WSR 98-01-186

PROPOSED RULES

EMPLOYMENT SECURITY DEPARTMENT

[Filed December 23, 1997, 2:28 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-16-010.

Title of Rule: Chapter 192-32 WAC, Timber retraining benefits and chapter 192-33 WAC, Workforce development.

Purpose: To amend sections in chapter 192-32 WAC to be consistent with the provisions of 2SHB 1201, passed by the 1997 legislature, and to address issues raised by stakeholders in the development process; to repeal sections no longer needed; and to rewrite other sections for purposes of clarity and readability consistent with Executive Order 97-02. Two sections are repealed and readopted in new chapter 192-33 WAC because they pertain to services for dislocated workers other than unemployment benefits.

Statutory Authority for Adoption: All sections: RCW 50.12.010 and 50.12.040; chapter 192-32 only: RCW 50.20.010 and 50.22.090; and WAC 192-33-005 only: RCW 50.70.010.

Statute Being Implemented: RCW 50.22.090, 50.70.010, and 50.12.270.

Summary: WAC 192-32-010, definitions of the terms "displaced worker" and "satisfactory progress" are added. Other terms no longer needed because of changes to RCW 50.22.090 contained in 2SHB 1201 are repealed.

WAC 192-32-035 is amended to eliminate the provision that an individual who did not meet the eligibility requirements when a new claim was filed may do so when filing an additional claim. This proposal is made at the request of stakeholders concerned that the provision broadens program eligibility beyond that intended by the legislature.

WAC 192-32-045 is amended to delete the provision that an individual determined to be a dislocated worker by the local JTPA authority is "unlikely to return to work." 2SHB 1201 requires that this determination now be made by department staff in consultation with its labor market and economic analysis (LMEA) branch.

WAC 192-32-065 is amended to require individuals to provide the department with proof of their enrollment in a training program. It also provides that the criteria set forth in WAC 192-12-180 and 192-12-182 will be used to evaluate whether an individual's training program will be approved. This proposal is made at the request of stakeholders concerned with the lack of training approval criteria.

WAC 192-32-075 is amended to provide that training for an occupation outside a claimant's local labor market will only be approved if the claimant's current skills are not already in demand outside that local labor market. This proposal is made at the request of stakeholders that, in situations where a claimant is willing to relocate to find work, employment opportunities should be explored prior to approving retraining, rather than afterwards.

WAC 192-32-095 is amended to require that the satisfactory progress report required of students be signed by the school registrar or an equivalent person. This proposal is made at the request of stakeholders concerned about potential misuse of the program.

A new rule, WAC 192-32-100, is adopted requiring individuals to notify the department immediately when they make a significant change to their training plan. It also provides that individuals can only change their major or withdraw from training and reenroll one time. This proposal is made to prevent potential misuse of the program.

A new rule, WAC 192-32-130, is adopted clarifying the circumstances under which the five weeks for work search after training will be paid. This proposal will replace department policy with a regulation.

A new rule, WAC 192-32-135, is adopted clarifying the conditions under which the 13 weeks of benefits for remedial training will be paid. This proposal will replace department policy with a regulation.

Changes to WAC 192-32-050, 192-32-055, 192-32-085, 192-32-105, and 192-32-115 are either technical in nature, to comply with the provisions of RCW 50.22.090 and amended by 2SHB 1201, or housekeeping in nature, proposed for purposes of clarity and readability.

WAC 192-32-001 is repealed as [it is] no longer necessary.

WAC 192-32-015 and 192-32-025 are repealed because the provisions of 2SHB 1201 have made them obsolete.

WAC 192-32-120 and 192-32-125 are repealed and readopted as WAC 192-33-005 and 192-33-006. The statutes under which these rules are adopted govern employment and training services to dislocated workers. It was determined that they would be more accessible to the regulated community if they were contained in a new chapter, workforce training, rather than in a chapter dealing with unemployment benefits.

Reasons Supporting Proposal: Many of the proposed changes are necessary to implement 2SHB 1201. Other changes have been requested by stakeholders during the rule development process. Housekeeping changes are to improve access by the regulated community.

Name of Agency Personnel Responsible for Drafting: Juanita Myers, 212 Maple Park, Olympia, (360) 902-9665; Implementation and Enforcement: Dale Ziegler, 212 Maple Park, Olympia, (360) 902-9303.

