# Trade Adjustment Assistance for Workers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-13802 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** August 21, 2020 - **Citation:** 85 FR 51896 ## Text DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Parts 617 and 618 29 CFR Part 90 [Docket No. ETA-2019-0009] RIN 1205-AB78 Trade Adjustment Assistance for Workers AGENCY: Employment and Training Administration, Labor. ACTION: Final rule. SUMMARY: The Employment and Training Administration (ETA) of the Department of Labor (Department) is expanding protection and support for U.S. workers adversely impacted by foreign trade by revising its Trade Adjustment Assistance (TAA) for Workers program (TAA Program) regulations. This final rule will, among other improvements, make it easier for workers to qualify for job search and relocation allowances, increase those allowances in line with the statute, expand training to include more flexibility for apprenticeships, ensure workers have access to individualized assessments, make it easier for groups of workers to apply for benefits, and offer assistance to additional categories of workers, including by helping workers in jobs threatened by foreign trade to receive training and support to transition to new employment. DATES: This final rule is effective September 21, 2020. FOR FURTHER INFORMATION CONTACT: Norris Tyler, Administrator, Office of Trade Adjustment Assistance, U.S. Department of Labor, Employment and Training Administration, 200 Constitution Avenue NW, Room N-5428, Washington, DC 20210, Telephone: 202-693-3560 (voice) (this is not a toll-free number), 1-888-365-6822, or 1-877-889-5627 (Telecommunications Device for the Deaf). SUPPLEMENTARY INFORMATION: Preamble Table of Contents I. Acronyms and Abbreviations II. Background A. Introduction to the Trade Adjustment Assistance Program B. Statutory and Regulatory History of the Trade Adjustment Assistance Program C. Need for This Regulation D. Public Comments Received on the Notice of Proposed Rulemaking III. Section-by-Section Analysis of This Final Rule A. Subpart A—General B. Subpart B—Petitions, Investigations, and Determinations C. Subpart C—Employment and Case Management Services D. Subpart D—Job Search and Relocation Allowances E. Subpart E—Reemployment Trade Adjustment Assistance F. Subpart F—Training Services G. Subpart G—Trade Readjustment Allowances H. Subpart H—Administration by Applicable State Agencies I. Subpart I—Allocation of Funds to States for Training and Other Activities IV. Agency Determinations A. Legal Authority B. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 13771 (Reducing Regulation and Controlling Regulatory Costs) C. Regulatory Flexibility Act, Small Business Regulatory Enforcement Fairness Act of 1996, and Executive Order 13272 (Proper Consideration of Small Entities in Agency Rulemaking) D. Paperwork Reduction Act E. Executive Order 13132 (Federalism) F. Unfunded Mandates Reform Act of 1995 G. Executive Order 13175 (Indian Tribal Governments) I. Acronyms and Abbreviations AAIW(s) adversely affected incumbent worker(s) AAW(s) adversely affected worker(s) ATAA Alternative Trade Adjustment Assistance EB Extended Benefits ECI Employment Cost Indices ETP(s) eligible training provider(s) FEIN(s) Federal Employment Identification Number(s) FTR Federal Travel Regulation HCTC Health Coverage Tax Credit IC(s) information collection(s) ICR(s) information collection request(s) IEP(s) individual employment plan(s) ITA(s) Individual Training Account(s) ITC International Trade Commission JSP job search program JTPA Job Training Partnership Act local area(s) local workforce development area(s) LWDB(s) local workforce development board(s) MIS management information system NAA National Apprenticeship Act OES Occupational Employment Statistics OJT on-the-job training OTAA Office of Trade Adjustment Assistance PIRL Participant Individual Record Layout RTAA Reemployment Trade Adjustment Assistance SNAP Supplemental Nutrition Assistance Program TAA Trade Adjustment Assistance TAA Program collective reference to the following three programs: TAA for Workers program, ATAA, and RTAA TAAEA Trade Adjustment Assistance Extension Act of 2011 TAARA 2002 Trade Adjustment Assistance Reform Act of 2002 TAARA 2015 Trade Adjustment Assistance Reauthorization Act of 2015 TaOA Training and Other Activities TEGL(s) Training and Employment Guidance Letter(s) TGAAA Trade and Globalization Adjustment Assistance Act of 2009 the Act chapter 2 of title II of the Trade Act of 1974, as amended TRA Trade Readjustment Allowances UI Unemployment Insurance UMRA Unfunded Mandates Reform Act of 1995 USCIT United States Court of International Trade WARN Worker Adjustment and Retraining Notice WBA(s) weekly benefit amount(s) WIA Workforce Investment Act of 1998 WIOA Workforce Innovation and Opportunity Act II. Background A. Introduction to the Trade Adjustment Assistance Program On November 7, 2019, the Department published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (84 FR 60150), proposing to amend 20 CFR parts 617 (Trade Adjustment Assistance for Workers under the Trade Act of 1974) and 618 (Trade Adjustment Assistance under the Trade Act of 1974, as Amended) to expand protection and support for U.S. workers adversely impacted by foreign trade. The Department is streamlining and consolidating three separate parts of the CFR that contain TAA Program regulations (20 CFR parts 617 and 618, 29 CFR part 90) into a single part (20 CFR part 618) with nine subparts. In addition, the revisions will codify into regulation elements of the most recent TAA Program amendments, the Trade Adjustment Assistance Reauthorization Act of 2015 (Pub. L. 114-27, title IV) (TAARA 2015). This final rule also incorporates operating instructions issued via administrative guidance into the TAA Program regulations, with some refinements. Further, the revisions align the TAA Program regulations with the Workforce Innovation and Opportunity Act (WIOA) (Pub. L. 113-128), the 2014 comprehensive legislation that reauthorized the public workforce system. This final rule increases efficiency and flexibility for States and trade-affected workers. Because subpart B (Petitions, Investigations, and Determinations) of this final rule expressly permits workers employed by a leasing or staffing agency (termed “staffed workers”) to be members of a worker group, even if they are not mentioned specifically within the determination document, the Department anticipates a substantial reduction in the number of requests to amend certifications. The Department also is increasing flexibility in subpart D (Job Search and Relocation Allowances) by making it easier for adversely affected workers (AAWs) to qualify for a job search allowance and ensuring that workers who qualify for relocation allowances are finding comparable or better paying jobs. Subpart F (Training Services) clarifies that work-based training includes apprenticeships for all or part of a trade-affected worker's training program. It also establishes a regulatory framework to provide assistance to workers who are currently employed but threatened with job loss resulting from foreign trade, thereby enabling such workers to retrain and seek new employment before job separation occurs. In subpart H (Administration by Applicable State Agencies), the Department is extending flexibility by removing the requirement that only State merit staff can provide employment and case management services using TAA Program funding, granting States more flexibility with program operations and creating better alignment with WIOA. This final rule seeks to improve service delivery, and thereby serve trade-affected workers more effectively, by including service-delivery requirements that align with data-tested methods. Subpart A (General) better defines certain investigations-based terms to add consistency at both the State and Federal level and improve program operations, including reducing burden and workload for TAA Program investigative reconsiderations and appeals related to these terms. In addition, the Department is helping provide positive outcomes for each trade-affected worker by including new data-driven requirements for assessments and individual employment plans (IEPs) in subpart C (Employment and Case Management Services). In subpart E, this final rule implements statutory provisions for Reemployment Trade Adjustment Assistance (RTAA) and incorporates administrative guidance previously issued by the Department, since no regulations covering the RTAA program existed. Subpart G implements several statutory changes to Trade Readjustment Allowances (TRA), including establishing deadlines to enroll in training, reducing the types of available waivers, allowing an election between Unemployment Insurance (UI) and TRA, and allowing AAWs to earn up to their weekly benefit amount (WBA) without penalty. In addition, subpart I (Allocation of Funds to States for Training and Other Activities) replaces the term “training” with “Training and Other Activities” (TaOA) to reflect the additional benefits and services covered by such funding. This final rule provides a consolidated, authoritative set of rules to guide Federal and State officials in implementing the Trade Act of 1974 (Pub. L. 93-618), as amended (the Act). This streamlining will also clarify the Department's interpretation of law for courts. Subpart B (Petitions, Investigations, and Determinations) will produce cost savings by eliminating the two-step process for reconsiderations, which will reduce the processing time involved for all reconsiderations, and by clarifying “final determinations” for judicial appeals, which will reduce the number of those appeals. Subpart H (Administration by Applicable State Agencies) will also produce cost savings by revising the merit staff requirements to allow States to charge time for non-merit staff to TAA Program funds for the provision of employment and case management services. This final rule is considered to be an Executive Order (E.O.) 13771 deregulatory action. Details on the estimated cost savings of this final rule can be found in the rule's economic analysis. The purpose of this final rule is to ensure that the TAA Program regulations are modernized to reflect the program's current operation and make needed improvements. The revisions also will provide clarity by eliminating confusing and overly technical language and update the TAA Program regulations by encouraging the use of paperless electronic mechanisms over paper-based methods. An ever-changing global marketplace drives the 21st-century economy. For America to compete in the global economy, its workers need to have the skills and support to take advantage of new opportunities. The TAA Program bolsters America's competitiveness by helping American workers retrain and reenter the workforce. B. Statutory and Regulatory History of the Trade Adjustment Assistance Program The Act (codified at 19 U.S.C. 2271 et seq. ), title II, chapter 2, established the TAA for Workers program and the RTAA program, as well as the predecessor to RTAA, the Alternative Trade Adjustment Assistance (ATAA) program. 1 These programs, collectively referred to as the TAA Program, assist U.S. workers who have lost or may lose their jobs as a result of foreign trade ( i.e., trade-affected workers). The TAA Program provides AAWs and adversely affected incumbent workers (AAIWs) with opportunities to obtain skills, credentials, resources, and support to help them become reemployed. TAA Program benefits and services under the TAARA 2015 amendments include employment and case management services; training; out-of-area job search and relocation allowances; income support through TRA; the RTAA wage supplement benefit for AAWs aged 50 or older who find qualifying reemployment; and, if available, eligibility for assistance with health care premium costs under the Health Coverage Tax Credit (HCTC), 2 which is administered by the Internal Revenue Service (IRS). 1 ATAA is largely unaddressed in the final rule because it was replaced by RTAA. 2 The HCTC was due to expire on January 1, 2020, but has recently been extended to January 1, 2021. There are two steps for trade-affected workers to obtain program benefits and services. First, a group of workers must file a petition, or have a petition filed on its behalf, to determine worker-group eligibility. Upon receiving a petition, the Department initiates an investigation to determine whether the circumstances of the layoff meet the group-eligibility criteria established by section 222 of the Act. Second, if the Department finds the group eligible and certifies the petition, trade-affected workers in the worker group may individually apply to their State for TAA Program benefits and services. Under agreements between the Secretary of Labor (Secretary) and each Governor, the States determine individual eligibility based on the statutory criteria and provide the TAA Program benefits and services to trade-affected workers with Federal funds allocated by the Department for that purpose. The TAA Program is a required one-stop partner under WIOA. One-stop centers—branded as American Job Centers under WIOA—deliver workforce development services to job seekers and businesses nationwide. Since 1975, the TAA Program has served over 2 million trade-affected U.S. workers. In Fiscal Year (FY) 2018, an estimated 76,920 workers became eligible for TAA Program benefits and services. Nearly 77 percent of trade-affected workers obtained employment within 6 months of completing the TAA Program. Trade-affected workers come from a variety of backgrounds and industries, so they enter the program with a wide array of skills and experience. Most trade-affected workers who enter the program, however, face similar challenges in obtaining reemployment. Trade-affected workers have no postsecondary degree typically, a median age of 52, and have a median tenure of 8.3 years of experience in adversely affected employment. 3 The TAA Program is designed to serve the needs of this unique population. 