'' trade-affected worker 
to an intake process that includes an interview and a review of 
appropriate training opportunities. The commenter said many trade-
affected workers will choose not to participate in the TAA Program, and 
States cannot be expected to force all workers eligible for the program 
to undergo the intake process. The commenter recommended changing the 
provision to require only that States ``offer'' to provide the intake 
process to trade-affected workers to account for the fact that some 
workers may in fact choose not to participate in the TAA Program. The 
Department emphasizes that intake requires an application of 
enrollment; therefore, the intake requirement is applicable only to 
those trade-affected workers who apply to the TAA Program for receipt 
of TAA Program benefits and services. As such, there is no need to 
change the regulatory text related to this requirement and it is 
adopted in the final rule as proposed.
    A State workforce agency recommended adding language to Sec.  
618.310(b)(5) about States' eligible training provider (ETP) list under 
WIOA to facilitate more effective communication about available 
training opportunities. Section 236(a)(5) of the Act, however, 
specifically prohibits limiting approved training under the TAA Program 
to the ETP and the Department is concerned that adding the commenter's 
proposed language would potentially mislead those administering the 
program. Accordingly, the Department is adopting paragraph (b)(5) in 
the final rule as proposed.
Paragraph (c)
    Proposed paragraph (c) implemented section 235 of the Act by 
requiring States to provide, if appropriate, specific employment and 
case management services to trade-affected workers. Proposed paragraph 
(c)(1) required States to assess workers' skills and service needs 
through assessments and by identifying appropriate employment goals and 
barriers to employment. These goals should be based on a realistic 
assessment of available training; the worker's knowledge, skills, and 
abilities; and the gap between them and those required for the worker's 
identified employment goal.
    Proposed paragraph (c)(2) required States to inform trade-affected 
workers of the availability of the development of an IEP to identify 
employment goals and objectives and appropriate training and services 
needed by the trade-affected worker to achieve those goals and 
objectives. An IEP is a combination of the ``training plan'' contained 
in 20 CFR 617.20(b)(8) and the ``reemployment plan'' in 20 CFR 
617.20(b)(13). The requirement to periodically review the reemployment 
plan in 20 CFR 617.20(b)(13) was carried forward as a requirement for 
an IEP under the NPRM. For workers seeking training or job search 
allowances, Sec.  618.350(a) required States to provide workers with an 
IEP, though this is not a requirement for eligibility for benefits.
    Proposed paragraph (c)(3) required the State to provide information 
to trade-affected workers on how to apply for financial aid, including 
referring workers to educational opportunity centers under the Higher 
Education Act of 1965, as amended (HEA). In addition, States must 
notify workers that they may request financial aid administrators to 
use current year income data, rather than preceding year income data, 
to determine the workers' financial need. This is required by section 
235(4) of the Act. There was no corresponding requirement in the 
previous rule.
    Proposed paragraph (c)(4) required States to provide, if 
appropriate, certain services to trade-affected workers, including 
short-term prevocational services such as development of learning 
skills, communications skills, interviewing skills, punctuality, 
personal maintenance skills, and professional conduct to prepare 
workers for employment or training. These are referred to commonly as 
``soft skills'' within the public workforce system. These services are 
required by section 235(5) of the Act. There was no corresponding 
provision in the previous rule.
    Proposed paragraph (c)(5) required States to provide, if 
appropriate, individual and group counseling, including job search and 
placement counseling. These services can be provided in one-on-one 
counseling sessions or in workshops at a one-stop center. These 
services were referenced indirectly in 20 CFR 617.20 and 617.21 and are 
required by section 235(6) of the Act. The NPRM proposed the use of 
more modern terminology that reflects the changes to the public 
workforce system that have occurred through the transition from JTPA, 
to WIA, and now to WIOA.
    Proposed paragraph (c)(6) required States to provide various kinds 
of employment statistics, including local, regional, and national labor 
market information, to ensure trade-affected workers make informed 
decisions about their employment goals and training needs. Part 617 of 
title 20 of the CFR referenced the provision of labor market 
information to trade-affected workers in relation to job search 
activities, relocation, and training programs. Section 235(7) of the 
Act requires States to provide this information.
    Lastly, proposed paragraph (c)(7) required States to inform trade-
affected workers about supportive services available through partner 
programs, as required by section 235(8) of the Act. This requirement 
also was contained in 20 CFR 617.20(b)(5) and 617.21(e). The TAA 
Program reimburses limited travel and subsistence costs for training 
outside the worker's commuting area and provides for all training-
related expenses (see subpart F). However, the TAA Program does not pay 
for vehicle repairs, local travel costs, childcare, or other similar 
supportive services traditionally paid for under WIOA.
    A State workforce agency recommended eliminating ``duplicative'' 
language in Sec.  618.310(c) by deleting ``under a certification of 
eligibility'' because trade-affected workers, as defined in Sec.  
618.110, include only those the State determined to be in ``adversely 
affected employment'' and adding ``ensure'' to Sec.  618.310(c) to 
clarify that the State must make employment and case management 
services available to trade-affected workers. The Department concurs 
and has revised the regulatory text in the final rule based on this 
comment.
    One commenter expressed concern that RTAA is not on the list of 
services about which States must notify workers at Sec.  618.310(c), 
despite its low usage among TAA Program recipients. The same commenter 
stated that most displaced workers return to work at reduced wages and 
that wage insurance is valuable for AAWs seeking reemployment on their 
own without much contact with the State. The commenter recommended that 
States ``aggressively market'' RTAA and suggested that information 
about the benefits of the RTAA program should be communicated to 
workers. The Department explains that States are required to notify 
workers about RTAA under Sec.  618.816 and for that reason the 
Department is not adopting the recommendation to include RTAA on the 
list of services mentioned here. The Department does, however, strongly 
encourage that information about the benefits of RTAA be relayed to 
potentially eligible workers, including information on the flexibility 
of receiving training and RTAA concurrently.

[[Page 51913]]

    One commenter asked whether States can meet the requirements at 
both Sec.  618.310(c)(1) and (2) by combining the initial assessment 
with an IEP to identify barriers to employment. The Department is not 
establishing a sequence of services. Intake, assessment, and the 
development of an IEP can all occur in the same session with a career 
counselor. No changes have been made to the regulatory text in response 
to this comment.
Section 618.325 Integrated Service Strategies and Workforce Innovation 
and Opportunity Act Co-Enrollment
    Section 618.325 proposed co-enrollment between the TAA Program, 
WIOA dislocated worker program, and other programs to ensure the 
availability of a comprehensive array of services for trade-affected 
workers and the integration of workforce development programs. The 
Department previously concluded that co-enrollment of trade-affected 
workers in the dislocated worker program under WIOA, WIA, and title III 
of JTPA before that, was the best way to integrate services and ensure 
successful reemployment of trade-affected workers. States have, 
generally, been co-enrolling trade-affected workers in accordance with 
administrative guidance. This integration of service strategies arises 
from the requirement in section 239 of the Act to make available 
employment and case management services, such as counseling, testing, 
placement services, and supportive and other services for trade-
affected workers.
    Proposed paragraph (a)(1) required co-enrollment of trade-affected 
workers in WIOA's dislocated worker program. Co-enrollment allows for 
more efficient use of public workforce system resources and reduces 
barriers to program integration. A trade-affected worker may decline 
co-enrollment, which has no effect on eligibility for benefits and 
services under the TAA Program. In implementing the co-enrollment 
requirement, States must make trade-affected workers aware that they 
are being co-enrolled in the WIOA program.
    Proposed paragraph (a)(2) required that States make available to 
eligible trade-affected workers co-enrollment in Wagner-Peyser Act 
Employment Service activities, vocational rehabilitation services, and 
veterans' programs, such as the Jobs for Veterans State Grants program, 
and other one-stop partner programs, if appropriate. When trade-
affected workers are co-enrolled properly in other one-stop programs, 
provided timely rapid response services, and given appropriate career 
services, they return to work as quickly as possible. Co-enrolled 
trade-affected workers also can receive supportive services that may 
help them complete TAA approved training and then return to employment. 
The Department expects the TAA Program, in general, to pay for all 
training and related costs and the majority of employment and case 
management services. However, trade-affected workers often also benefit 
from WIOA's supportive services and post-employment follow-up services, 
which cannot be funded through the TAA Program.
    Proposed paragraph (b)(1) emphasized that most trade-affected 
workers are dislocated workers as defined at WIOA section 3(15). Most 
trade-affected workers have been laid off, are likely to be eligible 
for unemployment compensation or are otherwise attached to the 
workforce, and are unlikely to return to a previous industry or 
occupation, which are the primary eligibility criteria for the 
dislocated worker program. There are only a few barriers to WIOA 
eligibility. Proposed paragraph (b)(2) recognized that AAIWs will 
generally not be eligible for the WIOA dislocated worker program, but 
in certain circumstances, such as a general announcement of a closure, 
they may meet those eligibility criteria and must also be co-enrolled. 
Similarly, some partially separated workers' wages and time on the job 
will have decreased, but they remain employed and do not meet any other 
eligibility requirements of the WIOA dislocated worker program. 
Proposed paragraph (b)(3) described that the broader requirement under 
WIOA that certain males be registered under the Selective Service 
provisions can be a barrier to co-enrollment. There is no Selective 
Service registration requirement under the TAA Program. If a trade-
affected worker knowingly and willfully fails to register, he or she 
cannot co-enroll in WIOA and, therefore, the co-enrollment requirement 
does not apply.
    Multiple commenters favored the co-enrollment requirement. A State 
workforce agency supported the mandated co-enrollment proposal and 
argued that trade-affected workers also eligible for WIOA's dislocated 
worker program would receive better ``wrap-around'' and follow-up 
services that the TAA Program cannot cover on its own, ultimately 
facilitating improved experiences and outcomes for workers. Other 
commenters agreed with the proposal to mandate co-enrollment of trade-
affected workers also eligible for the dislocated worker program, with 
some stating the proposal also would improve workers' outcomes and 
experiences. A different State workforce agency expressed support for 
the proposal, saying it would increase access to a broad array of 
services and promote greater cooperation between TAA Program 
administrators and their partners.
    Multiple commenters suggested that if the Department seeks to 
mandate dislocated worker co-enrollment in TAA Program regulations, it 
also should mandate such co-enrollment in the WIOA regulations to 
ensure equivalent expectations across the two programs. The States, 
under the Governor-Secretary Agreement, are bound to the implementation 
of the final rule. The Agreement binds the entire executive branch of 
the State governments to the terms and conditions of the Agreement and 
the implementation of the TAA Program. This includes the implementation 
of the co-enrollment requirement. The Governor, through the State 
workforce development board, has the authority to enforce the co-
enrollment requirement at the State and local area levels. In addition, 
WIOA itself requires a State to enroll an eligible individual who 
applies for the dislocated worker program, though receipt of services 
will be contingent on funding availability. The Department will provide 
additional technical assistance and training on co-enrollment to the 
workforce system.
    Other commenters opposed mandating co-enrollment, stating that co-
enrollment ``does not make sense'' and ``undermines'' the WIOA 
dislocated worker program. These commenters suggested co-enrollment 
should only apply when another program can offer complementary services 
(or funding to support such services) to trade-affected workers. One 
commenter said that, while co-enrollment would benefit workers in 
certain situations, it would not offer any benefits to workers who do 
not have a need for any services offered under WIOA. The same commenter 
suggested the rule should provide additional guidance to States beyond 
simply allowing workers to opt out, including informing workers about 
services that would be best delivered through WIOA co-enrollment and 
describing any additional reporting or other requirements that could 
impact a worker's decision to co-enroll.
    Co-enrollment of TAA Program participants in the WIOA dislocated 
worker program drastically improves the quality of service to trade-
affected workers and improves participant outcomes. Based on data 
States reported between FYs 2009 and 2017, TAA Program participants who 
were co-enrolled in the dislocated worker program under WIA/WIOA have 
superior post-program employment

[[Page 51914]]

results, by a consistent margin, in comparison to TAA Program 
participants who were not co-enrolled in a WIA/WIOA dislocated worker 
program. Moreover, these data showed no adverse impact on outcomes 
under the dislocated worker program as a result of co-enrolling TAA 
Program participants.
    TAA Program participants co-enrolled in the dislocated worker 
program have (1) higher training participation (75 percent versus 51 
percent for those not co-enrolled), (2) higher training completion 
rates (78 percent versus 71 percent for those not co-enrolled), and (3) 
higher credential attainment (73 percent versus 62 percent for those 
not co-enrolled). All of these outcomes are correlated with higher 
performance outcomes and the differences in performance are 
statistically significant. Accordingly, the Department declines to 
revise this section, and this final rule adopts this section as 
proposed.
    A State workforce agency said that while it appreciates the 
``philosophy'' of co-enrollment in WIOA, it has concerns about the 
impact on resources available to support non-TAA-eligible workers who 
already have a less desirable suite of benefits. The State workforce 
agency stated that most of the dislocated workers it works with could 
not access TAA Program benefits, and while it would be beneficial to 
offer a full suite of benefits to trade-affected workers through WIOA 
co-enrollment, doing so might deplete resources available for non-TAA-
eligible dislocated workers. The State workforce agency suggested that 
Congress should consider this resource limitation when reauthorizing 
the Act. The Department appreciates the commenter's concerns but 
reminds States that TAA Program funds are to be the primary source of 
funds used to serve trade-affected workers. The co-enrollment 
requirement does not change this, and WIOA funding should be used to 
provide services only where TAA Program funding may not be used for the 
service. No changes have been made to the regulatory text as a result 
of this comment.
    One commenter suggested the Department should clarify that States 
can use TAA Program funds to cover costs associated with workforce 
system alignment to reduce administrative burdens, and it requested 
that the Department provide more guidance to States about the 
information workers will need before deciding to opt out of co-
enrollment. Two different commenters asked if the Department would 
issue subsequent administrative guidance about co-enrollment for the 
WIOA program. The Department agrees with these comments. Technical 
assistance is available on the TAA Program website, and additional 
training and technical assistance will be provided to address co-
enrollment and the use of TAA Program funds to support co-enrollment.
    One commenter requested that the proposed language be revised to 
include co-enrollment in WIOA's adult and youth programs also, and 
stated that there is a Trade Adjustment Assistance Data Integrity 
measure that currently allows for adult co-enrollment and asked whether 
that practice would continue. A different commenter, as part of a 
request for the addition of WIOA's adult program to the co-enrollment 
mandate, requested guidance allowing States and local areas to shift 
funding to the adult program and argued that failing to include this 
option would reduce supportive and integrated services for TAA Program 
participants in areas with less funding for WIOA's dislocated worker 
program. The Department is limiting the regulatory requirement to the 
WIOA dislocated worker program because those eligibility requirements 
most closely align with the TAA Program; however, nothing prohibits a 
State or local area from also co-enrolling the worker in the adult or 
youth program if he or she is otherwise eligible. No changes have been 
made to the regulatory text.
    One commenter expressed concern about the mandated co-enrollment 
provision because WIOA staff do not currently meet merit staff criteria 
under the TAA Program, and TAA Program funds cannot support the 
delivery of TAA Program services by such staff. The commenter urged 
that TAA Program funds be opened to all staff who will support TAA 
Program activities if co-enrollment is maintained, and it also 
suggested WIOA's dislocated worker program should remove its merit 
staffing requirements. The Department's revision to the merit staffing 
requirements in Sec.  618.890 will address the commenters' concerns by 
allowing non-merit staff to be funded under the TAA Program for the 
provision of employment and case management services. No changes have 
been made to the regulatory text.
    One commenter expressed concerns with provisions contained in Sec.  
618.325(a) and (b). The commenter suggested that the first sentence of 
Sec.  618.325(a)(1) and the corresponding language in (b)(1) be revised 
to restrict trade-affected workers to those ``participating in the TAA 
Program'' in order to distinguish between TAA Program participants and 
workers who may meet the definition of ``trade-affected worker,'' but 
choose to not apply or participate in the program. The commenter also 
suggested the first sentence should not describe the co-enrollment 
requirement as an absolute, since the second sentence clarifies that 
workers can decline co-enrollment in WIOA. The Department reiterates 
that a trade-affected worker has already been determined individually 
eligible for the TAA Program and, thus, already has a connection to the 
workforce system. The definition of the term ``trade-affected worker'' 
means both ``adversely affected workers'' and ``adversely affected 
incumbent workers.'' A member of a worker group only becomes an AAW or 
AAIW once the worker individually applies and is determined eligible 
for TAA Program benefits and services. The Department further maintains 
that the second and third sentences of Sec.  618.325(a)(1) provide 
sufficient clarification on the absolute nature of the co-enrollment 
requirement and must be read together to understand that the 
requirement is on the State, not the worker. No change has been made to 
the regulatory text in the final rule in response to this comment.
    A State workforce agency suggested changing the beginning of the 
first sentence of paragraphs (a)(1) and (2) to ``The State must 
ensure'' to account for the fact that the act of co-enrolling workers 
may occur by non-State staff at the local area level. The Department 
clarifies that the use of the word ``State'' is related to the 
Agreement that provides the formal relationship between the States and 
the Department. Due to the unique nature of the workforce systems in 
each State, while removing the word for one State might be beneficial, 
in another it may complicate the issue. For the reasons discussed above 
and elsewhere in this subpart, the Department maintains the regulatory 
text as proposed.
    One State workforce agency expressed support for the alignment of 
employment and case management services with established TAA Program 
goals and practices. Another commenter agreed with co-enrollment 
between the WIOA and TAA programs but questioned whether the WIOA 
regulations would be amended to include requirements associated with 
the TAA Program and how States would enforce cooperation, arguing that 
TAA Program staff do not control WIOA staff. The Department clarifies 
that WIOA section 512(hh)(1)(B) amended section 221(a)(2)(A) of the Act 
to require rapid response and appropriate career services at the time a 
petition is filed. These requirements are already in the WIOA Final 
Rule at Sec. Sec.  682.302(d) and

[[Page 51915]]

682.330(i) of this chapter. With regard to the co-enrollment 
requirement, the Department concludes that no additional regulatory 
language is needed in the WIOA rules to compel compliance with this new 
requirement, since AAWs are eligible to be enrolled in the WIOA 
dislocated worker program upon request. The States, under the Governor-
Secretary Agreement, are bound to the implementation of these rules. 
The Governor-Secretary Agreement binds the entire executive branch of 
the State government to the terms and conditions of the Agreement and 
the implementation of the TAA Program. This includes the implementation 
of the co-enrollment requirement. The Governor, through the State 
Workforce Development Board, has the authority to enforce the co-
enrollment requirement at the State and local area levels.
    Some commenters recommended that additional clarity was needed on 
the permissible usage of TAA Program funding for non-merit staff 
carrying out activities under subpart C and said that this lack of 
clarity provided a reason to match the staffing flexibility described 
in the proposed regulations for the Wagner-Peyser Act Employment 
Service, that have since been finalized. The commenters cited language 
from the preamble of the Wagner-Peyser NPRM (84 FR 29433, 29434 (June 
24, 2019)) describing the Department's proposal in that context to 
allow States the flexibility to use different types of personnel and 
staffing models according to their needs. This final rule does not 
specifically address the Wagner-Peyser Act Employment Service; rather, 
these rules focus specifically on the application of merit staffing 
provisions as they pertain to the TAA Program.
    One commenter requested clarity on the types of documentation 
required to demonstrate proof that a rapid response event occurred. In 
many States, the provision of rapid response is recorded during the 
intake process, through a cross-match within the State's management 
information system (MIS), or through another record-keeping database. 
This rule does not provide a specific documentation requirement. The 
Department considered the comments received and has finalized the 
section in this final rule as proposed.
Section 618.330 Assessment of Trade-Affected Workers
    Section 618.330 of the proposed rule required States to design an 
assessment process. Section 239(g)(4) of the Act permits the Department 
to require initial assessments for all trade-affected workers as part 
of the TAA Program intake process. States must provide all trade-
affected workers an initial assessment after determining that they are 
individually eligible for the TAA Program as part of the intake 
process. This meets a necessary component of the requirement at section 
239(g)(4) of the Act that each State perform ``intake of'' trade-
affected workers covered by a petition. Intake includes these 
assessments but also the collection of demographic information for 
reporting purposes. The initial assessment must include an evaluation 
of a trade-affected worker's skill levels (including literacy, 
numeracy, and English language proficiency), abilities (including 
skills gaps), and supportive service needs.
Paragraph (b)
    Proposed paragraph (b) required that States ensure the scheduling 
of the assessment gives trade-affected workers enough time and 
information to consider, request, and enroll in training or obtain a 
waiver of the training requirement for TRA before expiration of the 
statutory 26-week deadline for enrollment in training.
    One commenter suggested revising the language of Sec.  618.330(b) 
on the scheduling of an initial assessment to avoid a conflict with the 
Department's proposed changes for staffing flexibility at Sec.  618.890 
which would allow for the assessment to be scheduled and provided by 
parties other than the State. The final rule uses the term ``State'' 
because it is the State, bound by the Governor-Secretary Agreement, 
that is ultimately responsible for the provision of services and 
benefits under the TAA Program. That does not mean, however, that the 
services cannot be provided by other non-State entities acting on its 
behalf. The Department has not made any changes to the regulatory text 
in response to this comment.
    The same commenter suggested a language change to help clarify that 
this requirement only applies to trade-affected workers found eligible 
for the TAA program under Sec.  618.820(a). As provided in Sec.  
618.110, a trade-affected worker is a member of a worker group found 
individually eligible for the TAA Program. Therefore, no change to the 
regulatory text is needed to meet the commenter's concern.
    However, the Department has made a minor edit to the regulatory 
text to change the use of a pronoun.
Paragraph (e)
    Proposed paragraph (e) discussed what to do if a partner program 
conducts the assessment(s). The use of partner programs' assessments 
can increase efficiency, ensure that workers quickly receive 
appropriate reemployment services, and quickly identify those workers 
requiring a more comprehensive and specialized assessment of their 
skills. The Department recognizes that the lack of uniform requirements 
for assessments means that some assessments conducted by partner 
programs may not meet all TAA Program requirements for an initial 
assessment. If so, the State must supplement those partner program 
assessments with additional information to comply with Sec.  618.335.
    The same commenter who recommended revising proposed paragraph (a) 
similarly recommended changing part of Sec.  618.330(e) to remove the 
reference to the State, again saying this change would account for the 
increased flexibility around staffing. For the reason discussed above, 
the Department declines to make any changes to the regulatory text in 
response to this comment.
    One commenter stated that an initial assessment will already have 
been completed as part of the intake process prior to the establishment 
of an IEP and argued that, as long as the worker's interests, skills, 
and capabilities are sufficiently documented, this should suffice, thus 
avoiding the need for additional forms and paperwork that would burden 
case managers unduly. A different commenter said that the increased 
focus on data-driven AAW assessments would require administrators to 
allocate more resources to technical staff and systems. Analysis of 
State expenditure levels over the past several years shows that there 
are sufficient financial resources available to the States to meet 
these requirements. Also, the development and enhancement of an 
integrated service model within the one-stop delivery system reduces 
duplication of effort. As stated earlier, it is possible for intake, 
initial assessment, and establishment of an IEP to be developed at the 
same time. These efforts must be documented in a worker's case file, 
but the Department has not prescribed standard forms or formats of 
those documentation requirements.
    The Department considered the comments received and adopts the 
section in this final rule as proposed.
Section 618.335 Initial Assessment of Trade-Affected Workers
    Section 618.335 of the proposed rule implemented section 239(g)(4) 
of the Act. The WIOA implementing regulations at 20 CFR 678.430(a)(3) 
mirror the statutory language in WIOA section 134(c)(2)(A)(iii) on 
initial

[[Page 51916]]

assessments. Section 618.335 aligned the TAA Program with WIOA and 
provides the requirements for an initial assessment of trade-affected 
workers. The first step in the process is to determine whether the 
worker will need employment and case management services and training. 
The State must provide TAA Program benefit information to trade-
affected workers no later than at the time of the initial assessment, 
as discussed in Sec.  618.816(f). However, the State may provide this 
information to a worker even earlier, upon receiving a notice of a 
certified petition covering that worker.
    The Department received support for this provision from several 
commenters. An LWDB stated that ensuring workers have access to 
individualized assessments was an improvement and commented that the 
language at Sec.  618.335 mirrors language in the WIOA regulations. A 
different commenter said the requirement to provide a comprehensive IEP 
for TAA-eligible workers would help workers navigate complex decisions 
and choices related to reemployment planning.
    Multiple commenters argued that requiring an initial assessment for 
all trade-affected workers would increase overall costs and may not be 
needed or valued by workers in all cases. The explicit requirement for 
assessment is not a change from current operations. The statute 
requires the provision of employment and case management services to 
all trade-affected workers, and these requirements include intake and 
orientation activities.
    The same group of multiple commenters requested clarity on whether 
the initial assessment requirement would apply only to trade-affected 
workers interested in training or to all trade-affected workers. The 
Department clarifies that an initial assessment is required for all 
trade-affected workers, not just those interested in training. Initial 
assessments are also valuable to those workers who only will receive 
employment and case management services.
    A State workforce agency recommended that RTAA customers be 
exempted from a skill level assessment, since they are already employed 
full-time and may have to miss work to participate in literacy and 
numeracy assessments. The Department has considered the proposal to 
exempt RTAA from the initial assessment requirement; however, since 
RTAA also allows workers to participate in TAA approved training while 
reemployed and because assessments are generally conducted at intake, 
before RTAA eligibility has been established, this provision is adopted 
in the final rule as proposed. In accordance with Sec.  618.330(f), a 
worker may refuse an assessment.
    One commenter recommended the Department refrain from creating 
unintended barriers to occupational training as it develops standards 
for assessments and referrals to employment services. The same 
commenter offered several suggestions to improve procedures around the 
comprehensive and specialized assessment afforded to workers who 
disagree with their initial assessment, including respecting trade-
affected workers' right to training, considering the duration and depth 
of a worker's job search, assessing employment suitability, 
establishing timeliness standards, giving workers the opportunity to 
decline diagnostic testing, and explicitly stating that aligning the 
process with WIOA's initial assessment process is meant to increase 
coordination and decrease duplicative work rather than limit access to 
training. The Department reiterates that this final rule has aligned 
the regulatory text with WIOA regulations wherever possible. In 
addition, the Department continues to encourage service integration 
between all partner programs. This final rule does not establish 
duplicative requirements or barriers to training.
    One commenter raised concerns about the potential for the 
Department's new standards for assessments and referral to employment 
services to erect barriers to occupational training. The same commenter 
stated that the proposal does not require that the initial and 
comprehensive and specialized assessments occur ``within a reasonable 
amount of time,'' which, if required, would help facilitate workers' 
participation in training programs. The commenter expressed concern 
that the ``two-prong approach'' enshrines the idea that workers need to 
``qualify'' for training rather than it being an entitlement accessible 
to them immediately upon certification. The purpose of assessments is 
not to create barriers to training, but to ensure that training 
programs are appropriate for the worker and otherwise meet the criteria 
for approval of training in Sec.  618.610. The criteria for the 
approval of training in Sec.  618.610 are largely unchanged from the 
previous rules. The proposal described the requirement for assessments 
to be conducted and for determinations on enrollment in training to be 
based on those assessments. This is not a barrier to enrollment in 
training, but an assurance that the selected training is appropriate 
for the worker and likely to lead to employment.
    The same commenter stated that the proposed assessments could place 
excessive administrative burden on workers seeking training, who, the 
commenter said, currently face an already complex system. The commenter 
also asserted that, while greater alignment with WIOA is praiseworthy, 
``complete adoption'' of WIOA's assessment process would not be 
appropriate for the TAA Program and could lead to the ``rationing'' of 
training. To address these concerns, the commenter recommended that the 
Department merge Sec. Sec.  618.335 and 618.345 into one section that 
does the following:
     Affirms the purpose of the assessment process as matching 
a worker with the best training opportunity;
     Prevents delays in workers' access to benefits for which 
they are eligible;
     Avoids prolonging unemployment (i.e., because of ``lag 
time'' between different steps in the process);
     Requires States to provide initial and comprehensive and 
specialized assessments at the same time (e.g., within 10 days);
     Ensures that IEPs are completed reasonably soon after 
assessments occur; and
     Makes clear that alignment with WIOA's approach is not 
meant to create barriers to accessing training.
    The Department is not establishing a sequence of services or 
specific timelines. The initial assessment, comprehensive and 
specialized assessment, and IEP, could be accomplished in the same case 
management session. In fact, some of these elements may have already 
been performed by partner programs. As these services are already being 
provided by States, these explicit requirements provide clarity to the 
States, not additional processes. Appropriately administered, these 
services will potentially shorten durations of unemployment and result 
in better outcomes for trade-affected workers. The Department has 
determined the goals outlined in the comment are already met in the 
regulations, so the provision is adopted in the final rule as proposed, 
with the exception of an edit related to the use of a pronoun in 
paragraph (b)(2).
Paragraph (c)
    Proposed paragraph (c) explained the State's options for service 
strategies based on the information gathered from the initial 
assessment. This involves first making a determination of whether

[[Page 51917]]

or not there is suitable employment available to the trade-affected 
worker and then identifying the options for moving forward.
    A State workforce agency recommended changing part of Sec.  
618.335(c)(1) by editing the language related to providing employment 
and case management services to account for the proposed increase in 
staffing flexibility provided at Sec.  618.890. The same commenter 
suggested making similar changes to Sec.  618.335(c)(2), which 
discusses making comprehensive and specialized assessments available, 
to account for such flexibility. The commenter said the language at 
Sec.  618.335(c)(1) and (2) was confusing because it seems to indicate 
that making certain services available depends on determinations 
regarding suitable employment. The commenter said that, since Sec.  
618.345 requires comprehensive and specialized assessments for all 
trade-affected workers, Sec.  618.335(c)(1) is inconsistent in stating 
such assessments will be made available ``[i]f the worker disagrees 
with the determination.'' Subpart C defines ``make available'' to mean 
that the service must be provided if appropriate for the worker or if 
requested by the worker.
    The language in 618.335(c)(1) proposed that after conducting the 
initial assessment, a State may already have sufficient information to 
determine whether suitable employment exists. If it does, training 
cannot be approved and the State should ensure that additional 
employment and case management services are provided to assist the 
worker to obtain the suitable employment. The provision of (c)(2) would 
apply where the determination is made that there is no suitable 
employment available to the worker. An initial assessment is required 
as part of intake of AAWs and AAIWs (trade-affected workers) applying 
to enroll in TAA Program benefits and services. If a partner program 
has already conducted an assessment, it should not be duplicated. If a 
worker does not seek enrollment in the TAA Program, then neither intake 
nor an initial assessment is required. With respect to staffing 
flexibility, these rules use the term ``State'' because it is the 
State, bound by the Governor-Secretary Agreement, that is ultimately 
responsible for the provision of services and benefits under the TAA 
Program. That does not mean, however, that the services cannot be 
provided by other non-State entities. The Department considered the 
comments received and adopts this section in the final rule as 
proposed.
Section 618.345 Comprehensive and Specialized Assessment of Trade-
Affected Workers
    Section 618.345 of the proposed rule implemented section 235 of the 
Act. WIOA section 134(c)(2)(A)(xii) and its implementing regulation at 
20 CFR 678.430(b)(1) require States to provide comprehensive and 
specialized assessments. WIOA draws a distinction between basic career 
services and individualized career services as individualized career 
services only are required to be provided if it is determined 
appropriate. Section 618.345 aligned the TAA Program with WIOA.
    Proposed paragraph (a) required States to make available 
comprehensive and specialized assessments to all trade-affected 
workers. Proposed paragraph (b) provided requirements for the content 
of the comprehensive and specialized assessments. Proposed paragraph 
(c) reiterated WIOA's regulations and was meant to ensure that States 
have the information needed to help workers select appropriate training 
and a viable future career, thus increasing their chances of 
successfully completing training and finding sustainable employment. 
Proposed paragraph (d) allowed States to use information from the 
comprehensive and specialized assessment to determine whether training 
can be approved under the criteria listed in subpart F.
    One commenter recommended changing Sec.  618.345(a) by qualifying 
the term ``all trade-affected workers'' with ``determined eligible for 
TAA Program benefits under Sec.  618.820(a).'' The same commenter also 
maintained that the language at Sec.  618.345(c) discussing training 
opportunities and requirements for training participation was more 
appropriate for Sec.  618.330(b), because an initial assessment is 
required to access the training benefit, but a comprehensive and 
specialized assessment is optional. The commenter further suggested 
that, to remain consistent with the language at Sec.  618.330(e), the 
Department should require the use of comprehensive and specialized 
assessments to determine whether workers meet the six criteria for 
training approval. The Department reiterates that in accordance with 
Sec. Sec.  618.335 and 618.345, States are required to ensure that 
every trade-affected worker has an initial assessment and that a 
comprehensive and specialized assessment has been made available to him 
or her. As discussed in subpart F, a State may have sufficient 
information available to approve training under subpart F without a 
comprehensive and specialized assessment or development of a full IEP. 
The Department considered requiring a comprehensive and specialized 
assessment, as well as requiring an IEP, prior to the State approving 
training under subpart F; alignment with WIOA, however, took precedence 
as it is a primary goal of these regulations. The Department is 
finalizing this section in the final rule as proposed, except for a 
technical correction in Sec.  618.345(b), replacing the plural 
possessive pronoun ``their'' with the singular possessive noun 
``worker's.''.
Section 618.350 Individual Employment Plans for Trade-Affected Workers
    Section 618.350 requires that States make IEPs available to trade-
affected workers and details what must be included in an IEP and 
States' responsibilities with regard to monitoring and updating IEPs. 
Requirements related to IEPs were previously located in 20 CFR part 
617. The NPRM proposed to revise and combine two separate paragraphs of 
20 CFR part 617, regulations covering training programs at 20 CFR 
617.20(b)(8) and reemployment plans at 20 CFR 617.20(b)(13), and to 
implement a new process for making IEPs available for trade-affected 
workers.
    Proposed paragraph (a) required States to make available an IEP to 
all trade-affected workers and required the establishment of an IEP for 
workers who apply for training under subpart F or a job search 
allowance under subpart D. Proposed paragraph (b) required that the IEP 
use the results of the initial assessment and, if available, 
comprehensive and specialized assessments to inform and document a 
service strategy that provides the trade-affected worker with needed 
services for reemployment. Proposed paragraph (c) provided the required 
elements of an IEP. The IEP must be developed jointly between the State 
and the trade-affected worker. These elements are required because they 
cover most aspects of the training and reemployment process. Proposed 
paragraph (d) explained that the IEP can be developed by a partner 
program, but it must be supplemented to include the elements required 
in proposed paragraph (c) if the IEP does not already include them. 
This reduces duplication of services while still meeting program-
specific needs.
    Proposed paragraph (e) required States to monitor the worker's 
progress toward meeting the IEP's elements. Proposed paragraph (f) 
required States to modify the IEP as necessary, and with

[[Page 51918]]

the worker's input. States also must modify the IEP when there is a 
change to the trade-affected worker's approved training program or 
revisions to receipt of subsistence and transportation payments. 
Proposed paragraph (g) explained that a trade-affected worker seeking a 
job-search allowance under subpart D or training under subpart F may 
refuse to participate in the IEP process. However, the trade-affected 
worker must provide sufficient information, either through a partial 
IEP or outside of the IEP process, for States to make a determination 
on the six required training approval criteria or the job search 
allowance application criteria. Failure to do so will result in denial 
of the training program or allowance. A trade-affected worker so denied 
can appeal the training denial, in accordance with provisions in 
subparts D, F, and H.
    One commenter stated that the proposed rule's discussion of 
employment plans does not mention ``measurable skill gains.'' The 
Department clarifies that measurable skill gains is not one of the 
statutory primary indicators of performance for the TAA Program, and 
thus is not covered in the regulatory text.
    The same commenter also stated that there was no mention of the use 
of O*NET for the development of employment plans. Although O*NET is not 
specifically included in the regulatory text of Sec.  618.350, it is 
mentioned in Sec.  618.635, the provision related to work-based 
training, and the Department maintains that O*NET is a valuable source 
of information and tools for States and workers to use in developing 
IEPs, conducting assessments, and providing other employment and case 
management services to workers.
    One commenter said the new requirement in Sec.  618.350(a)(1) that 
trade-affected workers receive an IEP would lead to improvements in 
case management services for such workers. The commenter stated that 
some trade-affected workers might not need training to secure suitable 
employment and said the TAA Program should not be a ``one-size-fits-
all'' program. The Department concurs and appreciates the support.
    One commenter requested clarity on the meaning of the Department's 
proposal at Sec.  618.350(f)(1) that States must modify an IEP as 
necessary to facilitate a successful outcome for the trade-affected 
worker, because Sec.  618.350(c)(2) indicates that an IEP documents the 
training program ``proposed.'' The commenter claimed that the 
Department later switches to refer to ``pursued'' training. This 
commenter asked whether this change in language was intended to 
indicate that new targeted occupations or training programs could be 
identified at a later date even after a worker has already begun 
training for a different occupation. The Department explains that the 
term ``pursued training'' does not appear in the regulatory text as 
proposed or in the final rule. In response to the commenter's question 
regarding whether a worker could change his or her training program to 
pursue a change in occupational goals, under the right circumstances 
such a change could be appropriate. Section 618.665 of the final rule 
addresses the circumstances under which an approved training program 
may be amended. Any change, of course, must be documented in the 
worker's IEP. The Department anticipates a high demand for technical 
assistance related to amending training programs and the relationship 
to IEPs. Technical assistance will be provided on these topics.
    One commenter suggested several revisions to the language found 
within Sec.  618.350 to promote consistency with other changes proposed 
related to the increased flexibility associated with the use of non-
merit staffing. This commenter recommended changing the language in 
Sec.  618.350(a) from ``A State must'' to ``A State must ensure'' an 
IEP is made available to workers to account for the added flexibility 
of using non-merit staffing. The commenter also recommended revising 
the second sentence of Sec.  618.350(d) by removing the words ``by the 
State'' to allow for the added flexibility to use non-merit staffing. 
The sentence would state, ``If the IEP does not contain the components, 
the IEP must be supplemented, in conjunction with the worker, to ensure 
it is fully compliant with the TAA Program requirements in this part.'' 
Similarly, the commenter recommended changing the language at Sec.  
618.350(e), (f)(1), and (g) to provide that States, rather than carry 
out directly certain activities described therein, must ``ensure'' the 
activities occur, again to account for the added flexibility to use 
non-merit staffing. With respect to staffing flexibility, the 
Department explains that this final rule uses the term ``State'' 
because it is the State, bound by the Governor-Secretary Agreement, 
that is ultimately responsible for the provision of services and 
benefits under the TAA Program. That does not mean, however, that other 
non-State entities cannot provide the services. No changes to the 
regulatory text were made.
    The same commenter recommended removing ``and industry'' from 
proposed Sec.  618.350(c)(1), which required that the IEP include the 
trade-affected worker's employment goal, including the targeted 
occupation and industry, since many occupations intersect with several 
different industries. More broadly, the commenter suggested the main 
thrust of this provision should be ``identifying the targeted 
occupation'' for purposes of the IEP. After considering this comment, 
the Department is retaining the reference to industry. While the 
occupational goal is the determining factor to be used in assessments 
and approval of training, the identification of an industry is also 
helpful in assisting a trade-affected worker in seeking employment and 
selecting appropriate training, if needed.
    The same commenter stated that there was a disconnect between the 
proposed language at Sec.  618.350(e) and (c), because the former 
requires the State to monitor workers' progress in meeting 
responsibilities, but the latter does not require that worker 
responsibilities be documented in the IEP. The same commenter also said 
that the requirement at Sec.  618.350(c)(2) to include ``The type of 
training proposed, if any,'' in an IEP was too generic and suggested 
revising it to state, ``The specific training program proposed, if 
any,'' because identifying the specific training program would aid the 
State in identifying suitable services and supplemental assistance 
needs. The Department agrees and has modified the regulatory text at 
Sec.  618.350(c)(2) in the final rule to require the State to document 
the training program proposed in the IEP and has added a new paragraph 
(c)(5) to this section to require that the IEP document the trade-
affected worker's responsibilities under the plan. The addition of 
paragraph (c)(5) is an acknowledgment that the trade-affected worker 
has an active role and responsibilities in the IEP process.
    The same commenter sought clarification as to why an IEP was 
required for the job search allowance, but not for the relocation 
allowance. This distinction, however, is based on language in the Act. 
For a relocation allowance to be payable, a worker must have already 
secured new employment. When applying for a job search allowance, the 
worker is still seeking employment, which gives rise to the requirement 
for an IEP. The final rule adopts this section as proposed, with the 
exception of the minor updates to IEP documentation requirements in 
Sec.  618.350(c)(2) and (5).

[[Page 51919]]

    The Department is finalizing the section in the final rule as 
proposed, except for the changes noted above.
Section 618.355 Knowledge, Skills, and Abilities of Staff Performing 
Assessments
    Section 618.355 is a new provision that has no comparable 
counterpart in previous regulations or in administrative guidance. It 
requires that the staff performing assessments of trade-affected 
workers possess certain knowledge, skills, and abilities in order to 
effectively provide employment and case management services to trade-
affected workers. This provision is essential to ensuring that 
requirements under section 235 of the Act are fully implemented and 
that States provide high-level services. The NPRM proposed at paragraph 
(c) of this section that funds available under section 235A(1) of the 
Act may be used to improve and maintain the knowledge and ability of 
staff conducting assessments.
    An LWDB asked whether TAA Program funds could be used to train 
employees at partner agencies (citing WIOA's dislocated worker program 
staff as an example) that perform assessments for trade-affected 
workers. The use of TAA Program funds in this manner is already an 
allowable cost under the TAA Program and will continue to be so under 
this final rule. The Department adopts this new provision into the 
final rule as proposed.
Section 618.360 Employment and Case Management Services for Trade-
Affected Workers in Training
    Section 618.360 of the proposed rule was a new provision that had 
no comparable counterpart in previous regulations and was added as a 
result of TAA Program oversight and monitoring the Department 
conducted. This section required States to continue to make employment 
and case management services available to all trade-affected workers 
considering training (and for AAWs on a waiver from training in 
accordance with subpart G), taking TAA approved training, or who have 
completed training.
    A nonprofit public policy organization expressed support for the 
Department's clarification in the proposed rule that States must make 
employment and case management services available to workers who are in 
or have completed training, or are considering training, because 
continued employment and case management services will help workers 
overcome barriers to completing training programs. The Department has 
made two nonsubstantive edits to this section of the final rule to 
remove the use of parentheses, remove some repetitive language, and 
replace the word ``upon'' with ``after,'' and otherwise adopts Sec.  
618.360 as proposed.

D. Subpart D--Job Search and Relocation Allowances

    Subpart D governs job search and relocation allowances, which are 
authorized, respectively, under sections 237 and 238 of the Act. 
Subpart D proposed to consolidate provisions contained in subparts D, 
E, and F of 20 CFR part 617, which implement these allowances. Subpart 
D proposed to largely preserve the 20 CFR part 617 requirements for job 
search and relocation allowances, with a few substantive changes to 
reflect a statutory increase to the limit for job search allowance 
reimbursement per AAW and per certification to $1,250 from $800; an 
increase in the maximum lump-sum payment for relocation to $1,250 from 
$800; and the definition of ``suitable employment'' as used in the 
eligibility requirement for both job search and relocation allowances, 
explained below. Subpart D also proposed procedural changes from 20 CFR 
part 617.
    Finally, subpart D proposed to continue to require the use of the 
FTR at 41 CFR chapters 300 through 304, in determining amounts to be 
paid to or on behalf of workers by States for travel, subsistence, and 
transportation benefits to eligible AAWs. This is not a new 
requirement; the Department already requires use of the FTR for 
specified purposes in 20 CFR 617.34, 617.42, and 617.45 through 617.47. 
Nevertheless, there has been confusion in some States as to what travel 
requirements apply to the TAA Program. Subpart D, in expanding 
references to the FTR, proposed clarifications that workers using job 
search and relocation allowances are subject to the same Federal travel 
rules as employees of the Department.
    The Department is finalizing this subpart in the final rule as 
proposed, except as noted below. Where the Department received comments 
on specific paragraphs within a section, details of those paragraphs as 
proposed in the NPRM are included to provide context for the discussion 
of comments that follows. No comments were received on proposed Sec.  
618.400, and the final rule implements this section as proposed.
Section 618.405 General
    A commenter suggested adding examples of allowable activities that 
could be funded under a job search allowance. The Department has added 
a non-limiting list of examples of allowable activities to the rule 
text, though which activities are allowable may vary depending on the 
needs of the individual. Some examples of activities that may be funded 
with a job search allowance are: travel to and attendance at job fairs 
and interviews; travel to and attendance at prevocational workshops; 
making an in-person visit with a potential employer who may reasonably 
be expected to have openings for suitable employment; completing a job 
application in person with a potential employer who may reasonably be 
expected to have openings for suitable employment; going to a local 
one-stop, copy shop, Post Office, or similar entity to print, copy, 
mail, email, or fax a job application, cover letter, and/or a resume; 
going to a local one-stop, public library, community center, or similar 
entity to use online job matching systems, to search for job matches, 
request referrals, submit applications/resumes, attend workshops, and/
or apply for jobs; and, attending a professional association meeting 
for networking purposes.
Section 618.410 Applying for a Job Search Allowance
    Section 618.410 proposed the same application process that is 
described in 20 CFR 617.31, but proposed changes to the instructions on 
when to file an application. Under 20 CFR 617.31(b), an AAW who is 
covered under a petition and who is totally or partially separated may 
apply for a job search allowance before or after the Department issues 
a certification. Proposed Sec.  618.410 changed these procedures to 
require that a State accept applications for job search allowance only 
after the Department has issued a certification.
    A State workforce agency questioned whether the phrase ``who has a 
total or partial separation'' is required in paragraph (b) of this 
section, since the definition of AAW contains that concept.
    The Department agrees that this language is unnecessary and has 
modified the regulatory text of the final rule to remove that phrase 
and has made other conforming edits in paragraph (b) of this section. 
This is a nonsubstantive change.
    The same State workforce agency also asked whether it was the case 
that an AAW would need to first apply under Sec.  618.820(a) 
(determinations on initial applications under applicable State law) 
before receiving a job search allowance under this section. The 
Department affirms that the worker would have to submit an initial 
application to establish

[[Page 51920]]

eligibility because Sec.  618.410(b) requires that the worker apply for 
the job search allowance in advance of conducting the actual job search 
activity.
    A different State workforce agency opposed the proposed elimination 
in Sec.  618.410(b) of precertification applications for job search 
allowances, which it understood to impact relocation allowances as 
well. The State workforce agency said that the change would be 
unhelpful to workers, because they might not realize that they must 
apply for allowances before initiating job searches or relocations, and 
the certification process can last for months. The State workforce 
agency suggested the Department should amend the provision to allow 
workers who moved between the impact date and the certification date to 
remain eligible for relocations allowances to defray costs already 
incurred.
    Workers are not eligible for job search or relocation allowances 
under the TAA Program until after a certification is issued and they 
are determined to be AAWs. The Department maintains that it is 
necessary for States to be made aware of the worker's planned job 
search and relocation activities, at the outset, to ensure expenditures 
will be appropriate. The requirement that the FTR apply to AAWs also 
prohibits eligibility to impacted workers who are not yet covered by a 
certification. Workers needing job search assistance prior to a 
petition determination should be referred to WIOA or other partner 
programs.
    No change has been made to the regulatory text in response to these 
comments. The Department made a nonsubstantive change in paragraph (b) 
of this section, as discussed above, and otherwise adopts Sec.  618.410 
in the final rule as proposed.
Section 618.415 Eligibility for a Job Search Allowance
    Section 618.415 proposed eligibility requirements for job search 
allowances. Section 237(a)(2)(B) of the Act requires as a condition for 
receipt of a job search allowance that an AAW cannot reasonably be 
expected to secure suitable employment in his or her commuting area. 
The Department has made two edits to the use of pronouns in paragraph 
(a)(1)(i).
Section 618.415(a)(3)
    Proposed paragraph (a)(3) of this section substituted the term 
``suitable employment'' for ``suitable work'' and eliminated the 
reference to long-term duration. As proposed, suitable employment may 
exclude some work--i.e., some lower skilled and lower paying work--that 
would qualify as suitable work under a State law. Suitable employment 
is work at a substantially equal or higher skill level paying at least 
80 percent of the AAW's previous wage. Suitable employment differs from 
suitable work because, in most States, suitable work includes jobs with 
wages, skills requirements, or both that are lower than those in jobs 
that would qualify as suitable employment under the Act. Proposed 
paragraph (a)(3) also added ``employment that pays a wage of at least 
the 75th percentile of national wages, as determined by the National 
Occupational Employment Wage Estimates.'' This alternative ensures that 
AAWs who can reasonably expect to find a job that otherwise meets the 
suitable employment definition except that it pays a wage of at least 
the 75th percentile of national wages, rather than paying at least 80 
percent of the AAW's previous wage, would still be eligible for job 
search allowances.
    Numerous commenters expressed support for the new provision 
allowing employment that pays at least the 75th percentile of national 
wages (and meets other requirements) as an alternative to suitable 
employment as long as its effect is to increase the number of trade-
affected workers eligible for job search allowances. One commenter 
stated that the change would enable more workers to access the benefit, 
because it lowers the threshold for eligibility, and asked whether the 
Department planned to clarify further how to use the National 
Occupational Employment Wage Estimates, saying that its State 
``typically has lower wages.''
    One commenter said the provision is confusing and stated that it 
would need training itself before training one-stop center staff in its 
State on its implementation and also expressed concern about the 
complexity of the website containing the National Occupational 
Employment Wage Estimates referenced in the provision, saying it would 
require training to use it correctly. Another commenter requested 
clarification about whether the percentile standard is based on all 
occupations or only the occupation in which the worker is searching for 
jobs.
    The Department explains that, when applying the 75th percentile, 
the State would use the percentile for the occupation of the job in 
question. If there are multiple jobs available that might be suitable, 
the percentile for that specific occupation would apply. The Department 
will provide training on this provision.
    A State workforce agency sought clarification on the purpose of the 
phrase ``in the area of the job search,'' saying that the definition of 
``suitable employment'' does not mention such a restriction. The State 
workforce agency recommended deleting the phrase from this section.
    States are required to review the availability of suitable 
employment within the area of the job search. As expressed in the NPRM 
preamble, the Department largely expects this benefit to be used for 
workers to travel to in-person interviews or job fairs outside of their 
commuting area. A State must determine that no suitable employment is 
available to the worker in the commuting area before approving a job 
search allowance. The Department has made no change to the regulatory 
text in response to this comment.
    Multiple commenters sought clarification on the 75th percentile of 
national wages via the National Occupational Employment Wage Estimates.
    To find the 75th percentile of national wages, as determined by the 
National Occupational Employment Wage Estimates, visit the U.S. Bureau 
of Labor Statistics (BLS) web page, select the appropriate State and 
occupation for the worker, view percentile wage estimates, and locate 
the 75th percentile. Similar comments were received for the same 
provision in the relocation allowance section. The Department will 
provide training on this topic.
    A State workforce agency sought an edit to Sec.  618.415(a)(3) that 
would clarify the requirements regarding the applicability of the 
definition of suitable employment. The Department has modified the 
regulatory text by restructuring (a)(3) from a single paragraph into a 
list for clarity.
Section 618.415(a)(4)
    Proposed paragraph (a)(4) of this section established for the first 
time that the State determines whether an AAW could reasonably expect 
to find suitable employment through alternatives to a job search 
allowance, such as by having an AAW search and interview for jobs 
through electronic means.
    One commenter requested clarification about the ``alternatives to 
being physically present'' part of this provision.
    Examples of such alternatives would be telephone or video 
interviews, but this is not an exhaustive list and the Department 
encourages States to innovate in serving workers.
    The same commenter said its State permits many job search 
activities to serve as the basis for a job search allowance, including 
attendance at prevocational workshops or job fairs, ``job matching'' 
through the State's

[[Page 51921]]

system, and ``traditional'' job interviews. The commenter added that 
the State based these permissible activities on a Department-sponsored 
webinar. The commenter asked whether the proposed language meant that 
the State could approve allowances for interviews only.
    The Department confirms that all of the examples above could be 
allowable activities under the job search allowance benefit. In 
response to this comment, the Department has included a nonexhaustive 
list of allowable activities in the regulatory text at Sec.  
618.405(a).
Section 618.420 Findings Required for a Job Search Allowance
    Section 618.420 proposed what a State must find before approving a 
job search allowance, and further delineates the responsibilities 
between a liable State and an agent State, when a job search occurs in 
a different State from the liable State. Proposed subpart H, 
Administration by Applicable State Agencies, would establish the 
responsibilities of the liable State and the agent State. Specifically, 
Sec.  618.824 proposed that the liable State would make all 
determinations on each claim for program benefits, and the agent State 
would pay the costs for job search and relocation allowances.
    Proposed paragraph (b) of this section added a new requirement that 
the agent State, when requested by the liable State, must verify with 
the employer and report to the liable State whether the AAW has 
obtained suitable employment, or a bona fide offer of suitable 
employment, and pay the job search allowance.
    One commenter expressed concern that involving the agent State in 
job search allowances would complicate the process and ``frustrate a 
potentially already frustrated affected worker.'' The commenter 
recommended keeping the liable State as the party responsible for 
paying these allowances, asserting it would be more efficient than the 
Department's proposal. To be clear, if a worker is traveling outside of 
the liable State for a job search allowance, but is not accessing or 
receiving any services in the State he or she is traveling to, then the 
State to which the worker travels is not an agent State. In that 
scenario, the liable State is also the agent State.
    As liable and agent State responsibilities apply to various types 
of decisions, the Department has aligned the responsibilities in this 
final rule based on years of feedback and requests for technical 
assistance as well as reviewing requests for reserve funds. The 
Department is aligning the agent State's provision of services with 
funding for those services and is assuring the retention of the 
policies of the liable State to give strength to a seamless transition 
for the worker. Further explanation is provided in Sec.  618.824. The 
Department has made no changes to Sec.  618.420 regulatory text in the 
final rule as a result of these comments, but edited the section 
heading for Sec.  618.420 to specifically refer to a job search 
allowance.
Section 618.425 Amount of a Job Search Allowance
    Section 618.425 proposed how to calculate the amount of a job 
search allowance.
    One commenter requested clarification about the meaning of the 
phrase ``by the usual route'' with respect to the calculation of 
allowable travel expenses under proposed Sec.  618.425(a)(1).
    The Department has determined that the phrase ``by the usual 
route'' means a route by which most commuters would typically travel. 
The route is usual if it is a reasonable one and not unduly out of the 
way. The Department has made no changes to the regulatory text in the 
final rule in response to this comment.
    The same commenter also recommended adding the words ``payment or'' 
to Sec.  618.425(b), regarding the total limit for a job search 
allowance, so that it reads, in part, ``the State must reduce the job 
search allowance by the amount of the payment or reimbursement.'' This 
suggested language considers that some job search allowance costs may 
be paid directly to a provider or vendor. In those instances, those 
costs are not a reimbursement. Upon consideration, the Department has 
added the recommended language to the regulatory text in the final rule 
at Sec.  618.425(b). The Department has also made two edits to the use 
of a pronoun and related subject-verb agreement.
Section 618.430 Determination and Payment of a Job Search Allowance
    Section 618.430 proposed to require an AAW to provide supporting 
documentation upon completion of a job search in order for the State to 
make payment and requires the State to reimburse the AAW promptly.
    Proposed paragraph (d) of this section specified the evidence an 
AAW must provide to receive a job search allowance. The Department 
proposed aligning the requirements for documentation with the FTR and 
the Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards (Uniform Guidance) at 2 CFR part 200. 
At the time of the proposed rule's publication, receipts were required 
for all lodging and purchased transportation expenses. A receipt was 
also required for any expense of $75.00 or greater.
    A State workforce agency requested more specificity in paragraph 
(d) of this section about which sections of the FTR and the Uniform 
Guidance provide the applicable requirements for documentation of 
expenses. The State workforce agency also recommended revising the last 
sentence of this provision to clarify that an ``adjustment'' in cases 
where the State has advanced the worker more than the allowable amount 
means the worker must reimburse the State for the difference. The State 
workforce agency suggested modeling this recommended revision on the 
language used in Sec.  618.460(c)(2) (e.g., ``the worker must repay any 
excess received'').
    The FTR is maintained by the General Services Administration (GSA) 
and can be accessed at https://www.gsa.gov/policy-regulations/regulations/federal-travel-regulation/federal-travel-regulation-and-related-files. The Uniform Guidance is maintained by the Office of 
Management and Budget (OMB) and is available at https://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title02/2chapterII.tpl. After 
reviewing the suggestion to clarify language in Sec.  618.430(d), the 
Department concurs with the suggestion to use the same language from 
Sec.  618.460(c)(2). The Department has made nonsubstantive edits to 
this section in the final rule, including correction of a cross-
reference to the section heading of a different section, edits to the 
use of a pronoun, and a clarification of the term ``adjustment.''
Section 618.435 Job Search Program Participation
    In the NPRM, the Department proposed Sec.  618.435 as a replacement 
for 20 CFR 617.49 and to implement section 237(c) of the Act which 
provides that a State may reimburse any AAW for necessary expenses 
incurred by the worker in participating in an approved job search 
program (JSP).
    Proposed paragraph (c) of this section required that subsistence 
and transportation costs must be approved, as appropriate, for workers 
participating in a JSP and the JSP may be within or outside the AAW's 
commuting area.
    One commenter said it was not clear why transportation and 
subsistence

[[Page 51922]]

payments would be provided for travel within the worker's commuting 
area.
    A JSP is different than the job search allowance and is governed by 
a separate statutory provision. Section 237(c) of the Act provides an 
exception to the restrictions provided in section 237 governing job 
search allowances. Thus, the statutory prohibition on paying for 
transportation and subsistence within the commuting area does not apply 
to a JSP. The Department has made no change to the regulatory text in 
the final rule in response to these comments.
Section 618.440 Applying for a Relocation Allowance
    Section 618.440 of the proposed rule described the application 
process for a relocation allowance but differed from 20 CFR 617.41 on 
when to file an application.
    Proposed paragraph (b) allowed an AAW to apply for a relocation 
allowance only after the Department issues a certification covering 
that worker. This is consistent with section 238(a)(1) of the Act, 
which permits ``an [AAW] covered by a certification . . . to file an 
application for a relocation allowance.'' This mirrored the change for 
job search allowances reflected in proposed Sec.  618.410, which also 
does not permit applications until after the Department issues a 
certification. A State may not issue a relocation allowance or a 
reimbursement to anyone not covered by a certified petition for any 
reason. As previously noted in the preamble discussion of proposed 
Sec.  618.410 regarding job search allowances, the Department proposed 
this change because permitting precertification applications can raise 
workers' expectations of payments that may not become available.
    Proposed paragraph (b) of this section also contained the 
requirement that the State may approve the relocation only after an AAW 
files an application and before such worker undertakes the relocation.
    A State workforce agency questioned whether the phrase ``who has a 
total or partial separation'' is required in paragraph (b) of this 
section since the definition of AAW contains that concept. The State 
workforce agency also asked whether it was the case that an AAW would 
need to first apply under Sec.  618.820(a) (determinations on initial 
applications under applicable State law) before receiving a relocation 
allowance under this section.
    The Department explains that this question is the same as the one 
raised under the job search allowances section (Sec.  618.410) and 
reiterates that a worker must first be determined to be an AAW prior to 
submitting an application for a relocation allowance. Furthermore, an 
application for relocation allowance must be approved by the State 
prior to the beginning of the relocation. The Department has modified 
the regulatory text in the final rule to remove the language regarding 
separations since an AAW has already experienced a separation.
Section 618.445 Eligibility for a Relocation Allowance
    Proposed Sec.  618.445 on eligibility for a relocation allowance 
combined the requirements in 20 CFR 617.42 (Eligibility) and 617.43 
(Time of relocation), edited them for clarity, and made several 
significant changes.
Section 618.445(a)(5)
    Proposed Sec.  618.445(a) removed the requirement in 20 CFR 
617.42(a)(5) regarding registration with the State agency from the job 
search eligibility requirements because the Act does not contain a 
registration requirement for relocation allowance eligibility and 
because proposed Sec.  618.310 of subpart C, absent from 20 CFR part 
617, already required that States make available employment and case 
management services to all trade-affected workers. Further, proposed 
paragraph (a)(5) of this section departed from 20 CFR 617.42(a)(6) in 
three respects. Proposed paragraph (a)(5) of this section substituted a 
Federal law definition of ``suitable employment'' for ``suitable work'' 
under State law and eliminated the reference to ``affording a 
reasonable expectation of employment of long-term duration,'' because 
the concept of long-term employment is substantially included in the 
definition of ``suitable employment.'' Proposed paragraph (a)(5) of 
this section also added ``employment that pays a wage of at least the 
75th percentile for national wages, as determined by the National 
Occupational Employment Wage Estimates.'' This alternative ensures that 
AAWs who obtain or receive a bona fide offer of a job that otherwise 
meets the suitable employment definition except that it pays a wage of 
at least the 75th percentile of national wages, rather than paying at 
least 80 percent of the AAW's previous wage, would still be eligible 
for relocation allowances.
    Numerous commenters expressed support for the new provision 
allowing employment that pays at least the 75th percentile of national 
wages (and meets other requirements) as an alternative to suitable 
employment as long as its effect is to increase the number of trade-
affected workers eligible for relocation allowances. One commenter said 
the provision is confusing and stated that it would need training 
themselves before training one-stop center staff in its State on its 
implementation. The commenter also expressed concern about the 
complexity of the website containing the National Occupational 
Employment Wage Estimates referenced in the provision, saying it would 
require training to use it correctly.
    Similar comments to the above were received for Sec.  618.415 under 
the job search allowance provisions. Section 618.415 proposed the same 
use of the 75th percentile of national wages as an additional option 
for determining suitable employment for eligibility of a job search 
allowance. The comments received on that proposed rule were nearly 
identical to those in this section. The Department did not revise Sec.  
618.445(a)(5) and the final rule adopts paragraph (a)(5) of this 
section as proposed.
Section 618.445(a)(6)
    Proposed paragraph (a)(6) of this section integrated 20 CFR 
617.42(a)(7) and 617.43 and simply stated the two statutory 182-day 
time limits for beginning a relocation, instead of stating that an AAW 
must begin a relocation ``within a reasonable period'' and later 
elaborating on what is a reasonable period merely by providing the same 
deadlines as in this proposed paragraph (a)(6). Proposed Sec.  618.445 
omitted references to reasonable period to begin a relocation because 
the firm deadlines provided for an AAW beginning a relocation are 
sufficient and render moot the references to a reasonable period.
    Two State workforce agencies requested additional guidance on the 
language in Sec.  618.445(a)(6)(ii), regarding workers who have 
completed an approved training program, that conditions the time limit 
on the workers having received supplemental assistance under Sec.  
618.640(c) and (d), because the training occurred outside their 
commuting area. One of the State workforce agencies asked whether this 
provision would allow only workers who completed training with 
supplemental assistance extra time in which to begin relocation, thus 
excluding workers who did not receive supplemental assistance. The same 
State workforce agency said that such an approach would be ``manifestly 
unfair'' to workers with employment prospects outside their commuting 
area. A different commenter asked the Department to keep the time limit 
for a worker to begin relocation and receive an allowance the same to 
preserve AAWs' access to services.

[[Page 51923]]

    While the Department appreciates the commenters' input, the 182-day 
period after the conclusion of an approved training if the worker 
received supplemental assistance and transportation assistance is a 
statutory requirement found in sections 237(a)(2)(C)(ii) and 
238(a)(2)(E)(ii) of the Act. The Department does not have the authority 
to establish a different deadline. Accordingly, the Department declines 
to revise this section and this final rule adopts this section as 
proposed, with an edit to the use of a pronoun in paragraph (b).
Section 618.450 Findings Required for a Relocation Allowance
    The Department proposed Sec.  618.450 in the NPRM as the 
counterpart to 20 CFR 617.44 and delineated in this section the 
responsibilities between a liable State and an agent State with respect 
to relocation allowances when a relocation occurs to a different State 
from the liable State. Proposed subpart H established the 
responsibilities of the liable State and the agent State. Specifically, 
proposed Sec.  618.824 established that the liable State makes all 
determinations on each claim for program benefits, and the agent State 
pays the costs for job search and relocation allowances.
    One State workforce agency expressed concern that involving the 
agent State in relocation allowances would complicate the process 
unnecessarily and could confuse workers by introducing a party they 
might otherwise have no need of knowing. Two different commenters 
requested clarification about the provisions regarding assistance for 
which an agent State is responsible. One of those commenters expressed 
confusion about what the proposed language means and asked to which of 
the following situations it applies: (1) A worker moves to the agent 
State and then requests a relocation allowance for another move within 
the agent State; or (2) a worker requests a relocation allowance to 
move from the liable State to the agent State. Similarly, a different 
State workforce agency asked the Department to confirm its reading of 
the provision as meaning that, when an AAW relocates from a liable 
State, the State to which the AAW moves is the agent State, and the 
agent State is responsible for the relocation allowance. The same State 
workforce agency said it would make more sense, in that case, for the 
liable State to remain responsible for relocation allowance 
applications and payments. Conversely, the State workforce agency 
suggested that in cases where the AAW already lives outside the liable 
State and wants to relocate, whether to a different State or within 
that same State, then the State of residence should be considered the 
agent State, thus assuming responsibility for the relocation allowance. 
Several other commenters were concerned with some of the language 
regarding agent and liable States.
    If a worker is relocating to a State other than the liable State, 
but not receiving any services in the State he or she is relocating to, 
then the State to which the worker travels is not an agent State. In 
that scenario, the liable State is both the liable and agent State and 
would be responsible for making the payments.
    As liable and agent State responsibilities apply to various types 
of decisions, the Department has aligned the responsibilities in this 
final rule based on years of feedback and requests for technical 
assistance as well as reviewing requests for reserve funds. The 
Department is aligning the agent State's provision of services with 
funding for those services and is assuring the retention of the 
policies of the liable State to give strength to a seamless transition 
for the worker. Further explanation is provided in Sec.  618.824 and 
the regulatory text is unchanged. The Department has determined that 
the previous rules in 20 CFR part 617 on this topic were incomplete 
and, by making agent and liable State activities more consistent in 
this final rule, there will be less confusion in the States and reduced 
requests for technical assistance around these areas.
    Similar comments were received under the job search allowance 
provisions regarding which State is responsible for making payments. 
The Department modified the section heading for this section to 
reference a relocation allowance and corrected the citation in 
paragraph (a)(2) to reference Sec.  618.445(a)(1); otherwise, the final 
rule adopts this section as proposed.
Section 618.455 Determining the Amount of a Relocation Allowance
    Section 618.455 in the proposed rule consolidated, reorganized, and 
updated the previous requirements for determining the amount of a 
relocation allowance in 20 CFR 617.45 (Amount), 617.46 (Travel 
allowance), and 617.47 (Moving allowance).
    Proposed paragraph (a)(3)(ii) increased the allowable amount of 
insurance coverage of household goods and effects to $40,000 from 
$10,000, found in 20 CFR 617.47(a)(1). Proposed paragraph (a)(3)(iii) 
provided that, if more economical, the State may directly arrange for a 
carrier and insurer selected by the AAW to move and insure a worker's 
household goods and personal effects. Proposed paragraph (a)(3)(iii) 
also provided that the State may make payment of 90 percent of moving 
and insurance costs directly to the carrier and insurer. Under proposed 
paragraph (a)(4), a relocation allowance is paid as a lump sum equal to 
three times the worker's average weekly wage, not to exceed $1,250. The 
lump sum maximum reflects the statutory limit and is an increase from 
the $800 maximum provided in 20 CFR 617.45(a)(3).
    A State workforce agency asked whether relocation allowances pay 
for moving equipment, such as boxes and tape, dollies, and car 
trailers. This is a very fact-intensive inquiry and difficult to answer 
without additional specific information. The Department refers the 
State to the FTR and advises it to direct any additional questions to 
its appropriate regional office who can assist with answering what is a 
very fact-dependent question.
    One commenter supported the proposed increase in the amount of 
insurance coverage for a worker's household goods from $10,000 to 
$40,000, arguing that the costs of such goods have gone up considerably 
since the amount was last revised. A State workforce agency requested 
clarification about whether a State must follow procurement rules in 
carrying out proposed Sec.  618.455(a)(3)(iii), under which the State 
may make direct arrangements to relocate a worker's belongings.
    The Department affirms that States are subject to the Uniform 
Guidance, which requires States to use their non-Federal procurement 
standards.
    Two commenters supported the full amount of a relocation allowance 
being paid as a lump sum. One of the commenters stated that the amounts 
available to workers for relocation are still ``minimal,'' but said 
paying the total allowance in one installment would be more effective 
than distributing it over time. Similarly citing research showing the 
importance of income and reemployment supports to displaced workers, 
the other commenter stated that the financial effects of job loss can 
be substantial and stated that enhancing access to such supports can 
help these workers search for jobs more effectively.
    The Department concludes that this practice will limit the 
financial strain experienced by workers as they transition to new 
employment. The Department has made six minor edits in paragraph (a) 
related to the use of

[[Page 51924]]

pronouns, and otherwise adopts this section in the final rule as 
proposed.
Section 618.460 Determinations and Payment of a Relocation Allowance
    Proposed Sec.  618.460 regarding determinations and payment of a 
relocation allowance served the same purpose as 20 CFR 617.48 (Time and 
method of payment), with some changes and reorganization. Nothing in 
Sec.  618.460 as proposed departed in substance from 20 CFR 617.48 
except for the requirements that an AAW be covered by a certification 
as a condition of the State accepting an application, and that workers 
submit documentation supporting all lodging, transportation, and meal 
expenses to be reimbursed by the State. This documentation is required 
for the same reasons it is required for workers seeking reimbursement 
of expenses through the job search allowance. Section 618.460 as 
proposed also reorganized the provisions of 20 CFR 617.48 and revised 
them for greater clarity.
Proposed Paragraph (c)
    Proposed paragraph (c) specified what the AAW must provide for 
expenses to be reimbursed by a State under a relocation allowance. This 
specification served to clarify 20 CFR 617.48(b)(1)(ii) by requiring 
workers to provide documentation in accordance with the FTR and the 
Uniform Guidance. At the time of the proposed rule's publication, this 
included receipts for all lodging, purchased transportation, and any 
expense equal to or greater than $75.00.
    Several commenters expressed concerns about advance payments for 
relocation allowances. Some of these commenters argued that collecting 
overpayments would be challenging. Those commenters said receipts and 
evidence of completion should be required for payment and they argued 
that sometimes the only approach that will guarantee a worker follows 
the rules and remains in contact with staff is the ``promise'' of 
future payment, especially if the worker has moved across State lines. 
Two commenters said compliance with the proposal would require changes 
to laws, policies and procedures, or systems in States that currently 
do not allow advance payments. A different commenter said that 
sometimes moves occur so rapidly that the fiscal department does not 
have enough time to process the payment in advance. A State workforce 
agency said that mandating advance payments by States could weaken 
accountability and encourage fraud. The State workforce agency also 
stated that tracking receipts after payment has already been received 
could be burdensome for workers and suggested reimbursement based on 
known costs as a more streamlined approach. Two commenters said that, 
if paid in advance of a relocation, workers and their families would be 
less likely to ``cooperate'' when it came time to submit documentation 
of the actual costs incurred. One of the commenters suggested instead 
paying 50 to 60 percent up front with the remainder payable upon 
completion of the move. A commenter recommended making advance payment 
optional by replacing the word ``must'' with ``may.''
    With respect to the commenters' concerns about the practice of 
advancing funds to AAWs related to relocation expenses, the Department 
advises that this is not a new requirement. The goal of this subpart D 
is to convey the importance of reducing the financial stress placed on 
workers as they transition to new employment by reducing their out-of-
pocket expenses at a time when they may still be unemployed and by 
minimizing delays caused by reimbursement procedures. The requirement 
to advance funds is not optional and States may not apply a percentage 
limit that is not authorized in this final rule. These payments are 
subject to the overpayment provisions contained in subpart H at Sec.  
618.832 and workers should be advised of that at the time the advances 
are paid.
    Another commenter raised similar concerns regarding advance payment 
of the lump sum benefit. The lump sum benefit, however, does not 
require repayment as it may assist AAWs with out-of-pocket and 
incidental moving expenses not directly reimbursed through the 
relocation benefit.
    The Department is finalizing this provision in the final rule as 
proposed, with the exception of an edit to the use of a pronoun.
Other Comments on Determinations and Payment of a Relocation Allowance
    A State workforce agency requested clarification about how to 
calculate and administer relocation allowances. A different State 
workforce agency asked for more specificity in paragraph (c)(2) as to 
which sections of the FTR and the Uniform Guidance contain the 
applicable requirements for documentation of expenses. The Department 
refers the States to 41 CFR part 302, which provides the applicable 
regulations for relocation costs.
Paragraphs (d) and (f)
    Proposed paragraphs (d) and (f) incorporated the provisions from 20 
CFR 617.48(b) and (d).
    One commenter expressed confusion about the intent of paragraph 
(d)(1) of this section, regarding the use of commercial carriers to 
move a worker's belongings, and stated its interpretation of the 
provision as follows: If the AAW is the one paying the carrier and 
insurer, then the State must advance payment to the AAW, but if the 
State is paying, then it must pay the carrier and insurer directly 
before the scheduled shipment. The Department also made a similar 
change in Sec.  618.460(c) to make the same clarification for payment 
of travel allowances. The same commenter said that if this 
interpretation is correct, then the Department should rewrite the 
provision to make that meaning clearer.
    After considering this comment, the Department concludes that the 
regulatory text in Sec.  618.460(d)(1) could be clearer and has moved 
the provision proposed as Sec.  618.460(d)(1)(iii) to Sec.  
618.460(d)(1) and rephrased it to clarify that, if the State is paying 
for the commercial carrier, that payment must be made in advance. The 
Department also made two edits to the use of pronouns in paragraph (d).
    The same commenter also said it was ``unsure about the logic'' of 
the final sentence in paragraph (d)(1) of this section. Specifically, 
the commenter asked whether it means that payment must be made either 
exactly 10 days before shipment or at the time of shipment, but cannot 
be made at any point in between. Finally, the commenter questioned 
whether the purpose of the provision was to bar payment more than 10 
days before shipment or to require payment within 10 days before 
shipment, and it said the latter framing would correspond to language 
in paragraph (d)(2) of this section. The Department agrees that this 
section could be clearer. A 10-day advanced payment window was 
established in order to limit the financial impact on workers during a 
time of transition to new employment.
    The Department has moved the provision proposed in Sec.  618.460(d) 
(1)(iii) to Sec.  618.460(d)(1) and rephrased it to clarify that the 
payment must be made no earlier than 10 days in advance and no later 
than at the time of the scheduled shipment.
    The same commenter also requested clarification about paragraph 
(f), concerning when relocation is considered complete, asking whether 
it is the case that delivery of belongings to temporary storage 
completes relocation, but only if the storage is within the area of 
relocation (as opposed to the area from which the worker moved). The 
commenter suggested that the first sentence could be clarified by 
reversing

[[Page 51925]]

the order of the ``area of relocation'' and ``temporary storage'' 
clauses so that it reads as follows: ``An AAW completes a relocation 
when the worker and family, if any, along with household goods and 
personal effects are delivered to the new residence or to a temporary 
storage within the area of relocation.'' While in most cases the 
commenter is correct that the relocation is completed when the last of 
the household goods are delivered to the new residence, to maintain the 
flexibility to fit all applicable workers, the Department did not 
further define the completion of a relocation because this will vary 
from worker to worker. The Department made a minor edit to the use of a 
pronoun in paragraph (e).