Name of Proponent: Employment Security Department, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: See Summary above.

Proposal Changes the Following Existing Rules: See Summary above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed changes have no economic impact on businesses in general, or small business in particular. Most amendments are to comply with new provisions contained in 2SHB 1201. Other changes clarify the requirements of students enrolled in training, or limit the eligibility of certain claimants who may have been eligible under current rules. It is anticipated that the changes will eliminate several potential abuses of the program, thus reducing costs to business.

RCW 34.05.328 applies to this rule adoption. The proposed regulations constitute "significant legislative" rules because (a) they establish or alter the qualifications or standards for determining an individual's eligibility for the additional unemployment benefits provided under RCW 50.22.090, and (b) they make significant amendments to a policy or regulatory program.

Hearing Location: Employment Security Department, 212 Maple Park, Public Affairs Conference Room, 2nd Floor, Olympia, WA 98504, on January 29, 1998, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Karen LaFreniere, Affirmative Action by January 27, 1998, TDD (360) 902-9589, or (360) 902-9582.

Submit Written Comments to: Barney Hilliard, Rules Coordinator, Employment Security Department, P.O. Box 9046, Olympia, WA 98504-9046, FAX (360) 438-3226, by January 29, 1998.

Date of Intended Adoption: January 30, 1998.

December 22, 1997

Carver Gayton

Commissioner

CHAPTER 192-32 WAC

TIMBER RETRAINING BENEFITS ((AND RELATED PROGRAMS))

AMENDATORY SECTION (Amending WSR 95-09-085, filed 4/19/95, effective 5/20/95)

WAC 192-32-010 Definitions. For the purpose of this chapter and RCW 50.22.090:

(1) (("Actual job loss" means the absolute loss of jobs in SIC codes 24 as compared to the previous year as calculated by the department.

(2) "Actual or projected job loss" means the greater of actual job loss or projected job loss. The value of actual or projected job loss is that value released by the commissioner and filed for publication in the state register.

(3) "Annual unemployment rate" means the total unemployment rate calculated according to the method defined by the U.S. Department of Labor, Bureau of Labor Statistics. The information is considered available when released to the public by the commissioner of the employment security department. The value of the annual unemployment rate is that value released by the commissioner and filed for publication in the state register.

(4))) "Commissioner" means commissioner of the employment security department.

(((5))) (2) "Department" means the employment security department.

(3) "Displaced worker" means an individual who is unlikely to return to employment in his or her principal occupation or previous industry because of a diminishing demand within his or her labor market for his or her skills in the occupation or industry;

(((6))) (4) "Labor market" means the area in which workers of specific occupation customarily have found work. Labor market is based on the worker's place of residence and occupation.

(((7) "Lumber and wood products location quotient" is determined by dividing the percentage of the average covered employment in lumber and wood products (SIC code 24) in the county by the percentage of the average covered employment in lumber and wood products (SIC code 24) statewide. The information is considered available when released by the commissioner. The value of the location quotient is the value released by the commissioner and filed for publication in the state register.

(8) "Projected job loss" means the estimated job loss in SIC codes 24 in the current year, compared to the previous year, as calculated by the department from information provided by the department of natural resources.

(9) "Targeted county" means a county selected by the criteria of RCW 50.22.090(2).

(10))) (5) "Satisfactory progress" means maintaining a grade point average sufficient to graduate, and taking sufficient credit hours to complete the approved course of study within the time frame established under the approved training plan.

(6) "Timber retraining benefits," abbreviated TRB, means the additional unemployment insurance ((additional)) benefits authorized by RCW 50.22.090(3).

(((11))) (7) "Wages" means wages earned in employment as defined in chapter 50.04 RCW. This means that only wages in covered employment can be considered in determining if a worker has earned wages in employment in the forest products industry or in the fishing industry assigned Standard Industrial Code 0912.

[Statutory Authority: RCW 50.12.010, 50.12.040 and 50.20.010. 95-09-085, 192-32-010, filed 4/19/95, effective 5/20/95. Statutory Authority: RCW 50.12.010, 50.12.040 and 1991 c 315 4. 91-20-012, 192-32-010, filed 9/20/91, effective 10/21/91.]

