Operating Instructions: The operating instructions contained in the attachment are issued to the States and the CSAs as guidance provided by DOL in its role as the principal in the TAA program. As agents of the Secretary of Labor, the States and CSAs may not vary from the operating instructions in this document without prior approval from DOL.

Pending the issuance of regulations implementing the provisions of the 2009 Act, the operating instructions in this document constitute the controlling guidance for the States and the CSAs in implementing and administering the 2009 Act, as provided in the agreements between the States and the Secretary of Labor under Section 239 of the 2009 Act.

These Operating Instructions only address changes to the TAA program
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made by the 2009 Amendments. For issues that are not addressed by these operating instructions, States must continue to comply with Training and Employment Guidance Letter (TEGL) 1102, Operating Instructions for Implementing the Amendments to the Trade Act of 1974 Enacted by the Trade Act of 2002, and Changes, 1, 2, and 3; and TEGL 203, Interim Operating Instructions for Implementing the Alternative Trade Adjustment Assistance (ATAA) for Older Workers Program Established by the Trade Adjustment Assistance Reform Act of 2002, and Change 1; and other such program letters issued by the Department applicable to the TAA benefits and assistance for adversely affected workers covered under TAA certifications resulting from petitions filed before May 18, 2009.

Unless otherwise noted, the 2009 Act takes effect for petitions filed on or after May 18, 2009, which is 90 days after the date the President signed the Recovery Act into law. This effective date includes amendments to the petitioning process and to the individual eligibility requirements and levels of TAA benefits and services. For convenience and emphasis, the effective date is repeated in several sections of these instructions. Petitions filed on and after May 18, 2009, and certifications issued under those petitions, will be identified by a numbering sequence starting at 70,001.

Action Required: CSAs are required to implement the 2009 amendments as set forth in these Operating Instructions for workers covered under petitions filed on or after May 18, 2009. Additionally, CSAs will continue to administer the 2002 Act for workers covered under petitions filed before the effective date of the 2009 Act until all of those workers have exited the program. CSAs will inform all appropriate staff of the contents of these instructions.

Inquiries: CSAs should direct all inquiries to the appropriate ETA Regional office.

Attachment A: Operating Instructions for Implementing the Amendments to the Trade Act of 1974 Enacted by the Trade and Globalization Adjustment Assistance Act of 2009.

Attachment B: Trade Act of 1974, as amended, can be accessed at http://wdr.doleta.gov/directives/attach/tegl/TEGL2208aB.pdf. Attachment A
Table of Contents
Introduction
Definitions
A. Reauthorization and Termination
B. Group Eligibility Requirements
C. Trade Readjustment Allowances
D. Training
E. Job Search Allowances
F. Relocatioin Allowances
G. Employment and Case Management Services
H. Reemployment Trade Adjustment Assistance
I. State Operations
J. Health Coverage Tax Credit

Introduction

These Operating Instructions only address changes to the TAA program made by the 2009 Amendments. For issues that are not addressed by these operating instructions, States must continue to comply with Training and Employment Guidance Letter (TEGL) 1102, Operating Instructions for Implementing the Amendments to the Trade Act of 1974 Enacted by the Trade Act of 2002, and Changes, 1, 2, and 3; and TEGL 2 03, Interim Operating Instructions for Implementing the Alternative Trade Adjustment Assistance (ATAA) for Older Workers Program Established by the Trade Adjustment Assistance Reform Act of 2002, and Change 1; and other such program letters issued by the Department applicable to the TAA benefits and assistance for adversely affected workers covered under TAA certifications resulting from petitions filed before May 18, 2009.

Definitions

For purposes of these operating instructions, the following definitions will apply:

A. Reauthorization and Termination

Statutory Change: Sections 1891 through 1893 of the 2009 Amendments contain effective dates for the 2009 Act and amend section 245, 246 and 285 relating to the authorization of appropriations and termination/ phaseout provisions applicable to the TAA program under the 2002 Act and the TAA program under the 2009 Act.