3 U.S. Department of Labor, Employment and Training Administration. (2019). “Trade Adjustment Assistance for Workers Program: Fiscal Year 2018.” Retrieved from: https://www.doleta.gov/tradeact/docs/AnnualReport18.pdf. Congress has reauthorized and amended chapter 2, and thus the TAA Program, multiple times. The TAA Program was changed extensively by amendments in 1981 (Pub. L. 97-35, title XXV), 1984 (Pub. L. 98-369, sections 2671, 2672, 2673), 1986 (Pub. L. 99-272, title XIII, subtitle A, part 1), 1988 (Pub. L. 100-418, title I, subtitle D, part 3), and 1993 (Pub. L. 103-182, section 501 through 507). In 1987, the Department issued a final rule significantly revising the certification process in 29 CFR part 90 (52 FR 23403, June 19, 1987). In 1994, the Department issued a final rule significantly revising the TAA Program regulations in 20 CFR part 617 to implement the 1988 amendments (59 FR 906, Jan. 6, 1994). In 2002, Congress reauthorized and amended the TAA Program in the Trade Adjustment Assistance Reform Act of 2002 (TAARA 2002) (Pub. L. 107-210). TAARA 2002 expanded the scope of the TAA Program, increased its benefit amounts, repealed the North American Free Trade Agreement Transitional Adjustment Assistance (or NAFTA-TAA) program, established the HCTC to subsidize private health-insurance costs for qualified workers, and created the ATAA program as a demonstration program. The Department published two NPRMs in 2006, to implement the TAARA 2002 amendments (71 FR 50760, Aug. 25, 2006 and 71 FR 61618, Oct. 18, 2006). However, Congress in 2007 (Pub. L. 110-5), 2008 (Pub. L. 110-161), and 2009 (Pub. L. 111-8) prohibited the Department from further action until Congress reauthorized the TAA Program. The next reauthorization, the Trade and Globalization Adjustment Assistance Act of 2009 (TGAAA) (Pub. L. 111-5, div. B, title I, subtitle I), made such substantial amendments to the TAA Program that it rendered the 2006 NPRMs obsolete. The Department withdrew the NPRMs in 2009 (74 FR 27262, June 9, 2009). TGAAA, part of the American Recovery and Reinvestment Act (Pub. L. 111-5), reauthorized and substantially amended the TAA Program. It expanded the program's benefits and the types of trade-affected workers the Department could certify. Section 1893 of TGAAA provided that most of the TGAAA amendments would expire on December 31, 2010. Congress later extended that expiration date by 6 weeks (Pub. L. 111-344). The Department revised the TAA Program regulations in 2010, by adding a new 20 CFR part 618 (75 FR 16988, Apr. 2, 2010). The revisions addressed the allocation of TAA Program training funds to the States. The revisions also required, for the first time by regulation, that State administration of the TAA Program be performed by merit staff. The Trade Adjustment Assistance Extension Act of 2011 (TAAEA), enacted in 2011, provided a balance between the expanded certification criteria and benefits and services provided under TGAAA, and the more limited provisions in TAARA 2002. TAARA 2015 reauthorized the TAA Program through June 30, 2021. It primarily followed TAAEA, the 2011 law, with two exceptions. The amendments included capping funding for TaOA at $450 million per fiscal year and establishing new performance indicators to align with WIOA. TAARA 2015 reauthorized the RTAA and HCTC benefit programs. TAARA 2015 continued to grandfather earlier versions of the TAA Program for trade-affected workers who had been certified under TAARA 2002, TGAAA, and TAAEA. That is, a trade-affected worker who was a member of a worker group covered by a certification that was issued under TAARA 2002, TGAAA, or TAAEA continued to receive benefits and services available under the respective program eligibility criteria applicable to those earlier amendments. C. Need for This Regulation The TAA Program regulations were last updated in 1994, with only minor changes made in 2006, 4 2007, 5 and 2010. 6 Since that time, multiple TAA Program legislative amendments have required various changes to the program, which the Department has addressed through administrative guidance. This final rule codifies in regulation program operations under the most recent amendments (TAARA 2015), including significant elements of TAA Program administrative guidance. This final rule was drafted to reflect how the TAA Program is currently operating and includes some adjustments that will improve the program. Once this final rule is effective, the Department will rescind redundant administrative guidance, as appropriate. 4 71 FR 35511 (June 21, 2006) (making technical amendments to update obsolete, nonsubstantive, or nomenclature references). 5 72 FR 37097 (July 9, 2007) (making minor changes to 29 CFR part 90). 6 75 FR 16988 (Apr. 2, 2010) (adding 20 CFR part 618 to include only subparts H and I relating to merit staffing of State administration and allocation of TAA Program training funds to States). This final rule will help States and the public better understand the proper operation of the TAA Program. It will promote transparency by setting out, in binding regulation, the major principles by which the TAA Program operates, and it also will provide the public and courts with the Department's authoritative interpretation of the Act. In addition, this final rule includes clarifications that draw upon the Department's expertise gained from decades of experience operating the TAA Program. For example, the Department's litigation experience has provided insight into parts of the TAA Program regulations that have needed clarification to ensure more effective, efficient, and consistent operations of the TAA Program throughout the United States. In addition, since 2009, the Department has had the benefit of real-time data on trade-affected workers participating in the TAA Program, the analysis of which has driven improvements to the provisions in this final rule. This final rule also includes changes that align the TAA Program regulations with WIOA. For example, WIOA further integrated the TAA Program with the public workforce and education systems by affirming the TAA Program as a required partner in the one-stop delivery system. This final rule aligns with and references the WIOA regulations where appropriate. This final rule also removes outdated references to the Job Training Partnership Act (JTPA) and the Workforce Investment Act of 1998 (WIA). D. General Comments Received on the Notice of Proposed Rulemaking On November 7, 2019, the Department published an NPRM in the Federal Register (84 FR 60150), proposing to amend 20 CFR parts 617 (Trade Adjustment Assistance for Workers under the Trade Act of 1974) and 618 (Trade Adjustment Assistance under the Trade Act of 1974, as Amended) and 29 CFR part 90 to expand protection and support for U.S. workers adversely impacted by foreign trade. The NPRM invited written comments from the public concerning this proposed rulemaking through December 9, 2019. This 30-day comment period was later extended by 2 days (84 FR 67681), through December 11, 2019, because of a regulations.gov website outage that occurred on December 9, 2019. No commenters requested an extension of the comment period or otherwise expressed concern about the public's ability to participate in the rulemaking process. The comments received on the NPRM may be viewed at https://www.regulations.gov by entering docket number ETA-2019-0009. The Department received comment submissions from 54 commenters, of which 45 submissions were unique and 9 were duplicates or not related to the subject of this rule. The commenters represented a range of stakeholders from the public and nonprofit sectors. Public sector commenters included State and local government agencies, local workforce development boards (LWDBs), and one-stop operators. Nonprofit sector commenters included public policy organizations, advocacy groups, national and local labor unions, and a trade association. Of the unique comments, nearly one third came from State government workforce agencies. The Department also received several comments from private citizens. These comments are addressed in Section III (Section-by-Section Analysis) of this final rule. About half of the unique comments supported parts of the proposal but opposed others, while a smaller number conditioned their support for the proposal on the Department adopting certain changes in this final rule. The NPRM notified the public that an additional docket (ETA-2019-0010) for comments related to the information collection (IC) discussed in Section V.D of the NPRM preamble (Paperwork Reduction Act) would remain open until January 6, 2020. The Department did not receive comments related to this IC in this docket. For further information on the IC, please see the Paperwork Reduction Act (PRA) section of this final rule (Section IV.D). General Comments on the Proposed Rule One commenter agreed with the anticipated improvements and benefits of the proposed rule that the Department set forth in the NPRM. One commenter stated that several of the proposed changes would positively strengthen local control of program development. Another commenter agreed that the proposal would help workers but expressed curiosity about how the rule would affect the economy if adopted. Several commenters sought guidance, unrelated to the proposal, on very specific programmatic scenarios related to their current workforce programs. One commenter expressed general concern that the proposed rule could disproportionately reduce benefits and services for rural AAWs. In contrast, another commenter said the proposed rule would help rural communities and areas with “a strong presence of the blue-collar work force.” None of these commenters provided specific, substantive comments on any particular part of the proposed rule or proposed regulatory text; therefore, these comments are not addressed in the Section-by-Section Analysis below. One State workforce agency commented that the TAA Program needs updates to keep serving trade-affected workers most effectively. Another State workforce agency commenter supported efforts to incorporate existing law, administrative guidance, and practice into a single set of regulations, saying the changes would improve program operations and reduce the burden of referencing numerous amendments and issuances of administrative guidance. The Department has, wherever possible, incorporated administrative guidance into this rule. The Department received one comment of general opposition to the timing of the proposed rule in relation to the upcoming Presidential election and the status of the economy. The commenter provided insufficient information on why it recommended delaying until after the election, so the Department is unable to address any specific concerns. Comments on the Department's Approach to Rulemaking A commenter from an LWDB strongly agreed with the Department's rationale concerning the need for a rulemaking, including that the proposed rule would increase stakeholder and public understanding of how the TAA Program works, would streamline State administration of the program, would strengthen transparency through codification of current practice, and would provide courts with the Department's definitive interpretation of the TAA Program's authorizing statutes. Citing its own research about the need for TAA Program reform, a nonprofit public policy organization said that the proposed rule covers several issues raised in that research, namely the need to increase the proportion of dislocated workers covered; the need to strengthen the TAA Program across the board (rather than focus on training only); and the need to ensure the training offered results in stable, family-sustaining employment. The commenter, however, suggested additional changes to increase the program's effectiveness: Extending eligibility to workers affected by automation and other large-scale economic disruptions, allowing workers to use TRA for services other than training, and making extra support available to communities hit hardest by foreign trade impacts. The Department appreciates this feedback, but these suggestions are beyond the scope of its statutory authority and are not addressed in this final rule. While one commenter agreed with the overall argument for why a rulemaking is needed ( e.g., to modernize the program regulations), it requested clarification about the intended effect of consolidating the regulations: Whether it will result in a “universal” program under which all trade-affected workers may access the same benefits regardless of the statutory basis for their certification, or whether the final rule will provide different requirements and benefits according to the individual statutory basis of eligibility. The commenter said it preferred the “universal” approach because it would provide a consistent level of support to all workers and help avoid “misunderstandings.” While the Department appreciates the commenter's interest in the provision of a consistent level of support, the Department does not have the authority to apply this final rule to all trade-affected workers without regard to the version of the Act under which the worker group was certified. Integrated Service Strategies To Align WIOA and TAA Programs A worker advocacy group strongly supported efforts to codify into the program regulations improved alignment with WIOA, such as through the replacement of core indicators of performance based on TAAEA with primary indicators of performance based on WIOA, and the addition of more robust reporting and data collection requirements. Citing WIOA's approach to promoting industry or sector partnerships among stakeholders at the State and local workforce development area (local area) levels, the group also encouraged the Department to emphasize the importance of aligning training and other services to industry needs. Further, the commenter said that bringing this focus to the TAA Program would help ensure that public investments both lift up affected workers and respond to industry demands. The Department aligned this final rule with WIOA requirements and has long promoted integrated service delivery for the TAA Program within the nation's public workforce system. These efforts began as early as the passage of the 1988 amendments to the TAA Program and the subsequent passage of the Economic Dislocation and Worker Adjustment Assistance Program. Integrated service delivery became a requirement, enforced via the Governor-Secretary Agreement, following the passage of the WIA. The Department has provided significant administrative guidance and dedicated substantial technical assistance resources to assist States and local areas in developing integrated service models focused on reducing barriers to participation and eliminating duplication of effort. After more than 20 years of promoting an integrated service delivery model and encouraging co-enrollment in WIOA (WIA, JTPA, etc.), the Department, based on detailed analysis of participant outcomes, is now mandating co-enrollment between the TAA Program and the WIOA dislocated worker program. Additionally, as the commenter recommended, the Department has aligned this final rule with the WIOA regulations wherever possible, unless a particular statutory limitation required otherwise or data analysis supported an alternative approach. One commenter supported the Department's acknowledgment that WIOA and TAA Program alignment is important for workers, businesses, and communities, but it expressed concerns about the level of Federal funding and infrastructure limitations in the public workforce system. The commenter provided data supporting stated concerns