[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2016 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 20
Employees' Benefits
________________________
Parts 500 to 656
Revised as of April 1, 2016
Containing a codification of documents of general
applicability and future effect
As of April 1, 2016
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 20:
Chapter IV--Employees' Compensation Appeals Board,
Department of Labor 3
Chapter V--Employment and Training Administration,
Department of Labor 11
Finding Aids:
Table of CFR Titles and Chapters........................ 575
Alphabetical List of Agencies Appearing in the CFR...... 595
List of CFR Sections Affected........................... 605
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 20 CFR 501.1 refers
to title 20, part 501,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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LEGAL STATUS
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To determine whether a Code volume has been amended since its
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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(b) The matter incorporated is in fact available to the extent
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this volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register.
April 1, 2016.
[[Page ix]]
THIS TITLE
Title 20--Employees' Benefits is composed of four volumes. The first
volume, containing parts 1-399, includes current regulations issued by
the Office of Workers' Compensation Programs, Department of Labor and
the Railroad Retirement Board. The second volume, containing parts 400-
499, includes all current regulations issued by the Social Security
Administration. The third volume, containing parts 500 to 656, includes
current regulations issued by the Employees' Compensation Appeals Board,
and the Employment and Training Administration. The fourth volume,
containing part 657 to End, includes the current regulations issued by
the Office of Workers' Compensation Programs, the Benefits Review Board,
the Office of the Assistant Secretary for Veterans' Employment and
Training Service (all of the Department of Labor) and the Joint Board
for the Enrollment of Actuaries. The contents of these volumes represent
all current regulations codified under this title of the CFR as of April
1, 2016.
An index to chapter III appears in the second volume.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 20--EMPLOYEES' BENEFITS
(This book contains parts 500 to 656)
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Part
chapter iv--Employees' Compensation Appeals Board,
Department of Labor....................................... 501
chapter v--Employment and Training Administration,
Department of Labor....................................... 601
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CHAPTER IV--EMPLOYEES' COMPENSATION APPEALS BOARD, DEPARTMENT OF LABOR
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Part Page
500
[Reserved]
501 Rules of procedure.......................... 5
502-599
[Reserved]
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PART 500 [RESERVED]
PART 501_RULES OF PROCEDURE--Table of Contents
Sec.
501.1 Definitions.
501.2 Scope and applicability of rules; composition and jurisdiction of
the Board.
501.3 Notice of appeal.
501.4 Case record; inspection; submission of pleadings and motions.
501.5 Oral argument.
501.6 Decisions and orders.
501.7 Petition for reconsideration.
501.8 Clerk of the Office of the Appellate Boards; docket of
proceedings; records.
501.9 Representation; appearances and fees.
Authority: Federal Employees' Compensation Act (FECA), 5 U.S.C. 8101
et seq.
Source: 73 FR 62193, Oct. 20, 2008, unless otherwise noted.
Sec. 501.1 Definitions.
(a) FECA means the Federal Employees' Compensation Act, 5 U.S.C.
8101 et seq. and any statutory extension or application thereof.
(b) The Board means the Employees' Compensation Appeals Board.
(c) Chief Judge and Chairman of the Board means the Chairman of the
Employees' Compensation Appeals Board.
(d) Judge or Alternate Judge means a member designated and appointed
by the Secretary of Labor with authority to hear and make final
decisions on appeals taken from determinations and awards by the OWCP in
claims arising under the FECA.
(e) OWCP means the Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor.
(f) Director means the Director of the Office of Workers'
Compensation Programs or a person delegated authority to perform the
functions of the Director. The Director of OWCP is represented before
the Board by an attorney designated by the Solicitor of Labor.
(g) Appellant means any person adversely affected by a final
decision or order of the OWCP who files an appeal to the Board.
(h) Representative means an individual properly authorized by an
Appellant in writing to act for the Appellant in connection with an
appeal before the Board. The Representative may be any individual or an
attorney who has been admitted to practice and who is in good standing
with any court of competent jurisdiction.
(i) Decision, as prescribed by 5 U.S.C. 8149 of the FECA, means the
final determinative action made by the Board on appeal of a claim.
(j) Clerk or Office of the Clerk means the Clerk of the Office of
the Appellate Boards.
Sec. 501.2 Scope and applicability of rules; composition and
jurisdiction of the Board.
(a) The regulations in this part establish the Rules of Practice and
Procedure governing the operation of the Employees' Compensation Appeals
Board.
(b) The Board consists of three permanent judges, one of whom is
designated as Chief Judge and Chairman of the Board, and such alternate
judges as are appointed by the Secretary of Labor. The Chief Judge is
the administrative officer of the Board. The functions of the Board are
quasi-judicial. For organizational purposes, the Board is placed in the
Office of the Secretary of Labor and sits in Washington, DC.
(c) The Board has jurisdiction to consider and decide appeals from
final decisions of OWCP in any case arising under the FECA. The Board
may review all relevant questions of law, fact and exercises of
discretion (or failure to exercise discretion) in such cases.
(1) The Board's review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision.
Evidence not before OWCP will not be considered by the Board for the
first time on appeal.
(2) There will be no appeal with respect to any interlocutory matter
decided (or not decided) by OWCP during the pendency of a case.
(3) The Board and OWCP may not exercise simultaneous jurisdiction
over the same issue in a case on appeal. Following the docketing of an
appeal before the Board, OWCP does not retain jurisdiction to render a
further decision regarding the issue on appeal until after the Board
relinquishes jurisdiction.
[[Page 6]]
Sec. 501.3 Notice of Appeal.
(a) Who may file. Any person adversely affected by a final decision
of the Director, or his or her authorized Representative, may file for
review of such decision by the Board.
(b) Place of filing. The notice of appeal shall be filed with the
Clerk at 200 Constitution Avenue, NW., Washington, DC 20210.
(c) Content of notice of appeal. A notice of appeal shall contain
the following information:
(1) Date of Appeal.
(2) Full name, address and telephone number of the Appellant and the
full name of any deceased employee on whose behalf an appeal is taken.
In addition, the Appellant must provide a signed authorization
identifying the full name, address and telephone number of his or her
Representative, if applicable.
(3) Employing establishment, and the date, description and place of
injury.
(4) Date and Case File Number assigned by OWCP concerning the
decision being appealed to the Board.
(5) A statement explaining Appellant's disagreement with OWCP's
decision and stating the factual and/or legal argument in favor of the
appeal.
(6) Signature: An Appellant must sign the notice of appeal.
(d) Substitution of appellant: Should the Appellant die after having
filed an appeal with the Board, the appeal may proceed to decision
provided there is the substitution of a proper Appellant who requests
that the appeal proceed to decision by the Board.
(e) Time limitations for filing. Any notice of appeal must be filed
within 180 days from the date of issuance of a decision of the OWCP. The
Board maintains discretion to extend the time period for filing an
appeal if an applicant demonstrates compelling circumstances. Compelling
circumstances means circumstances beyond the Appellant's control that
prevent the timely filing of an appeal and does not include any delay
caused by the failure of an individual to exercise due diligence in
submitting a notice of appeal.
(f) Date of filing. A notice of appeal complying with paragraph (c)
of this section is considered to have been filed only if received by the
Clerk by the close of business within the period specified under
paragraph (e) of this section, except as otherwise provided in this
subsection:
(1) If the notice of appeal is sent by United States Mail or
commercial carrier and use of the date of delivery as the date of filing
would result in a loss of appeal rights, the appeal will be considered
to have been filed as of the date of postmark or other carriers' date
markings. The date appearing on the U.S. Postal Service postmark or
other carriers' date markings (when available and legible) shall be
prima facie evidence of the date of mailing. If there is no such
postmark or date marking or it is not legible, other evidence, such as,
but not limited to, certified mail receipts, certificate of service and
affidavits, may be used to establish the mailing date. If a notice of
appeal is delivered or sent by means other than United States Mail or
commercial carrier, including personal delivery or fax, the notice is
deemed to be received when received by the Clerk.
(2) In computing the date of filing, the 180 day time period for
filing an appeal begins to run on the day following the date of the OWCP
decision. The last day of the period so computed shall be included,
unless it is a Saturday, Sunday or Federal holiday, in which event the
period runs to the close of the next business day.
(g) Failure to timely file a notice of appeal. The failure of an
Appellant or Representative to file an appeal with the Board within the
period specified under paragraph (e) of this section, including any
extensions granted by the Board in its discretion based upon compelling
circumstances, will foreclose all right to review. The Board will
dismiss any untimely appeal for lack of jurisdiction.
(h) Incomplete notice of appeal. Any timely notice of appeal that
does not contain the information specified in paragraph (c) of this
section will be considered incomplete. On receipt by the Board, the
Clerk will inform Appellant of the deficiencies in the notice of appeal
and specify a reasonable time to submit the requisite information. Such
appeal will be dismissed unless Appellant provides the requisite
information in the time specified by the Clerk.
[[Page 7]]
Sec. 501.4 Case record; inspection; submission of pleadings and motions.
(a) Service on OWCP and transmission of OWCP case record. The Board
shall serve upon the Director a copy of each notice of appeal and
accompanying documents. Within 60 days from the date of such service,
the Director shall provide to the Board the record of the OWCP
proceeding to which the notice refers. On application of the Director,
the Board may, in its discretion, extend the time period for submittal
of the OWCP case record.
(b) Inspection of record. The case record on appeal is an official
record of the OWCP.
(1) Upon written application to the Clerk, an Appellant may request
inspection of the OWCP case record. At the discretion of the Board, the
OWCP case record may either be made available in the Office of the Clerk
of the Appellate Boards for inspection by the Appellant, or the request
may be forwarded to the Director so that OWCP may make a copy of the
OWCP case record and forward this copy to the Appellant. Inspection of
the papers and documents included in the OWCP case record of any appeal
pending before the Board will be permitted or denied in accordance with
5 CFR 10.10 to 10.13. The Chief Judge (or his or her designee) shall
serve as the disclosure officer for purposes of Appendix A to 29 CFR
Parts 70 and 71.
(2) Copies of the documents generated in the course of the appeal
before the Board will be provided to the Appellant and Appellant's
Representative by the Clerk. If the Appellant needs additional copies of
such documents while the appeal is pending, the Appellant may obtain
this information by contacting the Clerk. Pleadings and motions filed
during the appeal in proceedings before the Board will be made part of
the official case record of the OWCP.
(c) Pleadings. The Appellant, the Appellant's Representative and the
Director may file pleadings supporting their position and presenting
information, including but not limited to briefs, memoranda of law,
memoranda of justification, and optional form AB-1. All pleadings filed
must contain the docket number and be filed with the Clerk. The Clerk
will issue directions specifying the time allowed for any responses and
replies.
(1) The Clerk will distribute copies of any pleading received by the
Clerk to ensure that the Appellant, his or her Representative and the
Director receive all pleadings. Any pleading should be submitted within
60 days of the filing of an appeal. The Board may, in its discretion,
extend the time period for the submittal of any pleading.
(2) Proceedings before the Board are informal and there is no
requirement that any pleading be filed. Failure to submit a pleading or
to timely submit a pleading does not prejudice the rights of either the
Appellant or the Director.
(3) Upon receipt of a pleading, the Appellant and the Director will
have the opportunity to submit a response to the Board.
(d) Motions. Motions are requests for the Board to take specific
action in a pending appeal. Motions include, but are not limited to,
motions to dismiss, affirm the decision below, remand, request a
substitution, request an extension of time, or other such matter as may
be brought before the Board. Motions may be filed by the Appellant, the
Appellant's Representative and the Director. The motion must be in
writing, contain the docket number, state the relief requested and the
basis for the relief requested, and be filed with the Clerk. Any motion
received will be sent by the Clerk to ensure that the Appellant, his or
her Representative and the Director receive all motions. The Clerk will
issue directions specifying the timing of any responses and replies. The
Board also may act on its own to issue direction in pending appeals,
stating the basis for its determination.
(e) Number of copies. All filings with the Board, including any
notice of appeal, pleading, or motion shall include an original and two
(2) legible copies.
Sec. 501.5 Oral argument.
(a) Oral argument. Oral argument may be held in the discretion of
the Board, on its own determination or on application by Appellant or
the Director.
(b) Request. A request for oral argument must be submitted in
writing to
[[Page 8]]
the Clerk. The application must specify the issue(s) to be argued and
provide a statement supporting the need for oral argument. The request
must be made no later than 60 days after the filing of an appeal. Any
appeal in which a request for oral argument is not granted by the Board
will proceed to a decision based on the case record and any pleadings
submitted.
(c) Notice of argument. If a request for oral argument is granted,
the Clerk will notify the Appellant and the Director at least 30 days
before the date set for argument. The notice of oral argument will state
the issues that the Board has determined will be heard.
(d) Time allowed. Appellant and any Representative for the Director
shall be allowed no more than 30 minutes to present oral argument. The
Board may, in its discretion, extend the time allowed.
(e) Appearances. An Appellant may appear at oral argument before the
Board or designate a Representative. Argument shall be presented by the
Appellant or a Representative, not both. The Director may be represented
by an attorney with the Solicitor of Labor. Argument is limited to the
evidence of record on appeal.
(f) Location. Oral argument is heard before the Board only in
Washington, DC. The Board does not reimburse costs associated with
attending oral argument.
(g) Continuance. Once oral argument has been scheduled by the Board,
a continuance will not be granted except on a showing of good cause.
Good cause may include extreme hardship or where attendance by an
Appellant or Representative is mandated at a previously scheduled
judicial proceeding. Any request for continuance must be received by the
Board at least 15 days before the date scheduled for oral argument and
be served by the requester upon Appellant and the Director. No request
for a second continuance will be entertained by the Board. In such case,
the appeal will proceed to a decision based on the case record. The
Board may reschedule or cancel oral argument on its own motion at any
time.
(h) Nonappearance. The absence of an Appellant, his or her
Representative, or the Director at the time and place set for oral
argument will not delay the Board's resolution of an appeal. In such
event, the Board may, in its discretion, reschedule oral argument, or
cancel oral argument and treat the case as submitted on the case record.
Sec. 501.6 Decisions and orders.
(a) Decisions. A decision of the Board will contain a written
opinion setting forth the reasons for the action taken and an
appropriate order. The decision is based on the case record, all
pleadings and any oral argument. The decision may consist of an
affirmance, reversal or remand for further development of the evidence,
or other appropriate action.
(b) Panels. A decision of not less than two judges will be the
decision of the Board.
(c) Issuance. The date of the Board's decision is the date of
issuance or such date as determined by the Board. Issuance is not
determined by the postmark on any letter containing the decision or the
date of actual receipt by Appellant or the Director.
(d) Finality. The decisions and orders of the Board are final as to
the subject matter appealed, and such decisions and orders are not
subject to review, except by the Board. The decisions and orders of the
Board will be final upon the expiration of 30 days from the date of
issuance unless the Board has fixed a different period of time therein.
Following the expiration of that time, the Board no longer retains
jurisdiction over the appeal unless a timely petition for
reconsideration is submitted and granted.
(e) Dispositive orders. The Board may dispose of an appeal on a
procedural basis by issuing an appropriate order disposing of part or
all of a case prior to reaching the merits of the appeal. The Board may
proceed to an order on its own or on the written motion of Appellant or
the Director.
(f) Service. The Board will send its decisions and orders to the
Appellant, his or her Representative and the Director at the time of
issuance.
Sec. 501.7 Petition for reconsideration.
(a) Time for filing. The Appellant or the Director may file a
petition for reconsideration of a decision or order
[[Page 9]]
issued by the Board within 30 days of the date of issuance, unless
another time period is specified in the Board's order.
(b) Where to File. The petition must be filed with the Clerk. Copies
will be sent by the Clerk to the Director, the Appellant and his or her
Representative in the time period specified by the Board.
(c) Content of petition. The petition must be in writing. The
petition must contain the docket number, specify the matters claimed to
have been erroneously decided, provide a statement of the facts upon
which the petitioner relies, and a discussion of applicable law. New
evidence will not be considered by the Board in a petition for
reconsideration.
(d) Panel. The panel of judges who heard and decided the appeal will
rule on the petition for reconsideration. If any member of the original
panel is unavailable, the Chief Judge may designate a new panel member.
The decision or order of the Board will stand as final unless vacated or
modified by the vote of at least two members of the reconsideration
panel.
(e) Answer. Upon the filing of a petition for reconsideration,
Appellant or the Director may file an answer to the petition within such
time as fixed by the Board.
(f) Oral argument and decision on reconsideration. An oral argument
may be allowed at the discretion of the Board upon application of the
Appellant or Director or the Board may proceed to address the matter
upon the papers filed. The Board shall grant or deny the petition for
reconsideration and issue such orders as it deems appropriate.
Sec. 501.8 Clerk of the Office of the Appellate Boards; docket of
proceedings; records.
(a) Location and business hours. The Office of the Clerk of the
Appellate Boards is located at 200 Constitution Avenue, NW., Washington,
DC 20210. The Office of the Clerk is open during business hours on all
days except Saturdays, Sundays and Federal holidays, from 8:30 a.m. to 5
p.m.
(b) Docket. The Clerk will maintain a docket containing a record of
all proceedings before the Board. Each docketed appeal will be assigned
a number in chronological order based upon the date on which the notice
of appeal is received. While the Board generally hears appeals in the
order docketed, the Board retains discretion to change the order in
which a particular appeal will be considered. The Clerk will prepare a
calendar of cases submitted or awaiting oral argument and such other
records as may be required by the Board.
(c) Publication of decisions. Final decisions of the Board will be
published in such form as to be readily available for inspection by the
general public.
Sec. 501.9 Representation; appearances and fees.
(a) Representation. In any proceeding before the Board, an Appellant
may appear in person or by appointing a duly authorized individual as
his or her Representative.
(1) Counsel. The designated Representative may be an attorney who
has been admitted to practice and who is in good standing with any court
of competent jurisdiction.
(2) Lay representative. A non-attorney Representative may represent
an Appellant before the Board. He or she may be an accredited
Representative of an employee organization.
(3) Former members of the Board and other employees of the
Department of Labor. A former judge of the Board is not allowed to
participate as counsel or other Representative before the Board in any
proceeding until two years from the termination of his or her status as
a judge of the Board. The practice of a former judge or other former
employee of the Department of Labor is governed by 29 CFR Part 0,
Subpart B.
(b) Appearance. No individual may appear as a Representative in a
proceeding before the Board without first filing with the Clerk a
written authorization signed by the Appellant to be represented. When
accepted by the Board, such Representative will continue to be
recognized unless the Representative withdraws or abandons such capacity
or the Appellant directs otherwise.
(c) Change of address. Each Appellant and Representative authorized
to appear before the Board must give the
[[Page 10]]
Clerk written notice of any change to the address or telephone number of
the Appellant or Representative. Such notice must identify the docket
number and name of each pending appeal for that Appellant, or, in the
case of a Representative, in which he or she is a Representative before
the Board. Absent such notice, the mailing of documents to the address
most recently provided to the Board will be fully effective.
(d) Debarment of Counsel or Representative. In any proceeding,
whenever the Board finds that a person acting as counsel or other
Representative for the Appellant or the Director, is guilty of unethical
or unprofessional conduct, the Board may order that such person be
excluded from further acting as counsel or Representative in such
proceeding. Such order may be appealed to the Secretary of Labor or his
or her designee, but proceedings before the Board will not be delayed or
suspended pending disposition of such appeal. However, the Board may
suspend the proceeding of an appeal for a reasonable time for the
purpose of enabling Appellant or the Director to obtain different
counsel or other Representative. Whenever the Board has issued an order
precluding a person from further acting as counsel or Representative in
a proceeding, the Board will, within a reasonable time, submit to the
Secretary of Labor or his or her designee a report of the facts and
circumstances surrounding the issuance of such order. The Board will
recommend what action the Secretary of Labor should take in regard to
the appearance of such person as counsel or Representative in other
proceedings before the Board. Before any action is taken debarring a
person as counsel or Representative from other proceedings, he or she
will be furnished notice and the opportunity to be heard on the matter.
(e) Fees for attorney, Representative, or other services. No claim
for a fee for legal or other service performed on appeal before the
Board is valid unless approved by the Board. Under 18 U.S.C. 292,
collecting a fee without the approval of the Board may constitute a
misdemeanor, subject to fine or imprisonment for up to a year or both.
No contract for a stipulated fee or on a contingent fee basis will be
approved by the Board. No fee for service will be approved except upon
written application to the Clerk, supported by a statement of the extent
and nature of the necessary work performed before the Board on behalf of
the Appellant. The fee application will be served by the Clerk on the
Appellant and a time set in which a response may be filed. Except where
such fee is de minimis, the fee request will be evaluated with
consideration of the following factors:
(1) Usefulness of the Representative's services;
(2) The nature and complexity of the appeal;
(3) The capacity in which the Representative has appeared;
(4) The actual time spent in connection with the Board appeal; and
(5) Customary local charges for similar services.
PARTS 502 599 [RESERVED]
[[Page 11]]
CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
--------------------------------------------------------------------
Part Page
600
[Reserved]
601 Administrative procedure.................... 13
602 Quality control in the Federal-State
unemployment insurance system........... 16
603 Federal-State Unemployment Compensation (UC)
Program; confidentiality and disclosure
of State UC information................. 24
604 Regulations for eligibility for unemployment
compensation............................ 35
606 Tax credits under the Federal Unemployment
Tax Act; advances under Title XII of the
Social Security Act..................... 38
609 Unemployment compensation for Federal
civilian employees...................... 47
614 Unemployment compensation for ex-
servicemembers.......................... 59
615 Extended benefits in the Federal-State
Unemployment Compensation Program....... 80
616 Interstate arrangement for combining
employment and wages.................... 98
617 Trade adjustment assistance for workers
under the Trade Act of 1974............. 102
618 Trade adjustment assistance under the Trade
Act of 1974, as amended................. 152
619 Unemployment compensation data exchange
standardization for improved
interoperability........................ 155
620-621
[Reserved]
625 Disaster unemployment assistance............ 156
626-634
[Reserved]
636-638
[Reserved]
639 Worker adjustment and retraining
notification............................ 182
640 Standard for benefit payment promptness--
unemployment compensation............... 192
641 Provisions governing the Senior Community
Service Employment Program.............. 195
[[Page 12]]
645 Provisions governing welfare-to-work grants. 236
646
[Reserved]
650 Standard for appeals promptness--
unemployment compensation............... 259
651 General provisions governing the Federal-
State Employment Service System......... 260
652 Establishment and functioning of State
employment services..................... 265
653 Services of the Employment Service System... 273
654 Special responsibilities of the Employment
Service System.......................... 291
655 Temporary employment of foreign workers in
the United States....................... 300
656 Labor certification process for permanent
employment of aliens in the United
States.................................. 543
[[Page 13]]
PART 600 [RESERVED]
PART 601_ADMINISTRATIVE PROCEDURE--Table of Contents
Subpart A_Approval, Certification and Findings With Respect to State
Laws and Plans of Operation for Normal and Additional Tax Credit and
Grant Purposes
Sec.
601.1 General.
601.2 Approval of State unemployment compensation laws.
601.3 Findings with respect to State laws and plans of operation.
601.4 Certification for tax credit.
601.5 Withholding payments and certifications.
Subpart B_Grants, Advances and Audits
601.6 Grants for administration of unemployment compensation laws and
employment service.
601.7 [Reserved]
601.8 Agreement with Postmaster General.
601.9 Audits.
Authority: 5 U.S.C. 301; 26 U.S.C. Chapter 23; 29 U.S.C. 49k; 38
U.S.C. Chapters 41 and 42; 39 U.S.C. 3202(a)(1)(E) and 3202 note; 42
U.S.C. 1302; and Secretary of Labor's Order No. 4-75, 40 FR 18515.
Source: 15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, unless
otherwise noted.
Editorial Note: Nomenclature changes to part 601 appear at 71 FR
35512, June 21, 2006.
Subpart A_Approval, Certification and Findings With Respect to State
Laws and Plans of Operation for Normal and Additional Tax Credit and
Grant Purposes
Sec. 601.1 General.
(a) State unemployment compensation laws are approved and certified
as provided in section 3304 of the Internal Revenue Code of 1986;
findings are made regarding reduced rates permitted by a State law
(section 3303(a) of the Internal Revenue Code of 1986) and such laws are
certified as provided in section 3303(b) of the Internal Revenue Code of
1986; findings are made regarding the inclusion of specified provisions
(section 303(a) of the Social Security Act) in State laws approved under
section 3304(a) of the Internal Revenue Code of 1986; findings are made
whether the States have accepted the provisions of the Wagner-Peyser Act
and whether their plans of operation for public employment offices
comply with the provisions of said Act.
(b) Normal and additional tax credit is given to taxpayers against
taxes imposed by section 3301 of the Internal Revenue Code of 1986.
(c) Grants of funds are made to States for administration of their
employment security laws if their unemployment compensation laws and
their plans of operation for public employment offices meet required
conditions of Federal law. (Section 303(a) of the Social Security Act;
section 3304(a) of the Internal Revenue Code of 1986; sections 6, 7, and
8 of the Wagner-Peyser Act.)
(d) As used throughout this Part, the terms ``Secretary'' or
``Secretary of Labor'' shall refer to the Secretary of Labor, U.S.
Department of Labor, or his or her designee.
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 61
FR 19983, May 3, 1996]
Sec. 601.2 Approval of State unemployment compensation laws.
States may at their option submit their unemployment compensation
laws for approval (section 3304(a) of the Internal Revenue Code of
1986).
(a) Submission. The States submit to the Employment and Training
Administration (ETA), one copy of the State unemployment compensation
law properly certified by an authorized State official to be true and
complete, together with a written request for approval.
(b) [Reserved]
(c) Approval. The Secretary of Labor determines whether the State
law contains the provisions required by section 3304(a) of the Internal
Revenue Code of 1986. If the State law is approved, the Secretary
notifies the Governor of the State within 30 days of the submission of
such law.
(d) Certification. On October 31 of each taxable year the Secretary
of Labor certifies, for the purposes of normal tax credit (section
3302(a)(1) of the Internal Revenue Code of 1986), to the Secretary of
the Treasury each State
[[Page 14]]
the law of which the Secretary has previously approved. (See also Sec.
601.5.)
(Approved by the Office of Management and Budget under control number
1205-0222)
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 49
FR 18295, Apr. 30, 1984; 50 FR 51241, Dec. 16, 1985; 71 FR 35513, June
21, 2006]
Sec. 601.3 Findings with respect to State laws and plans of operation.
For purposes of grants, findings are made regarding the inclusion in
State unemployment compensation laws, approved under section 3304(a) of
the Internal Revenue Code of 1986, of provisions required by section
303(a) of the Social Security Act (see Sec. 601.2); findings are also
made whether a State has accepted the provisions of the Wagner-Peyser
Act and whether its plan of operation for public employment offices
complies with the provisions of said act. For purposes of additional tax
credit, findings are made regarding reduced rates of contributions
permitted by the State law (section 3303(a) (1) of the Internal Revenue
Code of 1986).
So that the Secretary of Labor may be enabled to determine the status of
State laws and plans of operation, all relevant State materials, such as
statutes, executive and administrative orders, legal opinions, rules,
regulations, interpretations, court decisions, etc., are required to be
submitted currently.
(a) Submission. The States submit currently to the ETA one copy of
relevant State material, properly certified by an authorized State
official to be true and complete.
(b) [Reserved]
(c) Findings. The Secretary makes findings as provided in the cited
sections of the Federal law. In the event that the Secretary is unable
to make the findings required for certification for payment or for
certification of the law for purposes of additional tax credit, further
discussions with State officials are undertaken.
(Approved by the Office of Management and Budget under control number
1205-0222)
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 49
FR 18295, Apr. 30, 1984; 50 FR 51241, Dec. 16, 1985; 71 FR 35513, June
21, 2006]
Sec. 601.4 Certification for tax credit.
(a) Within 30 days after submittal of a State unemployment
compensation law for such purpose, the Secretary certifies to the State
agency, in accordance with the provisions of section 3303(b)(3) of the
Internal Revenue Code of 1986, the Secretary's findings regarding
reduced rates of contributions allowable under such law. On October 31
of each taxable year the Secretary certifies to the Secretary of the
Treasury the law of each State, certified with respect to such year
under section 3304 of the Internal Revenue Code of 1986 (see Sec.
601.2), which the Secretary finds allows reduced rates with respect to
such taxable year only in accordance with the provisions of section
3303(a) of the Internal Revenue Code of 1986.
(b) With regard to certification for payment, see Sec. 601.6.
[15 FR 5886, Aug. 31, 1950; 23 FR 1267, Mar. 1, 1958, as amended at 71
FR 35513, June 21, 2006]
Sec. 601.5 Withholding payments and certifications.
(a) When withheld. Payment of funds to States or yearend
certification of State laws, or both, are withheld when the Secretary
finds, after reasonable notice and opportunity for hearing:
(1) That any provision required by section 303(a) of the Social
Security Act is no longer included in the State unemployment
compensation law; or
(2) That the State unemployment compensation law has been so changed
as no longer to meet the conditions required by section 3303(a) of the
Internal Revenue Code of 1986 (section 3303(b)(3) of the Internal
Revenue Code); or
(3) That the State unemployment compensation law has been so amended
as no longer to contain the provisions specified in section 3304(a) or
has failed to comply substantially with any such provision and such
finding has become effective (section 3304(c) of the Internal Revenue
Code of 1986); or
(4) That in the administration of the State unemployment
compensation law there has been a failure to comply substantially with
required provisions of such law (section 303(b)(2) of the Social
Security Act and section 3303(b)(3) of the Internal Revenue Code of
1986); or
[[Page 15]]
(5) That in the administration of the State unemployment
compensation law there has been a denial, in a substantial number of
cases, of benefits due under such law, except that there may be no such
finding until the question of entitlement has been decided by the
highest judicial authority given jurisdiction under such State law
(section 303(b)(1) of the Social Security Act); or
(6) That a State fails to make its unemployment compensation records
available to the Railroad Retirement Board or fails to cooperate with
Federal agencies charged with the administration of unemployment
compensation laws (section 303(c) of the Social Security Act); or
(7) That a State no longer has a plan of operation for public
employment offices complying with the provisions of the Wagner-Peyser
Act; or
(8) That a State agency has not properly expended, in accordance
with an approved plan of operation, the Federal monies paid it for
administration of its public employment service.
(b) Informal discussion. Such hearings are generally not called,
however, until after every reasonable effort has been made by ETA
representatives to resolve the question involved by conference and
discussion with State officials. Formal notification of the date and
place of a hearing does not foreclose further negotiations with State
officials.
(c) Notice of noncertification. If, at any time during the taxable
year, the Secretary of Labor has reason to believe that a State whose
unemployment compensation law he/she has previously approved may not be
certified, the Secretary promptly notifies the Governor of the State to
that effect (section 3304(d) of the Internal Revenue Code of 1986).
(d) Notice of hearing. Notice of hearing is sent by the Secretary of
Labor to the State unemployment compensation agency. The notice sets
forth the purpose of the hearing, the time, date, and place at which the
hearing will be held, and the rules of procedure which will be followed.
At a hearing the State is given an opportunity to present arguments and
all relevant evidence, written or oral. The Secretary makes the
necessary determination or findings, on the basis of the record of such
hearings. A notice of the Secretary's determination or finding is sent
to the State unemployment compensation agency.
(e) Civil Rights Act issues. To the extent that any proposed
withholding of funds involves circumstances within the scope of title VI
of the Civil Rights Act of 1964 and the regulations promulgated
thereunder, the procedure set forth in 29 CFR part 31 shall be
applicable.
[30 FR 6942, May 22, 1965, as amended at 43 FR 13828, Mar. 31, 1978; 71
FR 35513, June 21, 2006]
Subpart B_Grants, Advances and Audits
Sec. 601.6 Grants for administration of unemployment compensation
laws and employment service.
Grants of funds for administration of State unemployment
compensation laws and public employment service programs are made to
States under section 302(a) of the Social Security Act, the Wagner-
Peyser Act, and the Appropriation Acts.
(a) Requests for funds. The forms and instructions used by State
agencies in requesting funds are available on the ETA Web site (http://
www.ows.doleta.gov/rjm). The forms and instructions call for detailed
information for each budgetary period concerning the specific amounts
requested for personal services and other current expenses of State
agencies, supported by workload and unit-cost estimates. Supplementary
budget requests are processed in the same manner as regular requests.
The Administration's representatives in the regional offices furnish
assistance to the State agencies in preparing requests for funds.
(b) Processing of requests. (1) State agencies send their requests
for funds to the Regional Administrator who reviews the requests and
forwards them to the ETA National Office with his/her recommendation as
to the amounts necessary for proper and efficient administration of the
State unemployment compensation law and employment service program.
(2) The ETA National Office appraises the requests and the
recommendations
[[Page 16]]
of the regional representatives from a nationwide point of view,
examining each State's request in the light of the experience of other
States to insure equitable treatment among the States in the allocation
of funds made available by Congress for the administration of State
unemployment compensation laws and public employment service programs.
(c) Action by ETA National Office. If the ETA National Office
approves the State's budget request, the State agency is notified; and,
provided the conditions precedent to grants continue during the
budgetary period, certifications for payment, under the approved budget,
stating the amounts, are made by the ETA National Office to the
Secretary of the Treasury quarterly. Upon denial of a request, in whole
or in part, the State agency is notified and the Regional Administrator
is instructed to negotiate with the State with a view to removing the
basis for denial.
(Approved by the Office of Management and Budget under control number
1205-0132)
[15 FR 5886, Aug. 31, 1950, as amended at 42 FR 4724, Jan. 25, 1977; 49
FR 18295, Apr. 30, 1984; 71 FR 35513, June 21, 2006]
Sec. 601.7 [Reserved]
Sec. 601.8 Agreement with Postmaster General.
The Secretary of Labor and the Postmaster General have been directed
by the Congress (title II of the Labor-Federal Security Agency
Appropriation Act, 1950) to prescribe a mutually satisfactory procedure
whereby official State employment security postal matter will be handled
without the prepayment of postage. In lieu of such prepayments, the
Secretary periodically certifies to the Secretary of the Treasury for
payment to the U.S. Postal Service the amount necessary to cover the
cost of State agency mailings. The amount of payment is based on a
formula agreed upon by the Secretary of Labor and the U.S. Postal
Service.
[15 FR 5886, Aug. 31, 1950, as amended at 42 FR 4724, Jan. 25, 1977]
Sec. 601.9 Audits.
The Department of Labor's audit regulations at 29 CFR Part 96 and 29
CFR Part 99 shall apply with respect to employment service and
unemployment compensation programs.
[46 FR 7766, Jan. 23, 1981, as amended at 71 FR 35513, June 21, 2006]
PART 602_QUALITY CONTROL IN THE FEDERAL-STATE UNEMPLOYMENT INSURANCE SYSTEM
--Table of Contents
Subpart A_General Provisions
Sec.
602.1 Purpose.
602.2 Scope.
Subpart B_Federal Requirements
602.10 Federal law requirements.
602.11 Secretary's interpretation.
Subpart C_State Responsibilities
602.20 Organization.
602.21 Standard methods and procedures.
602.22 Exceptions.
Subpart D_Federal Responsibilities
602.30 Management.
602.31 Oversight.
Subpart E_Quality Control Grants to States
602.40 Funding.
602.41 Proper expenditure of Quality Control granted funds.
602.42 Effect of failure to implement Quality Control program.
602.43 No incentives or sanctions based on specific error rates.
Appendix A to Part 602--Standard For Claim Determinations--Separation
Information
Authority: 42 U.S.C. 1302.
Source: 52 FR 33528, Sept. 3, 1987, unless otherwise noted.
Editorial Note: Nomenclature changes to part 602 appear at 71 FR
35513, June 21, 2006.
Subpart A_General Provisions
Sec. 602.1 Purpose.
The purpose of this part is to prescribe a Quality Control (QC)
program for the Federal-State unemployment compensation (UC) system,
which is applicable to the State UC programs and the Federal
unemployment benefit and allowance programs administered by the State
unemployment compensation agencies under agreements between the States
and the Secretary of
[[Page 17]]
Labor (Secretary). QC will be a major tool to assess the timeliness and
accuracy of State administration of the UC program. It is designed to
identify errors in claims processes and revenue collections (including
payments in lieu of contributions and Extended Unemployment Compensation
Account collections), analyze causes, and support the initiation of
corrective action.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Sec. 602.2 Scope.
This part applies to all State laws approved by the Secretary under
the Federal Unemployment Tax Act (section 3304 of the Internal Revenue
Code of 1986, 26 U.S.C. section 3304), to the administration of the
State laws, and to any Federal unemployment benefit and allowance
program administered by the State unemployment compensation agencies
under agreements between the States and the Secretary. QC is a
requirement for all States, initially being applicable to the largest
permanently authorized programs (regular UC including Combined-Wage-
Claims) and federally-funded programs (Unemployment Compensation for Ex-
Servicemembers and Unemployment Compensation for Federal Employees).
Other elements of the QC program (e.g., interstate, extended benefit
programs, benefit denials, and revenue collections) will be phased in
under a schedule determined by the Department in consultation with State
agencies.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Subpart B_Federal Requirements
Sec. 602.10 Federal law requirements.
(a) Section 303(a)(1) of the Social Security Act (SSA), 42 U.S.C.
503(a)(1), requires that a State law include provision for:
Such methods of administration . . . as are found by the Secretary
of Labor to be reasonably calculated to insure full payment of
unemployment compensation when due.
(b) Section 303(a)(6), SSA, 42 U.S.C. 505(a)(6), requires that a
State law include provision for:
The making of such reports, in such form and containing such
information, as the Secretary of Labor may from time to time require,
and compliance with such provisions as the Secretary of Labor may from
time to time find necessary to assure the correctness and verification
of such reports.
(c) Section 303(b), SSA, 42 U.S.C. 503(b), provides in part that:
Whenever the Secretary of Labor, after reasonable notice and
opportunity for hearing to the State agency charged with the
administration of the State law, finds that in the administration of the
law there is--
* * * * *
(2) a failure to comply substantially with any provision specified
in subsection (a);
the Secretary of Labor shall notify such State agency that further
payments will not be made to the State until the Secretary of Labor is
satisfied that there is no longer any such denial or failure to comply.
Until he is so satisfied, he shall make no further certification to the
Secretary of the Treasury with respect to such State . . . .
(d) Certification of payment of granted funds to a State is withheld
only when the Secretary finds, after reasonable notice and opportunity
for hearing to the State agency--
(1) That any provision required by section 303(a) of the Social
Security Act is no longer included in the State UC law, or
(2) That in the administration of the State UC law there has been a
failure to comply substantially with any required provision of such law.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Sec. 602.11 Secretary's interpretation.
(a) The Secretary interprets section 303(a)(1), SSA, to require that
a State law provide for such methods of administration as will
reasonably ensure the prompt and full payment of unemployment benefits
to eligible claimants, and collection and handling of income for the
State unemployment fund (particularly taxes and reimbursements), with
the greatest accuracy feasible.
(b) The Secretary interprets sections 303(a)(1) and 303(a)(6), SSA,
to authorize the Department of Labor to prescribe standard definitions,
methods
[[Page 18]]
and procedures, and reporting requirements for the QC program and to
ensure accuracy and verification of QC findings.
(c) The Secretary interprets section 303(b)(2), SSA to require that,
in the administration of a State law, there shall be substantial
compliance with the provisions required by sections 303(a) (1) and (6).
Further, conformity of the State law with those requirements is required
by section 303(a) and Sec. 601.5(a) of this chapter.
(d) To satisfy the requirements of sections 303(a) (1) and (6), a
State law must contain a provision requiring, or which is construed to
require, the establishment and maintenance of a QC program in accordance
with the requirements of this part. The establishment and maintenance of
such a QC program in accordance with this part shall not require any
change in State law concerning authority to undertake redeterminations
of claims or liabilities or the finality of any determination,
redetermination or decision.
Subpart C_State Responsibilities
Sec. 602.20 Organization.
Each State shall establish a QC unit independent of, and not
accountable to, any unit performing functions subject to evaluation by
the QC unit. The organizational location of this unit shall be
positioned to maximize its objectivity, to facilitate its access to
information necessary to carry out its responsibilities, and to minimize
organizational conflict of interest.
Sec. 602.21 Standard methods and procedures.
Each State shall:
(a) Perform the requirements of this section in accordance with
instructions issued by the Department, pursuant to Sec. 602.30(a) of
this part, to ensure standardization of methods and procedures in a
manner consistent with this part;
(b) Select representative samples for QC study of at least a minimum
size specified by the Department to ensure statistical validity (for
benefit payments, a minimum of 400 cases of weeks paid per State per
year);
(c) Complete prompt and in-depth case investigations to determine
the degree of accuracy and timeliness in the administration of the State
UC law and Federal programs with respect to benefit determinations,
benefit payments, and revenue collections; and conduct other
measurements and studies necessary or appropriate for carrying out the
purposes of this part; and in conducting investigations each State
shall:
(1) Inform claimants in writing that the information obtained from a
QC investigation may affect their eligibility for benefits and inform
employers in writing that the information obtained from a QC
investigation of revenue may affect their tax liability,
(2) Use a questionnaire, prescribed by the Department, which is
designed to obtain such data as the Department deems necessary for the
operation of the QC program; require completion of the questionnaire by
claimants in accordance with the eligibility and reporting authority
under State law,
(3) Collect data identified by the Department as necessary for the
operation of the QC program; however, the collection of demographic data
will be limited to those data which relate to an individual's
eligibility for UC benefits and necessary to conduct proportions tests
to validate the selection of representative samples (the demographic
data elements necessary to conduct proportions tests are claimants' date
of birth, sex, and ethnic classification); and
(4) Conclude all findings of inaccuracy as detected through QC
investigations with appropriate official actions, in accordance with the
applicable State and Federal laws; make any determinations with respect
to individual benefit claims in accordance with the Secretary's
``Standard for Claim Determinations--Separation Information'' in the
Employment Security Manual, part V, sections 6010-6015 (appendix A of
this part);
(d) Classify benefit case findings resulting from QC investigations
as:
(1) Proper payments, underpayments, or overpayments in benefit
payment cases, or
(2) Proper denials or underpayments in benefit denial cases;
(e) Make and maintain records pertaining to the QC program, and make
[[Page 19]]
all such records available in a timely manner for inspection,
examination, and audit by such Federal officials as the Secretary may
designate or as may be required or authorized by law;
(f) Furnish information and reports to the Department, including
weekly transmissions of case data entered into the automated QC system
and annual reports, without, in any manner, identifying individuals to
whom such data pertain; and
(g) Release the results of the QC program at the same time each
year, providing calendar year results using a standardized format to
present the data as prescribed by the Department; States will have the
opportunity to release this information prior to any release by the
Department.
(Approved by the Office of Management and Budget under Control Number
1205-0245)
Sec. 602.22 Exceptions.
If the Department determines that the QC program, or any constituent
part of the QC program, is not necessary for the proper and efficient
administration of a State law or in the Department's view is not cost
effective, the Department shall use established procedures to advise the
State that it is partially or totally excepted from the specified
requirements of this part. Any determination under this section shall be
made only after consultations with the State agency.
Subpart D_Federal Responsibilities
Sec. 602.30 Management.
(a) The Department shall establish required methods and procedures
(as specified in Sec. 602.21 of this part); and provide technical
assistance as needed on the QC process.
(b) The Department shall consider and explore alternatives to the
prescribed sampling, study, recordkeeping, and reporting methodologies.
This shall include, but not be limited to, testing the obtaining of
information needed for QC by telephone and mail rather than in face-to-
face interviews.
(c) The Department shall maintain a computerized data base of QC
case data which is transmitted to the Department under Sec. 602.21,
which will be combined with other data for statistical and other
analysis such as assessing the impact of economic cycles, funding
levels, and workload levels on program accuracy and timeliness.
Sec. 602.31 Oversight.
The Department shall review QC operational procedures and samples,
and validate QC methodology to ensure uniformity in the administration
of the QC program and to ensure compliance with the requirements of this
part. The Department shall, for purposes of determining eligibility for
grants described in Sec. 602.40, annually review the adequacy of the
administration of a State's QC program.
Subpart E_Quality Control Grants to States
Sec. 602.40 Funding.
(a) The Department shall use established procedures to notify States
of the availability of funds for the operation of QC programs in
accordance with this part.
(b) The Department may allocate additional resources, if available,
to States for analysis of data generated by the QC program, to increase
the number of claims sampled in areas where more information is needed,
for pilot studies for the purpose of expanding the QC program, and for
corrective action.
[52 FR 33528, Sept. 3, 1987, as amended at 71 FR 35513, June 21, 2006]
Sec. 602.41 Proper expenditure of Quality Control granted funds.
The Secretary may, after reasonable notice and opportunity for
hearing to the State agency, take exception to and require repayment of
an expenditure for the operation of a QC program if it is found by the
Secretary that such expenditure is not necessary for the proper and
efficient administration of the QC program in the State. See sections
303(a)(8), 303(a)(9) and 303(b)(2), SSA, and 20 CFR 601.5. For purposes
of this section, an expenditure will be
[[Page 20]]
found not necessary for proper and efficient administration if such
expenditure fails to comply with the requirements of subpart C of this
part.
[52 FR 33528, Sept. 3, 1987, as amended at 52 FR 34343, Sept. 10, 1987]
Sec. 602.42 Effect of failure to implement Quality Control program.
Any State which the Secretary finds, after reasonable notice and
opportunity for hearing, has not implemented or maintained a QC program
in accordance with this part will not be eligible for any grants under
title III of the Social Security Act until such time as the Secretary is
satisfied that there is no longer any failure to conform or to comply
substantially with any provision specified in this part. See sections
303(a)(1), 303(a)(6), and 303(b)(2), SSA, and 20 CFR 601.5.
Sec. 602.43 No incentives or sanctions based on specific error rates.
Neither sanctions nor funding incentives shall be used by the
Department to influence the achievement of specified error rates in
State UC programs.
Sec. Appendix A to Part 602--Standard for Claim Determinations--
Separation Information
Employment Security Manual (Part V, Sections 6010-6015)
6010 Federal Law Requirements. Section 303(a)(1) of the Social
Security Act requires that a State law include provision for:
``Such methods of administration . . . as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 303(a)(3) of the Social Security Act requires that a State
law include provision for:
``Opportunity for a fair hearing before an impartial tribunal, for
all individuals whose claims for unemployment compensation are denied.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation. . . .''
Section 3306(h) of the Federal Unemployment Tax Act defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
6011 Secretary's Interpretation of Federal Law Requirements. The
Secretary interprets the above sections to require that a State law
include provisions which will insure that:
A. Individuals who may be entitled to unemployment compensation are
furnished such information as will reasonably afford them an opportunity
to know, establish, and protect their rights under the unemployment
compensation law of such State, and
B. The State agency obtains and records in time for the prompt
determination and review of benefit claims such information as will
reasonably insure the payment of benefits to individuals to whom
benefits are due.
6012 Criteria for Review of State Law Conformity with Federal
Requirements:
In determining the conformity of a State law with the above
requirements of the Federal Unemployment Tax Act and the Social Security
Act as interpreted by the Secretary, the following criteria will be
applied:
A. Is it required that individuals who may be entitled to
unemployment compensation be furnished such information of their
potential rights to benefits, including the manner and places of filing
claims, the reasons for determinations, and their rights of appeal, as
will insure them a reasonable opportunity to know, establish, and
protect their rights under the law of the State?
B. Is the State agency required to obtain, in time for prompt
determination of rights to benefits such information as will reasonably
insure the payment of benefits to individuals to whom benefits are due?
C. Is the State agency required to keep records of the facts
considered in reaching determinations of rights to benefits?
6013 Claim Determinations Requirements Designed To Meet Department
of Labor Criteria:
A. Investigation of claims. The State agency is required to obtain
promptly and prior to a determination of an individual's right to
benefits, such facts pertaining thereto as will be sufficient reasonably
to insure the payment of benefits when due.
This requirement embraces five separate elements:
1. It is the responsibility of the agency to take the initiative in
the discovery of information. This responsibility may not be passed on
to the claimant or the employer. In addition to the agency's own
records, this information may be obtained from the worker, the employer,
or other sources. If the information obtained in the first instance
discloses no essential disagreement and provides a sufficient basis for
a fair determination, no further investigation is necessary. If the
information obtained from other sources differs essentially from that
furnished by the claimant, the agency, in order to meet its
responsibility, is required to inform the claimant of such information
from other sources
[[Page 21]]
and to afford the claimant an opportunity to furnish any further facts
he may have.
2. Evidentiary facts must be obtained as distinguished from ultimate
facts or conclusions. That a worker was discharged for misconduct is an
ultimate fact or conclusion; that he destroyed a machine upon which he
was working is a primary or evidentiary fact, and the sort of fact that
the requirement refers to.
3. The information obtained must be sufficient reasonably to insure
the payment of benefits when due. In general, the investigation made by
the agency must be complete enough to provide information upon which the
agency may act with reasonable assurance that its decision is consistent
with the unemployment compensation law. On the other hand, the
investigation should not be so exhaustive and time-consuming as unduly
to delay the payment of benefits and to result in excessive costs.
4. Information must be obtained promptly so that the payment of
benefits is not unduly delayed.
5. If the State agency requires any particular evidence from the
worker, it must give him a reasonable opportunity to obtain such
evidence.
B. Recording of facts. The agency must keep a written record of the
facts considered in reaching its determinations.
C. Determination notices.
1. The agency must give each claimant a written notice of:
a. Any monetary determination with respect to his benefit year;
b. Any determination with respect to purging a disqualification if,
under the State law, a condition or qualification must be satisfied with
respect to each week of disqualification; but in lieu of giving written
notice of each determination for each week in which it is determined
that the claimant has met the requirements for purging, the agency may
inform the claimant that he has purged the disqualification for a week
by notation of his applicant identification card or otherwise in
writing.
c. Any other determination which adversely affects \1\ his rights to
benefits, except that written notice of determination need not be given
with respect to:
---------------------------------------------------------------------------
\1\ A determination ``adversely affects'' claimant's right to
benefits if it (1) results in a denial to him of benefits (including a
cancellation of benefits or wage credits or any reduction in whole or in
part below the weekly or maximum amount established by his monetary
determination) for any week or other period; or (2) denies credit for a
waiting week; or (3) applies any disqualification or penalty; or (4)
determines that he has not satisfied a condition of eligibility,
requalification for benefits, or purging a disqualification; or (5)
determines that an overpayment has been made or orders repayment or
recoupment of any sum paid to him; or (6) applies a previously
determined overpayment, penalty, or order for repayment or recoupment;
or (7) in any other way denies claimant a right to benefits under the
State law.
---------------------------------------------------------------------------
(1) A week in a benefit year for which the claimant's weekly benefit
amount is reduced in whole or in part by earnings if, the first time in
the benefit year that there is such a reduction, he is required to be
furnished a booklet or leaflet containing the information set forth
below in paragraph 2f(1). However, a written notice of determination is
required if: (a) there is a dispute concerning the reduction with
respect to any week (e.g., as to the amount computed as the appropriate
reduction, etc.); or (b) there is a change in the State law (or in the
application thereof) affecting the reduction; or
(2) Any week in a benefit year subsequent to the first week in such
benefit year in which benefits were denied, or reduced in whole or in
part for reasons other than earnings, if denial or reduction for such
subsequent week is based on the same reason and the same facts as for
the first week, and if written notice of determination is required to be
given to the claimant with respect to such first week, and with such
notice of determination, he is required to be given a booklet or
pamphlet containing the information set forth below in paragraphs 2f(2)
and 2h. However, a written notice of determination is required if: (a)
there is a dispute concerning the denial or reduction of benefits with
respect to such week; or (b) there is a change in the State law (or in
the application thereof) affecting the denial or reduction; or (c) there
is a change in the amount of the reduction except as to the balance
covered by the last reduction in a series of reductions.
Note: This procedure may be applied to determinations made with
respect to any subsequent weeks for the same reason and on the basis of
the same facts: (a) that claimant is unable to work, unavailable for
work, or is disqualified under the labor dispute provision; and (b)
reducing claimant's weekly benefit amount because of income other than
earnings or offset by reason of overpayment.
2. The agency must include in written notices of determinations
furnished to claimants sufficient information to enable them to
understand the determinations, the reasons therefor, and their rights to
protest, request reconsideration, or appeal.
The written notice of monetary determination must contain the
information specified in the following items (except h) unless an item
is specifically not applicable. A written
[[Page 22]]
notice of any other determination must contain the information specified
in as many of the following items as are necessary to enable the
claimant to understand the determination and to inform him of his appeal
rights. Information specifically applicable to the individual claimant
must be contained in the written notice of determination. Information of
general application such as (but not limited to) the explanation of
benefits for partial unemployment, information as to deductions,
seasonality factors, and information as to the manner and place of
taking an appeal, extension of the appeal period, and where to obtain
information and assistance may be contained in a booklet or leaflet
which is given the claimant with his monetary determination.
a. Base period wages. The statement concerning base-period wages
must be in sufficient detail to show the basis of computation of
eligibility and weekly and maximum benefit amounts. (If maximum benefits
are allowed, it may not be necessary to show details of earnings.)
b. Employer name. The name of the employer who reported the wages is
necessary so that the worker may check the wage transcript and know
whether it is correct. If the worker is given only the employer number,
he may not be able to check the accuracy of the wage transcript.
c. Explanation of benefit formula--weekly and maximum benefit
amounts. Sufficient information must be given the worker so that he will
understand how his weekly benefit amount, including allowances for
dependents, and his maximum benefit amount were figured. If benefits are
computed by means of a table contained in the law, the table must be
furnished with the notice of determination whether benefits are granted
or denied.
The written notice of determination must show clearly the weekly
benefit amount and the maximum potential benefits to which the claimant
is entitled.
The notice to a claimant found ineligible by reason of insufficient
earnings in the base period must inform him clearly of the reason for
ineligibility. An explanation of the benefit formula contained in a
booklet or pamphlet should be given to each claimant at or prior to the
time he receives written notice of a monetary determination.
d. Benefit year. An explanation of what is meant by the benefit year
and identification of the claimant's benefit year must be included in
the notice of determination.
e. Information as to benefits for partial unemployment. There must
be included either in the written notice of determination or in a
booklet or pamphlet accompanying the notice an explanation of the
claimant's rights to partial benefits for any week with respect to which
he is working less than his normal customary full-time workweek because
of lack of work and for which he earns less than his weekly benefit
amount or weekly benefit amount plus earnings, whichever is provided by
the State law. If the explanation is contained in the notice of
determination, reference to the item in the notice in which his weekly
benefit amount is entered should be made.
f. Deductions from weekly benefits.
(1) Earnings. Although written notice of determinations deducting
earnings from a claimant's weekly benefit amount is generally not
required (see paragraph 1 c (1) above), where written notice of
determination is required (or given) it shall set forth the amount of
earnings, the method of computing the deduction in sufficient detail to
enable the claimant to verify the accuracy of the deduction, and his
right to protest, request redetermination, and appeal. Where a written
notice of determination is given to the claimant because there has been
a change in the State law or in the application of the law, an
explanation of the change shall be included.
