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31 CFR part 35 (SLFRF; annual edition 2025)

Summary

Part 35 of title 31 of the Code of Federal Regulations, Pandemic Relief Programs, as printed in the 7–1–25 Edition, with its source given as 86 FR 13455, Mar. 9, 2021. Subpart A covers the Coronavirus State and Local Fiscal Recovery Funds under sections 602 and 603 of the Social Security Act, including recoupment and payments to States. Later subparts cover compensation and capital distributions, small business owner data collection and State residual market insurance entities. An appendix gives a model excessive or luxury expenditures policy. The definitions set premium pay at up to $13 per hour on top of wages for essential work, capped at $25,000 in total for any single eligible worker. A low-income household is one with income at or below 185 percent of the federal poverty guidelines.

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Cite this document

“31 CFR part 35 (SLFRF; annual edition 2025).” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/31-cfr-part-35-slfrf-annual-edition-2025-6900df77cc/, SHA-256 5af8a60719e73fe19adc00521f0da777c7446ad9d1542a93b17c5d29250ca35e.

Full text

                                                                     § 34.805                                                           31 CFR Subtitle A (7–1–25 Edition)

                                                                     funds for an activity that meets the re-                  Subpart C—State Small Business Credit Ini-
                                                                     quirements of the Act.                                       tiative Small Business Owners Demo-
                                                                       (b) If Treasury determines that a                          graphics Data Collection
                                                                     Gulf Coast State, coastal political sub-
                                                                                                                               35.26 Authority, scope, and purpose.
                                                                     division, or coastal zone parish has ma-
                                                                                                                               35.27 Definitions.
                                                                     terially violated a grant agreement                       35.28 Annual report requirements.
                                                                     under the Direct Component, Com-                          35.29 Format.
                                                                     prehensive Plan Component, or Spill                       APPENDIX A TO PART 35—EMERGENCY CAPITAL
                                                                     Impact Component, Treasury will                               INVESTMENT PROGRAM MODEL EXCESSIVE
                                                                     make no additional funds available to                         OR LUXURY EXPENDITURES POLICY
                                                                     that recipient from any part of the
                                                                                                                                 AUTHORITY: 42 U.S.C. 802(f); 42 U.S.C. 803(f);
                                                                     Trust Fund until the recipient corrects                   31 U.S.C. 321; 12 U.S.C. 5701–5710; Division N,
                                                                     the violation.                                            Title V, Subtitle B, Pub. L. 116–260, 134 Stat.
                                                                       (c) As a condition of receiving funds,                  1182 (12 U.S.C. 4703a); Section 104A, Pub. L.
                                                                     recipients and subrecipients shall                        103–325, 108 Stat. 2160, as amended (12 U.S.C.
                                                                     make available their records and per-                     4701 et seq.); Pub. L. 117–2, 135 Stat. 4 (42
                                                                     sonnel to Treasury in order to carry                      U.S.C. 802 et seq.).
                                                                     out the purposes of this section.                           SOURCE: 86 FR 13455, Mar. 9, 2021, unless
                                                                                                                               otherwise noted.
                                                                     § 34.805     Treasury Inspector General.
                                                                       In addition to other authorities                        Subpart A—Coronavirus State and
                                                                     available under the Act, the Office of                       Local Fiscal Recovery Funds
                                                                     the Inspector General of the Depart-
                                                                     ment of the Treasury is authorized to
                                                                                                                                 AUTHORITY: 42 U.S.C. 802(f); 42 U.S.C. 803(f);
                                                                     conduct, supervise, and coordinate au-                    section 102(c) of Division LL of the Consoli-
                                                                     dits and investigations of activities                     dated Appropriations Act, 2023 (Pub. L. 117–
                                                                     funded through grants under the Act.                      328).
                                                                                                                                 SOURCE: 88 FR 65026, Sept. 20, 2023, unless
                                                                          PART 35—PANDEMIC RELIEF                              otherwise noted.
                                                                                 PROGRAMS
                                                                                                                               § 35.1    Purpose.
                                                                      Subpart A—Coronavirus State and Local                      This part implements sections 602
                                                                              Fiscal Recovery Funds                            and 603 of the Social Security Act, as
                                                                     Sec.                                                      added by section 9901 of the American
                                                                     35.1 Purpose.                                             Rescue Plan Act (Subtitle M of Title
                                                                     35.2 Applicability.                                       IX of Pub. L. 117–2) and amended by
                                                                     35.3 Definitions.                                         section 102 of Division LL of the Con-
                                                                     35.4 Reservation of authority, reporting.                 solidated Appropriations Act, 2023
                                                                     35.5 Use of funds.                                        (Pub. L. 117–328).
                                                                     35.6 Eligible uses.
                                                                     35.7 Pensions.                                            § 35.2    Applicability.
                                                                     35.8 Tax.
                                                                     35.9 Compliance with applicable laws.                       This part applies to states, terri-
                                                                     35.10 Recoupment.                                         tories, Tribal governments, metropoli-
                                                                     35.11 Payments to States.                                 tan cities, nonentitlement units of
                                                                     35.12 Distributions to nonentitlement units               local government, counties, and units
                                                                         of local government and units of general              of general local government that ac-
                                                                         local government.                                     cept a payment or transfer of funds
                                                                                                                               made under section 602 or 603 of the So-
                                                                       Subpart B—Compensation and Capital
                                                                                                                               cial Security Act.
                                                                                  Distributions
                                                                     35.20 Purpose, applicability, and general                 § 35.3    Definitions.
                                                                         provisions.                                             Baseline means tax revenue of the re-
                                                                     35.21 Definitions.                                        cipient for its fiscal year ending in
                                                                     35.22 Restrictions on compensation.
                                                                                                                               2019, adjusted for inflation in each re-
                                                                     35.23 Restrictions   on   dividends, share
                                                                         buybacks, and other capital distribu-                 porting year using the Bureau of Eco-
                                                                                                                               nomic     Analysis’s    Implicit   Price




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                                                                         tions.
                                                                     35.24 Annual certification.                               Deflator for the gross domestic product
                                                                     35.25 Exemptive relief.                                   of the United States.

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                                                                     Office of the Secretary of the Treasury                                                             § 35.3

                                                                       Capital expenditures has the same                       ployer to pension funds as part of the
                                                                     meaning given in 2 CFR 200.1.                             employer’s obligations related to pay-
                                                                       County means a county, parish, or                       roll, such as either a pension contribu-
                                                                     other equivalent county division (as                      tion consisting of a normal cost compo-
                                                                     defined by the Census Bureau).                            nent related to current employees or a
                                                                       Covered benefits include, but are not                   component addressing the amortiza-
                                                                     limited to, the costs of all types of                     tion of unfunded liabilities calculated
                                                                     leave (vacation, family-related, sick,                    by reference to the employer’s payroll
                                                                     military, bereavement, sabbatical, jury                   costs.
                                                                     duty), employee insurance (health, life,                    Disaster loss means a loss suffered as
                                                                     dental, vision), retirement (pensions,                    a result of a major disaster or emer-
                                                                     401(k)), unemployment benefit plans                       gency declared under section 401 of the
                                                                     (Federal and State), workers’ com-
                                                                                                                               Robert T. Stafford Disaster Relief and
                                                                     pensation insurance, and Federal In-
                                                                                                                               Emergency Assistance Act (42 U.S.C.
                                                                     surance Contributions Act taxes (which
                                                                                                                               5170).
                                                                     includes Social Security and Medicare
                                                                     taxes).                                                     Eligible employer means an employer
                                                                       Covered change means a change in                        of an eligible worker who performs es-
                                                                     law, regulation, or administrative in-                    sential work.
                                                                     terpretation that reduces any tax (by                       Eligible workers means workers need-
                                                                     providing for a reduction in a rate, a                    ed to maintain continuity of oper-
                                                                     rebate, a deduction, a credit, or other-                  ations of essential critical infrastruc-
                                                                     wise) or delays the imposition of any                     ture sectors, including health care;
                                                                     tax or tax increase. A change in law in-                  emergency response; sanitation, dis-
                                                                     cludes any final legislative or regu-                     infection, and cleaning work; mainte-
                                                                     latory action, a new or changed admin-                    nance work; grocery stores, res-
                                                                     istrative interpretation, and the phase-                  taurants, food production, and food de-
                                                                     in or taking effect of any statute or                     livery; pharmacy; biomedical research;
                                                                     rule if the phase-in or taking effect was                 behavioral health work; medical test-
                                                                     not prescribed prior to the start of the                  ing and diagnostics; home- and commu-
                                                                     covered period.                                           nity-based health care or assistance
                                                                       Covered period means, with respect to                   with activities of daily living; family
                                                                     a state or territory, the period that:                    or childcare; social services work; pub-
                                                                       (1) Begins on March 3, 2021; and                        lic health work; vital services to
                                                                       (2) Ends on the last day of the fiscal                  Tribes; any work performed by an em-
                                                                     year of such State or territory in                        ployee of a State, local, or Tribal gov-
                                                                     which all funds received by the State                     ernment; educational work, school nu-
                                                                     or territory from a payment made                          trition work, and other work required
                                                                     under section 602 or 603 of the Social                    to operate a school facility; laundry
                                                                     Security Act have been expended or re-                    work; elections work; solid waste or
                                                                     turned to, or recovered by, the Sec-
                                                                                                                               hazardous materials management, re-
                                                                     retary.
                                                                                                                               sponse, and cleanup work; work requir-
                                                                       COVID–19 means the Coronavirus
                                                                                                                               ing physical interaction with patients;
                                                                     Disease 2019.
                                                                       COVID–19 public health emergency                        dental care work; transportation and
                                                                     means the period beginning on January                     warehousing; work at hotel and com-
                                                                     27, 2020, and lasting until the termi-                    mercial lodging facilities that are used
                                                                     nation of the national emergency con-                     for COVID–19 mitigation and contain-
                                                                     cerning the COVID–19 outbreak de-                         ment; work in a mortuary; and work in
                                                                     clared pursuant to the National Emer-                     critical clinical research, development,
                                                                     gencies Act (50 U.S.C. 1601 et seq.).                     and testing necessary for COVID–19 re-
                                                                       Delivery sequence means the order in                    sponse.
                                                                     which disaster relief agencies and orga-                    (1) With respect to a recipient that is
                                                                     nizations provide assistance pursuant                     a metropolitan city, nonentitlement
                                                                     to 44 CFR 206.191.                                        unit of local government, or county,
                                                                       Deposit means an extraordinary pay-                     workers in any additional non-public
                                                                     ment of an accrued, unfunded liability.                   sectors as each chief executive officer




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                                                                     The term deposit does not refer to rou-                   of such recipient may designate as crit-
                                                                     tine contributions made by an em-                         ical to protect the health and well-

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                                                                     § 35.3                                                           31 CFR Subtitle A (7–1–25 Edition)

                                                                     being of the residents of their metro-                    enue from Tribal business enterprises
                                                                     politan city, nonentitlement unit of                      must be included in general revenue.
                                                                     local government, or county; or                             Infrastructure Investment and Jobs Act
                                                                       (2) With respect to a State, territory,                 means the Infrastructure Investment
                                                                     or Tribal government, workers in any                      and Jobs Act, Public Law 117–58, 135
                                                                     additional non-public sectors as each                     Stat. 429 (Nov. 15, 2021).
                                                                     Governor of a State or territory, or                        Intergovernmental     transfers  means
                                                                     each Tribal government, may designate                     money received from other govern-
                                                                     as critical to protect the health and                     ments, including grants and shared
                                                                     well-being of the residents of their                      taxes.
                                                                     State, territory, or Tribal government.                     Low-income household means a house-
                                                                       Emergency relief means assistance                       hold with:
                                                                     that is needed to save lives and to pro-                    (1) Income at or below 185 percent of
                                                                     tect property and public health and                       the Federal Poverty Guidelines for the
                                                                     safety, or to lessen or avert the threat                  size of its household based on the pov-
                                                                     of catastrophe.                                           erty guidelines published most re-
                                                                       Essential work means work that:                         cently by the Department of Health
                                                                                                                               and Human Services; or
                                                                       (1) Is not performed while tele-
                                                                                                                                 (2) Income at or below 40 percent of
                                                                     working from a residence; and
                                                                                                                               the Area Median Income for its county
                                                                       (2) Involves:                                           and size of household based on data
                                                                       (i) Regular in-person interactions                      published most recently by the Depart-
                                                                     with patients, the public, or coworkers                   ment of Housing and Urban Develop-
                                                                     of the individual that is performing the                  ment.
                                                                     work; or                                                    Micro-business means a small business
                                                                       (ii) Regular physical handling of                       that has five or fewer employees, one
                                                                     items that were handled by, or are to                     or more of whom owns the small busi-
                                                                     be handled by patients, the public, or                    ness.
                                                                     coworkers of the individual that is per-                    Moderate-income household means a
                                                                     forming the work.                                         household with:
                                                                       Funds means, with respect to a re-                        (1) Income at or below 300 percent of
                                                                     cipient, amounts provided to the re-                      the Federal Poverty Guidelines for the
                                                                     cipient pursuant to a payment made                        size of its household based on poverty
                                                                     under section 602(b) or 603(b) of the So-                 guidelines published most recently by
                                                                     cial Security Act or transferred to the                   the Department of Health and Human
                                                                     recipient pursuant to section 603(c)(4)                   Services; or
                                                                     of the Social Security Act.                                 (2) Income at or below 65 percent of
                                                                       General revenue means money that is                     the Area Median Income for its county
                                                                     received from tax revenue, current                        and size of household based on data
                                                                     charges, and miscellaneous general                        published most recently by the Depart-
                                                                     revenue, excluding refunds and other                      ment of Housing and Urban Develop-
                                                                     correcting transactions and proceeds                      ment.
                                                                     from issuance of debt or the sale of in-                    Metropolitan city has the meaning
                                                                     vestments, agency or private trust                        given that term in section 102(a)(4) of
                                                                     transactions, and intergovernmental                       the Housing and Community Develop-
                                                                     transfers from the Federal Govern-                        ment Act of 1974 (42 U.S.C. 5302(a)(4))
                                                                     ment, including transfers made pursu-                     and includes cities that relinquish or
                                                                     ant to section 9901 of the American                       defer their status as a metropolitan
                                                                     Rescue Plan Act. General revenue also                     city for purposes of receiving alloca-
                                                                     includes revenue from liquor stores                       tions under section 106 of such Act (42
                                                                     that are owned and operated by state                      U.S.C. 5306) for fiscal year 2021.
                                                                     and local governments. General rev-                         Natural disaster means any hurricane,
                                                                     enue does not include revenues from                       tornado, storm, flood, high water,
                                                                     utilities, except recipients may choose                   wind-driven water, tidal wave, tsu-
                                                                     to include revenue from utilities that                    nami, earthquake, volcanic eruption,
                                                                     are part of their own government as                       landslide,     mudslide,       snowstorm,
                                                                     general revenue provided the recipient                    drought, or fire, in each case attrib-




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                                                                     does so consistently over the remain-                     utable to natural causes, that causes or
                                                                     der of the period of performance. Rev-                    may cause substantial damage, injury,

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                                                                     Office of the Secretary of the Treasury                                                             § 35.3

