Trade Adjustment Assistance for Workers; Amendment of Regulations

SUMMARY: This document contains a final rule amending the regulations

on trade adjustment assistance for workers which implement the 1988

Amendments to the Trade Act of 1974 as contained in the Omnibus Trade

and Competitiveness Act of 1988. This action will update the

regulations and will provide uniform instructions to State agencies in

carrying-out their responsibilities under the Trade Act. These State

agencies act as agents of the United States for the purpose of

providing adjustment assistance benefits and services to adversely

affected workers. Comments are requested on the several material

changes being made in this final rule, which differ from the September

1988 proposed rule, and on a number of other changes which were not

included in the proposed rule.

DATES: Effective date: February 7, 1994.

Comment date: Comments on the material changes, from the proposed

rule to this final regulation, are invited and must be received in the

Department on or before February 22, 1994.

ADDRESSES: Written comments on the changes in the regulations, on which

comments are invited, may be mailed or delivered to the Office of Trade

Adjustment Assistance, Employment and Training Administration, 200

Constitution Avenue NW., room C-4318, Washington, DC 20210.

All comments received will be available for public inspection

during normal business hours in Room C-4318 at the above address.

FOR FURTHER INFORMATION CONTACT: Marvin M. Fooks, Director, Office of

Trade Adjustment Assistance, 200 Constitution Avenue NW., Washington,

DC 20210. Telephone: (202) 219-5555 (this is not a toll free number).

SUPPLEMENTARY INFORMATION:

In General

The Trade Act of 1974 made major changes to the trade adjustment

assistance program (hereafter ``TAA program'') for workers displaced

because of increased imports of articles like or directly competitive

with articles produced by the workers' firm. On receiving a petition

for trade adjustment assistance (hereafter ``TAA'') from a group of

workers or its authorized representative, the Department conducts a

factfinding investigation in response to the petition. If the findings

substantiate that the workers of a firm or subdivision of a firm have

been adversely affected by import competition, a certification is

issued stating that the workers are eligible to apply at a local office

of a State employment security agency for TAA benefits.

The 1981 Amendments to the Trade Act of 1974 (Title XXV of Pub. L.

97-35) made extensive changes in the TAA program. Further changes were

made in the 1984 Amendments (Sections 2671 and 2672, of Pub. L. 98-369)

and in the 1986 Amendments (Part 1 of Subtitle A of Title XIII of Pub.

L. 99-272). Final regulations implementing the 1986 Amendments were

published in the Federal Register on August 24, 1988, at 53 FR 32344,

and on May 23, 1989, at 54 FR 22277.

The 1988 Amendments to the TAA program are contained in Part 3,

Trade Adjustment Assistance, of subtitle D of title I of the ``Omnibus

Trade and Competitiveness Act of 1988'' (Pub. L. 100-418) (hereafter

the ``OTCA''). The 1988 Amendments expand eligibility for TAA to

workers in the oil and natural gas industry engaged in exploration and

drilling; require detailed information about TAA program benefits to be

given to every individual who files an initial claim for unemployment

benefits, and further require an individualized notice to every worker

believed to be covered by a certification issued by the Department;

require publication of a notice of the certification in a newspaper of

general circulation; require a worker to participate in training as a

condition for receiving basic trade readjustment allowances (hereafter

``TRA''); authorize the waiver of the training requirement for a worker

when training is not feasible or appropriate; authorize the payment of

basic and additional TRA to a worker during breaks in training that do

not exceed 14 days; reinstate the movable eligibility period for basic

TRA, based on the worker's most recent qualifying (total) separation

rather than the first qualifying separation as was previously required;

extend the expiration date of the TAA program to September 30, 1993;

emphasize coordination with programs and services to dislocated workers

provided under title III of the Job Training Partnership Act; and make

other changes.

While most of the provisions of Part 3 affecting the TAA program

are in the form of amendments to Chapter 2 of Title II of the Trade Act

of 1974, some provisions of Part 3 affecting workers do not amend

existing law. Examples are the provision which permits workers in the

oil and natural gas industry engaged in exploration or drilling,

separated after September 30, 1985, to file petitions under new

eligibility rules, and the provision concerning the eligibility of

workers totally separated from adversely affected employment during the

period beginning August 13, 1981, and ending April 7, 1986. The

provisions of the 1988 Amendments became effective, in general, on

August 23, 1988, except that the amendments to sections 231(a)(5), (b)

and (c) took effect on November 21, 1988, and the amendment to Section

225 took effect on September 22, 1988.

Because many of the 1988 Amendments were effective on the date of

their enactment into law, August 23, 1988, most notably the new

``movable'' eligibility period for basic TRA, the Department issued

interim Operating Instructions in General Administration Letter

(hereafter ``GAL'') No. 7-88, dated September 12, 1988, which was

published in the Federal Register on September 16, 1988, at 53 FR

36180-36213, together with Training and Employment Information Notice

(hereafter ``TEIN'') 6-88. GAL 7-88 and the two changes thereto were

subsequently rescinded and replaced by GAL 15-90, dated August 21,

1990. These GALs disseminated controlling guidance to the States on the

administration of the TAA program as amended by the OTCA, pending the

issuance of final amendments to the regulations. GAL 15-90 was

published in the Federal Register on November 21, 1990, at 55 FR 48774-

48800, together with TEIN 13-90.

Following the issuance of GAL 7-88, amendments to the regulations

at 20 CFR part 617, implementing the 1988 Amendments, were proposed in

a document published in the Federal Register on November 30, 1988, at

53 FR 48474, with a comment period ending on December 30, 1988.

Preparation of a final rule document, addressing the comments received,

began after the end of the comment period. The need for other changes

in the regulations was identified in light of the comments received,

further reflection on the 1988 Amendments, and experience with the

interim Operating Instructions. The most significant changes, resulting

in the issuance of GAL 15-90 and in delaying the publication of this

final rule document, were the changes in the interpretations of

subsections (a) and (g) of Section 1430 of the OTCA, relating to the

new ``movable'' eligibility period for basic TRA. This significant

change, and other related changes, were announced in GAL 15-90.

This final rule therefore includes substantive changes in the

amendments to part 617 that were included in the proposed rule

published on November 30, 1988. The most significant of these changes

are the new interpretations of the effective dates of the 1988

Amendments relating to the ``movable'' eligibility period for basic

trade readjustment allowances (Secs. 617.3 and 617.11(a) (1) and (2)).

This document also includes substantive changes to Part 617 that were

not included in the published proposed rule, including sub-stantive

changes that were announced in Changes 2 and 3 to GAL 15-90, relating

to a complete revision of Sec. 617.26 and a change in Sec. 617.22(a).

Many of these substantive changes resulted from a consideration of

comments received on the proposed rule. Nonetheless, in the interests

of keeping its rulemaking processes as open as possible, the Department

is inviting public comments on these changes. Further changes are made

in Secs. 617.3, 617.11(a), 617.15(b) and (d), 617.16, 617.19(b),

617.21, 617.22(f), 617.33, 617.44, 617.50(d), 617.55, 617.60 and

617.64, which are related to the revision of Sec. 617.26 or for other

reasons as explained below. Conforming changes are also made in

Sec. 617.67.

The effective date of all of the substantive changes in the statute

and the regulations that are announced in any GAL (or change thereto)

is the same as the effective date of the amendment(s) to which the GAL

pertains, but any substantive change in GAL operating instructions

applies, unless stated otherwise, in the case of all decisions made

after the date of issuance of the GAL (or change thereto) by the

Department. However, all of the substantive changes noted below in

items A through R are subject to an opportunity for comment after

publication of this final rule. After the end of the comment period,

and consideration of any comments received, another final rule document

will be published relating to these substantive changes.

Substantive changes in the interpretations of the 1988 Amendments

which are addressed below relate primarily to the effective date and

application of the new eligibility period for basic TRA, but also

relate to other provisions of the OTCA, the Trade Act of 1974 and

section 106(a) of Public Law 102-318 which amends section 231(a)(2) of

the Trade Act, as discussed below.

The Department's new interpretations center on the effective date

provisions of subsections (a) and (g) of Section 1430 of the OTCA.

These new interpretations are discussed in detail in paragraph A,

below.

Good Cause Exception

The Department has determined, pursuant to 5 U.S.C. 553 (b)(B),

that good cause exists for publication in final of the substantive

changes in this document, because all of such changes are essential to

the proper administration of the TAA program by the States, and such

changes either relieve a restriction, and have been previously

announced in controlling operating instructions issued to the States,

or relate primarily to procedural relationships between and among the

States. In addition, because of the delays encountered in issuing this

final rule, any further delay in putting these substantive changes into

effect would be impractical and contrary to the public interest. As

explained above, comments are invited and will be considered, after

which a final rule will be published. In the meantime, public

implementation of these substantive changes as final regulations will

not be delayed further.

In the following text, therefore, substantive changes, on which

comments are requested, are addressed first. These changes are followed

by a discussion of the comments received on the proposed rule published

on November 30, 1988.

Substantive Changes from November 30, 1988 Proposed Rule

The substantive changes noted under this heading are either changes

in the amendments to part 617, as published on November 30, 1988, or

changes in other sections of Part 617 that were not included in the

proposed rule. These substantive changes also include conforming

changes in the transition provisions of Sec. 617.67.

Comments are requested on all of these substantive changes, after

which a final rule document on such changes will be published.

A. New Eligibility Period for Basic TRA

Section 1425 (a) of the OTCA amended section 233(a)(2) of the Trade

Act of 1974 to reinstate the ``movable'' eligibility period for basic

TRA. Section 1430(a) of the OTCA made this amendment effective on the

date of enactment, August 23, 1988, and section 1430(g) of the OTCA

provided that amended section 233(a)(2) would not be applied in certain

circumstances if it would result in an earlier expiration date of a

worker's eligibility period established on the basis of the prior law.

In the proposed rule published on November 30, 1988 (53 FR 48474)

(as well as in Section 4.F.1. of GAL 7-88), Section 1430(a) was

interpreted as making this amendment applicable to any total qualifying

separation which occurred on or after August 23, 1988. The limitation

in section 1430 (g) was interpreted as applying with respect to any

such total qualifying separation if it would result in an earlier

expiration date of the eligibility period of a worker based on the

prior law and a first qualifying separation which occurred before

August 23, 1988.

In GAL 15-90, issued on August 21, 1990, the Department announced

that, in conjunction with the development of final regulations

implementing the 1988 Amendments, the Department determined that the

previously published interpretations of the effective date provisions

in the proposed rule published on November 30, 1988, were in error. The

same erroneous interpretations were contained in GAL 7-88, and this

fact necessitated the issuance of revised operating instructions in GAL

15-90, which was published in the Federal Register on November 21,

1990, at 55 FR 48774.

Subsection (a) of section 1430 of the OTCA provides that: ``Except

as otherwise provided by this section, the amendments made by this part

shall take effect on the date of enactment of this Act.'' Subsection

(a) thus applied to, among others, the amendment to section 233(a)(2)

of the Trade Act of 1974, which prescribes the eligibility period for

basic TRA. In the proposed rule and in GAL 7-88, the amendment to

section 233(a)(2) was interpreted as being applicable to separations

which occurred on or after the date of enactment of the OTCA, August

23, 1988.

In the new interpretations announced in GAL 15-90, section 1430(a)

was interpreted as applying to all decisions (i.e., all determinations,

redeterminations, and decisions on appeals) made on and after August

23, 1988.

The Department concluded, and announced in GAL 15-90, that amended

section 233(a)(2) should be applied to all decisions rendered on or

after August 23, 1988, regardless of whether they involved initial

determinations of TRA eligibility, redeterminations, or decisions on

appeal.

The Department also stated in GAL 15-90 that the new interpretation

of section 1430(a) is supported by the analysis and construction placed

on subsection (g) of section 1430, and by the general principle of law

known as the law-in-effect rule. Under the law-in-effect rule, the law

to be applied in making any decision is the law in effect at the time

the decision is made. In GAL 15-90, this law-in-effect rule was

determined to be applicable to the new interpretations and the 1988

Amendments.

Subsection (g) of section 1430 provides that the amendment to

section 233(a)(2) ``shall not apply with respect to any total

separation of a worker * * * that occurs before the date of enactment

of this Act if the application of such amendment with respect to such

total separation would reduce the period for which such worker would

(but for such amendment) be allowed to receive'' basic TRA. In the

proposed rule and in GAL 7-88, section 1430(g) was interpreted as

limiting the application of amended section 233(a)(2) to total

separations which occurred on or after August 23, 1988, where the

result otherwise achieved would be an earlier expiration date of the

eligibility period of a worker established on the basis of the prior

law and a first qualifying separation which occurred before August 23,

1988.

In the new interpretations announced in GAL 15-90, section 1430(g)

was interpreted literally as applying only to total separations that

occurred before August 23, 1988, and the limitation in section 1430(g)

thus applies only to such prior separations.

A consequence of this new interpretation of section 1430(g) is

that, if the application of amended section 233(a)(2) to a total

separation prior to August 23, 1988, would result in extending the

worker's eligibility period, the amended section 233(a)(2) shall be

applied. Conversely, amended section 233(a)(2) shall be applied to

total separations which occur on and after August 23, 1988, regardless

of whether it would result in an earlier expiration date of the

worker's eligibility period based upon a first qualifying separation

which occurred before August 23, 1988.

Section 1430(g) is not applicable, however, to a ``first qualifying

separation'' which occurs before August 23, 1988. It is on the basis of

such a first qualifying separation that a worker would have a longer

eligibility period ``but for'' the amendment to section 233(a)(2). To

preserve a longer eligibility period, and thereby give effect to the

limitation in section 1430(g), therefore, such limitation could not

logically be made applicable to such a first qualifying separation.

A more extensive explanation and justification for the new

interpretations affecting amended section 233(a)(2) was set forth in

GAL 15-90, and in Attachment A and Section F.1. of GAL 15-90. That

explanation and justification was published in the Federal Register, at

55 FR 48774, 48778, 48782, and 48789 (November 21, 1990).

The new interpretations require substantive changes in the final

rule, particularly in the definitions of ``eligibility period'' and the

various types of ``separation'' defined in Secs. 617.3(m) and 617.3(t),

as well as in the transition provisions in Sec. 617.67. Other

conforming changes are made throughout the document, including the

deletion of clause (D) in Sec. 617.11(a)(2)(iii).

B. Other Applications of New Interpretations

The new interpretation of section 1430(a) and the law-in-effect

rule also affect other amendments to which section 1430(a) applies.

These include--

OTCA Section 1421(a)(1)(B)--Sec. 617.11(a)(4) Special

rules for oil and gas workers--retroactive. (Section A.2. of Attachment

A to GAL 15-90);

Trade Act Section 233(b)--Sec. 617.15 (Section E.4. of

Attachment A to GAL 15-90);

OTCA Section 1425(b)--Sec. 617.11(a)(3) Special rules for

workers separated in 1981 to 1986 period. (Section F.2. of Attachment A

to GAL 15-90).

A more extensive explanation and justification for the application

of the new interpretations to these provisions was set forth in GAL 15-

90 and Attachment A thereto.

The Department also has decided that the 1988 Amendments relating

to sections 231(a)(5), 231(b), and 231(c) of the Trade Act, which,

under section 1430(f) of the OTCA, took effect 90 days after the date

of enactment (i.e., on November 21, 1988), are not affected by the new

interpretation of section 1430(a). Although the effective date language

of section 1430(f) is the same as the effective date language of

section 1430(a), the Department has determined that the application of

the new interpretation to these provisions would cause manifest

injustice to affected workers and also would appear to be contrary to

the intent of the Congress and the logic of the 90-day delay in the

effective date of these amendments. This is more fully explained in GAL

15-90 and Attachment A.