Where claimant is not required to receive a written notice of
determination, he must be given a booklet or pamphlet the first time in
his benefit year that there is a deduction for earnings which shall
include the following information:
(a) The method of computing deductions for earnings in sufficient
detail to enable the claimant to verify the accuracy of the deduction;
(b) That he will not automatically be given a written notice of
determination for a week with respect to which there is a deduction for
earnings (unless there is a dispute concerning the reduction with
respect to a week or there has been a change in the State law or in the
application of the law affecting the deduction) but that he may obtain
such a written notice upon request; and
(c) A clear statement of his right to protest, request a
redetermination, and appeal from any determination deducting earnings
from his weekly benefit amount even though he does not automatically
receive a written notice of determination; and if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
(2) Other deductions.
(a) A written notice of determination is required with respect to
the first week in claimant's benefit year in which there is a reduction
from his benefits for a reason other than earnings. This notice must
describe the deduction made from claimant's weekly benefit amount, the
reason for the deduction, the method of computing it in sufficient
detail to enable him to verify the accuracy of such deduction, and his
right to protest, request redetermination, or appeal.
[[Page 23]]
(b) A written notice of determination is not required for subsequent
weeks that a deduction is made for the same reason and on the basis of
the same facts, if the notice of determination pursuant to (2)(a), or a
booklet or pamphlet given him with such notice explains (i) the several
kinds of deductions which may be made under the State law (e.g.,
retirement pensions, vacation pay, and overpayments); (ii) the method of
computing each kind of deduction in sufficient detail that claimant will
be able to verify the accuracy of deductions made from his weekly
benefit payments; (iii) any limitation on the amount of any deduction or
the time in which any deduction may be made; (iv) that he will not
automatically be given a written notice of determination for subsequent
weeks with respect to which there is a deduction for the same reason and
on the basis of the same facts, but that he may obtain a written notice
of determination upon request; (v) his right to protest, request
redetermination, or appeal with respect to subsequent weeks for which
there is a reduction from his benefits for the same reason, and on the
basis of the same facts even though he does not automatically receive a
written notice of determination; and (vi) that if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
g. Seasonality factors. If the individual's determination is
affected by seasonality factors under the State law, an adequate
explanation must be made. General explanation of seasonality factors
which may affect determinations for subsequent weeks may be included in
a booklet or pamphlet given claimant with his notice of monetary
determination.
h. Disqualification or ineligibility. If a disqualification is
imposed, or if the claimant is declared ineligible for one or more
weeks, he must be given not only a statement of the period of
disqualification or ineligibility and the amount of wage-credit
reductions, if any, but also an explanation of the reason for the
ineligibility or disqualification. This explanation must be sufficiently
detailed so that he will understand why he is ineligible or why he has
been disqualified, and what he must do in order to requalify for
benefits or purge the disqualification. The statement must be
individualized to indicate the facts upon which the determination was
based, e.g., state, ``It is found that you left your work with Blank
Company because you were tired of working; the separation was voluntary,
and the reason does not constitute good cause,'' rather than merely the
phrase ``voluntary quit.'' Checking a box as to the reason for the
disqualification is not a sufficiently detailed explanation. However,
this statement of the reason for the disqualification need not be a
restatement of all facts considered in arriving at the determination.
i. Appeal rights. The claimant must be given information with
respect to his appeal rights.
(1) The following information shall be included in the notice of
determination:
(a) A statement that he may appeal or, if the State law requires or
permits a protest or redetermination before an appeal, that he may
protest or request a redetermination.
(b) The period within which an appeal, protest, or request for
redetermination must be filed. The number of days provided by statute
must be shown as well as either the beginning date or ending date of the
period. (It is recommended that the ending date of the appeal period be
shown, as this is the more understandable of the alternatives.)
(2) The following information must be included either in the notice
of determination or in separate informational material referred to in
the notice:
(a) The manner in which the appeal, protest, or request for
redetermination must be filed, e.g., by signed letter, written
statement, or on a prescribed form, and the place or places to which the
appeal, protest, or request for redetermination may be mailed or hand-
delivered.
(b) An explanation of any circumstances (such as nonworkdays, good
cause, etc.) which will extend the period for the appeal, protest, or
request for redetermination beyond the date stated or identified in the
notice of determination.
(c) That any further information claimant may need or desire can be
obtained together with assistance in filing his appeal, protest, or
request for redetermination from the local office.
If the information is given in separate material, the notice of
determination would adequately refer to such material if it said, for
example, ``For other information about your (appeal), (protest),
(redetermination) rights, see pages __ to __ of the ____ (name of
pamphlet or booklet) heretofore furnished to you.''
6014 Separation Information Requirements Designed To Meet Department
of Labor Criteria:
A. Information to agency. Where workers are separated, employers are
required to furnish the agency promptly, either upon agency request or
upon such separation, a notice describing the reasons for and the
circumstances of the separation and any additional information which
might affect a claimant's right to benefits. Where workers are working
less than full time, employers are required to furnish the agency
promptly, upon agency request, information concerning a claimant's hours
of work and his wages during the claim periods involved, and other facts
which might affect a claimant's eligibility for benefits during such
periods.
[[Page 24]]
When workers are separated and the notices are obtained on a request
basis, or when workers are working less than full time and the agency
requests information, it is essential to the prompt processing of claims
that the request be sent out promptly after the claim is filed and the
employer be given a specific period within which to return the notice,
preferably within 2 working days.
When workers are separated and notices are obtained upon separation,
it is essential that the employer be required to send the notice to the
agency with sufficient promptness to insure that, if a claim is filed,
it may be processed promptly. Normally, it is desirable that such a
notice be sent to the central office of the agency, since the employer
may not know in which local office the workers will file his claim. The
usual procedure is for the employer to give the worker a copy of the
notice sent by the employer to the agency.
B. Information to worker.
1. Information required to be given. Employers are required to give
their employees information and instructions concerning the employees'
potential rights to benefits and concerning registration for work and
filing claims for benefits.
The information furnished to employees under such a requirement need
not be elaborate; it need only be adequate to insure that the worker who
is separated or who is working less than full time knows he is
potentially eligible for benefits and is informed as to what he is to do
or where he is to go to file his claim and register for work. When he
files his claim, he can obtain more detailed information.
In States that do not require employers to furnish periodically to
the State agency detailed reports of the wages paid to their employees,
each employer is required to furnish to his employees information as to
(a) the name under which he is registered by the State agency, (b) the
address where he maintains his payroll records, and (c) the workers'
need for this information if and when they file claims for benefits.
2. Methods for giving information. The information and instructions
required above may be given in any of the following ways:
a. Posters prominently displayed in the employer's establishment.
The State agency should supply employers with a sufficient number of
posters for distribution throughout their places of business and should
see that the posters are conspicuously displayed at all times.
b. Leaflets. Leaflets distributed either periodically or at the time
of separation or reduction of hours. The State agency should supply
employers with a sufficient number of leaflets.
c. Individual notices. Individual notices given to each employee at
the time of separation or reduction in hours.
It is recommended that the State agency's publicity program be used
to supplement the employer-information requirements. Such a program
should stress the availability and location of claim-filing offices and
the importance of visiting those offices whenever the worker is
unemployed, wishes to apply for benefits, and to seek a job.
6015 Evaluation of Alternative State Provisions with Respect to
Claim Determinations and Separation Information. If the State law
provisions do not conform to the suggested requirements set forth in
sections 6013 and 6014, but the State law contains alternative
provisions, the Bureau of Employment Security, in collaboration with the
State agency, will study the actual or anticipated effects of the
alternative provisions. If the Administrator of the Bureau concludes
that the alternative provisions satisfy the criteria in section 6012, he
will so notify the State agency. If the Administrator of the Bureau does
not so conclude, he will submit the matter to the Secretary. If the
Secretary concludes that the alternative provisions satisfy the criteria
in section 6012, the State agency will be so notified. If the Secretary
concludes that there is a question as to whether the alternative
provisions satisfy the criteria, the State agency will be advised that
unless the State law provisions are appropriately revised, a notice of
hearing will be issued as required by the Code of Federal Regulations,
title 20, section 601.5.
PART 603_FEDERAL-STATE UNEMPLOYMENT COMPENSATION (UC) PROGRAM;
CONFIDENTIALITY AND DISCLOSURE OF STATE UC INFORMATION--Table of Contents
Subpart A_In General
Sec.
603.1 What are the purpose and scope of this part?
603.2 What definitions apply to this part?
Subpart B_Confidentiality and Disclosure Requirements
603.3 What is the purpose and scope of this subpart?
603.4 What is the confidentiality requirement of Federal UC law?
603.5 What are the exceptions to the confidentiality requirement?
603.6 What disclosures are required by this subpart?
603.7 What requirements apply to subpoenas, other compulsory processes,
and
[[Page 25]]
disclosure to officials with subpoena authority?
603.8 What are the requirements for payment of costs and program income?
603.9 What safeguards and security requirements apply to disclosed
information?
603.10 What are the requirements for agreements?
603.11 How do States notify claimants and employers about the uses of
their information?
603.12 How are the requirements of this part enforced?
Subpart C_Mandatory Disclosure for Income and Eligibility Verification
System (IEVS)
603.20 What is the purpose and scope of this subpart?
603.21 What is a requesting agency?
603.22 What information must State UC agencies disclose for purposes of
an IEVS?
603.23 What information must State UC agencies obtain from other
agencies, and crossmatch with wage information, for purposes
of an IEVS?
Authority: 42 U.S.C. 1302(a); Secretary's Order No. 4-75 (40 FR
18515) and Secretary's Order No. 14-75 (November 12, 1975).
Source: 71 FR 56842, Sept. 27, 2006, unless otherwise noted.
Subpart A_In General
Sec. 603.1 What are the purpose and scope of this part?
The purpose of this part is to implement the requirements of Federal
UC law concerning confidentiality and disclosure of UC information. This
part applies to States and State UC agencies, as defined in Sec.
603.2(f) and (g).
Sec. 603.2 What definitions apply to this part?
For the purposes of this part:
(a)(1) Claim information means information about:
(i) Whether an individual is receiving, has received, or has applied
for UC;
(ii) The amount of compensation the individual is receiving or is
entitled to receive; and
(iii) The individual's current (or most recent) home address.
(2) For purposes of subpart C (IEVS), claim information also
includes:
(i) Whether the individual has refused an offer of work and, if so,
a description of the job offered including the terms, conditions, and
rate of pay; and
(ii) Any other information contained in the records of the State UC
agency that is needed by the requesting agency to verify eligibility
for, and the amount of, benefits.
(b) Confidential UC information and confidential information mean
any UC information, as defined in paragraph (j) of this section,
required to be kept confidential under Sec. 603.4.
(c) Public domain information means--
(1) Information about the organization of the State and the State UC
agency and appellate authorities, including the names and positions of
officials and employees thereof;
(2) Information about the State UC law (and applicable Federal law)
provisions, rules, regulations, and interpretations thereof, including
statements of general policy and interpretations of general
applicability; and
(3) Any agreement of whatever kind or nature, including interstate
arrangements and reciprocal agreements and any agreement with the
Department of Labor or the Secretary, relating to the administration of
the State UC law.
(d) Public official means an official, agency, or public entity
within the executive branch of Federal, State, or local government who
(or which) has responsibility for administering or enforcing a law, or
an elected official in the Federal, State, or local government.
(e) Secretary and Secretary of Labor mean the cabinet officer
heading the United States Department of Labor, or his or her designee.
(f) State means a State of the United States of America, the
District of Columbia, the Commonwealth of Puerto Rico, and the United
States Virgin Islands.
(g) State UC agency means an agency charged with the administration
of the State UC law.
(h) State UC law means the law of a State approved under Section
3304(a) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)).
(i) Unemployment compensation (UC) means cash benefits payable to
individuals with respect to their unemployment.
[[Page 26]]
(j) UC information and State UC information means information in the
records of a State or State UC agency that pertains to the
administration of the State UC law. This term includes those State wage
reports collected under the IEVS (Section 1137 of the Social Security
Act (SSA)) that are obtained by the State UC agency for determining UC
monetary eligibility or are downloaded to the State UC agency's files as
a result of a crossmatch but does not otherwise include those wage
reports. It does not include information in a State's Directory of New
Hires, but does include any such information that has been disclosed to
the State UC agency for use in the UC program. It also does not include
the personnel or fiscal information of a State UC agency.
(k) Wage information means information in the records of a State UC
agency (and, for purposes of Sec. 603.23 (IEVS)), information reported
under provisions of State law which fulfill the requirements of Section
1137, SSA) about the--
(1) Wages paid to an individual,
(2) Social security account number (or numbers, if more than one) of
such individual, and
(3) Name, address, State, and the Federal employer identification
number of the employer who paid such wages to such individual.
Subpart B_Confidentiality and Disclosure Requirements
Sec. 603.3 What is the purpose and scope of this subpart?
This subpart implements the basic confidentiality requirement
derived from Section 303(a)(1), SSA, and the disclosure requirements of
Sections 303(a)(7), (c)(1), (d), (e), (h), and (i), SSA, and Section
3304(a)(16), Federal Unemployment Tax Act (FUTA). This subpart also
establishes uniform minimum requirements for the payment of costs,
safeguards, and data-sharing agreements when UC information is
disclosed, and for conformity and substantial compliance with this
proposed rule. This subpart applies to States and State UC agencies, as
defined in Sec. 603.2(f) and (g), respectively.
Sec. 603.4 What is the confidentiality requirement of Federal UC law?
(a) Statute. Section 303(a)(1) of the SSA (42 U.S.C. 503(a)(1))
provides that, for the purposes of certification of payment of granted
funds to a State under Section 302(a) (42 U.S.C. 502(a)), State law must
include provision for such methods of administration as are found by the
Secretary of Labor to be reasonably calculated to insure full payment of
unemployment compensation when due.
(b) Interpretation. The Department of Labor interprets Section
303(a)(1), SSA, to mean that ``methods of administration'' that are
reasonably calculated to insure the full payment of UC when due must
include provision for maintaining the confidentiality of any UC
information which reveals the name or any identifying particular about
any individual or any past or present employer or employing unit, or
which could foreseeably be combined with other publicly available
information to reveal any such particulars, and must include provision
for barring the disclosure of any such information, except as provided
in this part.
(c) Application. Each State law must contain provisions that are
interpreted and applied consistently with the interpretation in
paragraph (b) of this section and with this subpart, and must provide
penalties for any disclosure of confidential UC information that is
inconsistent with any provision of this subpart.
Sec. 603.5 What are the exceptions to the confidentiality requirement?
The following are exceptions to the confidentiality requirement.
Disclosure of confidential UC information is permissible under the
exceptions in paragraphs (a) through (g) of this section only if
authorized by State law and if such disclosure does not interfere with
the efficient administration of the State UC law. Disclosure of
confidential UC information is permissible under the exceptions in
paragraphs (h) and (i) of this section without such restrictions.
(a) Public domain information. The confidentiality requirement of
Sec. 603.4 does not apply to public domain information, as defined at
Sec. 603.2(c).
[[Page 27]]
(b) UC appeals records. Disclosure of appeals records and decisions,
and precedential determinations on coverage of employers, employment,
and wages, is permissible provided all social security account numbers
have been removed and such disclosure is otherwise consistent with
Federal and State law.
(c) Individual or employer. Disclosure for non-UC purposes, of
confidential UC information about an individual to that individual, or
of confidential UC information about an employer to that employer, is
permissible.
(d) Informed consent. Disclosure of confidential UC information on
the basis of informed consent is permissible in the following
circumstances--
(1) Agent--to one who acts for or in the place of an individual or
an employer by the authority of that individual or employer if--
(i) In general--
(A) The agent presents a written release (which may include an
electronically submitted release that the State determines is authentic)
from the individual or employer being represented;
(B) When a written release is impossible or impracticable to obtain,
the agent presents such other form of consent as is permitted by the
State UC agency in accordance with State law;
(ii) In the case of an elected official performing constituent
services, the official presents reasonable evidence (such as a letter
from the individual or employer requesting assistance or a written
record of a telephone request from the individual or employer) that the
individual or employer has authorized such disclosure; or
(iii) In the case of an attorney retained for purposes related to
the State's UC law, the attorney asserts that he or she is representing
the individual or employer.
(2) Third party (other than an agent) or disclosure made on an
ongoing basis--to a third party that is not acting as an agent or that
receives confidential information following an informed consent
disclosure on an ongoing basis (even if such entity is an agent), but
only if that entity obtains a written release from the individual or
employer to whom the information pertains.
(i) The release must be signed and must include a statement--
(A) Specifically identifying the information that is to be
disclosed;
(B) That State government files will be accessed to obtain that
information;
(C) Of the specific purpose or purposes for which the information is
sought and a statement that information obtained under the release will
only be used for that purpose or purposes; and
(D) Indicating all the parties who may receive the information
disclosed.
(ii) The purpose specified in the release must be limited to--
(A) Providing a service or benefit to the individual signing the
release that such individual expects to receive as a result of signing
the release; or
(B) Carrying out administration or evaluation of a public program to
which the release pertains.
Note to paragraph (d): The Electronic Signatures in Global and
National Commerce Act of 2000 (E-Sign), Pub. L. 106-229, may apply where
a party wishes to effectuate electronically an informed consent release
(Sec. 603.5(d)(2)) or a disclosure agreement (Sec. 603.10(a)) with an
entity that uses informed consent releases. E-Sign, among other things,
sets forth the circumstances under which electronic signatures,
contracts, and other records relating to such transactions (in lieu of
paper documents) are legally binding. Thus, an electronic communication
may suffice under E-Sign to establish a legally binding contract. The
States will need to consider E-Sign's application to these informed
consent releases and disclosure agreements. In particular, a State must,
to conform and substantially comply with this regulation, assure that
these informed consent releases and disclosure agreements are legally
enforceable. If an informed consent release or disclosure agreement is
to be effectuated electronically, the State must determine whether E-
Sign applies to that transaction, and, if so, make certain that the
transaction satisfies the conditions imposed by E-Sign. The State must
also make certain that the electronic transaction complies with every
other condition necessary to make it legally enforceable.
(e) Public official. Disclosure of confidential UC information to a
public official for use in the performance of his or her official duties
is permissible. ``Performance of official duties'' means administration
or enforcement of law or the execution of the official responsibilities
of a Federal, State, or local elected official. Administration of law
[[Page 28]]
includes research related to the law administered by the public
official. Execution of official responsibilities does not include
solicitation of contributions or expenditures to or on behalf of a
candidate for public or political office or a political party.
(f) Agent or contractor of public official. Disclosure of
confidential UC information to an agent or contractor of a public
official to whom disclosure is permissible under paragraph (e) of this
section.
(g) Bureau of Labor Statistics. The confidentiality requirement does
not apply to information collected exclusively for statistical purposes
under a cooperative agreement with the Bureau of Labor Statistics (BLS).
Further, this part does not restrict or impose any condition on the
transfer of any other information to the BLS under an agreement, or the
BLS's disclosure or use of such information.
(h) Court order; official with subpoena authority. Disclosure of
confidential UC information in response to a court order or to an
official with subpoena authority is permissible as specified in Sec.
603.7(b).
(i) UC Program Oversight and Audits. The confidentiality requirement
does not apply to any disclosure to a Federal official for purposes of
UC program oversight and audits, including disclosures under 20 CFR part
601 and 29 CFR parts 96 and 97.
Sec. 603.6 What disclosures are required by this subpart?
(a) The confidentiality requirement of 303(a)(1), SSA, and Sec.
603.4 are not applicable to this paragraph (a) and the Department of
Labor interprets Section 303(a)(1), SSA, as requiring disclosure of all
information necessary for the proper administration of the UC program.
This includes disclosures to claimants, employers, the Internal Revenue
Service (for purposes of UC tax administration), and the U.S.
Citizenship and Immigration Services (for purposes of verifying a
claimant's immigration status).
(b) In addition to Section 303(f), SSA (concerning an IEVS), which
is addressed in subpart C, the following provisions of Federal UC law
also specifically require disclosure of State UC information and State-
held information pertaining to the Federal UC and benefit programs of
Unemployment Compensation for Federal Employees (UCFE), Unemployment
Compensation for Ex-Servicemembers (UCX), Trade Adjustment Assistance
(TAA) (except for confidential business information collected by
States), Disaster Unemployment Assistance (DUA), and any Federal UC
benefit extension program:
(1) Section 303(a)(7), SSA, requires State law to provide for making
available, upon request, to any agency of the United States charged with
the administration of public works or assistance through public
employment, disclosure of the following information with respect to each
recipient of UC--
(i) Name;
(ii) Address;
(iii) Ordinary occupation;
(iv) Employment status; and
(v) A statement of such recipient's rights to further compensation
under the State law.
(2) Section 303(c)(1), SSA, requires each State to make its UC
records available to the Railroad Retirement Board, and to furnish such
copies of its UC records to the Railroad Retirement Board as the Board
deems necessary for its purposes.
(3) Section 303(d)(1), SSA, requires each State UC agency, for
purposes of determining an individual's eligibility benefits, or the
amount of benefits, under a food stamp program established under the
Food Stamp Act of 1977, to disclose, upon request, to officers and
employees of the Department of Agriculture, and to officers or employees
of any State food stamp agency, any of the following information
contained in the records of the State UC agency--
(i) Wage information,
(ii) Whether an individual is receiving, has received, or has made
application for, UC, and the amount of any such compensation being
received, or to be received, by such individual,
(iii) The current (or most recent) home address of such individual,
and
(iv) Whether an individual has refused an offer of employment and,
if so, a description of the employment so offered and the terms,
conditions, and rate of pay therefore.
[[Page 29]]
(4) Section 303(e)(1), SSA, requires each State UC agency to
disclose, upon request, directly to officers or employees of any State
or local child support enforcement agency, any wage information
contained in the records of the State UC agency for purposes of
establishing and collecting child support obligations (not to include
custodial parent support obligations) from, and locating, individuals
owing such obligations.
(5) Section 303(h), SSA, requires each State UC agency to disclose
quarterly, to the Secretary of Health and Human Services (HHS), wage
information and claim information as required under Section 453(i)(1) of
the SSA (establishing the National Directory of New Hires), contained in
the records of such agency, for purposes of Subsections (i)(1), (i)(3),
and (j) of Section 453, SSA (establishing the National Directory of New
Hires and its uses for purposes of child support enforcement, Temporary
Assistance to Needy Families (TANF), TANF research, administration of
the earned income tax credit, and use by the Social Security
Administration).
(6) Section 303(i), SSA, requires each State UC agency to disclose,
upon request, to officers or employees of the Department of Housing and
Urban Development (HUD) and to representatives of a public housing
agency, for purposes of determining an individual's eligibility for
benefits, or the amount of benefits, under a housing assistance program
of HUD, any of the following information contained in the records of
such State agency about any individual applying for or participating in
any housing assistance program administered by HUD who has signed a
consent form approved by the Secretary of HUD--
(i) Wage information, and
(ii) Whether the individual is receiving, has received, or has made
application for, UC, and the amount of any such compensation being
received (or to be received) by such individual.
(7) Section 3304(a)(16), FUTA requires each State UC agency--
(i) To disclose, upon request, to any State or political subdivision
thereof administering a Temporary Assistance to Needy Families Agency
(TANF) program funded under part A of Title IV of the SSA, wage
information contained in the records of the State UC agency which is
necessary (as determined by the Secretary of HHS in regulations) for
purposes of determining an individual's eligibility for TANF assistance
or the amount of TANF assistance; and
(ii) To furnish to the Secretary of HHS, in accordance with that
Secretary's regulations at 45 CFR 303.108, wage information (as defined
at 45 CFR 303.108(a)(2)) and UC information (as defined at 45 CFR
303.108(a)(3)) contained in the records of such agency for the purposes
of the National Directory of New Hires established under Section 453(i)
of the SSA.
(c) Each State law must contain provisions that are interpreted and
applied consistently with the requirements listed in this section.
Sec. 603.7 What requirements apply to subpoenas, other compulsory
processes, and disclosure to officials with subpoena authority?
(a) In general. Except as provided in paragraph (b) of this section,
when a subpoena or other compulsory process is served upon a State UC
agency or the State, any official or employee thereof, or any recipient
of confidential UC information, which requires the production of
confidential UC information or appearance for testimony upon any matter
concerning such information, the State or State UC agency or recipient
must file and diligently pursue a motion to quash the subpoena or other
compulsory process if other means of avoiding the disclosure of
confidential UC information are not successful or if the court has not
already ruled on the disclosure. Only if such motion is denied by the
court or other forum may the requested confidential UC information be
disclosed, and only upon such terms as the court or forum may order,
such as that the recipient protect the disclosed information and pay the
State's or State UC agency's costs of disclosure.
(b) Exceptions. The requirement of paragraph (a) of this section to
move to quash subpoenas shall not be applicable, so that disclosure is
permissible, where--
(1) Court Decision--a subpoena or other compulsory legal process has
[[Page 30]]
been served and a court has previously issued a binding precedential
decision that requires disclosures of this type, or a well-established
pattern of prior court decisions have required disclosures of this type,
or
(2) Official with subpoena authority--Confidential UC information
has been subpoenaed, by a local, State or Federal governmental official,
other than a clerk of court on behalf of a litigant, with authority to
obtain such information by subpoena under State or Federal law. The
State or State UC agency may choose to disclose such confidential UC
information to these officials without the actual issuance of a
subpoena.
Sec. 603.8 What are the requirements for payment of costs and
program income?
(a) In general. Except as provided in paragraph (b) of this section,
grant funds must not be used to pay any of the costs of making any
disclosure of UC information. Grant funds may not be used to pay any of
the costs of making any disclosures under Sec. 603.5(d)(2) (third party
(other than an agent) or disclosure made on an ongoing basis), Sec.
603.5(e) (optional disclosure to a public official), Sec. 603.5(f)
(optional disclosure to an agent or contractor of a public official),
and Sec. 603.5(g) (optional disclosure to BLS), Sec. 603.6(b)
(mandatory disclosures for non-UC purposes), or Sec. 603.22 (mandatory
disclosure for purposes of an IEVS).
(b) Use of grant funds permitted. Grant funds paid to a State under
Section 302(a), SSA, may be used to pay the costs of only those
disclosures necessary for proper administration of the UC program. (This
may include some disclosures under Sec. 603.5(a) (concerning public
domain information), Sec. 603.5(c) (to an individual or employer), and
Sec. 603.5(d)(1) (to an agent).) In addition, grant funds may be used
to pay costs of disclosures under Sec. 603.5(i) (for UC Program
Oversight and Audits) and Sec. 603.6(a) (for the proper administration
of the UC program). Grant funds may also be used to pay costs associated
with disclosures under Sec. 603.7(b)(1) (concerning court-ordered
compliance with subpoenas) if a court has denied recovery of costs, or
to pay costs associated with disclosures under Sec. 603.7(b)(2) (to
officials with subpoena authority) if the State UC agency has attempted
but not been successful in obtaining reimbursement of costs. Finally,
grant funds may be used to pay costs associated with any disclosure of
UC information if not more than an incidental amount of staff time and
no more than nominal processing costs are involved in making the
disclosure.
(c) Calculation of costs. The costs to a State or State UC agency of
processing and handling a request for disclosure of information must be
calculated in accordance with the cost principles and administrative
requirements of 29 CFR part 97 and Office of Management and Budget
Circular No. A-87 (Revised). For the purpose of calculating such costs,
any initial start-up costs incurred by the State UC agency in
preparation for making the requested disclosure(s), such as computer
reprogramming necessary to respond to the request, and the costs of
implementing safeguards and agreements required by Sec. Sec. 603.9 and
603.10, must be charged to and paid by the recipient. (Start-up costs do
not include the costs to the State UC agency of obtaining, compiling, or
maintaining information for its own purposes.) Postage or other delivery
costs incurred in making any disclosure are part of the costs of making
the disclosure. Penalty mail, as defined in 39 U.S.C. 3201(1), must not
be used to transmit information being disclosed, except information
disclosed for purposes of administration of State UC law. As provided in
Sections 453(e)(2) and 453(g) of the SSA, the Secretary of HHS has the
authority to determine what constitutes a reasonable amount for the
reimbursement for disclosures under Section 303(h), SSA, and Section
3304(a)(16)(B), FUTA.
(d) Payment of costs. The costs to a State or State UC agency of
making a disclosure of UC information, calculated in accordance with
paragraph (c) of this section, must be paid by the recipient of the
information or another source paying on behalf of the recipient, either
in advance or by way of reimbursement. If the recipient is not a public
official, such costs, except for good reason must be paid in advance.
For the purposes of this paragraph (d),
[[Page 31]]
payment in advance means full payment of all costs before or at the time
the disclosed information is given in hand or sent to the recipient. The
requirement of payment of costs in this paragraph is met when a State UC
agency has in place a reciprocal cost agreement or arrangement with the
recipient. As used in this section, reciprocal means that the relative
benefits received by each are approximately equal. Payment or
reimbursement of costs must include any initial start-up costs
associated with making the disclosure.
(e) Program income. Costs paid as required by this section, and any
funds generated by the disclosure of UC information under this part, are
program income and may be used only as permitted by 29 CFR 97.25(g) (on
program income). Such income may not be used to benefit a State's
general fund or other program.
Sec. 603.9 What safeguards and security requirements apply to
disclosed information?
(a) In general. For disclosures of confidential UC information under
Sec. 603.5(d)(2) (to a third party (other than an agent) or disclosures
made on an ongoing basis); Sec. 603.5(e) (to a public official), except
as provided in paragraph (d) of this section; Sec. 603.5(f) (to an
agent or contractor of a public official); Sec. 603.6(b)(1) through
(4), (6), and (7)(i) (as required by Federal UC law); and Sec. 603.22
(to a requesting agency for purposes of an IEVS), a State or State UC
agency must require the recipient to safeguard the information disclosed
against unauthorized access or redisclosure, as provided in paragraphs
(b) and (c) of this section, and must subject the recipient to penalties
provided by the State law for unauthorized disclosure of confidential UC
information.
(b) Safeguards to be required of recipients. (1) The State or State
UC agency must:
(i) Require the recipient to use the disclosed information only for
purposes authorized by law and consistent with an agreement that meets
the requirements of Sec. 603.10;
(ii) Require the recipient to store the disclosed information in a
place physically secure from access by unauthorized persons;
(iii) Require the recipient to store and process disclosed
information maintained in electronic format, such as magnetic tapes or
discs, in such a way that unauthorized persons cannot obtain the
information by any means;
(iv) Require the recipient to undertake precautions to ensure that
only authorized personnel are given access to disclosed information
stored in computer systems;
(v) Require each recipient agency or entity to:
(A) Instruct all personnel having access to the disclosed
information about confidentiality requirements, the requirements of this
subpart B, and the sanctions specified in the State law for unauthorized
disclosure of information, and
(B) Sign an acknowledgment that all personnel having access to the
disclosed information have been instructed in accordance with paragraph
(b)(1)(v)(A) of this section and will adhere to the State's or State UC
agency's confidentiality requirements and procedures which are
consistent with this subpart B and the agreement required by Sec.
603.10, and agreeing to report any infraction of these rules to the
State UC agency fully and promptly,
(vi) Require the recipient to dispose of information disclosed or
obtained, and any copies thereof made by the recipient agency, entity,
or contractor, after the purpose for which the information is disclosed
is served, except for disclosed information possessed by any court.
Disposal means return of the information to the disclosing State or
State UC agency or destruction of the information, as directed by the
State or State UC agency. Disposal includes deletion of personal
identifiers by the State or State UC agency in lieu of destruction. In
any case, the information disclosed must not be retained with personal
identifiers for longer than such period of time as the State or State UC
agency deems appropriate on a case-by-case basis; and
(vii) Maintain a system sufficient to allow an audit of compliance
with the requirements of this part.
[[Page 32]]
(2) In the case of disclosures made under Sec. 603.5(d)(2) (to a
third party (other than an agent) or disclosures made on an ongoing
basis), the State or State UC agency must also--
(i) Periodically audit a sample of transactions accessing
information disclosed under that section to assure that the entity
receiving disclosed information has on file a written release
authorizing each access. The audit must ensure that the information is
not being used for any unauthorized purpose;
(ii) Ensure that all employees of entities receiving access to
information disclosed under Sec. 603.5(d)(2) are subject to the same
confidentiality requirements, and State criminal penalties for violation
of those requirements, as are employees of the State UC agency.
(c) Redisclosure of confidential UC information. (1) A State or
State UC agency may authorize any recipient of confidential UC
information under paragraph (a) of this section to redisclose
information only as follows:
(i) To the individual or employer who is the subject of the
information;
(ii) To an attorney or other duly authorized agent representing the
individual or employer;
(iii) In any civil or criminal proceedings for or on behalf of a
recipient agency or entity;
(iv) In response to a subpoena only as provided in Sec. 603.7;
(v) To an agent or contractor of a public official only if the
person redisclosing is a public official, if the redisclosure is
authorized by the State law, and if the public official retains
responsibility for the uses of the confidential UC information by the
agent or contractor;
(vi) From one public official to another if the redisclosure is
authorized by the State law;
(vii) When so authorized by Section 303(e)(5), SSA, (redisclosure of
wage information by a State or local child support enforcement agency to
an agent under contract with such agency for purposes of carrying out
child support enforcement) and by State law; or
(viii) When specifically authorized by a written release that meets
the requirements of Sec. 603.5(d) (to a third party with informed
consent).
(2) Information redisclosed under paragraphs (c)(1)(v) and (vi) of
this section must be subject to the safeguards in paragraph (b) of this
section.
(d) The requirements of this section do not apply to disclosures of
UC information to a Federal agency which the Department has determined,
by notice published in the Federal Register, to have in place safeguards
adequate to satisfy the confidentiality requirement of Section
303(a)(1), SSA.
Sec. 603.10 What are the requirements for agreements?
(a) Requirements. (1) For disclosures of confidential UC information
under Sec. 603.5(d)(2) (to a third party (other than an agent) or
disclosures made on an ongoing basis); Sec. 603.5(e) (to a public
official), except as provided in paragraph (d) of this section; Sec.
603.5(f) (to an agent or contractor of a public official); Sec.
603.6(b)(1) through (4), (6), and (7)(i) (as required by Federal UC
law); and Sec. 603.22 (to a requesting agency for purposes of an IEVS),
a State or State UC agency must enter into a written, enforceable
agreement with any agency or entity requesting disclosure(s) of such
information. The agreement must be terminable if the State or State UC
agency determines that the safeguards in the agreement are not adhered
to.
(2) For disclosures referred to in Sec. 603.5(f) (to an agent or
contractor of a public official), the State or State UC agency must
enter into a written, enforceable agreement with the public official on
whose behalf the agent or contractor will obtain information. The
agreement must hold the public official responsible for ensuring that
the agent or contractor complies with the safeguards of Sec. 603.9. The
agreement must be terminable if the State or State UC agency determines
that the safeguards in the agreement are not adhered to.
(b) Contents of agreement--(1) In general. Any agreement required by
paragraph (a) of this section must include, but need not be limited to,
the following terms and conditions:
(i) A description of the specific information to be furnished and
the purposes for which the information is sought;
(ii) A statement that those who request or receive information under
the
[[Page 33]]
agreement will be limited to those with a need to access it for purposes
listed in the agreement;
(iii) The methods and timing of requests for information and
responses to those requests, including the format to be used;
(iv) Provision for paying the State or State UC agency for any costs
of furnishing information, as required by Sec. 603.8 (on costs);
(v) Provision for safeguarding the information disclosed, as
required by Sec. 603.9 (on safeguards); and
(vi) Provision for on-site inspections of the agency, entity, or
contractor, to assure that the requirements of the State's law and the
agreement or contract required by this section are being met.
(2) In the case of disclosures under Sec. 603.5(d)(2) (to a third
party (other than an agent) or disclosures made on an ongoing basis),
the agreement required by paragraph (a) of this section must assure that
the information will be accessed by only those entities with
authorization under the individual's or employer's release, and that it
may be used only for the specific purposes authorized in that release.
(c) Breach of agreement--(1) In general. If an agency, entity, or
contractor, or any official, employee, or agent thereof, fails to comply
with any provision of an agreement required by this section, including
timely payment of the State's or State UC agency's costs billed to the
agency, entity, or contractor, the agreement must be suspended, and
further disclosure of information (including any disclosure being
processed) to such agency, entity, or contractor is prohibited, until
the State or State UC agency is satisfied that corrective action has
been taken and there will be no further breach. In the absence of prompt
and satisfactory corrective action, the agreement must be canceled, and
the agency, entity, or contractor must be required to surrender to the
State or State UC agency all confidential UC information (and copies
thereof) obtained under the agreement which has not previously been
returned to the State or State UC agency, and any other information
relevant to the agreement.
(2) Enforcement. In addition to the actions required to be taken by
paragraph (c)(1) of this section, the State or State UC agency must
undertake any other action under the agreement, or under any law of the
State or of the United States, to enforce the agreement and secure
satisfactory corrective action or surrender of the information, and must
take other remedial actions permitted under State or Federal law to
effect adherence to the requirements of this subpart B, including
seeking damages, penalties, and restitution as permitted under such law
for any charges to granted funds and all costs incurred by the State or
the State UC agency in pursuing the breach of the agreement and
enforcement as required by this paragraph (c).
(d) The requirements of this section do not apply to disclosures of
UC information to a Federal agency which the Department has determined,
by notice published in the Federal Register, to have in place safeguards
adequate to satisfy the confidentiality requirement of Section
303(a)(1), SSA, and an appropriate method of paying or reimbursing the
State UC agency (which may involve a reciprocal cost arrangement) for
costs involved in such disclosures. These determinations will be
published in the Federal Register.
Sec. 603.11 How do States notify claimants and employers about the
uses of their information?
(a) Claimants. Every claimant for compensation must be notified, at
the time of application, and periodically thereafter, that confidential
UC information pertaining to the claimant may be requested and utilized
for other governmental purposes, including, but not limited to,
verification of eligibility under other government programs. Notice on
or attached to subsequent additional claims will satisfy the requirement
for periodic notice thereafter.
(b) Employers. Every employer subject to a State's law must be
notified that wage information and other confidential UC information may
be requested and utilized for other governmental purposes, including,
but not limited to, verification of an individual's eligibility for
other government programs.
[[Page 34]]
Sec. 603.12 How are the requirements of this part enforced?
(a) Resolving conformity and compliance issues. For the purposes of
resolving issues of conformity and substantial compliance with the
requirements set forth in subparts B and C, the provisions of 20 CFR
601.5(b) (informal discussions with the Department of Labor to resolve
conformity and substantial compliance issues), and 20 CFR 601.5(d)
(Secretary of Labor's hearing and decision on conformity and substantial
compliance) apply.
(b) Conformity and substantial compliance. Whenever the Secretary of
Labor, after reasonable notice and opportunity for a hearing to the
State UC agency of a State, finds that the State law fails to conform,
or that the State or State UC agency fails to comply substantially,
with:
(1) The requirements of Title III, SSA, implemented in subparts B
and C of this part, the Secretary of Labor shall notify the Governor of
the State and such State UC agency that further payments for the
administration of the State UC law will not be made to the State until
the Secretary of Labor is satisfied that there is no longer any such
failure. Until the Secretary of Labor is so satisfied, the Department of
Labor shall make no further payments to such State.
(2) The FUTA requirements implemented in this subpart B, the
Secretary of Labor shall make no certification under that section to the
Secretary of the Treasury for such State as of October 31 of the 12-
month period for which such finding is made.
Subpart C_Mandatory Disclosure for Income and Eligibility Verification
System (IEVS)
Sec. 603.20 What is the purpose and scope of this subpart?
(a) Purpose. Subpart C implements Section 303(f), SSA. Section
303(f) requires States to have in effect an income and eligibility
verification system, which meets the requirements of Section 1137, SSA,
under which information is requested and exchanged for the purpose of
verifying eligibility for, and the amount of, benefits available under
several federally assisted programs, including the Federal-State UC
program.
(b) Scope. This subpart C applies only to a State UC agency.
Note to paragraph (b): Although not implemented in this part 603,
Section 1137(a)(1), SSA, provides that each State must require claimants
for compensation to furnish to the State UC agency their social security
account numbers, as a condition of eligibility for compensation, and
further requires States to utilize such account numbers in the
administration of the State UC laws. Section 1137(a)(3), SSA, further
provides that employers must make quarterly wage reports to a State UC
agency, or an alternative agency, for use in verifying eligibility for,
and the amount of, benefits. Section 1137(d)(1), SSA, provides that each
State must require claimants for compensation, as a condition of
eligibility, to declare in writing, under penalty of perjury, whether
the individual is a citizen or national of the United States, and, if
not, that the individual is in a satisfactory immigration status. Other
provisions of Section 1137(d), SSA, not implemented in this regulation
require the States to obtain, and individuals to furnish, information
which shows immigration status, and require the States to verify
immigration status with the Bureau of Citizenship and Immigration
Services.
Sec. 603.21 What is a requesting agency?
For the purposes of this subpart C, requesting agency means:
(a) Temporary Assistance to Needy Families Agency--Any State or
local agency charged with the responsibility of administering a program
funded under part A of Title IV of the SSA.
(b) Medicaid Agency--Any State or local agency charged with the
responsibility of administering the provisions of the Medicaid program
under a State plan approved under Title XIX of the SSA.
(c) Food Stamp Agency--Any State or local agency charged with the
responsibility of administering the provisions of the Food Stamp Program
under the Food Stamp Act of 1977.
(d) Other SSA Programs Agency--Any State or local agency charged
with the responsibility of administering a program under a State plan
approved under Title I, X, XIV, or XVI (Supplemental Security Income for
the Aged, Blind, and Disabled) of the SSA.
(e) Child Support Enforcement Agency--Any State or local child
support
[[Page 35]]
enforcement agency charged with the responsibility of enforcing child
support obligations under a plan approved under part D of Title IV of
the SSA.
(f) Social Security Administration--Commissioner of the Social
Security Administration in establishing or verifying eligibility or
benefit amounts under Titles II (Old-Age, Survivors, and Disability
Insurance Benefits) and XVI (Supplemental Security Income for the Aged,
Blind, and Disabled) of the SSA.
Sec. 603.22 What information must State UC agencies disclose for
purposes of an IEVS?
(a) Disclosure of information. Each State UC agency must disclose,
upon request, to any requesting agency, as defined in Sec. 603.21, that
has entered into an agreement required by Sec. 603.10, wage information
(as defined at Sec. 603.2(k)) and claim information (as defined at
Sec. 603.2(a)) contained in the records of such State UC agency.
(b) Format. The State UC agency must adhere to standardized formats
established by the Secretary of HHS (in consultation with the Secretary
of Agriculture) and set forth in 42 CFR 435.960 (concerning standardized
formats for furnishing and obtaining information to verify income and
eligibility).
Sec. 603.23 What information must State UC agencies obtain from
other agencies, and crossmatch with wage information, for purposes of
an IEVS?
(a) Crossmatch with information from requesting agencies. Each State
UC agency must obtain such information from the Social Security
Administration and any requesting agency as may be needed in verifying
eligibility for, and the amount of, compensation payable under the State
UC law.
(b) Crossmatch of wage and benefit information. The State UC agency
must crossmatch quarterly wage information with UC payment information
to the extent that such information is likely, as determined by the
Secretary of Labor, to be productive in identifying ineligibility for
benefits and preventing or discovering incorrect payments.
PART 604_REGULATIONS FOR ELIGIBILITY FOR UNEMPLOYMENT COMPENSATION
--Table of Contents
Sec.
604.1 Purpose and scope.
604.2 Definitions.
604.3 Able and available requirement--general principles.
604.4 Application--ability to work.
604.5 Application--availability for work.
604.6 Conformity and substantial compliance.
Authority: 42 U.S.C. 1302(a); 42 U.S.C. 503(a)(2) and (5); 26 U.S.C.
3304(a)(1) and (4); 26 U.S.C. 3306(h); 42 U.S.C. 1320b-7(d); Secretary's
Order No. 4-75 (40 FR 18515); and Secretary's Order No. 14-75 (November
12, 1975).
Source: 72 FR 1893, Jan. 16, 2007, unless otherwise noted.
Sec. 604.1 Purpose and scope.
The purpose of this Part is to implement the requirements of Federal
UC law that limit a State's payment of UC to individuals who are able to
work and available for work. This regulation applies to all State UC
laws and programs.
Sec. 604.2 Definitions.
(a) Department means the United States Department of Labor.
(b) FUTA means the Federal Unemployment Tax Act, 26 U.S.C. 3301 et
seq.
(c) Social Security Act means the Social Security Act, 42 U.S.C. 501
et seq.
(d) State means a State of the United States of America, the
District of Columbia, the Commonwealth of Puerto Rico, and the United
States Virgin Islands.
(e) State UC agency means the agency of the State charged with the
administration of the State's UC law.
(f) State UC law means the law of a State approved under Section
3304(a), FUTA (26 U.S.C. 3304(a)).
(g) Unemployment Compensation (UC) means cash benefits payable to
individuals with respect to their unemployment.
(h) Week of unemployment means a week of total, part-total or
partial unemployment as defined in the State's UC law.
[[Page 36]]
Sec. 604.3 Able and available requirement--general principles.
(a) A State may pay UC only to an individual who is able to work and
available for work for the week for which UC is claimed.
(b) Whether an individual is able to work and available for work
under paragraph (a) of this section must be tested by determining
whether the individual is offering services for which a labor market
exists. This requirement does not mean that job vacancies must exist,
only that, at a minimum, the type of services the individual is able and
available to perform is generally performed in the labor market. The
State must determine the geographical scope of the labor market for an
individual under its UC law.
(c) The requirement that an individual be able to work and available
for work applies only to the week of unemployment for which UC is
claimed. It does not apply to the reasons for the individual's
separation from employment, although the separation may indicate the
individual was not able to work or available for work during the week
the separation occurred. This Part does not address the authority of
States to impose disqualifications with respect to separations. This
Part does not limit the States' ability to impose additional able and
available requirements that are consistent with applicable Federal laws.
Sec. 604.4 Application--ability to work.
(a) A State may consider an individual to be able to work during the
week of unemployment claimed if the individual is able to work for all
or a portion of the week claimed, provided any limitation on his or her
ability to work does not constitute a withdrawal from the labor market.
(b) If an individual has previously demonstrated his or her ability
to work and availability for work following the most recent separation
from employment, the State may consider the individual able to work
during the week of unemployment claimed despite the individual's illness
or injury, unless the individual has refused an offer of suitable work
due to such illness or injury.
Sec. 604.5 Application--availability for work.
(a) General application. A State may consider an individual to be
available for work during the week of unemployment claimed under any of
the following circumstances:
(1) The individual is available for any work for all or a portion of
the week claimed, provided that any limitation placed by the individual
on his or her availability does not constitute a withdrawal from the
labor market.
(2) The individual limits his or her availability to work which is
suitable for such individual as determined under the State UC law,
provided the State law definition of suitable work does not permit the
individual to limit his or her availability in such a way that the
individual has withdrawn from the labor market. In determining whether
the work is suitable, States may, among other factors, take into
consideration the education and training of the individual, the
commuting distance from the individual's home to the job, the previous
work history of the individual (including salary and fringe benefits),
and how long the individual has been unemployed.
(3) The individual is on temporary lay-off and is available to work
only for the employer that has temporarily laid-off the individual.
(b) Jury service. If an individual has previously demonstrated his
or her availability for work following the most recent separation from
employment and is appearing for duty before any court under a lawfully
issued summons during the week of unemployment claimed, a State may
consider the individual to be available for work. For such an
individual, attendance at jury duty may be taken as evidence of
continued availability for work. However, if the individual does not
appear as required by the summons, the State must determine if the
reason for non-attendance indicates that the individual is not able to
work or is not available for work.
(c) Approved training. A State must not deny UC to an individual for
failure to be available for work during a week if, during such week, the
individual is in training with the approval of the
[[Page 37]]
State agency. However, if the individual fails to attend or otherwise
participate in such training, the State must determine if the reason for
non-attendance or non-participation indicates that the individual is not
able to work or is not available for work.
(d) Self-employment assistance. A State must not deny UC to an
individual for failure to be available for work during a week if, during
such week, the individual is participating in a self-employment
assistance program and meets all the eligibility requirements of such
self-employment assistance program.
(e) Short-time compensation. A State must not deny UC to an
individual participating in a short-time compensation (also known as
worksharing) program under State UC law for failure to be available for
work during a week, but such individual will be required to be available
for his or her normal workweek.
(f) Alien status. To be considered available for work in the United
States for a week, the alien must be legally authorized to work that
week in the United States by the appropriate agency of the United States
government. In determining whether an alien is legally authorized to
work in the United States, the State must follow the requirements of
section 1137(d) of the SSA (42 U.S.C. 1320b-7(d)), which relate to
verification of and determination of an alien's status.
(g) Relation to ability to work requirement. A State may consider an
individual available for work if the State finds the individual able to
work under Sec. 604.4(b) despite illness or injury.
(h) Work search. The requirement that an individual be available for
work does not require an active work search on the part of the
individual. States may, however, require an individual to be actively
seeking work to be considered available for work, or States may impose a
separate requirement that the individual must actively seek work.
Sec. 604.6 Conformity and substantial compliance.
(a) In general. A State's UC law must conform with, and the
administration of its law must substantially comply with, the
requirements of this regulation for purposes of certification under:
(1) Section 3304(c) of the FUTA (26 U.S.C. 3304(c)), with respect to
whether employers are eligible to receive credit against the Federal
unemployment tax established by section 3301 of the FUTA (26 U.S.C.
3301), and
(2) Section 302 of the SSA (42 U.S.C. 502), with respect to whether
a State is eligible to receive Federal grants for the administration of
its UC program.
(b) Resolving Issues of Conformity and Substantial Compliance. For
the purposes of resolving issues of conformity and substantial
compliance with the requirements of this regulation, the following
provisions of 20 CFR 601.5 apply:
(1) Paragraph (b) of this section, pertaining to informal
discussions with the Department of Labor to resolve conformity and
substantial compliance issues, and
(2) Paragraph (d) of this section, pertaining to the Secretary of
Labor's hearing and decision on conformity and substantial compliance.
(c) Result of failure to conform or substantially comply--(1) FUTA
requirements. Whenever the Secretary of Labor, after reasonable notice
and opportunity for a hearing to the State UC agency, finds that the
State UC law fails to conform, or that the State or State UC agency
fails to comply substantially, with the requirements of the FUTA, as
implemented in this regulation, then the Secretary of Labor shall make
no certification under such act to the Secretary of the Treasury for
such State as of October 31 of the 12-month period for which such
finding is made. Further, the Secretary of Labor must notify the
Governor of the State and such State UC agency that further payments for
the administration of the State UC law will not be made to the State.
(2) SSA requirements. Whenever the Secretary of Labor, after
reasonable notice and opportunity for a hearing to the State UC agency,
finds that the State UC law fails to conform, or that the State or State
UC agency fails to comply substantially, with the requirements of title
III, SSA (42 U.S.C. 501-504), as implemented in this regulation,
[[Page 38]]
then the Secretary of Labor must notify the Governor of the State and
such State UC agency that further payments for the administration of the
State UC law will not be made to the State until the Secretary of Labor
is satisfied that there is no longer any such failure. Until the
Secretary of Labor is so satisfied, the Department of Labor will not
make further payments to such State.
PART 606_TAX CREDITS UNDER THE FEDERAL UNEMPLOYMENT TAX ACT; ADVANCES
UNDER TITLE XII OF THE SOCIAL SECURITY ACT--Table of Contents
Subpart A_General
Sec.
606.1 Purpose and scope.
606.2 Total credits allowable.
606.3 Definitions.
606.4 Redelegation of authority.
606.5 Verification of estimates and review of determinations.
606.6 Information, reports, and studies.
Subpart B--Tax Credit Reduction [Reserved]
Subpart C_Relief From Tax Credit Reduction
606.20 Cap on tax credit reduction.
606.21 Criteria for cap.
606.22 Application for cap.
606.23 Avoidance of tax credit reduction.
606.24 Application for avoidance.
606.25 Waiver of and substitution for additional tax credit reduction.
606.26 Application for waiver and substitution.
Subpart D_Interest on Advances
606.30 Interest rates on advances.
606.31 Due dates for payment of interest. [Reserved]
606.32 Types of advances subject to interest.
606.33 No payment of interest from unemployment fund. [Reserved]
606.34 Reports of interest payable. [Reserved]
606.35 Order of application for repayments. [Reserved]
Subpart E_Relief from Interest Payment
606.40 May/September delay.
606.41 High unemployment deferral.
606.42 High unemployment delay.
606.44 Notification of determinations.
Authority: 42 U.S.C. 1102; 42 U.S.C. 1322(b)(2)(C); 26 U.S.C.
7805(a); Secretary's Order No. 3-2007, April 3, 2007 (72 FR 15907).
Source: 53 FR 37429, Sept. 26, 1988, unless otherwise noted.
Editorial Note: Nomenclature changes to part 606 appear at 71 FR
35513, June 21, 2006.
Subpart A_General
Sec. 606.1 Purpose and scope.
(a) In general. The regulations in this part 606 are issued to
implement the tax credit provisions of the Federal Unemployment Tax Act,
and the loan provisions of title XII of the Social Security Act. The
regulations on tax credits cover all of the subjects of 3302 of the
Federal Unemployment Tax Act (FUTA), except subsections (c)(3) and (e).
The regulations on loans cover all of the subjects in title XII of the
Social Security Act.
(b) Scope. This part 606 covers general matters relating to this
part in this subpart A, and in the following subparts includes specific
subjects described in general terms as follows:
(1) Subpart B describes the tax credit reductions under the Federal
Unemployment Tax Act, which relate to outstanding balances of advances
made under title XII of the Social Security Act.
(2) Subpart C describes the various forms of relief from tax credit
reductions, and the criteria and standards for grant of such relief in
the form of--
(i) A cap on tax credit reduction,
(ii) Avoidance of tax credit reduction, and
(iii) Waiver of and substitution for additional tax credit
reduction.
(3) Subpart D describes the interest rates on advances made under
title XII of the Social Security Act, dues dates for payment of
interest, and other related matters.
(4) Subpart E describes the various forms of relief from payment of
interest, and the criteria and standards for grant of such relief in the
form of--
(i) May/September delay of interest payments,
(ii) High unemployment deferral of interest payments,
(iii) High unemployment delay of interest payments, and
[[Page 39]]
(iv) Maintenance of solvency effort required to retain a deferral
previously granted.
Sec. 606.2 Total credits allowable.
The total credits allowed to an employer subject to the tax imposed
by section 3301 of the Federal Unemployment Tax Act shall not exceed 5.4
percent with respect to taxable years beginning after December 31, 1984.
Sec. 606.3 Definitions.
For the purposes of the Acts cited and this part--
Act means as appropriate the Federal Unemployment Tax Act (26 U.S.C.
3301-3311), or title XII of the Social Security Act (42 U.S.C. 1321-
1324).
Advance means a transfer of funds to a State unemployment fund, for
the purpose of paying unemployment compensation, from the Federal
unemployment account in the Unemployment Trust Fund, pursuant to section
1202 of the Social Security Act.
