To transmit New York State Department
of Labor’s (NYSDOL) policies implementing the Trade Reform Act of 2002, which amended the Trade Act of 1974, particularly the
requirements for the provision of services available under the Workforce
Investment Act (WIA) to dislocated workers eligible for Trade benefits.
For purposes of this document references to the “Trade Act” shall include
references to the federal statutes relating to the Trade Act of 1974 and the
Trade Reform Act of 2002. It is the goal of New York State to ensure that
dislocated workers, including Trade-certified workers, receive services
available through the One Stop service delivery system to ensure rapid
reattachment to the workforce through the identification or development of
suitable employment. Further, New York State has determined that the
participants under WIA and the Trade Act are best served through the local
workforce investment areas. New York State Department of Labor has allocated
to each local workforce investment area sufficient resources to support the outreach
(including the Rapid Response services), orientation, case management, job
development and follow-up services for dislocated workers eligible for Trade
Adjustment Assistance (TAA) benefits. Federal Trade benefits include funding
for Trade Readjustment Allowances (TRAs), out of area job search, job
relocation and Trade-approved training.
The Trade Reform Act of
2002, signed by the President in August 2002, and effective November 4, 2002,
made sweeping changes in the administration of the Trade program. Several new
benefits were added, such as the Health Coverage Tax Credit (HCTC) and the
Alternative Trade Adjustment Assistance (ATAA) for Older Workers. The changes
create a seamless system of services for WIA dislocated and trade-affected
workers that further enhance the positive outcomes anticipated by the
amendments. Congressional action on WIA Reauthorization and pending federal
regulations for the Trade Act may require additional modification of these
The primary goal of the Trade program is to assist trade-affected workers
in locating new jobs as rapidly and effectively as possible. The Trade Reform
Act of 2002 amends the Trade Act of 1974 to ensure that intervention
strategies used for programs, benefits, and services will offer rapid,
suitable, long-term employment for adversely affected workers. Action taken
by the NYSDOL to provide resources to local workforce investment areas
promotes the full integration of employment and training services and
activities related to the federal Trade program with the One-Stop System and
will allow trade-affected workers to access appropriate services within the
strict time limits for Trade benefits.
Seeking closer alignment with other workforce services, the U.S.
Department of Labor in 2000 issued Training and Employment Guidance Letter
(TEGL) 05-00, entitled Guidance on Integrating Services Under the Trade Act
Programs – the Trade Adjustment Assistance (TAA) Program and the North
American Free Trade Agreement-Transitional Adjustment Assistance (NAFTA-TAA)
Program (Including the Secondary Worker program) – with the Workforce
Investment Act (WIA). TEGL 05-00 provided guidance promoting the seamless
integration and coordination of services, including secondarily impacted
workers, provided under the Trade Act with WIA. Additionally, an agreement
between the Governor and the Secretary of Labor outlines goals for the
implementation of the Trade Act. The goals include:
- Increasing the focus
on early intervention, up-front assessment, and reemployment services
for adversely affected workers;
- Using one-stop centers
as the main point of participant intake and delivery of benefits and
- Maintaining fiscal
integrity and promoting performance accountability in accordance with
Section 231 of the Trade Act.
TEGL 05-00 sets out activities that must be conducted by State-level staff
as well as activities allowable under WIA. As noted, WIA reauthorization may
change certain aspects of this guidance. Currently, the NYSDOL is responsible
for the following activities:
- Receive petition,
trigger rapid response;
- Provide a legal notice
of certification through publication in a local newspaper (outreach);
- Provide notification
to local boards of filed Trade petitions;
- Notify trade-affected
workers of approved Trade certifications, Alternative Trade Adjustment
Assistance and Health Care Tax Credit eligibility;
- Determine individual
eligibility to TAA;
- Pay weekly TRA
- Provide orientation to
- Deny and revoke
waivers from training;
- Deny requests for
- Deny requests for job
search and relocation allowances;
- Provide regular
updates to local boards on federal Trade funds, WIA National Emergency
Grant funds, and additional assistance funds that may be available to
support training for trade-affected workers;
- Process hearings and
appeals related to determinations and decisions concerning Trade Act
funded benefits and other services, including the following: TRAs; job
relocation allowances; job search allowances; subsistence allowances
while in training, including certain costs associated with an approved
training plan at a provider outside the commuting area, as defined by
applicable unemployment insurance law or regulation; and training
programs as approved courses of study;
- Approve the use of a
reimbursement method to ensure the adequate oversight and integrity of
federal funds made available for Trade-approved training;
- Provide required
reports to USDOL and others as required by law or regulation; and
- Ensure the integrity
of data for reports provided to federal agencies as required by law or
Local workforce investment
boards shall ensure that their strategic planning process includes an
analysis of the local labor market to:
- Determine employer
- Determine emerging,
targeted, and demand occupations;
- Identify employment
opportunities, which include those with a potential for career
employer-based training opportunities.