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

Section 106(a) of Public Law 102-318 amended section 231(a)(2) of

the Trade Act of 1974 by adding a new paragraph (D) to the categories

which are considered a week of adversely affected employment at wages

of $30 or more a week in order to qualify for TRA. The new subparagraph

(D) provides that any week a worker is on call-up for active duty in a

reserve status in the armed forces, provided such active duty is

``Federal service'' as defined in 5 U.S.C. 8521(a)(1), shall constitute

a week in meeting the TRA qualifying requirements of section 231(a)(2)

of the Trade Act of 1974. Section 106(a) also clarifies that not more

than 26 weeks described in subparagraphs (B) or (D) of section

231(a)(2) of the Trade Act may be used for TRA qualifying purposes.

This means that all of the required employment and wages necessary

to qualify for TRA may be attained during a reservist's call-up to

active duty. This amendment only affects the TRA qualifying requirement

in section 231(a)(2); all other TRA qualifying requirements in section

231 are unchanged. Therefore, State agencies must also determine if a

reservist meets the remaining TRA qualifying requirements contained in

section 231 of the Trade Act before awarding TRA entitlement to the

reservist.

In determining the worker's qualifying weeks at wages of $30 or

more a week for TRA qualifying purposes, the amendment to section

231(a)(2) of the Trade Act applies to weeks beginning after August 1,

1990. The effective date of this amendment results in a retroactive

application to TRA claims filed (or which would have been filed) by

reservists who took part in Operations Desert Storm and Desert Shield.

This means that State agencies must redetermine the TRA initial claims

of all reservists called-up for active duty whose claims were denied

solely because they did not meet the requirements of section 231(a)(2)

of the Trade Act as in effect prior to the enactment of this amendment.

State agencies must also take TRA initial claims of reservists who did

not previously file a TRA initial claim because they did not meet the

requirements of section 231(a)(2) as in effect prior to the enactment

of this amendment.

Operating instructions issued to State agencies in GAL No. 10-92,

Operating Instructions to section 231(a)(2) of the Trade Act of 1974

Contained in H.R. 5260, dated July 6, 1992, explained the changes to

section 231(a)(2) of the Trade Act and instructed State agencies and

cooperating agencies to take the appropriate actions to identify and

inform reservists of their rights to redetermination or the opportunity

to file TRA initial claims. Actions by State agencies include a search

of claimant files and publication of information on this new provision

in newspapers of general circulation and other appropriate media.

Accordingly, a new clause (iv) is added to

Sec. 617.11(a)(2)(iii)(B)(1) and clause (ii) in

Sec. 617.11(a)(2)(iii)(B)(2) is changed to implement these amendments

to section 231 (a)(2) of the Trade Act.

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

Section 1425(b) of OTCA provides eligibility for TRA to certain

workers who were continuously unemployed since separation from

adversely affected employment during the period from August 13, 1981 to

April 7, 1986, not taking into account seasonal employment, odd jobs,

or part-time, temporary employment. This provision opened up

eligibility to workers who could not qualify for additional weeks of

TRA because they did not meet the 210-day time limit for filing for

training and to workers who did not receive all of their TRA

entitlement because their eligibility period was based on their first

rather than their most recent separation. In the proposed rule, general

guidance was provided to State agencies on ``continuously unemployed''

but State agencies were allowed to apply the provisions using their

expertise in determining eligibility relating to employment. However,

the Department decided that it was essential to provide State agencies

with guiding instructions for implementing section 1425(b)(2)(A) (ii)

of the OTCA so that the Department, rather than States, defines the

limits of the Federal liability. Accordingly, definitions to be used in

applying the terms ``seasonal employment'', ``odd jobs'' and ``part-

time, temporary employment'' are added in a new clause (2) in

Sec. 617.11(a)(3)(i)(E). Because precise definitions were not available

for each of these terms, definitions were developed for purposes of

this final rule from various sources and other program applications.

The seasonal provision of applicable State law is used in applying the

``seasonal employment'' provision. A definition for ``odd jobs'' was

developed in which the established period of employment occurs within 5

days or less. The definition for ``part-time'' is taken from the ETA

Glossary of Program Terms and Definitions (ETA Handbook No. 373), which

provides for less than 30 hours per week of regularly scheduled work.

However, that definition has to be applied along with ``temporary

employment.'' The definition for ``temporary employment'' is based on

ETA reporting requirements for the public employment service in which

an established employment period of 150 days or less is used.

E. Change to Sec. 617.15(b)

Amendments to Sec. 617.15 were included in the proposed rule

published for comment on November 30, 1988. A further change in

Sec. 617.15 was considered as a result of the reinstatement of the

movable eligibility period for basic TRA. This change was to base the

210-day period for filing an application for training, in order to

qualify for up to 26 weeks of additional TRA, on the worker's most

recent partial or total separation from employment under the

certification, rather than within 210 days after the date of the first

qualifying separation. This change reinstates the rule that was

applicable prior to the 1981 Amendments, when the eligibility period

was movable, and was adopted with the issuance of Change 2 to GAL 7-88,

dated May 22, 1989. In view of the new interpretation of section

1430(a), and the law-in-effect rule, a further change was made in the

interpretation and application of the 210-day rule, which was announced

in GAL 15-90. The new interpretation applies to all decisions (i.e.,

determinations, redeterminations, and decisions on appeals) which are

made after the date of issuance of GAL 15-90, on August 21, 1990. (See

GAL 15-90 and section E.4 of Attachment A). These changes are

incorporated in Sec. 617.15(b) of this final rule.

F. Change to Sec. 617.15(d)

The proposed rule was published for comment on November 30, 1988.

At that time, the Department had concluded that days ``in which

training would not normally be scheduled'' should not be counted as

part of a scheduled break in training. Initially, the Department

limited the exclusion to Saturdays and Sundays, if training in the

applicable training program would not normally be conducted on those

days. In GAL 7-88, and Change 1 to GAL 7-88, the Department interpreted

section 233(f) of the Trade Act as excluding certain weekend days and

holidays in counting the days of a break in training. GAL 7-88 and

Change 1 were unclear, however, whether the exclusion of holidays

included both National and State holidays. On further consideration,

the Department agreed that all officially recognized National and State

holidays should be excluded in counting the days of a break in

training, to the extent that training in the applicable training

program would not normally be scheduled on those days if they did not

occur during the break. This change was adopted with the issuance of

GAL 15-90 and is applicable to all decisions (i.e., all determinations,

redeterminations, and decisions on appeals) which are made on or after

August 23, 1988, regardless of when the training was approved under

section 236 of the Trade Act, or whether the training was approved or

is approvable under section 236 as amended by the 1988 Amendments, or

when the break in training began or ended. In making decisions under

Sec. 617.15(d), the law to be applied is the law as in effect on the

date the decision is made, and this rule has applied since the issuance

of GAL 15-90 on August 21, 1990. Decisions previously made under prior

operating instructions are subject to redetermination in accordance

with State law, as set forth in section 4.b. of GAL 15-90.

In order to clarify what constitutes a ``break in training'' for

purposes of section 233(f), a new clause (2) is added to Sec. 617.15(d)

defining a break in training as including all periods within or between

courses, terms, quarters, semesters and academic years, whether or not

such breaks are scheduled by the training provider.

Clauses (2) through (5) of Sec. 617.15(d) are renumbered (3)

through (6).

G. Revision of Sec. 617.16

Section 234 of the Trade Act of 1974 specifies the State law

provisions that shall be applicable to claimants for TRA purposes, and

Sec. 617.16 distills the provisions of section 234 in a definition of

``applicable State law.'' Section 617.16 is now being revised for two

essential reasons. The first reason is to include in the definition the

situation of the worker who is not entitled to UI after separation from

adversely affected employment, as is provided for in Section 234. This

had not seemed relevant after the 1981 Amendments, because of the

addition in section 231(a)(3) of the eligibility requirement that the

worker must be entitled to and have exhausted all UI. The 1988

Amendments, however, have prompted rethinking of the roles and

responsibilities of the States in the administration of the TAA

program, and particularly of the role of the ``applicable State''

(i.e., the State whose law is the applicable State law) in the case of

TAA program benefits other than TRA. Accordingly, the definition of

``applicable State law'' is broadened so that it is a useful reference

point for all TAA program benefits. While providing a useful reference

point, there is no intent in revising Sec. 617.16 to suggest that an

individual who is not entitled to UI after a qualifying separation from

adversely affected employment may be entitled to TRA.

The second reason for revising Sec. 617.16 is to conform

Sec. 617.16 to the revision of Sec. 617.26, relating to the roles and

responsibilities of the States as liable States and agent States in the

administration of the TAA program. As discussed below, Sec. 617.26 is

revised to incorporate the Department's thinking as set out in Change 2

to GAL 15-90. In this connection, consideration was given to including

in Sec. 617.16 the definition of ``applicable State'' which is set

forth in Change 2. Upon further consideration, however, it was decided

that the definition of ``applicable State law'' furnished the most

useful reference point for all purposes of the TAA program, and that a

special definition of ``applicable State'' is neither necessary nor

useful.

Accordingly, Sec. 617.16 is revised to track more closely Section

234, and to serve as a useful reference point for all of the purposes

of the TAA program. The section also is modified to make it clear that

the UI entitlement referred to is that which immediately follows a

qualifying separation from adversely affected employment, and not UI

entitlement in some past period, however recent or remote it may have

been.

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

Clause (A) of Sec. 617.19(b)(2)(ii) explains that training is not

appropriate when the firm from which the individual was separated plans

to recall the individual within the ``reasonably foreseeable future''.

Also, Sec. 617.19(b)(1)(i)(B) defines ``appropriate'' as including

whether there is a reasonable prospect which is reasonably foreseeable

that the individual will be reemployed by the separating firm. These

provisions are consistent with Sec. 617.22(a)(1)(ii) on conditions for

approval of training when there is reasonable prospect of suitable work

within the foreseeable future. (See item 43 below.)

While it is reasonable to deny training under Sec. 617.22 (a) to a

worker who is scheduled for recall, there is an identified need to

provide additional guidance in the regulations on the application of

the term ``recall that will occur in the reasonably foreseeable

future'', for purposes of administering Secs. 617.19(b)(1)(i)(B) and

(b)(2)(ii)(A). These regulations are consistent with the

Administration's position to tighten waivers. Publication of these

regulations will improve efficiency in utilizing waivers. This moves

the current TAA program in to closer alignment with the Transitional

Adjustment Assistance provisions of NAFTA. Therefore, this section is

being amended by adding a new clause (2) to Secs. 617.19(b)(2)(ii)(A),

for use in approving training and granting waivers. Clause (2) provides

guidance on two types of planned recalls. The first type is a specific

recall where an individual or group of individuals who was separated

from employment is identified and notified by the employer to return to

work within a specified time period. In this situation an individual

would not be approved for training and a waiver of the training

requirement would be granted for purposes of receiving basic TRA.

The second type is a general recall where the employer announces an

intention to recall an individual or group of individuals, or by other

action reasonably signals an intent to recall, but does not specify a

certain time period in which the recall will occur. In this situation,

if the recall in each individual case is reasonably expected to occur

after the individual would exhaust his or her eligibility for regular

UI associated with the most recent total separation that is within the

TAA certification period, the individual would be treated as any other

individual who was separated from adversely affected employment and the

participation in training requirement would be applied.

I. Revision of Sec. 617.21

Section 617.21 describes the activities that are included as

reemployment services and allowances. Paragraph (e) of this section is

revised to add child care as a support service. This revision is made

to eliminate any uncertainty that child care is a support service and

that the costs for such service may not be charged as a related cost of

training and paid with TAA program funds. See also the Department's

response to item 47 below.

Paragraph (g) of this section is also revised to reflect the 1988

Amendment to section 236 of the Act which added remedial education as

being approvable as classroom training. Training designed to enhance

the employability of individuals by upgrading basic skills, through

remedial education or English-as-second-language courses, are

considered as remedial education approvable under Sec. 617.22(a) if all

the approval criteria in that section are met. A training program of

remedial education only may now be approved for an individual if he or

she possesses occupational skills and needs only remedial education to

obtain employment. Ordinarily, remedial education is made part of a

broader skills training program as defined in Sec. 617.22(f) (3).

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

Section 617.22(a) lists six criteria that must be met for approval

of training. These are intended to assure that training will lead to a

specific occupational goal. Clause (5) of Sec. 617.22(a) deals with a

worker's personal qualifications to undertake and complete such

training. The Department's interpretation of this clause has been

changed to add ``financial resources'' to those personal

qualifications, and this change is included in amended

Sec. 617.22(a)(5).

Change 3 to GAL 15-90, dated July 17, 1991, (56 FR 46331, 46333),

announced a change in the definition of the criterion for approval of

training in Section 236(a)(1) (E) of the Act, by adding ``financial

resources'' to the existing physical and mental qualifications which

must be reviewed in making a determination that a worker is able to

undertake and complete training, as set out for criterion (E) in

Section G.1. of Attachment A to GAL 15-90 and incorporated in this

final rule. This change was made to enhance the worker's ability to

complete training by stressing that the duration of approved training

should be commensurate with the worker's financial resources.

Training may be approved for a duration not to exceed 104 weeks

under a single certification, as limited in amended Sec. 617.22(f)(2).

However, combined UI and TRA entitlement is available to workers for a

maximum of 78 weeks. When the duration of training exceeds the

remaining weeks of UI and TRA payments, a worker's income support may

end or be substantially reduced before completing the approved training

program. This situation often results in workers dropping out of

training.

The amended Sec. 617.22(a)(5) will require State agency staff to

explain to workers seeking approval of training in which the duration

of training exceeds their remaining weeks of UI and TRA payments, that

in the absence of other financial resources such training may not be

appropriate. When the worker's financial resources are not commensurate

with a training program suitable to the worker, the training

requirement may be waived under Sec. 617.19(b)(2)(ii)(B).

K. Revision of Sec. 617.22(f)

An individual who satisfies the six criteria for approval of

training in Sec. 617.22(a) may be enrolled in a training program that

does not exceed 104 weeks in length. (See Sec. 617.22(f)(2).) Inquiries

were received on whether an individual may pursue more than one

training program under a single certification or whether training under

a certification is limited by the 104-weeks time provision. To

eliminate any uncertainty on this matter, clause (2) on length of

training has been revised to state more clearly that the maximum

duration for any approvable training program is 104 weeks and no

individual shall be entitled to more than one training program under a

single certification.

For purposes of part 617, a new clause (3) is added to

Sec. 617.22(f), which provides a definition for a ``training program''.

Subclause (i) of clause (3) provides that a training program may

consist of a single course or a group of courses designed and approved

by the State agency for an individual to meet a specific occupational

goal. Subclause (ii) of clause (3) authorizes State agencies to amend

an individual's approved training program, when the duration of

training is less than 104 weeks, to add a course or courses designed to

satisfy unforeseen needs, such as the need for remedial education or

specific occupational skills. However, the amended training program may

not exceed the 104-week time limitation in clause (2).

Clause (4), previously clause (3), is amended to clarify that the

hours in a day and the days in a week an individual attends an approved

training program must be full time commensurate with the standards of

the training facility. The purpose of this amendment is to ensure that

hours of training per week and length of the training program are

scheduled in a manner that the individual will develop the skills

needed to achieve a specific occupational goal in a reasonable time

period and at a reasonable cost. Any week in which training is less

than full time will still count as a full week for the purposes of the

104-week limitation.

L. Revision of Sec. 617.26

Section 617.26, entitled ``Approval of other training including

interstate,'' was not among the sections of regulations proposed to be

amended in the proposed rule published on November 30, 1988. However,

rethinking occasioned by the 1988 Amendments led to the conclusion that

there is a need to clarify, and in some respects alter, the roles and

responsibilities of liable States and agent States in the

administration of the TAA program. Among the OTCA amendments that

caused such rethinking were those making training an entitlement and an

eligibility requirement for basic TRA, and the provisions of amended

section 231(c) on training waivers. In addition, comments received on

related sections of the proposed regulations were considered in

reaching this conclusion. The redescription of liable State and agent

State roles and responsibilities was announced in Change 2 to GAL 15-

90, which was published at 56 FR 46331, 46332.