                                                                     or imminent threat to civilian prop-                      ble worker, in addition to wages or re-
                                                                     erty or persons. ‘‘Natural disaster’’                     muneration the eligible worker other-
                                                                     may also include another type of nat-                     wise receives, for all work performed
                                                                     ural catastrophe, attributable to nat-                    by the eligible worker during the
                                                                     ural causes, that causes or may cause                     COVID–19 public health emergency.
                                                                     substantial damage, injury, or immi-                      Such amount may not exceed $25,000 in
                                                                     nent threat to civilian property or per-                  total over the period of performance
                                                                     sons.                                                     with respect to any single eligible
                                                                       Net reduction in total spending is                      worker. Premium pay may be awarded
                                                                     measured as the State or territory’s                      to non-hourly and part-time eligible
                                                                     total spending for a given reporting                      workers performing essential work.
                                                                     year excluding its spending of funds,                     Premium pay will be considered to be
                                                                     subtracted from its total spending for                    in addition to wages or remuneration
                                                                     its fiscal year ending in 2019, adjusted                  the eligible worker otherwise receives
                                                                     for inflation using the Bureau of Eco-                    if, as measured on an hourly rate, the
                                                                     nomic      Analysis’s    Implicit    Price                premium pay is:
                                                                     Deflator for the gross domestic product                      (1) With regard to work that the eli-
                                                                     of the United States for that reporting                   gible worker previously performed, pay
                                                                     year.                                                     and remuneration equal to the sum of
                                                                       Nonentitlement unit of local government                 all wages and remuneration previously
                                                                     means a ‘‘city,’’ as that term is defined                 received plus up to $13 per hour with no
                                                                     in section 102(a)(5) of the Housing and                   reduction, substitution, offset, or other
                                                                     Community Development Act of 1974                         diminishment of the eligible worker’s
                                                                     (42 U.S.C. 5302(a)(5)), that is not a met-                previous, current, or prospective wages
                                                                     ropolitan city.                                           or remuneration; or
                                                                       Nonprofit means a nonprofit organiza-                      (2) With regard to work that the eli-
                                                                     tion that is exempt from Federal in-                      gible worker continues to perform, pay
                                                                     come taxation and that is described in                    of up to $13 per hour that is in addition
                                                                     section 501(c)(3) or 501(c)(19) of the In-                to the eligible worker’s regular rate of
                                                                     ternal Revenue Code.                                      wages or remuneration, with no reduc-
                                                                       Obligation means an order placed for                    tion, substitution, offset, or other di-
                                                                     property and services and entering into                   minishment of the worker’s current
                                                                     contracts, subawards, and similar                         and prospective wages or remunera-
                                                                     transactions that require payment. An                     tion.
                                                                     obligation also means a requirement                          Qualified census tract has the same
                                                                     under federal law or regulation or pro-                   meaning       given    in    26    U.S.C.
                                                                     vision of the award terms and condi-                      42(d)(5)(B)(ii)(I).
                                                                     tions to which a recipient becomes sub-                      Recipient means a State, territory,
                                                                     ject as a result of receiving or expend-                  Tribal government, metropolitan city,
                                                                     ing funds.                                                nonentitlement unit of local govern-
                                                                       Operating expenses means costs nec-                     ment, county, or unit of general local
                                                                     essary to operate and manage a public                     government that receives a payment
                                                                     transportation system, including driv-                    made under section 602(b) or 603(b) of
                                                                     er salaries, fuel, and items having a                     the Social Security Act or transfer
                                                                     useful life of less than one year. Oper-                  pursuant to section 603(c)(4) of the So-
                                                                     ating expenses do not include preven-                     cial Security Act.
                                                                     tive maintenance activities.                                 Reporting year means a single year or
                                                                       Pension fund means a defined benefit                    partial year within the covered period,
                                                                     plan and does not include a defined                       aligned to the current fiscal year of the
                                                                     contribution plan.                                        State or territory during the covered
                                                                       Period of performance means the time                    period.
                                                                     period described in § 35.5 during which a                    Secretary means the Secretary of the
                                                                     recipient may obligate and expend                         Treasury.
                                                                     funds in accordance with sections                            State means each of the 50 States and
                                                                     602(c)(1), 602(c)(5)(E), 603(c)(1), and                   the District of Columbia.
                                                                     603(c)(6)(D) of the Social Security Act                      Small business means a business con-
                                                                     and this subpart.                                         cern or other organization that:




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                                                                       Premium pay means an amount of up                          (1) Has no more than 500 employees
                                                                     to $13 per hour that is paid to an eligi-                 or, if applicable, the size standard in

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                                                                     § 35.3                                                           31 CFR Subtitle A (7–1–25 Edition)

                                                                     number of employees established by                        palachian Development Highway Sys-
                                                                     the Administrator of the Small Busi-                      tem under 40 U.S.C. 14501;
                                                                     ness Administration for the industry in                      (20) A project eligible under 49 U.S.C.
                                                                     which the business concern or organi-                     5307;
                                                                     zation operates, and                                         (21) A project eligible under 49 U.S.C.
                                                                       (2) Is a small business concern as de-                  5309;
                                                                     fined in section 3 of the Small Business                     (22) A project eligible under 49 U.S.C.
                                                                     Act (15 U.S.C. 632).                                      5311;
                                                                       Surface Transportation project means                       (23) A project eligible under 49 U.S.C.
                                                                     any of the following:                                     5337;
                                                                       (1) A project eligible under 23 U.S.C.                     (24) A project eligible under 49 U.S.C.
                                                                     117;                                                      5339;
                                                                       (2) A project eligible under 23 U.S.C.                     (25) A project eligible under 49 U.S.C.
                                                                     119;                                                      6703, as added by the Infrastructure In-
                                                                       (3) A project eligible under 23 U.S.C.                  vestment and Jobs Act;
                                                                     124, as added by the Infrastructure In-                      (26) A project eligible under the
                                                                     vestment and Jobs Act;                                    bridge      replacement,    rehabilitation,
                                                                       (4) A project eligible under 23 U.S.C.                  preservation, protection, and construc-
                                                                     133;                                                      tion program under paragraph (1) under
                                                                       (5) An activity to carry out 23 U.S.C.                  the heading ’HIGHWAY INFRASTRUC-
                                                                     134;                                                      TURE PROGRAM’ under the heading
                                                                       (6) A project eligible under 23 U.S.C.                  ’FEDERAL HIGHWAY ADMINISTRA-
                                                                     148;                                                      TION’ under the heading ’DEPART-
                                                                       (7) A project eligible under 23 U.S.C.                  MENT OF TRANSPORTATION’ under
                                                                     149;                                                      title VIII of division J of the Infra-
                                                                       (8) A project eligible under 23 U.S.C.                  structure Investment and Jobs Act;
                                                                     151(f), as added by the Infrastructure                    and
                                                                     Investment and Jobs Act;                                     (27) A project eligible under 49 U.S.C.
                                                                       (9) A project eligible under 23 U.S.C.                  6701 for the purpose set forth in
                                                                     165;                                                      § 35.6(h)(1)(i)(C).
                                                                       (10) A project eligible under 23 U.S.C.                    Tax revenue means revenue received
                                                                     167;                                                      from a compulsory contribution that is
                                                                       (11) A project eligible under 23 U.S.C.                 exacted by a government for public
                                                                     173, as added by the Infrastructure In-                   purposes excluding refunds and correc-
                                                                     vestment and Jobs Act;                                    tions and, for purposes of § 35.8, inter-
                                                                       (12) A project eligible under 23 U.S.C.                 governmental transfers. Tax revenue
                                                                     175, as added by the Infrastructure In-                   does not include payments for a special
                                                                     vestment and Jobs Act;                                    privilege granted or service rendered,
                                                                       (13) A project eligible under 23 U.S.C.                 employee or employer assessments and
                                                                     176, as added by the Infrastructure In-                   contributions to finance retirement
                                                                     vestment and Jobs Act;                                    and social insurance trust systems, or
                                                                       (14) A project eligible under 23 U.S.C.                 special assessments to pay for capital
                                                                     202;                                                      improvements.
                                                                       (15) A project eligible under 23 U.S.C.                    Territory means the Commonwealth
                                                                     203;                                                      of Puerto Rico, the United States Vir-
                                                                       (16) A project eligible under 23 U.S.C.                 gin Islands, Guam, the Commonwealth
                                                                     204;                                                      of the Northern Mariana Islands, or
                                                                       (17) A project eligible under the pro-                  American Samoa.
                                                                     gram for national infrastructure in-                         Title I eligible schools means schools
                                                                     vestments commonly known as the                           eligible to receive services under sec-
                                                                     ‘‘Rebuilding American Infrastructure                      tion 1113 of Title I, Part A of the Ele-
                                                                     with Sustainability and Equity’’ grant                    mentary and Secondary Education Act
                                                                     program;                                                  of 1965, as amended (20 U.S.C. 6313), in-
                                                                       (18) A project eligible for credit as-                  cluding schools served under section
                                                                     sistance under the Transportation In-                     1113(b)(1)(C) of that Act.
                                                                     frastructure Finance and Innovation                          Title I project means an activity eligi-
                                                                     Act program under 23 U.S.C. chapter 6;                    ble under section 105(a) of the Housing




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                                                                       (19) A project that furthers the com-                   and Community Development Act of
                                                                     pletion of a designated route of the Ap-                  1974 (42 U.S.C. 5305(a)).

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                                                                     Office of the Secretary of the Treasury                                                             § 35.5

                                                                       Tribal enterprise means a business                      propriate. In determining whether an
                                                                     concern:                                                  extension or acceleration is appro-
                                                                       (1) That is wholly owned by one or                      priate, the Secretary will consider the
                                                                     more Tribal governments, or by a cor-                     period of time that would be extended
                                                                     poration that is wholly owned by one                      or accelerated and how the modified
                                                                     or more Tribal governments; or                            timeline would facilitate compliance
                                                                       (2) That is owned in part by one or                     with this subpart.
                                                                     more Tribal governments, or by a cor-                       (c) Reporting and requests for other in-
                                                                     poration that is wholly owned by one                      formation. During the period of per-
                                                                     or more Tribal governments, if all                        formance, recipients shall provide to
                                                                     other owners are either United States                     the Secretary or her delegate, as appli-
                                                                     citizens or small business concerns, as                   cable, periodic reports providing de-
                                                                     these terms are used and consistent                       tailed accounting of the uses of funds,
                                                                     with the definitions in 15 U.S.C.                         modifications to a State or Territory’s
                                                                     657a(b)(2)(D).                                            tax revenue sources, and such other in-
                                                                       Tribal government means the recog-                      formation as the Secretary or her dele-
                                                                     nized governing body of any Indian or                     gate, as applicable, may require for the
                                                                     Alaska Native Tribe, band, nation,
                                                                                                                               administration of this section. In addi-
                                                                     pueblo, village, community, component
                                                                                                                               tion to regular reporting requirements,
                                                                     band, or component reservation, indi-
                                                                                                                               the Secretary may request other addi-
                                                                     vidually identified (including par-
                                                                                                                               tional information as may be necessary
                                                                     enthetically) in the list published on
                                                                                                                               or appropriate, including as may be
                                                                     January 29, 2021, pursuant to section
                                                                                                                               necessary to prevent evasions of the re-
                                                                     104 of the Federally Recognized Indian
                                                                                                                               quirements of this subpart. False state-
                                                                     Tribe List Act of 1994 (25 U.S.C. 5131).
                                                                                                                               ments or claims made to the Secretary
                                                                       Unemployment rate means the U–3 un-
                                                                     employment rate provided by the Bu-                       may result in criminal, civil, or admin-
                                                                     reau of Labor Statistics as part of the                   istrative sanctions, including fines, im-
                                                                     Local Area Unemployment Statistics                        prisonment, civil damages and pen-
                                                                     program, measured as total unemploy-                      alties, debarment from participating in
                                                                     ment as a percentage of the civilian                      Federal awards or contracts, and/or
                                                                     labor force.                                              any other remedy available by law.
                                                                       Unemployment trust fund means an
                                                                                                                               § 35.5   Use of funds.
                                                                     unemployment trust fund established
                                                                     under section 904 of the Social Security                    (a) In general. A recipient may only
                                                                     Act (42 U.S.C. 1104).                                     use funds for the purposes enumerated
                                                                       Unit of general local government has                    in § 35.6 (b) through (f) to cover costs
                                                                     the meaning given to that term in sec-                    incurred during the period beginning
                                                                     tion 102(a)(1) of the Housing and Com-                    March 3, 2021, and ending December 31,
                                                                     munity Development Act of 1974 (42                        2024, subject to the restrictions set
                                                                     U.S.C. 5302(a)(1)).                                       forth in sections 602(c)(2) and 603(c)(2)
                                                                     [88 FR 65026, Sept. 20, 2023, as amended at 88
                                                                                                                               of the Social Security Act, as applica-
                                                                     FR 80589, Nov. 20, 2023]                                  ble. A recipient may only use funds for
                                                                                                                               the purposes enumerated in § 35.6 (g)
                                                                     § 35.4 Reservation of authority, report-                  through (h) to cover costs incurred dur-
                                                                          ing.                                                 ing the period beginning December 29,
                                                                        (a) Reservation of authority. Nothing                  2022, and ending December 31, 2024, sub-
                                                                     in this part shall limit the authority of                 ject to the restrictions set forth in sec-
                                                                     the Secretary to take action to enforce                   tions 602(c)(2), 602(c)(5)(C), 603(c)(2), and
                                                                     conditions or violations of law, includ-                  603(c)(6)(B) of the Social Security Act,
                                                                     ing actions necessary to prevent eva-                     as applicable.
                                                                     sions of this subpart.                                      (b) Costs incurred. A cost shall be con-
                                                                        (b) Extensions or accelerations of tim-                sidered to have been incurred for pur-
                                                                     ing. The Secretary may extend or ac-                      poses of paragraph (a) of this section if
                                                                     celerate any deadline or compliance                       the recipient has incurred an obliga-
                                                                     date of this part, including reporting                    tion with respect to such cost by De-
                                                                     requirements that implement this sub-                     cember 31, 2024.




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                                                                     part, if the Secretary determines that                      (c) Return of funds. A recipient must
                                                                     such extension or acceleration is ap-                     return any funds that have not been

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                                                                     § 35.6                                                           31 CFR Subtitle A (7–1–25 Edition)

                                                                     obligated by December 31, 2024, pursu-                      (i) A program, service, or capital ex-
                                                                     ant to orders placed for property and                     penditure is eligible under this para-
                                                                     services or entry into contracts, sub-                    graph (b)(1) if a recipient identifies a
                                                                     awards, and similar transactions that                     harm or impact to a beneficiary or
                                                                     require payment other than funds in                       class of beneficiaries caused or exacer-
                                                                     the amount reported to Treasury by                        bated by the public health emergency
                                                                     April 30, 2024, as the estimate of funds                  or its negative economic impacts and
                                                                     that the recipient will expend to com-                    the program, service, or capital ex-
                                                                     ply with a requirement under federal                      penditure responds to such harm.
                                                                     law or regulation or provision of the                       (ii) A program, service, or capital ex-
                                                                     award terms and conditions to which a                     penditure responds to a harm or impact
                                                                     recipient becomes subject as a result of                  experienced by an identified bene-
                                                                     receiving or expending funds. A recipi-                   ficiary or class of beneficiaries if it is
                                                                     ent must return funds obligated for a                     reasonably designed to benefit the ben-
                                                                     use identified in § 35.6(b) through (g) by                eficiary or class of beneficiaries that
                                                                     December 31, 2024, but not expended by                    experienced the harm or impact and is
                                                                     December 31, 2026. A recipient must re-                   related and reasonably proportional to
                                                                     turn funds obligated for a use identi-                    the extent and type of harm or impact
                                                                     fied in § 35.6(h) by December 31, 2024,                   experienced.
                                                                     but not expended by September 30, 2026.                     (2) Identified harms: presumptions of
                                                                     A recipient must return funds in the                      impacted and disproportionately impacted
                                                                     amount reported to Treasury by April                      beneficiaries. A recipient may rely on
                                                                     30, 2024, as referenced above, but not                    the following presumptions to identify
                                                                     expended by December 31, 2026, other                      beneficiaries presumptively impacted
                                                                     than administrative expenses nec-                         or disproportionately impacted by the
                                                                     essary to close out the award.                            public health emergency or its nega-
                                                                     [88 FR 65026, Sept. 20, 2023, as amended at 88            tive economic impacts for the purpose
                                                                     FR 80589, Nov. 20, 2023]                                  of providing a response under para-
                                                                                                                               graph (b)(1) or (b)(3) of this section:
                                                                     § 35.6     Eligible uses.                                   (i) Households or populations that ex-
                                                                       (a) In general. Subject to §§ 35.7 and                  perienced unemployment; experienced
                                                                     35.8, a recipient may use funds for one                   increased food or housing insecurity;
                                                                     or more of the purposes described in                      qualify for the Children’s Health Insur-
                                                                     paragraphs (b) through (h) of this sec-                   ance Program (42 U.S.C. 1397aa et seq.),
                                                                     tion.                                                     Childcare Subsidies through the Child
                                                                       (b) Responding to the public health                     Care and Development Fund Program
                                                                     emergency or its negative economic im-                    (42 U.S.C. 9857 et seq. and 42 U.S.C. 618),
                                                                     pacts. A recipient may use funds to re-                   or Medicaid (42 U.S.C. 1396 et seq.); if
                                                                     spond to the public health emergency                      funds are to be used for affordable
                                                                     or its negative economic impacts if the                   housing programs, qualify for the Na-
                                                                     use meets the criteria provided in para-                  tional Housing Trust Fund (12 U.S.C.
                                                                     graph (b)(1) of this section or is enu-                   4568) or the Home Investment Partner-
                                                                     merated in paragraph (b)(3) of this sec-                  ships Program (42 U.S.C. 12721 et seq.);
                                                                     tion; provided that, in the case of a use                 if funds are to be used to address im-
                                                                     of funds for a capital expenditure under                  pacts of lost instructional time for stu-
                                                                     paragraph (b)(1) or (b)(3) of this sec-                   dents in kindergarten through twelfth
                                                                     tion, the use of funds must also meet                     grade, any student who did not have
                                                                     the criteria provided in paragraph                        access to in-person instruction for a
                                                                     (b)(4) of this section. Treasury may                      significant period of time; and low- and
                                                                     also articulate additional eligible pro-                  moderate-income households and popu-
                                                                     grams, services, or capital expendi-                      lations are presumed to be impacted by
                                                                     tures from time to time that satisfy                      the public health emergency or its neg-
                                                                     the eligibility criteria of this para-                    ative economic impacts;
                                                                     graph (b), which shall be eligible under                    (ii) The general public is presumed to
                                                                     this paragraph (b).                                       be impacted by the public health emer-
                                                                       (1) Identifying eligible responses to the               gency for the purposes of providing the




