Trade Adjustment Assistance for Workers

Federal RegisterNov 7, 2019

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DEPARTMENT OF LABOR

29 CFR Part 90

Employment and Training Administration

20 CFR Parts 617 and 618

[Docket No. ETA-2019-0009]

RIN 1205-AB78

Trade Adjustment Assistance for Workers

AGENCY:

Employment and Training Administration, Labor.

ACTION:

Proposed rule.

SUMMARY:

The Employment and Training Administration (ETA) of the Department of Labor (Department) proposes to expand 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. The proposed rule (NPRM) would, among other improvements, make it easier for workers to qualify for job search and relocation allowances, increase those allowances in line with 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:

Send comments on or before December 9, 2019. Comments on the information collection determination described in Section V. D of the preamble (Paperwork Reduction Act) may be submitted (postmarked, sent, or received) by January 6, 2020 in Docket Number ETA-2019-0010.

ADDRESSES:

You may send comments, identified by Docket No. ETA-2019-0009 and Regulatory Identification Number (RIN) 1205-AB78, by any of the following methods:

•

Federal eRulemaking Portal: http://www.regulations.gov.

Instructions for how to submit public comments electronically on the Federal eRulemaking Portal can be found on the

http://www.regulations.gov

website under “Help” > “How to use Regulations.gov” > “Submit a Comment.”

•

Mail:

•

Hand Delivery/Courier:

Instructions:

All submissions received must include the agency name and docket number for this rulemaking or “RIN 1205-AB78.”

Please submit your comments by only one method. Please be advised that the Department will post all comments received that relate to this NPRM without changes to

http://www.regulations.gov,

including any personal information provided. The

http://www.regulations.gov

website is the Federal e-Rulemaking Portal and all comments posted there are available and accessible to the public. Therefore, the Department recommends that commenters remove personal information (either about themselves or others) such as Social Security numbers, personal addresses, telephone numbers, and email addresses included in their comments, as such information may become easily available to the public via the

http://www.regulations.gov

website. It is the responsibility of the commenter to safeguard personal information.

Also, please note that due to security concerns, postal mail delivery in Washington, DC may be delayed. Therefore, the Department encourages the public to submit comments on

http://www.regulations.gov.

Docket:

For access to the docket to read background documents or comments received, go to

http://www.regulations.gov

(search using RIN 1205-AB78 or Docket No. ETA-2019-0009). The Department also will make all the comments it receives available for public inspection by appointment during normal business hours at the Office of Policy Development and Research (OPDR), U.S. Department of Labor, Employment and Training Administration, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210. If you need assistance to review the comments, the Department will provide appropriate aids such as readers or print magnifiers. The Department will make copies of this NPRM available, upon request, in large print and electronic file. To schedule an appointment to review the comments or obtain the NPRM in an alternative format or both, contact OPDR at (202) 693-3700 (this is not a toll-free number). You may also contact this office at the address listed above.

Comments under the Paperwork Reduction Act (PRA):

Send a copy of any comments that concern the information collection (IC) aspects of this NPRM to: Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503, Fax: (202) 395-6881 (this is not a toll-free number), email:

OIRA_submission@omb.eop.gov.

Comments on the information collection determination described in Section V. D of the preamble (Paperwork Reduction Act) also may be submitted (postmarked, sent, or received) by January 6, 2020 in Docket Number ETA-2019-0010. The Department will consider comments on the information collection determination submitted in either docket, but is providing additional time for commenters to submit relevant information collection comments to Docket Number ETA-2019-0010. See section V.D of this NPRM (“Paperwork Reduction Act”) for particular areas of interest.

FOR FURTHER INFORMATION CONTACT:

Heidi Casta, Deputy Administrator, Office of Policy Development and Research, U.S. Department of Labor, Employment and Training Administration, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210, Telephone: (202) 693-3700 (voice) (this is not a toll-free number) or 1-800-326-2577 (Telecommunications Device for the Deaf).

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

I. Acronyms and Abbreviations

II. Executive Summary

III. Background

A. Introduction to the Trade Adjustment Assistance Program

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

C. Need for the Notice of Proposed Rulemaking

IV. Section-by-Section Discussion of the Proposed Changes

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

V. 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)

ABE adult basic education

ATAA Alternative Trade Adjustment Assistance

BLS Bureau of Labor Statistics

CFR Code of Federal Regulations

CSA(s) cooperating State agency(/ies)

Department Department of Labor

EB Extended Benefits

ECI Employment Cost Indices

ELA English language acquisition

E.O. Executive Order

ETA Employment and Training Administration

ETP(s) eligible training provider

EUCA Federal-State Extended Unemployment Compensation Act of 1970

FOIA Freedom of Information Act

FR Federal Register

FTR Federal Travel Regulation

FUTA Federal Unemployment Tax Act

FY Fiscal Year

GPA grade point average

GPRA Government Performance Results Act of 1993

HCTC Health Coverage Tax Credit

HEA Higher Education Act of 1965, as amended

HSE high school equivalency

IC information collection

IEP(s) individual employment plan(s)

IRS Internal Revenue Service

IT information technology

ITC International Trade Commission

JSP job search program

JTPA Job Training Partnership Act

LEP limited English proficient

local area local workforce development area

LWDB local workforce development board

MIS management information systems

NPRM Notice of Proposed Rulemaking

OECD Organisation for Economic Co-operation and Development

OJT on-the-job training

OMB Office of Management and Budget

OPDR Office of Policy Development and Research

OPM Office of Personnel Management

OTAA Office of Trade Adjustment Assistance

PCE Personal Consumption Expenditures

PII personally identifiable information

PIRL Participant Individual Record Layout

PRA Paperwork Reduction Act

PRWORA Personal Responsibility and Work Opportunity Reform Act

Pub. L. Public Law

RFA Regulatory Flexibility Act

RIN Regulatory Identification Number

RRUI Railroad Unemployment Insurance Act

RTAA Reemployment Trade Adjustment Assistance

Secretary Secretary of Labor

SSA Social Security Act

Stat. U.S. Statutes at Large

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

UIPL Unemployment Insurance Program Letter

UMRA Unfunded Mandates Reform Act of 1995

U.S.C. United States Code

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. Executive Summary

The Department proposes to streamline and consolidate 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 proposed revisions would codify into regulation elements of the most recent TAA Program reauthorization and amendment, the Trade Adjustment Assistance Reauthorization Act of 2015 (Pub. L. 114-27, title IV) (TAARA 2015). This NPRM also incorporates existing operating instructions issued via administrative guidance into the TAA Program regulations, with some refinements. Further, the proposed 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.

The NPRM would increase efficiency and flexibility for States and trade-affected workers. Because subpart B (Petitions, Investigations, and Determinations) of this NPRM expressly proposes to permit 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 Department anticipates a substantial reduction in the number of requests to amend certifications. The Department also proposes to increase 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) would expand work-based training to include 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 trade, thereby enabling such workers to retrain and seek new employment before job separation occurs. And in subpart H (Administration by Applicable State Agencies), the Department would extend flexibility by removing the requirement that only State merit staff can be funded through employment and case management funding available under the TAA Program, allowing States more flexibility with program operations and creating better alignment with WIOA.

The NPRM seeks to improve service delivery, and thereby serve more trade-affected workers more effectively, by including service-delivery requirements that align with data-tested methods. The proposed subpart A (General) regulations better define 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 proposes to help 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).

Lastly, the NPRM would implement statutory provisions for Reemployment Trade Adjustment Assistance (RTAA) and would incorporate administrative guidance previously issued by the Department in subpart E since no

regulations covering the RTAA program exist. Proposed subpart G (Trade Readjustment Allowances (TRA)) would implement several statutory changes to 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 without penalty. In addition, proposed 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.

The NPRM would reduce costs and legal burden from court proceedings by providing the public and courts with the Department's authoritative interpretation of the Act. Proposed subpart B (Petitions, Investigations, and Determinations) also would produce other cost savings by eliminating the two-step process for reconsiderations, which would reduce the processing time involved for all reconsiderations, and by clarifying “final determinations” for judicial appeals, which would reduce the number of those appeals. Lastly, proposed subpart H (Administration by Applicable State Agencies) would 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.

The purposes of the proposed revisions are to ensure that the TAA Program regulations are modernized to reflect the program's current operation and make needed improvements. The proposed revisions also would 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.

The Department's preliminary regulatory impact analysis determines that this NPRM is a deregulatory action under E.O. 13771 because the cost savings associated with the rule would be larger than the anticipated costs of the rule. 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. The costs of the NPRM are those associated with State staff needing to familiarize themselves with the new regulations, the development of IEPs for trade-affected workers seeking training or job search allowances, and the implementation of two IC forms (ETA Forms 8561, Study of Domestic Industry, and 9185, Application for Reconsideration). The Department expects the NPRM to have an average annual cost of $6,604 and a total 10-year cost of $46,383 (with 7-percent discounting). The Department estimates that the NPRM would have an annual cost savings of $79,654 and a total 10-year cost savings of $559,456 (with 7-percent discounting). In addition, the NPRM is estimated to result in annual transfer payments (

i.e.,

redistribution of resources from one group to another that do not affect total resources available to society) of $564,257 and total 10-year transfer payments of $3,963,105 (with 7-percent discounting). The Department estimates that the NPRM would result in net cost savings of $626,333 discounted at 3 percent and $513,073 discounted at 7 percent, both expressed in 2018 dollars. See section V.B, the economic analysis, for a detailed discussion of the Department's preliminary regulatory impact analysis.

III. Background

A. Introduction to the Trade Adjustment Assistance Program

The Trade Act of 1974 (Pub. L. 93-619), as amended (the Act) (codified at 19 U.S.C. 2271

et seq.

), title II, chapter 2, established TAA for Workers program, Alternative Trade Adjustment Assistance (ATAA),

and RTAA programs. 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 TAARA 2015 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),

which is administered by the Internal Revenue Service (IRS).

ATAA is largely unaddressed in this NPRM because this NPRM codifies the TAARA 2015 Program and ATAA was replaced by RTAA. RTAA is newly codified in this NPRM.

Because under TAARA 2015, the HCTC expires by January 1, 2020, references to the HCTC throughout this NPRM are coupled with “if available” or similar phrasing.

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 their behalf with the Department 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 sec. 222 of the Act. Second, if the Department finds the group eligible and certifies the petition, individual trade-affected workers in the worker group may 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 purposes. 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 two million trade-affected U.S. workers. In Fiscal Year (FY) 2017, an estimated 94,017 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, so they 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.

The TAA Program is designed to serve the needs of this unique population.

U.S. Department of Labor, Employment and Training Administration. (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 compete in the global economy, its workers need to have the skills and support to take advantage of new opportunities. The TAA Program aims to do that by helping American workers retrain and reenter the workforce.

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

The foundation of the current TAA Program was established by chapter 2 of title II of the Trade Act of 1974 (Pub. L. 93-618).

Congress has since 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, secs. 2671 and 2672), 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, sec. 506). In 1987, the Department issued a final rule significantly revising the certification process in 29 CFR part 90 (52 FR 23403, June 19, 1987) and 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 ATAA 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. 19, 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 two 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, for the most part restored the expanded certification criteria and benefits and services provided under TGAAA, but changed some provisions.

TAARA 2015 reauthorized the TAA Program through 2021. It primarily followed TAAEA, the 2011 law, but amended a few key provisions. The amendments included capped funding for TaOA at $450 million per fiscal year and establishment of new performance indicators to align with WIOA. TAARA 2015 reauthorized the RTAA and HCTC benefit programs. TAARA 2015 also continued to grandfather earlier versions of the TAA Program for trade-affected workers who had been certified under TAARA 2002, TGAAA, and TAAEA.

C. Need for the Notice of Proposed Rulemaking

The TAA Program regulations were last updated in 1994, with only minor changes made in 2006,

2007,

and 2010.

Since that time, multiple TAA Program reauthorizations and amendments have required various changes to the program, which the Department has addressed through administrative guidance. This NPRM proposes to codify in regulation the most recent reauthorization and amendment (TAARA 2015) as well as significant elements of TAA Program administrative guidance. The NPRM is drafted to reflect how the TAA Program is currently operating under TAARA 2015, with some proposed adjustments that would improve the program. Once finalized, the Department will rescind redundant administrative guidance, as appropriate, based on the final rule.

71 FR 35511 (June 21, 2006) (making technical amendments to update obsolete, nonsubstantive, or nomenclature references).

72 FR 37097 (July 9, 2007) (making minor changes to 29 CFR part 90).

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).