The present Sec. 617.26, written in 1975, provides that the agent

State shall be responsible for the selection and approval of training,

and will pay any training related costs, and that the liable State is

responsible for determining eligibility for TRA, job search and

relocation allowances, and may approve and purchase training provided

that certain conditions are met. Although the respective roles of the

liable and agent States were spelled out, the section was silent on the

legal relationships and the appellate authority in the case of

determinations made by the agent State. In addition, there were some

overlapping responsibilities relative to training approval and payment

of training costs. The regulations as revised in this document address

these issues and, in general, deal more comprehensively with the roles

and responsibilities of liable and agent States in administering the

TAA program. Accordingly, Sec. 617.26 is retitled ``Liable and agent

State responsibilities'' and the roles of liable and agent States are

delineated.

After examining State practices, as affected by the OTCA

amendments, the Department has concluded that, as a general rule, the

agent State should continue to be responsible for procuring and paying

for TAA approved training and related costs, including subsistence and

transportation, as appropriate. In addition, the agent State shall

assist the liable State in fulfilling its responsibilities for making

determinations of entitlement to all TAA program benefits. These

changes are reflected in revised Sec. 617.26.

Another significant change in Sec. 617.26 is in making the liable

State responsible for all determinations, redeterminations, and

decisions on appeals pertaining to any worker's eligibility for or

entitlement to any TAA program benefit under Part 617. This includes

determinations relating to training approval, disapproval, waivers and

revocation of waivers for training, and training related costs

including subsistence and transportation. This requirement will

preclude due process objections which could be raised if workers were

required to appeal some issues under the agent State law and other

issues under the liable State law. Responsibility for selection and

approval of training no longer resides in the agent State, as is

provided in the present rule.

However, a liable State and an agent State may jointly agree to

modify this rule with respect to their TAA administrative functions,

but any such change must comply with the legal requirement that all

determinations will be under the authority of the liable State, and all

appeals by individuals will be under the law of the liable State.

Further, prior approval for any such modification must be obtained

under Sec. 617.54. (See also Secs. 617.33 and 617.44, below.)

Additionally, in those situations where two or more States share a

common labor market area and workers commute across State lines for

work, those States may wish to develop cooperative arrangements,

consistent with revised Sec. 617.26, and approved under Sec. 617.54, to

provide TAA ser-vices to adversely affected workers in the area.

The definition of ``liable State'' at Sec. 617.3(aa) is also

revised to conform with changes in Secs. 617.16, 617.26, 617.33 and

617.44, and a definition is added for ``agent State''. (The term

``applicable State,'' which is defined and used in Change 2 to GAL 15-

90, is not used in this final rule. It was decided that the terms

``liable State'' and ``agent State,'' and the definition of

``applicable State law'' in Sec. 617.16 were adequate to cover the

rules associated with interstate responsibilities without adding a

further definition of ``applicable State.'')

As revised in this final rule, Sec. 617.26 comprehensively

addresses the roles and responsibilities of liable States and agent

States in interstate cases, clarifies the legal and appellate

relationships among the States, and assures due process for workers and

conformance with section 239(d) of the Act. With this revision, and

other changes in the rules, there is consistency among the regulations

in addressing State responsibilities: Sec. 617.16 covers applicable

State law; Sec. 617.20 addresses State responsibilities for the

delivery of reemployment services, in general; Sec. 617.33 addresses

findings required before final payment of a job search allowance is

made by the liable State; Sec. 617.44 addresses findings required

before final payment of a relocation allowance is made by the liable

State; and Secs. 617.50 and 617.51 speak to determinations of

entitlement, and appeals and hearings under the applicable State law,

respectively.

A conforming change is made in Sec. 617.50(a) by striking the

clause ``, or the State agency as provided in Sec. 617.26(d),''.

M. Revision of Sec. 617.33

Section 617.33 prescribes the findings required before final

payment of a job search allowance is made to an eligible worker by the

liable State. It describes the responsibilities of liable and agent

States in regard to those findings. This section is revised to

delineate more clearly the responsibilities of liable and agent States

for determinations (and appeal rights) regarding job search allowances.

N. Revision of Sec. 617.44

Section 617.44 prescribes the findings required before final

payment of a relocation allowance is made to an eligible worker by the

liable State. It describes the responsibilities of liable and agent

States in regard to those findings. This section is revised to

delineate more clearly the responsibilities of liable and agent States

for determinations (and appeal rights) regarding relocation allowances.

O. Revision of Sec. 617.50(d)

Section 617.50(d) contains the rules on the use of State law and

regulations in making and reviewing determinations and redeterminations

under part 617. Questions have arisen in at least two States whether

the 210-day time limit in Sec. 617.15(b) (and section 233(b) of the

Act) may be waived for good cause, or whether State law provisions on

good cause for late filing of UI claims may be applied. The Department

has consistently taken the position that such good cause provisions may

not be applied, in view of the lack of authority for doing so in any

provision of the Act or the regulations. Nevertheless, State

authorities in one State have ruled a number of times that there can be

good cause for late filing. And more recently, in a matter arising in

another State, the Sixth Circuit Court of Appeals issued a decision

adverse to the position of the Department. Because the Department

believes that conclusions inconsistent with its longstanding position

do not comport with the Act, it has decided to address the issue in a

broad manner and state as clearly as possible in the regulations the

precise situations in which State laws may be applicable in addressing

issues arising under the regulations.

The Sixth Circuit's decision started with the proposition that the

Trade Act of 1974 was passed by the Congress ``during a mood of

congressional largesse,'' and that the 210-day rule in section 233(b)

of the Act ``was not intended to act as a jurisdictional prerequisite

to additional TRA benefits.'' From this premise it reasoned that ``the

purpose of the rule is to discourage dilatory'' conduct by applicants,

and that absent a finding of dilatory conduct ``the application of the

210-day rule does nothing to further the Act's remedial purpose and

everything to frustrate it''. Citing another holding in the District of

Columbia Circuit, the Sixth Circuit held that the Department's

``interpretation makes sense only if there was a congressional policy

in favor of limiting TRA benefits.'' The Sixth Circuit concluded that:

``That court found no evidence of such a policy. Nor do we.'' From this

line of reasoning the Sixth Circuit held that the State's ``waiver for

good cause rule [is applicable] in this context''.

The Department believes the Sixth Circuit erred in relying upon the

``mood of congressional largesse'' in passing the 1974 Act, without

taking into account the critical redirection in the 1981 amendments

away from TRA and towards greater emphasis upon training (including

changing the 233(b) rule from 180 days to 210 days), and the direct

linkage in the 1988 Amendments of training and eligibility for basic

TRA (as well as additional TRA). In this context, there is a sound

reason for upholding the ``jurisdictional'' nature of the 210-day rule,

and less reason for reaching out to State law for a good cause

exception, as distinguished from fashioning an exception from the

language of Section 233(b). For these reasons, the Department believes

the Sixth Circuit's decision was incorrect. The Department is therefore

moving to clarify the regulations to make its interpretation of the Act

clearer.

In considering where in the regulations the clarification of the

Department's position should be made, the Department took into account

the fact that there are other time limits expressed in the regulations,

such as in Secs. 617.10(b), 617.31(c), 617.41(c), and 617.43(b). Since

all such time limits may be vulnerable to the same deviations that

occurred with respect to the 210-day time limit, it was decided that a

general rule was needed that is applicable to all of part 617. The

placement of this general rule thus fell logically in paragraph (d) of

Sec. 617.50.

Accordingly, paragraph (d) of Sec. 617.50 is amended to add the

general rule that no provision of State law or regulations as to good

cause for waiver of any time limit or for late filing of any claim

shall apply in the case of any time limitation stated in part 617,

unless such State law or regulation is made applicable by a specific

provision of part 617. This change eliminates any uncertainty about the

Department's position, and places a clear obligation on the States to

adhere to the time limitations in all of part 617.

P. Revision of Sec. 617.55

Section 243 of the Act, on Fraud and Recovery of Overpayments, is

interpreted as being drawn in broad terms so as to impose liability for

repayment of all improper payments under the Act, and to impose

penalties for all false statements or representations resulting in

improper payments. Subsection (a) imposes repayment liability upon any

``person'' receiving an improper payment, whereas subsections (b) and

(c) use the term ``individual'' in the fraud and recovery provisions.

In Sec. 617.55, in contrast, the term ``individual'' is used throughout

the liability, fraud, and waiver provisions of the regulations.

Recent experience in the administration of the TAA program has

highlighted the difference between ``person'' and ``individual'' as

such terms are commonly understood in other areas of law. The term

``person'' is more comprehensive, and may include an employer or other

entity or organization as well as an individual, whereas the term

``individual'' as used throughout part 617 typically means the

individual workers who are the beneficiaries of the program. The

question that arose was whether Sec. 617.55(a) was sufficiently broad

in wording to impose repayment liability upon an employer who had

received improper payments for the on-the-job training. In examining

this issue it became apparent that the same issue existed with respect

to payments for training of individuals that are made directly to

training providers. Although the payments in both cases may be said to

be made on behalf of the individual workers, it is evident that, in

many cases (particularly in the case of on-the-job training), liability

for repayment as well as responsibility for fraud is more properly

assignable primarily to the employer and possibly the training

provider.

To clarify the regulations, and to reflect the broad interpretation

given to section 243 of the Act, Sec. 617.55 is revised throughout to

make it specifically applicable to any person or individual, and

paragraph (i) is added to define person as any employer or other entity

or organization as well as the officers and officials thereof who may

bear individual responsibility.

Q. Revision of Sec. 617.60

A new Sec. 617.60, on Administrative requirements, was included in

the proposed rule published on November 30, 1988, for comment. Although

no comments were received, the substance of several of the provisions

are affected by other administrative regulations. Since further work is

required to bring the TAA administrative requirements into full

conformity with those other regulations, the decision was made to

reserve Sec. 617.60 for use when the revised TAA administrative

requirements are completed and published.

R. Revision of Sec. 617.64

In the 1986 Amendments to the Trade Act, section 285 was amended

by, among other things, adding a subsection (b), to provide that ``no

assistance, allowance, or other payments may be provided under chapter

2 * * * after September 30, 1991.'' This new subsection (b) superseded

the current provisions in Sec. 617.64, which were consistent with the

amendments made by section 2512 of the Omnibus Budget Reconciliation

Act of 1981. Section 1426(a) of the OTCA extended the termination of

the program to September 30, 1993. While the 1986 and 1988 amendments

to the TAA program changed the termination dates to September 30, 1991

and 1993, respectively, appropriate changes were not made to

Sec. 617.64 concerning the payment of TAA program benefits after the

termination date in the Act. Therefore, Sec. 617.64 is amended to bring

it into accord with the amended language in section 285 of the Act.

A strict construction of the law, prohibiting the actual payment of

TAA program benefits to individuals after the termination date in the

Act, would have a profound effect on those persons who completed

approved TAA program services, but, because of State processing

requirements, payment for such services cannot be made by the State

agency until after the termination date in the Act. This strict

construction would unnecessarily make the orderly termination of the

program impossible. It would deny payment of benefits to individuals

for the period prior to the termination date of the program simply

because it was administratively infeasible to make the payment before

the termination date. Therefore, in order to avoid these untoward

results stemming from a strict construction, a more liberal

construction of section 285(b) is necessary to effectuate the

Congressional intent. A ``payment,'' within the meaning of section

285(b), will be deemed to have been made before the termination date of

the program, if a final determination on the amount payable to, or on

behalf of, the individual for TAA program services was made on or

before the termination date of the program, for which payment was due.

This means that State agency approved job search and relocation,

and training related transportation and subsistence, must be completed

on or before the termination date in the Act and that the State make a

final determination on the amount of TAA program funds payable to the

individual on or before such termination date. This places the

requirement on the State agency to inform all individuals presently

approved for such benefits of the statutory time provision that the

service must be completed and a final determination on the amount

payable made on or before the termination date of the program. It also

places a requirement on individuals to complete the approved services

and to submit all claims for such activities to the State agency in

time to receive a final determination on the amount payable on or

before the termination date.

Individuals approved for training who began approved training on or

before the termination date in the Act must have a final determination

by the State agency on or before the termination date on the amount due

and payable for the training costs to cover previously incurred tuition

and related expenses. Determinations on tuition shall be limited to the

current training term, quarter, semester, or other scheduled period,

and be in accord with normal billing practices of the training provider

and payment practices of the State agency. In order to conform with the

intent of the law, the State agency may make a final determination on

the amount payable only for the training term, quarter, semester or

other time period for which payment is due and payable on or before the

termination date of the program.

Individuals entering training, and those currently in training

programs which extend beyond the termination date of the program,

should be informed that no payments will be authorized or made for any

costs or expenses which become due and payable after the termination

date of the program, nor will any such costs or expenses be paid prior

to the expiration date of the program.

Moreover, only the last full TRA benefit week, for which a final

determination has been made according to normal State UI processing

procedures on or before the termination date of the program, will be

paid to any individual.

When a claim for TRA is submitted to the State agency subsequent to

the termination date in the Act, or for which a final determination on

the amount payable has not been made on or prior to the termination

date of the program, the State agency is required to issue a ``no-

payment'' determination on the claim because the State may not refuse

to take and process the claim even though it is prohibited by statute

from paying the claim. These provisions apply also to claims for job

search allowances under Sec. 617.33 and for relocation allowances under

Sec. 617.44.

Discussion of Comments and Changes

In response to the proposed rule, the Department received written

comments from two State Governors, fourteen State employment security

agencies, three labor unions, and one public interest group.

1. Eligibility period. The Pennsylvania Department of Labor and

Industry (PDLI) recommended that clause (i) of Sec. 617.3(m)(1)

(defining ``eligibility period'' for basic TRA) be amended by removing

the word ``first'' after the word ``individual'' in the seventh line,

and by removing all language after the parenthetical clause ``(as

defined in paragraph (oo)(1) of this section).'' The PDLI stated that

these deletions are necessary for the regulation to conform to the

eligibility requirement of Section 233(a)(2) prior to its amendment by

the OTCA. The International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America (UAW) commented that the

proposed rule incorrectly ties the eligibility period for basic TRA to

the date on which the first qualifying separation occurs, and the

reference to eligibility period, therefore, should be omitted.

Department's response. The Department believes that these comments

reflect an incorrect view of the 1981 Amendments and the effect of the

1988 Amendments in the OTCA. The Department construes the 1981

Amendments as setting the beginning of the eligibility period as the

week immediately following the week in which regular benefits are

exhausted following the worker's first qualifying separation. This is

explicitly provided for in section 233(a)(2), as amended in 1981, and

is set forth in the Department's regulations implementing the 1981

Amendments. The only change in this provision of the law was the

extension of the eligibility period from 52 weeks to 104 weeks in the

1986 Amendments. No change was made in the fixed eligibility period

until the 1988 Amendments, which restored the movable eligibility

period based on the most recent qualifying total separation. Therefore,

in Sec. 617.3(m)(1), the fixed eligibility period is retained for first

qualifying separations that occurred before August 23, 1988. The new

movable eligibility period is also implemented, in accordance with the

1988 Amendments, for decisions made on or after August 23, 1988, for

other qualifying total separations which occurred before, on, or after

August 23, 1988.

Section 1430(g) of the OTCA provides for the retention of the pre-

OTCA eligibility period which was established by the first qualifying

separation occurring before August 23, 1988, even if the decision is

made on or after August 23, 1988. Amended section 233(a)(2) may not be

applied in a decision made on or after August 23, 1988, in the case of

a more recent total separation occurring before August 23, 1988, if the

effect of applying such amended section would result in an earlier

expiration date of the eligibility period established on the basis of

an earlier first qualifying separation.

