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31 CFR part 35 (SLFRF; annual edition 2022)

Summary

Part 35, Pandemic Relief Programs, of the Treasury regulations in 31 CFR, with Subpart A on Coronavirus State and Local Fiscal Recovery Funds, Subpart B on Compensation and Capital Distributions and Subpart C on small business owners demographics data collection. Under § 35.1 the part implements section 9901 of the American Rescue Plan Act, which adds sections 602 and 603 to the Social Security Act to establish the Coronavirus State Fiscal Recovery Fund and Coronavirus Local Fiscal Recovery Fund. It applies to states, territories, Tribal governments, metropolitan cities, counties and other units of local government that accept such payments. The definitions set the covered period for a state or territory as beginning on March 3, 2021.

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“31 CFR part 35 (SLFRF; annual edition 2022).” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/31-cfr-part-35-slfrf-annual-edition-2022-25266601b7/, SHA-256 3368e2dffbd639c11abac4f69c0f6b7067737c4a89f23615f13218bc546431d8.

Full text

                                                                    Office of the Secretary of the Treasury                                                            Pt. 35

                                                                      (g) None of the Trust Fund amounts                           PART 35—PANDEMIC RELIEF
                                                                    may be used to acquire land in fee title                              PROGRAMS
                                                                    by the Federal Government unless the
                                                                    land is acquired by exchange or dona-                      Subpart A—Coronavirus State and Local
                                                                    tion or the acquisition is necessary for                           Fiscal Recovery Funds
                                                                    the restoration and protection of the
                                                                    natural resources, ecosystems, fish-                      Sec.
                                                                    eries, marine and wildlife habitats,                      35.1 Purpose.
                                                                                                                              35.2 Applicability.
                                                                    beaches, and coastal wetlands of the
                                                                                                                              35.3 Definitions.
                                                                    Gulf Coast Region and has the concur-
                                                                                                                              35.4 Reservation of authority, reporting.
                                                                    rence of the Governor of the state in                     35.5 Use of funds.
                                                                    which the acquisition will take place.                    35.6 Eligible uses.
                                                                                                                              35.7 Pensions.
                                                                    § 34.804     Noncompliance.                               35.8 Tax.
                                                                      (a) If Treasury determines that a                       35.9 Compliance with applicable laws.
                                                                    Gulf Coast State, coastal political sub-                  35.10 Recoupment.
                                                                    division, or coastal zone parish has ex-                  35.11 Payments to States.
                                                                                                                              35.12 Distributions to nonentitlement units
                                                                    pended funds received under the Direct
                                                                                                                                  of local government and units of general
                                                                    Component, Comprehensive Plan Com-                            local government.
                                                                    ponent, or Spill Impact Component on
                                                                    an ineligible activity, Treasury will                       Subpart B—Compensation and Capital
                                                                    make no additional funds available to                                   Distributions
                                                                    that recipient from any part of the
                                                                                                                              35.20 Purpose, applicability, and general
                                                                    Trust Fund until the recipient has de-
                                                                                                                                  provisions.
                                                                    posited in the Trust Fund an amount                       35.21 Definitions.
                                                                    equal to the amount expended for an                       35.22 Restrictions on compensation.
                                                                    ineligible activity, or Treasury has au-                  35.23 Restrictions   on   dividends, share
                                                                    thorized the recipient to expend an                           buybacks, and other capital distribu-
                                                                    equal amount from the recipient’s own                         tions.
                                                                    funds for an activity that meets the re-                  35.24 Annual certification.
                                                                    quirements of the Act.                                    35.25 Exemptive relief.
                                                                      (b) If Treasury determines that a                       Subpart C—State Small Business Credit Ini-
                                                                    Gulf Coast State, coastal political sub-                     tiative Small Business Owners Demo-
                                                                    division, or coastal zone parish has ma-                     graphics Data Collection
                                                                    terially violated a grant agreement
                                                                    under the Direct Component, Com-                          35.26 Authority, scope, and purpose.
                                                                    prehensive Plan Component, or Spill                       35.27 Definitions.
                                                                    Impact Component, Treasury will                           35.28 Annual report requirements.
                                                                    make no additional funds available to                     35.29 Format.
                                                                    that recipient from any part of the                       APPENDIX A TO PART 35—EMERGENCY CAPITAL
                                                                                                                                  INVESTMENT PROGRAM MODEL EXCESSIVE
                                                                    Trust Fund until the recipient corrects
                                                                                                                                  OR LUXURY EXPENDITURES POLICY
                                                                    the violation.
                                                                      (c) As a condition of receiving funds,                    AUTHORITY: 42 U.S.C. 802(f); 42 U.S.C. 803(f);
                                                                                                                              31 U.S.C. 321; 12 U.S.C. 5701–5710; Division N,
                                                                    recipients and subrecipients shall
                                                                                                                              Title V, Subtitle B, Pub. L. 116–260, 134 Stat.
                                                                    make available their records and per-                     1182 (12 U.S.C. 4703a); Section 104A, Pub. L.
                                                                    sonnel to Treasury in order to carry                      103–325, 108 Stat. 2160, as amended (12 U.S.C.
                                                                    out the purposes of this section.                         4701 et seq.); Pub. L. 117–2, 135 Stat. 4 (42
                                                                                                                              U.S.C. 802 et seq.).
                                                                    § 34.805     Treasury Inspector General.                    SOURCE: 86 FR 13455, Mar. 9, 2021, unless
                                                                      In addition to other authorities                        otherwise noted.
                                                                    available under the Act, the Office of
                                                                    the Inspector General of the Depart-                      Subpart A—Coronavirus State and
                                                                    ment of the Treasury is authorized to                        Local Fiscal Recovery Funds
                                                                    conduct, supervise, and coordinate au-




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                                                                    dits and investigations of activities                       SOURCE: 87 FR 4446, Jan. 27, 2022, unless
                                                                    funded through grants under the Act.                      otherwise noted.

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                                                                    § 35.1                                                           31 CFR Subtitle A (7–1–22 Edition)

                                                                    § 35.1     Purpose.                                       not prescribed prior to the start of the
                                                                                                                              covered period.
                                                                      This part implements section 9901 of
                                                                                                                                Covered period means, with respect to
                                                                    the American Rescue Plan Act (Sub-
                                                                                                                              a state or territory, the period that:
                                                                    title M of Title IX of Pub. L. 117–2),
                                                                                                                                (1) Begins on March 3, 2021; and
                                                                    which amends Title VI of the Social
                                                                                                                                (2) Ends on the last day of the fiscal
                                                                    Security Act (42 U.S.C. 801 et seq.) by
                                                                                                                              year of such State or territory in
                                                                    adding sections 602 and 603 to establish
                                                                                                                              which all funds received by the State
                                                                    the Coronavirus State Fiscal Recovery
                                                                                                                              or territory from a payment made
                                                                    Fund and Coronavirus Local Fiscal Re-
                                                                                                                              under section 602 or 603 of the Social
                                                                    covery Fund.
                                                                                                                              Security Act have been expended or re-
                                                                    § 35.2     Applicability.                                 turned to, or recovered by, the Sec-
                                                                                                                              retary.
                                                                      This part applies to states, terri-                       COVID–19 means the Coronavirus
                                                                    tories, Tribal governments, metropoli-                    Disease 2019.
                                                                    tan cities, nonentitlement units of                         COVID–19 public health emergency
                                                                    local government, counties, and units                     means the period beginning on January
                                                                    of general local government that ac-                      27, 2020 and lasting until the termi-
                                                                    cept a payment or transfer of funds                       nation of the national emergency con-
                                                                    made under section 602 or 603 of the So-                  cerning the COVID–19 outbreak de-
                                                                    cial Security Act.                                        clared pursuant to the National Emer-
                                                                                                                              gencies Act (50 U.S.C. 1601 et seq.).
                                                                    § 35.3     Definitions.
                                                                                                                                Deposit means an extraordinary pay-
                                                                      Baseline means tax revenue of the re-                   ment of an accrued, unfunded liability.
                                                                    cipient for its fiscal year ending in                     The term deposit does not refer to rou-
                                                                    2019, adjusted for inflation in each re-                  tine contributions made by an em-
                                                                    porting year using the Bureau of Eco-                     ployer to pension funds as part of the
                                                                    nomic     Analysis’s     Implicit   Price                 employer’s obligations related to pay-
                                                                    Deflator for the gross domestic product                   roll, such as either a pension contribu-
                                                                    of the United States.                                     tion consisting of a normal cost compo-
                                                                      Capital expenditures has the same                       nent related to current employees or a
                                                                    meaning given in 2 CFR 200.1.                             component addressing the amortiza-
                                                                      County means a county, parish, or                       tion of unfunded liabilities calculated
                                                                    other equivalent county division (as                      by reference to the employer’s payroll
                                                                    defined by the Census Bureau).                            costs.
                                                                      Covered benefits include, but are not                     Eligible employer means an employer
                                                                    limited to, the costs of all types of                     of an eligible worker who performs es-
                                                                    leave (vacation, family-related, sick,                    sential work.
                                                                    military, bereavement, sabbatical, jury                     Eligible workers means workers need-
                                                                    duty), employee insurance (health, life,                  ed to maintain continuity of oper-
                                                                    dental, vision), retirement (pensions,                    ations of essential critical infrastruc-
                                                                    401(k)), unemployment benefit plans                       ture sectors, including health care;
                                                                    (Federal and State), workers’ com-                        emergency response; sanitation, dis-
                                                                    pensation insurance, and Federal In-                      infection, and cleaning work; mainte-
                                                                    surance Contributions Act taxes (which                    nance work; grocery stores, res-
                                                                    includes Social Security and Medicare                     taurants, food production, and food de-
                                                                    taxes).                                                   livery; pharmacy; biomedical research;
                                                                      Covered change means a change in                        behavioral health work; medical test-
                                                                    law, regulation, or administrative in-                    ing and diagnostics; home- and commu-
                                                                    terpretation that reduces any tax (by                     nity-based health care or assistance
                                                                    providing for a reduction in a rate, a                    with activities of daily living; family
                                                                    rebate, a deduction, a credit, or other-                  or childcare; social services work; pub-
                                                                    wise) or delays the imposition of any                     lic health work; vital services to
                                                                    tax or tax increase. A change in law in-                  Tribes; any work performed by an em-
                                                                    cludes any final legislative or regu-                     ployee of a State, local, or Tribal gov-
                                                                    latory action, a new or changed admin-                    ernment; educational work, school nu-
                                                                    istrative interpretation, and the phase-                  trition work, and other work required




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                                                                    in or taking effect of any statute or                     to operate a school facility; laundry
                                                                    rule if the phase-in or taking effect was                 work; elections work; solid waste or

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                                                                    Office of the Secretary of the Treasury                                                       § 35.3

                                                                    hazardous materials management, re-                       ant to section 9901 of the American
                                                                    sponse, and cleanup work; work requir-                    Rescue Plan Act. General revenue also
                                                                    ing physical interaction with patients;                   includes revenue from liquor stores
                                                                    dental care work; transportation and                      that are owned and operated by state
                                                                    warehousing; work at hotel and com-                       and local governments. General rev-
                                                                    mercial lodging facilities that are used                  enue does not include revenues from
                                                                    for COVID–19 mitigation and contain-                      utilities, except recipients may choose
                                                                    ment; work in a mortuary; and work in                     to include revenue from utilities that
                                                                    critical clinical research, development,                  are part of their own government as
                                                                    and testing necessary for COVID–19 re-                    general revenue provided the recipient
                                                                    sponse.                                                   does so consistently over the remain-
                                                                      (1) With respect to a recipient that is                 der of the period of performance. Rev-
                                                                    a metropolitan city, nonentitlement                       enue from Tribal business enterprises
                                                                    unit of local government, or county,                      must be included in general revenue.
                                                                    workers in any additional non-public                        Intergovernmental     transfers  means
                                                                    sectors as each chief executive officer                   money received from other govern-
                                                                    of such recipient may designate as crit-                  ments, including grants and shared
                                                                    ical to protect the health and well-                      taxes.
                                                                    being of the residents of their metro-                      Low-income household means a house-
                                                                    politan city, nonentitlement unit of                      hold with:
                                                                    local government, or county; or                             (1) Income at or below 185 percent of
                                                                      (2) With respect to a State, territory,                 the Federal Poverty Guidelines for the
                                                                    or Tribal government, workers in any                      size of its household based on the pov-
                                                                    additional non-public sectors as each                     erty guidelines published most re-
                                                                    Governor of a State or territory, or                      cently by the Department of Health
                                                                    each Tribal government, may designate                     and Human Services; or
                                                                    as critical to protect the health and                       (2) Income at or below 40 percent of
                                                                    well-being of the residents of their                      the Area Median Income for its county
                                                                    State, territory, or Tribal government.                   and size of household based on data
                                                                      Essential work means work that:                         published most recently by the Depart-
                                                                      (1) Is not performed while tele-                        ment of Housing and Urban Develop-
                                                                    working from a residence; and                             ment.
                                                                      (2) Involves:                                             Micro-business means a small business
                                                                      (i) Regular in-person interactions                      that has five or fewer employees, one
                                                                    with patients, the public, or coworkers                   or more of whom owns the small busi-
                                                                    of the individual that is performing the                  ness.
                                                                    work; or                                                    Moderate-income household means a
                                                                      (ii) Regular physical handling of                       household with:
                                                                    items that were handled by, or are to                       (1) Income at or below 300 percent of
                                                                    be handled by patients, the public, or                    the Federal Poverty Guidelines for the
                                                                    coworkers of the individual that is per-                  size of its household based on poverty
                                                                    forming the work.                                         guidelines published most recently by
                                                                      Funds means, with respect to a re-                      the Department of Health and Human
                                                                    cipient, amounts provided to the re-                      Services; or
                                                                    cipient pursuant to a payment made                          (2) Income at or below 65 percent of
                                                                    under section 602(b) or 603(b) of the So-                 the Area Median Income for its county
                                                                    cial Security Act or transferred to the                   and size of household based on data
                                                                    recipient pursuant to section 603(c)(4)                   published most recently by the Depart-
                                                                    of the Social Security Act.                               ment of Housing and Urban Develop-
                                                                      General revenue means money that is                     ment.
                                                                    received from tax revenue, current                          Metropolitan city has the meaning
                                                                    charges, and miscellaneous general                        given that term in section 102(a)(4) of
                                                                    revenue, excluding refunds and other                      the Housing and Community Develop-
                                                                    correcting transactions and proceeds                      ment Act of 1974 (42 U.S.C. 5302(a)(4))
                                                                    from issuance of debt or the sale of in-                  and includes cities that relinquish or
                                                                    vestments, agency or private trust                        defer their status as a metropolitan
                                                                    transactions, and intergovernmental                       city for purposes of receiving alloca-




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                                                                    transfers from the Federal Govern-                        tions under section 106 of such Act (42
                                                                    ment, including transfers made pursu-                     U.S.C. 5306) for fiscal year 2021.