The NPRM, if finalized, would help States and the public better understand the proper operation of the TAA Program. States would no longer have to use a combination of regulations and administrative guidance to guide the worker-group certification process at the Federal level and the administration of individual benefits and services at the State level. The NPRM would promote transparency by setting out, in binding regulation, the major principles by which the TAA Program operates. In addition, it provides the public and courts with the Department's authoritative interpretation of the Act.

In addition, the NPRM proposes 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 need 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 some improvements to regulatory provisions included in this NPRM.

The NPRM also includes changes that would 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. The NPRM also would remove outdated references to the Job Training Partnership Act (JTPA) and the Workforce Investment Act of 1998 (WIA). The proposed TAA Program regulations would align with and reference the WIOA regulations where appropriate.

IV. Section-by-Section Discussion of the Proposed Changes

A. Subpart A—General

Proposed subpart A sets forth the purpose and scope of the TAA Program and defines relevant terms used throughout the rule. Proposed subpart A modifies and simplifies several definitions for greater clarity, eliminates definitions in response to statutory changes to the Act, and adds definitions of new terms based on statutory changes. The definitions used in this NPRM are intended to describe a modernized TAA Program, which has evolved since TAARA 2002, and ensure the TAA Program aligns with WIOA.

Section 618.100 Purpose and Scope

Proposed § 618.100 describes the purpose and scope of the TAA Program.

The Department proposes updates to the scope and purpose based on programmatic experience to reflect more realistically the achievable outcomes for trade-affected workers.

Proposed § 618.100(a) establishes the purpose of the TAA Program. Under the existing statement of purpose at 20 CFR 617.2, the stated goal of the TAA Program is to return trade-affected workers to “suitable employment” as quickly as possible. 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, earning at least 80 percent of their 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 in obtaining suitable employment may occur because (1) few, if any, jobs are available at the workers' former wages that require 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. Yet offering appropriate training, especially in a stagnant labor market, may significantly increase a trade-affected worker's prospects of obtaining suitable employment.

The Department is committed to ensuring trade-affected workers have access to training that will allow them the best possible outcomes and ability to compete for work at the highest skill levels and highest wages achievable, given the trade-affected workers' preexisting skill levels, abilities, and education, and the current and projected labor market, and to do so 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. States must ensure that they administer their programs equitably and reasonably. Proposed § 618.100(b) expands the scope of the TAA Program beyond the scope in 20 CFR 617.1 and lists the types of TAA Program benefits and services that will be addressed in this proposed part 618. Proposed § 618.100(c) carries forth a statement in 20 CFR 617.2 specifying that the regulations in this part are issued to implement the Act.

Section 618.110 Definitions

Proposed § 618.110 defines terms applicable to all other sections of the NPRM unless otherwise stated. The terms defined in the proposed rule are derived from the Act; 20 CFR part 617; 29 CFR part 90; and the WIOA Final Rule (81 FR 56072 (Aug. 19, 2016); 81 FR 55792 (Aug. 19, 2016)). Some definitions are taken from the Act, others interpret or expound upon terms in the Act, and others are terms that the Department will use in implementing the Act. The defined terms in the rule apply solely for purposes of this part 618.

The following section lists and explains proposed new terms and their definitions, revisions to definitions, and removal of defined terms.

Act

—This NPRM modifies the definition of this term from 20 CFR 617.3(a) and 29 CFR 90.2, and updates the U.S. Code citation to 19 U.S.C. 2271-2323 and 2395. At the issuance of this NPRM, the most recent amendment, Public Law 114-27, applies.

Administrator

—This NPRM adds this term and defines it for the first time to reflect the statutory change in sec. 249A(a) and (b) of the Act, which requires that the Division of Trade Adjustment Assistance be designated as the Office of Trade Adjustment Assistance (OTAA), and that the head of the OTAA be designated an Administrator rather than a Director. Also, this NPRM removes the defined term “Director” from 29 CFR 90.2.

Adversely affected employment

—This NPRM modifies the definition of this term from 20 CFR 617.3(b) and is based on the statutory definition in sec. 247(1) of the Act. No substantive changes from those definitions are intended. This NPRM omits the explicit reference to agricultural firms from the definition in 20 CFR 617.3(b). Although agricultural firms may be identified as adversely affected employment, there were no other references to agricultural firms in 20 CFR part 617, and, other than in the definition of “firm,” which specifies that agricultural firms are included, there are no references to agricultural firms in the NPRM.

Adversely affected worker

AAW

—This NPRM modifies the definition of this term from 20 CFR 617.3(c) to clarify the Department's interpretation of this term defined in sec. 247(2) of the Act. Specifically, an employer may be considered an AAW when the employer is also an employee of a business that closes or experiences a reduction in operation. For example, the president of the firm lays off everyone at the firm, including herself. In this circumstance, if the employer becomes totally or partially separated from their adversely affected employment, the employer is an AAW. Additionally, this NPRM omits the reference in the definition of this term from 20 CFR 617.3 to a subdivision of a firm since employment in an appropriate subdivision of a firm is part of the definition of the term “adversely affected employment” and including it in the definition of the term “adversely affected worker” is redundant. The combined terms “adversely affected worker” and “adversely affected incumbent worker” are also referred to as a trade-affected worker throughout the NPRM.

Adversely affected incumbent worker

AAIW

—This NPRM adds this term and defines it for the first time. The proposed new definition is from sec. 247(18) of the Act. Under this proposed definition, workers who are part of a worker group that has been certified under subpart B as eligible to apply for the TAA Program, and are individually threatened to be, but who have not yet been, totally or partially separated from their adversely affected employment, may be eligible to receive certain benefits under the program. An AAIW, in combination with an AAW, is referred to as a trade-affected worker throughout this NPRM.

Agent State

—This NPRM modifies the definition of this term from 20 CFR 617.3(aa)(2) and 617.16(e) by including the phrase “trade-affected worker” instead of the term “individual.” The term “Liable State” is now separately defined in this proposed subpart A.

Applicable State law

—This NPRM adds this term and defines it for the first time to clarify that this term, which appears in secs. 232(a)(2), 239(e), and 247 of the Act, refers to State UI law. The definition is modified from 20 CFR 617.16(a) for clarity and procedures for determining applicable State law are provided in proposed § 618.898.

Appropriate subdivision

—This NPRM adds this term and modifies the definition of this term from 29 CFR 90.2 (included as part of the definition of the term “firm”). The phrase “appropriate subdivision” is also part of the definition of the term “firm” under sec. 247(3) of the Act. The terms “physical facility,” “organizational department,” “product line,” “project team,” “operational unit,” or “part or combination thereof” have been added to the terms “establishment” and “auxiliary facilities operated in conjunction with (whether or not physically separate from) production facilities” from 29 CFR 90.2. This proposed definition reflects that service workers are now eligible for benefits

and explains that the term is defined flexibly. Included are all workers at the location(s) who have been totally or partially separated or threatened with separation, including teleworkers who identify as reporting to that location(s), and may include workers at a satellite office or shared space who function as if they were at that 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. The proposed definition also clarifies that colocation is neither a requirement nor a presumption in determining an appropriate subdivision. Thus, an appropriate subdivision of a firm could include operational units that produce the article or provide the service in question, even if the units are not at the same physical location. Teleworkers, and staffed workers, may be part of the appropriate subdivision. In contrast, the fact that all of the workers are located at the same physical location does not necessarily mean that they are part of the appropriate subdivision. Additionally, when worker separations and trade effects are limited to a discrete, individually distinct organizational unit, it may be that only a particular subset of workers in the specific organizational unit meets the sec. 222 group-eligibility requirements. In these cases, and as described in the example below, a narrower interpretation focusing on where the trade effects are concentrated, informs the definition of “appropriate subdivision.” Identifying a discrete subset of workers makes for a clearer causal nexus between a trade effect and the worker separations, especially when an organization provides multiple services, produces multiple articles, or consists of multiple units. Consequently, a determination may consist of several appropriate subdivisions when each subdivision is impacted by a different trade effect, or it may consist of a certification of an appropriate subdivision and a denial of the remaining group(s) of workers.

Here is an example. The appliances division of a company produces both ovens and refrigerators. The division's 200 workers are separately identifiable, with 150 who produce refrigerators and 50 who produce ovens. The company shifts abroad some of its oven production and lays off eight oven-producing workers. The “appropriate subdivision” would be the oven product line, not the entire appliances division. If, however, the company's sales fell due to foreign imports of ovens and refrigerators, and it laid off 25 workers from both product lines, the appropriate subdivision would be the entire appliances division.

Here is another example. A petition is filed on behalf of a group of workers in the accounting division of a car-manufacturing facility. If the workers were being separated due to the manufacturer's decision to acquire the same accounting services abroad instead of performing them in-house, the appropriate subdivision would be the accounting division. If the workers were being separated as part of a larger set of layoffs across every unit in the manufacturing facility because of increased imports of foreign-made cars, the appropriate subdivision would be the entire facility.

The Department's experience in implementing the provisions covering workers in the service sector has demonstrated that the organizational structures that companies use to supply services may differ significantly from those used to manufacture a product. Service sector workers are more likely to be spread out geographically or to work remotely than are workers in a manufacturing environment. The proposed definition makes it clear that flexibility is needed to ensure that the Department can address new and varied organizational structures.

Appropriate week

—This NPRM modifies the definition of this term from 20 CFR 617.3(d) by replacing “individual” with “AAW.” This term is used in the proposed definitions of the terms “average weekly hours” and “average weekly wage.”

Approved training

TAA approved training

—This NPRM adds this term and defines it for the first time. For training to be approved, the trade-affected worker must apply for training with the State and receive approval of the training program from the State after meeting the requirements of sec. 236(a)(1) of the Act, as described in proposed § 618.610. The other requirements and limitations of subpart F must also be met.

Article

—This NPRM adds this term and defines it for the first time. The proposed term is in secs. 222 and 224 of the Act and the proposed definition is based on case law and current practice. An article may be tangible (including manufactured items, livestock, and commodities) or intangible (including software code and digital media). There is a distinction between an object produced for the purpose of sale (such as a book) and one produced incidental to the provision of a service (such as a ticket). While both objects may be tangible (paperback novel and paper ticket, respectively) or intangible (e-book and e-ticket, respectively), the paperback book and the e-book are articles because they were produced by a firm and moved from one party to another at the contract of sale and for which ownership rights are transferred from one party to another under the contract of sale. The ticket is not an article but is a token that represents the intent or completion of a service. Where the revenue of the firm or appropriate subdivision is generated from the sale or production of an article, the firm or appropriate subdivision is deemed to be engaged in activity related to the sale or production of an article.

Average weekly hours

—This NPRM modifies the definition of this term from 20 CFR 617.3(e), and has been combined with the statutory definition in sec. 247(5) of the Act. The phrase “consecutive calendar” has been added to the word “weeks” to clarify that the 52 weeks that comprise the average are the 52 consecutive calendar weeks before the worker's first qualifying separation. Additionally, for consistency purposes, the word “individual” has been replaced with “AAW.”

Average weekly wage

—This NPRM modifies the definition of this term from 20 CFR 617.3(f) by incorporating the statutory definition provided in sec. 247(4) of the Act. For consistency purposes, the word “individual” has been replaced with “AAW.”

Average weekly wage in adversely affected employment

—This NPRM removes this defined term from 20 CFR 617.3(g) because it is unnecessary, as both terms “average weekly wage” and “adversely affected employment” are already defined.

Benefit period

—This NPRM incorporates this defined term from 20 CFR 617.3(h) without change.

Certification

affirmative determination

petition certification

-This NPRM modifies the definition of these terms from 20 CFR 617.3(j)(1) to clarify that the Department intends “group of workers,” the term used in 20 CFR 617.3(j)(1), to refer to workers pre certification, and the term “worker group” to refer to a group that has been certified as eligible to apply for TAA Program benefits and services. (The terms “group of workers” and “worker group” are defined in this proposed subpart A.) Otherwise, the definition is unchanged. This definition does not apply for purposes of the term “certification” in sec. 222(d)(3) (firm or customer must certify specific

information), 236(a)(5)(H) (training involving obtaining or completing a degree or certification), 239(a)(3) (certifications for training waivers under 231(c)(2)), or 247(19) (definition of “recognized postsecondary credential”) of the Act. It also does not apply with respect to the term “affirmative determination” in sec. 222(e) (firms identified by the International Trade Commission (ITC)) or 224 (ITC notifications and investigations) of the Act.

Certification date

date of certification

—This NPRM adds these terms and defines them for the first time. This NPRM removes the defined term “date of issuance” from 29 CFR 90.2. The change is intended to make clear that the date the Certifying Officer signs a certification is the date on which the certification takes effect.

Certification period

—This NPRM modifies the definition of this term from 20 CFR 617.3(j)(2) to provide additional details to help clarify this specific time period. However, the meaning remains unchanged and is the period of time during which a worker group is covered by a certification.