E. Subpart E--Reemployment Trade Adjustment Assistance

    Subpart E governs RTAA. TGAAA established the RTAA program to 
replace the demonstration project known as ATAA, established by TAARA 
2002. This subpart prescribes regulations implementing provisions in 
section 246 of the Act and incorporates administrative guidance. Before 
subpart E, there were no regulations covering the RTAA program.
    RTAA provides wage supplements to eligible AAWs, aged 50 and older, 
who return to work earning less than their adversely affected 
employment and $50,000 or less per year. AAWs receiving RTAA also may 
be eligible to receive employment and case management services, job 
search and relocation allowances, and TAA approved training. If the 
HCTC benefit is available, RTAA recipients are eligible to apply for or 
claim the HCTC. The goal of RTAA is to encourage reemployment for older 
workers who may find it difficult to secure a new job that pays as much 
as their old job.
    Section 246(a)(3) of the Act sets forth the eligibility criteria 
for RTAA. An AAW is eligible for RTAA after beginning a new, full-time 
job at a firm other than the one from which the AAW was separated (or 
combination of jobs at firms that equate to full-time employment) that 
pays less (or collectively pays less if a combination of jobs) than the 
AAW's adversely affected employment, or after beginning TAA approved 
training while reemployed at least 20 hours per week at a new job with 
a firm other than the one from which the AAW was separated.
    Compared to ATAA, RTAA expands the range of benefits available by 
permitting training while receiving RTAA, and by allowing receipt of 
RTAA after such training is completed, if the AAW otherwise meets 
eligibility requirements. This subpart E permits eligible AAWs to 
remain eligible for RTAA when employed part-time, provided that the AAW 
is enrolled in TAA approved training. Some AAWs may receive a TRA, the 
income support component of the TAA Program, before receiving their 
first RTAA benefit payment. For such workers, section 246(a)(4) of the 
Act requires reduction in the RTAA eligibility period by the number of 
weeks of TRA received as well as a reduction in the maximum RTAA amount 
payable.
    Where the Department received comments on specific paragraphs 
within a section, details of those paragraphs as proposed in the NPRM 
are included to provide context for the discussion of comments that 
follows. No comments were received on proposed Sec. Sec.  618.500 and 
618.530, and the final rule implements these sections as proposed.
Section 618.500 Scope
    Proposed Sec.  618.500 set forth the scope of this subpart. It 
included an explanation of what RTAA is, and explained that this 
subpart identifies the eligibility criteria and the benefits available 
to AAWs who are eligible for RTAA.
    The Department received no substantive comments on this section. 
Accordingly, it is adopted into the final rule as proposed.
Section 618.505 Individual Eligibility
    Section 618.505 as proposed enumerated the eligibility criteria for 
RTAA, as set forth in section 246 of the Act.
Paragraph (a)
    Proposed paragraph (a) outlined the general age, wage, and 
reemployment requirements to be eligible for RTAA. Proposed paragraph 
(a)(4)(i) codified that the determination of whether an AAW is employed 
full-time is based on the definition of full-time employment in the 
State in which he or she is employed.
    One commenter wrote that the wage cutoff of not more than $50,000 
in Sec.  618.505(a) should be reconsidered, recommending that it either 
be set to the 75th percentile of national wages according to National 
Occupational Employment Wage Estimates or based on workers' ``customary 
job classification.'' The same commenter maintained that RTAA should 
protect workers who accept lower paying jobs rather than partial 
separation. Another commenter wrote that the salary cap and 
compensation available to RTAA recipients should be raised in light of 
wage increases since 2002. The Department reiterates that the limit on 
earnings for RTAA recipients is set by statute at section 
246(a)(3)(B)(ii) of the Act, as is the total amount of the benefit, 
which is set by section 246(a)(5)(A)(i) of the Act. The Department does 
not have the authority to increase either of these limits. However, the 
Department has revised the regulatory text in Sec.  618.505(a)(2) to 
remove the word ``calendar'' and to add language regarding the 
projection of earnings. The language regarding projected earnings has 
also been added to Sec.  618.505(a)(3).
    One commenter wrote that proposed Sec.  618.505(a)(4)(i) appeared 
to conflict with TAARA 2015, which it said allowed full-time RTAA 
participants to participate in the TAA Program as well. There is a 
statement contained in Sec.  618.505(a)(4) that it is either full-time 
employment or a combination of employment and training that provides 
eligibility.
    The same commenter added that the provision also appears to be 
contradicted by proposed Sec.  618.520(b), which provided that RTAA 
recipients are eligible for TAA Program employment and case management 
services and training. The Department reiterates that RTAA participants 
are eligible for employment and case management services and training. 
The regulatory text at Sec.  618.505(a)(4)(i) does not exclude workers 
who are employed full-time and also enrolled in training; it is 
intended only to make clear that workers employed full-time that 
otherwise meet the RTAA requirements need not be in training to receive 
the benefit.
    A nonprofit public policy organization supported providing wage 
insurance to part-time workers receiving TAA approved training, writing 
that doing so will help workers balance work and education. The 
Department appreciates the commenter's support.
Paragraph (b)
    Proposed paragraph (b) explained terms specifically for the 
purposes of RTAA. As explained in more detail in the preamble to 
subpart A in the NPRM, the proposed definition of ``firm'' revised the 
term at 29 CFR 90.2. Of note, the proposed definition of ``firm'' 
incorporated the definition set forth at section 247(3) of the Act. 
Pursuant to the Act, the term ``firm'' means ``a firm, including an 
agricultural firm or service sector firm; [or] an appropriate 
subdivision thereof.'' Therefore, the term ``firm'' in the RTAA context 
means ``firm or appropriate subdivision.''
    Proposed paragraph (b)(1) provided instructions to States on how to 
make decisions relative to determining RTAA

[[Page 51926]]

eligibility based on whether or not the Department issued a 
certification for a subdivision of a firm or the entire firm. Proposed 
paragraph (b)(2) explained that the term ``firm'' includes predecessors 
and successors-in-interest, affiliated firms, and continuity of 
operations at the same location. The proposed regulatory text 
established several criteria in descending order that the State should 
apply to determine whether one firm is a successor-in-interest to 
another, including a list of conditions at paragraphs (b)(3)(i) through 
(vii) that a State may need to consider when rendering a determination. 
The intent of this provision was to assist States in determining 
whether the AAW has become employed by a ``firm'' that is different 
from the ``firm'' from which the worker was separated in accordance 
with section 246(a)(3)(B)(iv) of the Act.
    A commenter wrote that proposed Sec.  618.505(b)(2)(iii) has two 
seemingly contradictory statements on the RTAA eligibility of workers 
reemployed with a successor-in-interest to their former firm. The same 
commenter also questioned why these statements are located in Sec.  
618.505 and suggested relocating them to ``another section'' without 
specifying which one. The Department found no contradiction in the 
regulatory text. The intent of the regulation is to prohibit a 
situation where a firm is sold to a successor-in-interest and the AAWs' 
wages are then cut, resulting in the payment of RTAA to continue to 
provide workers with similar wages and shifting the burden from the 
employer to the government.
    One commenter asked for further guidance on the term 
``continuity,'' as used in proposed Sec.  618.505(b)(3). The commenter 
also asked if the term ``majority'' should be interpreted to mean that 
at least four of seven criteria apply. The Department is choosing not 
to define either of these terms in regulatory text to allow flexibility 
for States to interpret the test. With regard to continuity, there may 
be a short gap in operations from the firm to the successor.
    The Department has added, for purposes of RTAA, a definition of the 
term ``year.'' For purposes of RTAA, a year represents the 12-month 
period beginning with the first full week of qualifying reemployment. 
This definition was added to resolve the issues with earnings 
projections for eligibility and continued eligibility in Sec.  
618.515(a)(3).
Paragraph (c)
    Proposed paragraph (c) explained that, for purposes of RTAA, full-
time employment is defined by the law applicable to the State in which 
the reemployment occurs. The Department proposed to define State law in 
Sec.  618.110 as the State UI law. Proposed paragraph (c)(1) explained 
that if State law does not contain a definition of full-time 
employment, the State is required to define full-time employment for 
RTAA purposes. Proposed paragraph (c)(2) required the State to verify 
reemployment in accordance with State policies. Verification of the 
firm can occur by such communication methods as email, phone call, 
certified letter, or other means determined by the State. Proposed 
paragraph (c)(3) established that if an AAW has multiple jobs, the 
State must combine hours of all employment to determine whether the 
worker meets the definition of full-time employment. Proposed paragraph 
(c)(4) provided that if the worker is employed in more than one State, 
the State must apply the State law with the lowest threshold of hours 
required for full-time employment.
    A State workforce agency recommended altering Sec.  
618.505(c)(4)(i) (the Department believes the commenter is referring to 
Sec.  618.505(a)(4)(i)) to make the applicable definition for ``full-
time employment'' correspond with that of the liable State, rather than 
the State in which the AAW is employed. The Department explains that 
the liable State must still make the determination based on the 
definition of full-time employment of the State in which the AAW is 
reemployed. The Department is making no change to this practice.
    A State workforce agency recommended that workers at successor-in-
interest firms be eligible for RTAA when they work for reduced wages, 
arguing that they should be able to accept suitable employment without 
risking their UI benefits. The State workforce agency said that this 
practice could help older workers especially find reemployment while 
receiving modest RTAA subsidies. The Department declines to adopt this 
suggestion and is making no change to regulatory text as proposed 
because section 246(a)(3)(A)(iv) of the Act expressly prohibits payment 
of RTAA to an AAW who is employed at the firm from which he or she was 
separated, and a successor-in-interest, as defined in this final rule, 
is considered to be the same firm.
    One commenter wrote that, regarding the requirement in proposed 
paragraph (c)(1) that States define full-time employment, the commenter 
was currently using a definition from adjudicatory decisions rather 
than from a State statute, as no such statute had yet been passed. The 
Department advises that if there is no definition of full-time 
employment in applicable State law, use of adjudicatory decisions or 
similar determinations would be appropriate. The State also is 
permitted, under Sec.  618.808 to establish a definition for TAA 
Program purposes.
Paragraph (d)
    Proposed paragraph (d) provided that an application or eligibility 
for UI is not needed for RTAA purposes. There is no direct relationship 
between UI and RTAA. Eligibility for RTAA is not dependent on 
eligibility for UI. No comments were received on this paragraph.
Paragraph (e)
    Lastly, proposed paragraph (e) explained the types of employment 
that are considered qualifying reemployment for RTAA. Proposed 
paragraph (e)(1) established that qualifying reemployment under RTAA is 
the same as covered employment for UI purposes. Proposed paragraph 
(e)(2) explicitly allowed a State to consider employment that provides 
wages plus commission, and piecework-based employment to be 
reemployment when determining RTAA eligibility. The Department proposes 
to authorize these specific types of employment to ensure that States 
are not limiting reemployment opportunities. Proposed paragraph (e)(3) 
provided that qualifying reemployment may include multiple jobs. In 
some instances, an AAW may have multiple part-time jobs instead of a 
single full-time job. This flexibility will allow AAWs to combine 
multiple part-time jobs to be considered full-time employment. Proposed 
paragraph (e)(4) provided that the State must count hours in which an 
RTAA-eligible worker is on employer-authorized leave as hours of work 
for purposes of meeting the full- or part-time employment definitions 
of this section, provided that doing so is consistent with State law. 
The Department found that States were not counting holidays or leave as 
hours of employment. This resulted in States disqualifying AAWs when 
there was a paid, observed holiday because the AAW did not ``work'' 
those hours, or in instances where the worker may have used a sick day.
    A State workforce agency requested that the Department reconcile an 
apparent conflict between proposed paragraphs (c)(4) and (e)(3). The 
State workforce agency provided an example scenario of a worker 
employed in two States, one of which does not allow for the 
consideration of multiple jobs in

[[Page 51927]]

determining full-time employment. The Department refers the State to 
the appropriate regional office for these type of hypothetical 
scenarios. In general, when there is disagreement between agent and 
liable States, it is vital that the regional office be involved in 
resolving any potential conflicts as there are likely multiple factors 
to consider.
    No changes were made to the regulatory text and the proposed 
language was adopted in the final rule.
Section 618.510 Eligibility Period for Payments of Reemployment Trade 
Adjustment Assistance and Application Deadline
    Section 618.510 of the NPRM set forth the eligibility period for 
payments of RTAA as provided by section 246(a)(4) of the Act.
    Proposed paragraph (a) provided that, for an AAW who has not 
received TRA, the worker may receive RTAA benefits for a period not to 
exceed 104 weeks (2 years) beginning on the earlier of the date on 
which the worker exhausts all rights to UI based on the separation of 
the worker from the adversely affected employment that is the basis of 
the certification, or the date on which the worker first begins 
qualifying reemployment as described in Sec.  618.505(e).
    One commenter recommended eliminating the words ``the earlier of'' 
at the beginning of Sec.  618.510(a), writing that the requirement 
complicates finding the effective date for RTAA claims. The commenter 
instead proposed that an eligibility period of 2 years from the date on 
which a worker begins qualifying employment be applicable for workers 
who have not received TRA. The eligibility period is defined in the 
statute at section 246(a)(4) and includes the ``earlier of'' language. 
The Department does not have the authority to change this via 
regulations. Accordingly, the Department is finalizing this section in 
the final rule as proposed.
Section 618.515 Continuing Eligibility and Timing of Payments
    Section 618.515 of the proposed rule explained the requirements for 
an AAW's continued eligibility under RTAA and the timing of payments.
    Proposed paragraph (a)(1) allowed workers to change jobs without 
loss of access to RTAA so long as the worker continues to meet other 
eligibility criteria. Proposed paragraph (a)(2) prohibited the payment 
of RTAA during a period of unemployment and provided that the AAW may 
resume receipt of RTAA payments upon obtaining qualifying reemployment 
for the remaining portion of the eligibility period. Section 246(a)(7) 
of the Act prohibits payment of TRA and RTAA for the same week.
    Proposed paragraph (a)(3) established a requirement that if the 
computed annualized reemployment wages exceed $50,000, no additional 
RTAA payments could be made unless conditions were to change again, 
resulting in recomputed annualized reemployment wages of $50,000 or 
less. This provision was proposed to reduce the likelihood and number 
of overpayments that would otherwise occur.
    One commenter wrote that the proposal would unfairly impact workers 
in fields with variable income streams, such as commission-based 
workers for whom a single high earning month could result in them 
losing a year of eligibility. The same commenter recommended aligning 
the proposal with how overtime is handled, where overtime does not 
count toward payments that could disqualify a worker. Another commenter 
expressed similar concerns, likewise stating that workers being paid by 
commission could be heavily impacted by the proposal and that Sec.  
618.515(a)(3) would impose administrative burdens on States. The 
Department concludes that the statute does not allow the Department to 
exclude overtime. The Department has made revisions to the regulatory 
text to address these concerns.
    A State workforce agency stated that Sec. Sec.  618.505(a)(2) and 
618.515(a)(3) seemed to conflict as to whether overtime pay should be 
included in the calculation of wages and asked if the latter would 
allow workers to receive RTAA until their cumulative wages exceeded the 
annual limit. The Department agrees with the State that there is a 
conflict in the proposed rule. Upon further review, the Department has 
concluded that it has no legal basis to exclude overtime in calculating 
RTAA payments. Section 618.505(a)(2) has been modified in the final 
rule to remove the exclusion of overtime pay. Section 618.515(a)(3) has 
also been modified to delete the reference to a calendar year and add 
the requirement that States must calculate projected earnings for the 
year to determine continued eligibility.
    With respect to the State's suggestion that there is some confusion 
regarding the language involving the $50,000 wage limit and calendar 
years and its query whether workers would be allowed to receive RTAA 
until their cumulative wages exceed $50,000, this final rule deletes 
all references to the word ``calendar'' from subpart E and defines 
``year'' for RTAA purposes at Sec.  618.505(b)(4). Further, under 
existing administrative guidance, at the point a worker's annualized 
reemployment wages are projected to be above $50,000, RTAA is stopped 
until such time as a recalculation shows an annualized reemployment 
wage of $50,000 or less. Workers remain otherwise eligible for RTAA 
until they actually earn, or are projected to earn, $50,000 in a year--
as now defined in Sec.  618.505(b)(4) for purposes of RTAA. Section 
618.515(a)(3) and (d)(1) have been modified in the final rule to codify 
this requirement.
    An AAW who is approved for RTAA and who continues to meet the 
eligibility criteria will be paid RTAA benefits until the end of the 
eligibility period or the payment of $10,000, whichever occurs first. 
The State will need to assess each RTAA recipient's continuing 
eligibility for RTAA. Whether RTAA entitlement is based upon part-time 
(at least 20 hours) or full-time employment, the State must verify the 
worker's employment and wage status on at least a monthly basis. If the 
worker is employed part-time (at least 20 hours per week) and receiving 
RTAA while in TAA approved training, the State must, on a monthly 
basis, verify participation in the training. The determination of 
annualized reemployment wages is made prospectively. An AAW meets the 
``earns not more than $50,000 a year in wages from reemployment'' 
requirement in section 246 of the Act for a given month if the monthly 
determination of annualized reemployment wages that results in wages of 
less than $50,000 is accurate and complete at the time it is made.
    RTAA payments stop in the event of any one of the following: (1) 
The AAW's annualized wages from reemployment exceed $50,000 in a year; 
(2) the AAW no longer meets the reemployment requirement through either 
full-time work or a combination of TAA approved training and at least 
20 hours of work; (3) the AAW has received the maximum amount of RTAA; 
or (4) the AAW has reached the end of the RTAA eligibility period. The 
final rule adopts the same practice.
    One commenter wrote that workers who separate from employment that 
would put them above the $50,000 limit should be eligible for RTAA if 
they find reemployment with wages below the limit. A worker can change 
jobs or obtain multiple jobs, but the earnings limit remains $50,000. 
If the worker's wages for the year are below $50,000, they will be 
otherwise eligible for RTAA.

[[Page 51928]]

    One commenter wrote that monthly verification for RTAA could be 
administratively burdensome, as such a schedule would not line up with 
UI or wage record reporting cycles, and recommended shifting to a 
quarterly cycle. The Department clarifies that current practice is that 
RTAA must be paid no less than monthly. Payment of RTAA is not related 
to UI wage record reporting. Monthly verification also reduces the 
possibility of overpayments.
    A State workforce agency said that the proposed rule appeared to 
drop a requirement set forth in administrative guidance for States to 
verify the training enrollment status of RTAA participants every 30 
days. This was an oversight by the Department. There was no intention 
to eliminate this requirement. The Department has modified the 
regulatory text in the final rule at Sec.  618.515(a)(4) to retain this 
provision. If an RTAA recipient is employed on less than a full-time 
basis, he or she also must be participating in approved training to 
remain eligible for RTAA. This requirement is intended to reduce 
improper payments and to ensure that participants are still 
participating in training since there are potential financial 
ramifications if a participant does not complete training.
    The Department has revised Sec.  618.515(d)(1) and (2) to remove 
the word ``calendar'' before year. The Department has also added 
language regarding projected earnings in paragraph (d)(1). These 
changes were made based on comments received on proposed Sec. Sec.  
618.505 and 618.515 seeking clarification of calendar year and more 
definitive guidance on the $50,000 earnings limit and to ensure that 
determinations of eligibility for RTAA are as accurate as possible.
Section 618.520 Benefits Available to Eligible Adversely Affected 
Workers
    Section 618.520 of the proposed rule detailed the benefits 
available under RTAA as provided by section 246(a)(2) of the Act. 
Benefits available include wage subsidies, training, job search and 
relocation allowances, and, if available, the HCTC.
    Proposed paragraphs (a)(2)(i) and (ii) provided the computations 
for annualized wages at separation and annualized wages from 
reemployment, respectively. A State would compute annualized wages at 
separation by multiplying the AAW's hourly rate during the last full 
week of the AAW's regular schedule in adversely affected employment by 
the number of hours the AAW worked during the last full week of such 
employment, multiplied by 52 (i.e., the number of weeks in a year). 
Proposed paragraph (a)(2)(i) referred to the AAW's ``regular schedule'' 
and also excluded certain types of compensation from the meaning of 
``wages,'' because certain types of work hours and compensation are too 
speculative and cannot be anticipated in computing annualized wages 
from reemployment under paragraph (a)(2)(ii) of this section.
    Proposed paragraph (e) established the restriction that once an AAW 
has received a payment under RTAA, he or she is no longer eligible to 
receive TRA.
    A State workforce agency requested clarification as to whether RTAA 
requires a full week of reemployment or whether States may prorate 
partial weeks. The comparison of wages for RTAA eligibility must be 
from the last actual full week of employment prior to separation and a 
full week of qualifying reemployment, whether actual or projected. This 
allows for a fair comparison of the wages.
    One commenter asked whether commissions are included in the 
annualized wages calculation. For purposes of RTAA, the Department 
affirms that commissions are included in this calculation as well as 
overtime, bonuses, etc. In the discussion of Sec.  618.515, above, the 
Department clarified that the statute does not allow for the exclusion 
of overtime. The section of this final rule has been modified in 
paragraphs (2)(i) and (ii) to remove the exclusion of overtime pay.
    One commenter asked whether the Department would consider raising 
the maximum RTAA compensation in order to reflect better the economic 
climate. The income limits and benefit amounts under RTAA are 
established by section 246 of the Act. The Department does not have the 
authority to adjust these limits.
    A State workforce agency recommended clarifying that States must 
instruct AAWs on their waiver of TRA benefits and the maximum value of 
RTAA benefits they may receive. The Department concurs this is a good 
practice, but has concluded it is unnecessary to regulate this 
activity. The statute does not explicitly require a notice of this 
type, as the AAW is not waiving TRA benefits. Rather, by receiving RTAA 
benefits, he or she is losing access to TRA benefits. The Department 
concludes that the decision on whether to provide this type of notice 
should be left to the individual States.
    The Department is finalizing this section in the final rule by 
removing the exclusion of overtime pay under paragraphs (a)(2)(i) and 
(ii) and editing the use of a pronoun in paragraph (e). The rest of 
this section is adopted in this final rule as proposed.
Section 618.525 Determinations, Redeterminations, and Appeals
    Section 618.525 explained the requirements related to 
determinations, redeterminations, and appeals under RTAA.
    Proposed paragraph (a)(3) allowed an AAW to file a new application 
each time the AAW is reemployed and obtain RTAA if the AAW meets the 
criteria of proposed Sec.  618.505(a) at the time of filing of the new 
application, even if the State previously denied a prior application.
    Proposed paragraph (a)(4) provided that a State may approve a RTAA 
payment and pay it retroactively to an AAW who is covered by a TAA 
certification but who becomes reemployed before the Department issues 
the certification, provided the AAW otherwise meets eligibility 
requirements of Sec.  618.505(a). Retroactive payments are explained in 
the discussion of proposed Sec.  618.505.
    One commenter pointed out an error in Sec.  618.525(a)(3), which 
stated that the denial of eligibility based on a ``first'' reemployment 
was subject to appeal. The Department was referring to an initial 
application for eligibility, but concurs that this should be made 
clearer. Therefore, the Department has removed the word ``first'' from 
Sec.  618.525(a)(3) and replaced it with ``nonqualifying'' to clarify 
that an AAW who is denied eligibility based on nonqualifying employment 
may file a new application for a subsequent reemployment. Any denial of 
RTAA benefits is subject to appeal subject to the provisions of Sec.  
618.828. The final rule adopts this section as proposed, with the 
update to the filing requirements in Sec.  618.525(a)(3).
    One commenter asked whether States could process retroactive RTAA 
payments and whether retroactive payments under proposed paragraph 
(a)(4) would be available only to full-time reemployed RTAA 
participants. In response, the Department affirms that RTAA payments 
can be made retroactively if an AAW was otherwise eligible, experienced 
a total separation from adversely affected employment, but was 
reemployed prior to certification. Retroactive payments may be made 
whether the worker was employed on a full- or part-time basis. 
Retroactive payments are also allowable in situations where an AAW was 
denied RTAA based on the projection of annual reemployment earnings 
over $50,000 but where the AAW did not actually end up earning over 
$50,000 in that year. However, the Department made nonsubstantive edits 
to correct two

[[Page 51929]]

cross-references in paragraph (a) of this section, including correcting 
the section headings of the sections cited; otherwise, the final rule 
adopts this section as proposed.

F. Subpart F--Training Services

    Subpart F governs the training portion of the TAA Program. Training 
is an opportunity to gain skills and reenter the workforce after a 
total or partial separation or threat of separation from adversely 
affected employment. The TAA Program's goal is to help each trade-
affected worker participating in the program obtain suitable employment 
when possible and nonsuitable employment otherwise. Training under the 
TAA Program should assist a trade-affected worker in obtaining the 
skills necessary for employment as quickly as possible and at a 
reasonable cost. With those principles in mind, training should allow 
workers to compete for the highest paying employment achievable given 
their preexisting skills, abilities, and education and the current and 
projected job market.
    TAA Program approval of a training program entitles a trade-
affected worker to the payment of the costs of that training and 
related costs, subject to a number of limitations described in this 
subpart. Participation in a TAA approved training program is an 
eligibility requirement for TRA, with certain exceptions, as explained 
in subpart G. Under section 236(a)(6) of the Act workers may still be 
entitled to TRA and other TAA Program benefits if other funding sources 
pay all or part of the costs of a TAA approved training program.
    Subpart F applies the FTR, at 41 CFR chapters 300 through 304, to 
States providing TAA Program training participants with supplemental 
assistance in the form of subsistence and transportation benefits. This 
is not a new policy. The Department already enforces this requirement 
under several provisions in the previous regulations, including 20 CFR 
617.27 and 617.28, which reference the use of the FTR. This measure 
ensures uniform access to subsistence and transportation benefits. TAA 
Program training participants travel under the same rules as employees 
of the Department. Some key changes covered in this subpart F include 
expansion of apprenticeship training, approvable part-time training, 
parameters for serving AAIWs, benchmark requirements to meet Completion 
TRA eligibility, and procedures for amending approved training 
programs.
Section 618.600 Scope
    Proposed Sec.  618.600 provided the scope of proposed subpart F. 
This section explained that the goal of training is to help trade-
affected workers obtain the skills necessary to get back to work as 
quickly as possible at a reasonable training cost. The goal for 
reemployment is suitable employment, or reemployment that pays as much 
or more than the trade-affected worker's adversely affected employment, 
but obtaining suitable employment is not a requirement to approve 
training.
    One commenter recommended changing the third sentence of Sec.  
618.600, which states that States should prefer training that replaces 
100 percent or more of a trade-affected worker's wages in adversely 
affected employment by substituting the words ``is expected to 
replace'' for the word ``replaces.'' The Department has not changed the 
regulatory text in the final rule, as the suggested revision has the 
same meaning as the proposed regulatory text.
Section 618.605 General Procedures
    Proposed Sec.  618.605 was derived, in part, from 20 CFR 617.20. 
This section discussed general procedures for trade-affected workers to 
apply for training, as well as other procedures States must follow in 
making determinations on applications for training.
    Proposed paragraph (a) required States to ensure that every trade-
affected worker has an initial assessment and that a comprehensive and 
specialized assessment has been made available to them, as required in 
proposed subpart C. Proposed paragraph (b) addressed applications for 
training, as well as for transportation and subsistence payments. It 
reflected more accurately that applications must be made to the States 
in accordance with their policies and procedures. Proposed paragraph 
(c) specified that decisions on selection of, approval for, or referral 
of a trade-affected worker to training, including whether to provide 
TAA Program-funded transportation and subsistence payments, are 
determinations to which apply Sec.  618.820 (determinations of 
eligibility; notices to individuals), Sec.  618.824 (liable State and 
agent State responsibilities), and Sec.  618.828 (appeals and 
hearings).
    Proposed paragraph (d)(1) required States to explore, identify, and 
secure training opportunities to ensure trade-affected workers return 
to employment as soon as possible. States must use all necessary and 
reasonable means to find appropriate training where no appropriate 
training opportunities exist. Proposed paragraph (d)(2) provided that 
TAA Program funds may be used to create customized, group training 
opportunities in order to serve a particular dislocation event where 
available education and training programs are not sufficient. Proposed 
paragraph (d)(3) required States to coordinate with other public and 
private agencies, in cooperation with LWDBs, to ensure a wide range of 
training opportunities are available to trade-affected workers in high-
demand occupations. Proposed paragraph (e) allowed training for trade-
affected workers any time after their certification date without regard 
to whether such worker has applied for or exhausted UI.
    One commenter expressed concern that the provision at Sec.  
618.605(a) did not distinguish between all trade-affected workers and 
those that choose to participate in the TAA Program. The same commenter 
recommended qualifying the term ``trade-affected workers'' with ``who 
are participating in the TAA Program'' to account for the fact that 
some trade-affected workers may not initiate or complete applications 
to participate. The definition of the term ``trade-affected worker'' in 
Sec.  618.110 means both ``adversely affected workers'' and ``adversely 
affected incumbent workers.'' When a member of a worker group 
individually applies for TAA Program benefits and services, that is 
when the State determines if he or she is an AAW or AAIW (trade-
affected worker).
    The same commenter also recommended changing the third sentence of 
Sec.  618.605(a) by adding the words ``that includes training'' after 
``an IEP.'' The Department affirms that the rule provides that a trade-
affected worker might not have an IEP, as discussed under subpart C. 
However, if an IEP does not contain a proposed training program, this 
would not apply. No changes have been made to the regulatory text at 
Sec.  618.605(a) as a result of these comments.
    The same commenter recommended changing some of the language at 
Sec.  618.605(b) by adding the words ``under this subpart'' after 
``subsistence payments.'' Proposed paragraph (b) states, in relevant 
part, that applications for training, including requests for TAA 
Program-funded transportation and subsistence payments, must be made to 
the State in accordance with procedures the States established. There 
are no other subsistence payments available other than under subpart F, 
so no such language is needed. Therefore, no change has been made to 
the regulatory text at Sec.  618.605(b) in the final rule.

[[Page 51930]]

    The Department made nonsubstantive edits in paragraph (c) of this 
section to correct two cross-references to the section heading of a 
different section; otherwise, the final rule adopts this section as 
proposed.
    A workforce advocacy group stated that access to training in 
sought-after fields was vital for TAA recipients because these workers 
have generally lost high-paying jobs requiring specific skills that may 
not be replaced in the evolving economy. The group also stated that 
communities of workers with similar skills are sometimes subject to 
mass layoffs and that such workers may need to be retrained for 
entirely new occupations. As this can happen, especially in more rural 
areas, the Department encourages States to work with LWDBs in 
addressing these dislocations at the community or regional level and 
not just from the viewpoint of an individual worker. This is also a 
situation in which customized group trainings could be an efficient 
method of training trade-affected workers.
    The same workforce advocacy group expressed support for the 
provision at Sec.  618.605(d) that allows States to use TAA Program 
funds to support basic skills training and English language learning 
programs. The group requested that the Department change references to 
``remedial education'' to ``basic skills instruction and remedial 
education,'' because the proposed language is outdated and omitting 
``basic skills instruction'' would restrict the types of eligible 
practitioners in the field. The Department does not view the regulatory 
text language as limiting. Basic skills training and English language 
learning programs would be considered ``remedial education'' under this 
final rule.
    The same workforce advocacy group also requested that the 
Department include a reference to Integrated Education and Training 
(IET) at Sec.  618.605(d)(2) in order to align better with WIOA 
practices and increase participation in IET programs. The Department 
does not conclude that such a specific reference is needed in the 
regulatory text. This type of training is already allowed under the TAA 
Program. Where this rule uses the term ``contextualized occupational 
training,'' that term includes the concept of IET. No changes have been 
made to the regulatory text at Sec.  618.605(d) in response to these 
comments.
    One commenter supported allowing communities to use TAA Program 
funds to create new training programs and said this element of the 
proposed rule was a ``welcome change.''
    One commenter recommended eliminating, in proposed Sec.  
618.605(e), what the commenter viewed as an entitlement to a ``lifetime 
training benefit'' and, instead, limiting participation in training 
under a specific certification to 5 or 10 years. The commenter said 
there should not be an entitlement to TAA approved training for workers 
who are displaced from jobs for reasons not related to trade. A 
different commenter asked if an expiration date for the lifetime 
training benefit would be included in the final rule. The Department 
considered imposing a deadline by which a trade-affected worker would 
have to begin training to retain access to the benefit; however, it has 
determined that there is no legal basis to do so. States must ensure 
that trade-affected workers who apply for training past the expiration 
of their certification meet the six criteria for the approval of 
training at Sec.  618.610. No changes have been made to the regulatory 
text at Sec.  618.605(e) in response to these comments. However, a 
minor edit was made to the use of a pronoun.
    The Department will use this opportunity to remind States that, for 
purposes of determining suitable employment, States must look at the 
wages and skill level of the adversely affected employment. This means 
that States would need to look at the wages paid at the time of 
separation from adversely affected employment and not, in many cases, 
the AAW's most recent separation, which might not be from adversely 
affected employment.
    The Department declines revising Sec.  618.605, for the reasons 
discussed above, and implements this section in the final rule as 
proposed.
Section 618.610 Criteria for Approval of Training
    Proposed Sec.  618.610, which corresponded to 20 CFR 617.22(a)(1) 
through (6), implemented all six statutory criteria for training 
approval from section 236(a)(1)(A) through (F). Under proposed Sec.  
618.610, training must be approved for a trade-affected worker if the 
State determines that all six criteria are met. The statutory criteria 
are as follows:
     There is not suitable employment available (section 
236(a)(1)(A), corresponding to proposed Sec.  618.610(a), Criterion 1).
     The worker would benefit from appropriate training 
(section 236(a)(1)(B), corresponding to proposed Sec.  618.610(b), 
Criterion 2).
     There is a reasonable expectation of employment following 
completion of such training (section 236(a)(1)(C), corresponding to 
proposed Sec.  618.610(c), Criterion 3).
     Training approved is reasonably available to the worker 
(section 236(a)(1)(D), corresponding to proposed Sec.  618.610(d), 
Criterion 4).
     The worker is qualified to undertake and complete such 
training (section 236(a)(1)(E), corresponding to proposed Sec.  
618.610(e), Criterion 5).
     Such training is suitable for the worker and available at 
a reasonable cost (section 236(a)(1)(F), corresponding to proposed 
Sec.  618.610(f), Criterion 6).
    The Department is finalizing this section as proposed, except for 
the changes noted below.
    Under proposed Sec.  618.610, States must consult the trade-
affected worker's assessment results and IEP, if available, before 
approving an application for training. One commenter asserted that the 
introductory paragraph of Sec.  618.610 requiring States to consult a 
worker's IEP before approving training applications was in conflict 
with the language at Sec.  618.350(a)(2) requiring that an IEP must be 
documented before a trade-affected worker receives training under 
subpart F. An IEP should be established prior to the approval of a 
training program, but it is expected to be a dynamic document, subject 
to additions and revisions, so States must continue to consult the 
document. No changes have been made to the proposed introductory 
paragraph of Sec.  618.610 in the final rule as a result of this 
comment.
    Another commenter asked how the Department intended to define 
``foreseeable'' as it appears in Sec.  618.610(a)(1), which proposed a 
finding of no reasonable prospect of suitable employment becoming 
available for the worker in the foreseeable future as a part of 
Criterion 1. The Department considered further clarification of the 
term ``foreseeable'' in this context but has determined that the use of 
this term is unchanged from previous regulations, as is this criterion 
for training approval. There is no intent to change how States have 
historically interpreted this term; therefore, any new clarification 
may serve only to limit States' flexibility. States should have a 
procedure or policy in place for consistently determining the 
availability of suitable employment for workers applying for training. 
The Department encourages States to contact their regional office to 
review their existing policies if further questions remain. No changes 
have been made to the proposed regulatory text at Sec.  618.610(a)(1) 
in the final rule as a result of this comment.

[[Page 51931]]

    A State workforce agency supported the ``career pathway'' option 
under Sec.  618.610(b)(1) and maintained that many workers changing 
careers will need to take lower paying jobs initially in order to 
develop their skills in a new field. In contrast, a different State 
workforce agency recommended that the Department reconsider the use of 
``career pathway'' at Sec.  618.610(b)(1) since this is a technical 
term defined in the WIOA regulations. The State workforce agency 
recommended deleting the word ``career'' from the sentence containing 
the term ``career pathway.'' The Department concurs with the 
recommendation and has made that change to Sec.  618.610(b)(1) in the 
final rule to distinguish this term from the WIOA term. The Department 
has also made a minor edit to the use of a pronoun.
    One commenter asked why the Department limited the consideration of 
labor market conditions to a worker's intended commuting area 
(introductory paragraph of Sec.  618.610(c)) since some workers might 
be inclined to travel longer distances for the right job. The 
Department clarifies that the intent of this language is to limit the 
geographical area in which a trade-affected worker must seek suitable 
employment before training can be approved. It does not limit the 
suitable employment that a worker may accept. One commenter expressed 
concern about the provision at Sec.  618.610(c)(4) requiring States to 
assess whether the number of workers enrolled in a given training will 
cover demand in the local labor market, because States' implementation 
of this provision would be difficult and burdensome. The same commenter 
asked whether States would have to contact all providers who offer the 
type of training under consideration and what geographic parameters 
should be used to determine which providers must be contacted. The 
Department clarifies that Sec.  618.610(c)(4) does not apply to most 
proposed training programs and it is specific to proposed training 
programs for limited demand occupations. The Department encourages the 
State, during the training approval process, to use any available means 
to evaluate the likelihood of the worker to successfully compete for 
and obtain a position after completing proposed training in the limited 
demand occupation. No changes to proposed Sec.  618.610(c) were made in 
the final rule as a result of these comments. The Department did, 
however, make two edits for use of pronouns in paragraphs (c)(4) and 
(5) and subject-verb agreement in paragraph (c)(4).
Self-Employment as a Viable Employment Goal
    Proposed Sec.  618.610(c)(5) recognized that self-employment may be 
a viable employment goal. Under proposed Sec.  618.610(c)(5), States 
must review the labor market conditions to determine that the skills to 
be obtained in the training will lead to self-employment that will 
provide trade-affected workers with wages or earnings at or near their 
wages in adversely affected employment.
    Two commenters supported the provision to approve training programs 
that would lead to self-employment. Another commenter supported the 
Department's proposal to consider self-employment as a viable 
employment goal and asked whether Criterion 6 for training approval 
(training is suitable for the worker and available at a reasonable 
cost) would be met if self-employment were to provide workers with 
earnings equivalent to or near their previous earnings. States should 
compare the trade-affected worker's ability to undertake the training 
program against the worker's self-employment goal and determine if the 
training program is suitable based on that comparison. The Department 
affirms that the commenter's example would meet the ``suitable for the 
worker'' part of Criterion 6 (Sec.  618.610(f)(1)), if the training 
program being considered meets the conditions for a trade-affected 
worker to be qualified to undertake and complete a training (Criterion 
5, Sec.  618.610(e)(1) and (2)); and if the self-employment will 
satisfy Sec.  618.610(c) (Criterion 3, reasonable expectation of 
employment) and provide the trade-affected worker with work of a 
substantially equal or higher skill level than the worker's past 
adversely affected employment, and self-employment wages are projected 
to result in earnings equivalent to 80 percent of the worker's 
adversely affected wages.
    Multiple commenters asked about methods for tracking and reporting 
self-employment earnings. The final rule does not prescribe a specific 
method for the tracking of wages for self-employed trade-affected 
workers. Consistent with administrative guidance, the TAA Program 
allows for the collection and reporting of supplemental wage 
information consistent with WIOA. The State should contact its regional 
office if additional technical assistance is needed on this topic.
    One commenter said that the language discussing self-employment is 
``vague'' and asked whether self-employment is an approvable employment 
goal. The same commenter said the language about self-employment as a 
viable employment goal should clarify that ``entrepreneurial training'' 
is not an approvable type of training even if entrepreneurship is a 
viable employment goal. While a trade-affected worker's employment goal 
may be self-employment, the Department does not consider a training 
program consisting of only entrepreneurial training as an approvable 
training program under the TAA Program. Occupational training is a 
required component. The Department maintains that allowing a training 
program consisting of only entrepreneurial training conflicts with the 
goal of TAA approved training in Sec.  618.600, which is that training 
provided must, at a reasonable cost and as quickly as possible, assist 
a trade-affected worker in obtaining the necessary skills to have a 
reasonable expectation of employment.
    One commenter asked how the Department would overcome the 
suitability of training requirements with respect to self-employment 
since BLS states that self-employment initially presents some 
challenges for workers, including reduced income stability and 
difficulty securing business loans. The Department encourages States to 
refer trade-affected workers to self-employment assistance programs to 
assist workers in estimating or calculating future wages or earnings 
and other aspects of self-employment that are outside the purview of 
the TAA Program.
Criterion 4 (Training Reasonably Available) and Criterion 5 (Trade-
Affected Worker Qualified To Undertake and Complete Training)
    Proposed paragraph (d) implemented Criterion 4 and corresponded to 
20 CFR 617.22(a)(4), but was simpler, better organized, and free of 
outdated references. References to approval of training outside the 
trade-affected worker's commuting area for cost reasons were moved to 
proposed paragraph (f), Criterion 6.
    One commenter viewed the language at Sec.  618.610(d) requiring 
States to first consider training opportunities available within the 
worker's commuting area as overly limiting because workers may be 
willing to travel longer distances to attend a training program of 
perceived higher quality. The Department has determined this is 
appropriately addressed at Sec.  618.610(f)(2)(ii), which allows a 
State to approve a higher cost training if the training is reasonably 
expected to result in a higher likelihood of employment, employment 
retention, or greater

[[Page 51932]]

earnings, or to return the trade-affected worker to employment in a 
significantly shorter duration. The Department has made no change to 
the regulatory text in the final rule as a result of these comments.
    Proposed Sec.  618.610(e)(3) (Criterion 5) consisted of five parts, 
paragraphs (i) through (v), which explained the State must consider (1) 
the worker's remaining weeks of UI and TRA payments (for AAWs) in 
relation to the duration of the proposed training program; (2) other 
sources of income support available to the worker, including severance 
earnings of other family members, and other family resources; (3) other 
fixed financial obligations and expenses of the worker and family; (4) 
the availability of Federal student financial assistance or any State-
funded student financial assistance or any private funding designated 
for student financial assistance or any private funding designated for 
student financial assistance, including, but not limited to, 
nongovernmental scholarships, awards, or grants; and (5) whether or not 
the worker is employed while attending training. The criteria are used 
only after the period of TRA eligibility because the purpose of TRA is 
to provide sufficient financial support to complete training. Finally, 
documentation is addressed in Sec.  618.852 (Recordkeeping and 
disclosure of information requirements).
    A nonprofit public policy organization said States should consider 
factors beyond just financial aid and Federal work-study programs when 
determining whether workers have alternative means to support 
themselves financially if a TAA approved training program lasts longer 
than a worker's TRA benefits. The organization suggested States should 
consider whether TAA Program recipients have access to supports like 
Supplemental Nutrition Assistance Program (SNAP) or Temporary 
Assistance for Needy Families benefits, or if recipients are equipped 
to attain part-time employment. The organization maintained that 
considering a wider range of factors would allow States to approve 4-
year college programs for trade-affected workers. The Department agrees 
that this approach may be of interest to States and refers the 
commenter to Sec.  618.610(e)(3)(ii), which discusses the need for 
States to consider other income.
    One commenter said that if the intent of the provision at Sec.  
618.610(e)(3) is to prevent workers from failing to complete trainings 
because of a lack of financial support, then the relevant criterion 
should be whether a worker has sufficient financial resources to 
support completion of a training program. The same commenter said it 
would be ``odd'' for this criterion to come into play only if a 
worker's remaining weeks of UI or TRA do not equal or exceed the length 
of a training program. The Department affirms that the relevant inquiry 
is whether someone has sufficient financial resources to complete 
training, but the statutory requirement is limited to the availability 
of TRA. States are encouraged to review trade-affected workers' 
financial situations as part of the case management services provided 
under subpart C.
    A different commenter requested clarification on the types of 
documents needed to verify sufficient financial resources for workers 
whose UI or TRA runs out prior to the completion of a training program. 
Neither the proposed rule, nor the final rule, provides explicit 
documentation requirements for verification of financial resources. 
States are, however, required to retain or describe the documents they 
used to render a determination in the trade-affected worker's case 
file, in compliance with the final rule at Sec.  618.610(e)(4).
    One commenter asked whether assessments or IEPs completed by 
partner programs would satisfy requirements in Sec.  618.610(e)(3). The 
Department addressed this subject under the responses to subpart C. 
Partner program assessments and IEPs may be used if they meet the 
requirements established in the final rule. Assessments and IEPs from 
partner programs that do not meet the requirements of the final rule 
may be supplemented by additional information in order to meet those 
missing requirements. Duplication of effort should be avoided wherever 
possible. No changes have been made to the regulatory text at Sec.  
618.610(e) in response to these comments.
Comments and Requested Clarifications on States' Coverage of Training 
Costs
    Proposed Sec.  618.610(f)(2), one component of Criterion 6 for 
training approval, requires that suitable training be available at a 
reasonable cost. Reasonable cost is a critical determinant in approving 
training programs.
    One commenter requested clarification on ``open-ended'' and 
``potentially burdensome'' guidance about training costs and asked the 
Department to restore the definition of ``suitable work'' to the 
version established in the previous regulation to ensure timely 
approval of training programs. The Department is unclear as to the 
commenter's request for clarification on the provision of ``suitable 
work,'' which is defined, and used, in subpart G. Subpart F uses the 
term ``suitable employment.'' ``Suitable work'' is a term used in UI 
when claimants are conducting job search activities to remain eligible 
for receipt of benefits. Under previous regulations, ``suitable work'' 
was used as the standard for approval of job search allowances and 
relocation allowances. For further assistance on coverage of training 
costs, States are encouraged to contact their regional office.
    One commenter requested clarification for States on whether they 
are permitted to pay travel allowances when travel would be required 
for workers to take certification tests. Another commenter questioned 
the propriety of using TAA Program funds to cover licensing costs or 
fees associated with certification tests, when licenses or 
certifications are required elements of an approved training program. 
When tests or exams, such as mid-terms, finals, or licensure exams, are 
part of an approved training program, transportation costs are 
allowable costs. These tests, especially those that might occur after 
the classroom training portion of the training has completed, should be 
documented as part of the training program. Otherwise, the TAA Program 
may cover the costs of any fees associated with the test as an 
employment and case management expense, but not transportation. 
Transportation costs outside of an approved training program would be 
considered a supportive service, which is not payable using TAA Program 
funds.
    Multiple commenters requested clarification of training-related 
costs, specifically purchasing laptops, tablets, software, etc. for 
workers in TAA approved trainings. The Department clarifies that the 
proposed provision of training-related costs is unchanged from current 
practice and policy. If materials or supplies are required of all 
students enrolled in the training, States are required to provide those 
items for the trade-affected worker to use. Proposed Sec.  618.610(f) 
does not prohibit a State from reimbursing a worker. As provided in the 
regulatory text at paragraph (f)(2), training costs may include tuition 
and related expenses, including books, tools, computers and other 
electronic devices, internet access, uniforms and other training-
related clothing such as goggles and work boots, laboratory fees, and 
other academic fees required as part of the approved training program.

[[Page 51933]]

    One commenter stated that the reference in the preamble to the 
proposed rule that States must exhaust alternatives before purchasing 
training equipment was ``vague'' and requested that the Department 
provide examples or further guidance. A different commenter suggested 
that, to improve clarity, the Department should explicitly require in 
the training approval criteria section itself that States must 
``exhaust alternatives'' before purchasing equipment or other materials 
for workers. Section 618.610(f)(2)(B) of the final rule recommends that 
States explore other options before purchasing equipment or related 
materials needed for training. Alternatives could include, for example, 
an equipment lease agreement. The Department advises States to follow 
their regular procurement process and comply with 2 CFR part 200 and 2 
CFR part 2900, as appropriate, paying close attention to the 
distinction between equipment and supplies. The regulatory text at 
Sec.  618.610(f)(2) has been adopted in the final rule as proposed.
Section 618.615 Limitations on Training Approval
    Proposed Sec.  618.615 discussed the various limitations on a 
State's approval of a training program. The proposed rule relocated 
some of the limitations on approval of training provisions from 20 CFR 
617.25 to sections other than proposed Sec.  618.615, where they more 
logically fit. The Department is finalizing this section as proposed, 
except for the changes described below.
Paragraphs (a) and (b)
    Proposed paragraph (a)(1) retained the single training program rule 
of 20 CFR 617.22(f)(2). Changes to an ongoing training program are 
considered to be part of one training program.
    Proposed paragraph (b) corresponded to 20 CFR 617.22(f)(4) with 
respect to full-time training but differed significantly by permitting 
States to approve part-time training as well. Proposed paragraph (b)(1) 
retained the provision in 20 CFR 617.22(f)(4) that training is full-
time if it is in accordance with the established hours and days (or 
credit hours) of the training provider. Proposed paragraph (b)(2) 
discussed requirements related to part-time training under the TAA 
Program.
    One commenter suggested revising part of Sec.  618.615(a)(1) by 
adding the words ``unless one of the conditions in [Sec. ]618.665 
allows approval of a training program that is different from the 
originally approved training program'' after ``under a single 
certification.'' The commenter did not provide a justification for the 
recommended addition of language. The same commenter also said that 
several of the words in Sec.  618.615(b)(2) were missing hyphens. 
Proposed Sec.  618.615 provided the criteria that must be met at the 
initial approval of a training program. Proposed Sec.  618.665 provided 
the criteria to be considered when amending a training program. Not all 
of the criteria from Sec.  618.615 are included in Sec.  618.665 
because they are not all appropriate when considering an amendment. An 
amended training program is not a second training program; it is an 
amendment to the existing (approved) training program. With regard to 
the hyphens, the Department has corrected the regulatory text in the 
final rule to include the noted hyphens without substantive change. The 
Department has also made an edit to the use of a pronoun in paragraph 
(b).
    Two commenters raised concerns with the regulatory language related 
to participants in training who find employment. One commenter asked 
whether this section was in conflict with proposed Sec.  618.645 
(voluntary withdrawal from a training program). The commenter asked 
whether this was a change from current interpretations. Another 
commenter raised concern with the language in Sec.  618.615(b)(1) about 
an AAW in training who obtains employment that is not suitable 
employment being able to continue in training while employed. The 
Department affirms that AAWs are allowed to continue in approved 
training, regardless of their employment status, after their initial 
approval of a training program, as long as they continue to 
successfully follow their approved training program and the 
requirements to amend their training program. Determining whether 
suitable employment exists is the requirement for the approval of 
training and not a factor in determining whether approved training can 
continue. Regarding the identification of an apparent conflict between 
the language in proposed Sec. Sec.  618.615 and 618.645 with regard to 
suitable versus nonsuitable employment, the Department has revised the 
regulatory text for the final rule at paragraph (b)(1) of this section 
to remove the conflicting language and to indicate that the term 
``full-time training'' has already been defined in Sec.  618.110 and 
that it applies here.
    A commenter stated that when AAWs need to drop classes and assume 
part-time status for a semester, their State's program will discontinue 
TRA benefits for the part-time period and reinstate TRA benefits once 
the worker returns to full-time status the following semester. States 
must temporarily discontinue TRA payments when an AAW reduces full-time 
training to part-time training. Part-time training is approvable, but, 
before approving, States must consider the worker's approved training 
program as a whole and the worker's reasons for utilizing only part-
time training.
    A different commenter suggested the Department provide a clearer 
definition of situations when a trade-affected worker ``cannot 
undertake'' full-time training because some workers claim they have 
been out of school for a long period of time and they cannot undertake 
full-time training. Success stories included on the TAA Program's 
website have repeatedly highlighted that trade-affected workers who 
return to training usually excel as students. Trade-affected workers 
tend to apply the same work ethic to their studies as they had during 
their tenure in adversely affected employment. The Department is 
cautious about providing a definitive answer to such general scenarios 
without additional background information. States should seek 
assistance from their appropriate regional office on individual cases 
as there are often very specific circumstances that must be considered 
before a determination can be made.
    When trade-affected workers indicate they need to drop a class, 
which will change their status from full-time to part-time, it is 
appropriate to inquire about why they need to drop the class. If it is 
due to a barrier to training, a referral to a partner program may be 
needed. If a worker drops from full-time training to part-time training 
to meet a financial need, such as to help them increase immediate 
earnings, they may also gain work experience that helps them secure 
higher paying employment post-training. The intent of the language in 
the preamble to the proposed rule was to ensure that, whenever 
possible, workers are enrolled in training that will ensure the fastest 
possible return to suitable employment. No change has been made to the 
regulatory text in response to these comments.
    Another commenter expressed support for workers in training being 
allowed to continue their training full-time even if they find 
employment. The commenter was under the impression that under the 
previous rules and administrative guidance, workers may continue only 
in part-time training. The Department affirms that this is not a change 
from current policy as trade-affected workers may participate in either 
full-time or part-time training, or a combination of the two.
    One commenter argued that since the criteria for approved trainings 
under

[[Page 51934]]

WIOA are generally stricter than those for the TAA Program, workers 
approved for WIOA trainings should automatically be approved for TAA 
approved trainings. While the Department supports State and local area 
efforts to make services as seamless as possible for trade-affected 
workers, the six criteria for approval of training, promulgated at 
Sec.  618.610, are based on statutory requirements of the Act and must 
be met in order for training to be approved under the TAA Program. The 
Department explains that training eligibility under WIOA for dislocated 
workers found at WIOA section 134(c)(3) includes some of the six 
criteria for approval for a worker to meet training eligibility. The 
Department encourages States or local areas to incorporate elements of 
the six criteria under the TAA Program as part of determining the 
appropriateness of training for workers. By aligning the six TAA 
Program criteria process with the WIOA training eligibility, States and 
local areas can ensure a seamless transition from WIOA-funded training 
to TAA-funded training for the worker. In that scenario, there would be 
no extra step required. Without such a policy in place, the State must 
be able to document that the criteria at Sec.  618.610 have been met. 
This does not mean that the WIOA-approved training must stop while TAA 
Program eligibility and training approval are addressed, but rather 
that the WIOA training cannot be considered TAA approved training until 
the State determines that the criteria in Sec.  618.610 have been met.
Paragraph (d)
    Proposed paragraph (d)(3)(iii) provided a pathway for approving a 
training program that exceeds the period during which TRA is available, 
as allowed under section 236(a)(9) of the Act, but is still within the 
maximum duration of training. One commenter supported the provision at 
Sec.  618.615(d)(3)(iii) because it would help workers who were not 
notified of their eligibility for a training program in time to start 
training soon after losing their previous job, and because it would 
expand the types of trainings available to eligible workers.
    One commenter described its organization's experiences with workers 
who may attest to having enough financial resources to support 
themselves during a training period based on ``an unrealistic 
expectation'' of their financial needs and expected future income. The 
commenter stated that career counseling and case management services 
could help workers create, and stick to, more realistic financial 
plans. The Department agrees that financial planning is a key component 
of successful case management.
    One commenter supported the exception for workers who have 
performed a period of duty in the Uniformed Services discussed at Sec.  
618.615(d)(4)(i) through (iii).
    Accordingly, the final rule adopts the limitations on training 
approval as proposed in Sec.  618.615, with grammar and nonsubstantive 
edits in Sec.  618.615(b)(2) and (d)(2), and a substantive edit to 
Sec.  618.615(b)(1) to remove the language regarding not suitable 
employment. The Department has also made four edits to the use of 
pronouns in paragraph (d).
Section 618.620 Selection of Training Program
    Proposed Sec.  618.620, authorized by section 236(a)(5) of the Act, 
set forth requirements related to a State's obligation to document the 
standards and procedures for the selection of training programs and the 
methods of training permissible.
Paragraph (a)
    Proposed paragraph (a) provided for the standards required for the 
selection of training programs. This paragraph represented a change 
from the language at 20 CFR 617.23, which outlined the selection 
criteria for training programs and specified evaluation of a training 
provider's success by placement rates.
    Some commenters sought clarification on the language in Sec.  
618.620 about establishing and documenting the standards and procedures 
used to select providers and training under the TAA Program. The 
Department emphasizes that the regulatory requirement is for 
documentation, which may be met by listing the State's requirements, 
whether new or preexisting. For example, many States require trade-
affected workers to provide two or three different training options or 
training providers for the training program for which they are seeking 
approval and States may simply list this requirement, or similar 
requirements, as the standard. The Department reiterates that the 
statute prohibits limiting training under the TAA Program to only those 
options on the ETP list under WIOA. All training approved under the TAA 
Program must meet the criteria for training approval at Sec.  618.610.
    One commenter questioned how States should treat new training 
providers or programs that have not previously been utilized. The WIOA 
implementing regulations, at Sec.  680.450, established the 
requirements for training providers not previously approved under WIA 
to submit applications to be considered eligible providers under WIOA. 
This process may be helpful to States seeking to establish standards 
for the approval of training providers and programs. The Department 
advises States that are seeking to establish standards to explore the 
process used for initial eligibility under WIOA and to contact their 
appropriate regional office for assistance on this issue.
    Proposed paragraph (a)(2) allowed a State to choose a training 
provider from the ETP list, established under WIOA, without 
establishing additional standards or procedures. Section 236(a)(5) of 
the Act prohibits States from limiting training available under the TAA 
Program to only those training providers on the ETP list.
    Several commenters supported the provision allowing States to 
choose an ETP recognized under WIOA section 122 without needing to 
create additional standards or procedures applicable to TAA. One 
commenter requested clarification about the meaning of the phrase 
``without establishing additional standards or procedures'' and whether 
this applied to the criteria of training programs being selected or 
States' processes for procuring training providers. The Department 
affirms that when States enroll a trade-affected worker in a training 
program that is not on the ETP, they must follow a procedure that 
establishes standards for the approval of training providers and 
courses, as required by Sec.  618.620(a)(2)(i).
    Two commenters stated they already had a ``process'' for the ETP 
list. One of these commenters asserted that the provision at Sec.  
618.620 would be challenging for non-ETPs and would limit choices for 
trade-affected workers. Another commenter said that if a training 
provider or program is not on the ETP list, WIOA's dislocated worker 
program could still offer supportive services, but not an Individual 
Training Account (ITA). The Department affirms that if a training 
provider (or course) is already on the ETP list, no additional 
standards or selection process is required under the TAA Program. 
Section 618.620 allows the inclusion of providers that are not on the 
ETP list. States are required, in those cases, to establish standards 
to ensure that trade-affected workers are provided access to quality 
training programs. The Department clarifies that, with regard to ITAs, 
States are expected to utilize TAA Program funds to pay for the costs 
of training, while using WIOA funds to provide appropriate supportive 
services

[[Page 51935]]

that cannot be funded by the TAA Program.
Paragraph (b)
    The Department made an edit to the use of a pronoun in paragraph 
(b)(1).
Paragraph (c)
    Proposed paragraph (c) provided a nonexhaustive list of other 
specific types of approvable training programs, which generally 
followed 20 CFR 617.24(b) through (f).
    One commenter requested clarification about whether, for workers 
who need ``other training'' under paragraph (c), that training is 
considered a ``training opportunity,'' or if it can be coupled with 
later ``primary/core training.'' The Department reiterates that a 
training program under the TAA Program can include any or all of the 
types of training described in subpart F. A worker could be enrolled 
in, for example, remedial training, occupational training, and an OJT, 
as part of a single approved training program.
Paragraph (d)
    Proposed paragraph (d) provided that TAA Program funds can be used 
to provide training to trade-affected workers seeking to obtain an 
advanced degree or to complete coursework toward obtaining an 
unfinished advanced degree.
    One commenter supported the option to receive remedial education 
before or during a requested training program, as well as the inclusion 
of different remedial education programs, such as Adult Basic Education 
and English Language Arts courses and high school equivalency 
preparation classes.
    A State workforce agency, which described its position on the 
advanced-degrees provision found in proposed Sec.  618.620 as 
``neutral,'' questioned whether an advanced degree would impact WIOA 
performance measures given the proposed mandatory co-enrollment for 
WIOA and the TAA Program. The Department is aware of the exclusion of 
advanced degrees from the measurable skills gain measure. However, this 
exclusion is not a factor in the training approval criteria in Sec.  
618.610 and cannot be used by a State to deny training for an advanced 
degree under the TAA Program. The Department explains that services 
strategies and historical service data are now used in setting 
performance goals under WIOA. Further, although the enrollment of 
trade-affected workers in advanced degrees may impact the measurable 
skills gain indicator, those same workers are likely to have higher 
employment rates and higher median earnings.
    The Department made a nonsubstantive edit to modify a citation to 
correctly reference Sec.  618.615(d)(3) in paragraph (d) of this 
section; otherwise, the final rule adopts this section as proposed.
Section 618.625 Payment Restrictions for Training Programs
    Proposed Sec.  618.625 listed a series of restrictions on payments 
for training programs. The Department received several comments related 
to proposed paragraph (c) of this section. Proposed paragraph (c)(2) 
allowed States to share training costs with authorities administering 
non-Federal, State, and private funding sources provided that there are 
insufficient TAA Program funds to cover the total cost of training.
    One commenter supported the new provision at Sec.  618.625(c)(2) 
allowing States to enter into cost-sharing arrangements with non-
Federal entities as an improvement that added flexibility.
    Another commenter stated that, in the proposed regulation, Sec.  
618.625(c)(2) cites to paragraph (d)(2)(ii) ``of this section'' despite 
Sec.  618.625 not having a paragraph (d)(2)(ii). The commenter was 
concerned that there was no Sec.  618.625(d)(2)(ii) to refer to. 
Section 618.625(d)(2)(ii) exists and cross-references Sec.  618.940 (a 
provision related to insufficient funds), along with other regulatory 
provisions that would apply if the Department determines that there are 
insufficient funds available for TaOA to meet demand.
    Proposed paragraph (c)(5) followed 20 CFR 617.25(b)(4)(ii)(C) but 
clarified it. As required by section 236(a)(4)(C) of the Act, in 
determining the amount of training costs payable from TAA Program 
funds, the State must not consider payments to the trade-affected 
worker under other Federal laws that do not directly cover the costs of 
training. Proposed paragraph (c)(5) also addressed the transition of 
Federal student financial assistance recipients from WIOA and other 
programs to the TAA Program.
    A commenter suggested the Department should insert citations to 
applicable rules for Federal student financial assistance at Sec.  
618.625(c)(5)(iv). The Department, in drafting the final rule, sought 
to limit references to other regulations outside of this part 618. The 
Department, therefore, has elected not to add the requested reference, 
as this helps ensure that these regulations are not made obsolete by 
changes to other rules.
    The Department adopts the section in the final rule as proposed.
Section 618.630 Training of Reemployed Trade-Affected Workers
    Proposed Sec.  618.630, which followed 20 CFR 617.22(g), derived 
from section 236(d) of the Act. The Department received no direct 
comments on this section. Nevertheless, comments received in response 
to Sec. Sec.  618.615 and 618.645 have resulted in a change to the 
section heading of this section and to the regulatory text as described 
below.
    In response to comments received in Sec. Sec.  618.615 and 618.645, 
the Department is removing both uses of the phrase ``that is not 
suitable employment'' from Sec.  618.630(a) and removing the phrase 
``not in suitable employment'' from the section heading since this 
provision is not contingent on the employment obtained not being 
suitable.
Section 618.635 Work-Based Training
Paragraph (a)
    Proposed Sec.  618.635 modified 20 CFR 617.25(a) to establish 
detailed requirements for OJT, customized training, and apprenticeship. 
The Department is finalizing this section as proposed, except for the 
changes described below.
    Proposed paragraph (a)(3) implemented section 236(c)(3)(A) of the 
Act and required that the OJT contract specify the duration of the OJT, 
and be limited in duration as appropriate. Although statutorily limited 
to a maximum of 104 weeks under section 236(c)(3)(B) of the Act, the 
length of an OJT contract must also be limited to the specific 
vocational preparation required for the occupation, as listed on O*NET 
(www.onetonline.org).
    One commenter asked why proposed Sec.  618.635(a)(3) states that 
the worker's academic and occupational skills must be considered, ``as 
documented in the worker's IEP, if available,'' while the language at 
Sec.  618.350 requires that an IEP be documented before workers may 
receive training under the TAA Program. The Department reiterates that 
not all trade-affected workers may have an IEP. If, instead, the State 
has sufficient information that would otherwise be included in an IEP, 
training may still be approved, even if the worker refuses to 
participate in the IEP process. However, the trade-affected worker must 
provide sufficient information, either through a partial IEP or outside 
of the IEP process, for the State to make a determination on the six 
required training approval criteria. Failure to do so will result in 
denial of the training program. A trade-affected

[[Page 51936]]

worker so denied can appeal the training denial. The final rule adopts 
the regulatory text in Sec.  618.635(a)(3) as proposed.
    Proposed paragraph (a)(4) implemented the statutory language in 
section 236(c)(4) of the Act, which excludes certain employers from 
receiving OJT contracts. One commenter asked for further clarification 
on the term ``long-term'' found in Sec.  618.635(a)(4)(i). The 
Department explains that this is a statutory requirement at section 
236(c)(4)(A), and applies to employers who exhibit a pattern of failing 
to provide AAWs in OJTs with continued, long-term employment as regular 
employees. States should apply a reasonableness standard. For technical 
assistance with a specific case, the Department recommends contacting 
the appropriate regional office. The final rule adopts the regulatory 
text in Sec.  618.635(a)(4) as proposed.
    Proposed paragraph (a)(5) set out the reimbursement provisions for 
the OJT contract at a rate of up to 50 percent of the wage rate for the 
OJT participant, limited to the duration of the contract, as provided 
in section 236(c)(5)(H) of the Act. One commenter asked whether the 
``wage rate'' described at Sec.  618.635(a)(5) includes all 
compensation, consistent with the definition of ``wages'' at Sec.  
618.110. The commenter said it was important to clarify this point 
because OJT reimbursement would be greater if all compensation, 
including benefits, were taken into consideration. The Department 
explains that, for purposes of reimbursing employers for the cost of 
training under OJT and apprenticeships, the term ``wage rate'' limits 
reimbursement to the hourly rate of pay for the worker and does not 
include any other compensation that may be included in the worker's 
wages. The final rule adopts the regulatory text in Sec.  618.635(a)(5) 
as proposed.
Paragraph (b)
    Proposed paragraph (b)(4) explained the limitation from section 
236(a)(10)(B) of the Act that AAIWs are eligible for customized 
training only if the position is for a position other than their 
adversely affected position. One commenter suggested clarifying Sec.  
618.635(b)(4), which provided that ``[f]or AAIWs, approval is limited 
to customized training for other than their current position in 
adversely affected employment,'' by adding the words ``a position'' so 
that the regulatory provision would read, in part, ``approval is 
limited to customized training for a position other than their current 
position in adversely affected employment.'' The Department agrees that 
this phrase was inadvertently omitted and has inserted it into the 
final rule at Sec.  618.635(b)(4).
Paragraph (c)
Specific Provision for Expanding the Term ``Apprenticeship''
    Proposed paragraph (c) provided that both registered 
apprenticeships under the National Apprenticeship Act (NAA), as well as 
other training programs that include a paid work-based learning 
component and required educational or instructional component that 
results in the issuance of an industry-recognized credential, are 
approvable TAA Program training activities.
    A few commenters generally supported the proposed rule's expansion 
of training options for workers, particularly the increased flexibility 
for apprenticeships.
    A nonprofit public policy organization stated that placing more 
trade-affected workers in apprenticeships is a laudable goal and said 
that very few TAA Program recipients have participated in 
apprenticeships historically, including just 0.1 percent in 2018. The 
organization stated that the amount of financial support for 
apprenticeship expansion in the proposed rule went far beyond financial 
incentives offered through other State and Federal programs, and it 
suggested limiting support for apprenticeship expansion to smaller 
amounts, such as 25 percent of wages, in order to align better with 
other policies and to allocate more support to workers who are 
traditionally excluded from apprenticeships, such as women or older 
workers. The work-based learning portion of an apprenticeship is 
similar to that of OJT; thus, the Department has established the same 
reimbursement rate for that portion of an apprenticeship as exists for 
OJT. In addition, training programs under the TAA Program have always 
been allowed to contain both work-based and traditional classroom 
instruction. The apprenticeships newly covered by the expanded 
definition have long been approvable as OJT; this is not a change from 
current practice, but rather a shift in the benefits available.
    One commenter asked whether the language at proposed Sec.  
618.635(c) meant that States could require TAA Program funding be used 
for registered apprenticeships only. The Department reiterates that, 
consistent with section 236(a) of the Act and Sec.  618.610, States 
must approve a training if the State determines that there is no 
suitable employment for the trade-affected worker, the worker would 
benefit from appropriate training, there is a reasonable expectation of 
employment following completion of such training, the training is 
reasonably available to the worker, the worker is qualified to 
undertake and complete the training, and the training is suitable for 
the worker and available at a reasonable cost. Among other 
requirements, this determination necessitates careful review of a 
trade-affected worker's skills and experience, the knowledge the 
training would provide, and labor market conditions. Therefore, States 
may not, as a hard-and-fast rule, limit apprenticeships under the TAA 
Program to registered apprenticeships, for that would exclude other 
apprenticeship programs before determining whether they meet the 
criteria that should result in approval. However, if the State 
determines that a nonregistered apprenticeship under consideration does 
not meet the criteria to approve the training, the State must deny the 
training. For example, in evaluating a nonregistered apprenticeship 
under these criteria, a State may gather information that leads it to 
conclude the nonregistered apprenticeship would not increase the trade-
affected worker's likelihood of obtaining employment. If so, then the 
State may not approve that training. If the State denies training on 
these grounds, the State must consider other trainings for the trade-
affected worker that would meet the criteria for approving training.
    One commenter asked how the Department intended to define 
``industry-recognized credential'' in proposed Sec.  618.635(c). The 
term ``industry-recognized credential'' is not defined in the Act. 
However, the term ``recognized postsecondary credential'' is defined in 
section 247(19) of the Act, and that term also is used in section 
239(j)(2)(A)(i)(IV) of the Act to identify a factor in one of the 
primary indicators of performance that the State must report to the 
Secretary. Section 3(52) of WIOA contains the same term and definition 
for similar reporting purposes. See 29 U.S.C. 3102. Industry-recognized 
credentials are a subset of recognized postsecondary credentials. The 
Department has determined that no further definition is needed in this 
final rule. The Department adopts this section as proposed.
Comments on Length of Training and Apprenticeships
    Proposed Sec.  618.635(c)(1) limited the duration of the paid work-
based learning component of an apprenticeship to a maximum of 130

[[Page 51937]]

weeks, in line with the general limitation on training duration in 
proposed Sec.  618.615(d)(3). The length of the educational or 
instructional training component, however, was limited only by the 
scheduled completion date of the apprenticeship.
    Two commenters requested clarification on whether TAA Program funds 
could cover educational or instructional aspects of apprenticeship 
programs for up to 5 years under the proposed rule. One of the 
commenters also requested that the Department provide a more detailed 
description of any intended limitations on coverage of educational or 
instructional aspects of apprenticeship programs under the proposed 
rule. The other commenter said that educational or instructional 
aspects of apprenticeship programs take many forms, and it suggested 
the Department should provide clarification on a series of issues 
related to the 130-week limitation, including whether apprenticeships 
featuring a work-based learning model would be approved and whether 
apprenticeships longer than 130 weeks that do not offer industry-
recognized credentials would be approved. Another commenter requested 
clarification on the proposed rule's revisions of the TAA Program's 
length of training requirements applicable to apprenticeships because, 
in their reading of the proposed rule, apprenticeship programs are 
covered for up to 5 years or for up to 130 weeks at 50-percent employer 
reimbursement. The same commenter asked what States should do after 
reimbursing apprenticeship costs for up to 130 weeks, specifically 
whether they should cease funding at that point or continue until the 
5-year limit is reached. Another commenter asked whether Sec.  
618.635(c)(1) was intended to refer to the ``full duration'' of an 
apprenticeship and requested that the Department provide clarifying 
examples. With respect to the request that the Department provide an 
example of apprenticeship to elaborate on the information provided in 
the preamble, an apprenticeship lasting 5 years is an example, not a 
limit. Some apprenticeships will be shorter; a small number may be 
longer. There is no limit on the length of a training program that 
consists of an apprenticeship under these rules.
    TAA Program funds may be used to pay for the entire length of the 
educational and instructional component of the apprenticeship even if 
it exceeds 5 years; however, the length of the paid work-based learning 
may not exceed 130 weeks. As for the request to provide additional 
clarification on apprenticeships under the TAA Program, the Department 
will provide technical assistance on this topic after the issuance of 
this final rule and will issue further administrative guidance, if 
necessary. The final rule adopts Sec.  618.635(c)(1) as proposed.
    The same commenter sought guidance on how to report the training in 
required quarterly reporting. If the participant is still enrolled in 
an apprenticeship and the educational/instructional component has not 
ended, the training is still ongoing and would continue to be reported 
quarterly. The Department recognizes that under this policy, a State 
will report on the same individual for the entire duration of the 
apprenticeship. The final rule adopts Sec.  618.635(c)(1) as proposed.
    One commenter said that prior administrative guidance established 
that workers remain enrolled in the TAA Program until they achieve 80 
percent of their former wages. The commenter suggested this threshold 
could be increased to 100 percent of former wages to ensure workers 
achieve their prior level of financial stability and continue in their 
careers with new skills. The proposed rule did not retain the previous 
administrative guidance on this topic because, as proposed, an 
apprenticeship no longer ends when a worker reaches suitable 
employment. The Department declines the suggestion for a wage threshold 
and this final rule adopts Sec.  618.635 as proposed.
    Proposed paragraph (c)(2) described the expenses related to 
apprenticeship that can be covered using TAA Program funds. These costs 
include expenses for the educational or instructional component of an 
apprenticeship (tuition, fees, tools, uniforms, equipment, books, 
etc.). In addition, the employer may be reimbursed not more than 50 
percent of the apprentice's regular wage rate for the cost of providing 
the work-based training and additional supervision related to the work-
based training provided by the employer.
    One commenter said the definition of ``available at a reasonable 
cost'' found at Sec.  618.610(f)(2)(ii), which describes what 
reasonable costs are for trainings, contains important safeguards 
ensuring States evaluate training program quality adequately and make 
funding decisions carefully, and it recommended that the Department 
restate this provision as an introductory paragraph to Sec.  
618.635(c)(2). The Department has concluded there is no need to restate 
this and the final rule adopts Sec.  618.635(c)(2) as proposed.
    Another commenter discussed various provisions related to 
apprenticeship in the proposed rule and provided feedback based on 
their depth of experience with registered apprenticeships. The 
commenter said jointly trusteed, labor-management registered 
apprenticeships do not charge tuition, and apprentices in such programs 
incur little to no out-of-pocket expenses. The commenter recommended 
the Department clarify that reimbursable expenses associated with the 
educational or instructional facets of a training program include costs 
incurred by participants and the program itself. The commenter also 
said that in joint labor-management trust apprenticeship programs, the 
participating employer is the entity that either pays wages or covers 
costs associated with the program. The commenter recommended the 
Department clarify that the entity paying wages or covering ``costs of 
additional supervision'' should be reimbursed, whether that entity is 
the program sponsor or the participating employer. Additionally, the 
commenter said it was paramount that States send workers to ``bona 
fide'' programs that are committed to apprentices' success, and it 
expressed concerns about States' ability to evaluate new, ``untested'' 
industry-recognized apprenticeship programs. The commenter recommended 
revising the provision about the exclusion of certain sponsors (Sec.  
618.635(c)(3)) to separate it into two paragraphs providing that States 
(1) may not enter into contracts with registered apprenticeship 
sponsors that exhibit a pattern of failing to provide apprentices with 
completion certificates, and (2) may enter into contracts with 
nonregistered apprenticeship sponsors only if they demonstrate a 
pattern of providing apprentices with industry-recognized credentials. 
The Department has reviewed Sec.  618.635(c) in light of these comments 
and has made appropriate corrections to the regulatory text in the 
final rule by removing all references to sponsors in Sec.  618.635(c), 
since ``sponsor'' is a term specific to registered apprenticeship, and 
replacing that term with ``employer.'' With respect to the same 
commenter's statement that under many registered apprenticeship 
programs, participants are not charged any out-of-pocket costs, it 
would not be appropriate to charge a TAA Program participant either. 
Under apprenticeships, an employer is reimbursed for the extraordinary 
costs for supervision related to the work-based learning component of 
an apprenticeship. The removal of the term ``sponsor'' from the section 
should

[[Page 51938]]

provide additional clarity on costs of apprenticeships.
    A State workforce agency generally supported apprenticeship and 
said that it looked forward to learning best practices from other 
States. The Department appreciates the State's willingness to adopt 
best practices from other States related to expanding apprenticeship 
opportunities under the TAA Program.
Apprenticeships Other Than Registered Apprenticeships
    Several commenters expressed concern about the provision in 
proposed Sec.  618.635(c)(4)(ii) to allow TAA Program funds to support 
apprenticeships that are not registered under the Department's 
Registered Apprenticeship program. They stated that, in their view, 
these programs lack important guarantees, requirements, and protections 
associated with the registered apprenticeship system. Another commenter 
requested clarity on the acceptable types of apprenticeship 
opportunities. One commenter expressed concern about the proposed 
rule's promotion of apprenticeships not registered and described this 
aspect as a ``deregulatory'' change. The commenter stated that, in its 
perspective, the proposed rule's description of permissible work-based 
learning programs as programs that result in a recognized post-
secondary credential, which includes an industry-recognized credential, 
was overly broad and suggested that the provision encouraging TAA 
Program recipients to pursue apprenticeship opportunities should be 
limited to registered apprenticeships. Another commenter opposed a 
definition of apprenticeship in the proposed rule and any definition 
that would include programs outside of registered apprenticeship. The 
commenter stated it was imperative to distinguish between registered 
apprenticeship programs and other work-based learning programs, even if 
the latter offer industry-recognized credentials. One commenter, while 
supporting the Department's acknowledgment of work-based training 
programs as valuable opportunities for AAWs to obtain support under the 
TAA Program, expressed concerns about TAA Program benefits supporting 
programs that may not offer pathways to careers in the trades. The 
commenter recommended revising the proposed rule to either limit all 
TAA-eligible apprenticeships to the registered apprenticeship system or 
limit TAA-eligible apprenticeships in the construction industry 
specifically to that system. Some commenters supported expanding job 
training opportunities to include apprenticeships as defined by the NAA 
but did not support including programs that simply result in ``the 
issuance of a recognized postsecondary credential.'' The commenters 
expressed concern that allowing programs other than registered 
apprenticeships would, in their opinion, undermine registered 
apprenticeships' high standards for work safety and quality. The 
commenters suggested that other training programs could be included 
under OJT instead. One commenter stated that the current TAA Program 
law already contains an OJT program that employers may use if they want 
to provide paid job training but do not wish to sponsor registered 
apprenticeships. Another commenter suggested that the Department should 
prioritize increasing participation in the existing OJT program, and 
argued that expanding the allowable use of TAA Program funds to include 
all apprenticeships could undermine the existing options for training 
under the TAA Program. One commenter said it was crucial that TAA 
Program funds are spent only on proven programs with demonstrable 
benefits to workers, and it urged the Department to ensure that its 
funds support new opportunities for workers and do not subsidize 
employers for training offered in the ordinary course of employment. 
Some commenters said it made sense to encourage participation in 
apprenticeship programs by allowing States to reimburse program 
sponsors for up to 50 percent of apprentices' wages using TAA Program 
funds, and they argued that TAA Program involvement with apprenticeship 
has previously been minimal due to a lack of incentives for workers to 
pursue apprenticeships through the program. The commenters stated that 
the subsidy proposed in the rule, however, was substantial and would 
require close scrutiny because more than 730,000 programs in the United 
States offer industry-recognized credentials, but, in their view, many 
fall short of the apprenticeship standards outlined in the NAA. One 
commenter generally supportive of apprenticeship expansion efforts 
nevertheless recommended that the Department reserve the significant 
financial support proposed in the rule for registered apprenticeships 
only. The commenter stated that registered apprenticeships must comply 
with reporting requirements and meet certain criteria around job 
quality, and it suggested the Department should use TAA Program funds 
to support registered apprenticeships rather than promote 
apprenticeships with weaker protections and lower quality standards.
    Many of these comments stated that training approved under the TAA 
Program must, or at least should, meet the Registered Apprenticeship 
program standards established by the Department pursuant to its 
authority under the NAA and set forth at 29 CFR parts 29 and 30. But 
the TAA Program is not governed by the regulations implementing the 
Registered Apprenticeship program, and a broad range of employer-based 
training is allowed under the Act. The Act's standards for the benefit 
of workers and its criteria for approving training continue to be met 
under this final rule, as they have in the past.
    With respect to commenters' concerns about proposed Sec.  
618.635(c) allowing apprenticeships under the TAA Program that are not 
registered apprenticeships under the NAA, section 236(a)(5)(G) of the 
Act provides the Secretary significant latitude in determining which 
types of training States may approve under the TAA Program. Section 
236(a)(5)(A) of the Act also provides that employer-based training is 
allowable under the TAA Program and provides a nonexhaustive list of 
the types of allowable employer-based training. Using these two 
provisions, both registered apprenticeships and nonregistered 
apprenticeships have always been allowable types of training under the 
TAA Program. The proposed rule changed the benefits available for these 
training programs. In addition, proposed Sec.  618.635(c) adopted the 
labor protections established in the Act for OJT as requirements for 
apprenticeships to provide additional protections. Lastly, proposed 
Sec.  618.635(c) required any nonregistered apprenticeship to lead to 
the issuance of a recognized post-secondary credential, which includes 
an industry-recognized credential. TAA Program data have shown that 
participants who complete training and receive a credential have better 
outcomes than those that do not complete training or those that 
complete training but do not receive a credential. This requirement for 
a recognized post-secondary credential, when combined with employer-
based training, promotes better outcomes for TAA Program participants. 
Accordingly, no changes were made to the regulatory text in response to 
these comments.
    Proposed paragraph (c)(7) defined the term ``sponsor'' as it 
relates to apprenticeships. Proposed paragraph (c)(8) required the 
State to enter into a contract with the sponsor that establishes the 
terms and conditions of the apprenticeship. As explained in the above 
discussion of Sec.  618.635(c)(2), the

[[Page 51939]]

Department has removed all references to sponsors in Sec.  618.635(c). 
Accordingly, the Department has also removed proposed Sec.  
618.635(c)(7) from the final rule, since ``sponsor'' is no longer a 
term used in the rule, and redesignated proposed Sec.  618.635(c)(8) as 
Sec.  618.635(c)(7). Aside from the changes discussed above, the final 
rule adopts Sec.  618.635 as proposed.
Section 618.640 Supplemental Assistance
    Proposed Sec.  618.640 discussed supplemental assistance that must 
be provided to trade-affected workers to defray reasonable subsistence 
and transportation expenses while a worker attends training at a 
facility outside of his or her commuting area.
Paragraphs (c) and (d)
    Proposed Sec.  618.640(c) and (d) discussed the requirements for 
supplemental assistance in the form of subsistence and transportation 
payments for TAA approved training participants.
    The proposed requirements for subsistence payments were that trade-
affected workers must be reimbursed for subsistence only for the period 
when they are not receiving or authorized to receive reimbursement or 
separate payments for such costs from any other source; that 
subsistence payments must not be made for any day when a worker 
receives a daily commuting transportation payment from TAA Program 
funds or any other source (except under certain circumstances, outlined 
at Sec.  618.640(e)); and that subsistence payments must not be made 
for any day of unexcused absence from the training program.
    The Department received comments on this section and responds to 
them below. The Department is finalizing this section as proposed, with 
the exception of the insertion of the phrase ``trade-affected'' in 
front of ``worker'' in paragraph (c)(2) and the correction of the use 
of a pronoun. One commenter questioned whether the proposed language at 
Sec.  618.640(c)(2)(iii), which generally prohibited subsistence 
payments for any day a trade-affected worker receives a daily commuting 
transportation payment from TAA Program funds or another source, would 
allow subsistence payments for days when an absence is excused. The 
Department has specifically disallowed subsistence payments on days 
where an absence is unexcused and the State would be required to 
determine if a subsistence payment is necessary in the event of an 
excused absence.
    One commenter said that the provision at proposed Sec.  
618.445(a)(1)(i) and (ii) allowing for different relocation completion 
deadlines for training participants inside and outside of a commuting 
area would necessitate programming adjustments to case and data 
management systems in order to achieve compliance. The Department 
explains that Sec.  618.640(c) and (d) refer to subsistence and 
transportation assistance as part of an approved training program, not 
relocation allowances.
    The same commenter also questioned whether the ``maximum limit'' on 
reimbursement of mileage outside the defined commuting area referred to 
a daily or overall limit. The Department confirms that it is a daily 
limit, as provided in Sec.  618.640(d)(2) and (3). The State must 
determine whether it is more cost effective to provide subsistence 
payment in lieu of daily transportation costs. If the State determines 
that subsistence would be more cost effective, the trade-affected 
worker may choose to commute each day, but will be reimbursed only the 
costs determined under the subsistence benefit.
    One commenter questioned whether mileage reimbursements would begin 
``at the mile beyond the definition'' rather than ``mile one'' for 
trade-affected workers traveling beyond the normal commuting area. 
Another commenter questioned whether the provision at paragraph (d) 
indicating transportation payments are only available for miles outside 
of a worker's commuting area was meant to indicate that all workers 
attending training would receive transportation reimbursements. As 
proposed in Sec.  618.640(d), reimbursement is for mileage beyond the 
commuting area. Thus, ``mile one'' is the first mile outside of the 
regular commuting area. Trade-affected workers may receive supplemental 
assistance, including transportation, only if it is part of a TAA 
approved training program.
    One commenter expressed concern that the decrease of mileage 
reimbursement in proposed Sec.  618.640(d) and alignment of TAA 
approved training caps with lower local area WIOA caps, as described in 
the preamble to the proposed rule in Sec.  618.650, would result in 
reduced AAW benefits, and it recommended eliminating these changes. The 
Department addresses training caps in proposed Sec.  618.650 in that 
section of the final rule preamble below. The statute provides that the 
Secretary can authorize payments of supplemental assistance where 
appropriate. The final rule codifies (as proposed) that supplemental 
assistance is allowable only if the trade-affected worker is accessing 
training outside of the worker's commuting area, in accordance with 
section 236(b) of the Act, and that the reimbursement is limited to the 
mileage outside of that area. For workers co-enrolled with WIOA, that 
program could cover the transportation costs within the commuting area 
as a supportive service.
    One commenter questioned whether States would be permitted to set 
definitions of commuting distance. The Department has determined that 
States may set new definitions or look to applicable State law. If no 
such law exists, States will need to establish a definition for 
purposes of this part 618.
    One commenter said the provision at proposed paragraph (d) to 
restrict transportation payments to miles beyond a trade-affected 
worker's commuting area would cause issues in its State because each 
WIOA region only covers specific commuting areas and pays different 
rates for transportation. The commenter also said this provision 
contradicts the principle of making TAA Program funds the primary 
source of Federal assistance for workers. A few commenters said that in 
their States, WIOA currently covers travel in the commuting area, and 
they argued that limiting TAA-funded reimbursement to miles outside of 
a commuting area would needlessly ``shift'' TAA Program supportive 
services onto WIOA. The commenters said this would be especially 
burdensome in States with large rural areas, such as the commenters' 
States. These commenters also stated that limiting reimbursement to 
miles outside of the commuting area would force local areas to process 
multiple mileage reimbursements for the same trip, and since local 
areas set different reimbursement rates, the same worker could receive 
different WIOA mileage rate reimbursements across the State. Section 
236(b) of the Act provides that when trade-affected workers are outside 
of their commuting area, supplemental assistance may be provided where 
appropriate. The proposed rule established conditions for such 
assistance and reflected the Department's determination for when 
supplemental assistance is appropriate. As for the same commenter's 
concern that there is a contradiction among the proposed rule and 
support services under WIOA, the language in proposed Sec.  618.640, 
and the requirement that TAA Program funds be the primary source of 
funding for TAA Program workers, the Department disagrees that there is 
a contradiction. Under the TAA