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                                                                    § 35.3                                                           31 CFR Subtitle A (7–1–22 Edition)

                                                                       Net reduction in total spending is                     diminishment of the eligible worker’s
                                                                    measured as the State or territory’s                      previous, current, or prospective wages
                                                                    total spending for a given reporting                      or remuneration; or
                                                                    year excluding its spending of funds,                       (2) With regard to work that the eli-
                                                                    subtracted from its total spending for                    gible worker continues to perform, pay
                                                                    its fiscal year ending in 2019, adjusted                  of up to $13 per hour that is in addition
                                                                    for inflation using the Bureau of Eco-                    to the eligible worker’s regular rate of
                                                                    nomic      Analysis’s    Implicit    Price                wages or remuneration, with no reduc-
                                                                    Deflator for the gross domestic product                   tion, substitution, offset, or other di-
                                                                    of the United States for that reporting                   minishment of the worker’s current
                                                                    year.                                                     and prospective wages or remunera-
                                                                       Nonentitlement unit of local government                tion.
                                                                    means a ‘‘city,’’ as that term is defined                   Qualified census tract has the same
                                                                    in section 102(a)(5) of the Housing and                   meaning       given    in    26    U.S.C.
                                                                    Community Development Act of 1974                         42(d)(5)(B)(ii)(I).
                                                                    (42 U.S.C. 5302(a)(5)), that is not a met-                  Recipient means a State, territory,
                                                                    ropolitan city.                                           Tribal government, metropolitan city,
                                                                       Nonprofit means a nonprofit organiza-                  nonentitlement unit of local govern-
                                                                    tion that is exempt from Federal in-                      ment, county, or unit of general local
                                                                    come taxation and that is described in                    government that receives a payment
                                                                    section 501(c)(3) or 501(c)(19) of the In-                made under section 602(b) or 603(b) of
                                                                    ternal Revenue Code.                                      the Social Security Act or transfer
                                                                       Obligation means an order placed for                   pursuant to section 603(c)(4) of the So-
                                                                    property and services and entering into                   cial Security Act.
                                                                    contracts, subawards, and similar
                                                                                                                                Reporting year means a single year or
                                                                    transactions that require payment.
                                                                                                                              partial year within the covered period,
                                                                       Pension fund means a defined benefit
                                                                                                                              aligned to the current fiscal year of the
                                                                    plan and does not include a defined
                                                                                                                              State or territory during the covered
                                                                    contribution plan.
                                                                                                                              period.
                                                                       Period of performance means the time
                                                                                                                                Secretary means the Secretary of the
                                                                    period described in § 35.5 during which a
                                                                                                                              Treasury.
                                                                    recipient may obligate and expend
                                                                    funds in accordance with sections                           State means each of the 50 States and
                                                                    602(c)(1) and 603(c)(1) of the Social Se-                 the District of Columbia.
                                                                    curity Act and this subpart.                                Small business means a business con-
                                                                       Premium pay means an amount of up                      cern or other organization that:
                                                                    to $13 per hour that is paid to an eligi-                   (1) Has no more than 500 employees
                                                                    ble worker, in addition to wages or re-                   or, if applicable, the size standard in
                                                                    muneration the eligible worker other-                     number of employees established by
                                                                    wise receives, for all work performed                     the Administrator of the Small Busi-
                                                                    by the eligible worker during the                         ness Administration for the industry in
                                                                    COVID–19 public health emergency.                         which the business concern or organi-
                                                                    Such amount may not exceed $25,000 in                     zation operates, and
                                                                    total over the period of performance                        (2) Is a small business concern as de-
                                                                    with respect to any single eligible                       fined in section 3 of the Small Business
                                                                    worker. Premium pay may be awarded                        Act (15 U.S.C. 632).
                                                                    to non-hourly and part-time eligible                        Tax revenue means revenue received
                                                                    workers performing essential work.                        from a compulsory contribution that is
                                                                    Premium pay will be considered to be                      exacted by a government for public
                                                                    in addition to wages or remuneration                      purposes excluding refunds and correc-
                                                                    the eligible worker otherwise receives                    tions and, for purposes of § 35.8, inter-
                                                                    if, as measured on an hourly rate, the                    governmental transfers. Tax revenue
                                                                    premium pay is:                                           does not include payments for a special
                                                                       (1) With regard to work that the eli-                  privilege granted or service rendered,
                                                                    gible worker previously performed, pay                    employee or employer assessments and
                                                                    and remuneration equal to the sum of                      contributions to finance retirement
                                                                    all wages and remuneration previously                     and social insurance trust systems, or




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                                                                    received plus up to $13 per hour with no                  special assessments to pay for capital
                                                                    reduction, substitution, offset, or other                 improvements.

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                                                                    Office of the Secretary of the Treasury                                                       § 35.5

                                                                      Territory means the Commonwealth                        conditions or violations of law, includ-
                                                                    of Puerto Rico, the United States Vir-                    ing actions necessary to prevent eva-
                                                                    gin Islands, Guam, the Commonwealth                       sions of this subpart.
                                                                    of the Northern Mariana Islands, or                         (b) Extensions or accelerations of tim-
                                                                    American Samoa.                                           ing. The Secretary may extend or ac-
                                                                      Title I eligible schools means schools                  celerate any deadline or compliance
                                                                    eligible to receive services under sec-                   date of this part, including reporting
                                                                    tion 1113 of Title I, Part A of the Ele-                  requirements that implement this sub-
                                                                    mentary and Secondary Education Act                       part, if the Secretary determines that
                                                                    of 1965, as amended (20 U.S.C. 6313), in-                 such extension or acceleration is ap-
                                                                    cluding schools served under section                      propriate. In determining whether an
                                                                    1113(b)(1)(C) of that Act.                                extension or acceleration is appro-
                                                                      Tribal enterprise means a business                      priate, the Secretary will consider the
                                                                    concern:                                                  period of time that would be extended
                                                                      (1) That is wholly owned by one or                      or accelerated and how the modified
                                                                    more Tribal governments, or by a cor-                     timeline would facilitate compliance
                                                                    poration that is wholly owned by one                      with this subpart.
                                                                    or more Tribal governments; or                              (c) Reporting and requests for other in-
                                                                      (2) That is owned in part by one or                     formation. During the period of per-
                                                                    more Tribal governments, or by a cor-                     formance, recipients shall provide to
                                                                    poration that is wholly owned by one                      the Secretary periodic reports pro-
                                                                    or more Tribal governments, if all                        viding detailed accounting of the uses
                                                                    other owners are either United States                     of funds, modifications to a State or
                                                                    citizens or small business concerns, as                   Territory’s tax revenue sources, and
                                                                    these terms are used and consistent                       such other information as the Sec-
                                                                    with the definitions in 15 U.S.C.                         retary may require for the administra-
                                                                    657a(b)(2)(D).                                            tion of this section. In addition to reg-
                                                                      Tribal government means the recog-                      ular reporting requirements, the Sec-
                                                                    nized governing body of any Indian or                     retary may request other additional in-
                                                                    Alaska Native Tribe, band, nation,                        formation as may be necessary or ap-
                                                                    pueblo, village, community, component                     propriate, including as may be nec-
                                                                    band, or component reservation, indi-                     essary to prevent evasions of the re-
                                                                    vidually identified (including par-                       quirements of this subpart. False state-
                                                                    enthetically) in the list published on                    ments or claims made to the Secretary
                                                                    January 29, 2021, pursuant to section                     may result in criminal, civil, or admin-
                                                                    104 of the Federally Recognized Indian                    istrative sanctions, including fines, im-
                                                                    Tribe List Act of 1994 (25 U.S.C. 5131).                  prisonment, civil damages and pen-
                                                                      Unemployment rate means the U–3 un-                     alties, debarment from participating in
                                                                    employment rate provided by the Bu-                       Federal awards or contracts, and/or
                                                                    reau of Labor Statistics as part of the                   any other remedy available by law.
                                                                    Local Area Unemployment Statistics
                                                                    program, measured as total unemploy-                      § 35.5 Use of funds.
                                                                    ment as a percentage of the civilian                         (a) In general. A recipient may only
                                                                    labor force.                                              use funds to cover costs incurred dur-
                                                                      Unemployment trust fund means an                        ing the period beginning March 3, 2021,
                                                                    unemployment trust fund established                       and ending December 31, 2024, for one
                                                                    under section 904 of the Social Security                  or more of the purposes enumerated in
                                                                    Act (42 U.S.C. 1104).                                     sections 602(c)(1) and 603(c)(1) of the So-
                                                                      Unit of general local government has                    cial Security Act, as applicable, includ-
                                                                    the meaning given to that term in sec-                    ing those enumerated in § 35.6, subject
                                                                    tion 102(a)(1) of the Housing and Com-                    to the restrictions set forth in sections
                                                                    munity Development Act of 1974 (42                        602(c)(2) and 603(c)(2) of the Social Se-
                                                                    U.S.C. 5302(a)(1)).                                       curity Act, as applicable.
                                                                                                                                 (b) Costs incurred. A cost shall be con-
                                                                    § 35.4 Reservation of authority, report-                  sidered to have been incurred for pur-
                                                                         ing.                                                 poses of paragraph (a) of this section if
                                                                       (a) Reservation of authority. Nothing                  the recipient has incurred an obliga-




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                                                                    in this part shall limit the authority of                 tion with respect to such cost by De-
                                                                    the Secretary to take action to enforce                   cember 31, 2024.

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                                                                    § 35.6                                                           31 CFR Subtitle A (7–1–22 Edition)

                                                                      (c) Return of funds. A recipient must                   beneficiaries presumptively impacted
                                                                    return any funds not obligated by De-                     or disproportionately impacted by the
                                                                    cember 31, 2024. A recipient must also                    public health emergency or its nega-
                                                                    return funds obligated by December 31,                    tive economic impacts for the purpose
                                                                    2024 but not expended by December 31,                     of providing a response under para-
                                                                    2026.                                                     graph (b)(1) or (b)(3) of this section:
                                                                                                                                (i) Households or populations that ex-
                                                                    § 35.6 Eligible uses.
                                                                                                                              perienced unemployment; experienced
                                                                       (a) In general. Subject to §§ 35.7 and                 increased food or housing insecurity;
                                                                    35.8, a recipient may use funds for one                   qualify for the Children’s Health Insur-
                                                                    or more of the purposes described in                      ance Program (42 U.S.C. 1397aa et seq.),
                                                                    paragraphs (b) through (f) of this sec-                   Childcare Subsidies through the Child
                                                                    tion.                                                     Care and Development Fund Program
                                                                       (b) Responding to the public health                    (42 U.S.C. 9857 et seq. and 42 U.S.C. 618),
                                                                    emergency or its negative economic im-                    or Medicaid (42 U.S.C. 1396 et seq.); if
                                                                    pacts. A recipient may use funds to re-                   funds are to be used for affordable
                                                                    spond to the public health emergency                      housing programs, qualify for the Na-
                                                                    or its negative economic impacts if the                   tional Housing Trust Fund (12 U.S.C.
                                                                    use meets the criteria provided in para-                  4568) or the Home Investment Partner-
                                                                    graph (b)(1) of this section or is enu-                   ships Program (42 U.S.C. 12721 et seq.);
                                                                    merated in paragraph (b)(3) of this sec-                  if funds are to be used to address im-
                                                                    tion; provided that, in the case of a use                 pacts of lost instructional time for stu-
                                                                    of funds for a capital expenditure under                  dents in kindergarten through twelfth
                                                                    paragraphs (b)(1) or (b)(3) of this sec-                  grade, any student who did not have
                                                                    tion, the use of funds must also meet                     access to in-person instruction for a
                                                                    the criteria provided in paragraph                        significant period of time; and low- and
                                                                    (b)(4) of this section. Treasury may                      moderate-income households and popu-
                                                                    also articulate additional eligible pro-                  lations are presumed to be impacted by
                                                                    grams, services, or capital expendi-                      the public health emergency or its neg-
                                                                    tures from time to time that satisfy                      ative economic impacts;
                                                                    the eligibility criteria of this para-
                                                                                                                                (ii) The general public is presumed to
                                                                    graph (b), which shall be eligible under
                                                                                                                              be impacted by the public health emer-
                                                                    this paragraph (b).
                                                                                                                              gency for the purposes of providing the
                                                                       (1) Identifying eligible responses to the
                                                                                                                              uses set forth in subparagraphs
                                                                    public health emergency or its negative
                                                                    economic impacts. (i) A program, serv-                    (b)(3)(i)(A) and (b)(3)(i)(C); and
                                                                    ice, or capital expenditure is eligible                     (iii) The following households, com-
                                                                    under this paragraph (b)(1) if a recipi-                  munities, small businesses, and non-
                                                                    ent identifies a harm or impact to a                      profit organizations are presumed to be
                                                                    beneficiary or class of beneficiaries                     disproportionately impacted by the
                                                                    caused or exacerbated by the public                       public health emergency or its nega-
                                                                    health emergency or its negative eco-                     tive economic impacts:
                                                                    nomic impacts and the program, serv-                        (A) Households and populations resid-
                                                                    ice, or capital expenditure responds to                   ing in a qualified census tract; house-
                                                                    such harm.                                                holds and populations receiving serv-
                                                                       (ii) A program, service, or capital ex-                ices provided by Tribal governments;
                                                                    penditure responds to a harm or impact                    households and populations residing in
                                                                    experienced by an identified bene-                        the territories; households and popu-
                                                                    ficiary or class of beneficiaries if it is                lations receiving services provided by
                                                                    reasonably designed to benefit the ben-                   territorial governments; low-income
                                                                    eficiary or class of beneficiaries that                   households and populations; house-
                                                                    experienced the harm or impact and is                     holds that qualify for Temporary As-
                                                                    related and reasonably proportional to                    sistance for Needy Families (42 U.S.C.
                                                                    the extent and type of harm or impact                     601 et seq.), the Supplemental Nutrition
                                                                    experienced.                                              Assistance Program (7 U.S.C. 2011 et
                                                                       (2) Identified harms: Presumptions of                  seq.), Free and Reduced Price School
                                                                    impacted and disproportionately impacted                  Lunch and/or Breakfast programs (42




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                                                                    beneficiaries. A recipient may rely on                    U.S.C. 1751 et seq. and 42 U.S.C. 1773),
                                                                    the following presumptions to identify                    Medicare Part D Low-income Subsidies

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                                                                    Office of the Secretary of the Treasury                                                       § 35.6