Certifying Officer

—This NPRM modifies the definition of this term from 29 CFR 90.2 to reflect the statutory change in sec. 249A of the Act, which changes the “Division of Trade Adjustment Assistance” to the “Office of Trade Adjustment Assistance” and the title of the head of that office from “Director” to “Administrator.”

Co-enrollment

—This NPRM adds this term and defines it for the first time. It refers to enrolling a trade-affected worker both in the TAA Program and also in another program administered through a State's one-stop delivery system.

Commission

International Trade Commission

ITC

—This NPRM incorporates these defined terms from 29 CFR 90.2 without change.

Commuting area

—This NPRM modifies the definition of this term from 20 CFR 617.3(k) by replacing the word “individual” with “trade-affected worker.”

Completion of training

complete training

completed training

—This NPRM adds these terms and defines them for the first time. It clarifies the Department's interpretation of when a trade-affected worker completes TAA approved training.

Component part

—This NPRM adds this term and defines it for the first time. The proposed definition is based on the statutory text, case law, and current practice. The Act consistently uses the term “component part” in the context of articles and does not use it in the context of service. Consequently, the Department determines that there is no component part of a service. A component part is a tangible or intangible input that is directly incorporated into another article and that becomes a subunit of that other article, although it need not retain its original form or characteristics. Examples of a component part of an article include a button on a shirt, lacquer on a table, preservatives in processed food, and code embedded in a microchip. Examples of inputs that are not component parts include production equipment, molds and castings, energy to power the production facility, code in software to operate machinery, blueprints, and designs. A component part is neither like nor directly competitive with the article into which it is directly incorporated.

Confidential business information

—This NPRM modifies the definition of this term from 29 CFR 90.33(a) by including a reference to the Trade Secrets Act, 18 U.S.C. 1905, and by omitting the phrase “obtained from a person” since the confidentiality exception applies regardless of its source. Title 29 CFR 90.33(a) identifies the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Department's regulations implementing FOIA, 29 CFR part 70, as the bases for designating confidential business information as “privileged or confidential.” FOIA exemption (b)(4) exempts from mandatory disclosure under FOIA trade secrets and certain commercial or financial information. The Trade Secrets Act prohibits the disclosure of trade secrets and confidential business information without legal authority. The proposed definition also adds that confidential business information could be received by the Department, or by the States on the Department's behalf.

The proposed definition also reflects TGAAA's addition of paragraph (e)(3) to sec. 222 of the Act (now sec. 222(d)(3)), which in part requires the Department to protect the confidentiality of information obtained during an investigation “that the Secretary considers to be confidential business information,” unless 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 subsequently agrees to its disclosure.

Finally, the proposed definition is used in conjunction with investigations under proposed subpart B. The NPRM relocates the information provided by 29 CFR 90.33(b) and (c) to proposed subpart B.

Contributed importantly

—This NPRM adds this term and defines it for the first time. The proposed definition adopts the statutory definition in sec. 222(c) of the Act and is used in the petition investigation process described in proposed subpart B.

Cooperating State agency

CSA

—This NPRM adds these terms and defines them for the first time to accurately identify the agency at the State level that will act as an agent of the Department in receiving applications from and providing benefits and services to trade-affected workers. The proposed definition incorporates language that is used in Governor-Secretary Agreements, as further described in proposed subpart H.

Customized training

—This NPRM adds this term and defines it for the first time to identify a type of training approvable under the Act and proposed subpart F. The proposed definition of “customized training” is taken from sec. 236(f) of the Act. Proposed subpart F addresses exclusions specific to AAIWs from sec. 236(a)(10)(B) of the Act.

Date of issuance

—This NPRM removes this defined term from 29 CFR 90.2 because it is not used in the Act or in the NPRM and is therefore unnecessary.

Date of the petition

—This NPRM removes this defined term from 29 CFR 90.2. In its place, the NPRM proposes a new term, “petition date.”

Date of separation

—This NPRM removes this defined term from 20 CFR 617.3(k)(1). In its place, the NPRM proposes a new term, “separation date.”

Denial

negative determination

petition denial

—This NPRM adds these terms and defines them for the first time. The proposed definition is derived from 29 CFR 90.16(f) and describes the result when a group of workers has not met the requirements for certification and so is not eligible for TAA Program benefits.

Department of Labor

Department

—This NPRM adds this term and defines it for the first time. It is used to identify references to the U.S. Department of Labor.

Downstream producer

—This NPRM adds this term and defines it for the first time. It incorporates the statutory definition at sec. 222(c)(3) of the Act. A downstream producer is a firm that performs additional value-added production processes or services directly for another firm for articles or services with respect to which a worker group in such other firm has been certified as eligible to apply for TAA Program benefits and services. Value-added production processes or services

include final assembly, finishing, testing, packaging, or maintenance or transportation services. Production processes are services provided directly for the primary firm even if ownership of the primary firm changes. Additionally, a firm can be a downstream producer even if the article for which the value-added production processes or services are carried out will become a component part of the article received from the primary firm, or if further value-added finishing or assembly of the article occurs downstream by another firm. Additionally, a downstream producer may be a firm that provides services to a primary firm that produces physical products. For example, a shipping company will be a downstream producer if a significant portion of its business is lost from a TAA certified primary firm.

Eligible RTAA recipient

and

eligible TAA recipient

—This NPRM adds these terms and defines them for the first time to describe categories of persons who may be eligible to qualify for the HCTC (see proposed definition of “HCTC”), if that benefit is available. These terms are defined in HCTC administrative guidance.

Employer

—This NPRM incorporates this defined term from 20 CFR 617.3(n) without change.

Employment

—This NPRM incorporates this defined term from 20 CFR 617.3(o) without change.

Enrolled in training

—This NPRM modifies the definition of this term from 20 CFR 617.11(a)(2)(vii)(D)(

). This term is found at sec. 231(a)(5)(A) of the Act. The proposed definition is reworded from 20 CFR 617.11(a)(2)(vii)(D)(

). The proposed definition omits the instruction that a waiver is not required for a worker who is enrolled in training. That instruction is more clearly provided in proposed subpart G. The definition of this term is not the same definition used for the performance reporting under subpart H. Separate guidance, outside of this rule, is published on reporting requirements.

Exhaustion of UI

—This NPRM removes this defined term from 20 CFR 617.3(p) and it is to be included in proposed subpart G rather than in this proposed subpart A.

Family

—This NPRM modifies the definition of this term from 20 CFR 617.3(q), which was based on the Internal Revenue Code definition. The definition used in this NPRM is the definition of “immediate family” used in the Federal Travel Regulation (FTR) at 41 CFR 300-3.1.

Filing date

—This NPRM modifies the definition of the term “date of filing” from 29 CFR 90.2. This term refers to the date on which petitions are deemed to be filed. OTAA, the office currently handling petitions under the TAA Program, is substituted for “Division of Trade Adjustment Assistance.” The phrase “other documents” has been replaced with the phrase “attachments to the petition form” to clarify that the definition applies to attachments to a petition, and not to other documents submitted to the Department. The phrase “and determined to be valid” has also been added. The Department would review a petition, including attachments, to determine if it is valid, in accordance with proposed § 618.205, within 2 business days of receipt of the petition to the Department. The date on which the petition is determined to be valid is the filing date. The Department would not initiate the investigation until the petition is deemed valid, in accordance with proposed § 618.205(f). Accordingly, this interpretation applies to sec. 221(a)(3) of the Act, which states that “[u]pon receipt of the petition, [the Department] shall promptly publish notice in the

Federal Register

and on the website of the Department of Labor that the Secretary has received the petition and initiated an investigation.”

Firm

—This NPRM modifies the definition of this term from 29 CFR 90.2 and adds some new language derived from sec. 247(3) of the Act, including “[w]here the term `firm' appears in this part, it means `firm or appropriate subdivision.' ” This has been added to clarify that the term “firm,” as defined in sec. 247(3) of the Act, includes an appropriate subdivision thereof. Also included in the proposed definition is that “firm” includes “an agricultural firm or service sector firm or an appropriate subdivision thereof.” The Department also added a clarification that for purposes of determining group eligibility only, as described in subpart B, a firm does not include a public agency or any subdivision of a public agency. TAAEA modified sec. 247 of the Act (19 U.S.C. 2319) by striking “public agency” from the definition of a “firm.” Accordingly, individuals employed by a public agency, which the Department defines by reference to 29 U.S.C. 203(x), are not eligible for a certification of eligibility to apply for the TAA Program. This proposed definition of a “firm” is intended to encompass diverse organizations and to include closely related or affiliated organizations. The definition, however, follows basic rules of corporate and organizational law by limiting it to entities under common ownership or control.

First benefit period

—This NPRM modifies the definition of this term from 20 CFR 617.3(r) by replacing “individual” with “AAW” to achieve consistency throughout the NPRM.

First exhaustion of UI

—This definition is proposed for removal, as it is included in 20 CFR 617.3(s) and has been included in proposed subpart G, rather than in proposed subpart A.

First qualifying separation

—This NPRM removes this defined term from 20 CFR 617.3(t)(3). The term is not necessary because the plain meaning of the term first qualifying separation is sufficient for use in the NPRM and additional clarifying language was added to the term “qualifying separation.”

First separation

—This NPRM removes this defined term from 20 CFR 617.3(t)(1). It was written to address pre-TAARA statutory provisions that are outdated due to subsequent statutory amendments. The proposed definitions for the terms “partial separation,” “qualifying separation,” and “total separation” make this term and definition unnecessary.

Full-time training

—This NPRM adds this term and defines it for the first time. It is derived from 20 CFR 617.22(f)(4) and defines 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 has added an interpretation, originally published in TAAEA administrative guidance, that provides 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.

Group of workers

—This NPRM adds this term and defines it for the first time. It relates to the workers who file a petition or for whom a petition is filed and means at least two workers employed or formerly employed by the same firm, or an appropriate subdivision. The proposed definition includes 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 are included in the definition because they, too, may be trade-affected workers. This term is different from the term “worker group.” This NPRM also removes the defined term “group,” from 29 CFR 90.2, because it defines “group” as three or more workers in a firm. The Act does not define this term and “group” can be interpreted as two or

more. The Department is interested in comments related to this change.

Head of family

—This NPRM removes this defined term from 20 CFR 617.3(u) because it is not used in this NPRM.

Health Coverage Tax Credit

HCTC

—This NPRM adds these terms and defines them for the first time to describe the tax credit under sec. 35 of the Internal Revenue Code of 1986 (26 U.S.C. 35), which is available to eligible TAA recipients, eligible RTAA recipients, and other eligible recipients, including qualifying family members. The HCTC benefit is available under TAARA 2015 and was available under TAARA 2002, TGAAA, and TAAEA for a limited time.

Impact date

—This NPRM modifies the definition of this term from 20 CFR 617.3(v) for clarity. Section 223(a) of the Act requires that each certification specify the date on which the total or partial separation began or threatened to begin. Section 223(b) requires that the impact date may not be more than 1 year before the petition date, with exceptions for certifications based in sec. 222(e) of the Act and those specified in proposed subpart B.

Increased imports

—This NPRM incorporates this defined term from 29 CFR 90.2 without change.

Individual employment plan

IEP

—This NPRM adds these terms and defines them for the first time. It describes an employment and case management service required by sec. 235(2) of the Act. 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. Proposed subpart C describes development of an IEP in more detail.

Job finding club

—This NPRM incorporates this defined term from 20 CFR 617.3(y) and sec. 247(16)(C) of the Act without change.

Job search program

JSP

—This NPRM incorporates this defined term from 20 CFR 617.3(w) and sec. 247(16)(A) of the Act without change.

Job search workshop

—This NPRM modifies the definition of this term from 20 CFR 617.3(x) to conform to the definition provided in sec. 247(16)(B) of the Act.

Lack of work

—This NPRM adds this term and defines it for the first time. The proposed term is in sec. 247(2) of the Act and is also in the definitions of the terms “adversely affected worker” and “layoff” in this NPRM. The proposed definition incorporates the administrative guidance in TEGL No. 12-16 on “strikes” and “lockouts” and their effect on eligibility for TAA Program benefits and services. 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. A lack of work separation can be based on a lockout, because a lockout is initiated by the employer. Another example is when an employer provides a retirement package incentive or other bonus to reduce the workforce through voluntary separations. Some AAWs will meet this definition of a “lack of work” separation but may still be disqualified for UI in some States under their voluntary quit provisions. Although the UI disqualification will make these workers ineligible for TRA, they may qualify for other benefits and services under the TAA Program.