Average High Cost Multiple (AHCM) for a State as of December 31 of a
calendar year is calculated by dividing the State's reserve ratio, as
defined in Sec. 606.3, by the State's average high cost rate (AHCR), as
defined in Sec. 606.3, for the same year. Final calculations are
rounded to the nearest multiple of 0.01.
Average High Cost Rate (AHCR) for a State is calculated as follows:
(1) Determine the time period over which calculations are to be made
by selecting the longer of:
(i) The 20-calendar year period that ends with the year for which
the AHCR calculation is made; or
(ii) The number of years beginning with the calendar year in which
the first of the last three completed national recessions began, as
determined by the National Bureau of Economic Research, and ending with
the calendar year for which the AHCR is being calculated.
(2) For each calendar year during the selected time period,
calculate the benefit-cost ratio, as defined in Sec. 606.3; and
(3) Average the three highest calendar year benefit cost ratios for
the selected time period from paragraph (2) of this definition. Final
calculations are rounded to the nearest multiple of 0.01 percent.
Benefit-cost ratio for a calendar year is the percentage obtained by
dividing--
(1) The total dollar sum of--
(i) All compensation actually paid under the State law during such
calendar year, including in such total sum all regular, additional, and
extended compensation, as defined in section 205 of the Federal-State
Extended Unemployment Compensation Act of 1970, and excluding from such
total sum--
(A) Any such compensation paid for which the State is entitled to
reimbursement or was reimbursed under the provisions of any Federal Law,
and
(B) Any such compensation paid which is attributable to services
performed for a reimbursing employer, and which is not included in the
total dollar amount reported under paragraph (c)(1)(i)(A) of this
section, and
(ii) Any interest paid during such calendar year on any advance, by
(2) The total wages (as defined in Sec. 606.3) with respect to such
calendar year.
(3) For cap purposes, if any percentage determined by this
computation for a calendar year is not a multiple of 0.1 percent, such
percentage shall be reduced to the nearest multiple of 0.1 percent. For
funding goal purposes, if any percentage determined by this computation
for a calendar year is not a multiple of 0.01 percent, such percentage
is rounded to the nearest multiple of 0.01 percent.
Contributions means payments required by a State law to be made into
an unemployment fund by any person on account of having individuals in
his employ, to the extent that such payments are made by him without
being deducted or deductible from the remuneration of individuals in his
employ.
Federal unemployment tax means the excise tax imposed under section
3301 of the Federal Unemployment Tax Act on employers with respect to
having individuals in their employ.
Fiscal year means the Federal fiscal year which begins on October 1
of a year and ends on September 30, of the next succeeding year.
FUTA refers to the Federal Unemployment Tax Act.
Reserve ratio is calculated by dividing the balance in the State's
account in
[[Page 40]]
the unemployment trust fund (UTF) as of December 31 of such year by the
total wages paid workers covered by the unemployment compensation (UC)
program during the 12 months ending on December 31 of such year. Final
calculations are rounded to the nearest multiple of 0.01 percent.
State unemployment fund or unemployment fund means a special fund
established under a State law for the payment of unemployment
compensation to unemployed individuals, and which is an ``unemployment
fund'' as defined in section 3306(f) of the Federal Unemployment Tax
Act.
Taxable year means the calendar year.
Unemployment tax rate means, for any taxable year and with respect
to any State, the percentage obtained by dividing the total amount of
contributions paid into the State unemployment fund with respect to such
taxable year by total wages as defined in Sec. 606.3.
Wages, taxable means the total sum of remuneration which is subject
to contributions under a State law.
Wages, total means the total sum of all remuneration covered by a
State law, disregarding any dollar limitation on the amount of
remuneration which is subject to contributions under the State law.
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35513, June 21, 2006;
75 FR 57156, Sept. 17, 2010]
Sec. 606.4 Redelegation of authority.
(a) Redelegation to OWS Administrator. The Administrator, Office of
Workforce Security (hereinafter ``OWS Administrator''), is redelegated
authority to make the determinations required under this part. This
redelegation is contained in Employment and Training Order No. 1-84,
published in the Federal Register on November 14, 1983 (48 FR 51870).
(b) Delegation by Governor. The Governor of a State, as used in this
part, refers to the highest executive official of a State. Wherever in
this part an action is required by or of the Governor of a State, such
action may be taken by the Governor or may be taken by a delegatee of
the Governor if the Department is furnished appropriate proof of an
authoritative delegation of authority.
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 606.5 Verification of estimates and review of determinations.
The Department of Labor (hereinafter ``Department'') shall verify
all information and data provided by a State under this part, and the
State shall comply with such provisions as the Department considers
necessary to assure the correctness and verification of such information
and data. The State agency of a State affected by a determination made
by the OWS Administrator under this part may seek review of such
determination by a higher level official of the Employment and Training
Administration.
Sec. 606.6 Information, reports, and studies.
A State shall furnish to the Secretary of Labor such information and
reports and conduct such studies as the Secretary determines are
necessary or appropriate for carrying out the purposes of this part,
including any additional information or data the OWS Administrator may
require for the purposes of making determinations under subparts C and E
of this part.
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35514, June 21, 2006]
Subpart B--Tax Credit Reduction [Reserved]
Subpart C_Relief From Tax Credit Reduction
Sec. 606.20 Cap on tax credit reduction.
(a) Applicability. Subsection (f) of section 3302 of FUTA authorizes
a limitation (cap) on the reduction of tax credits by reason of an
outstanding balance of advances, if the OWS Administrator determines
with respect to a State, on or before November 10 of a taxable year,
that--
(1) No action was taken by the State during the 12-month period
ending on September 30 of such taxable year which has resulted, or will
result, in a reduction in the State's unemployment tax effort, as
defined in Sec. 606.21(a);
[[Page 41]]
(2) No action was taken by the State during the 12-month period
ending on September 30 of such taxable year which has resulted, or will
result, in a net decrease in the solvency of the State unemployment
compensation system, as defined in Sec. 606.21(b);
(3) The State unemployment tax rate (as defined in Sec. 606.3) for
the taxable year equals or exceeds the average benefit-cost ratio (as
defined in Sec. 606.3) for the calendar years in the five-calendar year
period ending with the calendar year immediately preceding the taxable
year for which the cap is requested, under the rules specified in Sec.
606.21 (c) and (d); and
(4) The outstanding balance of advances to the State on September 30
of the taxable year was not greater than the outstanding balance of
advances to the State on September 30 of the third preceding taxable
year.
(b) Maximum tax credit reduction. If a State qualifies for a cap,
the maximum tax credit reduction for the taxable year shall not exceed
0.6 percent, or, if higher, the tax credit reduction that was in effect
for the taxable year preceding the taxable year for which the cap is
requested.
(c) Year not taken into account. If a State qualifies for a cap for
any year, the year and January 1 of the year to which the cap applies
will not be taken into account for purposes of determining reduction of
tax credit for subsequent taxable years.
(d) Partial caps. Partial caps obtained under subsection (f)(8) are
no longer available. Nevertheless, for the purposes of applying section
3302(c)(2) to subsequent taxable years, partial cap credits earned will
be taken into account for purposes of determining reduction of tax
credits. Also, the taxable year to which the partial cap applied (and
January 1 thereof) will be taken into account for purposes of
determining reduction of tax credits for subsequent taxable years.
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.21 Criteria for cap.
(a) Reduction in unemployment tax effort. (1) For purposes of
paragraph (a)(1) of Sec. 606.20, a reduction in a State's unemployment
tax effort will have occurred with respect to a taxable year if any
action is or was taken (legislative, judicial, or administrative,) that
is effective during the 12-month period ending on September 30 of such
taxable year, which has resulted in or will result in a reduction of the
amount of contributions paid or payable or the amounts that were or
would have been paid or payable but for such action.
(2) Actions that will result in a reduction in tax effort include,
but are not limited to, a reduction in the taxable wage base, the tax
rate schedule, tax rates, or taxes payable (including surtaxes) that
would not have gone into effect but for the legislative, judicial, or
administrative action taken. Notwithstanding the foregoing criterion, a
reduction in unemployment tax effort resulting from any provision of the
State law enacted prior to August 13, 1981, will not be taken into
account as a reduction in the State's unemployment tax effort for the
purposes of this section.
(b) Net decrease in solvency. For purposes of paragraph (a)(2) of
Sec. 606.20, a net decrease in the solvency of the State's unemployment
compensation system will have occurred with respect to a taxable year if
any action is or was taken (legislative, judicial, or administrative),
that is effective during the 12-month period ending on September 30 of
such taxable year, which has resulted in or will result in an increase
in benefits without at least an equal increase in taxes, or a decrease
in taxes without at least an equal decrease in benefits. Notwithstanding
the foregoing criterion, a decrease in solvency resulting from any
provision of the State law enacted prior to August 13, 1981, will not be
taken into account as a reduction in solvency of the State's
unemployment compensation system for the purposes of this section.
(c) State unemployment tax rate. For purposes of paragraph (a)(3) of
Sec. 606.20, the State unemployment tax rate is defined in Sec. 606.3.
If such percentage is not a multiple of 0.1 percent, the percentage
shall remain unrounded.
(d) State five-year average benefit cost ratio. The average benefit-
cost ratio for the 5 preceding calendar years is the percentage
determined by dividing the sum of the benefit-cost ratios for the 5
[[Page 42]]
years by five. If such percentage is not a multiple of 0.1 percent, the
percentage shall remain unrounded.
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.22 Application for cap.
(a) Application. (1) The Governor of the State shall make
application, addressed to the Secretary of Labor, no later than July 1
of a taxable year with respect to which a State requests a cap on tax
credit reduction. The Governor is required to notify the Department on
or before October 15 of such taxable year of any action occurring after
the date of the initial application and effective prior to October 1 of
such year that would impact upon the State's application.
(2) The OWS Administrator will make a determination on the
application on or before November 10 of such taxable year, will notify
the applicant and the Secretary of the Treasury of such determination,
and will cause notice of such determination to be published in the
Federal Register.
(b) Anticipated impact statement. In support of the application by
the Governor, there shall be submitted with the application (on or
before October 15), for the purposes of the criteria described in
Sec. Sec. 606.20(a) (1) and (2) and 606.21 (a) and (b), a description
of all statutory provisions enacted or amended, regulations adopted or
revised, administrative policies and procedures adopted or revised, and
judicial decisions given effect, which are effective during the 12-month
period ending on September 30 of the taxable year for which a cap on tax
credit reduction is requested, and an anticipated impact statement (AIS)
for each such program action in the following respect--
(1) The estimated dollar effect on each program action upon
expenditures for compensation from the State unemployment fund and for
the amounts of contributions paid or payable in such 12-month period,
including the effect of interaction among program actions, and with
respect to program actions for which dollar impact cannot be estimated
or is minor or negligible, indicate whether the impact is positive or
negative;
(2) If a program action has no such dollar effect, an explanation of
why there is or will be no such effect;
(3) A description of assumptions and methodology used and the basis
for the financial estimate of the impact of each program action
described in paragraphs (b)(1) and (b)(2) of this section; and
(4) A comparision of the program actions described in paragraphs
(b)(1) and (b)(2) of this section with the program actions prior to the
Federal fiscal year (as defined in Sec. 606.3) which ends on such
September 30.
(c) Unemployment tax rate. With respect to the unemployment tax rate
criterion described in Sec. Sec. 606.20(a)(3) and 606.21(c), the
application shall include an estimate for the taxable year with respect
to which a cap on tax credit reduction is requested and actual data for
the prior two years as follows:
(1) The amount of taxable wages as defined in Sec. 606.3;
(2) The amount of total wages as defined in Sec. 606.3; and
(3) The estimated distribution of taxable wages, as defined in Sec.
606.3, by tax rate under the State law.
(d) Benefit cost ratio. With respect to the benefit cost ratio
criterion described in Sec. Sec. 606.20(a)(3) and 606.21(d), the
application shall include for each of the five calendar years prior to
the taxable year for which a cap on tax credit reduction is requested,
the following data:
(1) The total dollar sum of compensation actually paid under the
State law during the calendar year, including in such total sum all
regular, additional, and extended compensation as defined in section 205
of the Federal-State Extended Unemployment Compensation Act of 1970, but
excluding from such total sum--
(i) The total dollar amount of such compensation paid for which the
State is entitled to reimbursement or was reimbursed under the
provisions of any Federal law;
(ii) The total dollar amount of such compensation paid which is
attributable to services performed for a reimbursing employer, and which
is not included in the total amount reported under paragraph (d)(1)(i)
of this section;
[[Page 43]]
(2) The total dollar amount of interest paid during the calendar
year on any advance; and
(3) The total dollar amount of wages (as defined in Sec. 606.3)
with respect to such calendar year.
(e) Documentation required. Copies of the sources of or authority
for each program action described in paragraph (b) of this section shall
be submitted with each application for a cap on tax credit reduction. In
addition, a notation shall be made on each AIS of where all figures
referred to are contained in reports required by the Department or in
other data sources.
(f) State contact person. The Department may request additional
information or clarification of information submitted bearing upon an
application for a cap on tax credit reduction. To expedite requests for
such information, the name and telephone number of an appropriate State
official shall be included in the application by the Governor.
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.23 Avoidance of tax credit reduction.
(a) Applicability. Subsection (g) of section 3302 of FUTA authorizes
a State to avoid a tax credit reduction for a taxable year by meeting
the three requirements of subsection (g). These requirements are met if
the OWS Administrator determines that:
(1) Advances were repaid by the State during the one-year period
ending on November 9 of the taxable year in an amount not less than the
sum of--
(i) The potential additional taxes (as estimated by the OWS
Administrator) that would be payable by the State's employers if
paragraph (2) of section 3302(c) of FUTA were applied for such taxable
year (as estimated with regard to the cap on tax credit reduction for
which the State qualifies under Sec. Sec. 606.20 to 606.22 with respect
to such taxable year), and
(ii) Any advances made to such State during such one-year period
under title XII of the Social Security Act;
(2) There will be adequate funds in the State unemployment fund (as
estimated by the OWS Administrator) sufficient to pay all benefits when
due and payable under the State law during the three-month period
beginning on November 1 of such taxable year without receiving any
advance under title XII of the Social Security Act; and
(3) There is a net increase (as estimated by the OWS Administrator)
in the solvency of the State unemployment compensation system for the
taxable year and such net increase equals or exceeds the potential
additional taxes for such taxable year as estimated under paragraph
(a)(1)(i) of this section.
(b) Net increase in solvency. (1) The net increase in solvency for a
taxable year, as determined for the purposes of paragraph (a)(3) of this
section, must be attributable to legislative changes made in the State
law after the later of--
(i) September 3, 1982, or
(ii) The date on which the first advance is taken into account in
determining the amount of the potential additional taxes.
(2) The OWS Administrator shall determine the net increase in
solvency by first estimating the difference between revenue receipts and
benefit outlays under the law in effect for the year for which avoidance
is requested, as if the relevant changes in State law referred to in
paragraph (b)(1) of this section were not in effect for such year. The
OWS Administrator shall then estimate the difference between revenue
receipts and benefit outlays under the law in effect for the year for
which the avoidance is requested, taking into account the relevant
changes in State law referred to in paragraph (b)(1) of this section.
The amount (if any) by which the second estimated difference exceeds the
first estimated difference shall constitute the net increase in solvency
for the purposes of this section.
(c) Year taken into account. If a State qualifies for avoidance for
any year, that year and January 1 of that year to which the avoidance
applies will be taken into account for purposes of determining reduction
of tax credits for subsequent taxable years.
Sec. 606.24 Application for avoidance.
(a) Application. (1) The Governor of the State shall make
application, addressed to the Secretary of Labor, no later than July 1
of a taxable year with
[[Page 44]]
respect to which a State requests avoidance of tax credit reduction. The
Governor is required to notify the Department on or before October 15 of
such taxable year of any action impacting upon the State's application
occurring subsequent to the date of the initial application and on or
before November 10.
(2) The OWS Administrator will make a determination on the
application as of November 10 of such taxable year, will notify the
applicant and the Secretary of the Treasury of such determination, and
will cause notice of such determination to be published in the Federal
Register.
(b) Information. (1) The application shall include a statement of
the amount of advances repaid and to be repaid during the one-year
period ending on November 9 of the taxable year for which avoidance is
requested. If the amount repaid as of the date of the application is
less than the amount required to satisfy the provisions of Sec.
606.23(a)(1), the Governor shall provide a report later of the
additional repayments that have been made in the remainder of the one-
year period ending on November 9 of the taxable year, for the purposes
of meeting the provisions of Sec. 606.23(a)(1).
(2) The application also shall include estimates of revenue
receipts, benefit outlays, and end-of-month fund balance for each month
in the period beginning with September of the taxable year for which
avoidance is requested through the subsequent January. Actual data for
the comparable period of the preceding year also shall be included in
the application in order to determine the reasonableness of such
estimates.
(3) The application also shall include a description of State law
changes, effective for the taxable year for which the avoidance is
requested, which resulted in a net increase in the solvency of the State
unemployment compensation system, and documentation which supports the
State's estimate of the net increase in solvency for such taxable year.
Sec. 606.25 Waiver of and substitution for additional tax credit reduction.
A provision of subsection (c)(2) of section 3302 of FUTA provides
that, for a State that qualifies, the additional tax credit reduction
applicable under subparagraph (C), beginning in the fifth consecutive
year of a balance of outstanding advances, shall be waived and the
additional tax credit reduction applicable under subparagraph (B) shall
be substituted. The waiver and substitution are granted if the OWS
Administrator determines that the State has taken no action, effective
during the 12-month period ending on September 30 of the year for which
the waiver and substitution are requested, which has resulted or will
result in a net decrease in the solvency of the State unemployment
compensation system as determined for the purposes of Sec. Sec.
606.20(a)(2) and 606.21(b).
Sec. 606.26 Application for waiver and substitution.
(a) Application. The Governor of the State shall make application
addressed to the Secretary of Labor, no later than July 1 of a taxable
year with respect to which a State requests waiver and substitution. Any
such application shall contain the supportive data and information
required by Sec. 606.22(b) for the purposes of Sec. Sec. 606.20(a)(2)
and 606.21(b). The Governor is required to notify the Department on or
before October 15 of such taxable year of action occurring after the
date of the initial application and effective prior to October 1 of such
year that would impact upon the State's application.
(b) Notification of determination. The OWS Administrator will make a
determination on the application as of November 10 of the taxable year,
will notify the applicant and the Secretary of the Treasury of the
resulting tax credit reduction to be applied, and will cause notice of
such determination to be published in the Federal Register.
Subpart D_Interest on Advances
Sec. 606.30 Interest rates on advances.
Advances made to States pursuant to title XII of the Social Security
Act shall be subject to interest payable on the due dates specified in
Sec. 606.31. \1\ The interest rate for each calendar year
[[Page 45]]
will be 10 percent or, if less, the rate determined by the Secretary of
the Treasury and announced to the States by the Department.
---------------------------------------------------------------------------
\1\ (Editorial note: This section will be added at a later date.)
[53 FR 37429, Sept. 26, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 606.31 Due dates for payment of interest. [Reserved]
Sec. 606.32 Types of advances subject to interest.
(a) Payment of interest. Except as otherwise provided in paragraph
(b) of this section each State shall pay interest on any advance made to
such State under title XII of the Social Security Act.
(b) Cash flow loans--(1) Availability of interest-free advances.
Advances are deemed cash flow loans and shall be free of interest
provided that:
(i) The advances are repaid in full prior to October 1 of the
calendar year in which the advances are made;
(ii) The State does not receive an additional advance after
September 30 of the same calendar year in which the advance is made. If
the State receives an additional advance after September 30 of the same
calendar year in which earlier advances were made, interest on the fully
repaid earlier advance(s) is due and payable not later than the day
following the date of the first such additional advance. The
administrator of the State agency must notify the Secretary of Labor no
later than September 10 of the same calendar year of those loans deemed
to be cash flow loans and not subject to interest. This notification
must include the date and amount of each loan made beginning January 01
through September 30 of the same calendar year, and a copy of
documentation sent to the Secretary of the Treasury requesting loan
repayment transfer(s) from the State's account in the UTF to the Federal
unemployment account in the UTF; and
(iii) The State has met the funding goals described in paragraph
(b)(2) or (b)(3) of this section.
(2) Funding goals. This paragraph (b)(2) is applicable to all States
as of January 1, 2019. A State has met the funding goals requirement if:
(i) The State, as of December 31 of any of the 5 consecutive
calendar years preceding the calendar year in which such advances are
made, had an AHCM of at least 1.00, as determined under Sec. 606.3; and
(ii) The State maintained tax effort as determined under paragraph
(b)(4) of this section.
(3) Phasing in funding goals. This paragraph (b)(3) applies for
calendar years 2014 through 2018. A State has met the funding goals
requirement if it has satisfied the solvency criterion in paragraph (i),
and the maintenance of tax effort criteria in paragraph (ii), of this
Sec. 606.32(b)(3).
(i) A State has met the solvency criterion if:
(A) For calendar year 2014, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.50, as determined under Sec. 606.3;
(B) For calendar year 2015, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.60, as determined under Sec. 606.3;
(C) For calendar year 2016, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.70, as determined under Sec. 606.3;
(D) For calendar year 2017, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.80, as determined under Sec. 606.3;
(E) For calendar year 2018, as of December 31 of any of the 5
consecutively preceding calendar years, the State had an AHCM of at
least 0.90, as determined under Sec. 606.3;
(ii) A State has met the maintenance of tax effort criteria if it
maintained tax effort as determined under paragraph (b)(4) of this
section.
(4) Maintenance of tax effort criteria. A State has maintained tax
effort if, for every year between the last calendar year in which it met
the solvency criterion in paragraph (b)(2)(i) or (b)(3)(i) of this
section and the calendar year in which an interest-free advance is
taken, the State's unemployment tax rate as defined in Sec. 606.3 for
the calendar year is at least--
(i) 80 percent of the prior year's unemployment tax rate; and
[[Page 46]]
(ii) 75 percent of the State 5-year average benefit-cost ratio, as
determined under Sec. 606.21(d).
[53 FR 37429, Sept. 26, 1988, as amended at 75 FR 57156, Sept. 17, 2010]
Sec. 606.33 No payment of interest from unemployment fund. [Reserved]
Sec. 606.34 Reports of interest payable. [Reserved]
Sec. 606.35 Order of application for repayments. [Reserved]
Subpart E_Relief from Interest Payment
Sec. 606.40 May/September delay.
Subsection (b)(3)(B) of section 1202 of the Social Security Act
permits a State to delay payment of interest accrued on advances made
during the last five months of the Federal fiscal year (May, June, July,
August, and September) to no later than December 31 of the next
succeeding calendar year. If the payment is delayed, interest on the
delayed payment will accrue from the normal due date (i.e., September
30) and in the same manner as if the interest due on the advance(s) was
an advance made on such due date. The Governor of a State which has
decided to delay such interest payment shall notify the Secretary of
Labor no later than September 1 of the year with respect to which the
delay is applicable.
Sec. 606.41 High unemployment deferral.
(a) Applicability. Subsection (b)(3)(C) of section 1202 of the
Social Security Act permits a State to defer payment of, and extend the
payment for, 75 percent of interest charges otherwise due prior to
October 1 of a year if the OWS Administrator determines that high
unemployment conditions existed in the State.
(b) High unemployment defined. For purposes of this section, high
unemployment conditions existed in the State if the State's rate of
insured unemployment (as determined for purposes of 20 CFR 615.12) under
the State law with respect to the period consisting of the first six
months of the preceding calendar year equalled or exceeded 7.5 percent;
this means that in weeks 1 (that week which includes January 1 of the
year) through 26 of such preceding calendar year, the rate of insured
unemployment reported by the State and accepted by the Department under
20 CFR part 615 must have averaged a percentage equalling or exceeding
7.5 percent.
(c) Schedule of deferred payments. The State must pay prior to
October 1 one-fourth of the interest due, and must pay a minimum of one-
third of the deferred amount prior to October 1 in each of the three
years following the year in which deferral was granted; at the State's
option payment of deferred interest may be accelerated.
(d) Related criteria. Timely payment of one-fourth of the interest
due prior to October 1 is a precondition to obtaining deferral of
payment of 75 percent of the interest due. No interest shall accrue on
such deferred interest.
(e) Application for deferral and determination. (1) The Governor of
a State which has decided to request such deferral of interest payment
shall apply to the Secretary of Labor no later than July 1 of the
taxable year for which the deferral is requested.
(2) The OWS Administrator will determine whether deferral is or is
not granted on the basis of the Department's records of reports of the
rates of insured unemployment and information obtained from the
Department of the Treasury as to the timely and full payment of one-
fourth of the interest due.
Sec. 606.42 High unemployment delay.
(a) Applicability. Paragraph (9) of section 1202 (b) of the Social
Security Act permits a State to delay for a period not exceeding nine
months the interest payment due prior to October 1 if, for the most
recent 12-month period prior to such October 1 for which data are
available, the State had an average total unemployment rate of 13.5
percent or greater.
(b) Delayed due date. An interest payment delayed under paragraph
(9) must be paid in full not later than the last official Federal
business day prior to the following July 1; at the State's option
payment of delayed interest may be accelerated. No interest shall accrue
on such delayed payment.
[[Page 47]]
(c) Application for delay in payment and determination. (1) The
Governor of a State which has decided to request delay in payment of
interest under paragraph (9) shall apply to the Secretary of Labor no
later than July 1 of the taxable year for which the delay is requested.
(2) The OWS Administrator will determine whether delay is or is not
granted on the basis of seasonally unadjusted civilian total
unemployment rate data published by the Department's Bureau of Labor
Statistics.
Sec. 606.44 Notification of determinations.
The OWS Administrator will make determinations under Sec. Sec.
606.41, 606.42, and 606.43 on or before September 10 of the taxable
year, will promptly notify the applicants and the Secretary of the
Treasury of such determinations, and will cause notice of such
determinations to be published in the Federal Register. The OWS
Administrator also will inform the Secretary of the Treasury and cause
notice to be published in the Federal Register of information with
respect to delayed payment of interest as provided in Sec. 606.40.
PART 609_UNEMPLOYMENT COMPENSATION FOR FEDERAL CIVILIAN EMPLOYEES
--Table of Contents
Subpart A_General Provisions
Sec.
609.1 Purpose and application.
609.2 Definitions of terms.
Subpart B_Administration of UCFE Program
609.3 Eligibility requirements for UCFE.
609.4 Weekly and maximum benefit amounts.
609.5 Claims for UCFE.
609.6 Determinations of entitlement; notices to individual.
609.7 Appeal and review.
609.8 The applicable State for an individual.
609.9 Provisions of State law applicable to UCFE claims.
609.10 Restrictions on entitlement.
609.11 Overpayments; penalties for fraud.
609.12 Inviolate rights to UCFE.
609.13 Recordkeeping; disclosure of information.
609.14 Payments to States.
609.15 Public access to Agreements.
609.16 Administration in absence of an Agreement.
609.17 Information, reports, and studies.
Subpart C_Responsibilities of Federal Agencies
609.20 Information to Federal civilian employees.
609.21 Findings of Federal agency.
609.22 Correcting Federal findings.
609.23 Furnishing additional information.
609.24 Reconsideration of Federal findings.
609.25 Furnishing other information.
609.26 Liaison with Department.
Authority: 5 U.S.C. 8508; Secretary's Order No. 4-75, 40 FR 18515;
(5 U.S.C. 301). Interpret and apply secs. 8501-8508 of title 5, United
States Code.
Source: 47 FR 54687, Dec. 3, 1982, unless otherwise noted.
Subpart A_General Provisions
Sec. 609.1 Purpose and application.
(a) Purpose. Subchapter I of chapter 85, title 5 of the United
States Code, as amended by Pub. L. 94-566, 90 Stat. 2667, 5 U.S.C. 8501-
8508, provides for a permanent program of unemployment compensation for
unemployed Federal civilian employees. The unemployment compensation
provided for in subchapter I is hereinafter referred to as unemployment
compensation for Federal employees, or UCFE. The regulations in this
part are issued to implement the UCFE Program.
(b) First rule of construction. The Act and the implementing
regulations in this part shall be construed liberally so as to carry out
the purposes of the Act.
(c) Second rule of construction. The Act and the implementing
regulations in this part shall be construed so as to assure insofar as
possible the uniform interpretation and application of the Act
throughout the United States.
(d) Effectuating purpose and rules of construction. (1) In order to
effectuate the provisions of this section, each State agency shall
forward to the United States Department of Labor (hereafter Department),
not later than 10 days after issuance, a copy of each judicial or
administrative decision ruling on an individual's entitlement to payment
of UCFE or to credit for a waiting period. On request of the Department,
a State agency shall forward to the Department a copy of any
determination or redetermination ruling on
[[Page 48]]
an individual's entitlement to UCFE or waiting period credit.
(2) If the Department believes that a determination,
redetermination, or decision is inconsistent with the Department's
interpretation of the Act or this part, the Department may at any time
notify the State agency of the Department's view. Thereafter the State
agency shall issue a redetermination or appeal if possible, and shall
not follow such determination, redetermination, or decision as a
precedent; and, in any subsequent proceedings which involve such
determination, redetermination, or decision, or wherein such
determination, redetermination, or decision is cited as precedent or
otherwise relied upon, the State agency shall inform the claims deputy
or hearing officer or court of the Department's view and shall make all
reasonable efforts, including appeal or other proceedings in an
appropriate forum, to obtain modification, limitation, or overruling of
the determination, redetermination, or decision.
(3) If the Department believes that a determination,
redetermination, or decision is patently and flagrantly violative of the
Act or this part, the Department may at any time notify the State agency
of the Department's view. If the determination, redetermination, or
decision in question denies UCFE to a claimant, the steps outlined in
paragraph (d)(2) of this section shall be followed by the State agency.
If the determination, redetermination, or decision in question awards
UCFE to a claimant, the benefits are ``due'' within the meaning of
section 303(a)(1) of the Social Security Act, 42 U.S.C. 503(a)(1), and
therefore must be paid promptly to the claimant. However, the State
agency shall take the steps outlined in paragraph (d)(2) of this
section, and payments to the claimant may be temporarily delayed if
redetermination or appeal action is taken not more than one business day
following the day on which the first payment otherwise would be issued
to the claimant; and the redetermination action is taken or appeal is
filed to obtain a reversal of the award of UCFE and a ruling consistent
with the Department's view; and the redetermination action or appeal
seeks an expedited redetermination or appeal within not more than two
weeks after the redetermination action is taken or the appeal is filed.
If redetermination action is not taken or appeal is not filed within the
above time limit, or a redetermination or decision is not obtained
within the two-week limit, or any redetermination or decision or order
is issued which affirms the determination, redetermination, or decision
awarding UCFE or allows it to stand in whole or in part, the benefits
awarded must be paid promptly to the claimant.
(4)(i) If any determination, redetermination, or decision, referred
to in paragraph (d)(2) or paragraph (d)(3) of this section, is treated
as a precedent for any future UCFE claim or claim under the UCX Program
(part 614 of this chapter), the Secretary will decide whether the
Agreement with the State entered into under the Act shall be terminated.
(ii) In the case of any determination, redetermination, or decision
that is not legally warranted under the Act or this part, including any
determination, redetermination, or decision referred to in paragraph
(d)(3) of this section, the Secretary will decide whether the State
shall be required to restore the funds of the United States for any sums
paid under such a determination, redetermination, or decision, and
whether, in the absence of such restoration, the Agreement with the
State shall be terminated and whether other action shall be taken to
recover such sums for the United States.
(5) A State agency may request reconsideration of a notice issued
pursuant to paragraph (d)(2) of paragraph (d)(3) of this section, and
shall be given an opportunity to present views and arguments if desired.
(6) Concurrence of the Department in a determination,
redetermination, or decision shall not be presumed from the absence of a
notice issued pursuant to this section.
Sec. 609.2 Definitions of terms.
For the purposes of the Act and this part:
(a) Act means subchapter I of chapter 85, title 5, United States
Code, 5 U.S.C. 8501-8508.
[[Page 49]]
(b) Agreement means the agreement entered into pursuant to the Act
between a State and the Secretary under which the State agency of the
State agrees to make payments of unemployment compensation in accordance
with the Act and the regulations and procedures thereunder prescribed by
the Department.
(c) Based period means the base period as defined by the applicable
State law for the benefit year.
(d) Benefit year means the benefit year as defined by the applicable
State law, and if not so defined the term means the period prescribed in
the agreement with the State or, in the absence of an Agreement, the
period prescribed by the Department.
(e) Federal agency means any department, agency, or governmental
body of the United States, including any instrumentality wholly or
partially owned by the United States, in any branch of the Government of
the United States, which employs any individual in Federal civilian
service.
(f) Federal civilian service means service performed in the employ
of any Federal agency, except service performed--
(1) By an elective official in the executive or legislative branches
of the Government of the United States;
(2) As a member of the Armed Forces or the Commissioned Corps of the
National Oceanic and Atmospheric Administration;
(3) By Foreign Service personnel for whom special separation
allowances are provided under chapter 14 of title 22 of the United
States Code;
(4) Outside the 50 States, the Commonwealth of Puerto Rico, the
Virgin Islands, and the District of Columbia, by an individual who is
not a citizen of the United States;
(5) By an individual excluded by regulations of the Office of
Personnel Management from civil service retirement coverage provided by
subchapter III of chapter 83 of title 5 of the United States Code
because the individual is paid on a contract or fee basis;
(6) By an individual receiving nominal pay and allowances of $12 or
less a year;
(7) In a hospital, home, or other institution of the United States
by a patient or inmate thereof;
(8) By a student-employee as defined by 5 U.S.C. 5351; that is: (i)
A student nurse, medical or dental intern, resident-in-training, student
dietitian, student physical therapist, or student occupational
therapist, assigned or attached to a hospital, clinic, or medical or
dental laboratory operated by an agency as defined in section 5351; or
(ii) Any other student-employee, assigned or attached primarily for
training purposes to such a hospital, clinic, or medical or dental
laboratory operated by such an agency, who is designated by the head of
the agency with the approval of the Office of Personnel Management;
(9) By an individual serving on a temporary basis in case of fire,
storm, earthquake, flood, or other similar emergency;
(10) By an individual employed under a Federal relief program to
relieve the individual from unemployment;
(11) As a member of a State, county, or community committee under
the Agricultural Stabilization and Conservation Service or of any other
board, council, committee, or other similar body, unless such body is
composed exclusively of individuals otherwise in the full-time employ of
the United States;
(12) By an officer or member of the crew on or in connection with an
American vessel which is:
(i) Owned by or bareboat chartered to the United States, and
(ii) The business of which is conducted by a general agent of the
Secretary of Commerce; and
(iii) If contributions on account of such service are required under
section 3305(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3305(g))
to be made to an unemployment fund under a State law;
(13) By an individual excluded by any other Federal law from
coverage under the UCFE Program; or
(14) By an individual whose service is covered by the UCX Program to
which part 614 of this chapter applies.
(g) Federal employee means an individual who has performed Federal
civilian service.
[[Page 50]]
(h) Federal findings means the facts reported by a Federal agency
pertaining to an individual as to: (1) Whether or not the individual has
performed Federal civilian service for such an agency;
(2) The period or periods of such Federal civilian service;
(3) The individual's Federal wages; and
(4) The reasons for termination of the individual's Federal civilian
service.
(i) Federal wages means all pay and allowances, in cash and in kind,
for Federal civilian service.
(j) First claim means an initial claim for unemployment compensation
under the UCFE Program, the UCX Program (part 614 of this chapter), a
State law, or some combination thereof, whereby a benefit year is
established under an applicable State law.
(k) Official station means the State (or country, if outside the
United States) designated on a Federal employee's notification of
personnel action terminating the individual's Federal civilian service
(Standard Form 50 or its equivalent) as the individual's ``duty
station.'' If the form of notification does not specify the Federal
employee's ``duty station'', the individual's official station shall be
the State or country designated under ``name and location of employing
office'' on such form or designated as the individual's place of
employment on an equivalent form.
(l) Secretary means the Secretary of Labor of the United States.
(m) State means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, and the Virgin Islands.
(n) State agency means the agency of the State which administers the
applicable State law and is administering the UCFE Program in the State
pursuant to an Agreement with the Secretary.
(o)(1) State law means the unemployment compensation law of a State
approved by the Secretary under section 3304 of the Internal Revenue
Code of 1986, 26 U.S.C. 3304, if the State is certified under section
3304(c) of the Internal Revenue Code of 1986, 26 U.S.C. 3304(c).
(2) Applicable State law means the State law made applicable to a
UCFE claimant by Sec. 609.8.
(p)(1) Unemployment compensation means cash benefits (including
dependents' allowances) payable to individuals with respect to their
unemployment, and includes regular, additional, emergency, and extended
compensation.
(2) Regular compensation means unemployment compensation payable to
an individual under any State law, but not including additional
compensation or extended compensation.
(3) Additional compensation means unemployment compensation totally
financed by a State and payable under a State law by reason of
conditions of high unemployment or by reason of other special factors.
(4) Emergency compensation means supplementary unemployment
compensation payable under a temporary Federal law after exhaustion of
regular and extended compensation.
(5) Extended compensation means unemployment compensation payable to
an individual for weeks of unemployment in an extended benefit period,
under those provisions of a State law which satisfy the requirements of
the Federal-State Extended Unemployment Compensation Act of 1970, as
amended, 26 U.S.C. 3304 note, and part 615 of this chapter, with respect
to the payment of extended compensation.
(q) Week means, for purposes of eligibility for and payment of UCFE,
a week as defined in the applicable State law.
(r) Week of unemployment means a week of total, part-total, or
partial unemployment as defined in the applicable State law, which shall
be applied in the same manner and to the same extent to all employment
and earnings, and in the same manner and to the same extent for the
purposes of the UCFE Program, as if the individual filing for UCFE were
filing a claim for State unemployment compensation.
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
[[Page 51]]
Subpart B_Administration of UCFE Program
Sec. 609.3 Eligibility requirements for UCFE.
An individual shall be eligible to receive a payment of UCFE or to
waiting period credit with respect to a week of unemployment if:
(a) The individual has Federal civilian service and Federal wages in
the base period under the applicable State law;
(b) The individual meets the qualifying employment and wage
requirements of the applicable State law, either on the basis of Federal
civilian service and Federal wages alone or in combination with service
and wages covered under a State law or under the UCX Program (part 614
of this chapter);
(c) The individual has filed an initial claim for UCFE and, as
appropriate, has filed a timely claim for waiting period credit or a
payment of UCFE with respect to that week of unemployment; and
(d) The individual is totally, part-totally, or partially
unemployed, and is able to work, available for work, and seeking work
within the meaning of or as required by the applicable State law, and is
not subject to disqualification under this part or the applicable State
law, with respect to that week of unemployment.
Sec. 609.4 Weekly and maximum benefit amounts.
(a) Total unemployment. The weekly amount of UCFE payable to an
eligible individual for a week of total unemployment shall be the amount
that would be payable to the individual as unemployment compensation for
a week of total unemployment as determined under the applicable State
law.
(b) Partial and part-total unemployment. The weekly amount of UCFE
payable for a week of partial or part-total unemployment shall be the
amount that would be payable to the individual as unemployment
compensation for a week of partial or part-total unemployment as
determined under the applicable State law.
(c) Maximum amount. The maximum amount of UCFE which shall be
payable to an eligible individual during and subsequent to the
individual's benefit year shall be the maximum amount of all
unemployment compensation that would be payable to the individual as
determined under the applicable State law.
(d) Computation rules. (1) The weekly and maximum amounts of UCFE
payable to an individual under the UCFE Program shall be determined
under the applicable State law to be in the same amount, on the same
terms, and subject to the same conditions as the State unemployment
compensation which would be payable to the individual under the
applicable State law if the individual's Federal civilian service and
Federal wages assigned or transferred under this part to the State had
been included as employment and wages covered by that State law.
(2) All Federal civilian service and Federal wages for all Federal
agencies shall be considered employment with a single employer for
purposes of the UCFE Program.
Sec. 609.5 Claims for UCFE.
(a) First claims. A first claim for UCFE shall be filed by an
individual in any State agency of any State (or Canada) according to the
applicable State law, and on a form prescribed by the Department which
shall be furnished to the individual by the State agency where the claim
is filed.
(b) Weekly claims. Claims for waiting week credit and payments of
UCFE for weeks of unemployment shall be filed in any State agency (or
Canada) at the times and in the manner as claims for State unemployment
compensation are filed under the applicable State law, and on forms
prescribed by the Department which shall be furnished to the individual
by the State agency where the claim is filed.
(c) Secretary's standard. The procedure for reporting and filing
claims for UCFE and waiting period credit shall be consistent with this
part 609 and the Secretary's ``Standard for Claim Filing, Claimant
Reporting, Job Finding and Employment Services'' (Employment Security
Manual, part V, sections 5000 et seq.).
[[Page 52]]
Sec. 609.6 Determinations of entitlement; notices to individual.
(a) Determination of first claim. The State agency whose State law
applies to an individual under Sec. 609.8 shall, promptly upon the
filing of a first claim for UCFE, determine whether the individual is
eligible and whether a disqualification applies, and, if the individual
is found to be eligible, the individual's benefit year and the weekly
and maximum amounts of UCFE payable to the individual.
(b) Determinations of weekly claims. The State agency promptly
shall, upon the filing of a claim for payment of UCFE or waiting period
credit with respect to a week, determine whether the individual is
entitled to a payment of UCFE or waiting period credit with respect to
such week, and, if entitled, the amount of UCFE or waiting period credit
to which the individual is entitled.
(c) Redetermination. The provisions of the applicable State law
concerning the right to request, or authority to undertake,
reconsideration of a determination pertaining to State unemployment
compensation under the applicable State law shall apply to
determinations pertaining to UCFE.
(d) Notices to individual. The State agency promptly shall give
notice in writing to the individual of any determination or
redetermination of a first claim, and, except as may be authorized under
paragraph (g) of this section, of any determination or redetermination
of any weekly claim which denies UCFE or waiting period credit or
reduces the weekly amount or maximum amount initially determined to be
payable. Each notice of determination or redetermination shall include
such information regarding the determination or redetermination and
notice of right to reconsideration or appeal, or both, as is furnished
with written notices of determinations and redeterminations with respect
to claims for State unemployment compensation; and where information
furnished by a Federal agency was considered in making the
determination, or redetermination, the notice thereof shall include an
explanation of the right of the individual to seek additional
information pursuant to Sec. 609.23 and/or a reconsideration of Federal
findings pursuant to Sec. 609.24.
(e) Obtaining information for claim determinations. (1) Information
required for the determination of claims for UCFE shall be obtained by
the State agency from claimants, employers, and others, in the same
manner as information is obtained for claim purposes under the
applicable State law, but information (including additional and
reconsidered Federal findings) shall be obtained from the Federal agency
that employed the UCFE claimant as prescribed in Sec. Sec. 609.21
through 609.25. On request by a UCFE claimant, the State agency shall
seek additional information pursuant to Sec. 609.23 and reconsideration
of Federal findings pursuant to Sec. 609.24.
(2) If Federal findings have not been received from a Federal agency
within 12 days after the request for information was submitted to the
Federal agency, the State agency shall determine the individual's
entitlement to UCFE on the basis of an affidavit completed by the
individual on a form prescribed by the Department. In addition, the
individual shall submit for examination by the State agency any
documents issued by the Federal agency (for example, Standard Form 50 or
W-2) verifying that the individual performed services for and received
wages from such Federal agency.
(3) If Federal findings received by a State agency after a
determination has been made under this section contain information which
would result in a change in the individual's eligibility for or
entitlement to UCFE, the State agency promptly shall make a
redetermination and notify the individual, as provided in this section.
All payments of UCFE made prior to or after such redetermination shall
be adjusted in accordance therewith.
(f) Promptness. Full payment of UCFE when due shall be consistent
with this part 609 and shall be made with the greatest promptness that
is administratively feasible, but the provisions of part 640 of this
chapter (relating to promptness of benefit payments) shall not be
applicable to the UCFE Program.
(g) Secretary's standard. The procedures for making determinations
and
[[Page 53]]
redeterminations, and furnishing written notices of determinations,
redeterminations, and rights of appeal to individuals applying for UCFE,
shall be consistent with this part 609 and with the Secretary's
``Standard for Claim Determinations--Separation Information''
(Employment Security Manual, part V, sections 6010 et seq.).
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
Sec. 609.7 Appeal and review.
(a) Applicable State law. The provisions of the applicable State law
concerning the right of appeal and fair hearing from a determination or
redetermination of entitlement to State unemployment compensation shall
apply to determinations and redeterminations of eligibility for or
entitlement to UCFE and waiting period credit. Any such determination or
redetermination shall be subject to appeal and review only in the manner
and to the extent provided in the applicable State law with respect to
determinations and redeterminations of entitlement to State unemployment
compensation.
(b) Rights of appeal and fair hearing. The provisions on right to
appeal and opportunity for a fair hearing with respect to claims for
UCFE shall be consistent with this part and with sections 303(a)(1) and
303(a)(3) of the Social Security Act, 42 U.S.C. 503(a)(1) and 503(a)(3).
(c) Promptness on appeals. (1) Decisions on appeals under the UCFE
Program shall accord with the Secretary's ``Standard for Appeals
Promptness--Unemployment Compensation'' in part 650 of this chapter, and
with Sec. 609.1(d).
(2) Any provision of an applicable State law for advancement or
priority of unemployment compensation cases on judicial calendars, or
otherwise intended to provide for the prompt payment of unemployment
compensation when due, shall apply to proceedings involving claims for
UCFE.
(d) Appeal and review by Federal agency. If a Federal agency
believes that a State agency's determination or redetermination of an
individual's eligibility for or entitlement to UCFE is incorrect, the
Federal agency may seek appeal and review of such determination or
redetermination in the same manner as an interested employer may seek
appeal and review under the applicable State law.
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
Sec. 609.8 The applicable State for an individual.
(a) The applicable State. The applicable State for an individual
shall be the State to which the individual's Federal civilian service
and Federal wages are assigned or transferred under this section. The
applicable State law for the individual shall be the State law of such
State.
(b) Assignment of service and wages. (1) An individual's Federal
civilian service and Federal wages shall be assigned to the State in
which the individual had his or her last official station prior to
filing a first claim unless:
(i) At the time a first claim is filed the individual resides in
another State in which, after separation from Federal civilian service,
the individual performed service covered under the State law, in which
case all of the individual's Federal civilian service and wages shall be
assigned to the latter State; or
(ii) Prior to filing a first claim an individual's last official
station was outside the States, in which case all of the individual's
Federal civilian service and Federal wages shall be assigned to the
State in which the individual resides at the time the individual files a
first claim, provided the individual is personally present in a State
when the individual files the first claim.
(2) Federal civilian service and wages assigned to a State in error
shall be reassigned for use by the proper State agency. An appropriate
record of a reassignment shall be made by the State agency which makes
the reassignment.
(3) Federal civilian service and Federal wages assigned to a State
shall be transferred to another State where such transfer is necessary
for the purposes of a combined-wage claim filed by an individual.
(c) Assignment deemed complete. All of an individual's Federal
civilian service and Federal wages shall be deemed to have been assigned
to a State upon the filing of a first claim. Federal civilian
[[Page 54]]
service and Federal wages shall be assigned to a State only in
accordance with paragraph (b) of this section.
(d) Use of assigned service and wages. All assigned Federal civilian
service and Federal wages shall be used only by the State to which
assigned or transferred in accordance with paragraph (b) of this
section.
Sec. 609.9 Provisions of State law applicable to UCFE claims.
(a) Particular provisions applicable. Except where the result would
be inconsistent with the provisions of the Act or this part or the
procedures thereunder prescribed by the Department, the terms and
conditions of the applicable State law which apply to claims for, and
the payment of, State unemployment compensation shall apply to claims
for, and the payment of, UCFE and claims for waiting period credit. The
provisions of the applicable State law which shall apply include, but
are not limited to:
(1) Claim filing and reporting;
(2) Information to individuals, as appropriate;
(3) Notices to individuals and Federal agencies, as appropriate,
including notice to each individual of each determination and
redetermination of eligibility for or entitlement to UCFE;
(4) Determinations and redeterminations;
(5) Ability to work, availability for work, and search for work; and
(6) Disqualifications.
(b) IBPP. The Interstate Benefit Payment Plan shall apply, where
appropriate, to individuals filing claims for UCFE.
(c) Wage combining. The State's provisions complying with the
Interstate Arrangement for Combining Employment and Wages (part 616 of
this chapter) shall apply, where appropriate, to individuals filing
claims for UCFE.
(d) Procedural requirements. The provisions of the applicable State
law which apply hereunder to claims for and the payment of UCFE shall be
applied consistently with the requirements of title III of the Social
Security Act and the Federal Unemployment Tax Act which are pertinent in
the case of State unemployment compensation, including but not limited
to those standards and requirements specifically referred to in the
provisions of this part, except as provided in paragraph (f) of Sec.
609.6.
Sec. 609.10 Restrictions on entitlement.
(a) Disqualification. If the week of unemployment for which an
individual claims UCFE is a week to which a disqualification for State
unemployment compensation applies under the applicable State law, or
would apply but for the fact that the individual has no right to such
compensation, the individual shall not be entitled to a payment of UCFE
for that week.
(b) Allocation of terminal annual leave payments. Lump-sum terminal
annual leave payments shall not be allocated by a Federal agency and
shall be allocated by a State agency in the same manner as similar
payments to individuals employed by private employers are allocated
under the applicable State law. In a State in which a private employer
has an option as to the period to which such payments shall be
allocated, such payments shall be allocated to the date of separation
from employment.
Sec. 609.11 Overpayments; penalties for fraud.
(a) False statements and representations. Section 8507(a) of the Act
provides that if a State agency, the Department, or a court of competent
jurisdiction finds that an individual--
(1) Knowingly has made, or caused to be made by another, a false
statement or representation of a material fact, or knowingly has failed,
or caused another to fail, to disclose a material fact; and
(2) As a result of that action has received an amount as UCFE to
which the individual was not entitled; the individual shall repay the
amount to the State agency or the Department. Instead of requiring
repayments, the State agency or the Department may recover the amount by
deductions from UCFE payable to the individual during the 2-year period
after the date of the finding. A finding by a State agency or the
Department may be made only after an opportunity for a fair hearing,
subject to such further review as may be appropriate under Sec. 609.7.
[[Page 55]]
(b) Prosecution for fraud. Section 1919 of title 18, United States
Code, provides that whoever makes a false statement or representation of
a material fact knowing it to be false, or knowingly fails to disclose a
material fact, to obtain or increase for himself or for any other
individual any payment authorized to be paid under chapter 85 of title
5, United States Code, or under an agreement thereunder, shall be fined
not more than $1,000 or imprisoned not more than one year, or both.
(c) Absence of fraud. If a State agency or court of competent
jurisdiction finds that an individual has received a payment of UCFE to
which the individual was not entitled under the Act and this part, which
was not due to a false statement or representation as provided in
paragraph (a) or (b) of this section, the individual shall be liable to
repay to the applicable State the total sum of the payment to which the
individual was not entitled, and the State agency shall take all
reasonable measures authorized under any State law or Federal law to
recover for the account of the United States the total sum of the
payment to which the individual was not entitled.
(d) Recovery by offset. (1) The State agency shall recover, insofar
as is possible, the amount of any overpayment which is not repaid by the
individual, by deductions from any UCFE payable to the individual under
the Act and this part, or from any unemployment compensation payable to
the individual under any Federal unemployment compensation law
administered by the State agency, or from any assistance or allowance
payable to the individual with respect to unemployment under any other
Federal law administered by the State agency.
(2) A State agency shall also recover, insofar as is possible, the
amount of any overpayment of UCFE made to the individual by another
State, by deductions from any UCFE payable by the State agency to the
individual under the Act and this part, or from any unemployment
compensation payable to the individual under any Federal unemployment
compensation law administered by the State agency, or from any
assistance or allowance payable to the individual with respect to
unemployment under any other Federal law administered by the State
agency.
(3) Recoupment of fraudulent overpayments referred to in paragraph
(a) of this section shall be limited to the 2-year period stated in that
paragraph. Recoupment of fraudulent overpayments referred to in
paragraph (b) of this section, and nonfraudulent overpayments referred
to in paragraph (c) of this section shall be subject to any time
limitation on recoupment provided for in the State law that applies to
the case.
(e) Debts due the United States. UCFE payable to an individual shall
be applied by the State agency for the recovery by offset of any debt
due to the United States from the individual, but shall not be applied
or used by the State agency in any manner for the payment of any debt of
the individual to any State or any other entity or person except
pursuant to a court order for child support or alimony in accordance
with the law of the State and section 459 of the Social Security Act, 42
U.S.C. 659.
(f) Application of State law. (1) Except as indicated in paragraph
(a) of this section, any provision of State law that may be applied for
the recovery of overpayments or prosecution for fraud, and any provision
of State law authorizing waiver of recovery of overpayments of
unemployment compensation, shall be applicable to UCFE.
(2) In the case of any finding of false statement or representation
under the Act and paragraph (a) of this section, or prosecution for
fraud under 18 U.S.C. 1919 or pursuant to paragraph (f)(1) of this
section, the individual shall be disqualified or penalized in accordance
with the provisions of the applicable State law relating to fraud in
connection with a claim for State unemployment compensation.
(g) Final decision. Recovery of any overpayment of UCFE shall not be
enforced by the State agency until the determination or redetermination
establishing the overpayment has become final, or if appeal is taken
from the determination or redetermination, until the decision after
opportunity for a fair hearing has become final.
(h) Procedural requirements. (1) The provisions of paragraphs (c),
(d), and (g)
[[Page 56]]
of Sec. 609.6 shall apply to determinations and redeterminations made
pursuant to this section.
(2) The provisions of Sec. 609.7 shall apply to determinations and
redeterminations made pursuant to this section.
(i) Fraud detection and prevention. Provisions in the procedures of
each State with respect to detection and prevention of fraudulent
overpayments of UCFE shall be, as a minimum, commensurate with the
procedures adopted by the State with respect to State unemployment
compensation and consistent with the Secretary's ``Standard for Fraud
and Overpayment Detection'' (Employment Security Manual, part V, section
7510 et seq.).
(j) Recovered overpayments. An amount repaid or recouped under this
section shall be--
(1) Deposited in the fund from which payment was made, if the
repayment was to a State agency; or
(2) Returned to the Treasury of the United States and credited to
the current applicable appropriation, fund, or account from which
payment was made, if the repayment was to the Department.
Sec. 609.12 Inviolate rights to UCFE.
Except as specifically provided in this part, the rights of
individuals to UCFE shall be protected in the same manner and to the
same extent as the rights of persons to State unemployment compensation
are protected under the applicable State law. Such measures shall
include protection of applicants for UCFE from waiver, release,
assignment, pledge, encumbrance, levy, execution, attachment, and
garnishment of their rights to UCFE, except as provided in Sec. 609.11.
In the same manner and to the same extent, individuals shall be
protected from discrimination and obstruction in regard to seeking,
applying for, and receiving any right to UCFE.
Sec. 609.13 Recordkeeping; disclosure of information.
(a) Recordkeeping. Each State agency will make and maintain records
pertaining to the administration of the UCFE Program as the Department
requires, and will make all such records available for inspection,
examination, and audit by such Federal officials or employees as the
Department may designate or as may be required by law.