                                                                    (42 U.S.C. 1395w–114), Supplemental Se-                     (B) Medical expenses related to test-
                                                                    curity Income (42 U.S.C. 1381 et seq.),                   ing and treating COVID–19 that are
                                                                    Head Start (42 U.S.C. 9831 et seq.), Early                provided in a manner consistent with
                                                                    Head Start (42 U.S.C. 9831 et seq.), the                  recommendations and guidance from
                                                                    Special Supplemental Nutrition Pro-                       the Centers for Disease Control and
                                                                    gram for Women, Infants, and Children                     Prevention, including emergency med-
                                                                    (42 U.S.C. 1786), Section 8 Vouchers (42                  ical response expenses, treatment of
                                                                    U.S.C. 1437f), the Low-Income Home                        long-term symptoms or effects of
                                                                    Energy Assistance Program (42 U.S.C.                      COVID–19, and costs to medical pro-
                                                                    8621 et seq.), Pell Grants (20 U.S.C.                     viders or to individuals for testing or
                                                                    1070a), and, if SLFRF funds are to be                     treating COVID–19;
                                                                    used for services to address educational                    (C) Behavioral health care, including
                                                                    disparities, Title I eligible schools;                    prevention, treatment, emergency or
                                                                      (B) Small businesses operating in a                     first-responder programs, harm reduc-
                                                                    qualified census tract, operated by                       tion, supports for long-term recovery,
                                                                    Tribal governments or on Tribal lands,                    and behavioral health facilities and
                                                                    or operating in the territories; and                      equipment; and
                                                                      (C) Nonprofit organizations operating                     (D) Preventing and responding to in-
                                                                    in a qualified census tract, operated by                  creased violence resulting from the
                                                                    Tribal governments or on Tribal lands,                    public health emergency, including
                                                                    or operating in the territories.                          community violence intervention pro-
                                                                      (3) Enumerated eligible uses: Responses                 grams, or responding to increased gun
                                                                    presumed reasonably proportional. A re-                   violence resulting from the public
                                                                    cipient may use funds to respond to the                   health emergency, including payroll
                                                                    public health emergency or its nega-                      and covered benefits associated with
                                                                    tive economic impacts on a beneficiary                    community policing strategies; en-
                                                                    or class of beneficiaries for one or more                 forcement efforts to reduce gun vio-
                                                                    of the following purposes unless such                     lence; and investing in technology and
                                                                    use is grossly disproportionate to the                    equipment;
                                                                    harm caused or exacerbated by the                           (ii) Responding to the negative eco-
                                                                    public health emergency or its nega-                      nomic impacts of the public health
                                                                    tive economic impacts:                                    emergency for purposes including:
                                                                      (i) Responding to the public health                       (A) Assistance to households and in-
                                                                    impacts of the public health emergency                    dividuals, including:
                                                                    for purposes including:                                     (1) Assistance for food; emergency
                                                                      (A) COVID–19 mitigation and preven-                     housing needs; burials, home repairs,
                                                                    tion in a manner that is consistent                       or weatherization; internet access or
                                                                    with recommendations and guidance                         digital literacy; cash assistance; and
                                                                    from the Centers for Disease Control                      assistance accessing public benefits;
                                                                    and Prevention, including vaccination                       (2) Paid sick, medical, or family
                                                                    programs and incentives; testing pro-                     leave programs, or assistance to ex-
                                                                    grams; contact tracing; isolation and                     pand access to health insurance;
                                                                    quarantine; mitigation and prevention                       (3) Childcare, early learning services,
                                                                    practices in congregate settings; acqui-                  home visiting, or assistance for child
                                                                    sition and distribution of medical                        welfare-involved families or foster
                                                                    equipment for prevention and treat-                       youth;
                                                                    ment of COVID–19, including personal                        (4) Programs to address the impacts
                                                                    protective equipment; COVID–19 pre-                       of lost instructional time for students
                                                                    vention and treatment expenses for                        in kindergarten through twelfth grade;
                                                                    public hospitals or health care facili-                     (5) Development, repair, and oper-
                                                                    ties, including temporary medical fa-                     ation of affordable housing and services
                                                                    cilities; establishing or enhancing pub-                  or programs to increase long-term
                                                                    lic health data systems; installation                     housing security;
                                                                    and improvement of ventilation sys-                         (6) Financial services that facilitate
                                                                    tems in congregate settings, health fa-                   the delivery of Federal, State, or local
                                                                    cilities, or other public facilities; and                 benefits for unbanked and underbanked
                                                                    assistance to small businesses, non-                      individuals;




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                                                                    profits, or impacted industries to im-                      (7) Benefits for the surviving family
                                                                    plement mitigation measures;                              members of individuals who have died

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                                                                    § 35.6                                                           31 CFR Subtitle A (7–1–22 Edition)

                                                                    from COVID–19, including cash assist-                     facilities, and programs that increase
                                                                    ance to surviving spouses or depend-                      access to healthy foods;
                                                                    ents of individuals who died of COVID–                      (iv) Capital expenditures and other
                                                                    19;                                                       services to address vacant or aban-
                                                                      (8) Assistance for individuals who                      doned properties;
                                                                    want and are available for work, in-                        (v) Services to address educational
                                                                    cluding those who are unemployed,                         disparities; and
                                                                    have looked for work sometime in the                        (vi) Facilities and equipment related
                                                                    past 12 months, who are employed part                     to the provision of these services to the
                                                                    time but who want and are available                       disproportionately impacted house-
                                                                    for full-time work, or who are em-                        hold, population, or community.
                                                                    ployed but seeking a position with                          (B) Assistance to small businesses,
                                                                    greater opportunities for economic ad-                    including:
                                                                    vancement;
                                                                                                                                (1) Programs, services, or capital ex-
                                                                      (9) Facilities and equipment related
                                                                                                                              penditures that respond to the negative
                                                                    to the provision of services to house-
                                                                                                                              economic impacts of the COVID–19 pub-
                                                                    holds     provided    in   subparagraphs
                                                                                                                              lic health emergency, including loans
                                                                    (b)(3)(ii)(A)(1)–(8);
                                                                                                                              or grants to mitigate financial hard-
                                                                      (10) The following expenses related to
                                                                                                                              ship such as declines in revenues or im-
                                                                    Unemployment Trust Funds:
                                                                                                                              pacts of periods of business closure, or
                                                                      (i) Contributions to a recipient Un-
                                                                                                                              providing technical assistance; and
                                                                    employment Trust Fund and repay-
                                                                                                                                (2) A program, service, capital ex-
                                                                    ment of principal amounts due on ad-
                                                                                                                              penditure, or other assistance that re-
                                                                    vances received under Title XII of the
                                                                                                                              sponds to disproportionately impacted
                                                                    Social Security Act (42 U.S.C. 1321) up
                                                                                                                              small businesses, including rehabilita-
                                                                    to an amount equal to the difference
                                                                                                                              tion of commercial properties; store-
                                                                    between the balance in the recipient’s
                                                                                                                              front and façade improvements; tech-
                                                                    Unemployment Trust Fund as of Janu-
                                                                                                                              nical assistance, business incubators,
                                                                    ary 27, 2020 and the balance of such ac-
                                                                                                                              and grants for start-ups or expansion
                                                                    count as of May 17, 2021 plus the prin-
                                                                                                                              costs for small businesses; and pro-
                                                                    cipal amount outstanding as of May 17,
                                                                                                                              grams or services to support micro-
                                                                    2021 on any advances received under
                                                                                                                              businesses;
                                                                    Title XII of the Social Security Act be-
                                                                    tween January 27, 2020 and May 17,                          (C) Assistance to nonprofit organiza-
                                                                    2021; provided that if a recipient repays                 tions including programs, services, or
                                                                    principal on Title XII advances or                        capital expenditures, including loans
                                                                    makes a contribution to an Unemploy-                      or grants to mitigate financial hard-
                                                                    ment Trust Fund after April 1, 2022,                      ship such as declines in revenues or in-
                                                                    such recipient shall not reduce average                   creased costs, or technical assistance;
                                                                    weekly benefit amounts or maximum                           (D) Assistance to tourism, travel,
                                                                    benefit entitlements prior to December                    hospitality, and other impacted indus-
                                                                    31, 2024; and                                             tries for programs, services, or capital
                                                                      (ii) Any interest due on such ad-                       expenditures, including support for
                                                                    vances received under Title XII of the                    payroll costs and covered benefits for
                                                                    Social Security Act (42 U.S.C. 1321);                     employees, compensating returning
                                                                    and                                                       employees, support for operations and
                                                                      (11) A program, service, capital ex-                    maintenance of existing equipment and
                                                                    penditure, or other assistance that is                    facilities, and technical assistance; and
                                                                    provided to a disproportionately im-                        (E) Expenses to support public sector
                                                                    pacted household, population, or com-                     capacity and workforce, including:
                                                                    munity, including:                                          (1) Payroll and covered benefit ex-
                                                                      (i) Services to address health dispari-                 penses for public safety, public health,
                                                                    ties of the disproportionately impacted                   health care, human services, and simi-
                                                                    household, population, or community;                      lar employees to the extent that the
                                                                      (ii) Housing vouchers and relocation                    employee’s time is spent mitigating or
                                                                    assistance;                                               responding to the COVID–19 public
                                                                      (iii) Investments in communities to                     health emergency;




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                                                                    promote improved health outcomes and                        (2) Payroll, covered benefit, and
                                                                    public safety such as parks, recreation                   other costs associated with programs

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                                                                    Office of the Secretary of the Treasury                                                                                                  § 35.6

                                                                    or services to support the public sector                                        grams addressing the public health
                                                                    workforce and with the recipient:                                               emergency or its negative economic
                                                                      (i) Hiring or rehiring staff to fill                                          impacts; and
                                                                    budgeted full-time equivalent positions                                           (4) Costs associated with addressing
                                                                    that existed on January 27, 2020 but                                            administrative needs of recipient gov-
                                                                    that were unfilled or eliminated as of                                          ernments that were caused or exacer-
                                                                    March 3, 2021; or                                                               bated by the pandemic.
                                                                      (ii) Increasing the number of its                                               (4) Capital expenditures. A recipient,
                                                                    budgeted full-time equivalent employ-                                           other than a Tribal government, must
                                                                    ees by up to the difference between the
                                                                                                                                                    prepare a written justification for cer-
                                                                    number of its budgeted full-time equiv-
                                                                                                                                                    tain capital expenditures according to
                                                                    alent employees on January 27, 2020,
                                                                                                                                                    Table 1 to paragraph (b)(4) of this sec-
                                                                    multiplied by 1.075, and the number of
                                                                    its budgeted full-time equivalent em-                                           tion. Such written justification must
                                                                    ployees on March 3, 2021, provided that                                         include the following elements:
                                                                    funds shall only be used for additional                                           (i) Describe the harm or need to be
                                                                    budgeted full-time equivalent employ-                                           addressed;
                                                                    ees above the recipient’s number of                                               (ii) Explain why a capital expendi-
                                                                    budgeted full-time equivalent employ-                                           ture is appropriate; and
                                                                    ees as of March 3, 2021;                                                          (iii) Compare the proposed capital ex-
                                                                      (3) Costs to improve the design and                                           penditure to at least two alternative
                                                                    execution of programs responding to                                             capital expenditures and demonstrate
                                                                    the COVID–19 pandemic and to admin-                                             why the proposed capital expenditure
                                                                    ister or improve the efficacy of pro-                                           is superior.
                                                                                                                          TABLE 1 TO PARAGRAPH (b)(4)
                                                                    If a project has total expected          and the use is enumerated in (b)(3), then                  and the use is not enumerated in (b)(3), then
                                                                    capital expenditures of

                                                                    Less than $1 million .................   No Written Justification required ......................   No Written Justification required.
                                                                    Greater than or equal to $1              Written Justification required but recipients are          Written Justification required and recipients
                                                                      million, but less than $10 mil-         not required to submit as part of regular re-              must submit as part of regular reporting to
                                                                      lion.                                   porting to Treasury.                                       Treasury.
                                                                    $10 million or more ..................   Written Justification required and recipients
                                                                                                              must submit as part of regular reporting to
                                                                                                              Treasury.




                                                                      (c) Providing premium pay to eligible                                         tions as defined by the Bureau of Labor
                                                                    workers. A recipient may use funds to                                           Statistics’ Occupational Employment
                                                                    provide premium pay to eligible work-                                           and Wage Statistics;
                                                                    ers of the recipient who perform essen-                                           (2) The eligible worker is not exempt
                                                                    tial work or to provide grants to eligi-                                        from the Fair Labor Standards Act
                                                                    ble employers that have eligible work-                                          overtime provisions (29 U.S.C. 207); or
                                                                    ers who perform essential work, pro-                                              (3) The recipient has submitted to
                                                                    vided that any premium pay or grants                                            the Secretary a written justification
                                                                    provided under this paragraph (c) must                                          that explains how providing premium
                                                                    respond to eligible workers performing                                          pay to the eligible worker is responsive
                                                                    essential work during the COVID–19                                              to the eligible worker performing es-
                                                                    public health emergency. A recipient                                            sential work during the COVID–19 pub-
                                                                    uses premium pay or grants provided                                             lic health emergency (such as a de-
                                                                    under this paragraph (c) to respond to                                          scription of the eligible workers’ du-
                                                                    eligible workers performing essential                                           ties, health, or financial risks faced
                                                                    work during the COVID–19 public                                                 due to COVID–19, and why the recipient
                                                                    health emergency if:                                                            determined that the premium pay was
                                                                      (1) The eligible worker’s total wages                                         responsive despite the worker’s higher
                                                                    and remuneration, including the pre-                                            income).
                                                                    mium pay, is less than or equal to 150                                            (d) Providing government services. A re-
                                                                    percent of the greater of such eligible                                         cipient may use funds for the provision




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                                                                    worker’s residing State’s or county’s                                           of government services to the extent of
                                                                    average annual wage for all occupa-                                             the reduction in the recipient’s general

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                                                                    § 35.6                                                           31 CFR Subtitle A (7–1–22 Edition)