Administration: Section 1891 of the 2009 Amendments provides that the effective date for the 2009 Act is 90 days after the date of enactment and the amendments apply to petitions filed on or after the effective date. Since the 2009 Amendments were signed into law on February 17, 2009, the effective date is May 18, 2009. Therefore, petitions filed on or after that date will be governed by the 2009 Act and the 2009 Act will apply to benefits available to workers covered under certifications issued in response to such petitions. Workers covered by certifications issued in response to petitions filed before May 18, 2009 will continue to be governed by the provisions of the 2002 Act. This distinction means that CSAs will be providing benefits under two different sets of rules for workers covered by petitions filed before and on or after May 18, 2009. Workers covered by petitions filed before May 18, 2009, will be entitled to the benefits and services available under the TAA program under the 2002 Act, including the opportunity for ATAAcertified workers to elect to
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participate in the ATAA program and receive the ATAA wage supplement benefit. Workers covered by petitions filed on or after May 18, 2009, will be entitled to benefits and services under the new TAA program under the 2009 Act, including the RTAA wage supplement benefit. The ATAA program will not terminate, as provided in the 2002 Act, five years after it was implemented by a State. Instead, workers covered by certifications for TAA and ATAA based on petitions filed before May 18, 2009, will continue to be eligible to receive the ATAA wage supplement benefit available under the 2002 Act.

Section 1892 amends section 245 of the 2002 Act to extend the authorization of appropriations through December 31, 2010. This section also amends section 285 of the 2002 Act to extend the termination/ phaseout provision to December 31, 2010. Under the termination phase out provision, no petitions filed after December 31, 2010, will be certified. Workers covered by certifications based on petitions filed on or before December 31, 2010, will be eligible to continue to receive services and benefits in accordance with the requirements in effect before the termination.

Section 1893 contains other sunset provisions relating to the 2009 Amendments. DOL does not believe this section needs to be addressed in these operating instructions but will issue additional instructions if actions relating to these provisions were to become necessary.

The following operating instructions explain how the 2009 Amendments changed the 2002 Act, and provide guidance on the operation of the new TAA program.
B. Group Eligibility Requirements

B.1. Primary Worker Certification Criteria

Statutory Change: Section 1801 of the 2009 Amendments amends Section 222(a) of the 2002 Act to read:
(a) IN GENERAL. A group of workers shall be certified by the Secretary as eligible to apply for adjustment assistance under this chapter pursuant to a petition filed under section 221 if the Secretary determines that
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated; and
(2)(A)(i) The sales or production, or both, of such firm have decreased absolutely;
(ii)(I) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(II) Imports of articles like or directly competitive with articles
(aa) Into which one or more component parts produced by such firm are directly incorporated, or
(bb) Which are produced directly using services supplied by such firm, have increased; or
(III) Imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased; and (iii) The increase in imports described in clause (ii) contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
(B)(i)(I) There has been a shift by such workers' firm to a foreign country in the production of articles or the supply of services like or directly competitive with articles which are produced or services which are supplied by such firm; or
(II) Such workers' firm has acquired from a foreign country articles or services that are like or directly competitive with articles which are produced or services which are supplied by such firm; and
(ii) The shift described in clause (i)(I) or the acquisition of articles or services described in clause (i)(II) contributed importantly to such workers' separation or threat of separation.

Administration: As explained in greater detail below, the 2009 Amendments substantially expand program coverage by expanding the groups of worker that the Department must certify. The 2009 Amendments expand the coverage of workers for firms that produce articles. Under the 2002 Act, the Department could not certify workers for firms that produce a component part for a domestic article, where imports of articles like or directly competitive with that domestic article caused the separations of workers producing that component part. The 2009 Act now provides, in these circumstances, for certification of the workers making the component part. It also provides for certification where separations are caused by increased imports of articles directly incorporating one or more component parts produced outside the United States are like or directly competitive with imports of articles incorporating one or more component parts produced by the workers' firm.

Significantly, the 2009 Amendments amend Section 222(a) of the 2002 Act to expand coverage to workers for firms that supply services on the same terms as workers for firms that produce articles. In addition, the 2002 Act covered workers only where production was shifted to certain foreign countries, unless there ``has been or is likely to be an increase in imports like or directly competitive with articles produced by'' the workers' firm. The 2009 Act covers workers where there was a shift in production or the supply of services to any foreign country, regardless of whether there is either an actual or likely increase in imports.

The 2009 Act also codifies current practice of covering workers in a firm that acquires articles from a foreign country that are like or directly competitive with articles that are produced by those workers' firm. Similarly, the 2009 Act extends this practice to cover workers in a firm that acquires services from a foreign country that are like or directly competitive with services that are supplied by those workers' firm.

In order for the Department to issue a certification, the petition must satisfy these three criteria:

1. A significant number or proportion of the workers in the workers' firm, must have become totally or partially separated or be threatened with total or partial separation.

The first criterion has not changed from the first worker group eligibility criterion applied to the TAA program since its inception. However, the 2009 Amendments amend the definition of a ``firm'' to include an ``appropriate subdivision,'' since those Amendments delete the latter term from the certification criteria. Accordingly, the term ``firm,'' as used in these operating instructions, includes the ``appropriate subdivision.''