(b) Disclosure of Information. Information in records maintained by
a State agency in administering the UCFE Program shall be kept
confidential, and information in such records may be disclosed only in
the same manner and to the same extent as information with respect to
State unemployment compensation and the entitlement of individuals
thereto may be disclosed under the applicable State law. This provision
on the confidentiality of information maintained in the administration
of the UCFE Program shall not apply, however, to the Department or for
the purposes of Sec. Sec. 609.11 or 609.13, or in the case of
information, reports and studies required pursuant to Sec. Sec. 609.17
or 609.25, or where the result would be inconsistent with the Freedom of
Information Act (5 U.S.C. 552), the Privacy Act of 1974, as amended (5
U.S.C. 552a), or regulations of the Department promulgated thereunder.
[47 FR 54687, Dec. 3, 1982, as amended at 71 FR 35514, June 21, 2006]
Sec. 609.14 Payments to States.
(a) State entitlement. Each State is entitled to be paid by the
United States with respect to each individual whose base period wages
included Federal wages, an amount bearing the same ratio to the total
amount of compensation paid to such individual as the amount of the
individual's Federal wages in the individual's base period bears to the
total amount of the individual's base period wages.
(b) Payment. Each State shall be paid, either in advance or by way
of reimbursement, as may be determined by the Department, the sum that
the Department estimates the State is entitled to receive under the Act
and this part for each calendar month. The sum shall be reduced or
increased by the amount which the Department finds that its estimate for
an earlier calendar month was greater or less than the sum which should
have been paid to the State. An estimate may be made on the basis of a
statistical, sampling, or other method agreed on by the Department and
the State agency.
[[Page 57]]
(c) Certification by the Department. The Department, from time to
time, shall certify to the Secretary of the Treasury the sum payable to
each State under this section. The Secretary of the Treasury, before
audit or settlement by the General Accounting Office, shall pay the
State in accordance with the certification from the funds for carrying
out the purposes of the Act and this part.
(d) Use of money. Money paid a State under the Act and this part may
be used solely for the purposes for which it is paid. Money so paid
which is not used solely for these purposes shall be returned, at the
time specified by the Agreement, to the Treasury of the United States
and credited to the current applicable appropriation, fund, or account
from which payments to states under the Act and this part may be made.
Sec. 609.15 Public access to Agreements.
The State agency of a State will make available to any individual or
organization a true copy of the Agreement with the State for inspection
and copying. Copies of an Agreement may be furnished on request to any
individual or organization upon payment of the same charges, if any, as
apply to the furnishing of copies of other records of the State agency.
Sec. 609.16 Administration in absence of an Agreement.
(a) Administering Program. The Department shall administer the UCFE
Program through personnel of the Department or through other
arrangements under procedures prescribed by the Department, in the case
of any State which does not have an Agreement with the Secretary as
provided for in 5 U.S.C. 8502. The procedures prescribed by the
Department under this section shall be consistent with the Act and this
part.
(b) Applicable State law. On the filing by an individual of a claim
for UCFE in accordance with arrangements under this section, UCFE shall
be paid to the individual, if eligible, in the same amount, on the same
terms, and subject to the same conditions as would be paid to the
individual under the applicable State law if the individual's Federal
civilian service and Federal wages had been included as employment and
wages under the State law. Any such claim shall include the individual's
Federal civilian service and Federal wages, combined with any service
and wages covered by State law. However, if the individual, without
regard to his or her Federal civilian service and Federal wages, has
employment or wages sufficient to qualify for compensation during the
benefit year under that State law, then payments of UCFE under this
section may be made only on the basis of the individual's Federal
civilian service and Federal wages.
(c) Fair hearing. An individual whose claim for UCFE is denied under
this section is entitled to a fair hearing under rules of procedure
prescribed by the Department. A final determination by the Department
with respect to entitlement to UCFE under this section is subject to
review by the courts in the same manner and to the same extent as is
provided by section 205(g) of the Social Security Act, 42 U.S.C. 405(g).
Sec. 609.17 Information, reports, and studies.
State agencies shall furnish to the Department such information and
reports and conduct such studies as the Department determines are
necessary or appropriate for carrying out the purposes of the UCFE
Program.
Subpart C_Responsibilities of Federal Agencies
Sec. 609.20 Information to Federal civilian employees.
Each Federal agency shall:
(a) Furnish information to its employees as to their rights and
responsibilities under the UCFE Program and 18 U.S.C. 1919; and
(b) Furnish a completed copy of a form approved by the Department,
``Notice to Federal Employee About Unemployment Compensation,'' in
accordance with instructions thereon, to each employee at the time of
separation from Federal civilian service, when transferred from one
payroll office to another, or when the office responsible for
distribution of the form is advised that an individual is in nonpay
[[Page 58]]
status for seven consecutive days or more.
Sec. 609.21 Findings of Federal agency.
(a) Answering request. Within four workdays after receipt from a
State agency of a request for Federal findings on a form furnished by
the State agency, and prescribed by the Department, a Federal agency
shall make such Federal findings, complete all copies of the form, and
transmit the completed copies to the State agency. If documents
necessary for completion of the form have been assigned to an agency
records center or the Federal Records Center in St. Louis, the Federal
agency shall obtain the necessary information from the records center.
Any records center shall give priority to such a request.
(b) Failure to meet time limit. If a completed form containing the
Federal agency's findings cannot be returned within four workdays of
receipt, the Federal agency immediately shall inform the State agency,
and shall include an estimated date by which the completed form will be
returned.
(c) Administrative control. Each Federal agency shall maintain a
control of all requests for Federal findings received by it, and the
Federal agency's response to each request. The records shall be
maintained so as to enable the Federal agency to ascertain at any time
the number of such forms that have not been returned to State agencies,
and the dates of the Federal agency's receipt of such unreturned forms.
Sec. 609.22 Correcting Federal findings.
If a Federal agency ascertains at any time within one year after it
has returned a completed form reporting its findings, that any of its
findings were erroneous, it shall promptly correct its error and forward
its corrected findings to the State agency.
Sec. 609.23 Furnishing additional information.
On receipt of a request for additional information from a State
agency, a Federal agency shall consider the information it supplied
initially in connection with such request and shall review its findings.
The Federal agency promptly shall forward to the State agency such
additional findings as will respond to the request. The Federal agency
shall, if possible, respond within four workdays after the receipt of a
request under this section.
Sec. 609.24 Reconsideration of Federal findings.
On receipt of a request for reconsideration of Federal findings from
a State agency, the Federal agency shall consider the initial
information supplied in connection with such request and shall review
its findings. The Federal agency shall correct any errors or omissions
in its findings and shall affirm, modify, or reverse any or all of its
findings in writing. The Federal agency promptly shall forward its
reconsidered findings to the requesting authority. The Federal agency
shall, if possible, respond within four workdays after the receipt of a
request under this section.
Sec. 609.25 Furnishing other information.
(a) Additional Information. In addition to the information required
by Sec. Sec. 609.21, 609.22, 609.23, and 609.24, a Federal agency shall
furnish to a State agency or the Department, within the time requested,
any information which it is not otherwise prohibited from releasing by
law, which the Department determines is necessary for the administration
of the UCFE Program.
(b) Reports. Federal agencies shall furnish to the Department or
State agencies such reports containing such information as the
Department determines are necessary or appropriate for carrying out the
purposes of the UCFE Program.
Sec. 609.26 Liaison with Department.
To facilitate the Department's administration of the UCFE Program,
each Federal agency shall designate one or more of its officials to be
the liaison with the Department. Each Federal agency will inform the
Department of its designation(s) and of any change in a designation.
[[Page 59]]
PART 614_UNEMPLOYMENT COMPENSATION FOR EX-SERVICEMEMBERS--Table of Contents
Subpart A_General Provisions
Sec.
614.1 Purpose and application.
614.2 Definitions of terms.
Subpart B_Administration of UCX Program
614.3 Eligibility requirements for UCX.
614.4 Weekly and maximum benefit amounts.
614.5 Claims for UCX.
614.6 Determinations of entitlement; notices to individual and Federal
military agency.
614.7 Appeal and review.
614.8 The applicable State for an individual.
614.9 Provisions of State law applicable to UCX claims.
614.10 Restrictions on entitlement.
614.11 Overpayments; penalties for fraud.
614.12 Schedules of remuneration.
614.13 Inviolate rights to UCX.
614.14 Recordkeeping; disclosure of information.
614.15 Payments to States.
614.16 Public access to Agreements.
614.17 Administration in absence of an Agreement.
614.18 Information, reports, and studies.
Subpart C_Responsibilities of Federal Military Agencies and State
Agencies
614.20 Information to ex-servicemembers.
614.21 Findings of Federal military agency.
614.22 Correcting Federal findings.
614.23 Finality of findings.
614.24 Furnishing other information.
614.25 Liaison with Department
Appendix A to Part 614--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
Appendix B to Part 614--Standard for Claim Determination--Separation
Information
Appendix C to Part 614--Standard for Fraud and Overpayment Detection
Authority: 5 U.S.C. 8508; Secretary's Order No. 4-75 (40 FR 18515).
Source: 47 FR 54697, Dec. 3, 1982, unless otherwise noted.
Subpart A_General Provisions
Sec. 614.1 Purpose and application.
(a) Purpose. Subchapter II of chapter 85, title 5 of the United
States Code (5 U.S.C. 8521-8525) provides for a permanent program of
unemployment compensation for unemployed individuals separated from the
Armed Forces. The unemployment compensation provided for in subchapter
II is hereinafter referred to as Unemployment Compensation for Ex-
servicemembers, or UCX. The regulations in this part are issued to
implement the UCX Program.
(b) First rule of construction. The Act and the implementing
regulations in this part shall be construed liberally so as to carry out
the purposes of the Act.
(c) Second rule of construction. The Act and the implementing
regulations in this part shall be construed so as to assure insofar as
possible the uniform interpretation and application of the Act
throughout the United States.
(d) Effectuating purpose and rules of construction. (1) In order to
effectuate the provisions of this section, each State agency shall
forward to the United States Department of Labor (hereafter Department),
not later than 10 days after issuance, a copy of each judicial or
administrative decision ruling on an individual's entitlement to payment
of UCX or to credit for a waiting period. On request of the Department,
a State agency shall forward to the Department a copy of any
determination or redetermination ruling on an individual's entitlement
to UCX or waiting period credit.
(2)(i) If the Department believes that a determination,
redetermination, or decision is inconsistent with the Department's
interpretation of the Act or this part, the Department may at any time
notify the State agency of the Department's view. Thereafter, the State
agency shall issue a redetermination or appeal if possible, and shall
not follow such determination, redetermination, or decision as a
precedent; and, in any subsequent proceedings which involve such
determination, redetermination, or decision, or wherein such
determination, redetermination, or decision is cited as precedent or
otherwise relied upon, the State agency shall inform the claims deputy
or hearing officer or court of the Department's view and shall make all
reasonable efforts, including appeal or other proceedings in an
appropriate forum, to obtain modification, limitation, or overruling of
the determination, redetermination, or decision.
[[Page 60]]
(ii) If the Department believes that a State agency has failed to
use, or use in a timely manner, the crossmatch mechanism at the claims
control center designated by the Department, the Department may at any
time notify the State of the Department's view. Thereafter, the State
agency shall take action to ensure that operable procedures for the
effective utilization of the claims control center are in place and
adhered to. In any case of any determination, redetermination, or
decision that is not legally warranted under the Act or this part had
the State used, or used in a timely manner, the crossmatch mechanism at
the claims control center designated by the Department, State agency
shall take the steps outlined in paragraph (d)(2)(i) of this section.
(3) If the Department believes that a determination,
redetermination, or decision is patently and flagrantly violative of the
Act or this part, the Department may at any time notify the State agency
of the Department's view. If the determination, redetermination, or
decision in question denies UCX to a claimant, the steps outlined in
paragraph (2) above shall be followed by the State agency. If the
determination, redetermination, or decision in question awards UCX to a
claimant, the benefits are ``due'' within the meaning of section
303(a)(1) of the Social Security Act, 42 U.S.C. 503(a)(1), and therefore
must be paid promptly to the claimant. However, the State agency shall
take the steps outlined in paragraph (d)(2) of this section, and
payments to the claimant may be temporarily delayed if redetermination
or appeal action is taken not more than one business day following the
day on which the first payment otherwise would be issued to the
claimant; and the redetermination action is taken or appeal is filed to
obtain a reversal of the award of UCX and a ruling consistent with the
Department's view; and the redetermination action or appeal seeks an
expedited redetermination or appeal within not more than two weeks after
the redetermination action is taken or the appeal is filed. If
redetermination action is not taken or appeal is not filed within the
above time limit, or a redetermination or decision is not obtained
within the two-week limit, or any redetermination or decision or order
is issued which affirms the determination, redetermination, or decision
awarding UCX or allows it to stand in whole or in part, the benefits
awarded must be paid promptly to the claimant.
(4)(i) If any determination, redetermination, or decision, referred
to in paragraph (d)(2) or paragraph (d)(3) of this section, is treated
as a precedent for any future UCX claim or claim under the UCFE Program
(part 609 of this chapter), the Secretary will decide whether the
Agreement with the State entered into under the Act shall be terminated.
(ii) In the case of any determination, redetermination, or decision
that is not legally warranted under the Act or this part, including any
determination, redetermination, or decision referred to in paragraph
(d)(2) or in paragraph (d)(3) of this section, the Secretary will decide
whether the State shall be required to restore the funds of the United
States for any sums paid under such a determination, redetermination, or
decision, and whether, in absence of such restoration, the Agreement
with the State shall be terminated and whether other action shall be
taken to recover such sums for the United States.
(5) A State agency may request reconsideration of a notice issued
pursuant to paragraph (d)(2) or paragraph (d)(3) of this section, and
shall be given an opportunity to present views and arguments if desired.
(6) Concurrence of the Department in a determination,
redetermination, or decision shall not be presumed from the absence of a
notice issued pursuant to this section.
(Approved by the Office of Management and Budget under control number
1205-0163)
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40553, Oct. 17, 1988; 53
FR 43799, Oct. 26, 1988; 57 FR 59799, Dec. 15, 1992]
Sec. 614.2 Definitions of terms.
For purposes of the Act and this part:
(a) Act means subchapter II of chapter 85 of title 5 of the United
States Code, 5 U.S.C. 8521-8525.
(b) Agreement means the Agreement entered into pursuant to 5 U.S.C.
8502 between a State and the Secretary
[[Page 61]]
under which the State agency of the State agrees to make payments of
unemployment compensation in accordance with the Act and the regulations
and procedures thereunder prescribed by the Department.
(c) Base period means the base period as defined by the applicable
State law for the benefit year.
(d) Benefit year means the benefit year as defined by the applicable
State law, and if not so defined the term means the period prescribed in
the Agreement with the State or, in the absence of an Agreement, the
period prescribed by the Department.
(e) Ex-servicemember means an individual who has performed Federal
military service.
(f) Federal military agency means any of the Armed Forces of the
United States, including the Army, Air Force, Navy, Marine Corps, and
Coast Guard, and the National Oceanic and Atmospheric Administration
(Department of Commerce).
(g) Federal military service means active service (not including
active duty in a reserve status unless for a continuous period of 90
days or more) in the Armed Forces or the Commissioned Corps of the
National Oceanic and Atmospheric Administration if with respect to that
service--
(1) The individual was discharged or released under honorable
conditions (and, if an officer, did not resign for the good of the
service); and
(2)(i) The individual was discharged or released after completing
his/her first full term of active service which the individual initially
agreed to serve, or
(ii) The individual was discharged or released before completing
such term of active service--
(A) For the convenience of the Government under an early release
program,
(B) Because of medical disqualification, pregnancy, parenthood, or
any service-incurred injury or disability,
(C) Because of hardship, or
(D) Because of personality disorders or inaptitude but only if the
service was continuous for 365 days or more.
(h) Federal military wages means all pay and allowances in cash and
in kind for Federal military service, computed on the basis of the pay
and allowances for the pay grade of the individual at the time of his or
her latest discharge or release from Federal/military service, as
determined in accordance with the Schedule of Remuneration applicable at
the time the individual files his or her first claim for compensation
for a benefit year.
(i) First claim means an initial claim for unemployment compensation
under the UCX Program, the UCFE Program (part 609 of this chapter), or a
State law, or some combination thereof, first filed by an individual
after the individual's latest discharge or release from Federal military
service, whereby a benefit year is established under an applicable State
law.
(j) Military document means an official document or documents issued
to an individual by a Federal military agency relating to the
individual's Federal military service and discharge or release from such
service.
(k) Period of active service means a period of continuous active
duty (including active duty for training purposes) in a Federal military
agency or agencies, beginning with the date of entry upon active duty
and ending on the effective date of the first discharge or release
thereafter which is not qualified or conditional.
(l) Schedule of Remuneration means the schedule issued by the
Department from time to time under 5 U.S.C. 8521(a)(2) and this part,
which specifies for purposes of the UCX Program, the pay and allowances
for each pay grade of servicemember.
(m) Secretary means the Secretary of Labor of the United States.
(n) State means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, and the Virgin Islands.
(o) State agency means the agency of the State which administers the
applicable State unemployment compensation law and is administering the
UCX Program in the State pursuant to an Agreement with the Secretary.
(p)(1) State law means the unemployment compensation law of a State
approved by the Secretary under section 3304 of the Internal Revenue
Code of
[[Page 62]]
1986, 26 U.S.C. 3304, if the State is certified under section 3304(c) of
the Internal Revenue Code of 1986, 26 U.S.C. 3304(c).
(2) Applicable State law means the State law made applicable to a
UCX claimant by Sec. 614.8.
(q)(1) Unemployment compensation means cash benefits (including
dependents' allowances) payable to individuals with respect to their
unemployment, and includes regular, additional, emergency, and extended
compensation.
(2) Regular compensation means unemployment compensation payable to
an individual under any State law, but not including additional
compensation or extended compensation.
(3) Additional compensation means unemployment compensation totally
financed by a State and payable under a State law by reason of
conditions of high unemployment or by reason of other special factors.
(4) Emergency compensation means supplementary unemployment
compensation payable under a temporary Federal law after exhaustion of
regular and extended compensation.
(5) Extended compensation means unemployment compensation payable to
an individual for weeks of unemployment in an extended benefit period,
under those provisions of a State law which satisfy the requirements of
the Federal-State Extended Unemployment Compensation Act of 1970, as
amended, 26 U.S.C. 3304 note, and part 615 of this chapter, with respect
to the payment of extended compensation.
(r) Unemployment Compensation for Ex-Servicemember means the
unemployment compensation payable under the Act to claimants eligible
for the payments, and is referred to as UCX.
(s) Week means, for purposes of eligibility for and payment of UCX,
a week as defined in the applicable State law.
(t) Week of unemployment means a week of total, part-total, or
partial unemployment as defined in the applicable State law, which shall
be applied in the same manner and to the same extent to all employment
and earnings, and in the same manner and to the same extent for the
purposes of the UCX Program, as if the individual filing for UCX were
filing a claim for State unemployment compensation.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 53
FR 43799, Oct. 26, 1988; 57 FR 59799, Dec. 15, 1992]
Subpart B_Administration of UCX Program
Sec. 614.3 Eligibility requirements for UCX.
An individual shall be eligible to receive a payment of UCX or
waiting period credit with respect to a week of unemployment if:
(a) The individual has Federal military service and Federal military
wages in the base period under the applicable State law;
(b) The individual meets the qualifying employment and wage
requirements of the applicable State law, either on the basis of Federal
military service and Federal military wages alone or in combination with
service and wages covered under a State law or under the UCFE Program
(part 609 of this chapter);
(c) The individual has filed an initial claim for UCX and, as
appropriate, has filed a timely claim for waiting period credit or
payment of UCX with respect to that week of unemployment; and
(d) The individual is totally, part-totally, or partially
unemployed, and is able to work, available for work, and seeking work
within the meaning of or as required by the applicable State law, and is
not subject to disqualification under this part or the applicable State
law, with respect to that week of unemployment.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 57
FR 59799, Dec. 15, 1992]
Sec. 614.4 Weekly and maximum benefit amounts.
(a) Total unemployment. The weekly amount of UCX payable to an
eligible individual for a week of total unemployment shall be the amount
that would be payable to the individual as unemployment compensation for
a week of total unemployment as determined under the applicable State
law.
[[Page 63]]
(b) Partial and part-total unemployment. The weekly amount of UCX
payable for a week of partial or part-total unemployment shall be the
amount that would be payable to the individual as unemployment
compensation for a week of partial or part-total unemployment as
determined under the applicable State law.
(c) Maximum amount. The maximum amount of UCX which shall be payable
to an eligible individual during and subsequent to the individual's
benefit year shall be the maximum amount of all unemployment
compensation that would be payable to the individual as determined under
the applicable State law.
(d) Computation rules. The weekly and maximum amounts of UCX payable
to an individual under the UCX Program shall be determined under the
applicable State law to be in the same amount, on the same terms, and
subject to the same conditions as the State unemployment compensation
which would be payable to the individual under the applicable State law
if the individual's Federal military service and Federal military wages
assigned or transferred under this part to the State had been included
as employment and wages covered by that State law, subject to the use of
the applicable Schedule of Remuneration.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 57
FR 59800, Dec. 15, 1992]
Sec. 614.5 Claims for UCX.
(a) First claims. A first claim for UCX shall be filed by an
individual in any State agency of any State according to the applicable
State law, and on a form prescribed by the Department which shall be
furnished to the individual by the State agency where the claim is
filed.
(b) Weekly claims. Claims for waiting week credit and payments of
UCX for weeks of unemployment shall be filed in any State agency (or
Canada) at the times and in the manner as claims for State unemployment
compensation are filed under the applicable State law, and on forms
prescribed by the Department which shall be furnished to the individual
by the State agency where the claim is filed.
(c) Secretary's standard. The procedures for reporting and filing
claims for UCX and waiting period credit shall be consistent with this
part 614 and the Secretary's ``Standard for Claim Filing, Claimant
Reporting, Job Finding and Employment Services'' in the Employment
Security Manual, part V, sections 5000-5004 (appendix A of this part).
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988]
Sec. 614.6 Determinations of entitlement; notices to individual and
Federal military agency.
(a) Determinations of first claim. Except for findings of a Federal
military agency and the applicable Schedule of Remuneration which are
final and conclusive under Sec. 614.23, the State agency whose State
law applies to an individual under Sec. 614.8 shall, promptly upon the
filing of a first claim for UCX, determine whether the individual is
otherwise eligible, and, if the individual is found to be eligible, the
individual's benefit year and the weekly and maximum amounts of UCX
payable to the individual.
(b) Determinations of weekly claims. The State agency promptly
shall, upon the filing of a claim for a payment of UCX or waiting period
credit with respect to a week, determine whether the individual is
entitled to a payment of UCX or waiting period credit respect to such
week, and, if entitled, the amount of UCX or waiting period credit to
which the individual is entitled.
(c) Redetermination. The provisions of the applicable State law
concerning the right to request, or authority to undertake,
reconsideration of a determination pertaining to State unemployment
compensation under the applicable State law shall apply to
determinations pertaining to UCX.
(d) Notices to individual and Federal military agency. (1) The State
agency promptly shall give notice in writing to the individual of any
determination or redetermination of a first claim, and, except as may be
authorized under paragraph (g) of this section, of any determination or
redetermination of any weekly claim which denies UCX or waiting period
credit or reduces the weekly amount or maximum amount
[[Page 64]]
initially determined to be payable. Each notice of determination or
redetermination shall include such information regarding the
determination or redetermination and notice of right to reconsideration
or appeal, or both, as is furnished with written notices of
determinations and redeterminations with respect to claims for State
unemployment compensation. Such notice shall include the findings of any
Federal military agency utilized in making the determination or
redetermination, and shall inform the individual of the finality of
Federal findings and the individual's right to request correction of
such findings as is provided in Sec. 614.22.
(2) A notice of claim filing and subsequent notices of monetary and
nonmonetary determinations on a UCX claim shall be sent to each Federal
military agency for which the individual performed Federal military
service during the appropriate base period, together with notice of
appeal rights of the Federal military agency to the same extent that
chargeable employers are given such notices under State law and practice
unless an alternate mechanism is established by the Department of Labor
in lieu of such notices.
(e) Obtaining information for claim determinations. (1) Information
required for the determination of claims for UCX shall be obtained by
the State agency from claimants, employers, and others, in the same
manner as information is obtained for claim purposes under the
applicable State law, but Federal military findings shall be obtained
from military documents, the applicable Schedule of Remuneration, and
from Federal military agencies as prescribed in Sec. Sec. 614.21
through 614.24.
(f) Promptness. Full payment of UCX when due shall be consistent
with this part and shall be made with the greatest promptness that is
administratively feasible, but the provisions of part 640 of this
chapter (relating to promptness of benefit payments) shall not be
applicable to the UCX Program.
(g) Secretary's standard. The procedures for making determinations
and redeterminations, and furnishing written notices of determinations,
redeterminations, and rights of appeal to individuals applying for UCX
and to appropriate Federal military agencies shall be consistent with
this part 614 and the Secretary's ``Standard for Claim Determinations-
Separation Information'' in the Employment Security Manual, part V,
sections 6010-6015 (Appendix B of this part).
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40554, Oct. 17, 1988; 71
FR 35514, June 21, 2006]
Sec. 614.7 Appeal and review.
(a) Applicable State Law. The provisions of the applicable State law
concerning the right of appeal and fair hearing from a determination or
redetermination of entitlement to State unemployment compensation
(exclusive of findings which are final and conclusive under Sec.
614.25) shall apply to determinations and redeterminations of
eligibility for or entitlement to UCX and waiting period credit. Any
such determination or redetermination shall be subject to appeal and
review only in the manner and to the extent provided in the applicable
State law with respect to determinations and redeterminations of
entitlement to State unemployment compensation.
(Section 614.24 governs appeals of findings of the Veterans
Administration)
(b) Rights of appeal and fair hearing. The provisions on right of
appeal and opportunity for a fair hearing with respect to claims for UCX
shall be consistent with this part and with sections 303(a)(1) and
303(a)(3) of the Social Security Act, 42 U.S.C. 503(a)(1) and 503(a)(3).
(c) Promptness on appeals. (1) Decisions on appeals under the UCX
Program shall accord with the Secretary's ``Standard for Appeals
Promptness--Unemployment Compensation'' in part 650 of this chapter, and
with Sec. 614.1(d).
(2) Any provision of an applicable State law for advancement or
priority of unemployment compensation cases on judicial calendars, or
otherwise intended to provide for the prompt payment of unemployment
compensation when due, shall apply to proceedings involving claims for
UCX.
[[Page 65]]
(d) Appeal and review by Federal military agency. If a Federal
military agency believes that a State agency's determination or
redetermination of an individual's eligibility for or entitlement to UCX
is incorrect, the Federal military agency may seek appeal and review of
such determination or redetermination in the same manner as an
interested employer may seek appeal and review under the applicable
State law.
Sec. 614.8 The applicable State for an individual.
(a) The applicable State. The applicable State for an individual
shall be the State to which the individual's Federal military service
and Federal military wages are assigned or transferred under this
section. The applicable State law for the individual shall be the State
law of such State.
(b) Assignment of service and wages. (1) When an individual files a
first claim, all of the individual's Federal military service and
Federal military wages shall be deemed to be assigned to the State in
which such claim is filed, which shall be the ``Paying State'' in the
case of a combined-wage claim. (Sec. 616.6(e) of this chapter.)
(2) Federal military service and Federal military wages assigned to
a State in error shall be reassigned for use by the proper State agency.
An appropriate record of the reassignment shall be made by the State
agency which makes the reassignment.
(c) Assignment deemed complete. All of an individual's Federal
military service and Federal military wages shall be deemed to have been
assigned to a State upon the filing of a first claim. Federal military
service and Federal military wages shall be assigned to a State only in
accordance with paragraph (b) of this section.
(d) Use of assigned service and wages. All assigned Federal military
service and Federal military wages shall be used only by the State to
which assigned in accordance with paragraph (b) of this section, except
that any Federal military service and Federal military wages which are
not within the base period of the State to which they were assigned
shall be subject to transfer in accordance with part 616 of this chapter
for the purposes of any subsequent Combined-Wage Claim filed by the
individual.
Sec. 614.9 Provisions of State law applicable to UCX claims.
(a) Particular provisions applicable. Except where the result would
be inconsistent with the provisions of the Act or this part or the
procedures thereunder prescribed by the Department, the terms and
conditions of the applicable State law which apply to claims for, and
the payment of, State unemployment compensation shall apply to claims
for, and the payment of, UCX and claims for waiting period credit. The
provisions of the applicable State law which shall apply include, but
are not limited to:
(1) Claim filing and reporting;
(2) Information to individuals, as appropriate;
(3) Notices to individuals, as appropriate, including notice to each
individual of each determination and redetermination of eligibility for
or entitlement to UCX;
(4) Determinations and redeterminations;
(5) Ability to work, availability for work, and search for work; and
(6) Disqualifications, except in regard to separation from any
Federal military agency.
(b) IBPP. The Interstate Benefit Payment Plan shall apply, where
appropriate, to individuals filing claims for UCX.
(c) Wage combining. The State's provisions complying with the
Interstate Arrangement for Combining Employment and Wages (part 616 of
this chapter) shall apply, where appropriate, to individuals filing
claims for UCX.
(d) Procedural requirements. The provisions of the applicable State
law which apply hereunder to claims for and the payment of UCX shall be
applied consistently with the requirements of title III of the Social
Security Act and the Federal Unemployment Tax Act which are pertinent in
the case of State unemployment compensation, including but not limited
to those standards and requirements specifically referred to in the
provisions of this part, except as provided in paragraph (f) of Sec.
614.6.
[[Page 66]]
Sec. 614.10 Restrictions on entitlement.
(a) Disqualification. If the week of unemployment for which an
individual claims UCX is a week to which a disqualification for State
unemployment compensation applies under the applicable State law, the
individual shall not be entitled to a payment of UCX for that week. As
provided in Sec. 614.9(a), no disqualification shall apply in regard to
separation from any Federal military agency.
(b) Effect of ``days lost''. The continuity of a period of an
individual's Federal military service shall not be deemed to be
interrupted by reason of any ``days lost'' in such period, but ``days
lost'' shall not be counted for purposes of determining:
(1) Whether an individual has performed Federal military service;
(2) Whether an individual meets the wage and employment requirements
of a State law; or
(3) The amount of an individual's Federal military wages.
(c) Allocation of military accrued leave. A State agency shall
allocate the number of days of unused military leave specified in an ex-
servicemember's military document, for which a lump-sum payment has been
made, in the same manner as similar payments by private employers to
their employees are allocated under the applicable State law, except
that the applicable Schedule of Remuneration instead of the lump-sum
payment shall be used to determine the amount of the claimant's Federal
military wages. In a State in which a private employer has an option as
to the period to which such payments shall be allocated, such payments
shall be allocated to the date of the individual's latest discharge or
release from Federal military service. An allocation under this
paragraph shall be disregarded in determining whether an individual has
had a period of active service constituting Federal military service.
(d) Education and training allowances. An individual is not entitled
to UCX under the Act or this part for a period with respect to which the
individual receives:
(1) A subsistence allowance for vocational rehabilitation training
under chapter 31 of title 38 of the United States Code, 38 U.S.C. 1501
et seq., or under part VIII of Veterans Regulation Numbered 1(a); or
(2) An educational assistance allowance or special training
allowance under chapter 35 of title 38 of the United States Code, 38
U.S.C. 1700 et seq.
Sec. 614.11 Overpayments; penalties for fraud.
(a) False statements and representations. Section 8507(a) of the Act
provides that if a State agency, the Department, or a court of competent
jurisdiction finds that an individual--
(1) Knowingly has made, or caused to be made by another, a false
statement or representation of a material fact, or knowingly has failed,
or caused another to fail, to disclose a material fact; and
(2) As a result of that action has received an amount as UCX to
which the individual was not entitled; the individual shall repay the
amount to the State agency or the Department. Instead of requiring
repayment, the State agency or the Department may recover the amount by
deductions from UCX payable to the individual during the 2-year period
after the date of the finding. A finding by a State agency or the
Department may be made only after an opportunity for a fair hearing,
subject to such further review as may be appropriate under Sec. 614.7.
(b) Prosecution for fraud. Section 1919 of title 18, United States
Code, provides that whoever makes a false statement or representation of
a material fact knowing it to be false, or knowingly fails to disclose a
material fact, to obtain or increase for himself or for any other
individual any payment authorized to be paid under chapter 85 of title
5, United States Code, or under an agreement thereunder, shall be fined
not more than $1,000 or imprisoned not more than one year, or both.
(c) Absence of fraud. If a State agency or court of competent
jurisdiction finds that an individual has received a payment of UCX to
which the individual was not entitled under the Act and this part, which
was not due to a false statement or representation as provided in
paragraph (a) or (b) of this section, the individual shall be liable to
[[Page 67]]
repay to the applicable State the total sum of the payment to which the
individual was not entitled, and the State agency shall take all
reasonable measures authorized under any State law or Federal law to
recover for the account of the United States the total sum of the
payment to which the individual was not entitled.
(d) Recovery by offset. (1) The State agency shall recover, insofar
as is possible, the amount of any overpayment which is not repaid by the
individual, by deductions from any UCX payable to the individual under
the Act and this part, or from any unemployment compensation payable to
the individual under any Federal unemployment compensation law
administered by the State agency, or from any assistance or allowance
payable to the individual with respect to unemployment under any other
Federal law administered by the State agency.
(2) A State agency shall also recover, insofar as is possible, the
amount of any overpayment of UCX made to the individual by another State
by deductions from any UCX payable by the State agency to the individual
under the Act and this part, or from any unemployment compensation
payable to the individual under any Federal unemployment compensation
law administered by the State agency, or from any assistance or
allowance payable to the individual with respect to unemployment under
any other Federal law administered by the State agency.
(3) Recoupment of fraudulent overpayments referred to in paragraph
(a) of this section shall be limited to the 2-year period stated in that
paragraph. Recoupment of fraudulent overpayments referred to in
paragraph (b) of this section, and nonfraudulent overpayments referred
to in paragraph (c) of this section shall be subject to any time
limitation on recoupment provided for in the State law that applies to
the case.
(e) Debts due the United States. UCX payable to an individual shall
be applied by the State agency for the recovery by offset of any debt
due to the United States from the individual, but shall not be applied
or used by the State agency in any manner for the payment of any debt of
the individual to any State or any other entity or person except
pursuant to a court order for child support or alimony in accordance
with the law of the State and section 459 of the Social Security Act, 42
U.S.C. 659.
(f) Application of State law. (1) Except as indicated in paragraph
(a) of this section, any provision of State law that may be applied for
the recovery of overpayments or prosecution for fraud, and any provision
of State law authorizing waiver of recovery of overpayments of
unemployment compensation, shall be applicable to UCX.
(2) In the case of any finding of false statement of representation
under the Act and paragraph (a) of this section, or prosecution for
fraud under 18 U.S.C. 1919 or pursuant to paragraph (f)(1) of this
section, the individual shall be disqualified or penalized in accordance
with the provision of the applicable State law relating to fraud in
connection with a claim for State unemployment compensation.
(g) Final decision. Recovery of any overpayment of UCX shall not be
enforced by the State agency until the determination or redetermination
establishing the overpayment has become final, or if appeal is taken
from the determination or redetermination, until the decision after
opportunity for a fair hearing has become final.
(h) Procedural requirements. (1) The provisions of paragraphs (c),
(d), and (g) of Sec. 614.6 shall apply to determinations and
redeterminations made pursuant to this section.
(2) The provisions of Sec. 614.7 shall apply to determinations and
redeterminations made pursuant to this section.
(i) Fraud detection and prevention. Provisions in the procedures of
each State with respect to detection and prevention of fraudulent
overpayments of UCX shall be, as a minimum, commensurate with the
procedures adopted by the State with respect to State unemployment
compensation and consistent with this part 614 and the Secretary's
``Standard for Fraud and Overpayment Detection'' in the Employment
Security Manual, part V, sections 7510-7515 (Appendix C of this part),
and provide for timely use of any crossmatch
[[Page 68]]
mechanism established by the Department.
(j) Recovered overpayments. An amount repaid or recouped under this
section shall be--
(1) Deposited in the fund from which payment was made, if the
repayment was to a State agency; or
(2) Returned to the Treasury of the United States and credited to
the current applicable appropriation, fund, or account from which
payment was made, if the repayment was to the Department.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40555, Oct. 17, 1988]
Sec. 614.12 Schedules of remuneration.
(a) Authority. Section 8521(a)(2) of chapter 85, title 5 of the
United States Code, 5 U.S.C. 8521(a)(2), requires the Secretary of Labor
to issue from time to time, after consultation with the Secretary of
Defense, a Schedule of Remuneration specifying the pay and allowances
for each pay grade of members of the Armed Forces.
(b) Elements of schedule. A schedule reflects representative amounts
for appropriate elements of the pay and allowances, whether in cash or
kind, for each pay grade of members of the Armed Forces, with a
statement of the effective date of the schedule. Benefit amounts for the
UCX Program are computed on the basis of the Federal military wages for
the pay grade of the individual at the time of the individual's latest
discharge or release from Federal military service, as specified in the
schedule applicable at the time the individual files his or her first
claim for compensation for the benefit year.
(c) Effective date. Any new Schedule of Remuneration shall take
effect beginning with the first week of the calendar quarter following
the calendar quarter in which such schedule is issued, and shall remain
applicable until a subsequent schedule becomes effective. Prior
schedules shall continue to remain applicable for the periods they were
in effect.
(d) Publication. Any new Schedule of Remuneration shall be issued by
the Secretary of Labor to the State agencies and the Federal military
agencies. Promptly after the issuance of a new Schedule of Remuneration
it shall be published as a notice in the Federal Register.
Sec. 614.13 Inviolate rights to UCX.
Except as specifically provided in this part, the rights of
individuals to UCX shall be protected in the same manner and to the same
extent as the rights of persons to State unemployment compensation are
protected under the applicable State law. Such measures shall include
protection of applicants for UCX from waiver, release, assignment,
pledge, encumbrance, levy, execution, attachment, and garnishment of
their rights to UCX, except as provided in Sec. 614.11. In the same
manner and to the same extent, individuals shall be protected from
discrimination and obstruction in regard to seeking, applying for, and
receiving any right to UCX.
Sec. 614.14 Recordkeeping; disclosure of information.
(a) Recordkeeping. Each State agency will make and maintain records
pertaining to the administration of the UCX Program as the Department
requires, and will make all such records available for inspection,
examination, and audit by such Federal officials or employees as the
Department may designate or as may be required by law.
(b) Disclosure of information. Information in records maintained by
a State agency in administering the UCX Program shall be kept
confidential, and information in such records may be disclosed only in
the same manner and to the same extent as information with respect to
State unemployment compensation and the entitlement of individuals
thereto may be disclosed under the applicable State law. This provision
on the confidentiality of information maintained in the administration
of the UCX Program shall not apply, however, to the Department or for
the purposes of Sec. Sec. 614.11 or 614.14, or in the case of
information, reports and studies required pursuant to Sec. Sec. 614.18
or 614.26, or where the result would be inconsistent with the Freedom of
Information Act, 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a,
or regulations of the Department promulgated thereunder.
[[Page 69]]
Sec. 614.15 Payments to States.
(a) State entitlement. Each State is entitled to be paid by the
United States with respect to each individual whose base period wages
included Federal military wages, an amount bearing the same ratio to the
total amount of compensation paid to such individual as the amount of
the individual's Federal military wages in the individual's base period
bears to the total amount of the individual's base period wages.
(b) Payment. Each State shall be paid, either in advance or by way
of reimbursement, as may be determined by the Department, the sum that
the Department estimates the State is entitled to receive under the Act
and this part for each calendar month. The sum shall be reduced or
increased by the amount which the Department finds that its estimate for
an earlier calendar month was greater or less than the sum which should
have been paid to the State. An estimate may be made on the basis of a
statistical, sampling, or other method agreed on by the Department and
the State agency.
(c) Certification by the Department. The Department, from time to
time, shall certify to the Secretary of the Treasury the sum payable to
each State under this section. The Secretary of the Treasury, before
audit or settlement by the General Accounting Office, shall pay the
State in accordance with the certification from the funds for carrying
out the purposes of the Act and this part.
(d) Use of money. Money paid a State under the Act and this part may
be used solely for the purposes for which it is paid. Money so paid
which is not used solely for these purposes shall be returned, at the
time specified by the Agreement, to the Treasury of the United States
and credited to the current applicable appropriation, fund, or account
from which payments to States under the Act and this part may be made.
Sec. 614.16 Public access to Agreements.
The State agency of a State will make available to any individual or
organization a true copy of the Agreement with the State for inspection
and copying. Copies of an Agreement may be furnished on request to any
individual or organization upon payment of the same charges, if any, as
apply to the furnishing of copies of other records of the State agency.
Sec. 614.17 Administration in absence of an Agreement.
(a) Administering program. The Department shall administer the UCX
Program through personnel of the Department or through other
arrangements under procedures prescribed by the Department, in the case
of any State which does not have an Agreement with the Secretary as
provided for in 5 U.S.C. 8502. The procedures prescribed by the
Department under this section shall be consistent with the Act and this
part.
(b) Applicable State law. On the filing by an individual of a claim
for UCX in accordance with arrangements under this section, UCX shall be
paid to the individual, if eligible, in the same amount, on the same
terms, and subject to the same conditions as would be paid to the
individual under the applicable State law if the individual's Federal
military service and Federal military wages had been included as
employment and wages under the State law. Any such claims shall include
the individual's Federal military service and Federal military wages,
combined with any service and wages covered by State law. However, if
the individual, without regard to his or her Federal military service
and Federal military wages, has employment or wages sufficient to
qualify for compensation during the benefit year under that State law,
then payments of UCX under this section may be made only on the basis of
the individual's Federal military service and Federal military wages.
(c) Fair hearing. An individual whose claim for UCX is denied under
this section is entitled to a fair hearing under rules of procedures
prescribed by the Department. A final determination by the Department
with respect to entitlement to UCX under this section is subject to
review by the courts in the same manner and to the same extent as is
provided by section 205(g) of the Social Security Act, 42 U.S.C. 405(g).
[[Page 70]]
Sec. 614.18 Information, reports, and studies.
State agencies shall furnish to the Department such information and
reports and conduct such studies as the Department determines are
necessary or appropriate for carrying out the purposes of the UCX
Program.
Subpart C_Responsibilities of Federal Military Agencies and State
Agencies
Sec. 614.20 Information to ex-servicemembers.
At the time of discharge or release from Federal military service,
each Federal military agency shall furnish to each ex-servicemember
information explaining rights and responsibilities under the UCX Program
and 18 U.S.C. 1919, and military documents necessary for filing claims
for UCX.
Sec. 614.21 Findings of Federal military agency.
(a) Findings in military documents. Information contained in a
military document furnished to an ex-servicemember shall constitute
findings to which Sec. 614.23 applies as to:
(1) Whether the individual has performed active service in the Armed
Forces or the Commissioned Corps of the National Oceanic and Atmospheric
Administration;
(2) The beginning and ending dates of the period of active service
and ``days lost'' during such period;
(3) The type of discharge or release terminating the period of
active service;
(4) The individuals' pay grade at the time of discharge or release
from active service; and
(5) The narrative reason or other reason for separation from active
service.
(b) Discharges not under honorable conditions. A military document
which shows that an individual's discharge or release was under other
than honorable conditions shall also be a finding to which Sec. 614.23
applies.
[53 FR 40555, Oct. 17, 1988]
Sec. 614.22 Correcting Federal findings.
(a) Request for correction. (1) If an individual believes that a
finding specified in Sec. 614.21 is incorrect or that information as to
any finding has been omitted from a military document, the individual
may request the issuing Federal military agency to correct the military
document. A request for correction may be made through the State agency,
which shall forward such request and any supporting information
submitted by the individual to the Federal military agency.
(2) The Federal military agency shall promptly forward to the
individual or State agency making the request the corrected military
document. Information contained in a corrected military document issued
pursuant to such a request shall constitute the findings of the Federal
military agency under Sec. 614.21.
(3) If a determination or redetermination based on a finding as to
which correction is sought has been issued by a State agency before a
request for correction under this paragraph is made, the individual who
requested such correction shall file a request for redetermination or
appeal from such determination or redetermination with the State agency,
and shall inform the State agency of the request for correction.
(4) An individual who files a request for correction of findings
under this paragraph shall promptly notify the State agency of the
action of the Federal military agency on such request.
(b) State agency procedure when request made. (1) If a determination
of entitlement has not been made when an individual notifies a State
agency of a request for correction under paragraph (a) of this section,
the State agency may postpone such determination until the individual
has notified the State agency of the action of the Federal military
agency on the request.
(2) If a determination of entitlement has been made when an
individual notifies a State agency that a request for correction of
Federal findings has been made, or if an individual notifies a State
agency prior to a determination of entitlement that a request has been
made but such determination is not postponed by the State agency, the
individual may file a request for redetermination or appeal in
accordance with the applicable State law.
[[Page 71]]
(3) Except as provided in paragraph (c) of this section, no
redetermination shall be made or hearing scheduled on an appeal until
the individual has notified the State agency of the action of the
Federal military agency on a request for correction under paragraph (a)
of this section.
(c) State agency procedure when request answered. On receipt of
notice of the action of a Federal military agency on a request for
correction of its findings, a State agency shall:
(1) Make a timely determination or redetermination of the
individual's entitlement, or
(2) Promptly schedule a hearing on the individual's appeal.
If such notice is not received by a State agency within one year of the
date on which an individual first filed a claim, or such notice is not
given promptly by an individual, a State agency without further
postponement may make such determination or redetermination or schedule
such hearing.
(d) Findings corrected without request. Information as to any
finding specified in Sec. 614.21 contained in a corrected military
document issued by a Federal military agency on its own motion shall
constitute the findings of such agency under Sec. 614.21, if notice
thereof is received by a State agency before the period for
redetermination or appeal has expired under the State law. On timely
receipt of such notice a State agency shall take appropriate action
under the applicable State law to give effect to the corrected findings.
Sec. 614.23 Finality of findings.
The findings of a Federal military agency referred to in Sec. Sec.
614.21 and 614.22, and the Schedules of Remuneration issued by the
Department pursuant to the Act and Sec. 614.12, shall be final and
conclusive for all purposes of the UCX Program, including appeal and
review pursuant to Sec. 614.7 or Sec. 614.17.
[53 FR 40555, Oct. 17, 1988]
Sec. 614.24 Furnishing other information.
(a) Additional information. In addition to the information required
by Sec. Sec. 614.21 and 614.22, a Federal military agency shall furnish
to a State agency or the Department, within the time requested, any
information which it is not otherwise prohibited from releasing by law,
which the Department determines is necessary for the administration of
the UCX Program.
(b) Reports. Federal military agencies shall furnish to the
Department or State agencies such reports containing such information as
the Department determines are necessary or appropriate for carrying out
the purposes of the UCX Program.
[47 FR 54697, Dec. 3, 1982, as amended at 53 FR 40555, Oct. 17, 1988]
Sec. 614.25 Liaison with Department
To facilitate the Department's administration of the UCX program,
each Federal military agency shall designate one or more of its
officials to be the liaison with the Department. Each Federal military
agency will inform the Department of its designation(s) and of any
change in a designation.
[53 FR 40555, Oct. 17, 1988]
Sec. Appendix A to Part 614--Standard for Claim Filing, Claimant
Reporting, Job Finding, and Employment Services
Employment Security Manual (Part V, Sections 5000-5004) *
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* Revises subgrouping 5000-5004.
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5000-5099 Claims Filing
5000 Standards for Claim Filing, Claimant Reporting, Job Finding, and
Employment Services
A. Federal law requirements. Section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security Act
require that a State law provide for:
``Payment of unemployment compensation solely through public
employment offices or such other agencies as the Secretary may
approve.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law provide
for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation. * * *''
Section 303(a)(1) of the Social Security Act requires that the State
law provide for:
``Such methods of administration * * * as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
[[Page 72]]
B. Secretary's interpretation of Federal law requirements.
1. The Secretary interprets section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security Act to
require that a State law provide for payment of unemployment
compensation solely through public employment offices or claims offices
administered by the State employment security agency if such agency
provides for such coordination in the operations of its public
employment offices and claims offices as will insure: (a) The payment of
benefits only to individuals who are unemployed and who are able to work
and available for work, and (b) that individuals claiming unemployment
compensation (claimants) are afforded such placement and other
employment services as are necessary and appropriate to return them to
suitable work as soon as possible.
2. The Secretary interprets all the above sections to require that a
State law provide for:
a. Such contact by claimants with public employment offices or
claims offices or both, (1) as will reasonably insure the payment of
unemployment compensation only to individuals who are unemployed and who
are able to work and available for work, and (2) that claimants are
afforded such placement and other employment services as are necessary
and appropriate to facilitate their return to suitable work as soon as
possible; and
b. Methods of administration which do not unreasonably limit the
opportunity of individuals to establish their right to unemployment
compensation due under such State law.
5001 Claim Filing and Claimant Reporting Requirements Designed to
Satisfy Secretary's Interpretation
A. Claim filing--total or part-total unemployment.
1. Individuals claiming unemployment compensation for total or part-
total unemployment are required to file a claim weekly or biweekly, in
person or by mail, at a public employment office or a claims office
(these terms include offices at itinerant points) as set forth below.
2. Except as provided in paragraph 3, a claimant is required to file
in person:
a. His new claim with respect to a benefit year, or his continued
claim for a waiting week or for his first compensable week of
unemployment in such year; and
b. Any other claim, when requested to do so by the claims personnel
at the office at which he files his claim(s) because questions about his
right to benefits are raised by circumstances such as the following:
(1) The conditions or circumstances of his separation from
employment;
(2) The claimant's answers to questions on mail claim(s) indicate
that he may be unable to work or that there may be undue restrictions on
his availability for work or that his search for work may be inadequate
or that he may be disqualified;
(3) The claimant's answers to questions on mail claims create
uncertainty about his credibility or indicate a lack of understanding of
the applicable requirement; or
(4) The claimant's record shows that he has previously filed a
fraudulent claim.
In such circumstances, the claimant is required to continue to file
claims in person each week (or biweekly) until the State agency
determines that filing claims in person is no longer required for the
resolution of such questions.
3. A claimant must be permitted to file a claim by mail in any of
the following circumstances:
a. He is located in an area requiring the expenditure of an
unreasonable amount of time or money in traveling to the nearest
facility established by the State agency for filing claims in person;
b. Conditions make it impracticable for the agency to take claims in
person;
c. He has returned to full-time work on or before the scheduled date
for his filing a claim, unless the agency makes provision for in-person
filing at a time and place that does not interfere with his employment;
d. The agency finds that he has good cause for failing to file a
claim in person.
4. A claimant who has been receiving benefits for partial
unemployment may continue to file claims as if he were a partially
unemployed worker for the first four consecutive weeks of total or part-
total unemployment immediately following his period of partial
unemployment so long as he remains attached to his regular employer.
B. Claim filing--partial unemployment. Each individual claiming
unemployment compensation for a week (or other claim period) during
which, because of lack of work, he is working less than his normal
customary full-time hours for his regular employer and is earning less
than the earnings limit provided in the State law, shall not be required
to file a claim for such week or other claim period earlier than 2 weeks
from the date that wages are paid for such claim period or, if a low
earnings report is required by the State law, from the date the employer
furnished such report to the individual. State agencies may permit
claims for partial unemployment to be filed either in person or by mail,
except that in the circumstances set forth in section A 3, filing by
mail must be permitted, and in the circumstances set forth in section A
2 b, filing in person may be required.
5002 Requirement for Job Finding, Placement, and other Employment
Services Designed to Satisfy Secretary's Interpretation
[[Page 73]]
A. Claims personnel are required to assure that each claimant is
doing what a reasonable individual in his circumstances would do to
obtain suitable work.
B. In the discretion of the State agency:
1. The claims personnel are required to give each claimant such
necessary and appropriate assistance as they reasonably can in finding
suitable work and at their discretion determine when more complete
placement and employment services are necessary and appropriate for a
claimant; and if they determine more complete services are necessary and
appropriate, the claims personnel are to refer him to employment service
personnel in the public employment office in which he has been filing
claim(s), or, if he has been filing in a claims office, in the public
employment office most accessible to him; or
2. All placement and employment services are required to be afforded
to each claimant by employment service personnel in the public
employment office most accessible to him, in which case the claims
personnel in the office in which the claimant files his claim are to
refer him to the employment service personnel when placement or other
employment services are necessary and appropriate for him.
C. The personnel to whom the State agency assigns the
responsibilities outlined in paragraph B above are required to give
claimants such job-finding assistance, placement, and other employment
services as are necessary and appropriate to facilitate their return to
suitable work as soon as possible.
In some circumstances, no such services or only limited services may
be required. For example, if a claimant is on a short-term temporary
layoff with a fixed return date, the only service necessary and
appropriate to be given to him during the period of the layoff is a
referral to suitable temporary work if such work is being performed in
the labor market area.
Similarly, claimants whose unemployment is caused by a labor dispute
presumably will return to work with their employer as soon as the labor
dispute is settled. They generally do not need services, nor do
individuals in occupations where placement customarily is made by other
nonfee charging placement facilities such as unions and professional
associations.
Claimants who fall within the classes which ordinarily would require
limited services or no services shall, if they request placement and
employment services, be afforded such services as are necessary and
appropriate for them to obtain suitable work or to achieve their
reasonable employment goals.
On the other hand, a claimant who is permanently separated from his
job is likely to require some services. He may need only some direction
in how to get a job; he may need placement services if he is in an
occupation for which there is some demand in the labor market area; if
his occupation is outdated, he may require counseling and referral to a
suitable training course. The extent and character of the services to be
given any particular claimant may change with the length of his
unemployment and depend not only on his own circumstances and
conditions, but also on the condition of the labor market in the area.
D. Claimants are required to report to employment service personnel,
as directed, but such personnel and the claims personnel are required to
so arrange and coordinate the contacts required of a claimant as not to
place an unreasonable burden on him or unreasonably limit his
opportunity to establish his rights to compensation. As a general rule,
a claimant is not required to contact in person claims personnel or
employment service personnel more frequently than once a week, unless he
is directed to report more frequently for a specific service such as
referral to a job or a training course or counseling which cannot be
completed in one visit.
E. Employment service personnel are required to report promptly to
claims personnel in the office in which the claimant files his claim(s):
(1) His failure to apply for or accept work to which he was referred by
such personnel or when known, by any other nonfee-charging placement
facility such as a union or a professional association; and (2) any
information which becomes available to it that may have a bearing on the
claimant's ability to work or availability for work, or on the
suitability of work to which he was referred or which was offered to
him.