[[Page 51940]]

Program, the Department considers reimbursing mileage within a defined 
commuting area a supportive service that would be allowed under a 
partner program, such as WIOA. The definition of commuting area (or 
commuting distance) is left to the States. This definition may already 
exist in State UI law, regulations, or program policy. If no such 
definition exists, the State must establish one for purposes of the TAA 
Program.
    Some commenters also questioned whether transportation payments 
were meant to be limited to 90 percent of the prevailing personal 
vehicle mileage rate, and they asserted that such a limitation would 
mean less TAA Program funding would be used, workers might not receive 
sufficient reimbursement to cover their travel costs, and additional 
calculations at the time of approval and payment would be required. One 
commenter said the revision establishing a maximum limit of 90 percent 
of the cost per mile at the prevailing personal vehicle mileage rate 
was inconsistent with prior administrative guidance, which requires 
that transportation payments must cover the entirety of a worker's 
commuting distance. The Department clarifies that although the preamble 
to the proposed rule in Sec.  618.640(d) included a discussion of the 
establishment of a 90-percent limit on the cost per mile, the 
Department did not intend to establish such a limit, as reflected in 
the proposed regulatory text, which did not include such language, and 
such limitation is not included in the final regulatory text.
    One commenter requested additional clarification on whether States 
could determine if payments will occur on a weekly or monthly basis, 
stating that reimbursements could be less than $10 in some instances 
and requiring weekly reimbursements for such small amounts would create 
administrative strain and unduly burden workers who must travel to 
recoup their reimbursements. The proposed rule, as adopted in the final 
rule, provided at Sec.  618.640(c)(4) and (d)(4) that payments for 
supplemental assistance must be paid at the completion of a week of 
training. With the availability of electronic payment processing, the 
Department does not conclude that this is an undue burden on States, 
and many trade-affected workers are already under financial strain. The 
TAA Program provides sufficient funding to the States to meet this 
requirement and ease the additional financial burden placed on workers 
that need to travel to participate in training.
Paragraph (e)
    The Department made two edits to the use of pronouns in paragraph 
(e).
Paragraph (g)
    Proposed Sec.  618.640(g) provided that trade-affected workers must 
provide receipts for all lodging, purchased transportation expenses, 
and meals as evidence of incurred expenses. Some commenters requested 
more clarity on what is meant by ``purchased transportation expenses'' 
and questioned whether the provision will require workers to submit 
receipts for gas and oil changes and other similar transportation 
expenses. One commenter questioned whether training participants who 
travel on a weekly basis would have to submit receipts for gas, and it 
argued that such a situation would preclude cost savings and place 
undue burden on the training participant. The proposed rule, as adopted 
by the final rule, provided that trade-affected workers travel in 
accordance with the FTR. If a worker is traveling by privately owned 
vehicle, the program reimburses at the rate established by the rate per 
mile established by GSA. The GSA rate per mile takes into account wear 
and tear as well as regular maintenance costs, as well as the cost of 
fuel. So, the receipts in question would be for purchased 
transportation, such as rental cars, buses, trains, airfare, ride-share 
services, and tolls. Receipts are required for these other types of 
transportation costs but are not needed for fuel unless a worker is 
utilizing a rental car. A State may use an online mapping tool to 
determine the mileage traveled. If the training location does not 
change, the mileage would need to be documented only once.
    No changes have been made to Sec.  618.640 as a result of these 
comments. The Department made a nonsubstantive edit in paragraph (b) of 
this section to correct a cross-reference to the section heading of a 
different section; otherwise, the final rule adopts this section as 
proposed.
Section 618.645 Voluntary Withdrawal From a Training Program
    Proposed Sec.  618.645 established a new requirement regarding a 
trade-affected worker's voluntary withdrawal from a training program. 
This provision had no comparable counterpart in previous regulations or 
in administrative guidance.
    During its oversight of the TAA Program, the Department has 
encountered numerous situations where a trade-affected worker has 
withdrawn from training. States have also requested technical 
assistance and interpretations of the Act and regulations related to 
this topic. This section provides direction to the States on this 
topic. The Department is finalizing this section as proposed, except 
for the changes described herein, and an edit to the use of a pronoun 
in paragraph (e).
    One commenter supported the proposed provisions at Sec.  618.645 
and specifically Sec.  618.645(a), which provided that States must 
advise trade-affected workers that withdrawal from a TAA approved 
training may result in an overpayment and ineligibility for TRA.
    One commenter said in response to proposed paragraph (a) that its 
State does not currently have a mechanism to collect overpayments and 
asked whether having such a mechanism in place was mandatory for every 
State. The same commenter expressed concern that the provision could 
discourage some workers from engaging in TAA approved training. While 
the proposed provision requiring States to notify trade-affected 
workers that voluntary withdrawal from a training may be established as 
an overpayment and may result in ineligibility for TRA is new, the 
requirement to establish and collect overpayments related to training 
is not new and was included in the previous regulations at 20 CFR 
617.55.
    One commenter supported the provision at Sec.  618.645(d) 
permitting workers to continue to receive job search and relocation 
assistance if they withdraw from training for good cause. The 
Department appreciates the commenter's support of this provision.
    One commenter asked why the provision at proposed Sec.  
618.645(e)(1)(ii), which provided that States must continue funding an 
approved training program as long as training benchmarks at proposed 
Sec.  618.660 continue to be satisfactorily met, refers to training 
benchmarks since these are only required for workers who need 
Completion TRA. The commenter suggested the regulation should specify 
that States need to have ``a similar process'' in place for workers not 
eligible for TRA. Although the statute only explicitly requires 
benchmarks for payment of Completion TRA, the Department has previously 
addressed the issue of training benchmarks in administrative guidance. 
This final rule requires, in Sec.  618.660(b), that training benchmarks 
be established for all but short-term training. This ensures that 
States are remaining in contact with trade-affected workers enrolled in 
training and allows for any issues that arise during the training to be 
addressed in a timely manner in order to ensure a positive outcome for 
the worker. The

[[Page 51941]]

Department has revised the proposed regulatory text, by removing 
proposed Sec.  618.645(e)(1)(i) and (ii) and incorporating the 
substance of proposed Sec.  618.645(e)(ii) into the final regulatory 
text at Sec.  618.645(e), in order to clarify that if a trade-affected 
worker wishes to withdraw from training, he or she may do so, subject 
to the provisions of this section. A State cannot subsequently deny 
training, after initially approving a training program, based on a 
later availability of suitable employment. This edit also conforms to 
the changes made to Sec. Sec.  618.615 (limitations on training 
approval) and 618.630 (training of reemployed trade-affected workers).
Section 618.650 State Standards and Procedures for Establishing 
Reasonable Cost of Training
    Section 236(a)(1)(F) of the Act requires States to approve training 
suitable for the trade-affected worker and available at a reasonable 
cost. Proposed Sec.  618.650 set forth State standards and procedures 
for establishing reasonable cost of training. Proposed Sec.  618.650 
did not have a counterpart in the previous regulations at 20 CFR part 
617. The Department is finalizing this section with a minor revision 
described below.
    Proposed Sec.  618.650(a) provided that while a State is not 
prohibited from setting a statewide limit or limits for local workforce 
development areas on the amount of training costs considered reasonable 
and appropriate for training programs, any limits the State establishes 
must reasonably take into account the cost of training available in 
local workforce development areas throughout the State (and any 
statewide limit must recognize that costs may vary significantly 
between urban and rural areas). Proposed Sec.  618.650(a) also provided 
that expenditures must be prudent under the standards of the OMB's 
Uniform Guidance (2 CFR 200.404) and its attendant interpretive 
guidance, and that States must comply with the standards for 
reasonableness in proposed Sec.  618.610(f)(2), including those 
permitting States to allow training other than the least cost option if 
the extra cost is justified by better trade-affected worker outcomes or 
a faster return to the workforce.
    In the NPRM, the Department also solicited public comments 
regarding an alternative approach to establishing a definition of 
``available at a reasonable cost'' wherein the Department would 
promulgate a regulation providing that a soft cap would be initially 
established as the local area's established limit for ITAs under WIOA. 
Under this alternative approach, the local area would be able to 
request to exceed this cap to meet the needs of the trade-affected 
worker.
    Two commenters maintained that their States would not support a 
soft cap establishing a local area's limit for ITAs under WIOA and 
opposed coupling the limit on training costs because of the many 
differences between the WIOA and TAA programs. One of these commenters 
said that in its State, caps on WIOA training funds are very low and 
almost all TAA approved training programs would need to include 
requests to exceed the cap. Another commenter similarly claimed that, 
in its State, local areas' ITA caps are below the State TAA approved 
training cap and the soft cap alternative would mean most training 
approval requests would seek to exceed the cap. The commenter stated 
that the approach proposed at Sec.  618.650(a) would be less burdensome 
than the alternative approach. One commenter said its State has a 
training cost ceiling but evaluates training requests individually and 
will approve reasonable trainings with costs above the soft cap. The 
commenter argued that, since its State's training locations are 
limited, a soft cap should be regulated at the State level. One 
commenter recommended revising the last sentence of Sec.  618.650(a) by 
replacing ``local area'' with ``trade-affected worker.'' Comments, 
including those above, opposed the alternative using the ITA limit as a 
soft cap and coupling the limit on training with WIOA. The Department 
appreciates the feedback and will not be adopting the alternative 
proposal into the final rule. The demographic differences between TAA 
Program participants and WIOA participants is significant enough that 
the training and service needs of trade-affected workers often require 
additional resources beyond what WIOA would traditionally provide. 
Accordingly, no changes have been made to the regulatory text in 
response to these comments. The final rule adopts the proposed 
limitations for States that choose to implement one.
    Paragraph (b) of proposed Sec.  618.650 provided that States must 
develop transparent standards and procedures that provide for prompt 
consideration of any request for approval of training costs that exceed 
an established training cost limit. This paragraph required that the 
review standards developed by the State must allow for approval of 
costs that exceed the applicable training cost limit when a training 
program will provide the most reasonable way of returning a trade-
affected worker to employment at higher wages or place the worker on a 
pathway to do so.
    A commenter recommended that the Department reconsider the use of 
the term ``career pathway'' in proposed paragraph (b) since this is a 
technical term defined in the WIOA regulations, and it recommended 
deleting the word ``career'' from the second sentence of this 
paragraph. The Department concurs with the commenter and has made this 
change to the regulatory text at Sec.  618.650(b) of the final rule.
Section 618.655 Training for Adversely Affected Incumbent Workers
    Proposed Sec.  618.655 addressed the approval of training for 
AAIWs. Proposed paragraph (a) clarified that AAIWs are eligible for 
approved training before separation, and further clarified that AAIWs 
may apply for training and States may approve training for any AAIW at 
any time after the date on which he or she is determined to be 
individually threatened with separation regardless of filing for, 
receiving, or exhausting UI. Proposed paragraph (b) clarified how a 
State will verify that an AAIW is threatened with total or partial 
separation.
    One commenter expressed general support for serving AAIWs through 
partnerships between the TAA Program and rapid response and also 
provided a neutral response regarding serving AAIWs because of the low 
number of certified firms in its State.
    The Department is adopting this section in the final rule as 
proposed, with the exception of edits to the use of pronouns in 
paragraphs (a) and (e).
Section 618.660 Training Benchmarks
    Proposed Sec.  618.660 provided the process for establishing and 
monitoring compliance with training benchmarks. Benchmarks are required 
by section 233(f)(3)(A) of the Act when the trade-affected worker 
enrolls in an approved training program that will extend beyond the 
duration of payable weeks of Basic TRA and Additional TRA, for the 
purposes of eligibility for Completion TRA, in accordance with subpart 
G. Proposed Sec.  618.660 implemented existing operations of the TAA 
Program. The Department is finalizing Sec.  618.660 as proposed, except 
for the one change in Sec.  618.660(c) discussed below.
Paragraph (a)
    Paragraph (a) proposed to codify the requirement for States to 
establish and document training benchmarks for AAWs (and it is 
recommended to do so for AAIWs) so that they can meet Completion TRA 
eligibility requirements described at proposed Sec.  618.765. The 
benchmarks must be

[[Page 51942]]

established when the trade-affected worker enrolls in an approved 
training program so that the State can monitor the worker's progress 
toward completing the approved training duration limits set forth at 
proposed Sec.  618.615.
    A State workforce agency asked whether the training benchmarks 
apply to AAIWs in training and, if not, whether the State may require 
benchmarks for all trade-affected workers in training in order to 
monitor adequately their progression through trainings. The Department 
encourages States to utilize training benchmarks for all workers, 
including AAIWs. AAIWs are ineligible for Completion TRA, but as the 
AAIW may become an AAW upon separation, it is highly recommended that 
training benchmarks be put in place at the start of the AAIW's approved 
training program.
Paragraphs (b) and (c)
    Proposed paragraph (b) required training benchmarks to be 
established for all but short-term training programs, such as a 3-month 
certificate program, and proposed paragraph (c) provided that to review 
the trade-affected worker's progress against the benchmarks, States may 
request that the training provider provide documentation of the 
worker's satisfactory progress, including instructor attestations, 
progress reports, etc.
    One State workforce agency asked whether the Department intended to 
use the term ``training provider'' instead of ``vendor'' at Sec.  
618.660(c), and it expressed confusion over the use of different terms. 
The Department concurs with the commenter that the use of the different 
terms is confusing and has changed the proposed regulatory text from 
``vendor'' to ``training provider'' in the final rule at Sec.  
618.660(c).
Paragraph (f)
    Proposed paragraph (f) required a State to evaluate and document 
satisfactory progress against two benchmarks: (1) The AAW is 
maintaining satisfactory academic standing (e.g., not on probation or 
determined to be ``at risk'' by the instructor or training provider); 
and (2) the AAW is on schedule to complete training within the 
timeframe identified in the approved training program.
    One State workforce agency said that AAWs might be disadvantaged in 
States that require benchmark reviews more frequently than every 60 
days since workers would have less time to demonstrate their 
progression within a training program and would be more likely to fail 
subsequent reviews. The 60-day period was established in prior 
administrative guidance and the Department recognizes that many States 
have implemented case management processes that require a check-in with 
workers at least once every 30 days, which can inform a benchmark 
review but not take the place of one. The Department has determined 
that the proposed time period is sufficient and meets the requirement 
at Sec.  618.660(e) that training benchmarks be flexible enough to 
allow for some variability and both practical and measurable enough to 
allow administration across a broad spectrum of training scenarios and 
State environments. The Department, therefore, is adopting Sec.  
618.660(f) in the final rule as proposed.
    One commenter requested clarification on what the Department meant 
in the preamble to the proposed rule when it stated that inclusion of 
benchmarks should occur when the training program is ``initially 
established and approved'' because contracts are sometimes placed 
months in advance of the start of a training program. Proposed Sec.  
618.660(f) required that benchmarks are to be evaluated and documented 
every 60 days beginning with the start of the approved training 
program. This may or may not align with when the contract is executed 
or an enrollment occurs. The 60-day period starts on the first day of 
actual training. The Department has retained the regulatory text at 
Sec.  618.660(f) in the final rule as proposed.
Paragraph (g)
    Under proposed paragraph (g)(1), upon failure to meet either or 
both of the benchmarks for the first time during the same evaluation 
period, the State must provide a warning to the AAW that his or her 
eligibility for Completion TRA is in jeopardy.
    One commenter said the provision at Sec.  618.660(g)(1) regarding 
ineligibility for previous benchmark failures appeared punitive. The 
commenter asked if there was a good cause exception to such 
ineligibility. The Department reiterates that the ineligibility for 
Completion TRA as a result of benchmark failures is statutory as 
provided in section 233(f)(3)(A) of the Act. Furthermore, this is not a 
change from current practice. Two unresolved benchmark failures will 
result in a loss of eligibility. However, as is also current practice, 
a training program can be amended to assist a worker to successfully 
complete training.
    Proposed paragraph (g)(2) provided that, if an AAW who has 
previously failed to meet a benchmark under paragraph (g)(1) fails to 
meet a benchmark during a subsequent benchmark review under paragraph 
(f), the State must notify the worker of his or her ineligibility for 
Completion TRA. An AAW may elect to continue in the approved training 
but will not receive any Completion TRA payments; or, the training 
program must be amended according to proposed Sec.  618.665, and 
Completion TRA payments may resume.
    Some commenters requested clarification under proposed Sec.  
618.660(g)(2) on whether a worker's failure to meet a different 
benchmark during a ``subsequent benchmark review'' will result in the 
loss of Completion TRA. These same commenters asked if under proposed 
Sec.  618.660(g)(2) a client would lose Completion TRA if they were 
found to have resolved the original issue, but failed to meet a second 
benchmark, in the subsequent review. One commenter asked how this 
ineligibility clause would be applied to instances when a worker's 
failed benchmarks relate to different classes. The Department has 
determined that, after the first failure, if a warning and training 
program modification corrects the issue, then the failure ``resets'' 
and the AAW is considered to have no failed benchmarks. If, however, a 
first failure is not resolved and a second benchmark is failed with the 
first benchmark failure still outstanding, then a training program 
modification is required. If the worker fails to comply with the 
requirement to amend his or her training program, the worker must be 
notified of his or her ineligibility for Completion TRA. If the 
training program is amended, the worker can resume training and remain 
eligible for Completion TRA.
    One commenter asked whether a State may take corrective action and 
provide assistance to an AAW if the State learns that the AAW is 
struggling with his or her training because of failing or withdrawing 
from classes. The State can provide assistance to the worker in a 
proactive manner in order to ensure a timely and successful completion 
of the training. The Department affirms that any corrective action 
taken should be documented on the worker's IEP and could include 
amending the training program. The Department made two edits to the use 
of pronouns in paragraph (g). No other changes were made to the 
proposed regulatory text at Sec.  618.660(g) in the final rule.
Section 618.665 Amending Approved Training
    Proposed Sec.  618.665 provided conditions for amending an approved

[[Page 51943]]

training program. Proposed Sec.  618.665 recognized that more 
substantial amendments may be necessary to provide trade-affected 
workers with skills necessary to obtain employment and sets forth the 
circumstances, and conditions, under which amendments must be made.
Paragraph (a)
    Proposed paragraph (a) required the State to work in cooperation 
with the trade-affected worker in amending a training program where the 
need for such amendment was not foreseeable and where the worker 
demonstrates good cause for the need to amend. Proposed paragraphs 
(a)(1)(i) through (x) provided the list of conditions to be met for an 
amendment to be appropriate. Proposed paragraph (a)(2) provided that 
the training duration limits at proposed Sec.  618.615(d)(3) apply to 
amended programs. Proposed paragraph (a)(3) required an amendment to be 
made before completion of the original training program.
    One commenter said the process for modifying training programs set 
forth in proposed Sec.  618.665(a) would allow for the creation of more 
customized training programs that align with AAWs' needs and would 
encourage ``creative mixes'' of classroom and work-based trainings. 
Another commenter expressed support for the added flexibility with 
respect to approved training programs because such flexibility would 
improve employment outcomes and result in higher wages. The Department 
appreciates the commenters' support of these provisions.
    One commenter asked how the Department intended to define 
``industry-recognized credential'' as it appears in proposed Sec.  
618.665(a)(1)(ii). The Department addressed this in response to a 
similar comment in Sec.  618.635. The term ``industry-recognized 
credential'' is not defined in the Act; however, the term ``recognized 
postsecondary credential'' is defined in section 247(19) and that term 
also is used in section 239(j)(2)(A)(i)(IV) to identify a factor in one 
of the primary indicators of performance that the State must report to 
the Secretary. Section 3(52) of WIOA contains the same term and 
definition for similar reporting purposes. Industry-recognized 
credentials are a subset of recognized postsecondary credentials. The 
Department has determined that no further definition is needed in this 
final rule.
    One commenter expressed support for the proposed provision to amend 
a worker's approved training program in Sec.  618.665. The commenter 
asked if Sec.  618.665(a)(1)(iv) applies if approval of a short-term 
training would improve employment prospects. The commenter also asked 
whether the Department had considered a time limit on trade-affected 
workers' ability to amend their training program with a different 
occupational goal. Under the proposed rule, and as adopted in the final 
rule, a training program can be amended to shorten it if the shorter 
training will improve the likelihood of employment. The Department 
considered establishing a time limit on when a trade-affected worker 
can amend his or her training program to another occupational goal, but 
decided not to in order to allow States flexibility to serve the 
varying needs of trade-affected workers.
    The same commenter also asked if the provision at proposed Sec.  
618.665(a)(1)(v), which explains that an amendment to an approved 
training program is appropriate if the worker cannot successfully 
complete the originally approved training program, extended to ``any 
reason.'' The Department asserts that the concept of reasonableness 
always applies to Federal regulations. This is not, and should not be 
viewed as, an allowance to amend for any reason.
    With respect to the limit of one training program per certification 
set forth in proposed Sec.  618.655(d)(3), a State workforce agency 
asked what circumstances would transform a training amended under the 
provisions at proposed Sec.  618.665(a)(1)(v), (vi), and (vii) (listing 
conditions that may allow an amendment) to an entirely new training 
program. A training program may be amended up until the time the trade-
affected worker has completed the entire training program as originally 
approved. Only if a worker had completed his or her approved training 
program, and then sought additional components to add to the training 
program, would there be a second training program. The Department 
affirms that the provisions established in Sec.  618.665 are sufficient 
to prevent workers from receiving more than one training program per 
certification and do not establish entitlement to a second training 
program.
    One commenter stated its interpretation of the language at proposed 
Sec.  618.665(a)(1)(i) through (x) was that the TAA Program would no 
longer limit each worker to one training as long as at least one of the 
conditions in paragraphs (i) through (x) is satisfied, and it asked the 
Department to confirm this interpretation. The Department reiterates 
that allowing amendments is not the same as providing a second 
training. Amendments are merely modifications to the trade-affected 
worker's one training program. The one training program policy is still 
in place. A worker could not, for example, complete an entire training 
program and then apply for another training program. The Department has 
made an edit to the use of a pronoun in paragraph (a)(1)(iii).
Paragraph (b)
    Proposed paragraph (b) sets forth the criteria that must be met in 
order for a training program to be amended.
    One commenter asked why the assessment of labor market conditions 
at proposed Sec.  618.665(b)(1) is limited to the trade-affected 
worker's commuting area or the area of the worker's intended 
relocation. The same commenter stated that this provision was 
``unnecessarily limiting'' and argued that workers may be willing to 
commute longer distances for suitable employment. The commenter also 
said proposed Sec.  618.665(a)(2), providing that the training duration 
limits at proposed Sec.  618.615(d)(3) apply to amended programs, was 
``overly limiting'' since workers may seek to travel a longer distance 
to attend a higher quality training even if there is a suitable 
training program that aligns with their occupational goals within their 
commuting area. The commenter's statement that workers may be willing 
to commute farther for what they perceive to be higher quality programs 
was also directed at the language in proposed Sec.  618.665(b)(1)(iv), 
which explains that amendment is appropriate if the worker has a 
reasonable expectation of employment in a limited demand occupation in 
their commuting area. The Department has determined that without this 
limiting language, a State could require an unreasonable work search 
across a broad geographic area. Although workers may choose to seek and 
accept employment outside of their commuting area without relocating to 
that area, they need not do so to be eligible for training. Thus, the 
requirements are limited to the commuting area or to where the worker 
intends to relocate.
    The same commenter said many of its comments concerning the 
language in proposed Sec.  618.610, which addresses criteria for 
initial approval of training, also applied to proposed Sec.  618.665 
and asked why the Department determined it was necessary to repeat 
these provisions in both places. Not all of the provisions in Sec.  
618.610 are repeated in this section because they do not all apply when 
amending a training program. Therefore, the Department chose to list 
those requirements that do apply in proposed Sec.  618.665.

[[Page 51944]]

    The Department made a nonsubstantive edit in paragraph (b)(3)(iii) 
of this section to correct a cross-reference to the section heading of 
a different section, two edits to the use of pronouns in paragraph 
(b)(1), and an edit to subject-verb agreement; otherwise, the final 
rule adopts this section as proposed.
    One commenter argued that it would make more sense to consider 
general labor market information, rather than just the information in 
the worker's case file, when seeking to amend an approved training. The 
Department affirms that the regulatory text at proposed Sec.  
618.665(b)(1) requires an examination of the labor market conditions at 
the completion of the training program. If the end date of the training 
program has been modified, or will be modified as a result of the 
amendment, the State would need labor market information beyond that 
which is likely to already be included in the trade-affected worker's 
case file.
    One commenter said that while proposed Sec.  618.665(b)(1)(ii) 
states, in part, ``as identified on the worker's IEP, if available,'' 
the provision at Sec.  618.350 indicates that an IEP must be documented 
before a worker can receive training under the TAA Program. The 
documentation requirement was addressed previously in the final rule 
preamble under subpart C.
    The same commenter also asserted that proposed Sec.  
618.665(b)(1)(ii) indicates that the original occupational goals cannot 
be amended, a provision that may conflict with the language at proposed 
Sec.  618.665(a)(1)(vii), which included ``[t]raining in another 
occupation will lead to a greater likelihood of training completion or 
a better employment outcome'' as a basis for amending approved 
training. The cited provision does not prohibit a change in 
occupational goals. The IEP is dynamic and can and should be revisited 
throughout a trade-affected worker's enrollment in the TAA Program. If 
a change in occupational goal is determined to be appropriate, the IEP 
will need to be updated.
    The final rule adopts the regulatory text in Sec.  618.665 in the 
final rule as proposed.

G. Subpart G--Trade Readjustment Allowances

    Subpart G covers the eligibility requirements for, and the amounts 
and duration of, TRA. Subpart G reorganizes and simplifies some of the 
provisions of 20 CFR part 617 to make them easier to follow and 
modifies or excludes some provisions of part 617 to reflect statutory 
amendments and policy determinations found in administrative guidance. 
Where the Department received comments on specific paragraphs within a 
section, details of those paragraphs as proposed in the NPRM are 
included to provide context for the discussion of comments that 
follows. No comments were received on proposed Sec. Sec.  618.700 and 
618.770. Those sections are adopted in the final rule as proposed.
Section 618.705 Definitions
    Proposed Sec.  618.705 had no comparable counterpart in previous 
regulations or in administrative guidance. It established for the first 
time definitions of the terms ``participating in approved training'' 
and ``training allowance'' as used in this proposed subpart G. It also 
addressed the issue of wages as it relates to a successor-in-interest.
    Proposed paragraph (a)(1) of this section defined the phrase 
``participating in approved training'' generally, relative to 
attendance and taking part in on-site classes, activities, and events 
as well as covering excused absences.
    A State workforce agency asked for more information about what 
documentation is needed to show, under paragraph (a)(1) of this 
section, that a worker's absence from or failure to take part in 
training was excused by the training provider in accordance with the 
provider's written policies. The Department has determined that 
documentation may be varied and includes, but is not limited to, a 
written or electronic note or a documented phone call. Specific 
questions about this issue should be discussed with the appropriate 
regional office.
    Proposed paragraph (c) of this section defined the term ``adversely 
affected employment'' and was derived from the definition of the term 
``firm'' contained in 29 CFR 90.2 and in proposed Sec.  618.110, which 
provided that any predecessors or a successor-in-interest are 
considered part of the same firm for purposes of proposed subpart B. 
Proposed paragraph (c) extended that logic to the wages earned by an 
AAW that may be reported under the subject firm named on a petition, a 
predecessor, or a successor-in-interest. For purposes of TRA, wages 
reported to a State or paid to an AAW by a successor-in-interest are to 
be treated as weeks and wages in adversely affected employment for 
purposes of establishing TRA eligibility.
    One commenter said that paragraph (c) was a ``welcome addition'' 
because it removes the ``inconvenience'' of having to track down the 
names under which an employer's predecessors or successors, or both, 
operated in order to include them in certification documents. The 
Department appreciates this feedback.
    The Department has made no changes to this section in response to 
these comments and adopts it into the final rule as proposed.
Section 618.710 Categories of Trade Readjustment Allowances
    Proposed Sec.  618.710 explained that there are three categories of 
TRA: Basic, Additional, and Completion, which were discussed in 
proposed paragraphs (a), (b), and (c), respectively. This proposed 
section had no parallel in 20 CFR part 617 but was part of 
administrative guidance.
    Proposed paragraph (b) described Additional TRA as payable to an 
AAW who meets the requirements of proposed Sec.  618.760, which set 
forth qualifying requirements for, and the timing and duration of, 
Additional TRA, and stated that Additional TRA begins the first week 
after exhaustion of Basic TRA.
    The Department received no comments on proposed Sec.  618.710. 
However, upon review of the proposed regulatory text, the Department 
has determined that the statute does not explicitly require the 
exhaustion of Basic TRA as an eligibility criteria for Additional TRA. 
As a result, the Department has edited the second sentence of paragraph 
(b) of this section to remove this requirement, and has otherwise 
adopted the section as proposed.
Section 618.715 Applications for Trade Readjustment Allowances and 
Payment
    Proposed Sec.  618.715 pertained to applications for TRA and 
payment. Paragraph (a) addressed the timing of TRA applications; 
paragraph (b) set forth the procedures for filing applications; 
paragraph (c) addressed how determinations of the applications should 
be treated; paragraph (d) discussed matters related to payment of TRA; 
and paragraph (e) pertained to the taking of applications for TRA 
benefits. The Department is finalizing this section as proposed, except 
for the changes described herein.
Paragraph (a)
    Proposed paragraph (a) of this section modified 20 CFR 617.10(b) to 
specify that an application for TRA must be filed after a certification 
is issued. It also omitted all references to applications for TRA that 
appeared in 20 CFR 617.10(b) for weeks of unemployment beginning

[[Page 51945]]

before the initial application for TRA is filed because doing so would 
needlessly confused the requirement that TRA cannot be paid until an 
AAW is covered by a certification as described in proposed paragraph 
(d) of this section. Proposed paragraph (a)(2) of this section provided 
that an application for TRA must be filed within the time limit 
applicable to claims for regular compensation under the applicable 
State law.
    One commenter requested clarification about the requirement in 
paragraph (a)(1) of this section that TRA applications be filed after 
publication of the certification of the appropriate worker group, 
asking whether this meant publication by the Department in the Federal 
Register or by the State itself. The same commenter said that waiting 
for Federal Register publication could be ``problematic'' in its State, 
because local area one-stop center staff collect TRA applications at 
TAA Program orientation meetings, which require ``multiple steps'' to 
be scheduled, and then transmit the applications to State-level 
administrators for processing, and ``[n]one of this activity is tied 
to'' a notice appearing in the Federal Register. The commenter added 
that the only ``timeliness issue'' it could anticipate under the 
present approach would be if the one-stop center provided proper notice 
of an upcoming orientation and the trade-affected worker neither 
attended nor made plans to attend on an alternative date. The 
certification date on the determination document would govern for this 
purpose, not the publication in the Federal Register. The Department 
has revised the rule in paragraph (a)(1) to remove the reference to 
publication of the certification to remove any confusion over when an 
application may be filed. The revision makes it clear that the 
application may be submitted as of the certification date of a 
petition.
    The same commenter also asked how States should implement this 
provision for AAWs who are separated later in the certification period. 
States must work with firms to continually update worker lists of those 
workers that have separations and threats of separations throughout the 
duration of the certification period.
Paragraph (c)
    Proposed paragraph (c) of this section established that TRA 
determinations are subject to specified requirements in proposed 
subpart H concerning determinations, appeals, and hearings. It also 
required that an AAW's case file include the worker's TRA 
application(s) and the determinations on those applications.
    Two commenters provided feedback on the requirement in paragraph 
(c) that States maintain copies of TRA applications and determinations 
in AAWs' case files. One commenter, saying that in its State separate 
agencies administer the TAA Program and TRA, asked whether the 
Department intends in such cases for the TAA Program agency to keep the 
applications in its files or for the TRA agency to maintain them. The 
Department has considered this comment and has determined that it is 
the State's prerogative to determine where the TRA application is kept. 
TRA records must be stored according to Federal and State records 
retention requirements and made available to the Department for review, 
as appropriate.
    One commenter described a similar division of responsibilities 
between State agencies, with TRA determinations maintained 
electronically, and asked whether this requirement meant needing to 
keep paper copies as well, which it said would be ``a waste of paper.'' 
The Department maintains that participant records may be electronic or 
paper, but must be accessible to case managers and other State and 
Federal officials who require access to a trade-affected worker's case 
file. State files and recordkeeping procedures are at the discretion of 
the State but if there is a lack of file integration between agencies 
who administer the TAA Program and TRA, then States may use TAA Program 
funds to improve their case file integration and accessibility. States 
may have to examine and modify policies and procedures to ensure that 
appropriate individuals have access to a trade-affected worker's 
complete file, including TRA. The Department made a nonsubstantive edit 
in paragraph (c) of this section to correct two cross-references to the 
section headings of different sections; otherwise, this final rule 
adopts this section as proposed. No changes to the regulatory text have 
been made in response to this comment.
Paragraph (d)
    The Department has made an edit to the use of a pronoun and 
subject-verb agreement in paragraph (d).
Paragraph (e)
    Proposed paragraph (e) of this section provided that an application 
is required for each TRA benefit type available to the AAW, however, as 
discussed below, paragraph (e) of this section has been modified in 
this final rule.
    Multiple commenters addressed the requirement in paragraph (e)(1) 
of this section that States collect separate applications for 
Additional TRA, where an application for Additional TRA was not 
previously required. Many of the commenters expressed concern that this 
change would delay the payment of TRA benefits to workers, with one of 
the commenters saying the provision would lead to ``unnecessary 
paperwork'' and another commenter maintaining that it could present 
``financial hardship'' for AAWs. A few commenters said that in their 
States, workers can move from Basic TRA to Additional TRA 
automatically, with no separate application needed, as long as certain 
requirements are met, and they suggested this approach be maintained. 
The commenters argued that separate applications would increase 
administrative burdens on States or would entail ``substantial 
changes'' to their systems. One commenter questioned whether requiring 
separate applications for Additional TRA was intended to provide 
accountability around workers' participation in training. Another 
commenter requested clarification about the correct implementation of 
this provision, asking whether States should supply workers nearing the 
end of Basic TRA eligibility with an application for Additional TRA and 
a deadline by which to return it. The Department recognizes these 
concerns and has modified the regulatory text at Sec.  618.715(e)(1) to 
require an initial application (which is typically for Basic TRA, but 
could be for Additional TRA if the AAW receives UI for a duration that 
exceeds Basic TRA) and a separate application for Completion TRA.
    It is important for AAWs to be aware that the conditions for 
receipt of each type of TRA are unique. Therefore, in response to these 
comments, the Department has established a requirement at Sec.  
618.715(e)(3) that AAWs be notified when they move from Basic TRA to 
Additional TRA so that they are aware of the eligibility conditions 
they must continue to meet to remain eligible. Providing a notice to 
AAWs informing them of eligibility criteria at each benefit entitlement 
stage fulfills due process requirements and reinforces program 
integrity. This also serves as the record that the State advised AAWs 
properly, and the State will be better able to sustain a denial of 
benefits at the appellate level since it will document that benefit 
information was provided with specificity to all AAWs proximate to the 
benefit payments.

[[Page 51946]]

Section 618.720 Qualifying Requirements for Basic Trade Readjustment 
Allowances
    Proposed Sec.  618.720 set forth the requirements for Basic TRA 
eligibility and was largely taken from the previous regulations at 20 
CFR 617.11(a)(2), but contained some changes.
Paragraph (e)
    Proposed paragraph (e) of this section required exhaustion of UI 
prior to receipt of TRA and sets forth two requirements. First, 
proposed paragraph (e) makes an exception that exhaustion of additional 
compensation that is funded by a State, and not reimbursed from any 
Federal funds, is not required. Second, it explains that whenever an 
AAW becomes entitled (or would become entitled if the worker had 
applied) to UI (except additional compensation that is funded by a 
State and not reimbursed from any Federal funds) TRA eligibility is 
suspended until the worker again exhausts UI. Proposed paragraph (e)(1) 
required exhaustion of UI entitlement and was based on 20 CFR 
617.11(a)(2)(v)(A) and (B).
    One commenter expressed concern about how paragraph (e)(1) of this 
section defines ``exhaustion of UI,'' saying it is unclear because the 
definition contains a circular reference to the term being defined. The 
commenter then quoted the previous definition of this term in 20 CFR 
617.3(p) and suggested that the Department adopt this more clear 
definition of the term from part 617. The Department explains that 
Sec.  618.720(e) provides that UI entitlement must be exhausted under 
the conditions at paragraph (e)(1) of this section and not under the 
conditions at paragraph (e)(2) of this section. The Department has 
simplified paragraph (e)(1) of this section by adding the words 
``except as provided at Sec.  618.720(e)(2)'' to the end of the first 
sentence and deleting the second and third sentences. The substantive 
requirement is unchanged. The previous definition of exhaustion of UI 
at 20 CFR 617.3(p) also is retained in its entirety because unlike the 
TRA requirement presented by Sec.  618.720(e), it explains a different 
concept that applies to UI and any Federal unemployment such as TRA. 
Exhaustion of all UI entitlement occurs by either: (1) The receipt of 
all entitlement (monetary benefits) in a benefit period; or (2) the end 
or expiration of the benefit period (benefit year ending date), 
whichever occurs first.
    Proposed paragraph (e)(2) of this section codified section 232(d) 
of the Act. This provision allowed an AAW to elect to receive TRA 
instead of UI under certain circumstances.
    One commenter supported the language in paragraph (e)(2) of this 
section that provides workers the option of receiving TRA rather than 
UI, saying that access to TRA would help workers in work-based training 
who are ``connected to employment'' but still require income supports 
to bring their initial earnings closer to their former wages. The final 
rule adopts the regulatory text in paragraph (e)(2) of this section 
into the final rule as proposed.
    Proposed paragraph (e)(3) of this section detailed the requirement 
that States provide the AAW with a summary of their potential UI and 
TRA benefits in writing and document the AAW's choice in the case 
management file.
    One commenter, citing the requirement in paragraph (e)(3) of this 
section that States provide AAWs a written summary of their potential 
TRA and UI benefits and document the AAW's choice in his or her case 
file, asked whether, in States where separate agencies handle the TAA 
Program and TRA/UI, the TAA Program agency would need to document the 
AAW's choice in its files or if it would suffice for the TRA/UI agency 
to document the choice in its files. A different commenter said that 
the provision would require changes to the UI system in its State to 
ensure proper documentation. It is important that a record of actions 
taken and the choices selected by the AAW be documented and readily 
available for review by the Department. Whether this documentation is 
maintained at the local area or State level or with one State agency or 
another is up to the State.
    The Department has determined that for an AAW to exercise the 
option between UI and TRA, the worker is required to file for UI 
benefits, establish a valid claim, and be found eligible to receive UI 
benefits, if such election is made. It is not enough only to consider 
potential monetary eligibility. A claimant can be found monetarily 
eligible, but still not be eligible to receive such UI entitlement 
consistent with 26 U.S.C. 3304(a)(7). This is a requirement of the 
Federal Unemployment Tax Act, which requires a worker who has received 
compensation during a benefit year to have had work since the beginning 
of such year in order to qualify for compensation in the next benefit 
year. Accordingly, documentation of this choice is required to 
eliminate ambiguity and maintain program integrity. The final rule 
adopts the regulatory language in paragraph (e)(3) of this section into 
the final rule as proposed, with the exception of a change to the use 
of a pronoun.
    Proposed paragraph (e)(4) of this section provided that if the AAW 
exercises the election to receive TRA, State law governs what happens 
to the valid UI claim filed. Proposed paragraph (e)(5) provided that 
the AAW must have no unexpired waiting period applicable for such 
worker for any UI, except when collecting TRA.
    As a result of the comments received above regarding proposed 
paragraph (e) of this section and the exhaustion of UI, the Department 
has edited the regulatory text in proposed paragraph (e)(4) through 
(e)(6) of this section to simplify the provisions related to UI claims 
in the second benefit year, the exhaustion of UI, and waiting periods, 
respectively. Paragraph (e)(5) of this section was newly inserted in 
this final rule and this resulted in the renumbering of proposed 
paragraph (e)(5) as paragraph (e)(6) in this section.
Paragraph (f)
    Proposed paragraph (f) of this section combined the requirements in 
20 CFR 617.11(a)(2)(vi) and 20 CFR 617.17 and reorganized and rephrased 
the paragraphs containing the specified means for meeting the Extended 
Benefits (EB) work test requirements in an easier to follow format. In 
addition, proposed paragraph (f)(2)(ii) of this section provided that 
the EB work test requirements do not apply during a break in training 
that does not exceed 30 days. The Department made an edit to the use of 
a pronoun in paragraph (f).
    One commenter asked whether proposed paragraph (f)(2)(ii), which 
provides an exception to both the ``able and available'' requirement 
and the EB work test requirement for workers during breaks in training 
not lasting more than 30 days (per the counting method in Sec.  
618.775(b)), means that these requirements do apply if the worker's 
break lasts longer than 30 days. The comment relates to the application 
of the EB Work Test.
    The EB Work Test is an eligibility requirement for all TRA as 
provided at Sec.  618.720(f)(1), except as provided at paragraph (f)(2) 
of this section. An AAW enrolled in TAA approved training, or 
participating in such training, or on a break from training, does not 
need to continue meeting the EB Work Test. As provided at Sec.  618.775 
(payment of TRA during breaks of training), Basic and Additional TRA 
are payable during

[[Page 51947]]

TAA approved training breaks, not exceeding 30 days. However, Basic and 
Additional TRA are not payable if the break in such TAA approved 
training exceeds 30 days.
    The AAW can elect to seek employment at all times, consistent with 
the EB Work Test, but it would have no effect on the payment of TRA 
during the enrollment or participation in TAA approved training nor 
during breaks in TAA approved training, whether or not they exceed 30 
days. The Department has edited the regulatory text in the final rule 
at Sec.  618.720(f)(2)(ii) by removing the reference to breaks in 
training lasting longer than 30 days in order to clarify the 
relationship between the EB Work Test and breaks in training.
    Proposed paragraph (f)(3) of this section contained the definition 
of ``suitable work.'' The applicable definition depends on an AAW's job 
prospects as discussed in 20 CFR 615.8(d). For an AAW with job 
prospects determined to be ``good,'' the applicable definition is that 
of claimants for regular compensation. Conversely, where a worker's job 
prospects are ``not good,'' the Federal-State Extended Unemployment 
Compensation Act of 1970 definition applies, and it considers any work 
within the worker's capabilities to be suitable.
    A State workforce agency agreed with the Department's rationale, 
expressed in the NPRM, for paragraph (f)(3) applying different job 
search requirements to AAWs with ``good'' job prospects versus those 
with ``not good'' job prospects (a determination the State makes under 
20 CFR 615.8(d)) but asked for definitions of ``good'' and ``not 
good.'' The State workforce agency also argued that the differentiation 
of job search requirements would mean ``considerable changes'' to its 
State's UI system. The language in the proposed regulatory text is 
revised in the final rule based on the EB Work Test provisions found at 
20 CFR 617.11(a)(2)(vi). A portion of this language was omitted in the 
proposed rule in error, specifically the reference that registration 
for work be made consistent with the EB regulations found at 20 CFR 
part 615. The applicable reference is 20 CFR 615.8(d), which provides 
an extensive explanation on the classification and determination of job 
prospects to establish whether they are ``good'' or ``not good.'' The 
Department revises paragraph (f) in the final rule to include the 
language that was omitted in error and to provide the proper reference 
to 20 CFR 615.8(d).
Paragraph (g)
    Proposed paragraph (g) of this section followed the participation 
in training requirement of 20 CFR 617.11(a)(2)(vii). Proposed paragraph 
(g)(2) provided the Department's position that the participation in 
training requirement does not apply to an AAW before what is commonly 
referred to as the 26/26-week deadline for enrollment in training found 
in section 231(a)(5)(A)(ii) of the Act and incorporated into proposed 
Sec.  618.725. Thus, an AAW may receive Basic TRA up to the applicable 
training enrollment deadline in proposed Sec.  618.725 without meeting 
the participation in training requirement.
    One commenter said new paragraph (g)(2) of this section, addressing 
receipt of TRA prior to the training enrollment deadline, makes the 
requirements clearly understood. The Department has incorporated the 
above-mentioned changes to the regulatory text for Sec.  618.725 and 
otherwise adopts this section into the final rule as proposed.
    The Department made an edit to the use of a pronoun in paragraph 
(g)(3).
Section 618.725 Training Enrollment Deadlines
    Proposed Sec.  618.725 did not have a counterpart in the previous 
regulations at 20 CFR 617, but was administered by States based on 
administrative guidance. This Sec.  618.725 in the proposed rule set 
forth the statutory deadlines by which an AAW must be enrolled or 
participating in approved training, or have a training waiver in effect 
as a condition for receiving TRA. These deadlines are commonly referred 
to as the training enrollment deadlines or the ``26/26-week 
deadlines.''
    Proposed paragraphs (a)(1) and (2) of this section implemented the 
training enrollment deadlines that require an AAW to be enrolled in 
training or have a waiver granted no later than the last day of the 
26th week after either the worker's most recent qualifying separation 
or the last day of the 26th week in which the certification was issued 
to receive Basic TRA. This is also what is known as the ``26/26-week 
deadlines.'' The training enrollment deadlines are established by 
section 231(a)(5)(A)(ii)(I) and (II) of the Act.
    One commenter opposed the establishment of a 26-week deadline to 
enroll in training in cases of partial separation, saying it would 
penalize partially separated workers who have not enrolled. The 
Department reiterates that the deadline in the regulation is a 
statutory deadline and may not be modified. However, the deadline for a 
partially separated worker may actually change as a worker with a 
partial separation under an existing active certification would have 26 
weeks from the week in which he or she became partially separated to 
enroll in (or be waived from) training and, if he or she later 
experiences a total separation, the enrollment deadline would restart 
based on the date of the total separation.
    Proposed paragraph (a)(3) of this section implemented the deadline 
in section 231(a)(5)(A)(ii)(III) of the Act that allows an AAW 45 
additional days after the later of the training enrollment deadlines 
described above, if there are extenuating circumstances that justify 
the extension. The Act does not elaborate on what are extenuating 
circumstances. Proposed paragraph (a)(3) of this section explained that 
extenuating circumstances are those that constitute good cause--unusual 
situations that are beyond the control of the AAW and that make 
enrollment within the otherwise applicable deadline impossible or 
unreasonable. Additional discussion of extenuating circumstances and 
good cause is found in the preamble for proposed Sec.  618.730.
    One commenter supported the ``extenuating circumstances'' provision 
in proposed Sec.  618.725(a)(3) that would extend a worker's 
eligibility for TRA income supports by extending the training 
enrollment deadline for 45 days if there is ``good cause.'' The 
Department appreciates this support and the final rule adopts the 
regulatory language of this section as proposed.
Section 618.730 Good Cause
    Proposed Sec.  618.730 did not have a counterpart in prior 
regulations at 20 CFR part 617 but was administered by States based on 
administrative guidance that implements section 234(b) of the Act. In 
determining whether to apply the good cause exception, States should 
consider the following: whether the State failed to provide timely 
notice of the need to act before the deadline passed; whether factors 
outside the control of the AAW prevented the worker from taking timely 
action to meet the deadline; whether the worker attempted to seek an 
extension of time by promptly notifying the State; whether the worker 
was physically unable to take timely action to meet the deadline; 
whether the employer warned, instructed, threatened, or coerced the 
worker in any way that prevented the worker's timely filing of an 
application for TRA or enrolling in training; whether the State failed 
to perform its affirmative duty to provide advice reasonably necessary 
for the protection of the worker's entitlement to TRA; or whether there 
are other compelling

[[Page 51948]]

reasons or circumstances that would prevent a reasonable person from 
meeting a deadline.
    A State workforce agency supported the Department's clarification 
of the ``good cause'' exception and suggested the flexibility it 
provides should be expanded to allow for waiver of ``any of time 
limitations or other requirements'' if the AAW can demonstrate ``good 
cause'' exists. Through these regulations, the Department codifies four 
different concepts where exceptions to certain deadlines are 
appropriate: extenuating circumstances, justifiable cause, good cause, 
and equitable tolling (Sec.  618.888). Though similar, they are not 
interchangeable. States may apply these, as appropriate, for a worker's 
unique circumstances.
    Proposed paragraph (b) of this section provided that for good cause 
to exist, the AAW must have acted diligently yet been unable to apply 
for, enroll in, or receive a training waiver within the required time 
limitations because of exigent circumstances.
    Citing a Rutgers University study about the negative effects of 
prolonged unemployment, a different commenter recommended that the 
Department revise proposed Sec.  618.730(b) to state explicitly that 
``good cause'' encompasses the difficulties workers face that are 
``exacerbated by the trauma and stress of unemployment,'' such as 
financial straits, depleted savings, and emotional strain. The same 
commenter expressed concern that, without explicit encouragement from 
the Department to interpret the standard liberally, States would 
hesitate to apply it in a way that provided workers the most 
opportunity to access training. The Department is well aware of the 
difficulties that workers face when unemployed. States are aware of 
these difficulties as well. However, the Department has decided not to 
include any specific examples in the regulatory text as there are often 
too many variables to consider such that providing a definitive opinion 
in this final rule would be difficult. For technical assistance on the 
application of these provisions to specific circumstances, States 
should consult with the appropriate regional office.
    The final rule adopts the regulatory language as proposed.
Section 618.735 Waiver of Training Requirement for Basic Trade 
Readjustment Allowances
    Proposed Sec.  618.735 addressed waivers of the training 
requirement as a condition for receiving Basic TRA. This section 
permitted States to issue waivers if an AAW was unable to meet the 
training required and identified the circumstances under which a waiver 
could be granted.
Paragraph (b)
    Proposed paragraph (b) of this section set forth the permissible 
bases for waiving the training requirement.
    One commenter urged the Department to reinstate the more numerous 
waivers of the training requirement for Basic TRA that existed before 
the enactment of TGAAA in 2009 and the regulatory changes that 
followed. A different commenter specifically requested the restoration 
of the ``marketable skills'' waiver, which allowed workers with in-
demand skills to receive extra weeks of TRA beyond the standard UI 
entitlement by waiving the training requirement. The same commenter 
expressed concern about what it called the ``underlying unfairness'' of 
the proposed approach of making TAA-eligible workers with marketable 
skills look for suitable employment, thereby forfeiting TRA benefits. 
The categories are statutory, as established in section 231(c)(1)(A) 
through (C), and the Department does not have the authority to add 
additional categories; therefore, the final rule adopts the regulatory 
language regarding the waiver categories as proposed.
    One commenter responded to the Department's request for comments by 
asking that the Department include more descriptive language about the 
bases of waiver criteria into the regulatory text by inserting the 
statutory language. The Department has determined this addition is not 
necessary, and adopted the regulatory descriptions of the waiver 
conditions as proposed.
Paragraph (c)
    Proposed paragraph (c) of this section governed the contents of a 
waiver and provided that a waiver does not take effect unless it 
contains, at a minimum, six specific items of information. Proposed 
paragraph (c) modified the requirements that existed at 20 CFR 
617.19(a)(2)(i) through (vii) to account for the statutory change 
concerning allowable conditions for issuing a waiver.
    A State workforce agency questioned the necessity of the 
requirement in paragraph (c)(1)(vi) of this section that a waiver 
cannot take effect unless it contains a signature from ``an official of 
the State authorized to grant the waiver'' and said that the State's 
approval in the electronic case management system should suffice. The 
same commenter also asked why such a signature would be needed to waive 
the training requirement but not to enroll a worker in training. As 
provided by the Department in proposed subpart H, as well as in this 
final rule, electronic signatures are allowable, as are scanned signed 
copies. This would be the same for training approval or approval of 
other benefits. The Department strongly encourages States to move 
toward electronic case files and electronic benefit management wherever 
possible to reduce operational costs and improve efficiency of the 
provision of TAA Program benefits and services. The final rule adopts 
the regulatory text in paragraph (c)(1)(vi) of this section as 
proposed.
Paragraph (f)
    The Department made an edit to the use of a pronoun in paragraph 
(f).
Paragraph (g)
    Proposed paragraph (g) of this section revised 20 CFR 617.19(c) and 
implemented section 231(c)(2)(B) of the Act, by requiring that a waiver 
be revoked if the waiver criteria are no longer met and that the AAW be 
notified in writing of the revocation. Omitted from the regulation in 
proposed paragraph (g) of this section were two provisions from 20 CFR 
617.19(c)(2) and (3) that did not impose substantive requirements.
    One commenter, citing the preamble discussion about paragraph (g) 
and the Department's explanation that it dropped two provisions from 20 
CFR 617.19(c)(2) and (3), stated its understanding of the removed 
provisions as follows: if the waiver is revoked because a worker 
enrolls in training, then the State simply revokes the waiver on the 
waiver form and does not need to send the worker a written notice of 
revocation outlining the worker's appeal rights, but if the waiver is 
revoked for any other reason, then the State sends the worker a notice 
of appeal rights. The same commenter said that if its understanding of 
these provisions is correct, then it would support taking that 
approach. Similarly, another commenter said that changing the status 
quo, in which revocation that occurs because ``training is feasible and 
appropriate'' does not result in written notice since the AAW simply 
begins training, could be confusing to workers and disrupt service 
delivery. This commenter asked for clarification about whether, under 
the proposed approach, all revocations must be issued as written 
notices and treated as appealable determinations. Waivers must be 
revoked, in accordance with section 231(c)(2)(B), when the conditions 
that led to the issuance of such waiver are no longer in effect. If 
during the

[[Page 51949]]

periodic review of the waiver, it is discovered that reason(s) for such 
waiver are no longer applicable, the waiver must be revoked and the AAW 
must meet the requirements of Sec.  618.725(a)(5). This would include 
when an AAW enrolls in approved training. States must issue 
determinations on revocations and provide appeal rights consistent with 
Sec. Sec.  618.820 and 618.828. The final rule adopts the regulatory 
language in paragraph (g) of this section as proposed.
    The Department is finalizing this section into the final rule as 
proposed.
Section 618.740 Evidence of Qualification for Basic, Additional, and 
Completion Trade Readjustment Allowances
    Proposed Sec.  618.740 was modeled after 20 CFR 617.12 and provided 
the requirements for evidence of qualification for Basic, Additional, 
and Completion TRA. Proposed paragraph (a) of this section was 
substantially the same as 20 CFR 617.12(a) and contained the 
requirement that States obtain the basic information necessary to 
establish whether a TRA applicant is eligible to receive TRA.
    A State workforce agency interpreted the Department's overview of 
Sec.  618.740 in the NPRM preamble as meaning that a State does not 
need an application to determine TAA Program eligibility if, based on 
the worker list it receives from the employer, it has enough 
information to assess a worker's eligibility for benefits. The State 
workforce agency asked the Department for confirmation that the State 
does not need to require workers to apply if the information from the 
employer provides sufficient grounds on which to base an eligibility 
determination as to the TAA Program and TRA. The Department explains 
that if the worker list provides sufficient information for the State 
to determine that a trade-affected worker was separated for lack of 
work as a member of the worker group, then no additional information is 
required to render a general determination on overall TAA Program 
eligibility, allowing a worker to receive employment and case 
management services. Benefits and services such as training and TRA 
have other eligibility requirements that must be met, however.
    Further, the worker list initiates the process by which the State 
contacts the trade-affected workers advising them of the availability 
of benefits. All members of the certified worker group must be provided 
notification of their potential eligibility. The State must request the 
firm to provide a list of workers who have experienced a separation or 
are threatened with separation from employment from the certification's 
impact date through its expiration date, as soon as the certification 
is issued and throughout the certification period. The information 
provided by the firm is then used to advise workers of the potential 
TAA Program eligibility. If there is a conflict between the information 
provided by the firm and information provided by a worker, additional 
fact finding is necessary from both parties.
    It is important for States to ensure that firms provide a list of 
all separations regardless of the reason for the separation. This 
avoids situations in which the firm only submits to the State workers 
who the firm believes had a lack of work separation. Otherwise, some 
workers considered by the firm as not experiencing a lack of work 
separation may be left off the list when in fact they should have been 
included, resulting in unnecessary delays for receipt of benefits and 
services for such workers. States also must work with the firm to 
identify workers who are individually threatened with separation. The 
worker list provides valuable information that is used by the State as 
a basis for issuing determinations of program entitlement. The State is 
the responsible party and the final authority issuing individual 
determinations as to which workers had a lack of work. Once this action 
occurs, the workers are considered to be an AAW or an AAIW. The 
Department made a nonsubstantive edit in paragraph (a) of this section 
to correct a cross-reference to the section heading of a different 
section; otherwise, the final rule adopts this section as proposed.
Section 618.745 Weekly Amounts of Basic, Additional, and Completion 
Trade Readjustment Allowances
    Proposed Sec.  618.745 governed the determination of an AAW's 
weekly amount of TRA, whether Basic, Additional, or Completion. This 
proposed section only impacts TRA benefits, not UI. The Department 
received no comments relating to proposed Sec.  618.745 and therefore 
the final rule adopts the section as proposed, with the exception of 
edits to the use of pronouns in paragraphs (b) and (c).
Section 618.750 Maximum Amount of Basic Trade Readjustment Allowances
    Proposed Sec.  618.750 explained how to calculate the maximum 
amount of Basic TRA. It was derived from previous regulations at 20 CFR 
617.14, with a few substantive and organizational differences. The 
proposal defined the maximum amount of Basic TRA payable to an AAW as 
the product of 52 multiplied by the TRA weekly amount for a week of 
total unemployment, calculated under proposed Sec.  618.745(a) (weekly 
amounts of TRA), reduced by the total sum of UI (except State-funded 
additional compensation) that the AAW was entitled to or would have 
been entitled to had the worker applied in such worker's first benefit 
period. As proposed in paragraph (b), this does not include any 
supplemental payments for dependent allowances. One change from 
previous regulations concerned the reduction for the total sum of the 
AAW's UI entitlement. Paragraph (a)(2) of 20 CFR 617.14 provided that a 
worker's UI reduction must include, in addition to any UI to which the 
worker was entitled, any UI to which the worker would have been 
entitled had the worker applied for it during the worker's first 
benefit period. The last sentence of that paragraph added that in 
calculating the worker's maximum TRA amount, the worker's full UI 
entitlement for the first benefit period must be subtracted, regardless 
of the amount, if any, actually paid to the worker. This provision 
created an unintended result for AAWs who during the first UI benefit 
period exhausted regular compensation, became eligible for EB under 20 
CFR part 615 and, while continuously unemployed, could not receive the 
full EB entitlement because, prior to EB exhaustion, the EB period 
triggered ``off'' such that no further EB benefits were payable in the 
State. While the statutory and regulatory language implies that the 
full entitlement must be reduced, the AAW could not have filed and 
received such benefits. Accordingly, the Department's revised position 
was that if, and only if, the benefit was available to the AAW, it must 
be reduced.
    One commenter requested clarification about the provision in Sec.  
618.750(a) concerning the reduction in the maximum amount of Basic TRA 
payable based on workers forgoing a UI benefit to which they were 
entitled. The same commenter asked whether a worker who elects to wait 
until filing would be ``out those two weeks.'' The Department explains 
that the regulatory citation tracks the statute at section 233(a)(1) of 
the Act. This requires that the full UI entitlement during the first 
benefit period is reduced, independent of the actual receipt, to 
establish the maximum Basic TRA payable. For purposes of this 
calculation, UI includes regular compensation, EB, and Federal 
supplemental compensation. Accordingly, if the AAW was entitled to

[[Page 51950]]

compensation and had a balance in such compensation, such compensation 
must be reduced from the maximum Basic TRA payable, independent of the 
reasons the AAW could not receive such compensation. The final rule 
adopts the regulatory text as proposed.
Section 618.755 Eligibility Period for Basic Trade Readjustment 
Allowances
    Proposed Sec.  618.755 established the Basic TRA eligibility 
period. The Department did not receive any comments on this section. 
The final rule adopts the regulatory text as proposed, with a technical 
correction that removes an erroneous reference to Sec.  618.755(c), a 
nonexistent regulatory provision.
Section 618.760 Qualifying Requirements for, and Timing and Duration 
of, Additional Trade Readjustment Allowances
    Proposed Sec.  618.760, establishing the qualifying requirements 
for, and duration of, Additional TRA, had no specific counterpart in 20 
CFR part 617; however, most of the provisions in Sec.  618.760 were 
contained in various sections of the prior regulations at 20 CFR part 
617 and had been updated through administrative guidance over time. The 
Department is finalizing this section as proposed, except for the 
changes described herein.
    Proposed paragraph (a) of this section contained Additional TRA 
qualifying requirements and was largely unchanged from 20 CFR 
617.11(a)(2) (TRA qualifying requirements), 20 CFR 617.15(b)(2) 
(training application filing deadlines), and 20 CFR 617.15(b)(3) 
(requirement of participation in training except during breaks in 
training). Proposed paragraph (a)(2) of this section specified that the 
AAW must have exhausted Basic TRA before establishing eligibility for 
Additional TRA.
    One LWDB understood proposed Sec.  618.760(a)(2) as meaning that a 
worker who has reached 104 weeks of Basic TRA eligibility without 
exhausting that benefit is not eligible to receive Additional TRA, even 
after receipt of EB or supplemental compensation, and asked the 
Department whether that was the provision's intent. The provision to 
require exhaustion of Basic TRA was included in the proposed rule to 
clarify that Additional TRA is not a permissible alternative to Basic 
TRA for an AAW who missed the training enrollment deadlines in Sec.  
618.725 and who lacks good cause for failure to meet such deadlines. 
However, upon further review of the Act as a result of this comment, 
the Department concludes that there is no statutory basis to establish 
this provision in the regulations. Proposed Sec.  618.760(a)(2), 
therefore, has been removed from the regulatory text in the final rule, 
and proposed paragraph (a)(3) has been redesignated as final paragraph 
(a)(2) to reflect the deletion of proposed paragraph (a)(2).
Section 618.765 Qualifying Requirements for, and Timing and Duration 
of, Completion Trade Readjustment Allowances
    Proposed Sec.  618.765 provided the qualifying requirements for, 
and duration of, Completion TRA. This section codified section 233(f) 
of the Act, and provisions in administrative guidance implementing the 
statute, and resolved policy issues arising from the implementation.
    Proposed paragraph (c) of this section explained that the 
Department determined that the eligibility period for Completion TRA 
will be the 20-week consecutive calendar period beginning with the 
first week in which an AAW files a claim for Completion TRA and seeks 
compensation for such week, regardless of when the first payment is 
received. The eligibility period may be extended for justifiable cause 
in accordance with proposed Sec.  618.770(a).
    A commenter asked whether modification of a training contract 
during the eligibility period, while there is Completion TRA 
eligibility remaining, resulting in training continuing after the 
eligibility period, would be deemed ``justifiable cause'' for extending 
the eligibility period under Sec.  618.765(c). Before any determination 
can be made on whether or not to apply justifiable cause, fact-finding 
must occur. The Department encourages States to work with their 
appropriate regional office to address specific cases as they arise. 
The final rule adopts the regulatory text as proposed.
Section 618.775 Payment of Trade Readjustment Allowances During Breaks 
in Training
    Proposed Sec.  618.775, governing payment of TRA, whether Basic or 
Additional, during breaks in training, was substantially the same as 20 
CFR 617.15(d) except that, as the result of a statutory change to 
section 233(e) of the Act, it extended the maximum number of days a 
break may last without interrupting TRA payments from 14 days to 30 
days. Proposed paragraph (b) of this section provided a basis for 
counting days similar to 20 CFR 617.15(d).
    One commenter recommended that the Department add language to 
paragraph (b) of this section, which explains what days count toward 
the 30-day maximum, to account for workers enrolled in training that 
mostly occurs on weekends, which the commenter said is true of some 
technical certification courses. To illustrate this point, the 
commenter provided an example of two workers, where one has classes 
that meet primarily on weekends, while the other has classes that meet 
only on weekdays. In the commenter's example, while the two workers may 
experience a break at the same time, because weekends do count toward 
the weekend student's total, but do not count toward the weekday 
student's total, the break is treated as shorter for the weekday 
student than it is for the weekend student. The commenter asked for 
clarification about how many days following the worker's return to 
training must pass before the worker can have another break and still 
remain eligible for TRA benefits. The commenter described an example in 
which the worker takes a course lasting 1 or 2 days in between two 
breaks in training and asked whether this would ``reset'' the count for 
the 30-day limit. The commenter also requested clarification about how 
this provision applies to distance learning programs with no set class 
schedule, namely whether weekends and holidays would be excluded for 
such programs. The Department appreciates the commenter's concerns, but 
there are too many unknowns and additional information would be needed 
in order to provide an informed response. The commenter is encouraged 
to contact its appropriate regional office for technical assistance on 
individual case scenarios. The Department is finalizing this section in 
the final rule as proposed, with the exception of a subject-verb 
agreement edit in paragraph (c).
Section 618.780 Disqualifications
    Proposed Sec.  618.780, governing disqualifications from receiving 
TRA, was structured the same as 20 CFR 617.18. Proposed paragraph (d) 
of this section, prohibiting payment of TRA to an AAW for any week 
during which the worker is receiving part-time training, did not have a 
comparable section in 20 CFR part 617, as it was a new statutory 
requirement in section 236(g) of the Act, which had been implemented 
provisionally via administrative guidance.
    One commenter requested clarification about the correct 
interpretation of paragraph (d) of Sec.  618.780, concerning 
disqualification from receiving TRA for any weeks in which a worker 
participates in part-time training, which states that part-time 
training is any training not meeting the

[[Page 51951]]

definition of ``full-time training'' in Sec.  618.110. The same 
commenter quoted the definition in Sec.  618.110 of ``full-time 
training,'' which provides in paragraph (2) of the definition that 
students in their last semester of training will be considered in full-
time training, even if their courses do not meet the training 
provider's definition of full-time, if those courses are the only 
training or coursework required to finish the training. The commenter 
asked the Department to confirm that a State does not need to obtain 
additional documentation from a training provider in order to pay TRA 
for a worker's last semester of training. A different commenter said 
the proposed rule did not include language extending eligibility for 
TRA to workers in part-time training during their last semester who are 
scheduled to graduate and only need that semester's courses to complete 
their requirements. States should ensure that courses taken in the last 
semester of the AAW's approved training program are the only classes or 
coursework needed to complete training, and if they are less than full-
time, that should be documented in the worker's case file. The 
Department also refers the commenters to the definition of full-time 
training at Sec.  618.110, where the final semester of training is 
specifically addressed. The Department made a nonsubstantive edit in 
paragraph (a) of this section to correct a cross-reference to the 
section heading of a different section; otherwise, the final rule 
adopts this section as proposed.

H. Subpart H--Administration by Applicable State Agencies

    Subpart H governs the administrative requirements and rules that 
States must follow in delivering TAA Program benefits and services. 
Subpart H mirrors subpart G of 20 CFR part 617 with a few exceptions. 
These exceptions include organizing sections differently for improved 
clarity; revising provisions to reflect recent statutory amendments and 
policy determinations; and adding new sections to address requirements 
for veterans' priority of service, general fiscal and administrative 
requirements, and TAA Program performance. Subpart H also excludes some 
provisions that are contained in subpart G of 20 CFR part 617 because 
they are based on expired laws. Other major changes cover topics such 
as merit staffing requirements; actions the Department may take in the 
absence of an executed Governor-Secretary Agreement; State submissions 
of administrative rulings and waivers of training; veterans' priority 
of service requirements; program performance requirements; and 
overpayment requirements and instructions.
    There were no comments received on proposed Sec. Sec.  618.800, 
618.820, 618.828, 618.836, 618.840, 618.844, 618.848, 618.856, 618.868, 
618.872, 618.884, 618.894, and 618.898. Accordingly, the final rule 
implements these sections as proposed, except for an edit to subject-
verb agreement in Sec.  618.820.
Section 618.804 Agreements With the Secretary of Labor
    Section 618.804 of the NPRM set forth the statutory requirement at 
section 239 of the Act that agreements between the States and the 
Secretary (known as Governor-Secretary Agreements) are required before 
a State may deliver TAA Program benefits and services. Proposed Sec.  
618.804 followed 20 CFR 617.59, but reordered the provisions and edited 
them for clarity. The final rule adopts Sec.  618.804 as proposed, 
except for a nonsubstantive technical edit correcting the 
capitalization of ``agreement'' to ``Agreement.''
    A commenter supported continuing services even while the Department 
is in the process of amending Governor-Secretary Agreements. The 
Department has never ordered States to cease program operations while 
executing updated Agreements.
Paragraph (h)
    The Department received one comment related to proposed paragraph 
(h) of this section. Proposed NPRM paragraph (h) provided a 
nonexhaustive list of mandatory terms for Governor-Secretary Agreements 
between the Secretary and States, including provisions establishing TAA 
Program funds as the primary source of Federal assistance to trade-
affected workers (proposed paragraph (h)(4)).
    A State workforce agency recommended revising Sec.  618.804(h)(4) 
to state explicitly that the costs for services post certification 
``must'' (rather than ``should'') shift from WIOA and other programs to 
the TAA Program and to provide a reference to Sec.  618.615(c) as the 
basis for this requirement. The services required to be provided to 
petitioners, prior to a petition determination, are funded from WIOA. 
These are the rapid response services and appropriate career services 
required by section 221(a)(2)(A) of the Act. The Department recognizes 
that there may be administrative reasons, from time to time, where 
allowing WIOA to continue providing these services after a 
certification as been issued utilizing WIOA funding is preferred. The 
final rule adopts Sec.  618.804(h)(4) as proposed.
    The Department made a nonsubstantive edit to correct a cross-
reference in paragraph (h)(2) of this section, including correcting the 
section heading of the section cited; otherwise, the final rule adopts 
this section as proposed.
Section 618.808 State Rulemaking
    Section 618.808 proposed a modification from 20 CFR 617.54 and 
divided the section into paragraphs. This proposed section provided 
States with the authority and flexibility to establish laws, 
regulations, procedures, or other policies related to the 
administration of the TAA Program that are not inconsistent with 
Federal law or these regulations while ensuring the Department can 
still administer the uniform interpretation of the program throughout 
the United States. Proposed paragraph (a) reworded 20 CFR 617.54 and 
replaced the generic term ``supplemental procedures'' with specific 
references to the establishment of laws, regulations, procedures, or 
other policies not inconsistent with the Act, this part 618, or 
administrative guidance issued by the Department. Proposed paragraph 
(b) retained the requirement in 20 CFR 617.54 that certified copies of 
the proposed law, regulation, procedure, or other policy be provided to 
the Department, but removed the requirement for them to be submitted on 
a form supplied by the Department to accommodate the improvements in 
technology that make this process much easier. Proposed paragraph (c) 
was unchanged from 20 CFR 617.54 and required that all laws, 
regulations, procedures, or policies by the States be reviewed and 
approved by the Department before taking effect. It also authorized 
temporary approval by the Department, in cases of administrative 
necessity, for a period not to exceed 90 days. Proposed paragraph (d) 
allowed the Department, after providing the State notice of at least 30 
days, to withdraw a previous approval. Proposed paragraph (e) differed 
from 20 CFR 617.54 and required States to follow State UI law 
requirements for public notice and opportunity for hearings on 
rulemaking. Proposed paragraph (e) more broadly also required the State 
to follow any other State or Federal law that may require such public 
notice and opportunity for hearing.
    Two State workforce agencies asked how the Department would approve 
State rulemakings and asked for more clarity as to whether revisions to 
State regulations would require Departmental

[[Page 51952]]

approval, expressing concern that Departmental review could hinder TAA 
Program operations. The Department would like to reiterate that this 
provision regarding State rulemaking is in the previous regulations at 
20 CFR part 617. This process is not as formal as grant modifications 
and the process should not be overly complicated or formal. States are 
directed to submit the information to their TAA Program contact at the 
regional office. The regional office will work with the Office of Trade 
Adjustment Assistance (OTAA) to review the information and provide a 
response to the States. This process can occur entirely by email. Only 
in rare circumstances have State rules required significant discussion 
within the Department. In general, the regional office and OTAA are 
able to provide a response to the majority of submissions made by 
States in a very reasonable amount of time. Stand-alone forms are not 
required to be submitted to the Department, although States are 
encouraged to follow the same process to receive feedback on any TAA 
Program-specific forms to ensure that they do not contain policy 
issues. The final rule adopts this section as proposed.
Section 618.812 Subpoenas
    Section 618.812 of the proposed rule, authorizing States to issue 
and enforce subpoenas, was substantially the same as 20 CFR 617.53.
    One commenter wrote that States might benefit from using subpoenas 
to obtain lists of workers from employers. The Department clarifies 
that States have always had this authority, although, until this final 
rule, it has been implied rather than express. The Department agrees 
that the explicit inclusion of this authority at paragraph (b) will 
improve the timeliness with which this information is provided by firms 
to the States. The final rule adopts this section as proposed.
Section 618.816 Trade Adjustment Assistance Program Benefit Information 
and Provision of Services to Workers
    Proposed Sec.  618.816 contained requirements the States must meet 
in providing TAA Program benefit information and services to trade-
affected workers. The Department has revised the regulatory text in 
paragraph (e)(4) as discussed below and has made a nonsubstantive edit 
to correct a cross-reference to Sec.  618.725 in paragraph (e)(2)(vi) 
of this section; otherwise, the final rule adopts the section as 
proposed.
Section 618.816(a)
    Proposed paragraph (a) required States to provide general program 
information and advice to trade-affected workers, which was very 
similar to 20 CFR 617.4(a), and contained only minor language changes. 
This requirement derives from the obligation in section 225(a) of the 
Act to provide information to trade-affected workers about the benefits 
and services available to workers and their associated applications and 
timelines. The information provided to workers must cover all benefits 
and services available under the TAA Program, including the HCTC, if 
available.
    Two State workforce agencies requested clarification regarding the 
requirement that States must provide information about TAA Program 
benefits, application procedures, and filing dates to workers applying 
for UI. Specifically, the State workforce agencies asked about timing 
(i.e., pre- or post-certification), arguing that providing such workers 
with too much information pre-certification could confuse them because 
the petition for certification may fail or the certification may not 
cover all of the workers (e.g., because they quit or were terminated). 
One of the States added that this requirement also could increase the 
risk of services being approved for those workers who were ineligible 
to receive such benefits. The Department clarifies that this is not a 
new requirement. It is also a statutory requirement, established at 
section 239(g)(1) of the Act. Most States meet this requirement with a 
statement on the web-based system used for UI claims or in the initial 
meeting or initial correspondence to new UI claimants. No changes have 
been made to proposed paragraph (a) and the final rule adopts the 
regulatory text as proposed.
Section 618.816(b)
    In the NPRM, the Department proposed Sec.  618.816(b) based on 
section 221(a)(2)(A) of the Act, which required States to ensure rapid 
response assistance and appropriate career services are made available, 
consistent with section 134 of WIOA, to all groups of workers covered 
by a petition filed under subpart B.
    One commenter expressed several concerns about the new requirement 
for States to provide rapid response assistance and appropriate career 
services, consistent with WIOA section 134, to all groups of workers 
covered by a petition filed under subpart B. The commenter's concerns 
included the potential for the provision of services to workers whose 
petitions do not result in certification or to workers incorrectly 
identified in a petition (e.g., providing services to the entire 
company where only one subdivision of the company is the ``firm'' 
covered by the certification), as well as the potential for employers 
to become ``disenchanted'' with States that alarm and serve workers 
whose employment is not actually threatened. The same commenter 
suggested that the Department should amend the provision to require 
that States first investigate whether layoffs of workers in the group 
of workers are likely or have happened and, if they can reasonably 
determine that the petition is likely to be certified, then reach out 
to the impacted workers. The Department points out that this is not a 
new requirement. It is also a longstanding statutory requirement, found 
at section 221(a)(2)(A) of the Act. The requirement to provide rapid 
response and appropriate WIOA career services is statutory. The 
Department cannot reduce or qualify this requirement via regulations.
    One commenter expressed concern that, without corresponding updates 
to the WIOA regulations, these proposed regulations will not be 
implemented correctly by WIOA Program staff. The States, under the 
Governor-Secretary Agreement, are bound to the implementation of these 
rules. The Governor-Secretary Agreement binds the entire executive 
branch of State governments to the terms and conditions of the 
Agreement and the implementation of the TAA Program. This includes the 
implementation of the rapid response requirement.
Section 618.816(e)(1) Through (3) and (5)
    Proposed paragraph (e) required States to provide certain 
information and assistance to trade-affected workers after issuance of 
a certification covering their worker group. Proposed paragraph (e)(1), 
which was previously in 20 CFR 617.4(c), implemented section 225(a) of 
the Act and required States to inform the State board on vocational and 
technical education or equivalent agency, and other public or private 
agencies, institutions, and employers, as appropriate, of each 
certification issued under subpart B and of projections, if available, 
of the needs for training under subpart F as a result of such 
certification. Proposed paragraph (e)(3) provided that it is 
permissible to obtain a list of workers that are partially or totally 
separated from adversely affected employment or threatened with 
separation via subpoena pursuant to proposed Sec.  618.812. Proposed 
paragraph (e)(5) codified section 239(f) of the Act

[[Page 51953]]

and required that upon receipt of a copy of a certification issued by 
the Department, the State must perform outreach to, intake of, and 
orientation for trade-affected workers covered by the certification 
with respect to assistance and benefits available under this part 618. 
There is no direct similar provision in the previous rule.
    Two State workforce agencies expressed concern about the 
practicality of the requirement in paragraph (e)(1) regarding the 
provision of benefit information post-certification to a variety of 
potentially interested parties. Specifically, one of the State 
workforce agencies said it would be administratively burdensome to 
effect such notice and maintained that States have ``no way'' to 
forecast a worker group's training needs. The Department maintains that 
this requirement is best met through regular contact with State, local, 
and regional workforce development boards. Coordination with rapid 
response also will help in determining the training needs of worker 
groups and the demand in the local labor market. States also can use 
their own data to produce projections based on similar trade-affected 
workers already enrolled in the program or previously enrolled in the 
program. States are encouraged to contact the regional office for 
additional assistance in meeting this requirement. The final rule 
adopts the regulatory text as proposed.
    One commenter expressed its understanding that the requirement in 
paragraph (e)(2) concerning notice to potential AAIWs means written 
notice, as required earlier in the same paragraph concerning notice to 
covered workers. The Department affirms that AAIWs must be provided a 
written notice.
    With respect to paragraph (e)(2)(i), the same commenter recommended 
that the contents of the notice should include background information 
about the TAA Program in plain language to provide recipients with 
context for why they are receiving the notice. The Department agrees 
that plain language is always preferred whenever possible but has 
elected to allow States the flexibility to customize the overall 
content of the notice.
    An LWDB suggested revising the requirement in paragraph (e)(3) to 
require firms to provide States with workers' contact information at 
the time the petition is filed, rather than when a certification has 
been issued. The LWDB maintained that this revision would align the 
requirement better with the new requirement in paragraph (b) regarding 
rapid response activities and appropriate career services, which 
applies at the petition stage. A different commenter recommended that 
if the Department obtains workers' contact information in the course of 
its investigations, then it could share that information with the 
States, and the States could confirm with the firms that the 
information is still current. The same commenter said this approach 
would show the partnership between the Department and States when it 
comes to program administration. The Department does not request a 
worker list as part of its investigation because it is not needed for a 
determination to be made. The Department will, in its communication 
with firms during investigations, make them aware that such a list will 
need to be provided to the State if the petition is certified.
    One commenter requested clarification of the terms ``intake'' and 
``orientation'' as used in paragraph (e)(5). The same commenter said 
that different States interpret these terms differently. The Department 
concludes that the language in the preamble to the proposed rule, this 
preamble, and subpart C of this final rule is sufficient to address 
this concern and establish a standard to be met by all States.
Section 618.816(e)(4)
    Proposed paragraph (e)(4) maintained the requirement from 20 CFR 
617.4(d)(2)(i) that notice of certification be published in a newspaper 
of general circulation.
    Two State workforce agencies and a State government employee called 
the proposed requirement for States to publish notice of certification 
via newspaper ``antiquated'' and recommended making it optional by 
changing the word ``must'' to ``may'' in the first sentence of 
paragraph (e)(4). A different State workforce agency suggested that the 
Department should revert to the previous requirement in 20 CFR 
617.4(d)(2), which mandated newspaper notices only if the State could 
not substantiate that all workers covered by the certification have 
received written notice through the mail. The State workforce agency 
also said that placing legal notices in newspapers is ``not cheap'' and 
expressed concern that requiring such publication would waste both 
staff time and program funds for a method of communication that, in the 
commenter's words, is ``undoubtedly ineffective'' as a way of reaching 
covered workers. A different State workforce agency also opposed the 
requirement, saying that many parts of the country do not have 
newspapers anymore and, where available, subscriptions can be costly. 
The same State workforce agency added that for States with a high 
number of petitions, the requirement could impose time and cost 
burdens. The State recommended the Department give States flexibility 
around how to provide this notice, such as through public service 
announcements or electronic methods (e.g., LWDB websites), by accepting 
alternative means of notification in place of newspaper notices. 
Another State workforce agency asked the Department to keep the 
exemption from 20 CFR 617.4(d)(2), stating that it expected the 
proposed approach to increase program costs. The State workforce agency 
added that newspapers are increasingly not the most effective means of 
notification because many people consume news online, often from 
outlets not based in their area, and selectively view the content. One 
commenter responded to the Department's request for comments related to 
the definition of ``newspaper of general circulation.'' The same 
commenter said that it defines a newspaper of general circulation as a 
combination of print and digital newspapers and public service 
announcements. The Department specifically requested comments on the 
requirement that notice of certifications be provided in a newspaper of 
general circulation and appreciates the responses. Many commenters 
responded that newspaper notices were an ``antiquated'' and costly 
method to notify workers of certifications. The requirement that a 
notice be published in a newspaper of general circulation is a 
statutory provision at section 225(b)(2) of the Act, so the Department 
may not change the requirement. However, after review the Department 
has concluded that notice may alternatively be placed in the online or 
digital version of a newspaper if it can be reasonably expected to 
reach the interested parties. The proposed regulatory text has been 
revised in the final rule to include this option.
Section 618.816(e)(6)
    Proposed paragraph (e)(6) required, in addition to the written 
notices sent by mail, that States also use one method of modern 
electronic communication, such as email, to inform trade-affected 
workers of the certification.
    Multiple commenters expressed concern about the practicality of the 
requirement that States, in addition to providing mailed written notice 
to workers covered by a certification of the benefits available to 
them, must provide electronic notice (e.g., text or email) to the 
workers. Several of the commenters recommended making this extra step