2. The second criterion is satisfied if either (2)(A)(i) or (2)(B)(i) is satisfied:
(i) Sales or production, or both, at the workers' firm must have decreased absolutely, and
(ii)(a) Imports of articles or services like or directly competitive with articles or services produced or supplied by the workers' firm have increased, or
(b) Imports of articles like or directly competitive with articles into which the component part produced by the workers' firm was directly incorporated have increased; or
(c) Imports of articles like or directly competitive with articles which are produced directly using the services supplied by the workers' firm have increased; or
(d) Imports of articles directly incorporating component parts not produced in the U.S. that are like or directly competitive with the article into which the component part produced by the workers' firm was directly incorporated have increased.

The first part of this requirement has not changed from the worker group
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eligibility criterion applied to the TAA program since its inception.

The second part of this requirement significantly expands the TAA program's coverage to include certification based on increased imports of services as well as increased imports of articles. It also expands coverage based on increased imports to include imports of articles that either incorporate component articles produced by the workers' firm or are produced directly using services supplied by the workers' firm. In addition, clause (ii) expands coverage by allowing certification in situations where there has been an increase in imports from articles incorporating component parts produced in the United States to articles incorporating component parts produced outside the United States. (B)(i)(I) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm; or
(ii) There has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm.

The first part of this requirement now includes workers for firms that supply services, thus significantly expanding coverage to include shifts in the supply of services by the workers' firm. It also now includes shifts of the production of articles or the supply of services to any foreign country by the workers' firm. The second part of this requirement (subclause ii) is new and provides for worker group eligibility based on foreign contracting by the workers' firm. Subclause (ii) is met if the workers' firm has acquired from a foreign source articles or services like or directly competitive with those produced/supplied by the workers' firm.

3. The increase in imports or shift/acquisition must have contributed importantly to the workers' separation or threat of separation.

The legislation codifies the Department's practice of interpreting the 2002 Act to require a causal nexus between the shift of production to a foreign country and the workers' separations. Previously, the contributed importantly criterion was explicit only in increased imports cases and was implicit in shift cases. The 2009 Amendments now make the requirement explicit for cases involving a shift in production or a shift in acquisition of a service.

B.2. Public Agency Worker Certification Criteria

Statutory Change: Section 1801 of the 2009 Amendments adds a new provision at subsection (b) of Section 222 of the 2009 Act. Section 222(b) now reads:
(b) ADVERSELY AFFECTED WORKERS IN PUBLIC AGENCIES.A group of workers in a public agency shall be certified by the Secretary as eligible to apply for adjustment assistance under this chapter pursuant to a petition filed under section 221 if the Secretary determines that
(1) A significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) The acquisition of services described in paragraph (2) contributed importantly to such workers' separation or threat of separation.

Administration: Workers of a public agency that has acquired from a foreign source services like or directly competitive with those supplied by the agency may now be certified as eligible to apply for TAA. Section 247(7) of the 2009 Act defines ``public agency'' as a ``department or agency of a State or local government or of the Federal Government, or a subdivision thereof.''

In order for a ``public agency worker'' certification to be issued, the petition must satisfy these three criteria:

1. A significant number or proportion of the workers in the public agency have become totally or partially separated or be threatened with total or partial separation.

2. The public agency has acquired from a foreign country services that are like or directly competitive with the services supplied by the public agency.

3. The acquisition of services described in criterion 2 contributed importantly to the workers' separation or threat of separation.

The new certification criteria treat similarly workers in firms in the private sector that perform services and workers in the public sector. The first criterion has been used for the certification of workers in firms that produce articles since the inception of the TAA program. The second criterion mirrors a certification criterion for workers in firms in the private sector. The third criterion similarly follows the certification criterion for workers in the private sector. B.3. SecondarilyAffected Worker Certification Criteria

Statutory Change: Section 1801 of the 2009 Amendments renumbers subsection (b) of Section 222 of the 2002 Act as subsection (c) and amends new Section 222(c) to read:
(c) ADVERSELY AFFECTED SECONDARY WORKERS.A group of workers shall be certified by the Secretary as eligible to apply for trade adjustment assistance benefits under this chapter pursuant to a petition filed under section 221 if the Secretary determines that (1) A significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm is a supplier or downstream producer to a firm that employed a group of workers who received a certification of eligibility under subsection (a), and such supply or production is related to the article or service that was the basis for such certification (as defined in subsection (d) (3)and (4)); and (3) Either
(A) The workers firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or (B) A loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation determined under paragraph (I). Section 1801 of the 2009 Amendments amends Section 222 of the Act so that Section 222(d)(3)(4) now reads:
(3) DOWNSTREAM PRODUCER.
(A) IN GENERAL.The term `downstream producer' means a firm that performs additional, valueadded production processes or services directly for another firm for articles or services with respect to which a group of workers in such other firm has been certified under subsection (a).
(B) VALUEADDED PRODUCTION PROCESSES OR SERVICES.For purposes of subparagraph (A), valueadded production processes or services include final assembly, finishing, testing, packaging, or
maintenance or transportation services.
(4) SUPPLIERThe term ``supplier'' means a firm that produces and supplies directly to another firm component parts for articles, or services, used in the production of articles or in the supply of services, as the case may be, that were the basis for a
certification of eligibility under subsection (a) of a group of workers employed by such other firm.