5004 Evaluation of Alternative State Provisions. If the State law
provisions do not conform to the ``suggested State law requirements''
set forth in sections 5001 and 5002, but the State law contains
alternative provisions, the Manpower Administrator, in collaboration
with the State agency, will study the actual or anticipated effect of
the alternative provisions. If the Manpower Administrator concludes that
the alternative provisions satisfy the requirements of the Federal law
as construed by the Secretary (see section 5000 B) he will so notify the
State agency. If he does not so conclude, he will submit the matter to
the Secretary. If the Secretary concludes that the alternative
provisions satisfy such requirements, the State agency will be so
notified. If the Secretary concludes that there is a question as to
whether the alternative provisions satisfy such requirements, the State
agency will be advised that unless the State law provisions are
appropriately revised, a notice of hearing will be issued as required by
the Code
[[Page 74]]
of Federal Regulations, title 20, section 601.3.
[53 FR 40555, Oct. 17, 1988; 53 FR 43799, Oct. 26, 1988]
Sec. Appendix B to Part 614--Standard for Claim Determination--
Separation Information
Employment Security Manual (Part V, Sections 6010-6015)
6010-6019 Standard for Claim Determinations--Separation Information *
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* Revises subgrouping 6010-6019
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6010 Federal Law Requirements. Section 303(a)(1) of the Social Security
Act requires that a State law include provision for:
``Such methods of administration . . . as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 303(a)(3) of the Social Security Act requires that a State
law include provision for:
``Opportunity for a fair hearing before an impartial tribunal, for
all individuals whose claims for unemployment compensation are denied.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation * * *.
Section 3306(h) of the Federal Unemployment Tax Act defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
6011 Secretary's Interpretation of Federal Law Requirements. The
Secretary interprets the above sections to require that a State law
include provisions which will insure that:
A. Individuals who may be entitled to unemployment compensation are
furnished such information as will reasonably afford them an opportunity
to know, establish, and protect their rights under the unemployment
compensation law of such State, and
B. The State agency obtains and records in time for the prompt
determination and review of benefit claims such information as will
reasonably insure the payment of benefits to individuals to whom
benefits are due.
6012 Criteria for Review of State Law Conformity with Federal
Requirements
In determining the conformity of a State law with the above
requirements of the Federal Unemployment Tax Act and the Social Security
Act as interpreted by the Secretary, the following criteria will be
applied:
A. Is it required that individuals who may be entitled to
unemployment compensation be furnished such information of their
potential rights to benefits, including the manner and places of filing
claims, the reasons for determinations, and their rights of appeal, as
will insure them a reasonable opportunity to know, establish, and
protect their rights under the law of the State?
B. Is the State agency required to obtain, in time for prompt
determination of rights to benefits such information as will reasonably
insure the payment of benefits to individuals to whom benefits are due?
C. Is the State agency required to keep records of the facts
considered in reaching determinations of rights to benefits?
6013 Claim Determinations Requirements Designed To Meet Department of
Labor Criteria
A. Investigation of claims. The State agency is required to obtain
promptly and prior to a determination of an individual's right to
benefits, such facts pertaining thereto as will be sufficient reasonably
to insure the payment of benefits when due.
This requirement embraces five separate elements:
1. It is the responsibility of the agency to take the initiative in
the discovery of information. This responsibility may not be passed on
the claimant or the employer. In addition to the agency's own records,
this information may be obtained from the worker, the employer, or other
sources. If the information obtained in the first instance discloses no
essential disagreement and provides a sufficient basis for a fair
determination, no further investigation is necessary. If the information
obtained from other sources differs essentially from that furnished by
the claimant, the agency, in order to meet its responsibility, is
required to inform the claimant of such information from other sources
and to afford the claimant an opportunity to furnish any further facts
he may have.
2. Evidentiary facts must be obtained as distinguished from ultimate
facts or conclusions. That a worker was discharged for misconduct is an
ultimate fact or conclusion; that he destroyed a machine upon which he
was working is a primary or evidentiary fact, and the sort of fact that
the requirement refers to.
3. The information obtained must be sufficient reasonably to insure
the payment of benefits when due. In general, the investigation made by
the agency must be complete enough to provide information upon which the
agency may act with reasonable assurance that its decision is consistent
with the unemployment compensation law. On the other hand, the
investigation should not be so exhaustive and time-consuming as unduly
to delay the payment of benefits and to result in excessive costs.
[[Page 75]]
4. Information must be obtained promptly so that the payment of
benefits is not unduly delayed.
5. If the State agency requires any particular evidence from the
worker, it must give him a reasonable opportunity to obtain such
evidence.
B. Recording of facts. The agency must keep a written record of the
facts considered in reaching its determinations.
C. Determination notices
1. The agency must give each claimant a written notice of:
a. Any monetary determination with respect to his benefit year;
b. Any determination with respect to purging a disqualification if,
under the State law, a condition or qualification must be satisfied with
respect to each week of disqualification; but in lieu of giving written
notice of each determination for each week in which it is determined
that the claimant has met the requirements for purging the agency may
inform the claimant that he has purged the disqualification for a week
by notation on his applicant identification card or otherwise in
writing.
c. Any other determination which adversely affects \1\ his rights to
benefits, except that written notice of determination need not be given
with respect to:
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\1\ A determination ``adversely affects'' claimant's right to
benefits if it: (1) Results in a denial to him of benefits (including a
cancellation of benefits or wage credits or any reduction in whole or in
part below the weekly or maximum amount established by his monetary
determination) for any week or other period; or (2) denies credit for a
waiting week; or (3) applies any disqualification or penalty; or (4)
determines that he has not satisfied a condition of eligibility,
requalification for benefits, or purging a disqualification; or (5)
determines that an overpayment has been made or orders repayment or
recoupment of any sum paid to him; or (6) applies a previously
determined overpayment, penalty, or order for repayment or recoupment;
or (7) in any other way denies claimant a right to benefits under the
State law.
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(1) A week in a benefit year for which the claimant's weekly benefit
amount is reduced in whole or in part by earnings if, the first time in
the benefit year that there is such a reduction, he is required to be
furnished a booklet or leaflet containing the information set forth
below in paragraph 2f(1). However, a written notice of determination is
required if: (a) There is a dispute concerning the reduction with
respect to any week (e.g., as to the amount computed as the appropriate
reduction, etc.); or (b) there is a change in the State law (or in the
application thereof) affecting the reduction; or
(2) Any week in a benefit year subsequent to the first week in such
benefit year in which benefits were denied, or reduced in whole or in
part for reasons other than earnings, if denial or reduction for such
subsequent week is based on the same reason and the same facts as for
the first week, and if written notice of determination is required to be
given to the claimant with respect to such first week, and with such
notice of determination, he is required to be given a booklet or
pamphlet containing the information set forth below in paragraphs 2f(2)
and 2h. However, a written notice of determination is required if: (a)
There is a dispute concerning the denial or reduction of benefits with
respect to such week; or (b) there is a change in the State law (or in
the application thereof) affecting the denial or reduction; or (c) there
is a change in the amount of the reduction except as to the balance
covered by the last reduction in a series of reductions.
Note: This procedure may be applied to determinations made with
respect to any subsequent weeks for the same reason and on the basis of
the same facts: (a) That claimant is unable to work, unavailable for
work, or is disqualified under the labor dispute provision; and (b)
reducing claimant's weekly benefit amount because of income other than
earnings or offset by reason of overpayment.
2. The agency must include in written notices of determinations
furnished to claimants sufficient information to enable them to
understand the determinations, the reasons therefor, and their rights to
protest, request reconsideration, or appeal.
The written notice of monetary determination must contain the
information specified in the following items (except h) unless an item
is specifically not applicable. A written notice of any other
determination must contain the information specified in as many of the
following items as are necessary to enable the claimant to understand
the determination and to inform him of his appeal rights. Information
specifically applicable to the individual claimant must be contained in
the written notice of determination. Information of general application
such as (but not limited to) the explanation of benefits for partial
unemployment, information as to deductions, seasonality factors, and
information as to the manner and place of taking an appeal, extension of
the appeal period, and where to obtain information and assistance may be
contained in a booklet or leaflet which is given the claimant with his
monetary determination.
a. Base period wages. The statement concerning base-period wages
must be in sufficient detail to show the basis of computation
[[Page 76]]
of eligibility and weekly and maximum benefit amounts. (If maximum
benefits are allowed, it may not be necessary to show details of
earnings.)
b. Employer name. The name of the employer who reported the wages is
necessary so that the worker may check the wage transcript and know
whether it is correct. If the worker is given only the employer number,
he may not be able to check the accuracy of the wage transcript.
c. Explanation of benefit formula--weekly and maximum benefit
amounts. Sufficient information must be given the worker so that he will
understand how his weekly benefit amount, including allowances for
dependents, and his maximum benefit amount were figured. If benefits are
computed by means of a table contained in the law, the table must be
furnished with the notice of determination whether benefits are granted
or denied.
The written notice of determination must show clearly the weekly
benefit amount and the maximum potential benefits to which the claimant
is entitled.
The notice to a claimant found ineligible by reason of insufficient
earnings in the base period must inform him clearly of the reason for
ineligibility. An explanation of the benefit formula contained in a
booklet or pamphlet should be given to each claimant at or prior to the
time he receives written notice of a monetary determination.
d. Benefit year. An explanation of what is meant by the benefit year
and identification of the claimant's benefit year must be included in
the notice of determinaton.
e. Information as to benefits for partial unemployment. There must
be included either in the written notice of determination or in a
booklet or pamphlet accompanying the notice an explanation of the
claimant's rights to partial benefits for any week with respect to which
he is working less than his normal customary full-time workweek because
of lack of work and for which he earns less than his weekly benefit
amount or weekly amount plus earnings, whichever is provided by the
State law. If the explanation is contained in the notice of
determination, reference to the item in the notice in which his weekly
benefit amount is entered should be made.
f. Deductions from weekly benefits.
(1) Earnings. Although written notice of determinations deducting
earnings from a claimant's weekly benefit amount is generally not
required (see paragraph 1c (1) above), where written notice of
determination is required (or given) it shall set forth the amount of
earnings, the method of computing the deduction in sufficient detail to
enable the claimant to verify the accuracy of the deduction, and his
right to protest, request redetermination, and appeal. Where a written
notice of determination is given to the claimant because there has been
a change in the State law or in the application of the law, an
explanation of the change shall be included.
Where claimant is not required to receive a written notice of
determination, he must be given a booklet or pamphlet the first time in
his benefit year that there is a deduction for earnings which shall
include the following information:
(a) The method of computing deductions for earnings in sufficient
detail to enable the claimant to verify the accuracy of the deduction;
(b) That he will not automatically be given a written notice of
determination for a week with respect to which there is a deduction for
earnings (unless there is a dispute concerning the reduction with
respect to a week or there has been a change in the State law or in the
application of the law affecting the deduction) but that he may obtain
such a written notice upon request; and
(c) A clear statement of his right to protest, request a
redetermination, and appeal from any determination deducting earnings
from his weekly benefit amount even though he does not automatically
receive a written notice of determination; and if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
(2) Other deductions.
(a) A written notice of determination is required with respect to
the first week in claimant's benefit year in which there is a reduction
from his benefits for a reason other than earnings. This notice must
describe the deduction made from claimant's weekly benefit amount, the
reason for the deduction, the method of computing it in sufficient
detail to enable him to verify the accuracy of such deduction, and his
right to protest, request redetermination, or appeal.
(b) A written notice of determination is not required for subsequent
weeks that a deduction is made for the same reason and on the basis of
the same facts, if the notice of determination pursuant to (2)(a), or a
booklet or pamphlet given him with such notice explains: (i) The several
kinds of deductions which may be made under the State law (e.g.,
retirement pensions, vacation pay, and overpayments); (ii) the method of
computing each kind of deduction in sufficient detail that claimant will
be able to verify the accuracy of deductions made from his weekly
benefit payments; (iii) any limitation on the amount of any deduction or
the time in which any deduction may be made; (iv) that he will not
automatically be given a written notice of determination for subsequent
weeks with respect to which there is a deduction for the same reason and
on the basis of the same facts, but that he may obtain a
[[Page 77]]
written notice of determination upon request; (v) his right to protest,
request redetermination, or appeal with respect to subsequent weeks for
which there is a reduction from his benefits for the same reason, and on
the basis of the same facts even though he does not automatically
receive a written notice of determination; and (vi) that if the State
law requires written notice of determination in order to effectuate a
protest, redetermination, or appeal, he must be so advised and advised
also that he must request a written notice of determination before he
takes any such action.
g. Seasonality factors. If the individual's determination is
affected by seasonality factors under the State law, an adequate
explanation must be made. General explanations of seasonality factors
which may affect determinations for subsequent weeks may be included in
a booklet or pamphlet given with his notice of monetary determination.
h. Disqualification or ineligibility. If a disqualification is
imposed, or if the claimant is declared ineligible for one or more
weeks, he must be given not only a statement of the period of
disqualification or ineligibility and the amount of wage-credit
reductions, if any, but also an explanation of the reason for the
ineligibility or disqualification. This explanation must be sufficiently
detailed so that he will understand why he is ineligible or why he has
been disqualified, and what he must do in order to requalify for
benefits or purge the disqualification. The statement must be
individualized to indicate the facts upon which the determination was
based, e.g., state, ``It is found that you left your work with Blank
Company because you were tired of working; the separation was voluntary,
and the reason does not constitute good cause,'' rather than merely the
phrase ``voluntary quit.'' Checking a box as to the reason for the
disqualification is not a sufficiently detailed explanation. However,
this statement of the reason for the disqualification need not be a
restatement of all facts considered in arriving at the determination.
i. Appeal rights. The claimant must be given information with
respect to his appeal rights.
(1) The following information shall be included in the notice of
determination:
(a) A statement that he may appeal or, if the State law requires or
permits a protest or redetermination before an appeal, that he may
protest or request a redetermination.
(b) The period within which an appeal, protest, or request for
redetermination must be filed. The number of days provided by statute
must be shown as well as either the beginning date or ending date of the
period. (It is recommended that the ending date of the appeal period be
shown, as this is the more understandable of the alternatives.)
(2) The following information must be included either in the notice
of determination or in separate informational material referred to in
the notice:
(a) The manner in which the appeal, protest, or request for
redetermination must be filed, e.g., by signed letter, written
statement, or on a prescribed form, and the place or places to which the
appeal, protest, or request for redetermination may be mailed or hand-
delivered.
(b) An explanation of any circumstances (such as nonworkdays, good
cause, etc.) which will extend the period for the appeal, protest, or
request for redetermination beyond the date stated or identified in the
notice of determination.
(c) That any further information claimant may need or desire can be
obtained together with assistance in filing his appeal, protest, or
request for redetermination from the local office.
If the information is given in separate material, the notice of
determination would adequately refer to such material if it said, for
example, ``For other information about your (appeal), (protest),
(redetermination) rights, see pages __ to __ of the ______________ (name
of pamphlet or booklet) heretofore furnished to you.''
6014 Separation Information Requirements Designed To Meet Department of
Labor Criteria
A. Information to agency. Where workers are separated, employers are
required to furnish the agency promptly, either upon agency request or
upon such separation, a notice describing the reasons for and the
circumstances of the separation and any additional information which
might affect a claimant's right to benefits. Where workers are working
less than full time, employers are required to furnish the agency
promptly, upon agency request, information concerning a claimant's hours
of work and his wages during the claim periods invovled, and other facts
which might affect a claimant's eligibility for benefits during such
periods.
When workers are separated and the notices are obtained on a request
basis, or when workers are working less than full time and the agency
requests information, it is essential to the prompt processing of claims
that the request be sent out promptly after the claim is filed and the
employer be given a specific period within which to return the notice,
preferably within 2 working days.
When workers are separated and notices are obtained upon separation,
it is essential that the empolyer be required to send the notice to the
agency with sufficient promptness to insure that, if a claim is filed,
it may be processed promptly. Normally, it is desirable that such a
notice be sent to the central office of the agency, since the employer
may not know in which local office the worker will file his claim. The
usual procedure is for
[[Page 78]]
the employer to give the worker a copy of the notice sent by the
employer to the agency.
B. Information to worker.
1. Information required to be given. Employees are required to give
their employers information and instructions concerning the employees'
potential rights to benefits and concerning registration for work and
filing claims for benefits.
The information furnished to employees under such a requirement need
not be elaborate; it need only be adequate to insure that the worker who
is separated or who is working less than full time knows he is
potentially eligible for benefits and is informed as to what he is to do
or where he is to go to file his claim and register for work. When he
files his claim, he can obtain more detailed information.
In States that do not require employers to furnish periodically to
the State agency detailed reports of the wages paid to their employees,
each employer is required to furnish to his employees information as to:
(a) The name under which he is registered by the State agency, (b) the
address where he maintains his payroll records, and (c) the workers'
need for this information if and when they file claims for benefits.
2. Methods for giving information. The information and instructions
required above may be given in any of the following ways:
a. Posters prominently displayed in the employer's establishment.
The State agency should supply employers with a sufficient number of
posters for distribution throughout their places of business and should
see that the posters are conspicuously displayed at all times.
b. Leaflets. Leaflets distributed either periodically or at the time
of separation or reduction of hours. The State agency should supply
employers with a sufficient number of leaflets.
c. Individual notices. Individual notices given to each employee at
the time of separation or reduction in hours.
It is recommended that the State agency's publicity program be used
to supplement the employer-information requirements. Such a program
should stress the availability and location of claim-filing offices and
the importance of visiting those offices whenever the worker is
unemployed, wishes to apply for benefits, and to seek a job.
6015 Evaluation of Alternative State Provisions with Respect to Claim
Determinations and Separation Information. If the State law provisions
do not conform to the suggested requirements set forth in sections 6013
and 6014, but the State law contains alternative provisions, the Bureau
of Employment Security, in collaboration with the State agency, will
study the actual or anticipated effects of the alternative provisions.
If the Administrator of the Bureau concludes that the alternative
provisions satisfy the criteria in section 6012, he will so notify the
State agency. If the Administrator of the Bureau does not so conclude,
he will submit the matter to the Secretary. If the Secretary concludes
that the alternative provisions satisfy the criteria in section 6012,
the State agency will be so notified. If the Secretary concludes that
there is a question as to whether the alternative provisions satisfy the
criteria, the State agency will be advised that unless the State law
provisions are appropriately revised, a notice of hearing will be issued
as required by the Code of Federal Regulations, title 20, Sec. 601.5.
[53 FR 40557, Oct. 17, 1988; 53 FR 43799, Oct. 26, 1988]
Sec. Appendix C to Part 614--Standard for Fraud and Overpayment
Detection
Employment Security Manual (Part V, Sections 7510-7515)
7510-7519 Standard for Fraud and Overpayment Detection
7510 Federal Law Requirements. Section 303(a)(1) of the Social Security
Act requires that a State law include provision for:
``Such methods of administration * * * as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 1603(a)(4) of the Internal Revenue Code and section
3030(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure for all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation * * * ''
Section 1607(h) of the Internal Revenue Code defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
7511 The Secretary's Interpretation of Federal Law Requirements. The
Secretary of Labor interprets the above sections to require that a State
law include provision for such methods of administration as are, within
reason, calculated (1) to detect benefits paid through error by the
agency or through willful misrepresentation or error by the claimant or
others, and (2) to deter claimants from obtaining benefits through
willful misrepresentation.
7513 Criteria for Review of State Conformity With Federal Requirements.
In detemining State conformity with the above requirements of the
Internal Revenue Code and the Social Security Act, as interpreted by the
Secretary of Labor, the following criteria will be applied:
[[Page 79]]
A. Are investigations required to be made after the payment of
benefits, (or, in the case of interstate claims, are investigations made
by the agent State after the processing of claims) as to claimants'
entitlement to benefits paid to them in a sufficient proportion of cases
to test the effectiveness of the agency's procedures for the prevention
of payments which are not due? To carry out investigations, has the
agency assigned to some individual or unit, as a basic function, the
responsibility of making or functionally directing such investigations?
Explantaion: It is not feasible to prescribe the extent to which the
above activities are required; however, they should always be carried on
to such an extent that they will show whether or not error or willful
misrepresentation is increasing or decreasing, and will reveal problem
areas. The extent and nature of the above activities should be varied
according to the seriousness of the problem in the State. The
responsible individual or unit should:
1. Check paid claims for overpayment and investigate for willful
misrepresentation or, alternatively, advise and assist the operating
units in the performance of such functions, or both;
2. Perform consultative services with respect to methods and
procedures for the prevention and detection of fraud; and
3. Perform other services which are closely related to the above.
Although a State agency is expected to make a full-time assignment
of responsibility to a unit or individual to carry on the functions
described above, a small State agency might make these functions a part-
time responsibility of one individual. In connection with the detection
of overpayments, such a unit or individual might, for example:
(a) Investigate information on suspected benefit fraud received from
any agency personnel, and from sources outside the agency, including
anonymous complaints;
(b) Investigate information secured from comparisons of benefit
payments with employment records to detect cases of concurrent working
(whether in covered or noncovered work) and claiming of benefits
(including benefit payments in which the agency acted as agent for
another State).
The benefit fraud referred to herein may involve employers, agency
employees, and witnesses, as well as claimants.
Comparisons of benefit payments with employment records are commonly
made either by post-audit or by industry surveys. The so-called ``post-
audit'' is a matching of central office wage-record files against
benefit payments for the same period. ``Industry surveys'' or ``mass
audits'' are done in some States by going directly to employers for pay-
roll information to be checked against concurrent benefit lists. A plan
A. of investigation based on a sample post-audit will be considered
as partial fulfillment of the investigation program; it would need to be
supplemented by other methods capable of detecting overpayments to
persons who have moved into noncovered occupations or are claiming
interstate benefits.
B. Are adequate records maintained by which the results of
investigations may be evaluated? *
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* Revises section 7513 as issued 5/5/50.
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Explanation. To meet this criterion, the State agency will be
expected to maintain records of all its activities in the detection of
overpayments, showing whether attributable to error or willful
misrepresentation, measuring the results obtained through various
methods, and noting the remedial action taken in each case. The adequacy
and effectiveness of various methods of checking for willful
misrepresentation can be evaluated only if records are kept of the
results obtained. Internal reports on fraudulent and erroneous
overpayments are needed by State agencies for self-evaluation. Detailed
records should be maintained in order that the State agency may
determine, for example, which of several methods of checking currently
used are the most productive. Such records also will provide the basis
for drawing a clear distinction between fraud and error.
C. Does the agency take adequate action with respect to publicity
concerning willful misrepresentation and its legal consequences to deter
fraud by claimants? *
Explanation. To meet this criterion, the State agency must issue
adequate material on claimant eligibility requirements and must take
necessary action to obtain publicity on the legal consequences of
willful misrepresentation or willful nondisclosure of facts.
Public announcements on convictions and resulting penalties for
fraud are generally considered necessary as a deterrent to other
persons, and to inform the public that the agency is carrying on an
effective program to prevent fraud. This alone is not considered
adequate publicity. It is important that information be circulated which
will explain clearly and understandably the claimant's rights, and the
obligations which he must fulfill to be eligible for benefits. Leaflets
for distribution and posters placed in local offices are appropriate
media for such information.
7515 Evalauation of Alternative State Provisions with Respect to
Erroneous and Illegal Payments. If the methods of administration
provided for by the State law do not conform to the suggested methods of
meeting the requirements set forth in section 7511, but a State law does
provide for alternative methods of administration designed to accomplish
the same results, the Bureau of Employment Security, in collaboration
with the State agency, will study the actual or anticipated effect of
the alternative
[[Page 80]]
methods of administration. If the Bureau concludes that the alternative
methods satisfy the criteria in section 7513, it will so notify the
State agency. If the Bureau does not so conclude, it will submit to the
Secretary the results of the study for his determination of whether the
State's alternative methods of administration meet the criteria. \*\
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\*\ Revises section 7513 as issued 5/5/50.
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PART 615_EXTENDED BENEFITS IN THE FEDERAL-STATE UNEMPLOYMENT COMPENSATION
PROGRAM--Table of Contents
Sec.
615.1 Purpose.
615.2 Definitions.
615.3 Effective period of the program.
615.4 Eligibility requirements for Extended Benefits.
615.5 Definition of ``exhaustee.''
615.6 Extended Benefits; weekly amount.
615.7 Extended Benefits; maximum amount.
615.8 Provisions of State law applicable to claims.
615.9 Restrictions on entitlement.
615.10 Special provisions for employers.
615.11 Extended Benefit Periods.
615.12 Determination of ``on'' and ``off'' indicators.
615.13 Announcement of the beginning and ending of Extended Benefit
Periods.
615.14 Payments to States.
615.15 Records and reports.
Authority: 26 U.S.C. 7805; 42 U.S.C. 1102; Secretary's Order No. 4-
75 (40 FR 18515).
Source: 53 FR 27937, July 25, 1988, unless otherwise noted.
Sec. 615.1 Purpose.
The regulations in this part are issued to implement the ``Federal-
State Extended Unemployment Compensation Act of 1970'' as it has been
amended, which requires, as a condition of tax offset under the Federal
Unemployment Tax Act (26 U.S.C. 3301 et seq.), that a State unemployment
compensation law provide for the payment of extended unemployment
compensation during periods of high unemployment to eligible individuals
as prescribed in the Act. The benefits provided under State law, in
accordance with the Act and this part, are hereafter referred to as
Extended Benefits, and the program is referred to as the Extended
Benefit Program.
Sec. 615.2 Definitions.
For the purposes of the Act and this part--
(a) Act means the ``Federal-State Extended Unemployment Compensation
Act of 1970'' (title II of Pub. L. 91-373; 84 Stat. 695, 708), approved
August 10, 1970, as amended from time to time, including the 1980
amendments in section 416 of Pub. L. 96-364 (94 Stat. 1208, 1310),
approved September 26, 1980, and in sections 1022 and 1024 of Pub. L.
96-499 (94 Stat. 2599, 2656, 2658) approved December 5, 1980, and the
1981 amendments in sections 2401 through 2404 and section 2505(b) of
Pub. L. 97-35 (95 Stat. 357, 874-875, 884) approved August 13, 1981, and
the 1982 amendment in section 191 of Pub. L. 97-248 (96 Stat. 324, 407)
approved September 3, 1982, and the 1983 amendment in section 522 of
Pub. L. 98-21 (97 Stat. 65, 148) approved April 20, 1983.
(b) Base period means, with respect to an individual, the base
period as determined under the applicable State law for the individual's
applicable benefit year.
(c)(1) Benefit year means, with respect to an individual, the
benefit year as defined in the applicable State law.
(2) Applicable benefit year means, with respect to an individual,
the current benefit year if, at the time an initial claim for Extended
Benefits is filed, the individual has an unexpired benefit year only in
the State in which such claim is filed, or, in any other case, the
individual's most recent benefit year. For this purpose, the most recent
benefit year for an individual who has unexpired benefit years in more
than one State when an initial claim for Extended Benefits is filed, is
the benefit year with the latest ending date or, if such benefit years
have the same ending date, the benefit year in which the latest
continued claim for regular compensation was filed. The individual's
most recent benefit year which expires in an Extended Benefit Period is
the applicable benefit year if the individual cannot establish a second
benefit year or is precluded from receiving regular compensation in a
second benefit year solely by reason of a State law provision which
meets the requirement of section 3304(a)(7) of the Internal Revenue Code
of 1986 (26 U.S.C. 3304(a)(7)).
[[Page 81]]
(d) Compensation and unemployment compensation means cash benefits
(including dependents' allowances) payable to individuals with respect
to their unemployment, and includes regular compensation, additional
compensation and extended compensation as defined in this section.
(e) Regular compensation means compensation payable to an individual
under a State law, and, when so payable, includes compensation payable
pursuant to 5 U.S.C. chapter 85, but does not include extended
compensation or additional compensation.
(f) Additional compensation means compensation totally financed by a
State and payable under a State law by reason of conditions of high
unemployment or by reason of other special factors and, when so payable,
includes compensation payable pursuant to 5 U.S.C. chapter 85.
(g) Extended compensation means the extended unemployment
compensation payable to an individual for weeks of unemployment which
begin in an Extended Benefit Period, under those provisions of a State
law which satisfy the requirements of the Act and this part with respect
to the payment of extended unemployment compensation, and, when so
payable, includes compensation payable pursuant to 5 U.S.C. chapter 85,
but does not include regular compensation or additional compensation.
Extended compensation is referred to in this part as Extended Benefits.
(h) Eligibility period means, with respect to an individual, the
period consisting of--
(1) The weeks in the individual's applicable benefit year which
begin in an Extended Benefit Period, or with respect to a single benefit
year, the weeks in the benefit year which begin in more than one
Extended Benefit Period, and
(2) If the applicable benefit year ends within an Extended Benefit
Period, any weeks thereafter which begin in such Extended Benefit
Period, but an individual may not have more than one eligibility period
with respect to any one exhaustion of regular benefits, or carry over
from one eligibility period to another any entitlement to Extended
Benefits.
(i) Sharable compensation means:
(1) Extended Benefits paid to an eligible individual under those
provisions of a State law which are consistent with the Act and this
part, and that does not exceed the smallest of the following:
(i) 50 percent of the total amount of regular compensation payable
to the individual during the applicable benefit year; or
(ii) 13 times the individual's weekly amount of Extended Benefits
payable for a week of total unemployment, as determined pursuant to
Sec. 615.6(a); or
(iii) 39 times the individual's weekly benefit amount, referred to
in (ii), reduced by the regular compensation paid (or deemed paid) to
the individual during the applicable benefit year; and
(2) Regular compensation paid to an eligible individual with respect
to weeks of unemployment in the individual's eligibility period, but
only to the extent that the sum of such compensation, plus the regular
compensation paid (or deemed paid) to the individual with respect to
prior weeks of unemployment in the applicable benefit year, exceeds 26
times and does not exceed 39 times the average weekly benefit amount
(including allowances for dependents) for weeks of total unemployment
payable to the individual under the State law in such benefit year:
Provided, that such regular compensation is paid under provisions of a
State law which are consistent with the Act and this part.
(3) Notwithstanding the preceding provisions of this paragraph,
sharable compensation shall not include any regular or extended
compensation with respect to which a State is not entitled to a payment
under section 202(a)(6) or 204 of the Act or Sec. 615.14 of this part.
(j)(1) Secretary means the Secretary of Labor of the United States.
(2) Department means the United States Department of Labor, and
shall include the Employment and Training Administration, the agency of
the United States Department of Labor headed by the Assistant Secretary
of Labor for Employment and Training to whom has been delegated the
Secretary's authority under the Act in Secretary's Order No. 4-75 (40 FR
18515) and Secretary's Order No. 14-75.
[[Page 82]]
(k)(1) State means the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and the U. S. Virgin Islands.
(2) Applicable State means, with respect to an individual, the State
with respect to which the individual is an ``exhaustee'' as defined in
Sec. 615.5, and in the case of a combined wage claim for regular
compensation, the term means the ``paying State'' as defined in Sec.
616.6(e) of this chapter.
(3) State agency means the State unemployment compensation agency of
a State which administers the State law.
(l)(1) State law means the unemployment compensation law of a State,
approved by the Secretary under section 3304(a) of the Internal Revenue
Code of 1986 (26 U.S.C. 3304(a)).
(2) Applicable State law means the law of the State which is the
applicable State for an individual.
(m)(1) Week means, for purposes of eligibility for and payment of
Extended Benefits, a week as defined in the applicable State law.
(2) Week means, for purposes of computation of Extended Benefit
``on'' and ``off'' and ``no change'' indicators and insured unemployment
rates and the beginning and ending of Extended Benefit Periods, a
calendar week.
(n)(1) Week of unemployment means a week of total, part-total, or
partial unemployment as defined in the applicable State law, which shall
be applied in the same manner and to the same extent to the Extended
Benefit Program as if the individual filing a claim for Extended
Benefits were filing a claim for regular compensation, except as
provided in paragraph (n)(2) of this section.
(2) Week of unemployment in section 202(a)(3)(A) of the Act means a
week of unemployment, as defined in paragraph (n)(1) of this section,
for which the individual claims Extended Benefits or sharable regular
benefits.
(o) For the purposes of section 202(a)(3) of the Act--
(1) Employed, for the purposes of section 202(a)(3)(B)(ii) of the
Act, and employment, for the purposes of section 202(a)(4) of the Act,
means service performed in an employer-employee relationship as defined
in the State law; and that law also shall govern whether that service
must be covered by it, must consist of consecutive weeks, and must
consist of more weeks of work than are required under section
202(a)(3)(B) of the Act;
(2) Individual's capabilities, for the purposes of section
202(a)(3)(C), means work which the individual has the physical and
mental capacity to perform and which meets the minimum requirements of
section 202(a)(3)(D);
(3) Reasonably short period, for the purposes of section
202(a)(3)(C), means the number of weeks provided by the applicable State
law;
(4) Average weekly benefit amount, for the purposes of section
202(a)(3)(D)(i), means the weekly benefit amount (including dependents'
allowances payable for a week of total unemployment and before any
reduction because of earnings, pensions or other requirements)
applicable to the week in which the individual failed to take an action
which results in a disqualification as required by section 202(a)(3)(B)
of the Act;
(5) Gross average weekly remuneration, for the purposes of section
202(a)(3)(D)(i), means the remuneration offered for a week of work
before any deductions for taxes or other purposes and, in case the
offered pay may vary from week to week, it shall be determined on the
basis of recent experience of workers performing work similar to the
offered work for the employer who offered the work;
(6) And, as used in section 202(a)(3)(D)(ii), shall be interpreted
to mean ``or'';
(7) Provisions of the applicable State law, as used in section
202(a)(3)(D)(iii), include statutory provisions and decisions based on
statutory provisions, such as not requiring an individual to take a job
which requires traveling an unreasonable distance to work, or which
involves an unreasonable risk to the individual's health, safety or
morals; and such provisions shall also include labor standards and
training provisions required under sections 3304(a)(5) and 3304(a)(8) of
the Internal Revenue Code of 1986 and section 236(e) of the Trade Act of
1974;
(8) A systematic and sustained effort, for the purposes of section
202(a)(3)(E), means--
[[Page 83]]
(i) A high level of job search activity throughout the given week,
compatible with the number of employers and employment opportunities in
the labor market reasonably applicable to the individual,
(ii) A plan of search for work involving independent efforts on the
part of each individual which results in contacts with persons who have
the authority to hire or which follows whatever hiring procedure is
required by a prospective employer in addition to any search offered by
organized public and private agencies such as the State employment
service or union or private placement offices or hiring halls,
(iii) Actions by the individual comparable to those actions by which
jobs are being found by people in the community and labor market, but
not restricted to a single manner of search for work such as registering
with and reporting to the State employment service and union or private
placement offices or hiring halls, in the same manner that such work is
found by people in the community,
(iv) A search not limited to classes of work or rates of pay to
which the individual is accustomed or which represent the individual's
higher skills, and which includes all types of work within the
individual's physical and mental capabilities, except that the
individual, while classified by the State agency as provided in Sec.
615.8(d) as having ``good'' job prospects, shall search for work that is
suitable work under State law provisions which apply to claimants for
regular compensation (which is not sharable),
(v) A search by every claimant, without exception for individuals or
classes of individuals other than those in approved training, as
required under section 3304(a)(8) of the Internal Revenue Code of 1986
or section 236(e) of the Trade Act of 1974,
(vi) A search suspended only when severe weather conditions or other
calamity forces suspension of such activities by most members of the
community, except that
(vii) The individual, while classified by the State agency as
provided in Sec. 615.8(d) as having ``good'' job prospects, if such
individual normally obtains customary work through a hiring hall, shall
search for work that is suitable work under State law provisions which
apply to claimants for regular compensation (which is not sharable);
(9) Tangible evidence of an active search for work, for the purposes
of section 202(a)(3)(E), means a written record which can be verified,
and which includes the actions taken, methods of applying for work,
types of work sought, dates and places where work was sought, the name
of the employer or person who was contacted and the outcome of the
contact;
(10) Date of a disqualification, as used in section 202(a)(4), means
the date the disqualification begins, as determined under the applicable
State law;
(11) Jury duty, for purposes of section 202(a)(3)(A)(ii), means the
performance of service as a juror, during all periods of time an
individual is engaged in such service, in any court of a State or the
United States pursuant to the law of the State or the United States and
the rules of the court in which the individual is engaged in the
performance of such service; and
(12) Hospitalized for treatment of an emergency or life-threatening
condition, as used in section 202(a)(3)(A)(ii), has the following
meaning: ``Hospitalized for treatment'' means an individual was admitted
to a hospital as an inpatient for medical treatment. Treatment is for an
``emergency or life threatening condition'' if determined to be such by
the hospital officials or attending physician that provide the treatment
for a medical condition existing upon or arising after hospitalization.
For purposes of this definition, the term ``medical treatment'' refers
to the application of any remedies which have the objective of effecting
a cure of the emergency or life-threatening condition. Once an
``emergency condition'' or a ``life-threatening condition'' has been
determined to exist by the hospital officials or attending physician,
the status of the individual as so determined shall remain unchanged
until release from the hospital.
(p)(1) Claim filed in any State under the interstate benefit payment
plan, as used in section 202(c), means any interstate claim for a week
of unemployment filed pursuant to the Interstate Benefit Payment Plan,
but does not include--
[[Page 84]]
(i) A claim filed in Canada,
(ii) A visiting claim filed by an individual who has received
permission from his/her regular reporting office to report temporarily
to a local office in another State and who has been furnished intrastate
claim forms on which to file claims, or
(iii) A transient claim filed by an individual who is moving from
place to place searching for work, or an intrastate claim for Extended
Benefits filed by an individual who does not reside in a State that is
in an Extended Benefit Period,
(2) The first 2 weeks, as used in section 202(c), means the first
two weeks for which the individual files compensable claims for Extended
Benefits under the Interstate Benefit Payment Plan in an agent State in
which an Extended Benefit Period is not in effect during such weeks, and
(q) Benefit structure as used in section 204(a)(2)(D), for the
requirement to round down to the ``nearest lower full dollar amount''
for Federal reimbursement of sharable regular and sharable extended
compensation means all of the following:
(1) Amounts of regular weekly benefit payments,
(2) Amounts of additional and extended weekly benefit payments,
(3) The State maximum or minimum weekly benefit,
(4) Partial and part-total benefit payments,
(5) Amounts payable after deduction for pensions, and
(6) Amounts payable after any other deduction required by State law.
[53 FR 27937, July 25, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 615.3 Effective period of the program.
An Extended Benefit Program conforming with the Act and this part
shall be a requirement for a State law effective on and after January 1,
1972, pursuant to section 3304(a)(11) of the Internal Revenue Code of
1986, (26 U.S.C. 3304(a)(11)). Continuation of the program by a State in
conformity and substantial compliance with the Act and this part,
throughout any 12-month period ending on October 31 of a year subsequent
to 1972, shall be a condition of the certification of the State with
respect to such 12-month period under section 3304(c) of the Internal
Revenue Code of 1986 (26 U.S.C. 3304(c)). Conformity with the Act and
this part in the payment of regular compensation and Extended Benefits
to any individual shall be a continuing requirement, applicable to every
week as a condition of a State's entitlement to payment for any
compensation as provided in the Act and this part.
Sec. 615.4 Eligibility requirements for Extended Benefits.
(a) General. An individual is entitled to Extended Benefits for a
week of unemployment which begins in the individual's eligibility period
if, with respect to such week, the individual is an exhaustee as defined
in Sec. 615.5, files a timely claim for Extended Benefits, and
satisfies the pertinent requirements of the applicable State law which
are consistent with the Act and this part.
(b) Qualifying for Extended Benefits. The State law shall specify
whether an individual qualifies for Extended Benefits by earnings and
employment in the base period for the individual's applicable benefit
year as required by section 202(a)(5) of the Act, (and if it does not
also apply this requirement to the payment of sharable regular benefits,
the State will not be entitled to a payment under Sec. 615.14), as
follows:
(1) One and one-half times the high quarter wages; or
(2) Forty times the most recent weekly benefit amount, and if this
alternative is adopted, it shall use the weekly benefit amount
(including dependents' allowances) payable for a week of total
unemployment (before any reduction because of earnings, pensions or
other requirements) which applied to the most recent week of regular
benefits; or
(3) Twenty weeks of full-time insured employment, and if this
alternative is adopted, the term ``full-time'' shall have the meaning
provided by the State law.
Sec. 615.5 Definition of ``exhaustee.''
(a)(1) ``Exhaustee'' means an individual who, with respect to any
week
[[Page 85]]
of unemployment in the individual's eligibility period:
(i) Has received, prior to such week, all of the regular
compensation that was payable under the applicable State law or any
other State law (including regular compensation payable to Federal
civilian employees and Ex-Servicemembers under 5 U.S.C. chapter 85) for
the applicable benefit year that includes such week; or
(ii) Has received, prior to such week, all of the regular
compensation that was available under the applicable State law or any
other State law (including regular compensation available to Federal
civilian employees and Ex-Servicemembers under 5 U.S.C. chapter 85) in
the benefit year that includes such week, after the cancellation of some
or all of the individual's wage credits or the total or partial
reduction of the individual's right to regular compensation; or
(iii) The applicable benefit year having expired prior to such week
and the individual is precluded from establishing a second (new) benefit
year, or the individual established a second benefit year but is
suspended indefinitely from receiving regular compensation, solely by
reason of a State law provision which meets the requirement of section
3304(a)(7) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)(7)):
Provided, that, an individual shall not be entitled to Extended Benefits
based on regular compensation in a second benefit year during which the
individual is precluded from receiving regular compensation solely by
reason of a State law provision which meets the requirement of section
3304(a)(7) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)(7));
or
(iv) The applicable benefit year having expired prior to such week,
the individual has insufficient wages or employment, or both, on the
basis of which a new benefit year could be established in any State that
would include such week; and
(v) Has no right to unemployment compensation for such week under
the Railroad Unemployment Insurance Act or such other Federal laws as
are specified by the Department pursuant to this paragraph; and
(vi) Has not received and is not seeking for such week unemployment
compensation under the unemployment compensation law of Canada, unless
the Canadian agency finally determines that the individual is not
entitled to unemployment compensation under the Canadian law for such
week.
(2) An individual who becomes an exhaustee as defined above shall
cease to be an exhaustee commencing with the first week that the
individual becomes eligible for regular compensation under any State law
or 5 U.S.C. chapter 85, or has any right to unemployment compensation as
provided in paragraph (a)(1)(v) of this section, or has received or is
seeking unemployment compensation as provided in paragraph (a)(1)(vi) of
this section. The individual's Extended Benefit Account shall be
terminated upon the occurrence of any such week, and the individual
shall have no further right to any balance in that Extended Benefit
Account.
(b) Special Rules. For the purposes of paragraphs (a)(1)(i) and
(a)(1)(ii) of this section, an individual shall be deemed to have
received in the applicable benefit year all of the regular compensation
payable according to the monetary determination, or available to the
individual, as the case may be, even though--
(1) As a result of a pending appeal with respect to wages or
employment or both that were not included in the original monetary
determination with respect to such benefit year, the individual may
subsequently be determined to be entitled to more or less regular
compensation, or
(2) By reason of a provision in the State law that establishes the
weeks of the year in which regular compensation may be paid to the
individual on the basis of wages in seasonal employment--
(i) The individual may be entitled to regular compensation with
respect to future weeks of unemployment in the next season or off
season, as the case may be, but such compensation is not payable with
respect to the week of unemployment for which Extended Benefits are
claimed, and
(ii) The individual is otherwise an exhaustee within the meaning of
this
[[Page 86]]
section with respect to rights to regular compensation during the season
or off season in which that week of unemployment occurs, or
(3) Having established a benefit year, no regular compensation is
payable during such year because wage credits were cancelled or the
right to regular compensation was totally reduced as the result of the
application of a disqualification.
(c) Adjustment of week. If it is subsequently determined as the
result of a redetermination or appeal that an individual is an exhaustee
as of a different week than was previously determined, the individual's
rights to Extended Benefits shall be adjusted so as to accord with such
redetermination or decision.
[53 FR 27937, July 25, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 615.6 Extended Benefits; weekly amount.
(a) Total unemployment. (1) The weekly amount of Extended Benefits
payable to an individual for a week of total unemployment in the
individual's eligibility period shall be the amount of regular
compensation payable to the individual for a week of total unemployment
during the applicable benefit year. If the individual had more than one
weekly amount of regular compensation for total unemployment during such
benefit year, the weekly amount of extended compensation for total
unemployment shall be one of the following which applies as specified in
the applicable State law:
(i) The average of such weekly amounts of regular compensation,
(ii) The last weekly benefit amount of regular compensation in such
benefit year, or
(iii) An amount that is reasonably representative of the weekly
amounts of regular compensation payable during such benefit year.
(2) If the method in paragraph (a)(1)(iii) of this section is
adopted by a State, the State law shall specify how such amount is to be
computed. If the method in paragraph (a)(1)(i) of this section is
adopted by a State, and the amount computed is not an even dollar
amount, the amount shall be raised or lowered to an even dollar amount
as provided by the applicable State law for regular compensation.
(b) Partial and part-total unemployment. The weekly amount of
Extended Benefits payable for a week of partial or part-total
unemployment shall be determined under the provisions of the applicable
State law which apply to regular compensation, computed on the basis of
the weekly amount of Extended Benefits payable for a week of total
unemployment as determined pursuant to paragraph (a) of this section.
Sec. 615.7 Extended Benefits; maximum amount.
(a) Individual account. An Extended Benefit Account shall be
established for each individual determined to be eligible for Extended
Benefits, in the sum of the maximum amount potentially payable to the
individual as computed in accordance with paragraph (b) of this section.
(b) Computation of amount in individual account. (1) The amount
established in the Extended Benefit Account of an individual, as the
maximum amount potentially payable to the individual during the
individual's eligibility period, shall be equal to the lesser of--
(i) 50 percent of the total amount of regular compensation
(including dependents' allowances) payable to the individual during the
individual's applicable benefit year; or
(ii) 13 times the individual's weekly amount of Extended Benefits
payable for a week of total unemployment, as determined pursuant to
Sec. 615.6(a); or
(iii) 39 times the individual's weekly benefit amount referred to in
(ii), reduced by the regular compensation paid (or deemed paid) to the
individual during the individual's applicable benefit year.
(2) If the State law so provides, the amount in the individual's
Extended Benefit Account shall be reduced by the aggregate amount of
additional compensation paid (or deemed paid) to the individual under
such law for prior weeks of unemployment in such benefit year which did
not begin in an Extended Benefit Period.
[[Page 87]]
(c) Changes in accounts. (1) If an individual is entitled to more or
less Extended Benefits as a result of a redetermination or an appeal
which awarded more or less regular compensation or Extended Benefits, an
appropriate change shall be made in the individual's Extended Benefit
Account pursuant to an amended determination of the individual's
entitlement to Extended Benefits.
(2) If an individual who has received Extended Benefits for a week
of unemployment is determined to be entitled to more regular
compensation with respect to such week as the result of a
redetermination or an appeal, the Extended Benefits paid shall be
treated as if they were regular compensation up to the greater amount to
which the individual has been determined to be entitled, and the State
agency shall make appropriate adjustments between the regular and
extended accounts. If the individual is entitled to more Extended
Benefits as a result of being entitled to more regular compensation, an
amended determination shall be made of the individual's entitlement to
Extended Benefits. If the greater amount of regular compensation results
in an increased duration of regular compensation, the individual's
status as an exhaustee shall be redetermined as of the new date of
exhaustion of regular compensation.
(3) If an individual who has received Extended Benefits for a week
of unemployment is determined to be entitled to less regular
compensation as the result of a redetermination or an appeal, and as a
consequence is entitled to less Extended Benefits, any Extended Benefits
paid in excess of the amount to which the individual is determined to be
entitled after the redetermination or decision on appeal shall be
considered an overpayment which the individual shall have to repay on
the same basis and in the same manner that excess payments of regular
compensation are required to be repaid under the applicable State law.
If such decision reduces the duration of regular compensation payable to
the individual, the claim for Extended Benefits shall be backdated to
the earliest date, subsequent to the date when the redetermined regular
compensation was exhausted and within the individual's eligibility
period, that the individual was eligible to file a claim for Extended
Benefits. Any such changes shall be made pursuant to an amended
determination of the individual's entitlement to Extended Benefits.
(d) Reduction because of trade readjustment allowances. Section
233(d) of the Trade Act of 1974 (and section 204(a)(2)(C) of the Act),
requiring a reduction of Extended Benefits because of the receipt of
trade readjustment allowances, shall be applied as follows:
(1) The reduction of Extended Benefits shall apply only to an
individual who has not exhausted his/her Extended Benefits at the end of
the benefit year;
(2) The amount to be deducted is the product of the weekly benefit
amount for Extended Benefits multiplied by the number of weeks for which
trade readjustment allowances were paid (regardless of the amount paid
for any such week) up to the close of the last week that begins in the
benefit year; and
(3) The amount to be deducted shall be deducted from the balance of
Extended Benefits not used as of the close of the last week which begins
in the benefit year.
Sec. 615.8 Provisions of State law applicable to claims.
(a) Particular provisions applicable. Except where the result would
be inconsistent with the provisions of the Act or this part, the terms
and conditions of the applicable State law which apply to claims for,
and the payment of, regular compensation shall apply to claims for, and
the payment of, Extended Benefits. The provisions of the applicable
State law which shall apply to claims for, and the payment of, Extended
Benefits include, but are not limited to:
(1) Claim filing and reporting;
(2) Information to individuals, as appropriate;
(3) Notices to individuals and employers, as appropriate;
(4) Determinations, redeterminations, and appeal and review;
(5) Ability to work and availability for work, except as provided
otherwise in this section;
[[Page 88]]
(6) Disqualifications, including disqualifying income provisions,
except as provided by paragraph (c) of this section;
(7) Overpayments, and the recovery thereof;
(8) Administrative and criminal penalties;
(9) The Interstate Benefit Payment Plan;
(10) The Interstate Arrangement for Combining Employment and Wages,
in accordance with part 616 of this chapter.
(b) Provisions not to be applicable. The State law and regulations
shall specify those of its terms and conditions which shall not be
applicable to claims for, or payment of, Extended Benefits. Among such
terms and conditions shall be at least those relating to--
(1) Any waiting period;
(2) Monetary or other qualifying requirements, except as provided in
Sec. 615.4(b); and
(3) Computation of weekly and total regular compensation.
(c) Terminating disqualifications. A disqualification in a State
law, as to any individual who voluntarily left work, was suspended or
discharged for misconduct, gross misconduct or the commission or
conviction of a crime, or refused an offer of or a referral to work, as
provided in sections 202(a) (4) and (6) of the Act--
(1) As applied to regular benefits which are not sharable, is not
subject to any limitation in sections 202(a) (4) and (6);
(2) As applied to eligibility for Extended Benefits, shall require
that the individual be employed again subsequent to the date of the
disqualification before it may be terminated, even though it may have
been terminated on other grounds for regular benefits which are not
sharable; and if the State law does not also apply this provision to the
payment of what would otherwise be sharable regular benefits, the State
will not be entitled to a payment under the Act and Sec. 615.14 in
regard to such regular compensation; and
(3) Will not apply in regard to eligibility for Extended Benefits in
a subsequent eligibility period.
(d) Classification and determination of job prospects. (1) As to
each individual who files an initial claim for Extended Benefits (or
sharable regular compensation), the State agency shall classify the
individual's prospects for obtaining work in his/her customary
occupation within a reasonably short period, as ``good'' or ``not
good,'' and shall promptly (not later than the end of the week in which
the initial claim is filed) notify the individual in writing of such
classification and of the requirements applicable to the individual
under the provisions of the applicable State law corresponding to
section 202(a)(3) of the Act and this part. Such requirements shall be
applicable beginning with the week following the week in which the
individual is furnished such written notice.
(2) If an individual is thus classified as having good prospects,
but those prospects are not realized by the close of the period the
State law specifies as a reasonably short period, the individual's
prospects will be automatically reclassified as ``not good'' or
classified as ``good'' or ``not good'' depending on the individual's job
prospects as of that date.
(3) Whenever, as part of a determination of an individual's
eligibility for benefits, an issue arises concerning the individual's
failure to apply for or accept an offer of work (sections
202(a)(3)(A)(i) and (F) of the Act and paragraphs (e) and (f) of this
section), or to actively engage in seeking work (sections
202(a)(3)(A)(ii) and (E) of the Act and paragraph (g) of this section),
a written appealable determination shall be made which includes a
finding as to the individual's job prospects at the time the issue
arose. The reasons for allowing or denying benefits in the written
notice of determination shall explain how the individual's job prospects
relate to the decision to allow or deny benefits.
(4) If an individual's job prospects are determined in accordance
with the preceding paragraph (3) to be ``good,'' the suitability of work
will be determined under the standard State law provisions applicable to
claimants for regular compensation which is not sharable; and if
determined to be ``not good,'' the suitability of work will be
determined under the definition of
[[Page 89]]
suitable work in the State law provisions corresponding to sections
202(a)(3) (C) and (D) of the Act and this part. Any determination or
classification of an individual's job prospects is mutually exclusive,
and only one suitable work definition shall be applied to a claimant as
to any failure to accept or apply for work or seek work with respect to
any week.
(e) Requirement of referral to work. (1) The State law shall
provide, as required by section 202(a)(3)(F) of the Act and this part,
that the State Workforce Agency shall refer every claimant for Extended
Benefits to work which is ``suitable work'' as provided in paragraph
(d)(4) of this section, beginning with the week following the week in
which the individual is furnished a written notice of classification of
job prospects as required by paragraphs (d)(1) and (h) of this section.
(2) To make such referrals, the State Workforce Agency shall assure
that each Extended Benefit claimant is registered for work and continues
to be considered for referral to job openings as long as he/she
continues to claim benefits.
(3) In referring claimants to available job openings, the State
Workforce Agency shall apply to Extended Benefit claimants the same
priorities, policies, and judgments as it does to other applicants,
except that it shall not restrict referrals only to work at higher skill
levels, prior rates of pay, customary work, or preferences as to work or
pay for individuals whose prospects of obtaining work in their customary
occupations have been classified as or determined to be ``not good.''
(4) For referral purposes, any work which does not exceed the
individual's capabilities shall be considered suitable work for an
Extended Benefit claimant whose job prospects have been classified as or
determined to be ``not good'', except as modified by this paragraph (e).
(5) For Extended Benefit claimants whose prospects of obtaining work
in their customary occupations have been classified as or determined to
be ``not good'', work shall not be suitable, and referral to a job shall
not be made, if--
(i) The gross average weekly remuneration for the work for any week
does not exceed the sum of the individual's weekly benefit amount plus
any supplemental unemployment benefits (SUB) (as defined in section
501(c)(17)(D) of the Internal Revenue Code of 1986) payable to the
individual,
(ii) The work is not offered in writing or is not listed with the
State employment service,
(iii) The work pays less than the higher of the minimum wage set in
section 6(a)(1) of the Fair Labor Standards Act of 1938, without regard
to any exemption, or any applicable State or local minimum wage, or
(iv) Failure to accept or apply for the work would not result in a
denial of compensation under the provisions of the applicable State law
as defined in Sec. 615.2(o)(7).
(6) In addition, if the State Workforce Agency classifies or
determines that an individual's prospects for obtaining work in his/her
customary occupation within a reasonably short period are ``good,''
referral shall not be made to a job if such referral would not be made
under the State law provisions applicable to claimants for regular
benefits which are not sharable, and such referrals shall be limited to
work which the individual is required to make a ``systematic and
sustained effort'' to search for as defined in Sec. 615.2(o)(8).