AMENDATORY SECTION (Amending WSR 91-20-012, filed 9/20/91, effective 10/21/91)

WAC 192-32-035 Residence ((or employment)) in ((targeted county)) rural natural resources impact area at time of last separation from employment. (1) ((A worker who has)) If you met the ((county of)) residence ((or county of last employment)) requirements at the time ((of filing an)) you filed your initial claim for benefits, you ((will be considered to)) have met those requirements until you establish a new benefit year ((is established)), regardless of subsequent employment or relocation to another ((county)) area.

(2) ((A worker who has)) If you met the ((county of)) residence ((or county of last employment)) requirements ((at the time of filing an)) when you filed your initial claim, you ((will be considered to)) have met those requirements until a new benefit year is established, even if ((the county)) your residence ceases to ((be)) fall within a ((targeted county)) designated rural natural resources impact area.

(((3) A worker who has not met the county of residence or county of last employment requirements at the time of filing a new claim, may meet those requirements at the time of filing an additional claim (reopened claim after subsequent employment) for benefits if, at that time, the worker worked or lived in a targeted county at time of last separation from employment.

(4) A worker who performs services in more than one county will be considered to have worked in a targeted county if any bona fide work is performed in a targeted county.))

[Statutory Authority: RCW 50.12.010, 50.12.040 and 1991 c 315 4. 91-20-012, 192-32-035, filed 9/20/91, effective 10/21/91.]

AMENDATORY SECTION (Amending WSR 95-09-085, filed 4/19/95, effective 5/21/95 [5/20/95])

WAC 192-32-045 Unlikely to return to employment. (1) For the purposes of paying timber retraining benefits, ((a worker)) you will have met the unlikely to return to work requirement of RCW 50.22.090 (4)(b)(ii) if the tests in subsections (2) and (3) of this section are met.

(2) ((He or she has)) You have:

(a) Become unemployed due to a permanent plant closure;

(b) Received a federal WARN act notice; or

(c) Received a notice of indefinite layoff as a result of a permanent reduction of operations at ((the worker's)) your place of employment; and

(3) ((His or her)) Your skills are in diminishing demand within your labor market in ((his or her)) your principal occupation or previous industry.

(4) ((A worker)) You will not be considered unlikely to return to work if ((he or she)) you:

(a) ((Is)) Are on standby from the principal employer;

(b) ((Has)) Have a definite date of recall with the principal employer within six months; or

(c) ((Is)) Are unemployed due to a regular seasonal layoff.

(((5) A worker who has been determined to be a dislocated worker by the local JTPA authority will be considered to have met the requirements of subsections (2) and (3) of this section.))

[Statutory Authority: RCW 50.12.010, 50.12.040 and 50.20.010. 95-09-085, 192-32-045, filed 4/19/95, effective 5/20/95. Statutory Authority: RCW 50.12.010, 50.12.040 and 1991 c 315 4. 91-20-012, 192-32-045, filed 9/20/91, effective 10/21/91.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

AMENDATORY SECTION (Amending WSR 91-20-012, filed 9/20/91, effective 10/21/91)

WAC 192-32-050 ((Training related)) Benefits payable only to workers enrolled in approved training. ((No individual will be eligible)) To receive timber retraining benefits, you must be ((unless)) enrolled in and making satisfactory progress in an approved training program. ((Workers will be considered to be)) You are enrolled in training if:

(1) Preregistered for classes or on a waiting list; and

(2) Have a ((commitment from the educational institution for a)) starting date of training; and

(3) The starting date is not more than one ((regular school)) quarter or term((, or equivalent period of time)) away.

[Statutory Authority: RCW 50.12.010, 50.12.040 and 1991 c 315 4. 91-20-012, 192-32-050, filed 9/20/91, effective 10/21/91.]

AMENDATORY SECTION (Amending WSR 91-20-012. filed 9/20/91, effective 10/21/91)

WAC 192-32-055 ((Timeliness of)) Training program ((submission and commencement)) deadlines. (1) ((The)) You have 60 days to submit a training plan ((submission requirement will be)) to the department for approval. The 60 days is counted from the ((filing of)) date you file a new or additional claim for unemployment insurance benefits. This means if ((a worker who is eligible for TRB)) you return((s)) to work, and ((subsequently)) become((s involuntarily)) unemployed, the 60 day period is counted from the ((most recent)) date your claim is ((reopening, even if the period had expired after the original filing of the new claim)) reopened.