Administration: The 2002 Act covers workers of a firm that supplies component parts (a ``supplier'') a primary firm (a firm that employs a worker group certified as eligible to apply for TAA) and workers of a firm that provides additional, valueadded production processes (a ``downstream producer'') for a primary firm.

The 2009 Act now covers suppliers and downstream producers where the
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certification of workers for the primary firm was based upon the firm's supply of services. Further, workers for suppliers and downstream producers may now be certified on the basis of the services they supply to, or the additional, valueadded services they provide for, the primary firm. However, the requirement under the 2002 Act that the supplier must directly supply the primary firm has not changed. The component parts from the supplier must be used in the production of articles or in the supply of services that were the basis for the certification of a group of workers in the primary firm. Further, the component parts or services that the supplier supplied to the primary firm must either account for at least 20 percent of the production or sales of the supplier, or the loss of business with the primary firm by the upstream firm must have contributed importantly to the upstream workers' separations or threat of separations.

The ``direct'' requirement under the 2002 Act for downstream producers also remains unchanged: The downstream producer must perform additional, valueadded production processes or services ``directly'' for a primary firm for articles or services with respect to which the group of workers in the primary firm was certified. However, the 2009 Amendments have eliminated the requirement that downstream workers may only be certified as secondarily affected if the workers of the primary firm are certified based on increased imports from Canada or Mexico or a shift of production to Canada or Mexico.

In order for a certification to be issued, the petition must satisfy these three criteria:

1. A significant number or proportion of the workers in the workers' firm must have become totally or partially separated or be threatened with total or partial separation.

2. The workers' firm (or subdivision) is a supplier or downstream producer to a primary firm and such supply or production is related to the article or service that was the basis for the primary firm's workers' certification.

3. Either A or B below is satisfied:
(A) The workers' firm is a supplier and the component parts it supplied to the primary firm (or subdivision) accounted for at least 20 percent of the production or sales of the workers' firm, or (B) A loss of business by the workers' firm with the primary firm (or subdivision) contributed importantly to the workers' separation or threat of separation.''

The new certification criteria permit a group of workers in a downstream producer to be eligible for TAA if the primary firm's certification is linked to trade with any country, not just Canada or Mexico. The first criterion has not changed from the worker group eligibility criteria applied to the TAA program since its inception. The second criterion reflects the elimination of the requirement in the 2002 Act that the certification of eligibility of the downstream producer's customer must be based on increased imports or a shift in production to Canada or Mexico. The third criterion is similar to the language in the 2002 Act, but also allows for secondary worker coverage based on certifications of workers in service sector firms. In all cases, there must have been a loss of sales to the certified firm. B.4. Verification of Information

Statutory Change: Section 1801(b) of the 2009 Amendments adds a new subsection (e) to Section 222 of the 2009 Act, as follows:
(e)(3) VERIFICATION OF INFORMATION.
(A) CERTIFICATION. The Secretary shall require a firm or customer to certify
(i) All information obtained under paragraph (1) from the firm or the customer (as the case may be) through questionnaires; and (ii) All other information obtained under paragraph (1) from the firm or the customer (as the case may be) on which the Secretary relies in certifying a group of workers under section 223, unless the Secretary has a reasonable basis for determining that such information is accurate and complete without being certified. (B) USE OF SUBPOENAS.The Secretary shall require a workers' firm or a customer of the workers' firm to provide information requested by the Secretary under paragraph (1) by subpoena pursuant to section 249 if the firm or customer (as the case may be) fails to provide the information within 20 days of the Secretary's request, unless the firm or customer (as the case may be) demonstrates to the satisfaction of the Secretary that the firm or customer (as the case may be) will provide the information within a reasonable period of time.
(C) PROTECTION OF CONFIDENTIAL INFORMATION.The Secretary may not release information obtained under paragraph (1) that the Secretary considers to be confidential business information unless the firm or customer (as the case may be) submitting the
confidential business information had notice at the time of submission, that the information would be released by the Secretary, or the firm or customer (as the case may be) subsequently consents to the release if the information. Nothing in this paragraph shall be construed to prohibit the Secretary from providing such confidential business information to a court in camera or to another party under a protective order issued by a court.