[[Page 51954]]

optional rather than required. One commenter requested clarification on 
whether the requirement could be met through communications on social 
media. Another commenter said that the requirement does not appear to 
include a mechanism for States to require that firms provide workers' 
mobile phone numbers or email addresses to them, such as the subpoena 
power in proposed Sec.  618.812 by which States may obtain workers' 
names and mailing addresses. The same commenter also said that firms 
may not collect this information from their workers and some workers 
may not use mobile phones or email. Similarly, a different commenter 
stated that use of electronic communications is not universal among 
workers, and it expressed concern that the requirement would 
discriminate against those workers, such as older or lower skilled 
workers, who are not as ``technology savvy'' as others, such as younger 
or higher skilled workers. Another commenter said the requirement could 
result in ``burdensome cost'' for workers who have mobile phones but do 
not have unlimited messaging or data plans. The same commenter also 
raised the potential for this requirement to result in misdirected 
messages containing personal information for those workers who share 
electronic accounts. In contrast, a State workforce agency agreed with 
the requirement, saying it supported efforts to improve notification, 
promote experimentation with potentially more effective methods of 
engagement, and encourage a more technological and data-driven approach 
to program administration. The Department clarifies that the rule, as 
written, gives examples of alternative contact methods, including 
through an email or text message if the contact information is known. 
If the State does not have an email address or mobile phone number of 
the trade-affected worker, then other methods of electronic 
communication, including postings made to social media or a website, 
would satisfy this requirement. States must safeguard any personal data 
and ensure costs are reasonable.
    One commenter also questioned how a State would document its 
electronic communications in the worker's file and asked whether it 
would require printing out all emails or texts sent to the worker. The 
Department clarifies that there is no requirement that a State print 
out emails or texts; case notes are often sufficient for documenting 
these activities. The State must comply with record retention 
requirements in the Uniform Guidance at 2 CFR part 200.
Section 618.816(f)(1)
    Proposed paragraph (f) required States to provide specific benefit 
assistance to trade-affected workers. In addition to all of the 
benefits described in detail in this part 618, States must also include 
information on the HCTC, if available, as described in section 
35(b)(1)(B) of the Internal Revenue Code of 1986 (26 U.S.C. 
35(b)(1)(B)). Proposed paragraph (f)(1) was modeled on 20 CFR 
617.4(e)(1) but was rephrased for clarity. One minor change from 20 CFR 
617.4(e)(1) is that proposed paragraph (f)(1) omitted the reference to 
UI claimants because it might be confusing.
    One commenter argued that, because not all trade-affected workers 
will want to be advised of what benefits are available and how to 
apply, it may be more ``realistic'' to instead require States to 
provide workers an opportunity to receive this information, similar to 
how proposed paragraph (f)(2) of this section addressed the possibility 
that a worker will decline an intake interview. The statute requires 
not only that all trade-affected workers be notified of the benefits 
and services available under the TAA Program, but that all UI claimants 
in the State be made aware of these benefits. Neither of these is a new 
requirement established by the final rule and both are required by 
statute. The final rule adopts the regulatory text as proposed, with 
edits to the use of pronouns in paragraphs (f)(1) and (2).
Section 618.824 Liable State and Agent State Responsibilities
    Proposed Sec.  618.824, concerning the respective responsibilities 
of a liable State and agent States, updated 20 CFR 617.26 to reflect 
sections 235, 237, 238, and 245 of the Act and reorganized the 
requirements.
    Proposed paragraph (a) was largely unchanged from 20 CFR 617.26(a) 
but reordered information and divided it up into subordinate 
paragraphs. Proposed paragraph (a)(3)(i) added the requirement for 
liable States to provide rapid response and appropriate career services 
(as described in section 134 of WIOA) to a group of workers for whom a 
petition is filed as required by section 221(a)(2)(A) of the Act. 
Proposed paragraph (a)(3)(ii) was new and provided that career services 
established under other Federal laws must also be made available to the 
group of workers, to the extent authorized by those laws. Proposed 
paragraph (a)(3)(iii) was new and had no comparable counterpart in 
existing regulations or in administrative guidance. It clarified for 
the first time that, in some instances, the liable State may seek 
assistance from one or more agent States in the provision of rapid 
response and appropriate career services, especially in situations 
where residency of the group of workers is divided into two or more 
States. Proposed paragraph (a)(4) updated language from 20 CFR 
617.26(a) but has the same meaning.
    Proposed Sec.  618.824(b) was largely unchanged from 20 CFR 
617.26(b) but reordered information and divided it up into subordinate 
paragraphs. Proposed paragraph (b)(7) was new and established that the 
agent State is responsible for the payment of job search and relocation 
benefits.
    One commenter agreed with the intent but questioned the 
enforceability of paragraphs (a)(3)(i) and (ii) of this section, which 
require a liable State to provide workers covered by a petition with 
rapid response assistance and appropriate career services, including 
career services authorized under non-TAA Program Federal laws (e.g., 
WIOA). The requirement to provide rapid response and appropriate career 
services was established directly by WIOA section 512(hh). This is also 
enforceable under the Agreement executed between the Governor and the 
Secretary.
    A State workforce agency said that the requirement in paragraph 
(a)(5) that a liable State must provide the IRS a list of eligible TAA 
Program recipients and eligible RTAA recipients for HCTC purposes would 
mean changing their reporting or data systems to make such information 
available. The State workforce agency commented that at present it 
provides the IRS a list of only those workers eligible for the TAA 
Program who have received RTAA, TRA, or UI payments. The Department 
explains that HCTC is a tax credit managed by the IRS, the details of 
which are not covered by this rule. The Department directs States to 
administrative guidance related to the HCTC, which provides explicit 
process-related reporting instructions. The Department encourages the 
commenter to contact the appropriate regional office for additional 
technical assistance.
    Two commenters raised concerns about paragraph (b)(7) of this 
section, which establishes responsibility for payment of job search and 
relocation allowances with the agent State. One of the commenters 
asserted that involving the agent State could unnecessarily complicate 
the administration of these benefits. The other commenter said that 
sometimes workers request the allowances before departing the liable 
State. The commenter requested clarification about how States should 
respond in such cases. The Department

[[Page 51955]]

clarifies that there is only an agent State, other than the liable 
State, if the AAW has accessed services outside of the worker's liable 
State. No agent State exists if the worker is simply seeking to travel 
to another State under a job search allowance or is relocating to 
another State. Until such time as the worker seeks services in another 
State, the liable State is both the liable and agent State. The 
Department made nonsubstantive edits in paragraph (a)(4) of this 
section to correct two cross-references to the section headings of 
different sections; otherwise, the final rule adopts the section as 
proposed.
Section 618.832 Overpayments; Penalties for Fraud
    Section 618.832 of the proposed rule, concerning overpayments, 
fraud, and penalties for fraud, generally repeated 20 CFR 617.55, but 
reorganized the section for clarity.
    Proposed Sec.  618.832(a)(3) provided that trade-affected workers 
be provided a reasonable opportunity to demonstrate that they were 
without fault and unable to repay their TAA Program overpayments and, 
therefore, a ``financial hardship'' exists if recovery of an 
overpayment would result in a person's (or their household's) loss of 
or inability to pay for ordinary and necessary living expenses.
    Proposed Sec.  618.832(e) discussed the State's responsibilities to 
recover overpayments.
    A commenter wrote that the provisions on overpayments should align 
with those found in State and Federal UI laws. The same commenter added 
that the proposed overpayment rules could lead to more confusion and 
appeals. A different commenter said States should establish policies to 
ensure that program participants receive certificates from their 
training and should define financial hardship through their own 
policies. Another commenter stated that imposing a national standard 
for financial hardship is problematic, but recommended using standards 
for ``hardship to repay,'' such as the IRS Collection Financial 
Standards. One commenter wrote that their State lacks a mechanism for 
retrieving training overpayments. Another commenter asked if States are 
required to collect overpayments. The Department explains that the 
requirement for States to collect overpayments is not a new one. The 
language used in this rule is based on the statute and previous 
regulations at 20 CFR 617.55(c). Overpayments for training, RTAA, 
supplemental assistance, etc. are subject to the same requirements as 
TRA overpayments. The Department will provide training and technical 
assistance on this topic, but the final rule adopts the regulatory text 
as proposed, except for edits to the use of pronouns in paragraph (a).
    Proposed paragraph (b) was substantially the same as 20 CFR 
617.55(b), but reordered and slightly reworded the language. It 
provided the statutory requirement for a lifetime disqualification from 
receipt of benefits under the Act for anyone found to have knowingly 
provided a false representation or nondisclosure of material fact.
    A few commenters wrote that this approach in paragraph (b) of 
permanent ineligibility for benefits as a result of fraudulent receipt 
of program benefits is overly aggressive as it would exacerbate the 
economic harm suffered by workers. Another commenter agreed and 
recommended that punishments for fraud be incrementally more severe, 
based on the number of violations committed. The Department clarifies 
that where fraud was committed in relation to the TAA Program, section 
243 of the Act is clear that the trade-affected worker is no longer 
eligible for payments under the TAA Program. The Department explains 
that the lifetime ban on TAA Program benefits in the statute and in 20 
CFR 618.832(b) is only related to fraud committed under the Act, not 
other instances of fraud under other State or Federal statutes. This is 
a statutory requirement, and the final rule adopts the regulatory text 
as proposed.
    Proposed Sec.  618.832(d) provided that when a trade-affected 
worker fails to complete a TAA Program approved training, job search, 
or relocation with good cause, any TAA Program payment or portion of a 
payment to such worker is not an overpayment. One commenter wrote that 
States should have policies in place to define ``good cause'' for 
failure to complete a training, job search, or relocation. The same 
commenter requested that the Department provide examples of failed RTAA 
activities. The Department explains that in most States, the 
determination of good cause is determined through case law and previous 
adjudications under applicable State law. With regard to failed RTAA 
activities, the Department provides examples such as the failure to 
provide the State with pay stubs or other required documentation to 
support continued eligibility and to ensure proper benefit payments. 
The Department adopts the regulatory text in this section in the final 
rule as proposed, except for a technical change to the language at 
Sec.  618.832(h)(1)(i) where the Department changed the words ``an 
agreement'' to ``a Governor-Secretary Agreement'' for added 
specificity.
Section 618.852 Recordkeeping and Disclosure of Information 
Requirements
    Proposed Sec.  618.852 repeated the requirements in 20 CFR 617.57 
concerning recordkeeping and disclosure of information but made a few 
changes.
    Proposed paragraph (a) was very similar to 20 CFR 617.57(a), with 
two changes. First, proposed paragraph (a) omitted a reference to 
reporting form ETA 563. This particular report is no longer required. 
Rather, required reporting will be governed by Sec.  618.864 of the 
final rule. Second, proposed paragraph (a) added that States are 
required to maintain records that contain any information the 
Department determines to be appropriate in support of any reports the 
Department may require, including the reports specified in proposed 
Sec. Sec.  618.860(f) and 618.864(e). Paragraph (a) also contained a 
cross-reference to the record retention requirements of the Uniform 
Guidance at 2 CFR 200.333. Per the Uniform Guidance, States are 
required to retain records, in general, for 3 years after the last 
action taken on that record (determination, appeal, payment, inclusion 
in a performance or financial report, etc.). Proposed paragraph (a)(4) 
required States to document that employment and case management 
services described in subpart C were provided or offered to a 
participant. This is not a new requirement; however, this was not 
previously explicitly stated in regulation. One commenter wrote that 
requiring program administrators to retain files indefinitely would be 
needlessly burdensome. The Department clarifies that there is no 
requirement for indefinite retention of records. Section 618.852 
provides recordkeeping requirements to which States must adhere and 
refers to the Uniform Guidance at 2 CFR 200.333. If a trade-affected 
worker applies for a training benefit after records are no longer 
available, the worker can be asked to supply information that will 
verify that he or she was part of a certified worker group. The 
documentation burden would shift from the State to the worker. The 
Department made a nonsubstantive edit in paragraph (a)(2)(i) of this 
section to correct a cross-reference to the section heading of a 
different section; otherwise, the final rule adopts the section as 
proposed.

[[Page 51956]]

Section 618.860 General Fiscal and Administrative Requirements and Cost 
Classification
    Proposed Sec.  618.860 was a new section that contained general 
fiscal and administrative requirements applicable to State 
administration of the TAA Program. It was modeled on WIOA regulations, 
but with significant differences. Proposed Sec.  618.860 contained no 
requirements that States were not already required to meet. The final 
rule adopts the regulatory text as proposed.
    Proposed paragraph (b) provided guidance on cost classification as 
administrative costs under the TAA Program, as authorized by section 
235A of the Act and described in each TAA Program Annual Funding 
Agreement that States are required to submit annually. Paragraph (b)(1) 
provided that the Department will include each fiscal year's 
administrative cost limitation in grant documents or annual funding 
agreements. Proposed paragraph (b)(2) provided that the costs of 
administration in the TAA Program are the costs associated with 
performing the overall general administrative functions of the TAA 
Program, as described in paragraphs (b)(2)(i) through (xviii) of this 
section, and the coordination thereof within the American Job Center 
network established under WIOA.
    One commenter requested examples of items under Sec.  618.860(b)(2) 
that could be funded with employment and case management funds. Without 
additional context, the Department cannot provide a specific list. 
Employment and case management funds can be used for the costs of 
provision of activities found in Sec.  618.310, among other things. The 
Department has technical assistance available on its website and will 
be providing training and additional technical assistance on this 
topic. To resolve individual case scenarios, we encourage contacting 
the appropriate regional office for additional assistance.
    One commenter supported the provision at paragraph (i) that 
requires States to dedicate a portion of administrative and employment 
and case management funding to MIS development, saying its State's use 
of MIS indicates that other States could benefit from improving their 
MIS. The Department appreciates this support and the final rule adopts 
Sec.  618.860 as proposed, with the exception of a spelling correction 
in paragraph (d)(2)(ii)(C).
Section 618.864 Trade Adjustment Assistance Program Performance
    Section 618.864 of the proposed rule contained TAA Program 
performance requirements, as established by section 239(j) of the Act. 
This provision uses the term ``worker,'' consistent with the statute. 
For purposes of Sec.  618.864, the term ``worker'' means a trade-
affected worker. Proposed paragraph (a) required States to report 
specified data on TAA Program performance outcomes to the Department 
and required a description of the efforts made to improve outcomes for 
workers under the TAA Program. Specifically, States must report the 
primary indicators of performance identified in paragraph (b) of this 
section, which are very similar to those reported under WIOA. Paragraph 
(b)(2) related to the credential attainment indicator in paragraph 
(b)(1)(iv) and provided that, under the Act, workers who received 
benefits under the TAA Program and obtained a secondary school diploma 
or its recognized equivalent are only included in this indicator if 
they also obtained employment, or are in an education or training 
program leading to a recognized postsecondary credential within 1 year 
after exit from the program.
    An LWDB stated that the credential attainment indicator in proposed 
Sec.  618.864(b)(1)(iv) uses all TAA Program workers in its 
denominator, contrasting this calculation with the WIOA approach of 
including only workers of an education or training program in the 
denominator. The commenter stated that, based on the regulatory text, a 
worker that received only employment and case management services would 
be included in the credential measure. The Department clarifies that, 
under WIOA, only workers enrolled in an education or training program 
(excluding OJT and customized training) are counted in the denominator 
of this measure. The same LWDB said that Sec.  618.864(b)(1)(iv), as 
drafted, does not align with 20 CFR 677.155(a)(1)(iv)(A) of the WIOA 
final rule because WIOA limits the measure to those in training. The 
Department has reviewed both statutes, the WIOA Final Rule, and the 
proposed regulatory text and concurs with the commenter that this 
should align with WIOA. Therefore, the Department has revised the 
regulatory text at Sec.  618.864(b)(1)(iv) in the final rule to align 
with WIOA by limiting this measure to those in training and eliminated 
an unnecessary `and' in 618.864(b)(ii).
Section 618.876 Verification of Eligibility for Program Benefits
    Section 618.876 of the proposed rule implemented the requirements 
at section 239(k) of the Act for States to verify a trade-affected 
worker is in satisfactory immigration status. Proposed paragraph (a) 
provided that a trade-affected worker must be authorized to work in the 
United States in order to be eligible to receive benefits under the TAA 
Program. This provision required States to verify the status of 
participants who are not citizens or nationals of the United States. 
Proposed paragraph (b) required initial verification by States of the 
immigration status of self-reporting aliens who apply for UI through 
the U.S. Customs and Immigration Service's Systematic Alien 
Verification for Entitlement (SAVE) program. Proposed paragraph (c) 
required States to reverify a participant's eligibility if the 
documentation upon which eligibility was based expires during the 
period in which TAA benefits are received.
    One commenter asked whether verification of eligibility for program 
benefits is the responsibility of the liable State or the agent State. 
Verification is the responsibility of the liable State, which is the 
State in which the trade-affected worker establishes UI eligibility 
until such worker establishes eligibility in another State. If the 
worker is receiving services in the agent State, the agent State 
assists the liable State in the verification. Agent States should 
contact liable States (and vice versa) to confirm that an initial 
verification was conducted. The final rule adopts the regulatory text 
as proposed.
Section 618.888 Equitable Tolling
    Section 618.888 of the proposed rule originated from administrative 
guidance. Proposed paragraph (a) of this section provided that TAA 
Program deadlines may be equitably tolled when an extraordinary 
circumstance prevented a trade-affected worker's timely action and the 
worker otherwise acted with diligence.
    Proposed paragraph (b) set out a burden-shifting framework for 
equitable tolling in one unique circumstance--when the State fails to 
give required notice to a trade-affected worker of a particular benefit 
(or potential benefit), thus permitting the deadline for that benefit 
(or potential benefit) to run without the worker's knowledge. In such 
an instance the failure to provide notice would constitute prima facie 
evidence of an extraordinary circumstance. Proposed paragraph (b) 
emphasized to States the importance of

[[Page 51957]]

complying with the notice requirements in this part 618. It should not 
be construed to otherwise lessen or lighten a worker's burden to show 
entitlement to equitable tolling in other circumstances.
    Proposed paragraph (c) limited the time period for tolling to the 
period during which the extraordinary circumstance existed.
    Finally, proposed paragraph (d) set a limit on how long a deadline 
may be equitably tolled: 36 Months. The 36-month limit strikes a 
balance between, on the one hand, fairness and equity for individual 
trade-affected workers and, on the other, the need for clarity and 
efficiency in the operation of the program as a whole.
    Multiple commenters supported the inclusion of the equitable 
tolling provision and its 36-month limit. The Department appreciates 
this support.
    One commenter asked under what circumstances a State could toll a 
deadline for 36 months. Other commenters generally asked for 
clarification on paragraph (d) of this section, which establishes the 
36-month timeframe. One of the commenters recommended that States be 
allowed to exceed the 36-month deadline if funds are available. In 
creating the maximum extension period, the Department seeks both to 
allow claimants who were prevented from timely filing for TAA Program 
benefits due to extraordinary circumstances ample time to file and to 
ensure that the information States require to administer the TAA 
Program is still attainable following the passage of time. For example, 
where a trade-affected worker has not received notice of eligibility, 
the Department maintains that 36 months is a more than sufficient 
period of time for a reasonably diligent worker to discover his or her 
eligibility and apply for benefits. The Department has determined that, 
where equitable tolling of a deadline is applicable, a 36-month maximum 
extension period is a reasonable limit. The final rule adopts the 
regulatory text as proposed.
    One commenter requested that the Department clarify the respective 
meanings of ``required notice'' and ``actual notice'' in paragraph 
(b)(2). The Department explains that in this example, a required notice 
would be the standard notice of benefits or eligibility issued under 
various subparts of this rule, versus actual notice, which could be a 
case manager informing the trade-affected worker of a deadline or other 
requirement during the provision of services. The final rule adopts the 
regulatory text as proposed.
Section 618.890 Staffing Flexibility
    In 2010, the Department revised the TAA Program regulations by 
requiring, for the first time by regulation, that States administer the 
TAA Program strictly through staff meeting Federal merit personnel 
criteria.\11\ As the Department noted then, ``the Trade Act does not 
directly address merit staffing'' and so the initial ``promulgation of 
the merit staffing rule [was] within the discretionary authority 
delegated to'' the Department ``to interpret the Trade Act and 
administer the TAA program.'' 75 FR 16988, 16990 (Apr. 2, 2010). In 
Sec.  618.890 of the NPRM, the Department proposed to exercise its 
discretion by removing this mandate on States except for certain 
positions. The NPRM gave several reasons for this discretionary policy 
change, chief among them that staffing flexibility could help States 
better integrate the TAA Program with WIOA services.
---------------------------------------------------------------------------

    \11\ Merit staffing requirements had been part of the Governor-
Secretary Agreements from 1975 to 2005.
---------------------------------------------------------------------------

    Many commenters supported the proposal. One commenter generally 
supported the proposed staffing flexibility. Another commenter stated 
that the proposal would allow for better integration of the TAA Program 
and WIOA services. Other commenters stated that the proposal would 
result in cost savings or financial flexibility. One commenter affirmed 
that staffing flexibility is appropriate for its needs and would 
provide cost savings to it with respect to the delivery of case 
management services. Another commenter stated that it would allow 
States to shift local area costs for case management and employment 
services from WIOA to the TAA Program. Another commenter similarly 
stated that the proposed flexibility would relieve the financial burden 
imposed by the co-enrollment requirement.
    Several LWDBs commented that the proposed staffing flexibility does 
not provide enough flexibility and recommended that the Department 
follow the model of Michigan's pilot program. Under this pilot program, 
the State allocated TAA Program funds to LWDBs while requiring that 
merit staff provide services. The commenters advocated taking language 
from the Department's then-proposed Wagner-Peyser staffing rule \12\ on 
staffing flexibility that emphasized the variety of staffing options 
available to States, including continued use of merit staff, and 
identified a number of staffing models that may fit States' needs 
better, such as the use of local area staff or contractors. In 
developing these regulations, the Department considered all aspects 
related to merit staffing. The Department appreciates these comments 
and notes again that the flexibility provided by this rule permits 
States to use a wide variety of staffing models. No changes to the 
regulatory text have been made in response to these comments or those 
below.
---------------------------------------------------------------------------

    \12\ See 84 FR 29433 (June 24, 2019). The rule has since been 
finalized. See 85 FR 592 (Jan. 6, 2020).
---------------------------------------------------------------------------

General Comments Regarding the New Flexibilities
    Other commenters had questions about or were opposed to this aspect 
of the Department's proposal. Some questioned the staffing flexibility 
proposal generally. One commenter characterized the proposal as 
aligning the Department's staffing policy with the Department's then-
proposed Wagner-Peyser staffing rule and requested further analysis of 
TAA Program service delivery models before implementing the proposal. 
Another commenter cited administrative guidance as indicating that 
merit staffing is an important, longstanding element of the TAA 
Program. A different commenter argued that there were insufficient data 
to show that eliminating merit staffing would make the TAA Program more 
efficient. One commenter contended that privatization of government 
services has historically harmed public services in Texas and no 
evidence indicates the proposed flexibility would be any different. 
Likewise, other commenters cited studies for the proposition that 
privatization decreased efficiency in administering SNAP, where 
programs in Indiana and Texas provided fewer benefits at excessive 
costs. Another commenter provided what it viewed as other examples of 
privatized services' shortcomings, such as--according to the 
commenter--endemic corruption, failing to communicate with the served 
population, and neglecting to protect the privacy of records.
    The offer of staffing flexibility to States is intended to allow 
them, where they see fit, to better integrate the TAA Program when 
helping workers. This integration includes allowing non-merit staff to 
charge their time to the TAA Program, including and especially at the 
one-stop delivery service level. In States that would like to do so, 
and where it is otherwise appropriate for them to do so, this better 
integration is expected to help service delivery in several ways. This 
change allows States to implement a seamless service delivery model 
where a trade-affected worker will not need to move from case manager 
to case manager depending on their merit staff status. Cost allocation 
of employment

[[Page 51958]]

and case management services costs will also be simpler as the merit 
staff status of case managers will be irrelevant for time-charging.
    While the Department appreciates commenters' concerns derived from 
studies of two States' SNAP experience, SNAP is a different program 
with different statutory and regulatory requirements. States 
considering using this final rule's staffing flexibility are encouraged 
to consider the range of experiences other programs have had, including 
those noted in relevant research, or to conduct their own evaluations 
or pilot projects. States can also use lessons learned from other 
efforts as they decide whether to use the staffing flexibility in this 
final rule. States are in the best position to determine the staffing 
model that will best control their costs and serve their workers.
    But regardless of how States choose to provide services under the 
TAA Program, they are still grantees of the TAA Program subject to the 
Department's oversight. States must oversee all operations of TAA 
Program activities and are still subject to the oversight and 
monitoring commitments at Sec.  618.860(d)(2). The Department will 
continue to monitor States to ensure they are complying with all 
requirements of the TAA Program, this part 618, and 2 CFR parts 200 and 
2900. The Department will hold States responsible for violations of 
regulations, the statute, and the Uniform Guidance.
    Finally, the Department is not mandating that States change their 
staffing models, much less mandating privatization. In fact, many of 
the local area providers of WIOA services are municipal and county 
employees, not private-sector employees, and they would presumably 
remain so if used under the flexibilities provided by this rule. Where 
States have found that retaining Federal staffing criteria is the best 
approach for service delivery, they need not change that approach.
Staffing Models for Federal Entitlements
    Multiple commenters argued that TAA Program service provision is an 
essential governmental function and only merit staffing can effectively 
deliver Federal entitlements such as TAA Program services. The same 
commenters quoted the 2010 rule that imposed Federal staffing 
requirements to argue that merit staff are unbiased, nonpartisan public 
servants who safeguard the interests of the population served and the 
public at large. These commenters further wrote that, in their view, 
merit staffing removes incentives for service providers to favor more 
readily employable candidates in order to inflate their job placement 
numbers. The commenters stated that the 2010 rule's description of the 
TAA Program, with its emphasis on accountability and transparency, 
makes the program more analogous to merit staffed UI and ES programs 
than WIOA. Another commenter cited a study for the proposition that 
publicly administered services better reduce inequality than do 
privatized services, which incentivize competitors to prioritize whom 
to serve and how according to their contractual incentive structure. 
The same commenter also cited another study for the proposition that 
privatizing administrative services does not reduce costs, as 
competition for administrative services is subject to high barriers to 
entry, including the complex nature of administrative services work and 
the necessity of long-term contracts.
    The Department believes that allowing non-merit staff to charge 
their time to the TAA Program does not reduce transparency or limit 
access to the benefits available under the Act. In many areas, this 
additional flexibility will increase the level and timeliness of 
services available to trade-affected workers by allowing States to 
deploy resources faster by accessing additional providers that would 
not have been previously available with TAA Program funding. And while 
some States may find that merit staff serve workers admirably and 
fairly, that does not mean that they are the only personnel who can do 
so. States can structure their staffing arrangements to avoid perverse 
incentives and to ensure that TAA Program staff perform their duties 
with fairness, equality, and professionalism. Any funds expended under 
the TAA Program are subject to the same oversight requirements 
regardless of which type of entity expends those funds and the States, 
as the recipients of the grants, are ultimately responsible for the 
expenditure of these funds.
Quality and Uniformity of Service
    Some commenters contended that Federal merit personnel requirements 
foster uniform or quality service. One commenter argued that case 
management and employment functions are so closely intertwined with 
merit staffed eligibility and compliance functions that they also 
should be subject to Federal merit staffing mandates. The commenter 
also wrote that the complexity of the TAA Program, especially in TRA 
requirements, necessitates the use of trained and experienced personnel 
such as State merit staff. Another commenter disagreed with the 
proposed rule's characterization of State merit staffing as ``one-size 
fits-all,'' arguing that State merit staff provide professional 
services with a close understanding of the needs of their region. The 
commenter said that its State's individual staff and unit as a whole 
has greater experience because of merit staffing requirements, and that 
the staff adhere to statewide performance standards and provide 
consistent, high-quality service crucial to the TAA Program. Another 
commenter stated that, for the TAA Program, merit staffing delivers 
services more efficiently than local area delivery models. This 
commenter and others maintained that because TAA Program services are 
triggered by specific events and entail services distinct from those of 
WIOA, State merit staffing provides a timely surge of workers trained 
to provide services for TAA Program certifications. These commenters 
contrasted this to cross-training local area staff who would only 
periodically use TAA-specific rules. The commenters further argued that 
because funding for case management is very limited, splitting the 
funding among local areas is impractical.
    This rule's flexibility does not require States to change their 
merit staffing arrangements if they are working well, as may be the 
case in these commenters' States. But the flexibility of this rule 
acknowledges that other staffing models can also provide high-quality 
services. States can make those decisions as they know their programs 
best, provided they continue to meet the Department's requirements for, 
among other things, efficiency and quality service. The Department 
expects all services provided through Federal funds to be consistent 
and high quality. This is a key focus of the Department's oversight of 
all the grants it administers. And it holds true regardless of the 
nature of the entity--public or private, State or local--that 
ultimately delivers services.
    The Department's high expectations of staff provided under other 
models has been borne out by experience. There are already several 
States where nearly all employment and case management services are 
provided by non-merit staff. This has been accomplished through co-
enrollment under WIOA. The Department's oversight of these States has 
not uncovered any of the potential problems raised by the commenters 
here. The Department concludes there is no additional appreciable risk 
of compliance issues by allowing employment and case management 
services to be fully funded by the TAA Program, regardless of which 
type of entity provides these services. In addition, this final rule 
requires that

[[Page 51959]]

determinations be rendered by State or State merit staff and all 
determinations rendered under the TAA Program be subject to review by 
the Department.
    Finally, regarding the specific point about the need for a timely 
surge of staff, at times the Department has found merit staffing 
requirements to impede surge capacity. Beginning during the Great 
Recession, many Governors established hiring freezes at the State 
level, even if the positions were federally funded. This left many 
States understaffed and unable to respond to large dislocation events, 
especially in rural areas. This final rule provides States with 
additional flexibility to meet the needs of trade-affected workers.
Accountability
    Multiple commenters stated that merit staffing provides a better 
system of accountability than other systems, writing that trade-
affected workers can raise concerns to State officials who have direct 
authority over merit staff. Another commenter recommended that the 
Department ensure that private providers be accountable. One commenter 
proposed requiring that TAA Program service contracts name workers as 
third-party beneficiaries, giving them a private right of action to 
enforce the terms of the contract.
    The Department believes that this final rule includes adequate 
safeguards for accountability and transparency. While employees are 
accountable to their State employers, so are contractors and others who 
implement State requirements. In turn, States remain responsible for 
monitoring service providers to ensure that funds are appropriately 
spent and services are appropriately provided. The Uniform Guidance at 
2 CFR part 200 establishes the foundation of accountability for all 
entities that expend Federal funds and will continue to be applied 
here. In addition, the Governor-Secretary Agreement and the grant 
agreements executed by the States provide accountability and 
transparency.
Merit Staff and WIOA Co-Enrollment
    Several commenters wrote that the current rules allow for 
integration between the TAA Program and WIOA services through co-
enrollment and the provision of both TAA Program and WIOA services at 
one-stop centers. One commenter added that TAA Program services are 
already integrated with WIOA services into one-stop operations, with 
TAA Program funding providing for case management by State merit ES 
staff. The same commenter wrote that the relationship between ES and 
the TAA Program would make it easier for current TAA Program merit 
staff to adapt to the proposed co-enrollment requirement. The 
Department has found that the combination of the changes to the merit 
staffing provisions and the requirement to co-enroll trade-affected 
workers in WIOA represents one of the most significant steps towards 
service integration since the original development of the one-stop 
service delivery model.
Other Comments on Staffing Flexibility
    Several commenters stated that WIOA providers are not accustomed to 
processing appeals regarding a government service and WIOA providers 
have greater discretion in granting benefits. The Department clarifies 
that this final rule makes no changes to the handling of appeals. All 
appeals under the TAA Program are subject to the same process utilized 
for appeals under the UI program, which has a merit staffing 
requirement.
    A different commenter asked if all determinations regarding program 
benefits would need to be approved by State merit staff only or by any 
State staff. Section 618.890(b) provides that determinations under the 
TAA Program can be made by either State merit staff or State non-merit 
staff subject to the restriction regarding redeterminations in Sec.  
618.890(a).

I. Subpart I--Allocation of Funds to States for Training and Other 
Activities

    Subpart I revises the regulations currently found at 20 CFR 618.900 
through 618.940. The Department first published these regulations on 
April 2, 2010 (75 FR 16988); they became effective May 3, 2010. Subpart 
I addresses the Act's provisions at sections 236(a)(2) and 245 and 
establishes how funds appropriated for TaOA are allocated by the 
Department to the States. Some highlights of changes to the regulation 
include introduction of a new term, TaOA; a statutory update of the 
annual funding limit; and an update to the reserve fund request 
process. This subpart I also addresses the recapture and reallocation 
provisions established by section 245(c) of the Act.
    The Department received no comments relating to proposed Sec. Sec.  
618.900, 618.910, 618.920, 618.930 and 618.940. Accordingly, the 
Department adopts these provisions into the final rule as proposed. As 
discussed further below, the Department received only one comment in 
relation to subpart I.
Section 618.950 Recapture and Reallocation of Training and Other 
Activities Funds
    Section 618.950 of the proposed rule provided the description of 
recapture and reallocation procedures that the Department may use to 
implement the recapture and reallocation provisions of section 245(c) 
of the Act.
    One commenter expressed concern that recapture by the Department of 
allocated funds that remain unobligated after a certain period of time 
could leave States ``very vulnerable'' if, following recapture, a large 
petition is certified. The same commenter asked whether States could 
take back recaptured funds and argued a better approach would be to 
align the TAA Program recapture and reallocation provisions with the 
WIOA reallotment procedures found at 20 CFR 683.135. The Department 
clarifies that for unforeseen situations, a State may always request 
TAA Program reserve funds using the Reserve Funds Process set forth at 
Sec.  618.920, TAA Program Reserve Funds. Unlike WIOA, the TAA Program 
is a mandatory entitlement with ``capped'' funds for training; however, 
35 percent of FY training funds are held in reserve for exactly this 
reason (i.e., States experience unexpected/unforeseen events that 
require additional funds). Further, the Department will only recapture 
funds after having consulted with the State. The final rule adopts the 
section as proposed.

IV. Agency Determinations

A. Legal Authority

    The Act established the programs collectively known as the TAA 
Program (codified at 19 U.S.C. 2271 et seq.). This statute has been 
amended many times since its enactment, including multiple amendments 
since 2002 that have substantially affected the TAA Program (e.g., Pub. 
L. 107-210 (2002); Pub. L. 111-5 (2009); Pub. L. 112-40 (2011); Pub. L. 
114-27 (2015)). Until this final rule, the Department's regulations 
under the Act, codified at 20 CFR parts 617 and 618, and 29 CFR part 
90, had not been fully updated in response to the various statutory 
amendments to the Act. As a result, some portions of the regulations 
may not have reflected current law. Section 248(a) of the Act (19 
U.S.C. 2320(a)) requires that the Department prescribe such regulations 
as are necessary to carry out the provisions of the Act. Therefore, the 
Department is issuing this final rule to update and consolidate the 
regulations in order to fully implement all statutory amendments to the 
TAA Program.

[[Page 51960]]

B. Executive Orders 12866 (Regulatory Planning and Review), 13563 
(Improving Regulation and Regulatory Review), and 13771 (Reducing 
Regulation and Controlling Regulatory Costs)

    Under E.O. 12866, OMB's Office of Information and Regulatory 
Affairs (OIRA) determines whether a regulatory action is significant 
and, therefore, subject to the requirements of the E.O. and OMB review 
(see 58 FR 51735, Oct. 4, 1993). Section 3(f) of E.O. 12866 defines a 
``significant regulatory action'' as an action that is likely to result 
in a rule that: (1) Has an annual effect on the economy of $100 million 
or more, or adversely affects in a material way a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or communities 
(also referred to as economically significant); (2) creates serious 
inconsistency or otherwise interferes with an action taken or planned 
by another agency; (3) materially alters the budgetary impacts of 
entitlement grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof; or (4) raises novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the E.O. OMB has determined that this rule 
is significant under section 3(f) of E.O. 12866. Pursuant to the 
Congressional Review Act (5 U.S.C. 801 et seq.), OIRA has designated 
this rule as not a ``major rule,'' as defined by 5 U.S.C. 804(2).
    E.O. 13563 directs agencies to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs; the 
regulation is tailored to impose the least burden on society, 
consistent with achieving the regulatory objectives; and in choosing 
among alternative regulatory approaches, the agency has selected those 
approaches that maximize net benefits. E.O. 13563 recognizes that some 
benefits are difficult to quantify and provides that, where appropriate 
and permitted by law, agencies may consider and discuss qualitatively 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.
Outline of the Analysis
    Section IV.B.1 describes the need for this final rule, and Section 
IV.B.2 describes the process used to estimate the costs of this final 
rule and the general inputs used, such as wages and number of affected 
entities. Section IV.B.3 discusses the public comments received in 
response to the NPRM. Section IV.B.4 explains how the provisions of 
this final rule will result in quantifiable costs, cost savings, and 
transfer payments, and presents the calculations the Department used to 
estimate them. In addition, Section IV.B.4 describes the qualitative 
costs, transfer payments, and benefits of this final rule. Section 
IV.B.5 summarizes the estimated first-year and 10-year total costs, 
cost savings, net cost savings, and transfer payments of this final 
rule. Finally, Section IV.B.6 describes the regulatory alternatives 
that were considered during the development of this final rule.
Summary of the Analysis
    The Department estimates that this final rule will result in costs, 
cost savings, and transfer payments. As shown in Exhibit 1, this final 
rule is expected to have an average annual cost of $5,596 and a total 
10-year cost of $39,305 (with 7-percent discounting). This final rule 
is estimated to have annual cost savings of $75,316 and total 10-year 
cost savings of $528,988 (with 7-percent discounting). Cost savings 
associated with the rule are from revisions to the definition of 
``final determination'' related to judicial appeals and from 
streamlining the reconsideration process. In addition, this final rule 
is estimated to result in annual transfer payments of $898,927 and 
total 10-year transfer payments of $6,313,684 (with 7-percent 
discounting). The Department estimates that this final rule will result 
in net cost savings of $597,559 discounted at 3 percent and $489,683 
discounted at 7 percent, both expressed in 2019 dollars. For the 
purpose of E.O. 13771, the annualized net cost savings in 2016 dollars, 
over a perpetual time horizon, is $50,902 discounted at 7 percent.\13\
---------------------------------------------------------------------------

    \13\ Based on OMB's E.O. 13771 guidance memo, M-17-21, 
perpetuated net cost savings for the purposes of E.O. 13771 are 
presented in 2016 dollars. Net cost savings in 2019 dollars are 
converted to 2016 dollars using the GDP deflator from the Bureau of 
Economic Analysis. BEA. (2019). ``Table 1.1.9. Implicit Price 
Deflators for Gross Domestic Product.'' Retrieved from: https://apps.bea.gov/iTable/iTable.cfm?reqid=19&step=3&isuri=1&select_all_years=0&nipa_table_list=13&series=a&first_year=2000&scale=-99&last_year=2019&categories=survey&thetable=x. The savings are then 
discounted by 4 years at 7 percent annually to reflect that the rule 
will not take effect until 2020.

     Exhibit 1--Estimated Monetized Costs, Cost Savings, Net Cost Savings, and Transfer Payments of the NPRM
                                                 [2019 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                     Net Cost        Transfer
                                                       Costs       Cost savings     savings \a\      payments
----------------------------------------------------------------------------------------------------------------
Undiscounted 10-Year Total......................         $50,192        $753,160        $702,968      $8,989,265
10-Year Total with 3% Discounting...............          44,902         642,461         597,559       7,668,025
10-Year Total with 7% Discounting...............          39,305         528,988         489,683       6,313,684
10-Year Average.................................           5,019          75,316          70,297         898,927
Annualized with 3% Discounting..................           5,264          75,316          70,052         898,927
Annualized with 7% Discounting..................           5,596          75,316          69,720         898,927
                                                 ---------------------------------------------------------------
Perpetuated Net Cost Savings a with 7%
 Discounting (2016 dollars).....................                              $50,902
----------------------------------------------------------------------------------------------------------------
a Net Cost Savings = [Total Cost Savings] - [Total Costs].

    The costs of this final rule are those associated with State staff 
needing to familiarize themselves with the new regulations, the 
development of IEPs for trade-affected workers, and the implementation 
of two IC forms (i.e., ETA Form 8561, Study of Domestic Industry, and 
ETA Form 9185, Application for Reconsideration). The largest 
contributors to the cost savings of this final rule are from revisions 
to the definition of ``final determination'' related to judicial 
appeals and from streamlining the reconsideration process. See the cost 
and cost savings subsections of Section IV.B.4 (Subject-by-Subject 
Analysis) below for a detailed explanation.

[[Page 51961]]

    The Department was unable to quantify one cost, three transfer 
payments, and the benefits of this final rule. We describe these costs 
and transfer payments, along with the rule benefits, qualitatively in 
Section IV.B.4 (Subject-by-Subject Analysis).
1. Need for Regulation
    On June 29, 2015, the Trade Preferences Extension Act of 2015 (Pub. 
L. 114-27) was signed into law. Title IV reauthorizes the TAA Program 
for Workers program through 2021; it is known as TAARA 2015.
    The regulations governing the TAA Program were last updated in 
1994, with only minor changes made in 2007 \14\ and 2010. Since that 
time, multiple TAA Program amendments have occurred. In addition, a 
2014 reform of the public workforce system, WIOA, reaffirms the TAA 
Program as a mandatory partner program in the one-stop delivery system.
---------------------------------------------------------------------------

    \14\ Minor changes were made to 29 CFR part 90.
---------------------------------------------------------------------------

    Prior to this final rule, the Department had addressed all TAA 
Program amendments through administrative guidance. As a result, a 
combination of regulations and a patchwork of administrative guidance 
guided the worker-group certification process at the Federal level and 
the administration of individual benefits and services at the State 
level.
    This final rule will promote transparency by setting out in binding 
regulation the major principles by which the TAA Program operates, 
which will provide the public and courts with the Department's 
authoritative interpretation of the Act. This final rule also will 
include changes that increase States' flexibility to administer the 
program, improve service delivery, and reduce costs. In addition, this 
final rule will incorporate clarifications that draw upon the 
Department's expertise gained from decades of experience operating the 
TAA Program.
    Through this final rule, the Department seeks to modernize its TAA 
Program regulations to reflect changes to the workforce, technology, 
and the administration of the program that have occurred since the 
Department's last comprehensive update to the regulations in 1994. The 
Department also seeks to consolidate all applicable program regulations 
into a single section of the CFR.
    The goal of the TAA Program is to help each participating worker 
obtain, as quickly as possible, suitable employment when possible and 
nonsuitable employment otherwise. This goal will be accomplished by 
providing trade-affected workers access to training that will allow 
workers to compete for work at the highest skill levels and highest 
wages achievable, given the workers' preexisting skill levels, 
abilities, and education, and the current and projected labor market, 
and do so as quickly as possible. The TAA Program includes the RTAA 
benefit, which may be available to workers 50 years of age or older. 
The TAARA 2015 amendment of the TAA Program restored the major 
expansions in TAA Program worker group eligibility to service sector 
workers and workers who are affected by trade from any country, 
including countries that do not have Free Trade Agreements with the 
United States, including China and India.
2. Analysis Considerations
    The Department estimated the costs, cost savings, and transfer 
payments of this final rule relative to the existing baseline; that is, 
the current practices for complying with, at a minimum, the TAA Program 
as currently codified at 20 CFR parts 617 and 618, and 29 CFR part 90, 
as well as in administrative guidance.\15\ The Department explains how 
the required actions of States, government agencies, and other related 
entities were linked to the expected costs, cost savings, transfer 
payments, and benefits.
---------------------------------------------------------------------------

    \15\ Current administrative guidance related to the TAA Program 
can be found at https://www.doleta.gov/tradeact/law/directives-guidance/.
---------------------------------------------------------------------------

    In accordance with the regulatory analysis guidance articulated in 
OMB Circular A-4 and consistent with the Department's practices in 
previous rulemakings, this regulatory analysis focuses on the likely 
consequences of this final rule (i.e., costs, cost savings, transfer 
payments, and benefits that accrue to entities affected). The analysis 
covers 10 years (2020 through 2029) to ensure it captures major costs, 
cost savings, and transfer payments that accrue over time. With the 
exception of analyses required under E.O. 13771, the Department 
expresses all quantifiable impacts in 2019 dollars and uses 3- and 7-
percent discounting following OMB Circular A-4.
    Exhibit 2 presents the number of entities that will be affected by 
the requirements of this final rule. The Department provides these 
estimates and uses them throughout this analysis to estimate the costs, 
cost savings, and transfer payments of this final rule.

            Exhibit 2--Number of Affected Entities by Type a
------------------------------------------------------------------------
                       Entity type                            Number
------------------------------------------------------------------------
States (total) b........................................              52
Additional trade-affected workers that will require an                24
 IEP due to a comprehensive and specialized assessment
 (annual) c.............................................
Number of firms that will participate in domestic                     12
 industry study each year (annual) d....................
Number of applications for reconsideration submitted                  25
 each year (annual).....................................
------------------------------------------------------------------------
a Unless otherwise noted, the number of affected entities was obtained
  from Trade Act Participant Report (TAPR)--State quarterly reporting
  and record keeping information; Management Information System (MIS)--
  OTAA's petition database. Data as of January 23, 2020.
b The 52 States used for purposes of this analysis consist of the 50
  States, the District of Columbia, and Puerto Rico.
c The Department derived this number by taking the average of the annual
  number of individuals who received training, job search, or relocation
  allowances (i.e., program exiters) in FY 2013 through FY 2019.
d Since 1998, the Department has conducted three domestic industry
  studies. However, for purposes of this analysis, the Department
  estimates that it will conduct one study per year.

Estimated Number of Workers and Level of Effort \16\
---------------------------------------------------------------------------

    \16\ Trade Act Participant Report (TAPR)--State quarterly 
reporting and record keeping information; Management Information 
System (MIS)--OTAA's petition database. (2020). Unpublished data.
---------------------------------------------------------------------------

    The Department presents the estimated average number of trade-
affected workers and the estimated average level of effort required per 
worker for each activity in the subject-by-subject analysis. To derive 
these estimates, Department TAA Program experts estimated the average 
levels of effort and the average number of workers needed for each 
activity to meet

[[Page 51962]]

the requirements relative to the baseline (i.e., the current practice 
under the TAA Program). These estimates are the national averages for 
all States; thus, some States could experience higher actual costs, 
cost savings, or transfer payments, while these impacts could be lower 
for other States.
Compensation Rates
    In the subject-by-subject analysis, the Department presents the 
labor and other costs associated with the implementation of the 
provisions of this final rule. Exhibit 3 presents the compensation 
rates for the occupational categories expected to experience a change 
in the level of effort (workload) due to this final rule. We use BLS 
mean hourly wage rates for State government and private sector 
employees.17 18 19 We use Office of Personnel Management 
(OPM) and U.S. courts wage rates for Federal employees.20 21 
We adjust the wage rates to reflect total compensation, which includes 
nonwage factors, such as overhead and fringe benefits (e.g., health and 
retirement benefits). For all labor groups (i.e., State government, 
private sector, and Federal Government), we use an overhead rate of 17 
percent \22\ and a fringe benefits rate based on the ratio of average 
total compensation to average wages and salaries in 2019. For the State 
government employees, we use a fringe benefits rate of 61 
percent.23 24 For the private sector employees, we use a 
fringe benefits rate of 43 percent.25 26 For the Federal 
Government, we use a fringe benefits rate of 63 percent.\27\ We then 
multiply the loaded wage factor by the corresponding occupational 
category wage rate to calculate an hourly compensation rate.
---------------------------------------------------------------------------

    \17\ BLS. (2019). ``May 2018 National Industry-Specific 
Occupational Employment and Wage Estimates: NAICS 999200--State 
government, excluding schools and hospitals (OES designation).'' 
Retrieved from: http://www.bls.gov/oes/current/naics4_999200.htm. 
The May 2018 mean hourly wages were adjusted to September 2019 
values using Employment Cost Indices (ECI) for State and local 
government workers. ECI data were obtained from ``Table 7. 
Employment Cost Index for total compensation, for State and local 
government workers, by occupation and industry (not seasonally 
adjusted).'' BLS. (2019). ``Employment Cost Index Historical 
Listing--Volume V, Continuous Occupational and Industry Series, 
September 1975-September 2019 (December 2005=100).'' Retrieved from: 
https://www.bls.gov/web/eci/ecicois.pdf.
    \18\ BLS. (2019). ``May 2018 National Occupational Employment 
and Wage Estimates by Ownership: Cross-industry, private ownership 
only: SOC Major Groups in Cross-industry, private ownership only 
(OES designation).'' Retrieved from: https://www.bls.gov/oes/current/000001.htm. The May 2018 mean hourly wages were adjusted to 
September 2019 values using ECI for private industry workers. ECI 
data were obtained from ``Table 5. Employment Cost Index for total 
compensation, for private industry workers, by occupation and 
industry, Continuous occupational and industry series (not 
seasonally adjusted).'' BLS. (2019). ``Employment Cost Index 
Historical Listing--Volume V--Continuous Occupational and Industry 
Series, September 1975-September 2019 (December 2005=100.'' 
Retrieved from: https://www.bls.gov/web/eci/ecicois.pdf.
    \19\ ETA Form 9185 (Application for Reconsideration) may be 
filed by a company official, a union representative, two workers, or 
a State. To estimate the average hourly wage rate for the person 
completing ETA Form 9185, the Department used a weighted-average 
based on the percent of petitioners by type (in FY 2017) and the 
corresponding hourly rate: (1) Company/union officials account for 
21% of petitioners at an hourly labor wage rate of $60.36 per hour; 
(2) workers account for 17% of petitioners at an hourly labor wage 
rate of $24.61 per hour; (3) States account for 62% of petitioners 
at an hourly labor wage rate of $24.83 per hour. This calculation 
results in a weighted average of $32.25 ([0.21x$60.36] + 
[0.17x$24.61] + [0.62x$24.83]).
    \20\ OPM. (2019). ``Salary Table 2019-DCB Incorporating the 1.4% 
General Schedule Increase and a Locality Payment of 29.32% for the 
Locality Pay Area of Washington-Baltimore-Arlington, DC-MD-VA-WV-
PA.'' Retrieved from: https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2019/DCB_h.pdf. Federal 
employee wage rates are used to estimate cost savings associated 
with reconsiderations and judicial appeals. Because these two 
processes are conducted by Headquarter staff, the Department uses 
DC-MD-VA-WV-PA wage rates to estimate labor costs.
    \21\ For District Court Judge: U.S. Courts. (2019). ``Judicial 
Compensation.'' Retrieved from: http://www.uscourts.gov/judges-judgeships/judicial-compensation. For District Court Clerk: U.S. 
Courts. (2019). ``Judiciary Salary Plan, New York-Newark, NY-NJ-CT-
PA--Table NY, 33.06% Locality Payment Included, Effective January 7, 
2019.'' Retrieved from: https://www.uscourts.gov/sites/default/files/jsp_new_york_2019.pdf.
    \22\ Cody Rice, U.S. Environmental Protection Agency. (2002). 
``Wage Rates for Economic Analyses of the Toxics Release Inventory 
Program.'' Retrieved from: https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.
    \23\ BLS. (2019). ``2019 Employer Costs for Employee 
Compensation.'' Retrieved from: https://www.bls.gov/ncs/ect/data.htm. Total compensation for all workers. Average Series ID 
CMU3010000000000D, CMU3010000000000P. To calculate the average total 
compensation in 2019, we averaged the total compensation for all 
workers for Quarters 1 through 3.
    \24\ BLS. (2019). ``2019 Employer Costs for Employee 
Compensation.'' Retrieved from: https://www.bls.gov/ncs/ect/data.htm. Wages and salaries for all workers. Average Series ID 
CMU3020000000000D, CMU3020000000000P. To calculate the average wage 
and salary in 2019, we averaged the wages and salaries for all 
workers for Quarters 1 through 3.
    \25\ BLS. (2019). ``2018 Employer Costs for Employee 
Compensation.'' Retrieved from: https://www.bls.gov/ncs/ect/data.htm. Total compensation for all workers. Average Series ID 
CMU2010000000000D, CMU2010000000000P. To calculate the average total 
compensation in 2019, we averaged the total compensation for all 
workers for Quarters 1 through 3.
    \26\ BLS. (2019). ``2018 Employer Costs for Employee 
Compensation.'' Retrieved from: https://www.bls.gov/ncs/ect/data.htm. Wages and salaries for all workers. Average Series ID 
CMU2020000000000D, CMU2020000000000P. To calculate the average wage 
and salary in 2019, we averaged the wages and salaries for all 
workers for Quarters 1 through 3.
    \27\ Department of Labor. (2018). ``DOL-Only Performance 
Accountability, Information, and Reporting System; OMB Control No. 
1205-0521.'' Retrieved from: https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201802-1205-003.
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    The Department uses the hourly compensation rates presented in 
Exhibit 3 throughout this analysis to estimate the labor costs for each 
provision.

                                                              Exhibit 3--Compensation Rates
                                                                     [2019 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Loaded wage factor components
                                                                                 Average hourly --------------------------------------       Hourly
                   Position                               Grade level               wage rate                        Fringe benefits   compensation rate
                                                                                                  Overhead factor         factor
                                                                                              a                  b                  c  d = a + (a x b) +
                                                                                                                                                 (a x c)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Private Sector Employees:
    Employment Counselor.....................  N/A.............................          $21.70               0.17               0.43             $34.72
    Attorney.................................                                             74.20  .................  .................             118.72
    Individual Completing ETA Form 8561,                                                  60.36  .................  .................              96.58
     Domestic Industry Study.
    Individual Completing ETA Form 9185,                                                  32.25  .................  .................              51.60
     Application for Reconsideration.
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Government Employees:
    Employment Counselor.....................  N/A.............................           24.83               0.17               0.61              44.20

[[Page 51963]]

 
    Attorney.................................                                             44.98  .................  .................              80.06
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal Government Employees:
    Investigator.............................  GS-11, Step 5...................           37.79               0.17               0.63              68.02
    Certifying Officer.......................  GS-14, Step 5...................           63.64  .................  .................             114.55
    Attorney.................................  GS-14, Step 7...................           74.20  .................  .................             121.28
    District Court Clerk.....................  GS-13, Step 1...................           49.06  .................  .................              88.31
    District Court Judge.....................  N/A.............................          101.39  .................  .................             182.50
--------------------------------------------------------------------------------------------------------------------------------------------------------

Transfer Payments
    The Department provides an assessment of transfer payments 
associated with the NPRM. In accordance with OMB Circular A-4, we 
consider transfer payments as payments from one group to another that 
do not affect total resources available to society.
3. Discussion of Comments
    One State workforce agency expressed concern about the 
``soundness'' of the Department's analysis with respect to the effect 
of the staffing flexibility provisions. An advocacy group stated that 
``[n]o experience, evidence, or economic analysis'' demonstrates that 
workers will benefit from the ``privatization'' of TAA Program 
services. The commenter said the Department's estimate that the 
proposal would result in cost savings of ``some half-million dollars'' 
does not outweigh the risk that ``tens of millions of dollars will be 
misspent.'' Another State workforce agency expressed concern that 
outsourcing TAA Program services to non-merit staff would ``double'' 
the administrative costs faced by States. The agency said that State 
resources for program administration are already stretched thin and 
argued that the proposal would worsen the situation unless the 
Department provides States more funding to offset the increased costs.
    The Department acknowledges these views and concerns, but this 
final rule does not privatize TAA Program services; rather, it provides 
flexibility to States to offer TAA Program services using the best 
staffing models available to them to provide these services, while the 
Department maintains oversight and long-established criteria for proper 
and efficient delivery of those services. States are encouraged to 
consider cost effectiveness when determining whether to use flexible 
staffing models for the delivery of TAA Program activities. States also 
are encouraged to conduct evaluations of various service delivery 
models. The Department anticipates that States will choose the service 
delivery model that is the most cost effective in their State.
    One advocacy group stated that the analysis may have underestimated 
the extent to which staffing flexibility would be adopted because it 
assumed that half of States would use non-merit staff and then took 
that assumption to mean that half of program participants would receive 
their services from non-merit staff. This commenter said that these 
assumptions do not account for States that have large participant 
populations. The commenter did not suggest an alternative assumption. 
The Department based its assumption on experiences with similar 
programs and has determined that with limited data available, its 
assumption is reasonable.
    Multiple unions and advocacy groups said the analysis did not make 
clear what methodology (beyond what the commenters termed ``an 
unspecified Departmental administrative guidance'') was used to 
estimate the costs of overhead for staff. The commenters stated that, 
without additional information about how the Department determined the 
costs of overhead and fringe benefits, it would be ``impossible'' to 
assess the costs associated with wages and compensation to compare 
salaries of public- and private-sector workers.
    In the proposed rule, the Department doubled the base wage rate to 
account for fringe benefits and overhead costs. For State government 
employees, doubling the base wage rate reflected a fringe benefits rate 
of 59 percent and an overhead rate of 41 percent. For private sector 
employees, doubling the base wage rate reflected a fringe benefits rate 
of 43 percent and an overhead rate of 57 percent. For Federal 
Government employees, doubling the base wage rate reflected a fringe 
benefits rate of 63 percent and an overhead rate of 37 percent. In this 
final rule, the Department used updated ECEC data to calculate the 
fringe benefits rates and the results were: 61 percent for State 
government employees, 43 percent for private sector employees, and 63 
percent for Federal Government employees. In response to public 
comments, the Department reevaluated the most appropriate overhead rate 
to use in the analysis. For this final rule, the Department lowered the 
overhead rate for all workers to 17 percent \28\ to reflect the low 
marginal increase in overhead costs for a rule that will have minimal 
net impact on the number of individuals employed to administer the 
program. Using 17 percent for all workers will create a consistent 
benchmark between public- and private-sector workers and show that the 
differences in cost between public- and private-sector workers relate 
to compensation (wages and fringe benefits).
---------------------------------------------------------------------------

    \28\ Cody Rice, U.S. Environmental Protection Agency. (2002). 
``Wage Rates for Economic Analyses of the Toxics Release Inventory 
Program.'' Retrieved from: https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.
---------------------------------------------------------------------------

    Multiple unions and advocacy groups stated that the economic 
analysis used inaccurately high wages for public sector employees, an 
assumption that they said goes against recent studies and the ``actual 
experiences'' of several States, a few examples of which they cited. 
They also stated that Occupational Employment Statistics (OES) data 
should not be relied on to compare the salaries of government and 
private sector workers. However, the commenters did not provide any 
alternative sources for wage data and the privatization examples 
provided were anecdotal. The Department continues to view OES as the 
best source available for wage data by occupation, industry, and State. 
No data source is perfect, but OES data are the

[[Page 51964]]

most robust and reliable data available for the Department's analysis.
    Multiple unions and advocacy groups commented that the analysis 
relies on ``other questionable underlying assumptions,'' such that 
contractors will be able to comply with the requirements for use of 
funds in Sec.  618.860(g), which specify that no less than 5 percent of 
funds may be spent on employment and case management services, while no 
more than 10 percent of funds may be spent on administration costs. The 
commenters stated that this assumption of compliance overlooks the 
``unique'' and ``distinct'' monitoring and administration requirements 
that accompany contracted services and serve to inflate their 
administration costs. Citing data from the Government Finance Officers 
Association and Rutgers University, respectively, the commenters said 
that ``standard'' administration costs for contractors run from 10 to 
20 percent and in some cases can even exceed 20 percent. The commenters 
expressed doubt that the Department's commitment to monitoring 
compliance with the use of funds requirements ``throughout the grant 
life cycle'' and enforcing them ``during the closeout process'' will be 
sufficient to maintain the high quality of services currently delivered 
by experienced merit staff, both in the TAA Program and in other 
Federal workforce development programs, if non-merit staff are used 
instead.
    The Department acknowledges these data and recognizes that there 
would be costs associated with monitoring and administering a contract 
to deliver TAA Program services. There also would be a reduction in 
costs due to the diminished need for management and oversight of State 
employees. The Department does not have a way to reliably estimate the 
difference between the new administrative costs and the administrative 
cost savings, but addressed commenters' concerns to the extent possible 
by adjusting the overhead rate to a consistent benchmark for all 
public- and private-sector employees, as described above. Additionally, 
the Department remains committed to maintaining the high quality of 
services provided by the TAA Program, and, as described above, 
anticipates that States only will choose to contract with service 
providers when such a service delivery model is the most cost-effective 
in their State. Furthermore, as the commenters mentioned, the 
Department has many tools to monitor States' administration of the TAA 
Program. Regardless of whether and how States choose to use these new 
flexibilities, they must continue to meet statutory and regulatory 
spending requirements.
    One State workforce agency expressed disagreement with proposed 
alternative 1 (no action) and said proposed alternative 3 (more 
stringent, less flexible regulations with clarification provided in 
administrative guidance) would not provide enough flexibility for its 
State. The commenter said that of the three alternatives described, the 
second proposed alternative (reduced number and types of regulatory 
provisions) would most benefit the people of its State. The commenter 
does not provide sufficient context for the Department to determine 
whether the commenter prefers the second proposed alternative over the 
Department's preferred approach or just over the other two proposed 
alternatives. The Department has chosen not to pursue the second 
proposed alternative because, as described below, this regulatory 
alternative has the disadvantage of forcing the regulated community to 
follow statutory language for implementation, which comes with 
increased risk of noncompliance.
4. Subject-by-Subject Analysis
    The Department's analysis below covers the expected costs, cost 
savings, and transfer payments of this final rule.
    The Department emphasizes that many of the provisions in this final 
rule were already requirements in regulation, statute, or 
administrative guidance. This final rule will codify these practices 
under one set of regulations and, therefore, they are not considered 
``new'' burdens resulting from this final rule. Accordingly, the 
regulatory analysis focuses on new costs, cost savings, and transfer 
payments that can be attributed exclusively to this final rule.
Costs
    The following sections describe the costs of this final rule.
Quantifiable Costs
a. Rule Familiarization
    When this final rule takes effect, State staff will need to read 
and interpret the regulations. Through this review, State staff will 
familiarize themselves with the structure of the new regulation. Based 
on previous experience on similar rulemaking efforts, the Department 
anticipates that non-legal (program) staff will review the new 
regulations during the first year to identify any new provisions 
relevant to their operations. The Department also anticipates that 
legal staff will review the new regulations during the second year, as 
denials and other legal issues need to be resolved. As a result, 
reviewing the new regulation will impose an initial one-time cost in 
each of the first 2 years.
    To estimate the first year cost of rule familiarization, the 
Department multiplied the number of States (52) by the estimated number 
of non-legal staff that will conduct the activity (2 State employment 
counselors). The Department then multiplied this product by the amount 
of time required to review the rule (2 hours) and by the hourly 
compensation rate ($44.20 per hour). This calculation results in a one-
time undiscounted cost of $9,194 in the first year of this final rule.
    In the second year, the Department estimates that two-thirds of the 
States will have legal staff review the rule. Therefore, to calculate 
the one-time cost of rule familiarization in the second year, the 
Department multiplied the number of States (52) by two-thirds (\2/3\ or 
0.67) and by the estimated number of legal staff conducting the 
activity (two State attorneys). The Department then multiplied this 
product by the amount of time required to review the rule (2 hours), 
and by the hourly compensation rate ($80.06 per hour). This calculation 
results in a one-time undiscounted cost of $11,208 in the second year 
of this final rule.
    The sum of these first- and second-year one-time costs yields a 
total average annual undiscounted cost of $2,040. The total costs over 
the 10-year period are estimated at $20,402 undiscounted, or $19,491 
and $18,382 at 3- and 7-percent discount rates, respectively. The 
annualized cost over the 10-year period is $2,285 and $2,617 at 3- and 
7-percent discount rates, respectively.
b. Development of IEPs for Trade-Affected Workers Seeking Training or 
Job Search Allowances
    Under Sec.  618.350(a), States must make available an IEP to all 
trade-affected workers and establish an IEP for trade-affected workers 
who apply for training under subpart F, or AAWs who apply for a job 
search allowance under subpart D, prior to the worker receiving those 
benefits and services. An IEP is an individualized career service under 
WIOA section 134(c)(2)(A)(xii)(II) and is developed jointly by the WIOA 
program participant and career planner when determined appropriate by 
the one-stop center or one-stop partner. The IEP is an ongoing strategy 
to identify employment goals, achievement objectives, and an 
appropriate combination of services for workers to achieve their 
employment goals. To ensure efficient use of time and resources, this 
final rule provides that, if an IEP has been developed under

[[Page 51965]]

WIOA, or other partner program, it will be reviewed once the worker 
becomes a trade-affected worker to ensure it has certain components 
required by the TAA Program, as listed in Sec.  618.350(c). If the IEP 
does not contain all required components, the IEP must be supplemented 
by the State in conjunction with the trade-affected worker to ensure it 
is fully compliant with the TAA Program requirements.
    Based on program data, the Department estimates that, each year, 
States will need to develop or supplement IEPs for 24 trade-affected 
workers \29\ that apply for training and job search allowances and do 
not yet have an IEP or whose IEP does not contain all of the required 
components.
---------------------------------------------------------------------------

    \29\ The Department derived this number by calculating the 
average of the annual number of workers who received training, job 
search, or relocation allowances (i.e., program exiters) in FY 2013 
through FY 2019.
---------------------------------------------------------------------------

    To estimate the costs associated with developing or supplementing 
IEPs, as a result of requiring IEPs for training and job search 
allowance applicants, the Department multiplied the estimated number of 
affected trade-affected workers (24) by the cost per IEP ($22.10).\30\ 
This calculation results in an annual undiscounted cost of $530. The 
total cost over the 10-year period is estimated at $5,300 undiscounted, 
or $4,521 and $3,722 at 3- and 7-percent discount rates, respectively. 
The annualized cost over the 10-year period is $530 at both 3- and 7-
percent discount rates.
---------------------------------------------------------------------------

    \30\ The cost per IEP is estimated by multiplying the hourly 
compensation rate of a State employment counselor ($44.20 per hour) 
by the time spent developing the IEP (0.50 hours), resulting in a 
cost estimate of $22.10.
---------------------------------------------------------------------------

c. Other Quantifiable Costs
    Other quantifiable costs of this final rule stem from the 
implementation of two IC forms: (1) ETA Form 8561, Study of Domestic 
Industry; and (2) ETA Form 9185, Application for Reconsideration.
    The Department is reactivating ETA Form 8561 A/B/C, Standard 
Questionnaire for Manufacturing Firms, by revising it as ETA Form 8561, 
Study of Domestic Industry. The Department will use ETA Form 8561 to 
collect information from firms within an industry subject to an 
investigation by the ITC under section 202 of the Act. The Department 
then will use the information collected to produce a report for the 
President, as required under section 224 of the Act. The report will 
contain information on the number of workers in the domestic industry 
producing the like, or directly competitive, article who have been, or 
are likely to be, certified as eligible for adjustment assistance, and 
the extent to which the adjustment of such workers to the import 
competition may be facilitated using available programs. The Department 
anticipates conducting one industry study per year, and that each firm 
will submit one response. To estimate the costs associated with the 
implementaion of ETA Form 8561, the Department multiplied the number of 
firms that will participate in each industry study (12) by the amount 
of time required to complete the form (1 hour) and by the hourly 
compensation rate ($96.58 per hour). This calculation results in an 
annual undiscounted cost of $1,159.
    The Department also is implementing a new form: ETA Form 9185, 
Application for Reconsideration. ETA Form 9185 standardizes the 
information required by regulations for an aggrieved party to seek 
administrative reconsideration of a termination of investigation, 
termination or partial termination of a certification, or a negative 
determination of a petition. To estimate the costs associated with this 
form, the Department multiplied the estimated number of applications 
that will be submitted each year (25) by the amount of time required to 
complete the application (1 hour) and by the hourly compensation rate 
($51.60 per hour). This calculation results in an annual undiscounted 
cost of $1,290.
    The sum of these costs yields a total annual undiscounted cost of 
$2,449. The total cost over the 10-year period is estimated at $24,490 
undiscounted, or $20,890 and $17,200 at 3- and 7-percent discount 
rates, respectively. The annualized cost over the 10-year period is 
$2,449 at both 3- and 7-percent discount rates.
Nonquantifiable Costs
a. Criteria for Certification of Worker Groups
    This final rule provision at Sec.  618.225 substantially updates 29 
CFR 90.16(b) to describe the criteria the Department uses to certify 
worker groups, which have expanded significantly under section 222 of 
the Act. It also identifies factors under consideration in determining 
whether a criterion has been met. The revised language provides 
transparency on how investigations are conducted, the importance of 
information collected, and how the information is used. The new 
provisions reflect the requirements of the Act, Departmental practices, 
and, in some instances, thresholds for select criteria. The provision 
also includes teleworkers and staffed workers because they are 
frequently performing the same work as other trade-affected workers in 
the subject firm or subdivision and are under the subject firm's 
control.
    As a result of this change, the Department will need to spend de 
minimis time to update forms. The Department has no data to determine 
if the number of applications that will be submitted would change and, 
therefore, cannot quantify any potential cost related to a change in 
the number of applications due to this change.
Cost Savings
    The following sections describe the cost savings of this final 
rule.
Quantifiable Cost Savings
a. Reconsideration
    Currently, the process for reconsiderations (29 CFR 90.18) has two 
steps. Applicants request a reconsideration, and the Department either 
accepts or denies the request. Acceptance or denial results in a 
posting to the Federal Register and a notification to the applicant. If 
accepted, the reconsideration process begins, and a decision is 
reached. If denied, the petitioner likely will appeal to the USCIT.
    This final rule will eliminate the step requiring the Certifying 
Officer to make and issue a determination on whether or not a 
reconsideration will be initiated (29 CFR 90.18(c)). The Department has 
concluded that eliminating this step would decrease time and burden, 
and simplify the process.
    Under the new process in Sec.  618.245, the Department will 
initiate an investigation on all valid reconsideration applications, 
conduct the required review, and post the results via the Federal 
Register and the Department's website. Although this new process will 
not eliminate reconsiderations, the Department estimates that it will 
reduce the processing time involved for all reconsiderations by 
approximately 33 percent, as there will be no initial review of the 
request or related notification. Thus, under the new process, the cost 
per reconsideration will be 67 percent of the cost under the current 
process. The Department estimates that the cost per reconsideration 
under the current process is $2,022.\31\ Under the new

[[Page 51966]]

process, the Department estimates that the cost per reconsideration 
will be $1,355 (0.67 x $2,022 per reconsideration). Under the current 
and revised processes, approximately 25 reconsiderations are filed per 
year, and the Department concludes that will not change. To estimate 
the cost savings associated with this change, the Department subtracted 
the cost per reconsideration under the new process ($1,355) from the 
cost per reconsideration under the current process ($2,022) and then 
multiplied by the number of reconsiderations filed per year (25). This 
yields an average annual undiscounted cost savings of $16,675. The 
total cost savings from the new reconsideration process over the 10-
year period is estimated at $166,750 undiscounted, or $142,241 and 
$117,118 at 3- and 7-percent discount rates, respectively. The 
annualized cost savings over the 10-year period is $16,675 at both 3- 
and 7-percent discount rates.
---------------------------------------------------------------------------

    \31\ The Department estimates the cost to process a 
reconsideration based on the cost to process a full petition due to 
data availability. The Department estimates that the cost to process 
a reconsideration under the current process is 86 percent of the 
cost to process a full petition. This estimate is based on an 
average of 60 days to process a reconsideration compared to a median 
of 70 days to process a full petition (60/70=86 percent).
    The Department estimates an investigator spends 100 percent of 
his or her time, or 2,080 hours, processing petitions. The 
investigator processes 85 petitions per year. Therefore, the cost 
per petition for an investigator to process is estimated by 
multiplying the hourly compensation rate ($68.02 per hour) by the 
hours the investigator works per year (2,080 hours) and dividing by 
the number of petitions processed per year (85 petitions per year). 
This results in a cost per petition for an investigator of $1,664. 
The Department estimates a Certifying Officer manager spends 75 
percent of his or her time (1,560 hours) and a nonmanager Certifying 
officer spends 100 percent of his or her time (2,080 hours) 
processing petitions. Certifying Officers process an estimated 317 
full petitions per year. Based on these data, a manager Certifying 
Officer spends 5 hours per petition (1,560/317) and a nonmanager 
Certifying Officer spends 7 hours per petition (2,080/317). The 
Department uses an average of nonmanager and manager hours per 
petition to estimate the average Certifying Officer's time to 
process a petition (6 hours). To estimate the cost per petition for 
a Certifying Officer, the Department multiplied the hourly 
compensation rate ($114.55 per hour) by the number of hours spent 
processing a full petition (6 hours). This results in a cost per 
petition for a Certifying Officer of $687.
    The Department, therefore, estimates the full cost of processing 
a full petition as the sum of the cost for an investigator to 
process a petition and the cost for a Certifying Officer to process 
a petition. Summing these costs results in an estimated cost of 
$2,351 to process a petition. The cost per reconsideration is, 
therefore, estimated as $2,022 based on the cost per reconsideration 
being 86 percent of the cost of processing a full petition.
---------------------------------------------------------------------------

b. Judicial Appeals
    Under previous regulations, all determinations the Department 
rendered are final determinations subject to judicial review. As a 
result, nearly any determination the Department rendered can be 
appealed to the USCIT (29 CFR 90.19).
    In this final rule, the Department will define only determinations 
on reconsideration issued under Sec.  618.245(g) as final 
determinations and, therefore, only these determinations are subject to 
judicial review through the USCIT. This will reduce the time and effort 
spent by Department employees, petitioners, and the USCIT on appeals 
that have not yet been subject to the reconsideration process. These 
appeals require legal counsel for the Department and for the appellant, 
and associated fees are involved with the proceedings. By revising the 
definition of ``final determinations'' and through the revisions to the 
reconsideration process, the Department concludes that the number of 
judicial appeals will be reduced to two per year.
    The Department estimates the cost savings from reducing the number 
of judicial appeals by subtracting the estimated number of judicial 
appeals under this final rule (two per year) from the current number of 
judicial appeals per year (five per year) and multiplying by the cost 
per appeal ($19,547).\32\ This yields average annual undiscounted cost 
savings of $58,641. The total cost savings from the reduction in 
judicial appeals over the 10-year period is estimated at $586,410 
undiscounted, or $500,220 and $411,870 at 3- and 7-percent discount 
rates, respectively. The annualized cost savings over the 10-year 
period is $58,641 at both 3- and 7-percent discount rates.
---------------------------------------------------------------------------

    \32\ The cost per appeal is estimated from the cost to the 
appellant, the Department, and the USCIT to process an appeal. Based 
on USCIT court fees (https://www.cit.uscourts.gov/sites/cit/files/Schedule%20of%20Fees.pdf), the appellant must pay fees for attorney 
admission ($81), a filing fee ($400), and a charge for each type of 
fee ($304) for a total of $785 in fees to appeal. The appellant also 
must have a private sector attorney prepare for the appeal and 
appear in court. The Department estimates this cost by multiplying 
the hourly compensation rate ($118.72 per hour) by the sum of time 
the private sector attorney must spend to prepare (40 hours) and the 
time spent in court (12 hours). These estimates include time spent 
responding to filings and other actions outside of court 
proceedings. The result is a cost per appeal for the appellant of 
$6,958.
    The Department has a cost per appeal for a DOL and DOJ attorney 
to prepare and attend court, and a remand cost. The Department 
estimates the remand cost by multiplying the current cost per 
reconsideration ($2,022) by 1.5, resulting in a remand cost of 
$3,033. To estimate the cost of a DOL and DOJ attorney, the 
Department multiplied the hourly compensation rate ($121.28 per 
hour) by the sum of time the DOL and DOJ attorney must spend to 
prepare (40 hours) and the time spent in court (12 hours). The 
result is a cost of $6,306 for a DOL and DOJ attorney. The sum of 
the remand cost ($3,033) and the cost for a DOL and DOJ attorney 
($6,306) yields a cost per appeal for the Department of $9,339.
    The cost to the USCIT is the court time for a district court 
judge and district court clerk. The Department estimates the cost of 
court time for a judge by multiplying the hourly compensation rate 
($182.50 per hour) by the time spent in court and the time spent 
reviewing the filings related to the appeal (12 hours), resulting in 
a cost estimate of $2,190. The Department estimates the cost of 
court time for a clerk by multiplying the hourly compensation rate 
($88.31 per hour) by the time spent in court (12 hours), resulting 
in a cost estimate of $1,060. The cost to the USCIT for an appeal is 
therefore estimated as $3,250.
    The cost per appeal is therefore estimated as the sum of the 
cost to the appellant ($6,958), the cost to the Department ($9,339), 
and the cost to the USCIT ($3,250). This cost is $19,547.
---------------------------------------------------------------------------

    Relative to the baseline (i.e., current practice under the TAA 
Program), the two issues described above are expected to result in 
average annual undiscounted cost savings of $75,316. The total cost 
savings over the 10-year period is estimated at $753,160 undiscounted, 
or $642,461 and $528,988 at 3- and 7-percent discount rates, 
respectively. The annualized cost savings over the 10-year period is 
estimated at $75,316 at both 3- and 7-percent discount rates.
Transfer Payments
    The following sections describe the transfer payments of this final 
rule.
Quantifiable Transfer Payments
a. Merit Versus Non-Merit Staff
    Currently, States must engage only State merit staff to perform 
TAA-funded functions undertaken to carry out the State's 
responsibilities under the Act (20 CFR 618.890). Non-merit staff that 
provide employment and case management services to trade-affected 
workers cannot charge their time to TAA Program funds.
    In this final rule, the provision at Sec.  618.890 on staffing 
flexibility amends the previous regulation to clarify that only certain 
activities under the TAA Program need to be performed by personnel 
covered by a system meeting the criteria of the Federal merit personnel 
system regardless of whether they are funded by the TAA Program. This 
results in a transfer payment because non-merit staff will be 
performing the same work at a lower wage than the currently used merit 
staff. As a result, providing employment and case management services 
by non-merit staff will result in transfer payments from employees to 
the States because there are no labor-hours freed and only a decline in 
wages.
    The Department estimates that half the States, and therefore half 
the participants in the TAA Program, will take advantage of the 
flexibility provided by this final rule.
    The Department estimates that the cost of providing employment and 
case management services by State merit staff is $8,382,397 
annually.\33\ The

[[Page 51967]]

Department estimates the cost of providing employment and case 
management services by non-merit staff is $6,584,544 annually, due to 
the lower hourly wage for the typical non-merit staff employee.\34\ The 
Department, therefore, estimates transfer payments associated with 
removing the restriction to allow States to charge time for non-merit 
staff to TAA Program funds by subtracting the cost of non-merit staff 
($6,584,544) from the cost of State merit staff ($8,382,397) and 
multiplying by 0.5 to account for the Department's estimate that half 
the States will use the flexibility provided by this final rule. This 
yields average annual undiscounted transfer payments of $898,927. The 
total transfer payments from removing the restriction to allow States 
to charge time for non-merit staff to TAA Program funds over the 10-
year period is estimated at $8,989,265 undiscounted, or $7,668,025 and 
$6,313,684 at 3- and 7-percent discount rates, respectively. The 
annualized cost savings over the 10-year period is $898,927 at both 3- 
and 7-percent discount rates.
---------------------------------------------------------------------------

    \33\ To estimate the cost of State merit staff providing 
employment and case management services, the Department first 
estimated the amount of time spent providing the services. Of the 
16,026 total exiters, on average, in FYs 2017-2019, 9,331 received 
training and 6,706 received only case management services. The 
average duration of training is 421 days, and the average duration 
of case management services is 263 days. Staff have a minimum 
contact requirement of 30 days, and contact is estimated to take 1 
hour. Therefore, the Department estimated the time spent by staff 
providing training services to an exiter by dividing the average 
duration of training (421 days) by the minimum contact requirement 
(30 days) and multiplying by the time of contact (1 hour), resulting 
in an estimate of 14 hours. The Department, therefore, estimates the 
hours required for training services to all exiters that received 
training by multiplying the number of exiters receiving training 
(9,331) by the time spent by staff providing them services (14 
hours), resulting in an estimate of 130,634 hours. The Department 
estimated the time spent by staff providing case management services 
only to an exiter by dividing the average duration of case 
management (263 days) by the minimum contact requirement (30 days) 
and multiplying by the time of contact (1 hour), resulting in an 
estimate of 8.8 hours per exiter receiving case management services. 
The Department, therefore, estimates the hours required for case 
management services to all exiters that received case management 
services only by multiplying the number of exiters receiving only 
case management services (6,706) by the time spent by staff 
providing them services (8.8 hours), resulting in an estimate of 
59,013 hours.
    To estimate the cost of State merit staff providing employment 
and case management services, the Department summed the time 
required to provide training services (130,634 hours) and the time 
required to provide case management services only (59,013 hours), 
which results in a total of 189,647 hours. The Department then 
multiplied the total hours by the hourly compensation rate of a 
State employment counselor ($44.20 per hour) resulting in a cost 
estimate of $8,382,397.
    \34\ To estimate the cost of non-merit staff in providing 
employment and case management services, the Department summed the 
time required to provide training services (130,634 hours) and the 
time required to provide case management services only (59,013 
hours), which results in a total of 189,647 hours. The Department 
then multiplied the total hours by the hourly compensation rate of a 
private sector employment counselor ($34.72 per hour), resulting in 
a cost estimate of $6,584,544.
---------------------------------------------------------------------------

Nonquantifiable Transfer Payments
a. Change in the Definition of ``Group''
    Under Sec.  618.110 (definition of ``group of workers'') in this 
final rule, the Department updates the definition of ``group'' to mean 
at least two workers employed or formerly employed by the same firm, or 
an appropriate subdivision. The definition also includes teleworkers 
and staffed workers, because they are frequently performing the same 
work as other trade-affected workers in the subject firm or subdivision 
and are under the subject firm's control. Separated workers are 
included in the definition because they, too, may be trade-affected 
workers. Because of a lack of data on the additional number of 
beneficiaries, the Department is unable to quantify the transfer. The 
Department expects the change to be small.
b. Suitable Work Versus Suitable Employment
    In this final rule, the provision at Sec.  618.400 explains the 
scope of the subpart, and is a provision not contained in current 
regulations. The provision at Sec.  618.400 contains one substantive 
departure from current regulations in that it identifies the goal of 
providing job search and relocation allowances to help AAWs secure and, 
if necessary, relocate to ``suitable employment'' as defined in section 
236 of the Act, instead of merely assisting AAWs in finding ``suitable 
work'' as current regulations have provided. In this final rule, the 
language at Sec.  618.405 contains general provisions and revises and 
consolidates current 20 CFR 617.30 and 617.40. The provision at Sec.  
618.405(a) retains the content in 20 CFR 617.30, except that it 
replaces the reference to ``securing a job'' with ``suitable 
employment'' to align with the change to the goal of the subpart.
    This change modifies the eligibility requirement, for both job 
search and relocation allowances, that there be no ``suitable work'' 
available in the local area to the requirement that there be no 
``suitable employment'' available in the local area. ``Suitable 
employment'' is generally work at higher skill levels and wage rates 
than is ``suitable work'' (i.e., a job is less likely to meet the 
higher ``suitable employment'' standard and such jobs will, therefore, 
be less likely to be available). Thus, this change will simplify the 
operation of the TAA Program by using the same standard--suitable 
employment--as the factor for approval of training, job search 
allowances, and relocation allowances. Program performance data show 
that AAWs who relocate have a wage replacement rate exceeding 100 
percent, which means that this change should have little or no impact 
on the number of AAWs and is not quantifiable.
c. Length of Training and Apprenticeships
    In this final rule, the language at Sec.  618.635(c) is new and 
establishes apprenticeship provisions that specifically provide that 
both registered apprenticeships under the NAA, as well as other 
training programs that include a paid work-based learning component and 
required educational or instructional component that results in the 
issuance of a recognized postsecondary credential, are approvable TAA 
Program training activities. These provisions are based on a 
combination of section 236(a)(5)(A)(iii) and (G) of the Act. The 
requirement that an apprenticeship lead to an industry-recognized 
credential differentiates an apprenticeship from regular OJT.
    This final rule will revise TAA Program length of training 
requirements applicable to apprenticeships. In addition, under this 
final rule, TAA Program funds can be used to pay for the educational 
and instructional component of the apprenticeship until completion of 
the apprenticeship, which, in some cases, could be up to 5 years. In 
particular, the TAA Program will provide for reimbursement to the 
employer for the paid-work component of the apprenticeship for up to 
130 weeks. Reimbursement can be up to 50 percent of the employer's 
training costs based on the wage rate of the trade-affected worker.
    The increased flexibility in the use of TAA Program funds may 
result in an increase in apprenticeships; however, the Department is 
unable to quantify this and sought public comment. The Department 
received no comments on this issue. The Department expects that funding 
adjustments will need to be made for trade-affected workers requiring 
additional funding due to participation in a registered apprenticeship. 
In this final rule, the provision would result in transfers of funds 
between States and the Federal Government. The total amount of 
expenditures that may be accrued at the national level, however, will 
not change and is therefore not quantified.