about the levels of Federal funding of the public workforce system. The Department recognizes these concerns, but appropriated funding levels are beyond the scope of this rulemaking. This commenter also made several recommendations to facilitate better alignment of the programs without overburdening workers or program administrators, including clarifying the meaning of WIOA-related terms, such as “customized training,” “on-the-job training” (OJT), and “individual employment plan,” and their application to the TAA Program. To the extent possible and consistent with statutory differences, the Department has aligned these definitions in the final rule. For further discussion regarding how these various terms have been defined, please refer to the preamble discussion for § 618.110 below. III. Section-by-Section Analysis of This Final Rule If a section of the NPRM is not addressed in the section-by-section analysis below, there were no public comments received and, unless otherwise noted, the Department has adopted the section as proposed. The Department has made some nonsubstantive changes to the regulatory text to correct grammatical and typographical errors, or to improve readability. A. Subpart A—General Subpart A sets forth the purpose and scope of the TAA Program and defines relevant terms used throughout the rule. Subpart A as proposed in the NPRM modified and simplified several definitions for greater clarity, eliminated definitions in response to statutory changes to the Act, and added definitions of new terms based on statutory changes. The definitions used in this final rule are intended to reflect the modernized TAA Program, which has evolved since TAARA 2002, and ensure maximum alignment with WIOA. Where the Department received comments on specific paragraphs within a section, details of those paragraphs as proposed in the NPRM are included to provide context for the discussion of comments that follows. Section 618.100 Purpose and Scope Section 618.100 of the final rule sets forth the purpose and scope of the regulations governing the TAA program in one location. Prior to this final rule, this provision existed at 20 CFR 617.1 and 617.2. The NPRM proposed setting forth these provisions in one section, addressing the purpose in paragraph (a) and the scope in paragraph (b). The NPRM also proposed revising them by broadening the purpose to reflect that the TAA Program's purpose is more than just returning trade-affected workers to suitable employment and by expanding the scope beyond what was reflected in 20 CFR 617.2 in light of the fact that part 618 of the final rule combines what had been parts 617 and 618 of title 20 and part 90 of title 29. With regard to the scope of this rule at paragraph (b), two commenters asked whether eligible trade-affected workers who are members of a worker group certified under previous amendments (versions) of the Act would be provided the benefits and services described in the proposed rule or whether administrative guidance would still apply. The TAA Program regulations were last updated in 1994, with only minor changes made in 2006, 7 2007, 8 and 2010. 9 Since that time, multiple TAA Program reauthorizations and amendments have required various changes to the TAA Program, which the Department has addressed through administrative guidance. Upon review, the Department concludes that some administrative guidance must remain active in order to serve continuing or new workers enrolling under the TAARA 2002 and TGAAA versions of the TAA Program. The Department will rescind administrative guidance that is either obsolete or superseded. 7 71 FR 35511 (June 21, 2006) (making technical amendments to update obsolete, nonsubstantive, or nomenclature references). 8 72 FR 37097 (July 9, 2007) (making minor changes to 29 CFR part 90). 9 75 FR 16988 (Apr. 2, 2010) (adding 20 CFR part 618 to include only subparts H and I relating to merit staffing of State administration and allocation of TAA Program training funds to States). In short, this rule will apply except where it does not apply to older versions of the TAA Program because of a statutory conflict. Specifically, certain sections will not apply to members of worker groups certified under petition numbers TA-W-80,999 and below. Members of worker groups certified under petition series TA-W-43,000 through TA-W-69,999 and some under the petition series TA-W-80,000 through TA-W-80,999 are served by TAARA 2002, 10 and where this final rule does not apply to a since-amended version of the statute governing the relevant version of the program, administrative guidance will continue to apply for current members of worker groups and any new members of worker groups determined eligible for training services as well as job search and relocation allowances under that version of the program. The same applies for members of worker groups certified under petition series TA-W-70,000 through TA-W-79,999 served by TGAAA. Members of worker groups certified under petition series TA-W-81,000 through TA-W-84,999, and some certified under petition series TA-W-80,000 through TA-W-80,999, are served by TAAEA and this final rule will apply in full. Members of worker groups certified under petition series TA-W-90,000 and above, and some certified under petition series TA-W-85,000 through TA-W-89,999, are served by TAARA 2015, and this final rule will apply in full. The Department has added a clarification to § 618.100(b) of the final rule to explain the limitations of this part 618 and will provide technical assistance on this topic. 10 States serving workers certified under petition series TA-W-42,999 and below should contact their regional office for guidance. One commenter generally supported facilitating State TAA Program administration. Another commenter wrote that it is difficult to administer separate TAA programs based on the many previous amendments. The Department explored whether it was possible to unite all previous versions of the TAA Program under a single rule to reduce the administrative burden on the States. Unfortunately, this is not possible through regulation and the final rule adopts the regulatory text as proposed. Section 618.110 Definitions Section 618.110 sets forth definitions used throughout the TAA regulations, consolidating definitions from several places in the old regulations and guidance, as well as adding some new defined terms. If the Department did not receive public comments on a definition or inclusion of a specific term, the term is not listed below and the definition was adopted as proposed, unless stated otherwise. Some necessary technical changes were made to several definitions; specifically, the plural pronoun “their” was changed to a singular “his or her” in the definitions of “Administrator,” “eligible TAA recipient,” and “individual employment plan.” A similar pronoun change was made in the definition of “qualifying separation,” being replaced with the acronym “AAW's.” Agent State The Department clarifies that there is only an agent State, other than the liable State, if the AAW has accessed services outside of the worker's liable State. Until such time as the worker seeks services in another State, the liable State is both the liable and agent State. If the worker is simply seeking to travel to another State under a job search allowance, or is relocating to another State, that is not considered to be seeking services in that State. The Department has added this clarification to the definition. Exhaustion of UI The NPRM removed this defined term from 20 CFR 617.3(p) and included it in proposed subpart G rather than in proposed subpart A. Several commenters raised concerns with the elimination of the term “exhaustion of UI.” The Department noted in the proposal that it intended to remove this term and address this via the language contained in proposed § 618.720(e). Upon further review, the Department concurs with the commenters and has added to subpart A the original term and its definition into this final rule from 20 CFR 617.3(p), changing only the phrase “an individual” to “a worker.” Family The NPRM modified the definition of this term from 20 CFR 617.3(q), which was based on the Internal Revenue Code definition. The definition used in the NPRM was the definition of “immediate family” used in the Federal Travel Regulation (FTR) at 41 CFR 300-3.1. Numerous commenters recommended the Department use the WIOA definition of “family” from 20 CFR 675.300, rather than the proposed definition. The commenters asserted that this approach would increase flexibility and better align the TAA Program with WIOA. The Department proposed the FTR definition of “family” because the term is used only in subpart D, which governs Job Search and Relocation Allowances. The definition of “family” used under other programs, such as WIOA, is inconsistent with subpart D and the requirements of the FTR and is, therefore, not used in this final rule. The Department adopts the term and definition as proposed. However, a technical correction was made to remove an erroneous letter “s” before the apostrophe. The rest of the definition of the term is adopted as proposed. Full-Time Training The NPRM added “full-time training” and defined it for the first time. The definition was derived from 20 CFR 617.22(f)(4) and defined full-time training as attendance in training in accordance with the training provider's established full-time hours in a day (or credit hours) and days in a week. The Department also added an interpretation, originally published in TAAEA administrative guidance, that provided that in the last semester of training, if the remaining required courses to complete the approved training will not meet the training provider's normal definition of full-time training, the State must consider the AAW to be in full-time training, and otherwise eligible to apply for TRA benefits. A commenter agreed with the proposed definition of “full-time training,” saying it would help States assess TRA eligibility for students who are in their last semester of training. The Department has adopted this term and definition as proposed. Group of Workers The NPRM added “group of workers” and defined it for the first time in regulations. This term relates to the workers who file a petition or for whom a petition is filed. The NPRM defined it to mean at least two workers employed or formerly employed by the same firm, or an appropriate subdivision. The proposed definition included teleworkers and staffed workers because they are frequently performing the same work as other trade-affected workers in the subject firm and are under the subject firm's operational control. Separated workers were included in the definition because they, too, may be trade-affected workers. Two commenters supported redefining “group of workers” as meaning two or more (not three or more) workers. One commenter was concerned that the change would result in a higher volume of petitions filed and certified. The Act does not define “group of workers” and does not otherwise indicate how many workers must be in a group. According to a plain and ordinary meaning of the term “group,” the word means more than one. Thus, the Department has reduced the number of workers required to two, allowing for the broadest interpretation of “group.” The Department acknowledges that this change may result in a higher volume of petitions; nevertheless, it concludes that this definition is consistent with the statutory framework. The Department adopts this term and definition into the final rule as proposed. Individual Employment Plan or IEP The NPRM added “individual employment plan or IEP” and defined it for the first time. The IEP is a dynamic document that may be changed based on comprehensive and specialized assessments, training program modifications, or other factors that emerge during program participation. A commenter recommended a small edit to the definition of “individual employment plan” (replacing the word “State” with the phrase “career planner”) for better alignment with both 20 CFR 680.170 of the WIOA regulations (definition of IEP) and the proposed changes to permit staffing flexibility in the TAA Program regulations. Throughout the rule, the Department uses the term “State” because the obligation for providing these services under the Governor-Secretary Agreement is on the State. Some commenters were concerned that this was not the appropriate term to use, considering that the additional flexibility provided in the area of merit staff requirements will result in many of the services under the TAA Program being delivered by local area WIOA staff that are not State employees. The TAA Program is operated under an agreement between the Secretary and the Governor of each State. Although some services may be performed or administered by non-State staff, it is the State, via the cooperating State agency, that is ultimately responsible to ensure that those services are provided, so “State” will be retained throughout the final rule as the appropriate term. Lack of Work The NPRM added “lack of work” and defined it for the first time. The proposed definition was based on administrative guidance related to “strikes” and “lockouts” and their effect on eligibility for TAA Program benefits and services since 1987. Specifically, a “lack of work” separation occurs when the employer initiates the unavailability of work—the employer either does not have work for the worker to perform or does not make that work available to the worker. One commenter agreed with the definition of “lack of work” to include workers involuntarily barred from work because of an employer-imposed lockout and maintained that this would reach workers who may not be covered by State UI laws. The Department adopts this term and definition into the final rule as proposed. Layoff The NPRM modified the definition of this term, by adding the words “of time” to the 20 CFR 617.3(z) phrase “expected to be for a definite or indefinite period.” In addition, the language at 20 CFR 617.3(z) and 29 CFR 90.2 that required that the layoff be expected to last for “not less than seven consecutive days” and “no less than seven (7) consecutive calendar days,” respectively, was not included in the proposed definition, because that restriction was not supported by the Act. One commenter requested clarification regarding the Department's decision not to retain from the previous definition of “layoff” in 29 CFR 90.2 the requirement that the employer's suspension of a worker from pay status for lack of work be expected to last “no less than seven (7) consecutive calendar days.” The commenter asked, as an example, whether a worker who is “laid off” for 1 day and then starts employment with the same employer at a different facility would qualify for relocation allowance, or whether that would be treated as a “transfer.” More broadly, the