Administration: The 2009 Amendments do not change the Department's obligation to make a determination on the petitioning workers' eligibility to apply for TAA based on substantive evidence, its authority to subpoena information necessary to make a determination on a petition, or its obligation to protect confidential information.

The 2009 Act requires a firm or customer to verify the information it provides to the Department during the investigation of a TAA petition. Under the new program, the Department will require the firm or customer providing information through questionnaires or in other formats to certify that the information is accurate and complete, unless the Department has a reasonable basis for determining that such certification is not required. The various forms and communications used by the Department in collecting relevant information may include such an affirmation requirement.

The 2009 Act codifies the Department's practice of issuing subpoenas when the Department is unable, through other means, to obtain information necessary for making a determination. Under current practice, the issuance of the subpoena does not follow any established timeframe. Under the 2009 Act, the Department is required to issue a subpoena if the firm or customer fails to provide the information within twenty (20) days of the Department's request, unless the firm or customer has demonstrated to the Department's satisfaction that the information sought will be provided within a reasonable period of time.

The 20 day period begins once the Department issues an information request, not at the 20th day of the investigation. Thus, for example, if a petition is filed on June 5 and if a Confidential Data Request is issued on June 11, 2009, and the firm fails to provide the information, the Department may issue a subpoena on July 1, 2009.

Section 222(e)(3)(C) of the 2009 Act contains slightly different confidentiality protections on confidential information than those applied under the 2002 Act. The 2009 Act expressly prohibits DOL from releasing information it gathers in the course of the investigation of a petition where DOL considers that information to be ``confidential business information.'' DOL currently defines that term in 29 CFR 90.33.

The 2009 Act provides two exceptions to this confidentiality requirement, the
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first occurs where ``the firm or customer * * * submitting the confidential business information had notice, at the time of submission, that the information would be released by'' DOL. If DOL determines that a firm or customer submitted any information in confidence that is not entitled to confidentiality, then DOL, consistent with past practice, will notify the firm or customer of this finding and permit it to withdraw the information.

The 2009 Act's second exception to confidentiality is the permission it affords DOL to provide ``confidential business information to a court in camera or to another party under a protective order issued by a court.'' This codifies past practice where DOL submits confidential business information under seal to the U.S. Court of International Trade on appeal of DOL's denial of certification of a petition. It also codifies DOL's practice of releasing, under a protective order issued by a court, confidential business information to plaintiffs' attorneys in these proceedings.

In addition to the 2009 Act exceptions, DOL will release confidential business information with the permission of the entity submitting it, which is consistent with the intent of the 2009 Amendments. DOL is committed to protecting business confidential information to the full extent of the law.
B.5. Firms Identified by the International Trade Commission

Statutory Change: Section 1802 of the 2009 Amendments amends Section 222 of the 2002 Act by adding a new subsection (f): (f) FIRMS INDENTIFIED BY THE INTERNATIONAL TRADE COMMISSION. Notwithstanding any other provision of this chapter, a group of workers covered by a petition filed under section 221 shall be certified under subsection (a) as eligible to apply for adjustment assistance under this chapter if
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in
(A) An affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) An affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) An affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A)); (2) The petition is filed during the 1year period beginning on the date on which
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the Federal Register under section 202(f)(3); or (B) Notice of an affirmative determination described in subparagraph (B) or (C) of paragraph (1) is published in the Federal Register; and
(3) The workers have become totally or partially separated from the workers' firm within
(A) The 1year period described in paragraph (2); or
(B) Notwithstanding section 223(b), the 1year period preceding the 1year period described in paragraph (2).

Administration: The 2009 Act provides, for the first time, for certification of a petition without a Departmental investigation upon certain findings by the International Trade Commission (ITC).

In order for a certification to be issued, the petition must satisfy these three criteria:

1. The workers' firm must be publicly identified by name by the ITC as a member of a domestic industry in an investigation resulting in a finding of injury or market disruption under section 202(b)(1), 421(b)(1), 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930.

2. The petition is filed within one year after the date on which a summary of the ITC's report to the President, or the ITC's affirmative finding, is published in the Federal Register.

3. The workers of the firm identified in criterion 1 were totally or partially separated no more than one year before the publication date of the Federal Register notice described in criterion 2 and no later than one year after that date.