Boards shall set local policies for a Trade Act service strategy that
coordinate various service delivery approaches to:
- Assist dislocated
workers eligible for Trade benefits in obtaining suitable employment as
an alternative to referral to training;
- Promote the use of WIA
core and intensive services to support the rapid reattachment to the
- Refer individuals to
prevocational and vocational training in demand and targeted
- Assist in job
retention and career advancement.
Boards shall ensure that dislocated workers eligible for Trade
benefits, who are unable to find suitable employment through WIA Title I core
services, are co-enrolled in WIA Title I dislocated worker services for
referral to WIA-funded intensive and Trade-funded training services.
Boards shall submit a revised Local Plan by July 1, 2004,
which will incorporate services for the Trade Act customer as part of the
overall WIA Dislocated Worker services design in the local area.
The NYSDOL policies which shall govern local board policies and
practices for Trade Act services include:
- SEQUENCE OF SERVICE
- Dislocated workers
eligible for Trade benefits, who are unable to find suitable employment
through WIA Title I core services, must be co-enrolled in WIA Title I dislocated
worker services for referral to WIA funded intensive and Trade-funded
- Workers eligible for
Trade benefits must be afforded career counseling including assessment
necessary to determine an employment plan; job development and placement,
case management and support services, such as child care and
transportation, funded through sources consistent with local board
policies and procedures.
- Consistent with the
veteran’s priority afforded under Adult and Dislocated Worker programs;
a trade affected worker who is also a veteran will be given priority
over non-veterans for all available services.
- A determination of
eligibility for Trade Act services does not supplant the eligibility
process for enrollment in the WIA Dislocated Worker Program. While many
elements are the same, boards shall make certain that their policies
reflect that prior to enrollment in WIA Title I customers meet the
requirements for selective service registration and the legal right to
work in the United States.
JOB SEARCH AND
- Affected workers must
receive assistance in enrolling in an approved training program prior
to the 8/16 week deadline for TRA, or be issued a waiver from training
prior to the 8/16 week deadline, if appropriate.
- Effective with the
issuance of this Technical Advisory, New York State Department of Labor
System Message 309753, issued on September 25, 1991, is rescinded. To
reflect the limited funds available in New York State for TAA training,
TAA approved training plans cannot exceed a maximum amount of $10,000
for a plan of up to 130 weeks and $5,000 for a plan up to 52 weeks.
These caps are inclusive of all planned costs and funding streams
including transportation and subsistence allowances.
- Exceptions to the
52-week plan cap will be granted only where it can be demonstrated that
funds available under other federal laws are being leveraged to the
maximum extent allowable. Any exception to the 52-week plan must be
reviewed and approved by the One Stop Operator and WIB Director to
ensure that there is sufficient justification and support for the
- No exceptions will be
made to the $10,000 cap on a 130-week plan.
- Priority in the
disbursement of all TAA training funds is given to on-the-job training and
customized training plans and these plans will be funded first; second
priority is to be given to TAA training plans which leverage other
federal funding sources regardless of when the customer has been placed
on a Trade Act training waiting list.
- Evidence, in the form
of an Employment Plan and/or Training plan, must document that the 6
statutory criteria are met for approval of a training plan. These
criteria and others for training approval are detailed in the desk
guide attached to this TA.
payments permissible under Trade Act are capped at no more than the
current federal rate per mile and may be included in a TAA approved
training plan ONLY if the commuting distance for training purposes is
greater than the current UI definition of reasonable commuting
distance. This definition states that a distance, which requires travel
time of one hour by private transportation or one and one-half hours by
public transportation, is considered reasonable. Local boards may set
policy limits on the inclusion of such payments consistent with the WIA
Title I program policies.
- Payment made for
Transportation allowance cannot exceed the lesser of the actual cost of
travel by the least expensive means reasonably available or the cost
per mile at the current federal rate per mile. An allowance for daily
commuting cannot exceed the amount otherwise payable as subsistence.
- Subsistence payments
shall not exceed the lesser amount of the individual’s actual per diem
or 50% of the prevailing per diem rate authorized under the federal
travel regulations in the area that the training takes place.
- When appropriate
training is available without the transportation and subsistence, then
the cost of training requiring subsistence (being unreasonably higher)
provides a basis for disapproving the training. If no training is
reasonably available without substantial transportation/subsistence
costs, training may still be disapproved for the cost alone. A training
waiver should be issued if appropriate.
- A Training Determination
to approve a training request must be completed for each affected
worker whose training has been approved. This form is located on the
TAA Database with instructions for completion and distribution.