It is essential to retain the definition of eligibility period for

the application of prior law with respect to first qualifying

separations which occurred before August 23, 1988, while adding a

definition of the new eligibility period for qualifying separations to

which amended section 233(a)(2) is applicable. If, however, the

adversely affected worker is totally separated on or after August 23,

1988, following a first qualifying separation which occurred prior to

August 23, 1988, amended section 233(a)(2) must be applied even though

it results in an earlier expiration date of the eligibility period

established under pre-OTCA law.

Therefore, no substantive change is made in paragraph (m)(1)(i) of

Sec. 617.3, but as noted below substantive changes are made in

paragraphs (m) and (t) as a result of the new interpretations of

sections 1430 (a) and (g) of the OTCA, and to correct technical errors.

2. Application of new eligibility period. The UAW commented that in

Sec. 617.3(m)(1) the Department set up two standards for the 104-week

eligibility period during which TRA is payable. The UAW argues that the

proposed two standards differ according to whether the date of

separation occurred before or after August 23, 1988. The UAW commented

that Congress explicitly provided in section 1430(g) of the OTCA that

the revised definition of the 104-week eligibility period in section

1425(a) (amending section 233(a)(2)) was effective upon enactment

unless the application of the amended eligibility period would reduce

the period for which a worker would have been eligible for TRA.

Therefore, the two standards should not turn on the date of the

worker's separation, but on whether or not the worker's period of

eligibility is reduced through the application of the amended

eligibility period. The UAW commented further that Congress intended

the amendment to be fully effective upon enactment, permitting the

amendment to increase the eligibility period for basic TRA or establish

a TRA eligibility period for some workers, and noted that the

Conference agreement statements in House Conference Report 100-576 on

sections 1425 and 1430 of the OTCA strongly support this application of

the amendments. The UAW also commented that under OTCA sections 1425(a)

and 1430(g) the most recent total separation which is qualifying must

be used to determine the eligibility period, unless the eligibility

period would be shortened through the application of the amendment to

workers separated prior to enactment.

The PDLI, commenting on the transition guidelines in

Sec. 617.67(e)(3), noted that section 1430(g), in specifically

referring to total separations prior to the enactment of the OTCA,

raised the unavoidable implication that amended section 233(a)(2) shall

be applied to total separations prior to August 23, 1988, if such

application would provide the worker with a longer or later eligibility

period than the worker would have had under the pre-OTCA law. The

Unemployment Council of Southwestern Pennsylvania made the same point

in its comments.

Department's response. The Department agrees with the commenters'

understanding that the amendment to the basic TRA eligibility period is

not to operate to the disadvantage of workers whose eligibility period

would expire at a later date with respect to a qualifying separation

which occurred before the date of enactment of the amendment to section

233(a)(2). These comments were also a factor in the Department's

reconsideration of GAL 7-88 and the resulting new interpretations of

sections 1430(a) and 1430(g) announced in GAL 15-90 (see discussion in

item A. above).

If workers are to retain the advantage of a later expiration date

for the eligibility period based on the prior law, then the prior law

must continue to be applied to first qualifying separations which occur

before the date of enactment of the OTCA (August 23, 1988).

Accordingly, in general the comments have merit, and substantial

changes are made in the final regulations regarding the definition of

``eligibility period'' in Sec. 617.3(m)(1) and the definitions of

``separations'' in Sec. 617.3(t). Furthermore, the transition

provisions at Sec. 617.67(e) also have been revised to reflect the

Department's new interpretations of sections 1430(a) and 1430(g). For

further clarification, a proviso directly implementing section 1430(g)

of the OTCA is added to Sec. 617.3(m)(1).

3. Retroactive approval. The PDLI stated that Sec. 617.3(m)(2)(iii)

does not clearly point out why weeks of training prior to approval

cannot be paid. The PDLI asked ``What if the trainee, for example, was

in JTPA funded training that would be, after approval, either paid for

by TAA or continued under JTPA?''

Department's response. This comment suggests a misunderstanding of

the TAA program and the effects of the 1988 Amendments and earlier

changes. Since the addition of section 236(a)(3) (now 236(a)(4)) in the

1986 Amendments, the switching of training costs from other funds to

TAA funds has to be subject to the controls set out in that section. In

the 1988 Amendments those controls were retained, and authority was

added to mix TAA funding with funding from other public and private

sources and to use funding solely from other sources for TAA training.

That is why, in GAL 15-90 (and earlier in GAL 7-88) and in amended

Sec. 617.25, greater emphasis is given to entering into prearrangements

for sharing the costs of training with other funding sources. With

training becoming an eligibility requirement for basic TRA in the 1988

Amendments, the same emphasis upon prospective treatment must now be

given to basic TRA as has been given to additional TRA and, to a

somewhat lesser extent, TAA funds for training. Additional TRA has not

been paid for retroactive weeks, nor, under Sec. 617.22(c), have

previously incurred training costs been payable from TAA funds. This

same rule must now be applied to basic TRA, as well as additional TRA

and TAA training funds, and it is this rule that is reflected in

amended Sec. 617.3(m)(2)(iii) as well as in amended Sec. 617.22(c).

Under the 1988 Amendments, therefore, TAA funding will not follow

automatically from approval of training under Sec. 617.22(a), nor will

approval of training that commenced before approval under

Sec. 617.22(a) imply or justify payment of previously incurred training

costs from TAA funds, or payment of any TRA for any week that ended

before such approval was documented.

For the foregoing reasons, no substantive change is made in the

final regulations to accord with PDLI's comment. Changes are made in

Sec. 617.3(m)(2)(iii), as well as in Sec. 617.22(c), however, for

purposes of stating the prospective rule as clearly as possible and to

furnish a regulatory response to the PDLI's multi-faceted question.

4. Retroactive payments. The Ohio Bureau of Employment Services

(OBES) commented that Sec. 617.3(m)(2)(iii) specifies that the

eligibility period, during which additional weeks of TRA are payable to

a worker in approved training, if such training is approved after the

training commences, begins with the first week such training is

approved. Approval of such training after the training has commenced

shall not be deemed to authorize the payment of TRA for any week which

ended before such approval was documented. The OBES explained that, at

the present time, many individuals are enrolled in training programs

which were not TAA approvable prior to the 1988 Amendments because the

costs of training were paid with non-appropriated funds. While these

individuals are being made aware of the change in the law that now

authorizes the use of non-appropriated funds to pay the costs of

training, there are unavoidable delays in documenting sources of

training funds and approving the training under part 617. These delays

result in lost worker eligibility for weeks of additional TRA. OBES

recommends that the final rule provide for retroactive payment of the

additional weeks of TRA in such cases, at least to the date of

application for approval of such training. Sections 617.22(c) and

617.67(f) would also need to be modified for this purpose.

Department's response. The OBES presented the problem as one that

existed at the time the letter was written; that is, when the OBES's

comments were made in December 1988. Although the Department

understands that such a problem may have existed in late August and in

September 1988, the operating instructions in GAL 7-88 were issued to

State agencies some three months before the OBES comments were made.

Accordingly, the Department has decided not to relax its long-standing

rule against retroactive payments expressed in Sec. 617.22(c). See

discussion under the preceding item. It was not expected that the new

authorization for sharing costs of training would furnish a viable

solution to all existing cases. One of the safeguards built into the

new system was to require that sharing of costs be under conditions

arranged before the training was approved under Sec. 617.22 and

undertaken by the worker. There is no intent to approve the payment of

additional TRA for weeks a worker is not actually participating in

training nor to approve retroactive payments that are not allowable

under Sec. 617.22 (c). The expectation is that cooperating agencies

will enter into shared cost prearrangements for training not funded

wholly from TAA funds.

Therefore, the Department has decided to make no change in the

regulations in response to this comment, but notes under item 3 that

clarifying technical changes are being made in Secs. 617.3(m)(2)(iii)

and 617.22(c).

5. Qualifying separations. The Missouri Department of Labor and

Industrial Relations (MDLIR) commented on paragraphs (t)(1), (t)(2)(ii)

and (t)(3)(ii) of Sec. 617.3 in the proposed rule, which define ``first

separation'', ``qualifying separation'', and ``first qualifying

separation''. Since a worker must have a total separation on or after

August 23, 1988 to qualify for TRA, the MDLIR asked why the definition

of ``partial separation'' should not be eliminated if it takes a total

separation to establish eligibility for TRA?

Department's response. The Department retained the definition of

``partial separation'' because the qualifying requirements in section

231(a)(1) and (2) continue to permit workers to have a total or partial

separation from employment to qualify for TRA prior to August 23, 1988,

and for TAA services other than TRA whether a separation occurs before

or after August 23, 1988. The amended law does not require that a

worker have a total qualifying separation on or after August 23, 1988,

in order to qualify for basic or additional TRA for weeks beginning

after August 23, 1988. Workers will continue to be eligible for basic

and additional TRA after August 23, 1988, based on a partial or total

qualifying separation that occurred before August 23 under the prior

law. Although the amended law requires that a qualifying separation

must be a total separation to qualify initially for basic TRA (or to

move the eligibility period based on a prior qualifying separation

under the same certification), a partial qualifying separation will be

used for purposes other than the basic TRA eligibility period. For

example, under Sec. 617.15(b) an application for training must be filed

within 210 days after the date of the worker's total or partial

separation referred to in Section 231(a) (1). (See item E. above, and

item 25, below, concerning changes to Sec. 617.15(b) on the application

of the 210-day rule.) Further, the weekly and maximum amounts of TRA

payable to an individual are based on the first total or partial

separation. However, with respect to qualifying separations to which

amended section 233(a)(2) applies, a worker's eligibility period for

basic TRA is based on total separations only.

In considering this comment, however, an error was discovered in

paragraph (t)(3) of Sec. 617.3, which did not give proper effect to a

partial separation on or after August 23, 1988. Therefore, in addition

to other changes as discussed above, paragraph (t)(3) is amended in

this final rule to accord with the above response to this comment. For

the same reason a parallel change is made in Sec. 617.67(e)(4).

6. TRA weekly and maximum. In commenting on the application of

amended section 233(a)(2) to the most recent total qualifying

separation, in determining the eligibility period of a worker, the UAW

argued that this contrasts with the determination of weekly and maximum

amounts of TRA, which does require the use of ``first qualifying

separation.'' The proper use of ``first qualifying separation'' is

restricted to the determination of the weekly and maximum amounts of

TRA.

Department's response. The Department agrees that determinations of

TRA weekly benefit amounts and maximum benefit amounts, under sections

232(a) and 233(a)(1), will continue to be based on the first total or

partial separation, and that this was not changed by the 1988

Amendments. What this means is that monetary determinations of TRA

entitlement may have to be based upon two separations which occurred in

different years. For example, for a period of up to three years or more

after August 23, 1988 (the impact date to termination date of a

certification plus the time between petition and certification dates

can be a period of up to or in excess of three years), it is possible

that a worker will have had a first qualifying separation before August

23, 1988, and computations under sections 232(a) and 233(a)(1) will be

based upon UI entitlement in the first benefit period following such

first separation, whereas the worker's most recent total qualifying

separation will be used to determine the basic TRA eligibility period.

This is simply illustrative, however, because in all cases decided on

or after August 23, 1988, the eligibility period under amended section

233(a)(2) will be based upon the most recent ``total qualifying

separation,'' whereas computations of weekly and maximum TRA amounts

under sections 232(a) and 233(a)(1) will continue to be based on the

first separation with respect to which the worker is entitled to UI,

whether such separation occurred before or after August 23, 1988. This

is an additional reason why, for any worker who is determined to have

had a ``total qualifying separation,'' it will be necessary to

establish whether the worker had an earlier first separation under the

same certification.

The definition of ``first qualifying separation'' in paragraph

(t)(3) of Sec. 617.3 incorrectly relates determinations of weekly and

maximum TRA amounts only to first qualifying separations with respect

to which the worker also qualifies for TRA. This is corrected in the

final regulations, and other technical corrections are made to

distinguish between ``first separation'' and the meaning of ``first

qualifying separation'' for its two purposes; that is, (a) eligibility

period for TRA, and (b) computation of weekly and maximum TRA amounts.

7. Partial separations. The Indiana Department of Employment and

Training Services (IDETS) commented that, based on its understanding of

Sec. 617.3(t)(3)(ii) of the proposed rule, and sections 233(a)(1) and

231(a)(3)(A) of the Act, there appears to be a conflict over whether a

partial separation after August 23, 1988, may be used to determine

benefit amounts.

Department's response. The IDETS is correct in noting this error in

paragraph (t)(3) of Sec. 617.3. See the discussion under the preceding

two items. The first separation under a single certification, with

respect to which the worker is entitled to UI, must be used to

determine the worker's weekly and maximum amounts of basic TRA, whether

such first separation occurs before or after August 23, 1988. As noted

in the preceding two items, Sec. 617.3(t) is modified to clarify this

and other points.

8. Advice to workers. The Vermont Department of Employment and

Training (VDET) commented on Sec. 617.4 concerning what constitutes

proper advice and assistance to workers. The VDET stated that the

requirement to inform each worker applying for unemployment insurance

``of the procedures and deadlines for applying for such benefits''

taken literally includes a large number of applicants who are applying

for short term UI benefits and who in no way are likely to be eligible

for benefits under the TAA program. The VDET argues that while it is

important that the State agency take the initiative to inform workers

who may be eligible for the benefits, the current language is too

rigid, and will only cause confusion among short term unemployed. The

Vermont agency recommended that the requirement be rephrased to require

States to develop the means to identify trade eligible workers who

apply for UI and then provide the necessary information to those

workers.

Department's response. The Department agrees that State agencies

should identify potential trade eligible workers as early as possible

in their benefit period. However, section 239(f) of the Act provides,

among other things, that each worker who applies for unemployment

insurance shall be advised of the benefits under the TAA provisions of

the Trade Act and the procedures and deadlines to apply for such

benefits. There is no language which would support the limitation

suggested by the VDET. Often temporary layoffs by a firm adversely

affected by import competition or other economic conditions become

permanent. The intent of Congress is to ensure that such workers are

made aware early in their unemployment experience of the TAA program,

how to apply for benefits, and the services available to them. Many

State UI agencies furnish an information bulletin or brochure to every

worker who files a claim for UI. These bulletins or brochures should

include full and correct information on the amended TAA program, and on

the benefits and services available to unemployed workers. The

Department is encouraging all State agencies to publish a brochure for

handout to workers filing initial claims for UI. State agencies should

revise their previously used brochures to accurately reflect all the

changes made in this final rule, and furnish a copy to each worker who

files an initial claim for UI as required by section 239(f) since

August 23, 1988.

While no change is made in the final regulations regarding the

requirement of advising all UI claimants of the TAA program,

Sec. 617.4(e) is modified by eliminating the unnumbered paragraph at

the end of this section and by adding the provisions of that paragraph

in clause (2).

9. Notice to workers. The Michigan Employment Security Commission

(MESC) explained that Sec. 617.4(d)(1)(ii)(A) states that notices to

workers must include information as to the article(s) produced. The

MESC commented that unless the article(s) produced is part of the

certification statement, e.g. ``all workers producing shock

absorbers,'' referring to it will often confuse rather than clarify

worker coverage. For example, if the certification covers ``all workers

of XYZ Company,'' to state in the worker notice that the company

``produces shock absorbers,'' will confuse workers of the XYZ Company

who may have produced brakes. Unless a specific article is identified

in the published certification document, it should not be required

information in the notice to workers.