commenter sought clarification about whether there are specific instances in which a State must consider the length of the layoff to determine a worker's eligibility for some TAA Program benefits. The NPRM proposed removing the language regarding 7 consecutive days. The language removal affirmed that, consistent with the commenter's example, an AAW can be laid off from trade-affected employment for 1 day and begin employment for the same employer at another facility that is not the same subdivision or firm of the certified worker group. Also, if all other eligibility requirements are met, the worker may qualify for a relocation allowance. The Department has determined that, generally, States may consider the length of a layoff to help determine if a qualifying separation is either a first separation or the most recent separation. The Department adopts this term and definition into the final rule as proposed. Liable State The Department clarifies that a liable State is the State whose State UI law is the applicable law for the claim. Until such time as the worker seeks services in another State, the liable State is both the liable and agent State. The Department has added this clarification to the definition by indicating that a State can be both the liable and agent State. On-the-Job Training or OJT The NPRM modified the definition of “on-the-job training or OJT” from section 247(15) of the Act and 20 CFR 617.3(bb). It added that such training is work-based and performed under contract with an employer. A commenter suggested aligning the definition of “on-the-job training” more closely with the WIOA definition (WIOA section 3(44)) to clarify when and how such training is provided and to describe a limit on the duration of such training. While many of the requirements align, there are statutory differences between the Act and WIOA as it relates to OJT, including differing criteria and labor protections. The Department has aligned this final rule wherever operationally and statutorily possible with the WIOA Final Rule, but the statutory differences prevent complete alignment here. The Department adopts this term and definition into the final rule as proposed. Prerequisite Education or Prerequisite Coursework or Prerequisite Training The NPRM added the terms prerequisite education or prerequisite coursework or prerequisite training and defined them for the first time. They refer to approvable training under section 236(a)(5)(E) of the Act. A commenter expressed concern that the proposed definition of the terms prerequisite education or prerequisite coursework or prerequisite training was overbroad and could result in all but a student's last courses being treated as prerequisite. The commenter recommended that the Department adopt an alternative definition, based on language regarding classroom training currently found in 20 CFR 617.21(g): “any coursework or training required by a training provider before entering an occupational training program designed to impart the skills and information required to perform a specific job or group of jobs.” Another commenter requested clarification about the proposed definition, stating that it appeared inconsistent with administrative guidance. The Department concurs with these comments. Though the Department intended to codify the administrative guidance, the Department's definition failed to recognize that, throughout a training program, every course that precedes another one can be considered a prerequisite. The final rule revises the proposed definition of these terms and defines prerequisite education as those courses or training required by a training provider before entering an occupational training program designed to impart the skills and information required to perform a specific job or group of jobs, consistent with administrative guidance. Program of Remedial Education or Remedial Education or Remedial Training The NPRM added “program of remedial education or remedial education or remedial training” and defined them for the first time. The terms relate to approvable training under section 236(a)(5)(D) of the Act and are used to refer to education designed to improve trade-affected workers' basic knowledge. A commenter asked for clarification on the Department's proposed definition of the terms program of remedial education or remedial education or remedial training, stating that it seemed inconsistent with administrative guidance. The commenter did not provide any specifics regarding its concern. The definition as provided, when read in concert with the allowable services under the employment and case management provisions of subpart C and the training provisions in subpart F, is consistent with the previously issued administrative guidance. The Department adopts this term and the definition into the final rule as proposed. Successor-in-Interest The NPRM added “successor-in-interest” and defined it for the first time to provide clarity to States when there are mergers and acquisitions, name changes, bankruptcy proceedings, and other actions that may change the name of the firm under which a trade-affected worker's wages are reported to the State or by whom a termination notice or threatened status letter is issued. Under the proposed definition, in determining whether or not there is a successor-in-interest, the State must determine whether most or all of the following conditions are met: There is continuity in business operations; there is continuity in location; there is continuity in the workforce; there is continuity in supervisory personnel; the same jobs exist under similar conditions; there is continuity in machinery, equipment, and process; there is continuity in product/service. A State workforce agency commented that the Department's clarification in the proposed rule of which actions establish a “successor-in-interest” relationship will help States by reducing their need to file petitions seeking to amend a certification. A different commenter requested further clarity as to how to determine whether a successor-in-interest exists. Another commenter requested clarification about the inclusion of wages paid to a worker by a successor-in-interest for purposes of proposed subpart G. Specifically, the commenter stated that States are not able to determine whether a successor-in-interest is “a valid entity tied to the trade-affected wage” and it asked what documentation a State would need to reach such a determination. Under the TAA Program, the Department certifies a worker group, not a firm. Members of the worker group consist of those employed by the firm named in the certification, those employed by a staffing agency, those who telework at remote locations, and those employed by a successor-in-interest. In many circumstances, not all of these categories of trade-affected workers will be specifically referenced in the certification, but those workers will nevertheless be included in the worker group. States can more easily use the factors found in the definition at § 618.110 to determine whether a successor firm is a successor-in-interest and this is further discussed in §§ 618.225(k), 618.505(b), and 618.820(h). When a State determines that a firm is a successor-in-interest to the firm named in an active certification, the State benefits by being able to serve those workers without the delay of having to file a petition to amend the certification. In regards to RTAA, as stated in § 618.505(b), if the State determines that the AAW returned to employment with a successor-in-interest to the firm from which the worker was separated, then the worker is not eligible for RTAA. This requirement is a protection against firms purposefully separating workers and then rehiring them under a successor-in-interest at lower wages, and shifting those costs to the taxpayer via the RTAA benefit. Applying the certification to the successor-in-interest reflects that the firm may continue to be affected by a trade impact. If the State determines that the reemployment is with a successor-in-interest, the State also must seek to identify any additional members of the worker group and notify them of their potential eligibility under the TAA Program, as provided in § 618.816(e). The Department recognizes this may be a shift in how some States have administered the TAA Program. Specifically, TRA staff will need to work closely with TAA staff and can no longer rely on employing firms' names being listed in the certification. This reliance on the certification as the sole source for employer information creates delays in serving trade-affected workers. The Department regularly receives petitions requesting to amend a certification solely to add the name of a successor-in-interest whose workers have already been identified to the State in a worker list as part of identifying the worker group. These requests arise simply because the TRA staff believes that the firm must be listed in the determination in order for the trade-affected worker to be eligible to apply for TAA Program benefits and services. The delays caused by waiting for a subsequent petition investigation to conclude prior to serving these workers creates longer periods of unemployment for workers in need of training or other reemployment services. The Department will provide technical assistance to States for handling successor-in-interest issues, as well as for their identification of and provision of benefits and services for members of certified worker groups. The Department adopts the term and definition into the final rule as proposed, except for two nonsubstantive spelling corrections. Suitable Employment The NPRM modified the definition of “suitable employment” from 20 CFR 617.22(a)(1)(i) and section 236(e) of the Act. The Department proposed that suitable employment exclude part-time, temporary, or threatened employment. A State workforce agency commented that the proposed definition of “suitable employment” excluded “temporary employment” and asked the Department to clarify that temporary employment means work lasting 6 months or less. Two additional commenters requested clarification about the intended meaning of “threatened employment,” another category of work that would not count as “suitable employment.” Specifically, one of the commenters stated that it would support its interpretation as being “unlikely to lead to a long-term employment opportunity,” because of its concern that work meeting that definition, even if not explicitly temporary, would be susceptible to future elimination. The commenter maintained that this could trap workers in a “cycle” of needing continuous TAA Program benefits or result in their losing eligibility for retraining (and, therefore, having to assume training costs themselves), and should not be considered “suitable employment.” The Department shares these concerns and agrees they should be considered. For this reason, the proposed definition of “suitable employment” in § 618.110 included language that part-time, temporary, short-term, or threatened employment is not suitable employment. A State workforce agency recommended “streamlining” the definition of “suitable employment,” saying that the proposed definition would lead to unnecessary frustration and confusion among workers. The Department concludes that the proposed definition of this term will reduce confusion by explicitly providing additional guidance to States and trade-affected workers for when employment is not suitable employment for purposes of the TAA Program. Similarly, another State workforce agency raised the following concerns about the proposed definition of “suitable employment”: (1) The phrase “substantially equal or higher skill level” is unclear and open to interpretation and, if maintained in the final rule, will require administrative guidance for States to operationalize it as a criterion uniformly and objectively; (2) it is not sufficiently flexible and could bar workers at higher incomes from eligibility for some benefits, such as job search and relocation allowances, because of inability to find new work at a high enough wage; (3) the lack of clarity as to whether and how it should be interpreted relative to other defined terms ( i.e., “average weekly wage” and “wages”) muddles the proper approach to issues like noncash compensation, commissions, and bonuses; and (4) the “blanket exclusion” for part-time work does not account for situations in which the new work is otherwise suitable in terms of skills required and wages paid “( e.g., a production worker ret[r]ains to be a [Registered Nurse]).” The phrase “substantially equal or higher skill level” is contained in the statute. In operational terms, States assess the trade-affected worker's preexisting skill levels, abilities, and education, and compare them with the requirements of available employment in the current and projected labor market to determine suitability. The Occupational Information Network (O*NET) provides skill level information for hundreds of occupations. To address the example provided by the State, work scheduled for a Registered Nurse may only be 3 or 4 days a week, but the job is unlikely to be considered part-time under State law based on the hours worked. The Department further explains that the determination of the availability of suitable employment is used for the approval of benefits, not for projecting employment following the completion of training. Several comments were received about the definition of “suitable employment,” requesting clarification of its relationship to the definition of “wages.” Proposed § 618.100(a) established that the purpose of the TAA Program is to return trade-affected workers to suitable employment as quickly as possible, which is unchanged from 20 CFR 617.2. In this context, suitable employment means that after the trade-affected worker receives services under the TAA Program, the worker is reemployed at an equal or higher skill level and earns at least 80 percent of his or her former wages. This goal of attaining suitable employment has not changed. Unfortunately, there are situations in which trade-affected workers may be unable to obtain suitable employment. Such difficulties may occur because (1) few, if any, jobs are available at the workers' former wages with the trade-affected workers' experience; (2) the local labor market has few available jobs; or (3) the trade-affected workers have substantial barriers to reemployment. These factors can significantly limit trade-affected workers' employment opportunities. Offering appropriate training, especially in a stagnant labor market, may significantly increase a trade-affected worker's prospects of obtaining suitable employment. Trade-affected workers must have access to training and services that will allow them the best possible outcomes and ability to compete for work at the highest skill levels and highest wages achievable, as