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                                                                     public health emergency or its negative                   uses set forth in paragraphs (b)(3)(i)(A)
                                                                     economic impacts.                                         and (b)(3)(i)(C) of this section; and

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                                                                     Office of the Secretary of the Treasury                                                             § 35.6

                                                                       (iii) The following households, com-                      (A) COVID–19 mitigation and preven-
                                                                     munities, small businesses, and non-                      tion in a manner that is consistent
                                                                     profit organizations are presumed to be                   with recommendations and guidance
                                                                     disproportionately impacted by the                        from the Centers for Disease Control
                                                                     public health emergency or its nega-                      and Prevention, including vaccination
                                                                     tive economic impacts:                                    programs and incentives; testing pro-
                                                                       (A) Households and populations resid-                   grams; contact tracing; isolation and
                                                                     ing in a qualified census tract; house-                   quarantine; mitigation and prevention
                                                                     holds and populations receiving serv-                     practices in congregate settings; acqui-
                                                                     ices provided by Tribal governments;                      sition and distribution of medical
                                                                     households and populations residing in                    equipment for prevention and treat-
                                                                     the territories; households and popu-                     ment of COVID–19, including personal
                                                                     lations receiving services provided by                    protective equipment; COVID–19 pre-
                                                                     territorial governments; low-income                       vention and treatment expenses for
                                                                     households and populations; house-                        public hospitals or health care facili-
                                                                     holds that qualify for Temporary As-                      ties, including temporary medical fa-
                                                                     sistance for Needy Families (42 U.S.C.                    cilities; establishing or enhancing pub-
                                                                     601 et seq.), the Supplemental Nutrition                  lic health data systems; installation
                                                                     Assistance Program (7 U.S.C. 2011 et                      and improvement of ventilation sys-
                                                                     seq.), Free and Reduced Price School                      tems in congregate settings, health fa-
                                                                     Lunch and/or Breakfast programs (42                       cilities, or other public facilities; and
                                                                     U.S.C. 1751 et seq. and 42 U.S.C. 1773),                  assistance to small businesses, non-
                                                                     Medicare Part D Low-income Subsidies                      profits, or impacted industries to im-
                                                                     (42 U.S.C. 1395w-114), Supplemental Se-                   plement mitigation measures;
                                                                     curity Income (42 U.S.C. 1381 et seq.),                     (B) Medical expenses related to test-
                                                                     Head Start (42 U.S.C. 9831 et seq.), Early                ing and treating COVID–19 that are
                                                                     Head Start (42 U.S.C. 9831 et seq.), the                  provided in a manner consistent with
                                                                     Special Supplemental Nutrition Pro-                       recommendations and guidance from
                                                                     gram for Women, Infants, and Children                     the Centers for Disease Control and
                                                                     (42 U.S.C. 1786), Section 8 Vouchers (42                  Prevention, including emergency med-
                                                                     U.S.C. 1437f), the Low-Income Home                        ical response expenses, treatment of
                                                                     Energy Assistance Program (42 U.S.C.                      long-term symptoms or effects of
                                                                     8621 et seq.), Pell Grants (20 U.S.C.                     COVID–19, and costs to medical pro-
                                                                     1070a), and, if SLFRF funds are to be                     viders or to individuals for testing or
                                                                     used for services to address educational                  treating COVID–19;
                                                                     disparities, Title I eligible schools;                      (C) Behavioral health care, including
                                                                       (B) Small businesses operating in a                     prevention, treatment, emergency or
                                                                     qualified census tract, operated by                       first-responder programs, harm reduc-
                                                                     Tribal governments or on Tribal lands,                    tion, supports for long-term recovery,
                                                                     or operating in the territories; and                      and behavioral health facilities and
                                                                       (C) Nonprofit organizations operating                   equipment; and
                                                                     in a qualified census tract, operated by                    (D) Preventing and responding to in-
                                                                     Tribal governments or on Tribal lands,                    creased violence resulting from the
                                                                     or operating in the territories.                          public health emergency, including
                                                                       (3) Enumerated eligible uses: responses                 community violence intervention pro-
                                                                     presumed reasonably proportional. A re-                   grams, or responding to increased gun
                                                                     cipient may use funds to respond to the                   violence resulting from the public
                                                                     public health emergency or its nega-                      health emergency, including payroll
                                                                     tive economic impacts on a beneficiary                    and covered benefits associated with
                                                                     or class of beneficiaries for one or more                 community policing strategies; en-
                                                                     of the following purposes unless such                     forcement efforts to reduce gun vio-
                                                                     use is grossly disproportionate to the                    lence; and investing in technology and
                                                                     harm caused or exacerbated by the                         equipment;
                                                                     public health emergency or its nega-                        (ii) Responding to the negative eco-
                                                                     tive economic impacts:                                    nomic impacts of the public health
                                                                       (i) Responding to the public health                     emergency for purposes including:




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                                                                     impacts of the public health emergency                      (A) Assistance to households and in-
                                                                     for purposes including:                                   dividuals, including:

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                                                                     § 35.6                                                           31 CFR Subtitle A (7–1–25 Edition)

                                                                       (1) Assistance for food; emergency                      Act between January 27, 2020, and May
                                                                     housing needs; burials, home repairs,                     17, 2021; provided that if a recipient re-
                                                                     or weatherization; internet access or                     pays principal on Title XII advances or
                                                                     digital literacy; cash assistance; and                    makes a contribution to an Unemploy-
                                                                     assistance accessing public benefits;                     ment Trust Fund after April 1, 2022,
                                                                       (2) Paid sick, medical, or family                       such recipient shall not reduce average
                                                                     leave programs, or assistance to ex-                      weekly benefit amounts or maximum
                                                                     pand access to health insurance;                          benefit entitlements prior to December
                                                                       (3) Childcare, early learning services,                 31, 2024; and
                                                                     home visiting, or assistance for child                      (ii) Any interest due on such ad-
                                                                     welfare-involved families or foster                       vances received under Title XII of the
                                                                     youth;                                                    Social Security Act (42 U.S.C. 1321);
                                                                       (4) Programs to address the impacts                     and
                                                                     of lost instructional time for students                     (11) A program, service, capital ex-
                                                                     in kindergarten through twelfth grade;                    penditure, or other assistance that is
                                                                       (5) Development, repair, and oper-                      provided to a disproportionately im-
                                                                     ation of affordable housing and services                  pacted household, population, or com-
                                                                     or programs to increase long-term                         munity, including:
                                                                     housing security;                                           (i) Services to address health dispari-
                                                                       (6) Financial services that facilitate                  ties of the disproportionately impacted
                                                                     the delivery of Federal, State, or local                  household, population, or community;
                                                                     benefits for unbanked and underbanked                       (ii) Housing vouchers and relocation
                                                                     individuals;                                              assistance;
                                                                       (7) Benefits for the surviving family
                                                                                                                                 (iii) Investments in communities to
                                                                     members of individuals who have died
                                                                                                                               promote improved health outcomes and
                                                                     from COVID–19, including cash assist-
                                                                                                                               public safety such as parks, recreation
                                                                     ance to surviving spouses or depend-
                                                                                                                               facilities, and programs that increase
                                                                     ents of individuals who died of COVID–
                                                                                                                               access to healthy foods;
                                                                     19;
                                                                       (8) Assistance for individuals who                        (iv) Capital expenditures and other
                                                                     want and are available for work, in-                      services to address vacant or aban-
                                                                     cluding those who are unemployed,                         doned properties;
                                                                     have looked for work sometime in the                        (v) Services to address educational
                                                                     past 12 months, who are employed part                     disparities; and
                                                                     time but who want and are available                         (vi) Facilities and equipment related
                                                                     for full-time work, or who are em-                        to the provision of these services to the
                                                                     ployed but seeking a position with                        disproportionately impacted house-
                                                                     greater opportunities for economic ad-                    hold, population, or community.
                                                                     vancement;                                                  (B) Assistance to small businesses,
                                                                       (9) Facilities and equipment related                    including:
                                                                     to the provision of services to house-                      (1) Programs, services, or capital ex-
                                                                     holds      provided    in     paragraphs                  penditures that respond to the negative
                                                                     (b)(3)(ii)(A)(1) through(8) of this sec-                  economic impacts of the COVID–19 pub-
                                                                     tion;                                                     lic health emergency, including loans
                                                                       (10) The following expenses related to                  or grants to mitigate financial hard-
                                                                     Unemployment Trust Funds:                                 ship such as declines in revenues or im-
                                                                       (i) Contributions to a recipient Un-                    pacts of periods of business closure, or
                                                                     employment Trust Fund and repay-                          providing technical assistance; and
                                                                     ment of principal amounts due on ad-                        (2) A program, service, capital ex-
                                                                     vances received under Title XII of the                    penditure, or other assistance that re-
                                                                     Social Security Act (42 U.S.C. 1321) up                   sponds to disproportionately impacted
                                                                     to an amount equal to (a) the dif-                        small businesses, including rehabilita-
                                                                     ference between the balance in the re-                    tion of commercial properties; store-
                                                                     cipient’s Unemployment Trust Fund as                      front and façade improvements; tech-
                                                                     of January 27, 2020, and the balance of                   nical assistance, business incubators,
                                                                     such account as of May 17, 2021, plus (b)                 and grants for start-ups or expansion
                                                                     the principal amount outstanding as of                    costs for small businesses; and pro-




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                                                                     May 17, 2021, on any advances received                    grams or services to support micro-
                                                                     under Title XII of the Social Security                    businesses;

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                                                                     Office of the Secretary of the Treasury                                                                                                  § 35.6

                                                                       (C) Assistance to nonprofit organiza-                                         alent employees on January 27, 2020,
                                                                     tions including programs, services, or                                          multiplied by 1.075, and the number of
                                                                     capital expenditures, including loans                                           its budgeted full-time equivalent em-
                                                                     or grants to mitigate financial hard-                                           ployees on March 3, 2021, provided that
                                                                     ship such as declines in revenues or in-                                        funds shall only be used for additional
                                                                     creased costs, or technical assistance;                                         budgeted full-time equivalent employ-
                                                                       (D) Assistance to tourism, travel,                                            ees above the recipient’s number of
                                                                     hospitality, and other impacted indus-                                          budgeted full-time equivalent employ-
                                                                     tries for programs, services, or capital                                        ees as of March 3, 2021;
                                                                     expenditures, including support for                                               (3) Costs to improve the design and
                                                                     payroll costs and covered benefits for                                          execution of programs responding to
                                                                     employees, compensating returning                                               the COVID–19 pandemic and to admin-
                                                                     employees, support for operations and                                           ister or improve the efficacy of pro-
                                                                     maintenance of existing equipment and                                           grams addressing the public health
                                                                     facilities, and technical assistance; and                                       emergency or its negative economic
                                                                       (E) Expenses to support public sector                                         impacts; and
                                                                     capacity and workforce, including:
                                                                                                                                                       (4) Costs associated with addressing
                                                                       (1) Payroll and covered benefit ex-
                                                                                                                                                     administrative needs of recipient gov-
                                                                     penses for public safety, public health,
                                                                                                                                                     ernments that were caused or exacer-
                                                                     health care, human services, and simi-
                                                                                                                                                     bated by the pandemic.
                                                                     lar employees to the extent that the
                                                                     employee’s time is spent mitigating or                                            (4) Capital expenditures. A recipient,
                                                                     responding to the COVID–19 public                                               other than a Tribal government, must
                                                                     health emergency;                                                               prepare a written justification for cer-
                                                                       (2) Payroll, covered benefit, and                                             tain capital expenditures according to
                                                                     other costs associated with programs                                            Table 1 of paragraph (b) of this section.
                                                                     or services to support the public sector                                        Such written justification must in-
                                                                     workforce and with the recipient:                                               clude the following elements:
                                                                       (i) Hiring or rehiring staff to fill                                            (i) Describe the harm or need to be
                                                                     budgeted full-time equivalent positions                                         addressed;
                                                                     that existed on January 27, 2020, but                                             (ii) Explain why a capital expendi-
                                                                     that were unfilled or eliminated as of                                          ture is appropriate; and
                                                                     March 3, 2021; or                                                                 (iii) Compare the proposed capital ex-
                                                                       (ii) Increasing the number of its                                             penditure to at least two alternative
                                                                     budgeted full-time equivalent employ-                                           capital expenditures and demonstrate
                                                                     ees by up to the difference between the                                         why the proposed capital expenditure
                                                                     number of its budgeted full-time equiv-                                         is superior.
                                                                                                                             TABLE 1 TO PARAGRAPH (b)
                                                                     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                                         essential work during the COVID–19
                                                                     workers. A recipient may use funds to                                           public health emergency. A recipient
                                                                     provide premium pay to eligible work-                                           uses premium pay or grants provided
                                                                     ers of the recipient who perform essen-                                         under this paragraph (c) to respond to
                                                                     tial work or to provide grants to eligi-                                        eligible workers performing essential
                                                                     ble employers that have eligible work-                                          work during the COVID–19 public
                                                                     ers who perform essential work, pro-                                            health emergency if:
                                                                     vided that any premium pay or grants                                              (1) The eligible worker’s total wages




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                                                                     provided under this paragraph (c) must                                          and remuneration, including the pre-
                                                                     respond to eligible workers performing                                          mium pay, is less than or equal to 150

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                                                                     § 35.6                                                           31 CFR Subtitle A (7–1–25 Edition)