Department's response. The Department concurs with the comment. The

articles produced are to be specified in a notice to the workers only

when there is a specific reference in the published certification

document to an article or articles. When all workers in the firm are

covered by the certification it is not necessary to identify the

article(s) produced. The regulation is modified at

Sec. 617.4(d)(1)(ii)(A) to reflect this change, and the same change is

made in Sec. 617.4(d)(2)(ii)(A) regarding newspaper notices.

10. Identifying workers. The New York Department of Labor (NYDL)

commented that Sec. 617.4(d)(1) expands the intent of the Trade Act by

specifying the sources that the State agency should utilize in

identifying adversely affected workers. The NYDL stated that it is

inappropriate to specify such sources in a regulation and suggested

that the Department adhere to the language of the Act. It also

suggested the following substitute language: ``The state agency shall

provide written notice, through the mail, of benefits available under

this chapter to each worker whom the State agency has reason to believe

is covered by a certification made under subchapter A of this chapter.

The notice must include the following information: * * *.''

Department's response. The proposed rule merely refers to any other

reliable sources of information other than the workers' firm. When a

firm closes, information from the firm's records may be difficult to

obtain. In this case, as well as others, the State agency should obtain

the best information available to it. This level of specificity seems

appropriate for the regulations. Similarly, in implementing the

provision on the scope of the notice to be given, the Department has

concluded that amended Section 225 requires that all workers who can be

identified shall receive such notice. Therefore, no change is made in

the final regulations.

11. Newspaper notices. The OBES commented that Sec. 617.4(d)(2)

requires State agencies to publish a notice of each certification

issued in its State in a newspaper of general circulation in the areas

in which the affected workers reside. OBES further commented that it is

not uncommon that prior to the State agency being informed of a

certification by the Department of Labor all affected workers have

already learned of the certification and have reported to the State

agency to file for TAA benefits. Therefore, OBES recommended that the

final rule provide for a waiver of the public notice requirement when

it can be verified by the State agency that all the affected workers

have filed for TAA benefits. The OBES also recommended that the funding

source for such newspaper notices be identified formally. The

California Employment Development Department (CEDD) provided similar

comments on Sec. 617.4(d)(2). CEDD pointed out that there is no useful

purpose in placing an expensive newspaper ad when all affected workers

are notified by letter, or when the ad will very likely not be seen by

any of the former workers.

Department's response. The Department agrees that a newspaper

notice is not needed in some situations because all the workers are

identified by the State agency and notified by mail. This situation

occurs frequently when the certified worker group is small. Therefore,

the Department is amending the final rule at Sec. 617.4(d)(2) to

authorize State agencies to dispense with the newspaper notice when it

can be substantiated and is documented in the agency's records that all

adversely affected workers covered by a certification have been

identified and have been sent written notice by mail as required by

Sec. 617.4(d)(1)(i).

12. Notices of waivers. The UAW, commenting on Sec. 617.4(e),

stated that workers should be provided with a notice of their right to

seek a waiver of the training requirement and the procedure for doing

so.

Department's response. The Department believes that the regulations

as proposed establish the right of workers to waivers of the training

requirement in appropriate cases, and provide for appeal and review of

determinations on such waivers. State agencies will initiate waivers

where training is not feasible or appropriate. Information that waivers

will be issued to workers when training is not appropriate or feasible

must be furnished to the workers or be included in the bulletin or

brochure furnished to each worker under paragraph (e)(1) of Sec. 617.4.

The Department does not believe that more specificity is required in

paragraph (e)(1). Therefore, no change is made in the final

regulations.

13. Information to workers. The CEDD, commenting on Sec. 617.4(e),

stated that there is some confusion between this section and

Sec. 617.67(c)(2). The CEDD commented that it is not clear whether TAA

information must be provided to every individual who applies for

unemployment insurance, as stated in Sec. 617.67(c)(2), or just to

those certified as adversely affected as implied by use of the word

``worker'' in Sec. 617.4(e). The CEDD recommended, if States are to

provide TAA information to all individuals filing for UI, this

requirement should be clearly identified in the final rule.

Department's response. The Department does not believe that the

regulations are ambiguous on this issue. The 1988 Amendments to section

239(f) state that every worker filing for UI is to be informed of the

TAA program and the benefits available, even though the worker may not

qualify for TAA. The regulations at Secs. 617.4(e)(1) and 617.67(c)(2)

clearly state that each worker who applies for UI shall be advised of

the benefits available under the TAA program and does not confine such

advice to workers who have been identified as adversely affected by

imports. Therefore, no change is made in the regulations.

14. Advice to UI claimants. The OBES commented that

Sec. 617.4(e)(1) requires State agencies to advise each worker who

files for unemployment insurance of TAA benefits available and the

deadlines for applying for such benefits. The OBES requested that the

final rule replace the term ``deadlines'' with ``time limits''. The

final rule should also establish the administrative funding mechanism

for the substantial costs associated with implementing this

requirement. CEDD also commented on a funding issue.

Department's response. The regulations at Sec. 617.4(e)(1) track

the language of section 239(f)(1) of the Trade Act, which provides that

workers shall be informed of the ``deadlines'' for applying for TAA

benefits. Matters of administrative funding are addressed in program

letters and other issuances of the Department and will be addressed

further in Sec. 617.60 when it is published. (See explanation on the

publication of Sec. 617.60 in item Q. above.) No special funding

category is contemplated for furnishing information and assistance to

applicants and potential applicants. Therefore, no change is made in

the final regulations.

15. All UI claimants. The CEDD, commenting on Sec. 617.10(d),

stated that this section contains a statement about providing

``workers'' with TAA information at the time the UI claim is filed. The

CEDD argues that, if the rule means every individual who files a UI

claim, States will have problems meeting this requirement because often

a TAA certification has not been issued when the worker files an

initial UI claim.

Department's response. The 1988 Amendments require the State agency

to inform every worker filing an initial UI claim about the TAA program

and the benefits available under it. There are no exceptions to this

rule. One of the purposes of the amendment is to ensure that workers

are informed of the program at that time so they can file a petition

for TAA if they wish, whether or not a petition has been filed or a

certification issued covering that worker or others. See Sec. 617.4(e).

The Department believes this requirement can be met easily by

furnishing an information bulletin or brochure on the TAA program to

every worker who files an initial UI claim. See discussion in item 8,

above. Therefore, no change is made in the final regulations.

16. Legal work requirement. The UAW commented that the proposed

rules at Sec. 617.11(a)(1)(iii)(C) and (a)(2)(iii)(C) are not reflected

in any provision of the Trade Act of 1974, as amended, nor in the 1988

Amendments. The UAW stated that the Department is trying to enforce the

Immigration Reform and Control Act (IRCA) with this provision. The UAW

argued that if Congress wished to enact such a provision it could have,

but it did not do so. IRCA did not implicitly amend other federal laws.

The Department should not amend the TAA program to enforce IRCA in the

absence of statutory authority and therefore the referenced

subparagraphs should be deleted entirely.

Department's response. The content of Secs. 617.11(a)(1)(iii)(C)

and (a)(2)(iii)(C) is not changed by reason of the 1988 Amendments.

These sections of the regulations merely restate a requirement which

has been in the TAA regulations since they were issued in 1975 in a

different place within the regulations. No substantive change has been

made in this regulatory requirement. These provisions do not implement

the IRCA. Therefore, no change is made to the regulations.

17. Certification period. The NYDL recommended that paragraphs (B)

and (C) of Sec. 617.11(a)(1)(ii) and (a)(2)(ii) be combined to read as

follows: ``(B) Before the expiration of the two-year period beginning

on the date of such certification, or, if earlier, before the

termination date, if any, of such certification.''

Department's response. The Department agrees that this change would

clarify an ambiguity in the statutory language. Therefore, the

regulations are changed along the lines suggested by the NYDL.

18. Job search program. The NYDL recommended that

Sec. 617.11(a)(1)(vii) on the job search program (JSP) be deleted from

the regulations since retroactive TRA claims approved for weeks prior

to November 21, 1988, will no longer require participation in a JSP.

After November 21, 1988, individuals involved will not know about the

requirement. The UAW made a similar comment on the JSP requirement.

However, the UAW commented further that this proposed rule creates a

likelihood that workers will not be informed by State agencies of the

deletion of this requirement in the 1988 Amendments since the

Department is ``encouraging'' States to continue the program.

Department's response. Various provisions of the 1988 Amendments

became effective on different dates. The proposed rule was structured

to address those statutory requirements that applied prior to, and

apply on and after November 21, 1988. The JSP requirement was

applicable through November 20, 1988. The training requirement became

applicable on November 21, 1988. Therefore, it is essential to

delineate the statutory requirements for each time period, and set them

forth clearly in these regulations. Also, appeal actions may be pending

on workers who were denied TRA eligibility because they failed to begin

participation in or failed to complete a JSP. Some of these cases could

eventually be resolved in the courts. The retention of the regulations

on the JSP will continue to provide the basis for supporting

determinations made by State agencies during the period the JSP

requirement was applicable. In the proposed rule, a new paragraph was

added to Sec. 617.49, specifically providing that JSP is not a

requirement for any week which begins after November 20, 1988, and this

provision is included in the final regulations. In addition, the

Department believes that a JSP is a very useful employability service

for adversely affected workers and should be encouraged. Therefore, no

change is made in the final regulations.

19. Temporary work. The OBES commented that Sec. 617.11(a)(3)(iii)

specifies that State agencies are to take into account local labor

market characteristics in giving effect to the terms seasonal

employment and part-time, temporary work. The OBES recommended that the

final rule should provide a definition of temporary work to ensure

uniformity among and between States.

Department's response. As noted in item D. above, the Department

decided to add to the regulations definitions of the terms ``seasonal

employment'', ``odd jobs'', and ``part-time, temporary employment'', to

provide State agencies with guiding instructions for implementing

section 1426(b)(2)(A)(ii) of the OTCA, so that the Department, rather

than the States, defines the limits of Federal liability under

Sec. 617.11(a)(3) as under other aspects of the TAA program. The

explanation for each of these definitions is noted in item D. In more

specific response to the commenter, notice that the definitions go

beyond simply defining temporary work separate and apart from ``part-

time, temporary employment'' as used in the statute. To fit into this

category, as is made clear in the amended regulation, such work must be

both part-time and temporary.

20. Enrolled in training. The Governor of North Dakota and the Job

Service of North Dakota, commenting on Sec. 617.11(a)(2)(vii), point

out that the definition for ``enrolled into training'' is when the

worker has been accepted to an approved training program that will

begin within 30 calendar days. Both recommended that the definition

provide that a worker be considered as enrolled in training upon

acceptance into an approved training program and scheduled to commence

training on the next regularly scheduled program starting date. Rural

States have a limited number of training facilities offering open entry

and open exit options. Virtually all training programs offered by both

public and private facilities have designated enrollment dates. The 30-

day limitation would cause States to invoke the waiver provision

unnecessarily.

Department's response. The Department included the 30-day provision

in the definition for ``Enrolled in training'' to help reduce the

number of waivers of the training requirement that would have to be

issued by State administering agencies because approved training would

not begin immediately. The Department recognizes that schedules for

some training institutions may involve periods longer than 30 days for

training to begin. In such situations, a waiver may and should be

granted. States must search for training programs for individuals which

will begin within 30 days, or as soon as possible thereafter. To allow

fewer days in the definition for ``Enrolled in training'' would

generate more waivers of the training requirement and increase

administrative costs. The Department believes that extending this

period in regulations would be difficult to justify. Under the statute,

the objective of the training requirement is to get workers actively

engaged in training as soon as possible, as a condition of entitlement

to TRA. The 30-day requirement eliminates the need for a waiver where

the training program is to begin within 30 days, but does not subject

the worker to the EB work test while awaiting the start of training.

Accordingly, no change is made in the final regulations.

21. Apparent contradiction with EB work test. The MDLIR commented

that Sec. 617.11(a)(2)(vi)(B) and (vii)(B) and (C), which refer to the

EB work test and the training requirement, appear to be contradictory.

The regulations state that the EB work test and the training

requirement shall not apply to an individual with respect to a claim

for TRA for weeks of unemployment prior to the filing of an initial

claim for TRA, nor for any week which begins before the certification

is issued and the individual is fully informed of the requirement. The

MDLIR points out that the language of these paragraphs appears to

permit retroactive payments of TRA.

Department's response. The Department does not agree with the

commenter. The cited paragraphs of the regulations do not authorize

retroactive payments of TRA. These paragraphs specifically provide that

the requirements for eligibility in clauses (vi) and (vii) may not be

applied retroactively, to workers otherwise eligible for basic TRA,

because workers cannot comply retroactively with those requirements.

This is a ``due process'' issue only. Therefore, no change is made in

the regulations.

22. Completed training. The Unemployed Council of Southwestern

Pennsylvania (UCSP), commenting on Sec. 617.11(a)(2)(vii)(D)(2), stated

that the requirement ``the training occurred subsequent to the

individual's total or partial separation'' goes beyond Congressional

intent. The UCSP argues that in amended Section 231(a)(5)(B) Congress

allowed TRA payments to workers who have ``* * * after the date on

which the worker became totally separated, or partially separated, from

adversely affected employment, completed a training program approved by

the Secretary. * * *'' The UAW also commented along the same lines.

Department's response. The Department agrees with the comments, and

the regulations have been changed accordingly to delete the word

``occurred'' and insert in place thereof ``was completed'' in

Sec. 617.11(a)(2)(vii)(D)(2).

23. Enrolled in training. The Washington Employment Security

Department (WESD), commenting on Sec. 617.11(a)(2)(vii)(D)(1),

recommended that the definition for ``enrolled in training'' be amended

by adding after ``within 30 calendar days'' the words ``or the next

available time the training could begin at the training institution.''

The WESD explained that in the cases where training is not available

within 30 days of approval that to subject the worker to the EB work

test, which means a worker must accept any work the worker is

physically capable of performing, would be to the detriment of the

worker when training is approved and planned for in the foreseeable

future.

Department's response. During the period the EB work test is

applied under Sec. 617.19(b)(3), when the training requirement is

waived, the worker may find suitable employment which would eliminate

the need for additional training. If the State agency determines the

job is not suitable (as defined in Sec. 617.22(a)(1)(ii)), and it is

reasonable and necessary for the worker to quit work in order to enter

training, as provided in Sec. 617.18(b)(1)(iii), the individual may

enter training when the training program begins. Also, see the

Department's response in item 20, above. Therefore, no change is made

in the final regulations.

24. Certain waivers. The PDLI commented that

Sec. 617.11(a)(3)(i)(C) appears to require that a worker must meet all

the requirements applicable to eligibility for basic TRA in the

preceding sections, including the wage and employment qualifying

requirements, with respect to the total separation in

Sec. 617.11(a)(3)(i)(B), to qualify for the waiver of the basic TRA

eligibility period and the 210-day filing requirement under Section

1425(b) of the OTCA. The PDLI commented further that the reference in

Section 1425(b) is to total separations from adversely affected

employment within the meaning of Section 247 of the Act. Section 247

defines both separation and adversely affected employment. The

definitions do not include references to wage and employment qualifying

requirements. Requiring workers to meet these additional conditions

with respect to the total separation noted in section 1425(b) seems to

be beyond the intent of the law. Further, to the extent previous

Federal operating instructions (GAL 7-88) direct the wage requirements,

including equivalent qualifying weeks, be met as provided under the law

prior to the 1986 Amendments, the PDLI believes those instructions are

incorrect and should be revised.

Department's response. The Department does not concur in these

comments. Section 1425(b) does not remove the wage and employment

qualifying requirements of the Trade Act. This section, by specific

reference to sections 233(a)(2) and 233(b), only eliminates the time

limit on the eligibility period for receiving basic TRA and the 210-day

time limit for filing for training to qualify for additional weeks of

TRA. No waiver of any of the other basic eligibility requirements is

implied in removing these two time constraints. Therefore, no change is

made in the regulations.