quickly as possible. This must be accomplished with prudence, careful management of limited TAA Program funds, and a practical understanding of labor market realities; given the trade-affected workers' preexisting skill levels, abilities, and education, and the current and projected needs of employers. States must ensure they administer their programs equitably and reasonably. The Department adopts this term and definition in the final rule as proposed. Wages The Act does not provide a definition of “wages,” so the Department proposed to retain the definition of “wages” from existing regulations at 20 CFR 617.3(pp). One commenter was concerned with the ability of staff to calculate noncash compensation. Another commenter stated that the proposed definition of wages would complicate calculations needed under the RTAA benefit. In response to these comments, the Department has reconsidered the proposed definition of “wages.” The final rule yields to applicable State laws, contains a new reference to a State's definition of remuneration under State UI law, and revises the proposed definition in § 618.110 accordingly. There is no practical or operational change with this revision, including no change for calculating TRA, or for determining whether reemployment is suitable employment. Before a State can approve a training program, the State must ensure that there is not suitable employment available to the AAW. While calculating the wage component of suitable employment is statutory, it is 80 percent of the average weekly wage as defined by the Act. When exploring the local labor market, the worker and the State will be limited to the information contained in job postings in calculating the reemployment wage. These postings will likely contain an hourly wage rate, annual salary amount, or range. Although the posting may contain reference to other benefits, commissions, or bonuses, these are not usually listed with a known value and are often not guaranteed. Where there is no known value of these benefits, bonuses, or commissions, the State would simply use the wage rate or annual salary amount in the posting to determine whether the wage portion of the definition of suitable employment has been met. Where there are definite benefits, commissions, or bonuses, the State would include those amounts if it would be included in determining remuneration under State UI law. Based on oversight and technical assistance provided on this issue, the Department is confident that this reflects what is being done in most States under the previous regulations in 20 CFR part 617. Other Terminology Applicable Across Part 618 A few commenters requested that the Department define the term “teleworker.” A State workforce agency added that, while § 618.225(j) offers some guidance as to its meaning, a fuller definition in § 618.110, like the definition of “staffed worker” found there, would be helpful. The Department has not included a definition of the term in this final rule because there is no singular, agreed-upon definition for the term “teleworker” across Federal programs. In general, teleworkers are workers who are members of a worker group who work remotely, but take direction from and report to the location listed for a firm on a certification. The remote location can vary, and may include the worker's own residence, a shared office space, public location, etc. Teleworkers may need to provide information or documentation showing their connection to the worker group if they are not already listed on the worker list provided to the State by the firm. The same commenter offered several further suggestions of definitions the Department should consider adding to this section of the rule: • “Adjustment assistance” (used in § 618.205); • “Annualized reemployment wages” and “annualized separation wages” (to replace the term “wages,” which the commenter said is defined in a manner inconsistent with how it is used in § 618.520(a)(2)(i) and (ii), with more “technical” terms); • “Distance learning” (in lieu of defining it in § 618.620(b)(2)); • “Foreign trade,” “foreign trade impacts,” or both; and • “Remedial education.” The commenter also requested clarification about whether the terms “training” and “skills training” are meant to be interchangeable and suggested that these terms, which (along with the term “remedial education”) are used in § 618.610(b)(1), might warrant definition in this section. The requested additional wage-related terms are unnecessary based on the modification made to the definition of “wages” in the final rule. Many of these terms are discussed elsewhere in this preamble and the Department concludes that the remaining terms are clear without further definition. The Department declines commenters' suggestions for additional definitions. Section 618.120 Severability The Department has decided to include a severability provision as part of the final rule. To the extent that any provision of the final rule is declared invalid by a court of competent jurisdiction, the Department intends for all other provisions that are capable of operating in the absence of the specific provision that has been invalidated to remain in effect. B. Subpart B—Petitions, Investigations, and Determinations The purpose of subpart B is to implement the provisions for determining group eligibility to apply for adjustment assistance for trade-affected workers. This subpart provides the process for the investigation of petitions for certification of eligibility to apply for adjustment assistance. Subpart B addresses sections 221, 222, 223, and 224 of the Act, modifying 29 CFR part 90 and incorporating it into part 618. Proposed subpart B made several changes to update the regulations, including updates to reflect statutory changes and current procedures for filing petitions, conducting investigations, and issuing determinations of TAA Program eligibility, and added a requirement for exhaustion of administrative remedies, specifically, use of the reconsideration process, prior to judicial review. In the NPRM, the Department relocated most of the definitions in 29 CFR 90.2 to subpart A of 20 CFR part 618 for clarity and consistency. The Department did not receive any comments on proposed §§ 618.200, 618.220, 618.230, and 618.260. The final rule adopts these sections as proposed, with the exception of a change at § 618.220(d) to the use of a pronoun. Where the Department received comments on specific paragraphs within a section, details of those paragraphs as proposed in the NPRM are included to provide context for the discussion of comments that follows. Section 618.205 Petitions Proposed § 618.205 updated the section related to petitions at 29 CFR 90.11. The Department is finalizing this section as proposed, except for the changes noted below. Paragraph (a) Proposed paragraph (a) of this section updated who may file a petition, based on changes to section 221(a) of the Act. This paragraph identified four entities who may file a petition: (1) A group of workers; (2) a union or other duly authorized representative; (3) the employer of the group of workers; or (4) one-stop center operators or partners, including State workforce officials, employment security agencies, or dislocated worker unit and rapid response team members. It also changed the language from 20 CFR 90.11(a) to reduce the number of workers who must sign the petition from three to two. The Act does not specify a minimum number of workers that make up a “group of workers.” A commenter generally supported the proposed changes to the petition process, writing that they would reduce barriers for diverse AAW populations. Another commenter wrote that the proposal would clarify the petition process and remove overly technical language. A few commenters agreed that petitions should be filed through the Department's website, but some also requested that the feature for uploading attachments be made more user-friendly. The Department will take these requests into consideration as it works to modify the online system for submitting petitions and uploading attachments, and appreciates the commenters' input and support. A few commenters supported the proposed change at § 618.205(a), writing that reducing the required number of workers on a petition from three to two would benefit workers and the petition process. The Department appreciates this support. Another commenter stated that the introduction to paragraph (a) of this section is unclear and a State workforce agency provided recommended edits to § 618.205(a) to clarify which workers may file a petition. The State workforce agency said that the language in paragraph (a) of the proposed rule said that a group of workers may file a petition, yet paragraphs (a)(2) through (4) identified a list of additional entities that could also file a petition. The Department agrees that, while a group of workers may file a petition, there are also others who may file petitions on its behalf. The Department has revised the regulatory text to remove the use of the term “worker group” in this paragraph (a). One commenter recommended removing language at § 618.205(a) that would require petitioners to file simultaneously with their State, writing that a better approach would be for the Department to share petitions with States. The commenter also asked for clarification of the consequences if petitioners failed to file simultaneously under the proposed rule. Another commenter, however, recommended retaining the requirement that petitioners file simultaneously with the State, stating that this is a statutory requirement intended to ensure States provide rapid response services to petitioners. The commenter added that paragraph (j) of this section also should be changed to reflect the statutory requirement that the State and the Department receive petitions simultaneously. The Department agrees that simultaneous filing is not optional. The “may” that section 221(a)(1) refers to is the party that is authorized to file a petition, not to the requirement for simultaneous filing of a petition. The proposed rule required that petitions be filed simultaneously with the Department and the State. The Department, therefore, adopts the proposed language into the final rule, with the exception of § 618.205(j), which has been revised to require States to verify that the Department also has received the petition. A State workforce agency recommended adding the words “certified or recognized” before “union” at paragraph (a)(2) of this section. The commenter maintained that doing so would be consistent with the regulatory text at §§ 618.205(b)(9)(i) and 618.210(c)(6). The Department agrees and acknowledges that this proposed revision would align the regulatory text more closely with the statutory requirement, and has revised the regulatory text accordingly. The same State workforce agency also recommended replacing “employer” at § 618.205(a)(3) with “an authorized representative of the firm where the group of workers is employed.” It maintained that this language would better fit with the regulations' definition of the term “firm,” which excludes government entities. The State workforce agency also said that § 618.205(b)(2) likewise uses the term “firm” instead of “employer.” The Department agrees that public sector workers do not meet the group eligibility requirements for a worker group under TAARA 2015. The use of the term “employer,” however, long predated the temporary addition of those workers in 2009, and changing the term from “employer” to “firm” may unintentionally limit the universe of petition filers, because the term “firm” is specifically defined to include the “firm or appropriate subdivision.” The Department has adopted the language into the final rule as proposed. The same State workforce agency requested clarification of “employment security agencies” at § 618.205(a)(4). The Department explains that “employment security agencies” is a legacy term that refers to the State agency responsible for administering UI. Section 618.205(a)(4) is adopted without change. Paragraph (b) Proposed paragraph (b) combined and modified 29 CFR 90.11(b) and (c) regarding the form and content of petitions. It required petitioners to provide information the Department needs to begin its investigation. Absent this required information, a petition would not be valid. A commenter recommended rewording § 618.205(b) to reflect the possibility that a petition may be filed by persons other than the workers named in the petition. Another commenter generally supported the changes in paragraphs (b)(1) through (9) of this section. The Department agrees with the commenter that proposed paragraph (b) did not accurately reflect the universe of entities who may file a petition and has revised the regulatory text at § 618.205(b) by deleting the first sentence, which specifically referred to the worker group. Two commenters asked whether § 618.205(b)(4), which required that a petition include the name and contact information of an official within the employer firm or an individual authorized to provide information regarding the operation of the group of workers' firm, meant that only a single point of contact need be provided for a petition for certification. Another commenter recommended that the provision for “an individual authorized to provide information regarding the operation of the group of workers' firm” be removed, as it is unclear who such an individual would be. The regulatory text as proposed means that at least one official within the firm employing the group of workers or an individual authorized to provide information regarding the operation of the business is required on the petition form; this regulatory text does not, however, preclude a petitioner from including more than one contact, if known. One commenter wrote that proposed § 618.205(b)(6), which required that a petition include the actual or approximate date on which total or partial separations are threated to occur or did occur, did not explain clearly how a petitioner would address multiple separation dates. The commenter stated that worker separations in mass layoffs often come in waves, and it recommended that the “hover text” available in the online system for submitting petitions (asking that petitioners provide the “most recent date on which the separation occurred or is threatened to occur”) be adopted in the final rule. The Department has addressed these issues separately through revisions to the instructions provided through the online petition process and on the print versions of the forms. One commenter wrote that proposed § 618.205(b)(8), which required that the petitioner provide a reason why he or she believes that worker separations have occurred or may occur at the firm due to foreign trade impacts or why an amendment to an existing certification should be granted, provides only a cursory