U.S. DEPARTMENT OF LABOR
Employment and Training Administration
Washington, D. C. 20210

CLASSIFICATION

 

CORRESPONDENCE SYMBOL

 

ISSUE DATE

June 06, 1992

RESCISSIONS

None

EXPIRATION DATE

July 31, 1993

DIRECTIVE

:

GENERAL ADMINISTRATION LETTER NO. 10-92

 

TO

:

ALL STATE EMPLOYMENT SECURITY AGENCIES

 

FROM

:

Donald J. Kulick
Administrator
for Regional Management

 

SUBJECT

:

Operating Instructions for Implementing the Amendment to Section 23l(a)(2) of the Trade Act of 1974 Contained in H.R. 5260

  1. Purpose: To inform the States and cooperating State agencies of an amendment to the Trade Act of 1974 and to furnish operating instructions for the implementation of that amendment.

  2. Contact: Direct questions to the appropriate Regional Office.

  3. Text: References: Section 106 of H.R. 5260, Section 231(a)(2) of the Trade Act of 1974, 5 U.S.C. 8521(a)(1), Section 301 of P. L. 102-164, 20 CFR 617.11(a)(3)(ii)(A) and (B), and GAL 3-92.

  4. Background: This document furnishes information concerning Section 106 of H.R. 5260 which amends Section 231(a)(2) of the Trade Act of 1974 and provides the Department's interpretation of the amendment as it affects the trade adjustment assistance (TAA) program. This document sets forth operating instructions of the Department of Labor to guide the States in implementing the amendment.

    The provisions in Section 106 of H.R. 5260, as interpreted by these instructions, supersede the prior provisions of Federal law, regulations at 20 CFR Part 617, and prior operating instructions issued by this Department to the extent that they are inconsistent with Section 106 of H.R. 5260 or these instructions.

    The instructions in this document are issued to the States and cooperating State agencies as guidance provided by the Department of Labor in its role as the principal in the TAA program. As agents of the United States, the States and cooperating State agencies may not vary from the operating instructions in this document (or any subsequent or supplemental operating instruction) without the prior approval of the Department of Labor. Therefore, pending the issuance of final regulations implementing this amendment, the operating instructions in this document (and any subsequent and supplemental operating instructions) shall constitute the controlling guidance for the States and the cooperating State agencies in implementing and administering the provisions of this TAA program amendment pursuant to the agreements between the States and Secretary of Labor under Section 239 of the Trade Act of 1974. The provisions of 20 CFR 617.52(c) shall apply to the carrying out of the instructions in this document and any subsequent or supplemental operating instructions.

    Section 106(a) of H.R. 5260 amended Section 231(a)(2) of the Trade Act of 1974 to provide that, in the case of a reservist called-up to active duty in a reserve status, provided such active duty is "Federal service" as defined in 5 U.S.C. 8521(a)(1), up to 26 weeks of such active duty may be counted as qualifying weeks for the purposes of Section 231(a)(2). Prior to the enactment of this amendment, weeks of active duty in the Armed Forces could not be used toward meeting the 26 weeks of employment trade readjustment allowance (TRA) qualifying requirement. Reservists who were employed in adversely affected employment prior to or at the time of their call-up to active duty may not be able to meet the 26- week TRA qualifying requirement on the basis of their work in adversely affected employment. Many reservists were called-up for participation in Operations Desert Shield and Desert Storm, and the period of call-up to active duty exceeded 6 months in many instances, thereby precluding their entitlement to TRA when they returned to their employer. The amendment in Section 106(a) provides for counting up to 26 weeks of active duty in a reserve status, for purposes of meeting the 26 weeks of employment TRA qualifying requirement.

    Section 106(b) of the H.R. 5260 provides that the TAA program amendment contained in Section 106 is effective for weeks beginning after August 1, 1990. This means that the TAA program amendment contained in Section 106 shall be effective for: (1) all TRA initial claims filed after the date of enactment; (2) prior TRA claims filed by reservists that were denied solely because they did not meet the requirements of Section 231(a)(2) of the Trade Act of 1974 as in effect prior to the enactment of this amendment; and (3) TRA initial claims of reservists who did not previously file a TRA claims because they did not meet the requirements of Section 231(a)(2) of the Trade Act of 1974 as in effect prior to the enactment of this amendment.

    The general rule is that State law is followed on procedural matters (i.e., claims filing, determinations and redeterminations) unless inconsistent with Federal law. Here, it would be inconsistent with Federal law to apply State time limitations on claims filing, determinations, and redeterminations. It is Congress's intent to cover Desert Shield and Desert Storm reservists under the amendment to Section 231(a)(2) of the Trade Act of 1974. The effective date of the amendment as provided in the language of Section 106 carries out the Congressional intent and clearly provides that this amendment is to have a retroactive application to the call-up of reservists for Desert Shield and Desert Storm. The only way to extend the application of this amendment to Desert Shield and Desert Storm reservists is to require States and cooperating State agencies to redetermine all TRA claims for claimants who were denied solely because they did not meet the requirements of Section 231(a)(2) of the Trade Act of 1974 as in effect prior to the enactment of this amendment, and to make determinations retroactively for those who did not qualify under prior law, but now do (or may) qualify under the amended law. Thus, this Federal law authority will ensure a uniform application of this amendment as intended by Congress. Further, States and cooperating State agencies will not apply State law time limits on filing claims to reservists who did not previously file TRA claims because they did not meet the requirements of Section 231(a)(2) of the Trade Act of 1974 as in effect prior to the enactment of this amendment.