- A notice must be
issued to the State TAA coordinator when a training plan does not meet
eligibility criteria so that a determination detailing the individual’s
appeal rights can be issued.
- When a student
completes or otherwise ends training, the State TAA coordinator will be
- Regular contact must
be maintained with the student to ensure satisfactory progress in the
course. If it is determined that satisfactory progress is not being
achieved, action must be taken to remedy the situation or terminate the
ALLOWANCE/WAIVER FROM TRAINING
- Adversely affected
workers may request job search and relocation allowances.
- If suitable
employment cannot be obtained for the TAA individual within the local
commuting area, consideration may be given for out-of -area employment
within the United States.
- Local areas will
accept, review and make a determination for such requests. A desk aid
detailing the criteria for approval is attached to this advisory (see
- If using TAA funds
for these benefits, Local Areas must obtain confirmation from the
NYSDOL that TAA funds are available for the Job Search or Relocation
allowance prior to issuing approval to applicant. Funds will be
requested and confirmed using the TAA database.
- The local area will
not approve any allowance retroactively. Individuals must request and
be approved for such allowance(s) before travel commences.
- A notice must be
issued to the State TAA coordinator when a request for an allowance
does not meet eligibility criteria so that a determination can be
issued that details the individual’s appeal rights.
- The Trade Act
requires an affected worker to be enrolled in approved training or have
completed approved training to be eligible for a Trade Readjustment
Allowance. However, there are certain conditions that, when met, waive
this requirement and allow the individual to receive up to 26 weeks of
- Local areas will
issue a waiver if it is determined that training is not appropriate or
feasible. The desk aid regarding waivers details the criteria for
- A waiver is issued
based on the employment plan including relevant assessments. For any
waiver issued, an appropriate plan of action is required and must be
documented on the employment plan. Employment plans, including those
that involve training, must be reviewed and updated as appropriate as
waivers are issued and revoked.
- An approved training
plan must be established prior to issuing a waiver for: “enrollment
unavailable” or “training not available”.
- When a waiver is
issued because of “lack of funds,” that affected worker must be placed
on a Trade Act training wait list. This can only occur when a wait list
for Trade funds exists at the time of the waiver and it is documented
that all other sources of funding have been exhausted.
- All waivers must be
reviewed every 30 days at a minimum. The maximum duration of a waiver
is 6 months. Local areas must develop a procedure to ensure that
waivers are reviewed at least every 30 days to ascertain that the
conditions upon which the waiver was granted continue to exist. If
conditions have changed, the waiver may be revoked (based on the
original circumstances that no longer exist). A new waiver may be
issued as appropriate.
- A waiver may be
extended beyond 6 months in any case where it is necessary to cover the
worker’s full entitlement to Basic TRA. This may occur when a waiver is
issued before the worker actually begins to receive Basic TRA.
- When a waiver is
issued because an individual has marketable skills, the 30-day
reevaluation must examine and document the reasons that the individual
has not obtained employment during the job search. A review of the job
search activities and job contacts must be used in determining the
continued validity of a waiver based on marketable skills.
- When a waiver is
issued for any reason, the individual’s employment plan will prescribe
the necessary job search activities. The Desk Reference provides
general work search guidelines for individuals receiving Unemployment
Insurance and TRA benefits.
- When a wavier is no
longer valid or cannot be issued, local areas will notify the State TAA
coordinator; so that the Department may revoke or deny the waiver
request using a form that details the individual’s appeal rights.
- Local areas may only
revoke a waiver in order to issue a Training Determination for approved
OSOS will be the data collection/case
management/reporting system that must be used statewide to capture Trade Act
participant information. Local boards must ensure that documentation is
maintained in OSOS as required per this Technical Advisory. The local area
may enter data directly into OSOS; if access is needed to OSOS see Technical
Advisory 02-4, New OSOS Security Permissions and Security Request Procedures,
issued May 3, 2002. Reporting requirements include:
- Timely and accurate
reporting of data required for the provision of services to the
- Tracking and
reporting of participation;
- Tracking and
reporting of support services;
- Ensuring progress
toward achieving the goals and objectives in the Individual Employment
Plan as defined by WIA;
- Notification to the
NYSDOL if a participant drops out of training; and
- Monitoring other
requirements, as prescribed by the NYSDOL.
These elements are substantially the same for the
Dislocated Worker customer and should be treated/tracked/reported in the same
manner. It is anticipated that this data collection will not overburden local
Questions regarding this Technical Advisory may
be submitted via the NYSDOL’s Workforce New York website
(workforcenewyork.org) by choosing Local Areas (from the left side of
the homepage), then Trade Act, then E-Mail Questions.