mention of using petitions to amend active certifications. This commenter suggested that petitions to amend active certifications should be addressed in a separate paragraph. Another commenter also recommended that § 618.205(b)(8) and other sections of the regulatory text more clearly address requests to amend petitions. The Department specifically addresses amendments to active certifications in § 618.250, and has made no change in the final rule to § 618.205(b)(8) in response to these comments. The only change to § 618.205(b)(8) is the removal of the word “employer's” before “firm” for consistency throughout this subpart. One commenter recommended editing § 618.205(b)(9)(i), which identified who must sign the petition, by adding the words “of workers” after “petitioning group,” and adding the words “of the group of workers, or an official of the firm employing the group of workers” after “duly authorized representative.” The commenter wrote that the requirement in § 618.205(b)(9)(ii) that petitioners attest to their authorization to file a petition is problematic for petitioners under paragraph (a)(1) of this section, who often file because of their firm's refusal to do so. The requirement that the workers attest to being authorized to file means only that the workers believe that they are included in the group of workers. This attestation is not related to the firm's support of, or opposition to, the application. The Department has modified the language in the final rule at § 618.205(b)(9)(i) consistent with the comments received. These revisions provide important clarity, while not substantively changing the requirement. Paragraph (d) Proposed paragraph (d) of this section updated 29 CFR 90.11(c) and maintained the methods of filing, allowing petition submissions by fax, email, and mail, but strongly encouraged that all petitions be filed electronically with the Department through the Department's website. Another commenter recommended that paragraph (d) of this section be changed to direct workers to State TAA or TRA coordinators instead of a one-stop center, arguing that the former would provide more accurate information. WIOA designates the TAA Program as a required partner of the one-stop delivery system. Additionally, this final rule requires that the TAA Program be delivered primarily through the one-stop delivery system. Thus, the one-stop centers or rapid response units are the appropriate place for trade-affected workers to be directed to access additional information about the TAA Program. After considering this comment, the Department declines this suggestion, and adopts § 618.205(d) into the final rule as proposed, with a nonsubstantive edit to the hyperlink to the website for the TAA Program. Paragraph (e) Proposed paragraph (e) implemented section 224 of the Act, requiring the Department to take specific actions when the ITC issues an affirmative determination on the investigation under section 202 or 421 of the Act, or issues an affirmative final determination under section 705 or 735 of the Tariff Act of 1930. Two commenters wrote that the changes for International Trade Commission (ITC) notifications at § 618.205(e) would better serve the public if States were notified in addition to industries. The Department explains that the notification to the States was already included in proposed § 618.205(e)(3); therefore, there is no need to revise paragraph (e) and the final rule adopts the paragraph as proposed. One commenter requested that the Department allow petitions filed on behalf of companies with affirmative ITC determinations to omit information that otherwise would be required in a petition, writing that it is burdensome for States to provide that information. The Department will continue to explore options for the investigation process for petitions filed based on an ITC finding. Any changes made to the petition process must be made under an information collection request (ICR) separate from the final rule. Accordingly, the Department declines to revise the regulatory text at this time, and this final rule adopts the provision as proposed. Paragraph (j) Proposed paragraph (j) of this section set forth the States' responsibilities under section 239 of the Act to verify that the Department has also received any petition filed with the State. No comments were received regarding this paragraph, but the Department has made a technical correction to § 618.205(j) to correct two incomplete conditional statements. There is no change to the intent of the proposed rule or its operational impact as a result of this edit. Section 618.210 Investigation Section 618.210 of the proposed rule described the investigation process, authorized under sections 221 and 222 of the Act, and updated the language from 29 CFR part 90 to reflect current procedures and practices in the areas of timing, period of investigation, investigative processes, protection of confidential business information, termination of an investigation, the investigative record, and site visits. Several commenters stated that it would be helpful if the Department would share a list of impacted workers with States, saying that doing so would expedite their outreach to members of worker groups. The Department does not collect worker lists due to the personally identifiable information contained therein, nor is this information needed for a determination to be made. To assist States in collecting worker lists, the Department has explicitly authorized States to use subpoenas to collect this information from firms that fail to provide the information upon request. Although the use of subpoenas for this purpose has always been authorized under the TAA Program, it has, until now, been implied rather than specified. Proposed paragraph (c) explained the steps the investigator may take in order to render a determination on a petition. It also identified commonly used sources of information, and provided added detail, structure, and transparency to stakeholders about the investigation process. A commenter stated that the transparency of the investigative process provided at § 618.210(c) helps ensure that petitions are submitted correctly. The Department's intent of including this additional information is to provide the public with a better understanding of the investigation process and the information reviewed by the Department. The final rule adopts this section as proposed, with the addition of a comma in paragraph (f). Section 618.215 Public Hearings Section 618.215 of the proposed rule set forth when a public hearing in connection with an investigation is to be held and, as was explained in the preamble to the NPRM, there were only a few proposed changes from 29 CFR 90.13. Proposed paragraph (b) established the method for requesting a public hearing and expanded on the requirements related to hearings that existed at 29 CFR 90.13. A commenter identified a nonsubstantive typo in § 618.215 at proposed paragraph (b)(3). The Department corrects the error by replacing “is” with “of” and also makes a change to the use of a pronoun in paragraph (d). The remainder of the section is adopted as proposed. Section 618.225 Criteria for Certification of a Group of Workers Proposed § 618.225 substantially updated language from 29 CFR 90.16(b) to describe the criteria the Department uses to certify a group of workers, which have expanded significantly under section 222 of the Act. It also identified factors under consideration in determining whether a criterion is met. The revised language provided transparency on how investigations are conducted, the importance of information collected, and how the information is used. The proposed provisions reflected Congressional intent and existing Departmental practices. The Department is finalizing this section as proposed, except for the changes noted below. One commenter stated that transparency of certification criteria is helpful for the efficient operation of the petition process. Staffed Workers § 618.225(i) Proposed paragraph (i) of this section provided that staffed workers, working on or off site, would be classified as part of the worker group of the firm. The Department would specify in the determination document that all members of the affected worker group include teleworkers and staffed workers, but would not list specific leasing companies or temporary staffing entities. The Department would continue to collect information from the subject firm in order to establish the leasing or temporary staffing entity or entities over which the trade-affected workers' firm has operational control. Proposed paragraphs (i)(1) through (9) of this section then listed the factors to be considered in evaluating operation control. The Department specifically sought comments from the public on whether or not to include, by default, staffed workers as part of a certified worker group. The primary benefit to including staffed workers as part of the worker group is that staffed workers are members of a worker group even if they are not specifically mentioned within the determination document. States may serve those workers without the delay of petitioning to amend an active certification. The Department is finalizing this section as proposed, except for the changes noted below. One commenter requested guidance for determining whether a staffing entity should be included in a certified worker group. Two commenters requested additional guidance for how States should provide services to staffed workers that were not included in the original certification, especially when more than one agency administers the TAA Program. Another commenter also requested further guidance on the treatment of staffed workers, explaining that there is tension between (1) the Department's determination whether a certification will cover a staffing entity, and (2) the allowance for staffed workers to belong to a certified worker group even if the determination document does not name the workers' staffing entity. A few commenters recommended that the Department continue to list all employers of staffed workers within its determination document, commenting that this practice better provides benefits to eligible workers and is less labor intensive for States. One commenter maintained that naming staffing entities in petitions would help States because the staffing entities, not the certified employers, would have workers' wage data. Conversely, a commenter wrote that requiring States to petition to amend certifications in order to provide benefits to unnamed staffed workers would be needlessly burdensome. Another commenter agreed, writing that such a requirement would lead to longer investigations and, thus, harm the entire worker group. A different commenter agreed that it would be easier for workers to be included on a single petition, but it said that doing so would complicate States' recordkeeping procedures. A commenter stated that the provision for staffed workers would impose an undue hardship on States with limited TAA Program staff. The commenter also pointed out that the TAA Program might be administered by two agencies within a State, which could lead to inconsistent determinations regarding staffing entities. The Department appreciates the time and effort taken by commenters to respond to this specific request. The Governor-Secretary Agreement binds the entire executive branch of a State to compliance with these regulations and all determinations made by the Department. Upon publication and implementation of this final rule, State workforce agencies, including those that administer UI, will be bound to implement them. Once a certification is issued, the States are charged with determining individual eligibility. These regulations provide sufficient guidelines for State agencies to determine whether or not a trade-affected worker is included in the worker group, subject to the determination document issued by the Department. Further, these regulations require States to notify the Department when there are appeals to denials of benefits under the TAA Program. Through this process, the Department will ensure that States are fully compliant with the provisions of these rules related to staffed workers, teleworkers, and successor-in-interest issues. The Department recognizes this may be a shift in how some States have administered the TAA Program. Specifically, TRA staff will need to work closely with TAA Program staff and can no longer rely on the names of employing firms being separately listed in the certification. This reliance on the certification as the sole source for employer information creates delays in serving trade-affected workers. The Department regularly receives requests to amend a certification solely to add the name of a staffing company whose workers have already been identified to the State in a worker list as part of identifying the worker group. These requests arise simply because the TRA staff believes that the firm must be specifically listed in the determination in order for the trade-affected worker to be eligible to apply for TAA Program benefits and services. The delays caused by waiting for a subsequent petition investigation to conclude, or for an amendment to be issued, prior to serving these workers creates longer periods of unemployment for workers in need of training and other reemployment services. The Department will be providing technical assistance to assist States in handling staffed worker issues as well as to assist in this transition to further empower States in their identification of and provision of benefits and services for members of certified worker groups. A commenter asked how the Department will treat workers it determines are ineligible after a State has already begun providing services to those workers. If a trade-affected worker is determined ineligible after a State has already begun providing services to the worker, he or she should be treated the same way as the State treats any other worker in similar circumstances. If necessary, the State would issue a benefit denial determination and afford the worker the opportunity to appeal the determination. Additionally, since trade-affected workers, if eligible, are mandated to be co-enrolled with the WIOA dislocated worker program, the worker may continue to be served by that program or other partner programs. The commenter also questioned when and how often the Department would provide States with the names of staffing entities. The Department will provide States with information on staffing firms. A different commenter asked how the Department would handle workers of a staffing entity that no longer contracts with a certified worker group firm. When a firm is queried about staffed workers, it will be asked to provide information on all staffing firms utilized during the certification period, even if the contract is no longer in