Should the petition be filed more than one year after the date of the publication of the ITC's Federal Register notice, the Department will investigate whether the petition meets the other certification criteria. Further, although section 223(b) provides that a certification will not cover workers separated more than one year before the date of the petition on which that certification was granted, section 222(f)(3)(B) provides that a certification based upon an ITC finding covers workers separated up to a year before the date of the publication of the ITC's Federal Register notice.
C. Trade Readjustment Allowances (TRA)

C.1. TRA Eligibility

Statutory Change: Sections 1801, 1821 and 1858 of the 2009 Amendments amend Section 231(a)(1)(4) of the 2002 Act to read: (a) Payment of a trade readjustment allowance shall be made to an adversely affected worker covered by a certification under subchapter A who files an application for such allowance for any week of unemployment which begins on or after the date of such certification, if the following conditions are met:
(1) Such worker's total or partial separation before the worker's application under this chapter occurred
(A) On or after the date, as specified in the certification under which the worker is covered, on which total or partial separation began or threatened to begin in the adversely affected employment,
(B) Before the expiration of the 2year period beginning on the date on which the determination under section 223 was made, and (C) Before the termination date (if any) determined pursuant to section 223(d).
(2) Such worker had, in the 52week period ending with the week in which such total or partial separation occurred, at least 26 weeks of employment at wages of $30 or more a week in adversely affected employment with a single firm, or, if data with respect to weeks of employment with a firm are not available, equivalent amounts of employment computed under regulations prescribed by the Secretary. For the purpose of this paragraph, any week in which such worker
(A) Is on the employerauthorized leave for purposes of vacation, sickness, injury, maternity, or inactive duty or active duty military service for training,
(B) Does not work because of a disability that is compensable under a workmen's compensation law or plan of a State or the United States,
(C) Had his employment interrupted in order to serve as a full time representative of a labor organization in such firm, or (D) Is on callup for purposes of active duty in a reserve status in the Armed Forces of the United States, provided such active duty is ``Federal service'' as defined in section 8521(a)(1) of title 5, United States Code shall be treated as a week of employment at wages of $30 or more, but not more than 7 weeks, in case of weeks described in subparagraph (A) or (C), or both (and not more than 26 weeks, in the case of weeks described in subparagraph (B) or (D)), may be treated as weeks of employment under this sentence.
(3) Such worker
(A) Was entitled to (or would be entitled to if the worker applied therefore) unemployment insurance for a week within the benefit period (i) in which such total or partial separation took place, or (ii) which began (or would have begun) by reason of the filing of a claim for unemployment insurance by such worker after such total or partial separation;
(B) Has exhausted all rights to any unemployment insurance except additional compensation that is funded by a State and is not reimbursed from any Federal finds, to which the worker was entitled (or would be entitled if he applied therefore); and
(C) Does not have an unexpired waiting period applicable to the worker for any such unemployment insurance.
(4) Such worker, with respect to such week of unemployment, would not be disqualified for extended compensation payable under [[Page 50881]]
the FederalState Extended Unemployment Compensation Act of 1970 by reason of the work acceptance and job search requirements in section 202(a)(3) of such Act.

Administration: Section 1821 of the 2009 Amendments changes Section 231(a) of the 2002 Act by eliminating the 60day waiting period after a petition is filed to receive trade readjustment allowances (TRA) and allows receipt of those allowances for any week of unemployment that begins on or after the date of certification. This amendment allows workers to begin receiving TRA benefits immediately upon certification of a petition if UI entitlement (as defined in section 247(12)) has been exhausted. Unlike under the 2002 Act, this means that no payments may be made retroactively for weeks of unemployment that occur before the certification was issued, but after the date of the petition. Subparagraph C.5 of these Operating Instructions discusses two new provisions that address specific issues that may arise because of this amendment in determining the first payable week, such as the certification being delayed because of appeals or other situations where there is justifiable cause to extend the eligibility period for basic TRA.

Section 231(a)(1) through Section 231(a)(4), establishing requirements for TRA eligibility, have not otherwise been substantively amended. They continue to require for eligibility that the worker be adversely affected; that the worker's total or partial separation occurred during the period covered by the certification; that the worker (with exceptions) had 26 weeks of employment at $30 or more per week in the 52week period ending with the total or partial separation from adversely affected employment; that the worker was entitled to and exhausted all UI entitlement, except additional compensation that is funded by a State and is not reimbursed from any Federal funds; and that the worker would not be disqualified for extended compensation payable under the FederalState Extended Compensation Act of 1970 by reason of its work search and job search requirements. Subparagraph C.4.1 of these Operating Instructions discusses the sole exception to the requirement that TRA eligibility depends upon the exhaustion all UI other than a certain type of additional compensation).