(7) For the purposes of the foregoing paragraphs of this paragraph
(e), State law applies regarding whether members of labor organizations
shall be referred to nonunion work in their customary occupations.
(8) If the State law does not also apply this paragraph (e) to
individuals who claim what would otherwise be sharable regular
compensation, the State will not be entitled to payment under the Act
and Sec. 615.14 in regard to such regular compensation.
(f) Refusal of work. (1) The State law shall provide, as required by
section 202(a)(3)(A)(i) of the Act and this part, that if an individual
who claims Extended Benefits fails to accept an offer of work or fails
to apply for work to which he/she was referred by the State Workforce
Agency--
(i) If the individual's prospects for obtaining work in his/her
customary occupation within a reasonably short
[[Page 90]]
period are determined to be ``good,'' the State agency shall determine
whether the work is suitable under the standard State law provisions
which apply to claimants for regular compensation which is not sharable,
and if determined to be suitable the individual shall be ineligible for
Extended Benefits for the week in which the individual fails to apply
for or accept an offer of suitable work and thereafter until the
individual is employed in at least four weeks with wages from such
employment totalling not less than four times the individual's weekly
benefit amount, as provided by the applicable State law; or
(ii) If the individual's prospects for obtaining work in his/her
customary occupation are determined to be ``not good,'' the State agency
shall determine whether the work is suitable under the applicable State
law provisions corresponding to sections 202(a)(3) (C) and (D) of the
Act and paragraphs (e)(5) and (f)(2) of this section, and if determined
to be suitable the individual shall be ineligible for Extended Benefits
for the week in which the individual fails to apply for or accept an
offer of suitable work and thereafter until the individual is employed
in at least four weeks with wages from such employment totalling not
less than four times the individual's weekly benefit amount, as provided
by the applicable State law.
(2) For an individual whose prospects of obtaining work in his/her
customary occupation within the period specified by State law are
classified or determined to be ``not good,'' the term ``suitable work''
shall mean any work which is within the individual's capabilities,
except that work shall not be suitable if--
(i) The gross average weekly remuneration for the work for any week
does not exceed the sum of the individual's weekly benefit amount plus
any supplemental unemployment benefits (SUB) (as defined in section
501(c)(17)(D) of the Internal Revenue Code of 1986) payable to the
individual,
(ii) The work is not offered in writing or is not listed with the
State employment service,
(iii) The work pays less than the higher of the minimum wage set in
section 6(a)(1) of the Fair Labor Standards Act of 1938, without regard
to any exemption, or any applicable State or local minimum wage, or
(iv) Failure to accept or apply for the work would not result in a
denial of compensation under the provisions of the applicable State law
as defined in Sec. 615.2(o)(7).
(3) For the purposes of the foregoing paragraphs of this paragraph
(f), State law applies regarding whether members of labor organizations
shall be referred to nonunion work in their customary occupations.
(4) If the State law does not also apply this paragraph (f) to
individuals who claim what would otherwise be sharable regular
compensation, the State will not be entitled to payment under the Act
and Sec. 615.14 in regard to such regular compensation.
(g) Actively seeking work. (1) The State law shall provide, as
required by sections 202(a)(3) (A)(ii) and (E) of the Act and this part,
that an individual who claims Extended Benefits shall be required to
make a systematic and sustained effort (as defined in Sec. 615.2(o)(8))
to search for work which is ``suitable work'' as provided in paragraph
(d)(4) of this section, throughout each week beginning with the week
following the week in which the individual is furnished a written notice
of classification of job prospects as required by paragraphs (d)(1) and
(h) of this section, and to furnish to the State agency with each claim
tangible evidence of such efforts.
(2) If the individual fails to thus search for work, or to furnish
tangible evidence of such efforts, he/she shall be ineligible for
Extended Benefits for the week in which the failure occurred and
thereafter until the individual is employed in at least four weeks with
wages from such employment totalling not less than four times the
individual's weekly benefit amount, as provided by the applicable State
law.
(3)(i) A State law may provide that eligibility for Extended
Benefits be determined under the applicable provisions of State law for
regular compensation which is not sharable, without regard to the active
search provisions otherwise applicable in paragraph (g)(1) of this
section, for any individual
[[Page 91]]
who fails to engage in a systematic and sustained search for work
throughout any week because such individual is--
(A) Serving on jury duty, or
(B) Hospitalized for treatment of an emergency or life-threatening
condition.
(ii) The conditions in (i) (A) and (B) must be applied to
individuals filing claims for Extended Benefits in the same manner as
applied to individuals filing claims for regular compensation which is
not sharable compensation.
(4) For the purposes of the foregoing paragraphs of this paragraph
(g), State law applies regarding whether members of labor organizations
shall be required to seek nonunion work in their customary occupations.
(5) If the State law does not also apply this paragraph (g) to
individuals who claim what would otherwise be sharable regular
compensation, the State will not be entitled to payment under the Act
and Sec. 615.14 in regard to such regular compensation.
(h) Information to claimants. The State agency or State Workforce
Agency, as applicable, shall assure that each Extended Benefit claimant
(and claimant for sharable regular compensation) is informed in
writing--
(1) Of the State agency's classification of his/her prospects for
finding work in his/her customary occupation within the time set out in
paragraph (d) as ``good'' or ``not good,''
(2) What kind of jobs he/she may be referred to, depending on the
classification of his/her job prospects,
(3) What kind of jobs he/she must be actively engaged in seeking
each week depending on the classification of his/her job prospects, and
what tangible evidence of such search must be furnished to the State
agency with each claim for benefits, and
(4) The resulting disqualification if he/she fails to apply for work
to which referred, or fails to accept work offered, or fails to actively
engage in seeking work or to furnish tangible evidence of such search
for each week for which Extended Benefits or sharable regular benefits
are claimed, beginning with the week following the week in which such
information is furnished in writing to the individual.
[53 FR 27937, July 25, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 615.9 Restrictions on entitlement.
(a) Disqualifications. If the week of unemployment for which an
individual claims Extended Benefits is a week to which a
disqualification for regular compensation applies, including a reduction
because of the receipt of disqualifying income, or would apply but for
the fact that the individual has exhausted all rights to such
compensation, the individual shall be disqualified in the same degree
from receipt of Extended Benefits for that week.
(b) Additional compensation. No individual shall be paid additional
compensation and Extended Benefits with respect to the same week. If
both are payable by a State with respect to the same week, the State law
may provide for the payment of Extended Benefits instead of additional
compensation with respect to the week. If Extended Benefits are payable
to an individual by one State and additional compensation is payable to
the individual for the same week by another State, the individual may
elect which of the two types of compensation to claim.
(c) Interstate claims. An individual who files claims for Extended
Benefits under the Interstate Benefit Payment Plan, in a State which is
not in an Extended Benefit Period for the week(s) for which Extended
Benefits are claimed, shall not be paid more than the first two weeks
for which he/she files such claims.
(d) Other restrictions. The restrictions on entitlement specified in
this section are in addition to other restrictions in the Act and this
part on eligibility for and entitlement to Extended Benefits.
Sec. 615.10 Special provisions for employers.
(a) Charging contributing employers. (1) Section 3303(a)(1) of the
Internal Revenue Code of 1986 (26 U.S.C. 3303(a)(1)) does not require
that Extended Benefits paid to an individual be charged to the
experience rating accounts of employers.
[[Page 92]]
(2) A State law may, however, consistently with section 3303(a)(1),
require the charging of Extended Benefits paid to an individual; and if
it does, it may provide for charging all or any portion of such
compensation paid.
(3) Sharable regular compensation must be charged as all other
regular compensation is charged under the State law.
(b) Payments by reimbursing employers. If an employer is reimbursing
the State unemployment fund in lieu of paying contributions pursuant to
the requirements of State law conforming with sections 3304(a)(6)(B) and
3309(a)(2) of the Internal Revenue Code of 1986 (26 U.S.C. 3304(a)(6)(B)
and 3309(a)(2)), the State law shall require the employer to reimburse
the State unemployment fund for not less than 50 percent of any sharable
compensation that is attributable under the State law to service with
such employer; and as to any compensation which is not sharable
compensation under Sec. 615.14, the State law shall require the
employer to reimburse the State unemployment fund for 100 percent,
instead of 50 percent, of any such compensation paid.
Sec. 615.11 Extended Benefit Periods.
(a) Beginning date. Except as provided in paragraph (d) of this
section, an Extended Benefit Period shall begin in a State on the first
day of the third calendar week after a week for which there is a State
``on'' indicator in that State.
(b) Ending date. Except as provided in paragraph (c) of this
section, an Extended Benefit Period in a State shall end on the last day
of the third week after the first week for which there is a State
``off'' indicator in that State.
(c) Duration. An Extended Benefit Period which becomes effective in
any State shall continue in effect for not less than 13 consecutive
weeks.
(d) Limitation. No Extended Benefit Period may begin in any State by
reason of a State ``on'' indicator before the 14th week after the ending
of a Prior Extended Benefit Period with respect to such State.
Sec. 615.12 Determination of ``on'' and ``off'' indicators.
(a) Standard State indicators. (1) There is a State ``on'' indicator
in a State for a week if the head of the State agency determines, in
accordance with this section, that, for the period consisting of that
week and the immediately preceding 12 weeks, the rate of insured
unemployment (not seasonally adjusted) under the State law--
(i) Equalled or exceeded 120 percent of the average of such rates
for the corresponding 13-week periods ending in each of the preceding
two calendar years, and
(ii) Equalled or exceeded 5.0 percent.
(2) There is a State ``off'' indicator in a State for a week if the
head of the State agency determines, in accordance with this section,
that, for the period consisting of that week and the immediately
preceding 12 weeks, the rate of insured unemployment (not seasonally
adjusted) under the State law--
(i) Was less than 120 percent of the average of such rates for the
corresponding 13 week periods ending in each of the preceding two
calendar years, or
(ii) Was less than 5.0 percent.
(3) The standard State indicators in this paragraph (a) shall apply
to weeks beginning after September 25, 1982.
(b) Optional State indicators. (1)(i) A State may, in addition to
the State indicators in paragraph (a) of this section, provide by its
law that there shall be a State ``on'' indicator in the State for a week
if the head of the State agency determines, in accordance with this
section, that, for the period consisting of that week and the
immediately preceding 12 weeks, the rate of insured unemployment (not
seasonally adjusted) under the State law equalled or exceeded 6.0
percent even though it did not meet the 120 percent factor required
under paragraph (a).
(ii) A State which adopts the optional State indicator must also
provide that, when it is in an Extended Benefit Period, there will not
be an ``off'' indicator until (A) the State rate of insured unemployment
is less than 6.0 percent, and (B) either its rate of insured
unemployment is less than 5.0 percent or is less than 120 percent of
[[Page 93]]
the average of such rates for the corresponding 13-week periods ending
in each of the preceding two calendar years.
(2) The optional State indicators in this paragraph (b) shall apply
to weeks beginning after September 25, 1982.
(c) Computation of rate of insured unemployment--(1) Equation. Each
week the State agency head shall calculate the rate of insured
unemployment under the State law (not seasonally adjusted) for purposes
of determining the State ``on'' and ``off'' and ``no change''
indicators. In making such calculations the State agency head shall use
a fraction, the numerator of which shall be the weekly average number of
weeks claimed in claims filed (not seasonally adjusted) in the State in
the 13-week period ending with the week for which the determination is
made, and the denominator of which shall be the average monthly
employment covered by the State law for the first four of the last six
calendar quarters ending before the close of the 13-week period. The
quotient obtained is to be computed to four decimal places, and is not
otherwise rounded, and is to be expressed as a percentage by multiplying
the resultant decimal fraction by 100.
(2) Counting weeks claimed. To determine the average number of weeks
claimed in claims filed to serve as the numerator under paragraph
(c)(1), the State agency shall include claims for all weeks for regular
compensation, including claims taken as agent State under the Interstate
Benefit Payment Plan. It shall exclude claims--
(i) For Extended Benefits under any State law,
(ii) For additional compensation under any State law, and
(iii) Under any Federal law except joint claims which combine
regular compensation and compensation payable under 5 U.S.C. chapter 85.
(3) Method of computing the State 120 percent factor. The rate of
insured unemployment for a current 13-week period shall be divided by
the average of the rates of insured unemployment for the corresponding
13-week periods in each of the two preceding calendar years to determine
whether the rate is equal to 120 percent of the average rate for the two
years. The quotient obtained shall be computed to four decimal places
and not otherwise rounded, and shall be expressed as a percentage by
multiplying the resultant decimal fraction by 100. The average of the
rates for the corresponding 13-week periods in each of the two preceding
calendar years shall be one-half the sum of such rates computed to four
decimal places and not otherwise rounded. To determine which are the
corresponding weeks in the preceding years--
(i) The weeks shall be numbered starting with week number 1 as the
first week ending in each calendar year.
(ii) The 13-week period ending with any numbered week in the current
year shall correspond to the period ending with that same numbered week
in each preceding year.
(iii) When that period in the current year ends with week number 53,
the corresponding period in preceding years shall end with week number
52 if there is no week number 53.
(d) Amendment of State indicator rates. (1) Because figures used for
determinations under this section may contain errors and because it is
not practical to apply any correction in a State ``on'' or ``off'' or
``no change'' indicator retroactively either to recover amounts paid or
to adjudicate claims for past periods in which claimants failed to make
the required active search for work, any determination by the head of a
State agency of an ``on'' or ``off'' or ``no change'' indicator shall
not be corrected more than three weeks after the close of the week to
which it applies. If any figure used in the computation of a rate of
insured unemployment is later found to be wrong, the correct figure
shall be used to redetermine the rate of insured unemployment and of the
120 percent factor for that week and all subsequent weeks, but no
determination of previous ``on'' or ``off'' or ``no change'' indicator
shall be affected unless the redetermination is made within the time the
indicator may be corrected under the first sentence of this paragraph
(d)(1). Any change hereunder shall be subject to the concurrence of the
Department as provided in paragraph (e) of this section.
(2) Any determination of the rate of insured unemployment and its
effect
[[Page 94]]
on an ``on'' or ``off'' or ``no change'' indicator may be challenged by
appeal or by other proceedings, as shall be provided by State law, but
the implementation of any change in the indicator from one week to
another shall not be stayed or postponed. In a hearing on any such
challenge the issue may be limited to the accuracy of the determination
of the rate of insured unemployment. If an error in that rate affecting
the ``on'' or ``off'' or ``no change'' indicator is discovered in such a
hearing or other proceeding, its retroactive effect shall be limited as
provided in paragraph (d)(1).
(e) Notice to Secretary. Within 10 calendar days after the end of
any week with respect to which the head of a State agency has determined
that there is an ``on,'' or ``off,'' or ``no change'' indicator in the
State, the head of the State agency shall notify the Department of the
determination. The notice shall state clearly the State agency head's
determination of the specific week for which there is a State ``on'' or
``off'' or ``no change'' indicator. The notice shall include also the
State agency head's findings supporting the determination, with a
certification that the findings are made in accordance with the
requirements of this Sec. 615.15. Determinations and findings made as
provided in this section shall be accepted by the Department, but the
head of the State agency shall comply with such provisions as the
Department may find necessary to assure the correctness and verification
of notices given under this paragraph. A notice shall not become final
for purposes of the Act and this part until such notice is accepted by
the Department.
Sec. 615.13 Announcement of the beginning and ending of Extended
Benefit Periods.
(a) State indicators. Upon receipt of the notice required by Sec.
615.12(e) which is acceptable to the Department, the Department shall
publish in the Federal Register a notice of the State agency head's
determination that there is an ``on'' or an ``off'' indicator in the
State, as the case may be, the name of the State and the beginning or
ending of the Extended Benefit Period, whichever is appropriate. The
Department shall also notify appropriate news media, the heads of all
other State agencies, and the Regional Administrators of the Employment
and Training Administration of the State agency head's determination of
such State ``on'' or ``off'' indicator and of its effect.
(b) Publicity by State. Whenever a State agency head determines that
there is an ``on'' indicator in the State by reason of which an Extended
Benefit Period will begin in the State, or an ``off'' indicator by
reason of which an Extended Benefit Period in the State will end, the
head of the State agency shall promptly announce the determination
through appropriate news media in the State and notify the Department in
accordance with Sec. 615.12(e). Such announcement shall include the
beginning or ending date of the Extended Benefit Period, whichever is
appropriate. In the case of an Extended Benefit Period that is about to
begin, the announcement shall describe clearly the unemployed
individuals who may be eligible for Extended Benefits during the period,
and in the case of an Extended Benefit Period that is about to end, the
announcement shall also describe clearly the individuals whose
entitlement to Extended Benefits will be terminated.
(c) Notices to individuals. (1) Whenever there has been a
determination that an Extended Benefit Period will begin in a State, the
State agency shall provide prompt written notice of potential
entitlement to Extended Benefits to each individual who has established
a benefit year in the State that will not end prior to the beginning of
the Extended Benefit Period, and who exhausted all rights under the
State law to regular compensation before the beginning of the Extended
Benefit Period.
(2) The State agency shall provide such notice promptly to each
individual who begins to claim sharable regular benefits or who exhausts
all rights under the State law to regular compensation during an
Extended Benefit Period, including exhaustion by reason of the
expiration of the individual's benefit year.
(3) The notices required by paragraphs (c) (1) and (2) of this
section shall describe those actions required of
[[Page 95]]
claimants for sharable regular compensation and Extended Benefits and
those disqualifications which apply to such benefits which are different
from those applicable to other claimants for regular compensation which
is not sharable.
(4) Whenever there has been a determination that an Extended Benefit
Period will end in a State, the State agency shall provide prompt
written notice to each individual who is currently filing claims for
Extended Benefits of the forthcoming end of the Extended Benefit Period
and its effect on the individual's right to Extended Benefits.
Sec. 615.14 Payments to States.
(a) Sharable compensation. (1) The Department shall promptly upon
receipt of a State's report of its expenditures for a calendar month
reimburse the State in the amount of the sharable compensation the State
is entitled to receive under the Act and this part.
(2) The Department may instead advance to a State for any period not
greater than one day the amount the Department estimates the State will
be entitled to be paid under the Act and this part for that period.
(3) Any payment to a State under this section shall be based upon
the Department's determination of the amount the State is entitled to be
paid under the Act and this part, and such amount shall be reduced or
increased, as the case may be, by any amount by which the Department
finds that a previous payment was greater or less than the amount that
should have been paid to the State.
(4) Any payment to a State pursuant to this paragraph (a) shall be
made by a transfer from the extended unemployment compensation account
in the Unemployment Trust Fund to the account of the State in such Fund,
in accordance with section 204(e) of the Act.
(b) Payments not to be made to States. Because a State law must
contain provisions fully consistent with sections 202 and 203 of the
Act, the Department shall make no payment under paragraph (a) of this
section, whether or not the State is certified under section 3304(c) of
the Internal Revenue Code of 1986--
(1) In respect of any regular or extended compensation paid to any
individual for any week if the State does not apply--
(i) The provisions of the State law required by section 202(a)(3)
and this part, relating to failure to accept work offered or to apply
for work or to actively engage in seeking work or the provisions of
State law required by section 202(a)(4) and this part, relating to
terminating a disqualification;
(ii) The provisions of the State law required by section 202(a)(5)
and this part, relating to qualifying employment; or
(2) In respect of any regular or extended compensation paid to any
individual for any week which was not payable by reason of the provision
of the State law required by section 202(c) and this part as determined
by the Department with regard to each State.
(c) Payments not to be reimbursed. The Department shall make no
payment under paragraph (a) of this section, whether or not the State is
certified under section 3304(c) of the Internal Revenue Code of 1986, in
respect of any regular or extended compensation paid under a State law--
(1) As provided in section 204(a)(1) of the Act and this part, if
the payment made was not sharable extended compensation or sharable
regular compensation;
(2) As provided in section 204(a)(2)(A) of the Act, if the State is
entitled to reimbursement for the payment under the provisions of any
Federal law other than the Act;
(3) As provided in section 204(a)(2)(B) of the Act, if for the first
week in an individual's eligibility period with respect to which
Extended Benefits or sharable regular benefits are paid to the
individual and the State law provides for the payment (at any time or
under any circumstances) of regular compensation to any individual for
the first week of unemployment in any such individual's benefit year;
except that--
(i) In the case of a State law which is changed so that regular
compensation is not paid at any time or under any circumstances with
respect to the first week of unemployment in any individual's benefit
year, this paragraph (c)(3)
[[Page 96]]
shall not apply to any week which begins after the effective date of
such change in the State law; and
(ii) In the case of a State law which is changed so that regular
compensation is paid at any time or under any circumstances with respect
to the first week of unemployment in any individual's benefit year, this
paragraph (c)(3) shall apply to all weeks which begin after the
effective date of such change in the State law;
(4) As provided in section 204(a)(2)(C) of the Act and this part,
for any week with respect to which Extended Benefits are not payable
because of the payment of trade readjustment allowances, as provided in
section 233(d) of the Trade Act of 1974, and Sec. 615.7(d).
(5) As provided in section 204(a)(2)(D) of the Act and this part, if
the State does not provide for a benefit structure under which benefits
are rounded down to the next lower dollar amount, for the 50 percent
Federal share of the amount by which sharable regular or Extended
Benefits paid to any individual exceeds the nearest lower full dollar
amount.
(6) As provided in section 204(a)(3) of the Act, to the extent that
such compensation is based upon employment and wages in service
performed for governmental entities or instrumentalities to which
section 3306(c)(7) of the Internal Revenue Code of 1986 (26 U.S.C.
3306(c)(7)) applies, in the proportion that wages for such service in
the base period bear to the total base period wages;
(7) If the payment made was not sharable extended compensation or
sharable regular compensation because the payment was not consistent
with the requirements of--
(i) Section 202(a)(3) of the Act, and Sec. 615.8 (e), (f), or (g);
(ii) Section 202(a)(4) of the Act, and Sec. 615.8(c); or
(iii) Section 202(a)(5) of the Act, and Sec. 615.4(b);
(8) If the payment made was not sharable extended compensation or
sharable regular compensation because there was not in effect in the
State an Extended Benefit Period in accord with the Act and this part;
or
(9) For any week with respect to which the claimant was either
ineligible for or not entitled to the payment.
(d) Effectuating authorization for reimbursement. (1) If the
Department believes that reimbursement should not be authorized with
respect to any payments made by a State that are claimed to be sharable
compensation paid by the State, because the State law does not contain
provisions required by the Act and this part, or because such law is not
interpreted or applied in rules, regulations, determinations or
decisions in a manner that is consistent with those requirements, the
Department may at any time notify the State agency in writing of the
Department's view. The State agency shall be given an opportunity to
present its views and arguments if desired.
(2) The Department shall thereupon decide whether the State law
fails to include the required provisions or is not interpreted and
applied so as to satisfy the requirements of the Act and this part. If
the Department finds that such requirements are not met, the Department
shall notify the State agency of its decision and the effect thereof on
the State's entitlement to reimbursement under this section and the
provisions of section 204 of the Act.
(3) Thereafter, the Department shall not authorize any payment under
paragraph (a) of this section in respect of any sharable regular or
extended compensation if the State law does not contain all of the
provisions required by sections 202 and 203 of the Act and this part, or
if the State law, rules, regulations, determinations or decisions are
not consistent with such requirements, or which would not have been
payable if the State law contained the provisions required by the Act
and this part or if the State law, rules, regulations, determinations or
decisions had been consistent with such requirements. Loss of
reimbursement for such compensation shall begin with the date the State
law was required to contain such provisions, and shall continue until
such time as the Department finds that such law, rules and regulations
have been revised or the interpretations followed pursuant to such
determinations and decisions have been overruled and payments are made
or
[[Page 97]]
denied so as to accord with the Federal law requirements of the Act and
this part, but no reimbursement shall be authorized with respect to any
payment that did not fully accord with the Act and this part.
(4) A State agency may request reconsideration of a decision issued
pursuant to paragraph (d)(2) above, within 10 calendar days of the date
of such decision, and shall be given an opportunity to present views and
arguments if desired.
(5) Concurrence of the Department in any State law provision, rule,
regulation, determination or decision shall not be presumed from the
absence of notice issued pursuant to this section or from a
certification of the State issued pursuant to section 3304(c) of the
Internal Revenue Code of 1986.
(6) Upon finding that a State has made payments for which it claims
reimbursement that are not consistent with the Act or this part, such
claim shall be denied; and if the State has already been paid such claim
in advance or by reimbursement, it shall be required to repay the full
amount to the Department. Such repayment may be made by transfer of
funds from the State's account in the Unemployment Trust Fund to the
Extended Unemployment Compensation Account in the Fund, or by offset
against any current advances or reimbursements to which the State is
otherwise entitled, or the amount repayable may be recovered for the
Extended Unemployment Compensation Account by other means and from any
other sources that may be available to the United States or the
Department.
(e) Compensation under Federal unemployment compensation programs.
The Department shall promptly reimburse each State which has paid
sharable compensation based on service covered by the UCFE and UCX
Programs (parts 609 and 614 of this chapter, respectively) pursuant to 5
U.S.C. chapter 85, an amount which represents the full amount of such
sharable compensation paid under the State law, or may make advances to
the State. Such amounts shall be paid from the Federal Employees
Compensation Account established for those programs, rather than from
the Extended Unemployment Compensation Account.
(f) Combined-wage claims. If an individual was paid benefits under
the Interstate Arrangement for Combining Employment and Wages (part 616
of this chapter) any payment required by paragraph (a) of this section
shall be made to the States which contributed the wage credits.
(g) Interstate claims. Where sharable compensation is paid to an
individual under the provisions of the Interstate Benefit Payment Plan,
any payment required by paragraph (a) of this section shall be made only
to the liable State.
[53 FR 27937, July 25, 1988, as amended at 71 FR 35514, June 21, 2006]
Sec. 615.15 Records and reports.
(a) General. State agencies shall furnish to the Secretary such
information and reports and make such studies as the Secretary decides
are necessary or appropriate for carrying out the purposes of the Act
and this part.
(b) Recordkeeping. Each State agency will make and maintain records
pertaining to the administration of the Extended Benefit Program as the
Department requires, and will make all such records available for
inspection, examination and audit by such Federal officials or employees
as the Secretary or the Department may designate or as may be required
by law.
(c) Weekly report of Extended Benefit data. Each State shall file
with the Department within 10 calendar days after the end of each
calendar week a weekly report entitled ETA 539, Extended Benefit Data.
The report shall include:
(1) The data reported on the form ETA 539 for the week ending
(date). Week-ending dates shall always be the Saturday ending date of
the calendar week beginning at 12:01 a.m. Sunday and ending 12:00 p.m.
Saturday.
(2)(i) The number of continued weeks claimed for regular
compensation in claims filed during the week ending (date). The report
shall include intrastate continued weeks claimed and interstate
continued weeks claimed (taken as agent State) but shall exclude
interstate continued weeks claimed (received as liable State) and
continued weeks claimed for regular
[[Page 98]]
compensation filed solely under 5 U.S.C. chapter 85; and
(ii) The report of the number of continued weeks claimed filed in
the State for regular compensation shall not be adjusted for
seasonality.
(3) The average weekly number of weeks claimed in claims filed in
the most recent calendar week and the immediately preceding 12 calendar
weeks.
(4) The rate of insured unemployment for the current 13-week period.
(5) The average of the rates of insured unemployment in
corresponding 13-week periods in the preceding two years.
(6) The current rate of insured unemployment as a percentage of the
average of the rates in the corresponding 13-week periods in the
preceding two years.
(7) The 12 month average monthly employment covered by the State law
for the first 4 of the last 6 complete calendar quarters ending prior to
the end of the last week of the current 13-week period to which the
insured unemployment data relate. Such covered employment shall exclude
Federal civilian and military employment covered by 5 U.S.C. chapter 85.
(8) The date that a State Extended Benefit Period begins or ends, or
a report that there is no change in the existing Extended Benefit Period
status.
(d) Methodology. The State agency head shall submit to the
Department, for approval, the method used to identify and select the
weeks claimed which are used in the determination of an ``on'' or
``off'' or ``no change'' indicator. Any change proposed in the method of
identification and selection of such weeks claimed constitutes a new
plan which must be submitted to and approved by the Department prior to
implementing the new plan.
(Approved by the Office of Management and Budget under control number
1205-0028)
PART 616_INTERSTATE ARRANGEMENT FOR COMBINING EMPLOYMENT AND WAGES
--Table of Contents
Sec.
616.1 Purpose of arrangement.
616.2 Consultation with the State agencies.
616.3 Interstate cooperation.
616.4 Rules, regulations, procedures, forms--resolution of
disagreements.
616.6 Definitions.
616.7 Election to file a Combined-Wage Claim.
616.8 Responsibilities of the paying State.
616.9 Responsibilities of transferring States.
616.10 Reuse of employment and wages.
616.11 Amendment of arrangement.
Authority: 26 U.S.C. 3304(a)(9)(B); Secretary's Order No. 3-2007,
Apr. 3, 2007 (72 FR 15907).
Source: 36 FR 24992, Dec. 28, 1971, unless otherwise noted.
Sec. 616.1 Purpose of arrangement.
This arrangement is approved by the Secretary under the provisions
of section 3304(a)(9)(B) of the Federal Unemployment Tax Act to
establish a system whereby an unemployed worker with covered employment
or wages in more than one State may combine all such employment and
wages in one State, in order to qualify for benefits or to receive more
benefits.
Sec. 616.2 Consultation with the State agencies.
As required by section 3304(a)(9)(B), this arrangement has been
developed in consultation with the State unemployment compensation
agencies. For purposes of such consultation in its formulation and any
future amendment the Secretary recognizes, as agents of the State
agencies, the duly designated representatives of the National
Association of State Workforce Agencies (NASWA).
[36 FR 24992, Dec. 28, 1971, as amended at 71 FR 35514, June 21, 2006]
Sec. 616.3 Interstate cooperation.
Each State agency will cooperate with every other State agency by
implementing such rules, regulations, and procedures as may be
prescribed for the operation of this arrangement. Each State agency
shall identify the paying and the transferring State with respect to
Combined-Wage Claims filed in its State.
Sec. 616.4 Rules, regulations, procedures, forms--resolution of
disagreements.
All State agencies shall operate in accordance with such rules,
regulations, and procedures, and shall use
[[Page 99]]
such forms, as shall be prescribed by the Secretary in consultation with
the State unemployment compensation agencies. All rules, regulations,
and standards prescribed by the Secretary with respect to intrastate
claims will apply to claims filed under this arrangement unless they are
clearly inconsistent with the arrangement. The Secretary shall resolve
any disagreement between State agencies concerning the operation of the
arrangement, with the advice of the duly designated representatives of
the State agencies.
Sec. 616.6 Definitions.
These definitions apply for the purpose of this arrangement and the
procedures issued to effectuate it.
(a) State. ``State'' includes the States of the United States of
America, the District of Columbia, the Commonwealth of Puerto Rico, and
the Virgin Islands.
(b) State agency. The agency which administers the unemployment
compensation law of a State.
(c) Combined-Wage Claim. A claim filed under this arrangement.
(d) Combined-Wage Claimant. A claimant who has covered wages under
the unemployment compensation law of more than one State and who has
filed a claim under this arrangement.
(e) Paying State. A single State against which the claimant files a
Combined-Wage Claim, if the claimant has wages and employment in that
State's base period(s) and the claimant qualifies for unemployment
benefits under the unemployment compensation law of that State using
combined wages and employment.
(f) Transferring State. A State in which a Combined-Wage Claimant
had covered employment and wages in the base period of a paying State,
and which transfers such employment and wages to the paying State for
its use in determining the benefit rights of such claimant under its
law.
(g) Employment and wages. ``Employment'' refers to all services
which are covered under the unemployment compensation law of a State,
whether expressed in terms of weeks of work or otherwise. ``Wages''
refers to all remuneration for such employment.
(h) Secretary. The Secretary of Labor of the United States.
(i) Base period and benefit year. The base period and benefit year
applicable under the unemployment compensation law of the paying State.
[36 FR 24992, Dec. 28, 1971, as amended at 39 FR 45215, Dec. 31, 1974;
43 FR 2625, Jan. 17, 1978; 71 FR 35514, June 21, 2006; 73 FR 63072, Oct.
23, 2008]
Sec. 616.7 Election to file a Combined-Wage Claim.
(a) Any unemployed individual who has had employment covered under
the unemployment compensation law of two or more States, whether or not
the individual is monetarily qualified under one or more of them, may
elect to file a Combined-Wage Claim. The individual may not so elect,
however, if the individual has established a benefit year under any
State or Federal unemployment compensation law and:
(1) The benefit year has not ended, and
(2) The individual still has unused benefit rights based on such
benefit year. \1\
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\1\ The Federal-State Extended Unemployment Compensation Act of
1970, title II, Public Law 91-373, section 202(a)(1), limits the payment
of extended benefits with respect to any week to individuals who have no
rights to regular compensation with respect to such week under any State
unemployment compensation law or to compensation under any other Federal
law and in certain other instances. This provision precludes any
individual from receiving any Federal-State extended benefits with
respect to any week for which the individual is eligible to receive
regular benefits based on a Combined Wage Claim. (See section 5752, part
V of the Employment Security Manual.)
---------------------------------------------------------------------------
(b) For the purposes of this arrangement, a claimant will not be
considered to have unused benefit rights based on a benefit year which
the claimant has established under a State or Federal unemployment
compensation law if:
(1) The claimant has exhausted his/her rights to all benefits based
on such benefit year; or
(2) The claimant's rights to such benefits have been postponed for
an indefinite period or for the entire period in which benefits would
otherwise be payable; or
[[Page 100]]
(3) Benefits are affected by the application of a seasonal
restriction.
(c) If an individual elects to file a Combined-Wage Claim, all
employment and wages in all States in which the individual worked during
the base period of the paying State must be included in such combining,
except employment and wages which are not transferrable under the
provisions of Sec. 616.9(b).
(d) A Combined-Wage Claimant may withdraw his/her Combined-Wage
Claim within the period prescribed by the law of the paying State for
filing an appeal, protest, or request for redetermination (as the case
may be) from the monetary determination of the Combined-Wage Claim,
provided the claimant either:
(1) Repays in full any benefits paid to him thereunder, or
(2) Authorizes the State(s) against which the claimant files a
substitute claim(s) for benefits to withhold and forward to the paying
State a sum sufficient to repay such benefits.
(e) If the Combined-Wage Claimant files his/her claim in a State
other than the paying State, the claimant shall do so pursuant to the
Interstate Benefit Payment Plan.
(f) If a State denies a Combined-Wage Claim, it must inform the
claimant of the option to file in another State in which the claimant
has wages and employment during that State's base period(s).
[36 FR 24992, Dec. 28, 1971, as amended at 71 FR 35514, 35515, June 21,
2006; 73 FR 63072, Oct. 23, 2008]
Sec. 616.8 Responsibilities of the paying State.
(a) Transfer of employment and wages--payment of benefits. The
paying State shall request the transfer of a Combined-Wage Claimant's
employment and wages in all States during its base period, and shall
determine the claimant's entitlement to benefits (including additional
benefits, extended benefits and dependents' allowances when applicable)
under the provisions of its law based on employment and wages in the
paying State, and all such employment and wages transferred to it
hereunder. The paying State shall apply all the provisions of its law to
each determination made hereunder, except that the paying State may not
determine an issue which has previously been adjudicated by a
transferring State. Such exception shall not apply, however, if the
transferring State's determination of the issue resulted in making the
Combined-Wage Claim possible under Sec. 616.7(b)(2). If the paying
State fails to establish a benefit year for the Combined-Wage Claimant,
or if the claimant withdraws his/her claim as provided herein, it shall
return to each transferring State all employment and wages thus unused.
(b) Notices of determination. The paying State shall give to the
claimant a notice of each of its determinations on his/her Combined-Wage
Claim that he/she is required to receive under the Secretary's Claim
Determinations Standard and the contents of such notice shall meet such
Standard. When the claimant is filing his/her Combined-Wage Claims in a
State other than the paying State, the paying State shall send a copy of
each such notice to the local office in which the claimant filed such
claims.
(c) Redeterminations. (1) Redeterminations may be made by the paying
State in accordance with its law based on additional or corrected
information received from any source, including a transferring State,
except that such information shall not be used as a basis for changing
the paying State if benefits have been paid under the Combined-Wage
Claim.
(2) When a determination is made, as provided in paragraph (a) of
this section, which suspends the use of wages earned in employment with
an educational institution during a prescribed period between successive
academic years or terms or other periods as prescribed in the law of the
paying State in accordance with section 3304(a)(6)(A)(i)-(iv) of the
Internal Revenue Code of 1986, the paying State shall furnish each
transferring State involved in the combined-Wage Claim an adjusted
determination used to recompute each State's proportionate share of any
charges that may accumulate for benefits paid during the period of
suspended use of school wages. Wages which are suspended shall be
retained by the paying State for possible future reinstatement to the
Combined-
[[Page 101]]
Wage Claim and shall not be returned to the transferring State.
(d) Appeals. (1) Except as provided in paragraph (d)(3) of this
section, where the claimant files his/her Combined-Wage Claim in the
paying State, any protest, request for redetermination or appeal shall
be in accordance with the law of such State.
(2) Where the claimant files his/her Combined-Wage Claim in a State
other than the paying State, or under the circumstances described in
paragraph (d)(3) of this section, any protest, request for
redetermination or appeal shall be in accordance with the Interstate
Benefit Payment Plan.
(3) To the extent that any protest, request for redetermination or
appeal involves a dispute as to the coverage of the employing unit or
services in a transferring State, or otherwise involves the amount of
employment and wages subject to transfer, the protest, request for
redetermination or appeal shall be decided by the transferring State in
accordance with its law.
(e) Recovery of prior overpayments. If there is an overpayment
outstanding in a transferring State and such transferring State so
requests, the overpayment shall be deducted from any benefits the paying
State would otherwise pay to the claimant on his/her Combined-Wage Claim
except to the extent prohibited by the law of the paying State. The
paying State shall transmit the amount deducted to the transferring
State or credit the deduction against the transferring State's required
reimbursement under this arrangement. This paragraph shall apply to
overpayments only if the transferring State certifies to the paying
State that the determination of overpayment was made within 3 years
before the Combined-Wage Claim was filed and that repayment by the
claimant is legally required and enforceable against him/her under the
law of the transferring State.
(f) Statement of benefit charges. (1) At the close of each calendar
quarter, the paying State shall send each transferring State a statement
of benefits charged during such quarter to such State as to each
Combined-Wage Claimant.
(2) Except as provided in paragraphs (c)(2), (f)(3), and (f)(5) of
this section, each such charge shall bear the same ratio to the total
benefits paid to the Combined-Wage Claimant by the paying State as the
claimant's wages transferred by the transferring State bear to the total
wages used in such determination. Each such ratio shall be computed as a
percentage, to three or more decimal places.
(3) Charges to the transferring State shall not include the costs of
any benefits paid which are funded or reimbursed from the Federal
Unemployment Benefits and Allowances account in the U.S. Department of
Labor appropriation, including:
(i) Benefits paid pursuant to 5 U.S.C. 8501-8525; and
(ii) Benefits which are reimbursable under part B of title II of the
Emergency Jobs and Unemployment Assistance Act of 1974 (Pub. L. 93-567).
(4) Except as provided in paragraphs (f)(3) and (f)(5) of this
section, all transferring States will be charged by the paying State for
Extended Benefits in the same manner as for regular benefits.
(5) The United States shall be charged directly by the paying State,
in the same manner as is provided in paragraphs (f)(1) and (f)(2) of
this section, in regard to Federal civilian service and wages and
Federal military service and wages assigned or transferred to the paying
State and included in Combined-Wage Claims in accordance with this part
and parts 609 and 614 of this chapter.
(26 U.S.C. 3304(a)(9)(B); Secretary's Order No. 4-75, (40 FR 18515))
[36 FR 24992, Dec. 28, 1971, as amended at 43 FR 2625, Jan. 17, 1978; 45
FR 47109, July 11, 1980; 71 FR 35515, June 21, 2006; 73 FR 63072, Oct.
23, 2008]
Sec. 616.9 Responsibilities of transferring States.
(a) Transfer of employment and wages. Each transferring State shall
promptly transfer to the Paying State the employment and wages the
Combined-Wage Claimant had in covered employment during the base period
of the paying State. Any employment and wages so transferred shall be
transferred without restriction as to their use for
[[Page 102]]
determination and benefit payments under the provisions of the paying
State's law.
(b) Employment and wages not transferable. Employment and wages
transferred to the paying State by a transferring State shall not
include:
(1) Any employment and wages which have been transferred to any
other paying State and not returned unused, or which have been used in
the transferring State as the basis of a monetary determination which
established a benefit year.
(2) Any employment and wages which have been canceled or are
otherwise unavailable to the claimant as a result of a determination by
the transferring State made prior to its receipt of the request for
transfer, if such determination has become final or is in the process of
appeal but is still pending. If the appeal is finally decided in favor
of the Combined-Wage Claimant, any employment and wages involved in the
appeal shall forthwith be transferred to the paying State and any
necessary redetermination shall be made by such paying State.
(c) Reimbursement of paying State. Each transferring State shall, as
soon as practicable after receipt of a quarterly statement of charges
described herein, reimburse the paying State accordingly.
(26 U.S.C. 3304(a)(9)(B); Secretary's Order No. 4-75, (40 FR 18515))
[36 FR 24992, Dec. 28, 1971, as amended at 45 FR 47109, July 11, 1980]
Sec. 616.10 Reuse of employment and wages.
Employment and wages which have been used under this arrangement for
a determination of benefits which establishes a benefit year shall not
thereafter be used by any State as the basis for another monetary
determination of benefits.
Sec. 616.11 Amendment of arrangement.
Periodically the Secretary shall review the operation of this
arrangement, and shall propose such amendments to the arrangement as the
Secretary believes are necessary or appropriate. Any State unemployment
compensation agency or NASWA may propose amendments to the arrangement.
Any proposal shall constitute an amendment to the arrangement upon
approval by the Secretary in consultation with the State unemployment
compensation agencies. Any such amendment shall specify when the change
shall take effect, and to which claims it shall apply.
[36 FR 24992, Dec. 28, 1971, as amended at 71 FR 35515, June 21, 2006]
PART 617_TRADE ADJUSTMENT ASSISTANCE FOR WORKERS UNDER THE TRADE ACT OF
1974--Table of Contents
Subpart A_General
Sec.
617.1 Scope.
617.2 Purpose.
617.3 Definitions.
617.4 Benefit information to workers.
Subpart B_Trade Readjustment Allowances (TRA)
617.10 Applications for TRA.
617.11 Qualifying requirements for TRA.
617.12 Evidence of qualification.
617.13 Weekly amounts of TRA.
617.14 Maximum amount of TRA.
617.15 Duration of TRA.
617.16 Applicable State law.
617.17 Availability and active search for work.
617.18 Disqualifications.
617.19 Requirement for participation in training.
Subpart C_Reemployment Services
617.20 Responsibilities for the delivery of reemployment services.
617.21 Reemployment services and allowances.
617.22 Approval of training.
617.23 Selection of training methods and programs.
617.24 Preferred training.
617.25 Limitations on training under subpart C of this part.
617.26 Liable and agent State responsibilities.
617.27 Subsistence payments.
617.28 Transportation payments.
617.29 Application of EB work test.
Subpart D_Job Search Allowances
617.30 General.
617.31 Applications.
617.32 Eligibility.
617.33 Findings required.
617.34 Amount.
617.35 Time and method of payment.
[[Page 103]]
Subpart E_Relocation Allowances
617.40 General.
617.41 Applications.
617.42 Eligibility.
617.43 Time of relocation.
617.44 Findings required.
617.45 Amount.
617.46 Travel allowance.
617.47 Moving allowance.
617.48 Time and method of payment.
Subpart F_Job Search Program
617.49 Job Search Program.
Subpart G_Administration by Applicable State Agencies
617.50 Determinations of entitlement; notices to individuals.
617.51 Appeals and hearings.
617.52 Uniform interpretation and application.
617.53 Subpoenas.
617.54 State agency rulemaking.
617.55 Overpayments; penalties for fraud.
617.56 Inviolate rights to TAA.
617.57 Recordkeeping; disclosure of information.
617.58 Unemployment insurance.
617.59 Agreements with State agencies.
617.60 Administration requirements. [Reserved]
617.61 Information, reports, and studies.
617.64 Termination of TAA program benefits.
Appendix A to Part 617--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
Appendix B to Part 617--Standard for Claim Determinations--Separation
Information
Appendix C to Part 617--Standard for Fraud and Overpayment Detection
Authority: 19 U.S.C. 2320; Secretary's Order No. 3-81, 46 FR 31117.
Source: 51 FR 45848, Dec. 22, 1986, unless otherwise noted.
Subpart A_General
Sec. 617.1 Scope.
The regulations in this part 617 pertain to:
(a) Adjustment assistance, such as counseling, testing, training,
placement, and other supportive services for workers adversely affected
under the terms of chapter 2 of title II of the Trade Act of 1974, as
amended (hereafter referred to as the Act);
(b) Trade readjustment allowances (hereafter referred to as TRA) and
other allowances such as allowances while in training, job search and
relocation allowances; and
(c) Administrative requirements applicable to State agencies to
which such individuals may apply.
Sec. 617.2 Purpose.
The Act created a program of trade adjustment assistance (hereafter
referred to as TAA) to assist individuals, who became unemployed as a
result of increased imports, return to suitable employment. The TAA
program provides for reemployment services and allowances for eligible
individuals. The regulations in this part 617 are issued to implement
the Act.
Sec. 617.3 Definitions.
For the purposes of the Act and this part 617:
(a) Act means chapter 2 of title II of the Trade Act of 1974, Pub.
L. 93-618, 88 Stat. 1978, 2019-2030 (19 U.S.C. 2271-2322), as amended.
(b) Adversely affected employment means employment in a firm or
appropriate subdivision of a firm, including workers in any agricultural
firm or subdivision of an agricultural firm, if workers of such firm or
appropriate subdivision are certified under the Act as eligible to apply
for TAA.
(c) Adversely affected worker means an individual who, because of
lack of work in adversely affected employment:
(1) Has been totally or partially separated from such employment; or
(2) Has been totally separated from employment with the firm in a
subdivision of which such adversely affected employment exists.
(d) Appropriate week means the week in which the individual's first
separation occurred.
(e) Average weekly hours means a figure obtained by dividing:
(1) Total hours worked (excluding overtime) by a partially separated
individual in adversely affected employment in the 52 weeks (excluding
weeks in such period during which the individual was sick or on
vacation) preceding the individual's first qualifying separation, by
(2) The number of weeks in such 52 weeks (excluding weeks in such
period during which the individual was sick or
[[Page 104]]
on vacation) in which the individual actually worked in such employment.
(f) Average weekly wage means one-thirteenth of the total wages paid
to an individual in the individual's high quarter. The high quarter for
an individual is the quarter in which the total wages paid to the
individual were highest among the first four of the last five completed
calendar quarters preceding the individual's appropriate week.
(g) Average weekly wage in adversely affected employment means a
figure obtained by dividing:
(1) Total wages earned by a partially separated individual in
adversely affected employment in the 52 weeks (excluding the weeks in
that period the individual was sick or on vacation) preceding the
individual's first qualifying separation, by
(2) The number of weeks in such 52 weeks (excluding the weeks in
that period the individual was sick or on vacation) the individual
actually worked in such employment.
(h) Benefit period means, with respect to an individual:
(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
(2) The equivalent to such a benefit year or ensuing period provided
for under the Federal unemployment insurance law.
(i) Bona fide application for training means an individual's signed
and dated application for training filed with the State agency
administering the TAA training program, on a form necessarily containing
the individual's name, petition number, local office number, and
specific occupational training. This form shall be signed and dated by a
State agency representative upon receipt.
(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.
(k) Commuting area means the area in which an individual would be
expected to travel to and from work on a daily basis as determined under
the applicable State law.
(l) Date of separation means:
(1) With respect to a total separation--
(i) For an individual in employment status, the last day worked; and
(ii) For an individual on employer-authorized leave, the last day
the individual would have worked had the individual been working; and
(2) With respect to a partial separation, the last day of the week
in which the partial separation occurred.
(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. With respect to a total qualifying separation (as
defined in paragraph (t)(3)(i) of this section) 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.
(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
[[Page 105]]
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.
(n) Employer means any individual or type of organization, including
the Federal government, a State government, a political subdivision, or
an instrumentality of one or more governmental entities, with one or
more individuals performing service in employment for it within the
United States.
(o) Employment means any service performed for an employer by an
officer of a corporation or an individual for wages.
(p) Exhaustion of UI means exhaustion of all rights to UI in a
benefit period by reason of:
(1) Having received all UI to which an individual was entitled under
the applicable State law or Federal unemployment compensation law with
respect to such benefit period; or
(2) The expiration of such benefit period.
(q) Family means the following members of an individual's household
whose principal place of abode is with the individual in a home the
individual maintains or would maintain but for unemployment:
(1) A spouse;
(2) An unmarried child, including a stepchild, adopted child, or
foster child, under age 21 or of any age if incapable of self-support
because of mental or physical incapacity; and
(3) Any other person whom the individual would be entitled to claim
as a dependent for income tax purposes under the Internal Revenue Code
of 1986.
(r) First benefit period means the benefit period established after
the individual's first qualifying separation or in which such separation
occurs.
(s) First exhaustion of UI means the first time in an individual's
first benefit period that the individual exhausts all rights to UI;
first exhaustion shall be deemed to be complete at the end of the week
the exhaustion occurs.
(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, any 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 which qualifies as a total qualifying
separation as defined in paragraph (B) of (t)(3)(i) of this section.
(3) First qualifying separation means--
(i) For the purposes of determining an individual's eligibility
period for basic TRA, 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).
(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).
(u) Head of family means an individual who maintains a home for a
family. An individual maintains a home if over half the cost of
maintenance is furnished by the individual or would be furnished but for
unemployment.
(v) Impact date means the date stated in a certification issued
under the Act
[[Page 106]]
on which total or partial separations began or threatened to begin in a
firm or a subdivision of a firm.
(w) Job search program means a job search workshop or job finding
club.
(x) Job search workshop means a short (1 to 3 days) seminar designed
to provide participants with knowledge that will enable the participants
to find jobs. Subjects should include, but not be limited to, labor
market information, resume writing, interviewing techniques, and
techniques for finding job openings.
(y) Job finding club means a job search workshop which includes a
period of 1 to 2 weeks of structured, supervised activity in which
participants attempt to obtain jobs.
(z) Layoff means a suspension of or separation from employment by a
firm for lack of work, initiated by the employer, and expected to be for
a definite or indefinite period of not less than seven consecutive days.
(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.
(bb) On-the-job training means training provided by an employer to
an individual who is employed by the employer.
(cc) Partial separation means that during a week ending on or after
the impact date specified in the certification under which an adversely
affected worker is covered, the individual had:
(1) Hours of work reduced to 80 percent or less of the individual's
average weekly hours in adversely affected employment; and
(2) Wages reduced to 80 percent or less of the individual's average
weekly wage in such adversely affected employment.
(dd) Regional Administrator means the appropriate Regional
Administrator of the Employment and Training Administration, United
States Department of Labor (hereafter Department).
(ee) Remuneration means remuneration as defined in the applicable
State law.
(ff) Secretary means the Secretary of Labor, U.S. Department of
Labor, or his or her designee.
(gg) Separate maintenance means maintaining another (second)
residence, in addition to the individual's regular place of residence,
while attending a training facility outside the individual's commuting
area.
(hh) State means the States of the United States, the District of
Columbia, and the Commonwealth of Puerto Rico, and the term ``United
States'' when used in a geographical sense includes such Commonwealth.
(ii) State agency means the State Workforce Agency; the employment
service of the State; any State agency carrying out title I, Subchapter
B of the Workforce Investment Act; or any other State or local agency
administering job training or related programs with which the Secretary
has an agreement to carry out any of the provisions of the Act.
(jj) State law means the unemployment compensation law of a State
approved by the Secretary under section 3304 of the Internal Revenue
Code of 1986 (26 U.S.C. 3304).
(kk) Suitable work means, with respect to an individual:
(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.
(ll) Total separation means a layoff or severance of an individual
from employment with a firm in which, or in a subdivision of which,
adversely affected employment exists.
[[Page 107]]
(mm) Trade adjustment assistance (TAA) means the services and
allowances provided for achieving reemployment of adversely affected
workers, including TRA, training and other reemployment services, and
job search allowances and relocation allowances.
(nn) Trade readjustment allowance (TRA) means a weekly allowance
payable to an adversely affected worker with respect to such worker's
unemployment under subpart B of this part 617.
(oo) Unemployment insurance (UI) means the unemployment compensation
payable to an individual under any State law or Federal unemployment
compensation law, including chapter 85, title 5 of the United States
Code, and the Railroad Unemployment Insurance Act. ``UI'' includes
``regular compensation,'' ``additional compensation,'' ``extended
compensation,'' and ``federal supplemental compensation,'' defined as
follows:
(1) Regular compensation means unemployment compensation payable to
an individual under any State law, and, when so payable, includes
unemployment compensation payable pursuant to chapter 85, title 5 of the
United States Code, but does not include extended compensation,
additional compensation, or federal supplemental compensation;
(2) Additional compensation means unemployment compensation totally
financed by a State and payable under a State law by reason of
conditions of high unemployment or by reason of other special factors
and, when so payable, includes unemployment compensation payable
pursuant to chapter 85, title 5 of the United States Code; and
(3) Extended compensation means the extended unemployment
compensation payable to an individual for weeks of unemployment which
begin in an Extended Benefit Period, under those provisions of a State
law which satisfy the requirements of the Federal-State Extended
Unemployment Compensation Act of 1970 and regulations governing the
payment of extended unemployment compensation, and, when so payable,
includes unemployment compensation payable pursuant to chapter 85, title
5 of the United States Code, but does not include regular compensation,
additional compensation, or federal supplemental compensation. Extended
compensation is also referred to in this part 617 as Extended Benefits
or EB.
(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.
(pp) Wages means all compensation for employment for an employer,
including commissions, bonuses, and the cash value of all compensation
in a medium other than cash.
(qq) Week means a week as defined in the applicable State law.
(rr) Week of unemployment means a week of total, part total, or
partial unemployment as determined under the applicable State law or
Federal unemployment compensation law.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32348, Aug. 24, 1988;
59 FR 926, 927, Jan. 6, 1994; 61 FR 19983, May 3, 1996; 71 FR 35515,
June 21, 2006]
Sec. 617.4 Benefit information to workers.
(a) Providing information to workers. State agencies shall provide
full information to workers about the benefit allowances, training, and
other employment services available under subparts B through E of this
part 617 and about the petition and application procedures, and the
appropriate filing dates, for such allowances, training and services.
(b) Providing assistance to workers. State agencies shall provide
whatever assistance is necessary to enable groups of workers, including
unorganized workers, to prepare petitions or applications for program
benefits.