Layoff

—This NPRM modifies the definition of this term from 20 CFR 617.3(z) and 29 CFR 90.2. The phrase “suspension or separation from employment” used in 20 CFR 617.3(z) is adopted instead of the phrase “suspension from pay status” used in 29 CFR 90.2 because the Department intends for “layoff” to include persons separated from employment who receive severance pay and, therefore, may be deemed in a pay status. Some of these workers may be eligible for TAA Program benefits and services, whether or not State law prevents them from qualifying for TRA. The words “of time” have been added to the 20 CFR 617.3(z) phrase “expected to be for a definite or indefinite period,” and this is a change from the 29 CFR 90.2 definition, which does not include the latter phrase. In addition, the language at 20 CFR 617.3(z) and 29 CFR 90.2 that requires that the layoff be expected to last for “not less than seven consecutive days” and “no less than seven (7) consecutive calendar days,” respectively, has not been included in the proposed definition, because that restriction is not supported by the Act. These changes will remove any ambiguity about whether a suspension or separation from employment may be for a definite or indefinite period and still be a “layoff” for TAA Program purposes.

Liable State

—This NPRM modifies the definition of this term from 20 CFR 617.3(aa)(1) and 617.16(e) to provide more specific directions about identifying the liable State. It also includes the phrase “trade-affected worker” instead of “individual” and updates references to this NPRM. The term “Agent State” is now separately defined in this proposed subpart A.

Like or directly competitive

—This NPRM modifies the definition of this term from 29 CFR 90.2 in order to accommodate the statutory changes to group eligibility, which now includes worker groups performing services, to address intangible articles and services, and to remove the second paragraph, which states, “An imported article is

directly competitive with

a domestic article at an earlier or later stage of processing, and a domestic article is

directly competitive with

an imported article at an earlier or later stage of processing, if the importation of the article has an economic effect on producers of the domestic article comparable to the effect of importation of articles in the same stage of processing as the domestic article.” The Department proposes the removal of the second paragraph of the definition because it was seldom used and the proposed changes to the definition maintain the Department's ability to determine whether an article at an earlier or later stage of production or a service at an earlier or later stage of supply are commercially interchangeable. In addition, the proposed definition clarifies that like and directly competitive articles and services can be tangible or intangible. Examples of “like” tangible articles could include jackets and coats; examples of “like” intangible articles could include programming software code and operating software code. Examples of “like” services could include payroll services and billing services. Examples of “directly competitive” articles could include corrective eyeglasses and corrective contact lens. Examples of “directly competitive” services could include physical fitness personal trainer services and virtual fitness training programs available online. A component part is neither like nor directly competitive with the article into which it is incorporated because the component part is a subunit of the article.

Office of Trade Adjustment Assistance

OTAA

—This NPRM adds this term and defines it for the first time as authorized by sec. 249A of the Act. It refers to the name of the organization within the U.S. Department of Labor, Employment Training Administration with responsibility for administering the TAA Program, or OTAA's successor organization.

One-stop delivery system

—This NPRM adds this term and defines it for the first time. It refers to the American Job Center network, which brings together workforce development, education, and other human resource services in a seamless, customer-focused

service delivery network that enhances access to partner programs' services and improves long-term employment outcomes for individuals receiving assistance. This includes coordination of services to eligible dislocated workers as defined under sec. 3(15) of WIOA. States operate the one-stop delivery system consistent with the requirements of WIOA and its implementing regulations. WIOA sec. 121(b)(1)(B)(vii) requires the TAA Program to be a partner in the one-stop delivery system.

On-the-job training

OJT

—This NPRM modifies the definition of this term from sec. 247(15) of the Act and 20 CFR 617.3(bb). It adds that the training is work-based and performed under contract with an employer. The term “AAW” replaces “individual.”

Partial separation

partially separated

—This NPRM modifies the definition of this term from 20 CFR 617.3(cc), 29 CFR 90.2, and sec. 247(6) of the Act. The definition of this term in 29 CFR 90.2 applies to separations “at the firm or appropriate subdivision thereof,” referring to workers who have not yet been certified as eligible to apply for the TAA Program. After being determined eligible to apply for the TAA Program, the AAW's “partial separation” is referred to in 20 CFR 617.3(cc) as being “in adversely affected employment,” the term used in sec. 247(6)(A) and (B) of the Act. The proposed definition retains the statutory criteria of “partial separation” for both workers on whose behalf a petition has been filed and workers who are covered by a certification, and offers different definitions for usage under proposed subpart B and the other proposed subparts of this NPRM. The proposed definition also retains the provision in 20 CFR 617.3(cc) that, in order for the AAW to be counted as partially separated from adversely affected employment, the requisite reduction of hours and wages must have occurred. However, the proposed definition simplifies the language about when the separation must occur by substituting the phrase “during the certification period” for “during a week ending on or after the impact date specified in the certification under which an adversely affected worker is covered” (see proposed definition of “certification period”).

Period of duty

—This NPRM adds this term and defines it for the first time. It is from sec. 233(i)(2) of the Act, added by TGAAA, and relates to service performed in the reserve components of the Armed Services of the United States.

Petition date

—This NPRM adds the term and defines it for the first time. It means the date a petition form is signed by the petitioner(s). This change reflects the common, everyday usage of this phrase. When petitioners sign on different dates, the petition date is the latest of those dates. This NPRM also removes the defined term “date of petition” from 29 CFR 90.2.

Prerequisite education

prerequisite coursework

prerequisite training

—This NPRM adds these terms and defines them for the first time. They refer to approvable training under sec. 236(a)(5)(E) of the Act. For example, a trainee enrolled in an engineering program might have to complete courses in mathematics before registering for engineering courses. Similarly, some nursing programs may require additional math coursework beyond the trainee's high school classes before starting the nursing program curriculum.

Program of remedial education

remedial education

remedial training

—This NPRM adds these terms and defines them for the first time. They refer to approvable training under sec. 236(a)(5)(D) of the Act and are used to refer to education designed to improve trade-affected workers' basic knowledge.

Qualifying separation

—This NPRM modifies the definition of this term from 20 CFR 617.3(t)(2). The Department is proposing to amend the definition of “qualifying separation” to include partially separated workers. The definition at 20 CFR 617.3(t)(2) excludes partially separated workers and is based on an August 23, 1988, amendment to sec. 233(a)(2) of the Act, which added a 104-week limitation period for the receipt of Basic TRA with respect to totally separated workers. See Public Law 100-418, sec. 1425(a). The Department has reviewed the Act for this NPRM and has concluded that under a plain reading of the Act, partially separated workers are otherwise eligible for TRA benefits if the eligibility requirements in sec. 231 of the Act are met. The proposed definition covers qualifying separation for the purposes of assisting States in determining an AAW's eligibility to receive Basic TRA; the 26-week period for enrollment in approved training; and the Basic TRA eligibility period. The first qualifying separation is used for purposes of determining a worker's eligibility for Basic TRA and the weekly and maximum amounts of Basic TRA. This is discussed further in proposed subpart G.

Reemployment Trade Adjustment Assistance

RTAA

—This NPRM adds these terms and defines them for the first time to refer to the employment-based benefit described in sec. 246 of the Act. RTAA was established with TGAAA and continued under TAAEA and TAARA 2015.

Regional Administrator

—This NPRM modifies the definition of this term from 20 CFR 617.3(dd), by reversing the order of the terms “U.S. Department of Labor” and “Employment and Training Administration.”

Remuneration

—This NPRM removes this defined term from 20 CFR 617.3(ee) because it does not appear in this NPRM.

Secretary

—This NPRM incorporates this defined term from 20 CFR 617.3(ff) and 29 CFR 90.2 without change.

Separation date

—This NPRM adds this term and defines it for the first time. It replaces the term “date of separation” and is substantially the same as in 20 CFR 617.3(l), but rephrases the employer-authorized leave language slightly for clarity, adds a reference to leave for military service as provided in sec. 231(a)(2)(D) of the Act, and uses the word “worker” instead of “individual.” This NPRM also removes the defined term “date of separation” from 20 CFR 617.3(l).

Service

—This NPRM adds this term and defines it for the first time to explain how the term is used in sec. 222 of the Act as part of group eligibility requirements. This proposed definition has been developed from case law and current practice. A service is 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. For example, a travel agent provides travel-planning services, but may send customers a ticket or voucher. An online education company provides education services, but may send students a textbook. Where the revenue of the firm or its appropriate subdivision is generated from the sale of a service, the firm or subdivision is engaged in the supply of a service.

Significant number or proportion of the workers

—This NPRM modifies the definition of this term from 29 CFR 90.2 to reflect that both partially and totally separated workers, as well as workers threatened with total or partial separation, are counted towards the number and proportion of workers affected, as established in sec. 222(a)(1) and (b)(1) of the Act. The phrases “[i]n most cases” and “would ordinarily have to be affected” have also been omitted from the definition.

Staffed worker

—This NPRM adds this term and defines it for the first time under the authority of sec. 223(e) of the

Act, which allows the Department to establish standards for investigations of petitions filed under sec. 221 of the Act and to develop criteria for making determinations under sec. 223(a) of the Act. Previously referred to as leased workers, staffed workers are more fully addressed in proposed subpart B.

State

—This NPRM modifies the definition of this term from 20 CFR 617.3(hh), by replacing the phrase “such Commonwealth” to “the Commonwealth of Puerto Rico” for clarity.

State agency

—This NPRM removes this defined term from 20 CFR 617.3(ii). This is a commonly understood term. The term is defined at sec. 247(8) of the Act.

State law

—This NPRM modifies the definition of this term from 20 CFR 617.3(jj) and sec. 247(9) of the Act. The reference to the Internal Revenue Code has been updated and additional language is added to include other State laws that may be explicitly mentioned in this proposed part 618.

Successor-in-interest

—This NPRM adds this term and defines 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 worker's wages are reported to the State or by whom a termination notice or threatened status letter is issued. There is a test used by the Department in determining whether there is a successor-in-interest when the question arises as part of a determination as to the scope of the worker group under a certification. 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. If the State's investigation finds a successor-in-interest relationship exists and that could result in a denial of any TAA benefits, except RTAA, the State should file a new petition requesting an amendment to a certification in accordance with proposed § 618.250. The Department specifically encourages comments on this topic.

Suitable employment

—This NPRM modifies the definition of this term from 20 CFR 617.22(a)(1)(i) and sec. 236(e) of the Act. Specifically, the Act uses the term suitable employment in sec. 236(a)(1)(A) (the first criterion for the approval of training), providing for approval where “there is no suitable employment . . . available for an adversely affected worker.” The Department has concluded that suitable employment, to be considered such, excludes part-time, temporary, or threatened employment. Thus, the proposed definition adds this caveat. Additionally, unlike 20 CFR 617.22(a)(1)(i), the NPRM does not restrict applicability of the definition to sec. 236(a)(1)(A) of the Act.

Suitable work

—This NPRM removes this defined term from 20 CFR 617.3(kk)(1) and (2) and defines it within proposed subpart G, rather than in this proposed subpart A.

Supplier

—This NPRM adds this term and defines it for the first time. It is derived from sec. 222(c)(4) of the Act. The Department proposes to add this term and definition in response to statutory changes to group eligibility requirements. The Department has supplemented the statutory definition with a statement explaining that there is no direct supply where an intervening entity receives the component parts for articles, aside from a delivery or bailment situation, or in the case of a service supplier, if an intervening entity performs the service. The Department's interpretation is based on case law and current practice.

Supportive services

—This NPRM adds this term and defines it for the first time. It is derived from sec. 235(8) of the Act and is used to refer to such services as are needed to enable a trade-affected worker to participate in activities authorized under the Act. Additional information on supportive services is in the WIOA regulations at 20 CFR 680.900.

Threatened to become totally or partially separated

—This NPRM adds this term and defines it for the first time. It is similar to the term “threatened to begin” in 29 CFR 90.2 and is used in the context of petition investigations. The proposed definition describes that workers in a firm or appropriate subdivision can be threatened to become totally or partially separated when there is evidence of intent to separate workers. Evidence may include a Worker Adjustment and Retraining Notice (WARN) Act notification, a letter to a union official from the company, a memo to the employees from the company, or other forms of notice. Similar to 29 CFR 90.2, the phrase applies when it is reasonable to anticipate that separations are imminent.

Threatened to begin

—This NPRM incorporates this defined term from 29 CFR 90.2 without change. It is used in conjunction with the proposed defined term “threatened to become totally or partially separated,” and is the date(s) on which the applicable event(s) occurred.

Total separation

totally separated

—This NPRM modifies the definition of these terms from 20 CFR 617.3(ll) and 29 CFR 90.2 and specifies the difference between how the terms are applied to a worker for purposes of investigating a petition and determining group eligibility, in accordance with proposed subpart B, and how they are applied to an AAW otherwise.