                                                                    revenue due to the public health emer-                    in paragraph (d)(2)(i) of this section,
                                                                    gency, calculated according to this                       except:
                                                                    paragraph (d). A recipient must make a                      (1) For purposes of all calculation
                                                                    one-time election to calculate the                        dates on or after April 1, 2022, in the
                                                                    amount of the reduction in the recipi-                    case of any change made after January
                                                                    ent’s general revenue due to the public                   6, 2022 to any law, regulation, or ad-
                                                                    health emergency according to either                      ministrative interpretation that re-
                                                                    paragraph (d)(1) or (d)(2) of this sec-                   duces any tax (by providing for a re-
                                                                    tion:                                                     duction in a rate, a rebate, a deduction,
                                                                      (1) Standard allowance. The reduction                   a credit, or otherwise) or delays the
                                                                    in the recipient’s general revenue due                    imposition of any tax or tax increase
                                                                    to the public health emergency over                       and that the recipient assesses has had
                                                                    the period of performance will be                         the effect of decreasing the amount of
                                                                    deemed to be ten million dollars; or                      tax revenue collected during the 12-
                                                                      (2) Formula. The reduction in the re-                   month period ending on the calculation
                                                                    cipient’s general revenue due to the                      date relative to the amount of tax rev-
                                                                    public health emergency over the pe-                      enue that would have been collected in
                                                                    riod of performance equals the sum of                     the absence of such change, the recipi-
                                                                    the reduction in revenue, calculated as                   ent must add to actual general revenue
                                                                    of each date identified in paragraph                      the amount of such decrease in tax rev-
                                                                    (d)(2)(i) of this section and according to                enue;
                                                                    the formula in paragraph (d)(2)(ii) of                      (2) For purposes of any calculation
                                                                    this section:                                             date on or after April 1, 2022, in the
                                                                      (i) A recipient must make a one-time                    case of any change made after January
                                                                    election to calculate the reduction in                    6, 2022 to any law, regulation, or ad-
                                                                    its general revenue using information                     ministrative interpretation that in-
                                                                    as of either:                                             creases any tax (by providing for an in-
                                                                      (A) December 31, 2020, December 31,                     crease in a rate, the reduction of a re-
                                                                    2021, December 31, 2022, and December                     bate, a deduction, or a credit, or other-
                                                                    31, 2023; or                                              wise) or accelerates the imposition of
                                                                      (B) The last day of each of the recipi-                 any tax or tax increase and that the re-
                                                                    ent’s fiscal years ending in 2020, 2021,                  cipient assesses has had the effect of
                                                                    2022, and 2023.                                           increasing the amount of tax revenue
                                                                      (ii) A reduction in a recipient’s gen-                  collected during the 12-month period
                                                                    eral revenue for each date identified in                  ending on the calculation date relative
                                                                    paragraph (d)(2)(i) of this section                       to the amount of tax revenue that
                                                                    equals:                                                   would have been collected in the ab-
                                                                    Max {[Base Year Revenue * (1 + Growth Adjust-             sence of such change, the recipient
                                                                       ment)∧(nt/12)]¥Actual General Revenue; 0}              must subtract from actual general rev-
                                                                     Where:                                                   enue the amount of such increase in
                                                                      (A) Base Year Revenue is the recipi-                    tax revenue;
                                                                    ent’s general revenue for the most re-                      (3) If the recipient makes a one-time
                                                                    cent full fiscal year prior to the                        election to adjust general revenue to
                                                                    COVID–19 public health emergency;                         reflect tax changes made during the pe-
                                                                      (B) Growth Adjustment is equal to                       riod beginning on January 27, 2020 and
                                                                    the greater of 5.2 percent (or 0.052) and                 ending on January 6, 2022, for purposes
                                                                    the recipient’s average annual revenue                    of each calculation date identified in
                                                                    growth over the three full fiscal years                   paragraph (d)(2)(i) of this section:
                                                                    prior to the COVID–19 public health                         (i) In the case of any change made
                                                                    emergency;                                                during such prior period to any law,
                                                                      (C) n equals the number of months                       regulation, or administrative interpre-
                                                                    elapsed from the end of the base year                     tation that reduces any tax (by pro-
                                                                    to the calculation date;                                  viding for a reduction in a rate, a re-
                                                                      (D) Subscript t denotes the specific                    bate, a deduction, a credit, or other-
                                                                    calculation date; and                                     wise) or delays the imposition of any
                                                                      (E) Actual General Revenue is a re-                     tax or tax increase and that the recipi-
                                                                    cipient’s actual general revenue col-                     ent assesses has had the effect of de-




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                                                                    lected during the 12-month period end-                    creasing the amount of tax revenue
                                                                    ing on each calculation date identified                   collected during the 12-month period

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                                                                    Office of the Secretary of the Treasury                                                        § 35.6

                                                                    ending on the calculation date relative                   Pollution Control Act (33 U.S.C.
                                                                    to the amount of tax revenue that                         1383(c)(5));
                                                                    would have been collected in the ab-                        (iii) Drinking Water State Revolving
                                                                    sence of such change, the recipient                       Fund projects. Projects or activities of
                                                                    must add to actual general revenue the                    the type that meet the eligibility re-
                                                                    amount of such decrease in tax rev-                       quirements of section 1452 of the Safe
                                                                    enue; and                                                 Drinking Water Act (42 U.S.C. 300j–12)
                                                                      (ii) In the case of any change made                     as implemented by the regulations
                                                                    during such prior period to any law,                      adopted by the Environmental Protec-
                                                                    regulation, or administrative interpre-                   tion Agency (EPA) under 40 CFR
                                                                    tation that increases any tax (by pro-                    35.3520, provided that:
                                                                    viding for an increase in a rate, the re-                   (A) The recipient is not required to
                                                                    duction of a rebate, a deduction, or a                    comply with the limitation under 40
                                                                    credit, or otherwise) or accelerates the                  CFR 35.3520(c)(2) to acquisitions of land
                                                                    imposition of any tax or tax increase                     from willing sellers or the prohibition
                                                                    and that the recipient assesses has had                   under 40 CFR 35.3520(e)(6) on uses of
                                                                    the effect of increasing the amount of                    funds for certain Tribal projects; and
                                                                    tax revenue collected during the 12-                        (B) In the case of lead service line re-
                                                                    month period ending on the calculation                    placement projects, the recipient must
                                                                    date relative to the amount of tax rev-                   replace the full length of the service
                                                                    enue that would have been collected in                    line and may not replace only a partial
                                                                    the absence of such change, the recipi-                   portion of the service line.
                                                                    ent must subtract from actual general                       (iv) Additional lead remediation and
                                                                    revenue the amount of such increase in                    household water quality testing. Projects
                                                                    tax revenue; and                                          or activities to address lead in drinking
                                                                      (4) With respect to any calculation                     water or provide household water qual-
                                                                    date during the period beginning on                       ity testing that are within the scope of
                                                                                                                              the programs the EPA is authorized to
                                                                    January 6, 2022 and ending on March 31,
                                                                                                                              establish under sections 1459A(b)(2),
                                                                    2022, if the recipient makes the elec-
                                                                                                                              1459B(b)(1), 1464(d)(2), and 1465 of the
                                                                    tion in paragraph (d)(3) of this section,
                                                                                                                              Safe Drinking Water Act (42 U.S.C.
                                                                    the recipient must also make the ad-
                                                                                                                              300j–19a(b)(2),     300j–19b(b)(1),    300j–
                                                                    justments referenced in paragraph
                                                                                                                              24(d)(2), and 300j–25), provided that:
                                                                    (d)(3) of this section with respect to
                                                                                                                                (A) In the case of lead service line re-
                                                                    any such changes in law, regulation, or
                                                                                                                              placement projects, the recipient must
                                                                    administrative interpretation during
                                                                                                                              replace the full length of the service
                                                                    the period beginning on January 6, 2022
                                                                                                                              line and may not replace only a partial
                                                                    and ending on such calculation date.
                                                                                                                              portion of the service line; and
                                                                      (e) Making necessary investments in                       (B) In the case of projects within the
                                                                    water, sewer, and broadband infrastruc-                   scope of the program the EPA is au-
                                                                    ture. A recipient may use funds to                        thorized to establish under section
                                                                    make the following investments in                         1459B(b)(1) of the Safe Drinking Water
                                                                    water, sewer, and broadband infra-                        Act, the recipient may determine the
                                                                    structure.                                                income eligibility of homeowners
                                                                      (1) Water and sewer investments—(i)                     served by lead service line replacement
                                                                    Clean Water State Revolving Fund                          projects in its discretion.
                                                                    projects. Projects or activities of the                     (v) Drinking water projects to support
                                                                    type that meet the eligibility require-                   increased population. Projects of the
                                                                    ments of section 603(c) of the Federal                    type that meet the eligibility require-
                                                                    Water Pollution Control Act (33 U.S.C.                    ments of 40 CFR 35.3520 other than the
                                                                    1383(c));                                                 requirement of subparagraph (b)(1) of
                                                                      (ii) Additional stormwater projects.                    such regulation to address present or
                                                                    Projects to manage, reduce, treat, or                     prevent future violations of health-
                                                                    recapture stormwater or subsurface                        based drinking water standards, if the
                                                                    drainage water regardless of whether                      following conditions are met:
                                                                    such projects would improve water                           (A) The project is needed to support
                                                                    quality if such projects would other-                     increased population, with need as-




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                                                                    wise meet the eligibility requirements                    sessed as of the time the project is un-
                                                                    of section 603(c)(5) of the Federal Water                 dertaken;

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                                                                    § 35.6                                                           31 CFR Subtitle A (7–1–22 Edition)

                                                                      (B) The project is designed to support                     (2) Broadband investments—(i) General.
                                                                    no more than a reasonable level of pro-                   Broadband infrastructure if the fol-
                                                                    jected increased need, whether due to                     lowing conditions are met:
                                                                    population growth or otherwise;                              (A) The broadband infrastructure is
                                                                      (C) The project is a cost-effective                     designed to provide service to house-
                                                                    means for achieving the desired level of                  holds and businesses with an identified
                                                                    service; and                                              need, as determined by the recipient,
                                                                      (D) The project is projected to con-                    for such infrastructure;
                                                                    tinue to provide an adequate level of                        (B) The broadband infrastructure is
                                                                    drinking water over its estimated use-                    designed to, upon completion:
                                                                    ful life.                                                    (1) Reliably meet or exceed symmet-
                                                                      (vi) Dams and reservoirs. Rehabilita-                   rical 100 Mbps download speed and
                                                                    tion of dams and reservoirs if the fol-                   upload speeds; or
                                                                    lowing conditions are met:                                   (2) In cases where it is not prac-
                                                                      (A) The project meets the require-                      ticable, because of the excessive cost of
                                                                    ments of 40 CFR 35.3520 other than the                    the project or geography or topography
                                                                    following requirements:                                   of the area to be served by the project,
                                                                      (1) The prohibition on the rehabilita-                  to provide service reliably meeting or
                                                                    tion of dams and reservoirs in 40 CFR                     exceeding      symmetrical      100   Mbps
                                                                    35.3520(e)(1) and (3); and                                download speed and upload speeds:
                                                                      (2) The requirement in 40 CFR                              (i) Reliably meet or exceed 100 Mbps
                                                                    35.3520(b)(1) that the project is needed                  download speed and between at least 20
                                                                    to address present or prevent future                      Mbps and 100 Mbps upload speed; and
                                                                    violations of health-based drinking                          (ii) Be scalable to a minimum of 100
                                                                    water standards, provided that if the                     Mbps download speed and 100 Mbps
                                                                    dam or reservoir project does not meet                    upload speed; and
                                                                    this requirement, the project must be                        (C) The service provider for a com-
                                                                    needed to support increased popu-                         pleted broadband infrastructure invest-
                                                                    lation, with need assessed as of the                      ment project that provides service to
                                                                    time the project is undertaken, and the                   households is required, for as long as
                                                                    project must be projected to continue                     the SLFRF-funded broadband infra-
                                                                    to provide an adequate level of drink-                    structure is in use, by the recipient to:
                                                                    ing water over its estimated useful life;                    (1) Participate in the Federal Com-
                                                                      (B) The primary purpose of the dam                      munications Commission’s Affordable
                                                                    or reservoir is for drinking water sup-                   Connectivity Program (ACP) through
                                                                    ply;                                                      the lifetime of the ACP; or
                                                                      (C) The project is needed for the pro-                     (2) Otherwise provide access to a
                                                                    vision of drinking water supply, with                     broad-based affordability program to
                                                                    need assessed as of the time the project                  low-income consumers in the proposed
                                                                    is initiated;                                             service area of the broadband infra-
                                                                      (D) The project is designed to support                  structure that provides benefits to
                                                                    no more than a reasonable level of pro-                   households commensurate with those
                                                                    jected increased need, whether due to                     provided under the ACP through the
                                                                    population growth or otherwise; and                       lifetime of the ACP.
                                                                      (E) The project is a cost-effective                        (ii) Cybersecurity infrastructure invest-
                                                                    means for achieving the desired level of                  ments. Cybersecurity infrastructure in-
                                                                    service.                                                  vestments that are designed to improve
                                                                      (vii) Private wells. Rehabilitation of                  the reliability and resiliency of new
                                                                    private wells, testing initiatives to                     and existing broadband infrastructure.
                                                                    identify contaminants in private wells,                   Such investments may include the ad-
                                                                    and treatment activities and remedi-                      dition or modernization of network se-
                                                                    ation projects that address contamina-                    curity hardware and software tools de-
                                                                    tion in private wells, if the project                     signed to strengthen cybersecurity for
                                                                    meets the requirements of 40 CFR                          the end-users of these networks.
                                                                    35.3520 other than the limitation to cer-                    (f) Meeting the non-federal matching re-




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                                                                    tain eligible systems under 40 CFR                        quirements for Bureau of Reclamation
                                                                    35.3520(a).                                               projects. A recipient may use funds to

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                                                                    Office of the Secretary of the Treasury                                                          § 35.10