place at the time of the investigation. In accordance with provisions in § 618.225(i), the Department will provide States with the names of staffing entities (if they are provided during the investigation process) at the time the certification is announced to assist States in notifying members of the worker group. States that discover additional leasing or temporary staffing entities employing staffed workers who are members of a certified worker group may serve those trade-affected workers without the delay of filing a new petition requesting an amendment to the certification. This change in procedure will enhance service delivery to workers. The list of staffing entities provided to the States by the Department should not be seen as limiting. There may be workers employed by other staffing entities not listed that are also members of the worker group. States should make clear to the firm that, when requesting the worker list, the list should include all on-site and off-site workers, as well as staffing agencies and successor-in-interest information, if known. The Department encourages States in need of technical assistance on individual scenarios that arise under this final rule to contact their regional office for assistance. One commenter requested that the Department share Federal Employment Identification Numbers (FEINs) with States to help identify impacted workers, especially teleworkers. The Department certifies a worker group, not a firm, and members of that worker group may be employed by the firm, a subdivision of the firm, a successor-in-interest, or a staffing agency under the direction of the firm. Although a FEIN may be collected during a petition investigation, the Department does not systematically collect all of the FEINs associated with a firm, subdivision of a firm, or all employers of a worker group. Therefore, though an FEIN may be provided, it is insufficient to identify all teleworkers. The Department recognizes States' challenges in determining individual eligibility for TRA benefits and reviewing wage records to determine if an AAW has worked long enough at a location to qualify for TAA Program benefits. Additionally, challenges also can arise with regard to staffed workers and those who are perceived to be staffed workers. Scenarios often arise where a firm that employs or employed a certified worker group outsources its payroll and benefits functions to a third party. Trade-affected workers named by the company as being part of the eligible worker group may have their wages paid by the third party and not the company named by the certified petition. For example, Company A has been named in a certification. Trade-affected workers named as part of the worker list associated with this certification have their wages paid to them by Company B, a third party that Company A has outsourced its payroll and benefits functions to, and their wage records do not align with being employed by Company A. The outsourcing of those workers' payroll and benefits processing by Company A to Company B does not render those workers ineligible to individually apply for TAA Program benefits and services. Often, States have filed a petition to request an amendment to a certification to offer clarification. Even though it may appear that the workers named are being paid by a third party, an amendment to add the payroll company before serving these workers is unnecessary. It also may be helpful for States, as part of initial requests to a firm for its worker list, to inquire whether the firm contracts its payroll out to a different company, and to ask for pertinent information about that payroll company. The Department has adopted paragraph (i) into the final rule as proposed. Teleworkers § 618.225(j) Proposed paragraph (j) of this section codified administrative guidance issued as part of the TAAEA operating instructions. This section explained that teleworkers, also known as remote workers, may be part of a certified worker group without being specifically referenced in a certification document, insofar as their position is affected by the same trade effects as other trade-affected workers in the worker group. One commenter supported including teleworkers in a certified worker group. Another commenter supported the proposal and stated that it would allow States to share lists of teleworkers with other States. A State workforce agency recommended clarifying whether teleworkers based in other countries could be considered part of a worker group. A teleworker, living abroad, would not be eligible for services or benefits under the Act while abroad. Upon the teleworker's return to the United States, he or she would be able to apply for benefits and services and a determination would be made at that time. The Department adopts § 618.225(j) into the final rule as proposed. References to Worker Adjustment and Retraining Notice (WARN) Letters One commenter requested that, where WARN letters are referenced, the Department add “or a similar letter under [S]tate statute.” Several States have State laws modeled after the Federal WARN Act requirements. The Department has modified the regulatory text in five instances at § 618.225(a)(2)(i)(C)(1), (b)(2)(i)(C)(1), (c)(1)(iii)(A), (d)(1)(iii)(A), and (e)(1)(iii)(A) to include language that references State-level WARN laws. The same commenter also recommended replacing the term “displaced worker” with “dislocated worker” throughout the proposal in order to match WIOA terminology. Upon review, the Department has concluded that neither term is ideal. The Department has changed the six instances of the term “displaced workers” at § 618.225(a)(2)(i)(A)(4), (b)(2)(i)(A)(4), (c)(1)(i)(D), (c)(2)(i)(D), (d)(1)(i)(D), and (e)(1)(i) to “workers in the group of workers.” Since “displaced workers” is not a defined term, “workers in the group of workers” is more appropriate and this clarification does not change the meaning of the regulatory provision. Finally, the Department made nonsubstantive technical corrections to capitalize the term “Certifying Officers” in this section. Aside from the modifications discussed above, the final rule adopts § 618.225 as proposed. Section 618.235 Determinations Section 618.235 of the proposed rule clarified the process the Certifying Officer would use for issuing a determination based on the findings of the investigation as set forth in § 618.230. The final rule adopts this section as proposed, except for the changes noted below. Proposed paragraph (c) covered determinations and was derived from 29 CFR 90.16(d). Proposed paragraph (d) covered amended determinations and codified the practice of amending a certification. One commenter recommended a technical correction to the opening part of paragraph (c) of this section to clarify that the correct title is Certifying Officer and not Certifying Official. The same commenter also recommended revising paragraph (d) of this section to allow the Department to amend certifications with or without a petition. The commenter requested clarity about the provision in paragraph (d) allowing the Department to reconsider a denial on its own initiative, commenting that there is an absence of references to other, related provisions in § 618.245. Based on these comments, the Department revised the regulatory text at § 618.235(c) to refer to a Certifying Officer instead of a Certifying Official, at § 618.235(d) to provide that a determination may be amended in accordance with § 618.250(a), and has also added a new provision § 618.235(e) explicitly stating the Department's preexisting, intrinsic authority to modify its determinations. The Department has included a similar statement in the final rule at § 618.250(d) to address the comment about the Department's ability to amend determinations on its own authority. Section 618.240 Termination of Certification Proposed § 618.240 discussed the termination of certifications under section 223(d) of the Act and updated the previous regulations to reflect current practice and procedures through minor revisions to 29 CFR 90.17. The Department clarified that any party eligible under proposed § 618.225 to submit a petition may file for a reconsideration of a terminated or partially terminated certification. A decision to uphold the termination of a certification after reconsideration is a final determination by the Department and subject to judicial appeal. The Department is finalizing this section as proposed, except for the changes noted below. Paragraph (a) Proposed paragraph (a) restated section 222(d) of the Act and is unchanged from 29 CFR 90.17(a). Proposed paragraph (a)(1) described that unless a termination is issued under proposed § 618.240, all certifications made under proposed § 618.235(a)(1)(ii) are considered terminated the day following the expiration date of the certification. Proposed paragraph (a)(2) provided that all ITC certifications, described at § 618.225(f), are considered terminated the day following the expiration date of the certification, which is 1 year following the date of publication of the determination in the Federal Register . The Department received comments on proposed paragraph (d), discussed below, which resulted in the final rule not carrying forward proposed paragraphs (a)(1) and (2) of this section. One commenter asked how a termination would affect program participants. In response to this comment, if a certification is terminated, no additional trade-affected workers would be eligible to enroll in the TAA Program as of the effective date of the termination. AAWs already receiving TAA Program benefits and services would be allowed to continue in the TAA Program. The Department made no changes in response to this comment. Paragraph (b) Proposed paragraph (b) included the notice language from 29 CFR 90.17(a) and updated it to include to whom the notices will be made. It also required the State to notify the trade-affected workers in the worker group of the initiation of the investigation to terminate a certification. Two commenters asked how States may notify a worker group of a terminated certification. Similarly, a State workforce agency commented that States should be required to notify only those trade-affected workers who would face separations after a certification termination, because a broader requirement would burden States and confuse workers. The Department does not concur with the commenter that such a notice would cause burden or confusion. The notification should clearly state that workers fully or partially separated prior to the termination date remain eligible for benefits. The regulatory text in the final rule has not been revised. Paragraph (d) Proposed paragraph (d) described the information that will be considered in determining whether to terminate a certification and provided that the period of investigation would remain the same as the period of investigation for the original certification. One commenter asked how terminations issued because worker separations fail to result from conditions set out in section 222 of the Act could be consistent with paragraph (d) of this section, if the period of a certification will remain the same as the original period of investigation. The commenter asked if the issue is whether those conditions, which existed at the time of the certification, have changed in the period since the certification and before the standard date of termination. The termination provisions, as proposed, were based on the statutory language at section 223(d) of the Act and previous regulations at 29 CFR 90.17. The actions taken under the termination provision do not establish a new period of certification. A change in circumstances may occur to change the conditions under which the worker group was initially certified. In most scenarios, a termination is a result of the removal of a threat of separation and often there have been no actual separations and the conditions that resulted in the threat are no longer present. The Department sought to provide additional transparency and clarity on the internal operations of the investigation process related to terminations. In doing so, the Department now recognizes that the proposed language needs clarification. As a result, the Department has revised the regulatory text to reflect more closely the language included in 29 CFR 90.17 by deleting proposed § 618.240(a)(1) and (2), deleting the last sentence of proposed § 618.240(d) (which would have required the period of investigation of a termination of certification to remain the same as the period of investigation for the original certification), and making minor technical edits to proposed § 618.240(e)(1) and (f). Paragraph (e) Proposed paragraph (e) combined 29 CFR 90.17(d) and (e) to provide details on the process of issuing a notice of termination or notice of partial termination, and detailed to whom the notices would be issued. It required States to notify the worker group of the termination or partial termination. It also stated that a termination would not take effect until the period in which a party may request reconsideration has elapsed. A State workforce agency requested additional guidance on paragraph (e) of this section, asking how the final rule would impact workers who receive services prior to a termination date. The Department clarifies that there would be no change in benefits to AAWs who have been separated or partially separated prior to the termination. AAIWs who are receiving benefits would be impacted by a termination or partial termination of a certification, as they would not have been separated or partially separated. Aside from the technical edit to § 618.240(e)(1) discussed above, the final rule adopts paragraph (e) as proposed. Paragraph (f) Proposed paragraph (f) updated 29 CFR 90.17(f) and provided detail on the process of issuing a notice of continuation of certification, and detailed to whom the notice will be issued. It required States to notify the worker group of the continuation of certification. One commenter recommended that the Department be required to provide notification to workers in a worker group for which certification has been terminated, instead of the State, writing that States could share their information with the Department or the Department could provide States with a letter to send on its behalf. The commenter also recommended deleting the third sentence of paragraph (f) of this section, as notice to the worker group is already addressed in the last sentence of paragraph (f). Another commenter supported notifying workers that a petition is under investigation, but requested that the regulation contain information as to what must be included in a notification and who would need to receive it. The Department will provide training and technical assistance on how States can provide notice to impacted trade-affected workers should a termination