                                                                     percent of the greater of such eligible                   the recipient’s average annual revenue
                                                                     worker’s residing State’s or county’s                     growth over the three full fiscal years
                                                                     average annual wage for all occupa-                       prior to the COVID–19 public health
                                                                     tions as defined by the Bureau of Labor                   emergency;
                                                                     Statistics’ Occupational Employment                         (C) n equals the number of months
                                                                     and Wage Statistics;                                      elapsed from the end of the base year
                                                                       (2) The eligible worker is not exempt                   to the calculation date;
                                                                     from the Fair Labor Standards Act                           (D) Subscript t denotes the specific
                                                                     overtime provisions (29 U.S.C. 207); or                   calculation date; and
                                                                       (3) The recipient has submitted to                        (E) Actual General Revenue is a re-
                                                                     the Secretary a written justification                     cipient’s actual general revenue col-
                                                                     that explains how providing premium                       lected during the 12-month period end-
                                                                     pay to the eligible worker is responsive                  ing on each calculation date identified
                                                                     to the eligible worker performing es-                     in paragraph (d)(2)(i) of this section,
                                                                     sential work during the COVID–19 pub-                     except:
                                                                     lic health emergency (such as a de-                         (1) For purposes of all calculation
                                                                     scription of the eligible workers’ du-                    dates on or after April 1, 2022, in the
                                                                     ties, health, or financial risks faced                    case of any change made after January
                                                                     due to COVID–19, and why the recipient                    6, 2022, to any law, regulation, or ad-
                                                                     determined that the premium pay was                       ministrative interpretation that re-
                                                                     responsive despite the worker’s higher                    duces any tax (by providing for a re-
                                                                     income).                                                  duction in a rate, a rebate, a deduction,
                                                                       (d) Providing government services. A re-                a credit, or otherwise) or delays the
                                                                     cipient may use funds for the provision                   imposition of any tax or tax increase
                                                                     of government services up to an                           and that the recipient assesses has had
                                                                     amount equal to the greater of:                           the effect of decreasing the amount of
                                                                       (1) $10,000,000; or                                     tax revenue collected during the 12-
                                                                       (2) the amount of the reduction in                      month period ending on the calculation
                                                                     the recipient’s general revenue due to                    date relative to the amount of tax rev-
                                                                     the COVID–19 public health emergency,                     enue that would have been collected in
                                                                     which equals the sum of the reduction                     the absence of such change, the recipi-
                                                                     in revenue, calculated as of each date                    ent must add to actual general revenue
                                                                     identified in paragraph (d)(2)(i) of this                 the amount of such decrease in tax rev-
                                                                     section and according to the formula in                   enue;
                                                                     paragraph (d)(2)(ii) of this section:                       (2) For purposes of any calculation
                                                                       (i) A recipient must make a one-time                    date on or after April 1, 2022, in the
                                                                     election to calculate the reduction in                    case of any change made after January
                                                                     its general revenue using information                     6, 2022, to any law, regulation, or ad-
                                                                     as of either:                                             ministrative interpretation that in-
                                                                       (A) December 31, 2020, December 31,                     creases any tax (by providing for an in-
                                                                     2021, December 31, 2022, and December                     crease in a rate, the reduction of a re-
                                                                     31, 2023; or                                              bate, a deduction, or a credit, or other-
                                                                       (B) The last day of each of the recipi-                 wise) or accelerates the imposition of
                                                                     ent’s fiscal years ending in 2020, 2021,                  any tax or tax increase and that the re-
                                                                     2022, and 2023.                                           cipient assesses has had the effect of
                                                                       (ii) A reduction in a recipient’s gen-                  increasing the amount of tax revenue
                                                                     eral revenue for each date identified in                  collected during the 12-month period
                                                                     paragraph (d)(2)(i) equals:                               ending on the calculation date relative
                                                                     Max {[Base Year Revenue* (1 + Growth                      to the amount of tax revenue that
                                                                          Adjustment)∧(nt/12)]¥Actual General                  would have been collected in the ab-
                                                                          Revenue; 0}                                          sence of such change, the recipient
                                                                                                                               must subtract from actual general rev-
                                                                     Where:                                                    enue the amount of such increase in
                                                                       (A) Base Year Revenue is the recipi-                    tax revenue; and
                                                                     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-




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                                                                       (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

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                                                                     Office of the Secretary of the Treasury                                                             § 35.6

                                                                     of each calculation date identified in                    projects. Projects or activities of the
                                                                     paragraph (d)(2)(i) of this section:                      type that meet the eligibility require-
                                                                       (i) In the case of any change made                      ments of section 603(c) of the Federal
                                                                     during such prior period to any law,                      Water Pollution Control Act (33 U.S.C.
                                                                     regulation, or administrative interpre-                   1383(c));
                                                                     tation that reduces any tax (by pro-                        (ii) Additional stormwater projects.
                                                                     viding for a reduction in a rate, a re-                   Projects to manage, reduce, treat, or
                                                                     bate, a deduction, a credit, or other-                    recapture stormwater or subsurface
                                                                     wise) or delays the imposition of any                     drainage water regardless of whether
                                                                     tax or tax increase and that the recipi-                  such projects would improve water
                                                                     ent assesses has had the effect of de-                    quality if such projects would other-
                                                                     creasing the amount of tax revenue                        wise meet the eligibility requirements
                                                                     collected during the 12-month period                      of section 603(c)(5) of the Federal Water
                                                                     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
                                                                     January 6, 2022, and ending on March                      the programs the EPA is authorized to
                                                                     31, 2022, if the recipient makes the elec-                establish under sections 1459A(b)(2),
                                                                     tion in paragraph (d)(3) of this section,                 1459B(b)(1), 1464(d)(2), and 1465 of the
                                                                     the recipient must also make the ad-                      Safe Drinking Water Act (42 U.S.C.
                                                                     justments referenced in paragraph                         300j–19a(b)(2),     300j–19b(b)(1),    300j–
                                                                     (d)(3) of this section with respect to                    24(d)(2), and 300j–25), provided that:
                                                                     any such changes in law, regulation, or                     (A) In the case of lead service line re-
                                                                     administrative interpretation during                      placement projects, the recipient must
                                                                     the period beginning on January 6,                        replace the full length of the service
                                                                     2022, and ending on such calculation                      line and may not replace only a partial
                                                                     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




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                                                                       (1) Water and sewer investments—(i)                     served by lead service line replacement
                                                                     Clean Water State Revolving Fund                          projects in its discretion.

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                                                                     § 35.6                                                           31 CFR Subtitle A (7–1–25 Edition)

                                                                       (v) Drinking water projects to support                     (E) The project is a cost-effective
                                                                     increased population. Projects of the                     means for achieving the desired level of
                                                                     type that meet the eligibility require-                   service.
                                                                     ments of 40 CFR 35.3520 other than the                       (vii) Private wells. Rehabilitation of
                                                                     requirement of 40 CFR 35.3520(b)(1) to                    private wells, testing initiatives to
                                                                     address present or prevent future viola-                  identify contaminants in private wells,
                                                                     tions of health-based drinking water                      and treatment activities and remedi-
                                                                     standards, if the following conditions                    ation projects that address contamina-
                                                                     are met:                                                  tion in private wells, if the project
                                                                       (A) The project is needed to support                    meets the requirements of 40 CFR
                                                                     increased population, with need as-                       35.3520 other than the limitation to cer-
                                                                     sessed as of the time the project is un-                  tain eligible systems under paragraph
                                                                     dertaken;                                                 (a) of 40 CFR 35.3520.
                                                                       (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;
                                                                       (C) The project is a cost-effective                        (A) The broadband infrastructure is
                                                                     means for achieving the desired level of                  designed to provide service to house-
                                                                     service; and                                              holds and businesses with an identified
                                                                       (D) The project is projected to con-                    need, as determined by the recipient,
                                                                     tinue to provide an adequate level of                     for such infrastructure;
                                                                     drinking water over its estimated use-                       (B) The broadband infrastructure is
                                                                     ful life.                                                 designed to, upon completion:
                                                                       (vi) Dams and reservoirs. Rehabilita-                      (1) Reliably meet or exceed symmet-
                                                                     tion of dams and reservoirs if the fol-                   rical 100 Mbps download speed and
                                                                     lowing conditions are met:                                upload speeds; or
                                                                       (A) The project meets the require-                         (2) In cases where it is not prac-
                                                                     ments of 40 CFR 35.3520 other than the                    ticable, because of the excessive cost of
                                                                     following requirements:                                   the project or geography or topography
                                                                       (1) The prohibition on the rehabilita-                  of the area to be served by the project,
                                                                     tion of dams and reservoirs in para-                      to provide service reliably meeting or
                                                                     graphs (e)(1) and (e)(3) of 40 CFR                        exceeding      symmetrical    100   Mbps
                                                                     35.3520; and                                              download speed and upload speeds:
                                                                       (2) The requirement in paragraph                           (i) Reliably meet or exceed 100 Mbps
                                                                     (b)(1) of 40 CFR 35.3520 that the project                 download speed and between at least 20
                                                                     is needed to address present or prevent                   Mbps and 100 Mbps upload speed; and
                                                                     future violations of health-based drink-                     (ii) Be scalable to a minimum of 100
                                                                     ing water standards, provided that if                     Mbps download speed and 100 Mbps
                                                                     the dam or reservoir project does not                     upload speed; and
                                                                     meet this requirement, the project
                                                                                                                                  (C) The service provider for a com-
                                                                     must be needed to support increased
                                                                                                                               pleted broadband infrastructure invest-
                                                                     population, with need assessed as of
                                                                                                                               ment project that provides service to
                                                                     the time the project is undertaken, and
                                                                                                                               households is required, for as long as
                                                                     the project must be projected to con-
                                                                     tinue to provide an adequate level of                     the SLFRF-funded broadband infra-
                                                                     drinking water over its estimated use-                    structure is in use, by the recipient to:
                                                                     ful 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




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                                                                     jected increased need, whether due to                     provided under the ACP through the
                                                                     population growth or otherwise; and                       lifetime of the ACP.

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                                                                     Office of the Secretary of the Treasury                                                             § 35.6

                                                                       (ii) Cybersecurity infrastructure invest-               future occurrence of a natural disaster
                                                                     ments. Cybersecurity infrastructure in-                   in the recipient’s jurisdiction; and
                                                                     vestments that are designed to improve                      (ii) Provides emergency relief that
                                                                     the reliability and resiliency of new                     responds to and is related and reason-
                                                                     and existing broadband infrastructure.                    ably proportional to:
                                                                     Such investments may include the ad-                        (A) the physical or negative eco-
                                                                     dition or modernization of network se-                    nomic impacts of the natural disaster
                                                                     curity hardware and software tools de-                    identified in paragraph (g)(1)(i)(A) of
                                                                     signed to strengthen cybersecurity for                    this section, or
                                                                     the end-users of these networks.                            (B) the potential physical or negative
                                                                       (f) Meeting the non-Federal matching                    economic impacts of the natural dis-
                                                                     requirements for Bureau of Reclamation                    aster identified in paragraph (g)(1)(i)(B)
                                                                     projects. A recipient may use funds to                    of this section.
                                                                     meet the non-Federal matching re-                           (2) Enumerated eligible uses. A recipi-
                                                                     quirements of any authorized Bureau                       ent may use funds to provide emer-
                                                                     of Reclamation project.                                   gency relief from
                                                                       (g) Natural Disaster Emergency Relief.                    (i) the physical or negative economic
                                                                     Subject to paragraph (g)(3) of this sec-                  impacts of natural disasters identified
                                                                     tion, a recipient may use funds to pro-                   under paragraph (g)(1)(i)(A) of this sec-
                                                                     vide emergency relief from the phys-                      tion by engaging in one of the fol-
                                                                     ical impacts or negative economic im-                     lowing activities, provided that the
                                                                     pacts of a natural disaster, including                    emergency relief is related and reason-
                                                                     the forms of emergency relief identi-                     ably proportional to the physical or
                                                                     fied in paragraph (g)(2) of this section,                 negative economic impacts of the nat-
                                                                     if the use meets the criteria provided                    ural disaster identified:
                                                                     in paragraph (g)(1) of this section.                        (A) Temporary emergency housing,
                                                                       (1) Identifying emergency relief from the               food assistance, and financial assist-
                                                                     physical or negative economic impacts of                  ance for lost wages;
                                                                     a natural disaster. A recipient provides                    (B) Emergency protective measures,
                                                                     emergency relief from the physical im-                    including assistance for emergency ac-
                                                                     pacts or negative economic impacts of                     cess, medical care and transport, emer-
                                                                     a natural disaster when the recipient:                    gency operations center related costs,
                                                                       (i) Identifies either:                                  and other activities traditionally un-
                                                                       (A) a natural disaster that has oc-                     dertaken as part of emergency re-
                                                                     curred or is expected to occur immi-                      sponse;
                                                                     nently and that has been the subject of                     (C) Debris removal activities, includ-
                                                                     an emergency declaration or designa-                      ing the clearance, removal, and dis-
                                                                     tion applicable to the recipient’s geog-                  posal of vegetative debris, construction
                                                                     raphy and jurisdiction in the form of:                    and demolition debris, sand, mud, silt,
                                                                       (1) an emergency declaration pursu-                     gravel, rocks, boulders, white goods,
                                                                     ant to the Stafford Act;                                  and vehicle and vessel wreckage;
                                                                       (2) an emergency declaration by the                       (D) Restoration of public infrastruc-
                                                                     Governor of a state pursuant to state                     ture damaged by a natural disaster, in-
                                                                     law;                                                      cluding roads, bridges, and utilities;
                                                                       (3) an emergency declaration made                         (E) Increased operational costs, in-
                                                                     by a Tribal government; or                                cluding payroll costs and costs for gov-
                                                                       (4) a designation as a natural disaster                 ernment facilities and government
                                                                     by the chief executive (or equivalent)                    services;
                                                                     of the recipient, provided that the chief                   (F) Cash assistance for uninsured or
                                                                     executive (or equivalent) documents                       underinsured expenses, and cash assist-
                                                                     that the event meets the definition of                    ance serving low-income households; or
                                                                     natural disaster; or                                        (G) Home repairs for uninhabitable
                                                                       (B) a natural disaster that is threat-                  primary residences; or
                                                                     ened to occur in the future, provided                       (ii) the potential physical or negative
                                                                     that the recipient documents evidence                     economic impacts of natural disasters
                                                                     of historical patterns or predictions of                  identified under paragraph (g)(1)(i)(B)




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                                                                     natural disasters that would reason-                      of this section by using funds for miti-
                                                                     ably demonstrate the likelihood of the                    gation activities, provided that the

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                                                                     § 35.6                                                           31 CFR Subtitle A (7–1–25 Edition)