                                                                    meet the non-federal matching require-                    or based on projections that use rea-
                                                                    ments of any authorized Bureau of Rec-                    sonable assumptions and do not incor-
                                                                    lamation project.                                         porate the effects of macroeconomic
                                                                                                                              growth to reduce or increase the pro-
                                                                    § 35.7 Pensions.                                          jected impact of the covered change,
                                                                       A recipient (other than a Tribal gov-                  the State or Territory assesses has had
                                                                    ernment) may not use funds for deposit                    or predicts to have the effect of in-
                                                                    into any pension fund.                                    creasing tax revenue; and
                                                                                                                                (ii) Reductions in spending, up to the
                                                                    § 35.8 Tax.                                               amount of the State’s or Territory’s
                                                                       (a) Restriction. A State or Territory                  net reduction in total spending, that
                                                                    shall not use funds to either directly or                 are in:
                                                                    indirectly offset a reduction in the net                    (A) Departments, agencies, or au-
                                                                    tax revenue of the State or Territory                     thorities in which the State or Terri-
                                                                    resulting from a covered change during                    tory is not using funds; and
                                                                    the covered period.                                         (B) Departments, agencies, or au-
                                                                       (b) Violation. Treasury will consider a                thorities in which the State or Terri-
                                                                    State or Territory to have used funds                     tory is using funds, in an amount equal
                                                                    to offset a reduction in net tax revenue                  to the value of the spending cuts in
                                                                    if, during a reporting year:                              those departments, agencies, or au-
                                                                       (1) Covered change. The State or Ter-                  thorities, minus funds used.
                                                                    ritory has made a covered change that,                      (c) Amount and revenue reduction cap.
                                                                    either based on a reasonable statistical                  If a State or Territory is considered to
                                                                    methodology to isolate the impact of                      be in violation pursuant to paragraph
                                                                    the covered change in actual revenue                      (b) of this section, the amount used in
                                                                    or based on projections that use rea-                     violation of paragraph (a) of this sec-
                                                                    sonable assumptions and do not incor-                     tion is equal to the lesser of:
                                                                    porate the effects of macroeconomic                         (1) The reduction in net tax revenue
                                                                    growth to reduce or increase the pro-                     of the State or Territory for the re-
                                                                    jected impact of the covered change,                      porting year, measured as the dif-
                                                                    the State or Territory assesses has had                   ference between the State’s or Terri-
                                                                    or predicts to have the effect of reduc-                  tory’s baseline and its actual tax rev-
                                                                    ing tax revenue relative to current law;                  enue, each measured as of the end of
                                                                       (2) Exceeds the de minimis threshold.                  the reporting year; and,
                                                                    The aggregate amount of the measured
                                                                                                                                (2) The aggregate amount of the re-
                                                                    or predicted reductions in tax revenue
                                                                                                                              ductions in tax revenues caused by cov-
                                                                    caused by covered changes identified
                                                                                                                              ered changes identified in paragraph
                                                                    under paragraph (b)(1) of this section,
                                                                                                                              (b)(1) of this section, minus the sum of
                                                                    in the aggregate, exceeds 1 percent of
                                                                                                                              the amounts in identified in para-
                                                                    the State’s or Territory’s baseline;
                                                                                                                              graphs (b)(4)(i) and (ii) of this section.
                                                                       (3) Reduction in net tax revenue. The
                                                                    State or Territory reports a reduction                    § 35.9 Compliance            with   applicable
                                                                    in net tax revenue, measured as the dif-                       laws.
                                                                    ference between actual tax revenue and
                                                                    the State’s or Territory’s baseline,                        A recipient must comply with all
                                                                    each measured as of the end of the re-                    other applicable Federal statutes, reg-
                                                                    porting year; and                                         ulations, and executive orders, and a
                                                                       (4) Consideration of other changes. The                recipient shall provide for compliance
                                                                    aggregate amount of measured or pre-                      with the American Rescue Plan Act,
                                                                    dicted reductions in tax revenue caused                   this subpart, and any interpretive guid-
                                                                    by covered changes is greater than the                    ance by other parties in any agree-
                                                                    sum of the following, in each case, as                    ments it enters into with other parties
                                                                    calculated for the reporting year:                        relating to these funds.
                                                                       (i) The aggregate amount of the ex-
                                                                    pected increases in tax revenue caused                    § 35.10     Recoupment.
                                                                    by one or more covered changes that,                        (a) Identification of violations—(1) In
                                                                    either based on a reasonable statistical                  general. Any amount used in violation




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                                                                    methodology to isolate the impact of                      of § 35.5, 35.6, or 35.7 may be identified
                                                                    the covered change in actual revenue                      at any time prior to December 31, 2026.

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                                                                    § 35.11                                                          31 CFR Subtitle A (7–1–22 Edition)

                                                                      (2) Annual reporting of amounts of vio-                 to affirm, withdraw, or modify the no-
                                                                    lations. On an annual basis, a recipient                  tice of recoupment. Such notification
                                                                    that is a State or territory must cal-                    will include an explanation of the deci-
                                                                    culate and report any amounts used in                     sion, including responses to the recipi-
                                                                    violation of § 35.8.                                      ent’s supporting reasons and consider-
                                                                      (b) Calculation of amounts subject to                   ation of additional information pro-
                                                                    recoupment—(1) In general. Except as                      vided. A recipient must invoke and ex-
                                                                    provided in paragraph (b)(2) of this sec-                 haust the procedures available under
                                                                    tion, the Secretary will calculate any                    this subpart prior to seeking judicial
                                                                    amounts subject to recoupment result-                     review of a decision under § 35.10.
                                                                    ing from a violation of § 35.5, 35.6 or 35.7                (f) Repayment of funds. Unless the
                                                                    as the amounts used in violation of                       Secretary extends or accelerates the
                                                                    such restrictions.                                        time period, a recipient shall repay to
                                                                      (2) Violations of § 35.8. The Secretary                 the Secretary any amounts subject to
                                                                    will calculate any amounts subject to                     recoupment in accordance with in-
                                                                    recoupment resulting from a violation                     structions provided by the Secretary:
                                                                    of § 35.8, equal to the lesser of:                          (1) Within 120 calendar days of re-
                                                                      (i) The amount set forth in § 35.8(c);                  ceipt of the notice of recoupment pro-
                                                                    and,                                                      vided under paragraph (c) of this sec-
                                                                      (ii) The amount of funds received by                    tion, in the case of a recipient that
                                                                    such recipient.                                           does not submit a request for reconsid-
                                                                      (c) Initial notice. If the Secretary cal-               eration in accordance with the require-
                                                                    culates      an    amount      subject   to               ments of paragraph (d) of this section;
                                                                    recoupment under paragraph (b) of this                    or
                                                                    section, Treasury will provide the re-                      (2) Within 120 calendar days of re-
                                                                    cipient an initial written notice of the                  ceipt of the Secretary’s decision under
                                                                    amount subject to recoupment along                        paragraph (e) of this section, in the
                                                                    with an explanation of such amounts.                      case of a recipient that submits a re-
                                                                      (d) Request for reconsideration. Unless                 quest for reconsideration in accordance
                                                                    the Secretary extends or accelerates                      with the requirements of paragraph (d)
                                                                    the time period, within 60 calendar                       of this section.
                                                                    days of receipt of an initial notice of                     (g) Other remedial actions. Prior to
                                                                    recoupment provided under paragraph                       seeking recoupment or taking other
                                                                    (c) of this section, a recipient may sub-                 appropriate action pursuant to para-
                                                                    mit a written request to the Secretary                    graph (c), (d), (e), or (f) of this section,
                                                                    requesting reconsideration of any                         the Secretary may notify the recipient
                                                                    amounts subject to recoupment under                       of potential violations and provide the
                                                                    paragraph (b) of this section. To re-                     recipient an opportunity for informal
                                                                    quest reconsideration of any amounts                      consultation and remediation.
                                                                    subject to recoupment, a recipient
                                                                    must submit to the Secretary a written                    § 35.11 Payments to States.
                                                                    request that includes:                                       (a) In general. With respect to any
                                                                      (1) An explanation of why the recipi-                   State or Territory that has an unem-
                                                                    ent believes all or some of the amount                    ployment rate as of the date that it
                                                                    should not be subject to recoupment;                      submits an initial certification for pay-
                                                                    and                                                       ment of funds pursuant to section
                                                                      (2) A discussion of supporting rea-                     602(d)(1) of the Social Security Act that
                                                                    sons, along with any additional infor-                    is less than two percentage points
                                                                    mation.                                                   above its unemployment rate in Feb-
                                                                      (e) Final amount subject to recoupment.                 ruary 2020, the Secretary will withhold
                                                                    Unless the Secretary extends or accel-                    50 percent of the amount of funds allo-
                                                                    erates the time period, within 60 cal-                    cated under section 602(b) of the Social
                                                                    endar days of receipt of the recipient’s                  Security Act to such State or territory
                                                                    request for reconsideration provided                      until at least May 10, 2022 and not more
                                                                    pursuant to paragraph (d) of this sec-                    than twelve months from the date such
                                                                    tion or the expiration of the period for                  initial certification is provided to the
                                                                    requesting reconsideration provided                       Secretary.




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                                                                    under paragraph (d), the recipient will                      (b) Payment of withheld amount. In
                                                                    be notified of the Secretary’s decision                   order to receive the amount withheld

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                                                                    Office of the Secretary of the Treasury                                                       § 35.20

                                                                    under paragraph (a) of this section, the                    (c) Units of general local government.
                                                                    State or Territory must submit to the                     Each State or Territory that receives a
                                                                    Secretary the following information:                      payment from the Secretary pursuant
                                                                      (1) A certification, in the form pro-                   to section 603(b)(3)(B)(ii) of the Social
                                                                    vided by the Secretary, that such State                   Security Act, in the case of an amount
                                                                    or Territory requires the payment to                      to be paid to a county that is not a
                                                                    carry out the activities specified in                     unit of general local government, shall
                                                                    section 602(c) of the Social Security                     distribute the amount of the payment
                                                                    Act and will use the payment in com-                      to units of general local government
                                                                    pliance with section 602(c) of the Social                 within such county in accordance with
                                                                    Security Act; and                                         the requirements set forth in section
                                                                      (2) Any reports required to be filed by                 603(b)(3)(B)(ii) of the Social Security
                                                                    that date pursuant to this part that                      Act and without offsetting any debt
                                                                    have not yet been filed.                                  owed by such units of general local
                                                                                                                              government against such payments.
                                                                    § 35.12 Distributions to nonentitlement                     (d) Additional conditions. A State or
                                                                         units of local government and units                  Territory may not place additional
                                                                         of general local government.                         conditions or requirements on distribu-
                                                                      (a) Nonentitlement units of local gov-                  tions to nonentitlement units of local
                                                                    ernment. Each State or Territory that                     government or units of general local
                                                                    receives a payment from the Secretary                     government beyond those required by
                                                                    pursuant to section 603(b)(2)(B) of the                   section 603 of the Social Security Act
                                                                    Social Security Act shall distribute the                  or this subpart.
                                                                    amount of the payment to nonentitle-
                                                                    ment units of local government in such                      Subpart B—Compensation and
                                                                    State or Territory in accordance with                           Capital Distributions
                                                                    the requirements set forth in section
                                                                    603(b)(2)(C) of the Social Security Act                   § 35.20 Purpose, applicability, and gen-
                                                                    and without offsetting any debt owed                           eral provisions.
                                                                    by such nonentitlement units of local                       (a) Purpose. Pursuant Section 104A of
                                                                    governments against such payments.                        the Community Development Banking
                                                                      (b) Budget cap. A State or Territory                    and Financial Institutions Act of 1994
                                                                    may not make a payment to a non-                          (Act), as added by the Consolidated Ap-
                                                                    entitlement unit of local government                      propriations Act, 2021 (Pub. L. 116–260),
                                                                    pursuant to section 603(b)(2)(C) of the                   this subpart establishes restrictions on
                                                                    Social Security Act and paragraph (a)                     executive compensation, dividend pay-
                                                                    of this section in excess of the amount                   ments, and share buybacks for recipi-
                                                                    equal to 75 percent of the most recent                    ents of capital investments under the
                                                                    budget for the nonentitlement unit of                     Department of the Treasury’s Emer-
                                                                    local government as of January 27,                        gency Capital Investment Program
                                                                    2020. For purposes of this section 35.12,                 (ECIP or Program), as well as addi-
                                                                    a nonentitlement unit of local govern-                    tional criteria for participation in the
                                                                    ment’s most recent budget shall mean                      Program that the Secretary has deter-
                                                                    the nonentitlement unit of local gov-                     mined are appropriate in furtherance of
                                                                    ernment’s total annual budget, includ-                    the Program goals.
                                                                    ing both operating and capital expendi-                     (b) Applicability. This subpart applies
                                                                    ture budgets, in effect as of January 27,                 on a consolidated basis to any insured
                                                                    2020. A State or Territory shall permit                   depository institution, bank holding
                                                                    a nonentitlement unit of local govern-                    company, savings and loan holding
                                                                    ment without a formal budget as of                        company, or federally insured credit
                                                                    January 27, 2020, to provide a certifi-                   union that issues preferred stock or a
                                                                    cation from an authorized officer of the                  subordinated debt instrument to the
                                                                    nonentitlement unit of local govern-                      Department of the Treasury under the
                                                                    ment of its most recent annual expend-                    Program (an ECIP recipient, as defined
                                                                    itures as of January 27, 2020, and a                      in § 35.21 of this subpart). An ECIP re-
                                                                    State or Territory may rely on such                       cipient must comply with the require-




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                                                                    certification for purposes of complying                   ments of this subpart during the ECIP
                                                                    with this section 35.12.                                  period.

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                                                                    § 35.21                                                          31 CFR Subtitle A (7–1–22 Edition)

                                                                      (c) Limitation of authority. Nothing in                   (A) Payments of dividends and inter-
                                                                    this subpart shall be interpreted to                      est (as defined by 12 CFR 707.2(h) and
                                                                    limit the authority of the appropriate                    (o)) on accounts held by their members;
                                                                    Federal banking agency to take action                     provided that this exclusion does not
                                                                    under other provisions of law, includ-                    apply to any extraordinary or special
                                                                    ing action to address unsafe or unsound                   dividend by a credit union; or
                                                                    practices or conditions, deficient cap-                     (B) Redemptions of membership
                                                                    ital levels, or violations of law or regu-                share interests upon voluntary or in-
                                                                    lation, under section 8 of the Federal                    voluntary terminations of membership
                                                                    Deposit Insurance Act, section 8 of the                   by a credit union or its members, as
                                                                    Bank Holding Company Act, or section                      applicable; and
                                                                    10 of the Home Owners’ Loan Act, or                         (iii) Solely in the case of § 35.23(b)
                                                                    the Federal Credit Union Act, as may                      (Limit on amount of capital distribu-
                                                                    be applicable.                                            tions), redemptions or repurchases of
                                                                                                                              non-senior securities if the issuer of
                                                                    § 35.21 Definitions.
                                                                                                                              the non-senior securities being repur-
                                                                       Except as modified in this regulation                  chased or redeemed fully funds the re-
                                                                    or unless the context otherwise re-                       demption or repurchase by issuing at
                                                                    quires, the terms used in this regula-                    least a corresponding amount of new
                                                                    tion have the same meaning as set                         non-senior securities that rank equally
                                                                    forth in the relevant statutes. For pur-                  in liquidation with, receive the same
                                                                    poses of this subpart:                                    capital treatment as and, if applicable,
                                                                       Act means the Community Develop-                       have a stated maturity date no earlier
                                                                    ment Banking and Financial Institu-                       than the non-senior securities being re-
                                                                    tions Act of 1994, as amended (12 U.S.C.                  deemed or repurchased.
                                                                    4701 et seq.).                                              ECIP means the Emergency Capital
                                                                       Appropriate Federal banking agency                     Investment Program established under
                                                                    has the same meaning as in 12 U.S.C.                      Section 104A of the Community Devel-
                                                                    1813 and also includes the NCUA with                      opment Banking and Financial Institu-
                                                                    respect to a federally insured credit                     tions Act of 1994, as amended.
                                                                    union.                                                      ECIP investment means any preferred
                                                                       Capital distributions means:                           stock, subordinated debt, or other in-
                                                                       (1) Dividends, including discretionary                 strument (including any successor to
                                                                    dividends, on non-senior securities and                   any such instrument) issued by an
                                                                    any other payments on a share of stock                    ECIP recipient to the Department of
                                                                    or other equity or equivalent interest;                   the Treasury under the ECIP.
                                                                       (2) Payments, including interest pay-
                                                                                                                                ECIP investment agreement means the
                                                                    ments, on non-senior securities, that
                                                                                                                              agreement between an ECIP recipient
                                                                    the issuer has full discretion to perma-
                                                                                                                              and the Department of the Treasury
                                                                    nently or temporarily suspend without
                                                                                                                              with respect to the ECIP investment in
                                                                    triggering a default;
                                                                                                                              that ECIP recipient.
                                                                       (3) Redemptions or repurchases of
                                                                    non-senior securities; or                                   ECIP investment date means the date
                                                                       (4) Any similar transaction that the                   on which an ECIP recipient first issued
                                                                    Department of the Treasury deter-                         an ECIP investment.
                                                                    mines to be in substance a capital dis-                     ECIP period means the period from
                                                                    tribution;                                                the ECIP investment date until the
                                                                       (5) Provided, that a ‘‘capital distribu-               earliest of:
                                                                    tion’’ does not include:                                    (1) The date on which the ECIP re-
                                                                       (i) Redemptions or repurchases of                      cipient has fully redeemed or repaid
                                                                    shares that are part of an employee                       the ECIP investment received under
                                                                    stock ownership plan for an ECIP re-                      ECIP;
                                                                    cipient that is not publicly traded, pro-                   (2) The date on which the investment
                                                                    vided that the repurchase is required                     the ECIP recipient received under the
                                                                    solely by virtue of the Employee Re-                      ECIP is no longer held, in full or in
                                                                    tirement Income Security Act of 1974,                     part, by the Department of the Treas-
                                                                    as amended;                                               ury or any affiliate thereof; and




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                                                                       (ii) In the case of federally insured                    (3) Ten years after the ECIP invest-
                                                                    credit unions:                                            ment date.