(2) ((The)) You have 90 days to enroll in a training program. ((commencement requirement will be)) The 90 days is counted from your last separation from employment ((at the time of the filing of)) when you filed your new or additional claim for unemployment ((insurance)) benefits((, whichever is latest)). This means if ((a worker who is eligible for TRB)) you return((s)) to work, and ((subsequently)) become((s involuntarily)) unemployed, the 90 day period is counted from ((the most recent)) your last separation from employment((, even if the period has expired after the new claim)).

[Statutory Authority: RCW 50.12.010, 50.12.040 and 1991 c 315 4. 91-20-012, 192-32-055, filed 9/20/91, effective 10/21/91.]

AMENDATORY SECTION (Amending WSR 91-20-012, filed 9/20/91, effective 10/21/91)

WAC 192-32-065 Training program application requirements. ((Required elements for a training program submission include)) (1) The following information must be included in your training program application:

(((1))) (a) Your name and Social Security account number ((of applicant));

(((2))) (b) Name of educational institution;

(((3))) (c) Address of educational institution;

(((4))) (d) Department of educational institution, if applicable;

(((5))) (e) Name of training program;

(((6))) (f) Description of training program, including remedial requirements if necessary;

(((7))) (g) Duration of training program;

(((8))) (h) Occupation(s) trained for;

(((9))) (i) Beginning enrollment date or place on waiting list and expected enrollment date;

(j) Verification of enrollment provided by the educational institution;

(((10))) (k) Release of information form authorizing the educational institution to release grades, attendance, and other measures of program progress to the department; and

(((11))) (l) Your signature ((of applicant)).

(2) WAC 192-12-180 and WAC 192-12-182 will be used to evaluate your training program application and any modifications made to your training plan.

[Statutory Authority: RCW 50.12.010, 50.12.040 and 1991 c 315 4. 91-20-012, 192-32-065, filed 9/20/91, effective 10/21/91.]

AMENDATORY SECTION (Amending WSR 91-20-012, filed 9/20/91, effective 10/21/91)

WAC 192-32-075 Occupation in demand outside labor market. A training ((program)) plan may be approved in an occupation not in demand in the local labor market if:

(1) The occupation is in demand in another labor market; and

(2) ((The worker is)) You are willing and able to relocate to that labor market ((upon completion of)) when the training is completed; and

(3) There is not a current demand for workers with your skills in that labor market. The demand for workers in that labor market must be at wages comparable to those paid in your current labor market, based on any differences in the cost of living between the two areas.

[Statutory Authority: RCW 50.12.010, 50.12.040 and 1991 c 315 4. 91-20-012, 192-32-075, filed 9/20/91, effective 10/21/91.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

AMENDATORY SECTION (Amending WSR 91-20-012, filed 9/20/91, effective 10/21/91)

WAC 192-32-085 Full-time ((enrollment)) training. The educational institution providing the training will determine whether ((the worker is)) you are enrolled ((in training on a)) full-time ((basis)).

[Statutory Authority: RCW 50.12.010, 50.12.040 and 1991 c 315 4. 91-20-012, 192-32-085, filed 9/20/91, effective 10/21/91.]

AMENDATORY SECTION (Amending WSR 91-20-012, filed 9/20/91, effective 10/21/91)

WAC 192-32-095 Satisfactory progress. ((A worker)) You will be determined to be making satisfactory progress in a training program if the educational institution certifies to the department that ((the worker is)) you are making satisfactory progress.

This certification must be signed by the registrar or an equivalent person designated by the educational institution.

[Statutory Authority: RCW 50.12.010, 50.12.040 and 1991 c 315 4. 91-20-012, 192-32-095, filed 9/20/91, effective 10/21/91.]

NEW SECTION

WAC 192-32-100 Modifying a training plan. (1) You must notify the department immediately upon making a significant modification to your approved training plan. A significant modification is one that impacts any of the approval criteria listed in WAC 192-12-182 and includes, but is not limited to, changes in your course of study or major, training institution, projected start and completion dates, and enrolled credit hours. The department will review these changes to determine whether approval of your training plan will be continued.