                                                                     emergency relief is related and reason-                   received for the same disaster losses
                                                                     ably proportional to the potential                        prior to receiving assistance under this
                                                                     physical or negative economic impacts                     paragraph (g).
                                                                     of the natural disaster identified, and                     (C) Funds shall be used last in the de-
                                                                     provided further that if funds are used                   livery sequence unless the recipient, in
                                                                     for capital expenditures under this                       consultation with the appropriate Re-
                                                                     paragraph, a recipient, other than a                      gional Administrator of the Federal
                                                                     Tribal government, must prepare a                         Emergency Management Agency or
                                                                     written justification for activities                      state      disaster-assistance   adminis-
                                                                     under this paragraph (g)(2)(ii) with                      trator, determines that another se-
                                                                     total capital expenditures of $1 million                  quence is appropriate.
                                                                     or greater. Such written justification                      (h) Certain infrastructure projects. A
                                                                     must include the following elements:                      recipient may use funds for Surface
                                                                       (A) Describe the emergency relief                       Transportation projects as set forth in
                                                                     provided by the mitigation activity                       paragraph (h)(1) of this section and for
                                                                     and why it is needed to lessen or avert                   Title I projects as set forth in para-
                                                                     the potential impacts of the natural                      graph (h)(2) of this section, subject to
                                                                     disaster that is threatened to occur in                   the requirements set forth in para-
                                                                     the future;                                               graph (h)(3) of this section.
                                                                       (B) Explain why the capital expendi-                      (1) Surface Transportation projects. A
                                                                     ture is appropriate to address the need                   recipient may use funds for Surface
                                                                     for emergency relief; and                                 Transportation projects in the manner
                                                                       (C) Compare the proposed capital ex-                    set forth in paragraph (h)(1)(i) of this
                                                                     penditure to at least two alternative                     section, subject to the requirements
                                                                     capital expenditures and demonstrate                      and limitations set forth in paragraph
                                                                     why the proposed capital expenditure                      (h)(1)(ii) of this section.
                                                                     is superior.                                                (i)(A) A recipient may use funds to
                                                                       (3) Duplication of benefits. (A) A re-                  expand the scope of, to cover additional
                                                                     cipient may not provide financial as-                     costs associated with, or to otherwise
                                                                     sistance under this paragraph (g) to a                    supplement funding for a project re-
                                                                     person, business concern, or other enti-                  ceiving funding from the Department
                                                                     ty with respect to disaster losses for                    of Transportation at the time that the
                                                                     which such beneficiary will receive fi-                   funds are obligated and expended for
                                                                     nancial assistance under any other pro-                   the project.
                                                                     gram or from insurance or any other                         (B) A recipient may use funds for a
                                                                     source.                                                   Surface Transportation project that is
                                                                       (B) A recipient may provide assist-                     not funded by the Department of
                                                                     ance with respect to disaster losses to                   Transportation at the time the funds
                                                                     a person, business concern, or other en-                  are obligated and expended.
                                                                     tity that is or may be entitled to re-                      (C) A recipient may use funds to sat-
                                                                     ceive assistance for those losses from                    isfy non-Federal share requirements
                                                                     another source, if such person, business                  for a project eligible under the provi-
                                                                     concern, or other entity has not re-                      sions identified in paragraphs (1), (18),
                                                                     ceived the other benefits by the time of                  (21), and (27) of the definition of ‘‘Sur-
                                                                     application for assistance and the per-                   face Transportation project’’ in § 35.3 or
                                                                     son, business concern, or other entity                    to repay a loan provided under the
                                                                     agrees to repay any duplicative assist-                   Transportation Infrastructure Finance
                                                                     ance to the recipient. A recipient pro-                   and Innovation Act program under 23
                                                                     viding assistance with respect to dis-                    U.S.C. chapter 6.
                                                                     aster losses shall coordinate with the                      (ii) The following limitations and re-
                                                                     relevant Regional Administrator of the                    quirements apply to funds used for Sur-
                                                                     Federal Emergency Management Agen-                        face Transportation projects under
                                                                     cy and state disaster-assistance admin-                   paragraphs (h)(1)(i)(A) and (h)(1)(i)(B)
                                                                     istrator. Recipients shall notify sub-                    of this section.
                                                                     recipients and contractors that, when                       (A) Funds used for Surface Transpor-
                                                                     providing assistance with respect to                      tation projects eligible under the pro-
                                                                     disaster losses, those entities are re-                   visions set forth in paragraphs (20)




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                                                                     sponsible for ensuring that bene-                         through (24) of the definition of ‘‘Sur-
                                                                     ficiaries disclose any other assistance                   face Transportation projects’’ in § 35.3

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                                                                     Office of the Secretary of the Treasury                                                             § 35.6

                                                                     shall not be used for operating ex-                       provement program or transportation
                                                                     penses of such a project.                                 improvement program shall not apply
                                                                       (B) Except as otherwise determined                      to Surface Transportation projects un-
                                                                     by the Secretary or the head of the                       dertaken      pursuant     to   paragraph
                                                                     Federal agency to which the Secretary                     (h)(1)(i)(B) of this section except in cir-
                                                                     has delegated authority, the require-                     cumstances when the project is region-
                                                                     ments of titles 23, 40, and 49 of the U.S.                ally significant and requires action by
                                                                     Code, and the associated implementing                     an office of the Department of Trans-
                                                                     regulations, apply to Surface Transpor-                   portation pursuant to 23 CFR 450.218.
                                                                     tation projects, including but not lim-                     (C) Except as otherwise determined
                                                                     ited to the following:                                    by the Secretary or the head of the
                                                                       (1) Project eligibility requirements;                   Federal agency to which the Secretary
                                                                       (2) Project approval requirements,                      has delegated authority, the require-
                                                                     provided that such requirements shall                     ments of the National Environmental
                                                                     not apply to Surface Transportation                       Policy Act of 1969 (42 U.S.C. 4321 et
                                                                     projects undertaken pursuant to para-                     seq.), and the associated implementing
                                                                     graph (h)(1)(i)(B) of this section that                   regulations, apply to Surface Transpor-
                                                                     meet the following criteria:                              tation projects.
                                                                       (i) The project qualifies as an ‘‘eligi-                  (D) When a State uses funds for a
                                                                     ble project’’ under the program de-                       Surface Transportation project eligible
                                                                     scribed in paragraph (17) of the defini-                  under title 23 of the U.S. Code or that
                                                                     tion of Surface Transportation project                    otherwise would be subject to the re-
                                                                     set forth in § 35.3;                                      quirements of title 23, the project must
                                                                       (ii) The recipient does not use more                    either:
                                                                     than $10 million in funds for the                           (1) Demonstrate progress in achiev-
                                                                     project; and                                              ing a state of good repair as required
                                                                       (iii) The entire project scope, includ-                 by the State’s asset management plan
                                                                     ing for avoidance of doubt any portion                    under 23 U.S.C. 119(e), or
                                                                     of the project funded through other                         (2) Support the achievement of one or
                                                                     sources, is limited to the actions or ac-                 more performance targets of the State
                                                                     tivities listed under 23 CFR 771.116(c)(1)                established under 23 U.S.C. 150.
                                                                     through(22),      23   CFR     771.117(c)(1)                (2) Title I projects. A recipient may
                                                                     through(30), and 23 CFR 771.118(c)(1)                     use funds for Title I projects, subject to
                                                                     through(16), provided that the actions                    the following limitations and require-
                                                                     or activities do not involve unusual                      ments:
                                                                     circumstances, as described in 23 CFR                       (i) Except as otherwise determined by
                                                                     771.116(b), 23 CFR 771.117(b), and 23 CFR                 the Secretary or the head of the Fed-
                                                                     771.118(b).                                               eral agency to which the Secretary has
                                                                       (3) Wage and employee protection re-                    delegated authority, the requirements
                                                                     quirements, including the require-                        of Title I of the Housing and Commu-
                                                                     ments set forth at 23 U.S.C. 113 and 49                   nity Development Act of 1974 (42 U.S.C.
                                                                     U.S.C. 5333(a) and (b);                                   5301 et seq.), and the associated imple-
                                                                       (4) Domestic preference procurement                     menting regulations, apply to Title I
                                                                     requirements, including the require-                      projects, including:
                                                                     ments set forth at 23 U.S.C. 313, 49                        (A) At least 70 percent of funds used
                                                                     U.S.C. 5323(j), 49 CFR part 661, and 23                   for such projects, in the aggregate,
                                                                     CFR 635.410, provided that such re-                       must be used for projects that prin-
                                                                     quirements shall not apply to Surface                     cipally benefit low- and moderate-in-
                                                                     Transportation projects undertaken                        come persons, in accordance with the
                                                                     pursuant to paragraph (h)(1)(i)(B) of                     definitions and requirements set forth
                                                                     this section that meet the criteria set                   at 24 CFR 570.3, 24 CFR 570.200(a)(3),
                                                                     forth in paragraph (h)(1)(ii)(B)(2)(i)                    and 24 CFR 570.208(a) for recipients
                                                                     through (iii) of this section;                            that are not Tribal governments, and
                                                                       (5) Project design, planning, con-                      at 24 CFR 1003.4 and 1003.208 for Tribal
                                                                     struction, operation, maintenance, ve-                    government recipients; provided, how-
                                                                     hicle weight limit, and toll require-                     ever, that Tribal governments may
                                                                     ments, provided that the requirement                      demonstrate that beneficiaries of Title




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                                                                     to include Surface Transportation                         I assistance are ‘‘low and moderate in-
                                                                     projects in a state transportation im-                    come beneficiaries,’’ as defined at 24

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                                                                     § 35.7                                                           31 CFR Subtitle A (7–1–25 Edition)

                                                                     CFR 1003.4, based on an attestation by                    funds made under section 602 or 603 of
                                                                     the Tribal government that these bene-                    the Social Security Act.
                                                                     ficiaries are receiving or are eligible to                  (ii) Funds used for the projects set
                                                                     receive services administered by the                      forth in paragraph (h) of this section
                                                                     Tribal government on the basis of an                      must supplement, and not supplant,
                                                                     individual’s income.                                      other Federal, State, territorial, Trib-
                                                                       (B) In the case of recipients that are                  al, and local government funds (as ap-
                                                                     not Tribal governments, funds used for                    plicable) that
                                                                     projects must satisfy at least one of                       (A) in the case of non-Federal funds,
                                                                     the national objectives as set forth in                   have been obligated for activities or
                                                                     24 CFR 570.208.                                           projects that are eligible as part of any
                                                                       (C) Not more than 15 percent of funds                   Surface Transportation project or Title
                                                                     used for such projects, in the aggre-                     I project, as applicable, or
                                                                     gate, may be used for public services                       (B) in the case of Federal funds, a
                                                                     activities and projects eligible under 42                 Federal agency has committed to a
                                                                     U.S.C. 5305(a)(8).                                        particular project pursuant to an
                                                                                                                               award agreement or otherwise.
                                                                       (D) Not more than 20 percent of funds
                                                                     used for such projects, in the aggre-                     § 35.7 Pensions.
                                                                     gate, may be used for planning and ad-
                                                                     ministrative costs, as described at 24                       A recipient (other than a Tribal gov-
                                                                                                                               ernment) may not use funds for deposit
                                                                     CFR 570.200(g), 570.205, and 570.206 with
                                                                                                                               into any pension fund.
                                                                     respect to recipients that are not Trib-
                                                                     al governments, and as described at 24                    § 35.8 Tax.
                                                                     CFR 1003.205 and 1003.206 with respect
                                                                     to recipients that are Tribal govern-                        (a) Restriction. A State or Territory
                                                                     ments.                                                    shall not use funds to either directly or
                                                                                                                               indirectly offset a reduction in the net
                                                                       (E) In the case of recipients that are
                                                                                                                               tax revenue of the State or Territory
                                                                     not Tribal governments, funds used for
                                                                                                                               resulting from a covered change during
                                                                     such projects must satisfy the require-
                                                                                                                               the covered period.
                                                                     ments set forth at 42 U.S.C. 5310 and 24                     (b) Violation. Treasury will consider a
                                                                     CFR 570.603.                                              State or Territory to have used funds
                                                                       (F) Prior to commencing a Title I                       to offset a reduction in net tax revenue
                                                                     project, a recipient must comply with                     if, during a reporting year:
                                                                     the environmental protection measures                        (1) Covered change. The State or Ter-
                                                                     set forth at 42 U.S.C. 5304(g) and the                    ritory has made a covered change that,
                                                                     implementing regulations set forth at                     either based on a reasonable statistical
                                                                     24 CFR 570.604, 24 CFR 1003.605, and 24                   methodology to isolate the impact of
                                                                     CFR part 58, provided that the certifi-                   the covered change in actual revenue
                                                                     cation contemplated by 42 U.S.C.                          or based on projections that use rea-
                                                                     5304(g) shall be submitted to the Sec-                    sonable assumptions and do not incor-
                                                                     retary and not the Secretary of the De-                   porate the effects of macroeconomic
                                                                     partment of Housing and Urban Devel-                      growth to reduce or increase the pro-
                                                                     opment.                                                   jected impact of the covered change,
                                                                       (ii) To the extent a Title I project re-                the State or Territory assesses has had
                                                                     lates to broadband infrastructure, the                    or predicts to have the effect of reduc-
                                                                     requirements of section 60102 of the In-                  ing tax revenue relative to current law;
                                                                     frastructure Investment and Jobs Act                         (2) Exceeds the de minimis threshold.
                                                                     shall apply.                                              The aggregate amount of the measured
                                                                       (3) Requirements applicable to Surface                  or predicted reductions in tax revenue
                                                                     Transportation projects and Title I                       caused by covered changes identified
                                                                     projects. (i) The total amount of funds                   under paragraph (b)(1) of this section,
                                                                     that a recipient may use for costs in-                    in the aggregate, exceeds 1 percent of
                                                                     curred for projects set forth in para-                    the State’s or Territory’s baseline;
                                                                     graphs (h)(1) and (h)(2) of this section,                    (3) Reduction in net tax revenue. The
                                                                     taken together, shall not exceed the                      State or Territory reports a reduction
                                                                     greater of $10,000,000 and 30 percent of                  in net tax revenue, measured as the dif-




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                                                                     the recipient’s total award received                      ference between actual tax revenue and
                                                                     pursuant to payment or transfer of                        the State’s or Territory’s baseline,

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                                                                     Office of the Secretary of the Treasury                                                             § 35.10

                                                                     each measured as of the end of the re-                    ulations, and executive orders, and a
                                                                     porting year; and                                         recipient shall provide for compliance
                                                                       (4) Consideration of other changes. The                 with the American Rescue Plan Act,
                                                                     aggregate amount of measured or pre-                      this subpart, and any interpretive guid-
                                                                     dicted reductions in tax revenue caused                   ance by other parties in any agree-
                                                                     by covered changes is greater than the                    ments it enters into with other parties
                                                                     sum of the following, in each case, as                    relating to these funds.
                                                                     calculated for the reporting year:
                                                                       (i) The aggregate amount of the ex-                     § 35.10     Recoupment.
                                                                     pected increases in tax revenue caused                       (a) Identification of violations—(1) In
                                                                     by one or more covered changes that,                      general. Any amount used in violation
                                                                     either based on a reasonable statistical                  of § 35.5, § 35.6, or § 35.7 may be identi-
                                                                     methodology to isolate the impact of                      fied at any time prior to December 31,
                                                                     the covered change in actual revenue                      2026.
                                                                     or based on projections that use rea-                        (2) Annual reporting of amounts of vio-
                                                                     sonable assumptions and do not incor-                     lations. On an annual basis, a recipient
                                                                     porate the effects of macroeconomic                       that is a State or territory must cal-
                                                                     growth to reduce or increase the pro-                     culate and report any amounts used in
                                                                     jected impact of the covered change,                      violation of § 35.8.
                                                                     the State or Territory assesses has had
                                                                                                                                  (b) Calculation of amounts subject to
                                                                     or predicts to have the effect of in-
                                                                                                                               recoupment—(1) In general. Except as
                                                                     creasing tax revenue; and
                                                                                                                               provided in paragraph (b)(2) of this sec-
                                                                       (ii) Reductions in spending, up to the
                                                                                                                               tion, the Secretary will calculate any
                                                                     amount of the State’s or Territory’s
                                                                                                                               amounts subject to recoupment result-
                                                                     net reduction in total spending, that
                                                                                                                               ing from a violation of § 35.5, § 35.6 or
                                                                     are in:
                                                                                                                               § 35.7 as the amounts used in violation
                                                                       (A) Departments, agencies, or au-
                                                                                                                               of such restrictions.
                                                                     thorities in which the State or Terri-
                                                                                                                                  (2) Violations of § 35.8. The Secretary
                                                                     tory is not using funds; and
                                                                                                                               will calculate any amounts subject to
                                                                       (B) Departments, agencies, or au-
                                                                                                                               recoupment resulting from a violation
                                                                     thorities in which the State or Terri-
                                                                                                                               of § 35.8, equal to the lesser of:
                                                                     tory is using funds, in an amount equal
                                                                     to the value of the spending cuts in                         (i) The amount set forth in § 35.8(c);
                                                                     those departments, agencies, or au-                       and,
                                                                     thorities, minus funds used.                                 (ii) The amount of funds received by
                                                                       (c) Amount and revenue reduction cap.                   such recipient.
                                                                     If a State or Territory is considered to                     (c) Initial notice. If the Secretary cal-
                                                                     be in violation pursuant to paragraph                     culates      an     amount     subject   to
                                                                     (b) of this section, the amount used in                   recoupment under paragraph (b) of this
                                                                     violation of paragraph (a) of this sec-                   section, Treasury will provide the re-
                                                                     tion is equal to the lesser of:                           cipient an initial written notice of the
                                                                       (1) The reduction in net tax revenue                    amount subject to recoupment along
                                                                     of the State or Territory for the re-                     with an explanation of such amounts.
                                                                     porting year, measured as the dif-                           (d) Request for reconsideration. Unless
                                                                     ference between the State’s or Terri-                     the Secretary extends or accelerates
                                                                     tory’s baseline and its actual tax rev-                   the time period, within 60 calendar
                                                                     enue, each measured as of the end of                      days of receipt of an initial notice of
                                                                     the reporting year; and,                                  recoupment provided under paragraph
                                                                       (2) The aggregate amount of the re-                     (c) of this section, a recipient may sub-
                                                                     ductions in tax revenues caused by cov-                   mit a written request to the Secretary
                                                                     ered changes identified in paragraph                      requesting reconsideration of any
                                                                     (b)(1) of this section, minus the sum of                  amounts subject to recoupment under
                                                                     the amounts in identified in para-                        paragraph (b) of this section. To re-
                                                                     graphs (b)(4)(i) and (ii) of this section.                quest reconsideration of any amounts
                                                                                                                               subject to recoupment, a recipient
                                                                     § 35.9 Compliance    with   applicable                    must submit to the Secretary a written
                                                                          laws.                                                request that includes:




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                                                                        A recipient must comply with all                          (1) An explanation of why the recipi-
                                                                     other applicable Federal statutes, reg-                   ent believes all or some of the amount

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                                                                     § 35.11                                                          31 CFR Subtitle A (7–1–25 Edition)

                                                                     should not be subject to recoupment;                      ployment rate as of the date that it
                                                                     and                                                       submits an initial certification for pay-
                                                                       (2) A discussion of supporting rea-                     ment of funds pursuant to section
                                                                     sons, along with any additional infor-                    602(d)(1) of the Social Security Act that
                                                                     mation.                                                   is less than two percentage points
                                                                       (e) Final amount subject to recoupment.                 above its unemployment rate in Feb-
                                                                     Unless the Secretary extends or accel-                    ruary 2020, the Secretary will withhold
                                                                     erates the time period, within 60 cal-                    50 percent of the amount of funds allo-
                                                                     endar days of receipt of the recipient’s                  cated under section 602(b) of the Social
                                                                     request for reconsideration provided                      Security Act to such State or territory
                                                                     pursuant to paragraph (d) of this sec-                    until at least May 10, 2022 and not more
                                                                     tion or the expiration of the period for                  than twelve months from the date such
                                                                     requesting reconsideration provided                       initial certification is provided to the
                                                                     under paragraph (d) of this section, the                  Secretary.
                                                                     recipient will be notified of the Sec-                      (b) Payment of withheld amount. In
                                                                     retary’s decision to affirm, withdraw,                    order to receive the amount withheld
                                                                     or modify the notice of recoupment.                       under paragraph (a) of this section, the
                                                                     Such notification will include an expla-                  State or Territory must submit to the
                                                                     nation of the decision, including re-                     Secretary the following information:
                                                                     sponses to the recipient’s supporting                       (1) A certification, in the form pro-
                                                                     reasons and consideration of additional                   vided by the Secretary, that such State
                                                                     information provided. A recipient must                    or Territory requires the payment to
                                                                     invoke and exhaust the procedures                         carry out the activities specified in
                                                                     available under this subpart prior to                     section 602(c) of the Social Security
                                                                     seeking judicial review of a decision                     Act and will use the payment in com-
                                                                     under § 35.10.                                            pliance with section 602(c) of the Social
                                                                       (f) Repayment of funds. Unless the                      Security Act; and
                                                                     Secretary extends or accelerates the                        (2) Any reports required to be filed by
                                                                     time period, a recipient shall repay to                   that date pursuant to this part that
                                                                     the Secretary any amounts subject to                      have not yet been filed.
                                                                     recoupment in accordance with in-
                                                                     structions provided by the Secretary:                     § 35.12 Distributions to nonentitlement
                                                                       (1) Within 120 calendar days of re-                          units of local government and units
                                                                     ceipt of the notice of recoupment pro-                         of general local government.
                                                                     vided under paragraph (c) of this sec-                      (a) Nonentitlement units of local gov-
                                                                     tion, in the case of a recipient that                     ernment. Each State or Territory that
                                                                     does not submit a request for reconsid-                   receives a payment from the Secretary
                                                                     eration in accordance with the require-                   pursuant to section 603(b)(2)(B) of the
                                                                     ments of paragraph (d) of this section;                   Social Security Act shall distribute the
                                                                     or                                                        amount of the payment to nonentitle-
                                                                       (2) Within 120 calendar days of re-                     ment units of local government in such
                                                                     ceipt of the Secretary’s decision under                   State or Territory in accordance with
                                                                     paragraph (e) of this section, in the                     the requirements set forth in section
                                                                     case of a recipient that submits a re-                    603(b)(2)(C) of the Social Security Act
                                                                     quest for reconsideration in accordance                   and without offsetting any debt owed
                                                                     with the requirements of paragraph (d)                    by such nonentitlement units of local
                                                                     of this section.                                          governments against such payments.
                                                                       (g) Other remedial actions. Prior to                      (b) Budget cap. A State or Territory
                                                                     seeking recoupment or taking other                        may not make a payment to a non-
                                                                     appropriate action pursuant to para-                      entitlement unit of local government
                                                                     graphs (c), (d), (e), or (f) of this section,             pursuant to section 603(b)(2)(C) of the
                                                                     the Secretary may notify the recipient                    Social Security Act and paragraph (a)
                                                                     of potential violations and provide the                   of this section in excess of the amount
                                                                     recipient an opportunity for informal                     equal to 75 percent of the most recent
                                                                     consultation and remediation.                             budget for the nonentitlement unit of
                                                                                                                               local government as of January 27,
                                                                     § 35.11 Payments to States.                               2020. For purposes of this section 35.12,




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                                                                        (a) In general. With respect to any                    a nonentitlement unit of local govern-
                                                                     State or Territory that has an unem-                      ment’s most recent budget shall mean

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                                                                     Office of the Secretary of the Treasury                                                             § 35.21

                                                                     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-
                                                                     certification for purposes of complying                   ments of this subpart during the ECIP
                                                                     with this section 35.12.                                  period.
                                                                       (c) Units of general local government.                    (c) Limitation of authority. Nothing in
                                                                     Each State or Territory that receives a                   this subpart shall be interpreted to
                                                                     payment from the Secretary pursuant                       limit the authority of the appropriate
                                                                     to section 603(b)(3)(B)(ii) of the Social                 Federal banking agency to take action
                                                                     Security Act, in the case of an amount                    under other provisions of law, includ-
                                                                     to be paid to a county that is not a                      ing action to address unsafe or unsound
                                                                     unit of general local government, shall                   practices or conditions, deficient cap-
                                                                     distribute the amount of the payment                      ital levels, or violations of law or regu-
                                                                     to units of general local government                      lation, under section 8 of the Federal
                                                                     within such county in accordance with                     Deposit Insurance Act, section 8 of the
                                                                     the requirements set forth in section                     Bank Holding Company Act, or section
                                                                     603(b)(3)(B)(ii) of the Social Security                   10 of the Home Owners’ Loan Act, or
                                                                     Act and without offsetting any debt                       the Federal Credit Union Act, as may
                                                                     owed by such units of general local                       be applicable.
                                                                     government against such payments.
                                                                       (d) Additional conditions. A State or                   § 35.21     Definitions.
                                                                     Territory may not place additional                          Except as modified in this regulation
                                                                     conditions or requirements on distribu-                   or unless the context otherwise re-
                                                                     tions to nonentitlement units of local                    quires, the terms used in this regula-
                                                                     government or units of general local                      tion have the same meaning as set
                                                                     government beyond those required by                       forth in the relevant statutes. For pur-
                                                                     section 603 of the Social Security Act                    poses of this subpart:
                                                                     or this subpart A.                                          Act means the Community Develop-
                                                                                                                               ment Banking and Financial Institu-
                                                                       Subpart B—Compensation and                              tions Act of 1994, as amended (12 U.S.C.
                                                                           Capital Distributions                               4701 et seq.).
                                                                                                                                 Appropriate Federal banking agency
                                                                     § 35.20 Purpose, applicability, and gen-                  has the same meaning as in 12 U.S.C.
                                                                          eral provisions.                                     1813 and also includes the NCUA with
                                                                       (a) Purpose. Pursuant Section 104A of                   respect to a federally insured credit
                                                                     the Community Development Banking                         union.
                                                                     and Financial Institutions Act of 1994                      Capital distributions means:
                                                                     (Act), as added by the Consolidated Ap-                     (1) Dividends, including discretionary
                                                                     propriations Act, 2021 (Pub. L. 116–260),                 dividends, on non-senior securities and
                                                                     this subpart establishes restrictions on                  any other payments on a share of stock
                                                                     executive compensation, dividend pay-                     or other equity or equivalent interest;
                                                                     ments, and share buybacks for recipi-                       (2) Payments, including interest pay-
                                                                     ents of capital investments under the                     ments, on non-senior securities, that
                                                                     Department of the Treasury’s Emer-                        the issuer has full discretion to perma-
                                                                     gency Capital Investment Program                          nently or temporarily suspend without
                                                                     (ECIP or Program), as well as addi-                       triggering a default;




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                                                                     tional criteria for participation in the                    (3) Redemptions or repurchases of
                                                                     Program that the Secretary has deter-                     non-senior securities; or

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                                                                     § 35.21                                                          31 CFR Subtitle A (7–1–25 Edition)

                                                                       (4) Any similar transaction that the                       ECIP investment date means the date
                                                                     Department of the Treasury deter-                         on which an ECIP recipient first issued
                                                                     mines to be in substance a capital dis-                   an ECIP investment.
                                                                     tribution;                                                   ECIP period means the period from
                                                                       (5) Provided, that a ‘‘capital distribu-                the ECIP investment date until the
                                                                     tion’’ does not include:                                  earliest of:
                                                                       (i) Redemptions or repurchases of                          (1) The date on which the ECIP re-
                                                                     shares that are part of an employee                       cipient has fully redeemed or repaid
                                                                     stock ownership plan for an ECIP re-                      the ECIP investment received under
                                                                     cipient that is not publicly traded, pro-                 ECIP;
                                                                     vided that the repurchase is required                        (2) The date on which the investment
                                                                     solely by virtue of the Employee Re-                      the ECIP recipient received under the
                                                                     tirement Income Security Act of 1974,                     ECIP is no longer held, in full or in
                                                                     as amended;                                               part, by the Department of the Treas-
                                                                       (ii) In the case of federally insured                   ury or any affiliate thereof; and
                                                                     credit unions:                                               (3) Ten years after the ECIP invest-
                                                                                                                               ment date.
                                                                       (A) Payments of dividends and inter-
                                                                                                                                  ECIP recipient means any entity that
                                                                     est (as defined by 12 CFR 707.2(h) and
                                                                                                                               has received a capital investment
                                                                     (o)) on accounts held by their members;
                                                                                                                               under the ECIP.
                                                                     provided that this exclusion does not
                                                                                                                                  Excessive    or   luxury    expenditures
                                                                     apply to any extraordinary or special
                                                                                                                               means:
                                                                     dividend by a credit union; or
                                                                                                                                  (1) Excessive expenditures on any of
                                                                       (B) Redemptions of membership
                                                                                                                               the following to the extent such ex-
                                                                     share interests upon voluntary or in-
                                                                                                                               penditures are not reasonable expendi-
                                                                     voluntary terminations of membership                      tures for staff development, reasonable
                                                                     by a credit union or its members, as                      performance incentives, or other simi-
                                                                     applicable; and                                           lar reasonable measures conducted in
                                                                       (iii) Solely in the case of § 35.23(b)                  the normal course of the ECIP recipi-
                                                                     (Limit on amount of capital distribu-                     ent’s business operations:
                                                                     tions), redemptions or repurchases of                        (i) Entertainment or events;
                                                                     non-senior securities if the issuer of                       (ii) Office and facility renovations;
                                                                     the non-senior securities being repur-                       (iii) Aviation or other transportation
                                                                     chased or redeemed fully funds the re-                    services;
                                                                     demption or repurchase by issuing at                         (iv) Tax gross-ups; and
                                                                     least a corresponding amount of new
                                                                                                                                  (v) Other similar items, activities, or
                                                                     non-senior securities that rank equally
                                                                                                                               events for which the ECIP recipient
                                                                     in liquidation with, receive the same                     may reasonably anticipate incurring
                                                                     capital treatment as and, if applicable,                  expenses, or reimbursing an employee
                                                                     have a stated maturity date no earlier                    for incurring expenses;
                                                                     than the non-senior securities being re-
                                                                                                                                  (2) Provided, that reasonable capital
                                                                     deemed or repurchased.                                    investments in technology, equipment,
                                                                       ECIP means the Emergency Capital                        and similar items that expand the
                                                                     Investment Program established under                      long-term capability of an ECIP recipi-
                                                                     Section 104A of the Community Devel-                      ent to provide products and services to
                                                                     opment Banking and Financial Institu-                     its customers and community are not
                                                                     tions Act of 1994, as amended.                            excessive or luxury expenditures.
                                                                       ECIP investment means any preferred                        Excessive or luxury expenditures policy
                                                                     stock, subordinated debt, or other in-                    means written standards applicable to
                                                                     strument (including any successor to                      the ECIP recipient and its employees
                                                                     any such instrument) issued by an                         that address the five categories of ex-
                                                                     ECIP recipient to the Department of                       penses set forth in the definition of
                                                                     the Treasury under the ECIP.                              ‘‘excessive or luxury expenditures,’’
                                                                       ECIP investment agreement means the                     and that are reasonably designed to
                                                                     agreement between an ECIP recipient                       eliminate excessive and luxury expend-
                                                                     and the Department of the Treasury                        itures. Such written standards must:




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                                                                     with respect to the ECIP investment in                       (1) Identify the types or categories of
                                                                     that ECIP recipient.                                      expenditures which are prohibited

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                                                                     Office of the Secretary of the Treasury                                                             § 35.22

                                                                     (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
                                                                     activity or event);                                         Senior executive officer means an ECIP
                                                                       (3) Provide reasonable approval pro-                    recipient’s president, any vice presi-
                                                                     cedures for expenditures requiring                        dent in charge of a principal business
                                                                     prior approval;                                           unit, division or function, any other of-
                                                                       (4) Require the ECIP recipient to de-                   ficer who performs a policy making
                                                                     liver a certification, executed by two                    function, or any other person who per-
                                                                     senior executive officers (one of which                   forms similar policy making functions.
                                                                     must be its principal executive officer                     Severance payment means any pay-
                                                                     or principal financial officer) certifying                ment or benefit provided to an officer
                                                                     that the approval of any expenditure                      or employee of an ECIP recipient in
                                                                     requiring the prior approval of any sen-                  connection with any termination of
                                                                     ior executive officer, any executive of-                  such officer or employee’s employment
                                                                     ficer of a substantially similar level of                 with the ECIP recipient (including res-
                                                                     responsibility, or the ECIP recipient’s                   ignation, severance, retirement, or
                                                                     board of directors (or a committee of                     constructive termination), except for
                                                                     such board of directors), was properly                    payment for services performed or ben-
                                                                     obtained with respect to each such ex-                    efits accrued. A severance payment in-
                                                                     penditure;                                                cludes cash payments, health care ben-
                                                                       (5) Require the prompt internal re-                     efits, perquisites, the enhancement or
                                                                     porting of violations to an appropriate                   acceleration of any payment or vesting
                                                                     person or persons identified in this pol-                 of any payment or benefit, or any other
                                                                     icy; and                                                  in-kind benefit payable or provided in
                                                                       (6) Mandate accountability for adher-                   connection with any termination of an
                                                                     ence to the policy.                                       officer or employee of the ECIP recipi-
                                                                       FDIC means the Federal Deposit In-                      ent.
                                                                     surance Corporation.                                        Total compensation means all com-
                                                                       Federal Reserve Board means the                         pensation, other than any severance
                                                                     Board of Governors of the Federal Re-                     payment, provided by an ECIP recipi-
                                                                     serve System.                                             ent to an officer or employee, including
                                                                       NCUA means the National Credit                          salary, wages, bonuses, awards of
                                                                     Union Administration.
                                                                                                                               stock, deferred compensation, and
                                                                       Non-senior security means any equity
                                                                                                                               other financial benefits.
                                                                     interest or equivalent interest (includ-
                                                                     ing but not limited to membership                         § 35.22     Restrictions on compensation.
                                                                     share interests in the case of a credit
                                                                     union) or any other interest in, or in-                     (a) Restriction on executive compensa-
                                                                     strument issued by, an ECIP recipient                     tion. An ECIP recipient must ensure
                                                                     that is pari passu with, or junior to, the                that the total compensation paid to its
                                                                     ECIP investment with respect to cap-                      senior executive officers is appropriate
                                                                     ital distributions or ranking in liquida-                 and not excessive. Unless informed oth-
                                                                     tion, including but not limited to the                    erwise by the Department of the Treas-
                                                                     common stock (or equivalent equity                        ury, an ECIP recipient is considered to
                                                                     interest) of the ECIP recipient, or any                   have satisfied the requirements regard-
                                                                     equity interest or equivalent interest                    ing executive compensation in this sec-