Trade Adjustment Assistance for Workers

Trade Adjustment Assistance

TAA Program

—This NPRM modifies these defined terms from 20 CFR 617.3(mm) to state that the programs included as part of the TAA Program include RTAA and also to refer generally to the provision of benefits and services to trade-affected workers as described in this NPRM.

Trade-affected worker

—This NPRM adds this term and defines it for the first time to simplify the reference when the NPRM applies to both categories of workers: “adversely affected workers” and “adversely affected incumbent workers.”

Trade Readjustment Allowance

TRA

—This NPRM modifies the definition of these terms from 20 CFR 617.3(nn) and (m)(1) and (2) to reference the administration of the TRA benefit in proposed subpart G and includes the three categories of TRA available under TAARA 2015: Basic, Additional, and Completion. This revised definition does not define the three categories of TRA, but provides a cross-reference to their definitions in proposed subpart G.

Unemployment Insurance

—This NPRM modifies the definition of these terms from 20 CFR 617.3(oo), to use the word “worker” instead of “individual.” The terms “regular compensation,” “additional compensation,” and “extended compensation” are the same as the definitions in the Federal-State Extended Unemployment Compensation Act of 1970 (EUCA) (26. U.S.C. 3304 note), except that the word “worker” has been substituted for the word “individual,” and the term “Federal supplemental compensation” has been updated and moved within the definition of “extended compensation.”

Value-added production processes or services

—This NPRM adds this term and defines it for the first time. It is derived from sec. 222(c)(3)(B) of the Act and used in reference to the petition investigation process and identifying adversely affected secondary workers

who perform work for a firm that is a downstream producer.

Wages

—This NPRM incorporates this defined term from 20 CFR 617.3(pp) without change. For purposes of proposed subpart G, this includes wages paid to a worker by a successor-in-interest.

Wagner-Peyser Act

—This NPRM adds this term and defines it for the first time to refer to the Wagner-Peyser Act, as amended (29 U.S.C. 49

et seq.

). It references a program that is a required WIOA partner and may provide assistance to TAA Program participants.

Week

—This NPRM incorporates this defined term from 20 CFR 617.3(qq) and sec. 247(12) of the Act without change.

Week of unemployment

—This NPRM modifies the definition of this term from 20 CFR 617.3(rr). The phrase “Federal unemployment compensation law” has been changed to “Federal Unemployment Insurance law” to mirror the definition in sec. 247(13) of the Act.

Worker group

—This NPRM adds this term and defines it for the first time. It defines who may comprise a group of workers certified under proposed subpart B as eligible to apply for TAA Program benefits and services. The proposed definition includes teleworkers and staffed workers. The proposed definition is derived from sec. 223(a) of the Act, which refers to a certification of eligibility to apply for assistance as “covering workers in any group.” The term is differentiated in this NPRM from the term “group of workers” (defined in this proposed subpart A), which refers to workers who file a petition for certification under sec. 221(a)(1)(A) of the Act.

Workforce Innovation and Opportunity Act

WIOA

—This NPRM adds this term and defines it for the first time to refer to the Workforce Innovation and Opportunity Act (Pub. L. 113-128), as amended, under which the Department provides funding for States to carry out employment and training activities for adult, dislocated worker, and for youth activities in conjunction with local workforce development areas. The TAA Program is a mandatory one-stop partner under WIOA.

B. Subpart B—Petitions, Investigations, and Determinations

The purpose of subpart B is to set forth regulations required by sec. 248 of the Act, directing the Department to prescribe regulations to implement the provisions for rendering group determinations on adjustment assistance for trade-affected workers. This subpart will provide for the prompt and effective investigation of petitions for certification of eligibility to apply for adjustment assistance.

Proposed subpart B addresses secs. 221, 222, 223, and 224 of the Act and codifies and relocates 29 CFR part 90 by incorporating it into part 618. The proposed subpart makes several changes to update those regulations to reflect statutory changes; current procedures for filing petitions, conducting investigations, and issuing determinations of TAA Program eligibility; and requires exhaustion of administrative remedies, specifically use of the reconsideration process, prior to judicial review. The Department proposes to relocate most of the definitions in 29 CFR 90.2 to subpart A of part 618 for clarity and consistency.

Section 618.200 Scope

Proposed § 618.200 provides the same general scope for subpart B as 29 CFR part 90 but expounds upon the description of the scope given in 29 CFR 90.1.

Section 618.205 Petitions

Proposed § 618.205 updates the provision related to petitions at 29 CFR 90.11 and also makes the following changes. Proposed paragraph (a) updates who may file a petition, based on changes to sec. 221(a) of the Act. It also changes § 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.” Therefore, the Department interprets this to require that a group of workers be a minimum of two workers, instead of the current requirement of three workers. Proposed paragraph (b) combines and modifies 29 CFR 90.11(b) and (c) regarding the form and content of petitions. It requires petitioners to provide information the Department needs to begin its investigation. Absent this required information, a petition will not be valid. The required information remains substantially the same with the exception of proposing to remove the requirements in § 90.11(c)(6) and (7). The requirements in § 90.11(c)(6) and (7) are not worded in such a way to elicit information in keeping with all of the statutory requirements for group eligibility. Primarily, the requirements in 29 CFR 90.11(c)(6) and (7) do not apply to a petition filed identifying a shift. Therefore, the Department proposes to remove and replace them with proposed paragraph (b)(8), which requires that the petitioner explain why it is believed that worker separations that have occurred or may occur at the worker's firm are due to foreign trade impacts, or provide a reason that an amendment to an existing and active certification is being requested. Proposed paragraph (b)(3) also adds a requirement to provide 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) to assist the investigator in identifying the group of workers.

Proposed paragraph (c) is new and provides that supplemental information, while not required when the petition is filed, may be provided with the initial filing to assist the Department in rendering a timely decision.

Proposed paragraph (d) updates 29 CFR 90.11(c) and maintains the methods of filing, allowing petition submissions by fax, email, and mail, but strongly encourages that all petitions be filed electronically with the Department through the Department's website. Due to built-in quality control measures, online filing ensures that petitions are complete when filed, which improves the overall processing time of all petitions by minimizing the need for the Department to return incomplete petitions. Individuals requiring assistance with online filing may contact their nearest one-stop center or their State's rapid response unit.

Proposed paragraph (e) is a new provision that implements sec. 224 of the Act, requiring the Department to take specific actions when the ITC issues an affirmative determination on the investigation under sec. 202 or 421 of the Act, or issues an affirmative final determination under sec. 705 or 735 of the Tariff Act of 1930. This language follows the statutory requirements.

Proposed paragraph (f) revises 29 CFR 90.12 and provides the Department's procedures for acceptance of a petition. Upon receipt of a petition, the Department will make an initial determination of validity, which will be limited to checking whether all required petition elements are included. Once a petition has been determined to be valid, the Department will begin an investigation.

Proposed paragraph (g) is new and provides that if the Department receives multiple petitions for the same group of workers, the petition date from the first petition filed will be used. This reflects current practice and ensures fairness to workers.

Proposed paragraph (h) was previously part of 29 CFR 90.12 and provides that the Department will publish a notice of the petition in the

Federal Register

and on the

Department's website announcing the initiation of an investigation into all valid petitions filed.

Proposed paragraph (i) modifies 29 CFR 90.32 and reinforces that petitions and any attachments included are public documents. As such, the Department will publish redacted versions of petitions on the Department's website. This will remove the need for individuals to file a FOIA request for copies of posted petitions. Lastly, proposed paragraph (j) is a new provision and is part of the States' responsibilities under sec. 239 of the Act to ensure that petitions that have not been filed with the Department, as required under the Act, are identified and filed with the Department. The proposed language requires that if a petition is filed with the State, upon receipt of that petition, the State must ensure the Department has received a copy of the petition or the State must forward the petition to the Department.

Section 618.210 Investigation

Proposed § 618.210 describes the investigation process, authorized under secs. 221 and 222 of the Act, and updates 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. Proposed paragraph (a) reiterates the requirement in proposed § 618.205(f) that before an investigation can begin, the Department must determine that the petition is valid. Proposed paragraph (b) expands on 29 CFR 90.12 and defines the period of investigation to be used during investigations under this subpart B. The statutory timeframe for completing the investigation begins once a petition is filed with the Department and determined to be valid. Proposed paragraph (c) is new and explains the steps the investigator may take in order to render a determination regarding whether to certify a petition. It also identifies commonly used sources of information, providing added detail, structure, and transparency to stakeholders about the investigation process.

Proposed paragraph (d) derives from sec. 222(d)(3)(C) of the Act and updates the language from 29 CFR 90.32 to reflect the availability of information and protection of confidential business information received during the investigation process. This provision reiterates that the Department will not disclose confidential business information without the consent of the submitting firm or a court order.

Paragraph (e) is new and describes the conditions under which the Department may terminate an investigation. If an investigation is terminated, the Department will inform the petitioner and publish a notice in the

Federal Register

and on the Department's website. This proposed paragraph also provides that the Department may retain the original impact date for terminated petitions if the petition is later reinstated or a valid petition is filed for the same group of workers. A terminated investigation is subject to reconsideration and judicial review (see proposed § 618.245).

Proposed paragraph (f) is new and describes the contents of the investigative record of a determination. The investigative record will not include documents covered by attorney work-product protection, such as documents prepared in anticipation of litigation; documents covered by the attorney-client privilege, such as confidential communications with counsel seeking legal advice; documents covered by the deliberative process privilege, such as early drafts of determination documents; and other information otherwise exempt from disclosure. Proposed paragraph (g) expounds upon 29 CFR 90.12 and authorizes the use of site visits, previously called field visits, during the investigation to collect or validate information furnished by petitioners or to gather other relevant information.

Section 618.215 Public Hearings

Proposed § 618.215 discusses the provision governing public hearings and, other than updating regulatory citations, there are only a few changes from 29 CFR 90.13. These changes are as follows: Proposed paragraph (a)(3) is new and has been added to assist the parties in clearly communicating the issues to be heard; proposed paragraph (c) substitutes that a notice of public hearings will be published in the

Federal Register

within “a reasonable period of time” rather than at least 7 calendar days before the scheduled hearing, because the 7-day requirement may delay hearings; and proposed paragraph (j) revises 29 CFR 90.13(j) to allow for transcripts and recordings of hearings in place of being stenographically recorded.

Section 618.220 Use of Subpoena

Proposed § 618.220 explains the use of subpoena authority available to the Administrator under sec. 222(d)(3)(B) of the Act. It modifies 29 CFR 90.14 by providing factors the Department will use in determining the need for issuance of a subpoena during the investigation process. States are also provided subpoena authority in this NPRM, as discussed in subpart H. Proposed paragraph (a) is unchanged from 29 CFR 90.14(a). Proposed paragraph (b) is new and describes five factors the Department will consider when determining whether to issue a subpoena. Proposed paragraph (c) is unchanged from 29 CFR 90.14(c). Proposed paragraph (d) is substantially the same as 29 CFR 90.14(d), but includes a new reference to Rule 5(b) of the Federal Rules of Civil Procedure, which describes service and filing procedures of court pleadings and other papers. Proposed paragraph (e) is substantially the same as 29 CFR 90.14(b).

Section 618.225 Criteria for Certification of a Group of Workers

Proposed § 618.225 substantially updates 29 CFR 90.16(b) to describe the criteria the Department uses to certify a group of workers, which has expanded significantly under sec. 222 of the Act. It also identifies factors under consideration in determining whether a criterion is met. The revised language provides transparency on how investigations are conducted, the importance of information collected, and how the information is used. The proposed new provisions, listed below, reflect Congressional intent, existing Departmental practices and, in some instances, thresholds for select criteria.

Proposed paragraph (a) covers increased imports and provides the criteria for certification of a group of workers under sec. 222(a) of the Act. While 29 CFR 90.16(b) covered certifications based on increased imports, the modifications to the provision are significant enough to deem this a new provision. Proposed paragraph (a)(1) describes five possible bases for an increased imports certification. Proposed paragraph (a)(2) describes the four criteria that must be met in order to issue a certification under increased imports.

Proposed paragraph (b) covers shift in production of articles and supply of services by the group of workers' firm to another country and provides the criteria for certification of a group of workers under sec. 222(a) of the Act. Proposed paragraph (b)(1) describes the two possible bases of a shift in production certification. Proposed paragraph (b)(2) describes the three criteria that must be met in order to issue a certification under a shift.