[[Page 51968]]

Other Key Changes With No Economic Impact
    TGAAA and TAAEA introduced statutory program changes, and the TAARA 
2015 amendments restored these improvements. This final rule codifies 
the provisions associated with these improvements, currently 
implemented via administrative guidance, into the TAA Program 
regulations. The Department analyzed these provisions to determine if 
they have any additional cost or result in transfer payments when 
compared to the baseline. Based on this analysis, the Department has 
determined that no costs or transfer payments are associated with the 
program improvement provisions.
    a. A set of provisions requiring services to all trade-affected 
workers, including AAIWs who have not yet separated from adversely 
affected employment but are threatened with separation (subpart A, 
Sec.  618.110; subpart C, Sec.  618.310; and subpart F, Sec.  618.655).
    Under this set of provisions, AAIWs must be provided TAA Program 
services, as appropriate, before the worker's separation from 
employment, ideally allowing these workers to transition to new 
employment without experiencing a gap in employment or by reducing the 
amount of time needed to complete the training program after the 
separation, or both, and reducing the worker's overall period of 
unemployment. Under the current regulations, the Department could not 
begin providing services to serve AAIWs until they are laid off. No 
costs or transfer payments are associated with these provisions, as 
they are codifying current administrative guidance.
    b. Provisions that expand trade-affected worker eligibility to 
include those workers in firms that supply service-sector workers, 
expanding coverage to the largest growing sector of the economy 
(subpart B, Sec.  618.225(a) and (b)).
    No costs or transfer payments are associated with these provisions, 
as they are codifying current administrative guidance.
    c. Provision that makes workers in firms identified in ITC 
``injury'' determinations ``automatically'' certified (subpart B, Sec.  
618.225(c)).
    No costs or transfer payments are associated with this provision, 
as it is codifying current administrative guidance.
    d. Provisions providing funding for individualized case management 
services (subpart C, Sec. Sec.  618.310, 618.330, 618.335, 618.345, 
618.350, and 618.360).
    Employment counseling and reemployment services have been required 
under the TAA Program since implementation of chapter 2 of title II of 
the Act. The current requirements are found at 20 CFR 617.20 and 
617.21. This set of provisions includes the development of an IEP and 
assessments. The language in the previous regulation, however, uses 
outdated terminology and this final rule updates it. Case managers are 
to ensure trade-affected workers receive job placement services, 
develop individual assessment-based employment and training programs, 
and provide career counseling. Under the current regulations, funds for 
individualized case management services are not authorized, requiring 
these services to be made available through partner programs, such as 
Wagner-Peyser or WIOA. No costs or transfer payments are associated 
with these provisions, as they are codifying current administrative 
guidance.
    e. Provisions that eliminate the requirement for AAWs to apply for 
and wait to attain a separate group certification to be eligible for 
the RTAA program (subpart E, Sec. Sec.  618.500 and 618.505).
    AAWs receiving RTAA can work full time or part time and receive 
training, which will allow this population to regain skills to stay 
competitive. RTAA replaces ATAA, a program piloted in the TAA Program 
under TAARA 2002. Neither RTAA nor ATAA are included in current 
regulations. No costs or transfer payments are associated with these 
provisions, as they are codifying current administrative guidance.
    f. Provisions that introduce Completion TRA and require trade-
affected worker training benchmarks to monitor training progress 
regularly and allow for amendments of a training program to help ensure 
successful training outcomes (subpart F, Sec.  618.660; and subpart G, 
Sec.  618.755).
    No costs or transfer payments are associated with these provisions, 
as they are codifying current administrative guidance.
    g. A provision that eliminates training waivers based on recall, 
marketable skills, and retirement (subpart G, Sec.  618.725(b)).
    No costs or transfer payments are associated with this provision, 
as it is codifying current administrative guidance.
    h. A set of provisions that expands the deadline for enrolling in 
training to qualify for TRA, providing trade-affected workers more time 
to consider their training options (subpart G, Sec.  618.720(c)(1), 
(2), and (4)).
    No costs or transfer payments are associated with these provisions, 
as they are codifying current administrative guidance.
    i. A provision that allows States to apply Federal ``good cause'' 
waiver provisions to TAA Program deadlines allowing for trade-affected 
workers to retain benefits due to extenuating circumstances (subpart G, 
Sec.  618.720(c)(5)).
    This provision allows States to apply Federal ``good cause'' waiver 
provisions to TAA Program deadlines allowing for trade-affected workers 
to retain benefits due to extenuating circumstances. No costs or 
transfer payments are associated with this provision, as it is 
codifying current administrative guidance.
    j. Subpart G, Sec.  618.775.
    This provision enables AAWs to elect TRA over UI based on a second 
UI claim in circumstances that result in lower WBAs from part-time or 
short-term work. No costs or transfer payments are associated with this 
provision, as it is codifying current administrative guidance.
Qualitative Benefits Discussion
    The TAA Program includes the RTAA benefit, which may be available 
to AAWs 50 years of age or older. Reauthorization of the program 
restored the major expansions in TAA Program worker group eligibility 
to service sector workers and to workers affected by trade from any 
country, including countries that do not have Free Trade Agreements 
with the United States including China and India.
    A 2012 evaluation of the TAA Program showed that TAA Program 
participants who undertook training recorded better employment outcomes 
than those who received only income support and that TAA Program 
participants almost entirely closed the gap between their wages in the 
previous employment and their wages in the new employment within 4 
years, and, by one measure, had pulled slightly ahead.\35\ The 
evaluation also found that TAA Program participants were engaged in 
some form of productive activity at about the same rate as the 
comparison group.
---------------------------------------------------------------------------

    \35\ Social Policy Associates and Mathematica Policy Research. 
(2012). ``The Evaluation of the Trade Adjustment Assistance Program: 
A Synthesis of Major Findings.'' Retrieved from: https://wdr.doleta.gov/research/FullText_Documents/ETAOP_2013_08.pdf.
---------------------------------------------------------------------------

a. Streamlining and Consolidation of TAA Program Regulations
    As stated above, the regulations governing the TAA Program have not 
been updated since 1994. Since that

[[Page 51969]]

time, multiple amendments have occurred. All TAA Program amendments 
were implemented through administrative guidance. As a result, the 
States must use a combination of regulations and a patchwork of 
administrative guidance to operate the program.
    This final rule provides a legally binding set of rules to guide 
the worker-group certification process at the Federal level and the 
individual benefit and training authorization process at the State 
level, and provides Federal and State courts with the Department's 
authoritative interpretation of TAARA 2015. This final rule also 
updates the TAA Program and consolidates all applicable program 
regulations into a single section of the CFR.
b. Support to American Workers That Have Lost Their Jobs as a Result of 
Foreign Trade
    The objective of the TAA Program is to provide trade-affected 
workers with opportunities to obtain the skills, credentials, 
resources, and support necessary to (re)build skills for future jobs. 
For over 40 years, the TAA Program has assisted U.S. workers who have 
lost or may lose their jobs as a result of foreign trade. Benefits and 
services include: Employment and case management services (e.g., career 
counseling); training; out-of-area job search and relocation 
allowances; income support through TRA; RTAA for AAWs aged 50 and 
older; and, if available, the HCTC.
    Since 1975, the TAA Program has served over 2 million U.S. trade-
affected workers. In FY 2017, an estimated 94,017 trade-affected 
workers became eligible for TAA Program benefits and services. Nearly 
75 percent of trade-affected workers obtained employment within 6 
months of completing the TAA Program, and over 90 percent of those who 
found work retained their jobs 6 months later.
    Trade-affected workers come from a variety of backgrounds and 
industries, and therefore, many enter the program with a wide array of 
skills and experience. Most trade-affected workers who enter the 
program, however, face similar challenges in obtaining reemployment. 
Trade-affected workers have no postsecondary degree typically, an 
average age of 49, and an average of 12 years of experience in a 
specific job that may no longer exist.\36\ The TAA Program is designed 
to serve the needs of this unique population best, which it continues 
to do.
---------------------------------------------------------------------------

    \36\ U.S. Department of Labor, ETA. (2018). ``Trade Adjustment 
Assistance for Workers Program: Fiscal Year 2017.'' Retrieved from: 
https://www.doleta.gov/tradeact/docs/AnnualReport17.pdf.
---------------------------------------------------------------------------

    An ever-changing global marketplace drives the 21st-century 
economy. For America to outcompete other countries, its workers need to 
have the skills and support to take advantage of new opportunities the 
21st-century economy presents. The TAA Program sets out to do that by 
providing the best opportunities for American workers to reenter the 
workforce.
5. Summary of the Analysis
    Exhibit 4 summarizes the estimated total costs, cost savings, and 
transfer payments of this final rule over the 10-year analysis period. 
The annual costs, cost savings, and transfer payments do not reach $100 
million in any given year. Thus, this final rule is not economically 
significant.
    The Department estimates the annualized costs of this final rule at 
$5,596, the annualized cost savings at $75,316, and the annualized 
transfer payments at $898,927, at the 7-percent discount rate.
    The Department estimates the net cost savings of this final rule at 
$597,559 at a discount rate of 3 percent and $489,683 at a discount 
rate of 7 percent.

     Exhibit 4--Estimated Monetized Costs, Cost Savings, Net Cost Savings, and Transfer Payments of the NPRM
                                                 [2019 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                     Net cost        Transfer
                                                       Costs       Cost savings      savings a       payments
----------------------------------------------------------------------------------------------------------------
2020............................................         $12,173         $75,316         $63,143        $898,927
2021............................................          14,187          75,316          61,129         898,927
2022............................................           2,979          75,316          72,337         898,927
2023............................................           2,979          75,316          72,337         898,927
2024............................................           2,979          75,316          72,337         898,927
2025............................................           2,979          75,316          72,337         898,927
2026............................................           2,979          75,316          72,337         898,927
2027............................................           2,979          75,316          72,337         898,927
2028............................................           2,979          75,316          72,337         898,927
2029............................................           2,979          75,316          72,337         898,927
Undiscounted 10-Year Total......................          50,192         753,160         702,968       8,989,265
10-Year Total with 3% Discounting...............          44,902         642,461         597,559       7,668,025
10-Year Total with 7% Discounting...............          39,305         528,988         489,683       6,313,684
10-Year Average.................................           5,019          75,316          70,297         898,927
Annualized with 3% Discounting..................           5,264          75,316          70,052         898,927
Annualized with 7% Discounting..................           5,596          75,316          69,720         898,927
                                                 ---------------------------------------------------------------
Perpetuated Net Cost Savings a with 7%
 Discounting (2016 dollars).....................                              $50,902
----------------------------------------------------------------------------------------------------------------
a Net Cost Savings = [Total Cost Savings] - [Total Costs]; discounted four years to reflect that the changes
  take effect in 2020.

6. Regulatory Alternatives
    OMB Circular A-4, which outlines best practices in regulatory 
analysis, directs agencies to analyze alternatives if such alternatives 
best satisfy the philosophy and principles of E.O. 12866. The 
Department has considered three alternatives as part of determining 
whether to issue this final rule. These alternatives include: (1) To 
take no action; that is, make no regulatory changes; (2) to reduce the 
number and types of provisions in the regulations; and (3) to propose 
more stringent, less flexible regulations and provide clarification in 
administrative guidance. Each alternative is discussed in more detail 
below.

[[Page 51970]]

    The Department considered the ``no action'' alternative, thereby, 
leaving the regulations in three separate parts in the CFR (i.e., 20 
CFR parts 617 and 618, and 29 CFR part 90) and continuing to use 
administrative guidance to operate the TAA Program. This alternative 
has the disadvantage of forcing States to use a combination of outdated 
regulations and a patchwork of administrative guidance to operate the 
program. The TAA Program requirements have changed substantially since 
1994. As a result, the implementation of new regulations is necessary 
to achieve program compliance, integrate the TAA Program with the 
workforce development and education systems, and reduce the 
Department's and States' legal burden concerning petition issues raised 
in court cases and appeals.
    The Department also considered scaling back the number and types of 
provisions in the regulations, except for those areas where there are 
statutory requirements for the Department to promulgate regulations. 
Examples of provisions that could be excluded are: (1) The primary 
indicators of performance; (2) the expansion of State responsibility 
for providing employment and case management services; (3) the 
integration of the TAA Program into the one-stop delivery system under 
WIOA and alignment with the WIOA Final Rule; (4) the increase in the 
maximum limit for job search and relocation allowances; (5) the 
addition of the RTAA, which was established under the 2009 Program 
amendments; (6) the addition of Completion TRA; and (7) the study and 
notifications regarding certain affirmative determinations. This 
regulatory alternative has the disadvantage of forcing the regulated 
community to follow statutory language for implementation. Considering 
many of these provisions are new, the statutory language would not 
provide sufficient detailed guidance to implement the provisions 
effectively, thereby, increasing the risk of noncompliance.
    Finally, the Department considered proposing more stringent, less 
flexible regulations and relying on administrative guidance to provide 
clarification. Examples of provisions where the Department could be 
more prescriptive are: (1) Worker group eligibility requirements (2) 
employment and case management services; (3) training (e.g., approval, 
cost, and type); (4) job search and relocation allowances; (5) 
Completion TRA and training benchmarks; and (6) RTAA. This alternative 
has the disadvantage of not providing enough flexibility to mold the 
TAA Program to the evolving needs of displaced workers and the changing 
economic landscape. Not only could this negatively impact trade-
affected workers, it could cost States and the Department more through 
decreases in efficiency from having to adhere to more restrictive and 
complex regulations. This would ultimately lead to workers being 
underserved due to the time and budgetary burdens that more stringent 
regulations would impose. Also, administrative guidance is not legally 
binding, and, therefore, not as an effective tool as flexible 
regulations.
    The Department considered the three options above in accordance 
with the provisions of E.O. 12866 and chose to publish this final rule 
to increase flexibility to States and trade-affected workers, improve 
outcomes, clarify overly technical or confusing language, update 
references and procedures, and codify elements from administrative 
guidance.
    As discussed in Section IV.B.3 above, the Department received one 
comment on the regulatory alternatives. This comment is addressed in 
that section with the other discussions of public comments.

C. Regulatory Flexibility Act, Small Business Regulatory Enforcement 
Fairness Act of 1996, and Executive Order 13272 (Proper Consideration 
of Small Entities in Agency Rulemaking)

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (Mar. 29, 1996), requires Federal agencies 
engaged in rulemaking to consider the impact of their proposals on 
small entities, consider alternatives to minimize that impact, and 
solicit public comment on their analyses. The RFA requires the 
assessment of the impact of a regulation on a wide range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions. Agencies must perform a review to 
determine whether a proposed or final rule would have a significant 
economic impact on a substantial number of small entities. 5 U.S.C. 603 
and 604.
    Because the entities impacted by this final rule are the States, 
which do not qualify as small entities, the Department has determined 
that this final rule does not impact small entities. Based on this 
determination, the Department certifies that this final rule does not 
have a significant economic impact on a substantial number of small 
entities.

D. Paperwork Reduction Act (PRA)

    The purposes of the PRA, 44 U.S.C. 3501 et seq., include minimizing 
the paperwork burden on affected entities. The PRA requires certain 
actions before an agency can adopt or revise a collection of 
information, including publishing for public comment a summary of the 
collection of information and a brief description of the need for and 
proposed use of the information.
    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department conducts a preclearance consultation program to 
provide the general public and Federal agencies with an opportunity to 
comment on proposed and continuing collections of information in 
accordance with the PRA. See 44 U.S.C. 3506(c)(2)(A). This activity 
helps to ensure that the public understands the Department's collection 
instructions, respondents can provide the requested data in the desired 
format, reporting burden (time and financial resources) is minimized, 
collection instruments are clearly understood, and the Department can 
properly assess the impact of collection requirements on respondents.
    In accordance with the requirements of PRA the proposed regulation 
solicited comments on the ICs included therein.
    A Federal agency may not conduct or sponsor a collection of 
information unless it is approved by OMB under the PRA and displays a 
currently valid OMB control number. The public also is not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number. In addition, notwithstanding any other 
provisions of law, no person will be subject to penalty for failing to 
comply with a collection of information if the collection of 
information does not display a currently valid OMB control number (44 
U.S.C. 3512(a)(1)).
    The following ICs are part of the States' administration of the TAA 
Program. They have been previously reviewed and approved. They have not 
been impacted by this rule:

OMB Control Number 1205-0275--Trade Adjustment Assistance Program 
Reserve Funding Request
OMB Control Number 1205-0222--Unemployment Insurance Materials 
Transmittal
OMB Control Number 1205-0521--DOL-Only Performance Accountability, 
Information, and Reporting System
OMB Control Number 1205-0461--Employment and Training Administration 
Financial Report Form ETA-9130


[[Page 51971]]


    The Department has determined that there is a new IC contained in 
this rule. This collection is related to an aggrieved party seeking 
administrative reconsideration of a negative determination under 
section 222 of the Act, and the domestic industry study required by 
section 202 of the Act.
    In accordance with the requirements of PRA the proposed regulation 
solicited comments on this new IC. The Federal Register Notice 
announcing the proposed rule announced a 60-day comment period for this 
new IC. The IC comment period closed on January 6, 2020. The Department 
received two timely comments but they did not address the IC. The 
comments received on the proposed IC may be viewed at https://www.regulations.gov by entering docket number ETA-2019-0009.

Petition Requirements; Investigations; Domestic Industry Study; 
Application for Reconsideration

    Agency: DOL-ETA.
    Title of Collection: Petition Requirements; Investigations; 
Domestic Industry Study; Application for Reconsideration.
    Type of Review: New.
    OMB Control Number: 1205-0NEW.
    Description: The information contained in this collection is 
submitted by various parties, including individuals, company officials, 
unions, and State agencies. This information is collected in paper, by 
fax, via online forms, and by email. The information provided by these 
groups is used as part of an investigation by the Department to 
determine whether or not a group of workers has been adversely affected 
by foreign trade under the conditions and criteria established in 
section 222 of the Act. The Department is taking this opportunity to 
make changes to the forms in OMB Control Number 1205-0342 used in the 
petition and investigation process. These changes are designed to 
reduce burden, provide better instructions, and simplify the forms for 
use by the public. Form ETA-9185 is a new form used by aggrieved 
parties to seek administrative reconsideration of a negative 
determination. As part of this collection, the Department is 
reactivating Form ETA-8561 A/B/C, Standard, by renaming as Form ETA-
8561, Study of Domestic Industry, and revising the content of the form. 
This was previously approved under OMB Control Number 1205-0194, and 
was in use until 1990 when it was discontinued. Form ETA-8561 is 
submitted by a firm within an industry subject to an investigation by 
the ITC under section 202 of the Act. This collection will eventually 
be included in OMB Control Number 1205-0342; specifically, once all of 
the outstanding actions are complete, the Department intends to submit 
a nonmaterial change request to merge the collections so that the new 
requirements will be added to OMB Control Number 1205-0342. Once the 
nonmaterial change request has been approved by OMB, the new collection 
will be discontinued.
    Affected Public: State, Local, and Tribal Governments.
    Obligation to Respond: Required to Obtain or Retain Benefits.
    Estimated Total Annual Respondents: 5,317.
    Estimated Total Annual Responses: 5,497.
    Estimated Total Annual Burden Hours: 12,977.
    Estimated Total Annual Other Burden Costs: $1,266,937.93.
    Regulations Sections: 20 CFR 618.205, 618.210, 618.215, 618.220, 
618.225, 618.230, 618.235, 618.240, 618.245, 618.250, 618.260.
    Interested parties may obtain a copy free of charge of one or more 
of the ICRs submitted to OMB on the reginfo.gov website at http://www.reginfo.gov/public/do/PRAMain. From this web page select Department 
of Labor from the ``Currently under Review'' dropdown menu and look up 
the collection. You also may request a free copy of the IC by 
contacting the person named in the ADDRESSES section of this preamble.

E. Executive Order 13132 (Federalism)

    E.O. 13132 requires Federal agencies to ensure that the principles 
of federalism established by the Framers of our Constitution guide the 
executive departments and agencies in the formulation and 
implementation of policies and to further the policies of the Unfunded 
Mandates Reform Act (UMRA). Further, agencies must strictly adhere to 
constitutional principles. Agencies must closely examine the 
constitutional and statutory authority supporting any action that would 
limit the policy-making discretion of the States and they must 
carefully assess the necessity for any such action. To the extent 
practicable, State and local officials must be consulted before any 
such action is implemented. Section 3(b) of the E.O. further provides 
that Federal agencies must implement regulations that have a 
substantial direct effect only if statutory authority permits the 
regulation and it is of national significance.
    The Department has reviewed this final rule revising the operation 
of a Federal benefit program in accordance with E.O. 13132 and found 
that this rulemaking has no federalism implications. The TAA Program is 
a nationwide program funded with Federal funds in which the States 
voluntarily participate. Thus, this final rule will not have 
substantial direct effects on the States, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government, within the 
meaning of the Executive Order.

F. Unfunded Mandates Reform Act of 1995

    UMRA (Pub. L. 104-4, codified at 2 U.S.C. 1501 et seq.) requires 
agencies to assess the effects of Federal regulatory actions on State, 
local, and tribal governments and on private industry, except to the 
extent the regulations incorporate requirements specifically set forth 
in law. Title II of the UMRA directs agencies to prepare a written 
statement assessing the effects of any Federal mandate in a proposed or 
final agency rule that may result in $100 million or more expenditure 
(adjusted annually for inflation) in any 1 year by State, local, and 
tribal governments, in the aggregate, or by the private sector. A 
Federal mandate is any provision in a regulation that imposes an 
enforceable duty upon State, local, or tribal governments, or imposes a 
duty on the private sector that is not voluntary.
    As explained in Section V.B above, this final rule does not include 
any Federal mandate that could result in increased expenditure by 
State, local, and tribal governments in the aggregate of more than $100 
million, or increased expenditures by the private sector of more than 
$100 million. State governments administer the TAA Program as agents of 
the United States and are provided appropriated Federal funds for all 
TAA Program expenses.

G. Executive Order 13175 (Indian Tribal Governments)

    E.O. 13175 addresses the unique relationship between the Federal 
Government and Indian tribal governments. It requires Federal agencies 
to take certain actions when regulations have tribal implications. 
Required actions include consulting with tribal governments prior to 
promulgating a regulation with tribal implications and preparing a 
tribal impact statement. E.O. 13175 defines regulations as having 
``tribal implications'' when they have substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of

[[Page 51972]]

power and responsibilities between the Federal Government and Indian 
tribes. Because this final rule addresses the worker-certification 
process at the Federal level, the individual benefit and training 
authorization process at the State level, State administration of the 
TAA Program, and the Department's distribution of TAA Program funds to 
the States, the Department concludes that it does not have tribal 
implications.

List of Subjects

20 CFR Part 617

    Administrative practice and procedure, Employment, Fraud, Grant 
programs--Labor, Manpower training programs, Relocation assistance, 
Reporting and recordkeeping requirements.

20 CFR Part 618

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

29 CFR Part 90

    Administrative practice and procedure, Grant programs--labor, 
Reporting and recordkeeping requirements, Trade adjustment assistance.

    Under the authority of 19 U.S.C. 2320(a) and for the reasons 
discussed in the preamble, the Department of Labor amends 20 CFR parts 
617 and 618 and 29 CFR part 90 as follows:

PART 617--TRADE ADJUSTMENT ASSISTANCE FOR WORKERS UNDER THE TRADE 
ACT OF 1974

0
1. Revise the authority citation for 20 CFR part 617 to read as 
follows:

    Authority:  19 U.S.C. 2320; Secretary's Order No. 6-2010, 75 FR 
66267 (Oct. 27, 2010).

Appendices A, B, and C to Part 617--[Transferred to Part 618 and 
Redesignated]

0
2. Transfer appendices A, B, and C to part 617 to part 618 and 
redesignate the appendices as appendices A, B, and C to part 618.

PART 617--[REMOVED AND RESERVED]

0
3. Remove and reserve part 617.


0
4. Revise part 618 to read as follows:

PART 618--TRADE ADJUSTMENT ASSISTANCE UNDER THE TRADE ACT OF 1974, 
AS AMENDED

Subpart A--General
Sec.
618.100 Purpose and scope.
618.110 Definitions.
618.120 Severability.
Subpart B--Petitions, Investigations, and Determinations
618.200 Scope.
618.205 Petitions.
618.210 Investigation.
618.215 Public hearings.
618.220 Use of subpoena.
618.225 Criteria for certification of a group of workers.
618.230 Evidence.
618.235 Determinations.
618.240 Termination of certification.
618.245 Reconsideration of termination of an investigation, denial, 
or termination or partial termination of certification.
618.250 Amendments of certifications.
618.255 Judicial review of determinations.
618.260 Study regarding certain affirmative determinations by the 
Commission.
618.265 Availability of information to the public.
Subpart C--Employment and Case Management Services
618.300 Scope.
618.305 The Trade Adjustment Assistance Program as a one-stop 
partner.
618.310 Responsibilities for the delivery of employment and case 
management services.
618.325 Integrated service strategies and Workforce Innovation and 
Opportunity Act co-enrollment.
618.330 Assessment of trade-affected workers.
618.335 Initial assessment of trade-affected workers.
618.345 Comprehensive and specialized assessment of trade-affected 
workers.
618.350 Individual employment plans for trade-affected workers.
618.355 Knowledge, skills, and abilities of staff performing 
assessments.
618.360 Employment and case management services for trade-affected 
workers in training.
Subpart D--Job Search and Relocation Allowances
618.400 Scope.
618.405 General.
618.410 Applying for a job search allowance.
618.415 Eligibility for a job search allowance.
618.420 Findings required for a job search allowance.
618.425 Amount of a job search allowance.
618.430 Determination and payment of a job search allowance.
618.435 Job search program participation.
618.440 Applying for a relocation allowance.
618.445 Eligibility for a relocation allowance.
618.450 Findings required for a relocation allowance.
618.455 Determining the amount of a relocation allowance.
618.460 Determinations and payment of a relocation allowance.
Subpart E--Reemployment Trade Adjustment Assistance
618.500 Scope.
618.505 Individual eligibility.
618.510 Eligibility period for payments of Reemployment Trade 
Adjustment Assistance and application deadline.
618.515 Continuing eligibility and timing of payments.
618.520 Benefits available to eligible adversely affected workers.
618.525 Determinations, redeterminations, and appeals.
618.530 Reductions of Reemployment Trade Adjustment Assistance 
payments; priority of payments.
Subpart F--Training Services
618.600 Scope.
618.605 General procedures.
618.610 Criteria for approval of training.
618.615 Limitations on training approval.
618.620 Selection of training program.
618.625 Payment restrictions for training programs.
618.630 Training of reemployed trade-affected workers.
618.635 Work-based training.
618.640 Supplemental assistance.
618.645 Voluntary withdrawal from a training program.
618.650 State standards and procedures for establishing reasonable 
cost of training.
618.655 Training for adversely affected incumbent workers.
618.660 Training benchmarks.
618.665 Amending approved training.
Subpart G--Trade Readjustment Allowances
618.700 Scope.
618.705 Definitions.
618.710 Categories of Trade Readjustment Allowances.
618.715 Applications for Trade Readjustment Allowances and payment.
618.720 Qualifying requirements for Basic Trade Readjustment 
Allowances.
618.725 Training enrollment deadlines.
618.730 Good cause.
618.735 Waiver of training requirement for Basic Trade Readjustment 
Allowances.
618.740 Evidence of qualification for Basic, Additional, and 
Completion Trade Readjustment Allowances.
618.745 Weekly amounts of Basic, Additional, and Completion Trade 
Readjustment Allowances.
618.750 Maximum amount of Basic Trade Readjustment Allowances.
618.755 Eligibility period for Basic Trade Readjustment Allowances.
618.760 Qualifying requirements for, and timing and duration of, 
Additional Trade Readjustment Allowances.
618.765 Qualifying requirements for, and timing and duration of, 
Completion Trade Readjustment Allowances.
618.770 Special rule for justifiable cause.
618.775 Payment of Trade Readjustment Allowances during breaks in 
training.
618.780 Disqualifications.

[[Page 51973]]

Subpart H--Administration by Applicable State Agencies
618.800 Scope.
618.804 Agreements with the Secretary of Labor.
618.808 State rulemaking.
618.812 Subpoenas.
618.816 Trade Adjustment Assistance Program benefit information and 
provision of services to workers.
618.820 Determinations of eligibility; notices to individuals.
618.824 Liable State and agent State responsibilities.
618.828 Appeals and hearings.
618.832 Overpayments; penalties for fraud.
618.836 Recovery of debts due the United States or to others by 
Trade Adjustment Assistance offset.
618.840 Uniform interpretation and application of this part.
618.844 Inviolate rights to Trade Adjustment Assistance or 
Reemployment Trade Adjustment Assistance.
618.848 Veterans' priority of service.
618.852 Recordkeeping and disclosure of information requirements.
618.856 Information, reports, and studies.
618.860 General fiscal and administrative requirements and cost 
classification.
618.864 Trade Adjustment Assistance Program performance.
618.868 Unemployment Insurance.
618.872 Travel under the Trade Adjustment Assistance Program.
618.876 Verification of eligibility for program benefits.
618.884 Special rule with respect to military service.
618.888 Equitable tolling.
618.890 Staffing flexibility.
618.894 Nondiscrimination and equal opportunity requirements.
618.898 Applicable State law.
Subpart I--Allocation of Funds to States for Training and Other 
Activities
618.900 Annual cap on funds available for Training and Other 
Activities.
618.910 Initial allocation of funds.
618.920 Reserve fund distributions.
618.930 Second distribution.
618.940 Insufficient funds.
618.950 Recapture and reallocation of Training and Other Activities 
funds.

    Authority:  19 U.S.C. 2320; Secretary's Order No. 6-2010, 75 FR 
66267 (Oct. 27, 2010).

Subpart A-General


Sec.  618.100  Purpose and scope.

    (a) Purpose. The Act establishes a Trade Adjustment Assistance for 
Workers (TAA) Program. The goal of the TAA Program is to help each 
worker participating in the program obtain suitable employment whenever 
possible, and to return to employment as quickly as possible.
    (b) Scope. Global trade impacts thousands of workers each year 
across the United States. The TAA Program provides trade-affected 
workers with opportunities to obtain the skills, credentials, 
resources, and support necessary to become reemployed in a good job. 
The TAA Program's benefits and services include: employment and case 
management services, training, out-of-area job search and relocation 
allowances, income support through Trade Readjustment Allowances (TRA), 
the Reemployment Trade Adjustment Assistance (RTAA) benefit for workers 
aged 50 or older who find qualifying reemployment, and, if available, 
the Health Coverage Tax Credit (HCTC). Together with its workforce 
development partners in the one-stop delivery system authorized under 
the Workforce Innovation and Opportunity Act (WIOA), the TAA Program 
helps retrain, retool, and rebuild the American workforce. This part 
618 applies for all workers determined eligible to apply for TAA except 
for those covered under certain provisions of the Trade Adjustment 
Assistance Reform Act of 2002 and the Trade and Globalization 
Adjustment Assistance Act of 2009, for which administrative guidance 
will continue to apply.
    (c) Effect. The regulations in this part are issued to implement 
the Act.


Sec.  618.110  Definitions.

    The following definitions apply solely in this part.
    Act means chapter 2 of title II of the Trade Act of 1974, Public 
Law 93-618, 88 Stat. 1978 (19 U.S.C. 2271-2323 and 2395), as amended.
    Administrator means the Administrator, Office of Trade Adjustment 
Assistance, Employment and Training Administration, U.S. Department of 
Labor, Washington, DC, who has responsibility for administering the TAA 
Program, or his or her designee.
    Adversely affected employment means employment in a firm or 
appropriate subdivision, if workers of the firm or appropriate 
subdivision are certified as eligible to apply for the TAA Program 
under subpart B of this part.
    Adversely affected worker or AAW (also referred to, in combination 
with an AAIW, as a trade-affected worker) means an individual, 
including an employer, who, because of lack of work in adversely 
affected employment, has been totally or partially separated from such 
employment.
    Adversely affected incumbent worker or AAIW (also referred to, in 
combination with an AAW, as a trade-affected worker) means a worker 
who:
    (1) Is a member of a worker group certified as eligible to apply 
for the TAA Program under subpart B of this part;
    (2) Has not been totally or partially separated from adversely 
affected employment; and
    (3) The Department determines, on an individual basis, is 
threatened with total or partial separation.
    Agent State means a State, other than a liable State, that provides 
benefits or services to a trade-affected worker. A State can be both an 
agent State and a liable State.
    Applicable State law means, for any worker, the State law of the 
State:
    (1) In which such worker is entitled to Unemployment Insurance (UI) 
(whether or not such worker has filed a UI claim) immediately following 
such worker's first separation; or
    (2) If the worker is not so entitled to UI under the State law of 
any State immediately following such first separation, or is entitled 
to UI under the Railroad Unemployment Insurance Act (RRUI), the State 
law of the State in which such first separation occurred.
    Appropriate subdivision means an establishment, facility or 
facilities, an organizational department, a product line, a project 
team, an operational unit, or part or combination thereof. The 
appropriate subdivision is determined on a case-by-case basis and 
includes all workers or a subset of workers working at, or reporting 
to, the location(s) identified in the petition, or subsequently 
identified during the course of the investigation, whose employment is 
dependent upon the production of the specific article or supply of the 
specific service identified in the petition, or identified during the 
course of the investigation.
    Appropriate week means the week in which the AAW's first separation 
occurred.
    Approved training or TAA approved training means a training program 
approved under subpart F of this part (Sec.  618.610).
    Article means a tangible good or an intangible good sold or 
produced by a firm. The good must be the subject of the sale or 
production, and not an object that is produced incidentally to the sale 
or production. An article can be measured in individual production 
units or commercial production units, such as with commodities. Sale of 
an article is the means by which revenue is generated, accumulated, or 
calculated.
    Average weekly hours means the average hours worked by an AAW 
(excluding overtime) in the employment from which the worker has been 
or claims to have been separated in the 52 consecutive calendar weeks 
(excluding weeks during which the worker was sick or on vacation) 
immediately

[[Page 51974]]

preceding the worker's total separation or, for a partially separated 
worker, the week before the appropriate week. The average is obtained 
by dividing:
    (1) Total hours worked (excluding overtime) in the 52 consecutive 
calendar weeks (excluding weeks in such period during which the worker 
was sick or on vacation); by
    (2) The number of weeks in such 52 consecutive calendar weeks 
(excluding weeks in such period during which the worker was sick or on 
vacation).
    Average weekly wage means one-thirteenth of the total wages paid to 
an AAW in the high quarter. For purposes of this computation, the high 
quarter is the quarter in which the worker's total wages were highest 
among the first 4 of the last 5 completed calendar quarters immediately 
preceding the week in which total separation occurred or, in cases 
where partial separation is claimed, the appropriate week.
    Benefit period means, with respect to an AAW:
    (1) The benefit year and any ensuing period, as determined under 
the applicable State law, during which the worker is eligible for 
regular compensation, additional compensation, or extended 
compensation; or
    (2) The equivalent to such a benefit year or ensuing period 
provided for under Federal UI law.
    Certification or affirmative determination or petition 
certification means a determination issued under Sec.  618.235(a), or 
an amendment under Sec.  618.250, of eligibility to apply for the TAA 
Program, with respect to a specified worker group of a firm or 
appropriate subdivision. Excluded from this definition are 
``certifications'' in sections 223(d), 236(a)(5)(H), 239(a)(3), and 
247(19) of the Act, and ``affirmative determinations'' in sections 
222(e) and 224 of the Act.
    Certification date or date of certification means the date on which 
the Certifying Officer signs the certification. This is the date that 
the certification takes effect.
    Certification period means the period of time during which total, 
partial, or threat of separations from adversely affected employment 
within a firm or appropriate subdivision of a firm are covered by a 
certification for worker groups eligible to apply for assistance under 
section 222(a) and (b) of the Act. It also means the period of time 
during which total or partial separations from adversely affected 
employment within a firm are covered by a certification for worker 
groups eligible to apply for assistance under section 222(e) of the 
Act. The certification period begins on the impact date and, unless 
stated otherwise in the certification, ends 2 years after the 
certification date. A certification may expire sooner than 2 years 
after the certification date as a result of a termination under Sec.  
618.240, an amendment under Sec.  618.250, or if a certification is 
based on a determination issued by the International Trade Commission 
(ITC) under section 222(e) of the Act.
    Certifying Officer means an official, including the Administrator 
of the Office of Trade Adjustment Assistance, Employment and Training 
Administration, Department of Labor, who has been delegated 
responsibility to make determinations and issue certifications of 
eligibility to apply for the TAA Program, and to perform such further 
duties as may be required.
    Co-enrollment means enrollment in the TAA Program and at least one 
other program that operates as part of the one-stop delivery system, 
such as the dislocated worker program under title I of WIOA.
    Commission or International Trade Commission or ITC means the U.S. 
International Trade Commission.
    Commuting area means the area in which a trade-affected worker 
would be expected to travel to and from work on a daily basis as 
determined under the applicable State law.
    Completion of training or complete training or completed training 
means that the trade-affected worker has finished all required 
coursework (including required externships or internships), testing, 
and professional licensing exams related to TAA approved training.
    Component part means an input (tangible or intangible article) that 
is directly incorporated into the production of another article, 
although it need not retain its original form or characteristics.
    Confidential business information means trade secrets and 
commercial or financial information received by the Department, or by 
the States on the Department's behalf, during an investigation under 
subpart B of this part, which the Department considers to be privileged 
or confidential as set forth in the Trade Secrets Act (18 U.S.C. 1905), 
5 U.S.C. 552(b)(4), or 29 CFR part 70. It does not include publicly 
available business information, or business information with respect to 
which the firm or customer submitting the information had notice, at 
the time of submitting the information, that the information would be 
released by the Department or the States, or if the firm or customer 
subsequently consents to the release of the information.
    Contributed importantly means a cause that is important but not 
necessarily more important than any other cause.
    Cooperating State agency or CSA means the agency at the State level 
that will act as agent of the Department in receiving applications from 
and providing benefits and services to trade-affected workers in 
coordination with the State agency that administers the UI law, if 
applicable, and such other agency or agencies of the State as the 
Governor of the State may designate to cooperate with such CSA for 
performance accountability reporting and other purposes.
    Customized training means work-based training that is:
    (1) Designed to meet the special requirements of a single employer 
or group of employers;
    (2) Conducted with a commitment by the employer or group of 
employers to employ a trade-affected worker upon successful completion 
of the training; and
    (3) For which the employer pays for a significant portion (but in 
no case less than 50 percent) of the cost of such training.
    Denial or negative determination or petition denial means a 
determination issued under Sec.  618.235(b) that a group of workers is 
not eligible for TAA Program benefits.
    Department of Labor or Department means the U.S. Department of 
Labor.
    Downstream producer means a firm that performs additional, value-
added production processes or services, such as final assembly, 
finishing, testing, packaging, or maintenance or transportation 
services. The value-added production processes or services must be 
performed directly for another firm that has a worker group certified 
to apply for the TAA Program under Sec.  618.225, and the production 
processes or services must be carried out with respect to the article 
or service on which the certification under Sec.  618.225 was based.
    Eligible RTAA recipient means, for HCTC purposes (see definition of 
HCTC), an AAW eligible for RTAA and who is participating in RTAA for a 
month and is receiving an RTAA benefit for that month.
    Eligible TAA recipient means, for HCTC purposes (see definition of 
HCTC), an AAW who receives TRA for any day of the month or who would be 
eligible to receive TRA but for the fact that the worker has not 
exhausted his or her UI entitlement.
    Employer means any individual or type of organization, including 
the Federal Government, a State

[[Page 51975]]

government, a political subdivision, or an instrumentality of one or 
more governmental entities, with one or more individuals performing 
service in employment for it within the United States.
    Employment means any service performed for an employer by an 
officer of a corporation or by an individual for wages.
    Enrolled in training means that a worker's application for training 
is approved by the State under subpart F of this part, and the training 
provider has furnished written notice to the State that the worker has 
been accepted in the approved training program, which is to begin 
within 30 calendar days of the date of such approval.
    Exhaustion of UI means exhaustion of all rights to UI in a benefit 
period by reason of:
    (1) Having received all UI to which a worker was entitled under the 
applicable State law or Federal unemployment compensation law with 
respect to such benefit period; or
    (2) The expiration of such benefit period.
    Family means the following members of an adversely affected 
worker's household whose principal place of abode is with the 
individual in a home the individual maintains or would maintain but for 
unemployment:
    (1) Spouse;
    (2) Domestic partner;
    (3) Children of the adversely affected worker, of the worker's 
spouse, or of the worker's domestic partner, who are unmarried and 
under 21 years of age or who, regardless of age, are physically or 
mentally incapable of self-support. (The term ``children'' shall 
include natural offspring; stepchildren; adopted children; 
grandchildren, legal minor wards or other dependent children who are 
under legal guardianship of the worker, of the worker's spouse, or of 
the domestic partner; and an unborn child(ren) born and moved after the 
worker's effective date of transfer.);
    (4) Dependent parents (including step and legally adoptive parents) 
of the worker, of the worker's spouse, or of the worker's domestic 
partner; and
    (5) Dependent brothers and sisters (including step and legally 
adoptive brothers and sisters) of the worker, of the worker's spouse, 
or of the worker's domestic partner, who are unmarried and under 21 
years of age or who, regardless of age, are physically or mentally 
incapable of self-support.
    Filing date means the date on which the petition and attachments to 
the petition form are determined to be valid by the Department's Office 
of Trade Adjustment Assistance, in accordance with Sec.  618.205.
    Firm means an individual proprietorship, partnership, joint 
venture, association, corporation (including a development 
corporation), business trust, cooperative, trustee in bankruptcy, or 
receiver under decree of any court. A firm, together with any 
predecessor or successor-in-interest, or together with any affiliated 
firm controlled or substantially beneficially owned by substantially 
the same persons may be considered a single firm. Where the term 
``firm'' appears in this part, it means ``firm or appropriate 
subdivision.'' Firm also means an agricultural firm or service sector 
firm or an appropriate subdivision thereof. For purposes of subpart B 
of this part only, firm does not include a public agency or any 
subdivision of a public agency, as defined in 29 U.S.C. 203(x).
    First benefit period means the benefit period established after the 
AAW's first qualifying separation or in which such separation occurs.
    Full-time training means:
    (1) Attendance in training in accordance with the training 
provider's established full-time hours in a day (or credit hours) and 
days in a week; and
    (2) In the last semester of training, if the remaining course(s) to 
complete the training approved under subpart F of this part do not meet 
the training provider's usual definition of full-time, States must 
consider the participation in training as full-time training, if no 
additional training or coursework will be required to complete the 
training program.
    Group of workers means at least two workers employed or formerly 
employed by the same firm, or an appropriate subdivision thereof, 
including teleworkers and staffed workers, who file a petition for 
certification under subpart B of this part, or for whom a petition is 
filed.
    Health Coverage Tax Credit or HCTC means the tax credit equal to a 
specific percentage of the costs of qualified health insurance 
premiums, which is administered by the Internal Revenue Service under 
section 35 of the Internal Revenue Code of 1986, as amended (26 U.S.C. 
35). When the tax credit is available, eligible TAA and RTAA recipients 
(see definitions of eligible TAA recipient and eligible RTAA recipient) 
and qualifying family members may apply for advance payment of the 
credit or claim the credit on their income tax return.
    Impact date means the date stated in a certification of eligibility 
to apply for the TAA Program, on which the total or partial separations 
of the workers covered by the certification began or threatened to 
begin, but in most cases, is not more than 1 year before the petition 
date.
    Increased imports means that imports have increased either 
absolutely or relative to domestic production compared to a 
representative base period. The representative base period will be 1 
year consisting of the 4 quarters immediately preceding the date that 
is 12 months prior to the date of the petition.
    Individual employment plan or IEP means a revisable document 
containing an ongoing strategy, jointly developed by the trade-affected 
worker and the State, identifying the worker's employment goals, 
appropriate achievement objectives, and appropriate services for the 
worker to achieve his or her employment goals, objectives, and 
benchmarks while in training or receiving employment and case 
management services.
    Job finding club means a job search workshop that includes a period 
of 1 to 2 weeks of structured, supervised activity in which trade-
affected workers attempt to obtain jobs.
    Job search program or JSP means a job search workshop or job 
finding club.
    Job search workshop means a short (1 to 3 days) seminar designed to 
provide workers with knowledge that will enable the workers to find 
jobs. Subjects are not limited to, but should include, labor market 
information, resume writing, interviewing techniques, and techniques 
for finding job openings.
    Lack of work means that the employer does not have work for the 
worker to perform or does not make that work available to the worker, 
and includes, but is not limited to, circumstances when:
    (1) Work is unavailable because the employer suspends or ceases 
operations or institutes a lockout; or
    (2) Work is unavailable because the employer downsizes the 
workforce by means of attrition or layoff.
    Layoff means a suspension of or separation from employment by a 
firm for lack of work, initiated by the employer, and expected to be 
for a definite or indefinite period of time.
    Liable State means, with respect to a trade-affected worker making 
claims for TAA Program benefits, the State whose State UI law is the 
applicable State law. A State can be both an agent State and a liable 
State.
    Like or directly competitive means, for articles, that articles 
have characteristics that are substantially identical in inherent or 
intrinsic characteristics (i.e., material from which the articles are 
made, appearance, quality) or are used

[[Page 51976]]

for substantially equivalent purposes and achieve comparable results 
and are, therefore, commercially interchangeable; and for services, 
services that have characteristics that are substantially identical in 
inherent or intrinsic characteristics (i.e., processes and procedures 
that comprise the activity, sequence of steps or component elements 
required in the provision of the service or both) or are used for 
substantially equivalent purposes and achieve comparable results and 
are, therefore, commercially interchangeable.
    Office of Trade Adjustment Assistance or OTAA means the 
organization within the U.S. Department of Labor, Employment and 
Training Administration that administers the TAA Program, or OTAA's 
successor organization.
    One-stop delivery system means the nationwide system of one-stop 
career centers, known as American Job Centers, which administer and 
deliver workforce development, educational, and training activities, as 
well as supportive services to workers and job seekers, in accordance 
with title I of WIOA.
    On-the-job training or OJT means work-based training, provided--
under contract with an employer in the public, nonprofit, or private 
sector--to an AAW who is employed by the employer.
    Partial separation or partially separated means, with respect to an 
AAW who has not been totally separated, that:
    (1) For purposes of subpart B of this part:
    (i) The worker's hours of work have been reduced to 80 percent or 
less of the worker's average weekly hours at the firm, or appropriate 
subdivision thereof during the period of investigation; and
    (ii) The worker's wages have been reduced to 80 percent or less of 
the worker's average weekly wage at the firm, or appropriate 
subdivision thereof during the period of investigation.
    (2) For this subpart and subparts C through I of this part:
    (i) The worker's hours of work have been reduced to 80 percent or 
less of the worker's average weekly hours in adversely affected 
employment during the certification period; and
    (ii) The worker's wages have been reduced to 80 percent or less of 
the worker's average weekly wage in adversely affected employment 
during the certification period.
    Period of duty means active duty served by an AAW before completing 
training under subpart F of this part for a period of more than 30 days 
under a call or order to active duty of more than 30 days or, in the 
case of a member of the Army National Guard of the United States or Air 
National Guard of the United States, full-time National Guard duty 
under 32 U.S.C. 502(f), for 30 consecutive days or more when authorized 
by the President or the Secretary of Defense for the purpose of 
responding to a national emergency declared by the President and 
supported by Federal funds.
    Petition date means the date a petition form is signed by the 
petitioner(s). When petitioners sign on different dates, the petition 
date is the latest of those dates.
    Prerequisite education or prerequisite coursework or prerequisite 
training means any coursework or training required by a training 
provider before entering an occupational training program designed to 
impart the skills and information required to perform a specific job or 
group of jobs.
    Program of remedial education or remedial education or remedial 
training means coursework or training that is designed to enhance the 
employability of a trade-affected worker by upgrading basic academic 
knowledge through such courses as adult basic education (ABE), basic 
math and literacy, English language acquisition (ELA) for nonnative 
speakers, and high school equivalency (HSE) courses, among others.
    Qualifying separation means any total or partial separation of an 
AAW from adversely affected employment within the certification period 
for the purposes of determining the AAW's eligibility to receive Basic 
TRA; 26-week period for enrollment in approved training; and Basic TRA 
eligibility period. The first qualifying separation is used to 
determine the weekly and maximum amounts of Basic TRA payable to an 
AAW.
    Reemployment Trade Adjustment Assistance or RTAA means the TAA 
Program benefit available to certain AAWs 50 years of age and older who 
obtain qualifying reemployment.
    Regional Administrator means the appropriate Regional Administrator 
of the U.S. Department of Labor's Employment and Training 
Administration.
    Secretary means the Secretary of Labor, U.S. Department of Labor, 
or his or her designee.
    Separation date means:
    (1) For a total separation:
    (i) For a worker in employment status and not on employer-
authorized leave, the last day worked; or
    (ii) For a worker on employer-authorized leave, including leave for 
military service, the last day the worker would have worked had the 
worker not been on the employer-authorized leave.
    (2) For a partial separation, the last day of the week in which the 
partial separation occurred.
    Service means the work performed by a worker for a service firm or 
appropriate subdivision. The work of a service firm is measured in 
units of time, labor, and tasks completed. Services may include the 
incidental production of an article, such as a license, ticket, 
certificate, permit, model, drawing, or prototype. Services are 
intangible but may involve the use of tangible objects during the 
supply of the service (such as textbooks in the supply of educational 
services). Where the revenue of the firm, or appropriate subdivision, 
is generated from the sale of a service, the firm, or appropriate 
subdivision, is deemed to be engaged in activity related to the supply 
of a service.
    Significant number or proportion of the workers means:
    (1) The lesser of 50 workers or 5 percent of the workers within a 
firm, or appropriate subdivision, have been totally or partially 
separated, or both, or are threatened with total or partial separation; 
or
    (2) 2 or more workers within a firm, or appropriate subdivision, 
with a workforce of fewer than 50 workers, have been totally or 
partially separated, or both, or are threatened with total or partial 
separation.
    Staffed worker means a worker directly employed by one firm to 
perform work under the operational control of another firm that is the 
subject of a petition investigation. These workers were previously 
referred to as ``leased workers.'' The term excludes independent 
contractors.
    State means the States of the United States, the District of 
Columbia, and the Commonwealth of Puerto Rico; and the term ``United 
States,'' when used in the geographical sense, includes the 
Commonwealth of Puerto Rico.
    State agency means the agency at the State level that administers 
the State law.
    State law means the UI law of a State under section 3304 of the 
Internal Revenue Code of 1986, as amended (26 U.S.C. 3304).
    Successor-in-interest means a firm, whether or not named on a 
certification issued under subpart B of this part, from which trade-
affected workers are separated, or threatened with separation, and 
where most or all of the factors in paragraphs (1) through (7) of this 
definition are present, relative to a firm named on a determination 
issued under subpart B:

[[Page 51977]]

    (1) There is continuity in business operations.
    (2) There is continuity in location.
    (3) There is continuity in the workforce.
    (4) There is continuity in supervisory personnel.
    (5) The same jobs exist under similar conditions.
    (6) There is continuity in machinery, equipment, and process.
    (7) There is continuity in product/service.
    Suitable employment means, with respect to a worker, work of a 
substantially equal or higher skill level than the worker's past 
adversely affected employment, and wages for such work that are not 
less than 80 percent of the worker's average weekly wage. Part-time, 
temporary, short-term, or threatened employment is not suitable 
employment.
    Supplier means a firm that produces and supplies directly to 
another firm component parts for articles, or services, used in the 
production of articles or in the supply of services, as the case may 
be, that were the basis for a certification of eligibility under Sec.  
618.225 of a worker group employed by such other firm. There is no 
direct supply where an intervening customer, supplier, or another 
entity receives the component parts, aside from in a delivery or 
bailment capacity, or in the case of a service supplier, if an 
intervening entity performs the service.
    Supportive services means services such as local transportation, 
childcare, dependent care, and housing, provided through WIOA or other 
programs, that are needed to enable an individual to participate in 
activities authorized under the Act.
    Threatened to become totally or partially separated means that 
there is evidence of intent to separate workers or that imminent 
separations are reasonably anticipated.
    Threatened to begin means, in the context of reasonably anticipated 
total or partial separations, the date(s) on which imminent separations 
will begin.
    Total separation or totally separated means:
    (1) For purposes of subpart B of this part, the layoff or severance 
of an AAW from a firm or appropriate subdivision thereof; or
    (2) For all other purposes under this part, the layoff or severance 
of a worker from adversely affected employment with a firm, or 
appropriate subdivision thereof.
    Trade Adjustment Assistance for Workers or Trade Adjustment 
Assistance or TAA Program means chapter 2 of title II of the Act, 
Public Law 93-618, 88 Stat. 1978 (19 U.S.C. 2271-2323 and 2395), as 
amended, which establishes the Trade Adjustment Assistance for Workers 
(TAA) Program. The benefits and services established under the Act, 
including RTAA, are collectively referred to as the Trade Adjustment 
Assistance Program (TAA Program) and provide assistance to workers 
adversely affected by foreign trade, as described in this part.
    Trade-affected worker means both ``adversely affected workers'' and 
``adversely affected incumbent workers.''
    Trade Readjustment Allowances or TRA means a weekly allowance 
payable to an AAW who meets the requirements of subpart G of this part. 
There are three types of TRA: Basic, Additional, and Completion, as 
described in Sec.  618.710.
    Unemployment Insurance or UI means the unemployment compensation 
payable to a worker under any State law or Federal UI law, including 
chapter 85 of title 5 of the U.S. Code and the RRUI. UI includes:
    (1) Regular compensation means compensation payable to a worker 
under any State unemployment compensation law (including compensation 
payable pursuant to 5 U.S.C. chapter 85), other than extended 
compensation and additional compensation.
    (2) Additional compensation means compensation payable to 
exhaustees by reason of conditions of high unemployment or by reason of 
other special factors.
    (3) Extended compensation means compensation (including additional 
compensation and compensation payable pursuant to 5 U.S.C. chapter 85) 
payable for weeks of unemployment beginning in an extended benefit 
period to a worker under those provisions of the State law that satisfy 
the requirements of the Federal-State Extended Unemployment 
Compensation Act of 1970 (EUCA) (26 U.S.C. 3304 (note)) with respect to 
the payment of extended compensation, including one-hundred percent 
federally funded unemployment compensation extensions.
    Value-added production processes or services means such processes 
or services similar to and including final assembly, finishing, 
testing, packaging, or maintenance or transportation services.
    Wages means:
    (1) Remuneration as defined by State law; or
    (2) For purposes of calculating a reemployment wage when 
determining the availability of suitable employment, the stated salary 
and--to the extent known--the value of any compensation package that 
would be defined as remuneration under State law, as provided by an 
employer in a job posting or job offer.
    Wagner-Peyser Act means the Wagner-Peyser Act, as amended (29 
U.S.C. 49 et seq.).
    Week means a week as defined in the applicable State law.
    Week of unemployment means a week of total, part-total, or partial 
unemployment as determined under the applicable State law or Federal UI 
law.
    Worker group means two or more workers of the same firm, or 
appropriate subdivision thereof, named in a certification rendered 
under subpart B of this part as eligible to apply for TAA Program 
benefits and services, inclusive of teleworkers and staffed workers.
    Workforce Innovation and Opportunity Act or WIOA means the 
Workforce Innovation and Opportunity Act (Pub. L. 113-128, as amended).


Sec.  618.120  Severability.

    Should a court of competent jurisdiction hold any provision(s) of 
this subpart to be invalid, such action will not affect any other 
provision of this subpart.

Subpart B--Petitions, Investigations, and Determinations


Sec.  618.200  Scope.

    This subpart relates to petitions, investigations, and 
determinations of eligibility for a group of workers to apply for 
adjustment assistance under the Act. This subpart specifically applies 
to the initiation, conduct, and effective processing of petitions for 
certification of eligibility to apply for adjustment assistance. This 
subpart also contains general provisions with respect to filing of 
documents, public availability of documents, and the appeals process.


Sec.  618.205  Petitions.

    (a) Who may file a petition. A petition for certification of 
eligibility to apply for adjustment assistance for a group of workers, 
or a request to amend an existing certification under Sec.  618.250, 
must be filed simultaneously with the Department and with the State in 
which such workers' firm is located, by any of the following:
    (1) A group of two or more workers from the same firm, on whose 
behalf the petition is filed;
    (2) A certified or recognized union, or other duly authorized 
representative of the group of workers;
    (3) The employer(s) of the group of workers; or

[[Page 51978]]

    (4) One-stop center operators or one-stop partners, including State 
workforce officials, employment security agencies, or dislocated worker 
unit and rapid response team members.
    (b) Form and contents. Petitioners may obtain a petition form and 
instructions online at: https://www.dol.gov/agencies/eta/tradeact, at a 
one-stop center (also known as an American Job Center), or by writing 
to: U.S. Department of Labor, Employment and Training Administration, 
Office of Trade Adjustment Assistance, 200 Constitution Avenue NW, 
Washington, DC 20210. A petition, which may include attachments, must 
provide the following information to be considered valid and for an 
investigation to commence:
    (1) The name and contact information for each petitioner;
    (2) The name of the firm;
    (3) The address of the location(s) where the group of workers who 
have been totally or partially separated or threatened with separation 
report to work (for a teleworker, the address of the location to which 
they report);
    (4) The name and contact information of an official within the firm 
or an individual authorized to provide information regarding the 
operation of the group of workers' firm;
    (5) The article produced or service supplied by the firm;
    (6) The actual or approximate date on which total or partial 
separations are threatened to occur or did occur;
    (7) The actual or estimated total number of workers who have been 
or may be separated;
    (8) A reason why the petitioner believes that worker separations 
have occurred or may occur at the firm due to foreign trade impacts, or 
a reason why a request to amend an existing and active certification 
should be granted; and
    (9)(i) Every petition must be signed and dated by at least two 
members of the petitioning group of workers, or by an official of a 
certified or recognized union or other duly authorized representative 
of the group of workers, or by an official of the employer of the group 
of workers, or by a representative of one of the organizations listed 
in paragraph (a)(4) of this section.
    (ii) Signing of a petition must constitute acknowledgement that the 
information provided on the petition form will be used for the purposes 
of determining worker group eligibility and providing notice to 
petitioners, workers, and the general public that the petition has been 
filed, and whether the worker group is eligible to apply for TAA 
Program benefits and services. Knowingly falsifying any information on 
the petition form is a Federal offense (18 U.S.C. 1001) and a violation 
of the Act (19 U.S.C. 2316). For the petition to be valid, the 
petitioner(s) listed on the form must sign and date the form, attesting 
to the fact that they are authorized to file a petition.
    (c) Supplemental information. Providing supplemental information, 
while not required, may assist the investigation. Attachments to the 
petition form are part of the petition.
    (d) Filing. (1) Petitions should be filed electronically with the 
Office of Trade Adjustment Assistance, via https://www.dol.gov/agencies/eta/tradeact. Individuals requiring assistance in filing 
online should contact their nearest one-stop center or the State's 
rapid response unit.
    (2) Alternatively, petitions may be filed via email to 
[email protected], via fax at (202) 693-3584 or (202) 693-3585, or 
by mail to: U.S. Department of Labor, Employment and Training 
Administration, Office of Trade Adjustment Assistance, 200 Constitution 
Avenue NW, Washington, DC 20210.
    (e) Industry notification of ITC determinations. Upon receiving 
notification from the ITC that it has issued an affirmative 
determination of injury or threat of injury under section 202 or 421 of 
the Act, under an applicable safeguard provision enacted to implement a 
trade agreement to which the United States is a party, or an 
affirmative final determination of material injury of threat thereof in 
investigation under section 705 or 735 of the Tariff Act of 1930, the 
Department will notify the affected parties listed in paragraph (e)(1) 
of this section. To the extent practicable, the Department may also 
notify other duly authorized representatives of the industry to which 
the ITC determination applies.
    (1) Parties the Department will notify under paragraph (e) of this 
section include:
    (i) Representatives of the domestic industry affected by the 
determination;
    (ii) Firms publicly identified by name during the proceeding 
related to the ITC determination; and
    (iii) Unions representing workers in firms covered by the 
determination.
    (2) The notice provided by the Department under paragraph (e) of 
this section will include:
    (i) A summary of the ITC determination;
    (ii) Information about the workers' potential eligibility for TAA 
Program benefits;
    (iii) The benefits and services available under the TAA Program;
    (iv) Information regarding the process for filing of petitions; and
    (v) The availability of assistance from the State for filing 
petitions.
    (3) The Department will also notify the Governor of each State in 
which one or more firms covered by an ITC determination are located and 
will identify those firms to the State.
    (f) Acceptance of petitions. The Department will review a petition, 
including attachments, to determine if it is valid within 2 business 
days of receipt of the petition by the Department. The date on which 
the petition is determined to be valid under paragraph (b) of this 
section is the filing date. The Department will not initiate the 
investigation until it has determined that the petition is valid.
    (g) Multiple petitions for same group of workers. If the Department 
receives multiple petitions regarding the same group of workers, it 
will base the filing date upon the first petition received.
    (h) Publication of notice in the Federal Register. The Department 
will publish a notice in the Federal Register and on the Department's 
website announcing the initiation of an investigation into all valid 
petitions filed.
    (i) Public access to petitions. A petition, including attachments, 
is a record that is available, in redacted form, in accordance with the 
Freedom of Information Act (FOIA), as amended (5 U.S.C. 552), Executive 
Order 12600, and 29 CFR part 70. The Department will post all 
petitions, in redacted form, to the Department's website and make them 
available for review at the Office of Trade Adjustment Assistance, 
Washington, DC.
    (j) Receipt of petition by the State. When the State receives a 
petition, the State must verify that the Department has also received 
the petition. If the petition has not been posted to the Department's 
website within 10 calendar days of receipt by the State, the State must 
forward the petition to the Department.


Sec.  618.210  Investigation.

    (a) Timing. The Department will initiate an investigation once it 
has deemed the petition valid in accordance with Sec.  618.205(f).
    (b) Period of investigation. For purposes of this subpart, the 
period of investigation is the time period it takes to investigate each 
of the criteria that are part of the Department's determination. The 
period of investigation varies for some eligibility criteria; Sec.  
618.225 describes the period of investigation for each criterion.

[[Page 51979]]

    (c) Investigative process. To determine whether the petitioning 
group of workers' eligibility criteria for certification have been met, 
the Department may take as many of the steps in paragraphs (c)(1) 
through (8) of this section during the investigation as it deems 
necessary to identify the group of workers and to reach a determination 
of eligibility to apply for TAA Program benefits for the identified 
worker group:
    (1) Verify information on the petition form by contacting the 
petitioner(s);
    (2) Provide the petitioner(s) the opportunity to submit additional 
evidence in support of the petition;
    (3) Obtain publicly available information about the workers' firm 
and industry;
    (4) Request information from the workers' firm;
    (5) Request information from the customers of the workers' firm;
    (6) Request information from the officials of certified or 
recognized unions or other duly authorized representatives of the group 
of workers;
    (7) Request information from one-stop center operators or one-stop 
partners; or
    (8) Use other available sources of information as necessary.
    (d) Protection of confidential business information. (1) The 
Department will determine whether information submitted by a firm or 
customer is confidential business information in accordance with FOIA, 
as amended (5 U.S.C. 552), Executive Order 12600, the Trade Secrets Act 
(18 U.S.C. 1905), and 29 CFR part 70.
    (2) The Department will not disclose confidential business 
information without the consent of the submitting firm or customer, 
unless under a court order to do so or as otherwise required by law.
    (e) Termination of investigation. (1) The Department will notify 
the petitioner of the termination of an investigation, publish a Notice 
of Termination of Investigation in the Federal Register, and post on 
the Department's website. The Department may terminate an investigation 
if the investigation establishes one of the following:
    (i) The petition is invalid, which includes petitions identifying a 
nonexistent group of workers, filed under false pretenses, or 
perpetuating fraud;
    (ii) The petitioner has withdrawn the petition in writing;
    (iii) The group of workers identified in the investigation is the 
same as a group of workers identified in another pending investigation;
    (iv) The group of workers identified in the investigation already 
has been issued a denial, and the period of investigation applicable to 
the current investigation and the previous denial is the same; or
    (v) The group of workers identified in the investigation is already 
covered by a certification that does not expire within 90 calendar days 
of the determination.
    (2) If appropriate to protect the interests of the group of workers 
covered by a petition filed and terminated under paragraph (e)(1)(i) or 
(ii) of this section, the Department may use the original impact date 
of the terminated petition for the identical group of workers covered 
under a later, valid, petition covering the identical group of workers, 
provided that it is filed within 30 calendar days of the filing date of 
the first petition. Under no circumstances will the Department use the 
impact date of an earlier petition when that petition was terminated 
for being invalid under paragraph (e)(1)(i) of this section because it 
was filed under false pretenses or to perpetuate a fraud.
    (3) Section 618.245 describes reconsideration of a termination of 
investigation.
    (f) Investigative record. The investigative record of a 
determination will include the petition that initiated the 
investigation, the documents and other materials provided to the 
Department in connection with the determination on the petition, 
research conducted by the Department, and records of investigation 
activities (including but not limited to telephone logs and email 
correspondence, and any determination under Sec.  618.225(a), (b), or 
(c)). The investigative record excludes information that is privileged 
or otherwise exempt from disclosure. Personally identifiable 
information and confidential business information will be protected 
consistent with all Federal authorities and Departmental administrative 
guidance.
    (g) Site visits. The investigation may include one or more site 
visits to confirm information furnished by the petitioner(s) and to 
elicit other relevant information, where other methods to obtain or 
confirm information or both, are unsuccessful.


Sec.  618.215  Public hearings.

    (a) When held. (1) A public hearing must be held in connection with 
an investigation initiated under Sec.  618.210 whenever, but not later 
than 10 days after the date of publication in the Federal Register of 
the notice of receipt of the petition, such a hearing is requested in 
writing by:
    (i) The petitioner; or
    (ii) Any other person found by the Administrator to have a 
substantial interest in the proceedings.
    (2) Such petitioner and other interested persons must be afforded 
an opportunity to be present, to produce evidence, and to be heard.
    (3) An explanation of why the requestor is requesting the hearing 
must be provided to the Department.
    (b) Form of request. A request for public hearing must be filed, in 
letter format, in the same manner as provided for other documents under 
Sec.  618.205(d)(2). The request must contain:
    (1) The name, address, and telephone number of the person, 
organization, or group requesting the hearing;
    (2) A complete statement of the relationship of the person, 
organization, or group requesting the hearing to the petitioner or the 
petition's subject matter; and
    (3) An explanation of why the person, organization, or requestor of 
the hearing is interested in the matter.
    (c) Time, place, and scope. The time, place, and scope of a public 
hearing will be set by the presiding officers and published in the 
Federal Register a reasonable period of time before the scheduled 
hearing.
    (d) Presiding officer. The Administrator, or his or her designee, 
must conduct and preside over public hearings.
    (e) Order of testimony. Witnesses will testify in the order 
designated by the presiding officer. Each witness, after being duly 
sworn, will proceed with testimony. After testifying, the presiding 
officer or an agent designated by the presiding officer may question 
the witness. Any person who has entered an appearance in accordance 
with paragraph (k) of this section may direct questions to the witness, 
but only for the purpose of assisting the presiding officer in 
obtaining relevant and material facts with respect to the subject 
matter of the hearing.
    (f) Evidence. Witnesses may produce evidence of a relevant and 
material nature to the subject matter of the hearing.
    (g) Briefs. Parties who have entered an appearance may file briefs 
regarding the evidence produced at the hearing. The briefs must be 
filed with the presiding officer within 10 days of the completion of 
the hearing.
    (h) Oral argument. The presiding officer must provide opportunity 
for oral argument by parties listed in paragraphs (a)(1)(i) and (ii) of 
this section after conclusion of the testimony in a hearing. The 
presiding officer will determine in each instance the time to

[[Page 51980]]

be allowed for argument and the allocation thereof.
    (i) Authentication of evidence. Evidence, oral or written, 
submitted at hearings, will, upon order of the presiding officer, be 
subject to verification from books, papers, and records of the parties 
submitting such evidence and from any other available sources.
    (j) Transcripts. All hearings will be transcribed or recorded in 
compliance with the standards of the Department. Persons interested in 
records of the hearings may inspect them at the U.S. Department of 
Labor in Washington, DC.
    (k) Appearances. Any person showing a substantial interest in the 
proceedings may enter an appearance at a hearing, either in person or 
by a duly authorized representative.


Sec.  618.220  Use of subpoena.

    (a) The Administrator may require, by subpoena, in connection with 
any investigation or hearing, the attendance and testimony of witnesses 
and the production of evidence the issuing official deems necessary to 
make a determination under this subpart.
    (b) The Department will issue a subpoena to secure evidence from a 
firm, customer, petitioner, or other person who fails to provide 
requested information within 20 days of the request, unless the 
recipient of the subpoena demonstrates to the satisfaction of the 
Department that the information will be provided within a reasonable 
time. In making this determination, the Department will consider the 
following factors:
    (1) Submission of a portion of the required information;
    (2) Prompt cooperation with inquiries about the information;
    (3) Cooperation in previous responses to information requests;
    (4) Evidence of effort to obtain the required information; and
    (5) Other information the Department determines to be relevant.
    (c) Witnesses subpoenaed under this section to appear in person 
must be paid the same fees and mileage as are paid for like services in 
the District Court of the United States within the jurisdiction of 
which the proceeding is taking place. The Department must pay the 
witness fees and mileage.
    (d) Subpoenas issued under paragraph (a) of this section must be 
signed by the Administrator, or his or her designee, and must be served 
consistent with Rule 5(b) of the Federal Rules of Civil Procedure. The 
date for compliance must be 7 calendar days following service of the 
subpoena, unless otherwise indicated.
    (e) If the recipient of the subpoena refuses to provide the 
requested information, the Department may petition the appropriate 
District Court of the United States to seek enforcement of the 
subpoena.


Sec.  618.225  Criteria for certification of a group of workers.