25. 210-day period. The WESD, commenting on Sec. 617.15(b)(2),

argues that it would be a contradiction for the Department to retain

the present 210-day requirement for requesting training in order to

qualify for additional weeks of TRA rather than applying a movable

eligibility period as used for TRA payments. The NJDL and the MESC also

commented that the 210-day period should begin with the individual's

most recent qualifying separation.

Department's response. The Department agrees with these comments,

and Sec. 617.15(b) is revised accordingly in the final rule. This

change has already been implemented through Change 2 to GAL 7-88 and

reiterated in GAL 15-90, both of which were also previously published

as notices in the Federal Register. This change is effective for

decisions made on or after August 23, 1988, when the movable

eligibility period took effect. However, as this change was not

included in the proposed rule, a 30-day comment period is provided in

this final rule. (See the explanation above in item C.)

26. Scheduled breaks in training. The UAW, commenting on

Sec. 617.15(d)(1), pointed out that amended section 233(f) provides

that a worker shall be treated as participating in training during a

week which falls in a break of 14 days or less, if the worker was

participating in training before the break and ``the break is provided

under such training program.''

The UAW points out that the proposed rule adds the requirement that

the break be ``provided in the published schedule of the training

program.'' While ``publication'' might ease administration, there are

some individualized training programs which do not have published

schedules. Therefore, the UAW recommended that ``previously

established'' schedule as an alternative formulation which would permit

workers in less academic settings to continue to receive TRA as

Congress intended, but prevent nonparticipating workers from arguing

they were merely ``on break.''

Department's response. The Department does not believe such a

narrow reading need be given to the word ``published,'' but has

clarified the regulations by modifying Sec. 617.15(d)(1) to add after

the ``published schedule'' the words ``or previously established

schedule'' and by adding that the break may be indicated in the

training program approved for the individual. The intent is to ensure

that ``breaks'' in training during which TRA payments may continue are

not limited to regularly scheduled breaks established by the training

provider before the program begins but also include all other periods

of time elapsing between courses or phases of the approved training

program. Therefore, the changes made in this final rule with respect to

this matter go beyond the comments received, and, as explained in item

F. above, a new clause (2) is added to Sec. 617.15(d) to define a

scheduled break in training as including scheduled breaks within or

between courses, terms, quarters, semesters, and academic years,

whether or not such breaks are scheduled by the training provider.

27. Before and after break. The PDLI commented that

Sec. 617.15(d)(1)(i) requires, in addition to other requirements, that

the worker be participating in training immediately prior to the break

and resume participation immediately after the break ends. The PDLI

recommends that this provision might be stated better by changing the

final regulation to participating in training for the week claimed

prior to the beginning of the break and resuming participation for the

week claimed at the end of the break.

Department's response. The Department believes the commenter's

suggestion would introduce some ambiguity in the wording of the

regulations. However, Sec. 617.15(d)(1) is revised to reflect the

change announced in GAL 15-90, and set forth in Section E.3., Payments

of TRA During Breaks in Training, in Attachment A to GAL 15-90. Section

233(f) provides for the payment of basic and additional TRA ``during

any week which is part of a break in training'' provided certain

conditions are met. The conditions are spelled out in

Sec. 617.15(d)(1), clauses (i) through (iii). In addition, as a

condition of TRA eligibility during the break, Sec. 617.15(d)(1) is

amended to restate the requirement that the worker shall be required to

participate in training after the break ends. This will assure that the

purpose of Section 233(f) is carried out. Section 617.15(d)(1)

accordingly is modified by removing the ``resume participation''

condition from clause (i) and restating it in clause (iii), with

emphasis upon ``immediate'' resumption of participation.

28. Break delay. The ODHR, commenting on Sec. 617.15(d)(1)(i),

explains that by including the phrase ``and resumes participation'' as

a condition for payment means that no payment for the break can be paid

until the break is over and this is verified. The ODHR states that this

contradicts the intent of the rule that ``An individual will continue

to receive basic and additional weeks of TRA during scheduled breaks in

training'' and would create problems if the break fell within the

individual's scheduled reporting period. The NYDL provided similar

comments on Sec. 617.15(d)(1)(i).

Department's response. The Department agrees that it is not the

intent of this regulation to delay TRA payments during scheduled breaks

in training that do not exceed 14 days. However, if a worker fails to

resume participation in the training immediately after the break ends,

any payments made during the scheduled break shall be established as

overpayments, subject to repayment under the provisions of Sec. 617.55.

Therefore, no change in the regulations is necessary to reflect this

intent.

29. Inconsistency. The MESC, commenting on Sec. 617.15(d)(2),

stated that no basic TRA may be paid if the individual is on a

scheduled training break of 15 days or more. The MESC stated that

denial of TRA to a claimant during a break which exceeds 14 days, but

less than 30 days, is inconsistent with the definition of ``enrolled in

training'' in Sec. 617.11(a)(2)(vii)(D)(1), which allows payment of TRA

to a claimant who will enter training within 30 days. A claimant during

a break in training of less than 30 days should be considered enrolled

in training and eligible for basic TRA.

Department's response. The purpose of these two provisions is not

similar, nor is there a basis in the statute for altering the specific

14-day provision of section 233(f). The 14-day break in training

provision is a statutory requirement and not subject to change in

regulations. On the 30-day provision, see the discussion in item 20

above. Therefore, no change is made in the final regulations.

30. Holidays during breaks. The West Virginia Department of

Employment Security (WVDES) commented that, in counting days of breaks

under Sec. 617.15(d)(3), Saturdays and Sundays are not counted but

holidays are counted. The WVDES recommends that for purposes of

counting the days in a break, holidays not be counted along with

Saturdays and Sundays. The MESC, NYDL and the Oregon Department of

Human Resources (ODHR) provided similar comments.

Department's response. The Department agrees that recognized legal

holidays should not be counted, and has already acknowledged this

change in section E.3. of Attachment A to GAL 15-90 (also see page 3 of

the GAL). Ordinarily, breaks in training are oriented to National and

State holidays, and to periods within terms or semesters of the

training institution. The one long holiday oriented break each year is

the holiday beginning around the second or third week in December and

ending after New Year's Day. Since these holidays are the reason for

the break, the Department agrees that such holidays should not be

included in counting the number of days of the break. The critical

point is whether a particular day would ordinarily be a scheduled

training day in the particular training program. Therefore, official

State and National holidays are added to the days not counted in

counting the days of a break, if training in the program concerned

would not normally be scheduled on such days. (See the explanation in

item F. above.)

31. EB work test. The MESC, commenting on Sec. 617.17(b)(2), stated

that this section indicates that on or after November 21, 1988,

claimants in training which is State approved (but not TAA approved)

must satisfy the EB work test. The MESC further states that before

November 21, 1988, the EB work test was not applied to claimants in

State approved training. The MESC argues that there should be no change

in the exception to the EB work test on or after November 21, 1988.

Section 231(a)(4) of the Trade Act, unchanged by the 1988 Amendments,

requires that to be eligible for TRA, a worker would not be

disqualified for EB due to the work test. An EB claimant in State

approved training would not be disqualified.

Department's response. The commenter incorrectly reads section

231(a)(4) and the effect of the substantive amendment to section

231(a)(5), which was effective on November 21, 1988. Prior to November

21, 1988, for the purposes of basic TRA, participation in training

approved under the State law or under Sec. 617.22(a) was sufficient to

make the able and available requirement, including the EB work test,

inapplicable. The amendment to section 231(a)(5) makes training

approved under section 236 an eligibility requirement for basic TRA,

effective on November 21, 1988. After November 20, therefore, claimants

for basic TRA may not satisfy the requirement of section 231(a)(5), or

avoid the EB work test, by participating in training which is not

approved under section 236. The Department's position was clearly set

forth in section 4.C. of GAL 7-88, and was reiterated without change in

section C. of Attachment A to GAL 15-90; it also is correctly stated in

Secs. 617.11(a) (2), (3), and (4) and 617.17(b) of the proposed rule

and is retained in this final rule.

To give full effect to the 1988 Amendments, moreover, the EB work

test must apply even after the TRA claimant has satisfied the

requirement of Section 231(a)(5) by completing a training program

approved under amended Sec. 617.22(a), (see Section C. of Attachment A

to GAL 15-90). Having completed such training, the individual should be

job ready, and should be actively seeking work so as to return to

employment as soon as possible. It is particularly appropriate in these

circumstances, therefore, that the EB work test of section 231(a)(4)

should apply in regard to any further claims for basic TRA. It would

not accord with these purposes to permit the claimant to avoid the EB

work test by engaging in any other training that is not approved under

amended Sec. 617.22(a). The Department has concluded, and the final

regulations provide, therefore, that the EB work test must be met by

every claimant for basic TRA, unless the claimant actually is enrolled

in or participating in TAA approved training as specified in the Trade

Act and in these final regulations. This requirement applies as well to

claimants who have completed TAA approved training, with respect to any

claim for basic TRA for any week beginning after completing the

training program. For the foregoing reasons, no change is made in the

final regulations.

(Note: section 202(b) of the Unemployment Compensation

Amendments of 1992 added paragraph (7) to section 202(a) of the

Federal-State Extended Unemployment Compensation Act of 1970, which

suspends the eligibility and requalification requirements of

paragraphs (3) and (4) of section 202(a) for the weeks beginning

after March 6, 1993, until January 1, 1995. GAL No. 7-93, 58 F.R.

21477, makes this change applicable to the TAA Program and should be

used for guidance with respect to this issue. This change is not

incorporated into the final regulations because it is a temporary

suspension.)

32. Justifiable cause. The American Federation of Labor and

Congress of Industrial Organizations (AFL-CIO), commented on

Sec. 617.18(b)(2)(i), regarding an individual who ``* * * fails to make

satisfactory progress in training,'' and on Sec. 617.18(b)(2)(ii)(C),

Justifiable cause, including reasons related to the individual's

capability to participate in or complete approved training. The AFL-CIO

recommends that, since educational limitations are a common reason for

failure to profit from job training, such individuals should be

promptly evaluated as to the need for remedial education, as authorized

under the 1988 Amendments.

Department's response. The Department agrees that training must be

suitable for the worker. The fifth criterion in section 236(a)(1)

requires a supported determination that a worker is qualified to

undertake and complete the training being approved. See section G.1. of

Attachment A to GAL 15-90 and section 4.G.1. of GAL 7-88, and

Sec. 617.22(a)(5). This provision emphasizes the worker's personal

qualifications; that is, that the worker's own physical and mental

capabilities and background and experience are appropriate to the

training. It states further that the worker must be evaluated before

approving training as being qualified to undertake the specific

training program being considered and to complete that training program

successfully. If the worker needs remedial education, this should be

identified and included as a part of the approved training program. If,

during the training program, the need for remedial education becomes

apparent, appropriate arrangements should be made to accommodate those

needs as part of the same training program. Therefore, while the

Department agrees with the comment, no change is needed in the

regulations to accomplish this intent. However, the worker's personal

qualifications in Sec. 617.22(a)(5) are amended by adding financial

resources to the existing qualifications to undertake and complete the

training being approved. Item J., above, explains the change and the

Department's reasons for the change.

33. Satisfactory progress in training. The PDLI commented that

several paragraphs in the proposed rule refer to ``making satisfactory

progress'' in training. This language was amended in section 233(a) of

the Trade Act effec- tive on November 21, 1988, to ``participating'' in

training, and section 236(c) was repealed. The PDLI recommends that

unless these sections refer to the law prior to November 21, 1988, this

language only serves to confuse and should be revised or deleted. The

UCSP and UAW made similar comments on the requirement in the proposed

rule that the worker must have ``successfully'' completed an approved

training program to meet the training completion requirement of amended

Section 231(a)(5).

Department's response. The Department has reconsidered these

matters and agrees that the comments on ``satisfactory progress'' have

merit. References to ``satisfactory progress'' have therefore been

removed from Secs. 617.11(a)(3)(i)(D), 617.15(b)(3), 617.18(b)(1)(ii)

and (iii), and 617.18(b)(2)(i). The references to ``successfully''

completed and ``satisfactory'' completion of training are also removed

from Secs. 617.11(a)(2)(vii) (A)(2) and (D)(2). However, the conditions

for ``completed training'' in Sec. 617.11(a)(2)(vii)(D)(2) are

retained. To meet the requirements of section 231(a)(5) of the Act, it

is reasonable to expect an individual who completed a training program

to have satisfied the standards or conditions for the training program

and, therefore, to have ``successfully'' completed such training in

order to be job ready. Further, in connection with making this

correction in Sec. 617.11(a)(3)(i)(D), the language is modified to make

it clearer that an individual must actually be enrolled in or

participating in approved training in each week that TRA is claimed,

and that, while the break in training provisions of Sec. 617.15(d)

apply, the waiver of participation provisions of Sec. 617.19 shall not

be applicable under paragraph (a)(3).

34. Waiver appeals. The PDLI commented that Sec. 617.19(a)(2)

provides the minimum information that shall be contained on the waiver

of training participation. (Sec. 617.19(c)(3) provides for equivalent

information on the waiver revocation form.) These minimum information

items do not include an appeal date, or instructions for appeal.

However, Sec. 617.19(c)(4) appears to state that waivers and waiver

revocations shall be appealable. The PDLI suggests that the issuance of

waivers and waiver revocations should not be appealable determinations;

rather, these documents are prerequisites to determinations of

entitlement to TRA payments, and these latter determinations should be

appealable. The PDLI recommends further evaluation of this regulation.

Department's response. The 1975 regulations required that all

determinations relating to TAA program benefits shall be subject to

appeal and review, as specifically required by section 239(d) of the

Trade Act of 1974. That requirement continues in effect and is

correctly implemented in the regulations in providing that Secs. 617.50

and 617.51 shall apply to all determinations regarding waivers, as well

as any determination pertaining to any other TAA program benefit.

Waivers have a direct relationship to basic TRA entitlement. The

Department does not believe it would be appropriate to provide that an

individual should be denied the right to appeal a determination issued

by the State agency that training is not feasible or appropriate, or

that written notice of such determinations (granting, denying, or

revoking a waiver) should not include notice of appeal rights.

Consideration of the comments, however, reveals that there appears

to be some lingering uncertainty about the scope of the waiver

provision and the appeal rights of individual workers, and the

reexamination of the language proposed for Sec. 617.19 underscores the

need for some clarification of the regulatory language so as to express

the scope of the waiver provision more accurately and to declare

unmistakably the appeal and review rights of individuals in regard to

all determinations relating to waivers.

Paragraph (a)(1) of Sec. 617.19 thus is revised to state more

accurately the scope of the waiver provision, and to state explicitly

that a waiver pertains solely to basic TRA and may never be made

applicable to additional TRA. Paragraph (a)(2) is revised so as to be

more explicit about the application of the waiver provision, and to

provide that waiver determinations shall include all of the information

required by Sec. 617.50(e), which thereby requires inclusion of notice

of appeal rights in any such determination. This is in addition to

other information specified in paragraph (a)(2) that is required to be

furnished in the determination.

Other important changes in paragraph (a) of Sec. 617.19 are the

addition of clauses (3) and (4). Clause (3) is added to make certain

that denial of a waiver also is a determination to which all of the

requirements for determinations apply. Clause (4) is a restatement of

the provision proposed in paragraph (c)(4), and is moved in paragraph

(a) and revised to make more explicit the application of Secs. 617.50

and 617.51 to all determinations under paragraph (a) and to provide

expressly that this means and includes notice of appeal rights.

Conforming changes are made in other paragraphs of Sec. 617.19,

most significantly including a combining of the provisions of clauses

(3) and (4) of paragraph (c) into a revised clause (3), and deleting

the proposed clause (4). This revision makes clear that waiver

revocations are determinations to which Secs. 617.50 and 617.51 apply,

and that such determinations shall include all of the information

required for determinations under paragraph (a), including notice of

appeal rights.