(2) You may change your course of study or major one time. Your new course of study must be for an occupation or skill for which there are reasonable employment opportunities in the labor market in which you intend to seek work. Subsequent changes in your course of study or major will not be approved except in unusual individual circumstances.

(3) You may withdraw from training and reenroll at a later date one time. Subsequent applications to reenroll in a training program will not be approved except in unusual individual circumstances.

(4) The restriction in subsection (2) does not apply while you are enrolled in remedial training.

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AMENDATORY SECTION (Amending WSR 91-20-012, filed 9/20/91, effective 10/21/91)

WAC 192-32-105 Interstate claims. The additional benefit period for targeted ((counties)) rural natural resources impact areas applies only to counties within the state of Washington. Individuals filing interstate claims (with Washington as the liable state) may qualify for timber retraining benefits based on employment in the forest products industry or in the fishing industry assigned SIC 0912.

[Statutory Authority: RCW 50.12.010, 50.12.040 and 1991 c 315 4. 91-20-012, 192-32-105, filed 9/20/91, effective 10/21/91.]

AMENDATORY SECTION (Amending WSR 91-20-012, filed 9/20/91, effective 10/21/91)

WAC 192-32-115 Out-of-state training. Out-of-state training ((programs)) may be approved at educational institutions ((outside the state of Washington)) equivalent to those described in RCW 28B.10.016 and 28C.04.410(3).

[Statutory Authority: RCW 50.12.010, 50.12.040 and 1991 c 315 4. 91-20-012, 192-32-115, filed 9/20/91, effective 10/21/91.]

NEW SECTION

WAC 192-32-130 Five weeks for work search following training. The five weeks of additional benefits provided by RCW 50.22.090 (3)(c) are available for work search activities following completion of or termination or withdrawal from training. Once you begin work, these additional benefits are not available during any subsequent period of unemployment.

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NEW SECTION

WAC 192-32-135 Thirteen weeks for remedial education. The thirteen weeks of additional benefits provided by RCW 50.22.090 (3)(d) are payable under the following conditions:

(1) The remedial education program deemed necessary by the educational institution delayed the start date, or extended the completion date, of your approved training program; and

(2) The TRB benefits provided by RCW 50.22.090 (3)(b) have been exhausted; and

(3) You have not yet completed your approved training program.

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REPEALER

The following sections of the Washington Administrative Code are repealed:

WAC 192-32-001 Scope of chapter.

WAC 192-32-015 Interpretive rule--Effective date of RCW 50.22.090.

WAC 192-32-025 Post training benefits.

WAC 192-32-120 Forest products workers.

WAC 192-32-125 Dislocated workers in timber impact areas.

NEW SECTION

WAC 192-33-005 Definitions--Dislocated workers. For the purposes of RCW 50.70.010:

(1) "Forest products worker" means an individual who has or had employment, either for wages or in self-employment, in the industries set forth in WAC 192-32-040.

(2) "Salmon fishing worker" means an individual who has or had employment, either for wages or self-employment, in the salmon industry. This includes employment in at least one of the industry line items listed within the following Standard Industrial Coded industries:

(a) Commercial salmon fishing (found within SIC 0912);

(b) Preparation of canned or cured salmon food products, including smoked, salted, dried, and pickled salmon products (found within SIC 2091);

(c) Preparation of fresh or frozen salmon products, including fish fillets or fish sticks (found within SIC 2092);

(d) Operation of boats or party fishing, in relation to salmon fishing (found within SIC 7999).

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NEW SECTION

WAC 192-33-006 Dislocated workers in rural natural resources impact areas. (1) For the purposes of RCW 50.12.270, the term "dislocated workers in rural natural resources impact areas" includes:

(a) Dislocated forest products workers as defined in RCW 50.70.010(2) and WAC 192-33-005; and

(b) Dislocated salmon fishing workers as defined in RCW 50.70.010(4) and WAC 192-33-005.

(2) These individuals are persons who at the time of last separation from work, for either wages or self-employment, resided in a rural natural resources impact area and who:

(a) Have been terminated or received notices of termination from employment and are unlikely to return to employment as defined in WAC 192-32-045 in their principal occupation or previous industry because of a diminishing demand for their skills in that occupation or industry; or

(b) Are self-employed and have been displaced from their business because of diminishing demand for the business's services or goods.