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                                                                     or any other interest in or instrument                    tion if it, and, if applicable, all insured
                                                                     issued by a depository institution hold-                  depository institution subsidiaries of

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                                                                     § 35.22                                                          31 CFR Subtitle A (7–1–25 Edition)

                                                                     the ECIP recipient, maintains compli-                     its and prohibitions on the ability of
                                                                     ance with the following (or any suc-                      federally insured credit unions to enter
                                                                     cessor requirement, as applicable):                       into contracts to pay and to make
                                                                        (1) For an ECIP recipient or sub-                      golden parachute and indemnification
                                                                     sidiary of an ECIP recipient that is an                   payments to institution-affiliated par-
                                                                     insured depository institution, except                    ties as issued by the NCUA at 12 CFR
                                                                     for federally insured credit unions, the                  750.1.
                                                                     Interagency Guidelines Establishing                         (c) Excessive or luxury expenditures. (1)
                                                                     Standards for Safety and Soundness as                     Ninety days after an ECIP investment
                                                                     issued by the appropriate Federal                         date with respect to an ECIP recipient,
                                                                     banking agency for the ECIP recipient                     the board of directors of the ECIP re-
                                                                     or subsidiary (i.e., for national banks                   cipient must adopt an excessive or lux-
                                                                     and Federal savings associations, 12
                                                                                                                               ury expenditures policy, provide such
                                                                     CFR part 30, appendix A; state member
                                                                                                                               policy to the Department of the Treas-
                                                                     banks, 12 CFR part 208, appendix D–1;
                                                                                                                               ury and the ECIP recipient’s appro-
                                                                     insured state nonmember banks and
                                                                                                                               priate Federal banking agency, and
                                                                     state savings associations, 12 CFR part
                                                                     364, appendix A);                                         post the text of such policy on its
                                                                        (2) For an ECIP recipient that is a                    internet website, if the ECIP recipient
                                                                     bank holding company, the require-                        maintains an internet website.
                                                                     ments for corporate practices of bank                       (2) If, after adopting an excessive or
                                                                     holding companies as issued by the                        luxury expenditures policy, the board
                                                                     Federal Reserve Board at 12 CFR 225.4;                    of directors of the ECIP recipient
                                                                        (3) For an ECIP recipient that is a                    makes any material amendments to
                                                                     savings and loan holding company, the                     such policy, within ninety days of the
                                                                     requirements regarding safe and sound                     adoption of the amended policy the
                                                                     operations of savings and loan holding                    board of directors must provide the
                                                                     companies as issued by the Federal Re-                    amended policy to the Department of
                                                                     serve Board at 12 CFR 238.8; and                          the Treasury and the ECIP recipient’s
                                                                        (4) For an ECIP recipient that is a                    appropriate Federal banking agency
                                                                     federally insured credit union, the re-                   and post the amended policy on its
                                                                     quirements on compensation and bene-                      internet website, if the ECIP recipient
                                                                     fits for federally insured credit unions                  maintains an internet website.
                                                                     as issued by the NCUA at 12 CFR                             (3) The ECIP recipient must main-
                                                                     701.19(a); 12 CFR 701.21(c)(8); 12 CFR                    tain, and continue the disclosure of
                                                                     702.203(b)(10); and 12 CFR 702.204(b)(10).                any material amendments to, the ex-
                                                                        (b) Restriction on severance payments.                 cessive or luxury expenditures policy
                                                                     An ECIP recipient shall not make ex-                      during the ECIP period, unless the De-
                                                                     cessive severance payments to any sen-                    partment of the Treasury determines
                                                                     ior executive officer. Unless informed                    that discontinuation of the policy
                                                                     otherwise by the Department of the
                                                                                                                               would not be contrary to the public in-
                                                                     Treasury, an ECIP is considered to
                                                                                                                               terest.
                                                                     have satisfied the requirements regard-
                                                                     ing severance payments in this section                      (d) Material changes in policies or pro-
                                                                     if it maintains compliance with the fol-                  cedures. An ECIP recipient must obtain
                                                                     lowing (or any successor requirement,                     prior approval from the Department of
                                                                     as applicable):                                           the Treasury before making any mate-
                                                                        (1) For an ECIP recipient that is an                   rial change to the policies or proce-
                                                                     insured depository institution, a bank                    dures that it maintains for purposes of
                                                                     holding company or a savings and loan                     compliance with paragraph (a), (b), or
                                                                     holding company, the limits and prohi-                    (c) of this section. A change to the
                                                                     bitions to enter into contracts to pay                    compensation, severance pay, or exces-
                                                                     and to make golden parachute and in-                      sive or luxury expenditures policies or
                                                                     demnification payments to institution-                    procedures will be considered material
                                                                     affiliated parties to the extent applica-                 for purposes of this section if the
                                                                     ble to the ECIP recipient, as issued by                   change is likely to have a negative ef-
                                                                     the FDIC at 12 CFR part 359; and                          fect on the financial condition of the




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                                                                        (2) For an ECIP recipient that is a                    ECIP recipient, limit the ability of the
                                                                     federally insured credit union, the lim-                  ECIP recipient to make payments

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                                                                     Office of the Secretary of the Treasury                                                             § 35.23

                                                                     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
                                                                       (2) The request will be deemed ap-
                                                                                                                               recent calendar quarter and the two
                                                                     proved thirty days after the ECIP re-
                                                                     cipient has provided a complete re-                       preceding calendar years, where each
                                                                     quest to the Department of the Treas-                     amount is calculated in accordance
                                                                     ury, unless, prior to the expiration of                   with the instructions to the Call Re-
                                                                     the thirty-day period, the Department                     port or applicable reporting form.
                                                                     of the Treasury objects to the proposed                      (2) If the ECIP recipient is federally
                                                                     change or notifies the ECIP recipient                     insured credit union, the ECIP recipi-
                                                                     that additional time is required in                       ent shall obtain the Department of the
                                                                     order to complete review of the pro-                      Treasury’s prior approval to make any
                                                                     posed change to policy or procedures                      capital distributions if the distribution
                                                                                                                               would:
                                                                     § 35.23 Restrictions   on   dividends,                       (i) In the case of a dividend, be pay-
                                                                          share buybacks, and other capital                    able from retained earnings (as defined
                                                                          distributions.
                                                                                                                               in 12 CFR 702.2(f)) other than undivided
                                                                       (a) Restriction on capital distributions                earnings; or
                                                                     due to nonpayment. An ECIP recipient                         (ii) Cause the ECIP recipient’s net
                                                                     shall not make any capital distribution                   worth classification to fall below
                                                                     on a non-senior security, unless:                         ‘‘adequately capitalized’’ (as defined in
                                                                       (1) If the ECIP investment is in the                    12 CFR 702.102(a)(2)).
                                                                     form of preferred stock, the ECIP re-
                                                                                                                                  (c) Exception for Subchapter S Corpora-
                                                                     cipient has paid in full the dividends
                                                                                                                               tions and other pass-through entities.
                                                                     for the last completed dividend period
                                                                                                                               Notwithstanding anything to the con-
                                                                     on the preferred stock; or
                                                                                                                               trary in paragraphs (a) and (b) of this
                                                                       (2) If the ECIP investment is in a
                                                                     form other than preferred stock (in-                      section, any ECIP recipient that is an
                                                                     cluding, subordinated debt), the ECIP                     S corporation, as defined in 26 U.S.C.
                                                                     recipient has paid in full the principal,                 1361(a), or other pass-through entity
                                                                     interest, and other amounts due and                       may make capital distributions, to the
                                                                     payable under the terms of the ECIP                       extent reasonably required to cover its
                                                                     investment, and no amount that has                        owners’ tax obligations in respect to
                                                                     been deferred remains unpaid.                             the entity’s earnings. Such distribu-
                                                                       (b) Limit on amount of capital distribu-                tions shall be subject to an annual rec-
                                                                     tions. (1) If an ECIP recipient is an in-                 onciliation, with any surplus or defi-
                                                                     sured depository institution, bank                        ciency to be deducted or added to dis-
                                                                     holding company, or savings and loan                      tributions, as applicable, in the fol-
                                                                     holding company, the ECIP recipient                       lowing year. Any tax-related distribu-
                                                                     shall obtain the approval of the De-                      tions permitted under this paragraph
                                                                     partment of the Treasury prior to mak-                    (c) must also comply with any applica-
                                                                     ing any capital distribution if the total                 ble limitations or determinations es-




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                                                                     of capital distributions made during                      tablished by an ECIP recipient’s Fed-
                                                                     the calendar year, including the pro-                     eral regulators.

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                                                                     § 35.24                                                          31 CFR Subtitle A (7–1–25 Edition)

                                                                     § 35.24    Annual certification.                          § 35.27 Definitions.
                                                                       On an annual basis an ECIP recipient                       In this subpart:
                                                                     shall, in accordance with the terms and                      (a) Controlling influence over a business
                                                                     conditions of its ECIP investment                         means having the power to control,
                                                                     agreement, submit to the Department                       manage, or direct the business. A per-
                                                                     of the Treasury a certification exe-                      son is presumed to have a controlling
                                                                     cuted by two senior executive officers                    influence over a business if the person
                                                                     (one of which must be either its prin-                    is a senior executive officer or senior
                                                                     cipal executive officer or principal fi-                  manager of the business (e.g., Chief Ex-
                                                                     nancial officer) that the ECIP recipient                  ecutive Officer, Chief Financial Officer,
                                                                     is in compliance with each of the ex-                     Chief Operating Officer), or any other
                                                                     cessive compensation, severance pay,                      individual who regularly performs
                                                                     and excessive or luxury expenditures                      similar functions.
                                                                     requirements and restrictions on cap-                        (b) Jurisdiction means:
                                                                     ital distributions set forth in §§ 35.22                     (1) One of the fifty states of the
                                                                     and 35.23.                                                United States;
                                                                                                                                  (2) The District of Columbia, the
                                                                     § 35.25    Exemptive relief.                              Commonwealth of Puerto Rico, the
                                                                                                                               Commonwealth of Northern Mariana
                                                                       The Department of the Treasury may                      Islands, Guam, American Samoa, and
                                                                     grant exemptions or waivers from some                     the United States Virgin Islands;
                                                                     or all of the restrictions on share                          (3) When designated by one of the
                                                                     buybacks and dividend payments under                      fifty states of the United States, a po-
                                                                     this part if such exemption or waiver is                  litical subdivision of that state that
                                                                     necessary or appropriate to effectuate                    the U.S. Department of the Treasury
                                                                     the goals of the ECIP or to protect the                   determines has the capacity to partici-
                                                                     public interest. Such exemptions or                       pate in the State Small Business Credit
                                                                     waivers may be subject to such terms                      Initiative;
                                                                     and conditions as deemed necessary or                        (4) Under the circumstances de-
                                                                     appropriate by the Department of the                      scribed in 12 U.S.C. 5703(d), a munici-
                                                                     Treasury.                                                 pality of one of the fifty states of the
                                                                                                                               United States to which the U.S. De-
                                                                     Subpart C—State Small Business                            partment of the Treasury has given a
                                                                        Credit Initiative Small Business                       special permission under 12 U.S.C.
                                                                        Owners Demographics Data                               5703(d); and
                                                                        Collection                                                (5) A Tribal government or a group of
                                                                                                                               Tribal governments that jointly apply
                                                                                                                               to be approved by the U.S. Department
                                                                       SOURCE: 87 FR 13633, Mar. 10, 2022, unless              of Treasury to participate in the State
                                                                     otherwise noted.
                                                                                                                               Small Business Credit Initiative as a
                                                                     § 35.26    Authority, scope, and purpose.                 single participating jurisdiction.
                                                                                                                                  (c) Minority individual means a nat-
                                                                       (a) Authority and scope. This subpart                   ural person who identifies as American
                                                                     is issued by the U.S. Department of the                   Indian or Alaska Native; Asian; Black
                                                                     Treasury pursuant to Sections 3007 and                    or African American; Native Hawaiian
                                                                     3010 of the Small Business Jobs Act of                    or Other Pacific Islander; or Hispanic
                                                                     2010, as amended by the American Res-                     or Latino/a; or one or more than one of
                                                                     cue Plan Act of 2021 (12 U.S.C. 5706,                     these groups.
                                                                     5709).                                                       (d) Minority-owned or controlled busi-
                                                                       (b) Purpose. The U.S. Department of                     ness means a business that:
                                                                     the Treasury is collecting demo-                             (1) If privately owned, 51 percent or
                                                                     graphics-related data regarding those                     more is owned by minority individuals;
                                                                     who own or control businesses that re-                       (2) If publicly owned, 51 percent or
                                                                     ceive a loan, investment, other credit                    more of the stock is owned by minority
                                                                     or equity support, or technical assist-                   individuals;
                                                                     ance under the State Small Business                          (3) In the case of a mutual institu-
                                                                     Credit Initiative for purposes of imple-                  tion, a majority of the board of direc-




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                                                                     mentation, compliance, and under-                         tors, account holders, and the commu-
                                                                     standing program outcomes.                                nity which the institution services is

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                                                                     Office of the Secretary of the Treasury                                                             § 35.27