35. Waiver revocation. The NYDL commented on Sec. 617.19(a)(2)(iv),

which mandates inclusion of the statement that the ``waiver will be

revoked at any time suitable training becomes available.'' This

statement would be appropriate only for waivers issued because suitable

training is not currently available; however, there are numerous

situations in which training may become available and yet a revocation

of waiver would not be appropriate. Accordingly, the NYDL recommended

the following statement as more appropriate: ``This waiver is subject

to review at 30 day intervals.'' This would afford the states the

needed latitude to assess the continuing validity of a waiver should

training become available but remain inappropriate.

Department's response. The Department agrees that the qualifying

wording is too narrowly focused, but does not agree on affording States

the broad latitude suggested by the NYDL. Accordingly,

Sec. 617.19(a)(2)(iv) is revised by deleting the term ``suitable

training'' and inserting in place thereof ``appropriate and feasible

training'' as provided in amended section 231(c)(2) of the Act.

36. Waiver reasons. The UAW commented that Sec. 617.19(b)(2)(i) as

drafted should be of substantial assistance to State agencies in

administering this provision. The UAW suggested that, for clarity, the

Department repeat the criteria that ``the worker is so situated as to

be able to take full advantage of the training'' at this point in the

rule.

Department's response. The Department believes that

Sec. 617.19(b)(2) adequately covers the reasons for issuing a waiver

when training is not feasible or appropriate. The UAW's point is

covered under the criteria for approval of training. Therefore, no

change is made in the regulations.

37. Training limitation. The Nebraska Department of Labor (NDL)

commented that Sec. 617.19(b)(2)(ii)(B) indicates that a course of

training is not appropriate if the duration of training exceeds the

individual's maximum entitlement to TRA payments. This would seem to

limit appropriate training to a duration of 52 weeks when initial UI

eligibility is 26 weeks. If this is the actual effect, it ignores the

fact that an individual may enter training during the initial UI

benefit period. When the individual enters training during the UI

eligibility period, a training program of up to 78 weeks might be

completed before exhausting TRA benefits. It seems further to preclude

the possibility for an individual who enters training during the first

13 weeks of UI to be eligible for needs based payments under EDWAA

during the portion of a training period which might extend beyond the

end of TRA eligibility. If this section in fact has these effects, they

may be unintended, and should perhaps be reconsidered.

Department's response. The TAA provisions of the Trade Act

authorize the State to approve training for a worker for up to 104

weeks; however, the maximum combined duration of UI and TRA payments

generally is 78 weeks. If a training program longer than the worker's

remaining eligibility for UI and TRA payments is being considered, the

State administering agency should ensure that the individual has the

financial resources to complete the training program after TRA payments

expire. If such an assurance cannot be made, a training program of

shorter duration should be considered for approval. The Department

therefore agrees that the regulation is too strictly worded, and

Sec. 617.19(b)(2)(ii)(B) is clarified in these final regulations. (See

discussion in item J. above, on Revision of Sec. 617.22(a)(5).)

38. Reasons for waiver. The VDET, commenting on

Sec. 617.19(b)(2)(ii)(C), concerning reasons for issuing a waiver,

asked why, after 26 weeks of UI, a person with skills for suitable

employment has not become reemployed already. Simply allowing a waiver

to be granted at this point in a person's unemployment seems to be at

odds with the intent of all of the recently enacted Federal retraining

legislation, and may actually exacerbate a situation where the worker

has not been receiving the proper services which would result in new

employment. The VDET recognized that there may be some circumstances

where it would be unfair to the worker not to receive a waiver based on

this condition. However, the VDET recommended making this condition an

extreme one, by not specifically identifying it as a reason to grant a

waiver.

Department's response. The Department agrees that waivers should

only be issued on a limited basis. As reflected in the VDET comment,

however, there may be situations where such waivers are properly

warranted. For example, when a firm agrees to employ a worker in the

foreseeable future, no purpose would be served by having the worker

enter training to learn other occupational skills. Therefore, the

Department sees no need to make any change in the regulations.

39. Every 30 days. The PDLI recommended that the parenthetical

phrase ``(i.e., every 30 days or less)'' in Sec. 617.19(c)(1) be

deleted as an unnecessary guideline with which compliance could be

impossible. The OBES presented similar comments that the final rule

should reflect administrative and logistical realities by specifying

such period for waiver review to be 60 days. Basic TRA payments should

be made once a waiver has been issued until such time as the waiver is

revoked, and not require documentation of such waiver reviews on an

ongoing or routine basis. The CEDD also recommended that the frequency

of waiver reviews be changed to 60 days. The MESC recommended that

waivers be reviewed every 90 days, while the ODHR recommended that the

State have more flexibility in the frequency for reviewing waivers. The

NJDL recommended that States be given authority to establish procedures

for reviewing appropriate waivers.

Department's response. A major objective of the 1988 Amendments is

to enroll adversely affected workers in training programs to help

facilitate their return to employment as quickly as possible. The

Department believes that, when the training requirement is waived for

an individual, proper program administration necessitates regular

reviews of waivers issued by the State agencies. The frequency of such

reviews at 30-day intervals is reasonable to carry out the provision

requiring adversely affected workers to be enrolled in training for

purposes of receiving TRA, particularly in light of the fact that TRA

is a weekly benefit program and the 30-day rule only requires review

approximately every four weeks. Section 231(c)(2)(B) provides that

``If, after submitting to a worker a written statement * * * a State or

State agency finds that it is feasible or appropriate to approve a

training program for such worker pursuant to the requirements of

section 236(a), the State or State agency shall submit to such worker *

* * a written statement that revokes the certification * * *.'' To

review waivers less frequently than every 30 days would not give the

sense of urgency reflected in the law on placing adversely affected

workers into training programs as soon as possible.

However, the comments highlight an omission in the regulations, in

that, in individual cases, when circumstances change, the need to

revoke a waiver may arise earlier than the next periodic review, and,

accordingly, necessitate action to revoke the certification before the

next review date. Therefore, Sec. 617.19(c)(2) is amended to require

revocation in individual cases at any time a change in circumstances

occurs.

40. Waiver determinations appealable. The MESC, commenting on

Sec. 617.19(c)(4), stated that waiver actions should not be appealable

determinations. If training is being denied, the denial and any appeal

should come on the training determination, not on the waiver.

Otherwise, duplicative appeals and confusion of issues will result. The

waiver form should contain an explanatory statement, such as: ``If you

disagree with this waiver action, you have the right to appeal any

denial of training or trade readjustment allowances (TRA) that results

from this action.''

Department's response. See discussion under item 34, above. A

determination on the feasibility and appropriateness of training, and

the reason(s) therefor, constitutes the critical determination on

whether a worker is subject to the EB work test regarding claims for

basic TRA. Equally important is the relevance of a waiver in some

cases. For example, a waiver is not appropriate concerning entitlement

to additional TRA, because additional TRA is payable only while the

worker is actually participating in training, and, in that case, the EB

work test is not applicable. Similarly, a waiver is not appropriate

during breaks in training. It is not needed if the break is not more

than 14 days. A waiver is not appropriate if the break is more than 14

days, since payment of basic or additional TRA in this case would be

inconsistent with sections 231(a)(5), 233(a)(3), and 233(f). It is

clear, therefore, that the determination resulting in the issuance,

denial or revocation of a waiver presents justiciable issues, and,

accordingly, determinations relating to waivers must be subject to the

right of appeal and review. To deny the right of appeal and review on

justiciable issues cannot be justified. Paragraph (c)(4) of

Sec. 617.19, therefore, has a sound basis in law, and is unchanged in

the final rule.

41. Recording waivers. The NYDL, commenting on Sec. 617.19(d)(1),

stated that recordkeeping and reporting of waivers issued and revoked

by reason constitutes a very real problem in that the agency relies on

time consuming manual systems. Any requirement in this regard must be

accompanied by appropriate levels of administrative funding,

specifically for this purpose, in order to yield reliable data.

Department's response. The regulations at Sec. 617.19(d) (1) track

the language of section 231(c)(3) of the Trade Act, which provides that

the Secretary shall submit an annual report to Congress on the number

of waivers issued and the number revoked. As explained in item 14

above, matters concerning the administrative funding for all TAA

activities are addressed in program letters and other issuances of the

Department and will be addressed further in Sec. 617.60 when it is

published. No special funding category is contemplated for this item.

Therefore, no change is made in the final regulations.

42. Reemployment plans. The NYDL commented that to require monthly

reviews of individual reemployment plans, as implied in

Sec. 617.20(b)(13), would not serve the worker in a constructive way,

and to interview every adversely affected worker needlessly would place

an unreasonable burden on the agency when there is a minimum amount of

funds available for staff costs. The PDLI and the NJDL provided similar

comments.

Department's response. The Department concurs in the comments. It

is not the Department's intent to have State agency staffs review

individual reemployment plans every 30 days, as is required for waivers

of the training requirement. Therefore, the rule is modified to provide

for periodic review and updating of reemployment plans, as may be

appropriate, in individual cases. The review of waivers, which is

required no less frequently than every 30 days under Sec. 617.19(c)(1),

is addressed in a new clause (14) in Sec. 617.20(b).

43. Work in the ``foreseeable future''. The UAW, commenting on

Sec. 617.22(a)(1)(ii), stated the proposed rule provides that training

can be denied if there is a reasonable prospect of suitable work within

the ``foreseeable future.'' The statute does not include this element,

providing instead that there must be ``no suitable employment

available'' to the adversely affected worker. The UAW argues that under

the proposed rule, a worker could be denied TRA because training was

not approved due to foreseeable work, even though the worker had no job

to enter. The UCSP provided similar comments and recommended that the

last part of the rule be eliminated.

Department's response. This provision was incorporated in the

regulations to preclude the approval of training when the worker is

clearly scheduled to be employed or recalled. For that worker, suitable

employment is ``available'' if the employment may occur in the

foreseeable future. The purpose of including the provision in the rule

is to give meaning to the first criterion of section 236(a)(1) and help

preserve limited training funds for use by workers who need such

assistance to return to employment. Labor-management agreements

frequently provide for worker recall on a seniority basis. When recalls

are scheduled in the foreseeable future, workers clearly do not need

training in order to return to employment. In such situations, a waiver

of the training requirement is appropriate and shall be issued by the

State administering agency. Therefore, no change is made in

Sec. 617.22(a)(1)(ii) of the regulations. However, as explained in item

H. above, guidance is added in Secs. 617.19 (b)(1)(i)(B) and

(b)(2)(ii)(A) for use by State agencies on the application of recall

that will occur in the ``reasonably foreseeable future.''

44. Suitable employment. The AFL-CIO, commenting on

Sec. 617.22(a)(1)(ii), pointed out that the term ``suitable

employment'' means work at no less than 80 percent of the worker's

average weekly wage in such adversely affected employment. Since job

benefits such as health insurance and pension entitlement must be

coupled with wages to determine the total compensation of a position,

this definition should be expanded to include ``and benefits valued at

not less than 80 percent of those provided in the worker's adversely

affected employment.''

Department's response. The regulation uses the definition in

section 236(e), and any change such as that suggested would require a

change in the law. Therefore, no change is made in the regulations.

45. Adversely affected wage. The MDLIR, commenting on

Sec. 617.22(a)(1)(ii), explained that suitable employment is defined in

the proposed rule as work of a substantially equal or higher skill

level than the worker's past adversely affected employment and wages

for such work at not less than 80 percent of the worker's average

weekly wage in such adversely affected employment. The MDLIR asks why,

since there does not appear to be a change in the law, the regulation

was changed from average weekly wage to average weekly wage in

adversely affected employment? In addition, the definition of average

weekly wage in adversely affected employment makes reference to partial

separation which, for separations on August 23, 1988 or later, will no

longer establish TRA eligibility.

Department's response. The Department agrees that the definition of

``average weekly wage in adversely affected employment'' is used

appropriately only in the definition of ``partial separation,'' and the

definition of ``suitable work'' in section 236(e) does not include the

reference to adversely affected employment. Therefore, to fully accord

with the statute, the phrase ``in such adversely affected employment''

is removed from Sec. 617.22(a)(1)(ii).

46. Training cost limit. The UAW, commenting on Sec. 617.22(b),

pointed out that the Conference Committee rejected a proposed $4000 per

worker limit on training costs, stating that ``it is inappropriate to

establish a ceiling on training and related costs for individual

workers since such costs may vary significantly from one region of the

country to another and from one worker dislocation to another.'' The

Department cannot give the States the authority to do indirectly what

the Congress decided it would not let the Department do directly. The

UAW recommended that this proposal should be dropped. The UCSP provided

similar comments. The MESC also commented that it is contradictory to

require States to establish a single maximum amount and then indicate

that States should take into consideration the type of occupational

training, duration of training, etc. The different types of training

and varying durations render a single maximum cost meaningless. By

applying Sec. 617.22(a)(6)(iv)(B), there will be sufficient cost

control. Section 617.22(a)(6)(iv)(B) requires comparison of training

similar in quality, content and results at different training

facilities, and approval of the lowest cost training. Also, the ODHR

recommended that more guidelines are needed in order to define the

``maximum amount allowable for the total costs of training.''

Specifically, ODHR is concerned with overcoming inequities in setting

an amount both for individuals in a rural area without training

facilities and for individuals in an urban area with training

facilities. The ODHR asked if it is the intent for the maximum amount

allowable, because the cost of subsistence or mileage is part of the

cost of training, to limit the kinds or duration of training for

individuals in rural areas.

Department's response. The Department agrees with the comments and

is amending this section by eliminating the requirement that States

establish, annually, a maximum amount allowable for the total cost of

training for each worker. While the Congress did not establish a

national ceiling for the costs of training for individual workers, the

Conferees did state in the Conference Report that they expected the

Secretary of Labor to set forth guidelines for State administering

agencies to provide approved training at the lowest reasonable cost for

the particular type of training in that region consistent with the

objective of assisting import impacted workers to obtain suitable

skills to return to work as quickly as possible. The 1988 Amendments

clearly provide that State administering agencies shall approve

training for individual workers at the lowest reasonable cost which

will lead to employment and will result in training opportunities for

the largest number of adversely affected workers. This means that State

administering agencies should avoid approving training for occupations

that require an extraordinarily high skill level relative to the

worker's current skills level and for which total costs of training,

including transportation and subsistence, are excessively high. While

the final regulations eliminate the requirement for States to establish

a maximum amount allowable for the total costs of training, they

continue to provide that States approve training at the lowest

reasonable cost for the particular type of training in that region that

will lead to employment and will enable the worker to obtain employment

within a reasonable period of time.

47. Child care. The WESD, commenting on Sec. 617.22, stated it

believed that child care is equally important as transportation and

subsistence to include as a cost of training. The WESD recommended that

child care be included under the definition for supportive services, as

is transportation and subsistence. The WESD states that the 1981

Amendments do not permit self-financed training and require TAA or

other Federal, State, or private sources to ``pay the full costs of the

training.'' Washington contends that the lack of child care would, in

fact, require self payment of training costs and it should be included

as part of the reasonable costs of training.

Department's response. Section 236(b) authorizes transportation and

subsistence expenses applicable to training. Child care is a supportive

service to be obtained for individuals under section 235 of the Act

(and Sec. 617.21(e)), and is not a training cost in the TAA program.

Funds for the administration of sections 225, 231 through 235, 243 and

244 of the Trade Act are appropriated in the State Unemployment

Insurance and Employment Service Operations (SUIESO) account. The

SUIESO account includes funds for the administration of section 235

activities but not for the direct payment of supportive services for

certified individuals. Since child care is a supportive service

authorized by section 235 to be provided if available under ``any other

Federal law'', no TAA funds are appropriated for such services.