Proposed paragraph (c) covers foreign acquisition and also provides the

criteria for certification of a group of workers under sec. 222(a) of the Act. The introductory text to proposed paragraph (c) describes the two possible bases for a foreign acquisition certification. Proposed paragraphs (c)(1) through (3) describe the three criteria that must be met in order to issue a certification under foreign acquisition.

Proposed paragraph (d) covers the certification of a group of workers as a supplier under sec. 222(a) of the Act. Proposed paragraphs (d)(1) through (5) describe the five criteria that must be met in order to issue a certification for a supplier.

Proposed paragraph (e) covers the certification of a group of workers as a downstream producer under sec. 222(b) of the Act. Proposed paragraphs (e)(1) through (5) describe the five criteria that must be met in order to issue a certification as a downstream producer.

Proposed Paragraph (f) implements sec. 222(e) of the Act related to a group of workers in a firm or firms named as a member of a domestic industry for an affirmative determination issued by the ITC. Proposed paragraphs (f)(1) through (3) describe the three criteria that must be met in order to issue a certification based on an affirmative determination issued by the ITC.

Proposed paragraph (g) is new and describes the Department's longstanding interpretation of the 1-year period prior to the petition date for production and sales declines.

Proposed paragraph (h) is new. The Department is making explicit an eligibility requirement contained in sec. 222(c)(2) of the Act, which states that firms, or appropriate subdivisions thereof, that engage in exploration or drilling for oil and natural gas must be considered to be engaged in the production of oil or natural gas. However, the Department will not interpret this provision to prevent workers from meeting criteria set forth in other portions of the Act. A petition covering a group of workers providing oil and gas services may be investigated as both a firm engaged in the supply of exploration or drilling services and a firm engaged in the production of oil or natural gas. This means the Department may conduct a parallel investigation to determine whether the petitioning group of workers meets any criteria for certification of worker groups set forth in proposed § 618.225.

Proposed paragraph (i) is new and provides that staffed workers, working on or off-site, will be classified as part of the worker group of the firm. The Department will specify in the determination document that all members of the affected worker group include teleworkers and staffed workers, but will not list specific leasing companies or temporary staffing entities. The Department will continue to collect information from the subject firm in order to establish the leasing or temporary staffing entity or entities over which the workers' firm has operational control. The Department will provide contact information to States for the aforementioned leasing or temporary staffing entities to assist them in notifying workers. States that discover additional leasing or temporary staffing entities employing staffed workers who are members of a certified worker group may serve those workers without the delay of filing a new petition or requesting an amendment to the certification. This change in procedure will enhance service delivery to workers. Although every case is decided on its own merits, proposed paragraphs (i)(1) through (9) list the control questions used to evaluate operational control and have been added to ensure uniformity in the Department's decisions. The Department is also considering an alternative approach to this provision, changing its previous interpretation and not including staffed workers as part of the worker group of the firm. It would instead require staffed workers to file a separate petition to seek certification as their own worker group. The Department seeks comments on both proposed paragraph (i) and the alternative approach the Department is considering.

Proposed paragraph (j) codifies administrative guidance issued as part of the TAAEA operating instructions. This section explains 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 workers in the worker group. Teleworkers should not be excluded simply because they are teleworkers. Rather, they should be considered part of the worker group when they otherwise fit the description.

Proposed paragraph (k) is new and provides that workers employed by a firm that is a successor-in-interest are members of a worker group even if they are not specifically mentioned within the determination document issued under proposed § 618.235.

Section 618.230 Evidence

Proposed § 618.230 is new and provides a description of the types of evidence to be gathered and used in evaluating the criteria for certification during the investigation process under § 618.210. Section 223(e) of the Act requires the Department to establish standards, including data requirements, for investigations under sec. 221 and for making determinations under sec. 223(a). Section 222(d) of the Act authorizes the Department to collect such information as necessary to make a determination. There is no similar provision in 29 CFR part 90 as this provision originated with TGAAA.

Proposed paragraph (a) provides that the Department will seek to verify all information provided in support of a criteria as accurate, complete, and current as part of considering the evidence. Proposed paragraph (b) provides that evidence may be accepted from 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 reliable public sources such as State agencies and academic institutions. Another example of a party who may produce evidence is a party who submits information in response to the publication of the petition in the

Federal Register

or the Department's website. Proposed paragraph (c) provides that the Department may share information submitted in support of a petition, for verification purposes, with any entity as deemed appropriate for completing the investigation. For example, the Department may share a media article submitted by the petitioner in support of the petition with the company official to verify its accuracy.

Section 618.235 Determinations

Proposed § 618.235 clarifies the process the certifying officer will use for issuing a determination based on the findings of the investigation as set forth in proposed § 618.230. This is similar to 29 CFR 90.16, but reorders it, condenses the description of types of determinations into four categories, and adds a discussion of the oil and gas provision at sec. 222(c)(2) of the Act. The NPRM removes the reference in 29 CFR 90.16(a) to the issuance of a determination within 60 days. The statutory period is 40 days, as provided in sec. 223(a) of the Act. Proposed paragraph (a) describes the affirmative determination or certification category of determinations. It contains predominantly the same information provided in 29 CFR 90.16, but adds a discussion of the impact date and coverage of workers under the petition. Proposed paragraph (b) covers a negative determination or denial and derives from 29 CFR 90.16(f) but also incorporates additional language to explain the Department's process more

fully and to align it with proposed paragraph (a). Proposed paragraph (c) covers determinations and derives from 29 CFR 90.16(d). Excluded is language that has been incorporated from 29 CFR 90.16 into proposed paragraphs (a) and (b).

Proposed paragraph (d) covers amended determinations and codifies the practice of amending a certification to limit or expand a worker group or other elements of a certification, which aligns with longstanding practice and administrative guidance. Proposed paragraph (d) also states the Department's position that it reserves the right to begin reconsideration proceedings of a denial without a request for reconsideration being filed. Proposed § 618.250 of this subpart B also discusses this issue. In addition, this paragraph states that a termination will not take effect until the period in which to request reconsideration has elapsed.

Section 618.240 Termination of Certification

Proposed § 618.240 discusses the termination of certifications under sec. 223(d) of the Act, updating the regulations to reflect current practice and procedures through minor revisions to 29 CFR 90.17. Any party eligible under proposed § 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.

Proposed paragraph (a) restates sec. 222(d) of the Act and is unchanged from 29 CFR 90.17(a). Proposed paragraph (a)(1) is new and describes that unless a termination is issued under proposed § 618.240, all certifications under proposed § 618.235(a)(1)(ii) are considered terminated the day following the expiration date of the certification. And as provided in the definition of the term “certification period” in proposed subpart A, a certification expires 2 years after the certification date. Proposed paragraph (a)(2) is new and provides that all ITC certifications, described at § 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

. Proposed paragraphs (a)(1) and (2) have been added to make clear that the expiration date of a certification serves the same purpose as a notice of termination as described further in proposed paragraph (e) of this section. The expiration date cannot be extended, however, so if it is known that further separations or threat of separations will continue to exist after that date, a new petition must be filed.

Proposed paragraph (b) includes the notice language from 29 CFR 90.17(a) and updates it to include to whom the notices will be made. It also requires the State to notify the workers in the worker group of the initiation of the investigation. Proposed paragraph (c) updates 29 CFR 90.17(b) and describes how interested parties may comment on a notice of the initiation of an investigation to terminate a certification. Proposed paragraph (d) is new and describes the information that will be considered in determining whether to terminate a certification. It also provides that the period of investigation will remain the same as the period of investigation for the original certification.

Proposed paragraph (e) combines 29 CFR 90.17(d) and (e) to provide details on the process of issuing a notice of termination or notice of partial termination, as well as detailing to whom the notices will be issued. It requires States to notify the worker group of the termination or partial termination. It also states that a termination will not take effect until the period in which a party may request reconsideration has elapsed. Proposed paragraph (f) updates 29 CFR 90.17(f) and provides detail on the process of issuing a notice of continuation of certification, as well as detailing to whom the notice will be issued. It requires States to notify the worker group of the continuation of certification. Proposed paragraph (g) is new and allows for reconsideration of a determination of termination or partial termination of a certification. It refers parties to § 618.245.

Section 618.245 Reconsideration of Termination of an Investigation, Denial, or Termination or Partial Termination of Certification

Proposed § 618.245 contains the process for reconsiderations of determinations on petitions. There are several changes from 29 CFR 90.18, enumerated below, to provide additional clarifications and to enhance efficiency of investigations. The Department encourages comments addressing the impact of this revised process. Proposed paragraph (a) updates 29 CFR 90.18(a) and (b) to clarify that the reconsideration process allows for a party to apply to the Department to reconsider the termination of an investigation, as described in proposed § 618.210(e); a negative determination issued under proposed § 618.235(b); or a termination or partial termination of certification issued under proposed § 618.240. It also lists the information required as part of the application in order for it to be complete and valid. Proposed paragraph (b) aligns with the last sentence in 29 CFR 90.18 (a) and maintains the requirement that all applications must be in writing and must be filed no later than 30 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

. Proposed paragraph (c) is new and addresses the process for reviewing and returning an incomplete application for reconsideration. The refiling of the complete application must occur within the 30-day period identified in proposed paragraph (b) or within 5 days of receipt if the application is returned less than 5 days prior to the end of that period.

Proposed paragraph (d) addresses the publication of a notice in the

Federal Register

and on the Department's website of the application and the initiation of an investigation on reconsideration. The Department proposes to eliminate 29 CFR 90.18(c), which required a determination to accept the application for reconsideration before conducting an investigation. The Department concluded that eliminating the step requiring the certifying officer to make and issue a determination on whether or not to initiate a reconsideration will decrease time and burden and simplify the process. The Department will initiate an investigation on all complete reconsideration applications. Proposed paragraph (e) is substantially the same as 29 CFR 90.18(f). Proposed paragraph (f) is new and describes the procedures for investigation on reconsideration. It also provides that the period of investigation will remain the same as the period of investigation for the original certification. Proposed paragraph (g) combines and updates 29 CFR 90.18(h) and (i). It also includes the requirement of the State to notify a worker group of a certification in accordance with proposed § 618.820 in subpart H. Proposed paragraph (g) also states that should a reconsideration investigation extend past 60 days, the Department will contact the applicant for a directive to continue or terminate the investigation. If the applicant directs the Department to continue its investigation, the Department will issue a notice of determination on reconsideration, which will be the Department's final determination. If the applicant directs the Department to

terminate the investigation, the Department will issue a notice of termination of investigation, which will render the initial determination the Department's final determination.

Section 618.250 Amendments of Certifications

Proposed § 618.250 provides the process for seeking amendments to certifications. This proposed section is new, though in practice 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 sec. 222 of the Act. The Department interprets that provision to mean that, should new or supplemental 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. Proposed paragraph (a) describes the types of amendments and explains that amendments must not extend the impact date as that would go beyond the period covered by the certification itself. Common reasons for amendments include changes to the ownership of a successor firm, correcting any technical errors made, and clarifying the worker group. Clarifying the worker group does not include adding teleworkers or staffed workers, as they are considered part of the worker group.

Proposed paragraph (b) includes a new requirement that amendments be requested through the regular petition process, which is a change to current practice. This change will help formalize the amendment process and ensure that all individuals are aware of and able to use the process. Proposed paragraph (c) requires the Department to publish a notice of the amendment in the

Federal Register

and requires the States to notify any additional certified trade-affected workers impacted by the amendment.

Section 618.255 Judicial Review of Determinations

Proposed § 618.255 explains the process for judicial review of determinations issued under proposed §§ 618.240(g) and 618.245. This is a significant update to 29 CFR 90.19. Section 284 of the Act allows for judicial review of only “final determinations.” Under existing regulations, all determinations rendered by the Department are final determinations subject to judicial review. In the NPRM, the Department is defining only determinations on reconsideration issued under proposed §§ 618.240(g) and 618.245 as final determinations and, therefore, only these determinations are subject to judicial review through the United States Court of International Trade (USCIT). Proposed paragraph (a) is substantially the same as 29 CFR 90.19(a), but eliminates the citations within part 90. Proposed paragraph (b) is new and defines only determinations on reconsideration issued under proposed §§ 618.240(g) and 618.245 as final determinations subject to judicial review through the USCIT. Proposed paragraphs (c) and (d) are substantially the same as 29 CFR 90.19(b) and (c), with only minor language changes to reflect modernization. Proposed paragraph (e) contains an updated reference and title from 29 CFR 90.19(d). Proposed paragraphs (f) and (g) are new and provide clarity on the determinations subject to judicial review under sec. 284 of the Act and specify that USCIT rules apply to filings with the court.