                                                                     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
                                                                     directly, through any contract, ar-                       affected by persistent poverty or in-
                                                                     rangement, understanding, relation-                       equality.
                                                                     ship or otherwise, 25 percent or more of                    (12) For purposes of this paragraph
                                                                     the equity interests of the business,                     (g), a business is ‘‘owned and con-
                                                                     the trustee is a principal owner.                         trolled’’ by applicable individuals:
                                                                       (g) Socially and economically disadvan-                   (i) If privately owned, 51 percent or
                                                                     taged individual (SEDI) demographics-re-                  more is owned by such individuals;
                                                                     lated business means a business owned                       (ii) If publicly owned, 51 percent
                                                                     and controlled by individuals who have                    more or of the stock is owned by such
                                                                     had their access to credit on reasonable                  individuals; and
                                                                     terms diminished compared to others                         (ii) In the case of a mutual institu-
                                                                     in     comparable       economic      cir-                tion, if a majority of the board of direc-
                                                                     cumstances, due to their:                                 tors, account holders, and the commu-
                                                                       (1) Membership of a group that has                      nity which the institution services is
                                                                     been subjected to racial or ethnic prej-                  predominantly comprised of such indi-
                                                                     udice or cultural bias within American                    viduals.
                                                                     society;
                                                                                                                                 (h) Veteran-owned or controlled busi-
                                                                       (2) Gender;
                                                                                                                               ness means a business that:
                                                                       (3) Veteran status;
                                                                                                                                 (1) If privately owned, 51 percent or
                                                                       (4) Limited English proficiency;
                                                                                                                               more is owned by veterans;
                                                                       (5) Disability;
                                                                       (6) Long-term residence in an envi-                       (2) If publicly owned, 51 percent or
                                                                     ronment isolated from the mainstream                      more of the stock is owned by veterans;
                                                                     of American society;                                        (3) In the case of a mutual institu-
                                                                       (7) Membership of a federally or                        tion, a majority of the board of direc-
                                                                     state-recognized Indian Tribe;                            tors, account holders, and the commu-
                                                                       (8) Long-term residence in a rural                      nity which the institution services is
                                                                     community;                                                predominantly comprised of veterans;
                                                                       (9) Residence in a U.S. territory;                      or
                                                                       (10) Residence in a community under-                      (4) One or more individuals who are
                                                                     going economic transitions (including                     veterans have the power to exercise a
                                                                     communities impacted by the shift to-                     controlling influence over the business.
                                                                     wards     a    net-zero    economy      or                  (i) Women-owned or controlled business
                                                                     deindustrialization); or                                  means a business that:
                                                                       (11) Membership of an underserved                         (1) If privately owned, 51 percent or
                                                                     community.                                                more is owned by females;
                                                                       (i) Underserved communities are popu-                     (2) If publicly owned, 51 percent or
                                                                     lations sharing a particular char-                        more of the stock is owned by females;
                                                                     acteristic, as well as geographic com-                      (3) In the case of a mutual institu-
                                                                     munities, that have been systemati-                       tion, a majority of the board of direc-




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                                                                     cally denied a full opportunity to par-                   tors, account holders, and the commu-
                                                                     ticipate in aspects of economic, social,                  nity which the institution services is

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                                                                     § 35.28                                                          31 CFR Subtitle A (7–1–25 Edition)

                                                                     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-
                                                                     the State Small Business Credit Initia-                   spond; or that the business did not an-
                                                                     tive. For each business that receives a                   swer.
                                                                     loan, investment, or other credit or eq-                     (c) Women-owned or controlled business
                                                                     uity support under the State Small                        status. Indicate whether the business is
                                                                     Business Credit Initiative, the reported                  a women-owned or controlled business.
                                                                     data shall be based on the ownership                      The participating jurisdiction must in-
                                                                     and control of the business imme-                         dicate yes; no; prefer not to respond; or
                                                                     diately before the consummation of                        that the business did not answer.
                                                                     such loan, investment, or other credit                       (d) Veteran-owned or controlled busi-
                                                                     or equity support-related transaction.                    ness status. Indicate whether the busi-
                                                                     For each business that receives tech-                     ness is a veteran-owned or controlled
                                                                     nical assistance under the State Small                    business. The participating jurisdiction
                                                                     Business Credit Initiative, the reported                  must indicate yes; no; prefer not to re-
                                                                     data shall be based on the ownership                      spond; or that the business did not an-
                                                                     and control of the business at the time                   swer.
                                                                     it receives such technical assistance.                       (e) Race of principal owners. (1) For
                                                                        (a) Self-certified SEDI demographics-re-               each principal owner of the business,
                                                                     lated business status. (1) Indicate which                 indicate which one or more of the fol-
                                                                     one or more of the following categories                   lowing race categories (including the
                                                                     apply: Self-certified due to membership                   Office of Management and Budget’s
                                                                     of a group that has been subjected to                     minimum categories and the relevant
                                                                     racial or ethnic prejudice or cultural                    disaggregated categories) with which
                                                                     bias within American society; self-cer-                   the principal owner identifies: Amer-
                                                                     tified due to gender; self-certified due                  ican Indian or Alaska Native; Asian;
                                                                     to veteran status; self-certified due to                  Asian disaggregated categories: Indian,
                                                                     limited English proficiency; self-cer-                    Chinese, Filipino, Japanese, Korean,
                                                                     tified due to disability; self-certified                  Vietnamese, Asian (Other); Black or
                                                                     due to long-term residence in an envi-                    African American; Native Hawaiian or
                                                                     ronment isolated from the mainstream                      Other Pacific Islander; Native Hawai-
                                                                     of American society; self-certified due                   ian     or     Other    Pacific   Islander
                                                                     to membership of a federally or state-                    disaggregated categories: Guamanian
                                                                     recognized Indian Tribe; self-certified                   or Chamorro, Native Hawaiian, Sa-
                                                                     due to long-term residence in a rural                     moan, Pacific Islander (Other); White;
                                                                     community; self-certified due to resi-                    prefer not to respond; or that the busi-
                                                                     dence in a U.S. territory; self-certified                 ness did not answer.
                                                                     due to residence in a community un-                          (2) The participating jurisdiction
                                                                     dergoing economic transitions (includ-                    must permit each business to identify
                                                                     ing communities impacted by the shift                     all of the Office of Management and
                                                                     towards      a     net-zero  economy     or               Budget’s minimum categories and




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                                                                     deindustrialization); self-certified due                  disaggregated categories in paragraph
                                                                     to membership of an ‘‘underserved                         (e)(1) of this section with which each

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

                                                                     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-                    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
                                                                     rican; prefer not to respond; or that the                 services; (4) tax gross-ups; and (5) other simi-
                                                                                                                               lar items, activities, or events for which the
                                                                     business did not answer.                                  ECIP recipient may reasonably anticipate
                                                                       (h) Gender of principal owners. For                     incurring expenses, or reimbursing an em-
                                                                     each principal owner of the business,                     ployee for incurring expenses.
                                                                     indicate which of the following gender                       (1) To facilitate compliance with this re-
                                                                     categories the principal owner identi-                    quirement, the Department of the Treasury
                                                                     fies with: Female; male; nonbinary;                       is making available a model excessive or lux-
                                                                                                                               ury expenditures policy. An ECIP recipient
                                                                     prefer to self-describe, prefer not to re-
                                                                                                                               may refer to this model policy for guidance
                                                                     spond; or that the business did not an-                   in satisfying the requirement at 31 CFR
                                                                     swer. If the ‘‘prefer to self-describe’’                  35.22(c) to adopt and maintain an excessive
                                                                     option is chosen, the participating ju-                   or luxury expenditures policy. Alternatively,
                                                                     risdiction must provide an option for                     ECIP recipients may use other forms of, or
                                                                     the business to write in the gender and                   existing policies relating to, excessive or
                                                                     must report what the business writes                      luxury expenditures, provided that such
                                                                                                                               other forms or policies satisfy all the re-
                                                                     in.
                                                                                                                               quirements of the regulation at 31 CFR
                                                                       (i) Sexual orientation of principal own-                35.22(c).
                                                                     ers. For each principal owner of the                         (2) An ECIP recipient’s luxury or excessive
                                                                     business, indicate which of the fol-                      expenditure policy should be posted on the
                                                                     lowing sexual orientation categories                      ECIP recipient’s website. Any material
                                                                     the principal owner identifies with:                      amendments to an ECIP recipient’s excessive
                                                                     Gay or lesbian; bisexual; straight, that                  or luxury expenditures policy must made in
                                                                                                                               accordance with the provisions set forth in
                                                                     is, not gay, lesbian, or bisexual; some-                  31 CFR 35.22(d) (Material changes in policies
                                                                     thing else; prefer not to respond; or                     or procedures). If the ECIP recipient makes
                                                                     that the business did not answer.                         any material amendments to this policy,
                                                                       (j) Veteran status of principal owners.                 then the ECIP recipient must submit a copy
                                                                     For each principal owner of the busi-                     of the amended policy to the Department of
                                                                     ness, indicate which of the following                     the Treasury and post the amended policy on
                                                                                                                               the ECIP recipient’s website. ECIP recipi-
                                                                     categories the principal owner identi-                    ents should refer to 31 CFR part 35, subpart
                                                                     fies with: Veteran; non-veteran; prefer                   B for additional information regarding defi-
                                                                     not to respond; or that the business did                  nitions of terms used in the model policy,
                                                                     not answer.                                               disclosure, material changes, certification,
                                                                                                                               and other compliance requirements.
                                                                     § 35.29    Format.
                                                                                                                                      II. MODEL EXCESSIVE OR LUXURY
                                                                        Participating jurisdictions must sub-                              EXPENDITURES POLICY
                                                                     mit the information required under
                                                                     § 35.28 using the formats specified from                                     A. Purpose




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                                                                     time to time on the U.S. Department of                      The purpose of this policy is to establish
                                                                     the Treasury’s website.                                   parameters and internal controls governing

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                                                                     Pt. 35, App. A                                                   31 CFR Subtitle A (7–1–25 Edition)
                                                                     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-
                                                                     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 $___
                                                                     ment Program regulations (31 CFR part 35),                on an annual aggregate basis per individual,
                                                                     and as may be required by other statutes and              are exempt from this policy.
                                                                     regulations.                                                 (ii) The principal executive officer may es-
                                                                                                                               tablish or delegate to an appropriate execu-
                                                                                       C. Responsibility                       tive officer the authority to establish proc-
                                                                                                                               esses for reimbursement of reasonable travel
                                                                       This policy is the responsibility of the Or-
                                                                                                                               expenditures, which processes must be re-
                                                                     ganization’s board of directors (board). The
                                                                                                                               viewed by executive management no less fre-
                                                                     board has approved this policy and will re-
                                                                                                                               quently than annually.
                                                                     view compliance with this policy no less fre-
                                                                                                                                  (4) Tax gross-ups. This category includes
                                                                     quently than annually, and summary data
                                                                                                                               any reimbursement of taxes owed with re-
                                                                     on excessive or luxury expenditures will be
                                                                                                                               spect to any compensation. This category
                                                                     reported to the board as part of the compli-
                                                                                                                               does not apply to tax equalization agree-
                                                                     ance review.
                                                                                                                               ments for employees subject to tax from a
                                                                                             D. Scope                          non-U.S. jurisdiction.
                                                                                                                                  (5) Other similar items, activities, or events for
                                                                       This policy applies to all employees, offi-             which the Organization may reasonably antici-
                                                                     cers, and directors of the Organization with              pate incurring expenses or reimbursing an em-
                                                                     regard to any expenditure of the Organiza-                ployee for incurring expenses. (i) Expenditures
                                                                     tion. In making any expenditure on behalf of              related to other items not listed in the pre-
                                                                     the Organization, employees, officers, and di-            ceding categories are exempt from this pol-
                                                                     rectors should consider whether the expendi-              icy in an amount less than $___ per instance,
                                                                     ture is an excessive or luxury expenditure                and together with all expenditures permitted
                                                                     that is prohibited under this policy.                     under this policy, may not exceed $___ on an
                                                                                                                               annual aggregate basis per individual.
                                                                           E. Excessive or Luxury Expenditures
                                                                                                                                  (ii) For the avoidance of doubt, reasonable
                                                                       ‘‘Excessive or luxury expenditures’’ means              capital investments in technology, equip-
                                                                     excessive expenditures on any of the fol-                 ment, and similar items that expand the
                                                                     lowing to the extent not reasonable or appro-             long-term capability of an ECIP recipient to
                                                                     priate expenditures for business develop-                 provide products and services to its cus-
                                                                     ment, staff development, reasonable per-                  tomers and community are not excessive or
                                                                     formance incentives, or other similar reason-             luxury expenditures.
                                                                     able measures conducted in the normal                        (iii) The principal executive officer may es-
                                                                     course of the Organization’s business oper-               tablish or delegate to an appropriate execu-
                                                                     ations:                                                   tive officer the authority to establish proc-
                                                                       (1) Entertainment or events. This category              esses for the evaluation and approval of ex-
                                                                     includes fees, dues, tickets costs related to             penditures in the preceding categories that
                                                                     social, athletic, artistic and dining clubs, ac-          are not luxury or excessive expenditures and
                                                                     tivities, celebrations or other events, and               that are not otherwise exempt from this pol-
                                                                     similar expenditures. Expenditures for chari-             icy. These processes must be reviewed by ex-
                                                                     table contributions and charitable events are             ecutive management no less frequently than




jspears on DSK121TN23PROD with CFR
                                                                     not prohibited under this policy. Entertain-              annually, as well as any additional threshold
                                                                     ment or events expenditures in an amount                  expenditure amounts per item, activity, or
                                                                     less than $___ per instance, and $___ on an an-           event, or a threshold expenditure amount per

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                                                                     Office of the Secretary of the Treasury                                                              Pt. 50
                                                                     employee receiving the item or participating                       PART 50—TERRORISM RISK
                                                                     in the activity or event under this policy.
                                                                     Such approvals must be reported to the                              INSURANCE PROGRAM
                                                                     board of directors (which may be in an ap-
                                                                     propriate summary form) no less frequently                         Subpart A—General Provisions
                                                                     than annually.
                                                                                                                               Sec.
                                                                                 F. Exceptions or Violations                   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
                                                                     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.
                                                                     employee or officer who violates this policy              50.11 Definition.
                                                                     may be subject to disciplinary action up to               50.12 Clear and conspicuous disclosure.
                                                                     and including termination of employment.                  50.13 Offer and renewal.
                                                                       (2) Any employee or officer that is aware of
                                                                                                                               50.14 Separate line item.
                                                                     any circumstance that may indicate a viola-
                                                                                                                               50.15 Cap disclosure.
                                                                     tion of this policy is required to report such
                                                                     circumstance to their supervisor or the Or-               50.16 Use of model forms.
                                                                     ganization’s principal compliance officer or              50.17 General disclosure requirements for
                                                                     compliance group. The Organization pro-                       State residual market insurance entities
                                                                     hibits retaliation against any employee or                    and State workers’ compensation funds.
                                                                     officer for making a good faith report of ac-
                                                                     tual or suspected violations of the Organiza-                     Subpart C—Mandatory Availability
                                                                     tion’s code of conduct, laws, regulations, or
                                                                                                                               50.20 General mandatory availability re-
                                                                     other Organization policies, including this
                                                                                                                                   quirements.
                                                                     policy. A finding of retaliation against any
                                                                     such employee or officer may result in dis-               50.21 Make available.
                                                                     ciplinary action up to and including termi-               50.22 No material difference from other cov-
                                                                     nation. Failure to promptly report known                      erage.
                                                                     violations by others may also be deemed a                 50.23 Applicability of State law require-
                                                                     violation of the Organization’s code of con-                  ments.
                                                                     duct.
                                                                       (3) Employees and officers may ask ques-                Subpart D—State Residual Market Insur-
                                                                     tions, raise concerns, or report instances of                ance Entities; Workers’ Compensation
                                                                     non-compliance with this policy and/or any                   Funds
                                                                     of the existing underlying relevant policies
                                                                     by contacting the following: [COMPLIANCE                  50.30 General participation requirements.
                                                                     HELP LINE OR E–MAIL].                                     50.31 Entities that do not share profits and
                                                                                                                                   losses with private sector insurers.
                                                                                       G. Certification                        50.32 Entities that share profits and losses
                                                                        On an annual basis, the ECIP recipient will                with private sector insurers.
                                                                     deliver to the Department of the Treasury a               50.33 Allocation of premium income associ-
                                                                     certification, executed by two senior execu-                  ated with entities that do share profits
                                                                     tive officers (one of which must be either the                and losses with private sector insurers.
                                                                     ECIP recipient’s principal executive officer
                                                                     or principal financial officer) certifying that                         Subpart E [Reserved]
                                                                     (i) the Organization is in compliance with
                                                                     this policy and (ii) the approval of any ex-                          Subpart F—Data Collection
                                                                     penditure requiring the prior approval of any
                                                                     senior executive officer, any executive offi-             50.50    General.
                                                                     cer of a substantially similar level of respon-           50.51    Annual data reporting.




jspears on DSK121TN23PROD with CFR
                                                                     sibility, or the board of directors (or a com-            50.52    Small insurer data.
                                                                     mittee of such board), was properly obtained              50.53    Collection of claims data.
                                                                     with respect to each such expenditure.                    50.54    Handling of data.

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