    (a) Increased imports. (1) This paragraph (a) includes criteria for 
certification of a group of workers based upon increased imports of:
    (i) Articles like or directly competitive with the articles 
produced by the workers' firm;
    (ii) Services like or directly competitive with the services 
supplied by the workers' firm;
    (iii) Articles like or directly competitive with articles into 
which one or more component parts produced by the workers' firm are 
directly incorporated;
    (iv) Articles like or directly competitive with articles that are 
produced directly using services supplied by the workers' firm; or
    (v) Articles directly incorporating one or more component parts 
produced outside the United States that are like or directly 
competitive with imports of articles incorporating one or more 
component parts produced by the workers' firm.
    (2) After review of the relevant information necessary to make a 
determination, the Certifying Officer must certify a worker group as 
eligible to apply for TAA Program benefits and services as impacted by 
increased imports if all four of the criteria in paragraphs (a)(2)(i) 
through (iv) of this section are met.
    (i) Criterion 1. A significant number or proportion of the workers' 
firm, or appropriate subdivision thereof, have been totally or 
partially separated, or threatened with such separation, during the 1-
year period prior to the petition date.
    (A) Information regarding separations may be obtained from:
    (1) A questionnaire;
    (2) State workforce agencies;
    (3) Unions;
    (4) Workers in the group of workers;
    (5) Public records; and
    (6) Other reliable sources.
    (B) Analysis of separation data must generally consist of a:
    (1) Comparison of employment on the petition date to employment on 
the date that is 1 year prior to the petition date;
    (2) Review of employment activity during the 1-year period prior to 
the petition date; and
    (3) Review of evidence provided by the workers' firm regarding 
actual and threatened separations that occur, or are scheduled to 
occur, after the petition date.
    (C) Evidence of threat of separation includes, but is not limited 
to:
    (1) A Worker Adjustment and Retraining Notice (WARN) letter, or a 
notification issued under a similar State law;
    (2) A separation schedule;
    (3) Information provided to the public, such as a news release or 
notice on the workers' firm website;
    (4) Information provided to the worker group; or
    (5) Internal firm documents, including memoranda or a firm 
newsletter.
    (ii) Criterion 2. Sales or production, or both, of the workers' 
firm has decreased during the 1-year period prior to the petition date.
    (A) Information regarding sales or production may be collected 
from:
    (1) Questionnaires;
    (2) Public records; and
    (3) Other reliable sources.
    (B) Analysis of sales or production data must generally consist of 
a comparison of sales or production data on the petition date to sales 
or production data on the date that is 1 year prior to the petition 
date.
    (iii) Criterion 3. Imports of the article or service have increased 
during the 1-year period prior to the petition date.
    (A) Information regarding imports may be collected from:
    (1) Questionnaires issued to the workers' firm or customer(s);
    (2) Public records; and
    (3) Other reliable sources.
    (B) Analysis of the workers' firm import activity must generally 
consist of a comparison of the workers' firm import data on the 
petition date to the workers' firm import data on the date that is 1 
year prior to the petition date.
    (C) Analysis of customer import activity must generally consist of 
a comparison of the aggregate of customer import data on the petition 
date to the aggregate of customer import data on the date that is 1 
year prior to the petition date.
    (iv) Criterion 4. Increased imports have contributed importantly to 
worker separations, or threat of separation, and the decline in sales 
or production at the workers' firm.
    (A) Analysis of the impact of increased imports on worker 
separations and declines in sales or production at the workers' firm 
must generally consist of determining:
    (1) Whether there are one or more events, or factors, that lessen 
or sever the causal nexus between the increase in imports and worker 
separations or threat of separation, and the decline in

[[Page 51981]]

sales and production at the workers' firm;
    (2) What percentage of the workers' firm sales or production 
declines was attributable to the firm's increased imports;
    (3) What percentage of the workers' firm customer(s) sales or 
production declines was attributable to the firm's increased imports; 
and
    (4) Whether there are other events or factors that mitigate or 
amplify the impact of increased imports on the workers' firm.
    (B) The impact may be determined using a quantitative or 
qualitative analysis.
    (b) Shift. (1) This paragraph (b) includes criteria for 
certification of a worker group based on a shift:
    (i) In production of like or directly competitive articles by the 
workers' firm to another country; or
    (ii) In the supply of like or directly competitive services by the 
workers' firm to another country.
    (2) After a review of relevant information necessary to make a 
determination, the Certifying Officer must certify a group of workers 
as eligible to apply for TAA Program benefits and services as impacted 
by a shift in production or supply of service if all of the criteria in 
paragraphs (b)(2)(i) through (iii) of this section of are met.
    (i) Criterion 1. A significant number or proportion of the workers' 
firm, or appropriate subdivision thereof, have been totally or 
partially separated, or threatened with separation, during the 1-year 
period prior to the petition date.
    (A) Information regarding separations may be obtained from:
    (1) A questionnaire;
    (2) State workforce agencies;
    (3) Unions;
    (4) Workers in the group of workers;
    (5) Public records; and
    (6) Other reliable sources.
    (B) Analysis of separation data must generally consist of a:
    (1) Comparison of employment on the petition date to employment on 
the date that is 1 year prior to the petition date;
    (2) Review of employment activity during the 1-year period prior to 
the petition date; and
    (3) Review of evidence provided by the workers' firm regarding 
actual and threatened separations that occur, or are scheduled to 
occur, after the petition date.
    (C) Evidence of threat of separation includes, but is not limited 
to:
    (1) A WARN letter, or a notification issued under a similar State 
law;
    (2) A separation schedule;
    (3) Information provided to the public, such as a news release or 
notice on the workers' firm website;
    (4) Information provided to the worker group; or
    (5) Internal firm documents, including memoranda or a firm 
newsletter.
    (ii) Criterion 2. There has been a shift in the production or 
supply of services by the workers' firm to a foreign country.
    (A) Information regarding shift activity may be collected from:
    (1) A questionnaire;
    (2) Public records; and
    (3) Other reliable sources.
    (B) Analysis of shift activity must generally consist of a:
    (1) Comparison of shift data on the petition date to shift data on 
the date that is 1 year prior to the petition date;
    (2) Review of shift activity during the 1-year period prior to the 
petition date; and
    (3) Review of evidence provided by the workers' firm regarding 
shift activity scheduled to occur after the petition date.
    (C) Evidence of future planned shift activity must include more 
than a stated intent to shift activity to a foreign country and 
includes, but is not limited to, a reassignment of production or 
service supply; a reassignment of discrete aspects or stages of 
production or service supply; securing a facility in a foreign country; 
shipping resources to a foreign country; or acquiring personnel in a 
foreign country.
    (iii) Criterion 3. The shift to a foreign country has contributed 
importantly to worker separations or threat of separation.
    (A) Analysis of impact of shift activity on worker separations must 
generally consist of determining:
    (1) Whether there are one or more events or factors that sever or 
lessen the causal nexus between the shift activity and worker 
separations or threat of separation;
    (2) What percentage of the workers' firm sales or production 
declines was attributable to the firm's shift activity;
    (3) Whether operations at the workers' firm domestic facility or 
facilities decreased at the same or at a greater rate than operations 
at the foreign facility or facilities; and
    (4) Whether there are other events or factors that mitigate or 
amplify the impact of shift activity on the workers' firm.
    (B) The impact may be determined using a quantitative or 
qualitative analysis.
    (c) Foreign acquisition. This paragraph (c) includes criteria for 
certification of a worker group based on a foreign acquisition of like 
or directly competitive articles by the workers' firm from another 
country. After review of relevant information necessary to make a 
determination, the Certifying Officer must certify a group of workers 
as eligible to apply for TAA Program benefits and services as impacted 
by a foreign acquisition of articles or services if all of the criteria 
in paragraphs (c)(1) through (3) of this section are met.
    (1) Criterion 1. A significant number or proportion of the workers' 
firm, or appropriate subdivision thereof, have been totally or 
partially separated, or threatened with separation, during the 1-year 
period prior to the petition date.
    (i) Information regarding separations may be obtained from:
    (A) A questionnaire;
    (B) State workforce agencies;
    (C) Unions;
    (D) Workers in the group of workers;
    (E) Public records; and
    (F) Other reliable sources.
    (ii) Analysis of separation data must generally consist of a:
    (A) Comparison of employment on the petition date to employment on 
the date that is 1 year prior to the petition date;
    (B) Review of employment activity during the 1-year period prior to 
the petition date; and
    (C) Review of evidence provided by the workers' firm regarding 
actual and threatened separations that occur, or are scheduled to 
occur, after the petition date.
    (iii) Evidence of threat of separation includes, but is not limited 
to:
    (A) A WARN letter, or a notification issued under a similar State 
law;
    (B) A separation schedule;
    (C) Information provided to the public, such as a news release or 
notice on the workers' firm website;
    (D) Information provided to the worker group; or
    (E) Internal firm documents, including memoranda or a firm 
newsletter.
    (2) Criterion 2. There has been an acquisition of articles or 
supply of services by the workers' firm from an entity in a foreign 
country.
    (i) Information regarding separations may be obtained from:
    (A) A questionnaire;
    (B) State workforce agencies;
    (C) Unions;
    (D) Workers in the group of workers;
    (E) Public records; and
    (F) Other reliable sources.
    (ii) Analysis of acquisition data must generally consist of a:
    (A) Comparison of acquisition data on the petition date to 
acquisition data on the date that is 1 year prior to the petition date;

[[Page 51982]]

    (B) Review of acquisition data during the 1-year period prior to 
the petition date; and
    (C) Review of evidence provided by the workers' firm regarding 
acquisition activity scheduled to occur after the petition date.
    (iii) Evidence of future planned acquisitions requires more than a 
stated intent to procure production of an article or supply of services 
from an entity in a foreign country and may include, but is not limited 
to, entering into a contract with a licensee; reassignment of 
production or service supply to a contractor or licensee; and a 
reassignment of discrete aspects or stages of production or service 
supply to a contractor or licensee.
    (3) Criterion 3. The acquisition from a foreign country has 
contributed importantly to worker separations or threat of separation.
    (i) Analysis of impact of acquisition data on worker separations 
must generally consist of determining:
    (A) Whether there are one or more events or factors that lessen or 
sever the causal nexus between the acquisition activity and worker 
separations or threat of separation;
    (B) What percentage of the workers' firm sales or production 
declines was attributable to the firm's acquisition activity;
    (C) Whether operations at the workers' firm domestic facility or 
facilities decreased at the same or at a greater rate than contractor 
or licensee operations in the foreign country; and
    (D) Whether there are other events or factors that mitigate or 
amplify the impact of acquisition activity on the workers' firm.
    (ii) The impact may be determined using a quantitative or 
qualitative analysis.
    (d) Supplier of component parts or services. This paragraph (d) 
contains criteria for certification of a worker group as a supplier to 
a worker group. After review of relevant information necessary to make 
a determination, the Certifying Officer must certify a worker group as 
eligible to apply for TAA Program benefits and services as a supplier 
to a worker group if all of the criteria in paragraphs (d)(1) through 
(5) of this section are met.
    (1) Criterion 1. A significant number or proportion of the workers' 
firm, or appropriate subdivision thereof, have been totally or 
partially separated, or threatened with separation, during the 1-year 
period prior to the petition date.
    (i) Information regarding separations may be obtained from:
    (A) A questionnaire;
    (B) State workforce agencies;
    (C) Unions;
    (D) Workers in the group of workers;
    (E) Public records; and
    (F) Other reliable sources.
    (ii) Analysis of separation data must generally consist of a:
    (A) Comparison of employment on the petition date to employment on 
the date that is 1 year prior to the petition date;
    (B) Review of employment activity during the 1-year period prior to 
the petition date; and
    (C) Review of evidence provided by the workers' firm regarding 
actual and threatened separations that occur, or are scheduled to 
occur, after the petition date.
    (iii) Evidence of threat of separation includes, but is not limited 
to:
    (A) A WARN letter, or a notification issued under a similar State 
law;
    (B) A separation schedule;
    (C) Information provided to the public, such as a news release or 
notice on the workers' firm website;
    (D) Information provided to the worker group; or
    (E) Internal firm documents, including memoranda or a firm 
newsletter.
    (2) Criterion 2. The certification of the worker group employed by 
the firm to which the workers' firm supplied component parts or 
services has not expired by the petition date.
    (3) Criterion 3. The workers' firm conducted business with the firm 
identified in paragraph (d)(2) of this section during the 1-year period 
prior to the petition date.
    (4) Criterion 4. The certification identified in paragraph (d)(2) 
of this section was based on an article or service related to the 
component part produced or service supplied by the workers' firm.
    (5) Criterion 5. The component parts supplied to the firm 
identified in paragraph (d)(2) of this section, represented at least 20 
percent of the supplier's production or sales during the 1-year period 
prior to the petition date, or loss of business with the firm 
identified in paragraph (d)(2) of this section, during the 1-year 
period prior to the petition date, contributed importantly to 
separations or threat of separation at the workers' firm.
    (e) Downstream producer. After review of relevant information 
necessary to make a determination, the Certifying Officer must certify 
a worker group as eligible to apply for TAA Program benefits and 
services as a downstream producer if all of the criteria in paragraphs 
(e)(1) through (5) of this section are met.
    (1) Criterion 1. A significant number or proportion of the workers' 
firm, or appropriate subdivision thereof, have been totally or 
partially separated, or threatened with separation, during the 1-year 
period prior to the petition date.
    (i) Information regarding separations may be obtained from a 
questionnaire, State workforce agencies, unions, workers in the group 
of workers, public records, and other reliable sources.
    (ii) Analysis of separation data must generally consist of a:
    (A) Comparison of employment on the petition date to employment on 
the date that is 1 year prior to the petition date;
    (B) Review of employment activity during the 1-year period prior to 
the petition date; and
    (C) Review of evidence provided by the workers' firm regarding 
actual and threatened separations that occur, or are scheduled to 
occur, after the petition date.
    (iii) Evidence of threat of separation includes, but is not limited 
to:
    (A) A WARN letter, or a notification issued under a similar State 
law;
    (B) A separation schedule;
    (C) Information provided to the public, such as a news release or 
notice on the workers' firm website;
    (D) Information provided to the worker group; or
    (E) Internal firm documents, including memoranda or a firm 
newsletter.
    (2) Criterion 2. The certification of the worker group employed by 
the firm to which the workers' firm provided value-added production 
processes or services has not expired by the petition date.
    (3) Criterion 3. The workers' firm conducted business with the firm 
identified in paragraph (e)(2) of this section during the 1-year period 
prior to the petition date.
    (4) Criterion 4. The certification identified in paragraph (e)(2) 
of this section was based on an article or service related to the 
value-added production processes or services supplied by the workers' 
firm.
    (5) Criterion 5. Loss of business with the firm identified in 
paragraph (e)(2) of this section during the 1-year period prior to the 
petition date contributed importantly to separations or threat of 
separation at the workers' firm.
    (f) ITC determinations. After review of relevant information 
necessary to make a determination, the Certifying Officer must certify 
a worker group as eligible to apply for TAA based on a determination 
issued by the ITC if all of the criteria in paragraphs (f)(1) through 
(3) of this section are met.
    (1) Criterion 1. The ITC has publicly identified the workers' firm, 
by name, as a member of a domestic industry in an investigation 
resulting in:

[[Page 51983]]

    (i) An affirmative determination of serious injury or threat 
thereof under section 202(b)(1) of the Act (19 U.S.C. 2252(b)(1));
    (ii) An affirmative determination of market disruption or threat 
thereof under section 421(b)(1) of the Act (19 U.S.C. 2451(b)(1)); or
    (iii) An affirmative final determination of material injury or 
threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff 
Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A)).
    (2) Criterion 2. The petition is filed during the 1-year period 
beginning on the date on which:
    (i) A summary of the report submitted to the President by the ITC 
under section 202(f)(1) of the Act with respect to the affirmative 
determination described in paragraph (f)(1)(i) of this section is 
published in the Federal Register under section 202(f)(3) of the Act; 
or
    (ii) Notice of an affirmative determination described in paragraph 
(f)(1)(ii) or (iii) of this section is published in the Federal 
Register.
    (3) Criterion 3. The workers have become totally or partially 
separated from the workers' firm within:
    (i) The 1-year period described in paragraph (f)(2) of this 
section; or
    (ii) The 1-year period preceding the 1-year period described in 
paragraph (f)(2) of this section.
    (g) Sales or production decline criteria. For paragraphs (a) 
through (c) of this section, in assessing sales or production decline 
for the period 1 year prior to the petition date, the Department will 
use a comparison of the latest 2 full calendar year periods and will 
use a comparison of the year to date period (from the year the petition 
was filed) to the same year to date period from the prior year. This 
paragraph (g) does not apply to determining whether a significant 
number of workers have been separated or threatened with separation.
    (h) Oil and gas. For workers employed by firms engaged in 
exploration or drilling for crude oil and natural gas:
    (1) Any firm, or appropriate subdivision of a firm, that engages in 
exploration or drilling for oil or natural gas must be considered to be 
a firm producing oil or natural gas;
    (2) Any firm, or appropriate subdivision of a firm, that engages in 
exploration or drilling for oil or natural gas, or otherwise produces 
oil or natural gas, must be considered to be producing articles 
directly competitive with imports of oil and with imports of natural 
gas; and
    (3) The Department may conduct a parallel investigation to 
determine whether the group of workers meets the criteria for 
certification of worker groups under this section for the services 
provided by the group of workers. The Department will render a 
determination after all appropriate avenues are considered.
    (i) Staffed workers. The Department considers staffed workers to be 
members of a worker group even if they are not specifically mentioned 
within the determination document issued under Sec.  618.235. The 
Department will collect information from the workers' firm during the 
investigation to establish which leasing or staffing entity or entities 
the firm used under a contract. Once identified, an evaluation of 
operational control will occur. If a certification is rendered, the 
Department will notify States regarding the appropriate contact 
information of the known leasing or staffing entity or entities in 
order to expedite worker notification of their eligibility to apply 
individually for TAA Program benefits and services. Factors to be 
considered in evaluating operational control include:
    (1) Whether the contract workers perform only tasks that are 
independent, discrete projects for the workers' firm (as opposed to 
performing tasks that are part of the regular business operations of 
the firm);
    (2) Whether the workers' firm has the discretion to hire, fire, and 
discipline the contract workers;
    (3) Whether the workers' firm has the ability to terminate the 
contract workers' employment with such firm through the staffing or 
leasing contracted firm;
    (4) Whether the workers' firm exercises the authority to supervise 
the contract workers' daily work activities, including assigning and 
managing work, and determining how, where, and when the work of 
contract worker takes place (e.g., factors such as the hours of work, 
the selection of work, and the manner in which the work is to be 
performed by each contract worker are relevant);
    (5) Whether the services of the contract workers are offered on the 
open market;
    (6) Whether the contract workers work exclusively for the workers' 
firm;
    (7) Whether the workers' firm is responsible for establishing wage 
rates and the payment of salaries of the contract workers;
    (8) Whether the workers' firm provides skills training to the 
contract workers; and
    (9) Whether there are other facts indicating that the workers' firm 
exercises control over the contract workers.
    (j) Teleworkers. The Department considers teleworkers (also known 
as remote, or home-based workers) to be members of a worker group even 
if they are not specifically mentioned within the determination 
document issued under Sec.  618.235 when they would be a part of the 
worker group if they worked on-site. Teleworkers do not have to be 
physically based at the location of the subject firm or in the same 
city or same State of the location that is identified on the 
determination document to be members of the certified worker group.
    (k) Successor-in-interest. The Department considers workers 
employed by a firm that is a successor-in-interest to be members of a 
worker group even if they are not mentioned specifically within the 
determination document issued under Sec.  618.235.


Sec.  618.230  Evidence.

    (a) The Department will verify information obtained during an 
investigation before considering such information in support of a 
petition.
    (b) Evidence may be accepted from such sources including, but not 
limited to, petitioners, company officials, current and former workers 
of the firm, customers of the firm, trade associations, union 
representatives, Federal agencies, and public sources such as State 
agencies and academic institutions.
    (c) The Department may share affidavits, testimonials, news 
articles, and other types of information proffered in support of a 
petition with appropriate parties for verification.


Sec.  618.235  Determinations.

    Based on the findings of the investigation as set forth in Sec.  
618.230, a Certifying Officer will make a determination on a petition 
as provided under paragraph (a) or (b) of this section.
    (a) Affirmative determination or certification. When the 
investigation establishes that a group of workers meets the eligibility 
criteria of Sec.  618.225, the Certifying Officer will issue a 
certification of worker group eligibility to apply for TAA Program 
benefits and services. The certification will include the name of the 
firm or appropriate subdivision thereof at which the trade-affected 
workers covered by the certification have been employed (which need not 
be limited to the unit specified in the petition), and may identify the 
worker group by name, as described in Sec.  618.225(i) and (j), the 
certification period, and the certification date.

[[Page 51984]]

    (1) A certification covers any worker in the worker group eligible 
to apply for assistance under sec. 222(a) and (b) of the Act, whose 
last total or partial separation, or threat of a separation, from a 
firm or appropriate subdivision took place within the certification 
period, which is the period:
    (i) Following the impact date, which is the date 1 year before the 
petition date; and
    (ii) On or before the day the certification expires, which is 2 
years after the certification date, or an earlier date on which the 
Certifying Officer determines that separations from adversely affected 
employment may no longer be attributed to the conditions underlying the 
certification, as described in Sec.  618.240, or the date identified in 
an amendment described in Sec.  618.250.
    (2) A certification covers any worker in the worker group eligible 
to apply for TAA Program benefits and services under section 222(e) 
whose last total or partial separation from a firm took place within 
the certification period, which is the period:
    (i) Following the impact date, which is the date 1 year before the 
ITC publication in the Federal Register; and
    (ii) On or before the day the certification expires, which is the 
date 1 year from the ITC publication in the Federal Register.
    (3) A trade-affected worker who is a member of the worker group 
covered by the certification may apply to the State for benefits and 
services under subparts C through G of this part.
    (b) Negative determination or denial. When the investigation 
establishes that the group of workers does not meet the criteria for 
eligibility, as described in Sec.  618.225, the Certifying Officer will 
issue a denial. The denial will include the name of the firm or 
appropriate subdivision thereof at which the workers covered by the 
denial have been employed (which need not be limited to the unit 
specified in the petition), and may identify the worker group by name, 
as described in Sec.  618.225(i) and (j).
    (c) Determination. The Certifying Officer issues a determination 
identifying the article(s) produced or service(s) provided and 
describing the worker group covered by the certification or denial and 
stating the reasons for the determination (excluding information 
designated as confidential business information). The Department will 
provide a copy of the determination to the petitioner(s) and to the 
State(s) covered by the determination. The Department will publish in 
the Federal Register, and on the Department's website, a summary of the 
determination issued under paragraph (a) or (b) of this section, along 
with a general statement of the reasons for the determination (except 
for confidential business information).
    (d) Amended determination. The Department may amend a certification 
for any of the purposes described in Sec.  618.250(a), in response to a 
petition filed under Sec.  618.205, or without an outside request for 
an amendment. An amended determination will not take effect until the 
previous determination becomes final, either after the period in which 
to request reconsideration has lapsed or after the Department makes a 
determination on reconsideration. Amended certifications are discussed 
in more detail in Sec.  618.250.
    (e) Administrative action. The Department may, with or without an 
outside request, reconsider actions taken under Sec.  618.210(e), 
618.235(b), 618.240, 618.245, or 618.250.


Sec.  618.240  Termination of certification.

    (a) Initiation. Whenever the Administrator of the Office of Trade 
Adjustment Assistance has reason to believe, with respect to any 
nonexpired certification, that the total or partial separations or 
threat of separation from a firm, or appropriate subdivision thereof, 
are no longer attributable to the conditions specified in section 222 
of the Act and Sec.  618.225, the Administrator must promptly conduct 
an investigation.
    (b) Notice. A notice of the initiation of an investigation to 
terminate a certification must be published in the Federal Register, 
and on the Department's website, and provided to the petitioner(s) of 
the certification under investigation, the firm official(s), and 
State(s) that contain the location(s) of the workers comprising the 
worker group covered by the certification. The State(s) must also 
promptly notify the workers in the worker group.
    (c) Opportunity for comment. Within 10 calendar days after 
publication of the notice under paragraph (b) of this section, members 
of the worker group or any other person who has a substantial interest 
in the matter may provide evidence in writing supporting the 
continuation of eligibility of certification to show why the 
certification should not be terminated. If a hearing is requested, it 
will be conducted in accordance with Sec.  618.215. If no evidence is 
provided by any interested party within 10 days from the date of 
publication to the Federal Register or on the Department's website, 
whichever is later, a determination must be issued once the 
investigation is complete. Evidence (except at a timely requested 
hearing) and hearing requests submitted outside the 10-day period will 
not be accepted.
    (d) Investigation of termination of a certification. The Department 
will conduct a review of the record on which the certification was 
based, any evidence timely filed under paragraph (c) of this section, 
and any data submitted with the petition or provided subsequent to the 
filing of the petition.
    (e) Determination to terminate or partially terminate a 
certification. A determination to terminate a certification may cover 
the entire worker group specified in the certification or a portion of 
that group. Such termination or partial termination must apply only 
with respect to total or partial separations occurring after the 
termination date specified in the determination notice and must only 
take effect after the determination becomes final, either after the 
period in which to request reconsideration has lapsed or after a 
determination on reconsideration is made.
    (1) Upon making a determination that the certification should be 
terminated for all or part of the worker group specified in the 
certification, the Department will issue a determination, which will 
contain the reasons for making such determination, and notify the 
petitioner(s) of the original certification, the firm official(s), and 
the State(s). The Department will also publish the notice in the 
Federal Register, and on the Department's website. The State will 
notify the worker group of the termination or partial termination.
    (2) The termination date specified in the determination notice must 
not be earlier than the date of publication in the Federal Register.
    (f) Determination of continuation of certification. After an 
investigation resulting in a decision that the certification should not 
be terminated, the Department will notify the petitioner(s) of the 
original certification, firm official(s), and the State(s). The 
State(s) will notify the worker group of the determination of 
continuation of certification. The Department will publish the 
determination in the Federal Register and on the Department's website. 
After receiving notice by the Department, the State(s) must notify the 
worker group of the continuation of certification.
    (g) Reconsideration of termination or partial termination of a 
certification. Any party that is eligible under Sec.  618.205 to submit 
a petition may file an application for reconsideration with

[[Page 51985]]

the Department, following the procedures described in Sec.  618.245.


Sec.  618.245  Reconsideration of termination of an investigation, 
denial, or termination or partial termination of certification.

    (a) Application for reconsideration; contents. (1) Any party who is 
eligible to file a petition under Sec.  618.205, and any worker in the 
group of workers, may file a written application seeking 
reconsideration of a termination of an investigation under Sec.  
618.210(e); a negative determination issued under Sec.  618.235(b); or 
a termination or partial termination of certification issued under 
Sec.  618.240, via email: [email protected]; fax: (202) 693-
3584 or (202) 693-3585; or mail: U.S. Department of Labor, Employment 
and Training Administration, Office of Trade Adjustment Assistance, 200 
Constitution Avenue NW, Washington, DC 20210.
    (2) An application for reconsideration must contain the following 
information to be complete and valid:
    (i) The name(s) and contact information of the applicant(s);
    (ii) The name or a description of the group of workers on whose 
behalf the application for reconsideration is filed in the case of an 
application for reconsideration of a termination of an investigation or 
a negative determination, or the name or a description of the worker 
group on whose behalf the application for reconsideration of a 
termination or partial termination of a certification is filed;
    (iii) The petition number identified on the petition or 
determination that is the subject of the application for 
reconsideration;
    (iv) The reasons for believing that the termination of the 
investigation, negative determination, or termination or partial 
termination of a certification identified in paragraph (a)(1) of this 
section is erroneous, including any issues that the applicant asserts 
require further investigation;
    (v) Any information that may support the application for 
reconsideration, including material not considered prior to the 
termination of the investigation, negative determination, or 
termination or partial termination of a certification; and
    (viii) The signature(s) of the party, or representative thereof, 
requesting reconsideration.
    (b) Time for filing. An application for reconsideration of the 
termination of the investigation, negative determination, or 
termination or partial termination of a certification must be filed no 
later than 30 calendar days after the notice of the termination of the 
investigation, negative determination, or termination or partial 
termination of a certification has been published in the Federal 
Register. If an application is filed after that time, it will be 
returned as untimely filed.
    (c) Return of incomplete applications for reconsideration. The 
Department will review an application for reconsideration within 2 
business days upon its receipt to determine if the application contains 
all of the necessary information required under paragraph (a)(2) of 
this section. The Department will not accept an incomplete application 
for filing, but will return it to the applicant with a brief statement 
explaining why it is incomplete. Should an applicant wish to refile an 
application for reconsideration, the refiling must occur no later than 
30 calendar days after the notice of the determination has been 
published in the Federal Register, within the 30-day period identified 
in paragraph (b) of this section or, if the application is returned 
less than 5 days before the end of that period, within 5 days of 
receipt.
    (d) Notice of an application for reconsideration. After receipt of 
a complete and timely application for reconsideration, the Department 
will notify the applicant and publish in the Federal Register and on 
the Department's website the notice of the application and the 
initiation of an investigation on reconsideration of the termination of 
the investigation, negative determination, or termination or partial 
termination of a certification.
    (e) Opportunity for comment and submission of data on 
reconsideration. Within 10 calendar days after publication of a notice 
under paragraph (d) of this section, any party who is eligible to file 
a petition under Sec.  618.205 may make written submissions to show why 
the determination under reconsideration should or should not be 
modified.
    (f) Investigation on reconsideration. The Department will conduct a 
review of the record on which the termination of the investigation, 
negative determination, or termination or partial termination of a 
certification was based, any comments timely filed under paragraphs 
(a)(2)(iv), (a)(2)(v), or (e) of this section, and any data submitted 
with the original petition or provided subsequent to the filing of the 
petition. The period of investigation under reconsideration will remain 
the same as the period of investigation for the original petition.
    (g) Determinations on reconsideration. The Department will issue a 
final determination affirming, reversing, or modifying the termination 
of the investigation, negative determination, or termination or partial 
termination of a certification within 60 days after the date of 
receiving a complete and valid application for reconsideration. The 
Department will notify the applicant(s), the petitioner(s) of the 
original petition, firm official(s), and the State(s); and publish 
notice in the Federal Register of the determination on reconsideration 
and the reasons for it (redacting confidential business information). 
The State continues to be responsible for notifying trade-affected 
workers in a certified worker group of their eligibility to apply for 
TAA, in accordance with Sec.  618.820. If 60 days pass without a 
determination on reconsideration, the Department will contact the 
applicant to ascertain whether the applicant wishes the Department to 
continue the reconsideration investigation and issue a determination on 
reconsideration or wishes the Department to terminate the 
reconsideration investigation, which renders the initial determination 
as the Department's final determination.


Sec.  618.250  Amendments of certifications.

    (a) Reasons for amendments. A Certifying Officer may amend a 
certification. The Department retains the authority to amend a 
certification without a petition, where it has determined that an 
amendment is appropriate. Amendments must not extend the impact date 
more than 1 year prior to the petition date unless there is a statutory 
exception, as described in Sec.  618.235(a)(1)(ii). Reasons for 
amendments include, but are not limited to:
    (1) Identifying an ownership change affecting the applicable firm;
    (2) Correcting technical errors; or
    (3) Clarifying the identification of the worker group.
    (b) Petition filing. Amendments must be requested through the 
regular petition process described in Sec.  618.205.
    (c) Notification of amendment. The Department will publish the 
amended certification in the Federal Register and on the Department's 
website. The Department will also notify the affected States and the 
State must notify any additional certified trade-affected workers, as 
required by Sec.  618.820.


Sec.  618.255  Judicial review of determinations.

    (a) General. A worker, group of workers, certified or recognized 
union, or authorized representative of such worker or group may 
commence a civil action for review of the determination by filing a 
complaint with the United

[[Page 51986]]

States Court of International Trade (USCIT) within 60 days after the 
date of publication of the notice of a final determination in the 
Federal Register, as provided under section 284 of the Act (19 U.S.C. 
2395).
    (b) Final determination. Only determinations issued under Sec.  
618.245(g) are final determinations for purposes of judicial review.
    (c) Certified record of the Department. Upon receiving a copy of 
the summons and complaint from the clerk of the USCIT, the Department 
will file with the court a certified record meeting the requirements of 
the rules of the USCIT. When the certified record contains confidential 
business information, the Department will file a public version of the 
record redacting the confidential business information, and a separate 
version that includes the confidential business information, in 
accordance with the rules of the USCIT.
    (d) Further proceedings. Upon remand by the USCIT, the Department 
will conduct an additional investigation and the Certifying Officer 
will make new or modified findings of fact and will modify or affirm 
the previous determination. Upon making this subsequent determination, 
the Certifying Officer will publish a summary of the determination and 
the reasons for the determination in the Federal Register, redacting 
any confidential business information from the published summary. The 
Certifying Officer also will file the determination upon remand and the 
record on which the determination is based with the USCIT, in 
accordance with the rules of USCIT.
    (e) Standard of review. The determination and findings of fact by 
the Certifying Officer are conclusive if the USCIT determines that they 
are supported by substantial evidence, as provided under section 284 of 
the Act (19 U.S.C. 2395).
    (f) Individual benefits denials. Appeals of denials of individual 
benefits are not determinations under section 222 of the Act and are 
not subject to review by the USCIT under section 284 of the Act.
    (g) Manner of filing. Requests for judicial review must be filed in 
accordance with the rules of the USCIT.


Sec.  618.260  Study regarding certain affirmative determinations by 
the Commission.

    (a) Upon notification from the Commission that it has begun an 
investigation under section 202 of the Act with respect to an industry, 
the Department must immediately begin a study of:
    (1) The number of workers in the domestic industry producing the 
like or directly competitive article who have been or are likely to be 
certified as eligible for adjustment assistance, which includes, but is 
not limited to, analysis of:
    (i) The estimated number of certified workers within the domestic 
industry named in the ITC affirmative determination;
    (ii) Information obtained during the investigation of TAA Program 
determinations;
    (iii) Responses from Domestic Industry Study;
    (iv) Information obtained by consultation with ITC Commission 
industry experts; and
    (v) Other pertinent workforce and trade-impact data of companies 
who are currently participating in the industry.
    (2) The extent to which the adjustment of such workers to the 
import competition may be facilitated through the use of the TAA 
Program, other Departmental programs and resources, and programs 
administered by other Federal agencies.
    (b) The report of the Department's study under paragraph (a) of 
this section must be made to the President not later than 15 days after 
the day on which the Commission makes its report under section 
202(f)(1) of the Act. The Department will also publish the report in 
the Federal Register and on the Department's website.


Sec.  618.265  Availability of information to the public.

    (a) Information available to the public. The Department posts all 
determinations on the Department's website at https://www.dol.gov/agencies/eta/tradeact. The Department also posts redacted versions of 
all petitions on the same website. Upon request to the Administrator of 
the Office of Trade Adjustment Assistance, members of the public may 
inspect petitions and other documents filed with the Administrator, 
transcripts of testimony taken and exhibits submitted at public 
hearings held under the provisions of this subpart, public notices 
concerning trade-affected worker assistance under the Act, and other 
reports and documents issued for general distribution, in accordance 
with the Department's record retention schedule, FOIA, and the Privacy 
Act.
    (b) Information not available to the public. Confidential business 
information must not be made available to the public.

Subpart C--Employment and Case Management Services


Sec.  618.300  Scope.

    This subpart describes the employment and case management services 
that the State must make available to trade-affected workers, either 
directly through the TAA Program or through arrangements with partner 
programs. This subpart requires States, under the Governor-Secretary 
Agreement at Sec.  618.804, to integrate the provision of benefits and 
services available to trade-affected workers under the TAA Program with 
the delivery of employment services and other assistance provided 
through the one-stop delivery system (established under title I of 
WIOA), as required by sections 235 and 239(a), (e), and (g) of the Act. 
It also implements the requirements of section 221(a)(2)(A) of the Act 
for the provision of rapid response assistance and appropriate career 
services described in Sec. Sec.  682.300 through 682.370, and 680.150 
of this chapter, respectively, for workers upon receipt of a petition 
filed covering a group of workers.


Sec.  618.305  The Trade Adjustment Assistance Program as a one-stop 
partner.

    (a) As provided by WIOA section 121(b)(1)(B)(vii), the TAA Program 
is a required one-stop partner under WIOA.
    (b) The State must ensure that the TAA Program complies with WIOA's 
one-stop partnership requirements at WIOA section 121(b)(1)(A)(i) 
through (v). This includes, among the other requirements, paying 
infrastructure costs where the TAA Program is being carried out.
    (c) The TAA Program must also comply with, and be a party to, the 
memorandum of understanding required under the regulations implementing 
WIOA at Sec.  678.500 of this chapter, where the TAA Program is being 
carried out.


Sec.  618.310  Responsibilities for the delivery of employment and case 
management services.

    (a) The State is responsible for providing information to workers 
about the TAA Program, as required in Sec.  618.816;
    (b) As part of the delivery of services, the State must:
    (1) Conduct intake, which includes interviewing each trade-affected 
worker and reviewing suitable training opportunities reasonably 
available to each worker under subpart F of this part;
    (2) Inform trade-affected workers of the employment services and

[[Page 51987]]

allowances available under the Act and this part, including the 
application procedures, the filing requirements for such services, and 
enrollment deadlines for receiving TRA, as described in subpart G of 
this part;
    (3) Determine whether suitable employment, as defined in Sec.  
618.110, is available, and assist in job search activities related to 
securing suitable employment;
    (4) Accept applications for training;
    (5) Provide information on which training providers offer training 
programs at a reasonable cost and with a reasonable expectation of 
employment following the completion of such training, and assist in 
acquiring such training;
    (6) Monitor the progress and attendance of trade-affected workers 
in approved training programs;
    (7) Develop and implement a procedure for determining whether to 
issue a training waiver and to review waivers to determine whether the 
conditions under which they were issued have changed, in compliance 
with subpart G of this part;
    (8) Provide access to workshops and other resources related to job 
search strategies, resume building, interviewing, and other topics 
available through the TAA Program or through the one-stop delivery 
system; and
    (9) Coordinate the administration and delivery of additional 
appropriate employment services, benefits, training, supportive 
services, and supplemental assistance for workers with partner programs 
for which the trade-affected worker may be eligible.
    (c) The State must make available the employment and case 
management services in paragraphs (c)(1) through (7) of this section to 
trade-affected workers who apply for or are seeking receipt of TAA 
Program benefits and services, and ensure that those workers are 
informed of the availability of:
    (1) Comprehensive and specialized assessment of skill levels and 
service needs, including through:
    (i) Diagnostic testing and use of other assessment tools; and
    (ii) In-depth interviewing and evaluation to identify employment 
barriers and appropriate employment goals.
    (2) Development of an individual employment plan (IEP) to identify 
employment goals and objectives, and appropriate training to achieve 
those goals and objectives.
    (3) Information on how to apply for financial aid, including 
referring workers to educational opportunity centers described in 
section 402F of the Higher Education Act of 1965, as amended (HEA) (20 
U.S.C. 1070a-16), where applicable, and notifying workers that they may 
request that financial aid administrators at institutions of higher 
education (as defined in section 102 of HEA (20 U.S.C. 1002)) use the 
administrators' discretion under section 479A of HEA (20 U.S.C. 1087tt) 
to use current-year income data, rather than preceding-year income 
data, for determining the amount of the workers' need for Federal 
financial assistance under title IV of HEA (20 U.S.C. 1070 et seq.).
    (4) Short-term prevocational services, including development of 
learning skills, communications skills, interviewing skills, 
punctuality, personal maintenance skills, and professional conduct to 
prepare trade-affected workers for employment or training.
    (5) Individual and group career counseling, including job search 
and placement counseling, during the period in which the worker is 
receiving a trade adjustment allowance or training under this chapter, 
and after receiving such training for purposes of job placement and 
employment retention.
    (6) Provision of employment statistics information, including the 
provision of accurate information relating to local, regional, and 
national labor market areas, including:
    (i) Job-vacancy listings in such labor market areas;
    (ii) Information on the job skills necessary to obtain the jobs 
identified in the job-vacancy listings described in paragraph (c)(6)(i) 
of this section;
    (iii) Information relating to local occupations that are in demand 
and the earning potential of those occupations; and
    (iv) Skills requirements for local occupations described in 
paragraph (c)(6)(iii) of this section.
    (7) Information relating to the availability of supportive 
services, available through partner programs, including services 
relating to childcare, transportation, dependent care, housing 
assistance, and needs related payments that are necessary to enable a 
trade-affected worker to participate in training.
    (d) To make available, with respect to the employment and case 
management services described in paragraph (c) of this section, means:
    (1) That the State must inform the trade-affected worker of the 
full suite of services available; and
    (2) That the State must offer and provide appropriate services to 
the trade-affected worker, as requested by the worker or deemed 
appropriate for the worker; and
    (3) That the State must document each service provided to the 
trade-affected worker and document the reason any service listed in 
paragraph (c) of this section was not provided. The documentation must 
be included in the worker's case file, either through case notes or as 
a stand-alone document.


Sec.  618.325  Integrated service strategies and Workforce Innovation 
and Opportunity Act co-enrollment.

    (a)(1) A State must co-enroll trade-affected workers who are 
eligible for WIOA's dislocated worker program. Workers may choose to 
decline co-enrollment in WIOA. A State cannot deny such a worker 
benefits or services under the TAA Program solely for declining co-
enrollment in WIOA.
    (2) A State must also make co-enrollment available to trade-
affected workers who are eligible for other one-stop partner programs 
to ensure that all necessary and appropriate services, including 
supportive services, are available to the worker.
    (b)(1) Trade-affected worker dislocated worker eligibility. Most 
trade-affected workers meet the eligibility criteria of a dislocated 
worker defined at WIOA section 3(15).
    (2) Partially separated worker and AAIW dislocated worker 
eligibility. In certain circumstances, such as a general announcement 
of a closure, partially separated workers and AAIWs may meet the 
eligibility criteria as a dislocated worker under WIOA and must also be 
co-enrolled.
    (3) Trade-affected worker dislocated worker ineligibility. Some 
trade-affected workers are ineligible for the WIOA dislocated worker 
program, including those that do not meet the Selective Service 
registration requirement, and will be exempt from the co-enrollment 
requirement in this section.


Sec.  618.330  Assessment of trade-affected workers.

    (a) The assessment process forms the basis for determining which 
TAA Program benefits and services, including training, are most 
appropriate to enable trade-affected workers to successfully become 
reemployed.
    (b) The State must schedule an initial assessment that provides 
sufficient time and information for the trade-affected worker to 
consider, request, and enroll in training or obtain a waiver of the 
training requirement in Sec.  618.720(g) to protect the worker's 
eligibility to receive TRA under subpart G of this part.
    (c) Assessments are administered with the cooperation of the trade-
affected worker and should include discussion of the worker's 
interests, skills, aptitudes, and abilities.

[[Page 51988]]

    (d) The results of assessments must be documented in the case file, 
either through case notes or as a stand-alone document.
    (e) If an assessment has already been administered by a partner 
program, it must be reviewed once a worker becomes a trade-affected 
worker to ensure it has the required components as listed in Sec.  
618.335 for an initial assessment and, if necessary, Sec.  618.345 for 
a comprehensive and specialized assessment. If the assessment(s) does 
not contain the required components, the assessment(s) must be 
supplemented by the State, in conjunction with the trade-affected 
worker, to ensure it is fully compliant with TAA Program requirements 
in this part.
    (f) The State must make the trade-affected worker aware of the 
advantages of receiving an assessment(s). However, a worker may refuse 
an assessment. Since portions of the assessment(s) are necessary to 
determine eligibility for certain TAA Program benefits, a worker's 
refusal to provide necessary information, either as part of the 
assessment or outside of the assessment process, may result in a denial 
of a those benefits. This is detailed further in the applicable benefit 
sections throughout this part.


Sec.  618.335  Initial assessment of trade-affected workers.

    (a) A State must carry out an initial assessment for each trade-
affected worker as part of the intake process described in section 
239(g) of the Act. When applicable, a State must use the results of an 
assessment developed by a partner program, supplemented if necessary, 
as described in Sec.  618.330(e).
    (b) The results of the initial assessment will determine the best 
service strategy to assist the trade-affected worker in obtaining 
reemployment and provide insight into which benefits and services under 
the TAA Program and partner programs would be most beneficial to the 
worker. The initial assessment of the availability of suitable 
employment to the worker in the local labor market must take into 
consideration the following factors:
    (1) Prevailing local labor market conditions, including the 
unemployment rate, local employer skill demands and hiring 
prerequisites;
    (2) The worker's knowledge, skills, and abilities from his or her 
education and previous employment;
    (3) Transferable skills that the worker may possess that would be 
of interest to other local employers;
    (4) Evaluation of a worker's skill levels (including literacy, 
numeracy, and English language proficiency), aptitudes, abilities 
(including skills gaps), and supportive service needs; and
    (5) Any barriers to the worker's reemployment, such as:
    (i) Lack of applicability of skills from the worker's present 
occupation to other occupations;
    (ii) Skills that are in excess supply in the labor market area; or
    (iii) Other barriers as outlined in WIOA section 3(24).
    (c) Based upon the information gathered in the initial assessment, 
described in paragraph (a) of this section, the State may:
    (1) Determine that suitable employment is available to the trade-
affected worker, and if so, the State must make available employment 
and case management services. If the worker disagrees with the 
determination, the State must make available to the worker a 
comprehensive and specialized assessment (under Sec.  618.345) to 
obtain additional information to determine whether the initial 
assessment was correct.
    (2) Determine that no suitable employment is available to the 
worker and, if so, the State must make available services as described 
in Sec.  618.310 (responsibilities for the delivery of employment and 
case management services) and a comprehensive and specialized 
assessment (as described in Sec.  618.345) to develop a comprehensive 
service strategy for the trade-affected worker.
    (d) If the State determines under paragraph (c) of this section 
that suitable employment is not available to a trade-affected worker, 
even with additional employment and case management services, the State 
must advise the worker to apply for training under subpart F of this 
part.


Sec.  618.345  Comprehensive and specialized assessment of trade-
affected workers.

    (a) The State must make available a comprehensive and specialized 
assessment to all trade-affected workers.
    (b) The comprehensive and specialized assessment must take into 
account the trade-affected worker's goals and interests as they relate 
to employment opportunities either in the worker's commuting area or, 
where there is no reasonable expectation of securing employment in the 
worker's commuting area and the worker is interested in relocation, the 
employment opportunities and demand in the area to which the worker 
proposes to relocate.
    (c) The comprehensive and specialized assessment must expand upon 
the initial assessment regarding the trade-affected worker's interests, 
skills, aptitudes, and abilities. This may include use of diagnostic 
testing tools and instruments and in-depth interviewing and evaluation 
to identify barriers to employment and appropriate employment goals. 
The in-depth interviewing of trade-affected workers must include 
discussion of training opportunities reasonably available to each 
trade-affected worker, as described in subpart F of this part; 
reviewing the opportunities with each trade-affected worker; and 
informing each trade-affected worker of the requirements for 
participating in training, including the enrollment deadlines required 
for TRA eligibility.
    (d) The State may use information from the comprehensive and 
specialized assessment to determine whether the trade-affected worker 
has met the six criteria for approval of training listed in subpart F 
of this part.


Sec.  618.350  Individual employment plans for trade-affected workers.

    (a) A State must:
    (1) Make available an IEP; and
    (2) Document an IEP for any trade-affected worker seeking training 
under subpart F of this part or a job search allowance under subpart D 
of this part, before the worker receives those benefits and services.
    (b) An IEP must use the results of the initial and, if available, 
comprehensive and specialized assessments to assist in documenting a 
strategy to provide the trade-affected worker with the services needed 
to obtain employment, including the items listed in paragraph (c) of 
this section.
    (c) An IEP must document:
    (1) The trade-affected worker's employment goal, including the 
targeted occupation and industry;
    (2) The training program proposed, if any;
    (3) Any services that will be needed by the worker to obtain 
suitable employment, including career services, supportive services 
provided through partner programs, and post-training case management 
services;
    (4) If applicable, any supplemental assistance (subsistence or 
transportation payments) required for participation in training and the 
basis for their calculation; and
    (5) The worker's responsibilities under the plan.
    (d) If an IEP has been previously developed with a trade-affected 
worker by a partner program, it must be reviewed once the worker 
becomes TAA Program-eligible to ensure it has the components required 
by paragraph (c) of this section. If the IEP does not contain the 
components, the IEP must be

[[Page 51989]]

supplemented by the State in conjunction with the worker to ensure it 
is fully compliant with the TAA Program requirements in this part.
    (e) The State must monitor the progress of the trade-affected 
worker in meeting the worker's responsibilities as listed in the IEP, 
including attendance and achievement in approved training programs.
    (f)(1) The State must modify the IEP as necessary to facilitate a 
successful performance outcome for the trade-affected worker.
    (2) The modification must be done with the worker's input.
    (3) At a minimum, the IEP must be modified when there is a change 
in the training program, receipt of supplemental assistance, or both.
    (g) The State must make the trade-affected worker aware of the 
advantages of receiving an IEP. However, a worker may refuse to 
complete an IEP. Since portions of the IEP are necessary to determine 
eligibility for job search allowances under subpart D of this part and 
training under subpart F of this part, a worker's refusal to provide 
necessary information, either as part of the IEP or outside of the IEP 
process, may result in a denial of a those benefits and services. This 
is detailed further in subparts D and F of this part.


Sec.  618.355  Knowledge, skills, and abilities of staff performing 
assessments.

    (a) Staff performing either the initial or comprehensive and 
specialized assessment must possess the following knowledge and 
abilities:
    (1) Knowledge of the local labor market;
    (2) Knowledge of local employer and occupation skill demands and 
hiring prerequisites, such as educational requirements and professional 
certifications;
    (3) The ability to identify transferable skills that a trade-
affected worker may possess that would be of interest to other local 
employers outside of the worker's present occupational area;
    (4) The ability to evaluate quickly a worker's ability to conduct a 
self-directed job search; and
    (5) The ability to identify barriers to a worker's employment that 
could be overcome with training and case management services.
    (b) The staff performing these initial and comprehensive and 
specialized assessments may be from any partner program.
    (c) Funds under section 235A(1) of the Act may be used to improve 
and maintain the knowledge and abilities of staff conducting 
assessments for trade-affected workers.


Sec.  618.360  Employment and case management services for trade-
affected workers in training.

    The State must make employment and case management services 
available, including placement and referrals to supportive services and 
follow-up services available through partner programs, to trade-
affected workers during training, and after completion of training, and 
for AAWs on a waiver from training.

Subpart D--Job Search and Relocation Allowances


Sec.  618.400  Scope.

    This subpart sets forth the conditions under which an AAW may apply 
for and receive a job search allowance to help the worker secure 
suitable employment outside the commuting area but within the United 
States. This subpart also sets forth the conditions under which an AAW 
may apply for and receive a relocation allowance to help the worker 
relocate to suitable employment secured outside the commuting area but 
within the United States.


Sec.  618.405  General.

    (a) A State must grant a job search allowance to an AAW to help the 
worker secure suitable employment within the United States if the AAW 
meets the requirements in this subpart. A job search allowance for 
activities outside of the worker's commuting area may be provided for 
costs including, but not limited to:
    (1) Travel to and attendance at job fairs and interviews;
    (2) Travel to and attendance at prevocational workshops;
    (3) Making an in-person visit with a potential employer who may 
reasonably be expected to have openings for suitable employment;
    (4) Completing a job application in person with a potential 
employer who may reasonably be expected to have openings for suitable 
employment;
    (5) Going to a local one-stop, copy shop, Post Office, or similar 
entity to print, copy, mail, email, or fax a job application, cover 
letter, and/or a resume;
    (6) Going to a local one-stop, public library, community center, or 
similar entity to use online job matching systems, to search for job 
matches, request referrals, submit applications/resumes, attend 
workshops, and/or apply for jobs; and,
    (7) Attending a professional association meeting for networking 
purposes.
    (b) A State must grant a relocation allowance to an AAW to help the 
worker and the worker's family relocate within the United States if the 
AAW meets the requirements in this subpart. A State may grant a 
relocation allowance to a worker only once under a certification. A 
State may grant a relocation allowance to only one member of a family 
for the same relocation, even if there are multiple AAWs in the same 
family. If more than one member of a family applies for a relocation 
allowance for the same relocation, then the State must pay the 
allowance to the AAW who files first, if that AAW is otherwise 
eligible.


Sec.  618.410  Applying for a job search allowance.

    (a) Forms. To receive a job search allowance, an AAW must apply to 
the State, using the State's process.
    (b) Submittal. An AAW must apply for a job search allowance before 
beginning a job search to be funded by such an allowance.


Sec.  618.415  Eligibility for a job search allowance.

    (a) Conditions. To be eligible for a job search allowance an AAW 
must:
    (1) File an application before either:
    (i) The later of the 365th day after either the date of the 
certification under which the AAW is covered, or the 365th day after 
the AAW's last total separation; or
    (ii) The 182nd day after the date of concluding approved training;
    (2) Be an AAW totally separated from the job covered under the 
certification when beginning the job search;
    (3) Receive a determination by the State that the AAW:
    (i) Cannot reasonably expect to secure suitable employment in the 
commuting area; and
    (ii) Can reasonably expect to obtain, in the area of the job 
search, either:
    (A) Suitable employment; or
    (B) Employment that pays a wage of at least the 75th percentile of 
national wages, as determined by the National Occupational Employment 
Wage Estimates, and otherwise meets the definition of suitable 
employment;
    (4) Receive a determination by the State that the worker cannot 
reasonably expect to secure suitable employment by alternatives to 
being physically present in the area of the job search, such as by 
searching and interviewing for employment by means of the internet and 
other technology;
    (5) Not previously have received a relocation allowance under the 
same certification; and
    (6) Complete a State-approved job search within 30 calendar days 
after the worker leaves the commuting area to begin the job search.

[[Page 51990]]

    (b) Completion of job search. (1) An AAW has completed a job search 
when the worker either:
    (i) Obtains a bona fide offer of employment; or
    (ii) Has, with State verification, as provided in Sec.  
618.420(a)(2), contacted each employer the worker planned to contact, 
or to whom the State or other one-stop partner referred the worker as 
part of the job search.
    (2) The job search is complete when one of the actions in paragraph 
(b)(1) of this section occurs, whichever comes first. For purposes of 
paragraph (b)(1)(i) of this section, ``bona fide'' means the offer of 
suitable employment is made in good faith by a prospective employer.


Sec.  618.420  Findings required for a job search allowance.

    (a) Findings by liable State. Before a liable State may approve 
final payment of a job search allowance, the liable State must:
    (1) Find that the AAW meets the eligibility requirements for a job 
search allowance specified in Sec.  618.415(a)(1) through (6); and
    (2) Verify that the worker contacted each employer the State 
certified or to whom the State or one-stop center referred the worker 
as part of the job search and must find that the worker completed the 
job search, as described in Sec.  618.415(b) within the time limits 
stated in Sec.  618.415(a)(6).
    (b) Assistance by agent State. (1) When an AAW files an application 
for a job search allowance to conduct a job search in an agent State, 
the agent State in which the worker conducts the job search is 
responsible for assisting the worker in conducting the job search, for 
assisting the liable State by furnishing any information required for 
the liable State's determination of the claim, and for paying the job 
search allowance.
    (2) The agent State must cooperate fully with the liable State in 
carrying out its activities and functions with regard to such 
applications. When requested by the liable State, the agent State must 
verify with the employer and report to the liable State whether the 
worker has obtained suitable employment, or a bona fide offer of 
suitable employment.


Sec.  618.425  Amount of a job search allowance.

    (a) Computation. The job search allowance is 90 percent of the 
total costs of an AAW's travel (as defined in paragraph (a)(1) of this 
section) and lodging and meals (as defined in paragraph (a)(2) of this 
section), up to the limit in paragraph (b) of this section:
    (1) Travel. The worker's allowable travel expenses may not exceed 
90 percent of the prevailing cost per mile by privately owned vehicle 
under 41 CFR chapters 300 through 304, the Federal Travel Regulation 
(FTR), found at https://www.gsa.gov/, for round trip travel by the 
usual route from the worker's home to the job search area, though other 
forms of transportation may be utilized.
    (2) Lodging and meals. The worker's allowable lodging and meals 
costs cannot exceed the lesser of:
    (i) The actual cost for lodging and meals while engaged in the job 
search; or
    (ii) 50 percent of the prevailing per diem allowance under the FTR, 
found at https://www.gsa.gov/, for the worker's job search area.
    (b) Limit. The AAW's total job search allowance under a 
certification may not exceed $1,250, no matter how many job searches 
the worker undertakes. If the worker is entitled to be paid or 
reimbursed by another source for any of these travel, lodging, and 
meals expenses, the State must reduce the job search allowance by the 
amount of the payment or reimbursement.
    (c) Choice of mode of transportation. With respect to the limits 
established in paragraph (a)(1) of this section, an AAW may elect to 
use a different mode of transportation than the one for which the State 
calculated the applicable reimbursement amount. However, the State must 
limit the reimbursement to the worker to the amount calculated under 
paragraph (a)(1) of this section.


Sec.  618.430  Determination and payment of a job search allowance.

    (a) Determinations. The State must promptly make and record 
determinations necessary to assure an AAW's eligibility for a job 
search allowance. Sections 618.820 (determinations of eligibility; 
notices to individuals) and 618.828 (appeals and hearings) apply to 
these determinations. States must include copies of such applications 
and all determinations by the State in the AAW's case file.
    (b) Payment. If the AAW makes a timely application, is covered 
under a certification, and is otherwise eligible, the State must make 
payment promptly after the worker has completed a job search and 
complied with paragraph (d) of this section, provided that funds are 
available for job search allowances.
    (c) Advances. Once the State determines that the AAW is eligible 
for a job search allowance, it may advance the worker up to 60 percent 
of the estimated amount of the job search allowance subject to the 
limit in Sec.  618.425(b), but not exceeding $750, within 5 days before 
the commencement of a job search. The State must deduct the advance 
from any payment under paragraph (b) of this section.
    (d) Worker evidence. After the AAW completes a job search, the AAW 
must certify to the State as to the employer contacts made and must 
provide documentation of expenses in accordance with FTR and Uniform 
Guidance at 2 CFR part 200. This may include receipts for all lodging, 
purchased transportation, or other expenses. If an advance the worker 
received was more or less than the actual allowance, the State must 
make an appropriate adjustment and pay the balance entitled, or the 
worker must repay the excess received.


Sec.  618.435  Job search program participation.

    (a) Requirements. An AAW who participates in an approved job search 
program (JSP), may receive reimbursement for necessary expenses of 
subsistence and transportation incurred for the worker's participation 
in the approved JSP, regardless of the worker's approval for, or 
receipt of, a job search allowance under Sec. Sec.  618.420 and 
618.430.
    (b) Approved JSP. A State may approve a JSP if:
    (1) The JSP is provided through WIOA, the public employment 
service, or any other Federal- or State-funded program, and meets the 
definition provided in Sec.  618.110; or
    (2) The JSP is sponsored by the firm from which the AAW has been 
separated.
    (c) JSP allowances. Subsistence and transportation costs, whether 
inside or outside the AAW's commuting area, must be approved for 
workers participating in JSPs in accordance with Sec.  618.640(a) and 
within available State funding levels.


Sec.  618.440  Applying for a relocation allowance.

    (a) Forms. To receive a relocation allowance, an AAW must apply to 
the State using the State's process.
    (b) Submittal. An AAW must apply for a relocation allowance and the 
State must approve the worker for a relocation allowance before the 
relocation begins. The State must make a timely determination on a 
relocation application submitted to allow the worker to promptly begin 
the relocation.


Sec.  618.445  Eligibility for a relocation allowance.

    (a) Conditions. To be eligible for a relocation allowance, the AAW 
must:
    (1) File an application before either:
    (i) The later of the 425th day after the date of the certification 
under which the

[[Page 51991]]

worker is covered, or the 425th day after the date of the worker's last 
total separation; or
    (ii) The 182nd day after the date the worker concluded training;
    (2) Be an AAW totally separated from adversely affected employment 
when the relocation begins;
    (3) Not have already received a relocation allowance under the same 
certification;
    (4) Relocate within the United States but outside the worker's 
commuting area;
    (5) Receive a determination by the State that the worker has no 
reasonable expectation of securing suitable employment in the commuting 
area, and has obtained either suitable employment or employment that 
pays a wage of at least the 75th percentile of national wages, as 
determined by the National Occupational Employment Wage Estimates, and 
otherwise meets the suitable employment requirements, or a bona fide 
offer of such employment, in the area of intended relocation;
    (6) Begin the relocation as promptly as possible after the date of 
certification but no later than:
    (i) 182 days after the worker filed the application for a 
relocation allowance; or
    (ii) 182 days after the conclusion of an approved training program, 
if the worker entered a training program that received supplemental 
assistance approved under Sec.  618.640(c) (subsistence payments) and 
(d) (transportation payments), for training outside the worker's 
commuting area; and
    (7) Complete the relocation, as described in Sec.  618.460(f), 
within a reasonable time as determined in accordance with FTR with the 
State giving consideration to, among other factors, whether:
    (i) Suitable housing is available in the area of relocation;
    (ii) The worker can dispose of the worker's residence;
    (iii) The worker or a family member is ill; and
    (iv) A member of the family is attending school, and when the 
family can best transfer the member to a school in the area of 
relocation.
    (b) Job search allowances. The State may not approve a relocation 
allowance and a job search allowance for an AAW at the same time. 
However, if the worker has received a job search allowance, the worker 
may receive a relocation allowance at a later time or receive a 
relocation allowance as a result of a successful job search for which 
the worker received a job search allowance.


Sec.  618.450  Findings required for a relocation allowance.

    (a) Findings by liable State. Before the liable State may approve 
final payment of a relocation allowance, the liable State must make the 
following findings:
    (1) That the AAW meets the eligibility requirements for a 
relocation allowance specified in Sec.  618.445(a)(1) through (7) and 
is not also simultaneously receiving a job search allowance as 
specified in Sec.  618.445(b);
    (2) That the worker submitted the application for a relocation 
allowance within the time limits specified in Sec.  618.445(a)(1);
    (3) That the worker began and completed the relocation within the 
time limitations specified in Sec.  618.445(a)(6) and (7); and
    (4) That the worker obtained suitable employment, or a bona fide 
offer of such suitable employment, in the area of intended relocation, 
in accordance with Sec.  618.445(a)(5). The liable State must verify 
(directly or through the agent State) the suitable employment, or the 
bona fide offer, with the employer.
    (b) Assistance by agent State. (1) When an AAW relocates to an 
agent State, the agent State is responsible for:
    (i) Assisting the worker in relocating to the State, completing an 
application for a relocation allowance with the liable State, and 
paying the relocation allowance; and
    (ii) Assisting the liable State by furnishing any information 
required for the liable State's determination on the claim.
    (2) The agent State must cooperate with the liable State in 
carrying out its activities and functions with regard to relocation 
applications. When requested by the liable State, the agent State must 
verify with the employer and report to the liable State whether the 
worker has obtained suitable employment, or a bona fide offer of 
suitable employment.


Sec.  618.455  Determining the amount of a relocation allowance.

    The AAW's relocation allowance includes the information in 
paragraphs (a) through (c) of this section, as applicable:
    (a) Reimbursement--(1) Travel. (i) The State may reimburse the AAW 
for up to 90 percent of the prevailing cost per mile by privately owned 
vehicle under the FTR, found at https://www.gsa.gov/, for travel from 
the AAW's old home to the AAW's new home.
    (ii) Separate travel of a family member or members who, for good 
cause and with the approval of the State, must travel separately to 
their new home, may also be reimbursed. For purposes of this paragraph 
(a)(1)(ii), good cause includes, but is not limited to, reasons such as 
a family member's health, schooling, job, or economic circumstances.
    (2) Lodging and meals. The State may reimburse the worker for 90 
percent of lodging and meal expenses for the worker and his or her 
family while they are in transit, but such costs may not exceed the 
lesser of:
    (i) The actual lodging and meals cost to the worker and his or her 
family while they are traveling; or
    (ii) 50 percent of the prevailing per diem allowance under the FTR, 
found at https://www.gsa.gov/, for the relocation area for those days 
while the worker and his or her family are traveling.
    (3) Movement of household goods. (i) The State may reimburse the 
worker for 90 percent of the allowable costs of moving the workers and 
family's household goods and personal effects in accordance with the 
FTR (41 CFR chapter 302). This includes 90 percent of the costs of 
moving by the most economical commercial carrier the State can 
reasonably expect the worker to use, moving by rental truck or trailer 
(for rental, mileage, and fuel), or moving a house trailer or mobile 
home. It also includes 90 percent of the costs of temporary storage of 
household goods for up to 60 days. In approving the move of a house 
trailer or mobile home, the State must follow the specific requirements 
of the FTR, found at https://www.gsa.gov.
    (ii) For a commercial carrier move of household goods or house 
trailer or mobile home, the worker must obtain an estimate of the 
moving cost and provide this to the liable State. The estimate may 
include the cost of insuring such goods and effects for their actual 
value or $40,000 as delineated in the FTR, whichever is less, against 
loss or damage in transit.
    (iii) If more economical, the State may make direct arrangements 
for moving and insuring a worker's household goods and personal effects 
with a carrier and insurer selected by the worker and may make payment 
of 90 percent of moving and insurance costs directly to the carrier and 
insurer. No such arrangement releases a carrier from liability 
otherwise provided by law or contract for loss or damage to the 
worker's goods and effects. Any contract for moving and insuring an 
AAW's household goods must provide that the United States must not be 
or become liable to either party for personal injury or property loss 
damage under any circumstances.
    (iv) The maximum net weight of the household goods relocated from 
the

[[Page 51992]]

worker's old home to the relocation area may not exceed that set by the 
FTR.
    (4) Lump sum. As part of the relocation allowance, the worker will 
receive a lump sum equivalent to three times the worker's average 
weekly wage, not to exceed $1,250.
    (b) Reduction. If the AAW is eligible to receive or has received 
moving expenses from any other source for the same relocation, the 
State must deduct the amount received from the amount of the relocation 
allowance as determined in paragraphs (a)(1) through (3) of this 
section.
    (c) Limitation. In no case may the State pay a travel allowance for 
the AAW or a family member more than once for a single relocation.


Sec.  618.460  Determinations and payment of a relocation allowance.

    (a) Determinations. The State must promptly make and record 
determinations necessary to assure an AAW's eligibility for a 
relocation allowance. Sections 618.820 (determinations of eligibility; 
notices to individuals) and 618.828 (appeals and hearings) apply to 
these determinations. The State must include copies of such 
applications and all determinations by the State in the AAW's case 
file.
    (b) Payment. If the AAW makes a timely application, is covered 
under a certification, and is otherwise eligible, the State must make 
payment as promptly as possible.
    (c) Travel allowances--(1) Payment. The State must pay the 
allowances computed under Sec.  618.455 no earlier than 10 days in 
advance of, and no later than at the time of, the AAW's scheduled 
departure to begin relocation. The State must make the payment for a 
family member approved for separate travel 10 days in advance of, or at 
the time of that family member's scheduled departure.
    (2) Worker evidence. After an AAW completes the relocation, the AAW 
must certify to the State the expenses associated with the relocation, 
in accordance with the FTR and Uniform Guidance in 2 CFR part 200. This 
may include receipts for all lodging, purchased transportation, or 
other expenses. If an advance the worker received was more or less than 
the actual allowance, the State must make an appropriate adjustment and 
pay the balance entitled, if any, or the worker must repay any excess 
received, if any.
    (d) Movement of household goods. The State must pay the amount 
equal to 90 percent of the estimate of the costs of moving the AAW's 
household goods by the most economical commercial carrier the State can 
reasonably expect the worker to use (as described in Sec.  
618.455(a)(3) (determining the amount of a relocation allowance) as 
follows:
    (1) Commercial carrier. If a commercial carrier moves the worker's 
household goods and personal effects, the State must provide the worker 
with an advance equal to 90 percent of the estimated cost of the move, 
including any other charges that the State has approved, such as 
insurance. The State must advance the funds to the worker no earlier 
than 10 days in advance of, and no later than at the time of, the 
scheduled shipment. If more economical, the State may make direct 
arrangements for moving and insuring a worker's household goods and 
personal effects with a carrier and insurer selected by the worker and 
may make payment of 90 percent of moving and insurance costs directly 
to the carrier and insurer subject to the conditions of Sec.  
618.455(a)(3)(iii). The State must deliver payment to the carrier and 
insurer no earlier than 10 days in advance of, and no later than at the 
time of, the scheduled shipment.
    (i) On completion of the move, as determined under paragraph (f) of 
this section, the worker must promptly submit to the State a copy of 
the carrier's bill of lading, including a receipt showing payment of 
moving costs.
    (ii) If the amount the worker received as an advance is greater 
than 90 percent of the actual approved moving costs, the worker must 
reimburse the State for the difference. If the advance the worker 
received is less than 90 percent of the actual moving costs approved by 
the State, the State must reimburse the worker for the difference.
    (2) Private truck and trailer, rental truck or trailer, or house 
trailer move--(i) Private vehicle with trailer. If the move is by 
private vehicle and trailer, the State must advance 90 percent of the 
estimated cost for the use of the private vehicle within 10 days in 
advance of the scheduled move.
    (ii) Truck and trailer rental. If the move is by rental truck or 
rental trailer, the State must advance 90 percent of the estimated 
rental cost within 10 days in advance of the scheduled move. The State 
may make payment to either the worker or the rental company.
    (iii) House trailer. If a house trailer or mobile home is moved by 
commercial carrier, the State must advance 90 percent of the approved 
estimated cost to the worker within 10 days in advance of the scheduled 
move. The State may make payment to either the worker or the carrier.
    (iv) Itemized receipt. Upon completion of the move, the worker must 
promptly submit an itemized receipt to the State for payment of the 
rental charges and fuel costs. If the amount the worker received as an 
advance is greater than 90 percent of the actual moving costs, the 
worker must reimburse the State for the difference. If the advance the 
worker received is less than 90 percent of the actual moving costs 
approved by the State, the State must pay the worker for the 
difference.
    (3) Temporary storage. If temporary storage, not to exceed 60 days, 
of household goods and personal effects is necessary for the 
relocation, then the State must advance 90 percent of the approved 
estimated cost within 10 days in advance of the scheduled move. The 
State may make payment to either the worker or the rental agency.
    (e) Lump sum allowance. The State must pay the lump sum allowance 
provided in Sec.  618.455(a)(4) when arrangements for the relocation 
are finalized, but not more than 10 days before the earlier of the 
AAW's anticipated departure from his or her old home, or the 
anticipated date of shipment of the worker's household goods and 
personal effects.
    (f) Relocation completed. An AAW completes a relocation when the 
worker and family, if any, along with household goods and personal 
effects are delivered to the new residence in the area of relocation or 
to temporary storage. If the worker moves no household goods and 
personal effects, then a worker completes relocation when the worker 
and family, if any, arrive in the area of relocation and establish a 
residence in the new area. When a family member is approved for 
separate travel, the later arrival of such family member does not alter 
the date on which the State must consider the relocation completed.

Subpart E--Reemployment Trade Adjustment Assistance


Sec.  618.500  Scope.

    This subpart provides the rules for RTAA. RTAA, authorized under 
section 246 of the Act, provides 50 percent of the difference between 
the wages received by the AAW at the time of separation from adversely 
affected employment and the wages received by the worker from 
reemployment for workers aged 50 and older who meet the eligibility 
criteria described in this subpart. This subpart identifies the 
eligibility criteria and the benefits available to AAWs who are 
eligible for RTAA.


Sec.  618.505  Individual eligibility.

    (a) Eligibility criteria. An AAW from a worker group certified 
under Sec.  618.225

[[Page 51993]]

may elect to receive RTAA benefits if the AAW:
    (1) Is at least 50 years of age;
    (2) Earns not more than, or is projected to earn not more than, 
$50,000 in reemployment wages each year during the eligibility period, 
as further defined in Sec.  618.520(a);
    (3) Earns less than, or is projected to earn less than, the AAW's 
annualized wages at separation, as further defined in Sec.  618.520(a);
    (4)(i) Is employed on a full-time basis as defined by the law of 
the State in which the worker is employed and is not enrolled in any 
training program approved under subpart F of this part; or
    (ii) Is employed at least 20 hours per week and is enrolled in a 
TAA approved training program; and
    (5) Is not employed at the firm, as further defined in paragraph 
(b) of this section, from which the worker was separated.
    (b) Eligibility-relevant definitions. For purposes of RTAA, the 
following definitions apply:
    (1) Firm. The State must determine on a case-by-case basis what 
constitutes the ``firm'' for purposes of determining RTAA eligibility 
based on the certification. If the Department issues the certification 
under subpart B of this part for a worker group in an appropriate 
subdivision of a firm, an AAW in that group is not eligible for RTAA 
upon a return to employment within that subdivision, but may be 
eligible for RTAA upon a return to employment at another subdivision of 
the firm. If, however, the Department issues the certification for a 
worker group composed of all workers from the firm rather than from a 
subdivision, then the worker is not eligible for RTAA based on a return 
to employment in any subdivision of that firm.
    (2) Successor-in-interest. The State must determine if the firm now 
employing the AAW is the same firm as the one from which the AAW was 
separated.
    (i) In making its determination, the State should first review the 
certification under which the worker was covered, look for any 
amendments to the certification, and compare the name and address of 
the firm in the certification to the name and address of the firm in 
which the worker has found reemployment. If they are the same, this is, 
in most cases, dispositive: The firms are the same and the worker is 
not eligible for RTAA.
    (ii) If, despite the information gathered under paragraph (b)(2)(i) 
of this section, it nonetheless remains unclear whether the firms are 
the same, the State may need to obtain further information about the 
firm reemploying the worker, from the employer and otherwise, to make 
that determination. To do so, the State should determine whether the 
firm at which the worker found reemployment is a ``successor-in-
interest'' to the firm from which the worker was separated. If the 
reemploying firm merged with, acquired, or purchased the assets of the 
firm from which the worker was separated, then the reemploying firm is 
a successor-in-interest.
    (iii) If the reemploying firm does not meet the criteria in 
paragraph (b)(2)(ii) of this section, or if that information is 
unavailable, then the State should consider the factors identified in 
paragraphs (b)(3)(i) through (vii) of this section to determine whether 
the reemploying firm is a successor-in-interest. If the State 
determines that the worker returned to employment with a successor-in-
interest to the firm from which the worker was separated, then the 
worker is not eligible for RTAA. The State must make the determination 
based on the individual application of the worker. A firm, together 
with any predecessor or successor-in-interest, or together with any 
affiliated firm controlled or substantially owned by substantially the 
same persons, is considered a single firm. If the State determines that 
the reemployment is with a successor-in-interest the State also must 
seek to identify any additional members of the worker group and notify 
them of their potential eligibility under the TAA Program, as provided 
in Sec.  618.816(e).
    (3) Successor-in-interest factors. A State may consider a firm a 
successor-in-interest to another firm, if a majority of the following 
factors are present:
    (i) There is continuity in business operations.
    (ii) There is continuity in location.
    (iii) There is continuity in the workforce.
    (iv) There is continuity in supervisory personnel.
    (v) The same jobs exist under similar conditions.
    (vi) There is continuity in machinery, equipment, and process.
    (vii) There is continuity in product/service.
    (4) Year. For purposes of RTAA, a year represents the 12-month 
period beginning with the first full week of qualifying reemployment.
    (c) Full-time employment. For purposes of RTAA, full-time 
employment is defined per State law in which the reemployment occurs.
    (1) If there is no State law addressing the definition of full-time 
employment referenced under paragraph (a)(4)(i) of this section, the 
State must issue a definition of full-time employment for RTAA 
purposes.
    (2) The State must verify reemployment and do so in accordance with 
State policies.
    (3) Where an AAW seeks to establish RTAA eligibility based upon 
more than one job, the State must combine employment hours in order to 
determine whether the worker has the number of hours needed to qualify 
for RTAA.
    (4) If the AAW is employed in more than one State, the State must 
determine full-time employment for the entire duration of the AAW's 
RTAA eligibility under a single certification under the law of the 
State in which the AAW has the lowest threshold of hours required to 
meet the definition of full-time employment.
    (d) Relevance of UI eligibility. UI eligibility is not a 
requirement for RTAA eligibility.
    (e) Eligible employment. (1) Employment for purposes of paragraph 
(a)(4) of this section must be covered employment under State law; 
however, employment may not include activity that is unlawful under 
Federal, State, or local law.
    (2) Work involving wages plus commission or piece work may be 
considered qualifying employment for the purpose of establishing RTAA 
eligibility, if it otherwise meets the criteria in paragraph (e)(1) of 
this section.
    (3) For purposes of meeting the requirements of paragraphs 
(a)(4)(i) and (ii) of this section, employment may include one or more 
jobs unless, in the case of paragraph (a)(4)(i) of this section, the 
law of the State in which the AAW is employed provides otherwise.
    (4) A State must count hours in which an AAW is on employer-
authorized leave as hours of work for purposes of meeting the 
requirements of paragraphs (a)(4)(i) and (ii) of this section unless, 
in the case of paragraph (a)(4)(i) of this section, the law of the 
State in which the worker is employed provides otherwise.


Sec.  618.510  Eligibility period for payments of Reemployment Trade 
Adjustment Assistance and application deadline.

    (a) Adversely affected worker who has not received TRA. (1) In the 
case of an AAW who has not received TRA, the worker may receive 
benefits as described in Sec.  618.520(a) for a period not to exceed 
104 weeks beginning on the earlier of:
    (i) The date on which the worker exhausts all rights to UI based on 
the

[[Page 51994]]

separation of the worker from the adversely affected employment that is 
the basis of the certification; or
    (ii) The date on which the worker first begins qualifying 
reemployment as described in Sec.  618.505(e).
    (2) Where a worker has more than one separation from adversely 
affected employment, the relevant separation for determining the date 
on which the ``worker exhausts all rights to UI'' referenced in 
paragraph (a)(1)(i) of this section is the worker's last separation 
from adversely affected employment that qualifies the worker as an AAW. 
The Department uses the last separation because that separation is the 
one that triggers the worker's application for RTAA. Accordingly, the 
State must determine the worker's last separation for lack of work from 
adversely affected employment before the RTAA application. This 
principle applies only to the determination of the eligibility period 
and does not apply to the calculation of RTAA payments, where wages at 
separation are defined as the annualized hourly rate at the time of the 
most recent separation, as explained in Sec.  618.520(a).
    (b) Adversely affected worker who has received TRA. In the case of 
an AAW who has received TRA, the worker may also receive RTAA benefits 
based on the same certification for a period of 104 weeks beginning on 
the date on which the worker first begins qualifying reemployment, 
reduced by the total number of weeks for which the worker received such 
TRA.
    (c) Applicable dates. To make the RTAA determination, the State 
will need to know the applicable dates for the AAW: The date of 
reemployment and either the date the worker exhausted all rights to UI, 
or the dates the worker began and ended receipt of TRA before the date 
of reemployment. These dates must occur within the 104-week eligibility 
period identified in the Act.
    (d) Age of AAW when obtaining RTAA-qualifying employment. An AAW 
may obtain employment before turning 50 years old and receive RTAA 
benefits after turning 50 years old, if the employment is determined to 
be RTAA-qualifying reemployment, as provided at Sec.  618.505(e), and 
the RTAA eligibility period established after obtaining such employment 
has not expired when the individual turned 50 years old.
    (e) Exception to filing deadline and eligibility periods. The 
filing deadline and eligibility periods in paragraphs (a) and (b) of 
this section do not apply where:
    (1) A negative determination on a petition filed under subpart B of 
this part has been appealed to the USCIT;
    (2) A certification of the worker group covered by that petition is 
later made; and
    (3) The delay in the certification is not attributable to the 
petitioner or the AAW.
    (f) Reasonable accommodation of filing deadline and eligibility 
periods. In the event the filing deadline and eligibility periods in 
paragraphs (a) and (b) of this section do not apply because the 
certification meets the conditions in paragraph (e) of this section, 
the filing deadline and eligibility periods for RTAA will be extended 
by the State for the period necessary to make RTAA reasonably available 
to AAWs.


Sec.  618.515  Continuing eligibility and timing of payments.

    (a) Continuing eligibility for RTAA. (1) Changing jobs during 
reemployment does not disqualify an otherwise eligible AAW from 
receiving subsequent RTAA payments for the remainder of the 104-week 
(2-year) eligibility period if the new reemployment meets the 
requirements of Sec.  618.505.
    (2) An AAW already receiving RTAA payments who has a period of 
unemployment will not be eligible to receive RTAA for that period. Upon 
reemployment, the AAW must notify the State. If the new reemployment 
meets the requirements of Sec.  618.505 and the worker meets all other 
eligibility requirements in this part, the AAW will be eligible to 
receive RTAA in accordance with the requirements of this section for 
the remaining portion of the 104-week (2-year) eligibility period.
    (3) If during a year during the 2-year eligibility period an AAW's 
cumulative wages exceed, or are projected to exceed, $50,000, the AAW 
will no longer be eligible to receive additional RTAA payments within 
that year. The AAW will be eligible for RTAA benefits in the next year 
and RTAA payments will resume until wages exceed, or are projected to 
exceed, $50,000, or until the $10,000 benefit limit is reached.
    (4) If the worker is employed part-time (at least 20 hours per 
week) and receiving RTAA while in TAA approved training, the State must 
verify participation in training on a monthly basis. Verification of 
participation in TAA approved training will be conducted in accordance 
with State policies. States may use training benchmarks, described at 
Sec.  618.660, as a method of verification of participation.
    (b) Timing of RTAA payments. The State must make RTAA payments on a 
regular basis, either weekly, biweekly, or monthly, for no more than a 
104-week (2-year) period for an AAW under any one certification, 
beginning no earlier than the first day of reemployment that satisfies 
the requirements of Sec.  618.505. An AAW may receive retroactive 
payments, in a lump sum, for payments for which the AAW was eligible, 
but for which the AAW had not yet applied.
    (c) Periodic verification of employment and reemployment wages. No 
less than once a month, the State must review whether an AAW receiving 
RTAA payments continues to meet the eligibility requirements of Sec.  
618.505 and determine whether changes have occurred in the AAW's 
reemployment wages, as described in Sec.  618.520(a).
    (d) Change in reemployment wages. The State must recompute the 
appropriate amount of the RTAA payments if, during its review under 
paragraph (c) of this section, it determines that an AAW's reemployment 
wages have changed.
    (1) If reemployment wages exceed, or are projected to exceed, 
$50,000 in a year during the eligibility period, then the State must 
immediately issue a determination that the AAW is ineligible for 
further RTAA payments, notify the AAW of this determination, and cease 
such RTAA payments.
    (2) If reemployment wages change but do not exceed $50,000 in a 
year during the eligibility period then the RTAA payment must be 
recomputed every time such a change in reemployment wages occurs. The 
State must then continue periodic verification in accordance with 
paragraph (c) of this section, or recommence periodic verification if 
RTAA payments resume in the second year after such scenario as 
described in paragraph (a)(3) of this section occurs.


Sec.  618.520  Benefits available to eligible adversely affected 
workers.

    (a) Payment. A RTAA-eligible AAW may receive a maximum of $10,000 
over a period of not more than 104 weeks (2 years). If the AAW received 
TRA, each week of TRA received reduces the total weeks of RTAA 
available by 1 week and reduces the total RTAA payment amount available 
in proportion to the reduction in the number of total weeks.
    (1) Total amount of benefits. RTAA supplements a worker's wages for 
up to 104 weeks (2 years) (reduced by the number of weeks of TRA 
received) or $10,000 (reduced in proportion to the reduction in the 
number of total weeks of TRA received), whichever occurs first, by an 
amount equal to the annualized wage differential as computed under 
paragraph (a)(2) of this

[[Page 51995]]

section for an AAW employed full-time or paragraph (a)(3) of this 
section for an AAW employed less than full-time.
    (2) Annualized wage differential for initial eligibility of an AAW 
employed full-time. This amount is equal to 50 percent of: The AAW's 
annualized separation wages (as computed under paragraph (a)(2)(i) of 
this section) minus the amount of the AAW's annualized reemployment 
wages (as computed under paragraph (a)(2)(ii) of this section).
    (i) Annualized separation wages are the product of the AAW's hourly 
rate during the last full week of the AAW's regular schedule in 
adversely affected employment, multiplied by the number of hours the 
AAW worked during the last full week of such employment, multiplied by 
52. The computation of annualized wages at separation excludes 
employer-paid health insurance premiums and employer pension 
contributions, as well as bonuses, severance payments, buyouts, and 
similar payments not reflective of the AAW's weekly pay. [(hourly rate 
x hours worked) x 52]
    (ii) Annualized reemployment wages are the product of the AAW's 
hourly rate during the first full week of reemployment, multiplied by 
the number of hours the AAW worked during the first full week of such 
reemployment, multiplied by 52 [(hourly rate x hours worked) x 52]. If 
the AAW's wages from reemployment change during the eligibility period, 
then the State must recompute the AAW's annualized wages from 
reemployment at the new hourly wage and must likewise recompute the 
appropriate RTAA payment as required by Sec.  618.515(d). The 
computation of annualized wages from reemployment excludes employer-
paid health insurance premiums and employer pension contributions, as 
well as bonuses, severance payments, buyouts, and similar payments not 
reflective of the AAW's weekly pay.
    (3) Annualized wage differential for initial eligibility of an AAW 
employed less than full-time. This amount, for an AAW employed at least 
20 hours per week and enrolled in TAA approved training, is the 
annualized wages as computed under paragraph (a)(2) of this section 
multiplied by the ratio of the AAW's number of weekly hours of 
reemployment to the AAW's number of weekly hours of employment at the 
time of separation, but in no case more than 50 percent.
    (4) Adjustment to total amount of RTAA benefits for AAWs who 
received TRA. A State must adjust of the maximum RTAA benefit for an 
RTAA-eligible AAW who has received TRA. The RTAA-eligible AAW may 
receive up to the adjusted RTAA benefit as described in this section 
within the eligibility period as provided in Sec.  618.510(b). RTAA 
eligibility is terminated once the AAW reaches either the number of 
weeks permitted pursuant to Sec.  618.510 or the adjusted RTAA benefit. 
The adjusted RTAA benefit is calculated by subtracting the number of 
TRA paid weeks from the 104-week RTAA eligibility period to determine 
the percentage of reduced weeks that payments may be made. The maximum 
payable benefit of $10,000 is then reduced by the same percentage. Once 
the reduction in RTAA payable weeks and the reduction in the RTAA total 
payable are reduced by the same percentage, they become the new maximum 
number of payable weeks and maximum payable benefit.
    (b) Training and related services. Recipients of RTAA are eligible 
to receive training approved under subpart F of this part and 
employment and case management services under subpart C of this part.
    (c) Job search and relocation allowances. Recipients of RTAA are 
eligible to receive job search and relocation allowances under subpart 
D of this part, subject to the eligibility requirements and rules of 
subpart D.
    (d) HCTC. Recipients of RTAA are eligible to apply for or claim the 
HCTC, if available.
    (e) TRA. Once an AAW has received a payment under RTAA, the AAW is 
no longer eligible for TRA under the same petition. Receipt of TRA 
prior to RTAA will result in a reduction of RTAA benefits as described 
at paragraph (a)(4) of this section.


Sec.  618.525  Determinations, redeterminations, and appeals.

    (a) Determinations, redeterminations, and appeals. States must 
apply the requirements of Sec. Sec.  618.820 (determinations of 
eligibility; notices to individuals) and 618.828 (appeals and 
hearings), respectively, to all determinations, redeterminations, and 
appeals under this subpart.
    (1) Before issuing a determination or redetermination, the State 
must verify and document the AAW's age, reemployment, and wages in 
determining whether the worker has met eligibility requirements of 
Sec.  618.505(a).
    (2) A determination of eligibility issued to an AAW must include a 
notice that the benefit amount will be regularly recomputed (as 
required by Sec.  618.515(d)) and will change if the eligible AAW's 
reemployment wages change.
    (3) An AAW denied individual eligibility based on nonqualifying 
reemployment may file a new application for a subsequent reemployment.
    (4) A State may approve an RTAA payment retroactively if an AAW 
becomes reemployed before the Department issues a certification under 
subpart B of this part, provided that the AAW otherwise meets the 
eligibility requirements of Sec.  618.505(a).
    (b) Recordkeeping requirements. The recordkeeping and disclosure of 
information requirements of Sec.  618.852 apply to the State's 
administration of RTAA.