occur, but States should plan to contact workers using available contact information and to notify eligible workers who are nonparticipants in a similar manner in which States first notified the impacted workers of their eligibility to apply for benefits and services. One commenter asked for an example of why a certification would be terminated. One example would be if the Department receives notice from a company official that the firm just received a new contract and have canceled the imminent layoffs of the certified worker group. Another example is where the company has canceled the outsourcing of its manufacturing line to a foreign country. In these cases, the Department would investigate and determine whether separations are still attributable to the reasons stated in the worker group certification. The Department points out this provision also was in 29 CFR 90.17. Aside from the technical edit to § 618.240(f)(1) discussed above, the final rule adopts paragraph (f) as proposed. Paragraph (g) Proposed paragraph (g) allowed for reconsideration of a termination or partial termination of a certification and referred parties to § 618.245. The same commenter discussed immediately above also wrote that paragraph (g) of this section should refer to § 618.205, not § 618.225. The Department has corrected the typographical error. Section 618.245 Reconsideration of Termination of an Investigation, Denial, or Termination or Partial Termination of Certification Proposed § 618.245 contained the process for reconsiderations of determinations on petitions. The proposed rule contained several changes from the previous language in 29 CFR 90.18 to provide additional clarifications and to enhance efficiency of investigations. A State workforce agency stated that the Department should notify States when it is reconsidering a termination. The State workforce agency said that the proposed change would expedite reconsideration requests. Another commenter, a private citizen, agreed and said the rule would make reconsiderations mandatory prior to a final adverse determination. The Department concurs with the commenters and will provide notification of any intent to reconsider. This is an operational process that does not require a change to the regulatory text. As such, no changes were made to the regulatory text in the final rule in response to these comments. Section 618.250 Amendments of Certifications Proposed § 618.250 provided the process for seeking amendments to certifications. Although the proposed process was not previously included in regulation, the Department has been issuing amendments for many years. Section 223 of the Act establishes that a determination be issued for any group that meets the eligibility criteria of section 222 of the Act. The Department interprets that provision to mean that, should new or supplemental information support a clarification of the certified worker group, the Department may issue an amended certification under the same petition number and publish the amendment in the Federal Register and post it on the Department's website. The Department is adopting this section in the final rule as proposed, except for the changes noted below. Proposed paragraph (a) described the reasons for amendments and explained that amendments must not extend the impact date as that would go beyond the period covered by the certification itself. A commenter requested that the Department further specify that the Department may undertake to amend a certification on its own initiative, without a § 618.205 petition. The Department has modified the regulatory text in §§ 618.235(d) and 618.250(a) to clarify that the Department retains the authority to amend a certification without a petition where it has determined that an amendment is appropriate. The Department has further modified the paragraph heading in § 618.250(a) in the final rule from Types of amendments to Reasons for amendments to accurately reflect the contents of paragraph (a). A commenter asked whether the reference in § 618.250(a) to § 618.235(a)(1)(iii)(A) should cite § 618.235(a)(1)(ii) instead. The correct reference is § 618.235(a)(1)(ii), and the citation in the regulatory text has been corrected accordingly. Section 618.255 Judicial Review of Determinations Section 618.255 in the NPRM proposed the process for judicial review of determinations issued under proposed § 618.245(g). This is a significant revision to the language previously at 29 CFR 90.19. Section 284 of the Act allows for judicial review of only “final determinations.” Under previous regulations, all determinations the Department rendered were final determinations subject to judicial review. The Department is adopting the section in the final rule as proposed, except for the change noted below. Proposed paragraph (b) defined only determinations on reconsideration issued under proposed §§ 618.240(g) and 618.245 as final determinations subject to judicial review through the United States Court of International Trade (USCIT). A commenter wrote that § 618.255(b) should be amended to reference only § 618.245(g) rather than §§ 618.240(g) and 618.245. The commenter stated that the latter sections are not correct citations with respect to final determinations. The Department concurs, has corrected the citation in the regulatory text, and otherwise adopts § 618.255(b) as proposed. Section 618.265 Availability of Information to the Public Section 618.265 of the NPRM proposed at paragraph (a) that the Department would post all determinations and redacted petitions on the Department's website. This paragraph also provided that members of the public may inspect petitions and other related documents filed with the Administrator. Proposed paragraph (b) stated that confidential business information would not be made available to the public. Section 618.265 as proposed was largely unchanged from the previous language at 29 CFR 90.32, except to indicate that copies of petitions, in redacted form, would be available on the Department's website. A commenter recommended adding a reference to the TAA Program website to § 618.265(a). The Department concurs with the suggestion to include the website for the TAA Program in § 618.265(a). The website reference has been added to paragraph (a) of this provision in the final rule, and the Department otherwise adopts § 618.265 as proposed. C. Subpart C—Employment and Case Management Services Subpart C describes the employment and case management services that States must make available to trade-affected workers as required by section 235 of the Act. These services were previously set forth in 20 CFR part 617. The proposed regulation proposed significant changes to the part 617 provisions to reflect the changes enacted by TGAAA, TAAEA, and TAARA 2015. However, not all of the requirements included here are new. Previously, 20 CFR 617.20 and 617.21 contained many of the same elements now contained in section 235 of the Act and in this final rule. Subpart C of the NPRM also proposed language to update 20 CFR part 617 to reflect changes to the TAA Program and related workforce development programs due to the authorization and implementation of WIOA. This subpart emphasizes the integration of the TAA Program into the one-stop delivery system established under WIA and continued under WIOA. It also implements the requirements of section 221(a)(2)(A) of the Act for the provision of rapid response assistance and appropriate career services for workers upon receipt of a petition filed covering a group of workers. Some key proposals within subpart C included requiring initial assessments for trade-affected workers, clarifying the provision of required case management services, and prescribing requirements for IEPs. The Department is finalizing this subpart as proposed, except for the changes noted below. Where the Department received comments on specific paragraphs within a section, details of those paragraphs as proposed in the NPRM are included to provide context for the discussion of comments that follows. No comments were received on proposed §§ 618.300 and 618.305, and the final rule implements these sections as proposed. Section 618.310 Responsibilities for the Delivery of Employment and Case Management Services Proposed § 618.310 of the NPRM set forth the State's responsibilities for delivering and making available employment and case management services. These responsibilities are from section 235 of the Act. The Department is making a technical correction to § 618.310(a) to edit the citation from § 618.820 to § 618.816. The Department is finalizing this section as proposed, except for the changes to § 618.310(b) and (c) noted below. Paragraph (b) Proposed paragraph (b) listed the State's specific responsibilities for delivering employment and case management services. The proposed regulatory text modified 20 CFR 617.20(b). The language in 20 CFR 617.20 was based on workforce programs that have been replaced by WIOA and used outdated language to describe reemployment services, now known under the TAA Program as employment and case management services. Proposed paragraph (b) did not significantly change the activities and services that States must provide or make available to trade-affected workers. It required that States (1) interview and review training opportunities for each trade-affected worker, (2) inform trade-affected workers of the services and allowances available, (3) help them secure suitable employment, (4) accept applications for training, (5) help them secure appropriate training, (6) monitor their training progress, (7) devise a training-waiver process, (8) provide access to workshops and other employment resources, and (9) coordinate other employment benefits that workers may be eligible for. Proposed paragraph (b) also reorganized 20 CFR 617.20(b). All the provisions of 20 CFR 617.20(b), if not contained in this section, are subsumed elsewhere in the rule. One commenter expressed concern about the requirement at § 618.310(b)(1) mandating States subject “every” trade-affected worker to an intake process that includes an interview and a review of appropriate training opportunities. The commenter said many trade-affected workers will choose not to participate in the TAA Program, and States cannot be expected to force all workers eligible for the program to undergo the intake process. The commenter recommended changing the provision to require only that States “offer” to provide the intake process to trade-affected workers to account for the fact that some workers may in fact choose not to participate in the TAA Program. The Department emphasizes that intake requires an application of enrollment; therefore, the intake requirement is applicable only to those trade-affected workers who apply to the TAA Program for receipt of TAA Program benefits and services. As such, there is no need to change the regulatory text related to this requirement and it is adopted in the final rule as proposed. A State workforce agency recommended adding language to § 618.310(b)(5) about States' eligible training provider (ETP) list under WIOA to facilitate more effective communication about available training opportunities. Section 236(a)(5) of the Act, however, specifically prohibits limiting approved training under the TAA Program to the ETP and the Department is concerned that adding the commenter's proposed language would potentially mislead those administering the program. Accordingly, the Department is adopting paragraph (b)(5) in the final rule as proposed. Paragraph (c) Proposed paragraph (c) implemented section 235 of the Act by requiring States to provide, if appropriate, specific employment and case management services to trade-affected workers. Proposed paragraph (c)(1) required States to assess workers' skills and service needs through assessments and by identifying appropriate employment goals and barriers to employment. These goals should be based on a realistic assessment of available training; the worker's knowledge, skills, and abilities; and the gap between them and those required for the worker's identified employment goal. Proposed paragraph (c)(2) required States to inform trade-affected workers of the availability of the development of an IEP to identify employment goals and objectives and appropriate training and services needed by the trade-affected worker to achieve those goals and objectives. An IEP is a combination of the “training plan” contained in 20 CFR 617.20(b)(8) and the “reemployment plan” in 20 CFR 617.20(b)(13). The requirement to periodically review the reemployment plan in 20 CFR 617.20(b)(13) was carried forward as a requirement for an IEP under the NPRM. For workers seeking training or job search allowances, § 618.350(a) required States to provide workers with an IEP, though this is not a requirement for eligibility for benefits. Proposed paragraph (c)(3) required the State to provide information to trade-affected workers on how to apply for financial aid, including referring workers to educational opportunity centers under the Higher Education Act of 1965, as amended (HEA). In addition, States must notify workers that they may request financial aid administrators to use current year income data, rather than preceding year income data, to determine the workers' financial need. This is required by section 235(4) of the Act. There was no corresponding requirement in the previous rule. Proposed paragraph (c)(4) required States to provide, if appropriate, certain services to trade-affected workers, including short-term prevocational services such as development of learning skills, communications skills, interviewing skills, punctuality, personal maintenance skills, and professional conduct to prepare workers for employment or training. These are referred to commonly as “soft skills” within the public workforce system. These services are required by section 235(5) of the Act. There was no corresponding provision in the previous rule. Proposed paragraph (c)(5) required States to provide, if appropriate, individual and group counseling, including job search and placement counseling. These services can be provided in one-on-one counseling sessions or in workshops at a one-stop center. These services were referenced indirectly in 20 CFR 617.20 and 617.21 and are required by section 235(6) of the Act. The NPRM proposed the use of more modern terminology that reflects the changes to the public workforce system that have occurred through the transition from JTPA, to WIA, and now to WIOA. Proposed paragraph (c)(6) required States to provide various kinds of employment statistics, including local, regional, and national labor market information, to ensure trade-affected workers make informed decisions about their employment goals and training [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-13802. Public record. Not legal advice.