Section 618.260 Study Regarding Certain Affirmative Determinations by the Commission

Proposed § 618.260 provides for a study and report to be undertaken by the Department in response to certain ITC affirmative determinations under sec. 224 of the Act. This is an update to the requirements at 29 CFR 90.21. There are no substantial changes, but the additional detail provided explains what information the study will include.

Section 618.265 Availability of Information to the Public

Proposed § 618.265 discusses the availability of information under this part 618 and is largely unchanged from 29 CFR 90.32, except to indicate that copies of petitions, in redacted form, will be available on the Department's website.

29 CFR 90.36, related to the computation of time for purposes of subpart B, is proposed for deletion as it does not apply to calculations for petitions or reconsiderations. Individual sections of this proposed subpart B address time periods as appropriate.

C. Subpart C—Employment and Case Management Services

Proposed subpart C sets forth requirements under sec. 235 of the Act for States to provide employment and case management services to trade-affected workers. Proposed subpart C makes significant changes to the employment and case management services provisions in 20 CFR part 617 because the enactment of TGAAA altered these requirements. However, 20 CFR 617.20 and 617.21 contain many of the same elements now contained in sec. 235 of the Act in proposed subpart C. TAARA 2002 required States to “make every reasonable effort” to provide case management services to trade-affected workers through programs other than the TAA Program. TGAAA enacted and funded a requirement to offer case management services to trade-affected workers. TAARA 2015 continues these provisions and requires States to provide employment and case management services, either through TAA Program funding, through programs other than the TAA Program, or through a combination of both.

Proposed subpart C also updates 20 CFR part 617 to reflect changes to the TAA Program and related workforce development programs due to the authorization and implementation of WIOA. Proposed subpart C emphasizes the integration of the TAA Program into the one-stop delivery system established under WIA and continued under WIOA.

Some key additions within proposed subpart C include requiring initial assessments for trade-affected workers; clarifying the provision of required case management services; and prescribing requirements for IEPs.

Section 618.300 Scope

Proposed § 618.300 discusses the scope of this subpart and does not have a directly comparable section in 20 CFR part 617. This proposed section describes the TAA Program benefits that States must make available and their required integration with the reemployment and career services provided through the one-stop delivery system established under WIOA. States must provide trade-affected workers with seamless delivery of services and benefits described in subpart C to help them return to employment as quickly as possible. Providing timely employment and case management services is important for improving the efficiency and effectiveness of the TAA Program. Immediately conducting an assessment improves participation rates, gives trade-affected workers more time to consider their options, and leads to better employment, retention, and post-program earnings outcomes.

The Act requires States to provide services to two groups of workers: (1) Members of a group of workers covered by a petition for TAA filed by, or on behalf of, such group of workers; and (2) members of a worker group covered by a petition that the Department has certified. Under sec. 221(a)(2)(A) of the Act, the Governor must provide rapid

response services and appropriate WIOA career services to groups of workers for whom a petition has been filed under subpart B. States must provide these services at the time of filing, whether or not the petition has been, or eventually will be, certified or denied. Once covered by a certification, States must offer trade-affected workers employment and case management services, including counseling, testing and placement services, and information on supportive and other services. This requirement is based on new language in secs. 235 and 239(a), (e), and (g) of the Act, and the Congressional Declaration of Policy in sec. 125(a) of TAARA 2002, which states that trade-affected workers “are eligible for transportation, childcare, and healthcare assistance, as well as other related assistance under programs administered by the Department of Labor.” Section 239(f) of the Act requires that these services be coordinated with workforce activities and services under title I of WIOA and provides the Department with the authority to establish the responsibilities and requirements for such coordination. These requirements are not new. Many of the employment and case management services discussed in this subpart are contained in 20 CFR 617.20 and 617.21.

Section 618.305 The Trade Adjustment Assistance Program as a One-Stop Partner

Proposed § 618.305 is new and requires States to ensure that their TAA Program, as a required partner in the one-stop delivery system, complies with one-stop partnership requirements such as sharing staff, materials, and financial resources. Coordination with the broader public workforce system established under WIA, now WIOA, is required at 20 CFR 617.59(h). This section expands upon the existing rules and updates them to reflect the requirements established under WIOA. The partnership activities help ensure the seamless delivery of necessary services, including a comprehensive array of appropriate services not funded under the TAA Program, to groups of workers covered by filed petitions and to members of worker groups for whom a certification has been issued. Services provided before the certification of a petition for TAA cannot be charged to the TAA Program. Services provided by partner programs must not be duplicated using TAA Program funds. However, there may be a need to supplement the previous services if they do not meet the requirements of the TAA Program. Proposed paragraph (a) reiterates that the TAA Program is a required partner under WIOA. Proposed paragraph (b) requires that the TAA Program meet the WIOA one-stop partner requirements, including paying infrastructure costs in areas where the TAA Program is being carried out. Proposed paragraph (c) provides that, for locations where the TAA Program is being carried out, States must ensure that their administration of the TAA Program complies with the one-stop partnership requirements, including appropriate cost allocation for infrastructure and operating costs of one-stop centers, and the terms and conditions of the memorandum of understanding established under the WIOA Final Rule at 20 CFR 678.500.

If the TAA Program is carried out in a local workforce development area (or local area), the State must provide access to the TAA Program services in at least one of the local area's comprehensive one-stop centers in accordance with 20 CFR 678.305(d) and WIOA sec. 121(b)(1)(A)(i). Access to the TAA Program occurs in one of three ways:

• Option 1. Having a program staff member physically present at the one-stop center;

• Option 2. Having a staff member from a different partner program physically present at the one-stop center and appropriately trained to provide information to customers about the programs, services, and activities available through all partner programs; or

• Option 3. Making available a direct linkage through technology to a program staff member who can provide meaningful information or services.

The options above offer a wide range of possibilities to partners. Option 2 could require varying levels of assistance depending on the trade-affected worker's needs. For example, this could be as simple as having an adequately trained WIOA staff member providing basic program information to a one-stop customer regarding group and individual eligibility requirements of the TAA Program. In this example, the one-stop center staff has been trained on TAA Program eligibility requirements as well as how to search for and file a TAA Program petition. Once the Department renders a determination on a petition, the one-stop center staff will then connect the worker to appropriately trained one-stop center staff who can further assist them. If the petition is certified, the trade-affected worker is eligible to apply for individual benefits and the appropriately trained one-stop center staff must guide them through the application and enrollment process. This option allows the trade-affected worker to receive high-quality service through the one-stop center, in a timely manner. In this example, it would be essential that the Wagner-Peyser Act Employment Service staff person document their time and effort to ensure that the charges to the appropriate program, namely the TAA Program, for salaries and wages are based on records that accurately reflect the work performed, consistent with Federal cost principles in the Office of Management and Budget's (OMB's) Uniform Guidance at 2 CFR 200.430.

Option 3, a direct linkage, can take many forms as well. As described in 20 CFR 678.305(d)(3), a “direct linkage” means providing a direct connection at the one-stop center within a reasonable time, by phone or through a real-time web-based communication, to a program staff member who can provide program information or services, including career services, to the customer. Solely providing a phone number, website, information, pamphlets, or materials does not constitute a “direct linkage.” The flexibility provided through the three optional methods for assuring customer access to required one-stop partner services and activities at the comprehensive centers ensures that the TAA Program remains accessible through the one-stop center network.

Section 618.310 Responsibilities for the Delivery of Employment and Case Management Services

Proposed § 618.310 explains the State's responsibilities for delivering and making available employment and case management services. These responsibilities are from sec. 235 of the Act. Proposed paragraph (a) addresses the information that States must provide to trade-affected workers. The information requirements are detailed in subpart H.

Proposed paragraph (b) lists the State's specific responsibilities for delivering employment and case management services. The proposed regulatory text would modify 20 CFR 617.20(b). The language in 20 CFR 617.20 was based on workforce programs that have been replaced by WIOA; it also uses outdated language to describe reemployment services, now known under the TAA Program as employment and case management services. Proposed paragraph (b) does not significantly change the activities and services that States must provide or make available to trade-affected workers. States must: (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) reorganizes 20 CFR 617.20(b). Paragraph (b)(1) is included in proposed § 618.310(b). Paragraph (b)(2), registering AAWs for work, is omitted from the NPRM. Registering AAWs for work is a function of the Wagner-Peyser and UI programs. Although TAA Program staff may assist with this process, it is not an employment and case management service listed under sec. 235 of the Act. Paragraph (b)(3) is covered in both proposed § 618.310(b)(2) and proposed § 618.816 of subpart H. Paragraphs (b)(4) and (6) are retained as proposed § 618.310(b)(3). Paragraph (b)(7) is covered in subparts F (training) and D (job search and relocation allowances). Paragraph (b)(8) is covered through the comprehensive and specialized assessment and IEP discussed in this subpart. Paragraphs (b)(9) through (12), regarding the selection of, referral to, and determinations on training, are covered in proposed § 618.310(b)(5) and (6) and in more detail in subpart F of this NPRM. Paragraph (b)(13), regarding the periodic review of reemployment plans, is covered in proposed § 618.350. Paragraph (b)(14), regarding periodic review of waivers, is included as proposed § 618.310(b)(7). Paragraph (b)(15), regarding the coordination of services with WIOA, is divided into proposed § 618.310(b)(8) and (9).

Proposed paragraph (c) implements sec. 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) requires 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) requires States to inform trade-affected workers of the availability of an IEP to identify employment goals and objectives, and appropriate training and services needed 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) is carried forward as a requirement for an IEP under this NPRM. For workers seeking training or job search allowances, § 618.350(a) requires States to provide workers with an IEP, though this is not a requirement for eligibility for benefits.

Proposed paragraph (c)(3) requires 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 sec. 235(4) of the Act. There is no corresponding requirement in the existing rule.

Proposed paragraph (c)(4) requires States to provide, if appropriate, certain services to trade-affected workers, including short-term, prevocational services, including 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 sec. 235(5) of the Act. There is no corresponding provision in the existing rule.

Proposed paragraph (c)(5) requires 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 are referenced indirectly in 20 CFR 617.20 and 617.21 and are required by sec. 235(6) of the Act. This NPRM uses 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) requires 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 references 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) requires States to inform trade-affected workers about supportive services available through partner programs, as required by sec. 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.

Proposed paragraph (d) further defines what it means to “make available” the employment and case management services described in this subpart. TEGL No. 16-16, “One-Stop Operations Guidance for the American Job Center Network,” discussed the requirement that career services under WIOA be “made available.” The Department there concluded that this phrase had the same meaning as “provided.” The Department reaches the same conclusion under the Act. While not all employment and case management services will be appropriate for all trade-affected workers, they must be made available to them. This requires informing trade-affected workers of the available services; providing those services if requested or if the services are deemed appropriate for the worker; and documenting the services that they offered, any that were not offered, and why those services were not offered.

Section 618.325 Integrated Service Strategies and Workforce Innovation and Opportunity Act Co-Enrollment

Proposed § 618.325 does not have a comparable section in 20 CFR part 617. Proposed § 618.325 discusses co-enrollment between the TAA Program and WIOA 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 long ago concluded that co-enrollment of trade-affected workers in the dislocated worker program under WIOA, WIA, and title III of JTPA before that, is the best way to integrate services and ensure successful reemployment of trade-affected workers, and States have been co-enrolling in accordance with administrative guidance. The State also should explore partnerships with community and faith-based organizations, including organizations

not affiliated with the broader WIOA system, to ensure the provision of appropriate, holistic services to trade-affected workers, their families, and their trade-affected communities. This integration of service strategies arises from the requirement in sec. 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.

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 reported by the States between FYs 2009 and 2017, TAA participants who are co-enrolled in the dislocated worker program under WIA/WIOA have superior post-program employment results, by a consistent margin, in comparison to TAA participants who were not co-enrolled in a WIA/WIOA dislocated worker program. Moreover, these data show no adverse impact on outcomes under the dislocated worker program as a result of co-enrolling TAA Program participants. Additionally, 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 are statistically significant.

Proposed paragraph (a)(1) requires 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) requires 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) emphasizes that most trade-affected workers are dislocated workers as defined at WIOA sec. 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) recognizes 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) describes 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 an individual knowingly and willfully fails to register, he cannot co-enroll in WIOA and, therefore the co-enrollment requirement does not apply.

Section 618.330 Assessment of Trade-Affected Workers

Proposed § 618.330 is new and requires 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 and requires the State to “perform outreach to, intake of, and orientation for [AAWs] and [AAIWs] covered by a certification under [the Act].” 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 TAARA 2015 sec. 239(g)(4) 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.