C.2. Enrollment in Training

Statutory Change: Section 1821 of the 2009 Amendments amends Section 231(a)(5)(A) of the 2002 Act to read:
(5) Such worker
(A)(i) Is enrolled in a training program approved by the Secretary under section 236(a), and
(ii) The enrollment required under clause (i) occurs no later than the latest of
(I) In the case of a worker whose most recent total separation from adversely affected employment that meets the requirements of paragraphs (1) and (2) occurs after the date on which the Secretary issues a certification covering the worker, the last day of the 26th week after such total separation,
(II) In the case of a worker whose most recent total separation from adversely affected employment that meets the requirements of paragraphs (1) and (2) occurs before the date on which the Secretary issues a certification covering the worker, the last day of the 26th week after the date of such certification,
(III) 45 days after the date specified in subclause (I) or (II), as the case may be, if the Secretary determines there are
extenuating circumstances that justify an extension in the enrollment period,
(IV) In the case of a worker who fails to enroll by the date required by subclause (I), (II), or (III), as the case may be, due to the failure to provide the worker with timely information regarding the date specified in such subclause, the last day of a period determined by the Secretary, or
(V) The last day of a period determined by the Secretary to be approved for enrollment after the termination of a waiver issued pursuant to subsection (c),
(B) Has, after the date on which the worker became totally separated, or partially separated, from the adversely affected employment, completed a training program approved by the Secretary under section 236(a), or
(C) Has received a written statement certified under subsection (c)(1) after the date described in subparagraph (13).

Administration: The 2009 Amendments leave intact the basic structure of Section 231(a)(5). As before, Section 231(a)(5)(A) requires, as a condition for receiving TRA, that the worker be enrolled in training. As before, Section 231(a)(5)(C) allows a worker to receive a waiver of the training requirement in order to receive basic TRA. Section 231(a)(5)(A)(ii) sets deadlines by which the enrollment in training must occur. These deadlines apply for eligibility for any TRA paymentbasic TRA, additional TRA, and additional weeks paid to adversely affected workers who undertake remedial or prerequisite education.

The 2009 Amendments lengthen the enrollment deadlines from 8 weeks after certification or 16 weeks after separation to the later of 26 weeks from the separation or certification date. This deadline extension allows a worker to actively engage in a longer job search before making a decision about training, and to make full use of the case management services provided under the 2009 Act to choose an appropriate training program. Additionally, in cases where large worker groups are dislocated all at once, it allows the CSA more time for counseling, assessment and other case management services which were difficult to perform in advance of the prior, shorter enrollment deadlines.

The 2009 Act continues to allow for an extension of the enrollment deadlines for 45 days where the CSA determines that there are extenuating circumstances justifying the extension. ``Extenuating circumstances'' continue to be circumstances beyond the control of the worker. This includes situations where training programs are abruptly cancelled as well as where the worker suffers injury or illness preventing participation in training.

The 2009 Act includes a new Section 231(a)(5)(A)(ii)(IV), providing an exception to the enrollment deadlines where the worker did not enroll by the deadlines because the CSA failed to provide the worker with timely information regarding the training enrollment deadlines. In that event, the worker must be enrolled by the last day of a period to be determined by the Secretary. Accordingly, the Secretary has determined that the worker must be enrolled in training or receive a waiver by the Monday of the first week occurring 60 days after the date on which the worker was properly notified of both his/her eligibility to apply for TAA and the requirement to enroll in training absent a waiver of the training requirement. The CSA must document its efforts to notify workers of the enrollment deadlines.

A worker must be enrolled in training as a condition of basic TRA when the enrollment in training deadline is reached. Further, a CSA may not waive the enrollment in training requirement after the deadlines have passed.

The 2009 Act continues to have an additional deadline for training enrollment that applies to workers who were granted a waiver of the training requirement, now in Section 231(a)(5)(A)(ii)(V). Workers who have received a training waiver must be enrolled in training prior to the last day of a period set by the Secretary after the termination of a waiver in order to maintain future eligibility for TRA. In its initial implementation of the 2002 Amendments, the Department set this time period to be the first Monday after the termination of the waiver. Subsequent experience operating the program has indicated that additional time is needed in some cases. Accordingly, the Secretary has determined that the worker must be
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enrolled in training by the Monday of the first week occurring 30 days after the date on which the waiver terminated, whether by revocation or expiration.
``Enrolled in training'' continues to mean that the worker's application for training has been approved by the CSA and that the training institution has furnished written notice to the CSA that the worker has been accepted into the approved program which is to begin within 30 days of such approval.