Sec.  618.530  Reductions of Reemployment Trade Adjustment Assistance 
payments; priority of payments.

    (a) Ordered child support payments. State laws regarding deductions 
of payments from UI, TRA, and RTAA must comply with the Social Security 
Act (SSA). SSA section 303(e)(1) defines child support obligations as 
only including obligations which are being enforced pursuant to a plan 
described in section 454 of SSA which has been approved by the 
Secretary of Health and Human Services under part D of title IV of SSA. 
SSA does not otherwise permit deductions for alimony or for child 
support.
    (b) Priority of UI payments. RTAA does not fit into priority of 
payments under UI because RTAA is related to employment, not 
unemployment. UI and RTAA are two separate programs that operate 
independently of one another.

Subpart F--Training Services


Sec.  618.600  Scope.

    This subpart sets forth the conditions and procedures under which a 
trade-affected worker may apply for and receive training to help secure 
reemployment. Training provided under this subpart must, at a 
reasonable cost and as quickly as possible, assist a trade-affected 
worker in obtaining the necessary skills to have a reasonable 
expectation of reemployment. All else being equal, States should prefer 
training that replaces 100 percent or more of a trade-affected worker's 
wages in adversely affected employment or that qualifies as suitable 
employment.


Sec.  618.605  General procedures.

    (a) Assessments. The State must ensure and document that every 
trade-affected worker has an initial assessment and that a 
comprehensive and specialized assessment is made

[[Page 51996]]

available, as described in subpart C of this part. If a worker refused 
to take an assessment, the information necessary to determine 
eligibility for training must be documented. If a trade-affected worker 
has an IEP, the assessment results must support the training program 
set out in the worker's IEP, as described in subpart C of this part, 
before an application for training is approved. As with assessments, if 
a worker refused to develop an IEP, the information necessary to 
determine eligibility for training must be documented.
    (b) Applications. Applications for training, including requests for 
TAA Program-funded transportation and subsistence payments, must be 
made to the State in accordance with any policies and procedures 
established by the State.
    (c) Determinations. Decisions on selection for, approval of, or 
referral of a trade-affected worker to training, including whether to 
provide TAA Program-funded transportation and subsistence payments, 
under this subpart, or a decision with respect to any specific training 
or nonselection, nonapproval, or nonreferral for any reason is a 
determination to which Sec. Sec.  618.820 (determinations of 
eligibility; notices to individuals), 618.824 (liable State and agent 
State responsibilities), and 618.828 (appeals and hearings) apply.
    (d) Training opportunities. (1) The State must explore, identify, 
and secure training opportunities to ensure trade-affected workers 
return to employment as soon as possible. States must use all necessary 
and reasonable means to find alternatives when local training resources 
cannot adequately train trade-affected workers for reemployment. 
Training resources may be inadequate when they cannot train workers 
quickly, or at a reasonable cost, or equip workers with skills that 
meet the demands of the job market.
    (2) When available training is inadequate, TAA Program funds may be 
used to create customized, group training opportunities in response to 
a particular dislocation event. Funds may be used for trainings that 
provide intensive remedial education classes, English language 
training, or contextualized occupational training, which combines 
academic and occupational training. These group trainings must adhere 
to the principles described in Sec.  618.600.
    (3) States are required to coordinate with other public and private 
agencies, in cooperation with local workforce development boards 
(LWDBs) established under WIOA, to ensure a wide-range of training 
opportunities are available to trade-affected workers in demand 
occupations.
    (e) Timing of application and approval of training. A trade-
affected worker may apply for training and a State may approve training 
at any time after the certification date on which his or her worker 
group is certified under subpart B of this part, without regard to 
whether such worker has applied for or exhausted all rights to any UI 
to which the worker is entitled.


Sec.  618.610  Criteria for approval of training.

    The State must consult the trade-affected worker's assessment 
results and IEP, if available, as described respectively under 
Sec. Sec.  618.345 and 618.350, before approving an application for 
training. Training must be approved for a trade-affected worker if the 
State determines that all of the criteria in paragraphs (a) through (f) 
of this section are met:
    (a) Criterion 1. There is no suitable employment available for the 
trade-affected worker.
    (1) There is no suitable employment available for a trade-affected 
worker in either the commuting area or another area outside the 
commuting area to which the worker intends to relocate, and there is no 
reasonable prospect of such suitable employment becoming available for 
the worker in the foreseeable future.
    (2) If a training program, or an application for training, is 
denied under paragraph (a)(1) of this section, the State must document 
the availability of suitable employment through traditional and real-
time labor market information including, but not limited to, 
projections data, job postings, and job vacancy surveys.
    (b) Criterion 2. The trade-affected worker would benefit from 
appropriate training.
    (1) The worker would benefit from appropriate training when 
training, skills training, or remedial education would increase the 
likelihood of obtaining employment. Appropriate training should improve 
the worker's chances of obtaining employment at higher wages than in 
the absence of training or place the worker on a pathway to do so.
    (2) The worker must have the knowledge, skills, and abilities to 
undertake, make satisfactory progress in, and complete the training 
program.
    (c) Criterion 3. There is a reasonable expectation of employment 
following completion of such training. Given the labor market 
conditions expected to exist at the time of the completion of the 
training program, a reasonable expectation, fairly and objectively 
considered, exists that the trade-affected worker is likely to find 
employment, using the skills and education acquired while in training, 
upon completion of approved training. The labor market conditions 
considered must be limited to those in the worker's commuting area, or 
in the area where the worker intends to relocate.
    (1) ``A reasonable expectation of employment'' does not require 
that employment opportunities for the worker be available, or offered, 
immediately upon the completion of the approved training program. When 
initially approving such training, there must be a projection, based on 
labor market information, of employment opportunities expected to exist 
at the time of completion of the training program.
    (2) The State must measure expected job market conditions using 
pertinent labor market data, including but not limited to job order 
activity, short-term projections data, job vacancy surveys, business 
visitation programs, and local and regional strategic plans. This labor 
market information should be documented in the trade-affected worker's 
case file. The State should also work with the LWDBs and their one-stop 
partners, especially business team members, to understand current labor 
market conditions and opportunities for work-based learning.
    (3) When a worker desires to relocate within the United States, but 
outside the worker's present commuting area, upon completion of 
training, the State must document the labor market information, 
described in paragraph (c)(2) of this section, for the area of the 
planned relocation.
    (4) A reasonable expectation of employment may exist in a limited 
demand occupation for a single, trained worker in the worker's 
commuting area or in an area to which the worker desires to relocate. A 
limited demand for such an occupation does not preclude the approval of 
training in an occupation where the State has determined that there is 
a reasonable expectation that the worker can secure employment in that 
occupation. States must verify with businesses in the commuting area or 
in the area of intended relocation that demand exists for an individual 
with such training. These efforts must be documented in the trade-
affected workers case file. Before approving training in occupations 
with limited demand, the State must consider the number of individuals 
currently enrolled in training that are likely to meet that

[[Page 51997]]

demand before enrolling additional workers in training for that 
occupation.
    (5) A State may approve a training program in an occupation if it 
finds that there is a reasonable expectation that the training will 
lead to self-employment in the occupation for which the worker requests 
training and that such self-employment will provide the worker with 
wages or earnings at or near the worker's wages in adversely affected 
employment.
    (6) Training programs that consist solely of OJT or contain an OJT 
component are not approvable if they are not expected to lead to 
suitable employment, with the employer providing the OJT, in compliance 
with section 236(c)(1)(B)(i) of the Act.
    (d) Criterion 4. Training is reasonably available to the trade-
affected worker. In determining whether training is reasonably 
available, States must first consider training opportunities available 
within the worker's commuting area. States may approve training outside 
the commuting area if none is available at the time in the worker's 
commuting area. Whether the training is in or outside the commuting 
area, the training program must be available at a reasonable cost as 
prescribed in paragraph (f) of this section.
    (e) Criterion 5. The trade-affected worker is qualified to 
undertake and complete such training. States must ensure the following:
    (1) The worker's knowledge, skills, abilities, educational 
background, work experience, and financial resources are adequate to 
undertake and complete the specific training program being considered.
    (2) Any initial assessment, comprehensive and specialized 
assessment, and IEP developed under subpart C of this part must be 
consulted to support the trade-affected worker's ability to undertake 
and complete the training program.
    (3) Where the worker's remaining available weeks of UI and TRA 
payments will not equal or exceed the duration of the training program, 
that the worker will have sufficient financial resources to support 
completion of the training program within the time limits noted in 
Sec.  618.615(d). In making this determination, the State must 
consider:
    (i) The worker's remaining weeks of UI and TRA payments in relation 
to the duration of the proposed training program;
    (ii) Other sources of income support available to the worker, 
including severance, earnings of other family members, and other family 
resources;
    (iii) Other fixed financial obligations and expenses of the worker 
and family;
    (iv) The availability of Federal student financial assistance or 
any State-funded student financial assistance or any private funding 
designated for student financial assistance including, but not limited 
to, nongovernmental scholarships, awards, or grants; and
    (v) Whether or not the worker is employed while attending training.
    (4) The State must document whether or not the trade-affected 
worker has sufficient financial resources to complete the training 
program that exceeds the duration of UI and TRA payments.
    (5) If a worker has insufficient financial resources to complete 
the worker's proposed training program that exceeds the duration of UI 
and TRA payments, then the State must not approve that training program 
and must instead consider other training opportunities available to the 
worker.
    (f) Criterion 6. Such training is suitable for the trade-affected 
worker and available at a reasonable cost.
    (1) Suitable for the worker. The training program being considered 
must address the criteria set out in paragraphs (e)(1) and (2) of this 
section and be determined by the State to be appropriate given the 
worker's knowledge, skills and abilities, background, and experience 
relative to the worker's employment goal, and criteria set out in 
paragraph (c) of this section.
    (2) Available at a reasonable cost. (i) Costs of a training program 
may include, but are not limited to, tuition and related expenses 
(e.g., books, tools, computers and other electronic devices, internet 
access, uniforms and other training-related clothing such as goggles 
and work boots, laboratory fees, and other academic fees required as 
part of the approved training program) as well as supplemental 
assistance (subsistence expenses and transportation expenses as 
described in Sec.  618.640(c) and (d)). States must pay the costs of 
initial licensing and certification tests and fees where a license or 
certification is required for employment.
    (A) The State must ensure and document that the training program 
costs are reasonable by researching costs for similar training 
programs, whether it is classroom or work-based training.
    (B) Related expenses must be necessary for the worker to complete 
the training program. Other options should be explored before 
purchasing equipment or related materials.
    (ii) Available at a reasonable cost means that training must not be 
approved at one provider when, all costs being considered, training 
better or substantially similar in quality, content, and results can be 
obtained from another provider at a lower total cost within a similar 
time frame. Training must not be approved when the costs of the 
training are unreasonably high in comparison with the average costs of 
training other workers in similar occupations at other providers. The 
State may approve a higher cost training if that training is reasonably 
expected to result in a higher likelihood of employment, employment 
retention, or greater earnings, or to return the worker to employment 
in a significantly shorter duration.
    (iii) Training at facilities outside the worker's commuting area 
requiring transportation or subsistence payments that add substantially 
to the total cost of the training program may not be approved if other 
appropriate training is available in the commuting area at a lower 
cost, unless the exception described in paragraph (f)(2)(ii) of this 
section applies.
    (iv) Approval of training under paragraph (f) of this section 
(Criterion 6) is also subject to the provisions of Sec.  618.650.


Sec.  618.615  Limitations on training approval.

    (a) One training program per certification. (1) Except as provided 
under paragraph (d)(4) of this section, no trade-affected worker may 
receive more than one approved training program under a single 
certification.
    (2) A training program may be amended, as needed, in compliance 
with Sec.  618.665.
    (3) A training program may consist of multiple forms of training, 
including any or all of the types of training identified in Sec.  
618.620, subject to any restrictions or eligibility requirements that 
may exist.
    (b) Full-time or part-time training. A State may approve a training 
program on a full-time or part-time basis. A trade-affected worker's 
approved training program may consist of either part-time or full-time 
training, or a combination of both. A worker may switch from part-time 
to full-time training or from full-time to part-time training during 
the period of the worker's participation in the program. The training 
program must be amended each time this occurs, in accordance with Sec.  
618.665.
    (1) Full-time. Full-time training means that the training is in 
accordance with the definition of full-time training provided in Sec.  
618.110.
    (2) Part-time. (i) A State may approve part-time training. Part-
time training is any training program that is not full-

[[Page 51998]]

time in accordance with the established standards of the training 
provider. The maximum duration for approved training provided in 
paragraph (d)(3)(i) of this section also applies to part-time training.
    (ii) A worker enrolled in part-time training is not eligible for 
TRA under subpart G of this part, including a worker who ceases full-
time training to engage in part-time training. The training approval 
requirements found in this section also apply to part-time training.
    (iii) A worker may participate in part-time training while employed 
in either part-time or full-time employment.
    (iv) The State must clearly inform the worker, before the worker 
chooses part-time training, that TRA is not available to workers in 
approved part-time training and that the worker may lose eligibility 
for the HCTC, if available, while engaged in part-time training.
    (v) As provided in Sec.  618.780(b)(1)(i), a worker may not be 
determined to be ineligible or disqualified for UI, because the worker 
is enrolled in training approved under Sec.  618.610, including part-
time training.
    (vi) As further described at Sec.  618.780(b)(1)(ii), State or 
Federal UI statutes relating to the able, available, or active work 
search requirements as well as refusal to accept work will not 
disqualify a worker for UI or other program benefits, during any week 
of training approved under Sec.  618.610, including part-time training.
    (c) Previous approval of training under other law. When a TAA 
Program petition has been filed by or on behalf of a group of workers 
but a determination of group eligibility has not been made, training 
may be approved for a worker under another State or Federal law or 
other authority. Training approved for a worker under another State or 
Federal law or other authority is not training approved under Sec.  
618.610. After eligibility has been determined, any such training may 
be approved under Sec.  618.610 (criteria for approval of training), if 
it meets all of the requirements and limitations of Sec.  618.610 and 
the other provisions of this subpart. Such approval must not be 
retroactive for any of the purposes of this part, including payment of 
the costs of the training and payment of TRA to the trade-affected 
worker participating in the training, except in the case of a 
redetermination or decision reversing a training denial as addressed in 
Sec.  618.828(d), in which case the approval must be retroactive to the 
date of that denial. Systems must be in place to accommodate a change 
in funding seamlessly, as appropriate, after TAA Program training 
program approval is obtained. The cost of training must shift to the 
TAA Program at the next logical break in training--such as the end of a 
semester--for workers who become eligible for the TAA Program and whose 
training is approved under the TAA Program. Training approved under 
other programs may be amended by the TAA Program to allow a worker 
additional training in order to meet additional retraining needs 
identified in the worker's IEP.
    (d) Length of training. The State, in determining whether to 
approve a training program, must determine the appropriateness of the 
length of training, as follows:
    (1) Time necessary to achieve desired skill level. The training 
must be of suitable duration to achieve the desired skill level in the 
shortest possible time, and not in excess of, the limits established in 
paragraph (d)(3) of this section.
    (2) Factors. Factors that may impact the length of training 
include, but are not limited to, the trade-affected worker's employment 
status (full- or part-time) under Sec.  618.630 (Training of reemployed 
trade-affected workers), the need for supportive services from partner 
programs, and breaks in training due to class schedules and 
availability.
    (3) Duration. (i) Except as otherwise provided for OJT, 
apprenticeship, and the exception provided in paragraph (d)(4) of this 
section, the maximum duration for approvable training under the TAA 
Program is 130 weeks.
    (ii) Only weeks spent in actual training are counted. Scheduled 
breaks in training, as provided in Sec.  618.760, are not counted.
    (iii) If a training program satisfies the duration requirement of 
paragraph (d)(3)(i) of this section but will extend beyond the period 
during which TRA is available, the State must determine, under Sec.  
618.610(e)(3) (criteria for approval of training), whether the worker 
has sufficient personal resources (i.e., funds for the worker's living 
expenses) to support himself or herself while completing the training, 
while not requiring the worker to obtain such funds as a condition of 
training approval. The worker must attest to the State that he or she 
has sufficient resources to sustain himself or herself while in 
training.
    (4) Exception for certain workers who perform a period of duty in 
the Uniformed Services. A member of one of the reserve components of 
the U.S. Armed Forces who serves a period of duty will have the period 
for training, under paragraph (a)(3) of this section, suspended upon 
being called up to duty, provided the requirements specified in 
paragraphs (a)(4)(i) through (iii) of this section are met. Any such 
reserve component member may either resume training upon discharge from 
active service for the training period that remained at the time the 
reservist left the training program to report for active duty, or be 
allowed to repeat portions of the training if doing so is necessary for 
completion of the approved training program or, where appropriate, 
begin a new approved training program. Where the reservist repeats a 
training program or begins a new training program, the reservist will 
be entitled to a new 130-week period to complete approved training. To 
be eligible to resume, repeat, or begin a new approved training 
program, the reservist must meet the following requirements:
    (i) Before completing training under this subpart, the worker has 
given prior oral or written notice of the active duty service to the 
State, unless providing such notice is precluded by military necessity 
or is otherwise impossible or unreasonable.
    (ii) The returning service member must apply to the State for 
training within 90 days following release from active duty service.
    (iii) For purposes of the exception in this paragraph (d)(4), 
period of duty means:
    (A) Serves on active duty for a period of more than 30 days under a 
call or order to active duty of more than 30 days; or
    (B) In the case of a member of the Army National Guard of the 
United States or Air National Guard of the United States, performs 
full-time National Guard duty under 32 U.S.C. 502(f) for 30 consecutive 
days or more when authorized by the President or the Secretary of 
Defense for the purpose of responding to a national emergency declared 
by the President and supported by Federal funds.
    (e) Training outside the United States. A trade-affected worker 
must not be approved for training under this subpart for any training 
that is conducted totally or partially at a location outside the United 
States or if the worker is physically located outside the United States 
while participating in training. For distance training, this means both 
the provider and participant must be located within the United States.


Sec.  618.620  Selection of training program.

    (a) Standards and procedures for selection of training. The State 
must document the standards and procedures used to select training 
providers and training(s) in which the training

[[Page 51999]]

program under this subpart will be approved.
    (1) In determining the types of training to be approved and 
provided under the standards, the State should consult with partner 
agencies, including State partner agencies (e.g., State apprenticeship 
agencies or Federal Offices of Apprenticeship located in the States), 
WIOA one-stop partners, local employers, appropriate labor 
organizations, local educational organizations, the LWDB, State and 
local apprenticeship programs, local advisory councils established 
under the Strengthening Career and Technical Education for the 21st 
Century Act (Pub. L. 115-224 (2018), as codified at 20 U.S.C. 2301 et 
seq.), and postsecondary institutions.
    (2)(i) States may choose an eligible training provider (ETP) 
established under WIOA section 122 without establishing additional 
standards or procedures under the TAA Program.
    (ii) As provided in section 236 of the Act, States must not limit 
training approved under this section to only programs on the ETP list 
under title I of WIOA.
    (b) Training types. Eligible trade-affected workers must be 
provided training using either one, or a combination of, the following 
methods:
    (1) Work-based training, such as apprenticeships, OJT, or 
customized training, may be approved for AAWs. Customized training with 
the worker's current employer may only be approved for AAIWs if the 
training is for a position other than the AAIW's threatened position. 
See Sec.  618.655(c)(2). AAIWs must not be approved for OJTs. See Sec.  
618.655(c)(1). The State must inform the worker of the potential 
negative effects of work-based training on TRA and the HCTC, if 
available; or
    (2) Institutional training, including training at public area 
career and technical education schools, as well as community colleges, 
may be approved alone or in combination with work-based training. This 
also includes distance learning, including online training, where a 
worker may complete all or part of an educational or vocational program 
in a geographical location apart from the institution hosting the 
training program, and where the final certificate or degree conferred 
is equivalent in standard of achievement and content to the same 
program completed on campus or at another institutional training 
location.
    (i) A provider of the distance learning must be based in the United 
States for training provided to be approved. In addition, the worker 
must be physically within the United States when participating in 
distance learning to remain eligible for benefits under the Act.
    (ii) Distance learning is subject to all training approval criteria 
described in this subpart.
    (iii) The State must establish and monitor the milestones of a 
distance-learning program based on the worker's IEP, as described in 
subpart C of this part, if available.
    (iv) A worker who does not meet the requirements or milestones of a 
distance-learning program may be determined to have ceased 
participation in training, as described in Sec.  618.780(b)(3)(ii).
    (3) Higher education includes any training or coursework at an 
accredited institution, as described in section 102 of the Higher 
Education Act of 1965, as amended (20 U.S.C. 1002), including training 
or coursework for the purpose of obtaining a degree or certification, 
or for completing a degree or certification that the worker had begun 
previously at an accredited institution of higher education. Higher 
education may be approved alone or in combination with work-based 
training. The distance learning requirements in paragraph (b)(2) of 
this section also apply to this paragraph (b)(3).
    (c) Other training. In addition to the training programs discussed 
in paragraph (b) of this section, training programs that may be 
approved under Sec.  618.610 (criteria for approval of training) 
include, but are not limited to:
    (1)(i) Any program of remedial education, including ABE courses and 
other remedial education courses, ELA courses, and HSE preparation 
courses.
    (ii) Remedial education may occur before, or while participating 
in, the requested training program;
    (2) Career and technical education;
    (3) Any training program approvable under Sec.  618.610 for which 
all, or any portion, of the costs of training the trade-affected worker 
are paid:
    (i) Under any other Federal or State program other than the TAA 
Program; or
    (ii) From any source other than this part;
    (4) Any training program provided by a State pursuant to title I of 
WIOA or any training program approved by an LWDB established under 
section 102 of WIOA;
    (5) Any program of prerequisite education or coursework required by 
a training provider before advancing to further training; or
    (6) Any other training program approved by the State that complies 
with this subpart.
    (d) Advanced degrees. Training programs that will lead to an 
advanced degree may be approved; however, the time limits described at 
Sec.  618.615(d)(3) must be met. States may not restrict access to 
advanced degrees where the other criteria of this subpart are met. All 
training programs must be evaluated on their individual merit.


Sec.  618.625  Payment restrictions for training programs.

    (a) Funding of training programs. The costs of a training program 
approved under the Act may be paid:
    (1) Solely from TAA Program funds;
    (2) Solely from other public or private funds; or
    (3) Partly from TAA Program funds and partly from other public or 
private funds.
    (b) No duplication of costs allowed. (1) Any use of TAA Program 
funds to duplicate the payment of training costs by another source is 
prohibited.
    (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 other such Federal law, payment of such training costs may not be 
made from TAA Program funds.
    (3) When the direct costs of a training program approvable under 
Sec.  618.610 (criteria for approval of training) are payable from TAA 
Program funds and are also wholly or partially payable from any other 
source, the State must establish procedures to ensure TAA Program funds 
will not duplicate funds available from the other source(s). This 
preclusion of duplication does not prohibit and should not discourage 
sharing of costs under prearrangements authorized under paragraph 
(c)(2) of this section.
    (c) Cost sharing permitted. (1) TAA Program funds are the primary 
source of Federal assistance to trade-affected workers, as identified 
in Sec.  618.804(h)(4). If the costs of training a trade-affected 
worker can be paid under the TAA Program, no other payment for such 
costs may be made under any other provision of Federal law.
    (2) States may share training costs with authorities administering 
other non-Federal, State, and private funding sources. Sharing training 
costs with other Federal sources may only occur if TAA Program funds 
are not available to cover the total cost of training, as described in 
paragraph (d)(2)(ii) of this section.
    (3) Sharing the future costs of training is authorized where prior 
costs were paid from another source, but this paragraph (c)(3) does not 
authorize reimbursement from TAA Program

[[Page 52000]]

funds of any training costs that were accrued before the date the 
training program was approved under the TAA Program.
    (4) When a mix of TAA Program funds and other funds are used for 
paying the costs of a training program approved under this subpart, the 
State must enter into a prearrangement with any entity providing the 
other source of funds. Any such prearrangement must contain specific 
commitments from the other authorities to pay the costs they agree to 
assume and must comply with the nonduplication provisions contained in 
this part.
    (i) Agreements may be entered into on a case-by-case basis to 
address specific training situations of workers or they may be part of 
an overall statewide strategy to effectively use and maximize available 
resources from the TAA Program, workforce development, and other 
programs.
    (ii) Where training costs are shared between the TAA Program and 
any other funding source, the State must enter into a prearrangement 
with the other funding source to agree upon the proportion of TAA 
Program funds and other funds to be used to pay the costs of a training 
program. A prearrangement must be a specific, binding agreement with 
the other source(s) to pay the costs they agree to assume, and must be 
entered into before any TAA Program funds are obligated. If, after TAA 
Program funds are already committed to a training program, other funds 
become available to pay for that training, the State may decide to 
share the costs of the remainder of training program or the State may 
continue funding the training program in full using TAA Program funds. 
If the State decides to share the costs, it must enter into a 
prearrangement with respect to the newly available funds. If the State 
makes a change to how the training program will be funded going 
forward, the existing training program must be amended in accordance 
with Sec.  618.665.
    (iii) Before approving any training program under this subpart, 
which may involve the sharing of training costs under the authority of 
paragraph (a)(3) of this section, the State must require the worker to 
enter into a written agreement with the State, under which TAA Program 
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 source.
    (5)(i) A State may not take into account Federal student financial 
assistance, including Pell Grants, or any funds provided under any 
other provision of Federal law that are used for purposes other than 
the direct payment of training costs, even though they may have the 
effect of indirectly paying all or a portion of the training costs.
    (ii) States must ensure that upon the approval of a training 
program under this subpart, payments of Federal student financial 
assistance cease to be applied to the training participant's tuition or 
other training-related costs covered by TAA Program funds.
    (iii) If payments of Federal student financial assistance or other 
training allowances from other Federal funding sources were made to the 
training provider instead of the worker and were applied towards the 
worker's approved training costs, the State must deduct the amount of 
those other payments from the amount of TAA Program funds payable to 
the training provider in order to prevent duplication in the payment of 
training costs.
    (iv) A worker may use Federal student financial assistance for 
other expenses, as allowable under applicable rules for such financial 
assistance.
    (6) If the worker's trade-affected firm agrees to fund all or a 
portion of the worker's training costs, the State must, if the training 
is otherwise approvable, enter into a prearrangement with the firm to 
assume any unfunded training costs on the worker's behalf.
    (d) No training fees or costs to be paid by trade-affected worker 
from TAA Program funds. (1) A training program must not be approved if 
the trade-affected worker is required to reimburse any portion of the 
costs of such training program from TAA Program funds, or from wages 
paid under such training program.
    (2)(i) A training program must not be approved if the trade-
affected worker is required to pay any of the costs of the training 
program from funds belonging to the worker, including funds from 
relatives or friends, or from personal or educational loans that will 
require repayment.
    (ii) As required by Sec.  618.940, if the Department determines 
that the amount of funds necessary to provide Training and Other 
Activities (TaOA) will exceed the annual cap under Sec.  618.900 in a 
fiscal year, the Department will promptly inform the States. If a State 
estimates that it will exceed all available TAA Program training funds 
(including TaOA funds remaining from current or prior fiscal years) 
then the State must seek funding from other sources (other than from 
trade-affected workers), including WIOA national dislocated worker 
grants under part 687 of this chapter to cover the costs of training 
approved under Sec.  618.610. To the extent that a State is unable to 
fund training costs from those other sources, the agency may approve 
training where the worker pays those unfunded costs. Where the worker 
chooses to pay those unfunded costs under this paragraph (d)(2)(ii), 
the State is not liable for paying those costs and must document this 
prearrangement in the worker's case file. Where the worker chooses not 
to pay the unfunded costs, the State must waive the training 
requirement in Sec.  618.720(g) on the basis that training is not 
available, in order to preserve any remaining Basic TRA eligibility 
under Sec.  618.735(b)(3) (waiver of training requirement for Basic 
TRA).


Sec.  618.630  Training of reemployed trade-affected workers.

    (a) An AAW who obtains new employment and who has been approved for 
a training program may elect to terminate the employment, reduce the 
hours worked in the employment, or continue in full- or part-time 
employment. Such a worker is not subject to ineligibility or 
disqualification for UI or TRA as a result of such termination or 
reduction in employment. A worker who continues such full- or part-time 
employment while a participant in training is considered to be in 
training under Sec.  618.780(b) (disqualifications). If the worker 
continues in full- or part-time employment while a participant in an 
approved training program, the State must inform the worker in writing 
that such employment may have negative effects on UI and TRA benefit 
amounts and duration due to income earned from the employment (and also 
because a worker participating in part-time training is not eligible 
for TRA), which could also lead to the loss of the HCTC, if available. 
The State must apply the earnings disregard provisions in subpart G of 
this part, as appropriate.
    (b) An AAW who has been totally separated as described in paragraph 
(a) of this section may also be eligible for job search and relocation 
allowances under subpart D of this part.


Sec.  618.635  Work-based training.

    (a) OJT--(1) Description. OJT is work-based training provided under 
contract with an employer in the public, nonprofit, or private sector 
to an AAW who is employed by the employer. OJT may be approved if the 
worker meets the requirements under Sec. Sec.  618.610, 618.615, and 
618.665. The State must determine that the OJT in question:
    (i) Can reasonably be expected to lead to suitable employment with 
the employer offering the OJT;

[[Page 52001]]

    (ii) Is compatible with the skills of the worker;
    (iii) Includes a curriculum through which the worker will gain the 
knowledge or skills to become proficient in the job for which the 
worker is being trained; and
    (iv) Can be measured by standards or targets that indicate the 
worker is gaining such knowledge or skills.
    (2) Related education. Related skills training provided as part of 
the OJT contract and sponsored by the employer may be provided in 
conjunction with the OJT. Such training may be provided at the 
employment site, or at educational institutions, or other locations. 
TAA Program funds can be used to pay the OJT participant's expenses 
associated with the educational or instructional component (e.g., 
classroom and distance learning, tools, uniforms, equipment, and books) 
for an AAW's participation in an OJT program.
    (3) Duration. The OJT contract with the employer must specify the 
duration of the OJT. The duration of the OJT must be appropriate to the 
occupational goal for which the AAW is being trained, taking into 
consideration the skills requirements of the job for which the AAW is 
being trained, the academic and occupational skill level of the AAW, 
and the work experience of the AAW, as documented in the worker's IEP, 
if available. The duration of the training must be long enough for the 
worker to become sufficiently proficient in the occupation for which 
the training is being provided to enable the worker to perform as well 
as workers in comparable positions within the firm. The OJT:
    (i) Must not exceed the specific vocational preparation required 
for the occupation, as listed on O*NET (www.onetonline.org); and
    (ii) Must not exceed 104 weeks in any case.
    (4) Exclusion of certain employers. The State may not enter into a 
contract for OJT with an employer that exhibits a pattern of failing to 
provide workers receiving OJT from the employer with:
    (i) Continued long-term employment as regular employees; and
    (ii) Wages, benefits, and working conditions that are equivalent to 
the wages, benefits and working conditions provided to regular 
employees who have worked a similar period of time and are doing the 
same type of work as workers receiving the OJT from the employer.
    (5) Reimbursement. (i) Pursuant to the OJT contract, the employer 
is provided reimbursement of not more than 50 percent of the wage rate 
of the OJT participant, for the costs of providing the training and 
additional supervision related to the training.
    (ii) The reimbursement for OJT must be limited to the duration of 
approved training as specified in the OJT contract.
    (6) Approval of the costs of OJT. OJT costs for an AAW may be 
approved by a State only if a determination is made that:
    (i) No currently employed individual is displaced (including a 
partial displacement, such as a reduction in the hours of nonovertime 
work, wages, or employment benefits) by the AAW;
    (ii) Such training does not impair existing contracts for services 
or collective bargaining agreements;
    (iii) In the case of training that would be inconsistent with the 
terms of a collective bargaining agreement, written concurrence has 
been obtained from the concerned labor organization;
    (iv) No other individual is on layoff from the same or any 
substantially equivalent job for which the AAW is being trained;
    (v) The employer has not terminated the employment of any regular 
employee or otherwise reduced the workforce of the employer with the 
intention of filling the vacancy by hiring the AAW;
    (vi) The job for which the AAW 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;
    (vii) The training is not for the same occupation from which the 
AAW was separated with respect to which the AAW's worker group is 
covered under a certification rendered under subpart B of this part;
    (viii) The employer has not received payment under the TAA Program 
or under any other Federal law for any other OJT provided by such 
employer that failed to meet the requirements of this section or the 
requirements of the other Federal laws governing employment practices; 
and
    (ix) The employer has not taken, at any time, any action that 
violated the terms of this section with respect to any other OJT 
provided by the employer for which the State has made a payment under 
the TAA Program.
    (7) Payment of the costs of OJT. The costs of OJT that are paid 
from TAA Program funds must be paid in monthly installments.
    (8) TRA eligibility during OJT. Under Sec.  618.780(c), an AAW may 
not be paid TRA for any week during which the worker is in OJT and, 
therefore, may be ineligible for the HCTC, if available.
    (9) RTAA eligibility during OJT. Participants enrolled in OJT may 
be eligible for RTAA. All the requirements at subpart E of this part 
must be met.
    (10) Use of WIOA funds for OJT. TAA Program funds may be leveraged 
with WIOA funds to provide a reimbursement rate equal to that allowable 
under WIOA. See WIOA section 134(c)(3)(H) (29 U.S.C. 3174(b)(3)(H)).
    (11) No OJT for AAIWs. The State must not approve OJT for AAIWs.
    (b) Customized training. (1) Customized training is designed to 
meet the special requirements of a single employer or a group of 
employers. The training may be conducted by a training provider, a 
single employer, or group of employers.
    (2) Customized training must be conducted with a commitment by the 
employer or group of employers to employ an AAW upon successful 
completion of the training. For purposes of customized training, a 
commitment by the employer(s) to employ a worker upon successful 
completion of the training, as required by section 236(f)(2) of the 
Act, means that the employer(s) must enter into an agreement with the 
State that describes the conditions that must be met for successful 
completion of the training and the expectation of employment after the 
training is completed.
    (3) The employer must pay at least 50 percent for the cost of the 
training.
    (4) For AAIWs, approval is limited to customized training for a 
position other than their current position in adversely affected 
employment. See Sec.  618.655(c)(2).
    (c) Apprenticeship. Apprenticeship includes registered 
apprenticeships under the Act of August 16, 1937 (commonly known as the 
National Apprenticeship Act; 50 Stat. 664, chapter 663; 29 U.S.C. 50 et 
seq.), as well as other training programs that include a paid work-
based learning component and required educational or instructional 
component that results in the issuance of a recognized postsecondary 
credential, which includes an industry-recognized credential.
    (1) Duration. Apprenticeships are not subject to the 104-week 
statutory duration of OJT training limit. The length of the paid work-
based learning component must not exceed 130 weeks. However, the length 
of the educational or instructional training component of the 
apprenticeship may exceed 130 weeks and continue through the scheduled 
completion of that specific apprenticeship training.

[[Page 52002]]

    (2) Eligible apprenticeship expenses. TAA Program funds can be used 
to pay for:
    (i) The expenses associated with the educational or instructional 
component (e.g., classroom and distance learning, tools, uniforms, 
equipment, and books) for the apprentice; and
    (ii) The employer may be reimbursed not more than 50 percent of the 
apprentice's regular wage rate for the cost of providing the training 
and additional supervision related to the work-based learning component 
provided by the employer.
    (3) Exclusion of certain employers. The State may not enter into a 
contract for apprenticeship with an employer that exhibits a pattern of 
failing to provide apprentices with successful attainment of an 
industry-recognized credential or the apprenticeship completion 
certificate in the case of registered apprenticeship, as issued by the 
U.S. Department of Labor or State apprenticeship agency.
    (4) Approval of the costs of apprenticeship--(i) Registered 
apprenticeships under the National Apprenticeship Act. Costs for an 
apprenticeship program may be approved by a State only if the 
requirements of the National Apprenticeship Act, 29 CFR parts 29 and 
30, and Departmental administrative guidance are met.
    (ii) Other apprenticeships. Costs for an apprenticeship program may 
be approved by a State only if a determination is made that:
    (A) No currently employed worker is displaced (including a partial 
displacement, such as a reduction in the hours of nonovertime work, 
wages, or employment benefits) by the apprentice;
    (B) Such training does not impair existing contracts for services 
or collective bargaining agreements;
    (C) In the case of training that would be inconsistent with the 
terms of a collective bargaining agreement, written concurrence has 
been obtained from the concerned labor organization;
    (D) No other worker is on layoff from the same or any substantially 
equivalent job for which the apprentice is being trained;
    (E) The employer has not terminated the employment of any regular 
employee or otherwise reduced the workforce of the employer with the 
intention of filling the vacancy so created by hiring the apprentice;
    (F) The job for which the apprentice is being trained is not being 
created in a promotional line that will infringe in any way upon the 
promotional opportunities of currently employed workers;
    (G) The training is not for the same occupation as the apprentice's 
adversely affected employment;
    (H) The employer has not received payment under the TAA Program or 
under any other Federal law for any other apprenticeship provided by 
such employer that failed to meet the requirements of this section or 
the requirements of the other Federal laws governing employment 
practices; and
    (I) The employer has not taken, at any time, any action that 
violated the terms of this section with respect to any other 
apprenticeship provided by the employer for which the State has made a 
payment under the TAA Program.
    (5) TRA and HCTC eligibility during apprenticeships. Workers 
enrolled in an apprenticeship program, in most cases, will not be able 
to access TRA income support due to their income earned through wages, 
but the State must still make individual determinations on TRA 
benefits. This could also impact HCTC eligibility, if HCTC is 
available. States must advise workers considering this training option 
of these issues.
    (6) RTAA eligibility during apprenticeships. AAWs age 50 or older 
enrolled in an apprenticeship program may be eligible for RTAA under 
subpart E of this part.
    (7) State contract with apprenticeship employer. The State must 
enter into a contract with the employer that provides the terms and 
conditions of the apprenticeship.


Sec.  618.640  Supplemental assistance.

    (a) General. Supplemental assistance in the form of subsistence and 
transportation payments must be provided to a trade-affected worker 
whose training program has been approved under Sec.  618.610 (Criteria 
for approval of training), to defray reasonable subsistence and 
transportation expenses while the worker attends training at a facility 
outside the worker's commuting area. The need for such subsistence and 
transportation payments must be documented on the worker's IEP, if 
available, or in the worker's case file. Subsistence and transportation 
payments may also be documented on a training approval form, or other 
such form as the State chooses, to ensure that the supplemental 
assistance is documented in the worker's case file.
    (b) Applications for supplemental assistance. A trade-affected 
worker must submit an application for subsistence or transportation 
payments in accordance with subpart H of this part and processes 
established by the State. A determination on an application submitted 
under this section is subject to Sec. Sec.  618.820 (determinations of 
eligibility; notices to individuals) and 618.828 (appeals and 
hearings).
    (c) Subsistence payments--(1) General. Subsistence payments must be 
made for the reasonable costs of meals and incidental expenses, and of 
separate maintenance, which means maintaining temporary living 
quarters, when the training facility is located outside the trade-
affected worker's commuting area.
    (2) Requirements for subsistence payments. (i) A trade-affected 
worker must be reimbursed for subsistence only for the period when the 
worker is not receiving or authorized to receive reimbursement or 
separate payments for such costs from any other source.
    (ii) Subsistence payments must not be made for any day such worker 
receives a daily commuting transportation payment from TAA Program 
funds or from any other source, except as specified in paragraph (e) of 
this section.
    (iii) Subsistence payments must not be made for any day of 
unexcused absence from the training program, as certified by the 
training provider.
    (3) Amount of subsistence payments. The State may make a 
subsistence payment to a trade-affected worker only for the lesser of:
    (i) The worker's actual per diem expenses for subsistence; or
    (ii) 50 percent of the prevailing per diem allowance rate 
authorized under the FTR (see 41 CFR chapters 300 through 304) for the 
location of the training facility.
    (4) Timing of subsistence payments. The State must make subsistence 
payments upon a worker's completion of a week of training, but may 
advance a subsistence payment for a week if the State determines that 
such advance is necessary to enable the worker to participate in the 
approved training.
    (d) Transportation payments. A trade-affected worker must be 
reimbursed for transportation expenses when commuting to and from a 
training facility located outside the worker's commuting area. 
Transportation expenses, funded by the TAA Program, are payable only 
for the actual days traveled. Mileage eligible for reimbursement is, 
round-trip, from the first mile outside the boundary of the worker's 
commuting area to the location of the training facility.
    (1) Transportation payments must not be paid when:
    (i) Transportation is arranged and paid for by the State for one or 
more workers;
    (ii) Such payments are being provided under any other law; or

[[Page 52003]]

    (iii) The worker is authorized to be paid or reimbursed for such 
expenses from any other source.
    (2) The daily transportation payment may not exceed the amount of a 
daily subsistence payment that would be payable under paragraph (c)(3) 
of this section if the worker resided temporarily in the area of the 
training.
    (3) In addition, while other forms of transportation may be used, 
transportation payments to a worker may not exceed the cost per mile at 
the prevailing personal vehicle mileage rate authorized under the FTR. 
See http://www.gsa.gov.
    (4) A worker must receive transportation payments promptly after 
completion of a week of approved training, but at a minimum on a 
monthly basis. These payments also may be made in advance in order to 
facilitate the worker's attendance at the training.
    (e) When payment can be made for both subsistence and 
transportation. A trade-affected worker receiving subsistence payments 
may also receive transportation payments only:
    (1) At the beginning of the training that the worker is attending 
outside the worker's commuting area and at the end of the training for 
travel back to the worker's commuting area; or
    (2) When the worker fails, for justifiable cause, as described in 
Sec.  618.780(b)(3)(iii), to complete the training outside the worker's 
commuting area, and must return home before the scheduled end of the 
training.
    (f) Adjustments to subsistence and transportation payment advances. 
If the State advances subsistence or transportation funds, the State 
must adjust subsequent subsistence and transportation payments to take 
into account the amount of the advance that is more or less than the 
amount that the trade-affected worker is entitled to receive under 
paragraphs (c) and (d) of this section.
    (g) Worker evidence. The trade-affected worker must provide 
receipts for all lodging, purchased transportation expenses, and meals.


Sec.  618.645  Voluntary withdrawal from a training program.

    (a)(1) The State must advise a trade-affected worker who chooses to 
withdraw from a TAA approved training program that the withdrawal may, 
subject to the requirements in subpart H of this part, result in an 
overpayment.
    (2) The State must advise a worker who chooses to withdraw from a 
TAA approved training program that the withdrawal may, subject to the 
requirements in subpart G of this part, result in loss of eligibility 
for TRA.
    (b) A trade-affected worker who qualifies for an exception for 
service in the Uniformed Services, under the criteria set out in Sec.  
618.615(d)(4), may voluntarily withdraw from a training program.
    (c) A trade-affected worker who ceases participation in training 
for justifiable cause, as described in Sec.  618.780(b)(3)(iii) 
(disqualifications), may resume the approved training program.
    (d) The trade-affected worker's eligibility for job search and 
relocation allowances will not be affected by the decision to withdraw 
from training. To be eligible for these allowances, the worker must 
meet all eligibility requirements for these benefits as set forth in 
Sec. Sec.  618.410 (job search allowances) and 618.440 (relocation 
allowances).
    (e) If the trade-affected worker obtains suitable employment before 
training is completed yet remains in his or her training program:
    (1) The State must continue funding the approved training program 
if training benchmarks, described at Sec.  618.660, continue to be 
satisfactorily met.
    (2) The State must consider whether to amend the worker's training 
program; and
    (3) The State must discuss with the worker whether the training 
program continues to serve a useful purpose.


Sec.  618.650  State standards and procedures for establishing 
reasonable cost of training.

    (a) A State is not prohibited from setting a statewide limit or 
limits for local workforce development areas on the amount of training 
costs considered reasonable and appropriate for training programs. Any 
limit(s) must reasonably take into account the costs of training 
available in the local workforce development areas throughout the State 
and the expenditure must be prudent under the standards of the Office 
of Management and Budget's (OMB's) Uniform Guidance (2 CFR 200.404) and 
its attendant interpretive administrative guidance. Additionally, 
States must comply with the standards for reasonableness in Sec.  
618.610(f)(2), including those permitting States to allow training 
other than the least-cost option if the extra cost is justified by 
better trade-affected worker outcomes or a faster return to the 
workforce. If the State chooses to implement a statewide limit, it must 
arrive at a reasonable limit based upon training costs throughout the 
State, recognizing that costs may vary significantly between urban 
areas and rural areas. The State must also develop and implement a 
method to exceed the limit(s), which must require the local area to 
secure State approval, as described in paragraph (b) of this section, 
before training is approved.
    (b) The State must develop transparent standards and procedures 
that provide for prompt consideration of any request for approval of 
training costs that exceed the established training cost limit(s) set 
by the State under paragraph (a) of this section. The review standards 
developed by the State under this paragraph (b) must allow for approval 
of costs that exceed the applicable training cost limit when a training 
program that exceeds the cost limit(s) will provide the most reasonable 
way of returning a particular trade-affected worker to employment at 
higher wages--or on a pathway to do so--than in the absence of 
training.
    (c) The State must propose an alternative training program 
consistent with the reasonable cost criteria, as described at Sec.  
618.610, when a training program is not approvable under the 
established limits and does not meet the requirements in paragraph (b) 
of this section.
    (d) The State must review any limits established under paragraph 
(a) of this section on an annual basis to determine whether they are 
still appropriate, and change or end such limits when they no longer 
reasonably reflect the average cost of training available in the local 
workforce development areas throughout the State.
    (e) Whenever a State establishes, changes, or ends State-
established limits on training costs payable under paragraph (a) of 
this section, the State must provide written notice and full 
documentation supporting its action to the Department for review.
    (f) States are not required to establish a limit on training costs.


Sec.  618.655  Training for adversely affected incumbent workers.

    (a) AAIW training. Pursuant to sections 236(a)(1) and 247(18) of 
the Act, a State may approve training for an AAIW, or training for a 
worker before separation occurs. An AAIW may apply for training and a 
State may approve training at any time after the date on which the AAIW 
is determined to be individually threatened with layoff without regard 
to whether such worker has applied for or exhausted all rights to any 
UI to which the worker is entitled.
    (b) Threat of layoff. A State may determine that a worker has been 
individually threatened with total or partial separation when the 
worker has

[[Page 52004]]

received a notice of termination or layoff from employment. Other 
documentation of a threat of total or partial separation from the firm 
or other reliable source may be accepted.
    (c) Approval of training. Except as specified in this section, the 
provisions of this subpart extend to AAIWs. The following exceptions to 
the training approval requirements apply to AAIWs:
    (1) The State may not approve OJT under Sec.  618.635(a) for AAIWs.
    (2) Customized training for AAIWs under Sec.  618.635(b) may be 
approved only if the training is for a position other than the AAIW's 
adversely affected position.
    (d) Disqualification and restrictions. (1) The State must 
periodically verify that the threat of total or partial separation 
continues to exist for the AAIW for the duration of the approved 
training. This may be accomplished by verifying with the AAIW's 
employer that the threat of separation still exists before funding each 
subsequent portion of the training.
    (2) Funding of a training program must cease upon the removal of 
the threat. The AAIW must cease the training upon the conclusion of the 
most recently funded portion, semester or quarter for which expenses 
have already been accrued. No additional funding will be available 
while the threat of separation is removed. Funding may resume for the 
original training program that had been previously approved upon a 
determination by the State that the threat of separation has been 
reestablished, or upon total or partial separation from adversely 
affected employment, if the requirements under Sec.  618.610 are still 
met. The AAIW's approved training program must be amended, as 
appropriate, in compliance with Sec.  618.665.
    (3) The one training program per certification rule, as described 
under Sec.  618.615, is applicable to AAIWs. Thus, a training program 
begun prior to separation and while under a threat of layoff 
constitutes the one allowed training program available to that AAIW.
    (4) The duration of training limitations, at Sec.  618.615(d)(3) 
are applicable to AAIWs.
    (5) An AAIW will not be eligible for a new training program when 
total or partial separation occurs; however, the existing training may 
be amended under the provisions of Sec.  618.665.
    (6) The State must not consider the AAIW's threatened employment to 
be suitable employment under Sec.  618.610(a).
    (e) Separation from threatened employment. (1) Upon a total or 
partial separation from threatened employment, an AAIW becomes an AAW 
under the following conditions:
    (i) The separation must occur prior to the expiration of the 
certification period under which the worker was determined to be 
threatened; and
    (ii) The total or partial separation must be for lack of work.
    (2) When an AAIW becomes an AAW under the conditions in paragraph 
(e)(1) of this section:
    (i) The State must amend the worker's approved training program, as 
described in Sec.  618.665; and
    (ii) The State must determine what other benefits under the TAA 
Program the worker may now be eligible for, including TRA. Any time 
spent in training as an AAIW applies to the duration limits contained 
in Sec.  618.615.


Sec.  618.660  Training benchmarks.

    (a) Requirement for training benchmarks. A State must establish and 
document training benchmarks, as provided in paragraph (f) of this 
section, for individual AAWs so that they can meet Completion TRA 
eligibility requirements, described at Sec.  618.765. The benchmarks 
must be established when the worker enrolls in an approved training 
program, so that the State can monitor the worker's progress toward 
completing the approved training duration limits established at Sec.  
618.615.
    (b) Scope of requirement. Training benchmarks must be established 
for all but short-term training programs.
    (c) Measurement against training benchmark. To review the AAW's 
progress against the benchmarks, States may request that the training 
provider provide documentation of the worker's satisfactory progress, 
including instructor attestations, progress reports, etc. The case 
manager may attest to the worker's progress after consultation with the 
training provider and the worker.
    (d) Must be included in IEP. The training benchmarks must be 
described in the AAW's IEP, if available, or otherwise documented in 
the worker's case file.
    (e) Benchmark qualities. Benchmarks must be flexible enough to 
allow for some variability, and both practical and measurable enough to 
allow administration across a broad spectrum of training scenarios.
    (f) Review of benchmarks. The State must evaluate and document 
satisfactory progress against the benchmarks in paragraphs (f)(1) and 
(2) of this section at intervals of not more than 60 days, beginning 
with the start of the approved training program:
    (1) The AAW is maintaining satisfactory academic standing (e.g., 
not on probation or determined to be ``at risk'' by the instructor or 
training provider); and
    (2) The AAW is on schedule to complete training within the 
timeframe identified in the approved training program.
    (g) Actions following failure to meet a benchmark. (1) Upon failure 
to meet a benchmark, the State must provide a warning to the AAW that 
his or her eligibility for Completion TRA is in jeopardy. The warning 
may be provided verbally, in writing, or both, and must be documented 
in the worker's case file. In consultation with the worker, the State 
may amend a worker's training program as described in Sec.  618.665.
    (2) If a worker who has previously failed to meet a benchmark under 
paragraph (g)(1) of this section fails to meet a benchmark during a 
subsequent review under paragraph (f) of this section, the State must 
notify the worker of his or her ineligibility for Completion TRA. The 
worker may elect to continue in the approved training but will not 
receive any Completion TRA payments; or the training program must be 
amended, according to Sec.  618.665, and Completion TRA may resume.


Sec.  618.665  Amending approved training.

    (a) Conditions for amending approved training. The State must, with 
the cooperation of the trade-affected worker, amend a worker's approved 
training program under the following conditions:
    (1) The State determines that one or more of these conditions are 
present:
    (i) A course or courses designed to satisfy unforeseen needs of the 
worker, such as remedial education or new employer skills requirements, 
are necessary;
    (ii) A course or courses added to the training program will enhance 
and complement the worker's original training program, such as 
preparatory courses to obtain an industry-recognized credential, 
certification, or license that will improve the worker's chance of 
being hired;
    (iii) Additional assistance such as tutoring or the use of 
translators would benefit the worker, keep the worker qualified for the 
training in which he or she is enrolled, and be sufficient for the 
worker to complete the training program;
    (iv) Approval of a longerterm training program that will improve 
the likelihood of employment upon the completion of such training;

[[Page 52005]]

    (v) The originally approved training program cannot be successfully 
completed by the worker;
    (vi) The originally approved training program is determined to be 
of inferior quality;
    (vii) Training in another occupation will lead to a greater 
likelihood of training completion or a better employment outcome, as a 
result of a change in labor market conditions or the worker's 
experience in the originally approved training program, or other 
similar factor;
    (viii) The worker is moving from full-time training to part-time 
training or from part-time training to full-time training;
    (ix) An AAIW has been separated from adversely affected employment 
and has transitioned to become an AAW, or an AAIW is continuing 
training after a threat of separation was first removed, then resumed; 
or
    (x) An additional source of funding becomes available for which a 
prearrangement is required under Sec.  618.625(c)(4).
    (2) The combination of time spent in the originally approved 
training program and the time it will take to complete the amended 
training program will not exceed the duration of training limit for the 
type of training included in the training program, as provided at Sec.  
618.615(d)(3).
    (3) Amending the approved training program occurs before a worker 
finishes the originally approved training program and prior to the 
originally scheduled date of completion.
    (b) Criteria for amending a training program. The State must 
determine that the following criteria are met before amending a 
training program:
    (1) Criterion 1: A reasonable expectation of employment following 
completion of such training continues to exist. Given the labor market 
conditions expected to exist at the time of the completion of the 
training program, a reasonable expectation, fairly and objectively 
considered, exists that the trade-affected worker is likely to find 
employment, using the skills and education acquired while in training, 
upon completion of approved training. The labor market conditions 
considered must be limited to those in the worker's commuting area, or 
in the area where the worker intends to relocate.
    (i) ``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.
    (ii) The State must review the expected job market conditions using 
pertinent labor market data in the worker's case file to ensure it 
continues to apply to the amended training program and the worker's 
occupational goal as identified on the worker's IEP, if available, and 
in the worker's case file.
    (iii) When a worker desires to relocate within the United States 
but outside the worker's present commuting area upon completion of 
training, the State must ensure the labor market information (described 
in Sec.  618.610(c)(2)) supports the determination that a reasonable 
expectation of employment continues to exist within the area of the 
planned relocation. The labor market information must be in the area of 
planned relocation.
    (iv) A reasonable expectation of employment may exist in a limited 
demand occupation for a single, trained worker in the worker's 
commuting area or in the area to which the worker desires to relocate. 
The State must determine that there continues to be a reasonable 
expectation that the worker can secure employment in the limited demand 
occupation.
    (v) A State may approve an amended training program in an 
occupation if it finds that there is a reasonable expectation that the 
additional training will lead to self-employment in the occupation for 
which the worker requests training, and that such self-employment will 
provide the worker with wages or earnings at or near the worker's wages 
in adversely affected employment.
    (vi) Amended training programs that consist of solely OJT or 
contain an OJT component are not approvable if they are not expected to 
lead to suitable employment, with the employer providing the OJT, in 
compliance with section 236(c)(1)(B)(i) of the Act.
    (2) Criterion 2: Training continues to be reasonably available to 
the worker. In determining whether training continues to be reasonably 
available to the worker, the State must first consider training 
opportunities available in the worker's commuting area. States may 
approve training outside the commuting area if none is available at the 
time in the worker's commuting area. Whether the training is in or 
outside the commuting area, the amended training program must be 
available at a reasonable cost as prescribed in paragraph (b)(4) of 
this section.
    (3) Criterion 3: The worker continues to be qualified to undertake 
and complete such amended training. States must ensure the following:
    (i) The worker's knowledge, skills, and abilities, educational 
background, work experience, and financial resources remain sufficient 
to undertake and complete the specific amendment to the training 
program being considered.
    (ii) The initial assessment or comprehensive and specialized 
assessment, and IEP, if available, developed under subpart C of this 
part are to be consulted in order to support the trade-affected 
worker's ability to undertake and complete the proposed amended 
training program.
    (iii) Where the worker's remaining available weeks of UI and TRA 
payments will not equal or exceed the duration of the amended training 
program, that the worker will have sufficient financial resources to 
support completion of the training program within the time limits noted 
in Sec.  618.615(d) (limitations on training approval). In making this 
determination, the State must consider:
    (A) The worker's remaining weeks of UI and TRA payments in relation 
to the duration of the proposed amended training program;
    (B) Other sources of income support available to the worker 
including severance, earnings of other family members, and other family 
resources;
    (C) Other fixed financial obligations and expenses of the worker 
and family;
    (D) The availability of Federal student financial assistance or any 
State-funded student financial assistance or any private funding 
designated for student financial assistance, including, but not limited 
to, nongovernmental scholarships, awards, or grants; and
    (E) Whether or not the worker is employed while attending training.
    (iv) The State must document whether or not the trade-affected 
worker has sufficient financial resources to complete the amended 
training program that exceeds the duration of UI and TRA payments.
    (v) If a worker has insufficient financial resources to complete 
the proposed amended training program that exceeds the duration of UI 
and TRA payments, then the State must not approve that amended training 
and must instead consider resuming the originally approved training 
program or other training opportunities available to the worker.
    (4) Criterion 4: Such amended training continues to be suitable for 
the worker and available at a reasonable cost--(i) Suitable for the 
worker. The amended training being considered must address the criteria 
set out in paragraph (b)(3) of this section (Criterion 3), this 
paragraph (b)(4), and be determined by the State to be appropriate 
given the worker's knowledge, skills, and abilities, background, and 
experience relative to

[[Page 52006]]

the worker's employment goal, and criteria set out in paragraph (b)(1) 
of this section (Criterion 1).
    (ii) Available at a reasonable cost. (A) Costs of an amended 
training program may include, but are not limited to, tuition and 
related expenses (e.g., books, tools, computers and other electronic 
devices, internet access, uniforms and other training-related clothing 
such as goggles and work boots, laboratory fees, and other academic 
fees required as part of the amended training program) as well as 
supplemental assistance (subsistence expenses and transportation 
expenses as described in Sec.  618.640(c) and (d)). States must pay the 
costs of initial licensing and certification tests and fees where a 
license or certification is required for employment.
    (1) The State must ensure and document that the amended training 
program costs are reasonable by researching costs for similar training 
programs, whether it is classroom or work-based training.
    (2) Related expenses must be necessary for the worker to complete 
the amended training program. Other options should be explored before 
purchasing equipment or related materials.
    (B) Available at a reasonable cost means that amended training must 
not be approved at one provider when, all costs being considered, 
training better or substantially similar in quality, content and 
results can be obtained from another provider at a lower total cost 
within a similar time frame. Amended training must not be approved when 
the costs of the training are unreasonably high in comparison with the 
average costs of training other workers in similar occupations at other 
providers. The State may approve a higher cost training if that 
training is reasonably expected to result in a higher likelihood of 
employment, employment retention, or greater earnings, or to return the 
worker to employment in a significantly shorter duration.
    (C) Training at facilities outside the worker's commuting area 
requiring transportation or subsistence payments that add substantially 
to the total cost of the amended training program may not be approved 
if other appropriate training is available in the commuting area at a 
lower cost, unless the exception described in paragraph (b)(4)(ii)(B) 
of this section applies.
    (D) Approval of amended training under paragraph (b)(4) of this 
section (Criterion 4) is also subject to the provisions of Sec.  
618.650.

Subpart G--Trade Readjustment Allowances


Sec.  618.700  Scope.

    This subpart explains the requirements for eligibility, amounts, 
and duration of Basic TRA, Additional TRA, and Completion TRA, all of 
which are income support in the form of cash payments for an AAW.


Sec.  618.705  Definitions.

    (a) For purposes of TRA, an AAW is ``participating in approved 
training'' if:
    (1) The worker is either attending and taking part in all scheduled 
classes, required activities, and required events in a given week, or 
the training provider has excused the worker's absence or failure to 
take part in accordance with its written policies.
    (2) In the case of distance learning, the worker is either meeting 
all the requirements of the training provider in a given week in 
accordance with its rules, regulations, and standards, or the training 
provider has excused the worker's failure to meet those requirements in 
accordance with its written policies.
    (b) For purposes of TRA, the term ``training allowance'' means any 
assistance or payment, excluding Federal student financial assistance, 
that can be used for the same purpose as funds for the costs of 
training covered by the TAA Program, and that is given or paid directly 
to the AAW.
    (c) For purposes of TRA, the term ``adversely affected employment'' 
includes employment at a successor-in-interest, and such wages reported 
to the State or received by an AAW from a successor-in-interest are 
included as wages under Sec.  618.720(c).


Sec.  618.710  Categories of Trade Readjustment Allowances.

    (a) Basic TRA. Basic TRA is payable to an AAW who meets the 
requirements of Sec.  618.720. Basic TRA is payable for weeks of 
unemployment after the worker meets the criteria for exhaustion of UI 
under Sec.  618.720(e) and, consistent with Sec.  618.725, for weeks of 
unemployment during which the worker either is enrolled in, is 
participating in, or has completed approved training, or has received a 
waiver of the training requirement under Sec.  618.735.
    (b) Additional TRA. Additional TRA is payable to an AAW who meets 
the requirements of Sec.  618.760. Additional TRA is payable only for 
weeks of unemployment during which the worker is participating in 
approved training.
    (c) Completion TRA. Completion TRA is payable to an AAW who meets 
the requirements of Sec.  618.765. Completion TRA is payable only for 
weeks of unemployment during which the worker is participating in 
approved training. Completion TRA is payable only after the worker has 
exhausted all rights to Basic and Additional TRA.


Sec.  618.715  Applications for Trade Readjustment Allowances and 
payment.

    (a) Timing of applications. (1) An initial application for TRA must 
be filed after certification of the appropriate worker group has been 
made.
    (2) An application for TRA must be filed within the time limit 
applicable to claims for regular compensation under the applicable 
State law.
    (b) Applicable procedures. Applications must be filed in accordance 
with this subpart and on forms furnished to AAWs by the State. The 
State's procedures for filing applications for TRA, and for reporting, 
must be consistent with this part and the Department's ``Standard for 
Claim Filing, Claimant Reporting, Job Finding, and Employment 
Services,'' Employment Security Manual, part V, sections 5000 through 
5004 (appendix A to this part), except that such procedures may allow 
for the filing and processing of applications by paper, telephone, the 
internet, or other similar methods as provided for in paragraph (e)(2) 
of this section.
    (c) Treatment of determinations. Determinations on TRA applications 
are determinations to which Sec. Sec.  618.820 (determinations of 
eligibility; notices to individuals), 618.824 (liable State and agent 
State responsibilities), and 618.828 (appeals and hearings) apply. 
Copies of such applications for TRA and all determinations by the State 
on such applications must be included in the AAW's case file.
    (d) Payment of TRA. (1) A State must not make any payment of TRA 
until a certification is issued and the State determines that the AAW 
is a member of a worker group covered under the specified 
certification.
    (2) An AAW, if he or she otherwise meets the eligibility 
requirements of this subpart, including exhaustion of UI, may be 
entitled to TRA for any week of unemployment that begins on or after 
the date of the applicable certification.
    (3) An AAW may receive only one form of TRA (Basic, Additional, or 
Completion) for any given week.
    (e) Taking of applications. (1) An initial application is required 
for TRA and a separate application is required for Completion TRA.
    (2) Applications may be filed and processed by any means allowed 
for UI claims in the State.

[[Page 52007]]

    (3) States must provide notice to the worker when a worker begins 
receipt of Additional TRA. That notice must include the eligibility 
requirements under which Additional TRA is payable.


Sec.  618.720  Qualifying requirements for Basic Trade Readjustment 
Allowances.

    To qualify for Basic TRA for a week of unemployment, an AAW must 
meet each of the requirements in paragraphs (a) through (g) of this 
section:
    (a) Certification. The AAW must be a member of a worker group 
certified under subpart B of this part.
    (b) Separation. The AAW must have experienced a qualifying 
separation during the certification period of the certification in 
paragraph (a) of this section.
    (c) Wages and employment. The AAW must meet the following wage and 
other requirements:
    (1) In the 52-week period (i.e., 52 consecutive calendar weeks) 
ending with the week of the AAW's total or partial separation from 
adversely affected employment during the certification period, the 
worker 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, 
where there is more than one subdivision, the appropriate subdivision 
of that firm. Evidence that the worker meets the requirement in this 
paragraph (c)(1) must be obtained as provided in Sec.  618.740. 
Employment and wages covered under more than one certification may not 
be combined to qualify for TRA.
    (2) The categories of weeks in paragraphs (c)(2)(i) through (iv) of 
this section also must be treated as weeks of employment at wages of 
$30 or more (for purposes of paragraph (c)(1) of this section), 
regardless of whether the AAW actually receives any wages during such 
weeks:
    (i) All weeks, up to a maximum of 7 weeks, during which the AAW is 
on employer-authorized leave for vacation, sickness, injury, maternity, 
or inactive duty or active duty military service for training;
    (ii) All weeks, up to a maximum of 7 weeks, during which the AAW 
had adversely affected employment interrupted to serve as a full-time 
representative of a labor organization in the firm or subdivision 
referenced in paragraph (c)(1) of this section;
    (iii) All weeks, up to a maximum of 26 weeks, during which the AAW 
has a disability compensable under a workers' compensation law or plan 
of a State or the United States; and
    (iv) All weeks, up to a maximum of 26 weeks, during which the AAW 
is on call-up for the purpose of active duty in a reserve status in the 
Armed Forces of the United States, if such active duty is ``Federal 
service'' as defined in 5 U.S.C. 8521(a)(1), but not more than 7 weeks, 
in the case of weeks described in paragraph (c)(2)(i) or (ii) of this 
section that occur during the active duty. States may waive provisions 
of this paragraph (c)(2)(iv) consistent with Sec.  618.884.
    (d) Entitlement to UI. The AAW must have been entitled to (or would 
have been entitled to if the worker had applied therefor) UI for a week 
within the first benefit period.
    (e) Exhaustion of UI. The AAW must meet the following requirements:
    (1) The AAW must have exhausted all rights to any UI, except 
additional compensation that is funded by a State and not reimbursed 
from any Federal funds to which such worker was entitled (or would have 
been entitled had such worker applied therefor), and not have any 
unexpired waiting period applicable to the worker for any such UI, 
except as provided at Sec.  618.720(e)(2).
    (2) The AAW may elect to receive TRA instead of UI during any week 
with respect to which the worker:
    (i) Is entitled and is able to receive UI as a result of a new 
benefit year based on employment in which the worker engaged after 
establishing TRA eligibility following a total separation from 
adversely affected employment. The entitlement must be after the first 
UI benefit period. It must also be based in whole or in part upon part-
time or short-term employment in which the worker engaged after the 
worker's most recent total separation from adversely affected 
employment that established such first UI benefit period. This new 
employment may include the same adversely affected employment; and
    (ii) Is otherwise entitled to TRA, except that the AAW need not 
have exhausted all rights to UI in the new benefit year.
    (3) For AAWs meeting the requirements in paragraph (e)(2) of this 
section, the State must provide the AAW a summary of his or her 
potential UI benefits and potential TRA benefits in writing and 
document the AAW's choice in the case file.
    (4) State law governs the status of the UI claim in the second 
benefit year when the AAW elects to receive TRA instead of UI.
    (5) If the AAW elects to receive UI benefits in the second benefit 
year or any subsequent benefit period thereafter in which the option is 
available, the AAW must exhaust all UI entitlement before resuming TRA 
eligibility.
    (6) The AAW must have no unexpired waiting period applicable to 
such worker for any UI.
    (f) Extended Benefits (EB) work test. The AAW must be able to work 
and be available for work, as defined in the EB work test in the 
applicable State law for UI claimants, and must be furnished a 
classification and a determination as to his or her job prospects as 
required by 20 CFR 615.8(d). The EB work test must be met for each week 
by the means described in this paragraph (f), unless an exception in 
paragraph (f)(2) of this section applies.
    (1) Criteria. The EB work test requirement must be met by:
    (i) Registering for work with the State, in accordance with the 
applicable provisions of State law that apply to EB claimants and that 
are consistent with part 615 of this chapter;
    (ii) Actively engaging in seeking work;
    (iii) Furnishing the State with tangible evidence of work search 
efforts each week; and
    (iv) Accepting any offer of suitable work, including those referred 
by the State.
    (2) Exceptions. The able and available requirement and the EB work 
test requirement in this paragraph (f) do not apply for purposes of TRA 
eligibility:
    (i) When the AAW is enrolled in or participating in approved 
training;
    (ii) During a break in training; or
    (iii) With respect to claims for TRA for those weeks of 
unemployment beginning before the filing of an initial claim for TRA, 
or for any week that begins before the AAW is notified of coverage by a 
certification and is fully informed of the EB work test requirements. 
Before such notification and advice, the worker must not be subject to 
the EB work test requirements for TRA eligibility purposes, nor to any 
State timely filing requirement, but must be required to be unemployed 
and able to work and available for work under State law with respect to 
any such week except as provided in paragraphs (f)(2)(i) and (ii) of 
this section for AAWs enrolled in or participating in approved 
training.
    (3) Suitable work. (i) For purposes of this subpart, suitable work 
means, with respect to a worker, whichever of the following laws is 
applicable:
    (A) Suitable work as defined in the applicable State law for 
claimants for regular compensation; or
    (B) Suitable work as defined in applicable State law provisions 
consistent with section 202(a)(3) of EUCA.

[[Page 52008]]

    (ii) Regardless of which of the laws in paragraph (f)(3)(i)(A) or 
(B) of this section apply, suitable work does not in any case include 
self-employment or employment as an independent contractor.
    (g) Participation in approved training. (1) As a condition for 
receiving Basic TRA, except as provided for in Sec.  618.730, the AAW, 
after a total or partial separation from the adversely affected 
employment within the certification period, and by the applicable 
deadlines in Sec.  618.725 must:
    (i) Be enrolled in training, as defined in subpart A of this part;
    (ii) Be participating in approved training (as defined in Sec.  
618.705); or
    (iii) Have a waiver granted under Sec.  618.735 in effect.
    (2) An AAW who has not met the requirements in paragraph (g)(1) of 
this section may, if otherwise eligible, receive Basic TRA before 
expiration of the applicable training enrollment deadline in Sec.  
618.725. Once the training enrollment deadline is reached, the training 
requirements in paragraph (g)(1) of this section must be met. Basic TRA 
payments must cease beginning the first week for which the requirements 
in paragraph (g)(1) of this section were required but not met.
    (3) The requirements in paragraph (g)(1) of this section do not 
apply to an AAW with respect to claims for Basic TRA for weeks of 
unemployment beginning before the filing of an initial claim for TRA 
after publication of the certification of the appropriate worker group 
as provided in Sec.  618.715(a), nor for any week that begins before 
the AAW is notified that he or she is covered by a certification and is 
fully informed of the requirements of this section.
    (4) An AAW who meets the participation in approved training 
requirement in paragraph (g)(1) of this section by the applicable 
deadlines in Sec.  618.725 may continue to receive Basic TRA after the 
AAW has completed training, even if such participation in training was 
on a part-time basis, provided that the worker meets all other 
eligibility requirements for Basic TRA.


Sec.  618.725  Training enrollment deadlines.

    (a) Training enrollment deadlines. As a condition for receiving 
Basic TRA, an AAW must meet the participation in approved training 
requirement in Sec.  618.720(g)(1) no later than the latest of:
    (1) The last day of the 26th week after the AAW's most recent 
qualifying separation;
    (2) The last day of the 26th week after the week in which the 
certification was issued; or
    (3) 45 days after the later of the dates specified in paragraph 
(a)(1) or (2) of this section, if there are extenuating circumstances 
that justify an extension of the enrollment period. Extenuating 
circumstances that justify the 45-day extension are circumstances that 
would constitute good cause, as established by Sec.  618.730; that is, 
circumstances under which the AAW acted diligently yet was unable to 
enroll because of exigent circumstances.
    (4) In the case of an AAW who fails to enroll by the date required 
by paragraph (a)(1), (2), or (3) of this section due to a failure by 
the State to provide the AAW with timely information regarding the 
applicable training enrollment deadline, the AAW must be enrolled in 
training or obtain a waiver by the Monday of the first week occurring 
60 consecutive calendar days following the date the worker was properly 
notified; or
    (5) The Monday of the first week occurring 30 consecutive calendar 
days (or, if the State is closed that last day because that day falls 
on a weekend or holiday or for any other reason, the next business day) 
following the day of termination, whether by revocation or expiration 
or revocation of a waiver under Sec.  618.735.
    (b) Exceptions--(1) Extended training enrollment deadline for 
delayed approval of application for TRA. (i) The training enrollment 
deadlines of paragraph (a) of this section do not apply where:
    (A) A State's negative determination on an initial application for 
TRA under Sec.  618.715 has been reversed through redetermination or 
appeal;
    (B) The AAW is unable to meet the training enrollment deadline 
because of the delay in obtaining the reversal of the negative 
determination; and
    (C) The delay in obtaining the reversal is not attributable to the 
AAW.
    (ii) Where the conditions of paragraph (b)(1)(i) of this section 
are met, the AAW will have until the last day of the 26th week 
following the date on which the negative determination was reversed to 
enroll in training or have a training waiver in effect.
    (2) Extended training enrollment deadline for period of duty in 
military service. If an AAW who is a member of a reserve component of 
the Armed Forces and has served a period of duty during the AAW's Basic 
TRA eligibility period but before enrolling in training, the AAW's 
training enrollment deadline will be the last day of the 26th week 
following the last day of the AAW's period of duty.
    (3) Good cause. The training enrollment deadline may be extended 
for good cause as provided for in Sec.  618.730.


Sec.  618.730  Good cause.

    (a) States must waive the time limitations with respect to an 
application for TRA, enrollment in training, or receipt of a training 
waiver in this subpart if the AAW shows good cause.
    (b) Good cause exists if the AAW acted diligently yet was unable to 
complete in a timely manner the relevant task at issue described in 
paragraph (a) of this section because of exigent circumstances.
    (c) The State must determine good cause on a worker-by-worker 
basis.


Sec.  618.735  Waiver of training requirement for Basic Trade 
Readjustment Allowances.

    (a) Waiver for Basic TRA. A State may issue a waiver of the 
requirement in Sec.  618.720(g) that an AAW be enrolled in or 
participating in approved training as a condition of Basic TRA 
eligibility upon a finding that training for such worker is not 
feasible or appropriate for one or more reasons identified in paragraph 
(b) of this section. The waiver must contain the information required 
in paragraph (c) of this section. No waiver of the training requirement 
is permitted for Additional TRA or Completion TRA eligibility. Waivers 
must be issued no later than the latest of the applicable deadlines 
described in Sec.  618.725.
    (b) Bases for a waiver. The State, in order to issue a written 
waiver to an AAW, must conclude after assessing the worker that 
training is not feasible or appropriate for one or more of the reasons 
in paragraphs (b)(1) through (3) of this section, which must be cited 
on the waiver:
    (1) Health. The worker is unable to participate in training due to 
the health of the worker. A waiver granted for this reason does not 
exempt the worker from requirements relating to the availability for 
work, active search for work, or refusal to accept work under Federal 
or State unemployment compensation laws.
    (2) Enrollment unavailable. The first available enrollment date for 
approved training is within 60 consecutive calendar days after the date 
on which a waiver determination is made or, if later, there are 
extenuating circumstances, as determined under the criteria in Sec.  
618.725(a)(3), that apply to the delay in enrollment in training.
    (3) Training not available. Approved training is not reasonably 
available to

[[Page 52009]]

the worker from governmental agencies or private sources (which may 
include area vocational education schools, as defined in section 3 of 
the Strengthening Career and Technical Education for the 21st Century 
Act (20 U.S.C. 2302), and employers), or suitable training is not 
available at a reasonable cost, or no training funds are available.
    (c) Contents of a waiver. (1) A waiver issued under this section 
may not take effect unless it contains, at a minimum, the following 
information:
    (i) The AAW's name and a unique identifying designation used by the 
State;
    (ii) The name and location of the worker group and the petition 
number under which the AAW's group was certified;
    (iii) A statement of the reasons why training is not feasible or 
appropriate for the AAW, citing to one or more reasons identified in 
paragraph (b) of this section;
    (iv) The effective date and expiration date of the waiver;
    (v) A statement that the waiver must be revoked immediately upon a 
determination that the basis or bases for the waiver no longer apply; 
and
    (vi) The signature of an official of the State authorized to grant 
the waiver, and the signature of the AAW or other evidence of the 
worker's acknowledgement of receipt of the waiver.
    (2) Waivers and the required signatures may be issued and 
maintained electronically.
    (d) Request for a waiver. States may analyze whether an AAW may 
qualify for a waiver as part of the AAW's initial assessment, as 
described in subpart C of this part. An AAW may also request a waiver 
from the State before the applicable deadline in Sec.  618.725.
    (e) Denial of a waiver. In any case in which a determination is 
made to deny a waiver under this section, the AAW to whom the denial 
pertains must be furnished with a notice of the denial of waiver. The 
notice of denial of waiver must contain, at minimum, the information in 
paragraphs (c)(1)(i), (ii), and (vi) of this section; the specific 
reason(s) for the denial; the date of the denial; and notice of the 
AAW's appeal rights.
    (f) Duration of a waiver. (1) A waiver issued under this section 
may be for a period not to exceed 6 months, or the AAW's period of 
Basic TRA entitlement, whichever ends first;
    (2) Notwithstanding the 6-month limitation in paragraph (f)(1) of 
this section, a State may extend an AAW's waiver beyond 6 months if:
    (i) Training continues not to be feasible or appropriate for such 
worker for one or more of the reasons described in paragraph (b) of 
this section; and
    (ii) Such worker has not yet exhausted his or her Basic TRA 
entitlement.
    (3) Waivers must be reviewed 3 months after the date on which the 
State issues the waiver to determine if one or more of the bases in 
paragraph (b) of this section continue to apply, and every 30 
consecutive calendar days thereafter.
    (g) Revocation of a waiver. The State must revoke a waiver issued 
under this section if the waiver criteria are no longer met. The State 
must notify the AAW of the revocation. The notice of revocation must be 
appealable and must contain the same information as a denial of waiver 
issued under paragraph (e) of this section.
    (h) Submission of waivers and notices. The State must develop 
procedures for compiling and reporting on the number of waivers issued 
and revoked, by reason, and must submit to the Department, only upon 
specific request, a record or copy of any or all waivers issued under 
this section together with a statement of reasons for each such waiver, 
and a record or copy of any or all notices of revocation of waiver 
issued under this section together with a statement of reasons for each 
such revocation. The statements of reason required under paragraphs 
(c)(1)(iii) and (e) of this section, as applicable, fulfill the 
requirement for a statement of reasons under this paragraph (h). 
Electronic records and copies are acceptable.


Sec.  618.740  Evidence of qualification for Basic, Additional, and 
Completion Trade Readjustment Allowances.

    (a) State action. When an AAW applies for Basic, Additional, or 
Completion TRA, the State having jurisdiction under Sec.  618.820 
(determinations of eligibility; notices to individuals) must obtain 
information necessary to establish:
    (1) Whether the AAW meets the qualifying requirements in Sec.  
618.720 for Basic TRA, in Sec.  618.760 for Additional TRA, or in Sec.  
618.765 for Completion TRA; and
    (2) For a partially separated AAW, the average weekly hours and 
average weekly wage in adversely affected employment.
    (b) Insufficient data. If information specified in paragraph (a) of 
this section is not available from State records or from any employer, 
the State must require the AAW to submit a signed statement setting 
forth such information as may be required for the State to make the 
determinations required by paragraph (a) of this section.
    (c) Verification. A statement made under paragraph (b) of this 
section must be certified by the AAW to be true to the best of the 
worker's knowledge and belief and must be supported by evidence 
including W-2 forms, paycheck stubs, union records, income tax returns, 
or statements of fellow workers, and must, whenever possible, be 
verified by the employer.
    (d) Determinations. The State must make the necessary 
determinations on the basis of information obtained under this section, 
except that if, after reviewing information obtained under paragraphs 
(b) and (c) of this section against other available data, including 
agency records, it concludes that such information is not reasonably 
accurate, it must make the determination on the basis of the best 
available information.
    (e) Timing. The State must follow the established method used for 
processing regular UI claims. If an employer does not respond within 
the timeframe established for UI claims, then the State must act on the 
best available information.


Sec.  618.745  Weekly amounts of Basic, Additional, and Completion 
Trade Readjustment Allowances.