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                                                                    Office of the Secretary of the Treasury                                                       § 35.21

                                                                       ECIP recipient means any entity that                     (4) Require the ECIP recipient to de-
                                                                    has received a capital investment                         liver a certification, executed by two
                                                                    under the ECIP.                                           senior executive officers (one of which
                                                                       Excessive    or   luxury    expenditures               must be its principal executive officer
                                                                    means:                                                    or principal financial officer) certifying
                                                                       (1) Excessive expenditures on any of                   that the approval of any expenditure
                                                                    the following to the extent such ex-                      requiring the prior approval of any sen-
                                                                    penditures are not reasonable expendi-                    ior executive officer, any executive of-
                                                                    tures for staff development, reasonable                   ficer of a substantially similar level of
                                                                    performance incentives, or other simi-                    responsibility, or the ECIP recipient’s
                                                                    lar reasonable measures conducted in                      board of directors (or a committee of
                                                                    the normal course of the ECIP recipi-                     such board of directors), was properly
                                                                    ent’s business operations:                                obtained with respect to each such ex-
                                                                       (i) Entertainment or events;                           penditure;
                                                                       (ii) Office and facility renovations;                    (5) Require the prompt internal re-
                                                                                                                              porting of violations to an appropriate
                                                                       (iii) Aviation or other transportation
                                                                                                                              person or persons identified in this pol-
                                                                    services;
                                                                                                                              icy; and
                                                                       (iv) Tax gross-ups; and
                                                                                                                                (6) Mandate accountability for adher-
                                                                       (v) Other similar items, activities, or                ence to the policy.
                                                                    events for which the ECIP recipient                         FDIC means the Federal Deposit In-
                                                                    may reasonably anticipate incurring                       surance Corporation.
                                                                    expenses, or reimbursing an employee                        Federal Reserve Board means the
                                                                    for incurring expenses;                                   Board of Governors of the Federal Re-
                                                                       (2) Provided, that reasonable capital                  serve System.
                                                                    investments in technology, equipment,                       NCUA means the National Credit
                                                                    and similar items that expand the                         Union Administration.
                                                                    long-term capability of an ECIP recipi-                     Non-senior security means any equity
                                                                    ent to provide products and services to                   interest or equivalent interest (includ-
                                                                    its customers and community are not                       ing but not limited to membership
                                                                    excessive or luxury expenditures.                         share interests in the case of a credit
                                                                       Excessive or luxury expenditures policy                union) or any other interest in, or in-
                                                                    means written standards applicable to                     strument issued by, an ECIP recipient
                                                                    the ECIP recipient and its employees                      that is pari passu with, or junior to, the
                                                                    that address the five categories of ex-                   ECIP investment with respect to cap-
                                                                    penses set forth in the definition of                     ital distributions or ranking in liquida-
                                                                    ‘‘excessive or luxury expenditures,’’                     tion, including but not limited to the
                                                                    and that are reasonably designed to                       common stock (or equivalent equity
                                                                    eliminate excessive and luxury expend-                    interest) of the ECIP recipient, or any
                                                                    itures. Such written standards must:                      equity interest or equivalent interest
                                                                       (1) Identify the types or categories of                or any other interest in or instrument
                                                                    expenditures which are prohibited                         issued by a depository institution hold-
                                                                    (which may include a threshold expend-                    ing company of which the ECIP recipi-
                                                                    iture amount per item, activity, or                       ent is a subsidiary.
                                                                    event or a threshold expenditure                            OCC means the Office of the Comp-
                                                                    amount per employee receiving the                         troller of the Currency.
                                                                    item or participating in the activity or                    Principal executive officer means the
                                                                    event);                                                   chief executive officer of an ECIP re-
                                                                       (2) Identify the types or categories of                cipient (or individual performing a
                                                                    expenditures for which prior approval                     similar function).
                                                                    is required (which may include a                            Principal financial officer means the
                                                                    threshold expenditure amount per                          chief financial officer of an ECIP re-
                                                                    item, activity, or event or a threshold                   cipient (or individual performing a
                                                                    expenditure amount per employee re-                       similar function).
                                                                    ceiving the item or participating in the                    Senior executive officer means an ECIP
                                                                    activity or event);                                       recipient’s president, any vice presi-
                                                                       (3) Provide reasonable approval pro-                   dent in charge of a principal business




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                                                                    cedures for expenditures requiring                        unit, division or function, any other of-
                                                                    prior approval;                                           ficer who performs a policy making

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                                                                    § 35.22                                                          31 CFR Subtitle A (7–1–22 Edition)

                                                                    function, or any other person who per-                       (2) For an ECIP recipient that is a
                                                                    forms similar policy making functions.                    bank holding company, the require-
                                                                      Severance payment means any pay-                        ments for corporate practices of bank
                                                                    ment or benefit provided to an officer                    holding companies as issued by the
                                                                    or employee of an ECIP recipient in                       Federal Reserve Board at 12 CFR 225.4;
                                                                    connection with any termination of                           (3) For an ECIP recipient that is a
                                                                    such officer or employee’s employment                     savings and loan holding company, the
                                                                    with the ECIP recipient (including res-                   requirements regarding safe and sound
                                                                    ignation, severance, retirement, or                       operations of savings and loan holding
                                                                    constructive termination), except for                     companies as issued by the Federal Re-
                                                                    payment for services performed or ben-                    serve Board at 12 CFR 238.8; and
                                                                    efits accrued. A severance payment in-                       (4) For an ECIP recipient that is a
                                                                    cludes cash payments, health care ben-                    federally insured credit union, the re-
                                                                    efits, perquisites, the enhancement or                    quirements on compensation and bene-
                                                                    acceleration of any payment or vesting                    fits for federally insured credit unions
                                                                    of any payment or benefit, or any other                   as issued by the NCUA at 12 CFR
                                                                    in-kind benefit payable or provided in                    701.19(a); 12 CFR 701.21(c)(8); 12 CFR
                                                                    connection with any termination of an                     702.203(b)(10); and 12 CFR 702.204(b)(10).
                                                                    officer or employee of the ECIP recipi-                      (b) Restriction on severance payments.
                                                                    ent.                                                      An ECIP recipient shall not make ex-
                                                                      Total compensation means all com-                       cessive severance payments to any sen-
                                                                    pensation, other than any severance                       ior executive officer. Unless informed
                                                                    payment, provided by an ECIP recipi-                      otherwise by the Department of the
                                                                    ent to an officer or employee, including                  Treasury, an ECIP is considered to
                                                                    salary, wages, bonuses, awards of                         have satisfied the requirements regard-
                                                                    stock, deferred compensation, and                         ing severance payments in this section
                                                                    other financial benefits.                                 if it maintains compliance with the fol-
                                                                                                                              lowing (or any successor requirement,
                                                                    § 35.22    Restrictions on compensation.                  as applicable):
                                                                      (a) Restriction on executive compensa-                     (1) For an ECIP recipient that is an
                                                                    tion. An ECIP recipient must ensure                       insured depository institution, a bank
                                                                    that the total compensation paid to its                   holding company or a savings and loan
                                                                    senior executive officers is appropriate                  holding company, the limits and prohi-
                                                                    and not excessive. Unless informed oth-                   bitions to enter into contracts to pay
                                                                    erwise by the Department of the Treas-                    and to make golden parachute and in-
                                                                    ury, an ECIP recipient is considered to                   demnification payments to institution-
                                                                    have satisfied the requirements regard-                   affiliated parties to the extent applica-
                                                                    ing executive compensation in this sec-                   ble to the ECIP recipient, as issued by
                                                                    tion if it, and, if applicable, all insured               the FDIC at 12 CFR part 359; and
                                                                    depository institution subsidiaries of                       (2) For an ECIP recipient that is a
                                                                    the ECIP recipient, maintains compli-                     federally insured credit union, the lim-
                                                                    ance with the following (or any suc-                      its and prohibitions on the ability of
                                                                    cessor requirement, as applicable):                       federally insured credit unions to enter
                                                                      (1) For an ECIP recipient or sub-                       into contracts to pay and to make
                                                                    sidiary of an ECIP recipient that is an                   golden parachute and indemnification
                                                                    insured depository institution, except                    payments to institution-affiliated par-
                                                                    for federally insured credit unions, the                  ties as issued by the NCUA at 12 CFR
                                                                    Interagency Guidelines Establishing                       750.1.
                                                                    Standards for Safety and Soundness as                        (c) Excessive or luxury expenditures. (1)
                                                                    issued by the appropriate Federal                         Ninety days after an ECIP investment
                                                                    banking agency for the ECIP recipient                     date with respect to an ECIP recipient,
                                                                    or subsidiary (i.e., for national banks                   the board of directors of the ECIP re-
                                                                    and Federal savings associations, 12                      cipient must adopt an excessive or lux-
                                                                    CFR part 30, appendix A; state member                     ury expenditures policy, provide such
                                                                    banks, 12 CFR part 208, appendix D–1;                     policy to the Department of the Treas-
                                                                    insured state nonmember banks and                         ury and the ECIP recipient’s appro-




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                                                                    state savings associations, 12 CFR part                   priate Federal banking agency, and
                                                                    364, appendix A);                                         post the text of such policy on its

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                                                                    Office of the Secretary of the Treasury                                                       § 35.23

                                                                    internet website, if the ECIP recipient                   cipient has provided a complete re-
                                                                    maintains an internet website.                            quest to the Department of the Treas-
                                                                      (2) If, after adopting an excessive or                  ury, unless, prior to the expiration of
                                                                    luxury expenditures policy, the board                     the thirty-day period, the Department
                                                                    of directors of the ECIP recipient                        of the Treasury objects to the proposed
                                                                    makes any material amendments to                          change or notifies the ECIP recipient
                                                                    such policy, within ninety days of the                    that additional time is required in
                                                                    adoption of the amended policy the                        order to complete review of the pro-
                                                                    board of directors must provide the                       posed change to policy or procedures
                                                                    amended policy to the Department of
                                                                    the Treasury and the ECIP recipient’s                     § 35.23 Restrictions   on   dividends,
                                                                    appropriate Federal banking agency                             share buybacks, and other capital
                                                                    and post the amended policy on its                             distributions.
                                                                    internet website, if the ECIP recipient                     (a) Restriction on capital distributions
                                                                    maintains an internet website.                            due to nonpayment. An ECIP recipient
                                                                      (3) The ECIP recipient must main-                       shall not make any capital distribution
                                                                    tain, and continue the disclosure of                      on a non-senior security, unless:
                                                                    any material amendments to, the ex-                         (1) If the ECIP investment is in the
                                                                    cessive or luxury expenditures policy                     form of preferred stock, the ECIP re-
                                                                    during the ECIP period, unless the De-                    cipient has paid in full the dividends
                                                                    partment of the Treasury determines                       for the last completed dividend period
                                                                    that discontinuation of the policy                        on the preferred stock; or
                                                                    would not be contrary to the public in-                     (2) If the ECIP investment is in a
                                                                    terest.                                                   form other than preferred stock (in-
                                                                      (d) Material changes in policies or pro-                cluding, subordinated debt), the ECIP
                                                                    cedures. An ECIP recipient must obtain                    recipient has paid in full the principal,
                                                                    prior approval from the Department of                     interest, and other amounts due and
                                                                    the Treasury before making any mate-                      payable under the terms of the ECIP
                                                                    rial change to the policies or proce-                     investment, and no amount that has
                                                                    dures that it maintains for purposes of                   been deferred remains unpaid.
                                                                    compliance with paragraph (a), (b), or                      (b) Limit on amount of capital distribu-
                                                                    (c) of this section. A change to the                      tions. (1) If an ECIP recipient is an in-
                                                                    compensation, severance pay, or exces-                    sured depository institution, bank
                                                                    sive or luxury expenditures policies or                   holding company, or savings and loan
                                                                    procedures will be considered material                    holding company, the ECIP recipient
                                                                    for purposes of this section if the                       shall obtain the approval of the De-
                                                                    change is likely to have a negative ef-                   partment of the Treasury prior to mak-
                                                                    fect on the financial condition of the                    ing any capital distribution if the total
                                                                    ECIP recipient, limit the ability of the                  of capital distributions made during
                                                                    ECIP recipient to make payments                           the calendar year, including the pro-
                                                                    under the terms of an ECIP instru-                        posed capital distribution, exceeds its
                                                                    ment, or otherwise impair the ECIP re-                    eligible distributable income; provided,
                                                                    cipient’s ability to meet its obligations                 however, that any prior approval of a
                                                                    to the Department of the Treasury                         capital distribution by the Department
                                                                    under the ECIP.                                           of the Treasury does not supersede any
                                                                      (1) A request to make a material                        applicable regulatory requirements of
                                                                    change to compensation, severance pay                     the ECIP recipient’s appropriate Fed-
                                                                    or excessive luxury expenditures poli-                    eral banking agency, or other actions
                                                                    cies or procedures, must be submitted                     taken by such agency. For purposes of
                                                                    by an ECIP recipient in writing and re-                   this paragraph, ‘‘eligible distributable
                                                                    ceived by the Department of the Treas-                    income’’ means the sum of the ECIP re-
                                                                    ury at least thirty days prior to the ef-                 cipient’s reported year-to-date net in-
                                                                    fective date of the policy change. The                    come as of the end of the most recent
                                                                    request should describe the change,                       calendar quarter, plus net income for
                                                                    reason for the change, and anticipated                    the two preceding calendar years, less
                                                                    financial or other impact of the change                   any dividends or distributions for the
                                                                    on the condition of the ECIP recipient.                   year to date as of the end of the most