(c) Providing information to State vocational education agencies and
others. State agencies shall inform the State Board for Vocational
Education or equivalent agency and other public or private agencies,
institutions, and employers, as appropriate, of each certification
issued under section 223 of the Act and of projections, if available, of
the needs for training under section 236
[[Page 108]]
of the Act as a result of such certification.
(d) Written and newspaper notices--(1) Written notices to workers.
(i) Upon receipt of a certification issued by the Department of Labor,
the State agency shall provide a written notice through the mail of the
benefits available under subparts B through E of this part 617 to each
worker covered by a certification issued under section 223 of the Act
when the worker is partially or totally separated or as soon as possible
after the certification is issued if such workers are already partially
or totally separated from adversely affected employment.
(ii) The State agency will satisfy this requirement by obtaining
from the firm, or other reliable source, the names and addresses of all
workers who were partially or totally separated from adversely affected
employment before the certification was received by the agency, and
workers who are thereafter partially or totally separated within the
certification period. The State agency shall mail a written notice to
each such worker of the benefits available under the TAA Program. The
notice must include the following information:
(A) Worker group(s) covered by the certification, and the article(s)
produced as specified in the copy of the certification furnished to the
State agency.
(B) Name and the address or location of workers' firm.
(C) Impact, certification, and expiration dates in the certification
document.
(D) Benefits and reemployment services available to eligible
workers.
(E) Explanation of how workers apply for TAA benefits and services.
(F) Whom to call to get additional information on the certification.
(G) When and where the workers should come to apply for benefits and
services.
(2) Newspaper notices. (i) Upon receipt of a copy of a certification
issued by the Department affecting workers in a State, the State agency
shall publish a notice of such certification in a newspaper of general
circulation in areas in which such workers reside. Such a newspaper
notice shall not be required to be published, however, in the case of a
certification with respect to which the State agency can substantiate,
and enters in its records evidence substantiating, that all workers
covered by the certification have received written notice required by
paragraph (d)(1) of this section.
(ii) A published notice must include the following kinds of
information:
(A) Worker group(s) covered by the certification, and the article(s)
produced as specified in the copy of the certification furnished to the
State agency.
(B) Name and the address or location of workers' firm.
(C) Impact, certification, and expiration dates in the certification
document.
(D) Benefits and reemployment services available to eligible
workers.
(E) Explanation of how and where workers should apply for TAA
benefits and services.
(e) Advice and assistance to workers. In addition to the information
and assistance to workers as required under paragraphs (a) and (b) of
this section, State agencies shall--
(1) Advise each worker who applies for unemployment insurance under
the State law of the benefits available under subparts B through E of
this part and the procedures and deadlines for applying for such
benefits.
(2) Facilitate the early filing of petitions under section 221 of
the Act and Sec. 617.4(b) for any workers that the agency considers are
likely to be eligible for benefits. State agencies shall utilize
information received by the State's dislocated worker unit to facilitate
the early filing of petitions under section 221 of the Act by workers
potentially adversely affected by imports.
(3) Advise each adversely affected worker to apply for training
under Sec. 617.22(a) before, or at the same time as, the worker applies
for trade readjustment allowances under subpart B of this part.
(4) Interview each adversely affected worker, as soon as
practicable, regarding suitable training opportunities available to the
worker under Sec. 617.22(a)
[[Page 109]]
and review such opportunities with the worker.
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 927, Jan. 6, 1994]
Subpart B_Trade Readjustment Allowances (TRA)
Sec. 617.10 Applications for TRA.
(a) Before and after certification. An individual covered under a
certification or a petition for certification may apply to a State
agency for TRA. A determination shall be made at any time to the extent
necessary to establish or protect an individual's entitlement to TRA or
other TAA, but no payment of TRA or other TAA may be made by a State
agency until a certification is made and the State agency determines
that the individual is covered thereunder.
(b) Timing of applications. An initial application for TRA, and
applications for TRA for weeks of unemployment beginning before the
initial application for TRA is filed, may be filed within a reasonable
period of time after publication of the determination certifying the
appropriate group of workers under section 223 of the Act. However, an
application for TRA for a week of unemployment beginning after the
initial application is filed shall be filed within the time limit
applicable to claims for regular compensation under the applicable State
law. For purposes of this paragraph (b), a reasonable period of time
means such period of time as the individual had good cause for not
filing earlier, which shall include, but not be limited to, the
individual's lack of knowledge of the certification or misinformation
supplied the individual by the State agency.
(c) Applicable procedures. Applications shall be filed in accordance
with this subpart B and on forms which shall be furnished to individuals
by the State agency. The procedures for reporting and filing
applications for TRA shall be consistent with this part 617 and the
Secretary's ``Standard for Claim Filing, Claimant Reporting, Job Finding
and Employment Services'', Employment Security Manual, part V, sections
5000 et seq. (Appendix A of this part).
(d) Advising workers to apply for training. State agencies shall
advise each worker of the qualifying requirements for entitlement to TRA
and other TAA benefits at the time the worker files an initial claim for
State UI, and shall advise each adversely affected worker to apply for
training under subpart C of this part before, or at the same time, the
worker applies for TRA, as required by Sec. 617.4(e)(1) and (3).
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 928, 943, Jan. 6, 1994]
Sec. 617.11 Qualifying requirements for TRA.
(a) Basic qualifying requirements for entitlement--(1) [Reserved]
(2) To qualify for TRA for any week of unemployment an individual
must meet each of the following requirements of paragraphs (a)(2) (i)
through (vii) of this section:
(i) Certification. The individual must be an adversely affected
worker covered under a certification.
(ii) Separation. The individual's first qualifying separation (as
defined in paragraph (t)(3)(i) of Sec. 617.3) before application for
TRA must occur:
(A) On or after the impact date of such certification; and
(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.
(iii) Wages and employment. (A) In the 52-week period (i.e., 52
consecutive calendar weeks) ending with the week of the individual's
first qualifying separation, or any subsequent total qualifying
separation under the same certification, the individual must have had at
least 26 weeks of employment at wages of $30 or more a week in adversely
affected employment with a single firm or subdivision of a firm.
Evidence that an individual meets this requirement shall be obtained as
provided in Sec. 617.12. Employment and wages covered under more than
one certification may not be combined to qualify for TRA.
(B)(1) For the purposes of paragraph (a)(2)(iii) of this section,
any week in which such individual--
[[Page 110]]
(i) Is on employer-authorized leave from such adversely affected
employment for purposes of vacation, sickness, injury, maternity, or
inactive duty or active duty military service for training, or
(ii) Does not work in such adversely affected employment because of
a disability compensable under a workers' compensation law or plan of a
State or the United States, or
(iii) Had adversely affected employment interrupted to serve as a
full-time representative of a labor organization in such firm or
subdivision, or
(iv) Is on call-up for the purpose of active duty in a reserve
status in the Armed Forces of the United States (if such week began
after August 1, 1990), provided such active duty is ``Federal service''
as defined in part 614 of this chapter,
shall be treated as a week of employment at wages of $30 or more;
(2) Provided, that--
(i) Not more than 7 weeks in the case of weeks described in
paragraph (a)(2)(iii)(B)(1) (i) or (iii) of this section, or both, and
(ii) Not more than 26 weeks described in paragraph (a)(2)(iii)(B)(1)
(ii) or (iv) of this section,
may be treated as weeks of employment for purposes of paragraph
(a)(2)(iii) of this section.
(C) Wages and employment creditable under paragraph (a)(2)(iii) of
this section shall not include employment or wages earned or paid for
employment which is contrary to or prohibited by any Federal law.
(iv) Entitlement to UI. The individual must have been entitled to
(or would have been entitled to if the individual had applied therefor)
UI for a week within the benefit period--
(A) in which the individual's first qualifying separation occurred,
or
(B) which began (or would have begun) by reason of the filing of a
claim for UI by the individual after such first qualifying separation.
(v) Exhaustion of UI. The individual must:
(A) Have exhausted all rights to any UI to which the individual was
entitled (or would have been entitled if the individual had applied
therefor); and
(B) Not have an unexpired waiting period applicable to the
individual for any such UI.
(vi) Extended Benefit work test. (A) The individual must--
(1) Accept any offer of suitable work, as defined in Sec.
617.3(kk), and actually apply for any suitable work the individual is
referred to by the State agency, and
(2) Actively engage in seeking work and furnish the State agency
tangible evidence of such efforts each week, and
(3) Register for work and be referred by the State agency to
suitable work,
in accordance with those provisions of the applicable State law which
apply to claimants for Extended Benefits and which are consistent with
part 615 of this chapter.
(B) The Extended Benefit work test shall not apply to an individual
with respect to claims for TRA for weeks of unemployment beginning prior
to the filing of an initial claim for TRA, nor for any week which begins
before the individual is notified that the individual is covered by a
certification issued under the Act and is fully informed of the Extended
Benefit work test requirements of paragraph (a)(2)(vi) of this section
and Sec. 617.17. Prior to such notification and advice, the individual
shall not be subject to the Extended Benefit work test requirements, nor
to any State timely filing requirement, but shall be required to be
unemployed and able to work and available for work with respect to any
such week except as provided in Sec. 617.17(b)(2) for workers enrolled
in, or participating in, a training program approved under Sec.
617.22(a).
(vii) Participation in training. (A) The individual must--
(1) Be enrolled in or participating in a training program approved
pursuant to Sec. 617.22(a), or
(2) Have completed a training program approved under Sec.
617.22(a), after a total or partial separation from adversely affected
employment within the certification period of a certification issued
under the Act, or
(3) Have received from the State agency a written statement under
Sec. 617.19 waiving the participation in training requirement for the
individual.
[[Page 111]]
(B) The participation in training requirement of paragraph
(a)(2)(vii) of this section shall not apply to an individual with
respect to claims for TRA for weeks of unemployment beginning prior to
the filing of an initial claim for TRA, nor for any week which begins
before the individual is notified that the individual is covered by a
certification issued under the Act and is fully informed of the
participation in training requirement of paragraph (a)(2)(vii) of this
section and Sec. 617.19.
(C) The participation in training requirement of paragraph
(a)(2)(vii) of this section shall apply, as a qualifying requirement for
TRA, to an individual with respect to claims for TRA for weeks of
unemployment commencing on or after November 21, 1988, and beginning
with the first week following the week in which a certification covering
the individual is issued under the Act, unless the State agency has
issued a written statement to the individual under Sec. 617.19 waiving
the participation in training requirement for the individual.
(D) For purposes of paragraph (a)(2)(vii) of this section, the
following definitions shall apply:
(1) Enrolled in training. A worker shall be considered to be
enrolled in training when the worker's application for training is
approved by the State agency and the training institution has furnished
written notice to the State agency that the worker has been accepted in
the approved training program which is to begin within 30 calendar days
of the date of such approval. (A waiver under Sec. 617.19 shall not be
required for an individual who is enrolled in training as defined
herein.)
(2) Completed training. A worker shall be considered to have
completed a training program if the training program was approved, or
was approvable and is approved, pursuant to Sec. 617.22, and the
training was completed subsequent to the individual's total or partial
separation from adversely affected employment within the certification
period of a certification issued under the Act, and the training
provider has certified that all the conditions for completion of the
training program have been satisfied.
(3)-(4) [Reserved]
(b) First week of entitlement. The first week any individual may be
entitled to a payment of basic TRA shall be the later of:
(1) The first week beginning more than 60 days after the date of the
filing of the petition which resulted in the certification under which
the individual is covered; or
(2) The first week beginning after the individual's exhaustion of
all rights to UI including waiting period credit, as determined under
Sec. 617.11(a)(2).
[59 FR 928, Jan. 6, 1994, as amended at 71 FR 35515, June 21, 2006]
Sec. 617.12 Evidence of qualification.
(a) State agency action. When an individual applies for TRA, the
State agency having jurisdiction under Sec. 617.50(a) shall obtain
information necessary to establish:
(1) Whether the individual meets the qualifying requirements in
Sec. 617.11;
(2) The individual's average weekly wage; and
(3) For an individual claiming to be partially separated, the
average weekly hours and average weekly wage in adversely affected
employment.
(b) Insufficient data. If information specified in paragraph (a) of
this section is not available from State agency records or from any
employer, the State agency shall require the individual to submit a
signed statement setting forth such information as may be required for
the State agency to make the determinations required by paragraph (a) of
this section.
(c) Verification. A statement made under paragraph (b) of this
section shall be certified by the individual to be true to the best of
the individual's knowledge and belief and shall be supported by evidence
such as Forms W-2, paycheck stubs, union records, income tax returns, or
statements of fellow workers, and shall be verified by the employer.
(d) Determinations. The State agency shall make the necessary
determinations on the basis of information obtained pursuant to this
section, except that if, after reviewing information obtained under
paragraph (b) of this section against other available data, including
agency records, it concludes
[[Page 112]]
that such information is not reasonably accurate, it shall make
appropriate adjustments and shall make the determination on the basis of
the adjusted data.
Sec. 617.13 Weekly amounts of TRA.
(a) Regular allowance. The amount of TRA payable for a week of total
unemployment (including a week of training approved under subpart C of
this part 617 or under the provisions of the applicabIe State law) shall
be an amount equal to the most recent weekly benefit amount of UI
(including dependents' allowances) payable to the individual for a week
of total unemployment preceding the individual's first exhaustion of UI
following the individual's first qualifying separation: Provided, that
in a State in which weeks of UI are paid in varying amounts related to
wages with separate employers, the weekly amount of TRA shall be
calculated as it would be to pay extended compensation: Provided,
further, that where a State calculates a base amount of UI and
calculates dependents' allowances on a weekly supplemental basis. TRA
weekly benefit amounts shall be calculated in the same manner and under
the same terms and conditions as apply to claimants for UI, except that
the base amount shall not change.
(b) Increased allowance. An individual in training approved under
subpart C of this part 617 who is thereby entitled for any week to TRA
and a training allowance under any other Federal law for the training of
workers shall be paid in the amount computed under paragraph (a) of this
section or, if greater, the amount to which the individual would be
entitled under such other Federal law if the individual applied for such
allowance, as provided in section 232(b) of the Act. A payment under
this paragraph (b) shall be in lieu of any training allowance to which
the individual is entitled under such other Federal law.
(c) Reduction of amount. An amount of TRA payabIe under paragraph
(a) or (b) of this section for any week shall be reduced (but not below
zero) by:
(1) Income that is deductible from UI under the disqualifying income
provisions of the applicable State law or Federal unemployment
compensation law;
(2) The amount of a training allowance (other than a training
allowance referred to in paragraph (b) of this section) under any
Federal law that the individual receives for such week, as provided in
section 232(c) of the Act. This paragraph (c) shall apply to Veterans
Educational Assistance, Pell Grants, Supplemental Educational
Opportunity Grants, and other training allowances under any Federal law
other than for the training of workers; and
(3) Any amount that would be deductible from UI for days of absence
from training under the provisions of the applicable State law which
apply to individuals in approved training.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32349, Aug. 24, 1988]
Sec. 617.14 Maximum amount of TRA.
(a) General rule. Except as provided under paragraph (b) of this
section, the maximum amount of TRA payable to an individual under a
certification shall be the amount determined by:
(1) Multiplying by 52 the weekly amount of TRA payable to such
individual for a week of total unemployment, as determined under Sec.
617.13(a); and
(2) Subtracting from the product derived under paragraph (a)(1) of
this section, the total sum of UI to which the individual was entitled
(or would have been entitled if the individual had applied therefor) in
the individual's first benefit period described in Sec.
617.11(a)(1)(iv) or, as appropriate, Sec. 617.11(a)(2)(iv). The
individual's full entitlement shall be subtracted under this paragraph,
without regard to the amount, if any, that was actually paid to the
individual with respect to such benefit period.
(b) Exceptions. The maximum amount of TRA determined under paragraph
(a) of this section will not include:
(1) The amount of dependents' allowances paid as a supplement to the
base weekly amount determined under Sec. 617.13(a);
(2) The amount of the difference between the individual's weekly
increased allowances determined under Sec. 617.13(b) and the
individual's weekly
[[Page 113]]
amount determined under Sec. 617.13(a); and
(3) The amounts paid for additional weeks determined under Sec.
617.15(b);
but nothing in this paragraph (b) shall affect an individual's
eligibility for such supplemental, increased or additional allowances.
(c) Reduction for Federal training allowance. (1) If a training
allowance referred to in Sec. 617.13(c)(2) is paid to an individual for
any week of unemployment with respect to which the individual would be
entitled (determined without regard to any disqualification under Sec.
617.18(b)(2)) to TRA, if the individual applied for TRA for such week,
each week shall be deducted from the total number of weeks of TRA
otherwise payable to the individual.
(2) If the training allowance referred to in paragraph (c)(1) of
this section is less than the amount of TRA otherwise payable to the
individual for such week, the individual shall, when the individual
applies for TRA for such week, be paid TRA in an amount not to exceed
the amount equal to the difference between the individual's regular
weekly TRA amount, as determined under Sec. 617.13(a), and the amount
of the training allowance paid to the individual for such week, as
provided in section 232(c) of the Act.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32349, Aug. 24, 1988;
54 FR 22277, May 23, 1989; 59 FR 931, Jan. 6, 1994]
Sec. 617.15 Duration of TRA.
(a) Basic weeks. An individual shall not be paid basic TRA for any
week beginning after the close of the 104-week eligibility period (as
defined in Sec. 617.3(m)(1)), which is applicable to the individual as
determined under Sec. Sec. 617.3 (m)(1), 617.3(t), and 617.67(e).
(b) Additional weeks. (1) To assist an individual to complete
training approved under subpart C of this part, payments may be made as
TRA for up to 26 additional weeks in the 26-week eligibility period (as
defined in Sec. 617.3(m)(2)) which is applicable to the individual as
determined under Sec. Sec. 617.3(m)(2) and 617.67(f).
(2) To be eligible for TRA for additional weeks, an individual must
make a bona fide application for such training--
(i) within 210 days after the date of the first certification under
which the individual is covered, or
(ii) if later, within 210 days after the date of the individual's
most recent partial or total separation (as defined in Sec. Sec.
617.3(cc) and 617.3(ll)) under such certification.
(3) Except as provided in paragraph (d) of this section, payments of
TRA for additional weeks may be made only for those weeks in the 26-week
eligibility period during which the individual is actually participating
fully in training approved under Sec. 617.22(a).
(c) Limit. The maximum TRA payable to any individual on the basis of
a single certification is limited to the maximum amount of basic TRA as
determined under Sec. 617.14 plus additional TRA for up to 26 weeks as
provided in paragraph (b) of this section.
(d) Scheduled breaks in training. (1) An individual who is otherwise
eligible will continue to be eligible for basic and additional weeks of
TRA during scheduled breaks in training, but only if a scheduled break
is not longer than 14 days, and the following additional conditions are
met:
(i) The individual was participating in the training approved under
Sec. 617.22(a) immediately before the beginning of the break; and
(ii) The break is provided for in the published schedule or the
previously established schedule of training issued by the training
provider or is indicated in the training program approved for the
worker; and, further
(iii) The individual resumes participation in the training
immediately after the break ends.
(2) A scheduled break in training shall include all periods within
or between courses, terms, quarters, semesters and academic years of the
approved training program.
(3) No basic or additional TRA will be paid to an individual for any
week which begins and ends within a scheduled break that is 15 days or
more.
(4) The days within a break in a training program that shall be
counted in determining the number of days of the break for the purposes
of paragraph (d) of this section shall include all calendar days
beginning with the first day of the break and ending with the last
[[Page 114]]
day of the break, as provided for in the schedule of the training
provider, except that any Saturday, Sunday, or official State or
National holiday occurring during the scheduled break in training, on
which training would not normally be scheduled in the training program
if there were no break in training, shall not be counted in determining
the number of days of the break for the purposes of paragraph (d) of
this section.
(5) When the worker is drawing basic TRA, the maximum amount of TRA
payable is not affected by the weeks the worker does not receive TRA
while in a break period, but the weeks will count against the 104-week
eligibility period.
(6) When the worker is drawing additional weeks of TRA to complete
training, any weeks for which TRA is not paid will count against the
continuous 26-week eligibility period and the number of weeks payable.
[59 FR 931, Jan. 6, 1994]
Sec. 617.16 Applicable State law.
(a) What law governs. The applicable State law for any individual,
for all of the purposes of this part 617, is the State law of the
State--
(1) In which the individual is entitled to UI (whether or not the
individual has filed a claim therefor) immediately following the
individual's first separation (as defined in paragraph (t)(1) of Sec.
617.3), or
(2) If the individual is not so entitled to UI under the State law
of any State immediately following such first separation, or is entitled
to UI under the Railroad Unemployment Insurance Act (RRUI), the State
law of the State in which such first separation occurred.
(b) Change of law. The State law determined under paragraph (a) of
this section to be the applicable State law for an individual shall
remain the applicable State law for the individual until the individual
becomes entitled to UI under the State law of another State (whether or
not the individual files a claim therefor).
(c) UI entitlement. (1) An individual shall be deemed to be entitled
to UI under a State law if the individual satisfies the base period
employment and wage qualifying requirements of such State law.
(2) In the case of a combined-wage claim (Part 616 of this chapter),
UI entitlement shall be determined under the law of the paying State.
(3) In case of a Federal UI claim, or a joint State and Federal UI
claim (Parts 609 and 614 of this Chapter), UI entitlement shall be
determined under the law of the State which is the applicable State for
such claims.
(d) RRUI claimants. If an individual is entitled to UI under the
Railroad Unemployment Insurance Act, the applicable State law for
purposes of paragraphs (a) and (b) of this section is the law of the
State in which the individual's first qualifying separation occurs.
(e) Liable State. The State whose State law is determined under this
section to be the applicable State law for any individual shall be the
liable State for the individual for all purposes of this part 617. Any
State other than the liable State shall be an agent State.
[59 FR 932, Jan. 6, 1994]
Sec. 617.17 Availability and active search for work.
(a) Extended Benefit work test applicable. Except as provided in
paragraph (b) of this section, an individual shall, as a basic condition
of entitlement to basic TRA for a week of unemployment--
(1) be unemployed, as defined in the applicable State law for UI
claimants, and
(2) be able to work and available for work, as defined in the
applicable State law for UI claimants, and
(3) satisfy the Extended Benefit work test in each week for which
TRA is claimed, as set forth in Sec. Sec. 617.11(a)(1) (vi) and
617.11(a)(2)(vi).
(b) Exceptions--(1) Prior to November 21, 1988. The conditions
stated in paragraphs (a) and (b) of this section shall not be applicable
to an individual actually participating in training approved under the
applicable State law or under Sec. 617.22(a), or during a scheduled
break in the training program if (as determined for the purposes of
Sec. 617.15 (d)) the individual participated in the training
immediately before the beginning of the break and resumes participation
in the training immediately
[[Page 115]]
after the break ends, unless the individual is ineligible or subject to
disqualification under the applicable State law or Sec. 617.18 (b)(2).
(2) On and after November 21, 1988. The conditions stated in
paragraphs (a)(2) and (a)(3) of this section shall not be applicable to
an individual who is enrolled in or participating in a training program
approved under Sec. 617.22 (a), or during a break in the training
program if (as determined for the purposes of Sec. 617.15(d)) the
individual participated in the training immediately before the beginning
of the break and resumes participation in the training immediately after
the break ends.
[59 FR 932, Jan. 6, 1994]
Sec. 617.18 Disqualifications.
(a) State law applies. Except as stated in paragraph (b) of this
section and Sec. 617.55(b), an individual shall not be paid TRA for any
week of unemployment the individual is or would be disqualified to
receive UI under the disqualification provisions of the applicable State
law, including the provisions of the applicable State law which apply to
EB claimants and which are consistent with section 202(a)(3) of the
Federal-State Extended Unemployment Compensation Act of 1970.
(b) Disqualification of trainees--(1) State law inapplicable. A
State law shall not be applied to disqualify an individual from
receiving either UI or TRA because the individual:
(i) Is enrolled in or is participating in a training program
approved under Sec. 617.22(a); or
(ii) Refuses work to which the individual has been referred by the
State agency, if such work would require the individual to discontinue
training, or if added to hours of training would occupy the individual
more than 8 hours a day or 40 hours a week, except that paragraph
(b)(1)(ii) of this section shall not apply to an individual who is
ineligible under paragraph (b)(2) of this section; or
(iii) Quits work, if the individual was employed in work which was
not suitable (as defined in Sec. 617.22(a)(1)), and it was reasonable
and necessary for the individual to quit work to begin or continue
training approved for the individual under Sec. 617.22(a).
(2) Trainees ineligible. (i) An individual who, without justifiable
cause, fails to begin participation in a training program which is
approved under Sec. 617.22(a), or ceases to participate in such
training, or for whom a waiver is revoked pursuant to Sec. 617.19(c),
shall not be eligible for basic TRA, or any other payment under this
part 617, for the week in which such failure, cessation, or revocation
occurred, or any succeeding week thereafter until the week in which the
individual begins or resumes participation in a training program that is
approved under Sec. 617.22(a).
(ii) For purposes of this section and other provisions of this Part
617, the following definitions shall be used:
(A) Failed to begin participation. A worker shall be determined to
have failed to begin participation in a training program when the worker
fails to attend all scheduled training classes and other training
activities in the first week of the training program, without
justifiable cause.
(B) Ceased participation. A worker shall be determined to have
ceased participation in a training program when the worker fails to
attend all scheduled training classes and other training activities
scheduled by the training institution in any week of the training
program, without justifiable cause.
(C) Justifiable cause. For the purposes of paragraph (b)(2) of this
section, the term ``justifiable cause'' means such reasons as would
justify an individual's conduct when measured by conduct expected of a
reasonable individual in like circumstances, including but not limited
to reasons beyond the individual's control and reasons related to the
individual's capability to participate in or complete an approved
training program.
(c) Disqualification while in OJT. In no case may an individual
receive TRA for any week with respect to which the worker is engaged in
on-the-job training.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32350, Aug. 24, 1988;
59 FR 932, Jan. 6, 1994]
Sec. 617.19 Requirement for participation in training.
(a) In general--(1) Basic requirement. (i) All individuals otherwise
entitled to
[[Page 116]]
basic TRA, for each week, must either be enrolled in or participating in
a training program approved under Sec. 617.22(a), or have completed a
training program approved under Sec. 617.22(a), as provided in Sec.
617.11(a)(2)(vii), in order to be entitled to basic TRA payments for any
such week (except for continuation of payments during scheduled breaks
in training of 14 days or less under the conditions stated in Sec.
617.15(d)). The training requirement of paragraph (a)(1)(i) of this
section shall be waived in writing on an individual basis, solely in
regard to entitlement to basic TRA, if approval of training for the
individual is not feasible or is not appropriate, as determined in
accordance with paragraph (a)(2) of this section.
(ii) As a principal condition of entitlement to additional TRA
payments, all individuals must actually be participating in a training
program approved under Sec. 617.22(a) for each week, and for all weeks
beginning on and after November 21, 1988 (except for continuation of
payments during breaks in training under the conditions stated in Sec.
617.15(d)). Paragraph (a)(2) of this section is not applicable in regard
to additional TRA, and the participation in training requirement of
paragraph (a)(1)(ii) of this section may not be waived under any
circumstances.
(2) Waiver of participation requirement. When it is determined, in
accordance with paragraph (a)(2) of this section, that it is not
feasible or is not appropriate (as such terms are defined in paragraph
(b) of this section) to approve a training program for an individual
otherwise entitled to basic TRA, the individual shall be furnished a
formal written notice of waiver, with an explanation of the reason(s)
for the waiver and a statement of why training is not feasible or is not
appropriate in the case of such individual. At a minimum, the written
statement furnished to the individual shall contain information required
by Sec. 617.50(e) as well as the following information:
(i) Name and social security number of the individual;
(ii) Petition number under which the worker was certified;
(iii) A statement why the agency has determined that it is not
feasible or is not appropriate to approve training for the individual at
that time, and the reason(s) for the finding;
(iv) A statement that the waiver will be revoked at any time that
feasible and appropriate training becomes available;
(v) Any other advice or information the State agency deems
appropriate in informing the individual;
(vi) Signature block (with signature) for the appropriate State
official; and
(vii) Signature block (with signature) for the worker's
acknowledgement of receipt.
(3) Denial of a waiver. In any case in which a determination is made
to deny to any individual a waiver of the participation requirement, the
individual shall be furnished a formal written notice of denial of
waiver, which shall contain all of the information required of formal
written notices under paragraph (a)(2) of this section.
(4) Procedure. Any determination under paragraph (a)(2) or paragraph
(a)(3) of this section shall be a determination to which Sec. Sec.
617.50 and 617.51 apply, including the requirement that any written
notice furnished to an individual shall include notice of the
individual's appeal rights as is provided in Sec. 617.50(e).
(b) Reasons for issuing a waiver. (1) For the purposes of paragraphs
(a)(2) and (a)(3) of this section, a waiver of the participation in
training requirement shall be issued to an individual only upon a
supported finding that approval of a Sec. 617.22(a) training program
for that individual is not feasible or is not appropriate at that time.
(i) Feasible and appropriate. For the purposes of this section:
(A) Feasible. The term feasible means:
(1) Training is available at that time which meets all the criteria
of Sec. 617.22(a);
(2) The individual is so situated as to be able to take full
advantage of the training opportunity and complete the training; and
(3) Funding is available to pay the full costs of the training and
any transportation and subsistence expenses which are compensable. The
funding referred to in paragraph (b)(1)(i)(A)(3) of this section
includes not only TAA program funds but also all other funds available
under any of the provisions of
[[Page 117]]
the Title I, Subchapter B of the Workforce Investment Act or any other
Federal, State or private source that may be utilized for training
approvable under Sec. 617.22(a). Further, the individual's situation in
respect to undertaking training (as referred to in paragraph
(b)(1)(i)(A)(2) of this section) shall include taking into account
personal circumstances that preclude the individual from being able to
participate in and complete the training program, such as the
availability of transportation, the ability to make arrangements for
necessary child care, and adequate financial resources if the weeks of
training exceeds the duration of UI and TRA payments.
(B) Appropriate. The term appropriate means being suitable or
compatible, fitting, or proper. Appropriate, therefore, refers to
suitability of the training for the worker (including whether there is a
reasonable prospect which is reasonably foreseeable that the individual
will be reemployed by the firm from which separated), and compatibility
of the training for the purposes of the TAA Program. In these respects,
suitability of training for the individual is encompassed within the
several criteria in Sec. 617.22 (a), and compatibility with the program
is covered by the various provisions of subpart C of this part which
describe the types of training approvable under Sec. 617.22(a) and the
limitations thereon.
(ii) Basis for application. Whether training is feasible or
appropriate at any given time is determined by finding whether, at that
time, training suitable for the worker is available, the training is
approvable under subpart C of this part including the criteria in Sec.
617.22(a), the worker is so situated as to be able to take full
advantage of the training and satisfactorily complete the training, full
funding for the training is available from one or more sources in
accordance with Sec. Sec. 617.24 and 617.25, the worker has the
financial resources to complete the training when the duration of the
training program exceeds the worker's eligibility for TRA, and the
training will commence within 30 days of approval.
(2) Particular applications. The reasons for any determination that
training is not feasible or is not appropriate shall be in accord with
the following:
(i) Not feasible because--
(A) The beginning date of approved training is beyond 30 days, as
required by the definition for ``Enrolled in training'' in Sec.
617.11(a)(2)(vii)(D),
(B) Training is not reasonably available to the individual,
(C) Training is not available at a reasonable cost,
(D) Funds are not available to pay the total costs of training, or
(E) Personal circumstances such as health or financial resources,
preclude participation in training or satisfactory completion of
training,
(F) Other (explain).
(ii) Not appropriate because--
(A)(1) The firm from which the individual was separated plans to
recall the individual within the reasonably foreseeable future (State
agencies must verify planned recalls with the employer),
(2) Planned recall. For the purpose of determining whether the
recall or reemployment of an individual is reasonably foreseeable (for
the purposes of this section and Sec. 617.22), either a specific or
general type of recall (as set out) shall be deemed to be sufficient.
(i) Specific recall. A specific recall is 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.
(ii) General recall. A general recall is where the employer
announces an intention to recall an individual or group of individuals,
or by other action reasonably signals an intent to recall, without
specifying any certain date or specific time period.
(iii) Reasonably foreseeable. For purposes of determining whether
training should be denied and a training waiver granted, because of a
planned recall that is reasonably foreseeable, such a planned recall
includes a specific recall and also includes a general recall (as
defined in paragraph (b)(2)(ii)(A)(2) of this section) if the general
recall in each individual's case is reasonably expected to occur before
the individual exhausts eligibility for any regular UI payments for
which the individual is or may become entitled. A general recall,
[[Page 118]]
in which the timing of the recall is reasonably expected to occur after
the individual's exhaustion of any regular UI to which the individual is
or may become entitled, shall not be treated as precluding approval of
training, but shall be treated as any other worker separation for these
purposes.
(B) The duration of training suitable for the individual exceeds the
individual's maximum entitlement to basic and additional TRA payments
and the individual cannot assure financial responsibility for completing
the training program,
(C) The individual possesses skills for ``suitable employment'' and
there is a reasonable expectation of employment in the foreseeable
future, or
(D) Other (explain).
(3) Waivers and able and available. An individual who has been
furnished a written notice of waiver under paragraph (a)(2) of this
section (or denial of waiver under paragraph (a)(3) of this section)
shall be subject to all of the requirements of Sec. 617.17(a), which
shall continue until the individual is enrolled in a training program as
required by paragraph (a)(2)(vii) of Sec. 617.11.
(c) Waiver review and revocations. (1) State agencies must have a
procedure for reviewing regularly (i.e., every 30 days or less) all
waivers issued under this section to individuals, to ascertain that the
conditions upon which the waivers were granted continue to exist. In any
case in which the conditions have changed--i.e., training has become
feasible and appropriate--then the waiver must be revoked, and a written
notice of revocation shall be furnished to the individual involved.
(2) In addition to the periodic reviews required by paragraph (c)(1)
of this section, State agencies must have a procedure for revoking
waivers in individual cases promptly whenever a change in circumstances
occurs. For example, a written notice of revocation shall be issued to
the individual concurrent with the approval of the training in which the
individual has enrolled (if such training is scheduled to commence
within 30 days), and shall not be issued prior to such approval.
(3) State agencies may incorporate a revocation section in the
waiver form or on a separate revocation form. Any determination under
paragraph (c) of this section shall be a determination to which
Sec. Sec. 617.50 and 617.51 apply. The information included in a
written notice of revocation issued under this paragraph (c) shall
include all of the information required for written notices issued under
paragraph (a)(2) of this section.
(d) Recordkeeping and reporting. (1) State agencies must develop
procedures for compiling and reporting on the number of waivers issued
and revoked, by reason, as specified in paragraphs (b) and (c) of this
section, and report such data to the Department of Labor as requested by
the Department.
(2) State agencies are not required to forward copies of individual
waiver and revocation notices to the Department of Labor, unless
specifically requested by the Department. However, each State agency
shall retain a copy of every individual waiver and revocation notice
issued by the State, for such period of time as the Department requires.
(Approved by the Office of Management and Budget under control number
1205-0016)
[59 FR 932, Jan. 6, 1994, as amended at 71 FR 35515, June 21, 2006]
Subpart C_Reemployment Services
Sec. 617.20 Responsibilities for the delivery of reemployment services.
(a) State agency referral. Cooperating State agencies shall be
responsible for:
(1) Advising each adversely affected worker to apply for training
with the State agency responsible for reemployment services, while the
worker is receiving UI payments, and at the time the individual files an
initial claim for TRA; and
(2) Referring each adversely affected worker to the State agency
responsible for training and other reemployment services in a timely
manner.
(b) State agency responsibilities. The responsibilities of
cooperating State agencies under subpart C of this part include, but are
not limited to:
(1) Interviewing each adversely affected worker regarding suitable
training opportunities reasonably available
[[Page 119]]
to each individual under subpart C of this part, reviewing such
opportunities with each individual, informing each individual of the
requirement for participation in training as a condition for receiving
TRA, and accepting each individual's application for training. Such
training may be approved for any adversely affected worker at any time
after a certification is issued and the worker is determined to be
covered without regard to whether the worker has exhausted all rights to
unemployment insurance;
(2) Registering adversely affected workers for work;
(3) Informing adversely affected workers of the reemployment
services and allowances available under the Act and this Part 617, the
application procedures, the filing date requirements for such
reemployment services and the training requirement for receiving TRA;
(4) Determining whether suitable employment, as defined in Sec.
617.22(a)(1), is available;
(5) Providing counseling, testing, placement, and supportive
services;
(6) Providing or procuring self-directed job search training, when
necessary;
(7) Providing training, job search and relocation assistance;
(8) Developing a training plan with the individual;
(9) Determining which training institutions offer training programs
at a reasonable cost and with a reasonable expectation of employment
following the completion of such training, and procuring such training;
(10) Documenting the standards and procedures used to select
occupations and training institutions in which training is approved;
(11) Making referrals and approving training programs;
(12) Monitoring the progress of workers in approved training
programs;
(13) Developing, and periodically reviewing and updating
reemployment plans for adversely affected workers;
(14) Developing and implementing a procedure for reviewing training
waivers and revocations at least every 30 days to determine whether the
conditions under which they are issued have changed; and
(15) Coordinating the administration and delivery of employment
services, benefits, training, and supplemental assistance for adversely
affected workers with programs under the Act and under Title I,
Subchapter B of the Workforce Investment Act.
[59 FR 934, Jan. 6, 1994, as amended at 71 FR 35515, June 21, 2006]
Sec. 617.21 Reemployment services and allowances.
Reemployment services and allowances shall include, as appropriate,
the services and allowances as set forth in this section, provided that
those services included within the scope of paragraphs (a) through (e)
of this section shall be provided for under any other Federal law other
than the Act.
(a) Employment registration. To ensure, so far as practical, that
individuals are placed in jobs which utilize their highest skills and
that applicants qualified for job openings are appropriately referred,
applications for registration shall be taken on adversely affected
workers who apply for reemployment services.
(b) Employment counseling. When local job opportunities are not
readily available, counseling shall be used to assist individuals to
gain a better understanding of themselves in relation to the labor
market so that they can more realistically choose or change an
occupation or make a suitable job adjustment.
(c) Vocational testing. Testing shall be used to determine which
individual skills or potentials can be developed by appropriate
training.
(d) Job development. A State agency shall develop jobs for
individuals by soliciting job interviews from public or private
employers and shall work with potential employers to customize or
restructure particular jobs to meet individual needs.
(e) Supportive services. Supportive services shall be provided so
individuals can obtain or retain employment or participate in employment
and training programs leading to eventual placement in permanent
employment. Such services may include work orientation, basic education,
communication skills, child care, and any other
[[Page 120]]
services necessary to prepare an individual for full employment in
accordance with the individual's capabilities and employment
opportunities.
(f) On-the-job training (OJT). OJT is training, in the public or
private sector, and may be provided to an individual who meets the
conditions for approval of training, as provided in Sec. 617.22(a), and
who has been hired by the employer, while the individual is engaged in
productive work which provides knowledge or skills essential to the full
and adequate performance of the job.
(g) Classroom training. This training activity is any training of
the type normally conducted in a classroom setting, including vocational
education, and may be provided to individuals when the conditions for
approval of training are met, as provided in Sec. 617.22(a), to impart
technical skills and information required to perform a specific job or
group of jobs. Training designed to enhance the employability of
individuals by upgrading basic skills, through the provision of courses
such as remedial education or English-as-a-second-language, shall be
considered as remedial education approvable under Sec. 617.22(a) if the
criteria for approval of training under Sec. 617.22(a) are met.
(h) Self-directed job search. Self-directed job search programs
shall be initiated to assist individuals in developing skills and
techniques for finding a job. Such programs vary in design and operation
and call for a carefully structured approach to individual needs. There
are basic elements or activities common to all approaches. These
include:
(1) Job search workshop. A short (1-3 days) seminar designed to
provide participants with knowledge on how to find jobs, including labor
market information, applicant resume writing, interviewing techniques,
and finding job openings.
(2) Job finding club. Encompasses all elements of the Job Search
Workshop plus a period (1-2 weeks) of structured, supervised application
where participants actually seek employment.
(i) Job search allowances. The individual, if eligible, shall be
provided job search allowances under subpart D of this part 617 to
defray the cost of seeking employment outside of the commuting area.
(j) Relocation allowances. The individual, if eligible, shall be
provided relocation allowances under subpart E of this part 617 to
defray the cost of moving to a new job outside of the commuting area.
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 934, Jan. 6, 1994]
Sec. 617.22 Approval of training.
(a) Conditions for approval. Training shall be approved for an
adversely affected worker if the State agency determines that:
(1) There is no suitable employment (which may include technical and
professional employment) available for an adversely affected worker.
(i) This means that for the worker for whom approval of training is
being considered under this section, no suitable employment is available
at that time for that worker, either in the commuting area, as defined
in Sec. 617.3(k), or outside the commuting area in an area in which the
worker desires to relocate with the assistance of a relocation allowance
under subpart E of this part, and there is no reasonable prospect of
such suitable employment becoming available for the worker in the
foreseeable future. For the purposes of paragraph (a)(1) of this section
only, the term ``suitable employment'' means, with respect to a worker,
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
that 80 percent of the worker's average weekly wage.
(2) The worker would benefit from appropriate training. (i) This
means that there is a direct relationship between the needs of the
worker for skills training or remedial education and what would be
provided by the training program under consideration for the worker, and
that the worker has the mental and physical capabilities to undertake,
make satisfactory progress in, and complete the training. This includes
the further criterion that the individual will be job ready on
completion of the training program.
(3) There is a reasonable expectation of employment following
completion of such
[[Page 121]]
training. (i) This means that, for that worker, given the job market
conditions expected to exist at the time of the completion of the
training program, there is, fairly and objectively considered, a
reasonable expectation that the worker will find a job, using the skills
and education acquired while in training, after completion of the
training. Any determination under this criterion must take into account
that ``a reasonable expectation of employment'' does not require that
employment opportunities for the worker be available, or offered,
immediately upon the completion of the approved training. This
emphasizes, rather than negates, the point that there must be a fair and
objective projection of job market conditions expected to exist at the
time of completion of the training.
(4) Training approved by the Secretary is reasonably available to
the worker from either governmental agencies or private sources (which
may include area vocational technical education schools, as defined in
Carl D. Perkins Vocational and Applied Technology Education Act, and
employers). (i) This means that training is reasonably accessible to the
worker within the worker's commuting area at any governmental or private
training (or education) provider, particularly including on-the-job
training with an employer, and it means training that is suitable for
the worker and meets the other criteria in paragraph (a) of this
section. It also means that emphasis must be given to finding accessible
training for the worker, although not precluding training outside the
commuting area if none is available at the time within the worker's
commuting area. Whether the training is within or outside the commuting
area, the training must be available at a reasonable cost as prescribed
in paragraph (a)(6) of this section.
(ii) In determining whether or not training is reasonably available,
first consideration shall be given to training opportunities available
within the worker's normal commuting area. Training at facilities
outside the worker's normal commuting area should be approved only if
such training is not available in the area or the training to be
provided outside the normal commuting area will involve less charges to
TAA funds.
(5) The worker is qualified to undertake and complete such training.
(i) This emphasizes the worker's personal qualifications to undertake
and complete approved training. Evaluation of the worker's personal
qualifications must include the worker's physical and mental
capabilities, educational background, work experience and financial
resources, as adequate to undertake and complete the specific training
program being considered.
(ii) Evaluation of the worker's financial ability shall include an
analysis of the worker's remaining weeks of UI and TRA payments in
relation to the duration of the training program. If the worker's UI and
TRA payments will be exhausted before the end of the training program,
it shall be ascertained whether personal or family resources will be
available to the worker to complete the training. It must be noted on
the worker's record that financial resources were discussed with the
worker before the training was approved.
(iii) When adequate financial resources will not be available to the
worker to complete a training program which exceeds the duration of UI
and TRA payments, the training shall not be approved and consideration
shall be given to other training opportunities available to the worker.
(6) Such training is suitable for the worker and available at a
reasonable cost. (i) Such training means the training being considered
for the worker. Suitable for the worker means that paragraph (a)(5) of
this section is met and that the training is appropriate for the worker
given the worker's capabilities, background and experience.
(ii) Available at a reasonable cost means that training may not be
approved at one provider when, all costs being considered, training
substantially similar in quality, content and results can be obtained
from another provider at a lower total cost within a similar time frame.
It also means that training may not be approved when the costs of the
training are unreasonably high in comparison with the average costs of
training other workers in similar occupations at other providers.
[[Page 122]]
This criterion also requires taking into consideration the funding of
training costs from sources other than TAA funds, and the least cost to
TAA funding of providing suitable training opportunities to the worker.
Greater emphasis will need to be given to these elements in determining
the reasonable costs of training, particularly in view of the
requirements in Sec. 617.11(a) (2) and (3) that TRA claimants be
enrolled in and participate in training.
(iii) For the purpose of determining reasonable costs of training,
the following elements shall be considered:
(A) Costs of a training program shall include tuition and related
expenses (books, tools, and academic fees), travel or transportation
expenses, and subsistence expenses;
(B) In determining whether the costs of a particular training
program are reasonable, first consideration must be given to the lowest
cost training which is available within the commuting area. When
training, substantially similar in quality, content and results, is
offered at more than one training provider, the lowest cost training
shall be approved; and
(C) Training at facilities outside the worker's normal commuting
area that involves transportation or subsistence costs which add
substantially to the total costs shall not be approved if other
appropriate training is available.
(b) Allowable amounts for training. In approving a worker's
application for training, the conditions for approval in paragraph (a)
of this section must be found to be satisfied, including assurance that
the training is suitable for the worker, is at the lowest reasonable
cost, and will enable the worker to obtain employment within a
reasonable period of time. An application for training shall be denied
if it is for training in an occupational area which requires an
extraordinarily high skill level and for which the total costs of the
training are substantially higher than the costs of other training which
is suitable for the worker.
(c) Previous approval of training under State law. Training
previously approved for a worker under State law or other authority is
not training approved under paragraph (a) of this section. Any such
training may be approved under paragraph (a) of this section, if all of
the requirements and limitations of paragraph (a) of this section and
other provisions of Subpart C of this part are met, but such approval
shall not be retroactive for any of the purposes of this Part 617,
including payment of the costs of the training and payment of TRA to the
worker participating in the training. However, in the case of a
redetermination or decision reversing a determination denying approval
of training, for the purposes of this Part 617 such redetermination or
decision shall be given effect retroactive to the issuance of the
determination that was reversed by such redetermination or decision; but
no costs of training may be paid unless such costs actually were
incurred for training in which the individual participated, and no
additional TRA may be paid with respect to any week the individual was
not actually participating in the training.
(d) Applications. Applications for, selection for, approval of, or
referral to training shall be filed in accordance with this subpart C
and on forms which shall be furnished to individuals by the State
agency.
(e) Determinations. Selection for, approval of, or referral of an
individual to training under this subpart C, or a decision with respect
to any specific training or non-selection, non-approval, or non-referral
for any reason shall be a determination to which Sec. Sec. 617.50 and
617.51 apply.
(f) Length of training and hours of attendance. The State agency
shall determine the appropriateness of the length of training and the
hours of attendance as follows:
(1) The training shall be of suitable duration to achieve the
desired skill level in the shortest possible time;
(2) Length of training. The maximum duration for any approvable
training program is 104 weeks (during which training is conducted) and
no individual shall be entitled to more than one training program under
a single certification.
(3) Training program. (i) For purposes of this Part 617, a training
program may consist of a single course or group
[[Page 123]]
of courses which is designed and approved by the State agency for an
individual to meet a specific occupational goal.
(ii) When an approved training program involves more than one course
and involves breaks in training (within or between courses, or within or
between terms, quarters, semesters and academic years), all such breaks
in training are subject to the ``14-day break in training'' provision in
Sec. 617.15(d), for purposes of receiving TRA payments. An individual's
approved training program may be amended by the State agency to add a
course designed to satisfy unforeseen needs of the individual, such as
remedial education or specific occupational skills, as long as the
length of the amended training program does not exceed the 104-week
training limitation in paragraph (f)(2) of this section.
(4) Full-time training. Individuals in TAA approved training shall
attend training full time, and when other training is combined with OJT
attendance at both shall be not less than full-time. The hours in a day
and days in a week of attendance in training shall be full-time in
accordance with established hours and days of training of the training
provider.
(g) Training of reemployed workers. Adversely affected workers who
obtain new employment which is not suitable employment, as described in
Sec. 617.22(a)(1), and have been approved for training may elect to:
(1) Terminate their jobs, or
(2) Continue in full- or part-time employment, to undertake such
training, and shall not be subject to ineligibility or disqualification
for UI or TRA as a result of such termination or reduction in
employment.
(h) Fees prohibited. In no case shall an individual be approved for
training under this subpart C for which the individual is required to
pay a fee or tuition.
(i) Training outside the United States. In no case shall an
individual be approved for training under this subpart C which is
conducted totally or partially at a location outside the United States.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32350, Aug. 24, 1988;
59 FR 935, Jan. 6, 1994; 71 FR 35515, June 21, 2006]
Sec. 617.23 Selection of training methods and programs.
(a) State agency responsibilities. If suitable employment as
described in Sec. 617.22(a)(1), is not otherwise available to an
individual or group of individuals, it is the responsibility of the
State agency to explore, identify, develop and secure training
opportunities and to establish linkages with other public and private
agencies, Workforce Investment Boards (WIBs), employers, and Workforce
Investment Act (WIA) service delivery area (SDA) grant recipients, as
appropriate, which return adversely affected workers to employment as
soon as possible.
(b) Firm-specific retraining program. To the extent practicable
before referring an adversely affected worker to approved training, the
State agency shall consult with the individual's adversely affected firm
and certified or recognized union, or other authorized representative,
to develop a retraining program that meets the firm's staffing needs and
preserves or restores the employment relationship between the individual
and the firm. The fact that there is no need by other employers in the
area for individuals in a specific occupation for which training is
undertaken shall not preclude the development of an individual
retraining program for such occupation with the adversely affected firm.
(c) Methods of training. Adversely affected workers may be provided
either one or a combination of the following methods of training:
(1) Insofar as possible, priority will be given to on-the-job
training, which includes related education necessary to acquire skills
needed for a position within a particular occupation, in the firm or
elsewhere pursuant to Sec. Sec. 617.24, 617.25, and 617.26, including
training for which the firm pays the costs. This ensures that on-the-job
training provides the skills necessary for the individual to obtain
employment in an occupation rather than a particular job at a specific
site; and
[[Page 124]]
(2) Institutional training, with priority given to providing the
training in public area vocational education schools if it is determined
that such schools are at least as effective and efficient as other
institutional alternatives, pursuant to Sec. Sec. 617.24, 617.25, and
617.26.
(d) Standards and procedures. The State agency shall document the
standards and procedures used to select occupations and training
institutions in which training is approved. Such occupations and
training shall offer a reasonable expectation (not necessarily a prior
guarantee) of employment following such training.
(1) Standards. The State agency shall approve training in
occupations for which an identifiable demand exists either in the local
labor market or in other labor markets for which relocation planning has
been implemented. If practicable, placement rates and employer reviews
of curriculum shall be used as guides in the selection of training
institutions.
(2) Procedures. In determining the types of training to be provided,
the State agency shall consult with local employers, appropriate labor
organizations, WIBs and other WIA One-Stop partners, WIBs, local
educational organizations, local apprenticeship programs, local advisory
councils established under the Carl D. Perkins Vocational Education Act,
and post-secondary institutions.
(3) Exclusions. In determining suitable training the State agency
shall exclude certain occupations, where:
(i) Lack of employment opportunities exist as substantiated by job
orders and other pertinent labor market data; or
(ii) The occupation provides no reasonable expectation of permanent
employment.
[51 FR 45848, Dec. 22, 1986, as amended at 71 FR 35515, June 21, 2006]
Sec. 617.24 Preferred training.
Training programs that may be approved under Sec. 617.22(a)
include, but are not limited to--
(a) On-the-job training,
(b) Any training program provided by a State pursuant to Title I,
subchapter B of the Workforce Investment Act,
(c) Any training program approved by a Workforce Investment Board
established under the Workforce Investment Act,
(d) Any program of remedial education,
(e) Any training program (other than a training program described in
paragraph (c) of Sec. 617.25) for which all, or any portion, of the
costs of training the worker are paid--
(1) Under any other Federal or State program other than this subpart
C, or
(2) From any other source other than this section, but not including
sources personal to the individual, such as self, relatives, or friends,
and
(f) Any other training program approved by the Department.
[59 FR 936, Jan. 6, 1994, as amended at 71 FR 35515, June 21, 2006]
Sec. 617.25 Limitations on training under Subpart C of this part.
The second sentence of amended section 236(a)(1) of the Act provides
that an adversely affected worker shall be entitled to have payment of
the costs of training approved under the Act paid on the worker's
behalf, subject, however, ``to the limitations imposed by'' section 236.
The limitations in section 236 which are implemented in this section
concern the restrictions on approval of training which are related
directly or indirectly to the conditions on training which are
approvable or on the funding of training costs.
(a) On-the-job training. The costs of on-the-job training approved
subpart C of this part for a worker, which are paid from TAA funds,
shall be paid in equal monthly installments. Such costs may be paid from
TAA funds, and such training may be approved under subpart C of this
part, however, only if the State agency determines that:
(1) No currently employed individual is displaced by such eligible
worker, including partial displacement such as a reduction in the hours
of non-overtime work, wages, or employment benefits;
(2) Such training does not impair existing contracts for services or
collective bargaining agreements;
(3) In the case of training which would be inconsistent with the
terms of a collective bargaining agreement,
[[Page 125]]
written concurrence has been obtained from the concerned labor
organization;
(4) No other individual is on layoff from the same or any
substantially equivalent job for which such eligible worker is being
trained;
(5) The employer has not terminated the employment of any regular
employee or otherwise reduced the work force with the intention of
filling the vacancy so created by hiring the eligible worker;
(6) The job for which the eligible worker is being trained is not
being created in a promotional line that will infringe in any way upon
the promotional opportunities of currently employed individuals;
(7) Such training is not for the same occupation from which the
worker was separated and with respect to which such worker's group was
certified pursuant to section 222 of the Act;
(8) The employer certifies to the State agency that the employer
will continue to employ the eligible worker for at least 26 weeks after
completing the training if the worker desires to continue such
employment and the employer does not have due cause to terminate such
employment;
(9) The employer has not received payment under this subpart C or
under any other Federal law for any other on-the-job training provided
by such employer which failed to meet the requirements of paragraphs
(a)(1) through (a)(6) of this section or such other Federal law; and
(10) The employer has not taken, at any time, any action which
violated the terms of any certification described in paragraph (a)(8) of
this section made by the employer with respect to any other on-the-job
training provided by the employer for which the employer has received a
payment under subpart C of this part (or the prior provisions of subpart
C of this part).
(b) Other authority and restrictions on funding--
(1) In general. Section 236(a) contains several provisions which
allow the costs of a training program approved under the Act to be
paid--
(i) Solely from TAA funds,
(ii) Solely from other public or private funds, or
(iii) Partly from TAA funds and partly from other public or private
funds,
but also precludes the use of TAA funds or funds under another Federal
law where such use of funds would result in duplication of payment of
training costs. Those authorities and restrictions are spelled out in
paragraph (b) of this section: Provided, that, private funds may not
include funds from sources personal to the individual, such as self,
relatives, or friends.