    States and cooperating State agencies will utilize the definition of "Federal service" in 5 U.S.C. 8521(a)(1), effective with the enactment of P. L. 102-164, in issuing determinations, redeterminations, and decisions on appeals to implement the amendment to Section 231(a)(2) of the Trade Act of 1974 made by Section 106 of H.R. 5260. This means that a reservist must have been called-up to active duty in a reserve status for at least 90 continuous days in order for such active duty to be considered "Federal service." The States and cooperative State agencies will utilize this definition of "Federal service" even though it shall be applied to weeks before the effective date of the amendment to 5 U.S.C. 8521(a)(1) made by Section 301(b) of P. L. 102-164 (i.e., at least 90 continuous days instead of 180 continuous days of active duty in a reserve status). Such an application is consistent with congressional intent to cover Desert Shield and Desert Storm reservists under the amendment to Section 231(a)(2) of the Trade Act of 1974. Furthermore, this application is consistent with a literal reading of amended Section 231(a)(2)(D) of the Trade Act of 1974, which uses the present tense in expressing the requirement that "such active duty is 'Federal service' as defined in 5 U.S.C. 8521(a)(1)." In light of this literal language, the present 90-day provision may be, and is, used for all weeks before and after November 15, 1991.

    The amendment to Section 231(a)(2) of the Trade Act of 1974 does not require a revision to the existing State TAA program agreements.

    Amendment and Operating Instructions to Implement the Amendment: a. Section 106(a).

    AMENDED LAW: Section 106(a) amends Section 231(a)(2) of the Trade Act of 1974 adding a new subparagraph (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, provided that 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 of 1974 may be used for TRA qualifying purposes.

    ADMINISTRATION. The amendment provides that weeks of call-up to active duty in a reserve status, so long as such active duty is "Federal service" as defined in 5 U.S.C. 8521(a)(1) (at least for 90 continuous days), shall constitute up to 26 weeks of TRA qualifying employment at wages of $30 or more a week. 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. (The clarifying provision in Section 106(a) also means that all of the required employment and wages necessary to qualify for TRA may be attained by a worker who does not work because of a disability that is compensable under a workers' compensation law or plan of a State or the United States.) This amendment only affects the TRA qualifying requirement in Section 231(a)(2); all other TRA qualifying requirements in Section 231 are unchanged. Therefore, States must also determine if the reservist meets the remaining TRA qualifying requirements contained in Section 231 of the Trade Act of 1974 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 amended section 231(a)(2) of the Trade Act applies to weeks beginning after August 1, 1990. The effective date of this amendment will result 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 States will 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 of 1974 as in effect prior to the enactment of this amendment. States will also take TRA initial claims of reservists who did not previously file a TRA claim because they did not meet the requirements of Section 231(a)(2) of the Trade Act of 1974 as in effect prior to the enactment of this amendment.

    In order to apply the amendment made by Section 106(a) to reservists whose TRA claims were denied or who did not file a claim solely because they did not meet the requirements of Section 231(a)(2) as in effect prior to the enactment of this amendment, the States and cooperating State agencies shall take appropriate actions to identify and inform these reservists of their rights to redetermination or the opportunity to file TRA initial claims. Such actions should include the search of agency files. In addition, States and cooperating State agencies shall announce in newspapers of general circulation and other appropriate media the application of the amendment made by Section 106. This is especially important because many of reservists may have not previously filed TRA claims because they did not meet the TRA qualifying requirements in Section 231(a)(2) of the Trade Act of 1974 as in effect prior to the enactment of this amendment. It is important that the newspaper and media announcements include information that State law claims filing and redetermination time limitations provisions are not applicable to TRA claims filed by reservists affected by the amendment made by Section 106.

    b. Section 106(b).

    AMENDED LAW: Provides that the amendment contained in Section 106(a) of H.R. 5260 is effective for weeks beginning after August 1, 1990.

    ADMINISTRATION: States and cooperating State agencies shall take appropriate action to ensure the TAA program amendment in Section 106 of H.R. 5260 is applied to weeks beginning after August 1, 1990. This means that all TRA determinations, redeterminations, and decisions on appeal which involve weeks beginning after August 1, 1990 shall reflect the TAA program amendments contained in Section 106 and the Department's controlling instructions contained in this GAL. TRA determinations, redeterminations, and decisions on appeal for weeks beginning before and on August 1, 1990 shall not reflect the TAA program amendment contained in Section 106. Newspaper and media announcements will contain language concerning the effective date of the TAA program amendment.

  5. Action Required: States are required to implement the amendment to Section 231(a)(2) of the Trade Act of 1974 in accordance with the controlling guidance contained in this GAL. States are required to:

    1. Inform all appropriate staff of the requirements of this GAL.

    2. Take appropriate actions to identify and inform TRA claimants whose claims were denied solely due to their not meeting the requirements of Section 231(a)(2) of the Trade Act of 1974 in effect before the enactment of this amendment of the effect of this amendment on their claims.

    3. Announce in a newspaper of general circulation and appropriate media the enactment and the effective date of the amendment to Section 231(a)(2) of the Trade Act of 1974. The announcement shall include the effect that the effective date of this amendment has on previously denied TRA claims for reservists as well as the opportunity for reservists who have not previously filed TRA claims to do so now.

    4. Take appropriate actions to redetermine all TRA claims with respect to which the decisions of reservists' eligibility are inconsistent with the operating instructions in this GAL.

    5. Take appropriate actions to apply the amendment to Section 231(a)(2) of the Trade Act of 1974 to all TRA initial claims for weeks beginning after August 1, 1990.