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                                                                      (2) The request will be deemed ap-                      recent calendar quarter and the two
                                                                    proved thirty days after the ECIP re-                     preceding calendar years, where each

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                                                                    § 35.24                                                          31 CFR Subtitle A (7–1–22 Edition)

                                                                    amount is calculated in accordance                        or all of the restrictions on share
                                                                    with the instructions to the Call Re-                     buybacks and dividend payments under
                                                                    port or applicable reporting form.                        this part if such exemption or waiver is
                                                                       (2) If the ECIP recipient is federally                 necessary or appropriate to effectuate
                                                                    insured credit union, the ECIP recipi-                    the goals of the ECIP or to protect the
                                                                    ent shall obtain the Department of the                    public interest. Such exemptions or
                                                                    Treasury’s prior approval to make any                     waivers may be subject to such terms
                                                                    capital distributions if the distribution                 and conditions as deemed necessary or
                                                                    would:                                                    appropriate by the Department of the
                                                                       (i) In the case of a dividend, be pay-                 Treasury.
                                                                    able from retained earnings (as defined
                                                                    in 12 CFR 702.2(f)) other than undivided
                                                                    earnings; or
                                                                                                                              Subpart C—State Small Business
                                                                       (ii) Cause the ECIP recipient’s net                       Credit Initiative Small Business
                                                                    worth classification to fall below                           Owners Demographics Data
                                                                    ‘‘adequately capitalized’’ (as defined in                    Collection
                                                                    12 CFR 702.102(a)(2)).
                                                                       (c) Exception for Subchapter S Corpora-                  SOURCE: 87 FR 13633, Mar. 10, 2022, unless
                                                                    tions and other pass-through entities.                    otherwise noted.
                                                                    Notwithstanding anything to the con-
                                                                    trary in paragraphs (a) and (b) of this                   § 35.26     Authority, scope, and purpose.
                                                                    section, any ECIP recipient that is an                      (a) Authority and scope. This subpart
                                                                    S corporation, as defined in 26 U.S.C.                    is issued by the U.S. Department of the
                                                                    1361(a), or other pass-through entity                     Treasury pursuant to Sections 3007 and
                                                                    may make capital distributions, to the                    3010 of the Small Business Jobs Act of
                                                                    extent reasonably required to cover its                   2010, as amended by the American Res-
                                                                    owners’ tax obligations in respect to                     cue Plan Act of 2021 (12 U.S.C. 5706,
                                                                    the entity’s earnings. Such distribu-                     5709).
                                                                    tions shall be subject to an annual rec-
                                                                                                                                (b) Purpose. The U.S. Department of
                                                                    onciliation, with any surplus or defi-
                                                                                                                              the Treasury is collecting demo-
                                                                    ciency to be deducted or added to dis-
                                                                                                                              graphics-related data regarding those
                                                                    tributions, as applicable, in the fol-
                                                                                                                              who own or control businesses that re-
                                                                    lowing year. Any tax-related distribu-
                                                                                                                              ceive a loan, investment, other credit
                                                                    tions permitted under this paragraph
                                                                                                                              or equity support, or technical assist-
                                                                    (c) must also comply with any applica-
                                                                                                                              ance under the State Small Business
                                                                    ble limitations or determinations es-
                                                                                                                              Credit Initiative for purposes of imple-
                                                                    tablished by an ECIP recipient’s Fed-
                                                                                                                              mentation, compliance, and under-
                                                                    eral regulators.
                                                                                                                              standing program outcomes.
                                                                    § 35.24 Annual certification.
                                                                                                                              § 35.27     Definitions.
                                                                       On an annual basis an ECIP recipient
                                                                    shall, in accordance with the terms and                     In this subpart:
                                                                    conditions of its ECIP investment                           (a) Controlling influence over a business
                                                                    agreement, submit to the Department                       means having the power to control,
                                                                    of the Treasury a certification exe-                      manage, or direct the business. A per-
                                                                    cuted by two senior executive officers                    son is presumed to have a controlling
                                                                    (one of which must be either its prin-                    influence over a business if the person
                                                                    cipal executive officer or principal fi-                  is a senior executive officer or senior
                                                                    nancial officer) that the ECIP recipient                  manager of the business (e.g., Chief Ex-
                                                                    is in compliance with each of the ex-                     ecutive Officer, Chief Financial Officer,
                                                                    cessive compensation, severance pay,                      Chief Operating Officer), or any other
                                                                    and excessive or luxury expenditures                      individual who regularly performs
                                                                    requirements and restrictions on cap-                     similar functions.
                                                                    ital distributions set forth in §§ 35.22                    (b) Jurisdiction means:
                                                                    and 35.23.                                                  (1) One of the fifty states of the
                                                                                                                              United States;
                                                                    § 35.25 Exemptive relief.                                   (2) The District of Columbia, the




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                                                                       The Department of the Treasury may                     Commonwealth of Puerto Rico, the
                                                                    grant exemptions or waivers from some                     Commonwealth of Northern Mariana

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                                                                    Office of the Secretary of the Treasury                                                       § 35.27

                                                                    Islands, Guam, American Samoa, and                        ship or otherwise, 25 percent or more of
                                                                    the United States Virgin Islands;                         the equity interests of the business,
                                                                       (3) When designated by one of the                      the trustee is a principal owner.
                                                                    fifty states of the United States, a po-                    (g) Socially and economically disadvan-
                                                                    litical subdivision of that state that                    taged individual (SEDI) demographics-re-
                                                                    the U.S. Department of the Treasury                       lated business means a business owned
                                                                    determines has the capacity to partici-                   and controlled by individuals who have
                                                                    pate in the State Small Business Credit                   had their access to credit on reasonable
                                                                    Initiative;                                               terms diminished compared to others
                                                                       (4) Under the circumstances de-                        in      comparable        economic    cir-
                                                                    scribed in 12 U.S.C. 5703(d), a munici-                   cumstances, due to their:
                                                                    pality of one of the fifty states of the                    (1) Membership of a group that has
                                                                    United States to which the U.S. De-                       been subjected to racial or ethnic prej-
                                                                    partment of the Treasury has given a                      udice or cultural bias within American
                                                                    special permission under 12 U.S.C.                        society;
                                                                    5703(d); and                                                (2) Gender;
                                                                       (5) A Tribal government or a group of                    (3) Veteran status;
                                                                    Tribal governments that jointly apply                       (4) Limited English proficiency;
                                                                    to be approved by the U.S. Department                       (5) Disability;
                                                                    of Treasury to participate in the State                     (6) Long-term residence in an envi-
                                                                    Small Business Credit Initiative as a                     ronment isolated from the mainstream
                                                                    single participating jurisdiction.                        of American society;
                                                                       (c) Minority individual means a nat-                     (7) Membership of a federally or
                                                                    ural person who identifies as American                    state-recognized Indian Tribe;
                                                                    Indian or Alaska Native; Asian; Black                       (8) Long-term residence in a rural
                                                                    or African American; Native Hawaiian                      community;
                                                                    or Other Pacific Islander; or Hispanic                      (9) Residence in a U.S. territory;
                                                                    or Latino/a; or one or more than one of                     (10) Residence in a community under-
                                                                    these groups.                                             going economic transitions (including
                                                                       (d) Minority-owned or controlled busi-                 communities impacted by the shift to-
                                                                    ness means a business that:                               wards      a    net-zero     economy    or
                                                                       (1) If privately owned, 51 percent or                  deindustrialization); or
                                                                    more is owned by minority individuals;                      (11) Membership of an underserved
                                                                       (2) If publicly owned, 51 percent or                   community.
                                                                    more of the stock is owned by minority                      (i) Underserved communities are popu-
                                                                    individuals;                                              lations sharing a particular char-
                                                                       (3) In the case of a mutual institu-                   acteristic, as well as geographic com-
                                                                    tion, a majority of the board of direc-                   munities, that have been systemati-
                                                                    tors, account holders, and the commu-                     cally denied a full opportunity to par-
                                                                    nity which the institution services is                    ticipate in aspects of economic, social,
                                                                    predominantly comprised of minority                       and civic life, as exemplified by the list
                                                                    individuals; or                                           in the definition of equity in paragraph
                                                                       (4) One or more minority individuals                   (g)(11)(ii) of this section; and
                                                                    have the power to exercise a control-                       (ii) Equity is consistent and system-
                                                                    ling influence over the business.                         atic fair, just, and impartial treatment
                                                                       (e) Participating jurisdiction means a                 of all individuals, including individuals
                                                                    jurisdiction that has been approved by                    who belong to underserved commu-
                                                                    the U.S. Department of the Treasury                       nities that have been denied such
                                                                    for participation in the State Small                      treatment, such as Black, Latino, and
                                                                    Business Credit Initiative.                               Indigenous and Native American per-
                                                                       (f) Principal owner of a business                      sons, Asian Americans and Pacific Is-
                                                                    means a natural person who directly or                    landers, and other persons of color;
                                                                    indirectly, through any contract, ar-                     members of religious minorities; les-
                                                                    rangement, understanding, relation-                       bian, gay, bisexual, transgender, and
                                                                    ship or otherwise, owns 25 percent or                     queer (LGBTQ+) persons; persons with
                                                                    more of the equity interests of the                       disabilities; persons who live in rural
                                                                    business. If a trust owns, directly or in-                areas; and persons otherwise adversely




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                                                                    directly, through any contract, ar-                       affected by persistent poverty or in-
                                                                    rangement, understanding, relation-                       equality.

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                                                                    § 35.28                                                          31 CFR Subtitle A (7–1–22 Edition)

                                                                      (12) For purposes of this paragraph                     loan, investment, or other credit or eq-
                                                                    (g), a business is ‘‘owned and con-                       uity support under the State Small
                                                                    trolled’’ by applicable individuals:                      Business Credit Initiative, the reported
                                                                      (i) If privately owned, 51 percent or                   data shall be based on the ownership
                                                                    more is owned by such individuals;                        and control of the business imme-
                                                                      (ii) If publicly owned, 51 percent                      diately before the consummation of
                                                                    more or of the stock is owned by such                     such loan, investment, or other credit
                                                                    individuals; and                                          or equity support-related transaction.
                                                                      (ii) In the case of a mutual institu-                   For each business that receives tech-
                                                                    tion, if a majority of the board of direc-                nical assistance under the State Small
                                                                    tors, account holders, and the commu-                     Business Credit Initiative, the reported
                                                                    nity which the institution services is                    data shall be based on the ownership
                                                                    predominantly comprised of such indi-                     and control of the business at the time
                                                                    viduals.                                                  it receives such technical assistance.
                                                                      (h) Veteran-owned or controlled busi-                      (a) Self-certified SEDI demographics-re-
                                                                    ness means a business that:                               lated business status. (1) Indicate which
                                                                      (1) If privately owned, 51 percent or                   one or more of the following categories
                                                                    more is owned by veterans;                                apply: Self-certified due to membership
                                                                      (2) If publicly owned, 51 percent or                    of a group that has been subjected to
                                                                    more of the stock is owned by veterans;                   racial or ethnic prejudice or cultural
                                                                      (3) In the case of a mutual institu-                    bias within American society; self-cer-
                                                                    tion, a majority of the board of direc-                   tified due to gender; self-certified due
                                                                    tors, account holders, and the commu-                     to veteran status; self-certified due to
                                                                    nity which the institution services is                    limited English proficiency; self-cer-
                                                                    predominantly comprised of veterans;                      tified due to disability; self-certified
                                                                    or                                                        due to long-term residence in an envi-
                                                                      (4) One or more individuals who are                     ronment isolated from the mainstream
                                                                    veterans have the power to exercise a                     of American society; self-certified due
                                                                    controlling influence over the business.                  to membership of a federally or state-
                                                                      (i) Women-owned or controlled business                  recognized Indian Tribe; self-certified
                                                                    means a business that:                                    due to long-term residence in a rural
                                                                      (1) If privately owned, 51 percent or                   community; self-certified due to resi-
                                                                    more is owned by females;                                 dence in a U.S. territory; self-certified
                                                                      (2) If publicly owned, 51 percent or                    due to residence in a community un-
                                                                    more of the stock is owned by females;                    dergoing economic transitions (includ-
                                                                      (3) In the case of a mutual institu-                    ing communities impacted by the shift
                                                                    tion, a majority of the board of direc-                   towards      a     net-zero  economy     or
                                                                    tors, account holders, and the commu-                     deindustrialization); self-certified due
                                                                    nity which the institution services is                    to membership of an ‘‘underserved
                                                                    predominantly comprised of females;                       community’’           as    defined      in
                                                                    or                                                        § 35.27(g)(11)(i); none of the preceding
                                                                      (4) One or more individuals who are                     categories are applicable; prefer not to
                                                                    females have the power to exercise a                      respond; or the business did not an-
                                                                    controlling influence over the business.                  swer.
                                                                                                                                 (2) The participating jurisdiction
                                                                    § 35.28 Annual report requirements.                       must permit each business to identify
                                                                       By March 31 of each year beginning                     all of the categories that apply in the
                                                                    March 31, 2023, and ending with the re-                   definition of SEDI demographics-re-
                                                                    port to be submitted on March 31, 2028,                   lated business, and the participating
                                                                    each participating jurisdiction shall                     jurisdiction must report to Treasury
                                                                    submit to the U.S. Department of the                      all categories identified by the busi-
                                                                    Treasury an annual report that in-                        ness.
                                                                    cludes, with respect to the previous                         (b) Minority-owned or controlled busi-
                                                                    calendar year, the following data for                     ness status. Indicate whether the busi-
                                                                    each business that receives a loan, in-                   ness is a minority-owned or controlled
                                                                    vestment, other credit or equity sup-                     business. The participating jurisdiction
                                                                    port, or technical assistance as part of                  must indicate yes; no; prefer not to re-




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                                                                    the State Small Business Credit Initia-                   spond; or that the business did not an-
                                                                    tive. For each business that receives a                   swer.