C.3. Waiver of Training Requirement

Statutory Change: Section 1821 of the 2009 Amendments amends Section 231(c) of the 2002 Act to read:
(c) WAIVERS OF TRAINING REQUIREMENTS.
(1) ISSUANCE OF WAIVERSThe Secretary may issue a written statement to an adversely affected worker waiving the requirement to be enrolled in training described in subsection (a)(5)(A) if the Secretary determines that it is not feasible or appropriate for the worker, because of 1 or more of the following reasons:
(A) RECALLThe worker has been notified that the worker will be recalled by the firm from which the separation occurred.
(B) MARKETABLE SKILLS
(i) IN GENERAL.The worker possesses marketable skills for suitable employment (as determined pursuant to an assessment of the worker, which may include the profiling system under section 303(j) of the Social Security Act (42 U.S.C. 503(j)), carried out in accordance with guidelines issued by the Secretary) and there is a reasonable expectation of employment at equivalent wages in the foreseeable future.
(ii) MARKETABLE SKILLS DEFINED.For purposes of clause (i), the term `marketable skills' may include the possession of a
postgraduate degree from an institution of higher education (as defined in section 102 of the Higher Education Act of 1965 (20 U.S.C. 1002)) or an equivalent institution, or the possession of an equivalent postgraduate certification in a specialized field. (C) RETIREMENT.The worker is within 2 years of meeting all requirements for entitlement to either
(i) Oldage insurance benefits under title H of the Social Security Act (42 U.S.C. 401 et seq.) (except for application therefor); or
(ii) A private pension sponsored by an employer or labor organization.
(D) HEALTHThe worker is unable to participate in training due to the health of the worker, except that a waiver under this subparagraph shall not be construed to exempt a worker from requirements relating to the availability for work, active search for work, or refusal to accept work under Federal or State unemployment compensation laws.
(E) ENROLLMENT UNAVAILABLE.The first available enrollment date for the approved training of the worker is within 60 days after the date of the determination made under this paragraph, or, if later, there are extenuating circumstances for the delay in enrollment, as determined pursuant to guidelines issued by the Secretary.
(F) TRAINING NOT AVAILABLETraining approved by the Secretary is not reasonably available to the worker from either governmental agencies or private sources (which may include area vocational education schools, as defined in section 3 of the Carl D. Perkins Vocational and Technical Education Act of 1 998 (20 U.S.C. 2302), and employers), no training that is suitable for the worker is available at a reasonable cost, or no training finds are available. (2) DURATION OF WAIVERS.
(A) IN GENERALExcept as provided in paragraph (3)(B), a waiver issued under paragraph (1) shall be effective for not more than 6 months after the date on which the waiver is issued, unless the Secretary determines otherwise.
(B) REVOCATION.The Secretary shall revoke a waiver issued under paragraph (I) if the Secretary determines that the basis of a waiver is no longer applicable to the worker and shall notify,' the worker in writing of the revocation.
(3) AGREEMENTS UNDER SECTION 239.
(A) ISSUANCE BY COOPERATING STATES. An agreement under section 239 shall authorize a cooperating State to issue waivers as described in paragraph (1).
(B) Review of Waivers. An agreement under section 239 shall require a cooperating State to review each waiver issued by the State under subparagraph (A), (B), (D), (E), or (F) of paragraph (1)
(i) 3 months after the date on which the State issues the waiver; and
(ii) On a monthly basis thereafter.
(C) SUBMISSION OF STATEMENTS. An agreement under section 239 shall include a requirement that the cooperating State submit to the Secretary the written statements provided under paragraph (1) and a statement of the reasons for the waiver.

Administration: The 2009 Amendments expand the definition of ``Marketable Skills.'' Additionally, they provide that no review of waivers is necessary if issued under the ``retirement'' reason for granting the waiver. Finally, they provide that periodic reviews of waivers issued under the remaining provisions need not occur during the first three months, but must be reviewed at the threemonth mark and on a monthly basis thereafter.

Section 231(c) sets forth the requirements for issuing waivers of the requirement under Section 231(a)(5)(A) that a worker be enrolled in training in order to receive basic TRA, if training is not feasible or appropriate for the worker. The training enrollment requirement may only be waived for receipt of basic TRA. Training may not be waived for receipt of additional TRA or additional weeks paid to workers who participated in remedial or prerequisite education. In order to receive additional TRA, a worker must be participating in approved training.

Section 231(c)(1) continues to provide six specific criteria for issuing a waiver of the training requirement for eligibility for basic TRA. For convenience, those criteria are provided below:
(A) Recall.The worker has been notified that the worker will be recalled by the firm from which the separation occurred.
(B) Marketable Skills
(i) In General.

FOR FURTHER INFORMATION CONTACT

Terry Clark, 202-693-3707.