(2) Section 236(a)(5)(E) of the Act. (i) In general. Paragraph
(5)(E) of section 236(a) of the Act specifies one of the types of
training programs approvable under the Act, as including a program
(other than a training program described in section 236(a)(7) (paragraph
(b)(5) of this section)) for which all, or any portion, of the costs of
the training program are paid--
(A) Under any Federal or State program other than the Act, or
(B) From any source other than TAA funds.
(ii) Application. Paragraph (E) of section 236(a)(5) of the Act thus
authorizes prearrangements between cooperating State agencies
administering the TAA program and the authorities administering any
other Federal, State, or private funding source, to agree upon any mix
of TAA funds and other funds for paying the costs of a training program
approved under subpart C of this part. Any such prearrangement must
contain specific commitments from the other authorities to pay the costs
they agree to assume.
(3) Section 236(a)(6) of the Act. (i) In general. Paragraph (6) of
section 236(a) of the Act is related to section 236(a)(5)(E) in
providing that the costs of a training program approved under the Act
are not required to be paid from TAA funds to the extent that such costs
are paid under any Federal or State program other than the Act or from
any source other than the Act.
(ii) Application. (A) Although paragraph (6) of section 236(a) of
the Act is expressed in terms of the costs not being required to be paid
from TAA funds, it authorizes the mixing of TAA funds and funds from any
other Federal, State or private source. Therefore, sharing the future
costs of training is authorized where prior costs
[[Page 126]]
were paid from another Federal, State or private source, but this does
not authorize reimbursement from TAA funds of any training costs which
were incurred and for which payment became due prior to the approval of
the training program under subpart C of this part. In utilizing the
authority under paragraph (b)(3) of this section for sharing training
costs, prearrangements shall be entered into as required under paragraph
(b)(2) of this section before any TAA funds are obligated.
(B) Paragraph (6) of section 236(a) contains a special restriction
on the authority derived thereunder to use TAA funds in sharing training
costs. Therefore, before approving any training program under subpart C
of this part, which may involve sharing of the training costs under the
authority of paragraph (b)(3) of this section, the cooperating State
agencies for the TAA program shall require the worker to enter into a
written agreement with the State under which TAA funds will not be
applied for or used to pay any portion of the costs of the training the
worker has reason to believe will be paid by any other governmental or
private source.
(4) Section 236(a)(4) of the Act. (i) In general. (A) Paragraph (4)
of section 236(a) of the Act (paragraph (3) of section 236(a) before
August 23, 1988) continues to provide, as it did before the addition of
paragraphs (5)(E), (6), and (7) to section 236(a), that:
(1) When the costs of training are paid from TAA funds under subpart
C of this part, no other payment for such costs of training may be made
under any other Federal law; and
(2) When the payment of the costs of training has already been made
under any other Federal law, or the costs are reimbursable under any
other Federal law and a portion of the costs has already been paid under
such other Federal law, payment of such training costs may not be made
from TAA funds.
(B) Paragraph (4) of section 236(a) also requires that: The
provisions of paragraphs (b)(4)(i) (A)(1) and (A)(2) of this section
shall not apply to, or take into account, any funds provided under any
other provision of Federal law which are used for any purpose other than
the direct payment of the identical costs incurred in training the
adversely affected worker under the TAA Program, even if such other use
has the effect of indirectly paying or reducing any portion of the costs
involved in training the adversely affected worker.
(ii) Application. (A) Although the prohibition on duplicate payments
in the first part of section 236(a)(4) remains fully implemented in this
section, the second part of section 236(a)(4) on the sharing of costs
from TAA funds and other Federal fund sources is modified by the
explicit provisions of paragraphs (5)(E) and (6) of section 236(a), as
set forth in paragraphs (b)(2) and (b)(3) of this section.
(B) When the direct costs of a training program approvable under
subpart C of this part are payable from TAA funds and are also wholly or
partially payable under another Federal law, or under any State law or
from private, nongovernmental sources, the TAA Program agencies shall
establish procedures which ensure that TAA funds shall not be utilized
to duplicate funds available from another source, but this preclusion of
duplication does not prohibit and shall not discourage sharing of costs
under prearrangements authorized under paragraphs (b)(2) and (b)(3) of
this section.
(C)(1) Therefore, pursuant to paragraph (4) of section 236(a),
paragraph (b)(4) of this section continues to prohibit duplicate payment
of training costs, which is consistent with the general prohibition
expressed in subpart C of this part, against any use of TAA funds to
duplicate payment of training costs in any circumstances. Paragraph
(b)(4) of this section also continues to prohibit taking into account,
in determining whether training costs are payable from TAA funds, any
payments to the worker under any other Federal law which may have the
effect of indirectly paying all or a portion of the training costs. Such
indirect payments include Veterans Educational Assistance, Pell Grants,
and Supplemental Educational Opportunity Grants, which are paid to the
individual. However, any payments to the individual under these programs
are deductible from TRA payable to the individual under Sec.
617.13(c)(2).
[[Page 127]]
(2) When payments of Veterans Educational Assistance, Pell Grants,
and Supplemental Educational Opportunity Grants are made to the training
provider, instead of the individual, and are used for training costs,
such payments shall be taken into account as direct payment of the
training costs under other Federal law for the purposes of this section.
(5) Section 236(a)(7) of the Act. (i) In general. Paragraph (7) of
section 236(a) of the Act provides that a training program shall not be
approved under the Act if--
(A) all or a portion of the costs of such training program are paid
under any nongovernmental plan or program,
(B) the adversely affected worker has a right to obtain training or
funds for training under such plan or program, and
(C) such plan or program requires the worker to reimburse the plan
or program from funds provided under the Act, or from wages paid under
such training program, for any portion of the costs of such training
program paid under the plan or program.
(ii) Application. Paragraph (7) of section 236(a), which is
implemented in paragraph (b)(5) of this section, reinforces the
prohibition in Sec. 617.22(h) against approval of a training program
under subpart C of this part if the worker is required to pay a fee or
tuition. The provisions of paragraph (b) and paragraph (h) of this
section shall be given effect as prohibiting the approval under subpart
C of this part of any training program if the worker would be requested
or required, at any time or under any circumstances, to pay any of the
costs of a training program, however small, from any TAA funds given to
the worker or from any other funds belonging to the worker from any
source whatever. Aside from this stringent limitation, however,
paragraph (7) of section 236(a) of the Act implicitly authorizes
training approved under this subpart C to be wholly or partly funded
from nongovernmental (i.e., employer, union or other private) sources.
[59 FR 936, Jan. 6, 1994]
Sec. 617.26 Liable and agent State responsibilities.
(a) Liable State. The liable State means, for any individual, the
State which administers the applicable State law (as determined under
Sec. 617.16). The liable State is responsible for making all
determinations, redeterminations, and decisions on appeals on all claims
for program benefits under this part 617, including waivers and
revocations of waivers pursuant to Sec. 617.19, subsistence payments
pursuant to Sec. 617.27, and transportation payments pursuant to Sec.
617.28. Upon receiving a copy of a certification issued by the
Department, with respect to an affected firm in the State, the liable
State also is responsible for publishing newspaper notices as provided
in Sec. 617.4(d), furnishing information and assistance to workers as
provided in Sec. 617.4, furnishing reemployment services under subparts
C, D, and E of this part to all eligible workers covered by such
certification, and carrying out other activities and functions required
by the State's Agreement with the Secretary entered into pursuant to
Sec. 617.59. All determinations pertaining to any individual's
eligibility for or entitlement to any program benefit under this part
617 shall be subject to the provisions of Sec. Sec. 617.50 and 617.51.
(b) Agent State. Agent State means, for any individual, any State
other than the liable State for the individual. Agent States shall be
responsible for cooperating fully with the liable State and assisting
the liable State in carrying out its activities and functions. These
agent State responsibilities shall be part of the activities and
functions undertaken by the agent States under their Agreements entered
into pursuant to Sec. 617.59. Agent State responsibilities include
cooperating with liable States in taking applications and claims for
TAA, providing reemployment services to certified workers in accordance
with subparts B, C, D and E of this part, providing interstate claimants
with TAA program information and assistance, assisting applicants or
claimants to file claims for TAA program benefits and services,
cooperating with the liable State by providing information needed to
issue determinations, redeterminations, and decisions
[[Page 128]]
on appeals, and procuring and paying the cost of any approved training,
including subsistence and transportation costs, according to
determinations issued by the liable State.
[59 FR 938, Jan. 6, 1994]
Sec. 617.27 Subsistence payments.
(a) Eligibility. A trainee under this subpart C shall be afforded
supplemental assistance necessary to pay costs of separate maintenance
when the training facility is located outside the commuting area, but
may not receive such supplemental assistance for any period for which
the trainee receives such a payment under the Workforce Investment Act,
or any other law, or for any day referred to under Sec. 617.28(c)(3)
pursuant to which a transportation allowance is payable to the
individual, or to the extent the individual is entitled to be paid or
reimbursed for such expenses from any other source.
(b) Amount. Subsistence payments shall not exceed the lesser of:
(1) The individual's actual per diem expenses for subsistence; or
(2) 50 percent of the prevailing per diem rate authorized under the
Federal travel regulations (see 41 CFR part 101-7) for the locale of the
training.
(c) Applications. Applications for subsistence payments shall be
filed in accordance with this subpart C and on forms which shall be
furnished to trainees by the State agency. Such payments shall be made
on completion of a week of training, except that at the beginning of a
training project a State agency may advance a payment for a week if it
determines that such advance is necessary to enable a trainee to accept
training. An adjustment shall be made if the amount of an advance is
less or more than the amount to which the trainee is entitled under
paragraph (b) of this section. A determination as to an application made
under this section shall be subject to Sec. Sec. 617.50 and 617.51.
(d) Unexcused absences. No subsistence payment shall be made to an
individual for any day of unexcused absence as certified by the
responsible training facility.
[51 FR 45848, Dec. 22, 1986, as amended at 71 FR 35516, June 21, 2006]
Sec. 617.28 Transportation payments.
(a) Eligibility. A trainee under this subpart C shall be afforded
supplemental assistance necessary to pay transportation expenses if the
training is outside the commuting area, but may not receive such
assistance if transportation is arranged for the trainee as part of a
group and paid for by the State agency or to the extent the trainee
receives a payment of transportation expenses under another Federal law,
or to the extent the individual is entitled to be paid or reimbursed for
such expenses from any other source.
(b) Amount. A transportation allowance shall not exceed the lesser
of:
(1) The actual cost for travel by the least expensive means of
transportation reasonably available between the trainee's home and the
training facility; or
(2) The cost per mile at the prevailing mileage rate authorized
under the Federal travel regulations. See 41 CFR part 101-7.
(c) Travel included. Travel for which a transportation allowance
shall be paid includes travel:
(1) At the beginning and end of the training program;
(2) When the trainee fails for good cause, as described in Sec.
617.18(b)(2), to complete the training program; and
(3) For daily commuting, in lieu of subsistence, but not exceeding
the amount otherwise payable as subsistence for each day of commuting.
(d) Applications. Applications for transportation payments shall be
filed in accordance with this subpart C and on forms which shall be
furnished to trainees by the State agency. Payments may be made in
advance. An adjustment shall be made if the amount of an advance is less
or more than the amount to which the trainee is entitled under paragraph
(b) of this section. A determination as to an application made under
this section shall be subject to Sec. Sec. 617.50 and 617.51.
[[Page 129]]
Sec. 617.29 Application of EB work test.
(a) Registration for employment. Adversely affected workers who have
exhausted all rights to UI and who otherwise qualify for TRA under Sec.
617.11, shall, except as provided in paragraph (b) of this section:
(1) Register for work and be referred to work by the State agency in
the same manner as required for EB claimants under the applicable State
law provisions which are consistent with section 202(a)(3) of the
Federal-State Extended Unemployment Compensation Act of 1970; and
(2) Be subject to the work test requirements for EB claimants under
the applicable State law provisions which are consistent with section
202(a)(3) of the Federal-State Extended Unemployment Compensation Act of
1970.
(b) Exceptions. Paragraph (a) of this section shall not apply to any
week an individual is undergoing training approved under this subpart C.
Subpart D_Job Search Allowances
Sec. 617.30 General.
A job search allowance shall be granted an adversely affected worker
to assist the individual in securing a job within the United States as
provided in this subpart D.
Sec. 617.31 Applications.
(a) Forms. Applications for job search allowances shall be filed in
accordance with this subpart D and on forms which shall be furnished to
individuals by the State agency.
(b) Submittal. An application may be submitted to a State agency at
any time by an individual who has been totally or partially separated
whether or not a certification covering the individual has been made.
However, an application must be submitted to a State agency before the
job search begins for the job search allowance to be granted, and the
job search may not be approved until after the individual is covered
under a certification.
(c) Time limits. Notwithstanding paragraph (b) of this section, a
job search allowance application may be approved only if submitted
before:
(1) The 365th day after the date of the certification under which
the individual is covered, or the 365th day after the date of the
individual's last total separation, whichever is later; or
(2) The 182d day after the concluding date of training approved
under subpart C of this part 617, or approved under the regulations
superseded by this part 617.
Sec. 617.32 Eligibility.
(a) Conditions. Job search allowance eligibility requires:
(1) A timely filed application;
(2) Total separation from adversely affected employment at the time
the job search commences;
(3) Registration with the State agency which shall furnish the
individual such reemployment services as are appropriate under subpart C
of this part 617.
(4) A determination by the State agency that the individual has no
reasonable expectation of securing suitable employment in the commuting
area, and has a reasonable expectation of obtaining suitable employment
of long-term duration outside the commuting area and in the area where
the job search will be conducted. For the purposes of this section, the
term ``suitable employment'' means suitable work as defined in Sec.
617.3(kk) (1) or (2), whichever is applicable to the individual; and
(5) Completion of the job search within a reasonable period not
exceeding 30 days after the day on which the job search began.
(b) Completion of job search. A job search is deemed completed when
the individual either secures employment or has contacted each employer
to whom referred by the State agency in connection with a job search.
(c) Verification of employer contacts. The State agency shall verify
contacts with employers certified by the individual.
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 938, Jan. 6, 1994]
Sec. 617.33 Findings required.
(a) Findings by liable State. Before final payment of a job search
allowance may be approved, the following
[[Page 130]]
findings shall be made by the liable State:
(1) The individual meets the eligibility requirements for a job
search allowance specified in Sec. 617.32(a) (1) through (4);
(2) The application for a job search allowance was submitted by the
individual within the time limits specified in Sec. 617.31(c); and
(3) The individual completed the job search within the time limits
stated in Sec. 617.32(a)(5), and the requirements of paragraphs (b) and
(c) of Sec. 617.32 have been met.
(b) Agent State. (1) When an individual files an application for a
job search allowance with respect to a job search conducted in a State
other than the liable State, the State agency of the State in which the
individual conducts the job search shall serve as the agent State and be
responsible for assisting the individual in conducting the job search
and in filing an application for a job search allowance with the liable
State, and for assisting the liable State by furnishing to it any
information required for the liable State's determination of the claim.
(2) The agent State shall cooperate fully with the liable State in
carrying out its activities and functions with regard to such
applications.
[59 FR 938, Jan. 6, 1994]
Sec. 617.34 Amount.
(a) Computation. The amount of a job search allowance shall be 90
percent of the total costs of each of the following allowable
transportation and subsistence items:
(1) Travel. The more cost effective mode of travel reasonably
available shall be approved by using:
(i) The actual cost of round trip travel by the most economical
public transportation the individual reasonably can be expected to take
from the individual's residence to the area of job search; or
(ii) The cost per mile at the prevailing mileage rate authorized
under the Federal travel regulations (see 41 CFR part 101-7) for such
roundtrip travel by the usual route from the individual's residence to
the area of job search.
(2) Lodging and meals. The cost allowable for lodging and meals
shall not exceed the lesser of:
(i) The actual cost to the individual of lodging and meals while
engaged in the job search; or
(ii) 50 percent of the prevailing per diem allowance rate authorized
under the Federal travel regulations (see 41 CFR part 101-7) for the
locality where the job search is conducted.
(b) Limit. The total job search allowances paid to an individual
under a certification may not exceed $800, regardless of the number of
job searches undertaken by the individual. The amounts otherwise payable
under paragraph (a) of this section shall be reduced by any amounts the
individual is entitled to be paid or reimbursed for such expenses from
any other source.
[51 FR 45848, Dec. 22, 1986, as amended at 51 FR 45869, Dec. 22, 1986;
53 FR 32351, Aug. 24, 1988; 59 FR 939, Jan. 6, 1994]
Sec. 617.35 Time and method of payment.
(a) Determinations. A State agency shall promptly make and record
determinations necessary to assure entitlement of an individual to a job
search allowance at any time, before or after a certification covering
the individual is made. No job search allowance may be paid or advanced
to an individual until the State agency determines that the individual
is covered under a certification. A State agency shall make payment as
promptly as possible upon determining that the individual is covered
under a certification and is otherwise eligible.
(b) Payment. Unless paragraph (a) of this section applies, a job
search allowance shall be paid promptly after an individual completes a
job search and complies with paragraph (d) of this section.
(c) Advances. A State agency may advance an individual (except an
individual not yet covered under a certification) 60 percent of the
estimated amount of the job search allowance payable on completion of
the job search, but not exceeding $360, within 5 days prior to
commencement of a job search. Such advance shall be deducted from any
payment under paragraph (b) of this section.
[[Page 131]]
(d) Worker evidence. On completion of a job search, the individual
shall certify on forms furnished by the State agency as to employer
contacts made and amounts expended daily for lodging and meals. Receipts
shall be required for all lodging and purchased transportation expenses
incurred by the individual pursuant to the job search. An adjustment
shall be made if the amount of an advance is less or more than the
amount to which the individual is entitled under Sec. 617.34.
Subpart E_Relocation Allowances
Sec. 617.40 General.
A relocation allowance shall be granted an adversely affected worker
to assist the individual and the individual's family, if any, to
relocate within the United States as stated in this subpart E. A
relocation allowance may be granted an individual only once under a
certification. A relocation allowance shall not be granted to more than
one member of a family with respect to the same relocation. If
applications for a relocation allowance are made by more than one member
of a family as to the same relocation, the allowance shall be paid to
the head of the family if otherwise eligible.
Sec. 617.41 Applications.
(a) Forms. Applications for a relocation allowance shall be filed in
accordance with this subpart E and on forms which shall be furnished by
the State agency.
(b) Submittal. An application may be submitted to the State agency
at any time by an individual who has been totally or partially separated
regardless of whether a certification covering the individual has been
made. However, an application must be submitted to a State agency before
the relocation begins for the relocation allowance to be granted, and
the relocation may not be approved until after the individual is covered
under a certification.
(c) Time limits. Notwithstanding paragraph (b) of this section, an
application for a relocation allowance may not be approved unless
submitted before:
(1) The 425th day after the date of the certification under which
the individual is covered, or the 425th day after the date of the
individual's last total separation, whichever is later; or
(2) The 182d day after the concluding date of training approved
under subpart C of this part 617, or approved under the regulations
superseded by this part 617.
Sec. 617.42 Eligibility.
(a) Conditions. Eligibility for a relocation allowance requires:
(1) A timely filed application;
(2) Total separation from adversely affected employment at the time
relocation commences;
(3) No prior receipt of a relocation allowance under the same
certification;
(4) Relocation within the United States and outside the individual's
present commuting area;
(5) Registration with the State agency which shall furnish the
individual such reemployment services as are appropriate under subpart C
of this part 617;
(6) A determination by the State agency that the individual has no
reasonable expectation of securing suitable employment in the commuting
area, and has obtained suitable employment affording a reasonable
expectation of employment of long-term duration, or a bona fide offer of
such suitable employment, outside the commuting area and in the area of
intended relocation. For the purposes of this section, the term
``suitable employment'' means suitable work as defined in Sec.
617.3(kk) (1) and (2), whichever is applicable to the individual; and
(7) Relocation beginning within a reasonable period, as determined
under Sec. 617.43(b), and completion of such relocation within a
reasonable period of time as determined in accordance with Federal
travel regulations and Sec. 617.43(a).
(b) Job search. Applications for a relocation allowance and a job
search allowance may not be approved concurrently, but the prior payment
of a job search allowance shall not otherwise preclude the payment of a
relocation allowance.
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 939, Jan. 6, 1994]
[[Page 132]]
Sec. 617.43 Time of relocation.
(a) Applicable considerations. In determining whether an
individual's relocation is completed in a reasonable period of time, a
State agency, among other factors, shall consider whether:
(1) Suitable housing is available in the area of relocation;
(2) The individual can dispose of the individual's residence;
(3) The individual or a family member is ill; and
(4) A member of the individual's family is attending school and when
the member can best be transferred to a school in the area of
relocation.
(b) Time limits. The reasonable period for actually beginning a
relocation move shall expire 182 days after the date of application for
a relocation allowance, or 182 days after the conclusion of training
approved under subpart C of this part 617, or approved under the
regulations in former 29 CFR part 91, in effect prior to its
redesignation as this 20 CFR part 617 and its concurrent revision.
Sec. 617.44 Findings required.
(a) Findings by liable State. Before final payment of a relocation
allowance may be approved, the following findings shall be made by the
liable State:
(1) The individual meets the eligibility requirements for a
relocation allowance specified in Sec. 617.42(a) (1) to (6) and Sec.
617.42(b).
(2) The application for a relocation allowance was submitted by the
individual within the time limits specified in Sec. 617.41(c);
(3) The individual began and completed the relocation within the
limitations specified in Sec. 617.42(a)(7) and Sec. 617.43; and
(4) The liable State has verified (directly or through the agent
State) with the employer, and finds, that the individual has obtained
suitable employment affording a reasonable expectation of employment of
long-term duration, or a bona fide offer of such suitable employment, in
the area of intended relocation, in accordance with Sec. 617.42(a)(6).
(b) Agent State. (1) When an individual relocates in a State other
than the liable State, the State agency of the State in which the
individual relocates shall serve as the agent State and be responsible
for:
(i) Assisting the individual in relocating to the State, and in
filing an application for a relocation allowance with the liable State,
and
(ii) Assisting the liable State by furnishing to it any information
required for the liable State's determination on the claim.
(2) The agent State shall cooperate with the liable State in
carrying out its activities and functions with regard to such
applications. When requested by the liable State, the agent State shall
verify with the employer and report to the liable State whether the
individual has obtained suitable employment affording a reasonable
expectation of employment of long-term duration, or a bona fide offer of
such suitable employment.
[59 FR 939, Jan. 6, 1994]
Sec. 617.45 Amount.
(a) Items allowable. The amount payable as a relocation allowance
shall include the following items:
(1) 90 percent of the travel expenses for the individual and family,
if any, from the individual's place of residence to the area of
relocation, as determined under Sec. 617.46;
(2) 90 percent of the expenses of moving household goods and
personal effects of the individual and family, if any, not to exceed the
maximum number of pounds net weight authorized under the Federal travel
regulations (see 41 CFR part 101-7), between such locations, as
determined under Sec. 617.47; and
(3) A lump sum payment, equal to 3 times the individual's average
weekly wage, not to exceed $800.
(b) Reduction. The amount otherwise payable under paragraphs (a)(1)
and (a)(2) of this section shall be reduced by any amount the individual
is entitled to be paid or reimbursed for such expenses from any other
source.
[51 FR 45848, Dec. 22, 1986, as amended at 51 FR 45869, Dec. 22, 1986]
Sec. 617.46 Travel allowance.
(a) Computation. The amount of travel allowance (including lodging
and
[[Page 133]]
meals) payable under Sec. 617.45(a)(1) shall be 90 percent of the total
costs of each of the following allowable transportation and subsistence
items:
(1) Transportation. The more cost effective mode of transportation
reasonably available shall be approved by using:
(i) The actual cost of transportation for the individual and family,
if any, by the most economical public transportation the individual and
family reasonably can be expected to take from the individual's old
residence to the individual's new residence in the area of relocation;
or
(ii) The cost per mile at the prevailing mileage rate authorized
under the Federal travel regulations (see 41 CFR part 101-7) for the
usually traveled route from the individual's old residence to the
individual's new residence in the area of relocation. No additional
mileage shall be payable for family members traveling on the same trip
in the same vehicle.
(2) Lodging and meals. The cost allowable for lodging and meals for
an individual or each member of the individual's family shall not exceed
the lesser of:
(i) The actual cost to the individual for lodging and meals while in
travel status; or
(ii) 50 percent of the prevailing per diem allowance rate authorized
under the Federal travel regulations (see 41 CFR part 101-7) for the
locality to which the relocation is made.
(b) Separate travel. If, for good cause, a member or members of an
individual's family must travel separately to the individual's new
residence, 90 percent of the total costs of such separate travel,
computed in accordance with paragraph (a) of this section, shall be
included in calculating the total amount the individual is entitled to
be paid under this subpart E. For purposes of this paragraph (b), good
cause means such reasons as would justify the family member's inability
to relocate with the other members of the individual's family, including
but not limited to reasons related to the family member's health,
schooling or economic circumstances.
(c) Limitation. In no case may the individual be paid a travel
allowance for the individual or a member of the individual's family more
than once in connection with a single relocation.
[51 FR 45848, Dec. 22, 1986, as amended at 53 FR 32351, Aug. 24, 1988]
Sec. 617.47 Moving allowance.
(a) Computation. The amount of a moving allowance payable under
Sec. 617.45(a)(2) shall be 90 percent of the total of the allowable
costs under either (1), (2), or (3) of this paragraph, and 90 percent of
the total allowable costs under (4) of this paragraph:
(1) Commercial carrier. Allowable costs for moving household goods
and personal effects of an individual and family, if any, shall not
exceed the maximum number of pounds net weight authorized under the
Federal travel regulations (see 41 CFR part 101-7) by commercial carrier
from the individual's old residence to the individual's new residence in
the area of relocation, including reasonable and necessary accessorial
charges, by the most economical commercial carrier the individual
reasonably can be expected to use. Before undertaking such move, the
individual must submit to the State agency an estimate from a commercial
carrier as to the cost thereof. Accessorial charges shall include the
cost of insuring such goods and effects for their actual value or
$10,000, whichever is least, against loss or damage in transit, if a bid
from a licensed insurer is obtained by the individual and approved by
the State agency before departure. If a State agency finds it is more
economical to pay a carrier an extra charge to assume the responsibility
of a common carrier for such goods and effects, 90 percent of such extra
charge, but not exceeding $50, shall be paid in lieu of the cost of
insurance.
(2) Trailer or rental truck--(i) Trailer. If household goods and
personal effects are moved by trailer, the allowable costs shall be:
(A) If the trailer is hauled by private vehicle, the cost per mile
for the use of the private vehicle at the prevailing mileage rate
authorized under the Federal travel regulations (see 41 CFR part 101-7)
for the usually traveled route from the individual's old residence to
[[Page 134]]
the individual's new residence in the area of relocation; and
(B) lf the trailer is rented, and of the type customarily used for
moving household goods and personal effects, the rental fee for each day
reasonably required to complete the move; or
(C) The actual charge if hauling is by commercial carrier,
(ii) Rental truck. If household goods and personal effects are moved
by rental truck of the type customarily used for moving household goods
and personal effects, the allowable costs shall be:
(A) The rental fee for each day reasonably required to complete the
move; and
(B) The necessary fuel for such rental truck paid by the individual.
(3) House trailer. If a house trailer or mobile home was used as the
individual's place of residence in the old area and will be so used in
the new area, the allowable costs of moving such house trailer or mobile
home shall be:
(i) The commercial carrier's charges for moving the house trailer or
mobile home;
(ii) Charges for unblocking and reblocking;
(iii) Ferry charges, bridge, road, and tunnel tolls, taxes, fees
fixed by a State or local authority for permits to transport the unit in
or through its jurisdiction, and retention of necessary flagmen; and
(iv) The cost of insuring the house trailer or mobile home, and the
personal effects of the individual and family, against loss or damage in
transit, in accordance with the provisions in paragraph (a)(1) of this
section.
(4) Temporary storage. If temporary storage of household goods and
personal effects is necessary, the cost of such temporary storage for a
period not to exceed 60 days.
(b) Travel. Payments under this section shall be in addition to
payments for travel expenses for the individual and family, if any,
under Sec. 617.45(a)(1), except that the allowable cost for a private
vehicle used to haul a trailer may not be paid under this section if any
cost with respect to such private vehicle is payable under any other
provisions of this subpart E.
Sec. 617.48 Time and method of payment.
(a) Determinations. A State agency shall promptly make and record
determinations necessary to assure an individual's entitlement to a
relocation allowance at any time, before or after a certification
covering the individual is made. No relocation allowance may be paid or
advanced to an individual until the State agency determines that the
individual is covered under a certification. A State agency shall make
payment as promptly as possible upon determining that the individual is
covered under a certification and is otherwise eligible.
(b) Travel and moving allowances. Allowances computed under
Sec. Sec. 617.46 and 617.47 shall be paid as follows:
(1) Travel--(i) Transportation and subsistence. The amounts
estimated under Sec. 617.46 at 90 percent of the lowest allowable costs
shall be paid in advance at the time an individual departs from the
individual's residence to begin relocation or within 10 days prior
thereto. An amount payable for a family member approved for separate
travel shall be paid to the individual at the time of such family
member's departure or within 10 days prior thereto.
(ii) Worker evidence. On completion of a relocation, the individual
shall certify on forms furnished by the State agency as to the amount
expended daily for lodging and meals. Receipts shall be required for all
lodging and purchased transportation expenses incurred by the individual
and family, if any, pursuant to the relocation. An adjustment shall be
made if the amount of an advance is less or more than the amount to
which the individual is entitled under Sec. 617.46.
(2) Moving. The amount estimated under Sec. 617.47 at 90 percent of
the lowest allowable costs shall be paid:
(i) Commercial carrier. (A) If household goods and personal effects
are moved by commercial carrier, 90 percent of the amount of the
estimate submitted by the individual under Sec. 617.47(a)(1) and
approved by the State agency for covering the cost of such move, and 90
percent of the other charges approved by the State agency under Sec.
617.47(a)(1) shall be advanced by check or checks payable to the carrier
and insurer, and delivered to the individual at the time
[[Page 135]]
of the scheduled shipment or within 10 days prior thereto. On completion
of the move, the individual shall promptly submit to the State agency a
copy of the bill of lading prepared by the carrier, including a receipt
evidencing payment of moving costs. The individual shall with such
submittal reimburse the State agency the amount, if any, by which the
advance made under this paragraph (b)(2)(i) exceeds 90 percent of the
actual moving costs approved by the State agency. The individual shall
be paid the difference if the amount advanced was less than 90 percent
of the actual moving costs approved by the State agency.
(B) If more economical, a State agency may make direct arrangements
for moving and insuring an individual's household goods and personal
effects with a carrier and insurer selected by the individual and may
make payment of 90 percent of moving and insurance costs directly to the
carrier and insurer. No such arrangement shall release a carrier from
liability otherwise provided by law or contract for loss or damage to
the individual's goods and effects. The United States shall not be or
become liable to either party for personal injury or property loss
damage under any circumstances.
(ii) Trailer or rental truck--(A) Private vehicle with trailer. If
the move is by private vehicle and trailer, the allowable cost for the
use of the private vehicle shall be made at the time payment is made
under paragraph (b)(1) of this section.
(B) Rental trailer or rental truck. If the move is by rental trailer
or rental truck:
(1) The individual shall submit an estimate of the rental cost from
the rental agency; and
(2) 90 percent of such estimated rental cost may be advanced by
check payable to the order of the individual and the rental agency at
the time payment is made under paragraph (b)(1) of this section; and
(3) On completion of the move the individual shall submit promptly
to the State agency a receipted bill itemizing and evidencing payment of
the rental charges for the trailer or truck and fuel costs, and shall
reimburse the State agency for the amount, if any, by which the advance
made for the trailer or truck exceeds 90 percent of the rental charges
approved by the State agency. If the amount of the advance was less than
90 percent of the rental charges, the individual shall be paid the
difference.
(iii) House trailer. If a house trailer or mobile home is moved by
commercial carrier, the individual shall submit to the State agency an
estimate of the cost of the move by the commercial carrier. A check for
90 percent of the amount of the estimate, if approved, payable to the
individual and the carrier, may be delivered to the individual at the
time of the scheduled move or within 10 days prior thereto.
(c) Lump sum allowance. The lump sum allowance provided in Sec.
617.45(a)(3) shall be paid when arrangements are completed for
relocation of the individual and family, if any, but not more than 10
days before the earlier of the individual's anticipated departure from
the individual's residence to begin relocation or the anticipated date
of shipment of the individual's household goods and personal effects.
(d) Relocation completed. A relocation is completed when an
individual and family, if any, and their household goods and personal
effects arrive at the individual's residence in the area of relocation.
If no household goods and personal effects are moved, a relocation is
completed when the individual and family, if any, arrive in the area of
relocation and establish a residence in the new area. The later arrival
of a family member approved for separate travel shall not alter the date
a relocation was completed.
Subpart F_Job Search Program
Sec. 617.49 Job Search Program.
(a) Program requirements. (1) A worker, after being separated from
adversely affected employment, must participate in an approved job
search program (JSP), or have completed a JSP, as a condition for
receiving TRA, except where the State agency determines that an
acceptable JSP is not reasonably available.
(2) A TRA claimant is subject to participation in a JSP as a
condition for
[[Page 136]]
receiving TRA for weeks of unemployment which begin after the date the
claimant is notified of the requirement and has filed an initial claim
for TRA. The claimant is not subject to the JSP as a condition for
receiving TRA for weeks which begin prior to that date.
(3) When the State agency determines that the worker has failed to
begin participation in an approved JSP, or ceased to participate in such
a JSP before completion, and there is no justifiable cause for such
failure or cessation, no TRA may be paid to the worker for weeks
beginning with the week that failure or cessation occurred when it is
determined that such failure or cessation was without justifiable cause.
TRA may be paid thereafter to an otherwise eligible worker only for
weeks beginning with the week the worker begins or resumes participation
in an approved JSP or complete the JSP. For purposes of this paragraph
(a)(3), justifiable cause means such reasons as would justify an
individual's conduct when measured by conduct expected of a reasonable
individual in like circumstances, including but not limited to reasons
beyond the individual's control and reasons related to the individual's
capability to enroll in an approved JSP or complete the JSP.
(4) A worker in training approved under Sec. Sec. 617.22 through
617.26, or approved by the State agency under State law, is excepted
from the JSP qualifying requirement while the worker is attending and
making satisfactory progress in the training. This exception applies
whether training begins before or after entitlement to basic TRA
commences, and also applies after training begins for a worker who is
attending a JSP program. Exceptions to the JSP qualifying requirement
must be documented in the worker's claim file by the State agency.
(b) Approved JSPs. A job search program may be approved if:
(1) The JSP is provided through the Workforce Investment Act, the
public employment service, or any other Federal or State funded program,
and complies with paragraphs (w), (x), and (y) of Sec. 617.3.
(2) The JSP is sponsored by a company or firm from which the worker
has been separated, and complies with paragraphs (w), (x), and (y) of
Sec. 617.3.
(c) Determination of reasonably available. (1) Reasonably available
means an existing approved JSP that is located in the worker's normal
commuting area, as defined in Sec. 617.3, and has sufficient capacity
to accommodate the worker.
(2) When the State determines that a JSP is not reasonably available
for a worker, the requirement is not a condition of qualifying for TRA
for the weeks involved. When a determination is made with respect to a
worker, the State agency must document its determination, and the weeks
involved, in the worker's claim file, prior to making TRA payments to
the worker.
(3) The State agency may issue a blanket waiver of the JSP
qualifying requirement for TRA for groups of workers, where deemed
appropriate, when it is determined that there is no functioning JSP.
(4) All determinations that a JSP is not reasonably available should
extend only for that period of time that a JSP is not reasonably
available, and the exception for workers in approved training should
extend until the completion of training. If the State determines that a
JSP is reasonably available at a later date, then the JSP qualifying
requirement must be met for entitlement to basic TRA for weeks of
unemployment beginning with the week in which JSP becomes reasonably
available.
(d) JSP allowances. Subsistence and transportation costs shall be
approved for workers participating in JSPs when deemed appropriate and
within available State funding levels. Costs incurred may not exceed
those allowable for training under Sec. Sec. 617.27 and 617.28, if, and
when, the State refers a worker to a JSP outside the normal commuting
area.
(e) Termination of requirement. The job search program requirement
set out in this section shall not be a condition of entitlement to TRA
for any week.
[53 FR 32351, Aug. 24, 1988, as amended at 54 FR 22277, May 23, 1989; 59
FR 939, Jan. 6, 1994; 71 FR 35516, June 21, 2006]
[[Page 137]]
Subpart G_Administration by Applicable State Agencies
Sec. 617.50 Determinations of entitlement; notices to individuals.
(a) Determinations of initial applications for TRA or other TAA. The
State Agency whose State law is the applicable State law under Sec.
617.16 shall upon the filing of an initial application for TRA or other
TAA promptly determine the individual's entitlement to such TRA or other
TAA under this part 617, and may accept for such purposes information
and findings supplied by another State agency under this part 617.
(b) Determinations of subsequent applications for TRA or other TAA.
The State agency shall, upon the filing of an application for payment of
TRA, or subsistence and transportation under Sec. Sec. 617.27 and
617.28, with respect to a week, promptly determine whether the
individual is eligible for a payment of TRA, or subsistence and
transportation, with respect to such week, and, if eligible, the amount
of TRA, or subsistence and transportation, for which the individual is
eligible. In addition, the State agency promptly shall, upon the filing
of a subsequent application for job search allowances (where the total
of previous job search allowances paid the individual was less than
$600), determine whether the individual is eligible for job search
allowances, and, if eligible, the amount of job search allowances for
which the individual is eligible.
(c) Redeterminations. The provisions of the applicable State law
concerning the right to request, or authority to undertake,
reconsideration of a determination pertaining to a claim for UI under
the applicable State law shall apply to determinations pertaining to all
forms of TAA under this part 617.
(d) Use of State law. In making determinations or redeterminations
under this section, or in reviewing such determinations or
redeterminations under Sec. 617.51, a State agency shall apply the
regulations in this part 617. As to matters committed by this part 617
to the applicable State law, a State agency, a hearing officer, or a
State court shall apply the applicable State law and regulations
thereunder, including procedural requirements of such State law or
regulations, except so far as such State law or regulations are
inconsistent with this part 617 or the purpose of this part 617:
Provided, that, no provision of State law or regulations on good cause
for waiver of any time limit, or for late filing of any claim, shall
apply to any time limitation referred to or specified in this part 617,
unless such State law or regulation is made applicable by a specific
provision of this part 617.
(e) Notices to individual. The State agency shall notify the
individual in writing of any determination or redetermination as to
entitlement to TAA. Each determination or redetermination shall inform
the individual of the reason for the determination or redetermination
and of the right to reconsideration or appeal in the same manner as
determinations of entitlement to UI are subject to redetermination or
appeal under the applicable State law.
(f) Promptness. Full payment of TAA when due shall be made with the
greatest promptness that is administratively feasible.
(g) Procedure. Except where otherwise required by the Act or this
part 617, the procedures for making and furnishing determinations and
written notices of determinations to individuals, shall be consistent
with the Secretary's ``Standard for Claim Determinations--Separation
Information,'' Employment Security Manual, part V, sections 6010-6015
(appendix B of this part).
[51 FR 45848, Dec. 22, 1986, as amended at 59 FR 939, 943, Jan. 6, 1994]
Sec. 617.51 Appeals and hearings.
(a) Applicable State law. A determination or redetermination under
this part 617 shall be subject to review in the same manner and to the
same extent as determinations and redeterminations under the applicable
State law, and only in that manner and to that extent. Proceedings for
review of a determination or redetermination may be consolidated or
joined with proceedings for review of a determination or redetermination
under the State law where convenient or necessary. Procedures as to the
right of appeal and opportunity for fair hearing shall be consistent
with sections 303(a) (1) and (3) of the
[[Page 138]]
Social Security Act (42 U.S.C. 503(a) (1) and (3)).
(b) Appeals promptness. Appeals under paragraph (a) of this section
shall be decided with a degree of promptness meeting the Secretary's
``Standard on Appeals Promptness--Unemployment Compensation'' (part 650
of this chapter). Any provisions of the applicable State law for
advancement or priority of UI cases on judicial calendars, or otherwise
intended to provide for prompt payment of UI when due, shall apply to
proceedings involving entitlement to TAA under this part 617.
Sec. 617.52 Uniform interpretation and application.
(a) First rule of construction. The Act and the implementing
regulations in this part 617 shall be construed liberally so as to carry
out the purpose of the Act.
(b) Second rule of construction. The Act and the implementing
regulations in this part 617 shall be construed so as to assure insofar
as possible the uniform interpretation and application of the Act and
this part 617 throughout the United States.
(c) Effectuating purpose and rules of construction. (1) To
effectuate the purpose of the Act and this part 617 and to assure
uniform interpretation and application of the Act and this part 617
throughout the United States, a State agency shall forward, not later
than 10 days after issuance, to the Department a copy of any judicial or
administrative decision ruling on an individual's entitlement to TAA
under this part 617. On request of the Department, a State agency shall
forward to the Department a copy of any determination or redetermination
ruling on an individual's entitlement to TAA under this part 617.
(2) If the Department believes that a determination,
redetermination, or decision is inconsistent with the Department's
interpretation of the Act or this part 617, the Department may at any
time notify the State agency of the Department's view. Thereafter, the
State agency shall issue a redetermination or appeal if possible, and
shall not follow such determination, redetermination, or decision as a
precedent; and, in any subsequent proceedings which involve such
determination, redetermination, or decision, or wherein such
determination, redetermination, or decision is cited as precedent or
otherwise relied upon, the State agency shall inform the claims deputy
or hearing officer or court of the Department's view and shall make all
reasonable efforts, including appeal or other proceedings in an
appropriate forum, to obtain modification, limitation, or overruling of
the determination, redetermination, or decision.
(3) If the Department believes that a determination,
redetermination, or decision is patently and flagrantly violative of the
Act or this part 617, the Department may at any time notify the State
agency of the Department's view. If the determination, redetermination,
or decision in question denies TAA to an individual, the steps outlined
in paragraph (c)(2) of this section shall be followed by the State
agency. If the determination, redetermination, or decision in question
awards TAA to an individual, the benefits are ``due'' within the meaning
of section 303(a)(1) of the Social Security Act (42 U.S.C. 503(a)(1)),
and therefore must be paid promptly to the individual. However, the
State agency, shall take the steps outlined in paragraph (c)(2) of this
section, and payments to the individual may be temporarily delayed if
redetermination or appeal action is taken not more than one business day
following the day on which the first payment otherwise would be issued
to the individual; and the redetermination action is taken or appeal is
filed to obtain a reversal of the award of TAA and a ruling consistent
with the Department's view; and the redetermination action or appeal
seeks an expedited redetermination or appeal within not more than two
weeks after the redetermination action is taken or the appeal is filed.
If redetermination action is not taken or appeal is not filed within the
above time limit, or a redetermination or decision is not obtained
within the two-week limit, or any redetermination or decision or order
is issued which affirms the determination, redetermination, or decision
awarding TAA or allows it to stand in whole or in part, the benefits
awarded must be paid promptly to the individual.
[[Page 139]]
(4)(i) If any determination, redetermination, or decision, referred
to in paragraph (c)(2) or paragraph (c)(3) of this section, is treated
as a precedent for any future application for TAA, the Secretary will
decide whether the Agreement with the State entered into under the Act
and this part 617 shall be terminated and Sec. 617.59(f) applied.
(ii) In the case of any determination, redetermination, or decision
that is not legally warranted under the Act or this part 617, including
any determination, redetermination, or decision referred to in paragraph
(c)(2) or paragraph (c)(3) of this section, the Secretary will decide
whether the State shall be required to restore the funds of the United
States for any sums paid under such a determination, redetermination, or
decision, and whether, in the absence of such restoration, the Agreement
with the State shall be terminated and Sec. 617.59(f) applied and
whether other action shall be taken to recover such sums for the United
States.
(5) A State agency may request reconsideration of a notice issued
pursuant to paragraph (c)(2) or paragraph (c)(3) of this section, and
shall be given an opportunity to present views and arguments if desired.
Such request shall be made to the Secretary and may include views and
arguments on the matters to be decided by the Secretary under paragraph
(c)(4) of this section.
(6) Concurrence of the Department in a determination,
redetermination, or decision shall not be presumed from the absence of a
notice issued pursuant to this section.
(Approved by the Office of Management and Budget under control number
1205-0222)
Sec. 617.53 Subpoenas.
A State agency may issue subpoenas for attendance of witnesses and
production of records on the same terms and conditions as under the
State law. Compliance may be enforced on the same terms and conditions
as under the State law, or, if a State court declines to enforce a
subpoena issued under this section, the State agency may petition for an
order requiring compliance with such subpoena to the United States
District Court within the jurisdiction of which the relevant proceeding
under this part 617 is conducted.
Sec. 617.54 State agency rulemaking.
A State agency may establish supplemental procedures not
inconsistent with the Act or this part 617 or procedures prescribed by
the Department to further effective administration of this part 617. The
exact text of such supplemental procedure or procedures, certified as
accurate by a responsible official, employee, or counsel of the State
agency, shall be submitted to the Department, on a form supplied by the
Department. No supplemental procedure shall be effective unless and
until approved by the Department. Approval may be granted on a temporary
basis, not to exceed 90 days, in cases of administrative necessity. On
reasonable notice to a State agency, approval of a supplemental
procedure may be withdrawn at any time. If public notice and opportunity
for hearing would be required under a State law for adoption of a
similar or analogous procedure involving UI, such public notice and
opportunity for hearing shall be afforded by the State agency as to the
supplemental procedure.
(Approved by the Office of Management and Budget under control number
1205-0222)
Sec. 617.55 Overpayments; penalties for fraud.
(a) Determination and repayment. (1) If a State agency or a court of
competent jurisdiction determines that any person or individual has
received any payment under this part 617 to which the person or
individual was not entitled, including a payment referred to in
paragraph (b) or paragraph (c) of this section, such person or
individual shall be liable to repay such amount to the State agency, and
the State agency shall recover any such overpayment in accordance with
the provisions of this part 617; except that the State agency may waive
the recovery of any such overpayment if the State agency determines, in
accordance with the guidelines prescribed in paragraph (a)(2) of this
section, that:
(i) The payment was made without fault on the part of such person or
individual; and
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(ii) Requiring such repayment would be contrary to equity and good
conscience.
(2)(i)(A) In determining whether fault exists for purposes of
paragraph (a)(1)(i) of this section, the following factors shall be
considered:
(1) Whether a material statement or representation was made by the
person or individual in connection with the application for TAA that
resulted in the overpayment, and whether the person or individual knew
or should have known that the statement or representation was
inaccurate.
(2) Whether the person or individual failed or caused another to
fail to disclose a material fact, in connection with an application for
TAA that resulted in the overpayment, and whether the person or
individual knew or should have known that the fact was material.
(3) Whether the person or individual knew or could have been
expected to know, that the person or individual was not entitled to the
TAA payment.
(4) Whether, for any other reason, the overpayment resulted directly
or indirectly, and partially or totally, from any act or omission of the
person or individual or of which the person or individual had knowledge,
and which was erroneous or inaccurate or otherwise wrong.
(5) Whether there has been a determination of fraud under paragraph
(b) of this section or section 243 of the Act.
(B) An affirmative finding on any one of the factors in paragraphs
(a)(2)(i)(A) of this section precludes waiver of overpayment recovery.
(ii)(A) In determining whether equity and good conscience exists for
purposes of paragraph (a)(1)(ii) of this section, the following factors
shall be considered:
(1) Whether the overpayment was the result of a decision on appeal,
whether the State agency had given notice to the person or individual
that the case has been appealed and that the person or individual may be
required to repay the overpayment in the event of a reversal on appeal,
and whether recovery of the overpayment will not cause extraordinary and
lasting financial hardship to the person or individual.
(2) Whether recovery of the overpayment will not cause extraordinary
financial hardship to the person or individual, and there has been no
affirmative finding under paragraph (a)(2)(ii)(A) of this section with
respect to such person or individual and such overpayment.
(B) An affirmative finding on either of the foregoing factors in
paragraphs (a)(2)(ii)(A) of this section precludes waiver of overpayment
recovery.
(C)(1) For the purpose of paragraph (a)(2)(ii) of this section, an
extraordinary financial hardship shall exist if recovery of the
overpayment would result directly in the person's or individual's loss
of or inability to obtain minimal necessities of food, medicine, and
shelter for a substantial period of time; and an extraordinary and
lasting financial hardship shall be extraordinary as described above and
may be expected to endure for the foreseeable future.
(2) In applying this test in the case of attempted recovery by
repayment, a substantial period of time shall be 30 days, and the
foreseeable future shall be at least three months. In applying this test
in the case of proposed recoupment from other benefits, a substantial
period of time and the foreseeable future shall be the longest potential
period of benefit entitlement as seen at the time of the request for a
waiver determination. In making these determinations, the State agency
shall take into account all potential income of the person or individual
and the person's or individual's firm, organization, or family and all
cash resources available or potentially available to the person or
individual and the person's or individual's firm, organization, or
family in the time period being considered.
(3) Determinations granting or denying waivers of overpayments shall
be made only on request for a waiver determination. Such request shall
be made on a form which shall be furnished to the person or individual
by the State agency. Notices of determination of overpayments shall
include an accurate description of the waiver provisions of paragraph
(a) of this section, if the State agency has elected to allow waivers of
TAA overpayments.
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(4) Each State shall have the option to establish a policy as to
whether the waiver provisions of this section shall be applied to TAA
overpayments. A State's decision on its policy shall not be controlled
by whether it waives UI overpayments, but the State's decision shall be
published for the information of the public and the Department.
(5)(i) Unless an overpayment is otherwise recovered, or is waived
under paragraph (a) of this section, the State agency shall recover the
overpayment by deduction from any sums payable to such person or
individual under:
(A) This part 617;
(B) Any Federal unemployment compensation law administered by the
State agency; or
(C) Any other Federal law administered by the State agency which
provides for the payment of unemployment assistance or an allowance with
respect to unemployment.
(ii) In addition, a State agency may recover the overpayment from
unemployment insurance payable to such person or individual under the
State law.
(b) Fraud. If a State agency or a court of competent jurisdiction
finds that any person or individual:
(1) Knowingly has made, or caused another to make, a false statement
or representation of a material fact; or
(2) Knowingly has failed, or caused another to fail, to disclose a
material fact; and as a result of such false statement or
representation, or of such nondisclosure, such individual has received
any payment under this part 617 to which the person or individual was
not entitled, such person or individual shall, in addition to any other
penalty provided by law, be ineligible for any further payments under
this part 617.
(c) Training, job search and relocation allowances. (1) If an
individual fails, with good cause, to complete training, a job search,
or a relocation, any payment or portion of a payment made under this
part 617 to such individual or any person that is not properly and
necessarily expended in attempting to complete such training, job
search, or relocation, shall constitute an overpayment.
(2) If an individual fails, without good cause, to complete
training, a job search, or a relocation, any payment made under this
part 617 to such individual or any person shall constitute an
overpayment.
(3) Such overpayment shall be recovered or waived as provided in
paragraph (a) of this section.
(d) Final determination. Except for overpayments determined by a
court of competent jurisdiction, no repayment may be required, and no
deduction may be made, under this section until a determination under
paragraph (a) of this section by the State agency has been made, notice
of the determination and an opportunity for a fair hearing thereon has
been given to the person or individual concerned, and the determination
has become final.
(e) Deposit. Any amount recovered by a State agency under this
section shall be deposited into the Federal fund or account from which
payment was made.
(f) Procedural requirements. (1) The provisions of paragraphs (c),
(e), and (g) of Sec. 617.50 shall apply to determinations and
redeterminations made pursuant to this section.
(2) The provisions of Sec. 617.51 shall apply to determinations and
redeterminations made pursuant to this section.
(g) Fraud detection and prevention. State procedures for the
detection and prevention of fraudulent overpayments of TAA shall be, as
a minimum, commensurate with the procedures adopted by the State with
respect to State unemployment compensation and consistent with the
Secretary's ``Standard for Fraud and Overpayment Detection,'' Employment
Security Manual, Part V, sections 7510-7515 (Appendix C of this part).
(h) Debts due the United States or Others. (1) Notwithstanding any
provision of this part 617, TAA payable to a person or an individual
under this part 617 shall be applied by the State agency for the
recovery by offset of any debt due the United States from the person or
individual.
(2) TAA shall not be applied or used by the State agency in any
manner for the payment of any debt of any person or individual to any
State or any other entity or person, except that TRA payable to an
individual shall be payable
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to someone other than the individual if required by State law and
Federal law to satisfy the individual's obligation for child support or
alimony.
(i) Definition of person. For purposes of this section, a person
includes any employer or other entity or organization as well as the
officers and officials thereof who may bear individual responsibility.
[59 FR 939, Jan. 6, 1994, as amended at 59 FR 943, Jan. 6, 1994]
Sec. 617.56 Inviolate rights to TAA.
Except as specifically provided in this part 617, the rights of
individuals to TAA shall be protected in the same manner and to the same
extent as the rights of persons to UI are protected under the applicable
State law. Such measures shall include protection of applicants for TAA
from waiver, release, assignment, pledge, encumbrance, levy, execution,
attachment, and garnishment of their rights to TAA, except as provided
in Sec. 617.55. In the same manner and to the same extent, individuals
shall be protected from discrimination and obstruction in regard to
seeking, applying for, and receiving any right to TAA.
Sec. 617.57 Recordkeeping; disclosure of information.
(a) Recordkeeping. Each State agency will make and maintain records
pertaining to the administration of the Act as the Secretary requires
and will make all such records available for inspection, examination and
audit by such Federal officials as the Secretary may designate or as may
be required by law. Such recordkeeping will be adequate to support the
reporting of TAA activity on reporting form ETA 563 approved under OMB
control number 1205-0016.
(b) Disclosure of information. Information in records maintained by
a State agency in administering the Act shall be kept confidential, and
information in such records may be disclosed only in the same manner and
to the same extent as information with respect to UI and the entitlement
of individuals thereto may be disclosed under the applicable State law.
Such information shall not, however, be disclosed to an employer or any
other person except to the extent necessary to obtain information from
the employer or other person for the purposes of this part 617. This
provision on the confidentiality of information maintained in the
administration of the Act shall not apply, however, to the Department or
for the purposes of Sec. 617.55 or paragraph (a) of this section, or in
the case of information, reports and studies required pursuant to Sec.
617.61, or where the result would be inconsistent with the Freedom of
Information Act (5 U.S.C. 552), the Privacy Act of 1974 (5 U.S.C. 552a),
or regulations of the Department promulgated thereunder (see 29 CFR
parts 70 and 70a).
Sec. 617.58 Unemployment insurance.
Unemployment insurance payable to an adversely affected worker shall
not be denied or reduced for any week by reason of any right to a
payment of TAA under the Act and this part 617.