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                                                                    Office of the Secretary of the Treasury                                                       Pt. 35, App. A

                                                                      (c) Women-owned or controlled business                  rican; prefer not to respond; or that the
                                                                    status. Indicate whether the business is                  business did not answer.
                                                                    a women-owned or controlled business.                       (h) Gender of principal owners. For
                                                                    The participating jurisdiction must in-                   each principal owner of the business,
                                                                    dicate yes; no; prefer not to respond; or                 indicate which of the following gender
                                                                    that the business did not answer.                         categories the principal owner identi-
                                                                      (d) Veteran-owned or controlled busi-                   fies with: Female; male; nonbinary;
                                                                    ness status. Indicate whether the busi-                   prefer to self-describe, prefer not to re-
                                                                    ness is a veteran-owned or controlled                     spond; or that the business did not an-
                                                                    business. The participating jurisdiction                  swer. If the ‘‘prefer to self-describe’’
                                                                    must indicate yes; no; prefer not to re-                  option is chosen, the participating ju-
                                                                    spond; or that the business did not an-                   risdiction must provide an option for
                                                                    swer.                                                     the business to write in the gender and
                                                                      (e) Race of principal owners. (1) For                   must report what the business writes
                                                                    each principal owner of the business,                     in.
                                                                    indicate which one or more of the fol-                      (i) Sexual orientation of principal own-
                                                                    lowing race categories (including the                     ers. For each principal owner of the
                                                                    Office of Management and Budget’s                         business, indicate which of the fol-
                                                                    minimum categories and the relevant                       lowing sexual orientation categories
                                                                    disaggregated categories) with which                      the principal owner identifies with:
                                                                    the principal owner identifies: Amer-                     Gay or lesbian; bisexual; straight, that
                                                                    ican Indian or Alaska Native; Asian;                      is, not gay, lesbian, or bisexual; some-
                                                                    Asian disaggregated categories: Indian,                   thing else; prefer not to respond; or
                                                                    Chinese, Filipino, Japanese, Korean,                      that the business did not answer.
                                                                    Vietnamese, Asian (Other); Black or                         (j) Veteran status of principal owners.
                                                                    African American; Native Hawaiian or                      For each principal owner of the busi-
                                                                    Other Pacific Islander; Native Hawai-                     ness, indicate which of the following
                                                                    ian    or    Other    Pacific    Islander                 categories the principal owner identi-
                                                                    disaggregated categories: Guamanian                       fies with: Veteran; non-veteran; prefer
                                                                    or Chamorro, Native Hawaiian, Sa-                         not to respond; or that the business did
                                                                    moan, Pacific Islander (Other); White;                    not answer.
                                                                    prefer not to respond; or that the busi-
                                                                    ness did not answer.                                      § 35.29     Format.
                                                                      (2) The participating jurisdiction                         Participating jurisdictions must sub-
                                                                    must permit each business to identify                     mit the information required under
                                                                    all of the Office of Management and                       § 35.28 using the formats specified from
                                                                    Budget’s minimum categories and                           time to time on the U.S. Department of
                                                                    disaggregated categories in paragraph                     the Treasury’s website.
                                                                    (e)(1) of this section with which each
                                                                    principal owner of the business identi-                   APPENDIX A TO PART 35—EMERGENCY
                                                                    fies, and the participating jurisdiction                     CAPITAL   INVESTMENT PROGRAM
                                                                    must report to Treasury all categories                       MODEL EXCESSIVE OR LUXURY EX-
                                                                    identified by the business.                                  PENDITURES POLICY
                                                                      (f) Ethnicity of principal owners. For                                   I. INTRODUCTION
                                                                    each principal owner of the business,
                                                                    indicate which of the following eth-                         A participant in the Emergency Capital In-
                                                                    nicity categories the principal owner                     vestment Program (ECIP recipient, as de-
                                                                                                                              fined at 31 CFR 35.21) is required to establish
                                                                    identifies with: Hispanic or Latino/a;                    and maintain policies designed to eliminate
                                                                    not Hispanic or Latino/a; prefer not to                   excessive or luxury expenditures. The term
                                                                    respond; or that the business did not                     ‘‘excessive or luxury expenditures’’ means
                                                                    answer.                                                   excessive expenditures on any of the fol-
                                                                      (g) Middle Eastern or North African                     lowing to the extent such expenditures are
                                                                    Ancestry of principal owners. For each                    not reasonable expenditures for staff devel-
                                                                                                                              opment, reasonable performance incentives,
                                                                    principal owner of the business, indi-
                                                                                                                              or other similar reasonable measures con-
                                                                    cate which of the following ancestry                      ducted in the normal course of the ECIP re-
                                                                    categories the principal owner identi-




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                                                                                                                              cipient’s business operations: (1) Entertain-
                                                                    fies with: Middle Eastern or North Af-                    ment or events; (2) office and facility renova-
                                                                    rican; not Middle Eastern or North Af-                    tions; (3) aviation or other transportation

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                                                                    Pt. 35, App. A                                                     31 CFR Subtitle A (7–1–22 Edition)
                                                                    services; (4) tax gross-ups; and (5) other simi-            ment Program regulations (31 CFR part 35),
                                                                    lar items, activities, or events for which the              and as may be required by other statutes and
                                                                    ECIP recipient may reasonably anticipate                    regulations.
                                                                    incurring expenses, or reimbursing an em-
                                                                    ployee for incurring expenses.                                               C. Responsibility
                                                                      (1) To facilitate compliance with this re-                  This policy is the responsibility of the Or-
                                                                    quirement, the Department of the Treasury                   ganization’s board of directors (board). The
                                                                    is making available a model excessive or lux-               board has approved this policy and will re-
                                                                    ury expenditures policy. An ECIP recipient                  view compliance with this policy no less fre-
                                                                    may refer to this model policy for guidance                 quently than annually, and summary data
                                                                    in satisfying the requirement at 31 CFR                     on excessive or luxury expenditures will be
                                                                    35.22(c) to adopt and maintain an excessive                 reported to the board as part of the compli-
                                                                    or luxury expenditures policy. Alternatively,               ance review.
                                                                    ECIP recipients may use other forms of, or
                                                                    existing policies relating to, excessive or                                      D. Scope
                                                                    luxury expenditures, provided that such
                                                                                                                                  This policy applies to all employees, offi-
                                                                    other forms or policies satisfy all the re-
                                                                                                                                cers, and directors of the Organization with
                                                                    quirements of the regulation at 31 CFR
                                                                                                                                regard to any expenditure of the Organiza-
                                                                    35.22(c).
                                                                                                                                tion. In making any expenditure on behalf of
                                                                      (2) An ECIP recipient’s luxury or excessive
                                                                                                                                the Organization, employees, officers, and di-
                                                                    expenditure policy should be posted on the
                                                                                                                                rectors should consider whether the expendi-
                                                                    ECIP recipient’s website. Any material
                                                                                                                                ture is an excessive or luxury expenditure
                                                                    amendments to an ECIP recipient’s excessive
                                                                    or luxury expenditures policy must made in                  that is prohibited under this policy.
                                                                    accordance with the provisions set forth in                       E. Excessive or Luxury Expenditures
                                                                    31 CFR 35.22(d) (Material changes in policies
                                                                    or procedures). If the ECIP recipient makes                    ‘‘Excessive or luxury expenditures’’ means
                                                                    any material amendments to this policy,                     excessive expenditures on any of the fol-
                                                                    then the ECIP recipient must submit a copy                  lowing to the extent not reasonable or appro-
                                                                    of the amended policy to the Department of                  priate expenditures for business develop-
                                                                    the Treasury and post the amended policy on                 ment, staff development, reasonable per-
                                                                    the ECIP recipient’s website. ECIP recipi-                  formance incentives, or other similar reason-
                                                                    ents should refer to 31 CFR part 35, subpart                able measures conducted in the normal
                                                                    B for additional information regarding defi-                course of the Organization’s business oper-
                                                                    nitions of terms used in the model policy,                  ations:
                                                                    disclosure, material changes, certification,                   (1) Entertainment or events. This category
                                                                    and other compliance requirements.                          includes fees, dues, tickets costs related to
                                                                                                                                social, athletic, artistic and dining clubs, ac-
                                                                           II. MODEL EXCESSIVE OR LUXURY                        tivities, celebrations or other events, and
                                                                                EXPENDITURES POLICY                             similar expenditures. Expenditures for chari-
                                                                                                                                table contributions and charitable events are
                                                                                            A. Purpose
                                                                                                                                not prohibited under this policy. Entertain-
                                                                      The purpose of this policy is to establish                ment or events expenditures in an amount
                                                                    parameters and internal controls governing                  less than $___ per instance, and $___ on an an-
                                                                    the expenditures of [NAME OF ECIP RE-                       nual aggregate basis per individual, are ex-
                                                                    CIPIENT] (together with its subsidiaries and                empt from this policy.
                                                                    controlled affiliates, referred to hereafter as                (2) Office and facility renovations. This cat-
                                                                    the Organization). Expenditures of the Orga-                egory includes costs and allowances for of-
                                                                    nization should be customary, prudent, con-                 fice renovation, including expenditures re-
                                                                    sistent with applicable laws and regulations,               lated to furniture, art, office personalization,
                                                                    and reasonably related to the Organization’s                interior finishing, design and decoration, and
                                                                    business objectives and needs. This policy                  similar expenditures. Office and facility ren-
                                                                    identifies expenditures that are excessive or               ovations expenditures in an amount less
                                                                    luxury expenditures, creates processes that                 than $___ per instance, and $___ on an annual
                                                                    are reasonably designed to eliminate such                   aggregate basis per individual, are exempt
                                                                    expenditures, and establishes accountability                from this policy.
                                                                    for compliance. Routine operating expenses,                    (3) Aviation or other transportation services.
                                                                    capital expenditures, and other reasonable                  (i) This category includes charter fees, tick-
                                                                    expenses are not prohibited by this policy.                 ets, slip or docking fees, vehicle installment
                                                                                                                                payments, reservation and travel agent ex-
                                                                                        B. Authority                            penses, and similar expenditures associated
                                                                      The Organization has authority to provide                 with transportation services (e.g., airline,
                                                                    compensation and benefits that are reason-                  train, rental cars, or vans). Mileage reim-
                                                                    able. This policy establishes a prohibition on              bursable according to current Internal Rev-




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                                                                    expenditures that are excessive or luxury ex-               enue Service mileage rates is exempt from
                                                                    penditures as required by the Department of                 this policy. Transportation services in an
                                                                    the Treasury’s Emergency Capital Invest-                    amount less than $___ per instance, and $___

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                                                                    Office of the Secretary of the Treasury                                                           Pt. 50
                                                                    on an annual aggregate basis per individual,              employee or officer who violates this policy
                                                                    are exempt from this policy.                              may be subject to disciplinary action up to
                                                                      (ii) The principal executive officer may es-            and including termination of employment.
                                                                    tablish or delegate to an appropriate execu-                (2) Any employee or officer that is aware of
                                                                    tive officer the authority to establish proc-             any circumstance that may indicate a viola-
                                                                    esses for reimbursement of reasonable travel              tion of this policy is required to report such
                                                                    expenditures, which processes must be re-                 circumstance to their supervisor or the Or-
                                                                    viewed by executive management no less fre-               ganization’s principal compliance officer or
                                                                    quently than annually.                                    compliance group. The Organization pro-
                                                                      (4) Tax gross-ups. This category includes               hibits retaliation against any employee or
                                                                    any reimbursement of taxes owed with re-                  officer for making a good faith report of ac-
                                                                    spect to any compensation. This category                  tual or suspected violations of the Organiza-
                                                                    does not apply to tax equalization agree-                 tion’s code of conduct, laws, regulations, or
                                                                    ments for employees subject to tax from a                 other Organization policies, including this
                                                                    non-U.S. jurisdiction.                                    policy. A finding of retaliation against any
                                                                      (5) Other similar items, activities, or events for      such employee or officer may result in dis-
                                                                    which the Organization may reasonably antici-             ciplinary action up to and including termi-
                                                                    pate incurring expenses or reimbursing an em-             nation. Failure to promptly report known
                                                                    ployee for incurring expenses. (i) Expenditures           violations by others may also be deemed a
                                                                    related to other items not listed in the pre-             violation of the Organization’s code of con-
                                                                    ceding categories are exempt from this pol-               duct.
                                                                    icy in an amount less than $___ per instance,               (3) Employees and officers may ask ques-
                                                                    and together with all expenditures permitted              tions, raise concerns, or report instances of
                                                                    under this policy, may not exceed $___ on an              non-compliance with this policy and/or any
                                                                    annual aggregate basis per individual.                    of the existing underlying relevant policies
                                                                      (ii) For the avoidance of doubt, reasonable             by contacting the following: [COMPLIANCE
                                                                    capital investments in technology, equip-                 HELP LINE OR E–MAIL].
                                                                    ment, and similar items that expand the
                                                                    long-term capability of an ECIP recipient to                                G. Certification
                                                                    provide products and services to its cus-
                                                                                                                                 On an annual basis, the ECIP recipient will
                                                                    tomers and community are not excessive or
                                                                                                                              deliver to the Department of the Treasury a
                                                                    luxury expenditures.
                                                                                                                              certification, executed by two senior execu-
                                                                      (iii) The principal executive officer may es-
                                                                                                                              tive officers (one of which must be either the
                                                                    tablish or delegate to an appropriate execu-
                                                                    tive officer the authority to establish proc-             ECIP recipient’s principal executive officer
                                                                    esses for the evaluation and approval of ex-              or principal financial officer) certifying that
                                                                    penditures in the preceding categories that               (i) the Organization is in compliance with
                                                                    are not luxury or excessive expenditures and              this policy and (ii) the approval of any ex-
                                                                    that are not otherwise exempt from this pol-              penditure requiring the prior approval of any
                                                                    icy. These processes must be reviewed by ex-              senior executive officer, any executive offi-
                                                                    ecutive management no less frequently than                cer of a substantially similar level of respon-
                                                                    annually, as well as any additional threshold             sibility, or the board of directors (or a com-
                                                                    expenditure amounts per item, activity, or                mittee of such board), was properly obtained
                                                                    event, or a threshold expenditure amount per              with respect to each such expenditure.
                                                                    employee receiving the item or participating
                                                                    in the activity or event under this policy.                       PART 50—TERRORISM RISK
                                                                    Such approvals must be reported to the                             INSURANCE PROGRAM
                                                                    board of directors (which may be in an ap-
                                                                    propriate summary form) no less frequently
                                                                    than annually.                                                    Subpart A—General Provisions

                                                                                F. Exceptions or Violations                   Sec.
                                                                                                                              50.1 Authority, purpose, and scope.
                                                                      (1) Any exception or violation of this pol-             50.2 Responsible office.
                                                                    icy must be promptly reported to the Organi-              50.3 Mandatory participation in program.
                                                                    zation’s (i) principal executive officer, (ii) of-        50.4 Definitions.
                                                                    ficer with primary responsibility for the Or-             50.5 Rule of construction for dates.
                                                                    ganization’s compliance function, or (iii) of-            50.6 Special rules for Interim Guidance safe
                                                                    ficer designated with primary responsibility                  harbors.
                                                                    for overseeing the administration, moni-                  50.7 Procedure for requesting determina-
                                                                    toring, and compliance with this policy. Ex-                  tions of controlling influence.
                                                                    ceptions and violations must be reported to               50.8 Procedure for requesting general inter-
                                                                    the board of directors no less frequently than                pretations of statute.
                                                                    annually, or more frequently as the nature
                                                                    and severity of violation may warrant. All                 Subpart B—Disclosures as Conditions for




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                                                                    employees, officers, and directors of the Or-                        Federal Payment
                                                                    ganization must adhere to this policy and
                                                                    will be held accountable for compliance. Any              50.10   General disclosure requirements.

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