The Department's position is that the State administering agency,

in carrying out its responsibilities under section 235 and

Sec. 617.21(e), should make every reasonable effort to secure for

adversely affected workers covered by a certification any supportive

services, including child care, which are obtainable under any other

Federal law, to help individuals in training and to obtain employment.

No change is made in the regulations, but Sec. 617.21 is amended to

make clear that supportive services are to be provided under other

Federal law and may include child care.

48. Other source funds. The MESC, commenting on Sec. 617.24(e),

stated that this rule allows approval of training for which all, or any

portion, of the cost of training is paid ``from any other source''. The

MESC points out that the rule does not sufficiently define acceptable

funding sources. Some limits are necessary. Acceptable funding sources

should be limited to recognized employment and training programs,

including employer training funds. Such funding sources as friends,

relatives, and fraternal organizations should not be acceptable, but

Sec. 617.24(e) does not preclude them.

Department's response. The Department concurs in this comment and

has modified Secs. 617.24(e)(2) and 617.25(b)(1) to clarify that other

funding sources may not include sources personal to the individual,

such as self, relatives, or friends. This is consistent with the

Department's prior position on this matter.

49. Equal monthly installments. The MESC questioned the application

of the requirement in Sec. 617.25(a) that employers be paid in equal

monthly installments for on-the-job training (OJT) programs. The MESC

stated that problems are associated with trainees entering OJT programs

in the middle of the month, trainees receiving raises in wages during

the month, and trainees working different hours. The MESC explained

that it has attempted to satisfy the intent of the equal monthly

payment requirement by having the employer bill for the trainee's hours

in training during the month, which results in approximately equal

monthly payments. The Governor of Idaho and the WESD presented similar

comments on Sec. 617.25. The Governor stated that the proposed rule

will require Idaho and possibly many other States to incur additional

administrative costs to pay for tracking OJT reimbursements. The WESD

suggested that reimbursement to employers for actual hours worked by

the trainee, on a monthly basis, would eliminate overpayments.

Department's response. The Department recognizes that the statutory

provision requiring payments for OJT to be made to employers in equal

monthly installments is presenting problems in negotiating and

reimbursing employers for OJT contracts. In negotiating OJT contracts

with employers, reasonable costs should be based on the achievement of

a prescribed level of job skills, rather than being based solely on the

hourly wages of the worker. The hourly wages should serve only as a

guide for establishing OJT contract costs. A raise in the worker's

wages implies increased proficiency of the worker and higher

productivity, and may not form the basis for increasing training costs.

Once the cost of OJT for a worker is established, payments can be made

in equal monthly installments, with any required adjustment made in the

final payment to the employer.

What appears to be troubling to States in administering this

provision is thinking of equal monthly installments in terms of equal

``dollar'' amounts. Instead, it appears most reasonable to base the

``equal monthly installments'' on the number of hours of paid work

during the month, multiplied by the agreed upon rate of payment.

Although this would not assure the same dollar figure for each month,

it is nonetheless ``equal'' in the sense that the payment for each

month is computed at the same rate. This method would appear to ad-

dress the concerns expressed in the comments received, and may be

accomplished under the present reading of Sec. 617.25(a). For these

reasons, no change is made in the regulations.

50. Pell and similar grants. The ODHR, commenting on

Sec. 617.25(b)(4)(i)(A)(2), stated the rule is clear that when the

direct payment of the costs of training has been made under any other

Federal law, or the costs are reimbursable under any other Federal law

and a portion of the direct costs has already been paid under such

other Federal law, payment of such training costs may not be made from

TAA funds. The ODHR points out, however, that grants, such as Pell

Grants, are often paid directly to the institution to be applied toward

tuition. The ODHR feels this contingency should be addressed here and

that these funds should be allowed in these cases in determining costs

payable from TAA funds for training.

Department's response. The Department agrees that complications are

presented in considering appropriate TAA funding in the case of Pell

Grants and similar Federal educational assistance. Section

617.25(b)(4)(ii)(C) provides, in implementing section 236(a)(4)(C),

that such federal educational assistance paid to the individual may not

be taken into account in determining payment of the costs of training

from TAA or other funds, but such payments to the individual shall be

deducted from TRA under Sec. 617.13(c)(2). Conversely, when such

Federal educational assistance is paid to the training institution, to

the extent it is used for training costs otherwise payable from TAA

funds, it must be taken into account in determining the training costs

payable from TAA funds, either alone or in combination with other

funds. To clarify this matter, the regulations at

Sec. 617.25(b)(4)(ii)(C) are modified; combination funding is otherwise

addressed in more detail in the completely revised Sec. 617.25.

51. OJT approval. The AFL-CIO recommended that additional standards

be added in Sec. 617.25(a) concerning the approval of on-the-job

training agreements. Further, the AFL-CIO recommended that since

employers available to provide OJT under TAA have offered such training

under JTPA, those who failed to meet JTPA requirements should be barred

from receiving TAA funds for such training. Such a requirement is

clearly in keeping with the emphasis on coordination of TAA program

activities with the JTPA Title III program.

Department's response. The requirements in Sec. 617.25(a) are based

on existing statutory language, and provide adequate protection to

workers from adverse effects under OJT training contracts. The

Department agrees that contracts under the TAA program for OJT should

not be entered into with employers who failed to meet JTPA

requirements. While Sec. 617.25 (a)(9) and (a)(10) are intended to

avoid such situations, the final rule is clarified to help ensure that

employers who violated a JTPA training contract will be denied TAA

training contracts. The words ``or under any other Federal law'' is

added after ``this Subpart C'' in paragraph (a)(9) of Sec. 617.25, with

another addition at the end of paragraph (a)(9) to make this point

clear.

52. Information on waivers. The UCSP, commenting on Sec. 617.67(c),

argues that workers should be furnished information on applying for a

waiver of the training requirement in order to receive TRA payments.

Department's response. The Department does not believe a specific

provision is needed for the reasons explained in the response to item

12, above.

53. Homework. The Amalgamated Clothing and Textile Workers Union

(ACTWU) commented that a major problem has recently arisen which

affects workers, when the Department lifted the restrictions

prohibiting homework in five of the six industries, and announced it

will shortly lift the re-straints on homework in the women's and

children's apparel industry. While this matter is not finally resolved

due to court challenges, the TAA regulations have to anticipate the

situation of potentially extensive homework in these industries.

Department's response. This issue is beyond the scope of the 1988

Amendments to the TAA program, and the final rule in this document.

Other changes. In addition to the changes discussed above in

responses to comments received, other changes are made in the final

rule in this document to correct printing errors, and to make technical

and conforming changes that either do not affect the substance of the

regulations, or, in the case of other provisions (including the

transition provisions of Sec. 617.67), are necessary to conform to

other changes in the final regulations. Further, references to

compliance with ``the Act and this Part'' are changed to eliminate

references to the Act so that it is clear that the regulations are

controlling and express the Department's interpretations of the Act.

Drafting Information

This document was prepared under the direction and control of the

Director, Office of Trade Adjustment Assistance, Employment and

Training Administration, U.S. Department of Labor, 200 Constitution

Avenue NW., Washington, DC 20210: telephone: (202) 219-5555 (this is

not a toll free number).

Classification Executive Order 12866

The final rule in this document is not classified as a ``major

rule'' under Executive Order 12866 on Federal Regulations, because it

is not likely to result in (1) an annual effect on the economy of $100

million or more; (2) a major increase in costs or prices for consumers,

individual industries, Federal, State, or local government agencies, or

geographic regions; or (3) significant adverse effects on competition,

employment, investment, productivity, innovation, or the ability of

United States-based enterprises to compete with foreign-based

enterprises in domestic or export markets.

Paperwork Reduction Act

In accordance with the requirements of the Paperwork Reduction Act

of 1980, 44 U.S.C. Ch. 35, approval of the recordkeeping requirement

contained at Secs. 617.19(d) and 617.57 has been obtained from the

Office of Management and Budget (control number 12050016, for reporting

forms ETA 563 and ETA 9027). OMB control number 12050222 applies to

forms used by States to convey reports to the Department as required in

Secs. 617.52(c) and 617.54.

Regulatory Flexibility Act

No regulatory flexibility analysis is required where the rule

``will not . . . have a significant economic impact on a substantial

number of small entities.'' 5 U.S.C. 605(b). The definition of the term

``small entity'' under 5 U.S.C. 601 (6) does not include States. Since

these regulations involve an entitlement program administered by the

States, and are directed to the States, no regulatory flexibility

analysis is required. The Secretary has certified to the Chief Counsel

for Advocacy of the Small Business Administration to this effect.

Accordingly, no regulatory flexibility analysis is required.

Catalog of Federal Domestic Assistance Number

This program is listed in the Catalog of Federal Domestic

Assistance at No. 17.245, ``Trade Adjustment Assistance--Workers.''

List of Subjects in 20 CFR Part 617

Job search assistance, labor, reemployment services, relocation

assistance, trade readjustment allowances, unemployment compensation,

vocational education.

Words of Issuance

For the reasons set out in the preamble, part 617 of title 20, Code

of Federal Regulations, is amended as set forth below.

Signed at Washington, DC on December 21, 1993.

Doug Ross,

Assistant Secretary of Labor.

PART 617--TRADE ADJUSTMENT ASSISTANCE FOR WORKERS

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

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

31117.

2. Paragraphs (j), (m), (t), (aa), (ff), and (oo)(4) of Sec. 617.3

are revised to read as follows:

Sec. 617.3 Definitions.

* * * * *

(j)(1) Certification means a certification of eligibility to apply

for TAA issued under section 223 of the Act with respect to a specified

group of workers of a firm or appropriate subdivision of a firm.

(2) Certification period means the period of time during which

total and partial separations from adversely affected employment within

a firm or appropriate subdivision of a firm are covered by the

certification.

* * * * *

(m) Eligibility period means the period of consecutive calendar

weeks during which basic or additional TRA is payable to an otherwise

eligible individual, and for an individual such eligibility period is--

(1) Basic TRA. (i) With respect to a first qualifying separation

(as defined in paragraph (t)(3)(i)(A) of this section) that occurs on a

day that precedes August 23, 1988, the 104-week period beginning with

the first week following the week with respect to which the individual

first exhausts all rights to regular compensation (as defined in

paragraph (oo)(1) of this section) in such individual's first benefit

period (as described in Sec. 617.11(a)(1)(iv)) or

Sec. 617.11(a)(2)(iv), whichever is applicable), and

(ii) With respect to a total qualifying separation (as defined in

paragraph (t)(3)(i)(B) of this section) that occurs on or after August

23, 1988--or before August 23, 1988, if the individual also had a prior

first qualifying separation under the same certification--the 104-week

period beginning with the first week following the week in which such

total qualifying separation occurred;

Provided, that, an individual who has a second or subsequent total

qualifying separation within the certification period of the same

certification shall be determined to have a new 104-week eligibility

period based upon the most recent such total qualifying separation; but

the rule of this proviso shall not be applicable in the case of an

individual who had a total qualifying separation before August 23,

1988, and also had a prior first qualifying separation (as referred to

in paragraph (m)(1)(i) of this section) within the certification period

of the same certification, if the individual's 104-week eligibility

period based upon the total qualifying separation (as referred to in

paragraph (m)(1)(i) of this section) would end on a date earlier than

the ending date of the individual's eligibility period which is based

upon the prior first qualifying separation; and

(2) Additional TRA. With respect to additional weeks of TRA, and

any individual determined under this part 617 to be entitled to

additional TRA, the consecutive calendar weeks that occur in the 26-

week period that--

(i) Immediately follows the last week of entitlement to basic TRA

otherwise payable to the individual, or

(ii) Begins with the first week of training approved under this

part 617, if such training begins after the last week described in

paragraph (m)(2)(i) of this section, or

(iii) Begins with the first week in which such training is approved

under this part 617, if such training is so approved after the training

has commenced; but approval of training under this part 617 after the

training has commenced shall not imply or justify approval of a payment

of basic or additional TRA with respect to any week which ended before

the week in which such training was approved, nor approval of payment

of any costs of training or any costs or expenses associated with such

training (such as travel or subsistence) which were incurred prior to

the date of the approval of such training under this part 617.

* * * * *

(t)(1) First separation means, for an individual to qualify as an

adversely affected worker for the purposes of TAA program benefits

(without regard to whether the individual also qualifies for TRA), the

individual's first total or partial separation within the certification

period of a certification, irrespective of whether such first

separation also is a qualifying separation as defined in paragraph

(t)(2) of this section;

(2) Qualifying separation means, for an individual to qualify as an

adversely affected worker and for basic TRA--

(i) Prior to August 23, 1988, the individual's first (total or

partial) separation within the certification per-iod of a

certification, with respect to which the individual meets all of the

requirements of Sec. 617.11(a)(1) (i) through (iv), and which qualifies

as a first qualifying separation as defined in paragraph (t)(3)(i)(A)

of this section, and

(ii) At any time before, on, or after August 23, 1988, any total

separation of the individual within the certification period of a

certification (other than a first qualifying separation as defined in

paragraph (t)(3)(i)(A) of this section), with respect to which the

individual meets all of the requirements in Sec. 617.11(a)(2) (i)

through (iv), and which qualifies as a total qualifying separation as

defined in paragraph (B) of (t)(3)(i)(B) of this section;

(3) ``First qualifying separation'' means--

(i) For the purposes of determining an individual's eligibility

period for basic TRA--

(A) with respect to a separation that occurs before August 23,

1988, the individual's first (total or partial) separation within the

certification period of a certification, with respect to which the

individual meets all of the requirements of Sec. 617.11(a)(1) (i)

through (iv), and

(B) with respect to a separation that occurs before, on, or after

August 23, 1988 (other than a first qualifying separation as defined in

paragraph (t)(3)(i)(A) of this section), the first total separation of

the individual within the certification period of a certification, with

respect to which the individual meets all of the requirements in

Sec. 617.11(a)(2) (i) through (iv); and

(ii) For the purposes of determining the weekly and maximum amounts

of basic TRA payable to an individual, with respect to a separation

that occurs before, on, or after August 23, 1988, the individual's

first (total or partial) separation within the certification period of

a certification if, with respect to such separation, the individual

meets the requirements of Sec. 617.11(a)(1) (i), (ii) and (iv) or

Sec. 617.11(a)(2) (i), (ii) and (iv).

* * * * *

(aa) Liable State and Agent State are defined as follows:

(1) Liable State means, with respect to any individual, the State

whose State law is the applicable State law as determined under

Sec. 617.16 for all purposes of this Part 617.

(2) Agent State means, with respect to any individual, any State

other than the State which is the liable State for such individual.

* * * * *

(ff)(1) Secretary means the Secretary of Labor of the United States

of America.

(2) Department of Labor or Department means the United States

Department of Labor or the Employment and Training Administration

within the Department.

* * * * *

(oo) * * *

(4) Federal supplemental compensation means the supplemental

unemployment compensation payable to individuals who have exhausted

their rights to regular and extended compensation, and which is payable

under the Federal Supplemental Compensation Act of 1982 or any similar

Federal law enacted before or after the 1982 Act.

* * * * *

4. Sections 617.3(h)(1) and 617.3(kk) (1) and (2) are revised to

read as follows.

Sec. 617.3 Definitions.

* * * * *

(h) Benefit period * * *

(1) The benefit year and any ensuing period, as determined under

the applicable State law, during which the individual is eligible for

regular compensation, additional compensation, extended compensation,

or federal supplemental compensation, as these terms are defined by

paragraph (oo) of this section; or

* * * * *

(kk) Suitable work * * *

(1) Suitable work as defined in the applicable State law for

claimants for regular compensation (as defined in paragraph (oo)(1) of

this section); or

(2) Suitable work as defined in applicable State law provisions

consistent with section 202(a)(3) of the Federal-State Extended

Unemployment Compensation Act of 1970;

whichever is applicable, but does not in any case include self-

employment or employment as an independent contractor.

* * * * *

5. Section 617.4

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