Proposed paragraph (a) provides an overview of assessments. Proposed paragraph (b) provides that the States must 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 26-week deadlines for enrollment in training provided under sec. 231(a)(5)(A) of the Act. Proposed paragraph (c) provides that assessments are created in cooperation with the trade-affected worker with their interests, skills, aptitudes, and abilities discussed. Proposed paragraph (d) requires that the results be documented in the worker's case file. An assessment requires more than a review of information available about the trade-affected worker, their education, and previous employment. An assessment is an interactive process that includes the involvement of the trade-affected worker. Proposed paragraph (e) discusses 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 § 618.335. Proposed paragraph (f) requires that States must explain the advantages of receiving an assessment to trade-affected workers and also confirms that a worker may refuse an assessment. However, the worker must provide any information necessary (outside the assessment process) that enables States to determine

eligibility for any benefit under this part 618.

Section 618.335 Initial Assessment of Trade-Affected Workers

Proposed § 618.335 is new and implements sec. 239(g)(4) of the Act. WIOA sec. 134(c)(2)(A)(iii) requires individuals be provided with an “initial assessment of skill levels (including literacy, numeracy, and English language proficiency), aptitudes, abilities (including skills gaps), and supportive service needs” as a career service through the one-stop center. The WIOA regulations mirror this language at 20 CFR 678.430(a)(3). Proposed § 618.335 aligns the TAA Program with WIOA and it 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 proposed § 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.

Proposed paragraph (a) requires that States conduct an initial assessment for each trade-affected worker, as authorized by sec. 239(g)(4) of the Act. If an initial assessment has been completed before the trade-affected worker enrolls in the TAA Program, the State must use the previous assessment and not conduct a duplicate assessment in accordance with proposed § 618.330(e). Proposed paragraph (b) lists factors that States must consider to find the best approach to reemployment for each particular worker. A review of local labor market conditions will help the State determine if any jobs are available in the local area for which the worker could apply. A review of the worker's knowledge, skills, and abilities gained from their education and previous employment helps the State determine whether the worker will be able to use those skills in new available jobs, or whether the worker's skills are too specialized to be transferred to other available employment. A review of all barriers to the worker's employment will help the State identify training that may overcome those barriers, such as English language training or remedial training to get a high school equivalency degree. Any feedback from the trade-affected worker, including disagreement with the assessment's conclusions, must be documented in the case file.

Proposed paragraph (c) explains the State's options for service strategies based on the information gathered from the initial assessment. This involves first making a determination of whether or not there is suitable employment available to the trade-affected worker and the options for moving forward. Proposed paragraph (d) explains that if suitable employment is not available, the State must advise the worker to explore available training under subpart F.

Section 618.345 Comprehensive and Specialized Assessment of Trade-Affected Workers

Proposed § 618.345 is new and implements sec. 235 of the Act. WIOA sec. 134(c)(2)(A)(xii) and its implementing regulation at 20 CFR 678.430(b)(1) require States to provide “[c]omprehensive and specialized assessments of the skill levels and service needs of adults and dislocated workers, which may include . . . [d]iagnostic testing and use of other assessment tools; and [i]n-depth interviewing and evaluation to identify employment barriers and appropriate employment goals” as an individualized career service “if determined to be appropriate in order for an individual to obtain or retain employment.” 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. Proposed § 618.345 aligns the TAA Program with WIOA. Proposed paragraph (a) requires the comprehensive and specialized assessment to be made available to all trade-affected workers. Proposed paragraph (b) explains that the trade-affected workers' goals and interests must be taken into account, as well as their location as it relates to available local employment and whether or not it is inside their current commuting area. Proposed paragraph (c) reiterates WIOA's regulations and is 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. Finally, proposed paragraph (d) provides that States can design their comprehensive and specialized assessments to gather the information necessary for determining whether the six criteria for training approval can be met under subpart F.

Section 618.350 Individual Employment Plans for Trade-Affected Workers

Proposed § 618.350 revises and combines two separate sections of 20 CFR part 617: a “training plan” at 20 CFR 617.20(b)(8) and a “reemployment plan” at 20 CFR 617.20(b)(13), and implements a new process for making available IEPs for trade-affected workers.

Proposed paragraph (a) requires the State to make available an IEP to all trade-affected workers and requires 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) requires that the IEP must document both the results of the assessment and a service strategy to provide the trade-affected worker with needed services for reemployment. Proposed paragraph (c) provides 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) explains 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) requires the State to monitor the worker's progress toward meeting the IEP's elements. Proposed paragraph (f) requires the State to modify the IEP as necessary, and with the worker's input. The State 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) explains 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 the State 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.

Section 618.355 Knowledge, Skills, and Abilities of Staff Performing Assessments

Proposed § 618.355 is new and has no comparable counterpart in existing regulations or in administrative guidance. The Department is proposing this section for the first time in order to assist States to ensure that requirements under sec. 235 of the Act are fully realized. TAA Program funds described in sec. 235A of the Act may assist in ensuring that States are able to obtain adequate staff to perform these services. Proposed paragraph (a) describes the qualifications that staff performing assessments should possess. In essence, staff should understand what jobs in the area are available to whom, and how trade-affected workers may be able to fill those jobs, either immediately or after receiving additional training. Staff with these qualifications can perform assessments quickly and properly, which helps the TAA Program run efficiently.

Proposed paragraph (b) confirms that the staff performing the assessments may be from any partner program and need not be limited to those funded under this Act. This flexibility better integrates the services of the TAA Program and partner programs. Proposed paragraph (c) references funds available under sec. 235A(2) of the Act to assist in training staff to meet these recommendations.

Section 618.360 Employment and Case Management Services for Trade-Affected Workers in Training

Proposed § 618.360 is a new clarification that is added as a result of TAA Program oversight and monitoring conducted by the Department. Proposed § 618.360 requires States to continue to make employment and case management services available to all trade-affected workers considering training (on a waiver from training in accordance with subpart G), taking TAA approved training, or who have completed training. Keeping these services available will help workers as they move from training to reemployment, and increases the chances of a good return on that training investment. Those services include placement and referrals to appropriate supportive services to trade-affected workers upon their completion of training and until they find reemployment. Post-employment follow-up services cannot be funded by the TAA Program, but must be provided through co-enrollment in WIOA.

D. Subpart D—Job Search and Relocation Allowances

Proposed subpart D governs job search and relocation allowances, which are authorized, respectively, under secs. 237 and 238 of the Act. Proposed subpart D consolidates provisions contained in subparts D, E, and F of 20 CFR part 617, which implement these allowances. Proposed subpart D largely preserves the 20 CFR part 617 requirements for job search and relocation allowances, with a few substantive changes regarding a statutory increase to the limit for job search allowance reimbursement per AAW and per certification to $1,250 from $800 previously; an increase in the maximum lump-sum payment for relocation to $1,250 from $800 previously; and the definition of “suitable employment” used in the eligibility requirement for both job search and relocation allowances, explained below. Proposed subpart D also contains procedural changes from 20 CFR part 617.

Finally, proposed subpart D continues to require the use of the FTR at 41 CFR chapters 300 through 304, in determining amounts for use by States to provide travel, subsistence, and transportation benefits, and establishing specified other requirements, 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. However, there has been confusion in some States as to what travel requirements apply to the TAA Program. Proposed subpart D, in expanding references to the FTR, clarifies that workers using job search and relocation allowances are subject to the same Federal travel rules as employees of the Department.

Section 618.400 Scope

Proposed § 618.400 explains the scope of this subpart D. This provision is new. It explains that the purpose of job search and relocation allowances is to help AAWs secure suitable employment and relocate outside their commuting area.

Section 618.405 General

Proposed § 618.405 contains general provisions and revises and consolidates 20 CFR 617.30 and 617.40. Proposed paragraph (a) retains the content in 20 CFR 617.30, except that it replaces the reference to “securing a job” with “suitable employment.” Proposed paragraph (b) retains the content of 20 CFR 617.40, except that it eliminates the reference to the “head of the family.” Instead, it authorizes payment to the AAW in the family who first applies for the relocation allowance, if otherwise eligible. The Department has concluded that this minor change makes it easier for States to administer these benefits by eliminating the need to identify the head of the family.

Section 618.410 Applying for a Job Search Allowance

Proposed § 618.410 describes the same application process in 20 CFR 617.31, but changes 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 § 618.410 changes these procedures to require that a State accept applications for job search allowance only after the Department has issued a certification. Further, the Department proposes to eliminate precertification applications for job search allowances to avoid unrealistic expectations for reimbursement. For most workers, requiring certification prior to filing a job search application will result in only a short delay in filing and no delay in payment because only AAWs may receive job search allowances. This approach is similar to that of many assistance programs that do not reimburse individuals for activities conducted with their own funds before the individual becomes eligible for assistance. Related to the change in when applications may be accepted, this proposed subpart includes a change that all references to “individuals” in 20 CFR part 617 will instead be “adversely affected workers.” This change is consistent with sec. 237(a)(1) of the Act, which provides that “an [AAW] covered by a certification” may file an application for a job search allowance.

Section 618.415 Eligibility for a Job Search Allowance

Proposed § 618.415 sets forth the 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 “the worker cannot reasonably be expected to secure suitable employment in the commuting area in which the worker resides.” In implementing this provision, the Department proposes to use the same definition of the term “suitable employment” as is used in proposed subpart F and defined in proposed § 618.110. This departs from 20 CFR 617.32(a)(4) and 617.42(a)(6), which use “suitable work,” applying the State UI law definition of suitable work,

as the threshold for approval of job search and relocation allowances.

Proposed paragraph (a) has several changes from 20 CFR 617.32(a). Proposed paragraph (a) excludes language on registration with the State agency (a requirement in 20 CFR 617.32(a)(3)) because proposed § 618.310 already requires States to provide employment and case management services, and the Act does not contain this particular registration requirement for job search allowance eligibility. Proposed paragraph (a)(1) provides the time limits within which an AAW must request a job search allowance. It contains minor rewording for readability, but the requirements are unchanged from 20 CFR 617.31(c).

Proposed paragraph (a)(3) substitutes the term “suitable employment” for “suitable work” and eliminates the reference to long-term duration. 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 adds “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.

The proposed changes would make it easier for workers to qualify for a job search allowance, because fewer local jobs would qualify as suitable employment. The proposed change, however, might make it harder for workers to qualify for a relocation allowance, because, similarly, fewer jobs requiring relocation would qualify as suitable employment. This difficulty should be mitigated by the fact that workers who find suitable employment with the help of a job search allowance would also be eligible for a moving allowance to relocate to that same suitable employment. The Department proposes this change because of the unique economic circumstances of workers adversely affected by international trade. The Organisation for Economic Co-operation and Development (OECD) notes that changes brought on by technology and trade can cause local labor market shocks; such shocks cause some workers to move elsewhere, but often not in large enough numbers to mitigate fully the shock in the affected locality.

Compounding the problem for trade-affected workers, worker migration has slowed over the last several decades.

Together these trends have caused the Department to respond by proposing this change from suitable work to suitable employment. This change also would provide administrative consistency and uniformity of interpretation and application of Federal law, a policy goal described in 20 CFR 617.52(b), and in this NPRM, in proposed § 618.840.

OECD. (2018). “OECD Economic Surveys: United States at 81.” Retrieved from:

https://read.oecd-ilibrary.org/economics/oecd-economic-surveys-united-states-2018_eco_surveys-usa-2018-en.

See id.; see,

e.g.,

David Ihrke, U.S. Census Bureau. (2017). “United States Mover Rate at a New Record Low.” Retrieved from:

https://www.census.gov/newsroom/blogs/random-samplings/2017/01/mover-rate.html.

Proposed paragraph (a)(4) is new and has no comparable counterpart in existing regulations or in administrative guidance. It establishes 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. The Department added this provision to reflect the cost-saving technological advances of the modern era. There are now countless websites, apps, and online services that connect employers with workers, and many communication technologies make face-to-face discussion via video conferencing simple and inexpensive. By this proposed change, the Department is encouraging States and AAWs to use these cost-saving, and possibly equally effective, measures.

Proposed paragraph (a)(5) is new and has no comparable counterpart in existing regulations or in administrative guidance. It clarifies for the first time that a State may not approve job search allowances if the AAW received a relocation allowance under the same certification since an AAW must have already obtained work to qualify for the relocation allowance.

Proposed paragraph (a)(6) gives an AAW 30 calendar days to complete a job search, clarifying 20 CFR 617.32(a)(5), which provides “a reasonable period not exceeding 30 days after the day on which the job search began” within which to conduct a job search outside the commuting area.

Proposed paragraph (b) describes when a job search is complete and mirrors 20 CFR 617.32(b), with organizational changes for clarity and one change. A job search is not complete until the AAW has received a bona fide (

i.e.,

good faith) offer of employment, or has contacted each employer the AAW either planned to contact or to whom the AAW was referred by the State agency or other one-stop partner.

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