    (a) TRA amount. The amount of Basic, Additional, or Completion TRA 
payable for a week of unemployment (including a week of approved 
training) is an amount equal to the most recent weekly benefit amount 
of UI (including dependents' allowances) payable to the AAW for a week 
of total unemployment preceding the worker's first exhaustion of UI 
following the worker's first qualifying separation, except that:
    (1) Where a State calculates a base period amount of UI and 
calculates dependents' allowances on a weekly supplemental basis, TRA 
weekly benefit amounts must be calculated in the same manner and under 
the same terms and conditions as apply to claimants for UI except that 
the base amount must not change.
    (2) For partially separated workers, the weekly amount of TRA must 
be calculated as determined under the applicable State law.
    (b) Workers who are undergoing training. Any AAW in approved 
training who is thereby entitled for any week to TRA and a training 
allowance (as defined in Sec.  618.705) under any other Federal law for 
the training of workers, will be paid for each week in which the AAW is 
undergoing approved training, TRA in the amount (computed for each 
week) equal to the amount computed under paragraph (a) of this section 
or, if

[[Page 52010]]

greater, the amount of any weekly allowance for such training to which 
the AAW would be entitled under any other Federal law for the training 
of workers, if the AAW applied for such allowance. TRA must be paid in 
lieu of any payment for training made directly to the AAW to which the 
AAW is entitled under such other Federal law.
    (c) Reductions to the TRA weekly amount. The weekly amount of TRA 
payable under this section will be reduced (but not below zero) by:
    (1) Income that is deductible from UI under the disqualifying 
income provisions of the applicable State law or Federal UI law, except 
that in the case of an AAW who is participating in approved training, 
such income must not include earnings from work for such week that are 
equal to or less than the most recent weekly benefit amount of the UI 
payable to the worker for a week of total unemployment preceding the 
worker's first exhaustion of UI (as determined for purposes of section 
231(a)(3)(B) of the Act).
    (2) If the amount of a training allowance as defined in Sec.  
618.705 (including a training allowance referred to in paragraph (b) of 
this section) under any Federal law that the AAW receives for such week 
is less than the amount of TRA otherwise payable to the AAW for a week, 
the AAW must, when applying for TRA for the week, be paid TRA in an 
amount not to exceed the difference between the AAW's regular weekly 
TRA amount, as determined under Sec.  618.745(a) (regular allowance), 
and the amount of the training allowance paid to the AAW for the week.
    (3) Except as provided in paragraph (c)(4) of this section, if a 
training allowance under any Federal law other than the Act, is paid to 
an AAW for any week of unemployment with respect to which the AAW would 
be entitled (determined without regard to any disqualification under 
paragraph (b) of this section) to TRA, if the AAW applied for TRA, each 
such week must be deducted from the total number of weeks of TRA 
otherwise payable to the AAW when the worker applies for and is 
determined to be entitled to TRA. If such training allowance paid 
directly to the worker for any week of unemployment is less than the 
amount of TRA to which the AAW would be entitled if the worker had 
applied for it, the AAW must receive (when the worker applies for and 
is determined to be entitled to TRA) TRA for such week equal to such 
difference.
    (4) If the training allowance (as defined in Sec.  618.705) 
referred to in paragraphs (c)(2) and (3) of this section is Federal 
student financial assistance, then the amount of TRA will not be 
reduced. In the case of an AAW to whom the Federal student financial 
assistance is available, the State will rely on prearrangements for the 
sharing of training costs under Sec.  618.625(c)(2) (payment 
restrictions for training programs) in order to harmonize the provision 
of Federal student financial assistance with the worker's TRA.
    (5) Any amount that would be deductible from UI for days of absence 
from training under the provisions of the applicable State law that 
applies to AAWs in approved training.


Sec.  618.750  Maximum amount of Basic Trade Readjustment Allowances.

    (a) General rule. Except as provided in paragraph (b) of this 
section, the maximum amount of Basic TRA payable to an AAW is the 
product of 52 multiplied by the TRA weekly amount for a week of total 
unemployment, calculated under Sec.  618.745(a) (weekly amounts of 
TRA), reduced by the total sum of UI (except State-funded additional 
compensation) that the AAW was entitled or would have been entitled to 
had the worker applied in such worker's first benefit period.
    (b) Exceptions. The maximum amount of TRA determined under 
paragraph (a) of this section does not include:
    (1) The amount of dependents' allowances paid as a supplement to 
the base weekly amount determined under Sec.  618.745; or
    (2) The amount of the difference between the AAW's weekly increased 
allowances determined under Sec.  618.745(b) and such worker's weekly 
amount determined under Sec.  618.745(a).


Sec.  618.755  Eligibility period for Basic Trade Readjustment 
Allowances.

    (a) Except as provided in paragraph (b) of this section, an AAW is 
ineligible to receive Basic TRA for any week of unemployment beginning 
after the close of the 104-week period beginning with the first week 
following the week in which the AAW's most recent qualifying separation 
occurred or after certification, whichever is later.
    (b) A State may not count any period during which a judicial or 
administrative appeal is pending with respect to a denial of a petition 
filed under subpart B of this part for the purpose of calculating the 
period of separation described in paragraph (a) of this section. The 
separation will be deemed as having occurred on the certification date 
and the Basic TRA eligibility period will begin on the week that 
follows the certification date.


Sec.  618.760  Qualifying requirements for, and timing and duration of, 
Additional Trade Readjustment Allowances.

    (a) Qualifying requirements for Additional TRA. An AAW is eligible 
to receive Additional TRA for any week only if:
    (1) The worker meets all qualifying requirements for receipt of 
Basic TRA in Sec.  618.720; and
    (2) Except as provided in Sec.  618.775 for a break in training, 
the AAW is participating in approved training.
    (b) Timing and duration of Additional TRA. Additional TRA is 
payable for up to 65 weeks during the 78 consecutive calendar week 
period that:
    (1) Immediately follows the last week of entitlement to Basic TRA 
otherwise payable to the AAW;
    (2) Begins with the first week of approved training, if such 
training begins after the last week described in paragraph (b)(1) of 
this section; or
    (3) Begins with the first week in which such training is approved 
under subpart F of this part, if such training is approved after the 
training already has commenced (although Additional TRA or training 
costs may not be paid for any week before the week in which the TAA 
approved training was approved).


Sec.  618.765  Qualifying requirements for, and timing and duration of, 
Completion Trade Readjustment Allowances.

    (a) Qualifying requirements for Completion TRA. An AAW is eligible 
to receive Completion TRA if such worker meets all qualifying 
requirements for receipt of Basic TRA in Sec.  618.720 and Additional 
TRA in Sec.  618.760, and if the eligibility criteria in paragraphs 
(a)(1) through (3) of this section are met for that week. The 
requirements in this paragraph (a) are applied at the time the State 
approves payment for a week of Completion TRA. The eligibility criteria 
are:
    (1) Payment of Completion TRA is necessary for an AAW to complete 
the approved training described in paragraph (a)(2) of this section.
    (2) The AAW is participating in approved training each week that 
leads to the completion of a degree or industry-recognized credential 
and the worker's training program will extend for a period longer than 
the periods during which Basic and Additional TRA are payable under 
Sec. Sec.  618.755 (eligibility period for Basic TRA) and 618.760 
(qualifying requirements for, timing and duration of, Additional TRA), 
and the requested weeks are necessary for the worker to complete 
training.
    (3) The worker-
    (i) Has substantially met the performance benchmarks in Sec.  
618.660

[[Page 52011]]

(training benchmarks) established as part of the approved training 
under subpart F of this part;
    (ii) Is expected to continue to make progress toward the completion 
of the approved training; and
    (iii) Will complete the approved training during the period of 
eligibility described in paragraph (c) of this section.
    (4) If, during the period in which an AAW is eligible to receive 
Completion TRA, the worker ceases to meet any of the eligibility 
criteria in paragraphs (a)(1) through (3) of this section, no further 
Completion TRA is payable to such worker.
    (b) Weeks payable. A total of up to 13 weeks of payments are 
allowable during the period of eligibility described in paragraph (c) 
of this section.
    (c) Eligibility period. Completion TRA may be payable during the 
period of 20-week consecutive calendar period that begins with the 
first week in which an AAW files a claim for Completion TRA and seeks 
compensation for such week, regardless of when the first payment is 
received. The eligibility period may be extended if justifiable cause 
exists, in accordance with Sec.  618.770(a).
    (d) Start date of Completion TRA. The State must have a process to 
take applications for Completion TRA. States must not automatically 
establish the 20-week period for Completion TRA as the week following 
either expiration of the eligibility period for Additional TRA, or the 
exhaustion of Additional TRA; filing a claim after either of those 
first weeks is permitted. Since training that leads to a degree or 
industry-recognized credential must be completed during the eligibility 
period described in paragraph (c) of this section, the first week of 
Completion TRA claimed should be carefully considered in coordination 
with case management while the AAW's training program is being 
developed.


Sec.  618.770  Special rule for justifiable cause.

    (a) The eligibility period during which Basic, Additional, and 
Completion TRA are payable to an AAW may be extended for justifiable 
cause, which has the same meaning as good cause in Sec.  618.730.
    (b) While the eligibility period for Basic, Additional, and 
Completion TRA may be extended for justifiable cause as determined by 
the State, the maximum benefit amount and number of weeks this benefit 
may be received must not change.


Sec.  618.775  Payment of Trade Readjustment Allowances during breaks 
in training.

    (a) Basic and Additional TRA are payable to an otherwise eligible 
AAW during breaks in training (periods within or between courses, terms 
(quarters or semesters), and academic years) that do not exceed 30 days 
(counted in accordance with paragraph (b) of this section), only if:
    (1) The AAW participated in approved training of this part 
immediately before the beginning of the break in training;
    (2) The break in training was provided in the established schedule 
of the training provider; and
    (3) The AAW resumes participation in the approved training 
immediately after the break ends.
    (b) For the purpose of determining whether a break in training is 
within the 30-day maximum allowed under this section, all calendar days 
beginning with the first day of the training break and ending with the 
last day of the break, as provided in the published schedule of the 
training provider, must be counted. However, any Saturday, Sunday, or 
official State or national holiday occurring during the scheduled break 
in training is excluded from the 30-day count if training normally 
would not be scheduled in the training program during those days if 
there was no break.
    (c) For Completion TRA, breaks in training are permissible during 
the 20-week eligibility period. However, payments during breaks in 
training are not allowed.


Sec.  618.780  Disqualifications.

    (a) General rule. Except as stated in paragraph (b)(1) or (c) of 
this section and in Sec.  618.832(b)(2) (overpayments; penalties for 
fraud), an AAW may not be paid TRA for any week of unemployment such 
worker is or would be disqualified from receiving UI under the 
disqualification provisions of the applicable State law, including the 
provisions of the applicable State law that apply to EB claimants and 
are consistent with EUCA.
    (b) Disqualification of trainees--(1) State law inapplicable. A 
State law may not be applied to disqualify an AAW from receiving UI or 
TRA because:
    (i) Such worker is enrolled in or participating in an approved 
training program;
    (ii) Such worker refuses work to which the State referred such 
worker because such work either would require discontinuation of 
approved training or interfere with successful participation in TAA 
approved training, except that this paragraph (b)(1)(ii) does not apply 
to an AAW who is ineligible under paragraph (b)(2) of this section;
    (iii) Such worker quits work that was not suitable employment and 
it was reasonable and necessary to quit in order to begin or continue 
approved training. This includes temporary employment the worker may 
have engaged in during a break in training;
    (iv) Such worker continues full-time or part-time employment while 
participating in approved training; or
    (v) Such worker leaves OJT within the first 30 days because the OJT 
is not meeting requirements of section 236(c)(1)(B) of the Act.
    (2) Disqualifications. An AAW who, without justifiable cause (as 
described in paragraph (b)(3)(iii) of this section), fails to begin 
participation (as described in paragraph (b)(3)(i) of this section) in 
approved training, or ceases participation (as described in paragraph 
(b)(3)(ii) of this section) in such training, or for whom a waiver is 
revoked under Sec.  618.735(f) (waiver of training requirement for 
Basic TRA), may not receive Basic TRA for any week in which such 
failure, cessation, or revocation occurred. The disqualification will 
continue for any succeeding week thereafter until the week in which 
such worker begins or resumes participation in an approved training 
program. A worker who has justifiable cause (as described in paragraph 
(b)(3)(iii) of this section) for such failure to begin, or for ceasing, 
participation in training may receive Basic TRA for any week in which 
such failure or cessation occurred if the worker otherwise meets the 
requirements of this subpart. Such failure, cessation, or revocation 
normally does not change the eligibility periods defined in Sec. Sec.  
618.755, 618.760(b), and 618.765(b) and (c).
    (3) Disqualification conditions. For determining the 
disqualification of trainees for all TAA approved training, the 
following provisions apply:
    (i) Failed to begin participation. A worker will be determined to 
have failed to begin participation in an approved training program when 
the worker fails to attend one or more scheduled training classes and 
other training activities in the first week of the approved training 
program, without justifiable cause.
    (ii) Ceased participation. A worker will be determined to have 
ceased participation in an approved training program when the worker 
fails to attend all scheduled training classes and other training 
activities scheduled by the training provider in any week of the 
approved training program, without justifiable cause.
    (iii) Justifiable cause. For purposes of this section, justifiable 
cause has the same meaning as good cause under Sec.  618.730, except 
that good cause for

[[Page 52012]]

absence also includes an absence excused under a training provider's 
written policy.
    (c) Disqualification while in OJT. An AAW may not be paid any TRA 
for any week during which such worker is engaged in OJT, in accordance 
with Sec.  618.635.
    (d) Disqualification while in part-time training. An AAW may not be 
paid any TRA for any week in which the worker is participating in 
approved training that is part-time. Part-time training is any approved 
training that does not meet the definition of ``full-time training'' as 
defined in Sec.  618.110.
Subpart H--Administration by Applicable State Agencies
Sec.
618.800 Scope.
618.804 Agreements with the Secretary of Labor.
618.808 State rulemaking.
618.812 Subpoenas.
618.816 Trade Adjustment Assistance Program benefit information and 
provision of services to workers.
618.820 Determinations of eligibility; notices to individuals.
618.824 Liable State and agent State responsibilities.
618.828 Appeals and hearings.
618.832 Overpayments; penalties for fraud.
618.836 Recovery of debts due the United States or to others by 
Trade Adjustment Assistance offset.
618.840 Uniform interpretation and application of this part.
618.844 Inviolate rights to Trade Adjustment Assistance or 
Reemployment Trade Adjustment Assistance.
618.848 Veterans' priority of service.
618.852 Recordkeeping and disclosure of information requirements.
618.856 Information, reports, and studies.
618.860 General fiscal and administrative requirements and cost 
classification.
618.864 Trade Adjustment Assistance Program performance.
618.868 Unemployment Insurance.
618.872 Travel under the Trade Adjustment Assistance Program.
618.876 Verification of eligibility for program benefits.
618.884 Special rule with respect to military service.
618.888 Equitable tolling.
618.890 Staffing flexibility.
618.894 Nondiscrimination and equal opportunity requirements.
618.898 Applicable State law.

Subpart H--Administration by Applicable State Agencies


Sec.  618.800  Scope.

    This subpart covers the general administrative requirements a State 
must follow in providing the benefits and services available under the 
TAA Program. The requirements in this subpart include: The provision of 
rapid response and appropriate career services to groups of workers for 
whom a petition is filed, delivering TAA Program benefits and services 
to trade-affected workers, assisting in the filing of petitions for 
those likely to be eligible for benefits under this part, conducting 
outreach to groups of workers covered under a petition for TAA filed 
under subpart B of this part, and notifying UI claimants of the TAA 
Program.


Sec.  618.804  Agreements with the Secretary of Labor.

    (a) Authority. A State or CSA must, before performing any function 
or exercising any jurisdiction under the Act and this part, execute an 
Agreement meeting the requirements of the Act with the Secretary.
    (b) Execution. (1) An Agreement under paragraph (a) of this section 
must be signed and dated on behalf of the State or the CSA by an 
authorized official whose authority is certified by the State Attorney 
General or counsel for the CSA, unless the Agreement is signed by the 
Governor or the chief elected official of the State. In the event that 
a State does not execute an Agreement under paragraph (a) of this 
section, then section 3302(c)(3) of the Internal Revenue Code of 1986, 
as amended (26 U.S.C. 3302(c)(3)) (loss of unemployment tax credits 
under section 3302(a) and (b)), applies.
    (2) A State or CSA must execute an amended Agreement with the 
Secretary, upon the request of the Secretary, in response to 
legislative or regulatory changes to the TAA Program.
    (3) The Secretary will execute an Agreement on behalf of the United 
States.
    (c) Public access to Agreements. The CSA must make available for 
inspection and copying, an accurate copy of its Agreement under this 
section to any individual or organization that requests it. The CSA may 
furnish copies of the Agreement upon payment of the same charges, if 
any, as apply to the furnishing of copies of other records of the CSA.
    (d) Agent of the United States. A State that has executed an 
Agreement under this section is an agent of the United States for 
purposes of receiving applications for and providing payments on the 
basis provided in this part and must carry out fully the purposes of 
the Act and this part.
    (e) Breach. If the Secretary determines that the State or CSA has 
not fulfilled its commitments under its Agreement stated in this 
section, the Secretary may terminate the Agreement. The Secretary must 
provide the State or CSA reasonable notice and an opportunity for a 
hearing before the Secretary makes a finding that the State has not 
fulfilled its commitments under its Agreement. In the event that the 
Secretary determines the State or CSA has not fulfilled its commitments 
under its Agreement, section 3302(c)(3) of the Internal Revenue Code of 
1986, as amended (regarding loss of unemployment tax credits under 
section 3302(a) and (b)), applies.
    (f) Review of State and CSA compliance. The Department is 
responsible for monitoring and reviewing State and CSA compliance with 
the Agreement entered into under the Act and this section.
    (g) Merit staffing. States must comply with the staffing 
flexibility provisions contained in Sec.  618.890.
    (h) Contents. Each Agreement under this section must contain 
provisions including, but not limited to, the following:
    (1) Provisions consistent with the requirements of section 239 of 
the Act (19 U.S.C. 2311);
    (2) Authorization for the State to issue waivers under Sec.  
618.735 (waiver of training requirement for Basic TRA) and the 
requirement that the State submit, upon request, to the Department a 
copy of each such waiver and, if not already contained within each 
waiver, a statement of the reasons for such waiver;
    (3) The requirement that the State supply data to the Department on 
national TAA Program performance goals identified in applicable 
regulations, the Department's written directives, or any other written 
means used to communicate such goals; and
    (4) Provisions establishing TAA Program funds as the primary source 
of Federal assistance to trade-affected workers. This means that 
following certification of a petition under subpart B of this part, the 
costs for providing services to a worker group should shift from WIOA 
and other programs to the TAA Program.
    (i) Administration absent State Agreement. (1) In any State in 
which no Agreement under this section is in effect, the Secretary will 
administer the Act and this part through appropriate arrangements made 
by the Department.
    (2) The Secretary will administer TAA in accordance with this part 
and the provisions of the applicable State law, except to the extent 
that such State law is inconsistent with this part, section 303 of SSA 
(42 U.S.C. 503), or section 3304(a) of the Internal Revenue Code of 
1986, as amended (26 U.S.C. 3304(a)).
    (3) The Secretary will provide for a fair hearing for any 
individual whose application for TAA is denied. A final determination 
as to eligibility for TAA

[[Page 52013]]

will be subject to review as provided in 42 U.S.C 405(g), as required 
by section 240(b) of the Act.
    (4)(i) The Department will issue administrative guidance providing 
additional detail on the operation of the TAA Program within that 
State.
    (ii) Prior to providing administrative guidance, the Department 
will consult with the Governor, other State agencies, neighboring 
States, and other organizations to determine how best to ensure access 
to the TAA Program within that State. Options to administer the program 
that the Department may consider include, but are not limited to:
    (A) Executing an agreement with another State to operate the TAA 
Program;
    (B) Executing an agreement with a qualified organization within the 
State that adheres to all TAA Program requirements in this part to 
operate the TAA Program; and
    (C) Directly administering the TAA Program.
    (j) Program coordination. State agencies providing employment and 
case management services under subpart C of this part and training 
under subpart F of this part must, in accordance with their Agreements 
under this section, coordinate such services and payments with programs 
and services provided by WIOA and with the State agency administering 
the State law. Any agency of the State jointly administering such 
provisions under this Agreement must be considered to be a CSA for 
purposes of this part.


Sec.  618.808  State rulemaking.

    (a) A State may establish laws, regulations, procedures, or 
policies, not inconsistent with the Act or this part, or administrative 
guidance issued by the Department.
    (b) The State must submit the exact text of such proposed law, 
regulation, procedure, or policy, certified as accurate by a 
responsible official, employee, or counsel of the State, to the 
Department.
    (c) No law, regulation, procedure, or policy proposed under 
paragraph (a) of this section may become effective unless and until 
approved by the Department. The Department may grant approval on a 
temporary basis, not to exceed 90 days, in cases of administrative 
necessity.
    (d) The Department may withdraw approval at any time with 
reasonable notice of no less than 30 days to a State.
    (e) If public notice and opportunity for hearing would be required 
under State law for adoption of a similar law, regulation, procedure, 
or policy involving UI or other State or Federal law, the State must 
provide such public notice and opportunity for hearing.


Sec.  618.812  Subpoenas.

    (a) A State may require by subpoena the attendance of witnesses and 
production of evidence necessary for use in the determination of an 
individual's eligibility for TAA Program services and benefits or to 
obtain information needed to assist the Department in the petition 
determination process.
    (b) This power includes the ability of the State to subpoena an 
employer for information necessary to determine whether a certification 
covers a worker, including the name, address, and Social Security 
number of the worker.
    (c) The State may enforce compliance with subpoenas as provided 
under State law and, if a State court declines to enforce a subpoena 
issued under this section, or the State does not attempt a subpoena 
under State law, the State must petition for an order requiring 
compliance with such subpoena to the District Court of the United 
States with jurisdiction over the proceeding.


Sec.  618.816  Trade Adjustment Assistance Program benefit information 
and provision of services to workers.

    (a) Providing information to workers. State agencies must provide 
information to each worker who applies for UI about the benefit 
allowances, training, and other services available under this part, and 
about the application procedures, and the appropriate filing dates, for 
such allowances, training, and other services.
    (b) Rapid response and appropriate career services. States must 
ensure that rapid response assistance and appropriate career services, 
as described in section 134 of WIOA, are made available to members of a 
group of workers for whom a petition under subpart B of this part has 
been filed.
    (c) Providing reemployment services. (1) For trade-affected workers 
covered by a certification, States must:
    (i) Make available employment and case management services 
described in subpart C of this part, including testing, counseling, 
assessment, and placement services; and
    (ii) Provide referrals to, assistance in securing of, and approvals 
of training under subpart F of this part.
    (2) If funds provided to carry out this part are insufficient to 
make such services available, States must arrange to make such services 
available through other Federal programs.
    (d) Petition filing assistance. (1) States must facilitate the 
early filing of petitions for a group of workers that the State 
considers are likely to be eligible for TAA Program benefits.
    (2) For purposes of paragraph (d)(1) of this section, ``likely to 
be eligible'' means the State has a reasonable belief that a 
certification will be issued for the group of workers based on 
observations made by State staff; existence of certifications within 
the same industry, sector, or supply chain; or information or 
statements from the firm, union, workers, media coverage, or other 
reports.
    (3) States must provide assistance to enable individuals and other 
entities eligible to file to prepare petitions or applications for 
program benefits.
    (4) Petitions must be filed under paragraph (d)(1) of this section 
even if the firm, a union, elected officials, or members of the group 
of workers oppose the filing.
    (e) Providing information after issuance of a certification. (1) 
States must inform the State's board on vocational and technical 
education (also called the eligible agency, as defined in 20 U.S.C. 
2302(12)) or the equivalent agency in the State and other public or 
private agencies, institutions, and employers, as appropriate, of each 
certification issued under subpart B of this part and of projections, 
if available, of the needs for training under subpart F of this part as 
a result of such certification.
    (2) Upon receipt of a certification issued under subpart B of this 
part by the Department, the State must provide a written notice through 
the mail, of the benefits available under this part to each worker 
known to be covered by the certification when the worker becomes 
partially or totally separated or as soon as possible after the 
certification is issued if the worker is already partially or totally 
separated from adversely affected employment. The State must also 
provide notice to all workers threatened with separation who may be 
AAIWs. These notices must contain the following information:
    (i) The worker group(s) covered by the TAA certification and the 
article(s) produced or services rendered as specified in the copy of 
the certification furnished to the State;
    (ii) The name and the address or location of workers' firm;
    (iii) The impact, certification, and expiration dates in the 
certification document.
    (iv) A summary of benefits and services available to the workers;
    (v) An explanation of how, when, and where the workers may apply 
for TAA Program benefits and services;

[[Page 52014]]

    (vi) The training enrollment deadlines (set forth in Sec.  618.725) 
for TRA qualification;
    (vii) Whom to contact to get additional information on the 
certification; and
    (viii) A Babel notice (a short notice in multiple languages 
informing the reader that the communication contains vital information 
and explaining how to access language services to have the contents of 
the communication provided in other languages).
    (3) In order to identify these workers, the State must obtain from 
the firm, or another reliable source, the names and addresses of all 
workers who were partially or totally separated from adversely affected 
employment before the agency received the certification, and of all 
workers who are thereafter partially or totally separated or threatened 
with separation within the certification period. Provision of this 
information may be compelled under the subpoena provisions at Sec.  
618.812.
    (4) Upon receipt of a copy of a certification issued by the 
Department affecting workers in a State, the State must publish a 
notice of the certification in a newspaper of general circulation in 
areas in which such workers reside. The published notice must include 
the same information identified in paragraphs (e)(2)(i) through (viii) 
of this section. The notice may be filed in a print version of the 
newspaper, or in the online or digital version of the newspaper if it 
can be reasonably expected to reach the interested parties.
    (5) Upon receipt of a copy of a certification issued by the 
Department, the State must perform outreach to, intake of, and 
orientation for trade-affected workers covered by the certification 
with respect to assistance and benefits available under this part.
    (6) In addition to the mailed written notice under paragraph (e)(2) 
of this section, States must also give notice to each worker by at 
least one method of modern electronic communication reasonably 
calculated to reach each worker. For example, States may give notice 
via email to a worker with a known email address, or by text to a 
worker with a known mobile phone number.
    (7) States may also use other modern methods of communication, such 
as websites and social media, to reach members of certified worker 
groups.
    (f) Specific benefit assistance to workers. States must:
    (1) Advise each trade-affected worker, as soon as practicable after 
the worker is separated from adversely affected employment or, if 
later, after a certification is issued, or upon notice of the worker's 
threatened status, of the benefits and services available under this 
part, including the qualifying requirements, procedures, and deadlines 
for applying for such benefits and services.
    (2) Perform an intake interview for each trade-affected worker 
(unless the worker declines the interview) as soon as practicable after 
the worker is separated from adversely affected employment, after a 
certification is issued, or upon notice of the worker's threatened 
status. The interview must be scheduled in time for the worker to meet 
the training enrollment deadline set forth in proposed Sec.  
618.725(a). During the interview, States must provide information about 
all of the benefits available under this part.


Sec.  618.820  Determinations of eligibility; notices to individuals.

    (a) Determinations on initial applications. The State whose State 
law is the applicable State law must, upon the filing of an initial 
application by an individual, promptly determine the individual's 
eligibility for TAA Program benefits under this part and may accept for 
such purposes information and findings supplied by another State.
    (b) Determinations on subsequent applications. The State must, upon 
the filing of an application for payment of TRA, RTAA, subsistence and 
transportation, job search allowance, or relocation allowance, promptly 
determine whether the individual is eligible for such payment and, if 
eligible, the amount of such payment.
    (c) Redeterminations. The provision for redeterminations under the 
applicable State law applies to determinations of eligibility for any 
benefit under this part.
    (d) Use of State law. In making determinations or redeterminations 
under this section, or in reviewing such determinations or 
redeterminations under Sec.  618.820, a State must apply the 
regulations in this part. As to matters committed by this part to be 
decided under the applicable State law, a CSA, a hearing officer, or a 
State court must apply the applicable State law and regulations 
thereunder, including the procedural requirements of the applicable 
State law or regulations, except that no provision of State law or 
State regulations on good cause for waiver of any time limit, or for 
late filing of any claim, will apply to any time limitation referred to 
or specified in this part, unless such State law or regulation is made 
applicable by a specific provision of this part. However, States must 
follow the good cause provision at Sec.  618.730.
    (e) Notices to individuals. The State must notify individuals in 
writing of any determination or redetermination of eligibility to TAA 
Program benefits. Each determination or redetermination must inform the 
individual of the reason for the determination or redetermination and 
of the right to reconsideration or appeal in the same manner as 
determinations of entitlement to UI are subject to redetermination or 
appeal under the applicable State law.
    (f) Promptness. States must make full payment of TAA Program 
benefits when due with the greatest promptness that is administratively 
feasible.
    (g) Procedure. Except where otherwise required by the Act or this 
part, the procedures for making and furnishing determinations, the 
promptness standards, and written notices of determinations to 
individuals, must be consistent with the Department's ``Standard for 
Claim Determinations--Separation Information,'' Employment Security 
Manual, part V, sections 6010 through 6015 (appendix B of this part).
    (h) Successor-in-interest. (1) States are authorized to determine 
whether a firm is a successor-in-interest to a firm named as the 
employer of a worker group on a determination issued under subpart B of 
this part.
    (2) The factors to be used to determine whether or not there is a 
successor-in-interest are established in Sec.  618.110.
    (3) If, after reviewing the successor-in-interest factors, the 
State believes that a denial of benefits is warranted, the State must 
file a new petition requesting an amendment to the certification under 
Sec.  618.250.


Sec.  618.824  Liable State and agent State responsibilities.

    (a) Liable State. The liable State, as defined in Sec.  618.110, is 
responsible for:
    (1) Making all determinations, redeterminations, and decisions on 
appeals on all claims for program benefits under this part, including 
job search and relocation allowances under subpart D of this part; RTAA 
under subpart E of this part; training under subpart F of this part; 
subsistence and transportation payments under subpart F of this part; 
Basic, Additional, and Completion TRA under subpart G of this part; and 
waivers and revocations of waivers under subpart G of this part;
    (2) Providing workers with general program information and 
assistance under Sec.  618.816;
    (3)(i) Providing rapid response assistance and appropriate career 
services, as described under section 134 of WIOA, to the group of 
workers in the State covered by the petition upon

[[Page 52015]]

receiving notice of any such workers for whom a petition is filed.
    (ii) This includes making career services authorized under other 
Federal laws available to the workers covered by the petition to the 
extent authorized under such laws.
    (iii) In certain situations, based on the residency of the group of 
workers, it may be appropriate for agent States to also be involved in 
the provision of these services, but in all instances the liable State 
must be ultimately responsible for ensuring the provision of these 
services;
    (4) Providing information and assistance to trade-affected workers 
under Sec.  618.816(c) (providing reemployment services), (e) 
(providing information after issuance of a certification), and (f) 
(specific benefit assistance to workers) upon receiving a certification 
issued by the Department with respect to affected workers at a firm or 
appropriate subdivision in the State;
    (5) Providing a list of eligible TAA recipients and eligible RTAA 
recipients, for HCTC purposes, to the Internal Revenue Service if HCTC 
is available; and
    (6) Assisting in other activities and functions required by the 
Governor-Secretary Agreement at Sec.  618.804, including assisting the 
Department in the review of petitions by verifying such information and 
providing such other assistance as the Department may request.
    (b) Agent State. The agent State, as defined in Sec.  618.110, is 
responsible for:
    (1) Providing interstate claimants with general program information 
and assistance under Sec.  618.816(a) and petition filing assistance 
under Sec.  618.816(d);
    (2) Cooperating fully with and assisting the liable State in 
carrying out its responsibilities, activities, and functions, including 
the provision of rapid response and appropriate career services, as 
needed;
    (3) Cooperating with the liable State in taking applications and 
claims for TAA Program benefits under this part;
    (4) Providing employment and case management services, as described 
in subpart C of this part, to trade-affected workers covered by a 
certification issued by the Department under this part;
    (5) Cooperating with the liable State by providing information that 
the liable State needs for it to issue determinations, 
redeterminations, and decisions on appeals on all claims for program 
benefits under this part, as described in paragraph (a)(1) of this 
section;
    (6) Securing, and paying the cost of, any approved training under 
subpart F of this part, and payment of subsistence and transportation 
under subpart F of this part, according to determinations issued by the 
liable State;
    (7) Paying costs under subpart D of this part for job search and 
relocation allowances; and
    (8) Assisting in other activities and functions required by the 
Agreement under Sec.  618.804, including assisting in the review of 
petitions by verifying information and providing such other assistance 
as the Department may request.
    (c) Responsibilities under this section. In most instances, the 
liable State and agent State will be the same State and is responsible 
for all of the activities and functions described in paragraphs (a) and 
(b) of this section.


Sec.  618.828  Appeals and hearings.

    (a) Applicable State law. Except as provided in paragraph (b) of 
this section, a determination or redetermination under this part (other 
than a determination on the eligibility of a group of workers under 
subpart B of this part, which is subject to review by the USCIT) is 
subject to review in the same manner and to the same extent as 
determinations and redeterminations under the applicable State law, and 
only in that manner and to that extent. Proceedings for review of a 
determination or redetermination may be consolidated or joined with 
proceedings for review of other determinations or redeterminations 
under the applicable State law where convenient or necessary. The right 
of appeal and opportunity for fair hearing for these proceedings must 
be consistent with section 303(a)(1) and (3) of SSA (42 U.S.C. 
503(a)(1) and (3)).
    (b) Allegations of discrimination. Complaints alleging that a 
determination or redetermination under this part violates applicable 
Federal nondiscrimination laws administered by the U.S. Department of 
Labor must be handled in accordance with the procedures of 29 CFR parts 
31, 32, 35, 36, and 38, as applicable, and as provided in Sec.  618.894 
(nondiscrimination and equal opportunity requirements).
    (c) Appeals promptness. Appeals under paragraph (a) of this section 
must be decided with a degree of promptness meeting the Department's 
``Standard for Appeals Promptness--Unemployment Compensation'' (20 CFR 
part 650). Any provisions of the applicable State law for advancement 
or priority of UI cases on judicial calendars, or other provisions 
intended to provide for prompt payment of UI when due, must apply 
equally to proceedings involving eligibility for TAA Program benefits 
and services under this part.
    (d) Retroactivity. In the case of a redetermination or decision 
reversing a training denial, the redetermination or decision must be 
given effect retroactively to the date of issuance of the determination 
that was subsequently reversed. However, no costs of training may be 
paid unless such costs actually were incurred for training in which the 
individual participated. In addition, if a TRA application was filed 
and denied as a result of the training denial, TRA may only be paid 
with respect to any week during which the individual was actually 
participating in the training.


Sec.  618.832  Overpayments; penalties for fraud.

    (a) Determinations and repayment. (1) If a State, the Department, 
or a court of competent jurisdiction determines that any person has 
received any payment under this part to which the person was not 
entitled, including a payment referred to in paragraph (b) of this 
section, such person is required to repay such amount to the State or 
the Department, as appropriate, except that the State or the Department 
must waive such repayment if such State or the Department determines 
that:
    (i) The payment was made without fault on the part of such person; 
and
    (ii) Requiring such repayment would cause a financial hardship for 
the person (or the person's household, if applicable).
    (2) States must provide persons determined to have received TAA 
overpayments a reasonable opportunity to demonstrate their eligibility 
for waiver under the criteria in paragraphs (a)(1)(i) and (ii) of this 
section.
    (3) A financial hardship exists if recovery of the overpayment 
would result in the person's (or the person's household's) loss of or 
inability to pay for ordinary and necessary living expenses. This 
determination must take into account the income and resources 
(including liquid financial resources) reasonably available to the 
person (and the person's household).
    (4) Fault exists for purposes of paragraph (a)(1)(i) of this 
section if any of the following criteria are met:
    (i) 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 knew or should have 
known that the statement or representation was inaccurate;

[[Page 52016]]

    (ii) Whether the person 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 knew or should have 
known that the fact was material;
    (iii) Whether the person knew or should have known that the person 
or individual was not entitled to the TAA payment;
    (iv) Whether, for any other reason, the overpayment resulted 
directly or indirectly, and partially or totally, from any act or 
omission of the person or of which the person or individual had 
knowledge, and that was erroneous or inaccurate or otherwise wrong; or
    (v) Whether there has been a determination of fraud under paragraph 
(b) of this section.
    (b) False representation or nondisclosure of material fact. In 
addition to any other penalty provided by law, a person will be 
permanently ineligible for any further payments under this part if a 
State, the Department, or a court of competent jurisdiction determines 
that:
    (1) Such person:
    (i) Knowingly made, or caused another to make, a false statement or 
representation of a material fact; or
    (ii) Knowingly failed, or caused another to fail, to disclose a 
material fact; and
    (2) As a result of such false statement or representation, or of 
such nondisclosure, such person has received any payment under this 
part to which the person was not entitled.
    (c) Notice of determination, fair hearing, and finality. 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)(1) of this section by 
the State or the Department, as appropriate, has been made, notice of 
the determination and an opportunity for a fair hearing thereon has 
been given to the person concerned, and the determination has become 
final.
    (d) Training, job search and relocation allowances, and RTAA. (1) 
If a trade-affected worker fails, with good cause, to complete 
training, a job search, or a relocation, any payment or portion of a 
payment made under this part to such person or individual properly and 
necessarily expended in attempting to complete such training, job 
search, or relocation is not an overpayment.
    (2) If a trade-affected worker fails, without good cause, to 
complete training, a job search, or a relocation, then the portion of a 
payment for the noncompleted component of a benefit is an overpayment. 
Costs for the completed portions of the training program, job search, 
or relocation are not an overpayment.
    (3) For purposes of this paragraph (d), good cause exists if the 
worker acted diligently yet was unable to complete training, a job 
search, or relocation because of exigent circumstances. The State must 
determine good cause on a worker-by-worker basis.
    (4) An overpayment established under this paragraph (d) must be 
recovered or waived as provided in this section.
    (5) For RTAA, an individual meets the ``earns not more than $50,000 
each year in wages from reemployment'' requirement in section 246 of 
the Act for a given month if the monthly determination of annualized 
wages is accurate and complete at the time it is made. Payments derived 
from the annualized wage projection based on complete and accurate 
information at the time are valid payments that the individual was 
entitled to and are not overpayments.
    (e) Overpayment recovery of TAA Program funds by offset. Unless an 
overpayment is otherwise recovered or is waived, the State-
    (1) Must, subject to the limitation in paragraph (e)(3) of this 
section, recover the overpayment by deduction from any sums payable to 
such person under:
    (i) This part;
    (ii) Any Federal UI law administered by the State; or
    (iii) Any other Federal law administered by the State that provides 
for the payment of unemployment assistance or an allowance with respect 
to unemployment.
    (2) Must recover the overpayment from UI payable to such person 
under the applicable State law.
    (3) Must not allow any single deduction under this paragraph (e) to 
exceed 50 percent of the amount otherwise payable to the person; except 
that if the applicable State law provides for an overpayment recovery 
deduction that is less than 50 percent of the amount otherwise payable, 
such recovery must be equal to that lesser percentage.
    (f) Fraud detection and prevention. State procedures for the 
detection and prevention of fraudulent overpayments of TAA benefits 
must be, at a minimum, the same as the procedures adopted by the State 
with respect to State unemployment compensation, and consistent with 
the Department's ``Standard for Fraud and Overpayment Detection,'' 
Employment Security Manual, part V, sections 7510 through 7515 
(appendix C to this part).
    (g) Person. For purposes of this section and Sec.  618.836 
(recovery of debts due the United States or others by TAA offset), a 
person includes, in addition to a trade-affected worker or other 
individual, any employer or other entity or organization as well as the 
officers and officials thereof, including any training provider as well 
as the officers and officials thereof, who may bear individual 
responsibility for the overpayment.
    (h) Criminal penalties. (1) Any person who makes a false statement 
of a material fact knowing it to be false, or knowingly fails to 
disclose a material fact under the circumstances described in paragraph 
(h)(1)(i) or (ii) of this section, must be imprisoned for not more than 
1 year, fined under title 18, United States Code, or both.
    (i) For the purpose of obtaining or increasing for that person or 
for any other person any payment authorized to be furnished under the 
Act or pursuant to a Governor-Secretary Agreement under section 239 of 
the Act; or
    (ii) When providing information during an investigation of a 
petition under section 221 of the Act.
    (2) Whenever a violation under paragraph (h)(1) of this section is 
suspected, the State or the Department must refer the conduct to the 
U.S. Department of Labor Office of the Inspector General.


Sec.  618.836  Recovery of debts due the United States or to others by 
Trade Adjustment Assistance offset.

    (a) Debt due the United States. Notwithstanding any other provision 
of this part, the State must apply TAA benefits, payable under this 
part to a person (as described in Sec.  618.832(g)), for the recovery 
by offset of any debt due the United States from the person.
    (b) Debt due to others. The State must not apply TAA Program 
benefits for the payment of any debt of any person to any State or any 
other entity or person, except for TRA and RTAA benefits as required by 
Federal UI law.


Sec.  618.840  Uniform interpretation and application of this part.

    (a) First rule of construction. The implementing regulations in 
this part will be construed liberally to carry out the purposes of the 
Act.
    (b) Second rule of construction. The implementing regulations in 
this part will be construed to assure, insofar as possible, the uniform 
interpretation and application of the Act and this part throughout the 
United States.
    (c) Effectuating purposes and rules of construction. (1) To 
effectuate the purposes of the Act and this part and to

[[Page 52017]]

assure uniform interpretation and application of the Act and this part 
throughout the United States:
    (i) A State must, upon request, forward to the Department, not 
later than 10 days from the date of the request, a copy of any 
administrative ruling on an individual's eligibility to TAA benefits 
under this part.
    (ii) Notwithstanding paragraph (c)(1)(i) of this section, a State 
must forward to the Department a copy of any determination or 
redetermination on an individual's eligibility to TAA benefits under 
this part appealed to the State's highest UI administrative appeals 
authority.
    (iii) A State must forward to the Department a copy of notice of 
the institution of a State or Federal court proceeding and any State or 
Federal court ruling on an individual's eligibility to TAA Program 
benefits under this part, within 10 days of the notice or ruling.
    (2) If the Department concludes that a determination, 
redetermination, or decision is inconsistent with the Department's 
interpretation of the Act or this part, the Department may at any time 
notify the State of the Department's view. Thereafter, the State must 
issue a redetermination or appeal if possible and must not follow such 
determination, redetermination, or decision as a precedent; and, in any 
subsequent proceedings that involve such determination, 
redetermination, or decision, or wherein such determination, 
redetermination, or decision is cited as precedent or otherwise relied 
upon, the State must inform the claims deputy or hearing officer or 
court of the Department's view and must make all reasonable efforts, 
including appeal or other proceedings in an appropriate forum, to 
obtain modification, limitation, or overruling of the determination, 
redetermination, or decision.
    (3) If the Department concludes that a determination, 
redetermination, or decision is patently and flagrantly violates of the 
Act or this part, the Department may at any time notify the State of 
the Department's view. If the determination, redetermination, or 
decision in question denies TAA to an individual, the State must follow 
the steps outlined in paragraph (c)(2) of this section. If the 
determination, redetermination, or decision in question awards TAA to 
an individual, the benefits are ``due'' within the meaning of section 
303(a)(1) of SSA (42 U.S.C. 503(a)(1)), and therefore must be paid 
promptly to the individual. However, the State must take the steps 
outlined in paragraph (c)(2) of this section, and payments to the 
individual may be temporarily delayed if redetermination or appeal 
action is taken not more than 1 business day following the day on which 
the first payment otherwise would be issued to the individual; and the 
redetermination action is taken or appeal is filed to obtain a reversal 
of the award of TAA and a ruling consistent with the Department's view; 
and the redetermination action or appeal seeks an expedited 
redetermination or appeal within not more than 2 weeks after the 
redetermination action is taken. If redetermination action is not taken 
or appeal is not filed within the above time limit, or a 
redetermination or decision is not obtained within the 2-week limit, or 
any redetermination or decision or order is issued that affirms the 
determination, redetermination, or decision awarding TAA or allows it 
to stand in whole or in part, the benefits awarded must be paid 
promptly to the individual.
    (4)(i) If any determination, redetermination, or decision, referred 
to in paragraph (c)(2) or (3) of this section, is treated as a 
precedent for any future application for TAA, the Secretary will decide 
whether the Agreement with the State entered into under the Act and 
this part will be terminated and Sec.  618.804(e) applied.
    (ii) In the case of any determination, redetermination, or decision 
that is not legally warranted under the Act or this part, including any 
determination, redetermination, or decision referred to in paragraph 
(c)(2) or (3) of this section, the Secretary will decide whether the 
State must restore the funds of the United States for any sums paid 
under such a determination, redetermination, or decision, and whether, 
in the absence of such restoration, the Agreement with the State will 
be terminated and Sec.  618.804(e) applied and whether other action 
must be taken to recover such sums for the United States.
    (5) A State may request, in writing, within 10 calendar days of 
receiving a notice under paragraph (c)(2) or (3) of this section, 
reconsideration of the notice. The State will have an opportunity to 
present its views and arguments if desired. The State must submit such 
a request to the Secretary and may include views and arguments on the 
matters the Secretary is to decide under paragraph (c)(3) of this 
section. The Secretary must respond to the State's reconsideration 
request within 30 calendar days of receiving the request.
    (6) Concurrence of the Department with a determination, 
redetermination, or decision must not be presumed from the absence of a 
notice issued pursuant to this section.
    (d) Payment when due. If the determination, redetermination, or 
decision in question awards TAA Program benefits to an individual, the 
benefits are ``due'' within the meaning of section 303(a)(1) of SSA (42 
U.S.C. 503(a)(1)), and therefore must be paid promptly to the 
individual. Payments to the individual may be temporarily delayed if a 
redetermination is issued not more than 1 business day following the 
day on which the first payment otherwise would be issued to the 
individual; and the State seeks an expedited appeal decision within not 
more than 2 calendar weeks after the appeal is filed. If the 
redetermination is not issued or the appeal is not filed within the 
time limit in the preceding sentence, or the decision on appeal is not 
obtained within the 2-calendar week limit in the preceding sentence, or 
any decision on appeal is issued that affirms the determination, 
redetermination, or decision awarding benefits under this part or 
allows it to stand in whole or in part, the benefits awarded must be 
paid promptly to the individual.


Sec.  618.844  Inviolate rights to Trade Adjustment Assistance or 
Reemployment Trade Adjustment Assistance.

    (a) Except as specifically provided in this part, the rights of 
individuals to TAA Program benefits will be protected in the same 
manner and to the same extent as the rights of persons to UI are 
protected under the applicable State law. Such measures must include 
protection of applicants for TAA Program benefits from waiver, release, 
assignment, pledge, encumbrance, levy, execution, attachment, and 
garnishment of their rights to TAA Program benefits, except as provided 
in Sec. Sec.  618.832 (overpayments; penalties for fraud) and 618.836 
(recovery of debts due the United States or others by TAA offset).
    (b) In the same manner and to the same extent as the rights of 
persons to UI are protected under the applicable State law, individuals 
must be protected from discrimination and obstruction in regard to the 
right to seek, apply for, and receive any TAA Program benefit.


Sec.  618.848  Veterans' priority of service.

    The State must give priority for approval and funding of TAA 
Program benefits (including training, where the approval of training 
criteria are met) to a trade-affected worker meeting the veterans' 
priority of service criteria established under 38 U.S.C. 4215.


Sec.  618.852  Recordkeeping and disclosure of information 
requirements.

    (a) Recordkeeping. (1) Each State must make and maintain such 
records pertaining to the administration of the

[[Page 52018]]

Act as the Department requires and must make all such records available 
for inspection, examination, and audit by such Federal officials as the 
Department may designate or as may be required by law.
    (2)(i) States must maintain records that contain any information 
that the Department determines to be appropriate in support of any 
reports that the Department may require, including those reports 
specified in Sec. Sec.  618.860(f) (general fiscal and administrative 
requirements and cost classification) and 618.864(e) (TAA Program 
performance).
    (ii) States must maintain records as required by 2 CFR 200.333 for 
3 years, or as indicated at 2 CFR 200.333(a) through (f).
    (3) States must comply with the records requirements established in 
the Uniform Guidance at 2 CFR 200.333 through 200.337.
    (4) States must document that they provided or offered the 
employment and case management services described in subpart C of this 
part to all trade-affected workers, either in a paper-based or 
electronic case management system. States must make these systems 
available for review upon request by the Department. Additionally, the 
case management file of each participant must demonstrate that the 
State notified each worker of the training enrollment deadlines set 
forth in proposed Sec.  618.725(a).
    (b) Disclosure of information. (1) Information in records 
maintained by a State in administering the Act must be kept 
confidential, and information in such records may be disclosed only in 
the same manner and to the same extent as information with respect to 
UI and the entitlement of individuals thereto may be disclosed under 
the applicable State law. Such information must not, however, be 
disclosed to an employer or any other person except to the extent 
necessary to obtain information from the employer or other person for 
the purposes of this part. The provision in this paragraph (b)(1) on 
the confidentiality of information maintained in the administration of 
the Act does not apply in the following circumstances:
    (i) Disclosures to the Department;
    (ii) For the purposes of Sec.  618.832 or paragraph (a) of this 
section;
    (iii) For providing information, reports, and studies required by 
Sec.  618.856 (information, reports, and studies); or
    (iv) Where nondisclosure would be inconsistent with the Freedom of 
Information Act (5 U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 
552a).
    (2) Where a State obtains confidential business information as part 
of assisting in an investigation under subpart B of this part, it must 
protect that information as required under that subpart.
    (c) Format of records and forms. Forms and records used and 
maintained by States in the administration of this part may exist in 
paper or electronic form or a combination thereof. Regardless of the 
medium, these records must be available and accessible as required 
under paragraph (a)(1) of this section for oversight purposes.
    (d) Electronic signatures. Electronic signatures are allowed where 
such use is in accordance with the Electronic Signatures in Global and 
National Commerce Act (Pub. L. 106-229).


Sec.  618.856  Information, reports, and studies.

    A State must furnish to the Department such information and reports 
and conduct such studies as the Department determines are necessary or 
appropriate for carrying out the purposes of the Act and this part.


Sec.  618.860  General fiscal and administrative requirements and cost 
classification.

    (a) Uniform fiscal and administrative requirements. (1) Each State 
receiving funds allocated for the TAA Program from the Department as an 
agent of the United States, must administer the TAA Program in 
accordance with the Uniform Guidance at 2 CFR part 200 and 2 CFR part 
2900 and with the funding agreement.
    (2) A State may expend funds awarded to it during a Federal fiscal 
year to carry out TAA Program activities under sections 235 through 238 
of the Act during that Federal fiscal year and the succeeding 2 Federal 
fiscal years.
    (3) Equipment, as described in 2 CFR 200.33 and computing devices, 
as described in 2 CFR 200.20, includes equipment acquired with TAA 
funds under both current and prior Agreements.
    (4) The addition method, described at 2 CFR 200.307, must be used 
for all program income earned under TAA grants. When the cost of 
generating program income has been charged to such grant, the gross 
amount earned must be added to such grant. However, when these costs 
have not been charged to such grant, the cost of generating program 
income must be subtracted from the amount earned to establish the net 
amount of program income available for use under such grant.
    (b) Administrative costs. (1) The administrative cost limit for the 
fiscal year program funding allocation for training, job search 
assistance, and relocation allowances is included in the TAA Program 
Annual Funding Agreement, with which States must comply.
    (2) For purposes of the TAA Program, the costs of administration 
are the costs associated with performing the overall general 
administrative functions of the TAA Program in paragraphs (b)(2)(i) 
through (xviii) of this section and the coordination thereof within the 
American Job Center network established under WIOA:
    (i) Accounting, budgeting, financial and cash management functions;
    (ii) Procurement and purchasing functions;
    (iii) Property management functions;
    (iv) Personnel management functions;
    (v) Payroll functions;
    (vi) Coordinating the resolution of findings arising from audits, 
reviews, investigations, and incident reports;
    (vii) Audit functions;
    (viii) General legal services functions;
    (ix) Developing systems and procedures, including information 
systems, required for these administrative functions;
    (x) Processing applications for benefits under the Act;
    (xi) Rendering and issuing eligibility determinations under the 
Act;
    (xii) Performing oversight and monitoring responsibilities related 
to administrative functions;
    (xiii) Costs of goods and services required for administrative 
functions of the program, including goods and services such as rental 
or purchase of equipment, utilities, office supplies, postage, and 
rental and maintenance of office space;
    (xiv) Travel costs incurred for official business in carrying out 
administrative activities or the overall management of the TAA Program;
    (xv) Costs of information systems related to administrative 
functions (i.e., personnel, procurement, purchasing, property 
management, accounting, and payroll systems), including the purchase, 
systems development, and operating costs of such systems;
    (xvi) Processing waivers of training requirements under subpart G 
of this part;
    (xvii) Collecting, validating, and reporting data required under 
the Act; and
    (xviii) Providing RTAA under subpart E of this part.
    (3) Awards to subrecipients or contractors that are solely for the 
performance of administrative functions constitute administrative 
costs.
    (4) Personnel and related nonpersonnel costs of staff that perform

[[Page 52019]]

both administrative functions specified in paragraph (b)(2) of this 
section and programmatic services or activities must be allocated as 
administrative or program costs to the benefitting cost objectives/
categories based on documented distributions of actual time worked or 
other equitable cost allocation methods.
    (5) Costs of the information systems in paragraphs (b)(5)(i) 
through (iii) of this section, including the purchase, systems 
development, and operational costs, are charged to the program 
category:
    (i) Tracking or monitoring of participant and performance 
information, including employment and case management services and 
activities;
    (ii) Employment statistics information, including job listing 
information, job skills information, and demand occupation information. 
States must leverage existing resources provided under other Federal 
programs; and
    (iii) Maintenance and enhancement of the systems specified in 
paragraphs (b)(5)(i) and (ii) of this section.
    (6) Wherever possible, States must make efforts to streamline the 
administrative activities and services listed in this section by 
minimizing duplication and effectively using information technology to 
improve services and leveraging resources across programs.
    (c) Prior approval. (1) Equipment purchases under the TAA Program 
are subject to the provisions at 2 CFR 200.313. In compliance with 2 
CFR 2900.16, prior approval is hereby provided for equipment purchases 
under the TAA Program.
    (2) As provided in 2 CFR 200.439(b)(1), the Department retains the 
prior approval requirement related to capital expenditures (2 CFR 
200.13) and for capital assets (2 CFR 200.12) other than equipment.
    (d) Audit and oversight requirements. (1) All States, local 
governments, nonprofit organizations, and for-profit entities that are 
recipients or subrecipients of TAA Program funds must follow the audit 
requirements under 2 CFR 200.500 through 200.521 and 2 CFR 2900.20.
    (2)(i) Oversight and monitoring. Each recipient and subrecipient of 
funds under the Act must conduct regular oversight and monitoring of 
its program and those of any subrecipients and contractors, as required 
under section 239(i) of the Act, as well as under 2 CFR part 200, 
including 2 CFR 200.328, 200.330, and 200.331, and Department 
exceptions at 2 CFR part 2900, in order to:
    (A) Determine that expenditures have been made against the proper 
cost categories and within the cost limitations specified in the Act, 
the regulations in this part, and administrative guidance;
    (B) Determine whether there is compliance with other provisions of 
the Act, the regulations in this part, and administrative guidance;
    (C) Assure compliance with 2 CFR part 200 and the Department's 
exceptions at 2 CFR part 2900; and
    (D) Determine compliance with the nondiscrimination, disability, 
and equal opportunity requirements of section 188 of WIOA, including 
the Assistive Technology Act of 1998 (29 U.S.C. 3003).
    (ii) Resolution of subrecipient-level findings. (A) The Governor is 
responsible for resolving findings that arise from the monitoring 
reviews, investigations, other Federal monitoring reviews, and audits 
(including under 2 CFR part 200) of subrecipients awarded funds through 
the Act.
    (B) A State must use the written monitoring and audit resolution, 
debt collection and appeal procedures that it uses for other Federal 
grant programs.
    (C) If a State does not have such written procedures as described 
in paragraph (d)(2)(ii)(B) of this section, it must prescribe standards 
and procedures to govern this grant program.
    (D) For subrecipients awarded funds through a recipient of grant 
funds, the direct recipient of the grant funds must have written 
monitoring and resolution procedures in place that are consistent with 
2 CFR part 200.
    (iii) Resolution of State findings. (A) The Secretary is 
responsible for resolving findings that arise from Federal audits, 
monitoring reviews, investigations, incident reports, and audits under 
2 CFR part 200 for direct recipients of Federal awards under the Act.
    (B) The Secretary will use the Department's audit resolution 
process, consistent with 2 CFR part 2900, subpart F.
    (C) A final determination issued by a Grant Officer under the 
process in this paragraph (d)(2)(iii) may be appealed to the DOL Office 
of Administrative Law Judges under the procedures in 2 CFR 2900.22.
    (e) Government-wide debarment and suspension, and government-wide 
drug-free workplace requirements. All TAA Program fund recipients and 
subrecipients must comply with the Government-wide requirements for 
debarment and suspension under subparts G and H of 2 CFR part 180 and 
the Government-wide requirements for a drug-free workplace at 29 CFR 
part 98.
    (f) Fiscal reporting requirements for States. (1) In accordance 
with 2 CFR 200.327 and 2 CFR 2900.14, each State must submit a 
quarterly financial report to the Department as specified in the 
reporting instructions approved by OMB.
    (2) States must report financial data on an accrual basis, and 
cumulatively by funding year of appropriation. Financial data may also 
be required on specific program activities as specified in the 
reporting instructions as approved by OMB.
    (3) If the State's accounting system is not on the accrual basis of 
accounting, the State must develop accrual information through best 
estimates based on an analysis of the documentation on hand.
    (4) The State must:
    (i) Obligate funds on not less than a quarterly basis; and
    (ii) Periodically review obligations and, in an appropriate and 
timely manner, de-obligate funds when a participant drops, completes, 
or is no longer eligible for training.
    (g) Use of funds. Of the funds awarded to the States to carry out 
sections 235 through 238 of the Act for a fiscal year, the State must 
use:
    (1) Not more than 10 percent for the costs of administration, 
provided in paragraph (b)(2)(i) of this section; and
    (2) Not less than 5 percent for employment and case management 
services under section 235 of the Act.
    (h) Technology. States must maintain sufficient and effective 
technology for the purpose of tracking and reporting required 
participant data, and to provide appropriate services under the TAA 
Program.
    (i) Designation of resources for Management Information Systems 
(MIS) development. States are required to dedicate an appropriate 
portion of administrative and employment and case management funding 
under TAA for management information systems development, upgrades, and 
ongoing maintenance.


Sec.  618.864  Trade Adjustment Assistance Program performance.

    (a) General rule. Each State must report to the Department 
comprehensive performance accountability measures, to consist of:
    (1) The primary indicators of performance described in paragraph 
(b) of this section;
    (2) The additional indicators of performance established under 
paragraph (c) of this section, if any; and
    (3) A description of efforts made to improve outcomes for workers 
under

[[Page 52020]]

the TAA Program that promote efficient and effective program 
performance as provided in this section.
    (b) Primary indicators of performance--(1) Primary indicators. The 
primary indicators of performance shall consist of:
    (i) The percentage and number of workers who received benefits 
under the TAA Program who are in unsubsidized employment during the 
second calendar quarter after exit from the program;
    (ii) The percentage and number of workers who received benefits 
under the TAA Program who are in unsubsidized employment during the 
fourth calendar quarter after exit from the program;
    (iii) The median earnings of workers who are in unsubsidized 
employment during the second quarter after exit from the program;
    (iv) The percentage of those participants enrolled in a training 
program under subpart F (excluding those in OJT and customized 
training) who attained a recognized postsecondary credential or a 
secondary school diploma, or its recognized equivalent, during 
participation in or within 1 year after exit from the program; and
    (v) The percentage and number of workers who received benefits 
under the TAA Program who, during a year while receiving such benefits, 
are in an education or training program that leads to a recognized 
postsecondary credential or employment and who are achieving measurable 
gains in skills toward such a credential or employment.
    (2) Indicator relating to credential attainment. For purposes of 
paragraph (b)(1)(iv) of this section, a worker who received benefits 
under the TAA Program who obtained a secondary school diploma or its 
recognized equivalent is included in the percentage counted for 
purposes of paragraph (b)(1)(iv) of this section only if the worker, in 
addition to obtaining such a diploma or its recognized equivalent, has 
obtained or retained employment or is in an education or training 
program leading to a recognized postsecondary credential within 1 year 
after exit from the program.
    (c) Additional indicators. The Department and a State may agree 
upon additional indicators of performance for the TAA Program, as 
appropriate.
    (d) Use of wage records. States must, consistent with State law, 
use quarterly wage record information, as defined in 20 CFR 677.175, in 
measuring the progress on program performance indicators in paragraphs 
(b) and (c) of this section.
    (1) The use of Social Security numbers from participants and such 
other information as is necessary to measure the progress of those 
participants through quarterly wage record information is authorized.
    (2) States that participate in data sharing agreements for the 
purposes of obtaining wage record information may use such data sharing 
agreements to obtain wage record information for workers who received 
benefits under the TAA Program.
    (3) To the extent that quarterly wage records are not available for 
a participant, States may use other information as is necessary to 
measure the progress of the participant.
    (e) Reporting requirements--(1) Data required. States must report 
TAA Program demographics, performance, and services data, identified in 
paragraphs (b) and (c) of this section, to the Department on such forms 
and in such manner as the Department may prescribe.
    (2) Data reliability and validity. States are required to establish 
procedures that are consistent with administrative guidance the 
Department issues to ensure the data States submit are valid and 
reliable.
    (f) Publication of performance results. The Department will 
publish, annually, through electronic means, including posting on the 
Department's website, the TAA Program performance results of the 
States.
    (g) Control measures--(1) In general. Each State must implement 
effective control measures to effectively oversee the operation and 
administration of the TAA Program and ensure the accurate collection of 
program data.
    (2) Location. The control measures must be internal to a system 
used by the State to collect data.
    (3) Purpose. States will implement these control measures in order 
to:
    (i) Oversee the operation and administration of the TAA Program 
under this part;
    (ii) Improve the timeliness and verifiability of reported data; and
    (iii) Verify the accuracy of reported data, and must require:
    (A) Periodic staff training;
    (B) Participation in data validation and integrity efforts, as 
directed by the Department;
    (C) Data analysis and monitoring on a quarterly basis to identify 
inaccurate data input;
    (D) Data analysis and monitoring on a quarterly basis to identify 
missing data; and
    (E) Resubmission of required reports upon correcting data the State 
identifies as a result of paragraphs (g)(3)(iii)(B) through (D) of this 
section.
    (4) Monitoring program. In order to ensure the effective and 
efficient operation of the TAA Program, States must adopt a formal 
monitoring program designed to review and audit worker files.
    (i) The monitoring program must be designed to identify and share 
best practices, identify and correct deficiencies, and identify and 
address staff training needs.
    (ii) A minimum quarterly random sample of 20 cases must be audited 
as part of the monitoring program and must include cases from at least 
2 certifications issued under subpart B of this part.
    (iii) The four quarterly samples within a calendar year must also 
cover at least four different areas of the State administering the 
program.
    (iv) If circumstances preclude a State from meeting the criteria in 
paragraphs (g)(4)(ii) and (iii) of this section, the State must contact 
the appropriate ETA regional office to design a monitoring program that 
better suits the TAA Program in that State, and make sure it is 
sufficient to ensure the accuracy and verifiability of such data.
    (h) Data on benefits received, training, outcomes, rapid response 
activities, and spending. Data submitted by the States must be 
sufficient to provide, at a minimum, the information required in 
section 249B of the Act, including the following information:
    (1) The number of workers receiving benefits under the TAA Program;
    (2) The number of workers receiving each type of benefit, including 
employment and case management services, training, job search and 
relocation allowances, TRA (Basic, Additional, and Completion) and RTAA 
payments, and, to the extent feasible, the HCTC, if available;
    (3) The average time during which such workers receive each type of 
benefit;
    (4) The average number of weeks TRA were paid to workers;
    (5) The number of workers who report that they have received 
benefits under a prior certification in any of the 10 fiscal years 
preceding the fiscal year for which the data are collected under this 
section;
    (6) The number of workers who received TAA approved training, 
classified by major types of training, including but not limited to, 
classroom training, training through distance learning, training 
leading to an associate's degree, remedial education, prerequisite 
education, OJT, and customized training;

[[Page 52021]]

    (7) The number of workers who exited TAA approved training, 
including who received prelayoff training or part-time training at any 
time during that training;
    (8) The average duration of training and the average duration of 
training that does not include remedial or prerequisite education;
    (9) The number of training waivers granted, classified by type of 
waiver;
    (10) The number of workers who exited training and the average 
duration of such training;
    (11) The number of workers who do not complete training and the 
average duration of the training such workers completed;
    (12) The average cost per worker of receiving TAA approved 
training;
    (13) The percentage of workers who received TAA approved training 
and obtained unsubsidized employment in a field related to that 
training;
    (14) The age, preprogram educational level, and post-program 
credential attainment of the workers;
    (15) The median earnings of workers during the second calendar 
quarter after exit from the program, expressed as a percentage of the 
median earnings of such workers before the calendar quarter in which 
such workers began receiving benefits under this part;
    (16) The sectors in which workers are employed after receiving 
benefits under this part;
    (17) Whether rapid response activities were provided with respect 
to each petition filed;
    (18) The total amount of funds used to pay for TRA by the State; 
and
    (19) The total amount of the TaOA payments to the State.


Sec.  618.868  Unemployment Insurance.

    UI payable to an AAW shall not be denied or reduced for any week by 
reason of any right to a payment of TAA under the Act and this part.


Sec.  618.872  Travel under the Trade Adjustment Assistance Program.

    (a) TAA Program participants are subject to the FTR at 41 CFR 
chapters 300 through 304 for all travel paid for with TAA Program 
funds.
    (b) Except for the definition of ``commuting area,'' States may not 
apply State or local travel policies and restrictions to TAA Program 
participants receiving reimbursements for travel under the Act.
    (c) In instances where the FTR is silent or defers to the Federal 
agency's travel policies, the State must apply the relevant policies of 
the Department.


Sec.  618.876  Verification of eligibility for program benefits.

    (a) Overall program eligibility. In addition to all other 
eligibility criteria contained in this part, an individual must also be 
authorized to work in the United States to receive benefits under the 
TAA Program. States are required to verify the status of participants 
who are not a citizen or national of the United States.
    (b) Initial verification. All States are required, under section 
1137(d) of SSA (42 U.S.C. 1320b-7(d)), to initially verify the 
immigration status of self-reporting aliens who apply for UI through 
the system designated by the U.S. Customs and Immigration Service (or 
USCIS), currently the Systematic Alien Verification for Entitlement (or 
SAVE) program. No further verification is required except as described 
in paragraph (c) of this section.
    (c) Reverification. (1) Once a State has verified satisfactory 
immigration status initially, the State must reverify the worker's 
immigration status if the documentation provided during initial 
verification will expire during the period in which that worker is 
potentially eligible to receive benefits under this subchapter.
    (2) The State must conduct such redetermination in a timely manner, 
using the immigration status verification system described in section 
1137(d) of SSA (42 U.S.C. 1320b-7(d)) or by review of other 
documentation, as described in that provision.


Sec.  618.884  Special rule with respect to military service.

    (a) In general. Notwithstanding any other provision of this part, a 
State may waive any requirement of this part that the States determines 
is necessary to ensure that an AAW who is a member of a reserve 
component of the Armed Forces and serves a period of duty described in 
paragraph (b) of this section is eligible to receive a trade 
readjustment allowance, training, and other benefits under this part in 
the same manner and to the same extent as if the worker had not served 
the period of duty.
    (b) Period of duty described. An AAW serves a period of duty 
described in paragraph (a) of this section if, before completing 
training under section 236 of the Act, the worker:
    (1) Serves on active duty for a period of more than 30 days under a 
call or order to active duty of more than 30 days; or
    (2) In the case of a member of the Army National Guard of the 
United States or Air National Guard of the United States, performs 
full-time National Guard duty under 32 U.S.C. 502(f) for 30 consecutive 
days or more when authorized by the President or the Secretary of 
Defense for the purpose of responding to a national emergency declared 
by the President and supported by Federal funds.


Sec.  618.888  Equitable tolling.

    (a) A TAA Program deadline must be equitably tolled when:
    (1) An extraordinary circumstance prevented an individual's timely 
action; and
    (2) The individual otherwise acted with diligence.
    (b)(1) When an individual fails to take timely action because the 
State failed to give notice required under this part, that failure is 
prima facie evidence of an extraordinary circumstance.
    (2) If the individual did not receive the required notice, but 
otherwise received actual notice with sufficient time to take timely 
action, the lack of receipt of the required notice is not evidence of 
an extraordinary circumstance.
    (c) A TAA Program deadline equitably tolled under this section is 
tolled for the time period during which the extraordinary circumstance 
exists. Once that circumstance is resolved, the time period that was 
tolled begins to run again.
    (d) Equitable tolling may extend an otherwise expired TAA Program 
deadline by no more than 36 months.


Sec.  618.890  Staffing flexibility.

    (a) Staff employed under a merit personnel system as provided in 
section 303(a)(1) of the Social Security Act must be used for all 
reviews of benefit determinations under applicable State law.
    (b) All determinations on eligibility for TAA Program benefits must 
be made by State staff, with the exception of the functions in 
paragraph (a) of this section, which must be made by staff meeting the 
criteria in paragraph (a) of this section.
    (c) All other functions under the TAA Program, not subject to 
paragraphs (a) and (b) of this section, may be provided under a variety 
of staffing models.


Sec.  618.894  Nondiscrimination and equal opportunity requirements.

    (a) States and subrecipients of financial assistance under the TAA 
Program are required to comply with the nondiscrimination and equal 
opportunity provisions codified in the Department's regulations at 29 
CFR parts 31, 32, 35, and 36.
    (b) States and subrecipients of financial assistance under the TAA

[[Page 52022]]

Program are required to comply with the nondiscrimination and equal 
opportunity requirements of WIOA section 188 and its implementing 
regulations at 29 CFR part 38 if the agency or subrecipient:
    (1) Operates its TAA programs and activities as part of the one-
stop delivery system established under the WIOA; or
    (2) Otherwise satisfies the definition of ``recipient'' in 29 CFR 
38.4(zz).
    (c) Questions about the nondiscrimination requirements cited in 
this section may be directed to the Director, Civil Rights Center, U.S. 
Department of Labor, Room N-4123, 200 Constitution Avenue NW, 
Washington, DC 20210.
    (d)(1) This section does not affect the rights and protections (and 
exceptions thereto) available under any other Federal law or regulation 
regarding discrimination.
    (2) This section does not affect the rights and protections (and 
exceptions thereto) available under any other State or local law or 
regulation regarding discrimination, except as provided in paragraph 
(d)(3) of this section.
    (3) No State may discriminate on any basis protected by 29 CFR 
parts 31, 32, 35, 36, and 38 (and exceptions thereto), as applicable, 
in determining an individual's eligibility for any of the following:
    (i) Receiving aid, benefits, services, training, or employment;
    (ii) Participating in any TAA program or activity;
    (iii) Being employed by any State; or
    (iv) Practicing any occupation or profession.


Sec.  618.898  Applicable State law.

    (a) The applicable State law for an AAW remains the applicable 
State law for such worker until such worker becomes entitled to UI 
under the State law of another State (whether or not such worker files 
a UI claim in that other State).
    (b) For purposes of determining the applicable State law for UI 
entitlement:
    (1) A worker is deemed entitled to UI under a State law if such 
worker satisfies the base period employment and wage qualifying 
requirements of such State law;
    (2) In the case of a combined-wage claim, UI entitlement must be 
determined under the law of the paying State; and
    (3) In case of a Federal UI claim, or a joint State and Federal UI 
claim, UI entitlement must be determined under the law of the 
applicable State for such claims.

Subpart I--Allocation of Funds to States for Training and Other 
Activities


Sec.  618.900  Annual cap on funds available for Training and Other 
Activities.

    (a) The total amount of funds made available for the costs of 
carrying out sections 235 through 238 of the Act, referenced here as 
Training and Other Activities (TaOA), will not exceed the annual cap 
established under section 236(a)(2)(A) of the Act. For each of Fiscal 
Years (FYs) 2015 through 2021, this cap is $450,000,000.
    (b) Funds obligated during a fiscal year to carry out activities 
under sections 235 through 238 of the Act may be expended by the State 
receiving such funds during that fiscal year and the succeeding 2 
fiscal years.


Sec.  618.910  Initial allocation of funds.

    (a) Initial allocation. In the initial allocation for a fiscal 
year, the Department will allocate 65 percent of the funds available 
under section 236(a)(2)(A) of the Act for that fiscal year. The 
Department will announce the amount of each State's initial allocation 
of funds, determined in accordance with the requirements of this 
section, at the beginning of each fiscal year. The Department will 
determine this initial allocation on the basis of the total funds 
available under the annual cap for that year, even if the full amount 
has not been appropriated to the Department at that time.
    (b) Timing of the distribution of the initial allocation. The 
Department will, as soon as practical, distribute the initial 
allocation announced under paragraph (a) of this section. However, the 
Department will not distribute the full amount of the initial 
allocation until it receives the entire fiscal year's appropriation of 
funds for TaOA. If the full year's appropriated amount for TaOA is less 
than the annual cap on funds available for TaOA, then the Department 
will distribute 65 percent of the amount appropriated.
    (c) Hold harmless provision. Except as provided in paragraph (d) of 
this section, or required by the appropriation, in no case will the 
amount of the initial allocation to a State in a fiscal year be less 
than 25 percent of the initial allocation to that State in the 
preceding fiscal year.
    (d) Minimum initial allocation. If a State has an adjusted initial 
allocation of less than $100,000, as calculated in accordance with 
paragraph (e)(2) of this section, that State will not receive an 
initial allocation, and the funds that otherwise would have been 
allocated to that State instead will be allocated among the other 
States in accordance with this section. A State that does not receive 
an initial allocation may apply to the Department under Sec.  
618.920(b) for reserve funds to obtain funding for TaOA.
    (e) Process of determining initial allocation. (1) The Department 
will first apply the factors described in paragraph (f) of this section 
to determine an unadjusted initial allocation for each State.
    (2) The Department will then apply the hold harmless provision of 
paragraph (c) of this section to the unadjusted initial allocation, as 
follows:
    (i) A State whose unadjusted initial allocation is less than its 
hold harmless amount but is $100,000 or more will have its initial 
allocation adjusted up to its hold harmless amount in accordance with 
paragraph (c) of this section. If a State's unadjusted allocation is 
less than $100,000, the State will receive no initial allocation, in 
accordance with paragraph (d) of this section, and those funds will be 
distributed among the other States as provided in paragraph (e)(3) of 
this section.
    (ii) A State whose unadjusted initial allocation is no less than 
its hold harmless threshold will receive its hold harmless amount and, 
in addition, will receive an adjustment equal to the State's share of 
the remaining initial allocation funds, as provided in paragraph (e)(3) 
of this section.
    (3) Any initial allocation funds remaining after the adjustments to 
initial allocations are applied as described in paragraph (e)(2)(i) of 
this section will be distributed among the States with unadjusted 
initial allocations that were no less than their respective hold 
harmless amounts, as described in paragraph (e)(2)(ii) of this section 
(the remaining States). The distribution of the remaining initial 
allocation funds among the remaining States will be made by using the 
formula in paragraph (f) of this section. This recalculation will 
disregard States receiving only their hold harmless amount under 
paragraph (e)(2)(i) of this section, so that the combined percentages 
of the remaining States total 100 percent.
    (f) Initial allocation factors. (1) In determining how to make the 
initial allocation of funds, the Department will apply, as provided in 
paragraph (f)(3) of this section, the following factors with respect to 
each State:
    (i) Factor 1: The trend in the number of trade-affected workers 
covered by certifications during the most recent 4 consecutive calendar 
quarters for which data are available. The trend will be established by 
assigning a greater weight

[[Page 52023]]

to the most recent quarters, giving those quarters a larger share of 
the factor;
    (ii) Factor 2: The trend in the number of workers participating in 
training during the most recent 4 consecutive calendar quarters for 
which data are available. The trend will be established by assigning a 
greater weight to the most recent quarters, giving those quarters a 
larger share of the factor;
    (iii) Factor 3: The number of workers estimated to be participating 
in training during the fiscal year. The estimate will be calculated by 
dividing the weighted average number of workers in training for the 
State determined in paragraph (f)(1)(ii) of this section by the sum of 
the weighted averages for all States and multiplying the resulting 
ratio by the projected national average of workers in training for the 
fiscal year, using the projection methodology underlying the 
Department's most recent budget submission or update; and
    (iv) Factor 4: The amount of funding estimated to be necessary to 
provide TAA approved training to such workers during the fiscal year. 
The estimate will be calculated by multiplying the estimated number of 
training participants in paragraph (f)(1)(iii) of this section by the 
average training cost for the State. The average training cost will be 
calculated by dividing total training expenditures for the most recent 
4 quarters by the average number of training participants for the same 
time period.
    (2) The four factors listed in paragraphs (f)(1)(i) through (iv) of 
this section are given equal weight.
    (3) For each of the factors in paragraphs (f)(1)(i) through (iv) of 
this section, the Department will determine the national total and each 
State's percentage of the national total. Based on a State's percentage 
of each of these factors, the Department will determine the percentage 
that the State will receive of the total amount available for initial 
allocation for that fiscal year. The percentages of the initial 
allocation amount for all States combined will total 100 percent of the 
total amount of the initial allocation.


Sec.  618.920  Reserve fund distributions.

    (a) The 35 percent of the TaOA funds for a fiscal year that remains 
after the initial allocation will be held by the Department as a 
reserve. Reserve funds will be used, as needed, for additional 
distributions to States during the remainder of the fiscal year, 
including distributions to those States that did not receive an initial 
allocation. The amount of any distributions of reserve funds will be 
determined by the Department within the time frame described in Sec.  
618.930, as appropriate, considering the information provided in 
reserve fund requests submitted by States as described in paragraph (b) 
of this section and the level of reserve funds available.
    (b) A State requesting reserve funds must demonstrate that:
    (1) At least 50 percent of its TaOA funds from the current year (if 
any were received) and previous fiscal years have been expended; or
    (2) The State needs additional TaOA funds to meet demands for 
services due to unusual and unexpected events, which includes an 
unexpected increase in the number of trade-affected workers eligible 
for TaOA.
    (c) A State requesting reserve funds under paragraph (b) of this 
section also must provide a documented estimate of funding needs 
through the end of the fiscal year. That estimate must be based on an 
analysis that includes at least the following:
    (1) The average cost of training in the State;
    (2) The expected number of participants in training through the end 
of the fiscal year; and
    (3) The remaining TaOA funds the State has available.


Sec.  618.930  Second distribution.

    The Department will distribute at least 90 percent of the total 
TaOA funds (including Sec.  618.920 reserve funds) for a fiscal year to 
the States no later than July 15 of that fiscal year. The Department 
will first fund all acceptable requests for reserve funds filed before 
June 1. After these requests are satisfied, any funds remaining will be 
distributed to those States that received an initial allocation in an 
amount greater than their hold harmless amount, using the methodology 
described in Sec.  618.910. Any funds remaining after the second 
distribution will be available for allotment under Sec.  618.920.


Sec.  618.940  Insufficient funds.

    If, during a fiscal year, the Department estimates that the amount 
of funds necessary to provide TaOA will exceed the annual cap under 
Sec.  618.900, the Department will decide how the available funds that 
have not been distributed at the time of the estimate will be allocated 
among the States for the remainder of the fiscal year, and will 
communicate this decision to States through administrative guidance.


Sec.  618.950  Recapture and reallocation of Training and Other 
Activities funds.

    (a) The Department may:
    (1) Recapture funds that were allocated to any State to carry out 
sections 235 through 238 of the Act and that remain unobligated by the 
State during the second or third fiscal year after the fiscal year in 
which the funds were provided to the State; and
    (2) Reallocate recaptured funds to States to carry out sections 235 
through 238 of the Act, in accordance with procedures established in 
this section.
    (b) The Department may recapture and reallocate funds as authorized 
by paragraph (a) of this section if the Department determines:
    (1) There are, or are projected to be, insufficient funds in a 
State or States to carry out the activities described in sections 235 
through 238 of the Act for a fiscal year; or
    (2) The recapture and reallocation of funds would likely promote 
the more efficient and effective use of funds among States to carry out 
the activities described in sections 235 through 238 of the Act for a 
fiscal year.
    (c) If the Department makes a determination described in paragraph 
(b)(1) of this section for a fiscal year, the Department may recapture 
funds, to the extent needed, from one or more of the State or States 
that have the highest percentage of unobligated or unexpended funds 
from the second or third fiscal year after the fiscal year in which the 
funds initially were allocated to such States, as determined by the 
Department, and reallocate those funds to the States with, or projected 
to have, insufficient funds. In making the determination that a State 
has or is projected to have insufficient funds to carry out the 
activities described in sections 235 through 238 of the Act for a 
fiscal year, the Department may consider a request submitted by the 
State in accordance with information required under Sec.  618.920(b) or 
base such determination on other information the Department determines 
is appropriate.
    (d) If the Department makes a determination described in paragraph 
(b)(2) of this section for a fiscal year, the Department may recapture 
funds from the State or States that have the highest percentage of 
unobligated or unexpended funds from the second or third fiscal year 
after the fiscal year in which the funds were initially allocated to 
such States, as determined by the Department, and reallocate those 
funds to:
    (1) The States with the lowest percentage of unobligated or 
unexpended funds from the second or third fiscal year after the fiscal 
year in which the funds initially were allocated to such States as 
determined by the Department, based on such additional factor or 
factors as the Department determines is or are appropriate; or

[[Page 52024]]

    (2) All States from which funds are not being recaptured, in 
accordance with the formula factors described in Sec.  618.910(f), 
relating to the initial distribution of funds.
    (e) If the Department determines to recapture and reallocate funds 
pursuant to this section, an administrative notice must be issued to 
the States describing the methodology used and the amounts to be 
recaptured from and reallocated to each affected State, not less than 
15 business days in advance of the recapture of funds.
    (f) The reallocation of funds under this section does not extend 
the period of availability for the expenditure of those funds, which 
expenditure period remains 2 fiscal years after the fiscal year in 
which the funds were initially allocated by the Department to the State 
from which the funds are recaptured.

PART 90--[REMOVED AND RESERVED]

0
5. Remove and reserve 29 CFR part 90.

    Signed at Washington, DC
John P. Pallasch,
Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2020-13802 Filed 8-20-20; 8:45 am]
BILLING CODE 4510-FN-P